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PURCHASE AND SALE AGREEMENT
AMONG
ANTIGUA FUNDING CORPORATION
PURCHASER
AT&T CAPITAL CORPORATION
IN ITS INDIVIDUAL CAPACITY AND AS SERVICER
AND
AT&T CAPITAL LEASING SERVICES, INC.
NEWCOURT COMMUNICATIONS FINANCE CORPORATION
(F/K/A AT&T CREDIT CORPORATION)
AND
AT&T COMMERCIAL FINANCE CORPORATION
SELLERS
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DATED AS OF DECEMBER 1, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.....................................................................2
Section 1.1. General.................................................................2
Section 1.2. Specific Terms..........................................................2
Section 1.3. Usage of Terms..........................................................3
Section 1.4. Certain References......................................................3
Section 1.5. No Recourse.............................................................3
Section 1.6. Action by or Consent of Noteholders or Equity Certificateholder.........3
ARTICLE II CONVEYANCE OF THE CONTRACTS.....................................................4
Section 2.1. Conveyance of Contracts and Related Assets..............................4
Section 2.2. Intention of the Parties................................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES..................................................6
Section 3.1. Representations and Warranties of TCC...................................6
Section 3.2. Representations and Warranties of Leasing Services......................8
Section 3.3. Representations and Warranties of Credit Corp..........................10
Section 3.4. Representations and Warranties of CFC..................................12
Section 3.5. Representations and Warranties of Antigua..............................14
ARTICLE IV COVENANTS OF THE SELLERS.......................................................16
Section 4.1. Protection of Title of Antigua and the Trust...........................16
Section 4.2. Other Liens or Interests...............................................18
Section 4.3. Costs and Expenses.....................................................18
Section 4.4. Indemnification........................................................18
Section 4.5. Negative Covenant......................................................21
Section 4.6. Separate Identity......................................................21
ARTICLE V REPURCHASES....................................................................23
Section 5.1. Repurchase of Contracts Upon Breach of Representation
or Warranty............................................................23
Section 5.2. Reassignment of Purchased Contracts and Leased Equipment...............23
Section 5.3. Waivers................................................................24
ARTICLE VI MISCELLANEOUS..................................................................25
Section 6.1. Liability of the Sellers and TCC.......................................25
Section 6.2. Merger or Consolidation of a Seller, TCC or Antigua....................25
Section 6.3. Limitation on Liability of the Sellers, TCC and Other..................25
Section 6.4. The Sellers and TCC May Own Notes or Equity Certificate................26
Section 6.5. Amendment..............................................................26
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Section 6.6. Notices................................................................27
Section 6.7. Merger and Integration.................................................27
Section 6.8. Severability of Provisions.............................................28
Section 6.9. GOVERNING LAW..........................................................28
Section 6.10. Counterparts...........................................................28
Section 6.11. Conveyance of the Contracts to the Trust...............................28
Section 6.12. Nonpetition Covenant...................................................28
Section 6.13. Purchase of Common Stock of Antigua....................................29
SCHEDULES
Schedule A-1 -- Schedule of Lease Contracts and Leased Equipment
Schedule A-2 -- Schedule of Loan Contracts
Schedule B -- Schedule of Representations and Warranties of the Sellers and TCC
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, dated as of December 1, 1998,
executed between Antigua Funding Corporation, a Delaware corporation, as
purchaser ("Antigua"), AT&T Capital Corporation, a Delaware corporation, in its
individual capacity ("TCC"), and as servicer (the "Servicer"), AT&T Capital
Leasing Services, Inc., a Massachusetts corporation ("Leasing Services"),
Newcourt Communications Finance Corporation (f/k/a AT&T Credit Corporation), a
Delaware corporation ("Credit Corp."), and AT&T Commercial Finance Corporation,
a Delaware corporation ("CFC"), as sellers (each a "Seller" and, together, "the
Sellers").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of a Trust Agreement, dated as of
December 1, 1998 (the "Trust Agreement"), between Antigua and Citibank, N.A., as
Owner Trustee, Antigua has formed Newcourt Equipment Trust Securities 1998-2
(the "Trust"), and the Trust has issued the Equity Certificate to Antigua; and
WHEREAS, pursuant to the terms of an Indenture, dated as of
December 1, 1998 (the "Indenture"), between the Trust and The Bank of New York,
as Trustee (the "Indenture Trustee"), the Trust has, on the Closing Date, issued
the Notes (as defined in the Indenture); and
WHEREAS, the Sellers own certain Lease Contracts, and have
previously conveyed to Antigua certain Lease Contracts pursuant to Purchase and
Sale Agreements substantially similar to this Agreement, all as are more
particularly described in Schedule A-1 attached hereto (all subsequent
references herein to "Lease Contracts" being to those so described), and have or
(in the case of those Lease Contracts previously conveyed to Antigua) at the
time of conveyance had an ownership or security interest in the items of
Equipment subject thereto (the "Leased Equipment"), as more particularly
described in Schedule A-1 attached hereto, and the Sellers own certain Loan
Contracts, and have previously conveyed to Antigua certain Loan Contracts
pursuant to Purchase and Sale Agreements substantially similar to this
Agreement, all as are more particularly described in Schedule A-2 attached
hereto (all subsequent references herein to "Loan Contracts" being to those so
described), which create a security interest in the items of equipment subject
thereto (the "Loan Equipment") (the Loan Equipment and the Leased Equipment
being collectively referred to herein as the "Equipment"); and
WHEREAS, pursuant to the terms of a Transfer and Servicing
Agreement, dated as of December 1, 1998 (the "Transfer and Servicing
Agreement"), by and among the Trust, Antigua, as depositor, and TCC, in its
individual capacity and as Servicer, to be executed concurrently with the
execution of this Agreement, Antigua will convey the Contracts to the Trust; and
WHEREAS, pursuant to a Loan Agreement, dated as of December 1,
1998, among the Owner Trustee, the Indenture Trustee, the Depositor, TCC, in its
individual capacity and as Servicer, the Lenders party thereto, and the agent
thereunder, there will be established a Cash Collateral Account for the benefit
of the Noteholders; and
WHEREAS, Antigua has agreed to acquire the Contracts and the
Leased Equipment from the Sellers and the Sellers have agreed to transfer the
Contracts and the Leased Equipment to Antigua; and
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt of which
is acknowledged, Antigua, TCC, the Servicer and the Sellers, intending to be
legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. General. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement. All
capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Transfer and Servicing Agreement or, if
not defined in the Transfer and Servicing Agreement, in the Indenture.
Section 1.2. Specific Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Agreement" means this Purchase and Sale Agreement and all
amendments hereof and supplements hereto.
"Closing Date" means December 17, 1998.
"Contracts" means the Lease Contracts and the Loan Contracts.
"Related Documents" means the Trust Agreement, the Indenture, the
Transfer and Servicing Agreement, the Equity Certificate, the Notes and the Cash
Collateral Account Agreement. The Related Documents to be executed by any party
are referred to herein as "such party's Related Documents," "its Related
Documents" or by a similar expression.
"Repurchase Event" means, with respect to any Contract, the
occurrence of a breach of any of the representations and warranties set forth in
the Schedule of Representations that materially and adversely affects the value
of such Contract.
"Schedule of Contracts" means, collectively, the schedules of
Lease Contracts and Loan Contracts attached hereto as Schedule A-1 and Schedule
A-2, respectively.
"Schedule of Representations" means the Schedule of
Representations and Warranties attached hereto as Schedule B.
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"Trust" means the trust created by the Trust Agreement, the
estate of which consists of the Trust Assets.
"Trust Assets" means the property and proceeds of every
description conveyed pursuant to Section 2.6 of the Trust Agreement and Section
2.1 of the Transfer and Servicing Agreement, together with the Trust Accounts
(including all Eligible Investments therein and all proceeds therefrom), and the
right to withdraw funds from the Cash Collateral Account pursuant to Section
8.06 of the Indenture.
Section 1.3. Usage of Terms. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement or the Transfer
and Servicing Agreement; references to Persons include their permitted
successors and assigns; and the terms "include" or "including" mean "include
without limitation" or "including without limitation."
Section 1.4. Certain References. All references to the Contract
Principal Balance of a Contract as of an Accounting Date shall refer to the
close of business on such day, or as of the first day of a Monthly Period shall
refer to the opening of business on such day. All references to the last day of
a Monthly Period shall refer to the close of business on such day.
Section 1.5. No Recourse. Without limiting the obligations of the
Sellers or TCC hereunder, no recourse may be taken, directly or indirectly,
under this Agreement or any certificate or other writing delivered in connection
herewith or therewith, against any stockholder, officer or director, as such, of
any of Antigua, the Sellers, TCC, the Servicer, the Indenture Trustee or the
Owner Trustee, or of any predecessor or successor of any of Antigua, the
Sellers, TCC, the Servicer, the Indenture Trustee or the Owner Trustee.
Section 1.6. Action by or Consent of Noteholders or Equity
Certificateholder. Whenever any provision of this Agreement refers to action to
be taken, or consented to, by Noteholders or the Equity Certificateholder, such
provision shall be deemed to refer to Noteholders or the Equity
Certificateholder, as the case may be, of record as of the Record Date
immediately preceding the date on which such action is to be taken, or consent
given, by such Noteholders or the Equity Certificateholder, as the case may be.
Solely for the purposes of any action to be taken, or consented to, by
Noteholders, any Note registered in the name of any of Antigua, a Seller or TCC,
or any Affiliate thereof, shall be deemed not to be outstanding, and the related
Principal Balance, as applicable, evidenced thereby shall not be taken into
account in determining whether the requisite Principal Balance necessary to
effect any such action or consent has been obtained; provided, however, that,
solely for the purpose of determining whether the Indenture Trustee or Owner
Trustee is entitled to rely upon any such action or consent, only Notes which
the Indenture Trustee or Owner Trustee knows to be so owned shall be so
disregarded.
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ARTICLE II
CONVEYANCE OF THE CONTRACTS
Section 2.1. Conveyance of Contracts and Related Assets.
(a) Each of the Sellers hereby subscribes to purchase one share
of common stock of Antigua, of the Class specified below, in consideration for
the amount of capital to be contributed by such Seller, all as specified below:
Leasing Services: $415,250,177.24 Class 1998-2-A
Credit Corp.: $787,466,762.23 Class 1998-2-B
CFC: $140,152,286.24 Class 0000-0-X
Xxxxxxx agrees that the capital to be contributed by any Seller may take the
form of assets.
(b) In satisfaction of its subscription agreement in Section
2.1(a) plus additional cash to be received from Antigua, each of the Sellers
hereby sells, transfers, assigns, and otherwise conveys to Antigua, without
recourse (but without limitation of its obligations in this Agreement), and
Antigua hereby acquires, all right, title and interest, including security
interests, whether now owned or hereafter acquired, of each of the Sellers in
and to the following:
(i) the Contracts, including, without limitation, (A) all monies
at any time paid or payable thereon or in respect thereof from and after
the Cut-Off Date, including but not limited to (1) Scheduled Payments
(including those Scheduled Payments due prior to, but not received as
of, the Cut-Off Date, but excluding those Scheduled Payments due on or
after, but received prior to, the Cut-Off Date), (2) Prepayments, (3)
Liquidation Proceeds, (4) Extension Fees, (5) payments to be applied by
the Servicer to the payment of insurance charges, maintenance, taxes or
other similar obligations, and (6) payments to be retained by the
Servicer in payment of Administrative Fees, (B) all security interests
of the lessor or secured party, as the case may be, in the related
Equipment and all present or future leases and other contracts relating
to the Equipment and all revenues, payments, rights to payment, profits,
accounts, chattel paper, products and contract rights arising from or
related to the Equipment or any use thereof or from any such lease or
other contract, (C) all rights of the lessor or secured party, as the
case may be, in all Insurance Policies and all other security for the
payment of amounts due under the Contracts (including all rights, if
any, the lessor or the secured party may have against vendors and other
third parties for payments of such amounts), (D) all items contained in
the related Contract Files and any and all other documents that are kept
on file in accordance with the applicable Seller's customary procedures
relating to the Contracts, and (E) any and all proceeds of any and all
of the foregoing; and
(ii) the Leased Equipment and all proceeds thereof, including in
any event and without limitation, all present and future leases and
other contracts relating to the Leased
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Equipment and all revenues, payments, rights to payment, profits,
accounts, chattel paper, products and contract rights arising from or
related to the Lesed Equipment or any use thereof or from any such lease
or other contract, and any and all proceeds of any and all of the
foregoing.
(C) ANTIGUA ACKNOWLEDGES THAT THE SELLERS ARE TRANSFERRING THE
LEASED EQUIPMENT "AS-IS, WHERE-IS," AND THAT THE SELLERS MAKE NO REPRESENTATION,
EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED EQUIPMENT, INCLUDING WITHOUT
LIMITATION ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 2.2. Intention of the Parties. The execution and delivery
of this Agreement shall constitute an acknowledgment by each of the Sellers, TCC
and Antigua that they intend that each assignment and transfer herein
contemplated constitute a sale and assignment outright, and not for security, of
the property described in Section 2.1(b), conveying good title thereto free and
clear of any Liens, from the Sellers to Antigua, and that all such property
shall not be a part of the estate of any Seller or TCC in the event of the
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding,
or other proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to, any Seller or TCC.
In the event that such conveyance is determined to be made as security for a
loan made by Antigua, the Trust, the Equity Certificateholder or the Noteholders
to the Sellers or TCC, the Sellers and TCC hereby grant to Antigua a security
interest in all of the Sellers' and TCC's right, title and interest in and to
the property described in Section 2.1(b) to secure the loan determined to have
been made to the Sellers or TCC and the payment and performance of the other
obligations of the Sellers and TCC under this Agreement, and agree that in such
event this Agreement shall constitute a security agreement under applicable law.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of TCC. TCC makes the
following representations and warranties, on which Antigua relies in purchasing
the Contracts and in transferring the Contracts to the Trust under the Transfer
and Servicing Agreement. Such representations are made as of the Closing Date,
but shall survive the sale, transfer and assignment of the Contracts hereunder
and the transfer of the Contracts by Antigua to the Trust under the Transfer and
Servicing Agreement. TCC and Antigua agree that Antigua will assign to the Trust
all of Antigua's rights under this Agreement at the Closing Date and that the
Trust will thereafter be entitled to enforce this Agreement against TCC in the
Trust's own name.
(a) Schedule of Representations. With respect to each Contract
and the related Equipment, the representations and warranties set forth
on the Schedule of Representations are true and correct as of the date
specified therein.
(b) Organization and Good Standing. TCC has been duly organized
and is validly existing as a corporation in good standing under the laws
of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are currently owned and
such business is currently conducted, and had at all relevant times, and
now has, power, authority and legal right to acquire, own and sell the
Contracts and interests in the related Equipment transferred to Antigua.
(c) Due Qualification. TCC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in each jurisdiction in which the ownership or
lease of its property or the conduct of its business requires such
qualification and in which the failure to so qualify would have a
material adverse impact on its business or financial condition.
(d) Power and Authority. TCC has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively, and the execution,
delivery and performance of this Agreement and all of TCC's Related
Documents have been duly authorized by TCC by all necessary corporate
action.
(e) No Consents. TCC holds all necessary licenses, certificates
and permits from all government authorities necessary for conducting its
business as it is presently conducted, and is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
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(f) Valid Sale; Binding Obligations. This Agreement and each of
TCC's Related Documents have been duly executed and delivered, and
effect a valid sale, transfer and assignment of the Contracts and the
Seller's interest in the related Equipment, enforceable against TCC, and
creditors of and purchasers from TCC; and this Agreement and each of
TCC's Related Documents constitute legal, valid and binding obligations
of TCC, enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(g) No Violation. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement and
the Related Documents and the fulfillment of the terms of this Agreement
and the Related Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without
notice or lapse of time, or both) a default under, the certificate of
incorporation or bylaws of TCC, or any indenture, agreement, mortgage,
deed of trust or other instrument to which TCC is a party or by which it
is bound, or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, the Transfer and Servicing Agreement and the Indenture, or
violate any law, order, rule or regulation applicable to TCC of any
court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over TCC or
any of its properties.
(h) No Proceedings. There are no proceedings or investigations
pending or, to the knowledge of TCC, threatened against TCC, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over TCC or any
properties of TCC (i) asserting the invalidity of this Agreement or any
of the Related Documents, (ii) seeking to prevent the issuance of the
Notes or the Equity Certificate or the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by TCC of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents or (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of,
or seeking to impose any excise, franchise, transfer or similar tax
upon, the transfer and acquisition of the Contracts hereunder or under
the Transfer and Servicing Agreement.
(i) Chief Executive Offices. The chief executive office of TCC is
located at 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx, and the offices
where TCC keeps its records concerning the Contracts and related
documents are in Parsippany, New Jersey.
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Section 3.2. Representations and Warranties of Leasing Services.
Leasing Services makes the following representations and warranties, on which
Antigua relies in purchasing the Contracts and in transferring the Contracts to
the Trust under the Transfer and Servicing Agreement. Such representations are
made as of the Closing Date, but shall survive the sale, transfer and assignment
of the Contracts hereunder and the transfer thereof by Antigua to the Trust
under the Transfer and Servicing Agreement. Leasing Services and Antigua agree
that Antigua will assign to the Trust all of Antigua's rights under this
Agreement and that the Trust will thereafter be entitled to enforce this
Agreement against Leasing Services in the Trust's own name.
(a) Schedule of Representations. With respect to each Contract
and its interest in the related Equipment sold by Leasing Services to
Antigua hereunder, the representations and warranties set forth on the
Schedule of Representations are true and correct as of the date
specified therein.
(b) Organization and Good Standing. Leasing Services has been
duly organized and is validly existing as a corporation in good standing
under the laws of the Commonwealth of Massachusetts, with power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is currently conducted,
and had at all relevant times, and now has, power, authority and legal
right to acquire, own and sell the Contracts and its interest in the
related Equipment sold by Leasing Services to Antigua hereunder.
(c) Due Qualification. Leasing Services is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in each jurisdiction in which the
ownership or lease of its property or the conduct of its business
requires such qualification and in which the failure to so comply would
have a material adverse impact on its business or financial condition.
(d) Power and Authority. Leasing Services has the power and
authority to execute and deliver this Agreement and its Related
Documents and to carry out its terms and their terms, respectively;
Leasing Services has full power and authority to sell and assign the
Contracts to be sold and assigned to and deposited with Antigua
hereunder and has duly authorized such sale and assignment to Antigua by
all necessary corporate action; and the execution, delivery and
performance of this Agreement and all of Leasing Services's Related
Documents have been duly authorized by Leasing Services by all necessary
corporate action.
(e) No Consents. Leasing Services holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or declaration
with, any governmental authority, bureau or agency in connection with
the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents,
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licenses, approvals or authorizations, or registrations or declarations,
as shall have been obtained or filed, as the case may be, prior to the
Closing Date.
(f) Valid Sale; Binding Obligations. This Agreement and each of
Leasing Services's Related Documents have been duly executed and
delivered, and effect a valid sale, transfer and assignment of the
Contracts and Leasing Services' interest in the related Equipment,
enforceable against Leasing Services, and creditors of and purchasers
from Leasing Services; and this Agreement and each of Leasing Services's
Related Documents constitute legal, valid and binding obligations of
Leasing Services, enforceable in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(g) No Violation. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement and
the Related Documents and the fulfillment of the terms of this Agreement
and the Related Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without
notice or lapse of time, or both) a default under, the articles of
incorporation or bylaws of Leasing Services, or any indenture,
agreement, mortgage, deed of trust or other instrument to which Leasing
Services is a party or by which it is bound, or result in the creation
or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, the Transfer and Servicing
Agreement and the Indenture, or violate any law, order, rule or
regulation applicable to Leasing Services of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Leasing Services or any of its
properties.
(h) No Proceedings. There are no proceedings or investigations
pending or, to the knowledge of Leasing Services, threatened against
Leasing Services, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over Leasing Services or any properties of Leasing Services
(i) asserting the invalidity of this Agreement or any of the Related
Documents, (ii) seeking to prevent the issuance of the Notes or the
Equity Certificate or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by Leasing Services of its obligations under, or
the validity or enforceability of, this Agreement or any of the Related
Documents or (iv) seeking to affect adversely the federal income tax or
other federal, state or local tax attributes of, or seeking to impose
any excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Contracts hereunder or under the Transfer and
Servicing Agreement.
(i) Chief Executive Offices. The chief executive office of
Leasing Services is located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, and the offices where
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Leasing Services keeps its records concerning the Contracts and related
documents are in Framingham, Massachusetts. Leasing Services also has an
office at 0 Xxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx.
Section 3.3. Representations and Warranties of Credit Corp.
Credit Corp. makes the following representations and warranties, on which
Antigua relies in purchasing the Contracts and in transferring the Contracts to
the Trust under the Transfer and Servicing Agreement. Such representations are
made as of the Closing Date but shall survive the sale, transfer and assignment
of the Contracts hereunder and the transfer thereof by Antigua to the Trust
under the Transfer and Servicing Agreement. Credit Corp. and Antigua agree that
Antigua will assign to the Trust all of Antigua's rights under this Agreement
and that the Trust will thereafter be entitled to enforce this Agreement against
Credit Corp. in the Trust's own name.
(a) Schedule of Representations. With respect to each Contract
and its interest in the related Equipment sold by Credit Corp. to
Antigua hereunder, the representations and warranties set forth on the
Schedule of Representations are true and correct as of the date
specified therein.
(b) Organization and Good Standing. Credit Corp. has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to own
its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and now has, power, authority and legal right to
acquire, own and sell the Contracts and its interest in the related
Equipment sold by Credit Corp. to Antigua hereunder.
(c) Due Qualification. Credit Corp. is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in each jurisdiction in which the
ownership or lease of its property or the conduct of its business
requires such qualification and in which the failure to so qualify would
have a material adverse impact on its business or financial condition.
(d) Power and Authority. Credit Corp. has the power and authority
to execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; Credit Corp. has full
power and authority to sell and assign the Contracts to be sold and
assigned to and deposited with Antigua hereunder and has duly authorized
such sale and assignment to Antigua by all necessary corporate action;
and the execution, delivery and performance of this Agreement and all of
Credit Corp.'s Related Documents have been duly authorized by Credit
Corp. by all necessary corporate action.
(e) No Consents. Credit Corp. holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or declaration
with, any governmental authority, bureau or agency in connection with
the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents,
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licenses, approvals or authorizations, or registrations or declarations,
as shall have been obtained or filed, as the case may be, prior to the
Closing Date.
(f) Valid Sale; Binding Obligations. This Agreement and each of
Credit Corp.'s Related Documents have been duly executed and delivered,
and effect a valid sale, transfer and assignment of the Contracts and
Credit Corp.'s interest in the related Equipment, enforceable against
Credit Corp., and creditors of and purchasers from Credit Corp.; and
this Agreement and each of Credit Corp.'s Related Documents constitute
legal, valid and binding obligations of Credit Corp., enforceable in
accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(g) No Violation. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement and
the Related Documents and the fulfillment of the terms of this Agreement
and the Related Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without
notice or lapse of time, or both) a default under, the certificate of
incorporation or bylaws of Credit Corp., or any indenture, agreement,
mortgage, deed of trust or other instrument to which Credit Corp. is a
party or by which it is bound, or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement, the Transfer and Servicing Agreement and the
Indenture, or violate any law, order, rule or regulation applicable to
Credit Corp. of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over Credit Corp. or any of its properties.
(h) No Proceedings. There are no proceedings or investigations
pending or, to the knowledge of Credit Corp., threatened against Credit
Corp., before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over Credit
Corp. or any properties of Credit Corp. (i) asserting the invalidity of
this Agreement or any of the Related Documents, (ii) seeking to prevent
the issuance of the Notes or the Equity Certificate or the consummation
of any of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Credit Corp. of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents or (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of,
or seeking to impose any excise, franchise, transfer or similar tax
upon, the transfer and acquisition of the Contracts hereunder or under
the Transfer and Servicing Agreement.
(i) Chief Executive Offices. The chief executive office of Credit
Corp. is located at 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx and the
offices where Credit Corp.
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keeps its records concerning the Contracts and related documents are in
Parsippany, New Jersey.
Section 3.4. Representations and Warranties of CFC. CFC makes the
following representations and warranties, on which Antigua relies in purchasing
the Contracts and in transferring the Contracts to the Trust under the Transfer
and Servicing Agreement. Such representations are made as of the Closing Date
but shall survive the sale, transfer and assignment of the Contracts hereunder
and the transfer thereof by Antigua to the Trust under the Transfer and
Servicing Agreement. CFC and Antigua agree that Antigua will assign to the Trust
all of Antigua's rights under this Agreement and that the Trust will thereafter
be entitled to enforce this Agreement against CFC in the Trust's own name.
(a) Schedule of Representations. With respect to each Contract
and its interest in the related Equipment sold by CFC to Antigua
hereunder, the representations and warranties set forth on the Schedule
of Representations are true and correct as of the date specified
therein.
(b) Organization and Good Standing. CFC has been duly organized
and is validly existing as a corporation in good standing under the laws
of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are currently owned and
such business is currently conducted, and had at all relevant times, and
now has, power, authority and legal right to acquire, own and sell the
Contracts and its interest in the related Equipment sold by CFC to
Antigua hereunder.
(c) Due Qualification. CFC is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in each jurisdiction in which the ownership or
lease of its property or the conduct of its business requires such
qualification and in which the failure to so qualify would have a
material adverse impact on its business or financial condition.
(d) Power and Authority. CFC has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively; CFC has full power
and authority to sell and assign the Contracts to be sold and assigned
to and deposited with Antigua hereunder and has duly authorized such
sale and assignment to Antigua by all necessary corporate action; and
the execution, delivery and performance of this Agreement and all of
CFC's Related Documents have been duly authorized by CFC by all
necessary corporate action.
(e) No Consents. CFC holds all necessary licenses, certificates
and permits from all government authorities necessary for conducting its
business as it is presently conducted, and is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents,
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licenses, approvals or authorizations, or registrations or declarations,
as shall have been obtained or filed, as the case may be, prior to the
Closing Date.
(f) Valid Sale; Binding Obligations. This Agreement and each of
CFC's Related Documents have been duly executed and delivered, and
effect a valid sale, transfer and assignment of the Contracts and CFC's
interest in the related Equipment, enforceable against CFC, and
creditors of and purchasers from CFC; and this Agreement and each of
CFC's Related Documents constitute legal, valid and binding obligations
of CFC, enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(g) No Violation. The execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement and
the Related Documents and the fulfillment of the terms of this Agreement
and the Related Documents shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or without
notice or lapse of time, or both) a default under, the certificate of
incorporation or bylaws of CFC, or any indenture, agreement, mortgage,
deed of trust or other instrument to which CFC is a party or by which it
is bound, or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, the Transfer and Servicing Agreement and the Indenture, or
violate any law, order, rule or regulation applicable to CFC of any
court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over CFC or
any of its properties.
(h) No Proceedings. There are no proceedings or investigations
pending or, to the knowledge of CFC, threatened against CFC, before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over CFC or any
properties of CFC (i) asserting the invalidity of this Agreement or any
of the Related Documents, (ii) seeking to prevent the issuance of the
Notes or the Equity Certificate or the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by CFC of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Related Documents or (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of,
or seeking to impose any excise, franchise, transfer or similar tax
upon, the transfer and acquisition of the Contracts hereunder or under
the Transfer and Servicing Agreement.
(i) Chief Executive Offices. The chief executive office of CFC is
located at 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx, and the offices
where CFC keeps its records concerning the Contracts and related
documents are in Parsippany, New Jersey.
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Section 3.5. Representations and Warranties of Antigua. Antigua
makes the following representations and warranties, on which each of the Sellers
and TCC relies in selling, assigning, transferring and conveying the Contracts
to Antigua hereunder. Such representations are made as of the Closing Date but
shall survive the sale, transfer and assignment of the Contracts hereunder and
the transfer thereof by Antigua to the Trust under the Transfer and Servicing
Agreement.
(a) Organization and Good Standing. Antigua has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Delaware, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and has, full power, authority and legal right to
acquire and own the Contracts and to transfer the Contracts to the Trust
pursuant to the Transfer and Servicing Agreement.
(b) Due Qualification. Antigua is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in each jurisdiction where the failure
to do so would materially and adversely affect (i) Antigua's ability to
acquire the Contracts, (ii) the validity or enforceability of the
Contracts or (iii) Antigua's ability to perform its obligations
hereunder and under the Related Documents.
(c) Power and Authority. Antigua has the power and authority to
execute and deliver this Agreement and its Related Documents and to
carry out its terms and their terms, respectively, and to acquire the
Contracts and the Equipment; and the execution, delivery and performance
of this Agreement and its Related Documents and all of the documents
required pursuant hereto or thereto have been duly authorized by Antigua
by all necessary action.
(d) No Consents. Antigua holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or declaration
with, any governmental authority, bureau or agency in connection with
the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(e) Binding Obligation. This Agreement and each of Antigua's
Related Documents constitutes a legal, valid and binding obligation of
Antigua, enforceable against Antigua in accordance with its terms; and
this Agreement and each of Antigua's Related Documents constitute legal,
valid and binding obligations of Antigua, enforceable in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by equitable
limitations on the availability
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of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(f) No Violation. The execution, delivery and performance by
Antigua of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents do
not and will not conflict with, result in any breach of any of the terms
and provisions of or constitute (with or without notice or lapse of
time, or both) a default under the certificate of incorporation or
bylaws of Antigua, or any indenture, agreement, mortgage, deed of trust
or other instrument to which Antigua is a party or by which Antigua is
bound or to which any of its properties are subject, or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument (other than the Transfer and Servicing Agreement and
the Indenture), or violate any law, order, rule or regulation,
applicable to Antigua or its properties, of any federal or state
regulatory body or any court, administrative agency, or other
governmental instrumentality having jurisdiction over Antigua or any of
its properties.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Antigua, threatened against Antigua,
before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality having jurisdiction over
Antigua or its properties: (i) asserting the invalidity of this
Agreement or any of the Related Documents, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement
or any of the Related Documents, (iii) seeking any determination or
ruling that might materially and adversely affect the performance by
Antigua of its obligations under, or the validity or enforceability of,
this Agreement or any of the Related Documents or (iv) that may
adversely affect the federal or state income tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Contracts hereunder or the transfer
of the Contracts to the Trust pursuant to the Transfer and Servicing
Agreement.
(h) Chief Executive Offices. The chief executive office of
Antigua is located at 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx, and the
offices where Antigua keeps its records concerning the Contracts and
related documents are in Parsippany, New Jersey.
In the event of any breach of a representation and warranty made by Antigua
hereunder, each of the Sellers and TCC covenants and agrees that (i) it will not
take any action or pursue any remedy that it may have hereunder, in law, in
equity or otherwise, until a year and a day have passed since the date on which
all Notes and Certificates issued by the Trust, or a trust or similar vehicle
formed by Antigua, have been paid in full, and (ii) any remedy it may have
hereunder is subject to Section 6.12. Each of the Sellers, TCC and Antigua agree
that damages will not be an adequate remedy for breach of the foregoing covenant
and that this covenant may be specifically enforced by Antigua or by the Owner
Trustee on behalf of the Trust.
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ARTICLE IV
COVENANTS OF THE SELLERS
Section 4.1. Protection of Title of Antigua and the Trust.
(a) At or prior to the Closing Date, Leasing Services shall have
filed or caused to be filed UCC-1 financing statements, executed by Leasing
Services, as seller or debtor, naming Antigua as secured party and the Trust as
assignee and (i) describing the Contracts and other property described in
Section 2.1 as collateral, filed with the office of the Secretary of State of
the Commonwealth of Massachusetts and in the appropriate filing office in
Middlesex County, and (ii) describing the Leased Equipment as collateral, filed
with the appropriate filing office in each jurisdiction where Leased Equipment
is located (other than Tennessee and Maryland). Leasing Services shall deliver
(or cause to be delivered) to Antigua, the Owner Trustee and the Indenture
Trustee file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing. In the event that
Leasing Services fails to perform its obligations under this subsection, Antigua
or the Owner Trustee may do so at the expense of TCC, and Leasing Services
hereby grants to Antigua and the Owner Trustee its power of attorney to sign, in
the name of Leasing Services, any such financing statements.
(b) At or prior to the Closing Date, Credit Corp. shall have
filed or caused to be filed UCC-1 financing statements, executed by Credit
Corp., as seller or debtor, naming Antigua as secured party and the Trust as
assignee and (i) describing the Contracts and other property described in
Section 2.1 as collateral, with the office of the Secretary of State of the
State of New Jersey, and (ii) describing the Leased Equipment as collateral,
filed with the appropriate filing office in each jurisdiction where Leased
Equipment is located (other than Tennessee and Maryland). Credit Corp. shall
deliver (or cause to be delivered) to Antigua, the Owner Trustee and the
Indenture Trustee file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing. In the
event that Credit Corp. fails to perform its obligations under this subsection,
Antigua or the Owner Trustee may do so at the expense of TCC, and Credit Corp.
hereby grants to Antigua and the Owner Trustee its power of attorney to sign, in
the name of Credit Corp., any such financing statements.
(c) At or prior to the Closing Date, CFC shall have filed or
caused to be filed UCC-1 financing statements, executed by CFC, as seller or
debtor, naming Antigua as secured party and the Trust as assignee and (i)
describing the Contracts and other property described in Section 2.1 as
collateral, with the office of the Secretary of State of the State of New
Jersey, and (ii) describing the Leased Equipment as collateral, filed with the
appropriate filing office in each jurisdiction where Leased Equipment is located
(other than Tennessee and Maryland). CFC shall deliver (or cause to be
delivered) to Antigua, the Owner Trustee and the Indenture Trustee filestamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing. In the event that CFC fails to perform its
obligations under this subsection, Antigua or the Owner Trustee may do so at the
expense of TCC, and CFC hereby grants to Antigua and the Owner Trustee its power
of attorney to sign, in the name of CFC, any such financing statements.
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(d) If any of the Sellers or TCC change its name, identity, or
corporate structure in any manner that would, could or might make any financing
statement or continuation statement filed by such Seller or TCC (or by Antigua
or the Owner Trustee on behalf of such Seller or TCC) in accordance with
paragraphs (a)-(c) above seriously misleading within the meaning of 'SS'
9-402(7) of the UCC, it shall give Antigua and the Owner Trustee written notice
thereof no later than 10 days following the occurrence of such change, and shall
file appropriate amendments to all such previously filed financing statements
and continuation statements within the time period required by the UCC. In the
event that any of the Sellers or TCC fails to perform its obligations under this
paragraph, Antigua or the Owner Trustee may do so at the expense of TCC, and
each of the Sellers and TCC each hereby grant to Antigua and the Owner Trustee
its power of attorney to sign, in the name of such Seller or TCC, as applicable,
any such amendments.
(e) If any of the Sellers or TCC relocate its principal executive
office and, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement, it shall give Antigua,
the Indenture Trustee and the Owner Trustee written notice thereof; and shall
promptly file such appropriate amendments or financing statements within the
time period required by the UCC. In the event that any of the Sellers or TCC
fails to perform its obligations under this paragraph, Antigua or the Owner
Trustee may do so at the expense of TCC, and each of the Sellers and TCC each
hereby grant to Antigua and the Owner Trustee its power of attorney to sign, in
the name of such Seller or TCC, as applicable, any such amendments or financing
statements.
(f) Each of the Sellers and TCC shall at all times maintain its
principal executive office, and any office from which it services Contracts,
within the United States of America.
(g) Each of the Sellers shall maintain its computer systems so
that, from and after the time of sale under this Agreement of the Contracts, the
Leased Equipment and the other items described in Section 2.1(b) to Antigua, and
the conveyance of the Contracts by Antigua to the Trust, the master computer
records (including archives) of each of the Sellers that shall refer to a
Contract, any Leased Equipment or any of the other items described in Section
2.1(b) indicate clearly that such Contract, Leased Equipment or other item
described in Section 2.1(b) has been sold to Antigua and that such Contract has
been conveyed by Antigua to the Trust. Indication of the Trust's ownership of a
Contract shall be deleted from or modified on any of the Sellers' computer
systems when, and only when, the Contract has been paid in full, liquidated
(including receipt of all recoveries reasonably expected to be collected) or
purchased by the Depositor or TCC.
(h) If at any time any of the Sellers shall propose to sell,
grant a security interest in, or otherwise transfer any interest in lease
contracts or loan contracts of a character similar to the Contracts to any
prospective purchaser, lender or other transferee, such Seller shall give to
such prospective purchaser, lender, or other transferee computer tapes, records,
or printouts (including any restored from archives) that, if they shall refer in
any manner whatsoever to
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any Contract, shall indicate clearly that such Contract has been sold to Antigua
and is owned by the Trust. Each Seller, TCC and Antigua agree that, if any one
of them receives an inquiry from a bona fide potential creditor regarding
whether any lease contract, loan contract or item of equipment is identified on
the Schedule of Contracts, they will instruct the Indenture Trustee to disclose
the contents of the Schedule of Contracts to such potential creditor in
accordance with the provisions of Section 11.17 of the Indenture.
(i) If any Seller receives payments in respect of Contracts, any
Leased Equipment or any of the other items described in Section 2.1(b), such
Seller agrees to pay or cause to be paid to the Servicer all such payments as
soon as practicable after identification thereof, but in no event later than two
Business Days after receipt thereof by such Seller.
(j) Each Seller shall notify Antigua and the Indenture Trustee
within three Business Days after becoming aware of any Lien on any Contract,
Leased Equipment or other item described in Section 2.1(b), other than the
conveyances hereunder or under the Transfer and Servicing Agreement.
(k) Each Seller will promptly pay and discharge all taxes,
assessments, levies and other governmental charges imposed on it which may
materially and adversely affect any of the Contracts, Leased Equipment or other
items described in Section 2.1(b), or Antigua's rights with respect thereto.
(l) Each Seller hereby agrees that it will perform its
obligations under the agreements relating to the Contracts in conformity with
its customary and usual policies and procedures relating to the Contracts.
(m) No later than 10 days after the Closing Date, the Sellers and
TCC shall deliver to Antigua, the Owner Trustee and the Indenture Trustee a
written certification that all notifications and consents required by paragraph
(J) in the Schedule of Representations hereto have been given or obtained, as
applicable.
Section 4.2. Other Liens or Interests. Except for the conveyances
hereunder, with respect to any Contract, the Sellers will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on such Contract or any interest therein, and the
Sellers shall defend the right, title, and interest of Antigua and the Trust in
and to such Contract against all claims of third parties claiming through or
under any of the Sellers.
Section 4.3. Costs and Expenses. Each Seller and TCC shall pay
all reasonable costs and disbursements in connection with the performance of its
obligations hereunder and its Related Documents.
Section 4.4. Indemnification. Each of the Sellers, acting
severally and not jointly, and TCC, as applicable, shall defend, indemnify and
hold harmless Antigua, the Trust, the Owner Trustee, the Indenture Trustee, the
Noteholders and the Equity Certificateholder from and against:
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(a) any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from any breach of any representations
and warranties of such Seller or TCC, as applicable, contained herein (other
than those set forth in the Schedule of Representations, the exclusive remedies
for which are specified in Section 5.1);
(b) any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the use, ownership or operation of
any item of Equipment (notwithstanding the disclaimer of Section 2.1(c)); and,
in addition, each of the Sellers and TCC shall cause Antigua and the Trust, as
their interests may appear, to be named as additional insureds under its
liability insurance policies;
(c) any and all costs, expenses, losses, damages, claims and
liabilities arising out of or resulting from any action taken, or failed to be
taken, by it in respect of any portion of the Trust Assets other than any action
taken in accordance with this Agreement or any Related Document;
(d) any taxes that may at any time be asserted against Antigua,
the Trust, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Equity Certificateholder with respect to the transactions contemplated in this
Agreement, including, without limitation, any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege, or license
taxes (but not including any taxes asserted with respect to, and as of the date
of, the sale, transfer and assignment of the Contracts to Antigua and of the
Trust Assets to the Trust or the issuance and original sale of the Notes or the
Equity Certificate, or asserted with respect to ownership of the Contracts or
the Trust Assets, which shall be indemnified by the Sellers and TCC pursuant to
clause (e) below), or federal, state or other income taxes, arising out of
distributions on the Notes or the Equity Certificate or transfer taxes arising
in connection with the transfer of the Notes or the Equity Certificate) and
costs and expenses in defending against the same, arising or imposed against
such Persons by reason of the acts to be performed by such Seller or TCC, as
applicable, under this Agreement;
(e) any taxes which may at any time be asserted against such
Persons with respect to, and as of the date of, the conveyance or ownership of
the Contracts and the conveyance or ownership of the Trust Assets under the
Purchase Agreement or the Transfer and Servicing Agreement or the issuance and
original sale of the Notes and the Equity Certificate, including, without
limitation, any sales, gross receipts, personal property, tangible or intangible
personal property, privilege or license taxes (but not including any federal or
other income taxes, including franchise taxes, arising out of the transactions
contemplated hereby or transfer taxes arising in connection with the transfer of
Notes or Equity Certificate) and costs and expenses in defending against the
same, arising or imposed against such Persons;
(f) any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon Antigua, the Owner Trustee, the
Trust, the Indenture Trustee, the Noteholders and the Equity Certificateholder
through the negligence, willful misfeasance, or bad faith of such Seller or TCC,
as applicable, in the performance of its duties under this Agreement or by
reason of reckless
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disregard of the obligations and duties of such Seller or TCC, as applicable,
under this Agreement;
(g) any loss, liability or expense incurred by reason of the
violation by such Seller or TCC, as applicable, of federal or state securities
laws in connection with the registration or the sale of the Notes and the Equity
Certificate; and
(h) any loss, liability or expense imposed upon, or incurred by,
Antigua, the Owner Trustee, the Indenture Trustee, the Trust, the Noteholders or
the Equity Certificateholder as a result of the failure of any Contract, or the
sale of the related Equipment, to comply with all requirements of applicable
law, but only to the extent such loss, liability or expense is not covered by
the repurchase of such Contract and Equipment as required by Section 5.1.
Indemnification under this Section 4.4 shall include reasonable
fees and expenses of counsel and expenses of litigation and shall survive
termination of the Trust. The indemnity obligations hereunder shall be in
addition to any obligation that any Seller or TCC, as applicable, may otherwise
have.
Promptly after receipt by an indemnified party under this Section
4.4 of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. In the event an indemnifying party allows the indemnified party
to assume the defense of any action brought against such indemnified party, the
indemnifying party will pay or reimburse the expenses of such indemnified party
in such defense in a timely fashion. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
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Section 4.5. Negative Covenant. TCC and the Sellers (a) shall not
engage in any transaction or series of transactions or otherwise take any action
or omit to take any action which could result in a determination that any Seller
shall have received less than reasonably equivalent value for the transfer and
conveyance of the Contracts and the other property described in Section 2.1(b)
to Antigua either on the Closing Date or thereafter and (b) in any event, shall
not use the proceeds received from the transfer and conveyance of the Contracts
and the other property described in Section 2.1(b) either on the Closing Date or
thereafter (i) to pay any dividend or make any distribution on or in respect of
its capital stock or (ii) to purchase, redeem or otherwise acquire or retire for
value any of its capital stock or the capital stock of any of its affiliates
(other than any of its wholly owned subsidiaries or a corporation which by
virtue thereof would become a wholly owned subsidiary of the Seller), if, in the
case of either (i) or (ii), at the time of any such action and after giving
effect thereto (x) the present fair saleable value of the assets of such Seller
or TCC is less than the amount that would be required to be paid on or in
respect of such Seller's or TCC's total liabilities (including a reasonable
estimate of its contingent liabilities (net of tax benefits to the extent
reasonably likely to be realized)), (y) the assets of such Seller or TCC
constitute an unreasonably small capital to carry out such Seller's or TCC's
business as it is then conducted or as such Seller or TCC then intends to
conduct its business or (z) such Seller or TCC has incurred, intends to incur,
or believes that it will incur, debts that would be beyond such Seller's or
TCC's ability to pay as they mature.
Section 4.6. Separate Identity.
(a) TCC shall take all actions required to maintain Antigua's
status as a separate legal entity, including, without limitation, (i) not
holding Antigua out to third parties as other than an entity with assets and
liabilities distinct from TCC and the Sellers; (ii) not holding itself out to be
responsible for the debts of Antigua or, other than by reason of owning capital
stock of Antigua, for any decisions or actions relating to Antigua; (iii)
causing any financial statements consolidated with those of Antigua to state
that Antigua is a separate corporate entity with its own separate creditors who,
in any liquidation of Antigua, will be entitled to be satisfied out of Antigua's
assets prior to any value in Antigua becoming available to Antigua's equity
holders; (iv) taking such other actions as are necessary on its part to ensure
that all corporate procedures required by its and Antigua's respective
certificates of incorporation and by-laws are duly and validly taken; iv)
keeping correct and complete records and books of account and corporate minutes;
and (vi) not acting in any other manner that could foreseeably mislead others
with respect to Antigua's separate identity.
(b) Each of the Sellers shall take all actions required to
maintain Antigua's status as a separate legal entity, including, without
limitation, (i) not holding Antigua out to third parties as other than an entity
with assets and liabilities distinct from such Seller and such Seller's other
Subsidiaries; (ii) not holding itself out to be responsible for the debts of
Antigua or, other than by reason of owning capital stock of Antigua, for any
decisions or actions relating to Antigua; (iii) causing any financial statements
consolidated with those of Antigua to state that Antigua is a separate corporate
entity with its own separate creditors who, in any liquidation of Antigua, will
be entitled to be satisfied out of Antigua's assets prior to any value in
Antigua becoming available to Antigua's equity holders; (iv) taking such other
actions as are necessary on
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its part to ensure that all corporate procedures required by its and Antigua's
respective certificates of incorporation and by-laws are duly and validly taken;
(v) keeping correct and complete records and books of account and corporate
minutes; and (vi) not acting in any other manner that could foreseeably mislead
others with respect to Antigua's separate identity.
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ARTICLE V
REPURCHASES
Section 5.1. Repurchase of Contracts Upon Breach of
Representation or Warranty. Upon the occurrence of a Repurchase Event, TCC
shall, subject to the following paragraph, unless such breach shall have been
cured in all material respects, repurchase such Contract from the Trust and the
related Leased Equipment (in the case of a Lease Contract) from Antigua and, on
or before the related Deposit Date, TCC shall pay the Purchase Amount to the
Servicer on behalf of the Owner Trustee and Antigua pursuant to Section 2.6(a)
of the Transfer and Servicing Agreement. It is understood and agreed that,
except as set forth in the following paragraph, the obligation of TCC to
repurchase any Contract and the related Leased Equipment (if applicable) as to
which a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against TCC and the applicable Seller for
such breach available to Antigua, the Noteholders, the Equity Certificateholder,
the Owner Trustee on behalf of the Equity Certificateholder or the Indenture
Trustee on behalf of the Noteholders. The provisions of this Section 5.1 are
intended to grant the Owner Trustee and the Indenture Trustee a direct right
against TCC to demand performance hereunder, and in connection therewith, TCC
waives any requirement of prior demand against Antigua or the Sellers with
respect to such repurchase obligation. Notwithstanding any other provision of
this Agreement or the Transfer and Servicing Agreement to the contrary, the
obligation of TCC under this Section shall not terminate upon a termination of
TCC as Servicer under the Transfer and Servicing Agreement and shall be
performed by TCC in accordance with the terms hereof notwithstanding the failure
of the Servicer or Antigua to perform any of their respective obligations with
respect to such Contract under the Transfer and Servicing Agreement.
TCC may, at its option, cause Antigua on its behalf to substitute
an Eligible Contract for a Contract that TCC is obligated to repurchase pursuant
to the preceding paragraph upon satisfaction of the conditions set forth in
Section 2.6(b) of the Transfer and Servicing Agreement.
In addition to the foregoing and notwithstanding whether the
related Contract and the related Leased Equipment (if applicable) shall have
been purchased by TCC, TCC shall indemnify Antigua, the Owner Trustee, the
Indenture Trustee, the Trust, the Noteholders and the Equity Certificateholder
against all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred by any of them as a result of third party claims arising out of the
events or facts giving rise to such Repurchase Events.
Section 5.2. Reassignment of Purchased Contracts and Leased
Equipment. Upon deposit in the Collection Account of the Purchase Amount of any
Contract and the related Leased Equipment (if applicable) repurchased by TCC
under Section 5.1, Antigua and the Owner Trustee shall take such steps as may be
reasonably requested by TCC in order to assign to TCC all of Antigua's and the
Trust's right, title and interest in and to such Contract and the related Leased
Equipment (if applicable) and all security and documents conveyed to Antigua and
the Trust directly relating thereto, without recourse, representation or
warranty, except as to the
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absence of liens, charges or encumbrances created by or arising as a result of
actions of Antigua or the Owner Trustee. Such assignment shall be a sale and
assignment outright, and not for security. If, following the reassignment of a
Purchased Contract and the related Leased Equipment (if applicable), in any
enforcement suit or legal proceeding, it is held that TCC may not enforce any
such Contract on the ground that it shall not be a real party in interest or a
holder entitled to enforce the Contract, Antigua and the Owner Trustee shall, at
the expense of TCC, take such steps as TCC deems reasonably necessary to enforce
the Contract, including bringing suit in Antigua's or the Owner Trustee's name
or the name of the Indenture Trustee on behalf of the Noteholders or Equity
Certificateholder, as applicable.
Section 5.3. Waivers. No failure or delay on the part of Antigua,
the Trust or the Owner Trustee as assignee of Antigua, in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
any other or future exercise thereof or the exercise of any other power, right
or remedy.
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ARTICLE VI
MISCELLANEOUS
Section 6.1. Liability of the Sellers and TCC. Each of the
Sellers and TCC shall be liable in accordance herewith only to the extent of the
obligations in this Agreement specifically undertaken, individually and not
jointly, by each Seller and TCC, and the representations and warranties of each
Seller and TCC.
Section 6.2. Merger or Consolidation of a Seller, TCC or Antigua.
Any corporation or other entity (i) into which any Seller, TCC or Antigua may be
merged or consolidated, (ii) resulting from any merger or consolidation to which
any Seller, TCC or Antigua is a party or (iii) succeeding to the business of any
Seller, TCC or Antigua, shall be the successor to such Seller, TCC or Antigua,
as the case may be (without relieving such Seller, TCC or Antigua of its
responsibilities hereunder, if it survives such merger or consolidation) without
the execution or filing of any document or any further act by any of the parties
to this Agreement. Such Seller, TCC or Antigua shall promptly inform the other
parties, the Owner Trustee and the Indenture Trustee of such merger,
consolidation or purchase and assumption. Notwithstanding the foregoing, as a
condition to the consummation of the transactions referred to in clauses (i),
(ii) and (iii) above, (x) immediately after giving effect to such transaction,
no representation or warranty made pursuant to Sections 3.1 (other than
subsections (a) and (i)), 3.2 (other than subsections (a) and (i)), 3.3 (other
than subsections (a) and (i)), 3.4 (other than subsections (a) and (i)), and 3.5
(other than subsection (h)) of this Agreement shall have been breached (for
purposes hereof, such representations and warranties shall speak as of the date
of the consummation of such transaction), (y) such Seller, TCC or Antigua, as
applicable, shall have delivered written notice of such consolidation, merger or
purchase and assumption to the Rating Agencies prior to the consummation of such
transaction and shall have delivered to the Owner Trustee and the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section 6.2 and that all conditions precedent, if any, provided for in
this Agreement, relating to such transaction have been complied with, and (z)
such Seller, TCC or Antigua, as applicable, shall have delivered to the Owner
Trustee and the Indenture Trustee an Opinion of Counsel, stating that, in the
opinion of such counsel, either (A) all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary to preserve and protect the interest of the Owner Trustee in the Trust
Assets and reciting the details of the filings or (B) no such action shall be
necessary to preserve and protect such interest.
Section 6.3. Limitation on Liability of the Sellers, TCC and
Others.
(a) Except with respect to the Representations and Warranties
herein and in the Schedule of Representations, and the indemnification
obligations set forth in Section 4.4 herein, each Seller and TCC may rely in
good faith on the advice of counsel or on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement. Each Seller and TCC shall not be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
obligations under this
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Agreement or its Related Documents and that in its reasonable judgment may
involve it in any expense or liability.
(b) Any officer, director, employee or agent of TCC or any Seller
may rely in good faith on the advice of counsel or on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising under this Agreement. Neither any Seller nor TCC shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its obligations under this Agreement or its Related Documents and
that in its reasonable judgment may involve it in any expense or liability.
Section 6.4. The Sellers and TCC May Own Notes or Equity
Certificate. Subject to the provisions of the Transfer and Servicing Agreement,
each of the Sellers and TCC, and any Affiliate of any Seller or TCC, may in its
individual or any other capacity become the owner or pledgee of Notes or Equity
Certificate with the same rights as it would have if it were not a Seller, TCC
or an Affiliate thereof (except as provided in Section 1.6).
Section 6.5. Amendment.
(a) This Agreement may be amended by the Sellers, TCC and Antigua
without the consent of the Owner Trustee, the Indenture Trustee, the Equity
Certificateholder or the Noteholders (i) to cure any ambiguity; (ii) to correct
or supplement any provisions in this Agreement that may be inconsistent with any
other provisions herein; or (iii) to make any other provisions with respect to
matters or questions arising under this Agreement that are not inconsistent with
the provisions hereof, provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Owner Trustee and the
Indenture Trustee, adversely affect in any material respect the interests of the
Noteholders or Equity Certificateholder.
(b) This Agreement may also be amended from time to time by the
Sellers, TCC and Antigua, with the prior written consent of a Note Majority
(which consent of any Holder of a Note given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Holder and on all future Holders of such Note and of any Note
issued upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Note), for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the rights of the
Equity Certificateholder or the Noteholders; provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Contracts,
distributions that shall be required to be made on any Note or the applicable
rate of interest payable thereon, (ii) amend any provisions of Section 5.06 or
8.03 of the Indenture in such a manner as to affect the priority of payment of
interest or principal to Noteholders, or (iii) reduce the aforesaid percentage
required to consent to any such amendment or any waiver hereunder, without the
consent of the Holders of all Notes then Outstanding and affected thereby; and
provided, further, that no such amendment shall be effective unless and until
the Rating Agency Condition has been satisfied.
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(c) Promptly after the execution of any such amendment or
consent, the Owner Trustee or the Indenture Trustee, as applicable, shall
furnish written notification of the substance of such amendment or consent to
each Noteholder.
(d) It shall not be necessary for the consent of Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of the Noteholders provided for in this Agreement) and of evidencing
the authorization of the execution thereof by the Noteholders shall be subject
to such reasonable requirements as the Indenture Trustee may prescribe,
including the establishment of record dates. The consent of any Holder of a Note
given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Note and of any Note issued upon the transfer thereof or in
exchange thereof or in lieu thereof whether or not notation of such consent is
made upon the Note.
Section 6.6. Notices. All demands, notices and communications to
the Sellers, TCC or Antigua hereunder shall be in writing, personally delivered,
or sent by telecopier (subsequently confirmed in writing), reputable overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been given upon receipt:
(a) in the case of TCC, to AT&T Capital Corporation, 0 Xxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: General Counsel, or such other
address as shall be designated by TCC in a written notice delivered to the other
parties and to the Owner Trustee and the Indenture Trustee;
(b) in the case of Leasing Services, to AT&T Capital Corporation,
0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: General Counsel, or
such other address as Leasing Services shall be designated by a written notice
delivered to the other parties and to the Owner Trustee and the Indenture
Trustee;
(c) in the case of Credit Corp., to AT&T Capital Corporation, 0
Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: General Counsel, or
such other address as shall be designated by Credit Corp. in a written notice
delivered to the other parties and to the Owner Trustee and the Indenture
Trustee;
(d) in the case of CFC, to AT&T Capital Corporation, 0 Xxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: General Counsel, or such other
address as shall be designated by CFC in a written notice delivered to the other
parties and to the Owner Trustee and the Indenture Trustee;
(e) in the case of Antigua, to AT&T Capital Corporation, 0
Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: General Counsel.
Section 6.7. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement and the Related Documents set forth the
entire understanding of the
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parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement and the Related Documents.
This Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 6.8. Severability of Provisions. If any one or more of
the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 6.10. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 6.11. Conveyance of the Contracts to the Trust. The
Sellers and TCC acknowledge that Antigua intends, pursuant to the Transfer and
Servicing Agreement, to convey the Contracts, the Leased Equipment and the other
items described in Section 2.1(b), together with its rights under this
Agreement, to the Trust on the Closing Date. The Sellers and TCC acknowledge and
consent to such conveyance and waive any further notice thereof and covenant and
agree that the representations and warranties of the Sellers and TCC contained
in this Agreement and the rights of Antigua hereunder are intended to benefit
the Owner Trustee, the Indenture Trustee, the Trust, the Noteholders and the
Equity Certificateholder. In furtherance of the foregoing, the Sellers and TCC
covenant and agree to perform their duties and obligations hereunder, in
accordance with the terms hereof, for the benefit of the Owner Trustee, the
Indenture Trustee, the Trust, the Equity Certificateholder and the Noteholders
and that, notwithstanding anything to the contrary in this Agreement, the
Sellers and TCC shall be directly liable to the Owner Trustee, the Indenture
Trustee and the Trust (notwithstanding any failure by the Servicer or Antigua to
perform its duties and obligations hereunder or under the Transfer and Servicing
Agreement) and that the Owner Trustee and the Indenture Trustee may enforce the
duties and obligations of the Sellers or TCC under this Agreement against the
Sellers or TCC for the benefit of the Trust, the Equity Certificateholder and
the Noteholders.
Section 6.12. Nonpetition Covenant. Neither the Sellers, TCC nor
Antigua shall petition or otherwise invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Trust (or, in the case of the Sellers or TCC, against Antigua) under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust
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(or Antigua) or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Trust (or Antigua).
Section 6.13. Purchase of Common Stock of Antigua. All references
in this Agreement to the purchase of shares of common stock of Antigua by the
Sellers are intended to refer to the transfer of assets of the Sellers to
Antigua in exchange for stock of Antigua in a transaction or series of
transactions intended to be governed by Section 351 of the Internal Revenue Code
of 1986, as amended.
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IN WITNESS WHEREOF, the parties have caused this Purchase and
Sale Agreement to be duly executed by their respective officers as of the day
and year first above written.
ANTIGUA FUNDING CORPORATION,
as Purchaser
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Treasurer
AT&T CAPITAL CORPORATION,
In its individual capacity and as Servicer
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Treasurer
AT&T CAPITAL LEASING SERVICES, INC.,
as Seller
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Treasurer
NEWCOURT COMMUNICATIONS FINANCE CORPORATION,
as Seller
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Treasurer
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AT&T COMMERCIAL FINANCE CORPORATION,
as Seller
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Treasurer
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