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TRANSFER AND SALE AGREEMENT
by and among
NEWCOURT FINANCIAL USA, INC.
as Seller
AND
NEWCOURT RECEIVABLES CORPORATION II
as Purchaser
Dated as of November 1, 1997
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TABLE OF CONTENTS
ARTICLE IDEFINITIONS........................................................-1-
ARTICLE IITRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT....................-1-
Section 2.01. Closing..................................................-1-
Section 2.02. Conditions to the Closing................................-2-
Section 2.03. Assignment of Agreement..................................-3-
Section 2.04. Conveyance of Subsequent Contracts.......................-3-
Section 2.05. Release of Excluded Amounts..............................-4-
Section 2.06. Delivery of Instruments..................................-4-
ARTICLE IIIREPRESENTATIONS AND WARRANTIES...................................-5-
Section 3.01. Representations and Warranties Regarding the Seller......-5-
Section 3.02. Representations and Warranties Regarding Each Contract
and as to Certain Contracts in the Aggregate.............-6-
Section 3.03. Representations and Warranties Regarding the Initial
Contracts in the Aggregate...............................-7-
Section 3.04. Representations and Warranties Regarding the Contract
Files....................................................-7-
Section 3.05. Representations and Warranties Regarding Concentrations
of Initial Contracts.....................................-8-
Section 3.06 Representations and Warranties Regarding Secondary
Contracts................................................-8-
ARTICLE IVPERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS.......-9-
Section 4.01. Custody of Contracts.....................................-9-
Section 4.02. Filing...................................................-9-
Section 4.03. Name Change or Relocation................................-9-
Section 4.04. Chief Executive Office...................................-9-
Section 4.05. Costs and Expenses.......................................-9-
Section 4.06. Sale Treatment...........................................-9-
ARTICLE VREMEDIES UPON MISREPRESENTATION....................................-10-
Section 5.01. Repurchases and Substitutions of Contracts for
Breach of Representations and Warranties.................-10-
Section 5.02. Seller's Repurchase Option...............................-10-
Section 5.03. Reassignment of Repurchased or Substituted Contracts.....-10-
ARTICLE VIINDEMNITIES.......................................................-11-
Section 6.01. Seller Indemnification...................................-11-
Section 6.02. Liabilities to Obligors..................................-11-
Section 6.03. Tax Indemnification......................................-11-
Section 6.04. Adjustments..............................................-11-
Section 6.05. Operation of Indemnities.................................-12-
ARTICLE VIIMISCELLANEOUS....................................................-12-
Section 7.01. Prohibited Transactions with Respect to the Trust........-12-
Section 7.02. Merger or Consolidation..................................-12-
Section 7.03. Termination..............................................-12-
Section 7.04. Assignment or Delegation by the Seller...................-12-
Section 7.05. Amendment................................................-13-
Section 7.06. Notices. ...............................................-13-
Section 7.07. Merger and Integration...................................-14-
Section 7.08. Headings.................................................-14-
Section 7.09. Governing Law............................................-14-
Section 7.10. No Bankruptcy Petition. .................................-14-
Section 7.11. Third Party Beneficiaries. ..............................-14-
Section 7.12. Severability of Provisions. ............................ -14-
Section 7.13. No Waiver; Cumulative Remedies. ........................ -14-
Section 7.14. Counterparts. .......................................... -14-
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EXHIBITS
Exhibit A Form of Assignment
Exhibit B Form of Subsequent Purchase Agreement
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This TRANSFER AND SALE AGREEMENT, dated as of November 1, 1997 (this
"AGREEMENT"), is made by and among Newcourt Financial USA, Inc., a Delaware
corporation, as a seller hereunder (together with its successors and assigns,
"NEWCOURT USA" or the "SELLER") and Newcourt Receivables Corporation II, a
Delaware corporation and wholly-owned subsidiary of Newcourt USA (together with
its successors and assigns, the "TRUST DEPOSITOR"), as purchaser hereunder.
WHEREAS, in the regular course of its business, the Seller originates and
purchases Contracts.
WHEREAS, the Seller and Trust Depositor wish to set forth the terms and
conditions pursuant to which Trust Depositor will acquire Initial Contracts on
the Closing Date, and may acquire from time to time thereafter certain
Subsequent Contracts (such Initial Contracts and Subsequent Contracts, together
with certain related property as more fully described herein, being the Contract
Assets); and
WHEREAS, the Trust Depositor intends concurrently with each transfer of
Contract Assets hereunder to convey all right, title and interest in such
Contract Assets to Newcourt Receivables Asset Trust 1997-1 (the "TRUST")
pursuant to the Sale and Servicing Agreement dated as of November 1, 1997 by and
among the Trust Depositor, Newcourt USA, as Servicer, the Indenture Trustee
defined therein, and the Trust (as amended, supplemented or otherwise modified
from time to time, the "SALE AND SERVICING AGREEMENT"), executed concurrently
herewith;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the Seller and the Trust Depositor agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL. Unless otherwise defined in this Agreement,
capitalized terms used herein (including in the preamble above) shall have the
meanings assigned to them in the Sale and Servicing Agreement.
ARTICLE II
TRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT
SECTION 2.01. CLOSING. Subject to and upon the terms and conditions set
forth in this Agreement, the Seller hereby sells, transfers, assigns, sets over
and otherwise conveys to the Trust Depositor, in consideration of the Trust
Depositor's payment of $[ ] (less underwriting expenses and
certain other expenses associated with the initial offer and sale of the Notes
financing the Trust Depositor's payment of such amount) in cash as the purchase
price therefor, all the right, title and interest of the Seller in and to
(items (i) - (vi) below, being collectively referred to herein as the "INITIAL
CONTRACT ASSETS"):
(i) the Initial Contracts, and all monies due or to become due in
payment of such Contracts on and after the Initial Cutoff Dates, any
Prepayment Amounts, any payments in respect of a casualty or early
termination, and any Recoveries received with respect thereto, but
excluding any Scheduled Payments due prior to the related Cutoff Date and
any Excluded Amounts;
(ii) the Equipment related to such Contracts and, in the case of any
Vendor Loan, related Applicable Security, including all proceeds from any
sale or other disposition of such Equipment (but subject to the exclusion
and release herein of Excluded Amounts);
(iii) the Contract Files;
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(iv) all payments made or to be made in the future with respect to
such Contracts or the Obligor thereunder under any Vendor Agreements with
the Seller and under any guarantee or similar credit enhancement with
respect to such Contracts;
(v) all Insurance Proceeds with respect to each such Contract; and
(vi) all income from and proceeds of the foregoing;
PROVIDED, that the Initial Contract Assets shall not include any Residual
Investment other than the Guaranteed Residual Investment.
The foregoing sale, transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in a creation or an assumption by
the Trust Depositor of any obligation of the Seller in connection with the
Initial Contract Assets, or any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligor or End-User, or
any other Person in respect of services not financed by the Seller, or (i)
any taxes, fees, or other charges imposed by any Governmental Authority and
(ii) any insurance premiums which remain owing with respect to any Contract
at the time such Contract is sold hereunder. Although the Seller and the
Trust Depositor agree that any such transfer is intended to be a sale of
ownership of the Initial Contract Assets, rather than the mere granting of a
security interest to secure a borrowing, in the event such transfer is deemed
to be of a mere security interest to secure indebtedness, the Seller shall be
deemed to have granted the Trust Depositor a perfected first priority
security interest in such Initial Contract Assets and this Agreement shall
constitute a security agreement under applicable law, securing the repayment
of the purchase price paid hereunder and the obligations and/or interests
represented by the Securities, in the order and priorities, and subject to
the other terms and conditions of, the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, together with such other obligations or
interests as may arise hereunder and thereunder in favor of the parties
hereto and thereto. If such transfer is deemed to be the mere granting of a
security interest to secure a borrowing, the Trust Depositor may, to secure
the Trust Depositor's own borrowing under the Sale and Servicing Agreement
(to the extent that the transfer of the Initial Contract Assets thereunder is
deemed to be a mere granting of a security interest to secure a borrowing)
repledge and reassign (i) all or a portion of the Initial Contract Assets
pledged to the Trust Depositor and not released from the security interest of
this Agreement at the time of such pledge and assignment, and (ii) all
proceeds thereof. Such repledge and reassignment may be made by the Trust
Depositor with or without a repledge and reassignment by the Trust Depositor
of its rights under this Agreement, and without further notice to or
acknowledgment from the Seller. The Seller waives, to the extent permitted
by applicable law, all claims, causes of action and remedies, whether legal
or equitable (including any right of setoff), against the Trust Depositor or
any assignee of the Trust Depositor relating to such action by the Trust
Depositor in connection with the transactions contemplated by the Sale and
Servicing Agreement.
SECTION 2.02. CONDITIONS TO THE CLOSING. On or before the Closing Date,
the Seller shall deliver or cause to be delivered to the Trust Depositor each of
the documents, certificates and other items as follows:
(a) The List of Contracts, certified by the Chairman of the Board,
President or any Vice President of the Seller together with an Assignment
substantially in the form attached as EXHIBIT A hereto (along with delivery of
any instruments required under Section 2.06 together with the identifying
information described in such Section 2.06 being indicated on such List of
Contracts).
(b) A certificate of an officer of each respective Seller substantially in
the form of EXHIBIT C to the Sale and Servicing Agreement.
(c) An opinion of counsel for the Seller substantially in the form of
EXHIBIT D to the Sale and Servicing Agreement.
(d) A letter from Ernst & Young LLP, or another nationally recognized
accounting firm, addressed to the Trust Depositor and the Issuer and the
Trustees and stating that such firm has reviewed a sample of the Contracts and
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performed specific procedures for such sample with respect to certain contract
terms and identifying those Contracts which do not so conform.
(e) Copies of resolutions of the Board of Directors of the Seller or of
the Executive Committee of the Board of Directors of the Seller approving the
execution, delivery and performance of this Agreement and the transactions
contemplated hereunder, certified in each case by the Secretary or an Assistant
Secretary of the Seller.
(f) Officially certified recent evidence of due incorporation and good
standing of the Seller under the laws of Delaware.
(g) The documents, certificates and other items described in Section 2.02
of the Sale and Servicing Agreement, to the extent not already described above.
SECTION 2.03. ASSIGNMENT OF AGREEMENT. The Trust Depositor has the right
to assign its interest under this Agreement to the Issuer and Owner Trustee as
may be required to effect the purposes of the Sale and Servicing Agreement,
without further notice to, or consent of, the Seller, and the Issuer and the
Trustees shall succeed to such of the rights of the Trust Depositor hereunder as
shall be so assigned. The Seller acknowledges that, pursuant to the Sale and
Servicing Agreement, the Trust Depositor will assign all of its right, title and
interest in and to the Contract Assets and its right to exercise the remedies
created by Section 5.01 for breaches of representations and warranties of the
Seller contained in Sections 3.02, 3.03, 3.04 and 3.05 to the Issuer and the
Trustees for the benefit of the Noteholders and Certificateholders. The Seller
agrees that, upon such assignment to the Issuer and the Trustees, such
representations will run to and be for the benefit of the Issuer and the
Trustees and that, the Issuer and the Trustees may enforce directly without
joinder of the Trust Depositor, the repurchase obligations of the Seller with
respect to breaches of such representations and warranties as set forth in
Article III herein and in Section 7.06 of the Sale and Servicing Agreement.
SECTION 2.04. CONVEYANCE OF SUBSEQUENT CONTRACTS. (a) Subject to
satisfaction of the conditions set forth in Section 2.04(b) of the Sale and
Servicing Agreement, the Seller may at its option (but shall not be obligated
to) sell, transfer, assign, set over and otherwise convey to the Trust
Depositor (by delivery of an executed Subsequent Purchase Agreement
substantially in the form attached as EXHIBIT B hereto), without recourse other
than as expressly provided herein and in the Sale and Servicing Agreement (and
the Trust Depositor shall be required to purchase, either through payment by
delivery of a cash purchase price in the amount of the prepayment proceeds
received by the Trust and released to the Trust Depositor on the Subsequent
Transfer Date, in the case of a Subsequent Contract which is an Additional
Contract, or through payment by exchange of one or more related Contracts
released by the Trust to the Trust Depositor on the Subsequent Transfer Date, in
the case of a Subsequent Contract which is a Substitute Contract) all the
right, title and interest of the Seller in and to (items (i) - (vi) below, being
collectively referred to herein as the "SUBSEQUENT CONTRACT ASSETS"):
(i) the Subsequent Contracts identified in the related Addition
Notice, and all monies due or to become due in payment of such Contracts on
and after the related Subsequent Cutoff Dates, any Prepayment Amounts, any
payments in respect of a casualty or early termination, and any Recoveries
received with respect thereto, but excluding any Scheduled Payments due
prior to the related Cutoff Date and any Excluded Amounts;
(ii) the Equipment related to such Contracts and, in the case of any
Vendor Loan, related Applicable Security, including all proceeds from any
sale or other disposition of such Equipment (but subject to the exclusion
and release herein of Excluded Amounts);
(iii) the Contract Files;
(iv) all payments made or to be made in the future with respect to
such Contracts or the Obligor thereunder under any Vendor Agreements with
the Seller and under any guarantee or similar credit enhancement with
respect to such Contracts;
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(v) all Insurance Proceeds with respect to each such Contract; and
(vi) all income from and proceeds of the foregoing;
PROVIDED, that the Subsequent Contract Assets shall in no case include any
Residual Investment other than Guaranteed Residual Investments.
Any such sale, transfer, assignment, set-over and conveyance shall not
constitute and is not intended to result in a creation or an assumption by the
Trust Depositor of any obligation of the Seller in connection with the
Subsequent Contract Assets, or any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligor or End-User, or any
other Person in respect of services not financed by the Seller, or (i) any
taxes, fees, or other charges imposed by any Governmental Authority and (ii) any
insurance premiums which remain owing with respect to any Contract at the time
such Contract is sold hereunder. Although the Seller and the Trust Depositor
agree that any such transfer is intended to be a sale of ownership of the
Subsequent Contract Assets, rather than the mere granting of a security interest
to secure a borrowing, in the event such transfer is deemed to be of a mere
security interest to secure indebtedness, the Seller shall be deemed to have
granted the Trust Depositor a perfected first priority security interest in such
Subsequent Contract Assets and this Agreement shall constitute a security
agreement under applicable law, securing the repayment of the purchase price
paid hereunder and the obligations and/or interests represented by the
Securities, in the order and priorities, and subject to the other terms and
conditions of, the Sale and Servicing Agreement, the Indenture and the Trust
Agreement, together with such other obligations or interests as may arise
hereunder and thereunder in favor of the parties hereto and thereto. If such
transfer is deemed to be the mere granting of a security interest to secure a
borrowing, the Trust Depositor may, to secure the Trust Depositor's own
borrowing under the Sale and Servicing Agreement (to the extent that the
transfer of the Subsequent Contract Assets thereunder is deemed to be a mere
granting of a security interest to secure a borrowing) repledge and reassign (i)
all or a portion of the Subsequent Contract Assets pledged to the Trust
Depositor and not released from the security interest of this Agreement at the
time of such pledge and assignment, and (ii) all proceeds thereof. Such
repledge and reassignment may be made by the Trust Depositor with or without a
repledge and reassignment by the Trust Depositor of its rights under this
Agreement, and without further notice to or acknowledgment from the Seller. The
Seller waives, to the extent permitted by applicable law, all claims, causes of
action and remedies, whether legal or equitable (including any right of setoff),
against the Trust Depositor or any assignee of the Trust Depositor relating to
such action by the Trust Depositor in connection with the transactions
contemplated by the Sale and Servicing Agreement.
SECTION 2.05. RELEASE OF EXCLUDED AMOUNTS. Immediately upon the release
to the Trust Depositor by the Trustee, pursuant to Section 2.05 of the Sale and
Servicing Agreement, of Excluded Amounts, the Trust Depositor hereby irrevocably
agrees to release to the Seller such Excluded Amounts, which release shall be
automatic and shall require no further act by the Trust Depositor, PROVIDED,
that the Trust Depositor shall execute and deliver such instruments of release
and assignment, or otherwise confirming the foregoing release of any Excluded
Amounts, as may be reasonably requested by the Seller.
SECTION 2.06. DELIVERY OF INSTRUMENTS. On the Closing Date, the Seller
shall deliver possession of all "instruments" (within the meaning of Article 9
of the UCC) not constituting part of chattel paper (within the meaning of such
Article 9), which evidence any Contract to the Trust Depositor (or, if
applicable, on the relevant Subsequent Transfer Date), in each case indorsed in
blank without recourse. Pursuant to Section 2.06 of the Sale and Servicing
Agreement, the Trust Depositor is required to deliver any such instrument to the
Owner Trustee (which in turn pursuant to Section 2.06 of the Sale and Servicing
Agreement and Section 3.05 of the Indenture is required to deliver such
instruments to the Indenture Trustee as pledgee under the Indenture).
Accordingly, the Trust Depositor hereby authorizes and directs the Seller to
deliver possession of any such instruments to the Owner Trustee on behalf of and
for the account of the Trust Depositor, and agrees that such delivery shall
satisfy the condition set forth in the first sentence of this Section 2.06. The
Seller shall also identify on the List of Contracts (including any deemed
amendment thereof associated with any Subsequent Contracts), whether by attached
schedule or marking or other effective identifying designation, all Contracts
which are or are evidenced by such instruments.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Seller hereby makes, and upon execution of each Subsequent Purchase
Agreement shall be deemed to remake, the following representations and
warranties, on which the Trust Depositor will rely in purchasing the Contract
Assets on the Closing Date (and on any Subsequent Transfer Date) and
concurrently reconveying the same to the Trust, and on which the Trust, the
Noteholders and Certificateholders will rely under the Sale and Servicing
Agreement. Such representations speak as of the execution and delivery of this
Agreement and as of the Closing Date (or Subsequent Transfer Date, as
applicable), but shall survive the sale, transfer and assignment of the
Contracts to the Trust. The repurchase obligation or substitution obligation of
the Seller set forth in Section 5.01 and in Section 7.06 of the Sale and
Servicing Agreement constitutes the sole remedy available for a breach of a
representation or warranty of the Seller set forth in Sections 3.02, 3.03, 3.04,
3.05 or 3.06 of this Agreement. Notwithstanding the foregoing, the Seller shall
not be deemed to be remaking any of the representations set forth in Section
3.03 or 3.05 on a Subsequent Transfer Date with respect to the Subsequent
Contracts, as such representations relate solely to the composition of the
Initial Contracts conveyed on the Closing Date, PROVIDED, that any inaccurate
representation as to concentrations contained in any Addition Notice shall be
subject to the same remedies hereunder as if such representation were made under
Section 3.05 on the Closing Date with respect to an Initial Contract.
SECTION 3.01. REPRESENTATIONS AND WARRANTIES REGARDING THE SELLER. The
Seller represents and warrants, as of the execution and delivery of this
Agreement and as of the Closing Date (or Subsequent Transfer Date, as
applicable), that:
(a) ORGANIZATION AND GOOD STANDING. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its
assets and to transact the business in which it is currently engaged. The
Seller is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial
or otherwise) of the Seller or the Trust Depositor. The Seller is properly
licensed in each jurisdiction to the extent required by the laws of such
jurisdiction in order to originate, and (if the Seller is to be the
Servicer) service the Contracts in accordance with the terms of the Sale
and Servicing Agreement.
(b) AUTHORIZATION; BINDING OBLIGATION. The Seller has the power and
authority to make, execute, deliver and perform this Agreement and the
other Transaction Documents to which the Seller is a party and all of the
transactions contemplated under this Agreement and the other Transaction
Documents to which the Seller is a party, and has taken all necessary
corporate action to authorize the execution, delivery and performance of
this Agreement and the other Transaction Documents to which the Seller is a
party. This Agreement and the other Transaction Documents to which the
Seller is a party constitute the legal, valid and binding obligation of the
Seller, enforceable in accordance with their terms, except as enforcement
of such terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(c) NO CONSENT REQUIRED. The Seller is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement and the other
Transaction Documents to which the Seller is a party.
(d) NO VIOLATIONS. The Seller's execution, delivery and performance
of this Agreement and the other Transaction Documents to which the Seller
is a party will not violate any provision of any existing law or regulation
or any order or decree of any court or the Certificate of Incorporation or
Bylaws of the Seller,
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or constitute a material breach of any mortgage, indenture, contract or
other agreement to which the Seller is a party or by which the Seller or
any of the Seller's properties may be bound.
(e) LITIGATION. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Seller threatened, against the Seller or any of its
respective properties or with respect to this Agreement or any other
Transaction Document to which the Seller is a party which, if adversely
determined, would in the opinion of the Seller have a material adverse
effect on the business, properties, assets or condition (financial or
other) of the Seller or the transactions contemplated by this Agreement or
any other Transaction Document to which the Seller is a party.
(f) PLACE OF BUSINESS; NO CHANGES; NO TRADE NAMES. The Seller's sole
place of business or chief executive office (within the meaning of Article
9 of the UCC) is as set forth in Section 7.06, and each location where the
Seller maintains custody of Contract Files is reflected in the definition
of UCC Filing Locations or has otherwise been disclosed with all necessary
actions taken in accordance with Section 4.02. The Seller has not changed
its name as set forth herein, whether by amendment of its Certificate of
Incorporation, by reorganization or otherwise, and has not changed the
location of its place of business, within the four months preceding the
Closing Date (or Subsequent Transfer Date, as applicable, except in
accordance with the requirements of Section 4.03). The legal name of the
Seller is as set forth in this Agreement and within the five years
preceding the Closing Date the Seller has not used, and the Seller
currently does not use, any trade names, fictitious names, assumed names,
or "doing business as" names.
(g) NO BULK SALES. The execution, delivery and performance of this
Agreement by the Seller does not require compliance with any "bulk sales"
laws by the Seller.
(h) SOLVENCY. The transactions contemplated under this Agreement and
the Sale and Servicing Agreement will not render the Seller insolvent.
(i) USE OF PROCEEDS. No proceeds of the sale of any Initial Contract
or Subsequent Contract hereunder received by the Seller will be used by the
Seller to purchase or carry any "margin stock" as such term is defined in
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System.
(j) NOT AN INVESTMENT COMPANY. The Seller is not an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (or the Seller is exempt from all provisions of such Act).
(k) TAXES. To the best of the Seller's knowledge, (i) the Seller has
filed all tax returns required to be filed in the normal course of its
business and has paid or made adequate provisions for the payment of all
taxes, assessments and other governmental charges due from such Seller or
is contesting any such tax, assessment or other governmental charge in good
faith through appropriate proceedings, (ii) no tax lien has been filed with
respect thereto, and (iii) no claim is being asserted with respect to any
such tax, fee or other charge.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES REGARDING EACH CONTRACT AND
AS TO CERTAIN CONTRACTS IN THE AGGREGATE. The Seller represents and warrants
(x) with respect to subsections (a) and (b) below, as to each Contract as of the
execution and delivery of this Agreement and as of the Closing Date, and as of
each Subsequent Transfer Date with respect to each Subsequent Contract, and (y)
with respect to subsections (c) through (e) below, as to the Contracts Pool in
the aggregate as of the Closing Date, and as of each Subsequent Transfer Date
with respect to Subsequent Contracts (after giving effect to the addition of
such Subsequent Contracts to the Contracts Pool), that:
(a) LIST OF CONTRACTS. The information set forth in the List of
Contracts (as the same may be amended or deemed amended in respect of a
conveyance of Subsequent Contracts on a Subsequent Transfer Date) is true,
complete and correct as of the applicable Cutoff Date.
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(b) ELIGIBLE CONTRACT. Such Contract satisfies the criteria for the
definition of Eligible Contract set forth in the Sale and Servicing
Agreement as of the date of its conveyance hereunder.
(c) CONTRACTS SECURED BY FIXTURES. In the Seller's reasonable
judgment, not more than 1.80% of the ADCB of the Contracts Pool consists of
Contracts secured by Equipment constituting fixtures.
(d) CONTRACTS SECURED BY OTHER REAL PROPERTY. Not more than [ ]%
of the ADCB of the Contracts Pool consists of Contracts additionally
secured by other real property (exclusive of or in addition to Equipment
constituting fixtures).
(e) CONTRACTS SECURED BY VEHICLES. Not more than 46.17% of the ADCB
of the Contracts Pool consists of Contracts secured by Equipment
constituting Vehicles.
SECTION 3.03. REPRESENTATIONS AND WARRANTIES REGARDING THE INITIAL
CONTRACTS IN THE AGGREGATE. Each Seller represents and warrants, as of the
Closing Date, that:
(a) AMOUNTS. The ADCB of the Contracts as of the Initial Cutoff Date
equals the sum of the principal balance of the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the
Class C Notes and the Class D Notes on the Closing Date.
(b) CHARACTERISTICS. The Initial Contracts have the following
additional characteristics: (i) no Contract has a remaining maturity of
more than 83 months; (ii) the final scheduled Distribution Date on the
Contract with the latest maturity is not later than October 31,2004; (iii)
no Contract was originated after the Initial Cutoff Date; and (iv) not more
than 15.49% of the Initial Contracts (as measured by ADCB) provide for
Scheduled Payments due on a basis other than monthly.
SECTION 3.04. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACT FILES.
The Seller represents and warrants as of the Closing Date with respect to the
Initial Contracts (or as of the Subsequent Transfer Date, with respect to
Subsequent Contracts), that (i) immediately prior to such date (as applicable),
the Seller had possession of each original Contract and the related complete
Contract File (except for the Contracts identified in clause (ii) of this
Section 3.04), and there were no other custodial agreements relating to the same
in effect; (ii) immediately prior to such date (as applicable), the Persons
listed on Schedule 1 to the Sale and Servicing Agreement had possession of the
original Contracts and related complete Contract Files identified on Schedule 1
to the Sale and Servicing Agreement; (iii) each of such documents which is
required to be signed by the Obligor has been signed by the Obligor in the
appropriate spaces; (iv) all blanks on any form have been properly filled in and
each form has otherwise been correctly prepared; and (v) the complete Contract
File for each Contract is in the possession of the Servicer except for the
Contracts and related Contract Files identified on Schedule 1 to the Sale and
Servicing Agreement which are in the possession of the Persons listed therein.
SECTION 3.05. REPRESENTATIONS AND WARRANTIES REGARDING CONCENTRATIONS OF
INITIAL CONTRACTS. The Seller represents and warrants as of the Closing Date,
as to the composition of the Initial Contracts in the Contracts Pool as of the
Initial Cutoff Date, that:
(i) the ADCB of all End-User Contracts with Obligors that are
governmental entities or municipalities does not exceed 0.19% of
the ADCB of the Contracts Pool;
(ii) the ADCB of all End-User Contracts which finance, lease or are
related to Software will not exceed 11.54% of the ADCB of the
Contracts Pool;
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(iii) the ADCB of all End-User Contracts with Obligors who
comprise the three (3) largest Obligors (measured by ADCB as
of the date of determination) does not exceed 3.30% of the
ADCB of the Contracts Pool;
(iv) the ADCB of all End-User Contracts with Obligors who comprise the
twenty (20) largest Obligors (measured by ADCB as of the date of
determination) does not exceed 11.77% of the ADCB of the
Contracts Pool;
(v) the ADCB of all End-User Contracts related to a single Vendor, or
representing a Vendor Loan of such Vendor, does not exceed 6.91%
of the ADCB of the Contracts Pool;
(vi) the ADCB of all End-User Contracts with Obligors located in a
single State of the United States does not exceed 11.98% of the
ADCB of the Contracts Pool; and
(vii) in the Seller's reasonable judgment, the Discounted Contract
Balance of End-User Contracts in the Contracts Pool that are
"true leases" does not exceed 7.70% of the ADCB of the Contracts
Pool.
SECTION 3.06 REPRESENTATIONS AND WARRANTIES REGARDING SECONDARY
CONTRACTS. The Seller represents and warrants with respect to each Secondary
Contract securing a Vendor Loan transferred by the Seller pursuant to this
Agreement as of the Closing Date and with respect to each Secondary Contract
securing a Subsequent Contract transferred by the Seller pursuant to a
Subsequent Purchase Agreement that such Secondary Contract satisfies the
criteria for the definition of Eligible Secondary Contract.
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ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
SECTION 4.01. CUSTODY OF CONTRACTS. Subject to the terms and conditions
of this Section 4.01, and except as provided in Section 2.06, the contents of
each Contract File shall be held in the custody of the Servicer for the benefit
of the Owner Trustee as the owner thereof; provided, however, that the contents
of each Contract File identified on Schedule 1 to the Sale and Servicing
Agreement shall be held in the custody of the Person(s) as set forth therein.
The Seller agrees to cooperate with the Servicer in its efforts to comply with
all its obligations under the Sale and Servicing Agreement in respect of the
Contract Assets, and acknowledges and consents to the transactions contemplated
therein.
SECTION 4.02. FILING. On or prior to the Closing Date, the Seller shall
cause the UCC financing statement(s) referred to in Section 2.02(g) and in
Section 2.02(g) of the Sale and Servicing Agreement to be filed and from time to
time the Seller shall take and cause to be taken such actions and execute such
documents as are necessary or desirable or as the Trust Depositor or the Owner
Trustee may reasonably request to perfect and protect the Owner Trustee's
ownership interest in the Trust against all other persons, including, without
limitation, the filing of financing statements, amendments thereto and
continuation statements, the execution of transfer instruments and the making of
notations on or taking possession of all records or documents of title.
SECTION 4.03. NAME CHANGE OR RELOCATION. (a) During the term of this
Agreement, the Seller shall not change its name, identity or structure or
relocate its chief executive office, or relocate or establish or permit the
relocation or establishment of a new location where Contract Files are
maintained, without first giving at least 30 days' prior written notice to the
Trust Depositor and to the Trustees. Within five (5) days after the Seller
becomes aware of, or receives written notice of a change in the location of
where any of the Contract Files identified on Schedule 1 of the Sale and
Servicing Agreement are maintained, the Seller shall give written notice thereof
to the Trust Depositor and to the Trustees.
(b) If any change in the Seller's name, identity or structure or other
action would make any financing or continuation statement or notice of ownership
interest or lien filed under this Agreement seriously misleading within the
meaning of applicable provisions of the UCC or any title statute, the Seller, no
later than five days after the effective date of such change, shall file such
amendments as may be required to preserve and protect the Trustees' interests in
the Trust Assets and proceeds thereof. In addition, the Seller shall not change
its place of business or its chief executive office (within the meaning of
Article 9 of the UCC) from the location specified in Section 7.06, or relocate
or establish or permit the relocation or establishment of a location where it
maintains Contract Files which is other than in one of the UCC Filing Locations,
unless it has first taken such action as is advisable or necessary to preserve
and protect the Issuer's and Trustees' interest in the Contract Assets.
Promptly after taking any of the foregoing actions, the Seller shall deliver to
the Trust Depositor and the Trustees an opinion of counsel stating that, in the
opinion of such counsel, all financing statements or amendments necessary to
preserve and protect the interests of the Trustees in the Contract Assets have
been filed, and reciting the details of such filing.
SECTION 4.04. CHIEF EXECUTIVE OFFICE. During the term of this Agreement,
and subject to the other terms and provisions herein relating to changes in
location, the Seller will maintain its chief executive office in one of the
States of the United States, except Louisiana, Tennessee, Colorado, Kansas, New
Mexico, Oklahoma, Utah or Wyoming.
SECTION 4.05. COSTS AND EXPENSES. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection and maintenance of
perfection, as against all third parties, of (i) the Trust Depositor's and the
Trustees' right, title and interest in and to the Contract Assets (including,
without limitation, the security interest in the Equipment related thereto) and
(ii) the security interests provided for in the Indenture.
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SECTION 4.06. SALE TREATMENT. The Seller and Trust Depositor shall treat
the transfer of Contract Assets made hereunder for all purposes (including
financial accounting purposes) as a sale and purchase on all of its relevant
books, records, financial statements and other applicable documents.
Notwithstanding the preceding sentence, for federal income tax purposes the
transfer of Contract Assets by the Trust Depositor hereunder shall not be
treated as a sale and purchase for federal income tax purposes so long as the
Trust is disregarded as a separate entity pursuant to Treasury Regulations
Section 301.7701-3(b)(1)(ii).
ARTICLE V
REMEDIES UPON MISREPRESENTATION
SECTION 5.01. REPURCHASES AND SUBSTITUTIONS OF CONTRACTS FOR BREACH OF
REPRESENTATIONS AND WARRANTIES. The Seller hereby agrees, for the benefit of
the Trustees and the Trust Depositor, that it shall repurchase an Ineligible
Contract or Excess Contract (together with all related Contract Assets), at a
repurchase price equal to the Transfer Deposit Amount, not later than ninety
(90) days following the date the Seller becomes aware of, or receives written
notice from any Trustee, the Servicer or the Trust Depositor of, the related
breach or inaccuracy or representation and which breach or inaccuracy has not
otherwise been cured; PROVIDED, HOWEVER, that if the Seller is able to effect a
substitution for any such Ineligible Contract or Excess Contract in compliance
with Section 2.04, the Seller may, in lieu of repurchasing such Contract, effect
a substitution for such affected Contract with a Substitute Contract not later
than the date a repurchase of such affected Contract would be required
hereunder; PROVIDED FURTHER, that with respect to a breach of any representation
or warranty relating to the Contracts in the aggregate and not to any particular
Contract, the Seller may select Contracts (without adverse selection) to
repurchase or substitute for, such that had such Contracts not been reconveyed
by the Trust Depositor and included as part of the Trust there would have been
no breach of such representation or warranty.
SECTION 5.02. SELLER'S REPURCHASE OPTION. On written notice to the Owner
Trustee and the Indenture Trustee at least twenty (20) days prior to a
Distribution Date, and provided that the ADCB of all Contracts in the Contracts
Pool is then less than 10% of the ADCB of such Contracts as of the Initial
Cutoff Date, the Seller, through the Trust Depositor, may (but is not required
to) repurchase from the Trust Depositor (and the Trust Depositor concurrently
from the Trust) on that Distribution Date all outstanding Contracts at a price
equal to the aggregate outstanding Principal Amount of the Securities (other
than the Class E Certificates) as of the current Distribution Date thereon, the
amount of unreimbursed Servicer Advances (if any) as well as accrued and unpaid
monthly Servicing Fees to the date of such repurchase. Such price is to be
deposited in the Collection Account not later than one Business Day before such
Distribution Date, against the Owner Trustee's and Indenture Trustee's and Trust
Depositor's release of the Contracts and the Contract Files to the Seller.
SECTION 5.03. REASSIGNMENT OF REPURCHASED OR SUBSTITUTED CONTRACTS. Upon
receipt by the Indenture Trustee for deposit in the Collection Account of the
repurchase price as described in Section 5.01 or 5.02 (or upon the Subsequent
Transfer Date related to a Substitute Contract described in Section 5.01), and
upon receipt of a certificate of a Servicing Officer in the form attached as
EXHIBIT G to the Sale and Servicing Agreement, the Trust Depositor shall assign
to the Seller all of the Trust Depositor's right, title and interest in the
repurchased or substituted Contract and related Trust Assets, in each case
received from the Trust and the Indenture Trustee in accordance with Section
7.07 of the Sale and Servicing Agreement, without recourse, representation or
warranty.
[remainder of page intentionally left blank]
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ARTICLE VI
INDEMNITIES
SECTION 6.01. SELLER INDEMNIFICATION. The Seller will defend and
indemnify the Trust Depositor, the Trust, the Trustees, any agents of the
Trustees and the Certificateholders and Noteholders (each, an "INDEMNIFIED
PARTY") against any and all costs, expenses, losses, damages, claims and
liabilities, joint or several, including reasonable fees and expenses of counsel
and expenses of litigation (collectively, "COSTS") arising out of or resulting
from (i) this Agreement or the Sale and Servicing Agreement or the use,
ownership or operation of any Equipment by the Seller or the Servicer or any
Affiliate of either thereof, (ii) any representation or warranty or covenant
made by the Seller in this Agreement being untrue or incorrect (subject to the
third sentence of the preamble to Article III of this Agreement above), and
(iii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus or in any amendment thereto or the omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement was made in conformity with information
furnished to the Trust Depositor by the Seller specifically for use therein;
PROVIDED, HOWEVER, that the Seller shall not be required to so indemnify any
such Indemnified Party for such Costs to the extent that such Cost shall be due
to or arise from the willful misfeasance, bad faith or gross negligence of such
Indemnified Party, or the failure of such Indemnified Party to comply with any
express undertaking, agreement or covenant made by such Indemnified Party in a
Transaction Document to which it is a party. Notwithstanding any other
provision of this Agreement, the obligation of the Seller under this Section
6.01 shall not terminate upon a Service Transfer pursuant to Article VIII of the
Sale and Servicing Agreement and shall survive any termination of that agreement
or this Agreement.
SECTION 6.02. LIABILITIES TO OBLIGORS. No obligation or liability to any
Obligor under any of the Contracts is intended to be assumed by the Trustees,
the Trust, the Noteholders or the Certificateholders under or as a result of
this Agreement and the transactions contemplated hereby.
SECTION 6.03. TAX INDEMNIFICATION.
(a) The Seller agrees to pay, and to indemnify, defend and hold
harmless the Trust Depositor, the Trust, the Trustees, the Noteholders or
the Certificateholders from, [TO BE DISCUSSED].
(b) The Seller agrees to pay and to indemnify, defend and hold
harmless the Trust and the Trustees, on an after-tax basis (as hereinafter
defined), from [TO BE DISCUSSED].
SECTION 6.04. ADJUSTMENTS. The Seller agrees that, with respect to each
Contract (i) which provides for a Prepayment Amount less than the amount
calculated in accordance with the definition thereof and (ii) as to which the
related Vendor has not agreed to indemnify the Trust Depositor or any assignee
of the Trust Depositor in an amount at least equal to the excess of the
"Prepayment Amount" as calculated in accordance with the definition thereof over
the amount otherwise payable upon prepayment of such Contract, the Seller shall
indemnify the Trust Depositor or the Trust as assignee thereof, in an amount
equal to any shortfall associated with such Prepayment Amount.
The Seller agrees that if, with respect to any Lease with Lessees that are
governmental entities or municipalities, (i) such Lease may be canceled in
accordance with its terms and (ii) the Vendor that assigned such Lease to the
Seller is not unconditionally obligated to repurchase such Lease from the Seller
for a purchase price not less than the Discounted Contract Balance of such Lease
as of the date of repurchase (assuming that the interest rate to be applied in
calculating the Discounted Contract Balance of such Lease is the Discount Rate
on the date of repurchase) plus interest at the Discount Rate through the date
of repurchase (such amount, the "REQUIRED LEASE CANCELLATION PAYMENT") then the
Seller shall indemnify the Trust Depositor or the Trust as assignee thereof
against such cancellation in an
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amount equal to the difference between the amount, if any, received from the
related Vendor and the Required Lease Cancellation Payment.
The Seller hereby further agrees that if any real property collateral
securing any Contract described in Section 3.02(d) becomes the subject of any
claims, proceedings, liens or encumbrances with respect to any violation or
claimed violation of any federal or state environmental laws or regulations,
such Contract shall for all purposes hereunder be, at and following the time of
discovery by the Seller, the Trust Depositor, the Servicer or any Trustee of
such fact, deemed an Ineligible Contract subject to the same remedial and
recourse provisions hereunder as other Contracts determined to be Ineligible
Contracts hereunder.
SECTION 6.05. OPERATION OF INDEMNITIES. Indemnification under this
Article VI shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If the Seller has made any indemnity
payments to the Trust Depositor or the Trustees pursuant to this Article VI and
the Trust Depositor or the Trustees thereafter collects any of such amounts from
others, the Trust Depositor or the Trustees will repay such amounts collected to
the Seller, except that any payments received by the Trust Depositor or the
Trustees from an insurance provider as a result of the events under which the
Seller's indemnity payments arose shall be repaid prior to any repayment of the
Seller's indemnity payment.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. PROHIBITED TRANSACTIONS WITH RESPECT TO THE TRUST. The
Seller shall not:
(a) Provide credit to any Noteholder or Certificateholder for the
purpose of enabling such Noteholder or Certificateholder to purchase Notes
or Certificates, respectively;
(b) Purchase any Notes or Certificates in an agency or trustee
capacity; or
(c) Except in its capacity as Servicer as provided in the Sale and
Servicing Agreement, lend any money to the Trust.
SECTION 7.02. MERGER OR CONSOLIDATION. (a) Except as otherwise provided
in this Section 7.02, the Seller will keep in full force and effect its
existence, rights and franchises as a Delaware corporation, and the Seller will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement and of any of the
Contracts and to perform its duties under this Agreement.
(b) Any person into which the Seller may be merged or consolidated, or any
corporation resulting from such merger or consolidation to which the Seller is a
party, or any person succeeding to the business of the Seller, shall be
successor to the Seller hereunder, without execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
(c) Upon the merger or consolidation of the Seller as described in this
Section 7.02, the Seller shall provide the Rating Agencies notice of such merger
or consolidation within thirty (30) days after completion of the same.
SECTION 7.03. TERMINATION. This Agreement shall terminate (after
distribution of all amounts distributable pursuant to Section 7.05 of the Sale
and Servicing Agreement) on the Distribution Date on which the principal balance
of the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class B Notes, Class C Notes, Class D Notes and the Certificates is reduced to
zero; PROVIDED, that the Seller's representations and warranties and indemnities
by the Seller shall survive termination.
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SECTION 7.04. ASSIGNMENT OR DELEGATION BY THE SELLER. Except as
specifically authorized hereunder, the Seller may not convey and assign or
delegate any of its rights or obligations hereunder absent the prior written
consent of the Trust Depositor and the Trustees, and any attempt to do so
without such consent shall be void.
SECTION 7.05. AMENDMENT. (a) This Agreement may be amended from time to
time by the Seller and Trust Depositor, with notice to the Rating Agencies, but
without the consent of the Trustees or any of the Noteholders or
Certificateholders, to correct manifest error, to cure any ambiguity, to correct
or supplement any provisions herein which may be inconsistent with any other
provisions herein, or to add any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement; PROVIDED, HOWEVER, that such action shall not, as
evidenced by an Opinion of Counsel for the Seller acceptable to the Trustees,
adversely affect the interests of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by the Seller and
Trust Depositor, with consent of the Required Holders, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Trustees for
the benefit of Noteholders or Certificateholders; PROVIDED, HOWEVER, that no
such amendment or waiver shall (a) reduce in any manner the amount of, or delay
the timing of, collections of payments on the Contracts or distributions which
are required to be made on any Note or Certificate or (b) reduce the aforesaid
percentage required to consent to any such amendment, without the consent of the
holders of all affected Securities then outstanding.
(c) Promptly after execution of any amendment or consent pursuant to this
Section 7.05, the Trust Depositor shall furnish written notification of the
substance of such amendment and a copy of such amendment to each Trustee and
each Rating Agency.
(d) It shall not be necessary for the consent of Noteholders or
Certificateholders under this Section 7.05 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders and Certificateholders
shall be subject to such reasonable requirements as the Trustees may prescribe.
(e) Upon the execution of any amendment or consent pursuant to this
Section 7.05, this Agreement shall be modified in accordance therewith, and such
amendment or consent shall form a part of this Agreement for all purposes, and
every holder of Notes and Certificates theretofore or thereafter issued
hereunder shall be bound thereby.
SECTION 7.06. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("NOTICES") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
(i) If to the Seller:
Newcourt Financial USA, Inc.
2700 Bank One Tower
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ( )
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(ii) If to the Trust Depositor:
Newcourt Receivables Corporation II
2700 Bank One Tower
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ( )
(iii) If to the Indenture Trustee, Owner Trustee or the
Rating Agencies
At their respective addresses for notices specified for
notices in the Sale and Servicing Agreement.
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
All communications and notices pursuant hereto to a Noteholders or
Certificateholder shall be in writing and delivered or mailed at the address
shown in the Note Register or Certificate Register, respectively.
SECTION 7.07. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.08. HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 7.09. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of New
York.
SECTION 7.10. NO BANKRUPTCY PETITION. The Seller covenants and agrees
that, prior to the date that is one year and one day after the payment in full
of all amounts owing in respect of all outstanding Securities, it will not
institute against the Trust Depositor, or the Trust, or join any other Person in
instituting against the Trust Depositor or the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or any state of the
United States. This Section 7.10 will survive the termination of this
Agreement.
SECTION 7.11. THIRD PARTY BENEFICIARIES. Each Trustee is a third-party
beneficiary to this Agreement to the extent of rights and benefits specifically
granted or established hereunder in favor of such Trustee in its capacity as
such Trustee, and may enforce the provisions hereof in such regard as if it were
a direct party hereto.
SECTION 7.12. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreement, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 7.13. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Trust Depositor (or any
assignee thereof) or the Seller, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights,
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remedies, powers and privileges herein provided are cumulative and not
exhaustive (except to the extent specifically provided herein) of any other
rights, remedies, powers or privileges provided by law.
SECTION 7.14. COUNTERPARTS. This Agreement may be executed in two or
more counterparts including by telefax transmission thereof (and by different
parties on separate counterparts), each of which shall be an original, but all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
NEWCOURT RECEIVABLES CORPORATION II
By:
---------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
NEWCOURT FINANCIAL USA, INC.
By:
--------------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
Exhibit A
Transfer and Sale
Agreement
FORM OF ASSIGNMENT
In accordance with the Transfer and Sale Agreement (the "AGREEMENT") dated
as of [ ], 1997 made by and between the undersigned, as
Seller thereunder (the "SELLER"), and Newcourt Receivables Corporation II, a
Delaware corporation and wholly-owned subsidiary of Newcourt Financial USA, Inc.
(the "TRUST DEPOSITOR"), as purchaser thereunder, the undersigned does hereby
sell, transfer, convey and assign, set over and otherwise convey to the Trust
Depositor all its right, title and interest in and to:
(i) the Initial Contracts, and all monies due or to become due in
payment of such Contracts on and after the Initial Cutoff Date, any
Prepayment Amounts, any payments in respect of a casualty or early
termination, and any Recoveries received with respect thereto, but
excluding any Scheduled Payments due prior to the related Cutoff Date and
any Excluded Amounts;
(ii) the Equipment related to such Contracts and, in the case of any
Vendor Loans, related Applicable Security, including all proceeds from any
sale or other disposition of such Equipment (but subject the exclusion and
release in the Agreement of Excluded Amounts);
(iii) the Contract Files;
(iv) all payments made or to be made in the future with respect to
such Contracts or the Obligor thereunder under any Vendor Agreements with
the Seller and under any guarantee or similar credit enhancement with
respect to such Contracts;
(v) all Insurance Proceeds with respect to each such Contract; and
(vi) all income from and proceeds of the foregoing;
PROVIDED, that the property described above shall not include any Residual
Investment other than the Guaranteed Residual Investment.
This Assignment is made pursuant to and in reliance upon the representation
and warranties on the part of the undersigned contained in Article III of the
Agreement and no others. Capitalized terms used in this Assignment and not
defined shall have the same meanings as such terms would have if used in the
Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this [ ] day of [ ].
NEWCOURT FINANCIAL USA, INC.
By:
-------------------------------------
Printed Name:
-----------------------
Title:
-------------------------------
Exhibit B
Transfer and Sale
Agreement
FORM OF SUBSEQUENT PURCHASE AGREEMENT
SUBSEQUENT PURCHASE AGREEMENT (the "AGREEMENT"), dated as of [_____],
[____], by and among Newcourt Receivables Corporation II, a Delaware corporation
(the "TRUST DEPOSITOR") and Newcourt Financial USA, Inc., a Delaware corporation
("NEWCOURT USA" or the "SELLER"), pursuant to the Transfer and Sale Agreement
referred to below.
WITNESSETH:
WHEREAS, the Trust Depositor and the Seller are parties to the Transfer and
Sale Agreement, dated as of November 1, 1997 (the "TRANSFER AND SALE
AGREEMENT");
WHEREAS, pursuant to the Transfer and Sale Agreement, the Seller wishes to
sell the Subsequent Contracts to the Trust Depositor, and the Trust Depositor
wishes to purchase the same, for the purchase price set forth in SECTION 3
below; and
WHEREAS, the Seller has timely delivered an Addition Notice related to such
conveyance as required in the Sale and Servicing Agreement dated as of November
1, 1997 among Newcourt USA (in the capacity of Servicer thereunder), the Trust
Depositor and the Indenture Trustee as defined therein (the "SALE AND SERVICING
AGREEMENT").
NOW, THEREFORE, the Seller and the Trust Depositor, hereby agree as
follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein shall have the
meanings ascribed to them in the Sale and Servicing Agreement unless otherwise
defined herein.
"SUBSEQUENT CUTOFF DATE" shall mean, with respect to
the Subsequent Contracts transferred hereby, [________].
"SUBSEQUENT CONTRACTS" shall mean, for purposes of this
Agreement, the Subsequent Contracts listed in the Subsequent
List of Contracts attached hereto as Exhibit A.
"SUBSEQUENT TRANSFER DATE" shall mean, with respect to
the Subsequent Contracts transferred hereby, [________].
SECTION 2. SUBSEQUENT LIST OF CONTRACTS. The Subsequent List of
Contracts attached hereto as Exhibit A is an amendment to the initial List of
Contracts attached as EXHIBIT H to the Sale and Servicing Agreement, as
contemplated in the definition of List of Contracts set forth therein. The
Subsequent List of Contracts separately identifies (by attached schedule, or
marking or other effective identifying designation) the Subsequent Contracts to
be transferred pursuant to this Agreement on the Subsequent Transfer Date, and
also further separately identifies (by attached schedule, or marking or other
effective identifying designation) the related Contract or Contracts with
respect to which an Addition Event or Substitution Event has occurred and which
Contracts are being deleted from the List of Contracts by virtue of the delivery
of the Subsequent List of Contracts.
SECTION 3. TRANSFER OF SUBSEQUENT CONTRACTS. Subject to and upon the
terms and conditions set forth in Section 2.04 of the Transfer and Sale
Agreement and this Agreement, the Seller hereby sells, transfers, assigns, sets
over and otherwise conveys to the Trust Depositor, in consideration of the Trust
Depositor's (x) payment of $__________ as the purchase price therefor,
representing the prepayment proceeds received with respect to the related
Addition Event (if applicable) or (y) release and redelivery to the original
applicable Seller of the related Contract Assets with respect to which a
Substitution Event has occurred (if applicable):
(i) the Subsequent Contracts identified in the related Addition
Notice, and all monies due or to become due in payment of such Contracts on
and after the related Subsequent Cutoff Dates, any Prepayment Amounts, any
payments in respect of a casualty or early termination, and any Recoveries
received with respect thereto, but excluding any Scheduled Payments due
prior to the related Cutoff Date and any Excluded Amounts;
(ii) the Equipment related to such Contracts and, in the case of any
Vendor Loan, related Applicable Security, including all proceeds from any
sale or other disposition of such Equipment (but subject to the exclusion
and release herein of Excluded Amounts);
(iii) the Contract Files;
(iv) all payments made or to be made in the future with respect to
such Contracts or the Obligor thereunder under any Vendor Agreements with
the Seller and under any guarantee or similar credit enhancement with
respect to such Contracts;
(v) all Insurance Proceeds with respect to each such Contract; and
(vi) all income from and proceeds of the foregoing;
PROVIDED, that such Subsequent Contract Assets shall in no case include any
Residual Investment other than the Guaranteed Residual Investment.
It is the intention of the Seller and the Trust Depositor that the transfer
contemplated by this Agreement shall constitute a sale of the Subsequent
Contracts from the Seller to the Trust Depositor, conveying good title thereto
free and clear of any Liens, and that the Subsequent Contracts shall not be part
of the Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy or similar law.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. (a) The
Seller hereby represents and warrants to the Trust Depositor that the
representations and warranties of the Seller in Section 3.01 of the Transfer and
Sale Agreement are true and correct as of the Subsequent Transfer Date.
(b) Each Seller hereby jointly and severally repeats and remakes with
respect to the Subsequent Contracts as of the Subsequent Transfer Date, the
representations and warranties set forth in the Transfer and Sale Agreement and
deemed to be made with respect to such Subsequent Contracts thereunder.
(c) Seller hereby represents and warrants that (i) the ADCB of the
Subsequent Contracts listed on the Subsequent List of Contracts and conveyed to
the Trust Depositor pursuant to this Agreement is $__________ as of the
Subsequent Cutoff Date, and (ii) the conditions set forth in Section 2.04(b) of
the Sale and Servicing Agreement have been satisfied as of the Subsequent
Transfer Date.
SECTION 5. RATIFICATION OF AGREEMENT. As supplemented by this
Agreement, the Transfer and Sale Agreement is in all respects ratified and
confirmed and, as so supplemented by this Agreement, shall be read, taken and
construed as one and the same instrument.
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SECTION 6. COUNTERPARTS. This Agreement may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
shall be an original but all of which together shall constitute one and the same
instrument.
SECTION 7. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Illinois, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
NEWCOURT RECEIVABLES CORPORATION II
By:
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Printed Name:
Title:
NEWCOURT FINANCIAL USA, INC.
By:
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Printed Name:
Title: