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EXHIBIT 10.4
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T&W LEASE BACKED TRUST 1997-1
LEASE BACKED CERTIFICATES
CERTIFICATE PURCHASE AGREEMENT
T&W FINANCIAL CORPORATION,
as Company,
T&W FUNDING COMPANY 1, L.L.C.,
as Transferor
and
CENTRE SQUARE FUNDING CORPORATION,
as Purchaser
Dated as of February 7, 1997
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TABLE OF CONTENTS
Section 1. Agreement to Purchase................................................. 2
Section 2. Delivery and Payment.................................................. 2
Section 3. Purchase Price........................................................ 2
Section 4. Representations, Warranties and Agreements of the Transferor.......... 3
Section 5. Representations, Warranties and Agreements of the Company............. 4
Section 6. Representations, Warranties and Agreements of the Purchaser........... 7
Section 7. Conditions of the Purchaser's Obligation to Make the Initial Purchase. 8
Section 8. Conditions to the Purchaser's Obligation to Make Additional Purchases. 10
Section 9. Intention of the Parties.............................................. 10
Section 10. Expenses.............................................................. 11
Section 11. Survival.............................................................. 11
Section 12. Notices............................................................... 11
Section 13. Severability of Provisions............................................ 12
Section 14. Counterparts.......................................................... 12
Section 15. Governing Law......................................................... 12
Section 16. Successors and Assigns................................................ 12
Section 17. Waiver: Prior Agreements.............................................. 12
Section 18. Further Agreements.................................................... 12
Section 19. General Interpretive Principles ...................................... 13
Section 20. Bankruptcy............................................................ ▇▇
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▇▇▇▇▇▇▇ ▇▇. Limited Recourse...................................................... 14
Section 22. Amendments............................................................ 14
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T&W FUNDING COMPANY I, L.L.C.
T&W Lease Backed Trust 1997-1
Lease Backed Certificates
CERTIFICATE PURCHASE AGREEMENT
Dated: as of February 7, 1997
To the Purchaser named
on the signature page attached hereto
Ladies and Gentlemen:
T&W Funding Company I, L.L.C. (the "Transferor") proposes, subject
to the terms and conditions stated herein, to cause the Trust (as defined
herein) to sell to you (the "Purchaser"), up to $100,000,000 principal amount of
certificates (the "Commitment"), from time to time and as shall be agreed upon
by the parties hereto, entitled 8.275% Lease-Backed Certificates (the
"Certificates") issued by T&W Lease-Backed Trust 1997-1 (the "Trust"). The
Certificates will evidence undivided ownership interests in the Trust, the
corpus of which will include, among other things, the fight to receive certain
payments which are due after January 1, 1997, or such later date specified on an
Additional Purchase Certificate (as defined below) (each, a "Cut-Off Date")
under a pool of equipment and vehicle leases ("Asset Interests"), which will be
sold from time to time by the Transferor to the Trust pursuant to a Trust and
Security Agreement, dated as of February 1, 1997 (the "Trust and Security
Agreement"), among the Transferor, T&W Financial Corporation (the "Servicer"),
as Servicer, and Norwest Bank Minnesota, National Association (the "Trustee"),
as Trustee and as Backup Servicer. Such Trust and Security Agreement also will
convey to the Trust a security interest in the Lease Contracts and the Equipment
(as such terms are defined in the Trust and Security Agreement) leased pursuant
to the Lease Contracts (or an assignment of a security interest in such
Equipment). Each of the Transferor and the Servicer, in recognition of the
benefits expected to accrue to it from the consummation of the transactions
contemplated by the Trust and Security Agreement, makes the representations,
warranties and covenants set forth in this Agreement.
All capitalized terms used herein that are not otherwise defined
herein shall have the respective meanings set forth in the Trust and Security
Agreement.
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Section 1. Agreement to Purchase.
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, on the date hereof, the
Transferor agrees to cause the Trust to sell to the Purchaser, and the Purchaser
agrees to purchase, the Certificates having the Percentage Interest as of the
initial Cut-Off Date in the amount set forth in Schedule I hereto (the "Initial
Purchase").
For a period of time not to exceed the Funding Period (as defined in
the Trust and Security Agreement), on any date occurring subsequent to the
Closing Date (as defined below), the Transferor may sell additional Asset
Interests to the Trust and cause the principal balance of the Certificates to
increase in a cumulative principal amount up to the Commitment (each, an
"Additional Purchase"). The Transferor shall, not later than five business days
prior to the intended Delivery Date (as defined below), notify the Purchaser of
its intention to cause an Additional Purchase to occur by delivery of an
Additional Purchase Certificate (each an "Additional Purchase Certificate"),
setting forth the amount of such Additional Purchase, the intended Delivery
Date, the related Cut-Off Date and the date that a new Lease Schedule will be
available. Upon receipt by the Purchaser of an Additional Purchase Certificate,
such Additional Purchase shall occur (in an aggregate principal amount not to
exceed the Commitment), subject to satisfaction of the terms and conditions
contained herein.
Section 2. Delivery and Payment.
Delivery of the Certificates shall be made at the offices of ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., Chicago
time, on February 6, 1997 (the "Closing Date"). The Closing Date and the date of
each Additional Purchaser are each referred to herein as a "Delivery Date."
Upon fulfillment of the foregoing and satisfaction of all conditions
specified in Section 7 of this Agreement, with respect to the Initial Purchase,
and Section 8 of this Agreement with respect to each Additional Purchase, the
Purchaser shall pay to the Transferor the Purchase Price set forth in Section 3
of this Agreement.
Section 3. Purchase Price.
The Purchase Price for the Certificates purchased by the Purchaser
shall be 100% of the principal amount thereof (or such other amount as the
Transferor and the Purchaser may agree in writing).
Payment of the Purchase Price shall be made by the Purchaser by wire
transfer of immediately available funds against delivery to the Purchaser of
such Certificates (or in the case of an Additional Purchase, following an
increase in the principal balance of the Certificates).
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Section 4. Representations, Warranties and Agreements of the Transferor.
The Transferor represents and warrants to, and agrees with, the
Purchaser that, as of each Delivery Date:
(a) Under generally accepted accounting principles, the
Transferor will report on its books the transfer of the Lease Receivables
to the Trust pursuant to the Trust and Security Agreement and the sale of
the Certificates as a sale of all of its right, title and interest in such
Lease Receivables. The Transferor has been advised by its independent
certified public accountants that they do not disagree with such treatment
based on Statement No. 125 of the Financial Accounting Standards Board;
(b) The Lease Schedule, created as of January 1, 1997 with
respect to the Initial Purchase, and each Additional Purchase Certificate
as of the related Cut-Off-Date set forth on such Additional Purchase
Certificate with respect to each Additional Purchase, which has been made
available to you by the Transferor was complete as of the date thereof and
includes in accurate description of the Lease Contracts in which a
security interest is being transferred to the Trust under the Trust and
Security Agreement;
(c) The Certificates will be duly and validly authorized and,
when the Certificates are executed, issued, authenticated and delivered
pursuant to the Trust and Security Agreement and this Purchase Agreement,
such Certificates will be duly and validly entitled to the benefits of the
Trust and Security Agreement and to the benefits of the Certificate
Guaranty Insurance Policy Number 23074 (the "Surety Bond"), issued by MBIA
Insurance Corporation ("MBIA");
(d) The representations and warranties made by the Transferor
in the Contribution Agreement, the Insurance Agreement and the Trust and
Security Agreement are true and correct in all material respects on the
related Delivery Date;
(e) Any taxes, fees and other governmental charges payable by
the Transferor in connection with the execution and delivery of the
Contribution Agreement, the Trust and Security Agreement and this Purchase
Agreement, the transfer of the Trust Property to the Trust, and the
execution, delivery and sale of the Certificates, have been or will be
paid at or prior to the related Delivery Date;
(f) Neither the Transferor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar
security, or solicited any offer to buy or accept a transfer, pledge or
other disposition of any Certificate, any interest in any Certificate or
any other similar security from, or otherwise approached or negotiated
with respect to any Certificate, any interest in any Certificate of any
other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any
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other manner, or taken any other action which would constitute a
distribution of the Certificates under the Securities Act of 1933, as
amended (the "1933 Act"), or which would render the disposition of the
Certificates a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, require qualification of the Trust and
Security Agreement under the Trust Indenture Act of 1939, or require
registration of the Trust under the Investment Company Act of 1940, nor
will the Transferor act, nor has it authorized or will it authorize any
person to act, in such manner with respect to any Certificate;
(g) The Transferor will own on each Delivery Date the Trust
Property being conveyed to the Trust under the Trust and Security
Agreement on such date (other than Equipment or Leased Leased Vehicles not
owned by the Company on such date), free and clear of any lien, mortgage,
pledge, charge, security interest or other encumbrance, and will not have
assigned, conveyed, pledged or otherwise transferred to any other person
any of its right, title or interest in such Trust Property or in such
Trust and Security Agreement or the Certificates being issued pursuant
thereto; the Transferor has full power and authority to convey all right,
title and interest of the Transferor in such Trust Property to the Trust
under the Trust and Security Agreement and has duly authorized each such
conveyance to the Trustee by all necessary corporate action; and
(h) On each Delivery Date, the Trust Property purported to be
transferred on such date will have been duly and validly conveyed by the
Transferor to the Trustee under the Trust and Security Agreement, and the
Trust and Security Agreement will convey to the Trustee, for the benefit
of the Holders of the Certificates, all right, title and interest of the
Transferor in and to such Trust Property and any distributions thereon and
income and proceed, thereof, free and clear of the claims of any persons
(including creditors of the Transferor) and the Transferor will have
granted to the Trustee a valid, perfected, first priority security
interest in the related Lease Contracts and granted or assigned to the
Trustee a valid security interest in each item of related Equipment or
Vehicle, perfected to the extent specified in Section 4.03 of the Trust
and Security Agreement, but such security interest may be subject to (a)
liens for taxes arising under the laws of the state in which a Contract
was originated or to which the related Equipment or Vehicle may have been
relocated and (b) other liens, security interests or encumbrances that are
given priority over a properly perfected security interest under the laws
of the state in which any Equipment or Vehicle shall be located from time
to time.
Section 5. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to, and agrees with, the
Purchaser that, as of each Delivery Date:
(a) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Washington
with its chief executive office
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located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and has the
power to own its assets and to transact the business in which it is
presently engaged;
(b) The Company has the power, authority and legal right to
execute, deliver and perform the Contribution Agreement, the Trust and
Security Agreement, the Servicing Agreement, the Insurance Agreement, the
Interest Rate Hedge Assignment dated as of February 7, 1997 between the
Company and CoreStates Bank, N.A., as Collateral Agent (the "Hedge
Assignment") and this Purchase Agreement, and the execution, delivery, and
performance of the Contribution Agreement, the Trust and Security
Agreement, the Servicing Agreement, the Insurance Agreement, the Hedge
Assignment and this Purchase Agreement have been duly authorized by the
Company by all necessary corporate action;
(c) Each of the Contribution Agreement, the Trust and Security
Agreement, the Servicing Agreement, the Hedge Assignment, the Insurance
Agreement, and this Purchase Agreement, assuming due authorization,
execution and delivery by the other parties thereto, constitutes a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except that (A) such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws (whether statutory, regulatory or decisional) now or
hereafter in effect relating to creditors' rights generally and (B) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to certain equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought, whether
a proceeding at law or in equity;
(d) The consummation of the transactions contemplated by the
Contribution Agreement, the Trust and Security Agreement, the Servicing
Agreement, the Insurance Agreement, the Hedge Assignment and this Purchase
Agreement and the fulfillment of the terms therein will not conflict with
or result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under
the charter documents or By-Laws of the Company, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the
Company is a party or by which it is bound, or result in the creation or
imposition of any lien, claim or encumbrance upon any of its material
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other such instrument, other than as created
pursuant to the Contribution Agreement and the Trust and Security
Agreement, or violate any law or any order, rule or regulation applicable
to the Company of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Company or any of its properties; and there are no
legal or governmental proceedings pending or, to the best knowledge of the
Company, threatened or contemplated that would result in a material
modification, suspension or revocation thereof,
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(e) There are no proceedings or investigations to which the
Company, or any of the Company's Affiliates, is a party pending, or, to
the knowledge of the Company, threatened, before any court, regulatory
body, administrative agency or other tribunal or governmental
instrumentality (A) asserting the invalidity of the Contribution
Agreement, the Trust and Security Agreement, the Servicing Agreement, the
Insurance Agreement, the Hedge Assignment, this Purchase Agreement or the
Certificates, (B) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by the
Contribution Agreement, the Trust and Security Agreement, the Servicing
Agreement, the Insurance Agreement, the Hedge Assignment, this Purchase
Agreement or the Certificates or (C) seeking any determination or ruling
that would materially and adversely affect the performance by the Company
of its obligations under, or the validity or enforceability of, the
Contribution Agreement, the Trust and Security Agreement, the Servicing
Agreement, the Insurance Agreement, the Hedge Assignment, this Purchase
Agreement or the Certificates;
(f) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any court,
governmental agency or body or official, required in connection with the
execution and delivery of the Contribution Agreement, the Trust and
Security Agreement, the Servicing Agreement, the Insurance Agreement, the
Hedge Assignment, and this Purchase Agreement or in connection with the
valid and proper authorization, issuance and sale of the Certificates
pursuant to this Purchase Agreement have been or will be taken or obtained
on or prior to each Delivery Date;
(g) Under generally accepted accounting principles, the
Company will report the contribution of the Lease Contracts and the
Equipment by the Contributors (as defined in the Contribution Agreement)
to the Transferor pursuant to the Contribution Agreement, the transfer of
the Lease Receivables from the Transferor to the Trust pursuant to the
Trust and Security Agreement, and the sale of the Certificates, as a sale
of all of its right, title and interest in such Lease Receivables and
Equipment. The Company has been advised by its independent certified
public accountants that they do not disagree with such treatment based on
Statement No. 125 of the Financial Accounting Standards Board;
(h) The Lease Schedule created as of January 1, 1997 with
respect to the Initial Purchase, and each Additional Purchase Certificate
as of the related Cut-Off Date set forth on such Additional Purchase
Certificate with respect to each Additional Purchase, which has been made
available to you by the Transferor was complete as of the date thereof and
includes an accurate description of the Lease Contracts in which a
security interest is being transferred to the Trust under the Trust and
Security Agreement;
(i) When the Certificates are executed, issued, authenticated
and delivered pursuant to the Trust and Security Agreement and this
Purchase Agreement,
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such Certificates will be duly and validly entitled to the benefits of the
Trust and Security Agreement and to the benefits of the Surety Bond;
(j) The representations and warranties made by the Company in
the Contribution Agreement, the Servicing Agreement, the Insurance
Agreement and the Trust and Security Agreement are true and correct in all
material respects on each Delivery Date;
(k) Any taxes, fees and other governmental charges payable by
the Company in connection with the execution and delivery of the
Contribution Agreement, the Trust and Security Agreement, the Servicing
Agreement, the Insurance Agreement, the Hedge Assignment, and this
Purchase Agreement, the contribution of the Lease Assets (as defined in
the Contribution Agreement) to the Transferor, and the execution, delivery
and sale of the Certificates, have been or will be paid at or prior to the
Delivery Date or;
(1) Neither the Company nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar
security, or solicited any offer to buy or accept a transfer, pledge or
other disposition of any Certificate, any interest in any Certificate or
any other similar security from, or otherwise approached or negotiated
with respect to any Certificate, any interest in any Certificate or any
other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action which would constitute a distribution of the
Certificates under the 1933 Act, or which would render the disposition of
the Certificates a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, require qualification of the Trust and
Security Agreement under the Trust Indenture Act of 1939, or require
registration of the Trust under the Investment Company Act of 1940, nor
will the Company act, nor has it authorized or will it authorize any
person to act, in such manner with respect to any Certificate;
(m) On each Delivery Date, each of the Lease Contracts will
meet the criteria for selection described in the Contribution Agreement;
and
(n) To the extent, if any, that the rating provided with
respect to the Certificates by the Rating Agencies is conditional upon the
furnishing of documents or the taking of any other actions by the Company,
the Company shall furnish such documents and take any such action.
Section 6. Representations, Warranties and Agreements of the Purchaser.
The Purchaser hereby represents and warrants as of each Delivery
Date to the Company and the Transferor to the effect that:
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(a) The Purchaser understands that the Certificates have not
been registered under the 1933 Act or the securities laws of any state.
(b) The Purchaser is acquiring its Certificate for investment
for its own account only and not for any other person.
(c) The Purchaser considers itself a substantial,
sophisticated institutional investor having such knowledge and experience
in financial and business matters that it is capable of evaluating the
merits and risks of investment in the Certificates.
(d) The Purchaser has been furnished with all information
regarding the Certificates that it has requested from the Company, the
Trustee or the Transferor.
(e) Neither the Purchaser nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Certificates or any interest in the Certificates or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Certificates, any interest in the Certificates or
any other similar security from, or otherwise approached or negotiated
with respect to the Certificates, any interest in the Certificates or any
other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Certificates under the 1933 Act or that would render the disposition of
the Certificates a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, nor will it act, nor has it authorized or
will it authorize any person to act, in such manner with respect to the
Certificates.
Section 7. Conditions of the Purchaser's Obligation to Make the Initial
Purchase.
The Purchaser's obligation to purchase the Certificates on the
Closing Date shall be subject to the accuracy of the representations and
warranties of the Transferor and the Company herein as of the date thereof, to
the performance by the Transferor and the Company of their respective
obligations hereunder and to the following additional conditions:
(a) All of the respective representations and warranties of
the Company or the Transferor contained in the Contribution Agreement,
this Purchase Agreement, the Insurance Agreement, the Hedge Assignment,
the Swap Agreement, the Servicing Agreement and the Trust and Security
Agreement shall be true and correct as of the Closing Date, and no event
shall have occurred which, with notice or the passage of time, would
constitute a default under the Trust and Security Agreement, the Insurance
Agreement, the Hedge Assignment, the Swap Agreement, the Servicing
Agreement or the Contribution Agreement;
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(b) All conditions to closing required to be fulfilled
pursuant to Section 4.01 of the Trust and Security Agreement shall have
been fulfilled and the Purchaser shall have received all of the documents
and certificates (other than the original executed Lease Contracts) listed
in such Section;
(c) All conditions to issuance of the Surety Bond required to
be fulfilled pursuant to Section 3.02 of the Insurance Agreement shall
have been fulfilled and such Surety Bond shall have been issued;
(d) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, special counsel for the Company and
the Transferor, shall have furnished to the Purchaser its written
opinions, dated the Closing Date, in form and substance satisfactory to
the Purchaser, substantially in the forms attached hereto as Exhibit A;
(e) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, special counsel to the Company, shall
have rendered directly to the Purchaser, or furnished to the Purchaser, a
letter permitting the Purchaser's reliance on, each of its opinions
rendered to the Rating Agencies;
(f) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., counsel to the Company and the
Transferor, shall have furnished to the Purchaser his written opinions,
dated the Closing Date, in form and substance satisfactory to the
Purchaser, substantially in the forms attached hereto as Exhibit C;
(g) Counsel to the Trustee, shall have furnished to the
Purchaser his written opinion, dated the Closing Date, in form and
substance satisfactory to the Purchaser, opining on such matters as the
Purchaser may reasonably request;
(h) ▇▇▇▇▇ ▇▇▇▇, counsel to MBIA, shall have furnished to the
Purchaser its written opinion, dated the Closing Date, in form and
substance satisfactory to you, opining on such matters as you may
reasonably request;
(i) The purchase of such Certificates by the Purchaser shall
not result in a lowering of the rating of the commercial paper notes
issued by the Purchaser and the Purchaser shall have received a letter
from each of ▇▇▇▇▇'▇ Investors Service ("Moody's") and Standard & Poor's
Ratings Service, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies ("S&P")
confirming their rating of such commercial paper notes;
(j) Any taxes, fees and other governmental charges which are
due and payable in connection with the execution, delivery and performance
of the Contribution Agreement, the Trust and Security Agreement, the
Insurance Agreement, the Hedge Assignment, the Swap Agreement, the
Purchase Agreement, the Servicing Agreement and the Certificates shall
have been paid at or prior to the Closing Date;
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(k) All other terms and conditions of this Purchase Agreement
shall have been complied with;
(1) The Purchaser shall have received a Certificate, dated the
Closing Date and signed by a duly authorized officer of the Transferor and
authenticated by the Trustee, registered in the Purchaser's name or in the
name of the Purchaser's nominee;
(m) On or prior to the Closing Date, the Transferor and
Company shall have filed the financing statements described in Section
4.01 of the Trust and Security Agreement, and all taxes and fees due in
connection with such filing shall have been paid in full or duly provided
for;
(n) All proceedings taken in connection with the sale of the
Certificates and all documents and papers relating thereto shall be
satisfactory to the Purchaser; and
(o) The Transferor shall have paid, at the closing on the
Closing Date, the fees and disbursements of the Purchaser's special
counsel, which are reflected in the statements of the Purchaser's special
counsel delivered on or before the Closing Date. Promptly upon receipt of
supplemental statements after the Closing Date, the Transferor will pay
such additional fees and disbursements of the Purchaser's special counsel
which were not reflected in the statements of the Purchaser's special
counsel on the Closing Date.
Section 8. Conditions to the Purchaser's Obligation to Make Additional
Purchases.
The Purchaser's obligation to make Additional Purchases on any
Delivery Date shall be subject to the accuracy of the representations and
warranties of the Transferor and the Company herein as of the date thereof, and
to the performance of the Transferor and the Company of their respective
obligations hereunder and to the following additional conditions:
(a) All other terms and conditions of this Purchase Agreement
shall have been complied with; and
(b) All conditions required to be fulfilled pursuant to
Section 4.02 of the Trust and Security Agreement shall have been fulfilled
and the Purchaser shall have received all of the documents and
certificates (other than the original executed Lease Contracts) listed in
such Section.
Section 9. Intention of the Parties.
The Trust and Security Agreement and the Certificates have been
structured with the intention that the Certificates will qualify under
applicable tax law as indebtedness of the
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Transferor, and the Transferor, the Trustee, the Servicer, any Subservicer and
the Purchaser by acceptance of its Certificate (and any person which is the
beneficial owner of any interest in a Certificate, by virtue of such person's
acquisition of a beneficial interest therein) agrees to treat the Certificates
for purposes of federal, state and local income or franchise taxes, and any
other tax imposed on or measured by income, as indebtedness of the Transferor.
The Purchaser agrees that it will cause any person acquiring an interest in a
Certificate through it to comply with this Agreement as to treatment as
indebtedness for such tax purposes.
Section 10. Expenses.
All costs and expenses incurred in connection with the transfer and
delivery of the Trust Property and the issuance of the Certificates, including
Trustee's fees, fees for financing statement filings and continuations and the
Company's, the Trustee's, MBIA's and the Transferor's attorney's and
accountant's fees and the Purchaser's attorney's fees shall be paid by the
Company and the Transferor.
Section 11. Survival.
The Company and the Transferor agree that the representations,
warranties and covenants made by each of them in this Agreement, in the
Contribution Agreement, in the Servicing Agreement, in the Trust and Security
Agreement, and in any document, certificate or other instrument delivered
pursuant hereto or thereto shall be deemed to be relied upon by the Purchaser,
notwithstanding any investigation heretofore or hereafter made by or on behalf
of the Purchaser, and that the representations, warranties and covenants made by
the Company and the Transferor in this Agreement, in the Trust and Security
Agreement, in the Servicing Agreement, in the Contribution Agreement, or in any
such document, certificate or other instrument shall survive the delivery of and
payment for the Certificates.
Section 12. Notices.
(a) All communications provided for or permitted under this
Agreement shall be in writing and shall be deemed to have been daily given if
personally delivered (including by express courier) or mailed by registered
mail, postage prepaid, or transmitted by telex or telegraph and confirmed by a
similar mailed writing, if to the Purchaser, addressed to the Purchaser, at the
address set forth in Schedule I hereto, if to the Transferor, addressed to the
Transferor at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
President, and if to the Company, addressed to the Company at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President or to such other
addresses as the parties may have designated in writing to the other parties.
(b) The Transferor shall cause the instructions with respect to
payments on the Certificates and notification thereof to be reflected in the
Certificate Register, and all payments
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and notifications thereof to the Purchaser, pursuant to Section 2.08 of the
Trust and Security Agreement, to be made in accordance therewith.
Section 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement which is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement which is prohibited or
unenforceable or held to be void or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to this Agreement
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof.
Section 14. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 15. Governing Law.
THE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 16. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
Section 17. Waiver: Prior Agreements.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof.
Section 18. Further Agreements.
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The Purchaser, the Transferor and the Company agree to execute and
deliver to the other such additional documents, instruments or agreements as may
be necessary or appropriate to effectuate the purposes of this Agreement.
Section 19. General Interpretive Principles.
For purposes of this Agreement except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the
other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles," "Sections,"
"Subsections," "paragraphs," and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and
other subdivisions of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
paragraphs and other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular provision; and
(f) the term "include" or "Including" shall mean without
limitation by reason of enumeration.
Section 20. Bankruptcy.
(a) The Transferor and the Company under this Agreement agree that
it will not institute against, or join any person in instituting against, the
Purchaser any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other similar proceeding under the laws of any jurisdiction, for
one year and a day after the latest maturing commercial paper note relating to
the purchase of the Certificates issued by the Purchaser and outstanding is paid
in full. The obligations of the Transferor and the Company under this Section 20
shall survive termination of this Agreement.
(b) The Purchaser agrees that during the terms of the Trust and
Security Agreement and for one year and one day after the termination of the
Trust and Security
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Agreement, the Purchaser will not file any involuntary petition or otherwise
institute any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law against the Transferor.
Section 2 1. Limited Recourse.
(a) The Purchaser agrees that the Certificates shall be limited
recourse obligations of the Transferor payable solely from the Trust Property.
(b) The obligations of the Purchaser under this Agreement are solely
the corporate obligations of the Purchaser. No recourse shall be had for the
payment of any amount owing by the Purchaser under this Agreement or for the
payment by the Purchaser of any sums in respect hereof or any other obligation
or claim of or against the Purchaser arising out of or based upon this
Agreement, or against any affiliate, employee, officer, director, incorporator
or stockholder of the Purchaser. The Transferor and the Company agree that the
Purchaser shall be liable for any claims that any such party may have against
the Purchaser only to the extent the Purchaser has Excess Funds (as defined in
that certain Liquidity Agreement, dated as of February 7, 1997, among the
Purchaser, CoreStates, N.A. and the Liquidity Banks parties thereto, relating to
the purchase of the Certificates).
Section 22. Amendments.
Any provision of this Certificate Purchase Agreement may be amended
or waived if, but only if such amendment or waiver is in writing and is signed
by the Purchaser, the Company and the Transferor and prior written notice is
given to S&P and ▇▇▇▇▇'▇; and then such amendment or waiver shall be effective
only in the specific instance and for the specific purpose for which given,
provided that such action will not cause either S&P or ▇▇▇▇▇'▇ to reduce its
rating of the commercial paper notes issued by the Purchaser.
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IN WITNESS WHEREOF, the Purchaser, the Transferor and the Seller
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the date first above written.
Very truly yours,
T&W FUNDING COMPANY I, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. PRICE
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Price
----------------------------------------
Title: President
----------------------------------------
T&W FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. PRICE
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Price
----------------------------------------
Title: Chief Executive Officer
----------------------------------------
The foregoing Agreement is hereby
accepted and entered into as of the
date first written above,
CENTRE SQUARE FUNDING CORPORATION,
as Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: VICE PRESIDENT
------------------------------
19
SCHEDULE I
to
Certificate Purchase Agreement
Percentage
Purchaser Interest
--------- ---------
CENTRE SQUARE FUNDING CORPORATION 100%
(1) All payments on account of the Certificates shall be made by bank wire
transfer of federal or other immediately available funds (identifying each
payment a T&W Lease Backed Trust 1997-1, Lease Backed Certificates, and the
due date and application as among principal or interest to each of such
Certificates) for credit to:
Bank: CoreStates Bank, N.A.
ABA Number: ▇▇▇▇▇▇▇▇▇
For The Benefit of: Centre Square Funding Corporation - Operating A/C
Account Number: 14116-03433
contact: ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(2) Address for all notices relating to payments and written confirmations of
such wire transfers and all other communications and notices.
Centre Square Funding Corporation
c/o CoreStates Capital Markets Group
FC 1-8-12-1
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: CP Administration
(3) Taxpayer Identification No.: ▇▇-▇▇▇▇▇▇▇
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