Common use of Transfer and Conveyance Clause in Contracts

Transfer and Conveyance. Seller shall execute and deliver to Purchaser at the Closing a Bill ▇▇ Sale and Assignment in substantially the form attached hereto as Exhibit A, and all such other assignments, endorsements and instruments of transfer as shall be necessary or appropriate to carry out the intent of this Agreement and as shall be sufficient to vest in Purchaser title to all of the Assets and all right, title and interest of Seller thereto and to evidence Purchaser's assumption of the Assumed Liabilities; provided, that the parties have agreed that Seller need not obtain the required consents described in Schedule 4.15 (the "Excluded Consents") as of the Closing Date. Seller and Funk shall use their respective best efforts (which shall not include litigation) to obtain the Excluded Consents following the Closing Date (unless the Purchaser and Seller hereafter agree that such consent is unnecessary or undesirable) until December 31, 1999; provided, however, that neither Seller nor Funk shall have any liability to Purchaser or Parent in connection with not obtaining such Excluded Consents. Following the Closing Date, if Purchaser is unable to (i) operate under any Contract which has been transferred to Purchaser and for which a consent has not been obtained, or (ii) obtain substantially similar products and services as to those which could be obtained under such Contracts, on terms and conditions reasonably equivalent to those under such Contracts, then during the period from the Closing Date through December 31, 1999, Seller shall, to the extent possible, purchase goods under such Contracts on behalf of and for the account of Purchaser; provided, however, that neither Seller nor Funk shall have any liability to Purchaser or Parent due to Seller's inability to purchase such goods under such Contracts. Purchaser acknowledges and agrees that Purchaser shall be solely responsible for the payment of all such purchases and further agrees to pay for such purchases in accordance with their terms. Purchaser and Parent, jointly and severally, agree to indemnify and hold harmless Seller and Funk from, against, for and in respect of any and all damages (of any nature whatsoever), obligations, claims, costs and expenses including, without limitation, reasonable attorneys fees and costs, suffered, sustained, incurred or required to be paid by Seller or Funk by reason of such purchases. Seller shall not be entitled to a commission or other compensation (other than the foregoing indemnification payments) for its services in connection herewith. In addition, Seller shall file, within three Business Days after the Closing Date, an amendment to its Articles of Incorporation so as to change its name to a name which shall not include the words "Arlington Industries" or any derivation thereof, and to file in the State of Florida all documents necessary to relinquish its right to use the assumed name "Arlington Sales" in the State of Florida.

Transfer and Conveyance. of the Subsequent ----------------------------------------- Business Loans. -------------- (a) Subject to the conditions set forth in paragraph (b) below, in consideration of the Indenture Trustee's delivery on the related Subsequent Transfer Dates to or upon the order of the Seller of all or a portion of the balance of funds in the Pre-Funding Account, the Seller shall execute on any Subsequent Transfer Date contribute, transfer, assign, set over and deliver otherwise convey without recourse, to Purchaser at the Closing a Bill ▇▇ Sale and Assignment in substantially the form attached hereto as Exhibit A, and all such other assignments, endorsements and instruments of transfer as shall be necessary or appropriate to carry out the intent of this Agreement and as shall be sufficient to vest in Purchaser title to all of the Assets and Trust all right, title and interest of the Seller thereto in and to evidence Purchaser's assumption of each Subsequent Business Loan listed on the Assumed LiabilitiesBusiness Loan Schedule delivered by the Seller on such Subsequent Transfer Date, all its right, title and interest in and to principal collected and interest accruing on each such Subsequent Business Loan on and after the related Subsequent Cut-Off Date and all its right, title and interest in and to all insurance policies; provided, -------- however, that the Seller reserves and retains all its right, title and interest ------- in and to principal (including Principal Prepayments) collected and interest accruing on each such Subsequent Business Loan prior to the related Subsequent Cut-Off Date. The transfer by the Seller of the Subsequent Business Loans set forth on the Business Loan Schedule to the Trust shall be absolute and shall be intended by all parties have agreed that hereto to be treated as a contribution by the Seller. The amount released from the Pre-Funding Account shall be one-hundred percent (100%) of the aggregate Principal Balances as of the related Subsequent Transfer Date of the Subsequent Business Loans so transferred. (b) The Seller need not obtain shall transfer to the required consents Trust the Subsequent Business Loans and the other property and rights related thereto described in Schedule 4.15 paragraph (a) above only upon the "Excluded Consents"satisfaction of each of the following conditions on or prior to the related Subsequent Transfer Date: (i) the Seller shall have provided the Indenture Trustee with a timely Addition Notice and shall have provided any information reasonably requested by it with respect to the Subsequent Business Loans; (ii) the Seller shall have delivered to the Indenture Trustee a duly executed written assignment (including an acceptance by the Indenture Trustee) that shall include a Business Loan Schedule, listing the Subsequent Business Loans and any other exhibits listed thereon; (iii) the Seller shall have deposited in the applicable Principal and Interest Account all collections in respect of the Subsequent Business Loans received on or after the related Subsequent Cut-Off Date; (iv) as of each Subsequent Transfer Date, neither the Closing Date. Seller nor the Servicer was insolvent nor will either of them have been made insolvent by such transfer nor is either of them aware of any pending insolvency; (v) such addition will not result in a material adverse tax consequence to the Trust Fund or the Holders of the Notes and Funk shall use their respective best efforts the Certificates; (which vi) the Pre-Funding Period shall not include litigationhave terminated; (vii) the Seller shall have delivered to obtain the Excluded Consents following Indenture Trustee an Officer's Certificate confirming the satisfaction of each condition precedent specified in this paragraph (b) and in the related Subsequent Transfer Agreement; (viii) the Seller shall have delivered to the Rating Agencies, the Owner Trustee and the Indenture Trustee, Opinions of Counsel with respect to the transfer of the Subsequent Business Loans substantially in the form of the Opinions of Counsel delivered to the Indenture Trustee and the Owner Trustee on the Closing Date (unless bankruptcy, corporate and tax opinions); (ix) such addition will not cause the Purchaser Principal Balance of the Business Loans secured by accounts receivables and Seller hereafter agree inventory to be greater than 25% of the aggregate Principal Balance of the Business Loans; and (x) such addition will not cause the Principal Balance of the Business Loans secured by first liens on commercial real estate or machinery and equipment to be less than 70% of the aggregate Principal Balance of the Business Loans; provided however, in no event shall any such transfer cause 50% or more of the aggregate Principal Balance of the Business Loans to be "real estate mortgages (or interest therein)" within the meaning of Section 7701(i)(A)(i) of the Code and Treasury Regulations Section 301.7701-1(d). (c) The obligation of the Trust to purchase a Subsequent Business Loan on any Subsequent Transfer Date is subject to the requirement, as evidenced by a certificate from a Responsible Officer of the Seller, that such consent is unnecessary Subsequent Business Loan conforms in all material respects to the representations and warranties concerning the individual Initial Business Loans set forth in Sections 3.01 and 3.02 (except that any reference therein to the Cut-Off Date shall be deemed a reference to the applicable Subsequent Cut-Off Date) or undesirablein the Private Placement Memorandum under the heading "The Business Loan Pool- Subsequent Business Loans" and that the inclusion of all Subsequent Business Loans being transferred to the Trust on such (d) until December 31In connection with the transfer and assignment of the Subsequent Business Loans, 1999; providedthe Seller agrees to satisfy the conditions set forth in Sections 2.02, however2.03, that neither 2.04 and 2.05. (e) In connection with each Subsequent Transfer Date, on the Remittance Dates in January, February and March 1999 and the Special Remittance Date, the Seller nor Funk shall have determine, and the Indenture Trustee shall cooperate with the Seller in determining (i) the amount and correct dispositions of the Capitalized Interest Requirements and the Pre-Funding Earnings and (ii) any liability to Purchaser or Parent other necessary matters in connection with not obtaining such Excluded Consentsthe administration of the Pre-Funding Account and of the Capitalized Interest Account. Following If any amounts are incorrectly released to the Closing Date, if Purchaser is unable to (i) operate under any Contract which has been transferred to Purchaser and for which a consent has not been obtained, or (ii) obtain substantially similar products and services as to those which could be obtained under such Contracts, on terms and conditions reasonably equivalent to those under such Contracts, then during the period Seller from the Closing Date through December Capitalized Interest Account, the Seller shall immediately repay such amounts to the Indenture Trustee. (f) No later than March 31, 1999, the Seller shall, shall obtain a letter from an independent accountant stating whether or not the characteristics of the Subsequent Business Loans conform to the extent possible, purchase goods under such Contracts on behalf of and for the account of Purchaser; provided, however, that neither Seller nor Funk shall have any liability to Purchaser or Parent due to Seller's inability to purchase such goods under such Contracts. Purchaser acknowledges and agrees that Purchaser shall be solely responsible for the payment of all such purchases and further agrees to pay for such purchases in accordance with their terms. Purchaser and Parent, jointly and severally, agree to indemnify and hold harmless Seller and Funk from, against, for and in respect of any and all damages (of any nature whatsoever), obligations, claims, costs and expenses including, without limitation, reasonable attorneys fees and costs, suffered, sustained, incurred or required to be paid by Seller or Funk by reason of such purchases. Seller shall not be entitled to a commission or other compensation (other than the foregoing indemnification payments) for its services in connection herewith. In addition, Seller shall file, within three Business Days after the Closing Date, an amendment to its Articles of Incorporation so as to change its name to a name which shall not include the words "Arlington Industries" or any derivation thereof, and to file in the State of Florida all documents necessary to relinquish its right to use the assumed name "Arlington Sales" in the State of Floridacharacteristics set forth herein.