7/7/99
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CHARTER FINANCIAL, INC.
SELLER
AND
CHARTER FUNDING CORPORATION V,
TRANSFEROR
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FORM OF SELLER CONTRIBUTION AND SALE AGREEMENT
Dated as of July 1, 1999
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TABLE OF CONTENTS
Page
R E C I T A L S 1
A G R E E M E N T S............................................................2
SECTION 1. DEFINITIONS.........................................................2
SECTION 2. SALE AND CAPITAL CONTRIBUTION.......................................2
2.01 Sale and Capital Contribution of Leases and Equipment,
Lease Receivables..................................................2
2.02 Treatment as a Sale and Contribution; Grant of Security Interest....3
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE SELLER........................4
3.01 Corporate Organization and Authority................................4
3.02 Business and Property...............................................4
3.03 Financial Statements................................................4
3.04 Equipment and Xxxxxx................................................5
3.05 Payments............................................................7
3.06 Full Disclosure.....................................................7
3.07 Pending Litigation..................................................7
3.08 Title to Properties.................................................8
3.09 Transactions Legal and Authorized...................................8
3.10 Governmental Consent................................................8
3.11 Taxes. 8
3.12 Compliance with Law.................................................9
3.13 Ability to Perform..................................................9
3.14 Ordinary Course; No Insolvency......................................9
3.15 Assets and Liabilities..............................................9
3.16 Fair Consideration.................................................10
3.17 Ability to Pay Debts...............................................10
3.18 Bulk Transfer Provisions...........................................10
3.19 Transfer Taxes.....................................................10
3.20 Principal Executive Office.........................................10
3.21 Contribution Treatment.............................................11
3.22 Nonconsolidation...................................................11
SECTION 4. THE SELLER.........................................................11
4.01 Merger or Consolidation of the Seller..............................11
4.02 Control of Transferor..............................................12
4.03 Financial and Business Information.................................12
4.04 Officers' Certificates.............................................12
4.05 Books and Records..................................................13
4.06 Communications......................................................13
SECTION 5. SUBSTITUTION AND ADDITION OF LEASES................................13
5.01 Substitution and Addition..........................................13
5.02 Procedure..........................................................14
5.03 Objection and Purchase.............................................15
5.04 Seller's Subsequent Obligations....................................15
SECTION 6. ASSIGNMENT.........................................................16
6.01 Assignment to Trustee..............................................16
6.02 Assignment by Seller...............................................16
SECTION 7. NATURE OF OBLIGATIONS AND SECURITY THEREFOR........................16
7.01 Obligations Absolute...............................................16
7.02 Security for Obligations...........................................17
7.03 Further Assurances; Financing Statements...........................17
SECTION 8. INTER-COMPANY LOANS................................................17
8.01 Inter-Company Loans................................................17
SECTION 9. MISCELLANEOUS......................................................18
9.01 Continuing Obligations.............................................18
9.02 GOVERNING LAW......................................................18
9.03 Successors and Assigns.............................................18
9.04 Modification.......................................................18
9.05 No Proceedings.....................................................18
9.06 Notices............................................................18
9.07 Counterparts.......................................................19
9.08 Nonpetition Covenant...............................................19
Schedule 1 - Schedule of Leases
Exhibit A - Form of Inter-Company Loan Note
ii
SELLER CONTRIBUTION AND SALE AGREEMENT
This SELLER CONTRIBUTION AND SALE AGREEMENT is made and dated as of July 1,
1999, by and between CHARTER FUNDING CORPORATION V, a New York corporation, as
purchaser hereunder (the "Transferor") and CHARTER FINANCIAL, INC., a New York
corporation, as seller of the Leases (the "Seller").
R E C I T A L S
WHEREAS, pursuant to the Seller Contribution and Sale Agreement, Charter
Financial, Inc. (the "Seller") is selling and making certain capital
contributions to Charter Funding Corporation V (the "Transferor") with respect
to the Leases, the related Equipment and other assets described therein (the
"Transferred Assets").
WHEREAS, pursuant to the Transferor Contribution and Sale Agreement, the
Transferor is selling and making certain capital contribution to Charter
Equipment Lease 1999-1 LLC (the "Issuer"), with respect to the Transferred
Assets.
WHEREAS, pursuant to the Indenture, the Issuer is pledging the Transferred
Assets thereunder for the benefit of the Holders of the Notes (as detailed
below) and is issuing one class of [_____]% Class A-1 Lease-Backed Notes,
[_____] in the aggregate principal amount of $[_____] (the "Class A-1 Notes"),
one class of [_____]% Class A-2 Lease-Backed Notes, [_____] in the aggregate
principal amount of $[_____] (the "Class A-2 Notes"), one class of [_____]%
Class A-3 Lease-Backed Notes, [_____] in the aggregate principal amount of
$[_____] (the "Class A-3 Notes"), one class of [_____]% Class A-4 Lease-Backed
Notes, [____] in the aggregate principal amount of $[_____] (the "Class A-4
Notes"; together with the Class A-1 Notes, the Class A-2 Notes and the Class A-3
Notes, the "Class A Notes"), one class of [_____]% Class B Leased-Backed Notes,
[_____] (the "Class B Notes"), in the aggregate principal amount of $[_____],
one class of [_____]% Class C Lease-Backed Notes, [_____], in the aggregate
principal amount of $[_____] (the "Class C Notes"), one class of [_____]% Class
D Leased-Backed Notes, [_____] in the aggregate principal amount of $[_____]
(the "Class D Notes"); together with the Class A Notes, the Class B Notes, the
Class C Notes, and the Class D Notes, are referred to collectively as the
"Notes").
WHEREAS, pursuant to the Indenture, the Issuer is granting, inter alia, to
the Trustee, for the benefit of the Holders from time to time of the Notes, a
security interest in all right, title and interest of the Issuer in, to and
under the Leases, the interests in the Equipment and the other Transferred
Assets and the Servicing Agreement.
NOW, THEREFORE, the parties hereto agree, in consideration of the mutual
agreements set forth herein and other valuable consideration provided, as
follows:
A G R E E M E N T S
SECTION 1. DEFINITIONS
As used in this Seller Contribution and Sale Agreement, the following terms
have the respective meanings set forth below or set forth in the Section hereof
or in any other agreement indicated:
Inter-Company Loans - as defined in Section 8.01 hereof.
Lease - at any time, each separate lease agreement and each lease schedule
or supplement (and each master lease agreement insofar as the same relates to
any such schedule or supplement) described in Schedule 1 hereto, as the same may
be amended or modified from time to time in accordance with the provisions
hereof and thereof and of the Servicing Agreement.
Predecessor Lease - as defined in Section 5.01 hereof.
Prime Rate - the [ ____________________________ ] prime lending rate.
Schedule of Leases - the schedule of Leases, annexed hereto as Schedule 1
as may be amended from time to time.
Servicing Agreement - the Servicing Agreement dated as of July 1, 1999
between Charter Equipment Lease 1999-1 LLC and Charter Financial, Inc. as the
same may be amended or modified from time to time in accordance with the
provisions hereof and thereof.
Substitute Lease - as defined in Section 5.01 hereof.
Transfer Taxes - as defined in Section 3.19 hereof.
To the extent capitalized terms are used herein which are not otherwise
defined, such terms shall have meanings defined in the Servicing Agreement.
SECTION 2. SALE AND CAPITAL CONTRIBUTION
2.01 Sale and Capital Contribution of Leases and Equipment, Lease
Receivables.
By their execution and delivery of this Seller Contribution and Sale
Agreement, the Seller hereby sells, contributes and assigns to the Transferor,
and the Transferor hereby acquires from the Seller without recourse (except to
the extent of the Seller's purchase obligations as set forth herein), all of the
Seller's right, title and interest in and to each of the Leases and the Lease
Receivables (including the right to receive all payments due or to become due
thereunder since the Cut-Off Date), or the related Transfer Date with respect to
Additional Leases or Substitute Leases. The Seller and the Transferor each
acknowledge and confirm that contemporaneously with the sale and the
contribution of the Leases as hereinabove provided, the Seller, as the holder of
the common stock of the Transferor, is selling, contributing and transferring to
the Transferor, and in connection with each transfer and assignment of
Additional
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Leases and Substitute Leases the Seller will sell, contribute and transfer to
the Transferor, without recourse, all right, title and interest of the Seller in
and to each item of Equipment subject to each Lease, Additional Lease and
Substitute Lease. After such sale, contribution and transfer by the Seller to
the Transferor, all right, title and interest of the Seller in and to each item
of Equipment subject to each Lease shall be vested in the Transferor. In each
instance, the transfer of the Leases, the Lease Receivables and the Equipment
shall be regarded as a sale, however to the extent that the sale price for the
Lease, the Lease Receivables and the Equipment is less than the fair market
value thereof, the difference shall be deemed to be a capital contribution by
the Seller to the Transferor.
2.02 Treatment as a Sale and Contribution; Grant of Security Interest.
It is the intention of the parties hereto that each transfer of Leases,
Additional Leases, Substitute Leases, Lease Payments and all other amounts due
or becoming due with respect thereto and Equipment (or interests therein) being
made hereunder shall constitute a sale and a capital contribution, as desired in
Section 2.01 hereof, and not a loan. The Seller shall not take any action
inconsistent with the treatment of such transfers as sales and capital
contributions, as desired in Section 2.01 hereof, or with the Transferor's
ownership of the Leases, the Lease Receivables and all other amounts due or
becoming due with respect thereto and the interests in the Equipment. The Seller
shall indicate in its records that ownership of each of the Leases, the Lease
Receivables and the interests in the Equipment is held by the Transferor, and
each shall respond to any inquiries from third parties by indicating that its
ownership in the Leases, Additional Leases, Substitute Leases, the Lease
Receivables and all other amounts due or becoming due with respect thereto and
the interests in the Equipment is held by the Transferor. In the event, however,
that a court of competent jurisdiction were to hold that any transaction
evidenced hereby constitutes a loan and not a capital contribution, it is the
intention of the parties hereto that this Agreement shall constitute a security
agreement under applicable law and that the Transferor shall be deemed to have
been granted a first priority security interest in (a) the Leases and all Lease
Payments, Casualty Payments, Termination Payments, and other amounts now due or
becoming due with respect thereto since the Cut-Off Date (other than any
prepayments of rent required pursuant to the terms of any Lease at or before the
commencement of the Lease and any payments due before the Cut-Off Date) and all
Additional Leases and Substitute Leases and all Lease Payments, Casualty
Payments, Termination Payments and other amounts due or becoming due with
respect thereto since the effective date of their respective addition or
substitution (other than any prepayments of rent required by the terms of any
Lease at or before the commencement of the Lease and any payments due before the
effective date of such addition or substitution), (b) all rights of the
Transferor to or under any guarantees of or collateral (including all rights of
the Transferor in any security deposits) for the Lessee's obligations under any
Lease, (c) all interests of the Transferor in the Equipment at any time subject
to any Lease including any security interest of the Seller in the Equipment and
(d) all proceeds of the conversion, whether voluntary or involuntary, of any of
the foregoing into cash or other property.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants as follows:
3.01 Corporate Organization and Authority.
The Seller:
(a) is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation,
(b) has all requisite power and authority and all necessary licenses and
permits to own and operate its properties and to carry on its business
as now conducted (except where the failure to have such licenses and
permits would not have a material adverse effect on the business or
condition (financial or otherwise) of the Seller or impair the
enforceability of any Lease) and to enter into and perform its
obligations under this Seller Contribution and Sale Agreement, and the
transactions contemplated hereby, including the Seller's support
obligations hereunder, and
(c) has duly qualified and is authorized to do business and is in good
standing as a foreign corporation in each jurisdiction where the
character of its properties or the nature of its activities makes such
qualification necessary (except where the failure to be so qualified
or in good standing would not have a material adverse effect on the
Pool of Assets or the business or condition (financial or otherwise)
of the Seller or impair the enforceability of any Lease).
3.02 Business and Property.
The Prospectus and the Private Placement Memoranda, accurately describe in
all material respects the general nature of the business of the Seller.
3.03 Financial Statements.
(a) The consolidated balance sheet of the Seller and its consolidated
subsidiaries for the fiscal periods ended December 31, 1998 and December 31,
1997 and the related consolidated statements of income, retained earnings and
cash flow for the respective period and fiscal years ended on such dates, all
accompanied by reports thereon containing opinions without qualification, except
as therein noted, by Xxxxxx & Xxxxx, independent certified public accountants,
and the unaudited interim consolidated balance sheet of the Seller and its
consolidated subsidiaries as of March 31, 1999 and the related consolidated
statements of income, retained earnings and cash flow for the nine months ended
on such date have been prepared in accordance with generally accepted accounting
principles consistently applied, and present fairly the financial position of
the Seller and its subsidiaries as of such dates and the results of their
operations for such periods.
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(b) Except as disclosed in the Prospectus, the Private Placement Memoranda
and the financial statements referred to in the preceding Section 3.03(a), since
March 31, 1999 there has been no change in the business, condition or prospects
(financial or otherwise) of the Seller except changes in the ordinary course of
business, none of which individually or in the aggregate has been materially
adverse. Neither the Seller nor any of its subsidiaries has any material
liabilities or obligations not incurred in the ordinary course of business other
than those disclosed in the financial statements referred to in Section 3.03(a)
or for which adequate reserves are reflected in such financial statements and
certain contingent obligations of the Seller relating to other asset
securitization transactions involving the Seller.
3.04 Equipment and Leases.
(a) The transfer to the Transferor of the Leases and all of the Seller's
right, title and interest in each item of Equipment does not violate the terms
or provisions of any Lease or any other agreement to which the Seller is a party
or by which it is bound.
(b) Upon completion of the transfer described in Article II hereof, the
Transferor will (i) be the legal owner of the Leases (including the right to
receive all payments due or to become due thereunder), (ii) have a valid
security interest in each item of Equipment subject to any Lease other than a
Rental Stream Obligation. At such time, the Leases (including the right to
receive all payments due or to become due thereunder) and the Seller's interest
in the Equipment will be free and clear of all Liens other than Permitted
Encumbrances.
(c) With respect to any Lease, other than an Additional Lease or a
Substitute Lease, as of the Cut-Off Date, or with respect to any Additional
Lease or any Substitute Lease, as of the related Transfer Date, the Seller
represents and warrants that each Lease shall comply with the following:
(i) the Lease is a valid and binding obligation of the Lessee
enforceable against such Lessee in accordance with its terms (except as may
be limited by bankruptcy laws, other laws affecting creditor's rights in
similar transactions generally, and judicial powers of equity);
(ii) the Lease constitutes a non-cancellable, "hell or high water"
obligation of the Lessee and requires the Lessee to make all Lease Payments
thereon regardless of the condition of the Equipment to which the Lease
relates;
(iii) the Lease is non-cancellable by the Lessee and does not contain
early termination options (except for a Lease which contains early
termination or prepayment clauses, which requires the Lessee to pay the
present value of (as determined in such Lease) all remaining Scheduled
Payments under such Lease upon such cancellation or prepayment);
(iv) all payments payable under the Lease are absolute, unconditional
obligations of the Lessee without right to offset for any reason;
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(v) the Lease requires the Lessee or a third party to maintain the
Equipment in good working order, to bear all the costs of operating the
Equipment, including taxes and insurance relating thereto;
(vi) the Lease does not materially violate any U.S. or state laws;
(vii) the Lease provides for periodic payments;
(viii) in the event of a Casualty Loss with respect to the Lease, the
Lessee, at the Lessee's expense, is required to replace the Equipment with
like equipment in good repair, acceptable to the Servicer or pay at a
minimum the outstanding principal or net book value of the Leases and any
applicable make whole premium;
(ix) the Lease was originated by Charter or was purchased by Charter
in the ordinary course of its business in a manner which satisfies the
underwriting practices set forth in the Credit and Collection Policy as in
effect from time to time;
(x) the Lease has been sold to the Seller free and clear of any Liens
other than Permitted Encumbrances;
(xi) the Lease is assignable without prior written consent of the
Lessee;
(xii) the Lease is denominated and payable only in U.S. dollars and
the Lessor and each Lessee are located in the United States;
(xiii) the Lease is not a "consumer lease" within the meaning of
Article 2A of the UCC in any jurisdiction where such Article 2A has been
adopted and governs the construction thereof;
(xiv) the Lease is not subject to any guaranty by the Seller;
(xv) no adverse selection was used in selecting the Lease for transfer
to the Transferor;
(xvi) the Lessee has represented to the Seller or Vendor that it has
accepted the Equipment;
(xvii) the Lessee is not a subject of an insolvency or bankruptcy
proceeding at the time of the transfer;
(xviii) the Lease is not a Defaulted Lease;
(xix) the maximum remaining term of the Lease does not exceed [84]
months;
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(xx) the Lease is not more than 60 days past due at time of transfer
to the Transferor; and
(xxi) (A) with respect to any Lease other than a Rental Stream
Obligation, such Lease is a Finance Lease, and (B) with respect to any
Lease other than a Rental Stream Obligation or a Synthetic Lease, such
Lease provides that by the end of the lease term, the Lessee may elect to
purchase the related Equipment upon the exercise of a nominal purchase
option.
(d) the Transferor represents and warrants that as of the Cut-Off-Date (i)
no more than 2% of the Leases by Discounted Principal Balance have Equipment
which is subject to vehicle titling regulations in any jurisdiction; and (ii)
the information set forth in the Schedule of Leases is true and correct.
3.05 Payments.
The portfolio detail delivered or to be delivered to the Trustee on or
prior to the Closing Date (i) accurately sets forth, as of the Cut-Off Date, the
amount of each Lease Payment due under each of the Leases and the month in which
such Lease Payment is to be paid in accordance with the terms of the Lease under
which the same is to be paid, (ii) accurately sets forth, as of the Cut-Off
Date, the information with respect to certain other characteristics of the
Leases and the Equipment described in such portfolio detail and (iii) is
otherwise true and correct in all respects.
3.06 Full Disclosure.
The Prospectus and the Private Placement Memoranda (including, without
limitation, the statistical and descriptive information with respect to the
initial Leases, Lessees and Equipment), as of their respective dates, do not
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. There is no fact
peculiar to the Seller or any Affiliate of the Seller or, to the knowledge of
the Seller, any Lease, Lessee or item of Equipment, which the Seller has not or
will not disclose in the Prospectus or the Private Placement Memoranda which
materially affects adversely nor, so far as the Seller can now reasonably
foresee, will materially affect adversely the ability of the Seller to perform
the transactions contemplated by this Seller Contribution and Sale Agreement.
3.07 Pending Litigation.
There are no proceedings or investigations pending, or to the knowledge
(after due inquiry) of the Seller threatened, against or affecting the Seller or
any subsidiary in or before any court, governmental authority or agency or
arbitration board or tribunal, including, but not limited to, any such
proceeding or investigation with respect to any environmental or other liability
resulting from the ownership or use of any of the Equipment, which, individually
or in the aggregate, involve the possibility of materially and adversely
affecting the properties, business, prospects, profits or condition (financial
or otherwise) of the Seller and its subsidiaries, or the ability of the Seller
to perform its obligations under this Seller Contribution and Sale
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Agreement. The Seller is not in default with respect to any order of any court,
governmental authority or agency or arbitration board or tribunal.
3.08 Title to Properties.
Immediately following the transfer by the Seller to the Transferor of the
Leases and the Seller's interest in the Equipment, the Leases (including the
right to receive all payments due or to become due thereunder) and the interest
in the Equipment will be free and clear of all Liens, except the Lien on the
Granted Assets in favor of the Trustee granted pursuant to the Indenture (or the
Lien in favor of the Transferor which is assigned to the Trustee pursuant to the
Indenture).
3.09 Transactions Legal and Authorized.
The transfer by the Seller of all of its right, title and interest in and
to each item of Equipment and each Lease (including the right to receive all
payments due or to become due thereunder) and compliance by the Seller with all
of the provisions of this Seller Contribution and Sale Agreement:
(a) have been duly authorized by all necessary corporate action on the part
of the Seller, and do not require any stockholder approval, or approval or
consent of any trustee or holders of any indebtedness or obligations of the
Seller except such as have been duly obtained;
(b) are within the corporate powers of the Seller; and
(c) are legal and will not conflict with, result in any breach in any of
the provisions of, constitute a default under, or result in the creation of any
Lien upon any property of the Seller under the provisions of, any agreement,
charter, instrument, by-law or other instrument to which the Seller is a party
or by which it or its property may be bound or result in the violation of any
law, regulation, rule, order or judgment applicable to the Seller or its
properties, or any order to which the Seller or its properties is subject, of or
by any government or governmental agency or authority.
3.10 Governmental Consent.
No consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority is necessary or required on the
part of the Seller in connection with the execution and delivery of this Seller
Contribution and Sale Agreement or the contribution of the Leases and Equipment.
3.11 Taxes.
(a) All tax returns required to be filed by the Seller or any subsidiary in
any jurisdiction have in fact been filed, and all taxes, assessments, fees and
other governmental charges upon the Seller or any subsidiary, or upon any of
their respective properties, income or franchises, shown to be due and payable
on such returns have been paid. To the best of the Seller's knowledge all such
tax returns were true and correct and neither the Seller nor any
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subsidiary knows of any proposed additional tax assessment against it in any
material amount nor of any basis therefor.
(b) The provisions for taxes on the books of the Seller and each of its
subsidiaries are in accordance with generally accepted accounting principles.
3.12 Compliance with Law.
The Seller:
(a) is not in violation of any laws, ordinances, governmental rules
or regulations to which it is subject;
(b) has not failed to obtain any licenses, permits, franchises or
other governmental authorizations necessary to the ownership of
its property or to the conduct of its business; and
(c) is not in violation in any material respect of any term of any
agreement, charter instrument, by-law or other instrument to
which it is a party or by which it may be bound, which violation
or failure to obtain might materially adversely affect the
business or condition (financial or otherwise) of the Seller and
its subsidiaries.
3.13 Ability to Perform.
At the date hereof, the Seller does not believe, nor does it have any
reasonable cause to believe, that it cannot perform each and every covenant
contained in this Seller Contribution and Sale Agreement.
3.14 Ordinary Course; No Insolvency.
The transactions contemplated by the Notes, the Indenture and this Seller
Contribution and Sale Agreement are being consummated by the Seller in
furtherance of the Seller's ordinary business purposes and constitute a
practical and reasonable course of action by the Seller designed to improve the
financial position of the Seller, with no contemplation of insolvency and with
no intent to hinder, delay or defraud any of its present or future creditors.
The Seller will not, either as a result of the transaction contemplated by this
Seller Contribution and Sale Agreement, or immediately before or after such
transaction, be insolvent or have an unreasonably small capital for the conduct
of its business and the payment of anticipated obligations.
3.15 Assets and Liabilities.
(a) Both immediately before and after any transfer of Leases (including the
right to receive all payments due or to become due thereunder) and the transfer
of the interests in the Equipment contemplated by this Seller Contribution and
Sale Agreement, the present fair salable value of the Seller's assets was or
will be in excess of the amount that will be required to
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pay the Seller's probable liabilities as they then exist and as they become
absoluteand matured; and
(b) Both immediately before and after any transfer of Leases (including the
right to receive all payments due or to become due thereunder) and the transfer
of the interests in the Equipment contemplated by this Seller Contribution and
Sale Agreement, the sum of the Seller's assets was or will be greater than the
sum of the Seller's debts, valuing the Seller's assets at a fair salable value.
3.16 Fair Consideration.
The consideration received by the Seller, in exchange for the Leases
(including the right to receive all payments due or to become due thereunder)
and the transfer of its interests in the Equipment, is fair consideration having
value equivalent to or in excess of the value of the assets being transferred by
the Seller.
3.17 Ability to Pay Debts.
Neither as a result of the transaction contemplated by this Seller
Contribution and Sale Agreement nor otherwise does the Seller believe that it
will incur debts beyond its ability to pay or which would be prohibited by its
charter documents or by-laws. The Seller's assets and cash flow enable it to
meet its present obligations in the ordinary course of business as they become
due.
3.18 Bulk Transfer Provisions.
The transfer, assignment and conveyance of the Leases and its interests in
the Equipment by the Seller pursuant to this Seller Contribution and Sale
Agreement is not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction.
3.19 Transfer Taxes.
The transfer, assignment and conveyance of the Leases (including all
payments due or to become due thereunder) and its interests in the Equipment by
the Seller pursuant to this Seller Contribution and Sale Agreement is not
subject to and will not result in any tax, fee or governmental charge payable by
the Seller to any federal, state or local government ("Transfer Taxes"). In the
event that the Transferor receives actual notice of any Transfer Taxes arising
out of the transfer, assignment and conveyance of the Leases and/or its
interests in the Equipment, on written demand by the Transferor, or upon the
Seller otherwise being given notice thereof, the Seller shall pay, and otherwise
indemnify and hold the Transferor, the Trustee and the holders of the Notes
harmless, on an after-tax basis, from and against any and all such Transfer
Taxes (it being understood that the holders of the Notes and the Trustee shall
have no obligation to pay such Transfer Taxes).
3.20 Principal Executive Office.
The principal executive office of the Seller is located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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3.21 Contribution Treatment.
The Seller will treat the transfer to the Transferor of the Leases and the
Lease Receivables as a capital contribution and absolute assignment for tax
reporting and accounting purposes.
3.22 Nonconsolidation.
The Seller is and at all times since its incorporation has been operated in
such a manner that it would not be substantively consolidated with the
Transferor, such that the separate existence of the Seller and the Transferor
would be disregarded in the event of a bankruptcy or insolvency of the Seller or
the Transferor, and in such regard:
(a) the Seller is not involved in the day-to-day management of the
Transferor;
(b) the Seller maintains separate corporate records and books of account
from the Transferor and otherwise observes corporate formalities and
has a separate business office from the Transferor;
(c) the financial statements and books and records of the Seller prepared
after the Issuance Date will reflect the separate existence of the
Transferor;
(d) the Seller maintains its assets separately from the assets of the
Transferor (including through the maintenance of a separate bank
account), the Seller's funds and assets, and records relating thereto,
have not been and are not commingled with those of the Transferor and
the separate creditors of the Seller and the Transferor will be
entitled to be satisfied out of the Seller's and the Transferor's
assets prior to any value in the Seller or the Transferor becoming
available to the Transferor's equityholders or the Seller's creditors;
(e) all business correspondence of the Seller and other communications are
conducted in the Seller's own name and on its own stationery; and
(f) the Transferor does not act as an agent of the Seller in any capacity
and the Seller does not act as agent for the Transferor, but instead
presents itself to the public as a corporation separate from the
Transferor.
SECTION 4. THE SELLER
4.01 Merger or Consolidation of the Seller.
The Seller will keep in full force and effect its existence, rights and
franchise as a corporation under the laws of its jurisdiction of incorporation
and will preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is necessary to protect the
validity and enforceability of any of the Leases or to permit performance of the
Seller's duties under this Seller Contribution and Sale Agreement.
The Seller shall not merge or consolidate with any other Person unless (i)
the entity surviving such merger or consolidation is a corporation organized
under the laws of the
11
United States or any jurisdiction thereof and (ii) the surviving entity, if not
the Seller, shall execute and deliver to the Transferor or the Servicer and the
Trustee, in form and substance satisfactory to each of them, (a) an instrument
expressly assuming all of the obligations of the Seller hereunder and (b) an
opinion of counsel to the effect that such Person is a corporation of the type
described in the preceding clause (i) and has effectively assumed the
obligations of the Seller hereunder.
4.02 Control of Transferor.
So long as any of the Notes or the other obligations secured by the
Indenture remain outstanding, the Seller will not (i) sell, pledge or otherwise
transfer any of its common stock in the Transferor held by the Seller or (ii)
vote such common stock interests in favor of any amendment to or alteration of
the articles of incorporation of the Transferor.
4.03 Financial and Business Information.
The Seller will deliver to the Transferor and the Trustee and upon receipt
thereof the Trustee shall deliver to each Rating Agency and upon request, to any
Holder of outstanding Notes evidencing not less than 25% of the Outstanding
Principal Amount of the Notes (and, upon the request of any Holder of
outstanding Notes, to any prospective transferee of any Notes):
(a) SEC and Other Reports - promptly upon their becoming available, one
copy of each report (including the Seller's annual report to shareholders and
reports on Form 8-K, 10-K, and 10-Q), proxy statement, registration statement,
prospectus and notice filed with or delivered to any securities exchange, the
Securities and Exchange Commission or any successor agencies;
(b) Report on Proceedings - promptly upon the Seller's becoming aware of
(1) any proposed or pending investigation of it by any governmental
authority or agency, or
(2) any court or administrative proceeding,
which involves or may involve the possibility of materially and adversely
affecting the properties, business, prospects, profits or condition (financial
or otherwise) of the Seller, a written notice specifying the nature of such
investigation or proceeding and what action the Seller is taking or proposes to
take with respect thereto and evaluating its merits; and
(c) Requested Information - with reasonable promptness, any other data and
information which may be reasonably requested from time to time.
4.04 Officers' Certificates.
With each set of financial statements delivered pursuant to Section 4.03,
the Seller will deliver an Officers' Certificate stating that the officers
signing such Certificate have reviewed the relevant terms of this Seller
Contribution and Sale Agreement and have made, or
12
caused to be made under such officers' supervision, a review of the activities
of the Seller during the period covered by the income statements then being
furnished.
4.05 Books and Records.
The Seller will clearly mark its books and records to reflect the sales and
contributions of Leases and Equipment pursuant to this Agreement.
4.06 Communications.
The Seller will reply to all inquiries by third parties with respect to the
transactions contemplated by this Agreement by indicating that it has
contributed the Leases and its right, title and interest in the related
Equipment and that the Transferor now holds title to the Leases and such
interest in the related Equipment.
SECTION 5. SUBSTITUTION AND ADDITION OF LEASES
5.01 Substitution and Addition.
(a) Subject to the satisfaction of the requirements set forth in Section
5.01(b) hereof, the Seller will have the right (but not the obligation) at any
time to substitute one or more Eligible Leases and the Equipment subject thereto
(each, a "Substitute Lease") for a Lease (for purposes of this Article V
referred to as a "Predecessor Lease") and the Equipment subject thereto if:
(i) the Predecessor Lease became (A) a Defaulted Lease, (B) a Lease
subject to a Warranty Event or (C) a Lease which is the subject of a
Casualty Loss, during the immediately preceding Collection Period; and
(ii) the aggregate Discounted Lease Balance of the Leases that are, or
have been, Predecessor Leases shall not in the aggregate exceed 10% of the
Discounted Lease Balance of the Leases on the Cut-Off Date.
Subject to the satisfaction of the requirements set forth in Section
5.01(b) hereof, in the event of an Early Lease Termination which has been
prepaid in full, the Transferor will have the option to reinvest the proceeds of
such Early Termination Lease in one or more Additional Leases. The purchase
price of such Additional Lease or Leases will be an amount equal to the proceeds
of such Early Termination Lease.
(b) Each transfer of Substitute Leases and addition of Additional Leases
will be subject to the satisfaction of the following conditions precedent:
(i) the final payment on such Substitute Lease or Additional Lease
must be on or prior to [________________];
(ii) after giving effect to such additions and substitutions, the
aggregate amount of Lease Payments through the term of the Leases
(including the
13
Substitute Leases and the Additional Leases) and the Discounted Lease
Balance of the Leases will not be materially less than the aggregate
scheduled Lease Payments of the Leases and the Discounted Lease Balance of
the Leases, respectively prior to such substitution or addition or
adjustment;
(iii) after giving effect to such adjustments, additions and
substitutions, the Discounted Lease Balance of the Leases must not be less
than the Discounted Lease Balance of the Leases prior to such adjustment,
substitution or addition; and
(iv) after giving effect to such adjustments, additions, and
substitutions pursuant to Article IV, the weighted average remaining term
of the Leases must not be greater than the weighted average remaining term
of the Leases prior to such adjustment, addition, and substitution.
(c) Each addition and substitution pursuant to this Section 5.01 shall
include the right to receive all amounts due or to become due under each
Substitute Lease being substituted or Additional Leases being purchased and any
security deposits paid by the related Lessee to the Seller in connection
therewith (other than any prepayments of rent required pursuant to the terms
thereof at or before the commencement of such Lease and any payments due before
the Transfer Date as to which such substitution or addition is made). At the
time of each such substitution and addition, the Seller shall transfer to the
Trustee all Lease Payments actually received by the Seller which became due on
or after the related Transfer Date.
5.02 Procedure.
(a) By 11:00 A.M. on the third Business Day following each Transfer Date,
the Seller shall give written notice to the Servicer of any substitution
pursuant to Section 5.01 of Substitute Leases for Predecessor Leases or addition
of Additional Leases for Early Termination Leases which have been prepaid in
full during the preceding Collection Period. By 11:00 A.M. on the fourth
Business Day following each Payment Date, the Seller shall deliver to the
Servicer and the Trustee and, to the extent not included in the Monthly Servicer
Report, the Trustee shall promptly deliver to each Rating Agency (i) a
supplement to Exhibit A hereto setting forth the information shown thereon for
each such Substitute Lease and Additional Lease, (ii) an Officer's Certificate
(A) certifying that each such Substitute Lease and Additional Lease is an
"Eligible Lease", (B) specifying each Predecessor Lease for which a substitution
has been made and each Early Termination Lease which is being replaced by an
Additional Lease and the amount of each periodic Lease Payment under each such
Predecessor Lease and the amount of each periodic Lease Payment under each
Additional Lease and Substitute Lease being transferred thereby and (C) that all
conditions precedent to such addition or substitution have been satisfied and
(iii) such additional information concerning such Additional Leases, Substitute
Leases, Early Termination Leases or Predecessor Leases as may be needed for the
Servicer to prepare its monthly reports pursuant to the Servicing Agreement and
to otherwise carry out its duties as servicer under the Servicing Agreement.
(b) Subject to the provisions of Section 5.03, the delivery of any
Officer's Certificate and supplement to Exhibit A pursuant to Section 5.02(a)
shall be conclusive evidence,
14
without further act or deed, that during the immediately preceding Collection
Period (i) the Seller assigned to the Transferor, as a sale and a capital
contribution in accordance with Section 2.01 hereof to the extent made under
Section 5.01(a)(i)(A) or (C) hereof all of the Seller's right, title and
interest in and to the Substitute Leases and Additional Leases identified in
such supplement and the related rights described in Section 5.01 hereof, (ii)
the Seller assigned to the Transferor, as a sale and a capital contribution in
accordance with Section 2.01 hereof to the extent made under Section
5.01(a)(i)(A) or (C), all of the Seller's right, title and interest in and to
the Equipment subject to such Substitute Leases and Additional Leases (to the
extent of the Seller's interest in such Equipment, including the Seller's
security interest in any Equipment which is not owned by the Seller), and (iii)
the Transferor assigned and transferred to the Seller, without representation or
warranty, all of the Transferor's right, title and interest in and to the
Predecessor Leases and Early Termination Leases identified in such Officer's
Certificate and the Equipment subject thereto (to the extent of the Transferor's
interest in such Equipment, including the Transferor's security interest in any
Equipment which is not owned by the Transferor). The Seller shall promptly cause
to be delivered to the Trustee (or a custodian on its behalf) the original
executed counterpart of each Substitute Lease and Additional Lease assigned to
the Transferor pursuant to Section 5.01 hereof and the Transferor shall promptly
request the Trustee to deliver to the Seller the original executed counterpart
of each Predecessor Lease and each Early Termination Lease for which
substitution or an addition has been made pursuant to Section 7.01 hereof.
5.03 Objection and Purchase.
If any Holder of the Notes objects to any substitution of Leases within ten
days of receipt of the Servicer's monthly report providing notice thereof
pursuant to the Servicing Agreement, on the grounds either that any Substitute
Lease or Additional Lease is not an Eligible Lease within the meaning of the
definition thereof or that such substitution or addition is otherwise not
permitted under the provisions of Section 5.01 hereof, the Seller shall be
entitled to present such additional information as it deems appropriate in an
effort to demonstrate that such Lease is an Eligible Lease and that such
substitution is permitted under the provisions of Section 5.01 hereof. Following
such presentation, the substitution shall remain effective if each person
originally objecting to the substitution withdraws his objection. If the
conditions specified in the preceding sentence are not satisfied, or if at any
time it is established that any lease was not, at the time of substitution, an
Eligible Lease, then the Seller shall be required to purchase such Lease as if a
Warranty Event occurred.
5.04 Seller's Subsequent Obligations.
Upon any substitution of Leases in accordance with the provisions of this
Article V, the Seller's obligations hereunder with respect to the Predecessor
Lease shall cease but the Seller shall thereafter have the same obligations with
respect to the Substitute Lease substituted as it has with respect to all other
Leases subject to the terms hereof.
15
SECTION 6. ASSIGNMENT
6.01 Assignment to Trustee.
It is understood that this Seller Contribution and Sale Agreement and all
rights of the Transferor hereunder will be assigned by the Transferor to the
Issuer pursuant to the Transferor Contribution and Sale Agreement, and thence by
the Issuer to the Trustee pursuant to the Indenture, for the benefit of the
Trustee, the holders from time to time of the Notes as provided in the
Indenture, and may be subsequently assigned by the Trustee to any successor
Trustee or as otherwise provided in the Indenture. The Seller hereby expressly
agrees to each such assignment and agrees that all of its duties, obligations,
representations and warranties hereunder shall be for the benefit of, and may be
enforced by, the Issuer, the Trustee, the holders from time to time of the
Notes, and any successor to or assignee of any thereof.
6.02 Assignment by Seller.
None of the respective rights or obligations of the Seller hereunder may be
assigned without the prior written consent of the Transferor and the Trustee
(acting upon the instructions of the Holders of 66-2/3% of the then aggregate
unpaid Outstanding Principal Amount of the Notes).
SECTION 7. NATURE OF OBLIGATIONS AND SECURITY THEREFOR
7.01 Obligations Absolute.
The obligations of the Seller hereunder, and the rights of the Trustee, as
assignee of the Transferor, in and to all amounts payable by the Seller
hereunder, shall be absolute and unconditional and shall not be subject to any
abatement, reduction, setoff, defense, counterclaim or recoupment whatsoever,
including, without limitation, abatements, reductions, setoffs, defenses,
counterclaims or recoupments due or alleged to be due to, or by reason of, any
past, present or future claims which the Seller may have against, the
Transferor, the Issuer, the Trustee, and any holder of the Notes or any other
Person for any reason whatsoever; nor, except as otherwise expressly provided
herein, shall this Seller Contribution and Sale Agreement terminate, or the
respective obligations of the Transferor or the Seller be otherwise affected, by
reason of any defect in any Lease or in any unit of Equipment or in the
respective rights and interests of the Transferor, the Issuer, the Seller and
the Trustee therein, or by reason of any Liens, encumbrances, security interests
or rights of others with respect to any Lease or any unit of Equipment, or any
failure by the Transferor to perform any of its obligations herein contained, or
by reason of any other indebtedness or liability, howsoever and whenever
arising, of the Transferor, the Trustee, the Issuer, or any Holder of the Notes
to the Seller or any other Person or by reason of any insolvency, bankruptcy, or
similar proceedings by or against the Seller, the Issuer, the Transferor, the
Trustee or any other Person or for any other cause whether similar or dissimilar
to the foregoing, any present or future law to the contrary notwithstanding, it
being the intention of the parties hereto that all obligations of the Seller
hereunder and all amounts payable by the Seller hereunder shall continue to be
due and payable in all events and in the manner and at the times herein provided
unless and until the obligation to perform or pay the same shall be
16
terminated or limited pursuant to the express provisions of this Seller
Contribution and Sale Agreement.
7.02 Security for Obligations.
As security for the full and timely performance by the Seller of its
obligations hereunder, and by the Transferor of each of its obligations
hereunder and under the Notes and the Indenture, the Seller hereby pledges and
grants to the Trustee (as a precaution in the event that, contrary to the intent
of the parties to the transactions contemplated hereby, it is contended that
either has any continuing interest in any Lease or item of Equipment subject to
the Indenture) a first priority Lien on and security interest in all right,
title and interest of the Seller now or hereafter acquired in and to each Lease
(including the right to receive all payments due or to become due thereunder)
and each item of Equipment at any time subject to the Indenture. The foregoing
security interest is granted upon and is subject to the same terms and
provisions as are set forth in the Indenture and shall continue in full force
and effect until the same is discharged in accordance with the terms therein,
notwithstanding any waiver or modification of any of the terms hereof or thereof
or of any of the Notes, whether with or without the consent of the Seller.
7.03 Further Assurances; Financing Statements.
The Seller agrees that at any time and from time to time, at its expense,
it shall promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or desirable or that the
Transferor or the Trustee may request to perfect and protect the assignments and
security interests granted or purported to be granted herein with respect to the
Leases and the Lease Payments or to enable the Transferor or the Trustee to
exercise and enforce its rights and remedies under this Agreement with respect
to any Leases and the Lease Payments. Without limiting the generality of the
foregoing, each of the Seller shall execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices as may be necessary or desirable or that the Transferor or the Trustee
may request to protect and preserve the assignments and security interests
granted by this Agreement with respect to the Leases.
SECTION 8. INTER-COMPANY LOANS
8.01 Inter-Company Loans.
With the contribution of the Leases, the Transferor has acquired the right
to hold and apply in accordance with the provisions of certain of the Leases,
security deposits. The Transferor may from time to time, to the extent permitted
by law, lend such security deposits and any amounts lent to the Transferor which
were disbursed to the Issuer pursuant to Sections 3.03(b), 3.04(c) or 6.06 of
the Indenture to the Seller (each such advance, an "Inter-Company Loan"). Each
Inter-Company Loan shall be on a demand basis, shall bear interest at an annual
rate equal to the Prime Rate plus one percent, shall be in the form attached
hereto as Exhibit A hereto and shall otherwise be on such arm's-length terms and
conditions as the Transferor and the Seller may agree.
17
SECTION 9. MISCELLANEOUS
9.01 Continuing Obligations.
This Seller Contribution and Sale Agreement shall continue in full force
and effect until each of the Notes and any other amounts due to any holder of
the Notes have been paid in full and all other obligations, if any, secured by
the Lien of the Indenture have been fully satisfied.
9.02 GOVERNING LAW.
THIS SELLER CONTRIBUTION AND SALE AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS
OF THE STATE OF NEW YORK. IF ANY PROVISION OF THIS SELLER CONTRIBUTION AND SALE
AGREEMENT IS DEEMED INVALID, IT SHALL NOT AFFECT THE BALANCE OF THIS SELLER
CONTRIBUTION AND SALE AGREEMENT.
9.03 Successors and Assigns.
This Seller Contribution and Sale Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the Transferor, the Seller, the
Issuer and the Trustee and shall inure to the benefit of the successors and
assigns of the Holders, from time to time, of the Notes.
9.04 Modification.
The terms of this Seller Contribution and Sale Agreement shall not be
waived, modified or amended without the written consent of the party against
whom such waiver, modification or amendment is claimed and, in any case, the
Trustee (acting upon the instructions of the holders of 66-2/3% of the then
aggregate unpaid Outstanding Principal Amount of the Notes).
9.05 No Proceedings.
The Seller hereby agrees that it will not, directly or indirectly,
institute, or cause to be instituted, against the Transferor any proceeding of
the type referred to in Section 6.01(b) or (c) of the Indenture so long as there
shall not have elapsed one year plus one day since the latest maturing Notes
have been paid in full in cash.
9.06 Notices.
All notices and other communications given in connection with this Seller
Contribution and Sale Agreement shall be sufficient for every Person hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid or certified mail return receipt requested, or sent
by private courier or confirmed telecopy, in case of the Seller, the Servicer,
the Issuer and the Transferor, to 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:___________ and in the case of the Trustee and the Holders of the
Notes,
18
to such addresses as are provided pursuant to Sections 1.05 and 1.06 of the
Indenture or to such other address as either party may specify to the other from
time to time in accordance with this Section 9.06.
9.07 Counterparts.
This Seller Contribution and Sale Agreement may be executed in any number
of counterparts, each counterpart constituting an original, but all together
constituting only one Agreement.
9.08 Nonpetition Covenant.
The Seller shall not petition or otherwise invoke the process of any
Governmental Authority for the purpose of commencing or sustaining a case
against the Transferor under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Transferor or any substantial part
of its respective property, or ordering the winding up or liquidation of the
affairs of the Transferor. Neither the Seller shall petition or otherwise invoke
the process of any Governmental Authority for the purpose of commencing or
sustaining a case against the Transferor under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Transferor or
any substantial part of its respective property, or ordering the winding up or
liquidation of the affairs of the Transferor.
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IN WITNESS WHEREOF, the parties hereto have executed this Seller
Contribution and Sale Agreement as of the date and year first written above.
CHARTER FINANCIAL, INC., as
Seller
By:__________________________
Name:
Title:
CHARTER FUNDING CORPORATION V,
By: _________________________
Name:
Title:
The undersigned hereby acknowledges
receipt of a copy of the foregoing Seller
Contribution and Sale Agreement and agrees
to, and to be bound by, each of the
provisions thereof applicable to the
undersigned.
[--------------------------------------],
as Trustee
By:____________________________________
Name:
Title:
[Signature Page to the Seller Contribution and Sale Agreement]
SCHEDULE 1
SCHEDULE OF LEASES
EXHIBIT A
INTER-COMPANY LOAN NOTE
$[___________] July __, 1999
CHARTER FINANCIAL, INC., a New York corporation (the "Maker"), with its
principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, FOR VALUE
RECEIVED, hereby promises to pay to the order of CHARTER FUNDING CORPORATION V,
a New York Corporation or its assignee (the "Payee"), for its account, the
principal sum of
[________________________________________________________________] Dollars
($[___________]) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans made by the Payee to the Maker under the
Contribution and Sale Agreement (as defined below)), together with interest per
annum on the unpaid principal amount hereof at the Prime Rate plus one per cent,
in lawful money of the United States of America and in immediately available
funds immediately on the demand of the Payee.
The date, amount and interest rate, of each Loan made by the Payee to the
Maker, and each payment made on account of the principal thereof, shall be
recorded by the Payee on its books and, prior to any transfer of this Note,
endorsed by the Payee on the schedule attached hereto or any continuation
thereof.
This Note evidences certain Inter-Company Loans from Payee to Maker
pursuant to Section 13.01 of that certain Seller Contribution and Sale Agreement
dated as of July 1, 1999, between the Maker and the Payee (the "Contribution and
Sale Agreement"). Capitalized terms used in this Note have the respective
meanings assigned to them in the Contribution and Sale Agreement.
A-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
CHARTER FINANCIAL, INC.
By:
SCHEDULE OF LOANS
This Note evidences demand Loans made under the
within-described Assignment Agreement to the Maker, on the date, at the interest
rate, and in the principal amounts set forth below, subject to the payments and
prepayments of principal set forth below:
--------------------- ------------------ ------------------- ------------------ ------------------- ==================
Principal Amount Interest Amount Unpaid Principal Notation
Date of Loan Rate Paid or Prepaid Amount Made By
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