___________________________________________________________________________
CONTRIBUTION AND SALE AGREEMENT
_____________________________
between
TRANS LEASING INTERNATIONAL, INC.
and
TL LEASE FUNDING CORP. IV
_______________________
Dated as of
November 28, 1995
___________________________________________________________________________
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.01 Definitions. . . . . . . . . . . . . . . . . . . . . .1
1.02 Other Definitional Provisions. . . . . . . . . . . . .6
ARTICLE II
ISSUANCE OF STOCK BY TLFC; CONTRIBUTION
OF CONTRIBUTED ASSETS; SALE OF PURCHASED ASSETS;
SALE OF ADDITIONAL ASSETS . . . . . . . . . . . . . . . . . . . . . .7
2.01 [Reserved.]. . . . . . . . . . . . . . . . . . . . . .7
2.02 Required Capital Contribution and Sale
of Purchased Assets. . . . . . . . . . . . . . . . .7
2.03 Contribution or Sale of Additional Assets. . . . . . .8
2.04 Custody of Lease Files . . . . . . . . . . . . . . . .9
ARTICLE III
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . 10
3.01 Representations and Warranties of
Trans Leasing. . . . . . . . . . . . . . . . . . . 10
3.02 Representations and Warranties of TLFC . . . . . . . 15
3.03 Purchase of Leases and Equipment by
Trans Leasing. . . . . . . . . . . . . . . . . . . 17
3.04 Indemnification. . . . . . . . . . . . . . . . . . . 18
ARTICLE IV
COVENANTS OF TRANS LEASING AND TLFC . . . . . . . . . . . . . . . . 18
4.01 Trans Leasing Covenants. . . . . . . . . . . . . . . 18
4.02 TLFC Covenants . . . . . . . . . . . . . . . . . . . 21
4.03 Grant of Security Interest . . . . . . . . . . . . . 21
ARTICLE V
CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . . 22
5.01 Conditions to TLFC's Obligations . . . . . . . . . . 22
5.02 Conditions to Trans Leasing's
Obligations. . . . . . . . . . . . . . . . . . . . 23
ARTICLE VI
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.01 Termination. . . . . . . . . . . . . . . . . . . . . 23
6.02 Effect of Termination. . . . . . . . . . . . . . . . 23
ARTICLE VII
MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 24
7.01 Amendment. . . . . . . . . . . . . . . . . . . . . . 24
7.02 Governing Law. . . . . . . . . . . . . . . . . . . . 24
7.03 Notice . . . . . . . . . . . . . . . . . . . . . . . 24
7.04 Severability of Provisions . . . . . . . . . . . . . 25
7.05 Assignment . . . . . . . . . . . . . . . . . . . . . 25
7.06 No Waiver; Cumulative Remedies . . . . . . . . . . . 25
7.07 Counterparts . . . . . . . . . . . . . . . . . . . . 26
7.08 Binding Effect; Third-Party
Beneficiaries. . . . . . . . . . . . . . . . . . . 26
7.09 Merger and Integration . . . . . . . . . . . . . . . 26
7.10 Headings . . . . . . . . . . . . . . . . . . . . . . 26
7.11 Schedules and Exhibits . . . . . . . . . . . . . . . 26
7.12 No Petition Covenants. . . . . . . . . . . . . . . . 26
EXHIBITS
Exhibit A Form of Assignment for the Required Capital
Contribution
Exhibit B Form of Assignment for Purchased Assets
Exhibit C Form of Assignment for Additional Assets
Exhibit D Forms of Lease
SCHEDULES
Contributed Lease Schedule
Purchased Lease Schedule
Lease Criteria Schedule
Specified Portfolio Characteristics Schedule
CONTRIBUTION AND SALE AGREEMENT
THIS CONTRIBUTION AND SALE AGREEMENT, dated as of
November 28, 1995 (this "Agreement"), is entered into between Trans
Leasing International, Inc. ("Trans Leasing"), a Delaware corporation,
and TL Lease Funding Corp. IV ("TLFC"), a Delaware corporation.
Trans Leasing in the ordinary course of its business
originates equipment and other leases in the United States.
Trans Leasing desires, on the date hereof, to transfer
the Purchased Leases, the Contributed Leases, its interests in the
related Equipment and other assets (as such capitalized terms are
defined pursuant to Article I below) to TLFC upon the terms and
conditions set forth in this Agreement.
It is contemplated that, from time to time after the date
hereof, Trans Leasing and TLFC may agree that Trans Leasing will
transfer additional Leases, its interests in the related Equipment and
other assets to TLFC upon the terms and conditions set forth in this
Agreement.
It is contemplated that, following such transfers, Trans
Leasing, in its capacity as Servicer pursuant to the Servicing
Agreement, will continue to administer and service the Leases and
Equipment transferred to TLFC.
In consideration of the mutual covenants set forth in
this Agreement, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, Trans Leasing
and TLFC agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. Whenever used in this Agreement, the
following words and phrases will have the following meanings:
"Additional Assets" means all right, title and interest
of Trans Leasing in, to, and under (i) the Additional Leases
(including Trans Leasing's obligations under the Additional Leases)
and all monies due or to become due thereunder after the related
Additional Cut-Off Date, (ii) the related Equipment (other than any
licensed products that may accompany any of such Equipment),(iii) the
Lease Files for the Additional Leases, (iv) any Insurance Policies
(including Trans Leasing's obligations thereunder) and the related
Insurance Proceeds with respect to the Additional Leases and (v) all
income and proceeds relating to the foregoing.
"Addition Date" has the meaning set forth in Section
2.03(a) of this Agreement.
"Additional Lease Schedule" has the meaning set forth in
Section 2.03(a) of this Agreement.
"Additional Cut-Off Date" means, with respect to an
Additional Lease, the close of business on the last day of the
month preceding the related Addition Date.
"Additional Leases" means the Leases listed on any
Additional Lease Schedule delivered by Trans Leasing to TLFC
pursuant to Section 2.03(a).
"Assets" means the Purchased Assets, the Contributed
Assets and any Additional Assets.
"Business Day" means any day which is not a Saturday,
Sunday or a legal holiday under the laws of the State of Illinois
or North Carolina and is not a day on which banking institutions
located in the State of Illinois or North Carolina are authorized
or permitted by law or other governmental action to close.
"Closing Date" means November 28, 1995.
"Common Stock" means 1,000 shares of the common stock of
TLFC, par value $0.01 per share, constituting all of its authorized
capital stock.
"Contributed Assets" means all right, title and interest
of Trans Leasing in, to, and under (i) the Contributed Leases
(including Trans Leasing's obligations under the Contributed
Leases) and all monies due or to become due thereunder after the
Cut-Off Date, (ii) the related Equipment (other than any licensed
products that may accompany any of such Equipment), (iii) the Lease
Files for the Contributed Leases, (iv) any Insurance Policies
(including Trans Leasing's obligations thereunder) and the related
Insurance Proceeds with respect to the Contributed Leases and
(v) all income and proceeds relating to the foregoing.
"Contributed Leases" means the Leases listed on the
Contributed Lease Schedule attached hereto.
"Credit Agreement" means the Revolving Credit and Term
Loan and Security Agreement between TLFC and the Lender, dated as
of the date hereof, together with all amendments, restatements,
supplements and modifications thereof or thereto.
"Cut-Off Date" means November 26, 1995.
"Debt Agreement" means, at any time, any then existing agreement
pursuant to which TLFC has borrowed money, pledged its interest in the
Assets and assigned its rights hereunder (as such agreement is then in
effect), and shall initially refer to the Credit Agreement.
"Equipment" means the assets leased to a Lessee pursuant to any Lease.
"Filing Locations" means the States of Alabama, Arizona,
California, Delaware, Florida, Georgia, Illinois, Indiana,
Maryland, Massachusetts, New Jersey, New York, North Carolina,
Ohio, Pennsylvania, Texas and Virginia.
"Governmental Authority" means (a) any federal, state,
county, municipal or foreign government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality
or public body, (c) any court or administrative tribunal or (d)
with respect to any Person, any arbitration tribunal or other non-
governmental authority to the jurisdiction of which such Person has
consented.
"Insurance Policy" means with respect to any Lease, an
insurance policy covering physical damage to or loss of the related
Equipment.
"Insurance Proceeds" means, depending on the context, any
amounts payable or any payments made, to the Servicer under an
Insurance Policy.
"Lease" means each agreement, including, as applicable,
schedules, subschedules, summary schedules, supplements and
amendments to a master lease, pursuant to which Trans Leasing, as
lessor, leases specified assets to a Lessee at a specified monthly
or quarterly rental, and which is identified in the Lease Schedule,
including all Contributed Leases, Purchased Leases and Additional
Leases; provided, that, from and after the date on which a Lease is
purchased by Trans Leasing pursuant to Section 3.03 of this
Agreement or a Lease is otherwise transferred to Trans Leasing,
such Lease shall no longer be a Lease for purposes of this
Agreement.
"Lease File" means, with respect to any Lease, the Lease
and all other documents relating to such Lease in the possession of
Trans Leasing or held by the Servicer under the Servicing
Agreement, as the context requires.
"Lease Management System" means the computerized
electronic lease management system maintained by Trans Leasing for
all Leases and other agreements similar to the Leases.
"Lease Schedule" means the Contributed Lease Schedule,
the Purchased Lease Schedule and all Additional Lease Schedules, as
amended to show the deletion of Leases purchased by Trans Leasing
pursuant to Section 3.03 or otherwise transferred by TLFC to Trans
Leasing.
"Lender" means First Union National Bank of North
Carolina.
"Lessee" means with respect to any Lease, the Person or
Persons obligated to make payments with respect to such Lease,
including any guarantor thereof.
"Lien" means any mortgage, pledge, hypothecation,
assignment for security, security interest, encumbrance, xxxx, xxxx
or charge of any kind, whether voluntarily incurred or arising by
operation of law or otherwise, affecting any Property, including
any agreement to grant any of the foregoing, any conditional sale
or other title retention agreement, any lease in the nature of a
security interest, and the filing of or agreement to file or
deliver any financing statement (other than a precautionary
financing statement with respect to a lease that is not in the
nature of a security interest) under the UCC or comparable law of
any jurisdiction.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel to Trans Leasing or other counsel, acceptable to
TLFC.
"Person" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or Governmental
Authority.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, whether tangible or
intangible.
"Purchased Assets" means all right, title and interest of
Trans Leasing in, to, and under (i) the Purchased Leases (including
Trans Leasing's obligations under the Purchased Leases) and all
monies due or to become due thereunder after the Cut-Off Date, (ii)
the related Equipment (other than any licensed products that may
accompany any of such Equipment), (iii) the Lease Files for the
Purchased Leases, (iv) any Insurance Policies (including Trans
Leasing's obligations thereunder) and the related Insurance
Proceeds with respect to the Purchased Leases and (v) all income
and proceeds relating to the foregoing.
"Purchased Leases" means the Leases listed on the
Purchased Lease Schedule attached hereto.
"Required Capital Contribution" has the meaning set
forth in Section 2.02(a).
"Responsible Officer" of any Person means any of the
President, Executive Vice President, Vice President, Chief
Financial Officer, Treasurer or Corporate Controller of such
Person.
"Scheduled Lease Payments" means with respect to any
Lease, the monthly or quarterly rent payments scheduled to be made
by the related Lessee under the terms of such Lease after the Cut-
Off Date or the related Additional Cut-Off Date, as applicable.
"Secured Party" means, at any time, any Person that is
granted the rights of a secured party under any then existing Debt
Agreement and to which TLFC's rights under this Agreement have been
assigned, and shall initially refer to the Lender.
"Servicer" means, at any time, any Person then acting as
servicer under a Servicing Agreement, and shall initially refer to
Trans Leasing in its capacity as the initial servicer under the
initial Servicing Agreement.
"Servicing Agreement" means, at any time, any agreement
then in effect pursuant to which any Person has agreed to service
the Assets (as such agreement is then in effect), and shall
initially refer to the Servicing Agreement dated as of the date
hereof among TLFC, the Lender and Trans Leasing, as servicer.
"UCC" means the Uniform Commercial Code as the same may,
from time to time, be in effect in the State of Illinois provided,
however, in the event that, by reason of mandatory provisions of
law, any or all of the attachment, perfection or priority of the
Lien of the Secured Party in and to the Collateral is governed by
the Uniform Commercial Code as in effect in a jurisdiction other
than the State of Illinois, the term "UCC" shall mean the Uniform
Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to
such provisions.
"Warranty Event" means, with respect to any Lease, that
Trans Leasing is obligated to purchase such Lease pursuant to
Section 3.03 hereof.
"Warranty Purchase Price" means, with respect to any
Lease and the related Equipment to be purchased by Trans Leasing,
(a) the amount set forth as such in any then applicable Debt
Agreement, or (b) if no such amount is set forth or no Debt
Agreement is then in effect, an amount agreed to by Trans Leasing
and TLFC as reflecting the fair market value therefor, determined
on the same basis as the purchase price for sales of Purchased
Leases and Additional Leases has been determined hereunder,
provided, the Warranty Purchase Price for any such Lease and
related Equipment determined pursuant to this clause (b) shall not
exceed the value ascribed thereto at the time of the contribution
or sale thereof by Trans Leasing to TLFC as described herein.
1.02 Other Definitional Provisions.
(a) Terms used in Related Documents. Each term
defined in this Agreement will have the meaning assigned to
such term in this Agreement when used in any certificate or
other document made or delivered pursuant to this Agreement,
unless such term is otherwise defined therein.
(b) Accounting Terms. As used in this Agreement,
accounting terms which are not defined in Section 1.01 have
the respective meanings given to them under generally accepted
accounting principles as in effect on the date of this
Agreement. To the extent that the definitions of accounting
terms in this Agreement are inconsistent with the meanings of
such terms under generally accepted accounting principles, the
definitions contained in this Agreement will control.
(c) "Hereof," etc. The words "hereof," "herein"
and "hereunder" and words of similar import when used in this
Agreement will refer to this Agreement as a whole and not to
any particular provision of this Agreement; and Section,
Schedule and Exhibit references contained in this Agreement
are references to Sections, Schedules and Exhibits in or to
this Agreement, unless otherwise specified.
(d) Number and Gender. Each defined term used in
this Agreement has a comparable meaning when used in its
plural or singular form. Each gender-specific term used in
this Agreement has a comparable meaning whether used in a
masculine, feminine or gender-neutral form.
(e) Including. Whenever the term "including"
(whether or not that term is followed by the phrase "but not
limited to" or "without limitation" or words of similar
effect) is used in this Agreement in connection with a listing
of items within a particular classification, that list will be
interpreted to be illustrative only and will not be
interpreted as a limitation on, or an exclusive list of, the
items within that classification.
ARTICLE II
ISSUANCE OF STOCK BY TLFC; CONTRIBUTION
OF CONTRIBUTED ASSETS; SALE OF PURCHASED ASSETS;
SALE OF ADDITIONAL ASSETS
2.01 [Reserved.]
2.02 Required Capital Contribution and Sale of Purchased
Assets.
(a) Contribution. On the Closing Date, Trans
Leasing will make a capital contribution (the "Required
Capital Contribution") to TLFC of the Contributed Assets, and
Trans Leasing will deliver to TLFC an executed assignment
substantially in the form of Exhibit A attached hereto. The
Required Capital Contribution will be without recourse to
Trans Leasing, subject to the obligations of Trans Leasing
pursuant to Section 3.03.
(b) Sale. For a purchase price of $16,035,208 in
cash, on the Closing Date, Trans Leasing will sell to TLFC the
Purchased Assets and will deliver to TLFC an executed
assignment substantially in the form of Exhibit B attached
hereto. Except for the obligations of Trans Leasing pursuant
to Section 3.03, the sale of the Purchased Assets will be
without recourse to Trans Leasing.
(c) Recordation. In connection with the Required
Capital Contribution and sale of the Purchased Assets, Trans
Leasing agrees to record and file at its own expense financing
statements and continuation statements with respect to the
Leases meeting the requirements of applicable state law, in
such manner and in such jurisdictions as are necessary to
perfect and to maintain the perfection of the contributions
and sales of the Leases and Trans Leasing's interests in the
related Equipment contributed or sold by Trans Leasing to TLFC
as described in this Section 2.02, and to deliver a file-
stamped copy of such financing statements or other evidence of
such filings to TLFC (and copies to the Lender) promptly after
the Closing Date, provided, however, that (i) the Lease Files
for the Leases will not be physically delivered to TLFC but
instead will be held by the Servicer pursuant to the Servicing
Agreement, (ii) Trans Leasing will not be required to file any
financing or continuation statements with respect to the
Equipment in any jurisdiction other than the Filing Locations,
(iii) the financing statements to be filed in the Filing
Locations other than the States of Delaware and Illinois will
not be filed until after the Closing Date (and Trans Leasing
agrees to make such filings within 5 Business Days of the
Closing Date) and (iv) Trans Leasing will not be required to
cause the certificate of title or other title document to any
Equipment consisting of motor vehicles to be marked to
indicate the transfer from Trans Leasing to TLFC or the
security interest of the Secured Party therein.
(d) Marking of Lease Management System. In
connection with the Required Capital Contribution and sale of
the Purchased Assets, Trans Leasing will, for the benefit of
TLFC and any Secured Party, at its own expense, cause the
Lease Management System to be marked to show that the
Contributed Assets and the Purchased Assets have been
contributed and sold to TLFC in accordance with this Agreement
and pledged to Lender under the Credit Agreement, on or prior
to the Closing Date.
2.03 Contribution or Sale of Additional Assets.
(a) Additional Sales and Contributions. From time
to time after the date hereof, TLFC may request to purchase
additional assets from Trans Leasing. If Trans Leasing so
agrees to sell any additional assets, the purchase price
thereof shall be an amount agreed to by Trans Leasing and TLFC
and shall be no less than the fair market value of such assets
as then determined, including consideration of then current
interest rates. From time to time after the date hereof, in
connection with a sale of Additional Assets or otherwise,
Trans Leasing may contribute to TLFC as an additional
contribution to the equity of TLFC, Additional Assets. The
date on which any such sale or contribution of any Additional
Assets to be purchased by TLFC takes place is herein referred
to as an "Addition Date". The purchase price for any
Additional Assets to be purchased by TLFC will be payable by
TLFC on the related Addition Date in cash. On each Addition
Date, Trans Leasing will deliver to TLFC an executed assign-
ment substantially in the form of Exhibit C attached hereto
together with a schedule identifying each Additional Lease
included in the Additional Assets (an "Additional Lease
Schedule"). Except for the obligations of Trans Leasing
pursuant to Section 3.03, the sale and contribution of the
Additional Assets will be without recourse to Trans Leasing.
(b) Recordation. In connection with any
contribution or sale of Additional Assets, Trans Leasing
agrees to record and file at its own expense financing
statements and continuation statements with respect to the
related Additional Leases meeting the requirements of
applicable state law, in such manner and in such jurisdictions
as are necessary to perfect and to maintain the perfection of
the contributions and sales of the Additional Leases by Trans
Leasing to TLFC and Trans Leasing's interests in the related
Equipment contributed or sold by Trans Leasing to TLFC as
described in this Section 2.03, and to deliver a file-stamped
copy of such financing statements or other evidence of such
filings to TLFC (and copies to the Secured Party) promptly
after the applicable Addition Date, provided, however, that
(i) the Lease Files for such Additional Leases will not be
physically delivered to TLFC but instead will be held by the
Servicer pursuant to the Servicing Agreement, (ii) Trans
Leasing will not be required to file any financing or
continuation statements with respect to the Equipment in any
jurisdiction other than the Filing Locations and (iii) Trans
Leasing will not be required to cause the certificate of title
or other title document to any Equipment consisting of motor
vehicles to be marked to indicate the transfer from Trans
Leasing to TLFC or the security interest of the Secured Party
therein.
(c) Marking of Lease Management System. In
connection with any contribution or sale of Additional Assets,
Trans Leasing will, at its own expense, cause the Lease
Management System to be marked to show that such Additional
Assets have been contributed or sold to TLFC in accordance
with this Agreement, on or prior to the applicable Addition
Date.
2.04 Custody of Lease Files. In connection with the
contribution and sale of the Assets, Trans Leasing, in its capacity
as the Servicer pursuant to the Servicing Agreement, will retain
custody of the Lease Files and any related evidence of Insurance
Policies, Insurance Proceeds and other payments.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties of Trans Leasing.
Trans Leasing makes the following representations and warranties
for the benefit of TLFC and any Secured Party, on which TLFC relies
and will rely in accepting the contribution of the Contributed
Assets and any Additional Assets and purchasing the Purchased
Assets and any Additional Assets. Unless otherwise indicated, such
representations and warranties, with respect to the Contributed
Assets and the Purchased Assets, speak as of the Closing Date and,
with respect to any Additional Assets, as of the related Addition
Date, but in each case will survive the contribution and sale of
the Assets to TLFC, and the grant of a security interest therein to
any Secured Party.
(a) Representations and Warranties with respect
to the Assets. As to the Assets:
(i) the information with respect to the Leases
and the Equipment in the Contributed Lease Schedule, the
Purchased Lease Schedule or any Additional Lease Schedule, as
the case may be, is true and correct in all material respects;
(ii) no provision of any Lease has been waived,
altered or modified in any respect, except by an instrument or
document contained in the related Lease File and except with
respect to a Skipped Payment (as defined in the Servicing
Agreement);
(iii) each Lease is a valid and binding payment
obligation of the related Lessee and is enforceable in
accordance with its terms, except as such enforceability may
be limited by (A) applicable bankruptcy, insolvency,
moratorium, reorganization or other similar laws now or
hereafter in effect affecting the enforcement of creditors'
rights generally and (B) general principles of equity (whether
considered in a suit at law or in equity);
(iv) the Leases are not and will not be subject
to rights of rescission, setoff, counterclaim or defense;
(v) the Leases, at the time they were made,
did not violate applicable state or federal laws;
(vi) each Lease contains provisions requiring
the Lessee to assume all risk of loss or malfunction of the
related Equipment;
(vii) all action will have been taken by Trans
Leasing to transfer all its right, title and interest in, to
and under the Leases and the related Equipment to TLFC;
(viii) each party to a Lease had the authority
and legal capacity to execute such Lease at the time that it
did so;
(ix) no Asset has been sold, transferred,
assigned or pledged by Trans Leasing to any Person (other than
TLFC), and immediately prior to contributing or selling such
Asset to TLFC, Trans Leasing is the sole owner of, and holder
of title to, the Leases, the Equipment (or a security interest
therein) and the other Assets free and clear of any Liens
(except for the interests of Lessees under the Leases), and
immediately following the transfer by Trans Leasing to TLFC of
the Assets, the Assets will be free and clear of all Liens
(except for the interests of Lessees under the Leases);
(x) no Lease requires the substitution,
addition or exchange of any item of Equipment which would
result in any reduction of the Scheduled Lease Payments
pursuant to such Lease;
(xi) there is only one secured party's original
of each Lease that constitutes "chattel paper" for purposes of
the UCC and such original has not been delivered to any Person
other than the Secured Party or the Servicer pursuant to the
Servicing Agreement;
(xii) Trans Leasing has duly fulfilled in all
material respects all obligations on its part in connection
with the Leases and has done nothing to materially impair the
rights of TLFC and the Secured Party in the Leases or the
proceeds with respect thereto;
(xiii) to the best of Trans Leasing's knowledge,
no proceedings or investigations are pending or have been
threatened asserting the invalidity of any Lease or seeking
any determination or ruling that might adversely and
materially affect the validity or enforceability of any Lease;
(xiv) all filings necessary to evidence the
contribution and sale of the Leases to TLFC have been made in
all appropriate jurisdictions;
(xv) none of the Lessees are, to Trans
Leasing's knowledge, the subject of bankruptcy or other
insolvency proceedings;
(xvi) each Lessee's billing address is in the
United States;
(xvii) all payments under the Leases are required
to be made in United States dollars;
(xviii) the substance of each Lease is
substantially similar to one of the forms of Lease in
Exhibit D attached hereto, except that any guaranty provision
may have been varied or deleted; provided that any such
variation or deletion will not cause any representation herein
with respect to such Lease to be untrue and will not
reasonably be expected to adversely affect the transactions
contemplated by this Agreement and the Credit Agreement;
(xix) each of the Leases satisfies the criteria
set forth on the Lease Criteria Schedule attached hereto (as
such schedule may be amended by Trans Leasing and TLFC from
time to time to reflect the criteria required by any then
applicable Debt Agreement);
(xx) the Contributed Lease Schedule is a true
and complete list of all Contributed Leases, the Purchased
Lease Schedule is a true and complete list of all Purchased
Leases and each Additional Lease Schedule will be a true and
complete list of all Additional Leases to be transferred on
the related Addition Date, in each case identified by, among
other things, its Lease Number, its original Equipment cost,
the effective date of such Lease, the original term of such
Lease, and the amount of Scheduled Lease Payments pursuant to
such Lease, in each case as of the Cut-Off Date or the related
Additional Cut-Off Date, as appropriate; and
(xxi) (A) as of the Closing Date, the Purchased
Leases and the Contributed Leases satisfy, as of the Cut-Off
Date, the criteria set forth on the Specified Portfolio
Characteristics Schedule attached hereto, (B) as of any
Addition Date, the addition of the related Additional Leases
does not cause any of the criteria set forth on the attached
Specified Portfolio Characteristics Schedule attached hereto
(as such schedule may be amended by Trans Leasing and TLFC
from time to time to reflect the criteria required by any then
applicable Debt Agreement) not to be satisfied as of the
related Additional Cut-Off Date or, if any of such criteria
are not satisfied as of the first day of the month in which
the related Addition Date occurs (without giving effect to the
addition of such Additional Leases), such addition does not
increase the amount by which such criteria are not satisfied
(in each case, based on the characteristics of such Additional
Leases as of the related Additional Cut-Off Date) and (C) if
so agreed by Trans Leasing and TLFC at such time, as of any
Addition Date (or other specified date), the Leases, as of the
related Additional Cut-Off Date (or other specified date),
satisfy such criteria.
(b) Representations and Warranties as to Trans
Leasing. As to Trans Leasing:
(i) Organization and Good Standing. Trans
Leasing is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with
all requisite corporate power and authority to own its
properties and to conduct its business as presently conducted;
(ii) Due Qualification. Trans Leasing is
qualified to do business as a foreign corporation, is in good
standing, and has obtained all licenses and approvals required
under the laws of, all states in which the ownership or lease
of its property, the performance of its obligations pursuant
to this Agreement or the conduct of its business requires such
qualification, standing, license or approval, except to the
extent that the failure to so qualify, maintain such standing
or be so licensed or approved, would not, in the aggregate,
materially and adversely affect the ability of Trans Leasing
to comply with this Agreement;
(iii) Power and Authority. Trans Leasing has
the corporate power and authority to execute and deliver this
Agreement and to carry out its terms; and Trans Leasing has
duly authorized the execution, delivery, and performance of
this Agreement by all requisite corporate action;
(iv) Valid Contribution and Sale; Binding
Obligations. The contribution and sale of the Contributed
Assets and the Purchased Assets constitute, and each
contribution and sale of any Additional Assets, will
constitute, a legal and valid contribution, assignment,
transfer and conveyance to TLFC of all right, title, and
interest of Trans Leasing in, to and under such Assets, and
such Assets will be held by TLFC free and clear of any Lien of
any Person claiming through or under Trans Leasing, except for
Liens permitted under, or to be created by, any Debt
Agreement; and this Agreement constitutes a legal, valid, and
binding obligation of Trans Leasing, enforceable against Trans
Leasing in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of
creditors' rights generally and (ii) general principles of
equity (whether considered in a suit at law or in equity);
(v) No Violation. The consummation of the
transactions contemplated by, and the performance of the terms
of, this Agreement by Trans Leasing (with or without the
giving of any notice or the lapse of time) will not (after
giving effect to all consents and waivers received on or prior
to the date hereof or the Addition Date, as the case may be);
(A) conflict with, result in any breach of any of the
terms or provisions of, or constitute a default
under, the certificate of incorporation or by-laws
of Trans Leasing, or any term of any indenture,
agreement, mortgage, deed of trust, or other
instrument to which Trans Leasing is a party or by
which it is bound;
(B) result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed
of trust, or other instrument (other than this
Agreement); or
(C) violate any legal requirement applicable to Trans
Leasing or any of its properties in any manner;
which conflict, breach, default, Lien or violation would have
a material and adverse effect on the ability of Trans Leasing
to comply with this Agreement;
(vi) No Consent. No consent, approval,
authorization, order, registration, filing, qualification,
license or permit of or with any Governmental Authority having
jurisdiction over Trans Leasing or any of its properties or
assets is required to be obtained by or with respect to Trans
Leasing in connection with the execution, delivery and
performance by Trans Leasing of this Agreement and the
consummation of the transactions contemplated herein;
(vii) No Proceedings. To the best of Trans
Leasing's knowledge, there are no proceedings or investiga-
tions pending or threatened before any Governmental Authority
(A) asserting the invalidity of this Agreement, (B) seeking to
prevent the consummation of any of the transactions contem-
plated by this Agreement, or (C) seeking any determination or
ruling that might (in the reasonable judgment of Trans
Leasing) materially and adversely affect the performance by
Trans Leasing of its obligations under, or the validity or
enforceability of, this Agreement;
(viii) Insolvency. Trans Leasing is not
insolvent and will not be rendered insolvent by the consum-
mation of the transactions contemplated by this Agreement;
(ix) Principal Place of Business. Trans
Leasing's principal place of business and chief executive
office are in the State of Illinois, County of Xxxx;
(x) Ability to Perform. At the date hereof,
Trans Leasing does not believe, nor does it have any
reasonable cause to believe, that it cannot perform each and
every covenant contained in this Agreement;
(xi) Fair Consideration. The consideration
received by Trans Leasing in exchange for the contribution and
sale of the Assets to be contributed and sold on the date
hereof and on each Addition Date is fair consideration having
value equivalent to or in excess of the value of the Assets
transferred on each such date;
(xii) Bulk Transfer Provisions. The sale,
transfer, assignment and conveyance of the Leases and its
interests in the related Equipment by Trans Leasing described
in this Agreement is not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable
jurisdiction; and
(xiii) Transfer Taxes. The sale, transfer,
assignment and conveyance of the Assets by Trans Leasing
described in this Agreement will not result in the imposition
of any tax Lien or any liability of TLFC for any tax on such
sale, transfer, assignment and conveyance.
(xiv) Common Stock. Trans Leasing owns all of
the Common Stock free and clear of all mortgages, assignments,
pledges, security interests, warrants, options and rights to
purchase.
3.02 Representations and Warranties of TLFC. TLFC makes
the following representations and warranties on which Trans Leasing
relies in making the Required Capital Contribution, selling the
Purchased Assets and contributing and selling any Additional
Assets. Such representations and warranties speak as of the
Closing Date and each Addition Date, but will survive the
contribution and sale of the Assets to TLFC.
(a) Organization and Good Standing. TLFC is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, with all
requisite corporate power and authority to own its properties
and to conduct its business as presently conducted and to
enter into and perform its obligations under this Agreement;
(b) Due Qualification. TLFC is qualified to do
business as a foreign corporation, is in good standing, and
has obtained all licenses and approvals required under the
laws of, all states in which the ownership or lease of its
property or the conduct of its business requires such
qualification, standing, license or approval, except to the
extent that the failure to so qualify, maintain such standing
or be so licensed or approved would not, in the aggregate,
materially and adversely affect the ability of TLFC to perform
its obligations under this Agreement;
(c) Power and Authority. TLFC has the corporate
power and authority to execute and deliver this Agreement and
to carry out its terms; and TLFC has duly authorized the
execution, delivery, and performance of this Agreement by all
requisite corporate action;
(d) Binding Obligations. This Agreement
constitutes a legal, valid, and binding obligation of TLFC,
enforceable in accordance with its terms, except as such
enforcement may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other laws now or hereafter in effect affecting the
enforcement of creditors' rights generally and (ii) general
principles of equity (whether considered in a suit at law or
in equity);
(e) No Violation. The consummation of the
transactions contemplated by, and the fulfillment of the terms
of this Agreement, by TLFC (with or without the giving of any
notice or the lapse of time) will not
(i) conflict with, result in any breach of any
of the terms and provisions of, or constitute a default under,
the certificate of incorporation or by-laws of TLFC, or any
term of any indenture, agreement, mortgage, deed of trust, or
other instrument to which TLFC is a party or by which it is
bound;
(ii) result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement, mortgage, deed of trust, or
other instrument (other than this Agreement); or
(iii) violate any legal requirement applicable
to TLFC or any of its properties in any manner;
which conflict, breach, default, Lien or violation would have a
material and adverse effect on the ability of TLFC to comply with
this Agreement;
(f) No Proceedings. To the best of TLFC's
knowledge, there are no proceedings or investigations pending
or threatened before any Governmental Authority having
jurisdiction over TLFC or its properties against TLFC or its
properties (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (iii) seeking
any determination or ruling that might materially and
adversely affect the performance by TLFC of its obligations
under, or the validity or enforceability of, this Agreement;
(g) Insolvency. TLFC is not insolvent and will
not be rendered insolvent by the consummation of the
transactions contemplated by this Agreement and has an
adequate amount of capital to conduct its business in the
ordinary course and to carry out its obligations under this
Agreement;
(h) Ability to Perform. As of the date hereof,
TLFC does not believe, nor does it have any reasonable cause
to believe, that it cannot perform each and every covenant
contained in this Agreement;
(i) Common Stock. Trans Leasing is the registered
owner of all the issued and outstanding capital stock of TLFC,
and the Common Stock is validly issued, fully paid and
nonassessable and owned of record by Trans Leasing, free and
clear of all mortgages, assignments, pledges, security
interests, warrants, options and rights to purchase; and
(j) Places of Business. TLFC's sole places of
business and offices are located in Northbrook, Illinois and
Wilmington, Delaware.
3.03 Purchase of Leases and Equipment by Trans Leasing.
In the event of discovery at any time that a representation or
warranty set forth in Section 3.01 is untrue in any respect, the
Secured Party or TLFC may by written notice direct Trans Leasing to
purchase each Lease materially and adversely affected by such
untruth, and all related Equipment, on or prior to the thirtieth
day after such notice is received by Trans Leasing (or such later
date as the Secured Party may specify), and Trans Leasing will
purchase each such Lease and the related Equipment, for the
Warranty Purchase Price, on or prior to such thirtieth (or later)
day; provided that Trans Leasing will not be required to purchase
any such Lease (or the related Equipment) if prior to such
thirtieth (or later) day (i) such untruth has been cured with
respect to such Lease in all material respects and (ii) Trans
Leasing delivers to the Secured Party and TLFC a certificate of a
Responsible Officer to that effect. In consideration for the
purchase of any such Lease and the related Equipment, Trans Leasing
will remit the Warranty Purchase Price to the Servicer for
allocation of such Warranty Purchase Price pursuant to the terms of
the Debt Agreement or, if not required to be so remitted by any
Debt Agreement, will remit the Warranty Purchase Price to TLFC. It
is understood and agreed that in the event that any representation
or warranty set forth in Section 3.01 is untrue, the purchase of
any affected Lease and Equipment subject to such Lease as provided
in this Section 3.03 and the indemnification provided in Section
3.04 will constitute the only remedies available to TLFC and the
Secured Party in respect of such untruth.
3.04 Indemnification. In addition to any remedy
pursuant to Section 3.03, Trans Leasing agrees to indemnify, defend
and hold TLFC harmless from and against any out of pocket expense
(including interest, penalties, reasonable attorneys' fees and
amounts paid in settlement) to which TLFC may become subject
insofar as such expense arises solely out of or is based solely
upon the untruth of any representation or warranty of Trans Leasing
set forth in Section 3.01. The obligations of Trans Leasing under
this Section 3.04 will be considered to have been relied upon by
TLFC and will survive the execution, delivery, and performance of
this Agreement regardless of any investigation made by TLFC or on
its behalf.
ARTICLE IV
COVENANTS OF TRANS LEASING AND TLFC
4.01 Trans Leasing Covenants. Trans Leasing covenants
and agrees with TLFC as follows for the benefit of TLFC and any
Secured Party:
(a) Merger, Consolidation or Assumption of the
Obligations of Trans Leasing. Any Person (i) into which Trans
Leasing may be merged or consolidated, (ii) resulting from any
merger, conversion, or consolidation to which Trans Leasing is
a party, or (iii) succeeding to the business of Trans Leasing
substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every
obligation of Trans Leasing under this Agreement, will be the
successor to Trans Leasing under this Agreement, without the
execution or filing of any document or any further act on the
part of Trans Leasing, TLFC or such Person, anything in this
Agreement to the contrary notwithstanding; provided, however,
that (x) immediately after giving effect to such transaction,
no representation or warranty made pursuant to Section 3.01
will have been breached, (y) Trans Leasing will have delivered
to TLFC a certificate of a Responsible Officer and an Opinion
of Counsel each stating that such consolidation, merger, or
succession and such agreement of assumption comply with this
Section 4.01(a) and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction
have been complied with and (z) Trans Leasing will have
delivered an Opinion of Counsel either (1) stating that, in
the opinion of such counsel, all financing statements and
continuation statements and amendments thereto that are
necessary fully to preserve and protect the interests of TLFC
in the Leases have been executed and filed or (2) stating
that, in the opinion of such counsel, no such action is
necessary to preserve and protect such interest.
(b) Limitation of Liability of Trans Leasing and
Others. Trans Leasing and any director, officer, employee or
agent of Trans Leasing may rely in good faith on any document
of any kind submitted by any Person respecting any matters
arising under this Agreement as being prima facie properly
executed. Other than in its capacity as the Servicer pursuant
to the Servicing Agreement and except as provided in Sections
3.04, 4.01(e) and 4.01(i), Trans Leasing will not be under any
obligation to appear in, prosecute, or defend any legal action
in any way relating to the Assets that is not incidental to
its obligations as the contributor and seller of the Assets
under this Agreement and that in its opinion may cause it to
incur any expense or liability.
(c) Preservation of Security Interest. Trans
Leasing will execute and file such continuation statements and
any other documents requested by TLFC to be filed or which may
be required to be filed by any legal requirement to preserve
fully and protect the interest of TLFC in, to and under the
Assets; provided, however, that Trans Leasing will not be
required to deliver physical possession of the Lease Files to
TLFC and may retain possession of the Lease Files in its
capacity as the Servicer.
(d) Preservation of Name and Office. Unless Trans
Leasing provides not less than thirty days prior written
notice to TLFC and files such amendments to any previously
filed financing or continuation statements as TLFC may
require, Trans Leasing will not (i) change the location of its
principal executive office, (ii) change its name, identity or
corporate structure in any manner which would make any
financing statement or continuation statement filed by Trans
Leasing in accordance with this Agreement seriously misleading
within the meaning of Article 9-402(7) of the UCC or
(iii) delete or otherwise modify the marking of the Lease
Management System referred to in Section 2.02(d) or Section
2.03(c) of this Agreement or the Servicing Agreement.
(e) Obligations with Respect to Leases; Defense
of Assets. Trans Leasing will do nothing to impair the rights
of TLFC in the Leases or the Equipment except as it is
expressly permitted to do so in its capacity as the Servicer
in accordance with the terms of the Servicing Agreement, and
Trans Leasing will defend the interests of TLFC in the Assets
contributed and sold hereby against all claims of third
parties claiming through or under Trans Leasing.
(f) Compliance with Law. Trans Leasing will
comply, in all material respects, with all legal requirements
applicable to Trans Leasing with respect to the Assets;
provided, however, that Trans Leasing may contest any such
legal requirement in any reasonable manner which will not
materially and adversely affect the rights of TLFC or the
Secured Party in the Assets or the value thereof.
(g) Notification of Breach. Trans Leasing will
advise TLFC, the Servicer (if Trans Leasing is not the
Servicer) and the Secured Party, in reasonable detail, of the
occurrence of any breach by Trans Leasing of any of its
representations, warranties and covenants contained herein,
promptly after it becomes aware of any such breach.
(h) Servicing Agreement. On or before the Closing
Date, Trans Leasing will enter into the servicing agreement,
to be dated as of the date hereof with TLFC and the Lender.
(i) Further Assurances. Trans Leasing will make,
execute or endorse, acknowledge and file or deliver to TLFC
from time to time such schedules, confirmatory assignments,
conveyances, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and
take such further steps relating to the Assets and other
rights covered by this Agreement as TLFC may request and
reasonably require.
(j) Indemnification. Trans Leasing agrees to
indemnify, defend and hold TLFC harmless from and against any
and all loss, liability, damage, judgment, claim, deficiency,
or expense (including interest, penalties, reasonable
attorneys' fees and amounts paid in settlement) to which TLFC
may become subject insofar as such loss, liability, damage,
judgment, claim, deficiency, or expense arises out of or is
based upon a breach by Trans Leasing of its covenants
contained in this Section 4.01. The obligations of Trans
Leasing under this Section 4.01(j) will be considered to have
been relied upon by TLFC and will survive the execution,
delivery, and performance of this Agreement regardless of any
investigation made by TLFC or on its behalf.
(k) Insurance Premiums. With respect to any
Lease on which the related Lessee pays insurance premiums
directly to Trans Leasing (or such premiums are otherwise
included in the Scheduled Lease Payments under such Lease),
until such Lease expires, otherwise terminates, is purchased
under Section 3.03 hereof or is charged-off as uncollectible
by Trans Leasing, Trans Leasing shall pay the insurance
premiums required to maintain the insurance on the related
Equipment required by such Lease.
4.02 TLFC Covenants. TLFC covenants and agrees with
Trans Leasing not to disclose to any Person (except the Secured
Party and the holders of any indebtedness issued under any Debt
Agreement) any of the information contained in the Lease Management
System, the Lease Files, the Contributed Lease Schedule, the
Purchased Lease Schedule or any Additional Lease Schedule, except
as required upon the appointment of a successor Servicer pursuant
to the Servicing Agreement or by any legal requirement. TLFC
agrees to take such measures as Trans Leasing reasonably requests
to protect and maintain the security and confidentiality of such
information and, in connection therewith, will allow Trans Leasing
to inspect the applicable security and confidentiality arrangements
during normal business hours. TLFC will provide Trans Leasing
written notice not less than five Business Days prior to any
disclosure which TLFC proposes to make in accordance with this
Section 4.02.
4.03 Grant of Security Interest. Trans Leasing
understands that TLFC intends to grant a security interest in the
Assets to the Lender pursuant to the Credit Agreement and may from
time to time hereafter grant a security interest therein to another
Secured Party under another Debt Agreement. Trans Leasing consents
to the assignment of all or any portion of this Agreement by TLFC
to the Lender and any such Secured Party. Trans Leasing agrees that
the Lender or any such Secured Party (or, in each case, the
Servicer on its behalf) may exercise the rights of TLFC hereunder
and will be entitled to all of the benefits of TLFC hereunder to
the extent provided in the Credit Agreement or the related Debt
Agreement, as applicable.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions to TLFC's Obligations. The obligations
of TLFC to accept the Required Capital Contribution and to purchase
the Purchased Assets on the Closing Date and to accept and/or
purchase, as the case may be, any Additional Assets on the related
Addition Date are subject to the satisfaction or waiver of the
following conditions as of such Closing Date or Addition Date, as
applicable:
(a) Representations and Warranties. All
representations and warranties of Trans Leasing contained in
this Agreement will be true and correct in all material
respects as of the Closing Date and such Addition Date (except
as otherwise specified herein), as if each such representation
or warranty were made as of the Closing Date or such Addition
Date;
(b) Other Information. All information concerning
the Assets provided to TLFC will be true and correct as of the
Cut-Off Date or the related Additional Cut-Off Date, as
applicable, in all material respects;
(c) Obligations. Trans Leasing will have
performed in all material respects all obligations required to
be performed by Trans Leasing on or prior to the Closing Date
or the related Addition Date, as applicable, pursuant to the
provisions of this Agreement; and
(d) Corporate Proceedings. All corporate and
legal proceedings and all instruments in connection with the
transactions contemplated by this Agreement will be satisfac-
tory in form and substance to TLFC, and TLFC will have
received from Trans Leasing such copies of documents
(including records of corporate proceedings) relevant to the
transactions herein contemplated as TLFC may reasonably have
requested.
5.02 Conditions to Trans Leasing's Obligations. The
obligations of Trans Leasing to make the Required Capital
Contribution and sell the Purchased Assets on the Closing Date, and
to contribute or sell any Additional Assets as of any Addition
Date, will be subject to the satisfaction or waiver of the
following conditions as of the Closing Date or such Addition Date,
as applicable:
(a) Representations and Warranties. All
representations and warranties of TLFC contained in this
Agreement will be true and correct in all material respects as
of the Closing Date or such Addition Date (except as otherwise
specified herein), as if each such representation or warranty
were made as of the Closing Date or such Addition Date; and
(b) Corporate Proceedings. All corporate and
legal proceedings and all instruments in connection with the
transactions contemplated by this Agreement will be
satisfactory in form and substance to Trans Leasing, and Trans
Leasing will have received from TLFC such copies of documents
(including records of corporate proceedings) relevant to the
transactions herein contemplated as Trans Leasing may
reasonably have requested.
ARTICLE VI
TERMINATION
6.01 Termination. The respective obligations and
responsibilities of Trans Leasing and TLFC created by this
Agreement will terminate upon the last to occur of (i) the maturity
or other liquidation of all Leases and (ii) the termination of all
Debt Agreements.
6.02 Effect of Termination. No termination, rejection
or failure to assume the executory obligations of this Agreement in
the bankruptcy of Trans Leasing or TLFC will be deemed to impair or
affect the obligations pertaining to any executed contribution,
executed sale or executed obligations, including breaches of
representations and warranties by Trans Leasing or TLFC prior to
termination. Without limiting the foregoing, prior to termination,
the failure of Trans Leasing to pay a Warranty Purchase Price will
not render such contribution, sale or obligations executory and the
continued respective duties of Trans Leasing and TLFC pursuant to
Article IV will not render an executed sale or contribution
executory.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.01 Amendment. This Agreement may be amended only by
written agreement of TLFC, Trans Leasing and the Secured Party.
7.02 Governing Law. This Agreement will be governed by
and construed in accordance with the domestic laws of the State of
Illinois, without giving effect to any choice of law or conflict
provision or rule (whether of the State of Illinois or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois. In furtherance of
the foregoing, the internal law of the State of Illinois will
control the interpretation and construction of this Agreement, even
in the event that under such jurisdiction's choice of law or
conflict of law analysis the substantive law of some other
jurisdiction would ordinarily apply.
7.03 Notice. Except as otherwise provided in this
Agreement, any notice or other communication herein required or
permitted to be given will be in writing and may be delivered in
person, with receipt acknowledged, or sent by United States mail,
registered or certified, return receipt requested, or by Federal
Express or other nationally recognized overnight courier service,
postage prepaid and confirmation of receipt requested, and
addressed as follows (or at such other address as may be
substituted by notice given as herein provided):
If to TLFC:
TL Lease Funding Corp. IV
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy (which copy will
not constitute notice to
TLFC) to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Sugar
If to Trans Leasing:
Trans Leasing International, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy (which copy will not constitute
notice to Trans Leasing) to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Sugar
Every notice, demand, request, consent, approval, declaration or
other communication hereunder will be deemed to have been duly
given or served on the date on which the same will have been
personally delivered, with receipt acknowledged, three (3) Business
Days after the same will have been deposited in the United States
mail or on the next succeeding Business Day if the same has been
sent by Federal Express or other nationally recognized overnight
courier service. Failure or delay in delivering copies of any
notice, demand, request, consent, approval, declaration or other
communication to the persons designated above to receive copies
will in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other
communication.
7.04 Severability of Provisions. If any covenant,
agreement, provision, or term of this Agreement is held invalid for
any reason whatsoever, then such covenant, agreement, provision, or
term will be deemed severable from the remaining covenants,
agreements, provisions, and terms of this Agreement and will in no
way affect the validity or enforceability of the other provisions
of this Agreement.
7.05 Assignment. This Agreement may not be assigned by
Trans Leasing, except as provided in Section 4.01(a) above, without
the prior written consent of TLFC and the Secured Party; and TLFC
may collaterally assign its rights under this Agreement to the
Lender pursuant to the Credit Agreement and to the Secured Party
under any related Debt Agreement, but, in all other cases this
Agreement may not be assigned by TLFC without the prior written
consent of Trans Leasing and the Secured Party.
7.06 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of TLFC or Trans
Leasing, any right, remedy, power or privilege under this Agreement
will operate as a waiver of such right, remedy, power or privilege;
nor will any single or partial exercise of any right, remedy, power
or privilege under this Agreement preclude any other or further
exercise of such right, remedy, power or privilege. The rights,
remedies, powers and privileges provided under this Agreement are
cumulative and not exhaustive of any other rights, remedies, powers
and privileges provided by law.
7.07 Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate
counterparts), each of which will be an original, but all of which
will constitute one and the same instrument.
7.08 Binding Effect; Third-Party Beneficiaries. This
Agreement will inure to the benefit of and be binding upon Trans
Leasing, TLFC, their respective successors and permitted assigns
and will also, to the extent expressly provided in Section 4.03 or
elsewhere in this Agreement, inure to the benefit of the Servicer
and the Secured Party. Except as otherwise provided in this
Agreement, no other Person will have any right or obligation
pursuant to this Agreement.
7.09 Merger and Integration. Except as specifically
stated otherwise in this Agreement, this Agreement sets forth the
entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are
superseded by this Agreement.
7.10 Headings. The headings used in this Agreement are
for purposes of reference only and will not otherwise affect the
meaning or interpretation of any provision of this Agreement.
7.11 Schedules and Exhibits. The Schedules and Exhibits
constitute a part of this Agreement and are incorporated into this
Agreement for all purposes.
7.12 No Petition Covenants. Notwithstanding any prior
termination of this Agreement, Trans Leasing shall not, prior to
the date which is one year and one day after the final distribution
with respect to the notes, certificates and other securities issued
by TLFC or any trust formed by TLFC which have been rated by any
nationally recognized statistical rating organization, acquiesce,
petition or otherwise invoke or cause TLFC to invoke the process of
any court or government authority for the purpose of commencing or
sustaining a case against TLFC under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other
similar official of TLFC or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of TLFC.
* * * * *
Trans Leasing and TLFC have caused this Contribution and
Sale Agreement to be duly executed by their respective officers as
of the day and year written above.
TRANS LEASING INTERNATIONAL, INC.
By: ______________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President-Finance
TL LEASE FUNDING CORP. IV
By: ______________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President-Finance
EXHIBIT A
FORM OF ASSIGNMENT FOR REQUIRED CAPITAL CONTRIBUTION
For value received, in accordance with the Contribution
and Sale Agreement dated as of November 28, 1995 (the "Sale
Agreement"), between Trans Leasing International, Inc., a Delaware
corporation ("Trans Leasing"), and TL Lease Funding Corp. IV, a
Delaware corporation ("TLFC"), Trans Leasing does hereby sell,
assign, transfer and otherwise convey unto TLFC, without recourse,
all of its right, title and interest in, to and under (i) the
Contributed Leases (including its obligations under the Contributed
Leases) and all monies due or to become due thereunder after
November 26, 1995, (ii) the related Equipment (other than any
licensed products that may accompany such Equipment), (iii) the
Lease Files for the Contributed Leases, (iv) any Insurance Policies
(including Trans Leasing's obligations thereunder) and the related
Insurance Proceeds with respect to the Contributed Leases and (v)
all income and proceeds relating to the foregoing.
It is the intention of Trans Leasing and TLFC that the
sales, transfers, assignments and conveyances contemplated by this
Assignment constitute a contribution of the property described
herein and in the Sale Agreement from Trans Leasing to TLFC and the
beneficial interest in and title to such property will not be part
of Trans Leasing's estate in the event of the filing of a
bankruptcy petition by or against Trans Leasing under any
bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Sale Agreement and is to be governed
by the Sale Agreement.
Capitalized terms used herein and not otherwise defined
will have the meanings assigned to them in the Sale Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of November 28, 1995.
TRANS LEASING INTERNATIONAL, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
EXHIBIT B
FORM OF ASSIGNMENT FOR PURCHASED ASSETS
For value received, in accordance with the Contribution
and Sale Agreement dated as of November 28, 1995 (the "Sale
Agreement"), between Trans Leasing International, Inc., a Delaware
corporation ("Trans Leasing"), and TL Lease Funding Corp. IV, a
Delaware corporation ("TLFC"), Trans Leasing does hereby sell,
assign, transfer and otherwise convey unto TLFC, without recourse,
all of its right, title and interest in, to and under (i) the
Purchased Leases (including its obligations under the Purchased
Leases) and all monies due or to become due thereunder after
November 26, 1995, (ii) the related Equipment (other than any
licensed products that may accompany such Equipment), (iii) the
Lease Files for the Purchased Leases, (iv) any Insurance Policies
(including Trans Leasing's obligations thereunder) and the related
Insurance Proceeds with respect to the Purchased Leases and (v) all
income and proceeds relating to the foregoing.
It is the intention of Trans Leasing and TLFC that the
sales, transfers, assignments and conveyances contemplated by this
Assignment constitute a sale of the property described herein and
in the Sale Agreement from Trans Leasing to TLFC and the beneficial
interest in and title to such property will not be part of Trans
Leasing's estate in the event of the filing of a bankruptcy
petition by or against Trans Leasing under any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Sale Agreement and is to be governed
by the Sale Agreement.
Capitalized terms used herein and not otherwise defined
will have the meanings assigned to them in the Sale Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of November 28, 1995.
TRANS LEASING INTERNATIONAL, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
EXHIBIT C
FORM OF ASSIGNMENT FOR ADDITIONAL ASSETS
For value received, in accordance with the Contribution
and Sale Agreement dated as of November 28, 1995 (the "Sale
Agreement"), between Trans Leasing International, Inc., a Delaware
corporation ("Trans Leasing"), and TL Lease Funding Corp. IV, a
Delaware corporation ("TLFC"), Trans Leasing does hereby sell,
assign, transfer and otherwise convey unto TLFC, without recourse,
(i) the Additional Assets listed on the Additional Lease Schedule
attached hereto (including Trans Leasing's obligations under the
Additional Leases) and all monies due or to become due thereunder
after [__________], (ii) the related Equipment (other than any
licensed products that may accompany any of such Equipment), (iii)
the Lease Files for such Leases, (iv) any Insurance Policies
(including Trans Leasing's obligations thereunder) and the related
Insurance Proceeds with respect to such Leases and (v) all income
and proceeds relating to the foregoing (collectively, the
"Additional Assets").
It is the intention of Trans Leasing and TLFC that the
sales, transfers, assignments and conveyances contemplated by this
Assignment constitute a contribution and/or sale of the property
described herein and in the Sale Agreement from Trans Leasing to
TLFC and the beneficial interest in and title to such property will
not be part of Trans Leasing's estate in the event of the filing of
a bankruptcy petition by or against Trans Leasing under any
bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Sale Agreement and is to be governed
by the Sale Agreement.
Capitalized terms used herein and not otherwise defined
will have the meanings assigned to them in the Sale Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of [____ __], 199[_].
TRANS LEASING INTERNATIONAL, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
EXHIBIT D
FORMS OF LEASE
See Attached.
CONTRIBUTED LEASE SCHEDULE
See Attached.
PURCHASED LEASE SCHEDULE
See Attached.
LEASE CRITERIA SCHEDULE
1. As of the Cut-Off Date or the applicable Additional Cut-
Off Date, as the case may be, the remaining term of each Lease is
between 6 months and 60 months; provided that there is no Lease
with a term that extends beyond November 30, 2000.
2. As of the Cut-Off Date or the applicable Additional Cut-
Off Date, as the case may be, no unpaid Scheduled Lease Payment
pursuant to any Lease has been due and payable for more than 30
days (other than due to administrative delays, such as initial
xxxxxxxx) and Trans Leasing has received at least one Scheduled
Lease Payment on each Lease.
SPECIFIED PORTFOLIO CHARACTERISTICS SCHEDULE
1. With respect to any Lessee, the aggregate Discounted Lease
Balance of all Leases of such Lessee does not exceed 1.5% (2.10% if
the Aggregate Discounted Lease Balance is less than $25,000,000) of
the Aggregate Discounted Lease Balance.
2. The sum of the Discounted Lease Balances of the 25 Leases
with the greatest Discounted Lease Balance does not exceed 16% (23%
if the Aggregate Discounted Lease Balance is less than $25,000,000)
of the Aggregate Discounted Lease Balance.
3. The sum of the Discounted Lease Balances of all Leases
with respect to which the related Equipment was purchased from one
Person (as determined by Trans Leasing in accordance with its
customary procedures) does not exceed 10% of the Aggregate
Discounted Lease Balance.
4. The sum of the Discounted Lease Balances of all Leases
with respect to which the related Lessees operate in the same
industry (as determined by Trans Leasing in accordance with its
customary procedures) does not exceed 30% of the Aggregate
Discounted Lease Balance.
5. The sum of the Discounted Lease Balances of all Leases
with respect to which the billing address of the related Lessees
are located in the same state does not exceed 30% of the Aggregate
Discounted Lease Balance.
6. The sum of the Discounted Lease Balances of all Leases
with respect to which the related Equipment is of the same type (as
determined by Trans Leasing in accordance with its customary
procedures) does not exceed 45% of the Aggregate Discounted Lease
Balance.
7. The average original acquisition cost of the Equipment (as
capitalized in accordance with GAAP) does not exceed $20,000.
8. The sum of the Discounted Lease Balances of all Leases
with respect to which the related Lessee is a governmental agency
does not exceed 5% of the Aggregate Discounted Lease Balance.
9. The sum of the Discounted Lease Balances of all Leases
with respect to which there has been a Skipped Payment (as defined
in the Servicing Agreement) prior to the Cut-Off Date does not
exceed 5% of the Aggregate Discounted Lease Balance as of the Cut-
Off Date.
