Exhibit 4.5
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PURCHASE AND SALE AGREEMENT
AMONG
ANTIGUA FUNDING CORPORATION
PURCHASER
AT&T CAPITAL CORPORATION
IN ITS INDIVIDUAL CAPACITY AND AS SERVICER
AND
AT&T CAPITAL LEASING SERVICES, INC.
AT&T CREDIT CORPORATION
NCR CREDIT CORP.
AT&T COMMERCIAL FINANCE CORPORATION
SELLERS
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DATED AS OF OCTOBER 1, 1996
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1 General . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.2 Specific Terms . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.3 Usage of Terms . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.4 Certain References . . . . . . . . . . . . . . . . . . . 3
SECTION 1.5 No Recourse . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.6 Action by or Consent of Noteholders or Equity
Certificateholders . . . . . . . . . . . . . . . . . . . 3
ARTICLE II CONVEYANCE OF THE CONTRACTS . . . . . . . . . . . . . . . . . 4
SECTION 2.1 Conveyance of Contracts and Related Assets . . . . . . . 4
SECTION 2.2 Intention of the Parties . . . . . . . . . . . . . . . . 5
ARTICLE III REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 6
SECTION 3.1 Representations and Warranties of TCC . . . . . . . . . 6
SECTION 3.2 Representations and Warranties of Leasing Services. . . 8
SECTION 3.3 Representations and Warranties of Credit Corp. . . . . . 10
SECTION 3.4 Representations and Warranties of NCR Credit . . . . . . 12
SECTION 3.5 Representations and Warranties of CFC . . . . . . . . . 14
SECTION 3.6 Representations and Warranties of Antigua . . . . . . . 17
ARTICLE IV COVENANTS OF THE SELLERS . . . . . . . . . . . . . . . . . . 19
SECTION 4.1 Protection of Title of Antigua and the Trust . . . . . . 19
SECTION 4.2 Other Liens or Interests . . . . . . . . . . . . . . . . 22
SECTION 4.3 Costs and Expenses . . . . . . . . . . . . . . . . . . . 22
SECTION 4.4 Indemnification . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.5 Negative Covenant . . . . . . . . . . . . . . . . . . . 24
ARTICLE V REPURCHASES . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.1 Repurchase of Contracts Upon Breach of Representation
or Warranty . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.2 Reassignment of Purchased Contracts and Leased
Equipment . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.3 Waivers . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.1 Liability of the Sellers and TCC . . . . . . . . . . . . 26
SECTION 6.2 Merger or Consolidation of a Seller, TCC or Antigua . . 26
SECTION 6.3 Limitation on Liability of the Sellers, TCC and Others
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.4 The Sellers and TCC May Own Notes or Equity
Certificates . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.5 Amendment . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.7 Merger and Integration . . . . . . . . . . . . . . . . . 30
SECTION 6.8 Severability of Provisions . . . . . . . . . . . . . . . 30
SECTION 6.9 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.11 Conveyance of the Contracts to the Trust . . . . . . . . 30
SECTION 6.12 Nonpetition Covenant . . . . . . . . . . . . . . . . . . 31
SCHEDULES
Schedule A-1 -- Schedule of Lease Contracts and Leased Equipment
Schedule A-2 -- Schedule of Loan Contracts
Schedule B -- Schedule of Representations and Warranties of the Sellers
and TCC
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, dated as of October 1, 1996,
executed between Antigua Funding Corporation, a Delaware corporation, as
purchaser ("Antigua"), AT&T Capital Corporation, a Delaware corporation, in
its individual capacity ("TCC"), and as servicer (the "Servicer"), AT&T
Capital Leasing Services, Inc., a Massachusetts corporation ("Leasing
Services"), AT&T Credit Corporation, a Delaware corporation ("Credit
Corp."), NCR Credit Corp., a Delaware corporation ("NCR Credit") and AT&T
Commercial Finance Corporation, a Delaware corporation ("CFC"), as sellers
(each a "Seller" and, together, "the Sellers").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of an Amended and Restated Trust
Agreement, dated as of October 1, 1996 (the "Trust Agreement"), between
Antigua and The Bank of New York, as Owner Trustee, Antigua has formed
Capita Equipment Receivables Trust 1996-1 (the "Trust"), and the Trust has
issued the Equity Certificates to Antigua; and
WHEREAS, pursuant to the terms of an Indenture, dated as of
October 1, 1996 (the "Indenture"), between the Trust and The Chase
Manhattan Bank, as Trustee (the "Indenture Trustee"), the Trust has, on the
Closing Date, issued the Notes (as defined in the Indenture); and
WHEREAS, the Sellers own certain Lease Contracts as are more
particularly described in Schedule A-1 attached hereto and have an
ownership or security interest in the items of Equipment subject thereto
(the "Leased Equipment"), as more particularly described in Schedule A-1
attached hereto, and the Sellers own certain Loan Contracts as are more
particularly described in Schedule A-2 attached hereto, which create a
security interest in the items of equipment subject thereto (the "Loan
Equipment"), (the Loan Equipment and the Leased Equipment being
collectively referred to herein as the "Equipment"); and
WHEREAS, pursuant to the terms of a Transfer and Servicing
Agreement, dated as of October 1, 1996 (the "Transfer and Servicing
Agreement"), by and among the Trust, Antigua, as depositor, and TCC, in its
individual capacity and as Servicer, to be executed concurrently with the
execution of this Agreement, Antigua will convey the Contracts to the
Trust; and
WHEREAS, pursuant to a Loan Agreement, dated as of October 1,
1996, among the Owner Trustee, the Indenture Trustee, the Depositor, TCC,
in its individual capacity and as Servicer, the Lenders party thereto, and
the agent thereunder, there will be established a Cash Collateral Account
for the benefit of the Noteholders and the Equity Certificateholders; and
WHEREAS, Antigua has agreed to acquire the Contracts and the
Leased Equipment from the Sellers and the Sellers have agreed to transfer
the Contracts and the Leased Equipment to Antigua; and
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt of
which is acknowledged, Antigua, TCC, the Servicer and the Sellers,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 GENERAL. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision, and
Article, Section, Schedule and Exhibit references, unless otherwise
specified, refer to Articles and Sections of and Schedules and Exhibits to
this Agreement. All capitalized terms used herein without definition shall
have the respective meanings assigned to such terms in the Transfer and
Servicing Agreement or, if not defined in the Transfer and Servicing
Agreement, in the Indenture.
SECTION 1.2 SPECIFIC TERMS. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires,
shall have the following meanings:
"AGREEMENT" means this Purchase and Sale Agreement and all
amendments hereof and supplements hereto.
"CLOSING DATE" means October 15, 1996.
"RELATED DOCUMENTS" means the Trust Agreement, the Indenture, the
Transfer and Servicing Agreement, the Equity Certificates, the Notes and
the Cash Collateral Account Agreement. The Related Documents to be
executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
"REPURCHASE EVENT" means, with respect to any Contract, the
occurrence of a breach of any of the representations and warranties set
forth in the Schedule of Representations that materially and adversely
affects the value of such Contract.
"SCHEDULE OF CONTRACTS" means, collectively, the schedules of
Lease Contracts and Loan Contracts attached hereto as Schedule A-1 and
Schedule A-2, respectively.
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"SCHEDULE OF REPRESENTATIONS" means the Schedule of
Representations and Warranties attached hereto as Schedule B.
"TRUST" means the trust created by the Trust Agreement, the
estate of which consists of the Trust Assets.
"TRUST ASSETS" means the property and proceeds of every
description conveyed pursuant to Section 2.6 of the Trust Agreement and
Section 2.1 of the Transfer and Servicing Agreement, together with the
Trust Accounts (including all Eligible Investments therein and all proceeds
therefrom), and the right to withdraw funds from the Cash Collateral
Account pursuant to Section 8.06 of the Indenture.
SECTION 1.3 USAGE OF TERMS. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the
singular; words importing any gender include the other gender; references
to "writing" include printing, typing, lithography, and other means of
reproducing words in a visible form; references to agreements and other
contractual instruments include all subsequent amendments thereto or
changes therein entered into in accordance with their respective terms and
not prohibited by this Agreement or the Transfer and Servicing Agreement;
references to Persons include their permitted successors and assigns; and
the terms "include" or "including" mean "include without limitation" or
"including without limitation."
SECTION 1.4 CERTAIN REFERENCES. All references to the Contract
Principal Balance of a Contract as of an Accounting Date shall refer to the
close of business on such day, or as of the first day of a Monthly Period
shall refer to the opening of business on such day. All references to the
last day of a Monthly Period shall refer to the close of business on such
day.
SECTION 1.5 NO RECOURSE. Without limiting the obligations of
the Sellers or TCC hereunder, no recourse may be taken, directly or
indirectly, under this Agreement or any certificate or other writing
delivered in connection herewith or therewith, against any stockholder,
officer or director, as such, of any of Antigua, the Sellers, TCC, the
Servicer, the Indenture Trustee or the Owner Trustee, or of any predecessor
or successor of any of Antigua, the Sellers, TCC, the Servicer, the
Indenture Trustee or the Owner Trustee.
SECTION 1.6 ACTION BY OR CONSENT OF NOTEHOLDERS OR EQUITY
CERTIFICATEHOLDERS. Whenever any provision of this Agreement refers to
action to be taken, or consented to, by Noteholders or Equity
Certificateholders, such provision shall be deemed to refer to Noteholders
or Equity Certificateholders, as the case may be, of record as of the
Record Date immediately preceding the date on which such action is to be
taken, or consent given, by such Noteholders or Equity Certificateholders,
as the case may be. Solely for the purposes of any action to be taken, or
consented to, by Noteholders or Equity Certificateholders, any Note or
Equity Certificate registered in
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the name of any of Antigua, a Seller or TCC, or any Affiliate thereof (but
not including the Revolving Trust), shall be deemed not to be outstanding,
and the related Principal Balance, as applicable, evidenced thereby shall
not be taken into account in determining whether the requisite Principal
Balance necessary to effect any such action or consent has been obtained;
PROVIDED, HOWEVER, that, solely for the purpose of determining whether the
Indenture Trustee or Owner Trustee is entitled to rely upon any such action
or consent, only Notes or Equity Certificates which the Indenture Trustee
or Owner Trustee knows to be so owned shall be so disregarded.
ARTICLE II
CONVEYANCE OF THE CONTRACTS
SECTION 2.1 CONVEYANCE OF CONTRACTS AND RELATED ASSETS.
(a) Each of the Sellers hereby subscribes to purchase the
following number of shares of common stock, par value $.01 per share, of
Antigua, in consideration for the amount of capital to be contributed by
such Seller, all as specified below:
Leasing Services: $1,604,049,883.34 45.34 shares
Credit Corp.: $1,466,619,268.74 41.38 shares
NCR Credit: $ 264,236,058.58 7.43 shares
CFC: $ 170,225,456.83 4.85 shares
Antigua agrees that the capital to be contributed by any Seller may take
the form of assets.
(b) In satisfaction of its subscription agreement in Section
2.1(a) plus additional cash to be received from Antigua, each of the
Sellers hereby sells, transfers, assigns, and otherwise conveys to Antigua,
without recourse (but without limitation of its obligations in this
Agreement), and Antigua hereby acquires, all right, title and interest,
including security interests, whether now owned or hereafter acquired, of
each of the Sellers in and to the following:
(i) the Contracts, including, without limitation, (A) all monies
at any time paid or payable thereon or in respect thereof from and
after the Cut-Off Date, including but not limited to (1) Scheduled
Payments (including those Scheduled Payments due prior to, but not
received as of, the Cut-Off Date, but excluding those Scheduled
Payments due on or after, but received prior to, the
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Cut-Off Date), (2) Prepayments, (3) Liquidation Proceeds,
(4) Extension Fees, (5) payments to be applied by the Servicer to the
payment of insurance charges, maintenance, taxes or other similar
obligations, and (6) payments to be retained by the Servicer in
payment of Administrative Fees, (B) all security interests of the
lessor or secured party, as the case may be, in the related Equipment
and all present or future leases and other contracts relating to the
Equipment and all revenues, payments, rights to payment, profits,
accounts, chattel paper, products and contract rights arising from or
related to the Equipment or any use thereof or from any such lease or
other contract, (C) all rights of the lessor or secured party, as the
case may be, in all Insurance Policies and all other security for the
payment of amounts due under the Contracts (including all rights, if
any, the lessor or the secured party may have against vendors and
other third parties for payments of such amounts), (D) all items
contained in the related Contract Files and any and all other
documents that are kept on file in accordance with the applicable
Seller's customary procedures relating to the Contracts, and (E) any
and all proceeds of any and all of the foregoing; and
(ii) the Leased Equipment and all proceeds thereof, including in
any event and without limitation, all present and future leases and
other contracts relating to the Leased Equipment and all revenues,
payments, rights to payment, profits, accounts, chattel paper,
products and contract rights arising from or related to the Leased
Equipment or any use thereof or from any such lease or other contract,
and any and all proceeds of any and all of the foregoing.
(C) ANTIGUA ACKNOWLEDGES THAT THE SELLERS ARE TRANSFERRING THE
LEASED EQUIPMENT "AS-IS, WHERE-IS," AND THAT THE SELLERS MAKE NO
REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED EQUIPMENT,
INCLUDING WITHOUT LIMITATION ITS MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
SECTION 2.2 INTENTION OF THE PARTIES. The execution and
delivery of this Agreement shall constitute an acknowledgment by each of
the Sellers, TCC and Antigua that they intend that each assignment and
transfer herein contemplated constitute a sale and assignment outright, and
not for security, of the property described in Section 2.1(b), conveying
good title thereto free and clear of any Liens, from the Sellers to
Antigua, and that all such property shall not be a part of the estate of
any Seller or TCC in the event of the bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding
under any federal or state bankruptcy or similar law, or the occurrence of
another similar event, of, or with respect to, any Seller or TCC. In the
event that such conveyance is determined to be made as security for a loan
made by Antigua, the Trust, the Equity Certificateholders or the
Noteholders to the Sellers or TCC, the Sellers and TCC hereby grant to
Antigua a security interest in all of the Sellers' and TCC's right, title
and interest in and to the property described in Section 2.1(b) to secure
the loan determined to have been made to
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the Sellers or TCC and the payment and performance of the other obligations
of the Sellers and TCC under this Agreement, and agree that in such event
this Agreement shall constitute a security agreement under applicable law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF TCC. TCC makes
the following representations and warranties, on which Antigua relies in
purchasing the Contracts and in transferring the Contracts to the Trust
under the Transfer and Servicing Agreement. Such representations are made
as of the Closing Date, but shall survive the sale, transfer and assignment
of the Contracts hereunder and the transfer of the Contracts by Antigua to
the Trust under the Transfer and Servicing Agreement. TCC and Antigua
agree that Antigua will assign to the Trust all of Antigua's rights under
this Agreement at the Closing Date and that the Trust will thereafter be
entitled to enforce this Agreement against TCC in the Trust's own name.
(a) SCHEDULE OF REPRESENTATIONS. With respect to each Contract,
the representations and warranties set forth on the Schedule of
Representations are true and correct as of the date specified therein.
(b) ORGANIZATION AND GOOD STANDING. TCC has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Contracts transferred to Antigua.
(c) DUE QUALIFICATION. TCC is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in each jurisdiction in which the ownership or
lease of its property or the conduct of its business requires such
qualification and in which the failure to so qualify would have a
material adverse impact on its business or financial condition.
(d) POWER AND AUTHORITY. TCC has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively, and the execution,
delivery and performance of this Agreement and all of TCC's Related
Documents have been duly authorized by TCC by all necessary corporate
action.
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(e) NO CONSENTS. TCC holds all necessary licenses, certificates
and permits from all government authorities necessary for conducting
its business as it is presently conducted, and is not required to
obtain the consent of any other party or any consent, license,
approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(f) VALID SALE; BINDING OBLIGATIONS. This Agreement and each of
TCC's Related Documents have been duly executed and delivered, and
effect a valid sale, transfer and assignment of the Contracts and the
Originator's interest in the related Equipment, enforceable against
TCC, and creditors of and purchasers from TCC; and this Agreement and
each of TCC's Related Documents constitute legal, valid and binding
obligations of TCC, enforceable in accordance with their respective
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or
at law.
(g) NO VIOLATION. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement
and the Related Documents and the fulfillment of the terms of this
Agreement and the Related Documents shall 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, or both) a default under, the
certificate of incorporation or bylaws of TCC, or any indenture,
agreement, mortgage, deed of trust or other instrument to which TCC 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, the Transfer and
Servicing Agreement and the Indenture, or violate any law, order, rule
or regulation applicable to TCC of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over TCC or any of its properties.
(h) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the knowledge of TCC, threatened against TCC, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over TCC or any
properties of TCC (i) asserting the invalidity of this Agreement or
any of the Related Documents, (ii) seeking to prevent the issuance of
the Notes or the Equity Certificates or the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might
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materially and adversely affect the performance by TCC of its
obligations under, or the validity or enforceability of, this
Agreement or any of the Related Documents or (iv) seeking to affect
adversely the federal income tax or other federal, state or local tax
attributes of, or seeking to impose any excise, franchise, transfer or
similar tax upon, the transfer and acquisition of the Contracts
hereunder or under the Transfer and Servicing Agreement.
(i) CHIEF EXECUTIVE OFFICES. The chief executive office of TCC
is located at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx, and the
offices where TCC keeps its records concerning the Contracts and
related documents are in Morristown, New Jersey.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF LEASING SERVICES.
Leasing Services makes the following representations and warranties, on
which Antigua relies in purchasing the Contracts and in transferring the
Contracts to the Trust under the Transfer and Servicing Agreement. Such
representations are made as of the Closing Date, but shall survive the
sale, transfer and assignment of the Contracts hereunder and the transfer
thereof by Antigua to the Trust under the Transfer and Servicing Agreement.
Leasing Services and Antigua agree that Antigua will assign to the Trust
all of Antigua's rights under this Agreement and that the Trust will
thereafter be entitled to enforce this Agreement against Leasing Services
in the Trust's own name.
(a) SCHEDULE OF REPRESENTATIONS. With respect to each Contract
sold by Leasing Services to Antigua hereunder, the representations and
warranties set forth on the Schedule of Representations are true and
correct as of the date specified therein.
(b) ORGANIZATION AND GOOD STANDING. Leasing Services has been
duly organized and is validly existing as a corporation in good
standing under the laws of the Commonwealth of Massachusetts, with
power and authority to own its properties and to conduct its business
as such properties are currently owned and such business is currently
conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire, own and sell the Contracts sold
by Leasing Services to Antigua hereunder.
(c) DUE QUALIFICATION. Leasing Services is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in each jurisdiction in which
the ownership or lease of its property or the conduct of its business
requires such qualification and in which the failure to so comply
would have a material adverse impact on its business or financial
condition.
(d) POWER AND AUTHORITY. Leasing Services has the power and
authority to execute and deliver this Agreement and its Related
Documents and to carry out its terms and their terms, respectively;
Leasing Services has full
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power and authority to sell and assign the Contracts to be sold and
assigned to and deposited with Antigua hereunder and has duly
authorized such sale and assignment to Antigua by all necessary
corporate action; and the execution, delivery and performance of this
Agreement and all of Leasing Services's Related Documents have been
duly authorized by Leasing Services by all necessary corporate action.
(e) NO CONSENTS. Leasing Services holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consents, licenses,
approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be, prior to the
Closing Date.
(f) VALID SALE; BINDING OBLIGATIONS. This Agreement and each of
Leasing Services's Related Documents have been duly executed and
delivered, and effect a valid sale, transfer and assignment of the
Contracts and Leasing Services' interest in the related Equipment,
enforceable against Leasing Services, and creditors of and purchasers
from Leasing Services; and this Agreement and each of Leasing
Services's Related Documents constitute legal, valid and binding
obligations of Leasing Services, enforceable in accordance with their
respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or
at law.
(g) NO VIOLATION. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement
and the Related Documents and the fulfillment of the terms of this
Agreement and the Related Documents shall 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, or both) a default under, the
articles of incorporation or bylaws of Leasing Services, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which Leasing Services 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, the Transfer
and Servicing Agreement and the Indenture, or violate any law, order,
rule or regulation applicable to Leasing Services of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Leasing Services
or any of its properties.
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(h) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the knowledge of Leasing Services, threatened against
Leasing Services, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over Leasing Services or any properties of Leasing
Services (i) asserting the invalidity of this Agreement or any of the
Related Documents, (ii) seeking to prevent the issuance of the Notes
or the Equity Certificates or the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Leasing Services of
its obligations under, or the validity or enforceability of, this
Agreement or any of the Related Documents or (iv) seeking to affect
adversely the federal income tax or other federal, state or local tax
attributes of, or seeking to impose any excise, franchise, transfer or
similar tax upon, the transfer and acquisition of the Contracts
hereunder or under the Transfer and Servicing Agreement.
(i) CHIEF EXECUTIVE OFFICES. The chief executive office of
Leasing Services is located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, and the offices where Leasing Services keeps its
records concerning the Contracts and related documents are in
Framingham, Massachusetts.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES OF CREDIT CORP.
Credit Corp. makes the following representations and warranties, on which
Antigua relies in purchasing the Contracts and in transferring the
Contracts to the Trust under the Transfer and Servicing Agreement. Such
representations are made as of the Closing Date but shall survive the sale,
transfer and assignment of the Contracts hereunder and the transfer thereof
by Antigua to the Trust under the Transfer and Servicing Agreement. Credit
Corp. and Antigua agree that Antigua will assign to the Trust all of
Antigua's rights under this Agreement and that the Trust will thereafter be
entitled to enforce this Agreement against Credit Corp. in the Trust's own
name.
(a) SCHEDULE OF REPRESENTATIONS. With respect to each Contract
sold by Credit Corp. to Antigua hereunder, the representations and
warranties set forth on the Schedule of Representations are true and
correct as of the date specified therein.
(b) ORGANIZATION AND GOOD STANDING. Credit Corp. has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Contracts sold by Credit Corp. to Antigua
hereunder.
-10-
(c) DUE QUALIFICATION. Credit Corp. is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in each jurisdiction in which
the ownership or lease of its property or the conduct of its business
requires such qualification and in which the failure to so qualify
would have a material adverse impact on its business or financial
condition.
(d) POWER AND AUTHORITY. Credit Corp. has the power and
authority to execute and deliver this Agreement and its Related
Documents and to carry out its terms and their terms, respectively;
Credit Corp. has full power and authority to sell and assign the
Contracts to be sold and assigned to and deposited with Antigua
hereunder and has duly authorized such sale and assignment to Antigua
by all necessary corporate action; and the execution, delivery and
performance of this Agreement and all of Credit Corp.'s Related
Documents have been duly authorized by Credit Corp. by all necessary
corporate action.
(e) NO CONSENTS. Credit Corp. holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consents, licenses,
approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be, prior to the
Closing Date.
(f) VALID SALE; BINDING OBLIGATIONS. This Agreement and each of
Credit Corp.'s Related Documents have been duly executed and
delivered, and effect a valid sale, transfer and assignment of the
Contracts and Credit Corp.'s interest in the related Equipment,
enforceable against Credit Corp., and creditors of and purchasers from
Credit Corp.; and this Agreement and each of Credit Corp.'s Related
Documents constitute legal, valid and binding obligations of Credit
Corp., enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(g) NO VIOLATION. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement
and the Related Documents and the fulfillment of the terms of this
Agreement and the Related Documents shall 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, or both) a default under, the
certificate of incorporation or bylaws of Credit Corp., or any
indenture, agreement, mortgage, deed of trust or other instrument to
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which Credit Corp. 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, the Transfer
and Servicing Agreement and the Indenture, or violate any law, order,
rule or regulation applicable to Credit Corp. of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Credit Corp. or
any of its properties.
(h) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the knowledge of Credit Corp., threatened against
Credit Corp., before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality having jurisdiction
over Credit Corp. or any properties of Credit Corp. (i) asserting the
invalidity of this Agreement or any of the Related Documents,
(ii) seeking to prevent the issuance of the Notes or the Equity
Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents,
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by Credit Corp. of its obligations
under, or the validity or enforceability of, this Agreement or any of
the Related Documents or (iv) seeking to affect adversely the federal
income tax or other federal, state or local tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Contracts hereunder or under the
Transfer and Servicing Agreement.
(i) CHIEF EXECUTIVE OFFICES. The chief executive office of
Credit Corp. is located at 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
and the offices where Credit Corp. keeps its records concerning the
Contracts and related documents are in Parsippany, New Jersey.
SECTION 3.4 REPRESENTATIONS AND WARRANTIES OF NCR CREDIT. NCR
Credit makes the following representations and warranties, on which Antigua
relies in purchasing the Contracts and in transferring the Contracts to the
Trust under the Transfer and Servicing Agreement. Such representations are
made as of the Closing Date but shall survive the sale, transfer and
assignment of the Contracts hereunder and the transfer thereof by Antigua
to the Trust under the Transfer and Servicing Agreement. NCR Credit and
Antigua agree that Antigua will assign to the Trust all of Antigua's rights
under this Agreement and that the Trust will thereafter be entitled to
enforce this Agreement against NCR Credit in the Trust's own name.
(a) SCHEDULE OF REPRESENTATIONS. With respect to each Contract
sold by NCR Credit to Antigua hereunder, the representations and
warranties set forth on the Schedule of Representations are true and
correct as of the date specified therein.
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(b) ORGANIZATION AND GOOD STANDING. NCR Credit has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Contracts sold by NCR Credit to Antigua
hereunder.
(c) DUE QUALIFICATION. NCR Credit is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in each jurisdiction in which
the ownership or lease of its property or the conduct of its business
requires such qualification and in which the failure to so qualify
would have a material adverse impact on its business or financial
condition.
(d) POWER AND AUTHORITY. NCR Credit has the power and authority
to execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; NCR Credit has full
power and authority to sell and assign the Contracts to be sold and
assigned to and deposited with Antigua hereunder and has duly
authorized such sale and assignment to Antigua by all necessary
corporate action; and the execution, delivery and performance of this
Agreement and all of NCR Credit's Related Documents have been duly
authorized by NCR Credit by all necessary corporate action.
(e) NO CONSENTS. NCR Credit holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consents, licenses,
approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be, prior to the
Closing Date.
(f) VALID SALE; BINDING OBLIGATIONS. This Agreement and each of
NCR Credit's Related Documents have been duly executed and delivered,
and effect a valid sale, transfer and assignment of the Contracts and
NCR Credit's interest in the related Equipment, enforceable against
NCR Credit, and creditors of and purchasers from NCR Credit; and this
Agreement and each of NCR Credit's Related Documents constitute legal,
valid and binding obligations of NCR Credit, enforceable in accordance
with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
-13-
(g) NO VIOLATION. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement
and the Related Documents and the fulfillment of the terms of this
Agreement and the Related Documents shall 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, or both) a default under, the
certificate of incorporation or bylaws of NCR Credit, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which NCR Credit 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, the Transfer and
Servicing Agreement and the Indenture, or violate any law, order, rule
or regulation applicable to NCR Credit of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over NCR Credit or any of its
properties.
(h) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the knowledge of NCR Credit, threatened against NCR
Credit, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality having jurisdiction
over NCR Credit or any properties of NCR Credit (i) asserting the
invalidity of this Agreement or any of the Related Documents,
(ii) seeking to prevent the issuance of the Notes or the Equity
Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents,
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by NCR Credit of its obligations
under, or the validity or enforceability of, this Agreement or any of
the Related Documents or (iv) seeking to affect adversely the federal
income tax or other federal, state or local tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Contracts hereunder or under the
Transfer and Servicing Agreement.
(i) CHIEF EXECUTIVE OFFICES. The chief executive office of NCR
Credit is located at 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx, and the
offices where NCR Credit keeps its records concerning the Contracts
and related documents are in Parsippany, New Jersey.
SECTION 3.5 REPRESENTATIONS AND WARRANTIES OF CFC. CFC makes
the following representations and warranties, on which Antigua relies in
purchasing the Contracts and in transferring the Contracts to the Trust
under the Transfer and Servicing Agreement. Such representations are made
as of the Closing Date but shall survive the sale, transfer and assignment
of the Contracts hereunder and the transfer thereof by Antigua to the Trust
under the Transfer and Servicing Agreement. CFC and Antigua agree that
Antigua will assign to the Trust all of Antigua's rights under this
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Agreement and that the Trust will thereafter be entitled to enforce this
Agreement against CFC in the Trust's own name.
(a) SCHEDULE OF REPRESENTATIONS. With respect to each Contract
sold by CFC to Antigua hereunder, the representations and warranties
set forth on the Schedule of Representations are true and correct as
of the date specified therein.
(b) ORGANIZATION AND GOOD STANDING. CFC has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Contracts sold by CFC to Antigua hereunder.
(c) DUE QUALIFICATION. CFC is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in each jurisdiction in which the ownership or
lease of its property or the conduct of its business requires such
qualification and in which the failure to so qualify would have a
material adverse impact on its business or financial condition.
(d) POWER AND AUTHORITY. CFC has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; CFC has full power
and authority to sell and assign the Contracts to be sold and assigned
to and deposited with Antigua hereunder and has duly authorized such
sale and assignment to Antigua by all necessary corporate action; and
the execution, delivery and performance of this Agreement and all of
CFC's Related Documents have been duly authorized by CFC by all
necessary corporate action.
(e) NO CONSENTS. CFC holds all necessary licenses, certificates
and permits from all government authorities necessary for conducting
its business as it is presently conducted, and is not required to
obtain the consent of any other party or any consent, license,
approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(f) VALID SALE; BINDING OBLIGATIONS. This Agreement and each of
CFC's Related Documents have been duly executed and delivered, and
effect a valid sale, transfer and assignment of the Contracts and
CFC's interest in the related Equipment, enforceable against CFC, and
creditors of and purchasers from CFC;
-15-
and this Agreement and each of CFC's Related Documents constitute
legal, valid and binding obligations of CFC, enforceable in accordance
with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(g) NO VIOLATION. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement
and the Related Documents and the fulfillment of the terms of this
Agreement and the Related Documents shall 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, or both) a default under, the
certificate of incorporation or bylaws of CFC, or any indenture,
agreement, mortgage, deed of trust or other instrument to which CFC 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, the Transfer and
Servicing Agreement and the Indenture, or violate any law, order, rule
or regulation applicable to CFC of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over CFC or any of its properties.
(h) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the knowledge of CFC, threatened against CFC, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over CFC or any
properties of CFC (i) asserting the invalidity of this Agreement or
any of the Related Documents, (ii) seeking to prevent the issuance of
the Notes or the Equity Certificates or the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFC of its
obligations under, or the validity or enforceability of, this
Agreement or any of the Related Documents or (iv) seeking to affect
adversely the federal income tax or other federal, state or local tax
attributes of, or seeking to impose any excise, franchise, transfer or
similar tax upon, the transfer and acquisition of the Contracts
hereunder or under the Transfer and Servicing Agreement.
(i) CHIEF EXECUTIVE OFFICES. The chief executive office of CFC
is located at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx, and the
offices where CFC keeps its records concerning the Contracts and
related documents are in Morristown, New Jersey.
SECTION 3.6 REPRESENTATIONS AND WARRANTIES OF ANTIGUA. Antigua
makes the following representations and warranties, on which each of the
Sellers and
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TCC relies in selling, assigning, transferring and conveying the Contracts
to Antigua hereunder. Such representations are made as of the Closing Date
but shall survive the sale, transfer and assignment of the Contracts
hereunder and the transfer thereof by Antigua to the Trust under the
Transfer and Servicing Agreement.
(a) ORGANIZATION AND GOOD STANDING. Antigua has been duly
organized and is validly existing and in good standing as a
corporation under the laws of the State of Delaware, with the power
and authority to own its properties and to conduct its business as
such properties are currently owned and such business is currently
conducted, and had at all relevant times, and has, full power,
authority and legal right to acquire and own the Contracts and to
transfer the Contracts to the Trust pursuant to the Transfer and
Servicing Agreement.
(b) DUE QUALIFICATION. Antigua is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in each jurisdiction where the
failure to do so would materially and adversely affect (i) Antigua's
ability to acquire the Contracts, (ii) the validity or enforceability
of the Contracts or (iii) Antigua's ability to perform its obligations
hereunder and under the Related Documents.
(c) POWER AND AUTHORITY. Antigua has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively, and to acquire the
Contracts and the Equipment; and the execution, delivery and
performance of this Agreement and its Related Documents and all of the
documents required pursuant hereto or thereto have been duly
authorized by Antigua by all necessary action.
(d) NO CONSENTS. Antigua holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consents, licenses,
approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be, prior to the
Closing Date.
(e) BINDING OBLIGATION. This Agreement and each of Antigua's
Related Documents constitutes a legal, valid and binding obligation of
Antigua, enforceable against Antigua in accordance with its terms; and
this Agreement and each of Antigua's Related Documents constitute
legal, valid and binding obligations of Antigua, enforceable in
accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights
-17-
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) NO VIOLATION. The execution, delivery and performance by
Antigua of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents
do not and 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, or both) a default under the certificate of incorporation or
bylaws of Antigua, or any indenture, agreement, mortgage, deed of
trust or other instrument to which Antigua is a party or by which
Antigua is bound or to which any of its properties are subject, 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 the Transfer
and Servicing Agreement and the Indenture), or violate any law, order,
rule or regulation, applicable to Antigua or its properties, of any
federal or state regulatory body or any court, administrative agency,
or other governmental instrumentality having jurisdiction over Antigua
or any of its properties.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending, or, to the knowledge of Antigua, threatened against Antigua,
before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality having jurisdiction over
Antigua or its properties: (i) asserting the invalidity of this
Agreement or any of the Related Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement
or any of the Related Documents, (iii) seeking any determination or
ruling that might materially and adversely affect the performance by
Antigua of its obligations under, or the validity or enforceability
of, this Agreement or any of the Related Documents or (iv) that may
adversely affect the federal or state income tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Contracts hereunder or the
transfer of the Contracts to the Trust pursuant to the Transfer and
Servicing Agreement.
(h) CHIEF EXECUTIVE OFFICES. The chief executive office of
Antigua is located at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx, and
the offices where Antigua keeps its records concerning the Contracts
and related documents are in Morristown, New Jersey.
In the event of any breach of a representation and warranty made by Antigua
hereunder, each of the Sellers and TCC covenants and agrees that (i) it
will not take any action or pursue any remedy that it may have hereunder,
in law, in equity or otherwise, until a year and a day have passed since
the date on which all Notes and Certificates issued by the Trust, or a
trust or similar vehicle formed by Antigua, have been paid in
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full, and (ii) any remedy it may have hereunder is subject to Section 6.12.
Each of the Sellers, TCC and Antigua agree that damages will not be an
adequate remedy for breach of the foregoing covenant and that this covenant
may be specifically enforced by Antigua or by the Owner Trustee on behalf
of the Trust.
ARTICLE IV
COVENANTS OF THE SELLERS
SECTION 4.1 PROTECTION OF TITLE OF ANTIGUA AND THE TRUST.
(a) At or prior to the Closing Date, Leasing Services shall have
filed or caused to be filed UCC-1 financing statements, executed by Leasing
Services, as seller or debtor, naming Antigua as secured party and the
Trust as assignee and (i) describing the Contracts and other property
described in Section 2.1 as collateral, filed with the office of the
Secretary of State of the Commonwealth of Massachusetts and in the
appropriate filing office in Middlesex County, and (ii) describing the
Leased Equipment as collateral, filed with the appropriate filing office in
each jurisdiction where Leased Equipment is located (other than Tennessee
and Maryland). Leasing Services shall deliver (or cause to be delivered)
to Antigua, the Owner Trustee and the Indenture Trustee file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon
as available following such filing. In the event that Leasing Services
fails to perform its obligations under this subsection, Antigua or the
Owner Trustee may do so at the expense of TCC.
(b) At or prior to the Closing Date, Credit Corp. shall have
filed or caused to be filed UCC-1 financing statements, executed by Credit
Corp., as seller or debtor, naming Antigua as secured party and the Trust
as assignee and (i) describing the Contracts and other property described
in Section 2.1 as collateral, with the office of the Secretary of State of
the State of New Jersey, and (ii) describing the Leased Equipment as
collateral, filed with the appropriate filing office in each jurisdiction
where Leased Equipment is located (other than Tennessee and Maryland).
Credit Corp. shall deliver (or cause to be delivered) to Antigua, the Owner
Trustee and the Indenture Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing. In the event that Credit Corp. fails to perform its
obligations under this subsection, Antigua or the Owner Trustee may do so
at the expense of TCC.
(c) At or prior to the Closing Date, NCR Credit shall have filed
or caused to be filed UCC-1 financing statements, executed by NCR Credit,
as seller or debtor, naming Antigua as secured party and the Trust as
assignee and (i) describing the Contracts and other property described in
Section 2.1 as collateral, with the office of the Secretary of State of the
State of New Jersey, and (ii) describing the Leased Equipment as
collateral, filed with the appropriate filing office in each jurisdiction
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where Leased Equipment is located (other than Tennessee and Maryland). NCR
Credit shall deliver (or cause to be delivered) to Antigua, the Owner
Trustee and the Indenture Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing. In the event that NCR Credit fails to perform its
obligations under this subsection, Antigua or the Owner Trustee may do so
at the expense of TCC.
(d) At or prior to the Closing Date, CFC shall have filed or
caused to be filed UCC-1 financing statements, executed by CFC, as seller
or debtor, naming Antigua as secured party and the Owner Trust as assignee
and (i) describing the Contracts and other property described in Section
2.1 as collateral, with the office of the Secretary of State of the State
of Oregon, and (ii) describing the Leased Equipment as collateral, filed
with the appropriate filing office in each jurisdiction where Leased
Equipment is located (other than Tennessee and Maryland). CFC shall
deliver (or cause to be delivered) to Antigua, the Owner Trustee and the
Indenture Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such
filing. In the event that CFC fails to perform its obligations under this
subsection, Antigua or the Owner Trustee may do so at the expense of TCC.
(e) If any of the Sellers or TCC change its name, identity, or
corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed by such Seller or TCC
(or by Antigua or the Owner Trustee on behalf of such Seller or TCC) in
accordance with paragraphs (a) - (d) above seriously misleading within the
meaning of Section 9-402(7) of the UCC, it shall give Antigua and the Owner
Trustee written notice thereof no later than 10 days following the
occurrence of such change, and shall file appropriate amendments to all
such previously filed financing statements and continuation statements
within the time period required by the UCC.
(f) If any of the Sellers or TCC relocate its principal
executive office and, 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, it shall give Antigua, the Indenture Trustee and the
Owner Trustee written notice thereof; and shall promptly file such
appropriate amendments or financing statements within the time period
required by the UCC.
(g) Each of the Sellers and TCC shall at all times maintain its
principal executive office, and any office from which it services
Contracts, within the United States of America.
(h) Each of the Sellers shall maintain its computer systems so
that, from and after the time of sale under this Agreement of the
Contracts, the Leased Equipment and the other items described in Section
2.1(b) to Antigua, and the conveyance of the Contracts by Antigua to the
Trust, the master computer records (including archives) of each of the
Sellers that shall refer to a Contract, any Leased
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Equipment or any of the other items described in Section 2.1(b) indicate
clearly that such Contract, Leased Equipment or other item described in
Section 2.1(b) has been sold to Antigua and that such Contract has been
conveyed by Antigua to the Trust. Indication of the Trust's ownership of a
Contract shall be deleted from or modified on any of the Sellers' computer
systems when, and only when, the Contract has been paid in full, liquidated
(including receipt of all recoveries reasonably expected to be collected)
or purchased by the Depositor or TCC.
(i) If at any time any of the Sellers shall propose to sell,
grant a security interest in, or otherwise transfer any interest in lease
contracts or loan contracts of a character similar to the Contracts to any
prospective purchaser, lender or other transferee, such Seller shall give
to such prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from archives) that, if they
shall refer in any manner whatsoever to any Contract, shall indicate
clearly that such Contract has been sold to Antigua and is owned by the
Trust. Each Seller, TCC and Antigua agree that, if any one of them
receives an inquiry from a bona fide potential creditor regarding whether
any lease contract, loan contract or item of equipment is identified on the
Schedule of Contracts, they will instruct the Indenture Trustee to disclose
the contents of the Schedule of Contracts to such potential creditor in
accordance with the provisions of Section 11.17 of the Indenture.
(j) If any Seller receives payments in respect of Contracts, any
Leased Equipment or any of the other items described in Section 2.1(b),
such Seller agrees to pay or cause to be paid to the Servicer all such
payments as soon as practicable after identification thereof, but in no
event later than two Business Days after receipt thereof by such Seller.
(k) Each Seller shall notify Antigua and the Indenture Trustee
within three Business Days after becoming aware of any Lien on any
Contract, Leased Equipment or other item described in Section 2.1(b), other
than the conveyances hereunder or under the Transfer and Servicing
Agreement.
(l) Each Seller will promptly pay and discharge all taxes,
assessments, levies and other governmental charges imposed on it which may
materially and adversely affect any of the Contracts, Leased Equipment or
other items described in Section 2.1(b), or Antigua's rights with respect
thereto.
(m) Each Seller hereby agrees that it will perform its
obligations under the agreements relating to the Contracts in conformity
with its customary and usual policies and procedures relating to the
Contracts.
(n) No later than 10 days after the Closing Date, the Sellers
and TCC shall deliver to Antigua, the Owner Trustee and the Indenture
Trustee a written certification that all notifications and consents
required by paragraph (R) in the Schedule of Representations hereto have
been given or obtained, as applicable.
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SECTION 4.2 OTHER LIENS OR INTERESTS. Except for the
conveyances hereunder, with respect to any Contract, the Seller will not
sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on such Contract or any interest
therein, and such Seller shall defend the right, title, and interest of
Antigua and the Trust in and to such Contract against all claims of third
parties claiming through or under such Seller.
SECTION 4.3 COSTS AND EXPENSES. Each Seller and TCC shall pay
all reasonable costs and disbursements in connection with the performance
of its obligations hereunder and its Related Documents.
SECTION 4.4 INDEMNIFICATION.
Each of the Sellers, acting severally and not jointly, and TCC,
as applicable, shall defend, indemnify and hold harmless Antigua, the
Trust, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Equity Certificateholders from and against:
(a) any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from any breach of any
representations and warranties of such Seller or TCC, as applicable,
contained herein (other than those set forth in the Schedule of
Representations, the exclusive remedies for which are specified in Section
5.1);
(b) any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the use, ownership or
operation of any item of Equipment (notwithstanding the disclaimer of
Section 2.1(c)); and, in addition, each of the Sellers and TCC shall cause
Antigua and the Trust to be named as an additional insured under its
liability insurance policies;
(c) any and all costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from any action taken, or failed to
be taken, by it in respect of any portion of the Trust Assets other than
any action taken in accordance with this Agreement or any Related Document;
(d) any taxes that may at any time be asserted against Antigua,
the Trust, the Owner Trustee, the Indenture Trustee, the Noteholders and
the Equity Certificateholders with respect to the transactions contemplated
in this Agreement, including, without limitation, any sales, gross
receipts, general corporation, tangible or intangible personal property,
privilege, or license taxes (but not including any taxes asserted with
respect to, and as of the date of, the sale, transfer and assignment of the
Contracts to Antigua and of the Trust Assets to the Trust or the issuance
and original sale of the Notes or the Equity Certificates, or asserted with
respect to ownership of the Contracts or the Trust Assets, which shall be
indemnified by the Sellers and TCC pursuant to clause (e) below), or
federal, state or other income taxes, arising out of
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distributions on the Notes or the Equity Certificates or transfer taxes
arising in connection with the transfer of the Notes or the Equity
Certificates) and costs and expenses in defending against the same, arising
or imposed against such Persons by reason of the acts to be performed by
such Seller or TCC, as applicable, under this Agreement;
(e) any taxes which may at any time be asserted against such
Persons with respect to, and as of the date of, the conveyance or ownership
of the Contracts and the conveyance or ownership of the Trust Assets under
the Purchase Agreement or the Transfer and Servicing Agreement or the
issuance and original sale of the Notes and the Equity Certificates,
including, without limitation, any sales, gross receipts, personal
property, tangible or intangible personal property, privilege or license
taxes (but not including any federal or other income taxes, including
franchise taxes, arising out of the transactions contemplated hereby or
transfer taxes arising in connection with the transfer of Notes or Equity
Certificates) and costs and expenses in defending against the same, arising
or imposed against such Persons;
(f) any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon Antigua, the Owner Trustee, the
Trust, the Indenture Trustee, the Noteholders and the Equity
Certificateholders through the negligence, willful misfeasance, or bad
faith of such Seller or TCC, as applicable, in the performance of its
duties under this Agreement or by reason of reckless disregard of the
obligations and duties of such Seller or TCC, as applicable, under this
Agreement;
(g) any loss, liability or expense incurred by reason of the
violation by such Seller or TCC, as applicable, of federal or state
securities laws in connection with the registration or the sale of the
Notes and the Equity Certificates; and
(h) any loss, liability or expense imposed upon, or incurred by,
Antigua, the Owner Trustee, the Indenture Trustee, the Trust, the
Noteholders or the Equity Certificateholders as a result of the failure of
any Contract, or the sale of the related Equipment, to comply with all
requirements of applicable law, but only to the extent such loss, liability
or expense is not covered by the repurchase of such Contract and Equipment
as required by Section 5.1.
Indemnification under this Section 4.4 shall include reasonable
fees and expenses of counsel and expenses of litigation and shall survive
termination of the Trust. The indemnity obligations hereunder shall be in
addition to any obligation that any Seller or TCC, as applicable, may
otherwise have.
Promptly after receipt by an indemnified party under this Section
4.4 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of
the commencement thereof; but the
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omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
SECTION 4.5 NEGATIVE COVENANT. TCC and the Sellers (a) shall
not engage in any transaction or series of transactions or otherwise take
any action or omit to take any action which could result in a determination
that any Seller shall have received less than reasonably equivalent value
for the transfer and conveyance of the Contracts and the other property
described in Section 2.1(b) to Antigua either on the Closing Date or
thereafter and (b) in any event, shall not use the proceeds received from
the transfer and conveyance of the Contracts and the other property
described in Section 2.1(b) either on the Closing Date or thereafter (i) to
pay any dividend or make any distribution on or in respect of its capital
stock or (ii) to purchase, redeem or otherwise acquire or retire for value
any of its capital stock or the capital stock of any of its affiliates
(other than any of its wholly owned subsidiaries or a corporation which by
virtue thereof would become a wholly owned subsidiary of the Seller), if,
in the case of either (i) or (ii), at the time of any such action and after
giving effect thereto (x) the present fair saleable value of the assets of
such Seller or TCC is less than the amount that would be required to be
paid on or in respect of such Seller's or TCC's total liabilities
(including a reasonable estimate of its contingent liabilities (net of tax
benefits to the extent reasonably likely to be realized)), (y) the assets
of such Seller or TCC constitute an unreasonably small capital to carry out
such Seller's or TCC's business as it is then conducted or as such Seller
or TCC then intends to conduct its business or (z) such Seller or TCC has
incurred, intends to incur, or believes that it will incur, debts that
would be beyond such Seller's or TCC's ability to pay as they mature.
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ARTICLE V
REPURCHASES
SECTION 5.1 REPURCHASE OF CONTRACTS UPON BREACH OF
REPRESENTATION OR WARRANTY. Upon the occurrence of a Repurchase Event, TCC
shall, unless such breach shall have been cured in all material respects,
repurchase such Contract from the Trust and the related Leased Equipment
(in the case of a Lease Contract) from Antigua and, on or before the
related Deposit Date, TCC shall pay the Purchase Amount to the Servicer on
behalf of the Owner Trustee and Antigua pursuant to Section 2.6 of the
Transfer and Servicing Agreement. It is understood and agreed that, except
as set forth in the following paragraph, the obligation of TCC to
repurchase any Contract and the related Leased Equipment (if applicable) as
to which a breach has occurred and is continuing shall, if such obligation
is fulfilled, constitute the sole remedy against TCC and the applicable
Seller for such breach available to Antigua, the Noteholders, the Equity
Certificateholders, the Owner Trustee on behalf of the Equity
Certificateholders or the Indenture Trustee on behalf of the Noteholders.
The provisions of this Section 5.1 are intended to grant the Owner Trustee
and the Indenture Trustee a direct right against TCC to demand performance
hereunder, and in connection therewith, TCC waives any requirement of prior
demand against Antigua or the Sellers with respect to such repurchase
obligation. Notwithstanding any other provision of this Agreement or the
Transfer and Servicing Agreement to the contrary, the obligation of TCC
under this Section shall not terminate upon a termination of TCC as
Servicer under the Transfer and Servicing Agreement and shall be performed
by TCC in accordance with the terms hereof notwithstanding the failure of
the Servicer or Antigua to perform any of their respective obligations with
respect to such Contract under the Transfer and Servicing Agreement.
In addition to the foregoing and notwithstanding whether the
related Contract and the related Leased Equipment (if applicable) shall
have been purchased by TCC, TCC shall indemnify Antigua, the Owner Trustee,
the Indenture Trustee, the Trust, the Noteholders and the Equity
Certificateholders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may
be asserted against or incurred by any of them as a result of third party
claims arising out of the events or facts giving rise to such Repurchase
Events.
SECTION 5.2 REASSIGNMENT OF PURCHASED CONTRACTS AND LEASED
EQUIPMENT. Upon deposit in the Collection Account of the Purchase Amount
of any Contract and the related Leased Equipment (if applicable)
repurchased by TCC under Section 5.1, Antigua and the Owner Trustee shall
take such steps as may be reasonably requested by TCC in order to assign to
TCC all of Antigua's and the Trust's right, title and interest in and to
such Contract and the related Leased Equipment (if applicable) and all
security and documents conveyed to Antigua and the Trust directly relating
thereto, without recourse, representation or warranty, except as to the
absence of liens, charges or encumbrances created by or arising as a result
of actions of Antigua or the
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Owner Trustee. Such assignment shall be a sale and assignment outright,
and not for security. If, following the reassignment of a Purchased
Contract and the related Leased Equipment (if applicable), in any
enforcement suit or legal proceeding, it is held that TCC may not enforce
any such Contract on the ground that it shall not be a real party in
interest or a holder entitled to enforce the Contract, Antigua and the
Owner Trustee shall, at the expense of TCC, take such steps as TCC deems
reasonably necessary to enforce the Contract, including bringing suit in
Antigua's or the Owner Trustee's name or the name of the Indenture Trustee
on behalf of the Noteholders or Equity Certificateholders, as applicable.
SECTION 5.3 WAIVERS. No failure or delay on the part of
Antigua, the Trust or the Owner Trustee as assignee of Antigua, in
exercising any power, right or remedy under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any such
power, right or remedy preclude any other or future exercise thereof or the
exercise of any other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 LIABILITY OF THE SELLERS AND TCC. Each of the
Sellers and TCC shall be liable in accordance herewith only to the extent
of the obligations in this Agreement specifically undertaken, individually
and not jointly, by each Seller and TCC, and the representations and
warranties of each Seller and TCC.
SECTION 6.2 MERGER OR CONSOLIDATION OF A SELLER, TCC OR ANTIGUA.
Any corporation or other entity (i) into which any Seller, TCC or Antigua
may be merged or consolidated, (ii) resulting from any merger or
consolidation to which any Seller, TCC or Antigua is a party or
(iii) succeeding to the business of any Seller, TCC or Antigua, shall be
the successor to such Seller, TCC or Antigua, as the case may be (without
relieving such Seller, TCC or Antigua of its responsibilities hereunder, if
it survives such merger or consolidation) without the execution or filing
of any document or any further act by any of the parties to this Agreement.
Such Seller, TCC or Antigua shall promptly inform the other parties, the
Owner Trustee and the Indenture Trustee of such merger, consolidation or
purchase and assumption. Notwithstanding the foregoing, as a condition to
the consummation of the transactions referred to in clauses (i), (ii) and
(iii) above, (x) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Sections 3.1 (other than
subsections (a) and (i)), 3.2 (other than subsections (a) and (i)), 3.3
(other than subsections (a) and (i)), 3.4 (other than subsections (a) and
(i)), 3.5 (other than subsections (a) and (i)) and 3.6 (other than
subsection (h)) of this Agreement shall have been breached (for purposes
hereof, such representations and warranties shall speak as of the date of
the consummation of such transaction), (y) such Seller, TCC or Antigua, as
applicable, shall have delivered written notice of such consolidation,
merger or purchase and assumption to the Rating
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Agencies prior to the consummation of such transaction and shall have
delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this
Section 6.2 and that all conditions precedent, if any, provided for in this
Agreement, relating to such transaction have been complied with, and
(z) such Seller, TCC or Antigua, as applicable, shall have delivered to the
Owner Trustee and the Indenture Trustee an Opinion of Counsel, stating
that, in the opinion of such counsel, either (A) all financing statements
and continuation statements and amendments thereto have been executed and
filed that are necessary to preserve and protect the interest of the Owner
Trustee in the Trust Assets and reciting the details of the filings or
(B) no such action shall be necessary to preserve and protect such
interest.
SECTION 6.3 LIMITATION ON LIABILITY OF THE SELLERS, TCC AND
OTHERS.
(a) Except with respect to the Representations and Warranties
herein and in the Schedule of Representations, and the indemnification
obligations set forth in Section 4.4 herein, each Seller and TCC may rely
in good faith on the advice of counsel or on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising under this Agreement. Each Seller and TCC shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its obligations under this Agreement or its Related Documents
and that in its reasonable judgment may involve it in any expense or
liability.
(b) Any officer, director, employee or agent of TCC or any
Seller may rely in good faith on the advice of counsel or on any document
of any kind prima facie properly executed and submitted by any Person
respecting any matters arising under this Agreement. Neither any Seller
nor TCC shall be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement
or its Related Documents and that in its reasonable judgment may involve it
in any expense or liability.
SECTION 6.4 THE SELLERS AND TCC MAY OWN NOTES OR EQUITY
CERTIFICATES. Subject to the provisions of the Transfer and Servicing
Agreement, each of the Sellers and TCC, and any Affiliate of any Seller or
TCC, may in its individual or any other capacity become the owner or
pledgee of Notes or Equity Certificates with the same rights as it would
have if it were not a Seller, TCC or an Affiliate thereof (except as
provided in Section 1.6).
SECTION 6.5 AMENDMENT.
(a) This Agreement may be amended by the Sellers, TCC and
Antigua without the consent of the Owner Trustee, the Indenture Trustee,
the Equity Certificateholders or the Noteholders (i) to cure any ambiguity;
(ii) to correct or supplement any provisions in this Agreement that may be
inconsistent with any other provisions herein; or (iii) to make any other
provisions with respect to matters or
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questions arising under this Agreement that are not inconsistent with the
provisions hereof, PROVIDED, HOWEVER, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Owner Trustee and the
Indenture Trustee, adversely affect in any material respect the interests
of the Noteholders or Equity Certificateholders.
(b) This Agreement may also be amended from time to time by the
Sellers, TCC and Antigua, with the prior written consent of a Note Majority
and an Equity Certificate Majority (which consent of any Holder of an
Equity Certificate or Note given pursuant to this Section or pursuant to
any other provision of this Agreement shall be conclusive and binding on
such Holder and on all future Holders of such Equity Certificate or Note
and of any Equity Certificate or Note issued upon the transfer thereof or
in exchange thereof or in lieu thereof whether or not notation of such
consent is made upon the Equity Certificate or Note), for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement, or of modifying in any manner the rights
of the Equity Certificateholders or the Noteholders; PROVIDED, HOWEVER,
that no such amendment shall (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Contracts, distributions that shall be required to be made on any Equity
Certificate or Note or the applicable rate of interest payable thereon,
(ii) amend any provisions of Section 5.06 or 8.03 of the Indenture in such
a manner as to affect the priority of payment of interest or principal to
Noteholders or Equity Certificateholders, or (iii) reduce the aforesaid
percentage required to consent to any such amendment or any waiver
hereunder, without the consent of the Holders of all Notes or Equity
Certificates then Outstanding and affected thereby; and PROVIDED, FURTHER,
that no such amendment shall be effective unless and until the Rating
Agency Condition has been satisfied.
(c) Promptly after the execution of any such amendment or
consent, the Owner Trustee or the Indenture Trustee, as applicable, shall
furnish written notification of the substance of such amendment or consent
to each Equity Certificateholder and Noteholder.
(d) It shall not be necessary for the consent of Equity
Certificateholders or Noteholders pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Equity
Certificateholders and Noteholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Equity
Certificateholders or Noteholders shall be subject to such reasonable
requirements as the Owner Trustee or the Indenture Trustee, as applicable,
may prescribe, including the establishment of record dates. The consent of
any Holder of an Equity Certificate or Note given pursuant to this Section
or pursuant to any other provision of this Agreement shall be conclusive
and binding on such Holder and on all future Holders of such Equity
Certificate or Note and of any Equity Certificate or Note issued upon the
transfer
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thereof or in exchange thereof or in lieu thereof whether or not notation
of such consent is made upon the Equity Certificate or Note.
SECTION 6.6 NOTICES. All demands, notices and communications to
the Sellers, TCC or Antigua hereunder shall be in writing, personally
delivered, or sent by telecopier (subsequently confirmed in writing),
reputable overnight courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been given upon receipt:
(a) in the case of TCC, to AT&T Capital Corporation, 00 Xxxxxxxx
Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, Attention: General Counsel, or
such other address as shall be designated by TCC in a written notice
delivered to the other parties and to the Owner Trustee and the Indenture
Trustee;
(b) in the case of Leasing Services, to AT&T Capital
Corporation, 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000,
Attention: General Counsel, or such other address as Leasing Services
shall be designated by a written notice delivered to the other parties and
to the Owner Trustee and the Indenture Trustee;
(c) in the case of Credit Corp., to AT&T Capital Corporation, 00
Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, Attention: General
Counsel, or such other address as shall be designated by Credit Corp. in a
written notice delivered to the other parties and to the Owner Trustee and
the Indenture Trustee;
(d) in the case of NCR Credit, to AT&T Capital Corporation, 00
Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, Attention: General
Counsel, or such other address as shall be designated by NCR Credit in a
written notice delivered to the other parties and to the Owner Trustee and
the Indenture Trustee;
(e) in the case of CFC, to AT&T Capital Corporation, 00 Xxxxxxxx
Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, Attention: General Counsel, or
such other address as CFC shall be designated by CFC in a written notice
delivered to the other parties and to the Owner Trustee and the Indenture
Trustee; and
(f) in the case of Antigua, to AT&T Capital Corporation, 00
Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, Attention: General
Counsel.
SECTION 6.7 MERGER AND INTEGRATION. Except as specifically
stated otherwise herein, this Agreement and the Related Documents set 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 and the Related Documents. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
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SECTION 6.8 SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, provisions or terms
shall be deemed severable from the remaining covenants, provisions or terms
of this Agreement and shall in no way affect the validity or enforceability
of the other provisions of this Agreement.
SECTION 6.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.10 COUNTERPARTS. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
SECTION 6.11 CONVEYANCE OF THE CONTRACTS TO THE TRUST. The
Sellers and TCC acknowledge that Antigua intends, pursuant to the Transfer
and Servicing Agreement, to convey the Contracts, the Leased Equipment and
the other items described in Section 2.1(b), together with its rights under
this Agreement, to the Trust on the Closing Date. The Sellers and TCC
acknowledge and consent to such conveyance and waive any further notice
thereof and covenant and agree that the representations and warranties of
the Sellers and TCC contained in this Agreement and the rights of Antigua
hereunder are intended to benefit the Owner Trustee, the Indenture Trustee,
the Trust, the Noteholders and the Equity Certificateholders. In
furtherance of the foregoing, the Sellers and TCC covenant and agree to
perform their duties and obligations hereunder, in accordance with the
terms hereof, for the benefit of the Owner Trustee, the Indenture Trustee,
the Trust, the Equity Certificateholders and the Noteholders and that,
notwithstanding anything to the contrary in this Agreement, the Sellers and
TCC shall be directly liable to the Owner Trustee, the Indenture Trustee
and the Trust (notwithstanding any failure by the Servicer or Antigua to
perform its duties and obligations hereunder or under the Transfer and
Servicing Agreement) and that the Owner Trustee and the Indenture Trustee
may enforce the duties and obligations of the Sellers or TCC under this
Agreement against the Sellers or TCC for the benefit of the Trust, the
Equity Certificateholders and the Noteholders.
SECTION 6.12 NONPETITION COVENANT. Neither the Sellers, TCC nor
Antigua shall petition or otherwise invoke the process of any court or
government authority for the purpose of commencing or sustaining a case
against the Trust (or, in the case of the Sellers or TCC, against Antigua)
under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust (or Antigua) or any
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substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Trust (or Antigua).
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IN WITNESS WHEREOF, the parties have caused this
Purchase and Sale Agreement to be duly executed by their respective
officers as of the day and year first above written.
ANTIGUA FUNDING CORPORATION,
as Purchaser
By /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
AT&T CAPITAL CORPORATION,
In its individual capacity and as
Servicer
By /s/ Xxxxx Xxxx, Xx.
-----------------------------------------
Name: Xxxxx Xxxx, Xx.
Title: Vice President and Controller
AT&T CAPITAL LEASING SERVICES, INC.,
as a Seller
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer
AT&T CREDIT CORPORATION,
as a Seller
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer
NCR CREDIT CORP.,
as a Seller
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer
AT&T COMMERCIAL FINANCE
CORPORATION, as a Seller
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer
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SCHEDULE A-1
SCHEDULE OF LEASE CONTRACTS AND LEASED EQUIPMENT
INTENTIONALLY
OMITTED
SCHEDULE A-2
SCHEDULE OF LOAN CONTRACTS
INTENTIONALLY
OMITTED
SCHEDULE B
SCHEDULE OF REPRESENTATIONS AND WARRANTIES
OF THE SELLERS AND TCC
With respect to each Contract as of the Cut-Off Date, the
applicable Seller and TCC represent and warrant as follows :
A. CHARACTERISTICS OF CONTRACTS. Each Contract (i) constitutes
a valid, binding and enforceable payment obligation of the Obligor in
accordance with its terms (except as may be limited by applicable
bankruptcy, insolvency or other similar laws affecting the enforceability
of creditors' rights generally and the availability of equitable remedies),
(ii) has been duly and properly sold, assigned and conveyed by the
applicable Seller to Antigua, (iii) was originated by one of the Sellers in
the ordinary course of such Seller's business, or (in the case of any
Contract purchased by one of the Sellers) was acquired by such Seller for
proper consideration and was validly assigned to such Seller by the
originator of such Contract, and (iv) contains customary and enforceable
provisions adequate to enable realization against the Obligor and/or the
related Equipment (although no representation or warranty is made with
respect to the perfection or priority of any security interest in such
related Equipment).
B. ADVERSE SELECTION. No selection procedures adverse to the
Noteholders or Equity Certificateholders were utilized in selecting the
Contract from those lease and loan contracts owned by the Seller on the
Cut-Off Date.
C. COMPLIANCE WITH LAW. All requirements of applicable
Federal, state and local laws, and regulations thereunder, in respect of
all of the Contracts, have been complied with in all material respects.
D. NO DEFAULT. There is no known default, breach, violation or
event permitting cancellation or termination of the Contract by the lessor
(in the case of Lease Contracts) or by the secured party (in the case of
Loan Contracts) under the terms of any Contract (other than Scheduled
Payment delinquencies (in excess of 10% of the Scheduled Payment due) of
not more than 59 days), and (except for payment extensions and waivers of
Administrative Fees in accordance with TCC's servicing and collections
policies and procedures) there has been no waiver of any of the foregoing;
and as of the Cut-Off Date, no related Equipment had been repossessed.
E. GOOD TITLE. Immediately prior to the sale, assignment and
conveyance of each Contract by a Seller to Antigua, such Seller had good
title to such Contract and the Seller's interest in the related Equipment
(subject to the terms of such Contract) and was the sole owner thereof,
free of any Lien (other than the rights of the Obligor under the related
Contract).
B-1
F. NO IMPAIRMENT. No person has a participation in or other
right to receive Scheduled Payments under any Contract, and none of the
Sellers nor TCC has taken any action to convey any right to any Person that
would result in such Person having a right to Scheduled Payments received
with respect to any Contract.
G. NO FRAUD OR MISREPRESENTATION. Each Contract was originated
or purchased by a Seller and sold by such Seller to Antigua without any
fraud or misrepresentation on the part of such Seller or TCC.
H. THE OBLIGORS. Each Obligor (i) is located in the United
States, and (ii) is not (a) the United States of America or any State or
local government or any agency, department, subdivision or instrumentality
thereof or (b) Antigua, a Seller, TCC or any subsidiary thereof.
I. LAWFUL ASSIGNMENT. The sale, transfer and assignment of
such Contract and the Seller's interest in the related Equipment from a
Seller to Antigua under this Agreement, and the transfer and conveyance of
such Contract from, and grant of a security interest in the related
Equipment by, Antigua to the Trust under the Transfer and Servicing
Agreement, are not unlawful, void or voidable under the laws of the
jurisdiction applicable to such Contract.
J. ALL FILINGS MADE. All filings and other actions required to
be made, taken or performed by any Person in any jurisdiction to give
Antigua a first priority perfected lien or ownership interest in the
Contracts and a first priority perfected security interest in the Seller's
interest in the Equipment have been made, taken or performed.
K. CONTRACT FILES COMPLETE. There exists a Contract File
pertaining to each Contract, and such Contract File contains the Contract
or a facsimile copy thereof.
L. ONE ORIGINAL. There is only one original executed copy of
each Contract or, if there are multiple originals, all such originals are
in the possession of the Seller or the signed original in the possession of
the Seller is noted thereon as being the only copy that constitutes chattel
paper.
M. CHATTEL PAPER. The Contracts constitute chattel paper
within the meaning of the UCC as in effect in the States of New Jersey,
Massachusetts and Oregon (other than those Contracts in which the lessor is
financing exclusively the Obligor's software license or maintenance
contract for leased Equipment, which constitute either "accounts" or
"general intangibles" under the UCC, and which Contracts, in proportion to
the Initial Contract Pool Principal Balance, are not material).
N. OBLIGOR BANKRUPTCY. Each Contract was entered into by an
Obligor who, at the Cut-Off Date, had not been identified on the records of
TCC or the Sellers as being the subject of a current bankruptcy proceeding.
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O. COMPUTER TAPE. The Computer Tape containing information
with respect to the Contracts that was made available by Antigua to the
Owner Trustee and the Indenture Trustee on the Closing Date and was used to
select the Contracts was complete and accurate in all material respects as
of the Cut-Off Date and includes a description of the same Contracts that
are described in the Schedule of Contracts to the Transfer and Servicing
Agreement.
P. MARKING RECORDS. By the Closing Date, the portions of the
electronic master record of TCC and each Seller relating to the Contracts
will have been clearly and unambiguously marked to show that the Contracts
constitute part of the Trust Assets and are owned by the Trust in
accordance with the terms of the Transfer and Servicing Agreement.
Q. PAST DUE. No Contract has a Scheduled Payment delinquency
(in excess of 10% of the Scheduled Payment due) of more than 59 days past
due as of the Cut-Off Date (although some Contracts may have experienced
such delinquencies prior to the Cut-Off Date).
R. ASSIGNMENT TO THE OWNER TRUST. Each Contract may be sold,
assigned and transferred by the Seller to Antigua, and may be assigned and
transferred by Antigua to the Trust, without the consent of, or prior
approval from, or any notification to, the applicable Obligor, other than
(i) certain Contracts which, in proportion to the aggregate of all the
Contracts, are not material that require notification of the assignment to
the Obligor, which notification will have been given by the Servicer not
more than 10 days following the Closing Date and (ii) Contracts which, in
proportion to the aggregate of all the Contracts, are not material that
require the consent of the Obligor, which consent will have been obtained
not more than 10 days following the Closing Date.
S. CONTRACT NOT ASSUMABLE. Each Contract prohibits the sale,
assignment or transfer of the Obligor's interest therein, the assumption of
the Contract by another person in a manner that would release the Obligor
thereof from the Obligor's obligation, or any sale, assignment or transfer
of the related Equipment, without the prior consent of the lessor (in the
case of Lease Contracts) or the secured party (in the case of Loan
Contracts), other than Contracts which may (i) permit assignment to a
subsidiary, corporate parent or other affiliate, (ii) permit the assignment
to a third party, provided the Obligor remains liable under the Contract,
or (iii) permit assignment to a third party with a credit standing
(determined by TCC in accordance with its underwriting policy and practice
at the time for an equivalent contract type, term and amount) equal to or
better than the original Obligor.
T. PAYMENTS IN UNITED STATES DOLLARS. The Obligor under each
Contract is required to make payments thereunder (i) in United States
dollars, and (ii) in fixed amounts and on fixed and predetermined dates.
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U. MAINTENANCE AND REPAIR. Each Contract requires the Obligor
to assume responsibility for payment of all expenses in connection with the
maintenance and repair of the related Equipment, the payment of all
premiums for insurance of such Equipment and the payment of all taxes
(including sales and property taxes) relating to such Equipment.
V. SCHEDULED PAYMENTS. Each Contract requires the Obligor
thereunder to make all scheduled payments thereon under all circumstances
and regardless of the condition or suitability of the related Equipment and
notwithstanding any defense, set-off or counterclaim that the Obligor may
have against the manufacturer, lessor or lender (as the case may be).
W. REPAIR OR REPLACEMENT OF DAMAGED EQUIPMENT. Under each
Lease Contract, if the Equipment is damaged or destroyed, the Obligor is
required either (i) to repair such Equipment, (ii) to make a termination
payment to the lessor in an amount not less than the Required Payoff
Amount, or (iii) in some cases, to replace such damaged or destroyed
Equipment with other equipment of comparable use and value.
X. NO TERMINATION BY LESSEE. None of the Lease Contracts
permit the Obligor to terminate the Lease Contract prior to the latest
Stated Maturity Date or to otherwise prepay the amounts due and payable
thereunder except for a DE MINIMIS number of Lease Contracts which allow
for an early termination or prepayment upon payment of an amount which is
not less than the Required Payoff Amount.
Y. PREPAYMENT OPTION. Any Loan Contract that permits the
prepayment of the amount due thereunder, at the option of the Obligor,
requires that the prepayment in full must be in an amount not less than the
principal amount then outstanding plus accrued interest thereon to the date
of such prepayment.
Z. NO TRANSFER OF TITLE REQUIRED. It is not a precondition to
the valid transfer or assignment of the Seller's interest in any of the
Equipment related to any Contract that title to such Equipment be
transferred on the records of any governmental or quasi-governmental
agency, body or authority.
AA. SCHEDULE OF CONTRACTS. The information with respect to the
Contracts listed on the Schedule of Contracts attached to the Purchase
Agreement is true, correct and complete in all material respects.
BB. NO WAIVERS. No provisions of any Contract have been waived,
altered or modified in any material respect, except as indicated in the
Contract File.
CC. NO CONSUMER LEASES. No Lease Contract is a "consumer lease"
as defined in Article 2A of the UCC.
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DD. EQUIPMENT ACCEPTED. To the best of TCC's or the applicable
Seller's knowledge, each Obligor has accepted the related Equipment and has
had reasonable opportunity to inspect and test such Equipment.
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