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EXHIBIT 10-14
-------------
PORTFOLIO PURCHASE AGREEMENT
----------------------------
PORTFOLIO PURCHASE AGREEMENT, effective as of September 1, 2000 by and
among CHEYENNE LEASING COMPANY, a New York joint venture ("Cheyenne"), GENESEE
VENTURES, INC., a New York corporation ("Genesee Ventures"), ▇▇▇▇▇▇-▇▇▇▇▇▇
ASSOCIATES, INC., a New York corporation ("▇▇▇▇▇▇-▇▇▇▇▇▇"), GENESEE CORPORATION,
a New York corporation ("Genesee"), ICON CHEYENNE LLC, a Delaware limited
liability company ("Purchaser") and each of the members of Purchaser as set
forth on the signature page hereto, each a Delaware limited partnership
(individually, a "Member" and, collectively, the "Members"). With respect to the
particular Assets listed on the Schedule of Assets as being owned by it, each of
Cheyenne and Genesee Ventures is sometimes individually referred to herein as
the "Seller". Cheyenne, Genesee Ventures (in its capacity as a joint venture
partner of Cheyenne and not as a Seller) and ▇▇▇▇▇▇-▇▇▇▇▇▇ are sometimes
collectively referred to herein as the "Sale Parties".
W I T N E S S E T H:
WHEREAS, Seller desires to sell or cause the sale to Purchaser, and
Purchaser desires to purchase from Seller, certain assets and interests pursuant
to the terms of this Agreement;
WHEREAS, Genesee Ventures and ▇▇▇▇▇▇-▇▇▇▇▇▇ are the joint venture
partners of Cheyenne, and, in such capacities, are joining in this Agreement for
the purpose of being directly obligated by the provisions of Articles 5, 6, 7,
11, 13 and 14 and Sections 3.5 and 3.6(a) hereof, as applicable;
WHEREAS, Genesee is the parent corporation of Genesee Ventures and the
owner of a majority or more of Cheyenne, and is joining this Agreement for the
purpose of being directly obligated by the provisions of Articles 8, 11, 13 and
14 and Sections 3.5 and 3.6(a) hereof, as applicable; and
WHEREAS, the Members are all of the members of Purchaser and are
joining this Agreement for the purpose of being directly obligated by the
provisions of Articles 10, 13 and 14 and Section 3.6(b) hereof, as applicable.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other valuable consideration, and subject to the terms and
conditions herein, the parties hereto agree as follows:
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DEFINITIONS
-----------
The parties agree that the following terms used in this Agreement shall
have the following meanings:
"Affiliate" means, when used with reference to a specific Person, (a)
any Person that directly or indirectly through one or more intermediaries
controls or is controlled by or is under common control with the specified
Person, (b) any person that is a shareholder, officer, director or partner in,
the specified Person or of which the specified Person is a shareholder, officer,
director or partner, or (c) any Person that is the beneficial owner of, or
controls, ten percent (10%) or more of any class of voting securities of, or any
analogous equity interest in, the specified Person.
"Agreement" means this Portfolio Purchase Agreement, as amended and in
effect from time to time.
"Aggregate Purchase Price" has the meaning set forth in Section 3.1
hereof.
"Applicable Law" means any law, rule, regulation, order, judgment or
decree issued or promulgated by any Governmental Authority.
"Arrangement Fee" has the meaning set forth in Section 3.5 hereof.
"Assets" means all of the following assets:
(a) all of Seller's title to, interest in and rights
under the Equipment;
(b) all of Seller's title to, interest in and rights
under the Leases; and
(c) all of Seller's title to, interest in and rights
under the related Lease Documents.
"Assignment and Assumption Agreement" means an instrument in the form
attached hereto as Exhibit B-1 or B-2, as applicable, or other form acceptable
to Purchaser in its sole discretion.
"Assumed Liabilities" has the meaning set forth in Section 2.2 hereof.
"Bankruptcy Event" means (a) when a Person (i) commences a voluntary
case, (ii) consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property, (iv) makes a general assignment for
the benefit of its creditors, (v) is the debtor in an involuntary case which is
not dismissed within sixty (60) days of the commencement thereof, (vi) fails to
pay its debts as such debts become due, or (vii) takes corporate, company or
partnership action in furtherance of any of the foregoing; or (b) when a court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that (i) provides for relief against a Person in an involuntary case, (ii)
appoints a Custodian of a Person for all or substantially all of its property,
or (iii) orders the liquidation of a Person.
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"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code or any similar
federal or state law for the relief of debtors.
"▇▇▇▇ of Sale" means an instrument in the form attached hereto as
Exhibit A-1 or A-2, as applicable, or other form acceptable to Purchaser in its
sole discretion.
"Business Day" means any day on which banks may conduct business in New
York, New York.
"Certificate of Delivery and Acceptance" means the certificate of
delivery and acceptance executed by a Lessee at the commencement of a Lease with
respect to the Equipment which is subject to the Lease indicating that such
Equipment has been accepted by the Lessee, and affirming that such Lease is in
full force and effect.
"Cheyenne" has the meaning set forth in the preamble hereof.
"Cheyenne Obligors" has the meaning set forth in Section 14.1 hereof.
"Claim" has the meaning set forth in Section 13.1 hereof.
"Closing" means a closing at which Seller and Purchaser transfer and
deliver all documents and instruments necessary to consummate the purchase and
sale of all or a portion of the Assets having an aggregate Equipment Cost not
less than the minimum amount established, from time to time, by Purchaser in its
sole discretion.
"Closing Date" means the date on which the parties hereto shall close
the purchase and sale of all or a portion of the Assets.
"Closing Schedule" has the meaning set forth in Section 4.2 hereof.
"Consent and Amendment" means the consent and amendment executed by
Seller, as borrower, Purchaser and Lender in connection with the assumption of
the applicable Non-Recourse Debt, acknowledging such transaction and, if
applicable, effecting certain amendments to the Loan Documents, all in the form
attached hereto as Exhibit D-1 or D-2, as applicable, or in a form otherwise
acceptable to Purchaser in its sole discretion.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" shall mean any event which, but for the giving of notice, or
the passage of time, or both, would constitute an event of default.
"Document Sets" means the two (2) document sets retained by Seller and
Purchaser, respectively, and containing copies of all Lease Documents and Loan
Documents, which copies are consecutively numbered for identification purposes.
"DOJ" shall mean the United States Department of Justice.
"Effective Date" means the effective date as set forth in the preamble
to this Agreement.
"Equipment" means the equipment described in the Schedule of Assets.
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"Equipment Cost" means the original cost of the Equipment, including
any delivery and installation costs and any sales taxes and other similar "soft"
costs.
"FTC" shall mean the United States Federal Trade Commission.
"GAAP" means United States Generally Accepted Accounting Principals
consistently applied.
"Genesee Ventures" has the meaning set forth in the preamble hereof.
"Governmental Authority" means any federal, state or local governmental
body, including any court, administrative board, general commission or
arbitrator or otherwise.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976.
"Indemnified Party" has the meaning set forth in Section 13.5 hereof.
"Indemnifying Party" has the meaning set forth in Section 13.5 hereof.
"Lease Documents" means, as applicable, originals, certified
photostatic copies or copies of the Leases, Certificates of Delivery and
Acceptance, guaranties, Remarketing Agreements, financing statements on Form
UCC-1, opinions of counsel, corporate or other diligence documents, certificates
of title, insurance certificates and/or letters of self-insurance, vendor
documents, compliance certificates, landlord's estoppel certificates and any
other present or future documents and instruments applicable to the transactions
contemplated by the Lease, together with any and all modifications and
amendments to the foregoing, all in form and substance reasonably acceptable to
Purchaser.
"Leases" means the leases described in the Schedule of Assets,
including, to the extent applicable, an original (unless any such original is
held by the original lessor thereunder, and then a certified copy) of each
master lease, if any, and an original (unless any such original is held by a
Lender as security for a Non-Recourse Debt, and then a certified copy) of each
applicable Rental Schedule (but not other rental schedules), if any, but in any
event an original (unless any such original is held by a Lender as security for
a Non-Recourse Debt, and then a certified copy) of all documents and instruments
of similar tenor which constitute chattel paper under the applicable Uniform
Commercial Code, and any modifications and amendments to the foregoing.
"Lender" means the lender under a Loan Document.
"Lessee" means the lessee under a Lease.
"Liens" means:
(a) any encumbrance, mortgage, pledge, lien, charge or
security interest of any kind upon any property or
assets of the applicable Person, whether now owned or
hereafter acquired, or upon the income or profits
therefrom;
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(b) any arrangement or agreement which prohibits the
applicable Person from creating encumbrances,
mortgages, pledges, liens, charges or security
interests, or any arrangement or agreement
subordinating the interest of the applicable Person
to another Person;
(c) the acquisition of, or the agreement to acquire, any
property or asset upon conditional sale or subject to
any other title retention agreement, device or
arrangement (including a capitalized lease); or
(d) the sale, assignment, pledge or transfer for security
of any accounts, general intangibles or chattel paper
of the applicable Person, with or without recourse.
"Loan Documents" means, as applicable, all promissory notes, loan
agreements, security agreements, financing statements on Form UCC-1, and other
present or future documents and instruments evidencing or securing the
Non-Recourse Debt, together with any and all modifications and amendments to the
foregoing.
"Material Adverse Effect" shall mean an effect on the specified Person
which could materially and adversely affect the business, assets or condition,
financial or otherwise, or the results of operations, of the specified Person or
any subsidiary (on an individual basis) or the Person and its subsidiaries (on a
consolidated basis), or the ability of the specified Person to meet its
obligations under the Lease Documents, Loan Documents or Seller Documents (or
similar instruments), as applicable, or the validity or enforceability of any of
the foregoing.
"Non-Recourse Debt" means the outstanding non-recourse debt of Seller
secured by the Assets as set forth on the Schedule of Non-Recourse Debt.
"Notice and Acknowledgment of Assignment" means the notice and
acknowledgment of assignment executed by Seller, as lessor, Lessee, as lessee,
Purchaser and Lender in connection with the assignment of the applicable Leases,
acknowledging such transactions and confirming certain information for the
benefit of Purchaser, all in the form attached hereto as Exhibit C-1, C-2 or
C-3, as applicable, or in a form otherwise acceptable to Purchaser in its sole
discretion.
"Noticed Claims" has the meaning set forth in Section 13.3 hereof.
"Obligors" has the meaning set forth in Section 14.1 hereof.
"Permitted Liens" means Liens as expressly contemplated by the Lease
Documents and the Lien of the applicable Lender.
"Person" means an individual person, corporation, company, association,
partnership, joint venture, trust, business trust, trustee, organization,
business, or government or any governmental agency or political subdivision
thereof.
"Purchase Price" has the meaning set forth in Section 3.2 hereof.
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"Purchaser" has the meaning set forth in the preamble hereof.
"Rental Schedule" means the rental schedule, if any, executed by Lessee
pursuant to a master lease, if any, all as further described on the Schedule of
Assets.
"Remarketing Agreements" has the meaning set forth in Section 5.6(g)
hereof.
"Sale Parties" has the meaning set forth in the preamble hereof.
"Schedule of Assets" means the schedule attached hereto as Schedule 1,
which sets forth a description of the Assets and the portion of the Aggregate
Purchase Price allocable to each Lease and the Equipment covered thereunder and
Lease Documents related thereto.
"Schedule of Non-Recourse Debt" means the schedule attached hereto as
Schedule 2, which sets forth a description of the Non-Recourse Debt and
identifies the Loan Documents and the Lenders.
"Seller" has the meaning set forth in the preamble hereof.
"Seller Documents" means this Agreement, the ▇▇▇▇ of Sale, the
Assignment and Assumption Agreement, the Notice and Acknowledgment of
Assignment, the Consent and Amendment, any other documents and instruments
necessary to assign legal or equitable title to the Assets, financing statements
on Form UCC-3 assigning any "protective" or "informational" filings against
Lessees (unless such filings have been assigned to one or more Lenders), or, in
the absence of such filings, financing statements on Form UCC-1 constituting
protective or informational filings against such Lessees and naming any
applicable Lender as assignee, if required, and any other document, instrument
or agreement attached to any of the foregoing or otherwise related thereto, all
in form and substance acceptable to Purchaser in its sole discretion.
"▇▇▇▇▇▇-▇▇▇▇▇▇" has the meaning set forth in the preamble hereof.
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF CERTAIN LIABILITIES
--------------------------------------------------------------
Purchase and Sale of Assets
---------------------------
Subject to the terms and conditions hereof, Seller hereby agrees to
sell, transfer, assign and deliver to Purchaser from time to time, and Purchaser
hereby agrees to purchase, acquire and take assignment and delivery from Seller
of, the Assets, free and clear of all Liens other than Permitted Liens.
Assumption of Certain Liabilities
---------------------------------
Subject to the terms and conditions hereof, Purchaser hereby agrees to
assume from time to time only the liabilities and obligations of Seller under
the Leases and related Lease Documents, and with respect to the Non-Recourse
Debt (collectively, the "Assumed Liabilities"), in each case arising from and
after the Closing Date with respect to the particular Assets to which the
Assumed Liabilities relate.
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AGGREGATE PURCHASE PRICE; ADJUSTMENT; PAYMENT
---------------------------------------------
Aggregate Purchase Price
------------------------
The aggregate purchase price for the Assets shall be an amount equal to
Fifteen Million Two Hundred Twenty-One Thousand Seven Hundred Seventy-One
Dollars ($15,221,771), subject to adjustment as set forth in Section 3.3 hereof
(the "Aggregate Purchase Price").
Allocation of Aggregate Purchase Price
--------------------------------------
The Aggregate Purchase Price shall be allocated among the Assets as set
forth in the Schedule of Assets. The portion of the Aggregate Purchase Price
allocable to the Assets being purchased and sold at a Closing is sometimes
referred to as the "Purchase Price".
Adjustment of Purchase Price
----------------------------
The Purchase Price with respect to the Assets to be purchased at each
Closing shall be adjusted by (a) subtracting therefrom an amount equal to the
aggregate amount of all cash received under the applicable Leases, including
payments of casualty or stipulated loss values, early termination values and
other amounts received by Seller, on or after September 1, 2000 and (b) adding
thereto interest at the rate of (i) ten percent (10%) per annum through December
1, 2000 and (ii) eight percent (8%) thereafter, in each case on the balance of
the Purchase Price, as adjusted from time to time in accordance with this
Section 3.3, outstanding from September 1, 2000 to the applicable Closing Date.
Payment
-------
At each Closing, Purchaser shall pay to Seller the Purchase Price by
wire transfer of immediately available funds in US dollars to an account or
accounts designated by Seller in writing.
Arrangement Fee
---------------
At each Closing, Cheyenne shall be responsible for the payment of an
arrangement fee (the "Arrangement Fee") to Spinnaker Capital Corporation in an
amount equal to the product of (a) Two Hundred Twenty-Five Thousand Dollars
($225,000) multiplied by (b) a fraction, the numerator of which shall be the
Purchase Price of the Assets being purchased and sold at such Closing exclusive
of any interest added thereto pursuant to Section 3.3 hereof, and the
denominator of which shall be the Aggregate Purchase Price exclusive of any such
interest. and The Sale Parties and Genesee jointly and severally agree to
indemnify and hold Purchaser harmless from and against any and all Claims
resulting or arising from any failure or breach by Cheyenne of its obligation
under this Section 3.5.
Taxes, Fees
-----------
(a) Seller shall be liable for all fees and charges (exclusive of stamp
taxes), if any, created by the filing and the recording of all financing
statements on Form UCC-3 assigning any "protective" or "informational" filings
against Lessees (unless such filings have been assigned to one or more Lenders),
or in the absence of such filings, financing statements on Form UCC-1
constituting protective or informational filings against such Lessees and naming
any applicable Lender as assignee. The Sale Parties and Genesee jointly and
severally agree to indemnify and hold Purchaser harmless from and against any
and all Claims resulting or arising from any failure or breach by Seller of its
obligations under this Section 3.6(a).
(b) Purchaser shall be liable for all (i) federal, state and local
sales taxes created by or as a result of the transactions contemplated hereby,
(ii) all stamp taxes, if any, created by the
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filing and the recording of all documents and instruments reflecting Purchaser's
interest in any of the Assets sold hereunder and (iii) all fees, charges and
stamp taxes, if any, created by the filing and the recording of all documents
and instruments naming Purchaser as debtor and naming a Lender as secured party.
In the event that a taxing jurisdiction shall audit or otherwise question
Seller's failure to pay any sales tax in connection with the transactions
contemplated hereby, Purchaser agrees to provide Seller with any applicable
resale exemption certificate or other evidence of its exemption from such tax.
Purchaser and the Members jointly and severally agree to indemnify and hold the
Sale Parties harmless from and against any and all Claims resulting or arising
from any failure or breach by Purchaser of its obligations under this Section
3.6(b).
CLOSING
-------
In General
----------
Subject to the satisfaction or written waiver of the conditions set
forth in Section 12, Purchaser and Seller shall close the purchase by Purchaser
of the Assets in one or more tranches, with the first such tranche occurring on
or about October 20, 2000 and any subsequent tranches each occurring on the
later of such date or five (5) Business Days after Seller's delivery to
Purchaser of each of the documents and instruments set forth and described in
Section 4.2 hereof. Subject to the terms and conditions hereof, the parties
hereto intend to be and remain obligated to consummate the transactions
contemplated hereby and the parties intend that there shall be no termination or
"upset" date or otherwise with respect to such obligations.
Procedure
---------
With respect to each proposed closing, Seller shall deliver to
Purchaser at least five (5) Business Days prior to a proposed Closing Date:
(a) a schedule (the "Closing Schedule") setting forth a
description of the Assets to be sold to Purchaser at
such Closing, the Equipment Cost of the Equipment
included therein, which Equipment Cost shall not, in
the aggregate, be less than the minimum amount
established, from time to time, by Purchaser in its
sole discretion, and the Purchase Price, calculated
in accordance with Section 3 hereof;
(b) each Lease Document and Loan Document relevant to the
proposed transaction as collectively certified by
Seller to be all of the Lease Documents and Loan
Documents relevant to the proposed transaction and
identical to the corresponding documents contained in
the Document Sets at the relevant page numbers;
(c) an original of each Seller Document relevant to the
proposed transaction; and
(d) such other documents and information as Purchaser may
reasonably request.
Closing Costs
-------------
Except to the extent otherwise expressly set forth herein, each party
hereto shall be liable for its own costs and expenses, including attorneys'
fees, in connection with this Agreement and the transactions contemplated
hereby.
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REPRESENTATIONS AND WARRANTIES OF THE SALE PARTIES
--------------------------------------------------
As of the date of this Agreement and as of each Closing Date, the Sale
Parties jointly and severally represent and warrant to Purchaser as follows:
Organization
------------
Cheyenne is a joint venture validly existing under the laws of the
State of New York and is qualified to do business and in good standing as a
foreign joint venture under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not result in a
Material Adverse Effect. Cheyenne has full power, authority and legal right to
(a) execute and deliver, and to perform and observe the provisions of this
Agreement and each of the other Seller Documents to which Cheyenne is a party,
(b) execute and deliver, and to perform and observe the provisions of each of
the Lease Documents and Loan Documents, to which it is a party, (c) acquire,
hold, and lease the Equipment and (d) carry out the transactions contemplated in
this Agreement and each of the other Seller Documents to which it is a party.
Authority
---------
(a) The execution and delivery of this Agreement and each of the other
Seller Documents to which Cheyenne is a party, and the consummation of each of
the transactions contemplated hereby and thereby, have been duly and validly
authorized by or on behalf of Cheyenne; and this Agreement and such other Seller
Documents have been, or will be when executed, duly executed and delivered by
Cheyenne and constitute the valid and legally binding obligations of Cheyenne,
enforceable in accordance with their respective terms, except as enforcement may
be limited by bankruptcy, insolvency or similar laws or general principles of
equity affecting the enforcement of creditors' rights generally from time to
time in effect.
(b) The execution and delivery of this Agreement and each of the other
Seller Documents to which Cheyenne is a party, the compliance with the
provisions hereof and thereof, and the consummation of the transactions herein
and therein contemplated have not and will not result in (i) a breach or
violation of (A) any Applicable Law applicable to Cheyenne now in effect, (B)
any provision of the constituent documents of Cheyenne, (C) any agreement or
instrument to which Cheyenne is a party or by which it or any of its properties
or assets is bound or affected, (ii) the acceleration of any obligation of
Cheyenne, or (iii) the creation of any Lien upon the Equipment.
Title to Assets
---------------
(a) Immediately prior to the time of a Closing, Cheyenne will have good
and marketable indefeasible title to, and shall be the sole owner of, the Assets
listed on the applicable Closing Schedule as being owned by it, and there shall
have been no other sale, assignment, encumbrance or pledge thereof by Cheyenne,
except Permitted Liens, and immediately upon the transfer and assignment
contemplated by this Agreement, Purchaser shall have good and marketable
indefeasible title to, and will be the sole owner of, the Assets listed on the
applicable Closing Schedule as being owned by Cheyenne, subject to Permitted
Liens.
(b) The information set forth in the Schedule of Assets, Schedule of
Non-Recourse Debt and each Closing Schedule with respect to the Assets and the
Non-Recourse Debt to be assigned by Cheyenne is true, correct and complete in
all respects.
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Litigation
----------
There are no actions, suits, proceedings or investigations at law or in
equity pending or, to the reasonable knowledge of the Sale Parties, threatened,
before any Governmental Authority against or affecting Cheyenne or any of its
Affiliates which, if decided adversely, could have a Material Adverse Effect on
such Person.
Compliance With Law, Etc.
-------------------------
Cheyenne is not (a) in violation of any term or provision of its
constituent documents, or (b) in violation of or default under any term or
provision of any agreement or instrument to which Cheyenne is a party or by
which Cheyenne or any of its properties or assets is bound or affected, or (c)
in violation of any judgment, order, writ, injunction, decree or demand of any
court or Governmental Authority, or (d) in violation of any Applicable Law by
which Cheyenne or any of its properties or assets is bound or affected. The
execution, delivery and performance of this Agreement and each of the other
Seller Documents, and the consummation of the transactions contemplated hereby
and thereby will not violate or constitute a Default under the constituent
documents of Cheyenne or any term or provision of any agreement or instrument to
which Cheyenne is a party or by which Cheyenne or any of its properties or
assets is bound or affected, and none of such agreements or instruments imposes
or is made in contemplation of any obligation which is or will be inconsistent
with any other obligation imposed upon Cheyenne under this Agreement or any of
the other Seller Documents. Except for any filings and approvals required under
the HSR Act, no approval by, authorization of, or filing with any Governmental
Authority or any third party is necessary in connection with the execution and
delivery of this Agreement or any of the other Seller Documents by Cheyenne.
Leases and Loans
----------------
(a) Each of the Leases and the other Lease Documents to be assigned by
Cheyenne at a Closing has been duly authorized, executed and delivered by
Cheyenne and the Lessees, the Lessees have accepted the Equipment under such
Leases, and the Leases and the other Lease Documents are and will, at the time
of such Closing, be valid, binding and enforceable against the Lessees in
accordance with their respective terms and in full force and effect. The
representations and warranties made by the Lessees in such Lease Documents are
true and correct on and as of the Closing Date as if made thereon (unless such
representations and warranties specifically relate to an earlier date); the
Lessees have not taken any action which might result in the creation of any Lien
on the Equipment, except Permitted Liens; no change has occurred in the
condition, financial or otherwise, of any Lessee which might have a Material
Adverse Effect on such Lessee; Cheyenne has not breached any of its obligations
under any the Lease Documents; all permits, licenses and certificates which are
necessary to permit the use of the Equipment in accordance with the provisions
of the Leases have been obtained and are in full force and effect; there has
been no material damage or event of loss with respect to the Equipment nor is
there any condemnation proceeding pending with respect thereto; no Default
exists under any of such Leases or the other Lease Documents; each Lessee
executed only one (1) original counterpart of each Lease, denominated as
counterpart no. 1 or "Original"; no such Lease is a "consumer lease" as defined
in Section 2A-103(1)(e) of the Uniform Commercial Code; and the Lessees under
such Leases are responsible for the maintenance of the Equipment and such Leases
require the Lessees to assume all risk of loss for such Equipment.
(b) Each of the Loan Documents evidencing and securing the Non-Recourse
Debt to be assumed from Cheyenne at a Closing has been duly authorized, executed
and delivered by Cheyenne. The representations and warranties made by Cheyenne
in such Loan Documents are
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true and correct on and as of the Closing Date as if made thereon (unless such
representations and warranties specifically relate to an earlier date); Cheyenne
has not taken any action which might result in the creation of any Lien on the
Equipment, except Permitted Liens; Cheyenne has not breached any of its
obligations under any of such Loan Documents; and no Default exists under any of
such Loan Documents.
(c) Cheyenne has delivered to Purchaser on or before the applicable
Closing Date, a true, correct and complete copy of the Lease Documents and Loan
Documents to be assigned by it at a Closing.
(d) The Lessees' obligations under the Leases to be assigned by
Cheyenne are absolute and unconditional and are not subject to any reductions,
abatements, set offs, defenses or counterclaims and, to the Sale Parties'
knowledge, no such rights have been asserted or threatened with respect to such
Leases. No payment under any of the Lease Documents to be assigned by Cheyenne
has been prepaid.
(e) Cheyenne has complied in connection with the transactions
contemplated by the Lease Documents and Loan Documents to be assigned by it, and
will continue to so comply as of the Closing Date, with all Applicable Laws,
including, without limitation, usury, equal credit opportunity,
truth-in-lending, disclosure, and recording laws.
(f) Except as set forth on Schedule 5.6(f) attached hereto, which
Schedule describes in reasonable detail all self-insurance arrangements approved
by Cheyenne with respect to one or more Leases to be assigned by it, the Lessees
under such Leases, and Cheyenne under the related Non-Recourse Debt, are
required to maintain casualty insurance with respect to the Equipment; as of the
Closing Date, all policies of insurance required by such Lease Documents and
Loan Documents have been validly issued and remain in full force and effect; and
Cheyenne has caused and will cause to be performed any and all acts required to
assign its rights and interests to Purchaser, including, without limitation,
notification of insurers, assignment of policies or interests therein and
establishment of co-insured and joint loss payee rights in favor of Purchaser.
(g) Except as set forth on Schedule 5.6(g) attached hereto, which
Schedule identifies all remarketing agreements ("Remarketing Agreements")
between Cheyenne and various third parties with respect to the Assets, all
brokers and other persons having a claim for a commission, fee or like
arrangement arising out of any Lease to be assigned by Cheyenne or the related
Non-Recourse Debt have been fully paid and satisfied, and all such brokers or
other Persons are duly licensed and authorized to refer such transactions to
Cheyenne.
(h) As of the Closing Date, none of the Lessees leasing Equipment under
Leases to be assigned by Cheyenne is subject to any proceedings under any
Bankruptcy Law.
(i) The Leases to be assigned by Cheyenne and the related Non-Recourse
Debt are United States dollar-denominated obligations.
(j) Neither the Leases or the Remarketing Agreements to be assigned by
Cheyenne nor the related Non-Recourse Debt requires the prior consent of or
notification to the Lessees or the Lenders or contain any other restriction on
the transfer, assignment or assumption, as applicable, of such Leases or
Non-Recourse Debt (other than a consent or waiver of any such restriction that
has been obtained prior to the Closing Date, and a copy of which has been
provided to Purchaser prior to the Closing Date).
Page 245 of 272
(k) No Lease to be assigned by Cheyenne is an obligation of any
Governmental Authority.
(l) The Lessees under the Leases to be assigned by Cheyenne, and the
Lenders under the related Non-Recourse Debt have been notified of the assignment
of such Leases to, and the assumption of such Non-Recourse Debt by, Purchaser
and each such Lessee and Lender has executed a Notice and Acknowledgment of
Assignment, a Consent and Amendment and/or one or more similar documents
acceptable to Purchaser, in its sole discretion, as applicable, a copy of each
of which has been provided to Purchaser prior to the Closing Date.
(m) All of the Leases to be assigned by Cheyenne have been created in
the ordinary course of business of Cheyenne or were acquired by Cheyenne in the
ordinary course of its business. All such Leases are and have been reported on
Cheyenne's tax returns as "true leases", and Cheyenne has not received any
notice from the Internal Revenue Service challenging Cheyenne's treatment of any
such Lease as a true lease.
(n) Except as otherwise set forth on Schedule 5.6(n) attached hereto,
which Schedule describes in reasonable detail all titling arrangements pursuant
to which any motor vehicles included in the Assets listed on the Schedule of
Assets as being owned by Cheyenne is titled other than in the name of Cheyenne,
all titled motor vehicles included in the Assets are titled in the name of
Cheyenne.
(o) Except as otherwise set forth on Schedule 5.6(o) attached hereto,
the end of Lease purchase options available to the Lessees under the Leases to
be assigned by Cheyenne are at fair market value.
Financial Statements
--------------------
All financial statements of Cheyenne, any Affiliate of Cheyenne and any
other Person furnished to Purchaser in connection herewith were prepared in
accordance with GAAP (except as therein otherwise set forth), and fairly present
the financial condition of the Persons covered thereby at the dates thereof and
the results of their operations for the periods covered thereby (subject to
year-end adjustments in the case of interim financial statements), and no such
Person has any known contingent liabilities of any material amount which are not
referred to in such financial statements or in the notes thereto. The assets of
each such Person are set forth in such financial statements.
Changes in Condition
--------------------
Since the date of the most recently delivered financial statements
referred to in Section 5.7 hereof, such Persons have not been subject to any
Material Adverse Effect. Since such date, none of such Persons has entered into
any material transaction outside of the ordinary course of business.
Tax Returns
-----------
Cheyenne and each of its Affiliates has filed all tax returns which are
required to be filed, and, if applicable, each such Person has paid, or made
adequate provision for the payment of, all taxes which have or may become due
pursuant to such returns, to assessments received or as a result of any matters
raised by audits or other causes known to such Person. The charges, accruals and
reserves on the books of such Person in respect of any taxes or other
governmental charges are adequate.
Page 246 of 272
Solvency
--------
(a) The fair salable value of the assets of Cheyenne exceeds, as of the
date hereof, and will, immediately following each Closing and after giving
effect to the application of the proceeds of such Closing, exceed the amount
that will be required to be paid on or in respect of its existing debts and
other liabilities (including contingent liabilities) as they mature.
(b) The assets of Cheyenne do not, as of the date hereof, and will not,
immediately following each Closing and after giving effect to the application of
the proceeds of such Closing, constitute unreasonably small capital to carry out
its business as conducted or as proposed to be conducted.
(c) Cheyenne does not intend to, or believe that it will, incur debts
beyond its ability to pay such debts as they mature taking into account the
timing of and amounts of cash to be received by Cheyenne, and the timing of and
amounts of cash to be payable on or in respect of indebtedness of Cheyenne.
No Liability
------------
Cheyenne has no liabilities or obligations to any Person in connection
with its acquisition and holding of the Assets listed on the Schedule of Assets
as being owned by it other than obligations pursuant to the related Non-Recourse
Debt.
Disclosure
----------
Neither this Agreement or any other Seller Document nor any Lease
Document or Loan Document contains any untrue statement of material fact or
omits to state a material fact necessary in order to make the statements
contained therein not misleading. There is no fact known to the Sale Parties
which has or in the future may (so far as the Sale Parties can now foresee) have
a Material Adverse Effect on Cheyenne.
Incorporation by Reference
--------------------------
The representations and warranties of Cheyenne contained in each of the
Seller Documents, Lease Documents and Loan Documents are true and correct, and
such representations and warranties are incorporated in this Agreement as though
fully set forth herein.
Brokers
-------
Except for the Arrangement Fee payable by Cheyenne to Spinnaker Capital
Corporation, no broker or any other Person has any claim for any commission fee
or the like arising out of or in connection with the transactions contemplated
hereby.
Disclaimer
----------
EXCEPT AS SPECIFICALLY SET FORTH HEREIN AND IN THE SCHEDULES AND
EXHIBITS HERETO, THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE EXPRESSLY IN
LIEU OF ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF THE SALE
PARTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE SELECTION, QUALITY OR
CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, ITS SUITABILITY, ITS FITNESS
FOR A PARTICULAR PURPOSE, THE OPERATION OR PERFORMANCE OF THE EQUIPMENT OR THE
MAINTENANCE THEREOF OR PATENT INFRINGEMENT OR THE LIKE.
Page 247 of 272
REPRESENTATIONS AND WARRANTIES OF GENESEE VENTURES
--------------------------------------------------
As of the date of this Agreement and as of each Closing Date, Genesee
Ventures further represents and warrants to Purchaser as follows:
Organization
------------
Genesee Ventures is a corporation duly formed, validly existing and in
good standing under the laws of the State of New York, and is qualified to do
business and in good standing as a foreign corporation under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the failure to be so
qualified would not result in a Material Adverse Effect. Genesee Ventures has
full power, authority and legal right to (a) execute and deliver, and to perform
and observe the provisions of this Agreement and each of the other Seller
Documents to which it is a party, (b) execute and deliver, and to perform and
observe the provisions of each of the Lease Documents and Loan Documents to
which it is a party, (c) acquire, hold, and lease the Equipment, if applicable,
and (d) carry out the transactions contemplated in this Agreement and each of
the other Seller Documents to which it is a party.
Authority
---------
(a) The execution and delivery of this Agreement and each of the other
Seller Documents to which Genesee Ventures is a party, and the consummation of
each of the transactions contemplated hereby and thereby, have been duly and
validly authorized by or on behalf of Genesee Ventures; and this Agreement and
such other Seller Documents have been, or will be when executed, duly executed
and delivered by Genesee Ventures and constitute the valid and legally binding
obligations of Genesee Ventures, enforceable in accordance with their respective
terms, except as enforcement may be limited by bankruptcy, insolvency or similar
laws or general principles of equity affecting the enforcement of creditors'
rights generally from time to time in effect.
(b) The execution and delivery of this Agreement and each of the other
Seller Documents to which Genesee Ventures is a party, the compliance with the
provisions hereof and thereof, and the consummation of the transactions herein
and therein contemplated have not and will not result in (i) a breach or
violation of (A) any Applicable Law applicable to Genesee Ventures now in
effect, (B) any provision of the constituent documents of Genesee Ventures, (c)
any agreement or instrument to which Genesee Ventures is a party or by which it
or any of its properties or assets is bound or affected, (ii) the acceleration
of any obligation of Genesee Ventures, or (iii) the creation of any Lien upon
the Equipment.
Title to Assets
---------------
(a) Immediately prior to the time of a Closing, Genesee Ventures will
have good and marketable indefeasible title to, and shall be the sole owner of,
the Assets listed on the applicable Closing Schedule as being owned by it, and
there shall have been no other sale, assignment, encumbrance or pledge thereof
by Genesee Ventures, except Permitted Liens, and immediately upon the transfer
and assignment contemplated by this Agreement, Purchaser shall have good and
marketable indefeasible title to, and will be the sole owner of, the Assets
listed on the applicable Closing Schedule as being owned by Genesee Ventures,
subject to Permitted Liens.
(b) The information set forth in the Schedule of Assets, Schedule of
Non-Recourse Debt and each Closing Schedule with respect to the Assets and
Non-Recourse Debt to be assigned by Genesee Ventures is true, correct and
complete in all respects.
Page 248 of 272
Litigation
----------
There are no actions, suits, proceedings or investigations at law or in
equity pending or, to the reasonable knowledge of Genesee Ventures, threatened,
before any Governmental Authority against or affecting Genesee Ventures or any
of its Affiliates which, if decided adversely, could have a Material Adverse
Effect on such Person.
Compliance With Law, Etc.
-------------------------
Genesee Ventures is not (a) in violation of any term or provision of
its constituent documents, or (b) in violation of or default under any term or
provision of any agreement or instrument to which Genesee Ventures is a party or
by which it or any of its properties or assets is bound or affected, or (c) in
violation of any judgment, order, writ, injunction, decree or demand of any
court or Governmental Authority, or (d) in violation of any Applicable Law by
which Genesee Ventures or any of its properties or assets is bound or affected.
The execution, delivery and performance of this Agreement and each of the other
Seller Documents and the consummation of the transactions contemplated hereby
and thereby will not violate or constitute a Default under the constituent
documents or any term or provision of any agreement or instrument to which
Genesee Ventures is a party or by which it or any of its properties or assets is
bound or affected, and none of such agreements or instruments imposes or is made
in contemplation of any obligation which is or will be inconsistent with any
other obligation imposed upon Genesee Ventures under this Agreement or any of
the other Seller Documents. Except for any filings and approvals required under
the HSR Act, no approval by, authorization of, or filing with any Governmental
Authority or any third party is necessary in connection with the execution and
delivery of this Agreement or any of the other Seller Documents by Genesee
Ventures.
Leases and Loans
----------------
(a) Each of the Leases and the other Lease Documents to be assigned by
Genesee Ventures at a Closing has been duly authorized, executed and delivered
by Genesee Ventures and the Lessees, the Lessees have accepted the Equipment
under such Leases, and the Leases and the other Lease Documents are and will, at
the time of such Closing, be valid, binding and enforceable against the Lessees
in accordance with their respective terms and in full force and effect. The
representations and warranties made by the Lessees in such Lease Documents are
true and correct on and as of the Closing Date as if made thereon (unless such
representations and warranties specifically relate to an earlier date); the
Lessees have not taken any action which might result in the creation of any Lien
on the Equipment, except Permitted Liens; no change has occurred in the
condition, financial or otherwise, of any Lessee which might have a Material
Adverse Effect on such Lessee; Genesee Ventures has not breached any of its
obligations under any the Lease Documents; all permits, licenses and
certificates which are necessary to permit the use of the Equipment in
accordance with the provisions of the Leases have been obtained and are in full
force and effect; there has been no material damage or event of loss with
respect to the Equipment nor is there any condemnation proceeding pending with
respect thereto; no Default exists under any of such Leases or the other Lease
Documents; each Lessee executed only one (1) original counterpart of each Lease,
denominated as counterpart no. 1 or "Original"; no such Lease is a "consumer
lease" as defined in Section 2A-103(1)(e) of the Uniform Commercial Code; and
the Lessees under such Leases are responsible for the maintenance of the
Equipment and such Leases require the Lessees to assume all risk of loss for
such Equipment.
(b) Each of the Loan Documents evidencing and securing the Non-Recourse
Debt to be assumed from Genesee Ventures at a Closing has been duly authorized,
executed and
Page 249 of 272
delivered by Genesee Ventures. The representations and warranties made by
Genesee Ventures in such Loan Documents are true and correct on and as of the
Closing Date as if made thereon (unless such representations and warranties
specifically relate to an earlier date); Genesee Ventures has not taken any
action which might result in the creation of any Lien on the Equipment, except
Permitted Liens; Genesee Ventures has not breached any of its obligations under
any of such Loan Documents; and no Default exists under any of such Loan
Documents.
(c) Genesee Ventures has delivered to Purchaser on or before the
applicable Closing Date, a true, correct and complete copy of the Lease
Documents and Loan Documents to be assigned by and assumed from it at a Closing.
(d) The Lessees' obligations under the Leases to be assigned by Genesee
Ventures are absolute and unconditional and are not subject to any reductions,
abatements, set offs, defenses or counterclaims and, to Genesee Ventures'
knowledge, no such rights have been asserted or threatened with respect to such
Leases. No payment under any of the Lease Documents to be assigned by Genesee
Ventures has been prepaid.
(e) Genesee Ventures has complied in connection with the transactions
contemplated by the Lease Documents and Loan Documents to be assigned by it, and
will continue to so comply as of the Closing Date, with all Applicable Laws,
including, without limitation, usury, equal credit opportunity,
truth-in-lending, disclosure, and recording laws.
(f) Except as set forth on Schedule 6.6(f) attached hereto, which
Schedule describes in reasonable detail all self-insurance arrangements approved
by Genesee Ventures with respect to one or more Leases to be assigned by it, the
Lessees under such Leases, and Genesee Ventures under the related Non-Recourse
Debt, are required to maintain casualty insurance with respect to the Equipment;
as of the Closing Date, all policies of insurance required by such Lease
Documents and Loan Documents have been validly issued and remain in full force
and effect; and Genesee Ventures has caused and will cause to be performed any
and all acts required to assign its rights and interests to Purchaser,
including, without limitation, notification of insurers, assignment of policies
or interests therein and establishment of co-insured and joint loss payee rights
in favor of Purchaser.
(g) Except as set forth on Schedule 6.6(g) attached hereto, which
Schedule identifies all Remarketing Agreements between Genesee Ventures and
various third parties with respect to the Assets, all brokers and other persons
having a claim for a commission, fee or like arrangement arising out of any
Lease to be assigned by Genesee Ventures or the related Non-Recourse Debt have
been fully paid and satisfied, and all such brokers or other Persons are duly
licensed and authorized to refer such transactions to Genesee Ventures.
(h) As of the Closing Date, none of the Lessees leasing Equipment under
Leases to be assigned by Genesee Ventures is subject to any proceedings under
any Bankruptcy Law.
(i) The Leases to be assigned by Genesee Ventures and the related
Non-Recourse Debt are United States dollar-denominated obligations.
(j) Neither the Leases or the Remarketing Agreements to be assigned by
Genesee Ventures nor the related Non-Recourse Debt requires the prior consent of
or notification to the Lessees or the Lenders or contain any other restriction
on the transfer, assignment or assumption, as applicable, of such Leases or
Non-Recourse Debt (other than a consent or waiver of any such
Page 250 of 272
restriction that has been obtained prior to the Closing Date, and a copy of
which has been provided to Purchaser prior to the Closing Date).
(k) No Lease to be assigned by Genesee Ventures is an obligation of any
Governmental Authority.
(l) The Lessees under the Leases to be assigned by Genesee Ventures,
and the Lenders under the related Non-Recourse Debt have been notified of the
assignment of such Leases to, and the assumption of such Non-Recourse Debt by,
Purchaser and each such Lessee and Lender has executed a Notice and
Acknowledgment of Assignment, a Consent and Amendment and/or one or more similar
documents acceptable to Purchaser, in its sole discretion, as applicable, a copy
of each of which has been provided to Purchaser prior to the Closing Date.
(m) All of the Leases to be assigned by Genesee Ventures have been
created in the ordinary course of business of Genesee Ventures or were acquired
by Genesee Ventures in the ordinary course of its business. All such Leases are
and have been reported on Genesee Ventures' tax returns as "true leases", and
Genesee Ventures has not received any notice from the Internal Revenue Service
challenging Genesee Ventures' `treatment of any such Lease as a true lease.
(n) Except as otherwise set forth on Schedule 6.6(n) attached hereto,
which Schedule describes in reasonable detail all titling arrangements pursuant
to which any motor vehicles included in the Assets listed on the Schedule of
Assets as being owned by Genesee Ventures is titled other than in the name of
Genesee Ventures, all titled motor vehicles included in the Assets are titled in
the name of Genesee Ventures.
(o) Except as otherwise set forth on Schedule 6.6(o) attached hereto,
the end of Lease purchase options available to the Lessees under the Leases to
be assigned by Genesee Ventures are at fair market value.
Financial Statements
--------------------
All financial statements of Genesee Ventures, any Affiliate of Genesee
Ventures and any other Person furnished to Purchaser in connection herewith were
prepared in accordance with GAAP (except as therein otherwise set forth), and
fairly present the financial condition of the Persons covered thereby at the
dates thereof and the results of their operations for the periods covered
thereby (subject to year-end adjustments in the case of interim financial
statements), and no such Person has any known contingent liabilities of any
material amount which are not referred to in such financial statements or in the
notes thereto. The assets of each such Person are set forth in such financial
statements.
Changes in Condition
--------------------
Since the date of the most recently delivered financial statements
referred to in Section 6.7 hereof, such Persons have not been subject to any
Material Adverse Effect. Since such date, none of such Persons has entered into
any material transaction outside of the ordinary course of business.
Tax Returns
-----------
Genesee Ventures and each of its Affiliates has filed all tax returns
which are required to be filed, and, if applicable, each such Person has paid,
or made adequate provision for the payment of, all taxes which have or may
become due pursuant to such returns, to assessments
Page 251 of 272
received or as a result of any matters raised by audits or other causes known to
such Person. The charges, accruals and reserves on the books of such Person in
respect of any taxes or other governmental charges are adequate.
Solvency.
---------
(a) The fair salable value of the assets of Genesee Ventures exceeds,
as of the date hereof, and will, immediately following each Closing and after
giving effect to the application of the proceeds of such Closing, exceed the
amount that will be required to be paid on or in respect of its existing debts
and other liabilities (including contingent liabilities) as they mature.
(b) The assets of Genesee Ventures do not, as of the date hereof, and
will not, immediately following each Closing and after giving effect to the
application of the proceeds of such Closing, constitute unreasonably small
capital to carry out its business as conducted or as proposed to be conducted.
(c) Genesee Ventures does not intend to, or believe that it will, incur
debts beyond its ability to pay such debts as they mature taking into account
the timing of and amounts of cash to be received by Genesee Ventures, and the
timing of and amounts of cash to be payable on or in respect of indebtedness of
Genesee Ventures.
No Liability
------------
Genesee Ventures has no liabilities or obligations to any Person in
connection with its acquisition and holding of the Assets listed on the Schedule
of Assets as being owned by it other than obligations pursuant to the related
Non-Recourse Debt.
Disclosure
----------
Neither this Agreement or any other Seller Document nor any Lease
Document or Loan Document contains any untrue statement of material fact or
omits to state a material fact necessary in order to make the statements
contained therein not misleading. There is no fact known to Genesee Ventures
which has or in the future may (so far as Genesee Ventures can now foresee) have
a Material Adverse Effect on Genesee Ventures.
Incorporation by Reference
--------------------------
The representations and warranties of Genesee Ventures contained in
each of the Seller Documents, Lease Documents and Loan Documents are true and
correct, and such representations and warranties are incorporated in this
Agreement as though fully set forth herein.
Brokers
-------
Except for the Arrangement Fee payable by Cheyenne to Spinnaker Capital
Corporation, no broker or any other Person has any claim for any commission fee
or the like arising out of or in connection with the transactions contemplated
hereby.
Disclaimer
----------
EXCEPT AS SPECIFICALLY SET FORTH HEREIN AND IN THE SCHEDULES AND
EXHIBITS HERETO, THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE EXPRESSLY IN
LIEU OF ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF GENESEE
VENTURES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE SELECTION, QUALITY OR
CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, ITS SUITABILITY, ITS FITNESS
FOR A
Page 252 of 272
PARTICULAR PURPOSE, THE OPERATION OR PERFORMANCE OF THE EQUIPMENT OR THE
MAINTENANCE THEREOF OR PATENT INFRINGEMENT OR THE LIKE.
REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇-▇▇▇▇▇▇
-----------------------------------------------
As of the date of this Agreement and as of each Closing Date,
▇▇▇▇▇▇-▇▇▇▇▇▇ further represents and warrants to Purchaser as follows:
Organization
------------
▇▇▇▇▇▇-▇▇▇▇▇▇ is a corporation duly formed, validly existing and in
good standing under the laws of the State of New York, and is qualified to do
business and in good standing as a foreign corporation under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the failure to be so
qualified would not result in a Material Adverse Effect. ▇▇▇▇▇▇-▇▇▇▇▇▇ has full
power, authority and legal right to (a) execute and deliver, and to perform and
observe the provisions of this Agreement and each of the other Seller Documents
to which it is a party, (b) execute and deliver, and to perform and observe the
provisions of each of the Lease Documents and Loan Documents to which it is a
party, (c) acquire, hold, and lease the Equipment, if applicable, and (d) carry
out the transactions contemplated in this Agreement and each of the other Seller
Documents to which it is a party.
Authority
---------
(a) The execution and delivery of this Agreement and each of the other
Seller Documents to which ▇▇▇▇▇▇-▇▇▇▇▇▇ is a party, and the consummation of each
of the transactions contemplated hereby and thereby, have been duly and validly
authorized by or on behalf of ▇▇▇▇▇▇-▇▇▇▇▇▇; and this Agreement and such other
Seller Documents have been, or will be when executed, duly executed and
delivered by ▇▇▇▇▇▇-▇▇▇▇▇▇ and constitute the valid and legally binding
obligations of ▇▇▇▇▇▇-▇▇▇▇▇▇, enforceable in accordance with their respective
terms, except as enforcement may be limited by bankruptcy, insolvency or similar
laws or general principles of equity affecting the enforcement of creditors'
rights generally from time to time in effect.
(b) The execution and delivery of this Agreement and each of the other
Seller Documents to which ▇▇▇▇▇▇-▇▇▇▇▇▇ is a party, the compliance with the
provisions hereof and thereof, and the consummation of the transactions herein
and therein contemplated have not and will not result in (i) a breach or
violation of (A) any Applicable Law applicable to ▇▇▇▇▇▇-▇▇▇▇▇▇ now in effect,
(B) any provision of the constituent documents of ▇▇▇▇▇▇-▇▇▇▇▇▇, (c) any
agreement or instrument to which ▇▇▇▇▇▇-▇▇▇▇▇▇ is a party or by which it or any
of its properties or assets is bound or affected, (ii) the acceleration of any
obligation of ▇▇▇▇▇▇-▇▇▇▇▇▇, or (iii) the creation of any Lien upon the
Equipment.
Compliance With Law, Etc.
-------------------------
▇▇▇▇▇▇-▇▇▇▇▇▇ is not (a) in violation of any term or provision of its
constituent documents or (b) in violation of or default under any term or
provision of any agreement or instrument to which ▇▇▇▇▇▇-▇▇▇▇▇▇ is a party or by
which it or any of its properties or assets is bound or affected, or (c) in
violation of any judgment, order, writ, injunction, decree or demand of any
court or Governmental Authority, or (d) in violation of any Applicable Law by
which ▇▇▇▇▇▇-▇▇▇▇▇▇ or any of its properties or assets is bound or affected. The
execution, delivery and performance of this Agreement and each of the other
Seller Documents and the consummation of the transactions contemplated hereby
and thereby will not violate or constitute a Default under
Page 253 of 272
the constituent documents or any term or provision of any agreement or
instrument to which ▇▇▇▇▇▇-▇▇▇▇▇▇ is a party or by which it or any of its
properties or assets is bound or affected, and none of such agreements or
instruments imposes or is made in contemplation of any obligation which is or
will be inconsistent with any other obligation imposed upon ▇▇▇▇▇▇-▇▇▇▇▇▇ under
this Agreement or any of the other Seller Documents. Except for any filings and
approvals required under the HSR Act, no approval by, authorization of, or
filing with any Governmental Authority or any third party is necessary in
connection with the execution and delivery of this Agreement or any of the other
Seller Documents by ▇▇▇▇▇▇-▇▇▇▇▇▇.
REPRESENTATIONS AND WARRANTIES OF GENESEE
-----------------------------------------
As of the date of this Agreement and as of each Closing Date, Genesee
represents and warrants to Purchaser as follows:
Organization
------------
Genesee is a corporation duly formed, validly existing and in good
standing under the laws of the State of New York, and is qualified to do
business and in good standing as a foreign corporation under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the failure to be so
qualified would not result in a Material Adverse Effect. Genesee has full power,
authority and legal right to (a) execute and deliver, and to perform and observe
the provisions of this Agreement and each of the other Seller Documents to which
it is a party and (b) carry out the transactions contemplated in this Agreement
and each of the other Seller Documents to which it is a party.
Authority
---------
(a) The execution and delivery of this Agreement and each of the other
Seller Documents to which Genesee is a party, and the consummation of each of
the transactions contemplated hereby and thereby, have been duly and validly
authorized by or on behalf of Genesee; and this Agreement and such other Seller
Documents have been, or will be when executed, duly executed and delivered by
Genesee and constitute the valid and legally binding obligations of Genesee,
enforceable in accordance with their respective terms, except as enforcement may
be limited by bankruptcy, insolvency or similar laws or general principles of
equity affecting the enforcement of creditors' rights generally from time to
time in effect.
(b) The execution and delivery of this Agreement and each of the other
Seller Documents to which Genesee is a party, the compliance with the provisions
hereof and thereof, and the consummation of the transactions herein and therein
contemplated have not and will not result in (i) a breach or violation of (A)
any Applicable Law applicable to Genesee now in effect, (B) any provision of the
constituent documents of Genesee, (c) any agreement or instrument to which
Genesee is a party or by which it or any of its properties or assets is bound or
affected, (ii) the acceleration of any obligation of Genesee, or (iii) the
creation of any Lien upon the Equipment.
Compliance With Law, Etc.
-------------------------
Genesee is not (a) in violation of any term or provision of its
constituent documents or (b) in violation of or default under any term or
provision of any agreement or instrument to which Genesee is a party or by which
it or any of its properties or assets is bound or affected, or (c) in violation
of any judgment, order, writ, injunction, decree or demand of any court or
Governmental Authority, or (d) in violation of any Applicable Law by which
Genesee or any of
Page 254 of 272
its properties or assets is bound or affected. The execution, delivery and
performance of this Agreement and each of the other Seller Documents and the
consummation of the transactions contemplated hereby and thereby will not
violate or constitute a Default under the constituent documents or any term or
provision of any agreement or instrument to which Genesee is a party or by which
it or any of its properties or assets is bound or affected, and none of such
agreements or instruments imposes or is made in contemplation of any obligation
which is or will be inconsistent with any other obligation imposed upon Genesee
under this Agreement or any of the other Seller Documents. Except for any
filings and approvals required under the HSR Act, no approval by, authorization
of, or filing with any Governmental Authority or any third party is necessary in
connection with the execution and delivery of this Agreement or any of the other
Seller Documents by Genesee.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser represents and warrants to Seller as of the date of this
Agreement and as of each Closing Date as follows:
Organization
------------
Purchaser is a limited liability company duly formed, validly existing
and in good standing under the laws of the State of Delaware. It has full power,
authority and legal right to execute and deliver, and to perform and observe the
provisions of this Agreement and each of the other Seller Documents to which it
is a party.
Authority
---------
(a) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized by
Purchaser; and this Agreement has been duly executed and delivered by Purchaser
and constitutes the valid and legally binding obligation of Purchaser,
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency or similar, laws or general principles of equity
affecting the enforcement of creditors' rights generally from time to time in
effect.
(b) The execution and delivery of this Agreement, the compliance with
the provisions hereof, and the consummation of the transactions herein
contemplated have not and will not result in a breach or violation of (i) any
Applicable Law applicable to Purchaser now in effect, (ii) any provision of the
constituent documents of Purchaser, (iii) any agreement or instrument to which
Purchaser is a party or by which it is bound, or (iv) the acceleration of any
obligation of Purchaser.
Litigation
----------
There are no actions, suits or proceedings or investigations at law or
in equity, pending or, to the reasonable knowledge of Purchaser, threatened
before Governmental Authority against or affecting Purchaser which, if decided
adversely to Purchaser, could have a Material Adverse Effect on Purchaser.
No Consent
----------
Except for any filings and approvals required under the HSR Act, no
approval, consent or withholding of objection is required from any Governmental
Authority with respect to the entering into or performance by Purchaser of this
Agreement and the transactions contemplated hereby.
Page 255 of 272
REPRESENTATIONS AND WARRANTIES OF THE MEMBERS
---------------------------------------------
Each Member represents and warrants to Seller as of the date of this
Agreement and as of each Closing Date as follows:
Organization
------------
The Member is a limited partnership duly formed, validly existing and
in good standing under the laws of the State of Delaware. It has full power,
authority and legal right to execute and deliver, and to perform and observe the
provisions of this Agreement and each of the other Seller Documents to which it
is a party.
Authority
---------
(a) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized by
the Member; and this Agreement has been duly executed and delivered by the
Member and constitutes the valid and legally binding obligation of the Member,
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency or similar, laws or general principles of equity
affecting the enforcement of creditors' rights generally from time to time in
effect.
(b) The execution and delivery of this Agreement, the compliance with
the provisions hereof, and the consummation of the transactions herein
contemplated have not and will not result in a breach or violation of (i) any
Applicable Law applicable to the Member now in effect, (ii) any provision of the
constituent documents of the Member, (iii) any agreement or instrument to which
the Member is a party or by which it is bound, or (iv) the acceleration of any
obligation of the Member.
Litigation
----------
There are no actions, suits or proceedings or investigations at law or
in equity, pending or, to the reasonable knowledge of the Member, threatened
before Governmental Authority against or affecting the Member which, if decided
adversely to the Member, could have a Material Adverse Effect on the Member.
No Consent
----------
Except for any filings and approvals required under the HSR Act, no
approval, consent or withholding of objection is required from any Governmental
Authority with respect to the entering into or performance by the Member of this
Agreement and the transactions contemplated hereby.
COVENANTS PENDING CLOSING
-------------------------
Portfolio Administration
------------------------
The Sale Parties and Genesee Ventures covenant and agree that from and
after the date hereof, they shall consult with Purchaser with respect to all
matters pertaining to the administration of the Assets, including any
enforcement of rights and remedies under the Leases, and all matters relating to
the rights and obligations of each Seller with respect to any applicable Lender.
Furthermore, the Sale Parties shall not take any action or omit to take any
action required to be taken with respect to any of the foregoing without
obtaining the prior written approval of Purchaser.
Page 256 of 272
Proceedings
-----------
If and to the extent that there shall exist any action or proceeding
before any Governmental Authority that shall seek or threaten to set aside,
restrain, enjoin or prevent the Closing or the completion and consummation of
the transactions contemplated hereby, including any injunction restraining the
holding of the 2000 annual shareholders meeting of Genesee, then the Sale
Parties and/or Genesee, as applicable, shall vigorously oppose any such
proceeding and use their best efforts to have any such action or proceeding
dismissed, terminated, stayed or otherwise so that the Closing may be completed
and the transactions contemplated hereby can be consummated without any such
interference.
Antitrust Notification
----------------------
Purchaser and the Sale Parties shall cause to be filed with the FTC and
the DOJ the notification and report forms required pursuant to the HSR Act with
respect to the transactions contemplated hereby, together with a request for
early termination of the waiting period thereunder. The parties agree with
respect to such filings that they shall (a) after any request by the FTC or DOJ,
promptly file any information or documents requested by the FTC or DOJ, (b)
notify each other of any communications with the FTC or DOJ which relate to the
transactions contemplated hereby, and (c) otherwise cooperate with respect to
such filings. Purchaser shall pay the HSR Act filing fee.
CONDITIONS PRECEDENT TO OBLIGATIONS FOR EACH CLOSING
----------------------------------------------------
Purchaser's Obligation
----------------------
The obligation of Purchaser to consummate a Closing hereunder shall be
subject to the satisfaction at or prior to such Closing of each of the following
conditions or the waiver by Purchaser of such condition(s):
(a) Representations and Warranties
------------------------------
The representations and warranties of the Sale Parties, Genesee
Ventures and Genesee contained in this Agreement, and of Seller contained in
each of the Seller Documents, Lease Documents and Loan Documents to which it is
a party, delivered in respect of a Closing, if applicable, shall be true and
correct on and as of the Closing Date, as if such representations and warranties
had been made on and as of the Closing Date, except to the extent that such
representations and warranties relate solely to an earlier date (in which case
such representations and warranties shall be correct on and as of such earlier
date).
(b) Covenants and Agreements
------------------------
Each of the Sale Parties and Genesee Ventures shall have performed and
complied with all of its obligations under this Agreement and each of the Seller
Documents to which it is a party that are to be performed or complied with by it
on or prior to the Closing Date.
(c) Documents
---------
Seller shall have delivered or caused to be delivered to Purchaser each
of the documents and instruments set forth and described in Section 4.2 hereof,
duly executed by Seller, and if applicable, the Lessee or the Lender, and each
of the foregoing shall be satisfactory to Purchaser and its counsel in their
sole discretion. Seller shall have delivered counterpart no. 1 or the "Original"
(unless any such counterpart no. 1 or Original is held by a Lender as security
for a Non-Recourse Debt, and then a certified copy) of each Lease to Purchaser.
Page 257 of 272
(d) Filings and Titles
------------------
Seller shall have duly filed or recorded, as applicable, with all
applicable Governmental Authorities, any Seller Documents, Lease Documents or
Loan Documents to the extent filing or recording thereof shall be required or
permitted thereby. Seller shall have filed financing statements on Form UCC-3
assigning any "protective" or "informational" filings against Lessees (unless
such filings have been assigned to one or more Lenders), or, in the absence of
such filings, financing statements on Form UCC-1 constituting protective or
informational filings against such Lessees and naming any applicable Lender as
assignee, if required. Except as set forth on Schedules 5.6(n) and 6.6(n), the
titles to all titled motor vehicles included in the Assets described by the
applicable Closing Schedule shall have been assigned by Seller to Purchaser.
Seller and the third parties to the titling arrangements described in Schedules
5.6(n) and 6.6(n) shall have taken such action, including, without limitation,
the written clarification and/or amendment of any agency relationship and the
assignment of any beneficial interest and/or replacement or any trustee under
any titling trust described therein, as Purchaser shall require in its sole
discretion.
(e) Authority; Incumbency
---------------------
At the request of Purchaser, each of the Sale Parties and Genesee
Ventures shall have delivered to Purchaser a resolution of its governing body
authorizing the transactions contemplated by the Closing, together with an
incumbency certificate regarding incumbency and authority of its officers in
connection with the transactions contemplated by the Closing.
(f) Approvals
---------
All required licenses, approvals, consents and notifications necessary
in respect of the execution and delivery of the Seller Documents, the
modification of the Loan Documents on terms acceptable to Purchaser in its sole
discretion and the transactions contemplated hereby, including, without
limitation all notifications, reports and clearances required under the HSR Act,
if any, shall have been obtained or made, and executed or certified copies
thereof shall have been delivered to Purchaser. All time periods under the HSR
Act shall have expired.
(g) Proceedings; No Violation of Law
--------------------------------
It shall not constitute a violation of law for Purchaser to consummate
the Closing.
(h) Opinion of Counsel
------------------
At the request of Purchaser, each of the Sale Parties, Genesee Ventures
and Genesee shall have delivered to Purchaser an opinion of ▇▇▇▇▇ Peabody LLP in
the form attached hereto as Exhibit E-1.
(i) Releases
--------
Seller shall or shall have caused to be filed all releases or
termination statements with respect to any preexisting Liens on the Assets
(other than those with respect to the Assumed Liabilities and Permitted Liens)
and taken all such other actions as may be required to release and terminate
such Liens that are consistent with the quality of title required hereby.
(j) Defaults
--------
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No breach or Default or event of default shall have occurred and be
continuing under the Lease Documents or Loan Documents.
(k) Insurance
---------
Except with respect to any Lessee listed on Schedule 5.6(f) or 6.6(f)
as having in place a self-insurance arrangement previously approved by Seller,
Seller shall have instructed the Lessee to add Purchaser as an additional
insured and loss payee (or, in the case of Lessees under Lease Documents
relating to Equipment securing Non-Recourse Debt due and owing to HSBC as
successor in interest to Republic National Bank of New York, as an additional
insured only) on any and all insurance required for the benefit of lessor under
the Lease Documents relating to the Equipment.
(l) Certificate of Sale Parties, Genesee Ventures and Genesee
---------------------------------------------------------
Purchaser shall have received certificates signed by a duly authorized
officer of each of the Sale Parties, Genesee Ventures and Genesee, dated the
Closing Date, certifying as to the fulfillment, on the Closing Date, of the
conditions specified in Sections 12.1(a) and (b) hereof.
(m) Aggregate Equipment Cost
------------------------
The Aggregate Equipment Cost of the Equipment to be purchased at the
Closing shall not be less than the minimum amount established, from time to
time, by Purchaser in its sole discretion.
(n) Due Diligence
-------------
Purchaser shall have received responses from Seller with respect to the
open due diligence items set forth on Schedule 12.1(n) attached hereto
applicable to the Assets to be purchased such Closing and/or the related
Non-Recourse Debt, as applicable, and be satisfied with such responses in its
sole discretion.
(o) Remarketing Agreements
----------------------
All Remarketing Agreements with respect to the Assets described by the
applicable Closing Schedule shall have been assigned by Seller to Purchaser.
Seller's Obligation
-------------------
The obligation of each Seller to consummate a Closing hereunder shall
be subject to the satisfaction of the following conditions or the waiver by
Seller of such condition(s):
(a) Representations and Warranties
------------------------------
The representations and warranties of Purchaser contained in this
Agreement and of Purchaser contained in each of the Seller Documents to which it
is a party delivered in respect of a Closing, if applicable, shall be true and
correct on and as of the Closing Date, as if such representations and warranties
had been made on and as of the Closing Date, except to the extent
Page 259 of 272
that such representations and warranties relate solely to an earlier date (in
which case such representations and warranties shall be correct on and as of
such earlier date).
(b) Covenants and Agreements
------------------------
Purchaser shall have performed and complied with all of its obligations
under this Agreement and each of the Seller Documents to which it is a party
that are to be performed or complied with by it on or prior to the Closing Date.
(c) Documents
---------
Any and all documents delivered by Purchaser to Seller in connection
with a Closing and the transactions contemplated by this Agreement shall be
reasonably satisfactory in all respects to Seller and Seller's counsel.
(d) Authority; Incumbency
---------------------
Purchaser shall have delivered to Seller a resolution of its Board of
Managers or members authorizing the transactions contemplated by the Closing,
together with an incumbency certificate regarding the incumbency and authority
of the officers of Purchaser in connection with the transactions contemplated by
the Closing.
(e) Approvals; No Violation of Law
------------------------------
All notifications, reports and clearances, if any, required under the
HSR Act shall have been obtained or made, and executed or certified copies
thereof shall have been delivered to Seller. All time periods under the HSR Act
shall have expired. There shall be no order of any court restraining the holding
of the 2000 shareholders meeting of Genesee or the Closing. It shall not
constitute a violation of law for Seller to consummate the Closing.
(f) Purchase Price; Acquisition Fee
-------------------------------
Purchaser shall have paid to Seller the Purchase Price by wire transfer
of immediately available funds to an account or accounts designated in writing
by Seller.
(g) Certificate of Purchaser
------------------------
Seller shall have received a certificate of Purchaser signed by a duly
authorized officer of Purchaser, dated the Closing Date, certifying as to the
fulfillment, on the Closing Date, of the conditions specified in Sections 12.2
(a) and (b) hereof.
(h) Opinion of Counsel
------------------
At the request of Seller, Purchaser shall have delivered to each of the
Sale Parties, Genesee Ventures and Genesee an opinion of ▇▇▇ ▇▇▇▇▇▇, General
Counsel of Purchaser in the form attached hereto as Exhibit E-2.
INDEMNIFICATION
---------------
Sale Parties' and Genesee Indemnity
-----------------------------------
(a) The Sale Parties jointly and severally hereby agree to indemnify
and hold Purchaser and its members, managers, officers, employees, agents and
attorneys, harmless from and against any and all claims, liabilities, losses,
damages, costs and expenses, including, without
Page 260 of 272
limitation, the reasonable fees and disbursements of counsel (collectively,
"Claims" and, individually, a "Claim"), resulting or arising from any breaches
or inaccuracies in any certification, representation or warranty made by
Cheyenne in or pursuant to this Agreement or any of the other Seller Documents
to which Cheyenne is a party or any failure or breach by Cheyenne of any
covenant, obligation, or undertaking made by Cheyenne in this Agreement or any
of the other Seller Documents to which Cheyenne is a party, except any such
Claims resulting from Purchaser's gross negligence or willful misconduct.
(b) Genesee Ventures hereby agrees to indemnify and hold Purchaser and
its members, managers, officers, employees, agents and attorneys, harmless from
and against any and all Claims, resulting or arising from any breaches or
inaccuracies in any certification, representation or warranty made by Genesee
Ventures in or pursuant to this Agreement or any of the other Seller Documents
to which Genesee Ventures is a party or any failure or breach by Genesee
Ventures of any covenant, obligation, or undertaking made by Genesee Ventures in
this Agreement or any of the other Seller Documents to which Genesee Ventures is
a party, except any such Claims resulting from Purchaser's gross negligence or
willful misconduct.
(c) ▇▇▇▇▇▇-▇▇▇▇▇▇ hereby agrees to indemnify and hold Purchaser and
its members, managers, officers, employees, agents and attorneys, harmless from
and against any and all Claims, resulting or arising from any breaches or
inaccuracies in any certification, representation or warranty made by
▇▇▇▇▇▇-▇▇▇▇▇▇ in or pursuant to this Agreement or any of the other Seller
Documents to which ▇▇▇▇▇▇-▇▇▇▇▇▇ is a party or any failure or breach by
▇▇▇▇▇▇-▇▇▇▇▇▇ of any covenant, obligation, or undertaking made by ▇▇▇▇▇▇-▇▇▇▇▇▇
in this Agreement or any of the other Seller Documents to which ▇▇▇▇▇▇-▇▇▇▇▇▇ is
a party, except any such Claims resulting from Purchaser's gross negligence or
willful misconduct.
(d) Genesee hereby agrees to indemnify and hold Purchaser and its
members, managers, officers, employees, agents and attorneys, harmless from and
against any and all Claims, resulting or arising from any breaches or
inaccuracies in any certification, representation or warranty made by Genesee,
Cheyenne, Genesee Ventures and/or ▇▇▇▇▇▇-▇▇▇▇▇▇ in or pursuant to this Agreement
or any of the other Seller Documents to which any such party is a party or any
failure or breach by Genesee, Cheyenne, Genesee Ventures and/or ▇▇▇▇▇▇-▇▇▇▇▇▇ of
any covenant, obligation, or undertaking made by it in this Agreement or any of
the other Seller Documents to which any such party is a party, except any such
Claims resulting from Purchaser's gross negligence or willful misconduct.
Purchaser's and Members' Indemnity
----------------------------------
Purchaser and the Members jointly and severally hereby agree to
indemnify and hold the Sale Parties and their respective partners, officers,
employees, agents and attorneys, harmless from and against any and all Claims
resulting or arising from any breaches or inaccuracies in any representation or
warranty made by Purchaser and/or the Members in or pursuant to this Agreement
or any of the other Seller Documents to which Purchaser and/or any of the
Members is a party or any failure or breach by Purchaser and/or any of the
Members of any covenant, obligation, or undertaking made by it in this Agreement
or any of the other Seller Documents to which it is a party, except any such
Claims resulting from the Sale Parties' gross negligence or willful misconduct.
Limitations on Recourse and Indemnification
-------------------------------------------
Page 261 of 272
(a) None of the Sale Parties, Genesee Ventures or Genesee, as
applicable, shall have any liability to Purchaser for, or obligation to
indemnify Purchaser with respect to, any breach of any representation or
warranty of the Sale Parties or of Genesee Ventures set forth in Section 5.6 or
Section 6.6 hereof, as applicable, with respect to a particular Lease or other
Lease Document if Purchaser received a representation and warranty identical in
substance to the breached representation or warranty from the Lessee thereunder
in a Notice and Acknowledgment of Assignment and has recourse to the Lessee with
respect thereto.
(b) None of the Sale Parties, Genesee Ventures, ▇▇▇▇▇▇-▇▇▇▇▇▇ or
Genesee shall have any obligation to indemnify Purchaser, and neither Purchaser
nor any Member shall have any obligation to indemnify the Sale Parties, until
the aggregate amount for which the Sale Parties, Genesee Ventures, ▇▇▇▇▇▇-▇▇▇▇▇▇
and Genesee or Purchaser and the Members, as applicable, would otherwise be
obligated to indemnify Purchaser or the Sale Parties, as applicable, hereunder
shall exceed an aggregate of Fifteen Thousand Dollars ($15,000), and then to the
full extent (i.e. from the first Dollar) of all Claims. Furthermore, the
aggregate amount of the Sale Parties', Genesee Ventures' and ▇▇▇▇▇▇-▇▇▇▇▇▇'▇
obligations to indemnify Purchaser pursuant to the terms of this Agreement shall
not under any circumstances exceed the Aggregate Purchase Price.
(c) The maximum aggregate amount of Genesee's obligation to indemnify
Purchaser pursuant to the terms of this Agreement shall not under any
circumstances exceed the Aggregate Purchase Price, and shall reduce one hundred
twenty (120) days after the scheduled termination date of each Rental Schedule
by an amount equal to the Purchase Price applicable to such Rental Schedule and
the related Assets as set forth on the Schedule of Assets and the obligation of
Genesee to indemnify Purchaser pursuant to the terms of this Agreement shall
terminate on July 31, 2004 except solely with respect to Claims ("Noticed
Claims") for which Purchaser shall have notified Genesee in writing of a claim
for indemnification with respect thereto on or before such date. The obligation
of Genesee to indemnify Purchaser pursuant to the terms of this Agreement shall
terminate with respect to Noticed Claims when such obligations have been paid
and/or performed in full.
Survival of Representations and Warranties
------------------------------------------
The representations and warranties of the Sale Parties and Genesee
Ventures set forth in Sections 5.3, 5.6, 6.3 and 6.6 hereof (and the
indemnification obligations of the Sale Parties, Genesee Ventures and, subject
to Section 13.3 hereof, Genesee under this Article 13 with respect thereto)
shall survive for a period of six (6) months after the sale of the Equipment
subject to the applicable Lease and thereafter shall terminate and be of no
further force or effect, except as to matters for which Purchaser has given
notice to the Sale Parties, Genesee Ventures and/or Genesee, as applicable, of
its claim for indemnification prior thereto, which notice shall be given in the
manner and in the form required by Section 13.5 hereof. All other
representations and warranties of the parties contained in this Agreement and
the attachments hereto (and the indemnification obligations of the parties under
this Article 13 with respect thereto) shall survive each Closing and the
consummation of the transactions contemplated hereby for a period corresponding
to any applicable statute of limitations.
Claims
------
(a) In the event that a party (the "Indemnified Party") desires to make
a claim against another party hereto (the "Indemnifying Party") under this
Section 13 in connection with any action, suit, proceeding or demand at any time
instituted against or made upon the Indemnified Party for which the Indemnified
Party may seek indemnification hereunder, the Indemnified
Page 262 of 272
Party shall notify the Indemnifying Party of such Claim and of the Indemnified
Party's claim of indemnification with respect thereto, provided that failure of
the Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations under this Section 13 except to the extent, if at all,
that the Indemnifying Party shall have been prejudiced thereby. Upon receipt of
such notice from the Indemnified Party, the Indemnifying Party shall be entitled
to participate in the defense of such Claim and shall be entitled to fully
assume the defense of such Claim, and in the case of such an assumption upon
written notice to the Indemnified Party of its intention to do so, the
Indemnifying Party shall have the authority to negotiate, compromise and settle
such Claim, provided that no such settlement shall impose on the Indemnified
Party any cost, expense or liability which the Indemnifying Party is not
indemnifying under this Section 13. The Indemnified Party shall retain the right
to employ its own counsel and to participate in the defense of any Claim, the
defense of which has been assumed by the Indemnifying Party pursuant hereto, but
the Indemnified Party shall bear and shall be solely responsible for its own
costs and expenses in connection with such participation, unless (i) the
employment thereof has been specifically authorized by the Indemnifying Party,
(ii) such Indemnified Party has been advised by counsel reasonably satisfactory
to the Indemnifying Party that there may be one or more legal defenses available
to it which are different from or additional to those available to the
Indemnifying Party and in the reasonable judgment of such counsel it is
advisable for such Indemnified Party to employ separate counsel, or (iii) the
Indemnifying Party has failed to assume the defense of such action in accordance
herewith and employ counsel reasonably satisfactory to the Indemnified Party.
(b) In the event of any Claim under this Section 13, the Indemnified
Party shall advise the Indemnifying Party in writing of the amount and
circumstances surrounding such Claim. With respect to a liquidated Claim, if
within forty-five (45) days after receiving written notice from the Indemnified
Party, the Indemnifying Party has not contested such Claim in writing, the
Indemnifying Party will pay the full amount thereof, or, in the case of the
Members, their respective pro rata portions thereof, within thirty (30) days
after the expiration of such period.
MISCELLANEOUS
-------------
Suretyship Waivers
------------------
(a) Each of Genesee Ventures, ▇▇▇▇▇▇-▇▇▇▇▇▇ and Genesee (collectively,
the "Cheyenne Obligors") and the Members (together with the Cheyenne Obligors,
the "Obligors") agrees that its indemnification obligations pursuant to Sections
3.5, 3.6 and 13 hereof, as applicable, are irrevocable, absolute, independent
and unconditional, and shall not be affected by any circumstance which
constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Claims. In furtherance of the foregoing, and without
limiting the generality thereof, each of the Obligors agrees as follows: (i)
Purchaser or the Sale Parties, as applicable, may from time to time, without
notice or demand and without affecting the validity or enforceability of this
Agreement or giving rise to any limitation, impairment or discharge of such
Obligor's liability hereunder, (A) renew, extend, accelerate or otherwise change
the time, place, manner or terms of payment of the Claims, (B) settle,
compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Claims or any agreement relating
thereto and/or subordinate the payment of the same to the payment of any other
obligations, (C) request and accept guaranties of the obligations with respect
to the Claims and take and hold other security for the payment of the Claims,
(D) release, exchange, compromise, subordinate or modify, with or without
consideration, any other security for payment of the Claims, any guaranties of
the obligations with respect to the Claims, or any other obligation of any
Person with respect to the Claims, (E) enforce and apply any other security now
Page 263 of 272
or hereafter held by or for the benefit of Purchaser or the Sale Parties, as
applicable, in respect of the Claims and direct the order or manner of sale
thereof, or exercise any other right or remedy that Purchaser or the Sale
Parties, as applicable, may have against any such security, as Purchaser or the
Sale Parties, as applicable, in its or their discretion may determine consistent
with any applicable security agreement, including foreclosure on any such
security pursuant to one or more judicial or non-judicial sales, whether or not
every aspect of any such sale is commercially reasonable, and (F) exercise any
other rights available to Purchaser or the Sale Parties, as applicable, under
this Agreement, at law or in equity; and (ii) this Agreement and the obligations
of such Obligor hereunder shall be valid and enforceable and shall not be
subject to any limitation, impairment or discharge for any reason (other than
payment in full of all Claims), including without limitation the occurrence of
any of the following, whether or not the Obligors shall have had notice or
knowledge of any of them: (A) any failure to assert or enforce or agreement not
to assert or enforce, or the stay or enjoining, by order of court, by operation
of law or otherwise, of the exercise or enforcement of, any claim or demand or
any right, power or remedy with respect to the Claims or any agreement relating
thereto, or with respect to any guaranty of or other security for the payment of
the Claims, (B) any waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions (including without limitation
provisions relating to events of default) of this Agreement, any of the other
Seller Documents or any agreement or instrument executed pursuant thereto, or of
any guaranty or other security for the payment of the Claims, (C) the Claims, or
any agreement relating thereto, at any time being found to be illegal, invalid
or unenforceable in any respect, (D) the application of payments received from
any source to the payment of indebtedness other than the Claims, even though
Purchaser or the Sale Parties, as applicable, might have elected to apply such
payment to any part or all of the Claims, (E) any failure to perfect or continue
perfection of a security interest in any other collateral which secures the
payment of any of the Claims, (F) any defenses, set-offs or counterclaims which
any of the Obligors may allege or assert against Purchaser or the Sale Parties,
as applicable, in respect of the Claims, including but not limited to failure of
consideration, breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury, and (G) any other act or thing
or omission, or delay to do any other act or thing, which may or might in any
manner or to any extent vary the risk of any of the Obligors as an obligor in
respect of the Claims.
(b) Each of the Obligors hereby waives, for the benefit of Purchaser or
the Sale Parties, as applicable: (i) any right to require Purchaser or the Sale
Parties, as applicable, as a condition of payment or performance by such
Obligor, to (A) proceed against any obligor, any guarantor of the obligations
with respect to the Claims or any other Person, (B) proceed against or exhaust
any other security held from any obligor, any guarantor of the obligations with
respect to the Claims or any other Person, (C) proceed against or have resort to
any balance of any deposit account or credit on the books of Purchaser or the
Sale Parties, as applicable, in favor of any obligor or any other Person, or (D)
pursue any other remedy in the power of Purchaser or the Sale Parties, as
applicable, whatsoever; (ii) any defense arising by reason of the incapacity,
lack of authority or any disability or other defense of any obligor including,
without limitation, any defense based on or arising out of the lack of validity
or the unenforceability of the Claims or any agreement or instrument relating
thereto or by reason of the cessation of the liability of any obligor from any
cause other than payment in full of all Claims; (iii) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (iv) any defense based upon Purchaser's or the Sale Parties', as
applicable, errors or omissions in the administration of the Claims, except
behavior which amounts to bad faith; (v) (A) any legal or equitable discharge
Page 264 of 272
of any of the Obligors' obligations hereunder, (B) the benefit of any statute of
limitations affecting any of the Obligor's liability hereunder or the
enforcement hereof, (C) any rights to set-offs, recoupments and counterclaims,
and (D) promptness, diligence and any requirement that Purchaser or the Sale
Parties, as applicable, protect, secure, perfect or insure any other security
interest or Lien or any property subject thereto; (vi) notices, demands,
presentments, protests, notices of protest, notices of dishonor and notices of
any action or inaction, notices of default under this Agreement or any agreement
or instrument related hereto, notices of any renewal, extension or modification
of the Claims or any agreement related thereto, notices of any extension of
credit to any Person and notices of any of the matters referred to in the
preceding paragraph and any right to consent to any thereof; and (vii) to the
fullest extent permitted by law, any defenses or benefits that may be derived
from or afforded by law which limit the liability of or exonerate guarantors or
sureties.
(c) Until all Claims shall have been paid in full, each of the Cheyenne
Obligors and the Members shall withhold exercise respectively of (i) any claim,
right or remedy, direct or indirect, that it now has or may hereafter have
against the Sale Parties and/or any of the Cheyenne Obligors or Purchaser and/or
any of the Members, as applicable, or any of its or their assets in connection
with this Agreement or any of the other Seller Documents or the performance by
it or them of its or their obligations hereunder, in each case whether such
claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise and including without limitation (A) any right of
subrogation, reimbursement or indemnification that such Cheyenne Obligor or
Member, as applicable, now has or may hereafter have against the Sale Parties
and/or any of the Cheyenne Obligors or Purchaser and/or any of the Members, as
applicable, (B) any right to enforce, or to participate in, any claim, right or
remedy that Purchaser or the Sale Parties, as applicable, now has or may
hereafter have against the Sale Parties and/or any of the Cheyenne Obligors or
Purchaser and/or any of the Members, as applicable, and (C) any benefit of, and
any right to participate in, any other collateral or security now or hereafter
held by Purchaser or the Sale Parties, as applicable, and (ii) any right of
contribution such Cheyenne Obligor or Member, as applicable, may have against
any guarantor of any of the Claims. Each of the Cheyenne Obligors and Members,
as applicable, further agrees that, to the extent the waiver of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation, reimbursement or indemnification it may have
against the Sale Parties and/or any of the Cheyenne Obligors or Purchaser and/or
any of the Members, as applicable, or against any other collateral or security,
and any rights of contribution it may have against any such guarantor, shall be
junior and subordinate to any rights Purchaser or the Sale Parties, as
applicable, may have against the Sale Parties and/or any of the Cheyenne
Obligors or Purchaser and/or any of the Members, as applicable, to all right,
title and interest Purchaser or the Sale Parties, as applicable, may have in any
such other collateral or security, and to any right Purchaser or the Sale
Parties, as applicable, may have against any such guarantor.
(d) Neither Purchaser nor the Sale Parties, as applicable, shall have
any obligation to disclose or discuss with any Obligor, its assessment, or any
Obligor's assessment, of the financial condition of any of the Sale Parties or
Purchaser, as applicable. Each of the Obligors has adequate means to obtain
information from the Sale Parties or Purchaser, as applicable, on a continuing
basis concerning the financial condition of the Sale Parties or Purchaser, as
applicable, and its ability to perform its obligations under this Agreement and
the other Seller Documents, and each Obligor assumes the responsibility for
being and keeping informed of the financial condition of the Sale Parties and
Purchaser, as applicable, and of all circumstances
Page 265 of 272
bearing upon the risk of nonpayment of the Claims. Each Obligor hereby waives
and relinquishes any duty on the part of Purchaser or the Sale Parties, as
applicable, to disclose any matter, fact or thing relating to the business,
operations or condition of the Sale Parties or Purchaser, as applicable, now
known or hereafter known by Purchaser or the Sale Parties, as applicable.
Communications
--------------
All notices, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
if mailed by certified mail, return receipt requested, postage prepaid, or sent
by written telecommunications, receipt confirmed, as follows, or as may be
changed, from time to time, by a party hereto by written notice to the other
parties given in accordance with this Section 14.2:
If to Purchaser or the Members, to:
ICON Cheyenne LLC
c/o ICON Capital Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Page 266 of 272
With copies to:
ICON Cheyenne LLC c/o ICON Capital Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(Note: Commencing April 1, 2001, the address to be used is ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 94111)
and
▇▇▇▇▇ Peabody LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to Cheyenne, to:
Cheyenne Leasing Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to Genesee Ventures, to:
Genesee Ventures, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Genesee Corporation
▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇-▇▇▇▇▇▇, to:
Page 267 of 272
▇▇▇▇▇▇-▇▇▇▇▇▇ Associates, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to Genesee, to:
Genesee Corporation
▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Entire Agreement and Amendment
------------------------------
This Agreement, together with the Schedules and exhibits attached
hereto contains the entire understanding of the parties, supersedes all prior
agreements and understandings relating to the subject matter hereof and shall
not be amended except by a written instrument hereafter signed by all of the
parties hereto.
Governing Law
-------------
THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY, EFFECT AND PERFORMANCE.
Sections and Section Headings
-----------------------------
All enumerated subdivisions of this Agreement are herein referred to as
"section" or "subsection." The headings of sections and subsections are for
reference only and shall not limit or control the meaning thereof.
Successors and Assigns
----------------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Neither this
Agreement nor the obligations of any party hereunder shall be assignable or
transferable by such party without the prior written consent of the other party
hereto. This Section 14.6 is not intended, and shall not be construed, to
prohibit or in any manner restrict or limit the right of ▇▇▇▇▇▇-▇▇▇▇▇▇ to
transfer its joint venture interest in Cheyenne to an Affiliate of Genesee
Ventures, which right is hereby acknowledged.
Counterparts
------------
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Page 268 of 272
Further Assurances
------------------
The parties hereto agree to execute and deliver, or to be caused to be
executed and delivered, such further instruments or documents, including any
filings or registrations, to cooperate with respect to any audits or other
proceedings, including any actions necessary with respect to compliance with the
HSR Act, and to take such other action as may be reasonably required to carry on
the transactions contemplated herein.
Confidentiality
---------------
(a) Except as otherwise contemplated herein, no party hereto will,
prior to the final Closing, make any disclosures (public or private) concerning
the existence or contents of this Agreement or cause to be publicized in any
manner whatsoever, by way of interviews, responses to questions or inquiries,
press releases or otherwise, any aspect of the transaction described herein
without prior written notice to and written approval of the other party, which
approval will not be unreasonably withheld; provided, however, that this Section
14.9(a) shall not prevent any party from issuing any press release or making any
public statement which such party determines to be required by law or by any
self-regulating securities exchange (it being understood that the parties will
consult with each other before issuing any such press release or making any such
public statement).
(b) From and after the final Closing, each of the Sale Parties and
Genesee Ventures shall not, and shall cause its Affiliates, employees, advisors
and agents to not, directly or indirectly, use any information concerning any of
the Assets for any purpose not related to the transactions contemplated hereby
without prior written notice to and written approval of Purchaser.
[Remainder of Page Intentionally Left Blank]
Page 269 of 272
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Agreement to be duly executed and delivered by
their respective duly authorized officers as an instrument under seal as of the
date and year first above written.
PURCHASER:
----------
ICON CHEYENNE LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signer
CHEYENNE:
---------
CHEYENNE LEASING COMPANY
By its joint venture partners:
GENESEE VENTURES, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: V. P. and Treasurer
▇▇▇▇▇▇-▇▇▇▇▇▇ ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
GENESEE VENTURES:
-----------------
GENESEE VENTURES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: V. P. and Treasurer
▇▇▇▇▇▇ ▇▇▇▇▇▇:
--------------
▇▇▇▇▇▇-▇▇▇▇▇▇ ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
GENESEE CORPORATION:
--------------------
Page 270 of 272
GENESEE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Sr. V.P. and CFO
MEMBERS:
--------
ICON Cash Flow Partners, L.P. Seven
By: ICON Capital Corp., its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
ICON Cash Flow Partners, L.P. Six
By: ICON Capital Corp., its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
ICON Income Fund Eight A L.P.
By: ICON Capital Corp., its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
ICON Income Fund Eight B L.P.
By: ICON Capital Corp., its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
