_________________________________________________________________
AMENDED AND RESTATED CONTRIBUTION AND SALE AGREEMENT
______________________
between
TRANS LEASING INTERNATIONAL, INC.
and
TL LEASE FUNDING CORP. IV
_______________________
Dated as of
October 6, 1995
_________________________________________________________________
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . .2
1.01 Definitions . . . . . . . . . . . . . . . . . . . . .2
1.02 Other Definitional Provisions . . . . . . . . . . . .7
ARTICLE II
ISSUANCE OF STOCK BY TLFC; CONTRIBUTION OF CONTRIBUTED ASSETS; SALE
OF PURCHASED ASSETS8
2.01 Issuance of Common Stock by TLFC. . . . . . . . . . .8
2.02 Contributions and Sales . . . . . . . . . . . . . . .8
2.03 Contribution and Sale of Additional Assets. . . . . 10
2.04 Custody of Lease Files. . . . . . . . . . . . . . . 11
ARTICLE IIIREPRESENTATIONS AND WARRANTIES. . . . . . . . . . . 12
3.01 Representations and Warranties of Trans Leasing . . 12
3.02 Representations and Warranties of TLFC. . . . . . . 17
3.03 Purchase of Leases and Equipment by Trans Leasing . 19
3.04 Indemnification . . . . . . . . . . . . . . . . . . 20
ARTICLE IVCOVENANTS OF TRANS LEASING AND TLFC. . . . . . . . . 20
4.01 Trans Leasing Covenants . . . . . . . . . . . . . . 20
4.02 TLFC Covenants. . . . . . . . . . . . . . . . . . . 23
4.03 Assignment; Grant of Security Interest. . . . . . . 23
ARTICLE VTERMINATION . . . . . . . . . . . . . . . . . . . . . 23
5.01 Termination . . . . . . . . . . . . . . . . . . . . 23
5.02 Effect of Termination . . . . . . . . . . . . . . . 23
ARTICLE VIMISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . 24
6.01 Amendment . . . . . . . . . . . . . . . . . . . . . 24
6.02 Governing Law . . . . . . . . . . . . . . . . . . . 24
6.03 Notice. . . . . . . . . . . . . . . . . . . . . . . 24
6.04 Severability of Provisions. . . . . . . . . . . . . 25
6.05 Assignment. . . . . . . . . . . . . . . . . . . . . 25
6.06 No Waiver; Cumulative Remedies. . . . . . . . . . . 25
6.07 Counterparts. . . . . . . . . . . . . . . . . . . . 26
6.08 Binding Effect; Third-Party Beneficiaries . . . . . 26
6.09 Merger and Integration. . . . . . . . . . . . . . . 26
6.10 Headings. . . . . . . . . . . . . . . . . . . . . . 26
6.11 Schedules and Exhibits. . . . . . . . . . . . . . . 26
6.12 No Petition Covenants . . . . . . . . . . . . . . . 26
6.13 Confidential Information. . . . . . . . . . . . . . 26
LIST OF EXHIBITS
Exhibit A Form of Assignment for the Closing Date Assets
Exhibit B Form of Assignment for the Additional Assets
Exhibit C Forms of Lease
LIST OF SCHEDULES
Lease Schedule
Excluded Lease Schedule
Lease Criteria Schedule
Specified Portfolio Characteristics Schedule
AMENDED AND RESTATED CONTRIBUTION AND SALE AGREEMENT
THIS AMENDED AND RESTATED CONTRIBUTION AND SALE AGREE-
MENT, dated as of October 6, 1995 (this "Agreement"), is entered
into between Trans Leasing International, Inc. ("Trans Leasing"),
a Delaware corporation, and TL Lease Funding Corp. IV ("TLFC"), a
Delaware corporation. Capitalized terms used and not otherwise
defined herein have the respective meanings set forth in Article
I below.
Trans Leasing in the ordinary course of its business
originates equipment and other leases in the United States.
Trans Leasing and TLFC entered into a Contribution and
Sale Agreement dated as of April 18, 1995 (the "Original Agree-
ment"), pursuant to which, among other things, Trans Leasing
transferred the Purchased Leases, the Contributed Leases, its
interests in the related Equipment and other assets to TLFC upon
the terms and conditions set forth in the Original Agreement.
Trans Leasing and TLFC desire to amend and restate in
its entirety the Original Agreement.
On the date hereof, Trans Leasing desires to sell and
contribute to TLFC additional Leases, its interests in the
related Equipment and other assets and it is contemplated that,
from time to time after the date hereof, Trans Leasing and TLFC
may agree that Trans Leasing will transfer additional Leases, its
interests in the related Equipment and other assets to TLFC, in
each case, upon the terms and conditions set forth in this
Agreement.
It is contemplated that, TLFC will transfer the Leases,
its interests in the related Equipment and other assets to the
Trust, which in turn will pledge such Leases, interests in the
related Equipment and other assets to the Indenture Trustee, and
that, following such transfers and pledge, Trans Leasing, in its
capacity as Servicer pursuant to the Pooling and Servicing
Agreement, will administer and service such Leases and the
related Equipment.
In connection with the transactions contemplated
hereby, and as contemplated by the Original Agreement, Trans
Leasing is willing to restate certain representations,
warranties, covenants and agreements made under the Original
Agreement and make additional representations and warranties,
covenants and agreements.
In consideration of the mutual covenants set forth in
this Agreement, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, Trans
Leasing and TLFC agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. Whenever used in this
Agreement, the following words and phrases will have the
following meanings:
"Addition Cut-Off Date" means, with respect to an
Additional Lease, the close of business on the last day of the
month preceding the related Addition Date.
"Addition Date" has the meaning set forth in Section
2.03(a).
"Additional Assets" means all right, title and interest
of Trans Leasing in, to, and under (i) the Additional Leases
(including Trans Leasing's obligations under the Additional
Leases) and all monies due or to become due thereunder after the
related Addition Cut-Off Date, (ii) the related Equipment (other
than any licensed products that may accompany any of such
Equipment), (iii) the Lease Files for the Additional Leases, (iv)
any Insurance Policies and the related Insurance Proceeds with
respect to the Additional Leases and (v) all income and proceeds
relating to the foregoing.
"Additional Leases" means the Leases listed on any
Additional Lease Schedule delivered by Trans Leasing to TLFC
pursuant to Section 2.03(a).
"Assets" means the Purchased Assets, the Contributed
Assets, the Closing Date Assets and any Additional Assets, but
does not include any Excluded Assets.
"Business Day" means any day which is not a Saturday,
Sunday or a legal holiday under the laws of the State of Illinois
and is not a day on which banking institutions located in the
State of Illinois are authorized or permitted by law or other
governmental action to close.
"Closing Date" means October 6, 1995.
"Closing Date Assets" means all right, title and
interest of Trans Leasing in, to and under (i) the Closing Date
Leases (including Trans Leasing's obligations under the Closing
Date Leases) and all monies due or to become due thereunder after
the Cut-Off Date, (ii) the related Equipment (other than any
licensed products that may accompany any of such Equipment),
(iii) the Lease Files for the Closing Date Leases, (iv) any
Insurance Policies and the related Insurance Proceeds with
respect to the Closing Date Leases and (v) all income and
proceeds relating to the foregoing.
"Closing Date Leases" means the Leases listed on the
Closing Date Lease Schedule attached to the assignment executed
and delivered by Trans Leasing to TLFC as described in Section
2.02(c).
"Common Stock" means 1,000 shares of the common stock
of TLFC, par value $0.01 per share, constituting all of its
authorized capital stock.
"Contributed Assets" means all right, title and
interest of Trans Leasing in, to and under (i) the Contributed
Leases (including Trans Leasing's obligations under the
Contributed Leases) and all monies due or to become due
thereunder after the date set forth in the related assignments
with respect thereto, (ii) the related Equipment (other than any
licensed products that may accompany any of such Equipment),
(iii) the Lease Files for the Contributed Leases, (iv) any
Insurance Policies and the related Insurance Proceeds with
respect to the Contributed Leases and (v) all income and proceeds
relating to the foregoing.
"Contributed Leases" means the Leases listed on the
Contributed Lease Schedule, as amended to reflect the
contribution by Trans Leasing to TLFC of certain additional
Leases on the Subsequent Closing Dates, attached to the Original
Agreement.
"Credit Agreement" means the Revolving Credit and Term
Loan and Security Agreement between TLFC and the Lender, dated as
of April 18, 1995, as amended, together with all amendments,
restatements, supplements and modifications thereof or thereto.
"Cut-Off Date" means August 31, 1995.
"Discounted Lease Balance" has the meaning ascribed to
such term in the Pooling and Servicing Agreement.
"Discounted Lease and Residual Balance" has the meaning
ascribed to such term in the Pooling and Servicing Agreement.
"Equipment" means the assets leased to a Lessee
pursuant to any Lease and/or, unless the context otherwise
requires, a security interest therein.
"Excluded Assets" means all right, title and interest
of Trans Leasing in, to and under (i) the Excluded Leases
(including Trans Leasing's obligations under the Excluded Leases)
and all monies due or to become due thereunder, (ii) the
Equipment related to the Excluded Lease (other than any licensed
products that may accompany any of such Equipment), (iii) the
Lease Files for the Excluded Leases, (iv) any Insurance Policies
and the related Insurance Proceeds with respect to the Excluded
Leases and (v) all income and proceeds relating to the foregoing.
"Excluded Leases" means Contributed Leases and
Purchased Leases listed in the Excluded Leases Schedule attached
hereto.
"Filing Locations" means the states of Alabama,
Arizona, California, Delaware, Florida, Georgia, Illinois,
Indiana, Maryland, New Jersey, New York, North Carolina, Ohio,
Pennsylvania, Texas and Virginia.
"Governmental Authority" means (a) any federal, state,
county, municipal or foreign government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality
or public body, (c) any court or administrative tribunal or (d)
with respect to any Person, any arbitration tribunal or other
non-governmental authority to the jurisdiction of which such
Person has consented.
"Holders" has the meaning set forth in the Pooling and
Servicing Agreement.
"Indenture" means the Indenture of even date herewith
between the Trust and the Indenture Trustee, as such agreement
may be amended, modified or supplemented from time to time.
"Indenture Trustee" means Manufacturers and Traders
Trust Company, as Indenture Trustee under the Indenture, or any
successor thereto.
"Initial Closing Date" means April 18, 1995.
"Insurance Policy" means with respect to any Lease, an
insurance policy covering physical damage to or loss of the
related Equipment.
"Insurance Proceeds" means, depending on the context,
any amounts payable or any payments made, to the Servicer under
an Insurance Policy.
"Interested Parties" means the Trust, the Holders and
the Indenture Trustee, in each case to the extent of their
respective interests in the Assets.
"Lease" means each agreement, including, as applicable,
schedules, subschedules, summary schedules, supplements and
amendments to a master lease, pursuant to which Trans Leasing, as
lessor, leases specified assets to a Lessee at a specified
monthly or quarterly rental, and which is identified in the Lease
Schedule, including all Contributed Leases, Purchased Leases,
Closing Date Leases and Additional Leases but not including any
Excluded Leases; provided, that, from and after the date on which
a Lease is purchased by Trans Leasing pursuant to Section 3.03 or
a Lease is otherwise transferred to Trans Leasing, such Lease
shall no longer be a Lease for purposes of this Agreement.
"Lease File" means, with respect to any Lease, the
Lease and all other documents relating to such Lease in the
possession of Trans Leasing or held by the Servicer under the
Pooling and Servicing Agreement, as the context requires.
"Lease Management System" means the computerized
electronic lease management system maintained by Trans Leasing
for all Leases and other agreements similar to the Leases.
"Lease Schedule" means a list of all Leases included in
the Assets, as amended to show the deletion of Leases purchased
by Trans Leasing pursuant to Section 3.03 or otherwise
transferred by TLFC to Trans Leasing.
"Lender" means First Union National Bank of North
Carolina.
"Lessee" means with respect to any Lease, the Person or
Persons obligated to make payments with respect to such Lease,
including any guarantor thereof.
"Lien" means any mortgage, pledge, hypothecation,
assignment for security, security interest, encumbrance, xxxx,
xxxx or charge of any kind, whether voluntarily incurred or
arising by operation of law or otherwise, affecting any Property,
including any agreement to grant any of the foregoing, any
conditional sale or other title retention agreement, any lease in
the nature of a security interest, and the filing of or agreement
to file or deliver any financing statement (other than a
precautionary financing statement with respect to a lease that is
not in the nature of a security interest and until 5 Business
Days after the Closing Date, financing statements filed in
connection with the Credit Agreement, other than those filed in
Delaware, Illinois and New York) under the UCC or comparable law
of any jurisdiction.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel to Trans Leasing or other counsel,
acceptable to TLFC.
"Person" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit
corporation, firm, joint stock company, estate, entity or
Governmental Authority.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement dated as of the date hereof among TLFC, the
Trust and Trans Leasing, in its capacity as the initial servicer
thereunder, as such agreement may be amended, modified or
supplemented from time to time.
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed, whether tangible or
intangible.
"Purchased Assets" means all right, title and interest
of Trans Leasing in, to, and under (i) the Purchased Leases
(including Trans Leasing's obligations under the Purchased
Leases), and all monies due or to become due thereunder after the
date set forth in the related assignments with respect thereto,
(ii) the related Equipment (other than any licensed products that
may accompany any of such Equipment), (iii) the Lease Files for
the Purchased Leases, (iv) any Insurance Policies and the related
Insurance Proceeds with respect to the Purchased Leases and
(v) all income and proceeds relating to the foregoing.
"Purchased Leases" means the Leases listed on the
Purchased Lease Schedule, as amended to reflect the sale by Trans
Leasing to TLFC of certain additional Leases on the Subsequent
Closing Dates, attached to the Original Agreement.
"Required Capital Contribution" has the meaning set
forth in Section 2.02(a).
"Responsible Officer" of any Person means any of the
President, Executive Vice President, Vice President, Chief
Financial Officer, Treasurer, Corporate Controller or Trust
Officer of such Person.
"Scheduled Lease Payments" means with respect to any
Lease, the monthly or quarterly rent payments scheduled to be
made by the related Lessee under the terms of such Lease after
the Cut-Off Date or the related Addition Cut-Off Date, as
applicable.
"Servicer" means, at any time, any Person then acting
as servicer under the Pooling and Servicing Agreement, and shall
initially refer to Trans Leasing in its capacity as the initial
servicer under the Pooling and Servicing Agreement.
"Subsequent Closing Dates" has the meaning set forth in
Section 2.02(b).
"Trust" means TLFC IV Equipment Lease Trust 1995-1, a
Delaware business trust.
"Trust Certificate" has the meaning ascribed to such
term in the Trust Agreement of even date herewith between TLFC
and Bankers Trust (Delaware), as Owner Trustee.
"UCC" means the Uniform Commercial Code as the same
may, from time to time, be in effect in the State of Illinois
provided, however, in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or
priority of the Lien of TLFC or an Interested Party in and to the
Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of Illinois the
term "UCC" shall mean the Uniform Commercial Code as in effect in
such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection or priority and for
purposes of definitions related to such provisions.
"Warranty Event" means, with respect to any Lease, that
Trans Leasing is obligated to purchase such Lease pursuant to
Section 3.03.
"Warranty Purchase Price" means, with respect to any
Lease and the related Equipment to be purchased by Trans Leasing,
the amount set forth as such in the Pooling and Servicing
Agreement.
1.02 Other Definitional Provisions.
(a) Terms used in Related Documents. Each
term defined in this Agreement will have the meaning assigned to
such term in this Agreement when used in any certificate or other
document made or delivered pursuant to this Agreement, unless
such term is otherwise defined therein.
(b) Accounting Terms. As used in this Agreement,
accounting terms which are not defined in Section 1.01 have the
respective meanings given to them under generally accepted
accounting principles as in effect on the date of this Agreement.
To the extent that the definitions of accounting terms in this
Agreement are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions
contained in this Agreement will control.
(c) "Hereof," etc. The words "hereof," "herein"
and "hereunder" and words of similar import when used in this
Agreement will refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section, Schedule and
Exhibit references contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement, unless
otherwise specified.
(d) Number and Gender. Each defined term used in
this Agreement has a comparable meaning when used in its plural
or singular form. Each gender-specific term used in this
Agreement has a comparable meaning whether used in a masculine,
feminine or gender-neutral form.
(e) Including. Whenever the term "including"
(whether or not that term is followed by the phrase "but not
limited to" or "without limitation" or words of similar effect)
is used in this Agreement in connection with a listing of items
within a particular classification, that list will be interpreted
to be illustrative only and will not be interpreted as a
limitation on, or an exclusive list of, the items within that
classification.
ARTICLE II
ISSUANCE OF STOCK BY TLFC; CONTRIBUTION
OF CONTRIBUTED ASSETS; SALE OF PURCHASED ASSETS;
SALE OF ADDITIONAL ASSETS
2.01 Issuance of Common Stock by TLFC. On the Initial
Closing Date, TLFC issued (in the name of Trans Leasing) and
delivered to Trans Leasing the Common Stock.
2.02 Contributions and Sales.
(a) Initial Contribution and Sale. In return for
the Common Stock, on the Initial Closing Date, Trans Leasing made
a capital contribution (the "Required Capital Contribution") to
TLFC of certain of the Contributed Assets, and Trans Leasing
delivered to TLFC an executed assignment with respect thereto.
The Required Capital Contribution was made without recourse to
Trans Leasing, subject to the obligations of Trans Leasing
pursuant to Section 3.03. For a purchase price of $60 million in
cash, on the Initial Closing Date, Trans Leasing sold to TLFC
certain of the Purchased Assets and delivered to TLFC an executed
assignment with respect thereto. Except for the obligations of
Trans Leasing pursuant to Section 3.03, the sale of such
Purchased Assets was made without recourse to Trans Leasing.
(b) Subsequent Contributions, Sales and
Transfers. On June 19, 1995, and August 8, 1995 (the "Subsequent
Closing Dates"), Trans Leasing made capital contributions to TLFC
of certain of the Contributed Assets and sold certain of the
Purchased Assets to TLFC for a purchase price of $15,375,000 and
$16,000,000, respectively, in cash, and certain Assets described
below. In each case, Trans Leasing delivered to TLFC an executed
assignment with respect thereto. Except for the obligations of
Trans Leasing pursuant to Section 3.03, the contributions of such
Contributed Assets and the sales of such Purchased Assets were
made without recourse to Trans Leasing. In addition, on the
Subsequent Closing Dates, TLFC transferred to Trans Leasing
certain Assets which theretofore constituted Contributed Assets
and Purchased Assets, and, in each case, TLFC executed an
assignment with respect thereto.
(c) Closing Date Contributions and Sales. Trans
Leasing agrees to contribute and sell to TLFC, and TLFC agrees to
accept and purchase on the date hereof, the Closing Date Assets,
as an additional contribution by Trans Leasing to the equity of
TLFC and in exchange for the payment and delivery to Trans
Leasing by TLFC of $[22,500,000] in cash, the Excluded Assets and
a one percent (1%) interest in the Trust Certificate, with the
value ascribed to each Lease and the related Equipment equal to
the Discounted Lease and Residual Balance with respect to such
Lease. On the date hereof, Trans Leasing will execute and
deliver to TLFC an assignment with respect to the Closing Date
Assets in the form attached as Exhibit A. Such contribution and
sale will be made without recourse, subject to the obligations of
Trans Leasing pursuant to Section 3.03.
(d) Distribution to Trans Leasing. TLFC agrees
to transfer to Trans Leasing the Excluded Assets.
(e) Recordation. Trans Leasing agrees to record
and file at its own expense financing statements and continuation
statements with respect to the Leases meeting the requirements of
applicable state law, in such manner and in such jurisdictions as
are necessary to perfect and to maintain the perfection of the
contributions and sales of the Leases and Trans Leasing's
interests in the related Equipment contributed or sold by Trans
Leasing to TLFC as described in this Section 2.02, and to deliver
a file-stamped copy of such financing statements or other
evidence of such filings to TLFC promptly after the Closing Date;
provided, however, that (i) the Lease Files for the Leases will
not be physically delivered to TLFC but instead will be held by
the Servicer pursuant to the Pooling and Servicing Agreement,
(ii) Trans Leasing will not be required to file any financing or
continuation statements with respect to the Equipment in any
jurisdiction other than in the Filing Locations, (iii) the
financing statements to be filed in the Filing Locations other
than the States of Delaware, Illinois and New York will not be
filed until after the Closing Date (and Trans Leasing agrees to
make such filings within 5 Business Days of the Closing Date) and
(iv) Trans Leasing will not be required to cause the certificate
of title or other title document to any Equipment consisting of
motor vehicles to be transferred to TLFC or transferred from TLFC
to the Trust or the security interest of the Indenture Trustee
granted pursuant to the Indenture marked on such certificate of
title or other title document.
(f) Marking of Lease Management System. On or
prior to the Closing Date, Trans Leasing will, for the benefit of
TLFC and the Interested Parties, at its own expense, cause the
Lease Management System to be marked to show that the Contributed
Assets, the Purchased Assets and the Closing Date Assets have
been contributed and sold to TLFC in accordance with this Agree-
ment, sold by TLFC to the Trust pursuant to the Pooling and
Servicing Agreement and pledged by the Trust to the Indenture
Trustee pursuant to the Indenture.
2.03 Contribution and Sale of Additional Assets.
(a) Additional Sales and Contributions. From
time to time after the date hereof, TLFC may request to purchase
Additional Assets from Trans Leasing. If Trans Leasing so agrees
to sell any Additional Assets, the purchase price thereof shall
be an amount agreed to by Trans Leasing and TLFC and shall be no
less than the fair market value of such Additional Assets as then
determined, including consideration of then current interest
rates, and no less than the Discounted Lease and Residual Balance
of the related Additional Lease (as determined pursuant to the
Pooling and Servicing Agreement) as of the related Addition Cut-Off Date.
From time to time after the date hereof, in connection
with a sale of Additional Assets or otherwise, Trans Leasing may
contribute to TLFC as an additional contribution to the equity of
TLFC, Additional Assets. The date on which any such sale or
contribution of Additional Assets takes place is herein referred
to as a "Addition Date." The purchase price for any Additional
Assets to be purchased by TLFC will be payable by TLFC on the
related Addition Date in cash. On each Addition Date, Trans
Leasing will deliver to TLFC an executed assignment substantially
in the form of Exhibit B attached hereto together with a schedule
identifying each Additional Lease included in the Additional
Assets (an "Additional Lease Schedule"). Except for the
obligations of Trans Leasing pursuant to Section 3.03, the sale
and contribution of any Additional Assets will be without
recourse to Trans Leasing.
(b) Recordation. In connection with any
contribution or sale of Additional Assets, Trans Leasing agrees
to record and file at its own expense financing statements and
continuation statements with respect to the related Additional
Leases meeting the requirements of applicable state law, in such
manner and in such jurisdictions as are necessary to perfect and
to maintain the perfection of the contributions and sales of the
Additional Leases by Trans Leasing to TLFC and Trans Leasing's
interests in the related Equipment contributed or sold by Trans
Leasing to TLFC as described in this Section 2.03, and to deliver
a file-stamped copy of such financing statements or other
evidence of such filings to TLFC promptly after the applicable
Addition Date; provided, however, that (i) the Lease Files for
such Additional Leases will not be physically delivered to TLFC
but instead will be held by the Servicer pursuant to the Pooling
and Servicing Agreement, (ii) Trans Leasing will not be required
to file any financing or continuation statements with respect to
the Equipment in any jurisdiction other than the Filing Locations
and (iii) Trans Leasing will not be required to cause the
certificate of title or other title document of any Equipment
consisting of motor vehicles to be transferred to TLFC or
transferred from TLFC to the Trust or the pledge to the Indenture
Trustee pursuant to the Indenture marked on such certificate of
title or other document.
(c) Marking of Lease Management System. On or
prior to the applicable Addition Date, in connection with any
contribution or sale of Additional Assets, Trans Leasing will, at
its own expense, cause the Lease Management System to be marked
to show that such Additional Assets have been contributed or sold
to TLFC in accordance with this Agreement and, as necessary,
further transferred and pledged.
2.04 Custody of Lease Files. In connection with the
contribution and sale of the Assets, Trans Leasing, in its
capacity as the Servicer pursuant to the Pooling and Servicing
Agreement, will retain custody of the Lease Files and any related
evidence of Insurance Policies, Insurance Proceeds and other
payments.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties of Trans Leasing.
Trans Leasing confirms and makes the following representations
and warranties for the benefit of TLFC and the Interested
Parties, on which TLFC has relied in issuing the Common Stock and
has relied and will rely in accepting the contribution of and
purchasing the Assets and on which the Interested Parties will
rely in connection with the transactions contemplated by the
Pooling and Servicing Agreement. Unless otherwise indicated,
such representations and warranties, with respect to the Assets
(other than any Additional Assets), speak as of the Closing Date
and, with respect to any Additional Assets, as of the related
Addition Date, but in each case will survive the contribution and
the sale of the Assets to TLFC and the transfer or grant of a
security interest therein to any Interested Party.
(a) Representations and Warranties with respect
to the Assets. As to the Assets:
(i) the information with respect to the Leases
and the related Equipment in the Lease Schedule is true and
correct in all material respects;
(ii) no provision of any Lease has been waived,
altered or modified in any respect, except by an instrument
or document contained in the related Lease File and except
with respect to a Skipped Payment (as defined in the Pooling
and Servicing Agreement);
(iii) each Lease is a valid and binding payment
obligation of the related Lessee and is enforceable in
accordance with its terms, except as such enforceability may
be limited by (A) applicable bankruptcy, insolvency,
moratorium, reorganization or other similar laws now or
hereafter in effect affecting the enforcement of creditors'
rights generally and (B) general principles of equity
(whether considered in a suit at law or in equity);
(iv) the Leases are not and will not be subject to
rights of rescission, setoff, counterclaim or defense;
(v) the Leases, at the time they were made, did
not violate applicable state or federal laws;
(vi) each Lease contains provisions requiring the
Lessee to assume all risk of loss or malfunction of the
related Equipment;
(vii) except as set forth in the provisos of
Sections 2.02(e) and 2.03(b), all action has or will be
taken by Trans Leasing to transfer all its right, title and
interest in, to and under the Leases and the related
Equipment to TLFC;
(viii) each party to a Lease had the authority and
legal capacity to execute such Lease at the time that it did
so;
(ix) no Asset has been sold, transferred, assigned
or pledged by Trans Leasing to any Person (other than TLFC),
and immediately prior to contributing or selling such Asset
to TLFC, Trans Leasing is the sole owner of, and holder of
title to, the Leases, the related Equipment (or a security
interest therein) and the other Assets free and clear of any
Liens (except for the interests of Lessees under the
Leases), and immediately following the transfer by Trans
Leasing to TLFC of the Assets, the Assets will be free and
clear of all Liens (except for the interests of Lessees
under the Leases and interests of the Interested Parties);
(x) no Lease requires the substitution, addition
or exchange of any item of Equipment which would result in
any reduction of the Scheduled Lease Payments pursuant to
such Lease;
(xi) there is only one secured party's original of
each Lease that constitutes "chattel paper" for purposes of
the UCC and such original has not been delivered to any
Person other than the Servicer pursuant to the Pooling and
Servicing Agreement;
(xii) Trans Leasing has duly fulfilled in all
material respects all obligations on its part in connection
with the Leases and has done nothing to materially impair
the rights of TLFC or any Interested Party in the Leases or
the proceeds with respect thereto;
(xiii) to the best of Trans Leasing's knowledge, no
proceedings or investigations are pending or have been
threatened asserting the invalidity of any Lease or seeking
any determination or ruling that might adversely and
materially affect the validity or enforceability of any
Lease;
(xiv) except as set forth in the provisos of
Sections 2.02(e) and 2.03(b), all filings necessary to
evidence the contribution and sale of the Leases to TLFC
have been made in all appropriate jurisdictions;
(xv) none of the Lessees are, to Trans Leasing's
knowledge, the subject of bankruptcy or other insolvency
proceedings;
(xvi) each Lessee's billing address is in the
United States;
(xvii) all payments under the Leases are required to
be made in United States dollars;
(xviii) the substance of each Lease is substantially
similar to one of the forms of Lease in Exhibit C attached
hereto, except that any guaranty provision may have been
varied or deleted; provided that any such variation or
deletion will not cause any representation herein with
respect to such Lease to be untrue and will not reasonably
be expected to adversely affect the transactions
contemplated by this Agreement and the Pooling and Servicing
Agreement;
(xix) each of the Leases satisfies the criteria set
forth on the Lease Criteria Schedule attached hereto;
(xx) the Lease Schedule (as attached hereto) is a
true and complete list of all Leases and each Additional
Lease Schedule will be a true and complete list of all
Additional Leases to be transferred on the related Addition
Date, in each case identified by, among other things, its
Lease Number, its original Equipment cost, the effective
date of such Lease, the original term of such Lease, and the
amount of Scheduled Lease Payments pursuant to such Lease,
in each case as of the Cut-Off Date or the related Addition
Cut-Off Date, respectively; and
(xxi) (A) as of the Closing Date, the Leases
satisfy, as of the Cut-Off Date, the criteria set forth on
the Specified Portfolio Characteristics Schedule attached
hereto and (B) as of any Addition Date, the addition of the
related Additional Leases will not cause any of the criteria
set forth on the attached Specified Portfolio
Characteristics Schedule attached hereto not to be satisfied
as of the related Addition Cut-Off Date or, if any of such
criteria are not satisfied as of the first day of the month
in which the related Addition Date occurs (without giving
effect to the addition of such Additional Leases), such
addition will not increase the amount by which such criteria
are not satisfied (in each case, based on the
characteristics of such Additional Leases as of the related
Addition Cut-Off Date).
(b) Representations and Warranties as to Trans
Leasing. As to Trans Leasing:
(i) Organization and Good Standing. Trans
Leasing is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware, with all requisite corporate power and authority
to own its properties and to conduct its business as
presently conducted;
(ii) Due Qualification. Trans Leasing is
qualified to do business as a foreign corporation, is in
good standing, and has obtained all licenses and approvals
required under the laws of, all states in which the
ownership or lease of its property, the performance of its
obligations pursuant to this Agreement or the conduct of its
business requires such qualification, standing, license or
approval, except to the extent that the failure to so
qualify, maintain such standing or be so licensed or
approved, would not, in the aggregate, materially and
adversely affect the ability of Trans Leasing to comply with
this Agreement;
(iii) Power and Authority. Trans Leasing has the
corporate power and authority to execute and deliver this
Agreement and to carry out its terms, and Trans Leasing has
duly authorized the execution, delivery, and performance of
this Agreement by all requisite corporate action;
(iv) Valid Contribution and Sale; Binding Obliga-
tions. The contributions and sales of the Contributed
Assets, the Closing Date Assets and the Purchased Assets
constitute, and each contribution and sale of any Additional
Assets will constitute, a legal and valid contribution,
assignment, transfer and conveyance to TLFC of all right,
title and interest of Trans Leasing in, to and under such
Assets, and such Assets will be held by TLFC free and clear
of any Lien of any Person claiming through or under Trans
Leasing, except for Liens permitted under, or to be created
by, the Pooling and Servicing Agreement and the Indenture;
and this Agreement constitutes a legal, valid and binding
obligation of Trans Leasing, enforceable against Trans
Leasing in accordance with its terms, except as such
enforceability may be limited by (A) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of
creditors' rights generally and (B) general principles of
equity (whether considered in a suit at law or in equity);
(v) No Violation. The consummation of the
transactions contemplated by, and the performance of the
terms of, this Agreement by Trans Leasing (with or without
the giving of any notice or the lapse of time) will not
(after giving effect to all consents and waivers received on
or prior to the date hereof or the Addition Date, as the
case may be) (A) conflict with, result in any breach of any
of the terms or provisions of or constitute a default under
the certificate of incorporation or by-laws of Trans Leasing
or any term of any indenture, agreement, mortgage, deed of
trust or other instrument to which Trans Leasing is a party
or by which it is bound; (B) result in the creation or
imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument (other than this
Agreement); or (C) violate any legal requirement applicable
to Trans Leasing or any of its properties in any manner;
which conflict, breach, default, Lien or violation would
have a material and adverse effect on the ability of Trans
Leasing to comply with this Agreement;
(vi) No Consent. No consent, approval, authoriza-
tion, order, registration, filing, qualification, license or
permit of or with any Governmental Authority having
jurisdiction over Trans Leasing or any of its properties or
assets is required to be obtained by or with respect to
Trans Leasing in connection with the execution, delivery and
performance by Trans Leasing of this Agreement and the
consummation of the transactions contemplated herein;
(vii) No Proceedings. To the best of Trans
Leasing's knowledge, there are no proceedings or
investigations pending or threatened before any Governmental
Authority having jurisdiction over Trans Leasing or its
properties against Trans Leasing or its properties
(A) asserting the invalidity of this Agreement, (B) seeking
to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any
determination or ruling that might (in the reasonable
judgment of Trans Leasing) materially and adversely affect
the performance by Trans Leasing of its obligations under,
or the validity or enforceability of, this Agreement;
(viii) Insolvency. Trans Leasing is not insolvent
and will not be rendered insolvent by the consummation of
the transactions contemplated by this Agreement;
(ix) Principal Place of Business. Trans Leasing's
principal place of business and chief executive office are
in the State of Illinois, County of Xxxx;
(x) Ability to Perform. At the date hereof,
Trans Leasing does not believe, nor does it have any
reasonable cause to believe, that it cannot perform each and
every covenant contained in this Agreement;
(xi) Fair Consideration. The consideration
received by Trans Leasing in exchange for the contribution
and sale of the Assets contributed and sold on the Initial
Closing Date and the Subsequent Closing Dates was, and for
the contribution and sale of the Assets on the date hereof
and on each Addition Date will be, fair consideration having
value equivalent to or in excess of the value of the Assets
transferred on each such date;
(xii) Bulk Transfer Provisions. The sale,
transfer, assignment and conveyance of the Leases and its
interests in the related Equipment by Trans Leasing
described in this Agreement is not subject to the bulk
transfer or any similar statutory provisions in effect in
any applicable jurisdiction;
(xiii) Transfer Taxes. The sale, transfer,
assignment and conveyance of the Assets by Trans Leasing
described in this Agreement will not result in the
imposition of any tax Lien or any liability of TLFC for any
tax on such sale, transfer, assignment and conveyance; and
(xiv) Common Stock. Trans Leasing owns all of the
Common Stock free and clear of all mortgages, assignments,
pledges, security interests, warrants, options and rights to
purchase.
3.02 Representations and Warranties of TLFC. TLFC
makes the following representations and warranties on which Trans
Leasing has and will rely in making the Required Capital
Contribution and contributing and selling any Assets. Such
representations and warranties speak as of the Closing Date and
each Addition Date, but will survive the contribution and sale of
the Assets to TLFC and the transfer and pledge of the Assets to
the Interested Parties.
(a) Organization and Good Standing. TLFC is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, with all requisite
corporate power and authority to own its properties and to
conduct its business as presently conducted and to enter into and
perform its obligations under this Agreement;
(b) Due Qualification. TLFC is qualified to do
business as a foreign corporation, is in good standing, and has
obtained all licenses and approvals required under the laws of,
all states in which the ownership or lease of its property or the
conduct of its business requires such qualification, standing,
license or approval, except to the extent that the failure to so
qualify, maintain such standing or be so licensed or approved
would not, in the aggregate, materially and adversely affect the
ability of TLFC to perform its obligations under this Agreement;
(c) Power and Authority. TLFC has the corporate
power and authority to execute and deliver this Agreement and to
carry out its terms, and TLFC has duly authorized the execution,
delivery, and performance of this Agreement by all requisite
corporate action;
(d) Binding Obligations. This Agreement consti-
tutes a legal, valid and binding obligation of TLFC, enforceable
in accordance with its terms, except as such enforcement may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other laws now or hereafter
in effect affecting the enforcement of creditors' rights
generally and (ii) general principles of equity (whether
considered in a suit at law or in equity);
(e) No Violation. The consummation of the
transactions contemplated by, and the fulfillment of the terms
of, this Agreement by TLFC (with or without the giving of any
notice or the lapse of time) will not (after giving effect to all
consents and waivers received on or prior to the date hereof or
such Addition Date, as the case may be) (i) conflict with, result
in any breach of any of the terms and provisions of or constitute
a default under the certificate of incorporation or by-laws of
TLFC or any term of any indenture, agreement, mortgage, deed of
trust or other instrument to which TLFC is a party or by which it
is bound; (ii) result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument
(other than this Agreement); or (iii) violate any legal
requirement applicable to TLFC or any of its properties in any
manner; which conflict, breach, default, Lien or violation would
have a material and adverse effect on the ability of TLFC to
comply with this Agreement;
(f) No Proceedings. To the best of TLFC's
knowledge, there are no proceedings or investigations pending or
threatened before any Governmental Authority having jurisdiction
over TLFC or its properties against TLFC or its properties
(i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated
by this Agreement, or (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforce-
ability of, this Agreement;
(g) Insolvency. TLFC is not insolvent and will
not be rendered insolvent by the consummation of the transactions
contemplated by this Agreement and has an adequate amount of
capital to conduct its business in the ordinary course and to
carry out its obligations under this Agreement;
(h) Ability to Perform. As of the date hereof,
TLFC does not believe, nor does it have any reasonable cause to
believe, that it cannot perform each and every covenant contained
in this Agreement;
(i) Common Stock. Trans Leasing is the
registered owner of all the issued and outstanding capital stock
of TLFC, and the Common Stock is validly issued, fully paid and
nonassessable and owned of record by Trans Leasing; and
(j) Places of Business. TLFC's sole places of
business and offices are located in Northbrook, Illinois and
Wilmington, Delaware.
3.03 Purchase of Leases and Equipment by Trans
Leasing. In the event of discovery at any time that a
representation or warranty set forth in Section 3.01 is untrue in
any respect, TLFC (or any Interested Party or other Person to the
extent provided in the Pooling and Servicing Agreement) may by
written notice direct Trans Leasing to purchase each Lease
materially and adversely affected by such untruth, and all
related Equipment, on or prior to the thirtieth day after such
notice is received by Trans Leasing (or such later date as any
Interested Party may specify), and Trans Leasing will purchase
each such Lease and the related Equipment, for the Warranty
Purchase Price, on or prior to such thirtieth (or later) day;
provided that Trans Leasing will not be required to purchase any
such Lease (or the related Equipment) if prior to such thirtieth
(or later) day (i) such untruth has been cured with respect to
such Lease in all material respects and (ii) Trans Leasing
delivers to TLFC (and to other Persons, if any, required by the
Pooling and Servicing Agreement) a certificate of a Responsible
Officer to that effect. In consideration for the purchase of any
such Lease and the related Equipment, Trans Leasing will remit
the Warranty Purchase Price to the Servicer for allocation of
such Warranty Purchase Price pursuant to the terms of the Pooling
and Servicing Agreement or, if not required to be so remitted by
such Agreement, will remit the Warranty Purchase Price to TLFC.
It is understood and agreed that in the event that any
representation or warranty set forth in Section 3.01 is untrue,
the purchase of any affected Lease and the related Equipment as
provided in this Section 3.03 and the indemnification provided in
Section 3.04 will constitute the only remedies available to TLFC
and the Interested Parties in respect of such untruth.
3.04 Indemnification. In addition to any remedy
pursuant to Section 3.03, Trans Leasing agrees to indemnify,
defend and hold TLFC harmless from and against any out of pocket
expense (including interest, penalties, reasonable attorneys'
fees and amounts paid in settlement) to which TLFC may become
subject insofar as such expense arises solely out of or is based
solely upon the untruth of any representation or warranty of
Trans Leasing set forth in Section 3.01. The obligations of
Trans Leasing under this Section 3.04 will be considered to have
been relied upon by TLFC and will survive the execution, delivery
and performance of this Agreement regardless of any investigation
made by TLFC or on its behalf.
ARTICLE IV
COVENANTS OF TRANS LEASING AND TLFC
4.01 Trans Leasing Covenants. Trans Leasing covenants
and agrees with TLFC as follows for the benefit of TLFC and the
Interested Parties:
(a) Merger, Consolidation or Assumption of the
Obligations of Trans Leasing. Any Person (i) into which Trans
Leasing may be merged or consolidated, (ii) resulting from any
merger, conversion or consolidation to which Trans Leasing is a
party, or (iii) succeeding to the business of Trans Leasing
substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every
obligation of Trans Leasing under this Agreement, will be the
successor to Trans Leasing under this Agreement, without the
execution or filing of any document or any further act on the
part of Trans Leasing, TLFC or such Person, anything in this
Agreement to the contrary notwithstanding; provided, however,
that (i) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 3.01 will
have been breached, (ii) Trans Leasing will have delivered to
TLFC a certificate of a Responsible Officer and an Opinion of
Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this
Section 4.01(a) and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have
been complied with and (iii) Trans Leasing will have delivered an
Opinion of Counsel either (A) stating that, in the opinion of
such counsel, all financing statements and continuation
statements and amendments thereto that are necessary fully to
preserve and protect the interests of TLFC in the Leases have
been executed and filed or (B) stating that, in the opinion of
such counsel, no such action is necessary to preserve and protect
such interest.
(b) Limitation of Liability of Trans Leasing and
Others. Trans Leasing and any director, officer, employee or
agent of Trans Leasing may rely in good faith on any document of
any kind submitted by any Person respecting any matters arising
under this Agreement as being prima facie properly executed.
Other than in its capacity as the Servicer pursuant to the
Pooling and Servicing Agreement and except as provided in
Sections 3.04, 4.01(e) and 4.01(i), Trans Leasing will not be
under any obligation to appear in, prosecute or defend any legal
action in any way relating to the Assets that is not incidental
to its obligations as the contributor and seller of the Assets
under this Agreement and that in its opinion may cause it to
incur any expense or liability.
(c) Preservation of Security Interest. Subject
to the provisos contained in Sections 2.02(e) and 2.02(b), Trans
Leasing will execute and file such continuation statements and
any other documents requested by TLFC to be filed or which may be
required to be filed by any legal requirement to preserve fully
and protect the interest of TLFC in, to and under the Assets;
provided, however, that Trans Leasing will not be required to
deliver physical possession of the Lease Files to TLFC and may
retain possession of the Lease Files in its capacity as the
Servicer.
(d) Preservation of Name and Office. Unless
Trans Leasing provides not less than thirty days prior written
notice to TLFC and files such amendments to any previously filed
financing or continuation statements as TLFC may require, Trans
Leasing will not (i) change the location of its principal
executive office, (ii) change its name, identity or corporate
structure in any manner which would make any financing statement
or continuation statement filed by Trans Leasing in accordance
with this Agreement seriously misleading within the meaning of
Article 9-402(7) of the UCC or (iii) delete or otherwise modify
the marking of the Lease Management System referred to in Section
2.02(f) or Section 2.03(c) of this Agreement or in the Pooling
and Servicing Agreement.
(e) Obligations with Respect to Leases; Defense
of Assets. Trans Leasing will do nothing to impair the rights of
TLFC in the Leases or the related Equipment except as it is
expressly permitted to do so in its capacity as the Servicer in
accordance with the terms of the Pooling and Servicing Agreement,
and Trans Leasing will defend the interests of TLFC in the Assets
contributed and sold hereby against all claims of third parties
claiming through or under Trans Leasing.
(f) Compliance with Law. Trans Leasing will
comply, in all material respects, with all legal requirements
applicable to Trans Leasing with respect to the Assets; provided,
however, that Trans Leasing may contest any such legal
requirement in any reasonable manner which will not materially
and adversely affect the rights of TLFC or any Interested Party
in the Assets or the value thereof.
(g) Notification of Breach. Trans Leasing will
advise TLFC, the Servicer (if Trans Leasing is not the Servicer)
and the Indenture Trustee, in reasonable detail, of the
occurrence of any breach by Trans Leasing of any of its
representations, warranties and covenants contained herein,
promptly after it becomes aware of any such breach unless such
breach has been or will be cured in all material respects within
30 days or the related Lease(s) has been repurchased in
accordance with Section 3.03.
(h) Further Assurances. Trans Leasing will make,
execute or endorse, acknowledge and file or deliver to TLFC from
time to time such schedules, confirmatory assignments,
conveyances, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and
take such further steps relating to the Assets and other rights
covered by this Agreement as TLFC may request and reasonably
require.
(i) Indemnification. Trans Leasing agrees to
indemnify, defend and hold TLFC harmless from and against any and
all loss, liability, damage, judgment, claim, deficiency, or
expense (including interest, penalties, reasonable attorneys'
fees and amounts paid in settlement) to which TLFC may become
subject insofar as such loss, liability, damage, judgment, claim,
deficiency or expense arises out of or is based upon a breach by
Trans Leasing of its covenants contained in this Section 4.01.
The obligations of Trans Leasing under this Section 4.01(i) will
be considered to have been relied upon by TLFC and will survive
the execution, delivery and performance of this Agreement
regardless of any investigation made by TLFC or on its behalf.
(j) Insurance Premiums. With respect to any
Lease on which the related Lessee pays insurance premiums
directly to Trans Leasing (or such premiums are otherwise
included in the Scheduled Lease Payments under such Lease), until
such Lease expires, otherwise terminates, is purchased under
Section 3.03 hereof or is charged-off as uncollectible by Trans
Leasing, Trans Leasing shall pay the insurance premiums required
to maintain the insurance on the related Equipment required by
such Lease.
4.02 TLFC Covenants. TLFC covenants and agrees with
Trans Leasing not to disclose to any Person (except as
contemplated by the Pooling and Servicing Agreement) any of the
information contained in the Lease Management System, the Lease
Files, the Lease Schedule or any Additional Lease Schedule,
except as required upon the appointment of a successor Servicer
pursuant to the Pooling and Servicing Agreement or by any legal
requirement. TLFC agrees to take such measures as Trans Leasing
reasonably requests to protect and maintain the security and
confidentiality of such information and, in connection therewith,
will allow Trans Leasing to inspect the applicable security and
confidentiality arrangements during normal business hours. TLFC
will provide Trans Leasing written notice not less than five
Business Days prior to any disclosure which TLFC proposes to make
in accordance with this Section 4.02.
4.03 Assignment; Grant of Security Interest. Trans
Leasing understands that TLFC intends to transfer the Assets
(including certain rights of TLFC under this Agreement) to the
Trust, which will grant a security interest in the Assets to the
Indenture Trustee. Trans Leasing consents to such transfers and
grants. Trans Leasing agrees that the rights of TLFC hereunder
may be exercised by or on behalf of the Interested Parties to the
extent provided in the Pooling and Servicing Agreement or the
Indenture.
ARTICLE V
TERMINATION
5.01 Termination. The respective obligations and
responsibilities of Trans Leasing and TLFC created by this
Agreement will terminate upon the termination of the Pooling and
Servicing Agreement.
5.02 Effect of Termination. No termination, rejection
or failure to assume the executory obligations of this Agreement
in the bankruptcy of Trans Leasing or TLFC will be deemed to
impair or affect the obligations pertaining to any executed
contribution, executed sale or executed obligations, including
breaches of representations and warranties by Trans Leasing or
TLFC prior to termination. Without limiting the foregoing, prior
to termination, the failure of Trans Leasing to pay a Warranty
Purchase Price will not render such contribution, sale or
obligations executory and the continued respective duties of
Trans Leasing and TLFC pursuant to Article IV will not render an
executed sale or contribution executory.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 Amendment. This Agreement may be amended only by
written agreement of TLFC and Trans Leasing.
6.02 Governing Law. This Agreement will be governed
by and construed in accordance with the domestic laws of the
State of New York, without giving effect to any choice of law or
conflict provision or rule (whether of the State of New York or
any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of New York. In
furtherance of the foregoing, the internal law of the State of
New York will control the interpretation and construction of this
Agreement, even in the event that under such jurisdiction's
choice of law or conflict of law analysis the substantive law of
some other jurisdiction would ordinarily apply.
6.03 Notice. Except as otherwise provided in this
Agreement, any notice or other communication herein required or
permitted to be given will be in writing and may be delivered in
person, with receipt acknowledged, or sent by United States mail,
registered or certified, return receipt requested, or by Federal
Express or other nationally recognized overnight courier service,
postage prepaid and confirmation of receipt requested, and
addressed as follows (or at such other address as may be
substituted by notice given as herein provided):
If to TLFC:
TL Lease Funding Corp. IV
c/o The Corporation Trust Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy (which copy will not constitute
notice to TLFC) to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Sugar
If to Trans Leasing:
Trans Leasing International, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy (which copy will not constitute
notice to Trans Leasing) to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Sugar
Every notice, demand, request, consent, approval, declaration or
other communication hereunder will be deemed to have been duly
given or served on the date on which the same will have been
personally delivered, with receipt acknowledged, three (3)
Business Days after the same will have been deposited in the
United States mail or on the next succeeding Business Day if the
same has been sent by Federal Express or other nationally
recognized overnight courier service. Failure or delay in
delivering copies of any notice, demand, request, consent,
approval, declaration or other communication to the persons
designated above to receive copies will in no way adversely
affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.
6.04 Severability of Provisions. If any covenant,
agreement, provision or term of this Agreement is held invalid
for any reason whatsoever, then such covenant, agreement,
provision or term will be deemed severable from the remaining
covenants, agreements, provisions and terms of this Agreement and
will in no way affect the validity or enforceability of the other
provisions of this Agreement.
6.05 Assignment. This Agreement may not be assigned
by Trans Leasing or TLFC, except as otherwise provided herein.
6.06 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of TLFC or Trans
Leasing, any right, remedy, power or privilege under this
Agreement will operate as a waiver of such right, remedy, power
or privilege, nor will any single or partial exercise of any
right, remedy, power or privilege under this Agreement preclude
any other or further exercise of such right, remedy, power or
privilege. The rights, remedies, powers and privileges provided
under this Agreement are cumulative and not exhaustive of any
other rights, remedies, powers and privileges provided by law.
6.07 Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate
counterparts), each of which will be an original, but all of
which will constitute one and the same instrument.
6.08 Binding Effect; Third-Party Beneficiaries. This
Agreement will inure to the benefit of and be binding upon Trans
Leasing, TLFC and their respective successors and permitted
assigns and will also, to the extent expressly provided in
Section 4.03 or elsewhere in this Agreement, inure to the benefit
of the Servicer and the Interested Parties. Except as otherwise
provided in this Agreement, no other Person will have any right
or obligation pursuant to this Agreement.
6.09 Merger and Integration. Except as specifically
stated otherwise in this Agreement, this Agreement sets forth the
entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement.
6.10 Headings. The headings used in this Agreement
are for purposes of reference only and will not otherwise affect
the meaning or interpretation of any provision of this Agreement.
6.11 Schedules and Exhibits. The Schedules and
Exhibits constitute a part of this Agreement and are incorporated
into this Agreement for all purposes.
6.12 No Petition Covenants. Notwithstanding any prior
termination of this Agreement, Trans Leasing and TLFC shall not,
prior to the date which is one year and one day after the final
distribution with respect to the Notes and the Trust Certificate
(each as defined in the Pooling and Servicing Agreement),
acquiesce, petition or otherwise invoke or cause the Issuer (as
defined in Pooling and Servicing Agreement) to invoke the process
of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer 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 Issuer or any
substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
6.13 Confidential Information. TLFC agrees that it
shall neither use nor disclose to any Person the names and
addresses of the Lessees or the vendors of the Equipment, except
in connection with the enforcement of TLFC's rights hereunder,
under the Pooling and Servicing Agreement or under the Assets or
as required by law.
* * * * *
Trans Leasing and TLFC have caused this Amended and
Restated Contribution and Sale Agreement to be duly executed by
their respective officers as of the day and year written above.
TRANS LEASING INTERNATIONAL, INC.
By: ____________________________
Name:
Title:
TL LEASE FUNDING CORP. IV
By: ____________________________
Name:
Title:
EXHIBIT A
FORM OF ASSIGNMENT FOR CLOSING DATE ASSETS
For value received, in accordance with the Amended and
Restated Contribution and Sale Agreement dated as of October 6,
1995 (the "Sale Agreement"), between Trans Leasing International,
Inc., a Delaware corporation ("Trans Leasing"), and TL Lease
Funding Corp. IV, a Delaware corporation ("TLFC"), Trans Leasing
does hereby sell, assign, transfer and otherwise convey unto
TLFC, without recourse, (i) the Closing Date Leases listed on the
Closing Date Lease Schedule attached hereto (including all Trans
Leasing's obligations under such Closing Date Leases) and all
monies due or to become due thereunder after August 31, 1995,
(ii) the related Equipment (other than any licensed products that
may accompany any of such Equipment), (iii) the Lease Files for
such Closing Date Leases, (iv) any Insurance Policies and the
related Insurance Proceeds with respect to such Closing Date
Leases and (v) all income and proceeds relating to the foregoing.
It is the intention of Trans Leasing and TLFC that the
sales, transfers, assignments and conveyances contemplated by
this Assignment constitute a sale of the property described
herein and in the Sale Agreement from Trans Leasing to TLFC and
the beneficial interest in and title to such property will not be
part of Trans Leasing's estate in the event of the filing of a
bankruptcy petition by or against Trans Leasing under any
bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Sale Agreement and is to be governed
by the Sale Agreement.
Capitalized terms used herein and not otherwise defined
will have the meanings assigned to them in the Sale Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of October 6, 1995.
TRANS LEASING INTERNATIONAL, INC.
By: _____________________________
Name:
Title:
EXHIBIT B
FORM OF ASSIGNMENT FOR ADDITIONAL ASSETS
For value received, in accordance with the Amended
Restated Contribution and Sale Agreement dated as of _______ __,
1995 (the "Sale Agreement"), between Trans Leasing International,
Inc., a Delaware corporation ("Trans Leasing") and TL Lease
Funding Corp. IV, a Delaware corporation ("TLFC"), Trans Leasing
does hereby sell, assign, transfer and otherwise convey unto
TLFC, without recourse, (i) the Additional Leases listed on the
Additional Lease Schedule attached hereto (including all Trans
Leasing's obligations under such Additional Leases) and all
monies due or to become due thereunder after [__________], (ii)
the related Equipment (other than any licensed products that may
accompany any of such Equipment), (iii) the Lease Files for such
Additional Leases, (iv) any Insurance Policies and the related
Insurance Proceeds with respect to such Additional Leases and (v)
all income and proceeds relating to the foregoing.
It is the intention of Trans Leasing and TLFC that the
sales, transfers, assignments and conveyances contemplated by
this Assignment constitute a contribution and/or sale of the
property described herein and in the Sale Agreement from Trans
Leasing to TLFC and the beneficial interest in and title to such
property will not be part of Trans Leasing's estate in the event
of the filing of a bankruptcy petition by or against Trans
Leasing under any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Sale Agreement and is to be governed
by the Sale Agreement.
Capitalized terms used herein and not otherwise defined
will have the meanings assigned to them in the Sale Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of _______ __, 199__.
TRANS LEASING INTERNATIONAL, INC.
By: _____________________________
Name:
Title:
EXHIBIT C
FORMS OF LEASE
See Attached.
LEASE SCHEDULE
See Attached.
EXCLUDED LEASE SCHEDULE
See Attached.
LEASE CRITERIA SCHEDULE
1. As of the Cut-Off Date or the applicable Addition Cut-Off Date,
as the case may be, the remaining term of each Lease is
between 6 months and 60 months; provided that there is no Lease
with a term that extends beyond August 31, 2000.
2. As of the Cut-Off Date or the applicable Addition Cut-Off Date,
as the case may be, no unpaid Scheduled Lease Payment
pursuant to any Lease (other than a Skipped Payment, as defined
in the Pooling and Servicing Agreement) has been due and payable
for more than 30 days (other than due to administrative delays,
such as initial xxxxxxxx) and Trans Leasing has received at least
one Scheduled Lease Payment on each Lease.
3. As of the Cut-Off Date or the applicable Addition Cut-Off Date,
as the case may be, no Scheduled Lease Payment on any
Lease was more than 90 days delinquent during the 12-month period
prior to such Date (other than due to administrative delays, such
as initial xxxxxxxx).
SPECIFIED PORTFOLIO CHARACTERISTICS SCHEDULE
1. With respect to the Discounted Lease Balances of
the 25 Leases with the greatest Discounted Lease Balances does
not exceed 10% of the Aggregate Discounted Lease Balance.
2. The sum of the Discounted Lease Balances of all
Leases with respect to which the billing address of the related
Lessees are located in the same state does not exceed 30% of the
Aggregate Discounted Lease Balance.
3. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Equipment is of the same
type (as determined by Trans Leasing in accordance with its
customary procedures) does not exceed 45% of the Aggregate
Discounted Lease Balance.
4. With respect to any Lessee, the aggregate
Discounted Lease Balance of all Leases of such Lessee does not
exceed 0.75% of the Aggregate Discounted Lease Balance.
5. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Equipment was purchased
from one Person (as determined by Trans Leasing in accordance
with its customary procedures) does not exceed 10% of the
Aggregate Discounted Lease Balance.
6. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Lessees operate in the
same industry (as determined by Trans Leasing in accordance with
its customary procedures) does not exceed 30% of the Aggregate
Discounted Lease Balance.
7. The average original acquisition cost of the
Equipment (as capitalized in accordance with GAAP) does not
exceed $20,000.
8. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Lessee is a governmental
agency does not exceed 5% of the Aggregate Discounted Lease
Balance.
9. The sum of the Discounted Lease Balances of all
Leases with respect to which there has been a Skipped Payment (as
defined in the Pooling and Servicing Agreement) prior to the Cut-Off
Date does not exceed 5% of the Aggregate Discounted Lease
Balance as of the Cut-Off Date.
10. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Equipment is motor
vehicles does not exceed 5.5% of the Aggregate Discounted Lease
Balance.
