COLLATERAL PROCEEDS AND
FORBEARANCE
AGREEMENT
THIS COLLATERAL PROCEEDS AND FORBEARANCE AGREEMENT, dated as of December 31,
1999 (as may be amended, restated, supplemented or extended from time to
time, this "AGREEMENT"), among T&W FINANCIAL SERVICES COMPANY, L.L.C., a
Washington limited liability company ("T&W FINANCIAL SERVICES"), T&W
FINANCIAL CORPORATION, a Washington corporation ("T&W FINANCIAL
CORPORATION"), and T&W FUNDING COMPANY XI, L.L.C., a Delaware limited
liability company ("T&W FUNDING") (T&W Financial Services, T&W Financial
Corporation and T&W Funding being referred to collectively or individually,
as the context may require, as the "COMPANY"), FIRST UNION NATIONAL BANK,
N.A. (formerly known as Corestates Bank, N.A.), as Agent and Lender, KEY
BANK, NATIONAL ASSOCIATION, THE UNION BANK OF CALIFORNIA, N.A., BANK OF
AMERICA, N.A., as Agent and Lender, and XXXXXX COMMERCIAL PAPER INC. (the
foregoing persons, other than the Company, are individually referred to as a
"CREDITOR" and collectively as the "CREDITORS").
WITNESSETH:
WHEREAS, the Company, on the one hand, and each Creditor, on the other
hand, have entered into lending relationships and/or sales arrangements (the
"FUNDING AGREEMENTS") with respect to certain equipment leases and equipment
loans of the Company in which certain property of the Company, including, but
not limited to, the type of property described as follows, has or will become
the subject of security interests or has or will be sold: accounts, chattel
paper, inventory, (including repossessions and returns) equipment, farm
products, general intangibles and all products and proceeds thereof,
including without limitation insurance proceeds (collectively, the
"COLLATERAL"); and
WHEREAS, events of default exist under the Funding Agreements; and
WHEREAS, as of the date hereof the Creditors have, in their sole and
absolute discretion, determined to forebear from exercising their rights
under their respective Funding Agreements; and
WHEREAS, any amounts that are payable to the Company are to be or caused
to be deposited by the Company in a lock-box account (the "LOCK-BOX ACCOUNT")
maintained by Bank of America, N.A. and a concentration account (the
"CONCENTRATION ACCOUNT") maintained by Norwest Bank Minnesota, National
Association ("NORWEST"); and
WHEREAS, there is currently on deposit in the bank accounts of the
Company approximately six million dollars; and
WHEREAS, attached at EXHIBIT A hereto is a budget (the "BUDGET") for the
Company and its subsidiaries that was prepared by the Company with assistance
from PricewaterhouseCoopers LLP (PwC); and
WHEREAS, the Company, on the one hand, and each Creditor, on the other
hand, are entering into this Agreement in order to (a) confirm (i) the
application of the Existing Concentration Account Balance, the other amounts
from time to time deposited in the Lock-Box Account and the Concentration
Account and the proceeds from the Collateral, (ii) the obligations of the
Company and its subsidiaries under the Funding Agreements and (iii) the
rights of the Creditors under the Funding Agreements, and (b) set forth the
terms of forbearance of the Creditors.
NOW, THEREFORE, in consideration of the foregoing and of the agreements
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN DEFINITIONS. The following terms when used in
this Agreement shall have the following meanings:
"ACCEL" means Accel Capital Corporation.
"AGREEMENT" is defined in the PREAMBLE.
"XXXXXXXX" is defined in SECTION 6.6.
"BANKRUPTCY CODE" means title 11 of the United State Code, as amended from
time to time.
"BUDGET" is defined in the SIXTH RECITAL.
"CANADIAN PROPERTY" is defined in SECTION 6.1.
"CHICAGO LITIGATION" is defined in SECTION 5.4.
"CIBC" means Canadian Imperial Bank of Commerce.
"CIBC FIRST PRIORITY LIEN" is defined in SECTION 12.2.
"CIBC SECOND PRIORITY LIEN" is defined in SECTION 12.2.
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"CIBC THIRD PRIORITY LIEN" is defined in SECTION 12.2.
"CIBC SERVICING TRANSITION AGREEMENT" is defined in SECTION 11.1(b).
"COMPANY" is defined in the PREAMBLE.
"COLLATERAL" is defined in the FIRST RECITAL.
"CONCENTRATION ACCOUNT" is defined in the FOURTH RECITAL.
"CREDITOR" and "CREDITORS" is defined in the PREAMBLE.
"EFFECTIVE TIME" means that time in which all of the conditions set forth in
Article XI have been satisfied.
"EXISTING CONCENTRATION ACCOUNT BALANCE" is defined in the FIFTH RECITAL.
"FACILITY DOCUMENTS" is defined in the CIBC Servicing Transition Agreement.
"FINANCED LEASE" means, as to each Creditor, any Lease (i) for which such
Creditor has provided financing to the Company and as to which such Creditor
holds or should, pursuant to the applicable Funding Agreements be entitled to
hold, a security interest; or (ii) owned by such Creditor or any party for
which such Creditor acts as agent to the extent that the Company has a
continuing contractual obligation to provide servicing (or is providing
servicing) with respect to such Lease as of the Effective Time.
"FIRST PRIORITY SECURITY INTEREST" is defined in SECTION 12.2.
"FORBEARANCE DOCUMENTS" means, collectively, this Agreement and the other
agreements entered into by the Company and any Creditor pursuant to SECTION
11.1.
"FORBEARANCE PERIOD" is defined in SECTION 2.1.
"FORBEARANCE TERMINATION EVENT" is defined in the first sentence of ARTICLE
VIII.
"FUNDING AGREEMENTS" is defined in the FIRST RECITAL.
"GUARANTOR" means any guarantor that is a party to this Agreement.
"HOLDING ACCOUNT" is defined in SECTION 2.4.
"HOLDINGS PETITION" is defined in SECTION 5.4.
"IDENTIFICATION PERIOD" is defined in SECTION 2.2.
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"IDENTIFIED PROCEEDS" is defined in SECTION 2.2.
"LAKER AIR" means Laker Airways, Inc.
"LEASE" means a lease agreement (including all schedules and supplements
thereto) between the Company (or any Creditor as Company's assignee
thereunder) as lessor and any person as lessee; PROVIDED, HOWEVER, that if a
lease agreement is a "master lease agreement" the term "Lease" shall mean a
particular equipment, schedule or supplement under such "master lease
agreement" together with such "master lease agreement" to the extent that it
relates to such equipment, schedule or supplement.
"LOCK-BOX ACCOUNT" is defined in the FOURTH RECITAL.
"NON-IDENTIFIED PROCEEDS" is defined in SECTION 2.2.
"NORWEST" is defined in the FOURTH RECITAL.
"ONSET" means Onset Capital Corporation.
"ONSET ASSETS" is defined in SECTION 12.1.
"ONSET COLLATERAL AGENT" is defined in SECTION 12.1.
"OTHER ACCOUNTS" is defined in SECTION 2.3.
"PARTY" or "PARTIES" is defined in SECTION 2.1.
"PwC" is defined in the SIXTH RECITAL.
"RELEASED PARTIES" is defined in ARTICLE X.
"SECOND PRIORITY SECURITY INTEREST" is defined in SECTION 12.2.
"SHARED DISTRIBUTION" is defined in SECTION 2.6.
"SHARED PROPERTY" means the property consisting of any of the Leases or loans
identified as Lease Type 1, Lease Type 6, Lease Type 98, or Lease Type 99 on
the master collateral list of the Company provided to Xxxxxxxx on January 13,
2000 that as of January 17, 2000 are not (a) included in the borrowing base
of any Creditor, (b) in the possession of any Creditor or its representative,
or (c) the subject of a valid ownership interest by any Creditor or any
securitization vehicle.
"STAR AIR" means Star Air Tours, Inc.
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"TERMINATION TIME" is defined in SECTION 13.7.
"THIRD PRIORITY SECURITY INTEREST" is defined in SECTION 12.2.
"T&W FINANCIAL CORPORATION" is defined in the PREAMBLE.
"T&W FINANCIAL SERVICES" is defined in the PREAMBLE.
"T&W FUNDING" is defined in the PREAMBLE
"VENSTAR" means Venstar Leasing Inc.
For the purposes of this Agreement, any reference to "Collateral" shall
include the Onset Assets and the Shared Collateral, to the extent applicable.
ARTICLE II
APPLICATION OF CASH PROCEEDS
SECTION 2.1. APPLICATION OF CONCENTRATION ACCOUNT FUNDS. Each Creditor
agrees that from and after the Effective Time and until the Termination Time
(the "FORBEARANCE PERIOD"), the proceeds of its Collateral under its Funding
Agreements, in an amount not to exceed the amount set forth opposite its name
on EXHIBIT B attached hereto, may be applied to the line items and the
amounts set forth in the Budget; PROVIDED, HOWEVER, that (a) no amount shall
be applied under this Section until all the available unencumbered cash of
the Company that is available from time to time has been applied to pay such
Budget items, (b) under no circumstances shall any Party be required to
advance any new or additional funds to the payment of such expenses in excess
of the amount of its collections from its Collateral pursuant to the Funding
Agreements and (c) all such expenses shall be paid by the Party PRO RATA as
provided on EXHIBIT B attached hereto (it being agreed that no Party shall be
required to fund any such expense unless all the Parties have funded their
PRO RATA share of such expense). For the purposes of this Article II, any
reference to a "Party" or "Parties" shall mean CIBC and the Creditors.
SECTION 2.2. IDENTIFICATION OF PROCEEDS. The Company shall use its
best efforts to identify all of the proceeds of Collateral of each Creditor
that holds, or is entitled to hold pursuant to the applicable Funding
Agreements, the senior security interest thereon on deposit in the
Concentration Account, the Lockbox Account, or Other Accounts (the
"IDENTIFIED PROCEEDS") within three business days of receipt thereof (the
"IDENTIFICATION PERIOD"). The Identified Proceeds shall thereafter be
disbursed in accordance with SECTION 2.3. If, however, the Company is
unable, despite its best efforts, to identify the proper Creditor entitled to
receive funds collected by the Company within the Identification Period (the
"NON-IDENTIFIED PROCEEDS"), the procedures set forth in SECTION 2.4 shall be
applicable,
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SECTION 2.3. APPLICATION OF IDENTIFIED PROCEEDS. During the
Forbearance Period (but subject to SECTION 2.1 ), the Identified Proceeds
shall be paid by wire transfer to the Creditor entitled thereto on Tuesday
and Friday of each calendar week (or if any such day is not a business day,
on the immediate following business day). The chief financial officer of the
Company will certify in writing to each Creditor, and PwC will confirm in
writing to each Creditor, on or prior to any distribution made pursuant to
SECTION 2.1, or the preceding sentence, that the amounts so distributed to or
on behalf of each such Creditor is the result of the Company's best efforts
to identify the same as owing in respect of each relevant Funding Agreement.
SECTION 2.4. NON-IDENTIFIED PROCEEDS. (a) The Company shall notify
Xxxxxxxx and each Party in writing of any funds that are Non-Identified
Proceeds by no later than 5:00 p.m., Pacific Time, on the last day of the
Identification Period with respect to such funds. The Company shall
thereafter promptly seek Xxxxxxxx'x assistance in identifying the
Non-Identified Proceeds and provide Xxxxxxxx with all documents and other
information requested by Xxxxxxxx. Xxxxxxxx may, if requested by the Company
and after consultation with each of the Parties, or their respective
representatives, extend the Identification Period applicable to such funds.
The Company shall, however, cause Norwest to transfer such Non-Identified
Proceeds into a bank account established at Bank of America, N.A. in the name
of all of the Parties (the "HOLDING ACCOUNT") no later than the expiration of
the initial Identification Period applicable to such funds. Bank of America,
N.A. agrees that it shall have no right of setoff in the Holding Account.
(b) PwC and Xxxxxxxx shall work collectively to identify the Party
entitled to receive any funds on deposit in the Holding Account. When PwC
and Xxxxxxxx have each agreed as to the proper Party to receive any funds on
deposit in the Holding Account, the Parties shall be notified in writing,
such funds shall become Identified Proceeds, and shall be promptly wire
transferred by Bank of America, N.A. to the Party entitled thereto.
SECTION 2.5. DEPOSIT OF AMOUNTS; WITHDRAWALS, ETC. (a) All bank
accounts of the Company except for the Lock Box Account and Concentration
Account are set forth on EXHIBIT C (the "OTHER ACCOUNTS"). Anything in the
Funding Agreements to the contrary notwithstanding, all cash, proceeds of
Collateral and other amounts that have been or are payable to the Company and
its subsidiaries have been, in the case of all such amounts previously paid,
and shall be on a daily basis, in the case of all such amounts to be paid,
deposited, or in the case of the Other Accounts transferred, into the
Lock-Box Account or the Concentration Account; provided that the funds in the
account on EXHIBIT C styled "Bank of Commerce" shall not be transferred into
the Lock Box Account or Concentration Account if a valid court order
prohibits such transfer.
(b) All collected and cleared amounts on deposit in the Lock-Box
Account shall be swept on a daily basis directly into the Concentration
Account. All amounts on deposit in the Concentration Account shall, from and
after the Effective Time, be disbursed by Norwest in accordance with the
written instructions of the Company that have been confirmed in writing by
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PwC to Norwest. The Company and PwC agree that all such instructions shall
be given in order to give effect to the terms of SECTIONS 2.1 through 2.4.
(c) For avoidance of doubt, Non-Identified Proceeds shall be subject to
the same procedures set forth in this SECTION 2.5 and then transferred to the
Holding Account.
(d) During the Forbearance Period the Company appoints PwC, and the
Parties appoint Xxxxxxxx, to act as provided in this Article II.
(e) For avoidance of doubt, this Agreement does not alter Bank of
America's rights in respect of its Lock Box Agreement with the Company.
SECTION 2.6. SHARED PROCEEDS. (a) The first $200,000 of proceeds in
respect of Shared Property, or such lesser amount as is distributed to the
Company pursuant to the Budget in excess of the sum of $1,916,046.00, shall
be distributed promptly to the Parties, pro rata pursuant to the percentages
set forth on Exhibit B hereto (the "SHARED DISTRIBUTION"), by the Company
from the Concentration Account, or Bank of America, N.A. from the Holding
Account.
(b) [Intentionally omitted.]
(c) By execution of this Agreement, the Company hereby grants to each
Creditor a continuing security interest in, and lien upon, the Leases and
loans identified as Lease Type 1, Lease Type 6, Lease Type 98 and Lease Type
99, and the property pertaining thereto and the proceeds thereof, on the
master collateral list of the Company provided to Xxxxxxxx on January 13,
2000 to secure the amount of the Shared Distribution payable to each such
Creditor pursuant to this SECTION 2.6. By execution of this Agreement, the
Company agrees that each Creditor shall be entitled to file any and all
documents and instruments necessary to perfect the security interest and lien
granted pursuant to it pursuant to this SECTION 2.6(c), and that the Company
shall execute all documents and instruments reasonably requested by each
Creditor in respect thereof. The security interest and lien granted to each
Creditor pursuant to this SECTION 2.6(c) shall be deemed automatically
released to the extent that (i) the Leases and the loans described in the
first sentence of this SECTION 2.6(c) are not Shared Property or (ii) such
Creditor has been paid its Shared Distribution in full. Each Creditor shall
promptly execute any documents or instruments reasonably requested by any
other Creditor or the Company to effectuate such release.
(d) To the extent that any Shared Distribution is to be made from the
Holding Account, Bank of America, N.A., shall promptly make such distribution
upon its receipt of written instructions from PwC and Xxxxxxxx to do so.
(e) The funds received pursuant to this SECTION 2.6 shall be applied by
each Creditor pursuant to this Agreement and by CIBC pursuant to the CIBC
Servicing Transition Agreement.
(f) It is understood and agreed by the Company and each Party that the
master collateral list referenced in this ARTICLE II has been prepared by the
Company and that no Party
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shall be deemed to have agreed with the contents of, or otherwise waived its
rights in respect of, such master collateral list.
ARTICLE III
FORBEARANCE, ETC.
SECTION 3.1. THE REQUESTED FORBEARANCE. In connection with the
existing events of default under the Funding Agreements, the Company has
requested that the Creditors forbear temporarily in the exercise of their
respective rights and remedies under Funding Agreements, subject to the
provisions of this Agreement. The Creditors have agreed to this request upon
the terms, subject to the conditions, and in reliance upon the agreements,
representations and warranties set forth in this Agreement.
SECTION 3.2. EXISTING AGREEMENTS TO REMAIN IN EFFECT. The Company
acknowledges that the Creditors have preserved all of their respective rights
and remedies under the Funding Agreements and applicable law and that, but
for the provisions of this Agreement, the Creditors would be immediately
entitled to enforce their rights and remedies under the Funding Agreements.
Notwithstanding the foregoing, the Creditors acknowledge and agree that they
shall not exercise such rights and remedies set forth in SECTION 7.1 until
the Termination Time. In the event and to the extent of any conflict between
the provisions contained in any of the Funding Agreements and the provisions
contained in this Agreement and the other Forbearance Documents, the
provisions of this Agreement and the other Forbearance Documents shall
control.
SECTION 3.3. NEGOTIATION. This Agreement and the other Forbearance
Documents are the result of arms-length negotiations among each of the
Creditors and the Company and have been reviewed by their respective legal
counsel. Accordingly, no Forbearance Document shall be construed against any
Creditor merely because of such Creditor's involvement in the preparation
thereof.
SECTION 3.4. SEVERAL OBLIGATIONS. The obligations of the Creditors
hereunder are several and not joint, and no Creditor shall be liable for any
default or failure to perform by any other Creditor.
SECTION 3.5. CHARACTERIZATION OF UNDERLYING TRANSACTION. To the extent
that any Funding Agreement creates an ownership interest in or a secured
financing, as the case may be, with respect to any Financed Lease or any
other asset, neither this Agreement nor any of the other Forbearance
Documents shall alter the characterization of such interest, and nothing in
this Agreement or any other Forbearance Document is intended as, nor shall be
an admission of, anything to the contrary.
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ARTICLE IV
COMPANY ACKNOWLEDGMENTS
The Company acknowledges, stipulates, represents and warrants and agrees as
follows:
SECTION 4.1. ACKNOWLEDGMENT OF FUNDING AGREEMENTS; WAIVER OF DEFENSES.
The Funding Agreements are valid and enforceable (except to the extent, and
only to the extent, the right to enforce the Funding Agreements is
temporarily modified under the Forbearance Documents) in accordance with
their respective terms against the Company and its subsidiaries in every
respect; all the collateral and security interests created pursuant thereto
in favor of each Creditor continues unimpaired and in full force and effect
(subject, in the case of the Collateral referred to in SECTION 6.11, to the
requirements thereof); and all of the terms, covenants and conditions
contained in the Funding Agreements are binding upon the Company and its
subsidiaries. Without limiting the release provisions set forth in Article X
hereof, to the extent that the Company has any defenses, setoffs, claims or
counterclaims to repayment of any of its obligations under the Funding
Agreements or any claims against any of the Creditors as of the Effective
Time, such defenses, setoffs, claims or counterclaims are irrevocably waived,
except with respect to the right of setoff and recoupment on account of
servicer fees that are payable pursuant to the Funding Agreement.
SECTION 4.2. ACKNOWLEDGMENT OF OUTSTANDING OBLIGATIONS. As of the
Effective Time the Company acknowledges and agrees that the amounts owing by
the Company under each Funding Agreement is no less than as set forth on
EXHIBIT D attached hereto.
SECTION 4.3. RELATIONSHIP. No Creditor has at any time directed or
participated in any aspect of the management of the Company or the conduct of
the Company's business, and the Company has made all of its business
decisions independently of the Creditor. Notwithstanding any other provision
of this Agreement or any other contract or instrument between the Company or
any Creditor: (a) the relationship between each Creditor and the Company
shall be limited to the relationship of either (i) a Creditor to a Company in
a commercial loan transaction, or (ii) a purchaser to a seller (or an agent
of a seller) of financial assets, or (iii) a servicer to an owner (or an
agent for an owner) of financial assets; (b) no Creditor is or shall be
construed as a partner, joint venturer, fiduciary, alter-ego, manager,
controlling person or other business associate or participant of any kind of
the Company or any of its affiliates, and no Creditor intends to assume any
such status at any time; and (c) no Creditor shall be deemed responsible for
(or a participant in) any acts, omissions or decisions of the Company, any of
its affiliates or any other Creditor.
SECTION 4.4. NO ADDITIONAL BENEFITS. Except as expressly provided
herein, no Creditor is required to grant any additional credit to the Company
or any of its affiliates or to renew or forbear to enforce any obligation of
the Company or any of its affiliates. The Company acknowledges and agrees
that, notwithstanding anything to the contrary set forth in this Agreement,
the Creditors have no obligation to (a) amend, forbear or otherwise
restructure the obligations under the Funding Agreements or (b) enter into
any other instruments, agreements or
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documents with the Company. Neither the requirements of good faith and fair
dealing nor any other theory, concept or argument shall require any Creditor
(i) to impart upon the Company or any of its affiliates any further or
greater benefits, (ii) to suffer any prejudice or impairment of any kind
whatsoever, (iii) to suffer or permit any loss to such Creditor's Collateral
or any of such Creditor's rights, remedies and interests, or (iv) to tolerate
any noncompliance with this Agreement and the other Forbearance Documents, in
each case because each Creditor has bargained for and given valuable
consideration for this Agreement and the other Forbearance Documents and this
Agreement contains express, explicit and objective limits of what benefits
each Creditor is willing to provide to the Company, and what, in return, the
Company is required to provide to each Creditor. This Agreement and the
other Forbearance Documents provide a clear statement of each Creditor's
requirements and obligations and creates an agreed upon standard of
performance upon which each Creditor is entitled to rely in exercising and
enforcing its respective remedies under the Forbearance Documents and the
Funding Agreements.
SECTION 4.5. FORBEARANCE DOCUMENTS CONSTITUTE NEW VALUE. The Company
acknowledges and agrees that the Creditors' entry into, and covenants to
perform in accordance with, this Agreement and the other Forbearance
Documents constitute "new value" and "reasonably equivalent value," as those
terms are used in Sections 547 and 548 of the Bankruptcy Code, received by
the Company as of the Effective Time in contemporaneous exchange for the
Company's entry into, and covenants to perform in accordance with, this
Agreement and the other Forbearance Documents.
SECTION 4.6. ACKNOWLEDGMENT OF TOLLING OF DEFENSES. The Company
acknowledges and agrees that all time-related defenses, such as statutes of
limitations, doctrines of estoppel, doctrines of laches or any other rules of
law or equity of similar nature with respect to all rights, claims and causes
of action of any kind whatsoever that any Creditor may have against the
Company under the Funding Agreements which would otherwise expire at any time
during the Forbearance Period shall be extended to a date that is 30 days
after the Termination Time
SECTION 4.7. RESERVATION OF RIGHTS. Subject to the terms hereof, the
Creditors reserve in the entirety all of their rights and remedies under the
Funding Agreements, applicable law or otherwise. Subject to the terms
hereof, such rights may be exercised by the Creditors in their sole and
absolute discretion and at any time. Any prior, current or future
discussions or course of conduct by any Creditor, on the one hand, and the
Company and its affiliates, on the other hand, shall not constitute a waiver
of any such rights or remedies. Any forbearance by any Creditor in exercising
its rights or remedies prior to or after the delivery of this Agreement shall
not in any way impair, limit or restrict in any respect the rights of each
Creditor to exercise at any time and in any manner deemed appropriate by it
all or any of its rights or remedies under the Funding Agreements, except as
herein provided.
SECTION 4.8. NO WAIVER OF EXISTING EVENTS OF DEFAULT. This Agreement
does not constitute a waiver of any existing event of default or of any other
default or event of default which may now exist or hereafter occur under the
Funding Agreements. Subject to the terms of this Agreement, the Company
agrees that each Creditor shall have the unconditional right at any
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time to exercise rights and remedies as may be available to it by virtue of
the occurrence of any default or event of default under its Funding
Agreements.
ARTICLE V
COMPANY REPRESENTATIONS
The Company represents and warrants as of the Effective Time as follows:
SECTION 5.1. AUTHORIZATION: VALID AND BINDING AGREEMENT. All action
required to be taken by the Company, its officers, directors, stockholders
and principals, and the Guarantors for the authorization, execution, delivery
and performance of this Agreement, the other Forbearance Documents and the
other documents contemplated hereby and thereby have been taken. This
Agreement and each of the other Forbearance Documents entered into by the
Company and the other aforementioned persons is, and each of the documents
executed pursuant hereto and thereto will be, legal, valid, and binding
obligations of the Company and each such person, enforceable against each
such person in accordance with their respective terms, subject only to
bankruptcy, insolvency, reorganization, moratorium and other laws or
equitable principles affecting creditors' rights generally.
SECTION 5.2. THIRD PARTY CONSENTS. The execution, delivery and
performance by the Company, and its officers, directors, stockholders and
principals, and the Guarantors of this Agreement and the other Forbearance
Documents will not:
(a) require any consent or approval of any person which has not been
duly obtained prior to, and which is not in full force and effect as of, the
Effective Time;
(b) result in the breach of, default under, or cause the acceleration
of any obligation owed under any loan, credit agreement, note, security
agreement, lease, indenture, mortgage, loan document or other agreement by
which the Company or any such other person is bound or affected; or
(c) result in, or require the creation or imposition of, any lien on
any properties other than those liens in favor of each Creditor as provided
in this Agreement and the Funding Agreements.
SECTION 5.3. NO UNTRUE OR MISLEADING STATEMENTS. No information
provided by, or on behalf of, the Company in connection with this Agreement
or any other Forbearance Document contains any untrue statement of a material
fact.
SECTION 5.4. LITIGATION AND CONTINGENT LIABILITIES. No action, suit,
litigation, administrative or governmental proceeding is pending or
threatened against the Company or any of its affiliates the subject matter of
which involves this Agreement or the transactions contemplated thereby, other
than the right of Royal Bank of Canada to appoint a receiver in
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Canada solely with respect to Accel, the litigation styled LEASE MARKETING
LTD., AN ILLINOIS CORPORATION V. T&W FINANCIAL CORPORATION, A WASHINGTON
STATE CORPORATION, case no. 00CH 119, pending in the Circuit Court of Xxxx
County, Illinois (the "CHICAGO LITIGATION") and the bankruptcy petition filed
against TWFC Financial Holdings Ltd. in Canada, case no. 198-923 (the
"HOLDINGS PETITION").
SECTION 5.5. NO CONFLICT. The execution, delivery and performance by
the Company of this Agreement and the other Forbearance Documents will not
conflict with, violate or result in the breach of any provisions of any
applicable law, rule, regulation or order or conflict with or result in the
breach of any provision of any agreement to which it is a party. No
authorization, consent or approval of, or other action by, and no notice of
or filing with, any governmental authority or regulatory body is required to
be obtained or made by the Company for the due execution, delivery and
performance of this Agreement and the other Forbearance Documents.
ARTICLE VI
COVENANTS RELATED TO FORBEARANCE PERIOD PAYMENTS AND COLLATERAL PROCEEDS
The Company and, where applicable, the Creditors, covenant and agree as
follows:
SECTION 6.1. PAYMENT OF EACH CREDITOR'S FEES AND EXPENSES. The amount
of all fees and expenses incurred by each Creditor in connection with this
Agreement and the other Forbearance Documents shall be added to the principal
amount of the obligations of each applicable Creditor and will be secured by
each such Creditor's Collateral. The costs and expenses of Xxxxxxxx that are
incurred in connection with this Agreement shall be included in the Budget.
SECTION 6.2. COMPANY'S ADVISOR: DAILY CONFIRMATION. The Company will
continue to retain, at no direct expense to any Creditor, the services of
PwC. Without limiting ARTICLE II, the tasks and responsibilities of the PwC
shall include, among other things, (a) oversight in respect of all cash
management of the Company and (b) assistance in preparation and delivery to
the Creditors of cash reports, budget reports and Collateral reports in form
and substance reasonably acceptable to the Creditors. Notwithstanding the
foregoing, PwC, its partners and employees are only acting in their capacity
as a consultant for the Company, and their activity as such does not include
the making of any management decisions on behalf of the Company.
SECTION 6.3. RECIPROCAL REVIEW OF INFORMATION. Upon request of any
Creditor, the Company will provide to such Creditor a copy of any and all
business plans, budgets, reconciliations, cash reports, restructuring
proposals and other reports and information provided by the Company to any
other Creditor.
SECTION 6.4. NOTICES. (a) The Company will give to each Creditor
written notice of the following within two business days of the occurrence
thereof:
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(i) the occurrence of any Forbearance Termination Event or any
event, breach or condition that would, with the passage of time, become a
Forbearance Termination Event;
(ii) any breach, default or event of default under any Lease or
contract forming a part of the Collateral which exceeds individually or in
the aggregate $250,000;
(iii) any legal process levied against any of the Collateral which
exceeds individually or in the aggregate $250,000;
(iv) any sale, transfer or other disposition of any of the
Collateral by or for the Company or any subsidiary thereof, except when made
in the ordinary course of the Company's or such Subsidiary's business; and
(v) the pendency or institution of, or any adverse determination
in, any litigation, arbitration proceeding or governmental proceeding or
investigation with respect to this Agreement or the transactions contemplated
hereby.
(b) The Company shall deliver to each Creditor a cash report in the
form of EXHIBIT E attached hereto on Tuesday and Friday of each calendar week
after the Effective Time, which cash report shall be confirmed by PwC.
(c) The Company shall deliver to each Creditor a disbursement report in
the form of EXHIBIT F attached hereto on Tuesday and Friday of each calendar
week after the Effective Time, which disbursement report shall be confirmed
by PwC.
(d) The Company shall deliver to each Creditor all billing and related
information in a form reasonably requested by any Creditor which is
reasonably necessary to service the Finance Leases that constitute each
Creditor's Collateral.
(e) The Company shall deliver to each Creditor all other reports and
other documents required under the CIBC Servicing Transition Agreement when
delivered to CIBC.
SECTION 6.5. FURTHER ASSURANCES. The Company will at any time and from
time to time do and perform all acts and things any Creditor deems reasonably
necessary or appropriate to protect or preserve the perfection or the
priority of the security interests and, to the extent applicable, ownership
interests of such Creditor in or to such Creditor's Collateral or the Onset
Assets and otherwise to effectuate this Agreement, the other Forbearance
Documents and the Funding Agreements. Without limiting the foregoing, upon
the request of any Creditor, the Company will execute and deliver to such
Creditor such documents and instruments, including without limitation,
Uniform Commercial Code financing statements and notarized power(s) of
attorney, as such Creditor reasonably deems necessary or convenient to
perfect, collect, dispose of and/or realize upon such Creditor's interests in
its designated Collateral or the Onset Assets.
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SECTION 6.6. INSPECTION RIGHTS. During the Forbearance Period each
Creditor appoints Xxxxxx Xxxxxxxx LLP ("XXXXXXXX") as its duly authorized
representative to act in accordance with ARTICLE II and exercise all of its
rights of inspection, collateral audit and similar rights under its Funding
Agreements, and by its execution hereof, the Company agrees to cooperate with
Xxxxxxxx in the exercise of the same (including, without limitation,
permitting Xxxxxxxx, during normal business hours and upon reasonable notice
and at Company's expense, to visit the Company's place of business and
discuss the Company's affairs, finances and accounts with the Company's
officers, employees and independent certified public accountants and
advisors). Nothing in this Section shall limit in any respect any rights of
the Creditors to exercise directly its rights of inspection, collateral audit
and similar rights under its Funding Agreements. Each Creditor agrees to
cooperate with the Company so as to minimize the disruption of the Company's
business that may occur in connection with any such inspections or audits,
provided that this sentence shall not limit in any respect the right or
ability of any Creditor to conduct any inspections or audits of the Company.
The services that may be conducted by Xxxxxxxx and each Creditor include,
among other things, the right to: (a) confirm Leases and other Collateral
information provided to the Creditors and Xxxxxxxx by Company; (b) compile a
complete list of the lessees and any other obligors under all Financed
Leases, including, without limitation, the names, addresses, account numbers
used by the Company for billing and collection purposes, and any other
identification information with respect thereto; and (c) obtain such other
information as any Creditor or Xxxxxxxx may reasonably request from time to
time, in order to verify its Collateral. At the request of any Creditor, an
executive officer of Company shall certify (to the best of such officer's
knowledge after reasonable inquiry) as to the accuracy and completeness of
all information provided by the Company to Xxxxxxxx and each Creditor. The
Company shall cooperate at all times with Xxxxxxxx and each Creditor, and
will provide Xxxxxxxx and each Creditor with reasonable access to and use of
all records and information in the possession of the Company or to which it
has access in connection with, any of the Leases and other Collateral. The
foregoing appointment of Xxxxxxxx is without prejudice to First Union
counsel's right to continue to use Xxxxxxxx as its advisor in the syndicated
and unsyndicated First Union credit facilities and to protect all such
communications with Xxxxxxxx under all applicable privileges and doctrines.
Without limiting the foregoing, the Company shall provide Xxxxxxxx with
access to and use of any and all computer data files and other electronic
data storage and retrieval information or systems, and all software related
thereto, and all physical records maintained by or on behalf of Company to
the extent necessary to verify the Collateral.
SECTION 6.7. INVESTMENT BANKER; REPORTS OF INVESTMENT BANKER. The
Company has retained at its own expense Xxxxxx Brothers and Xxxxx Xxxxxxx as
its investment bankers with regard to opportunities for the sale of the
Company's business. The Company will cause such investment bankers to
prepare and deliver to each Creditor, not less frequently than weekly, an
oral report describing in reasonable detail all material developments with
respect to such proposed sale.
SECTION 6.8. COMPLIANCE WITH FUNDING AGREEMENTS. The Company shall,
notwithstanding the terms of this Agreement and the other Forbearance
Documents, continue to comply with all the terms, conditions and covenants
contained in the Funding Agreements, it
14
being agreed that the Company shall not take any action thereunder that would
otherwise be prohibited during the continuance of any default or event of
default.
SECTION 6.9. LAKER AIR AND STAR AIR. Promptly following a request
therefor, the Company shall transfer to a third party servicer that is
acceptable to each Creditor with an interest in Laker Air or Star Air, all
the chattel paper and related documents in respect of such Creditor's
interest therein so that such servicer can enforce all the rights and
remedies of the Company therein, subject to the receipt of any applicable
third party consents (which the Company agrees to diligently pursue). In
addition, the Company shall not enter into any settlement or compromise of
claims with Laker Air or Star Air without the consent of each Creditor that
asserts an interest in the Leases of the Company with Laker Air or Star Air
because of such Creditor's Funding Agreements.
SECTION 6.10. SERVICER FUNCTIONS. The Company acknowledges and agrees
(a) that all servicer functions it performs on behalf of Xxxxxx Commercial
Paper Inc. pursuant to the Funding Agreements and CIBC pursuant to the CIBC
Facility Documents, as the case may be, have, or may be, terminated in their
entirety by each such entity and (b) to cooperate with each such entity in
the transition of such servicer functions to the replacement servicers
selected by each such entity. First Union National Bank, N.A. and Bank of
America, N.A. agree that, during the Forbearance Period, they will not
terminate the servicer functions of the Company under their respective
Funding Agreements, provided that the foregoing shall not limit or prohibit
either bank from retaining a back-up servicer during the Forbearance Period
and providing such back-up servicer with all information (from any source)
necessary to be able to promptly service their respective Leases and other
Collateral.
SECTION 6.11. CANADIAN PROPERTY. The Company shall (a) within fourteen
days from the request of any Creditor prepare, execute and file all documents
and instruments in respect of such Creditor's interest in the property of the
Company and/or its affiliates owned previously by Venstar (the "CANADIAN
PROPERTY"), and (b) promptly take all other actions requested by each
Creditor in respect of the Canadian Property. Without limiting the
generality of the foregoing the Company shall, and shall cause its applicable
affiliates to, transfer on or before January 12, 2000 all chattel paper in
respect of the Canadian Property to an agent satisfactory to the Creditors.
The Company shall promptly notify each Creditor if it receives from any
Creditor an instruction in respect of the Canadian Property that the Company
believes conflicts with an instruction from, or the rights of, any other
Creditor. The Company shall promptly deliver to each Creditor copies of all
documents and instruments executed and/or filed by the Company in respect of
the Canadian Property.
SECTION 6.12. ONSET. The Company shall cause the proceeds received by
the Company, its affiliates and its designees from the sale or other
disposition of the stock or assets of Onset to be turned over to the Onset
Collateral Agent promptly upon receipt by the Company, its affiliates or its
designees except for the period of time during which a valid court order
entered in respect of the Holdings Petition prohibits the turnover of such
proceeds to the Onset Collateral Agent. In addition, the Company shall cause
the shares of capital stock in respect of the Holdings Onset Assets to be
delivered to the Onset Collateral Agent, with undated stock
15
powers related thereto duly executed in blank by the Company, TWFC Financial
Holdings, Ltd. and their applicable affiliates no later than one business day
after which there is no valid court order entered in respect of the Holdings
Petition prohibiting such transfer of stock.
ARTICLE VII
FORBEARANCE
SECTION 7.1. LIMITED FORBEARANCE. During the Forbearance Period, but
subject to the rights reserved by the Creditors under this Agreement and the
other Forbearance Documents, each of the Creditors hereby agrees to forbear
to do any of the following during the Forbearance Period on account of (i)
any event of default existing at the Effective Time under the Funding
Agreements; or (ii) any new or undisclosed event of default under the Funding
Agreements that does not independently constitute a Forbearance Termination
Event:
(a) demand or seek the payment of or accelerate the final maturity due
or any scheduled amortization of any principal or interest owing under any
Funding Agreement;
(b) conduct a foreclosure or execution sale of any Collateral under any
Funding Agreement;
(c) make demand for payment of any amounts payable under any guaranty
in respect of any indebtedness owing under any Funding Agreement; or
(d) otherwise enforce its rights and remedies, except as otherwise
provided under this Agreement, under its respective Funding Agreement and
applicable law.
SECTION 7.2. RESERVATION OF RIGHTS. (a) Except for the forbearance
referred to in SECTION 7.1 by executing this Agreement or any other
Forbearance Document no Creditor has waived any of its rights under its
Funding Agreements;
(b) Notwithstanding SECTION 7.1, any Creditor is at any time
authorized: (i) to take any action: (A) to prevent the loss, seizure or sale
of any of such Collateral pursuant to any trustee's sale writ of execution,
writ of attachment or other legal process; (B) to resist or oppose any claim
by any other creditor to any offset or to a marshaling or other ordering of
the priority or manner of the disposition of such Collateral or any part
thereof, or (C) to take any actions required to be taken by any Creditor
pursuant to any law, regulation or process to which such Creditor is subject
including, without limitation, any action to perfect, preserve, defend, or
protect such Creditor's security interest or priority as a secured creditor
of the Company; and (ii) to take any legal action if such action is a
necessary or permissive counterclaim or cross-complaint in any action which
either the Company or any other person has commenced against such Creditor or
involving any of such Creditor's Collateral.
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ARTICLE VIII
FORBEARANCE TERMINATION EVENTS
The occurrence of any one or more of the following (each a "FORBEARANCE
TERMINATION EVENT") shall constitute a Forbearance Termination Event under
this Agreement:
SECTION 8.1. BREACH OF COVENANTS OR CONDITIONS IN FORBEARANCE
DOCUMENTS. The Company or any Guarantor fails to perform or observe any
covenant, term, agreement or condition in this Agreement or any other
Forbearance Document and such failure to perform or observe is not cured by
the Company or the relevant Guarantor within one business day after written
notice of the same is given by and Creditor to the Company, each other
Creditor and Canadian Imperial Bank of Commerce, as Agent.
SECTION 8.2. DEFAULTS IN OTHER AGREEMENTS. The Company fails to
perform or observe any term, covenant, agreement or condition contained in,
or there shall occur any default by the Company under, any agreement (other
than any Funding Agreement) to the extent that such failure would present the
Company with a liability or potential liability when due in excess of
$1,000,000.
SECTION 8.3. AGREEMENTS INVALID. The validity, binding nature of, or
enforceability of any material term or provision of any Funding Agreement is
disputed by, on behalf of, or in the right or name of the Company or any
Guarantor, or any material term or provision of any such Funding Agreement is
found or declared to be invalid, avoidable, or non-enforceable by any court
of competent jurisdiction.
SECTION 8.4. BREACH OF REPRESENTATIONS. Any warranty or representation
made by the Company in this Agreement, any other Forbearance Document or in
any writing delivered in connection therewith shall prove to have been false
or incorrect in any material respect.
SECTION 8.5. JUDGMENTS. A final judgment is entered, or an order or
orders of any judicial authority or governmental entity is issued, against
the Company or any Guarantor for payment of money in excess of $1,000,000 and
such judgment is not discharged or stayed pending appeal within 15 days after
entry or issuance thereof.
SECTION 8.6. BANKRUPTCY OR INSOLVENCY OF THE COMPANY.
(a) The Company, any of its subsidiaries or any Guarantor applies for,
consents to, or acquiesces in, the appointment of a trustee, receiver or
other custodian for a substantial part of its property, or makes a general
assignment for the benefit of creditors (other than the appointment by Royal
Bank of Canada of a receiver in Canada for Accel or in respect of the
Holdings Petition); or
(b) The Company, any of its subsidiaries or any Guarantor commences any
bankruptcy, reorganization, debt arrangement, or other case or proceeding
under any state, federal or foreign bankruptcy or insolvency law, or any
dissolution or liquidation proceeding; or
17
(c) Any bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any state, federal or foreign bankruptcy or insolvency law,
or any dissolution or liquidation proceeding, is involuntarily commenced
against or in respect of the Company, any of its subsidiaries or any
Guarantor, or an order for relief is entered in any such proceeding; or
(d) A trustee, receiver or other custodian is appointed for the Company
or any of its subsidiaries (other than the appointment by Royal Bank of
Canada of a receiver in Canada for Accel) or any Guarantor.
SECTION 8.7. IMPAIRMENT OF COLLATERAL. Subject to SECTION 8.10, any
lien of any Creditor in the Collateral with a value of $100,000 or more shall
cease to be, either in whole or in part, a valid, first priority perfected
lien in favor of such Creditor, or the Company or any Guarantor shall, either
directly or indirectly, contest any of the foregoing.
SECTION 8.8. FRAUDULENT ACTIVITIES; CONCEALMENT. The Company, any of
its subsidiaries or any Guarantor shall have concealed, removed or permitted
to be removed any part of its property with intent to hinder, delay or
defraud its creditors or made or suffered a transfer of any of its property
which is fraudulent under any bankruptcy, fraudulent conveyance or similar
law.
SECTION 8.9. TERMINATION EVENT UNDER ADDITIONAL FORBEARANCE AGREEMENT.
Any termination or event of default shall have occurred under the CIBC
Servicing Transition Agreement.
SECTION 8.10. GUARANTORS. Assets of any Guarantor shall be attached,
seized, levied upon or subjected to a writ of distress or warrant or come
within the possession of any receiver, trustee, custodian or assignee for the
benefit of creditors (other than in respect of the Chicago Litigation).
ARTICLE IX
REMEDIES
From and after the Termination Time, any Creditor, in its sole
discretion, may enforce all of its rights and remedies as set forth under its
respective Funding Agreements and applicable law, including accelerating all
amounts that are owing under its Funding Agreements and foreclosing on its
Collateral. Upon a Forbearance Termination Event any Creditor may, in
addition to its other rights and remedies, send a written notice to Norwest
terminating any further disbursements from the Concentration Account as more
fully set forth in the Norwest notice referenced in SECTION 11.1(e).
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ARTICLE X
RELEASES
Effective as of the Effective Time, the Company, on behalf of itself and
any person claiming by, through or under the Company and each Guarantor,
hereby releases, waives and forever discharges each Creditor and its
affiliates, officers, directors, employees, agents, attorneys and accountants
(collectively, the "RELEASED PARTIES") of, from and with respect to any and
all manner of action and actions, cause and causes of action, suits,
disputes, claims, counterclaims, liabilities, cross claims, defenses, whether
now known or unknown, suspected or unsuspected, past or present, asserted or
unasserted, contingent or liquidated, whether or not well-founded in fact or
law, whether in contract, in tort or otherwise, at law or in equity, which
any such person or entity had or now has, claims to have had, now claims to
have or hereafter can, shall or may claim to have against all such Released
Parties, for or by reason of any causes, matter or thing whatsoever arising
at any time prior to the date hereof, including any claims based upon,
relating to or arising out of any and all transactions, relationships or
dealings with or loans made to the Company prior to the date hereof.
ARTICLE XI
EFFECTIVENESS
The effectiveness of this Agreement and the obligations of the Creditors
hereunder are subject to the fulfillment of each of the conditions precedent
set forth in this Article to the satisfaction of each Creditor.
SECTION 11.1. DOCUMENTS TO BE DELIVERED AND ACTIONS TO BE TAKEN.
(a) First Union National Bank notifies each of the parties hereto that
it has received executed counterparts of this Agreement;
(b) Canadian Imperial Bank of Commerce, as Agent, has entered into one
or more agreements with the Company on substantially the same terms as this
Agreement (the "CIBC SERVICING TRANSITION AGREEMENT");
(c) Xxxxxxxx has accepted its appointment pursuant to SECTION 6.6;
(d) each Creditor shall have received a written confirmation from PwC
accepting its appointment pursuant to SECTIONS 2.3 and 6.2;
(e) each Creditor shall have received a copy of a satisfactory notice
by the Company to Norwest regarding the requirement that all disbursements
from the Concentration Account be confirmed by PwC;
19
(f) the Company and Xxxxxx Commercial Paper Inc. shall have entered
into a side letter that is acceptable to each Creditor;
(g) each Creditor shall have received from the Company a master
Collateral list prepared by the Company which identifies, in reasonable
detail, the Company's understanding in respect of the Collateral of each
Creditor;
(h) the Company shall have provided satisfactory evidence to each
Creditor as to its compliance with SECTION 2.5, including satisfactory
evidence that, as of the Effective Time, all amounts that may be on deposit
in any account, other than the Lock-Box Account or the Concentration Account,
have been deposited in either the Lock-Box Account or the Concentration
Account;
(i) there shall have been delivered to the Onset Collateral Agent the
original certificates evidencing all of the issued and outstanding shares of
capital stock of Onset (subject to the limitation set forth in the last
sentence of SECTION 12.1) required to be pledged in this Agreement, together
with undated stock powers related thereto duly executed in blank by the
Company, and its affiliates, if applicable;
(j) each Creditor shall have received from CIBC a written consent in
which CIBC agrees to the provisions of ARTICLE II;
(k) the Holding Account shall have been established; and
(l) an Intercreditor Agreement between the Creditors and CIBC in form
and substance satisfactory to each such party shall have been fully executed.
SECTION 11.2. NO LITIGATION. There shall be no litigation or other
legal proceeding pending or threatened which seeks to restrain, enjoin,
delay, prohibit or otherwise prevent the consummation of the transactions
contemplated hereby, or to recover any damages thereon or obtain relief
therefrom.
SECTION 11.3. REPRESENTATIONS. Each of the representations and
warranties of the Company that are set forth in this Agreement and the other
Forbearance Documents shall, as of the Effective Time, be true and correct.
SECTION 11.4. COVENANTS. The Company shall have fully performed all
the covenants required to be performed by it hereunder.
ARTICLE XII
PLEDGE OF ONSET CAPITAL STOCK
SECTION 12.1. GRANT OF SECURITY INTEREST. By execution of this
Agreement, the Company hereby pledges, hypothecates, assigns, charges,
mortgages, delivers and transfers to
20
Norwest or any other collateral agent acceptable to the Creditors
(collectively, the "ONSET COLLATERAL AGENT"), for the ratable benefit of each
of the Creditors, and hereby grants to the Onset Collateral Agent, for the
ratable benefit of each of the Creditors, a continuing security interest in
all of the capital stock of Onset owned or controlled by the Company or its
affiliates, all securities and other amounts due or to become due with
respect thereto, all instruments from time to time received, receivable or
otherwise distributed in respect thereof, all dividends and distributions
with respect to the foregoing, and all proceeds thereof (the "ONSET ASSETS").
The security interest granted in this Article XII in the portion of the
Onset Assets owned by TWFC Financial Holdings Ltd. (the "HOLDINGS ONSET
ASSETS") is subject to any valid court order entered in respect of the
Holdings Petition that prohibits the grant of such security interest.
SECTION 12.2. SECURITY FOR CREDIT OBLIGATIONS.
(a) The security interest granted pursuant to SECTION 12.1 shall be a
first priority security interest in the Onset Assets to secure funds made
available by the Creditors to the Company pursuant to SECTION 2.1 of this
Agreement from and after January 1, 2000 (the "FIRST PRIORITY SECURITY
INTEREST"), which security interest shall be equal and ratable with the
security interest granted in the Onset Assets pursuant to the CIBC Servicing
Transition Agreement to secure amounts funded to the Company after January 1,
2000 pursuant to that agreement (the "CIBC FIRST PRIORITY LIEN"), except to
the extent that the CIBC First Priority Lien is avoided;
(b) The security interest granted pursuant to SECTION 12.1 shall be a
second priority security interest in the Onset Assets (junior only to the
First Priority Security Interest and the CIBC First Priority Lien) to secure
funds made available to the Company on or about December 31, 1999 in the
amount of $262,968 (the "SECOND PRIORITY SECURITY INTEREST"), which funds the
Company acknowledges were loaned to it and were, at such time, intended by
the Company and the Creditors to be promptly secured by the security interest
granted herein. As such, the Company acknowledges and agrees that the
Company and the Creditors intended the granting of the Second Priority
Security Interest and the making of such loan to be a contemporaneous
exchange for new value given to the Company, and that, in addition, the
making of such loan, the Creditors' entry into, and covenants to perform in
accordance with, this Agreement constitute "new value" and "reasonably
equivalent value," as those terms are used in Sections 547 and 548 of the
Bankruptcy Code, received by the Company as of the effectiveness of this
Agreement in contemporaneous exchange for the pledge set forth in this
SECTION 12.2. The Second Priority Security Interest shall be equal and
ratable with the security interest granted in the Onset Assets pursuant to
the CIBC Servicing Transition Agreement to secure the amount of $139,432
funded to the Company by CIBC on or about December 31, 1999 (the "CIBC SECOND
PRIORITY LIEN"), except to the extent that the CIBC Second Priority Lien is
avoided; and
(c) The security interest granted pursuant to SECTION 12.1 shall be a
third priority security interest in the Onset Assets (junior only to the
First Priority Security Interest, the CIBC First Priority Lien, the Second
Priority Security Interest and the CIBC Second Priority Lien) to secure the
diminution in value of the Creditors' Collateral other than diminution
secured by the First Priority Security Interest or Second Priority Security
Interest (the "THIRD PRIORITY SECURITY INTEREST"). The Third Priority
Security Interest shall be equal and ratable with the security
21
interest granted in the Onset Assets pursuant to the CIBC Servicing
Transition Agreement to secure breaches by the Company of its obligations to
CIBC pursuant to the Facility Documents other than breaches or claims secured
by the CIBC First Priority Lien and the CIBC Second Priority Lien, except to
the extent that the CIBC Second Priority Lien is avoided. The Company
acknowledges and agrees that the Creditors' entry into, and covenants to
perform in accordance with, this Agreement constitute "new value" and
"reasonably equivalent value," as those terms are used in Sections 547 and
548 of the Bankruptcy Code, received by the Company as of the effectiveness
of this Agreement in contemporaneous exchange for the pledge set forth in
this SECTION 12.2.
SECTION 12.3.. ENFORCEMENT OF SECURITY INTEREST. During the continuance
of any event of default under any Funding Agreement from and after the
termination time the Onset Collateral Agent shall, at the direction of the
Creditors, exercise any and all rights under the Uniform Commercial Code or
other applicable law to foreclose upon its security interest in the capital
stock pledged hereby (including, without limitation, exercising all voting
rights with respect to such capital stock and receiving all distributions and
dividends that are payable with respect thereto). The Company irrevocably
appoints the Onset Collateral Agent, with full power of substitution, as its
true and lawful attorney-in-fact with full and irrevocable power and
authority in its place and stead for the purpose of carrying out the terms of
this Article.
SECTION 12.4.. RELEASE OF SECURITY INTEREST. The Creditors shall
execute, and cause the Onset Collateral Agent to execute, all documents and
instruments reasonably requested by the Company to release the security
interest in the Onset Assets upon (a) the sale of Onset on terms and
conditions substantially similar to those set forth in EXHIBIT G to this
Agreement, or if the proposed terms and conditions of such sale are less
favorable to the Company than those set forth in EXHIBIT G to this Agreement,
upon the written consent of the Creditors, which consent shall not
unreasonably be withheld, and which consent, or nonconsent, as the case may
be, shall be provided in writing no later than the greater of two calendar
days or one business day after the receipt of a written request by the
Company, and (b) the turnover to the Onset Collateral Agent for the benefit
of the Creditors (and CIBC) all proceeds and other consideration from such
sale promptly upon receipt by the Company or its designee.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. CROSS-REFERENCES. References in this Agreement to any
Article or Section are, unless otherwise specified, to such Article or
Section of this Agreement.
SECTION 13.2. COUNTERPARTS. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
22
SECTION 13.3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 13.4. FURTHER ASSURANCES. The Company shall execute and
deliver, from time to time, in favor the Creditors such documents,
agreements, certificates and other instruments as shall be necessary or
advisable to effect the purposes of this Agreement.
SECTION 13.5. COSTS AND EXPENSES. The Company agrees to pay all
reasonable costs and expenses incurred by the Creditors in connection with
(a) the execution and delivery of this Agreement, including but not limited
to, the fees and expenses of legal counsel for each of the Creditors and (b)
the professional services of Xxxxxxxx.
SECTION 13.6. WAIVER OF JURY TRIAL; ENTIRE AGREEMENT. EACH PERSON A
PARTY HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER FORBEARANCE DOCUMENT. THIS AGREEMENT,
TOGETHER WITH THE OTHER FORBEARANCE DOCUMENTS, CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDES ANY PRIOR AGREEMENT, WRITTEN OR ORAL, WITH RESPECT
HERETO.
SECTION 13.7. TERMINATION. The terms of SECTIONS 2.1 AND 7.1 shall
automatically, and without the requirement of notice to or action by any
person, terminate in their entirety on the earlier to occur (the "TERMINATION
TIME") of (a) 5:00 p.m., Pacific Time, on January 28, 2000 or (b) the
occurrence of any Forbearance Termination Event; PROVIDED, that all the other
terms of this Agreement shall continue to be in full force and effect
notwithstanding the occurrence of the Termination Time.
SECTION 13.8. TERMINATION OF INTERCREDITOR AGREEMENT. By execution of
this Agreement, each Creditor agrees that the Intercreditor Agreement, dated
as of October 22, 1999, among the Creditors and the Company is hereby
terminated pursuant to the terms thereof.
SECTION 13.9. LIMITED THIRD PARTY BENEFITS. This Agreement and the
other Forbearance Documents are for the benefit of the parties hereto and
thereto and no other person or entity, other than CIBC, shall be entitled to
any benefit hereunder or thereunder. The Company will not amend, modify, or
alter any of the terms of the CIBC Servicing Transition Agreement without the
prior written consent of each Creditor.
SECTION 13.10. REFERENCES TO CANADIAN IMPERIAL BANK OF COMMERCE. All
references to CIBC in this Agreement and the other Forbearance Documents
refer to Canadian Imperial Bank of Commerce acting in its capacity set forth
in the CIBC Servicing Transition Agreement and the CIBC Facility Documents.
23
SECTION 13.11. ORAL AGREEMENTS. ORAL AGREEMENTS OR ORAL COMMITMENTS TO
LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers hereunto duly authorized as of the day and
year first above written.
COMPANY
T&W FINANCIAL SERVICES L.L.C.
By /s/ Xxxxxx X. Virgin
---------------------------------
Name: Xxxxxx X. Virgin
Title: Sr. Vice President
T&W FINANCIAL CORPORATION
By /s/ Xxxxxx X. Virgin
---------------------------------
Name: Xxxxxx X. Virgin
Title: Sr. Vice President
T&W FUNDING COMPANY XI, L.L.C.
By /s/ Xxxxxxx X. XxXxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. XxXxxxxx, Xx.
Title: Vice President
CREDITORS
FIRST UNION NATIONAL BANK, N.A.,
as Agent and Lender
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as Agent and Lender
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.
By /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
25
KEY BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
THE UNION BANK OF CALIFORNIA, N.A.,
By /s/ Xxxxxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxxxxx Xxxxxxxxx
Title: Vice President
The undersigned, as guarantors of the obligations evidenced by the
Funding Agreements, hereby acknowledge and agree with the terms of this
Agreement and affirm and restate all of their obligations with respect to
each guaranty or similar agreement with respect to the Funding Agreements.
IN WITNESS WHEREOF, each guarantor has executed this Agreement as of the
day and year first above written.
/s/ Xxxxxxx X. Price /s/ Xxxxxxxxx X. Xxxxx
---------------------------- --------------------------
Xxxxxxx X. Price Xxxxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxxx X. Price
---------------------------- --------------------------
Xxxxxx X. Xxxxx Xxxxxxxx X. Price
/s/ Xxxxxxx X. XxXxxxxx, Xx. /s/ Xxxxx X. XxXxxxxx
---------------------------- --------------------------
Xxxxxxx X. XxXxxxxx, Xx. Xxxxx X. XxXxxxxx
P.L.M. CONSULTING GROUP, L.L.C.
/s/ Xxxx X. Xxxx By: /s/ Xxxxxxx X. Price
---------------------------- --------------------------
Xxxx X. Xxxx Name: Xxxxxxx X. Price
Title: Member
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Member
26
T&W FUNDING COMPANY IV, L.L.C.
By: /s/ Xxxxxxx X. Price By: /s/ Xxxx Xxxx
----------------------- -----------------------------
Name: Xxxxxxx X. Price Name: Xxxx Xxxx
Title: Member Title: Member
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. XxXxxxxx, Xx.
-------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx X. XxXxxxxx, Xx.,
Title: Member Title: Member
27
