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PURCHASE AND SALE AGREEMENT
AMONG
ANTIGUA FUNDING CORPORATION
PURCHASER
AT&T CAPITAL CORPORATION
IN ITS INDIVIDUAL CAPACITY AND AS SERVICER
AND
AT&T CAPITAL LEASING SERVICES, INC.
AT&T CREDIT CORPORATION
NCR CREDIT CORP.
SELLERS
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DATED AS OF NOVEMBER 1, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS................................................. 2
Section 1.1. General ............................................. 2
Section 1.2. Specific Terms....................................... 2
Section 1.3. Usage of Terms ...................................... 3
Section 1.4. Certain References .................................. 3
Section 1.5. No Recourse ......................................... 3
Section 1.6. Action by or Consent of Noteholders or Equity
Certificateholder ................................... 3
ARTICLE II CONVEYANCE OF THE CONTRACTS ................................ 4
Section 2.1. Conveyance of Contracts and Related Assets .......... 4
Section 2.2. Intention of the Parties ............................ 5
ARTICLE III REPRESENTATIONS AND WARRANTIES ............................. 6
Section 3.1. Representations and Warranties of TCC ............... 6
Section 3.2. Representations and Warranties of Leasing Services .. 8
Section 3.3. Representations and Warranties of Credit Corp. ...... 10
Section 3.4. Representations and Warranties of NCR Credit ......... 12
Section 3.5. Representations and Warranties of Antigua ............ 14
ARTICLE IV COVENANTS OF THE SELLERS .................................... 7
Section 4.1. Protection of Title of Antigua and the Trust ......... 17
Section 4.2. Other Liens or Interests ............................. 19
Section 4.3. Costs and Expenses ................................... 19
Section 4.4. Indemnification ..................................... 20
Section 4.5. Negative Covenant ................................... 22
Section 4.6. Separate Identity ................................... 22
ARTICLE V REPURCHASES................................................... 23
Section 5.1. Repurchase of Contracts Upon Breach of Representation
or Warranty ......................................... 23
Section 5.2. Reassignment of Purchased Contracts and Leased
Equipment ........................................... 24
Section 5.3. Waivers.............................................. 24
ARTICLE VI MISCELLANEOUS............................................... 24
Section 6.1. Liability of the Sellers and TCC .................... 24
Section 6.2. Merger or Consolidation of a Seller, TCC or Antigua . 24
Section 6.3. Limitation on Liability of the Sellers, TCC
and Other ........................................... 25
Section 6.4. The Sellers and TCC May Own Notes or Equity
Certificate ......................................... 26
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Section 6.5. Amendment............................................ 26
Section 6.6. Notices.............................................. 27
Section 6.7. Merger and Integration .............................. 28
Section 6.8. Severability of Provisions .......................... 28
Section 6.9. GOVERNING LAW ....................................... 28
Section 6.10. Counterparts ........................................ 28
Section 6.11. Conveyance of the Contracts to the Trust ............ 28
Section 6.12. Nonpetition Covenant ................................ 29
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SCHEDULES
Schedule A-1 -- Schedule of Lease Contracts and Leased Equipment
Schedule A-2 -- Schedule of Loan Contracts
Schedule B -- Schedule of Representations and Warranties of the Sellers
and TCC
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, dated as of November 1,
1997, executed between Antigua Funding Corporation, a Delaware corporation, as
purchaser ("Antigua"), AT&T Capital Corporation, a Delaware corporation, in its
individual capacity ("TCC"), and as servicer (the "Servicer"), AT&T Capital
Leasing Services, Inc., a Massachusetts corporation ("Leasing Services"), AT&T
Credit Corporation, a Delaware corporation ("Credit Corp."), and NCR Credit
Corp., a Delaware corporation ("NCR Credit"), as sellers (each a "Seller" and,
together, "the Sellers").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of a Trust Agreement, dated
as of November 1, 1997 (the "Trust Agreement"), between Antigua and The Bank of
New York, as Owner Trustee, Antigua has formed Capita Equipment Receivables
Trust 1997-1 (the "Trust"), and the Trust has issued the Equity Certificate to
Antigua; and
WHEREAS, pursuant to the terms of an Indenture, dated as of
November 1, 1997 (the "Indenture"), between the Trust and Bankers Trust Company,
as Trustee (the "Indenture Trustee"), the Trust has, on the Closing Date, issued
the Notes (as defined in the Indenture); and
WHEREAS, the Sellers own certain Lease Contracts as are
more particularly described in Schedule A-1 attached hereto and have an
ownership or security interest in the items of Equipment subject thereto (the
"Leased Equipment"), as more particularly described in Schedule A-1 attached
hereto, and the Sellers own certain Loan Contracts as are more particularly
described in Schedule A-2 attached hereto, which create a security interest in
the items of equipment subject thereto (the "Loan Equipment"), (the Loan
Equipment and the Leased Equipment being collectively referred to herein as the
"Equipment"); and
WHEREAS, pursuant to the terms of a Transfer and Servicing
Agreement, dated as of November 1, 1997 (the "Transfer and Servicing
Agreement"), by and among the Trust, Antigua, as depositor, and TCC, in its
individual capacity and as Servicer, to be executed concurrently with the
execution of this Agreement, Antigua will convey the Contracts (together with
other similar lease contracts and loan contracts, which previously were conveyed
to Antigua pursuant to Purchase and Sale Agreements substantially similar to
this Agreement) to the Trust; and
WHEREAS, pursuant to a Loan Agreement, dated as of November
1, 1997, among the Owner Trustee, the Indenture Trustee, the Depositor, TCC, in
its individual capacity and as Servicer, the Lenders party thereto, and the
agent
thereunder, there will be established a Cash Collateral Account for the benefit
of the Noteholders; and
WHEREAS, Antigua has agreed to acquire the Contracts and
the Leased Equipment from the Sellers and the Sellers have agreed to transfer
the Contracts and the Leased Equipment to Antigua; and
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and for other good and valuable consideration, the receipt of
which is acknowledged, Antigua, TCC, the Servicer and the Sellers, intending to
be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. General. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Article,
Section, Schedule and Exhibit references, unless otherwise specified, refer to
Articles and Sections of and Schedules and Exhibits to this Agreement. All
capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Transfer and Servicing Agreement or, if
not defined in the Transfer and Servicing Agreement, in the Indenture.
Section 1.2. Specific Terms. Whenever used in this
Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
"Agreement" means this Purchase and Sale Agreement and all
amendments hereof and supplements hereto.
"Closing Date" means December 3, 1997.
"Related Documents" means the Trust Agreement, the
Indenture, the Transfer and Servicing Agreement, the Equity Certificate, the
Notes and the Cash Collateral Account Agreement. The Related Documents to be
executed by any party are referred to herein as "such party's Related
Documents," "its Related Documents" or by a similar expression.
"Repurchase Event" means, with respect to any Contract, the
occurrence of a breach of any of the representations and warranties set forth in
the Schedule of Representations that materially and adversely affects the value
of such Contract.
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"Schedule of Contracts" means, collectively, the schedules
of Lease Contracts and Loan Contracts attached hereto as Schedule A-1 and
Schedule A-2, respectively.
"Schedule of Representations" means the Schedule of
Representations and Warranties attached hereto as Schedule B.
"Trust" means the trust created by the Trust Agreement, the
estate of which consists of the Trust Assets.
"Trust Assets" means the property and proceeds of every
description conveyed pursuant to Section 2.6 of the Trust Agreement and Section
2.1 of the Transfer and Servicing Agreement, together with the Trust Accounts
(including all Eligible Investments therein and all proceeds therefrom), and the
right to withdraw funds from the Cash Collateral Account pursuant to Section
8.06 of the Indenture.
Section 1.3. Usage of Terms. With respect to all terms used
in this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement or the Transfer
and Servicing Agreement; references to Persons include their permitted
successors and assigns; and the terms "include" or "including" mean "include
without limitation" or "including without limitation."
Section 1.4. Certain References. All references to the
Contract Principal Balance of a Contract as of an Accounting Date shall refer to
the close of business on such day, or as of the first day of a Monthly Period
shall refer to the opening of business on such day. All references to the last
day of a Monthly Period shall refer to the close of business on such day.
Section 1.5. No Recourse. Without limiting the obligations
of the Sellers or TCC hereunder, no recourse may be taken, directly or
indirectly, under this Agreement or any certificate or other writing delivered
in connection herewith or therewith, against any stockholder, officer or
director, as such, of any of Antigua, the Sellers, TCC, the Servicer, the
Indenture Trustee or the Owner Trustee, or of any predecessor or successor of
any of Antigua, the Sellers, TCC, the Servicer, the Indenture Trustee or the
Owner Trustee.
Section 1.6. Action by or Consent of Noteholders or Equity
Certificateholder. Whenever any provision of this Agreement refers to action to
be taken, or consented to, by Noteholders or the Equity Certificateholder, such
provision shall be deemed to refer to Noteholders or the Equity
Certificateholder, as the case may be, of record as of the Record Date
immediately preceding the date on
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which such action is to be taken, or consent given, by such Noteholders or the
Equity Certificateholder, as the case may be. Solely for the purposes of any
action to be taken, or consented to, by Noteholders, any Note registered in the
name of any of Antigua, a Seller or TCC, or any Affiliate thereof, shall be
deemed not to be outstanding, and the related Principal Balance, as applicable,
evidenced thereby shall not be taken into account in determining whether the
requisite Principal Balance necessary to effect any such action or consent has
been obtained; provided, however, that, solely for the purpose of determining
whether the Indenture Trustee or Owner Trustee is entitled to rely upon any such
action or consent, only Notes which the Indenture Trustee or Owner Trustee knows
to be so owned shall be so disregarded.
ARTICLE II
CONVEYANCE OF THE CONTRACTS
Section 2.1. Conveyance of Contracts and Related Assets.
(a) Each of the Sellers hereby subscribes to purchase one
share of common stock of Antigua, of the Class specified below, in consideration
for the amount of capital to be contributed by such Seller, all as specified
below:
Leasing Services: $146,937,856 Class 1997-1-A
Credit Corp.: $274,460,716 Class 1997-1-B
NCR Credit: $ 1,452,279 Class ▇▇▇▇-▇-▇
▇▇▇▇▇▇▇ agrees that the capital to be contributed by any Seller may take the
form of assets.
(b) In satisfaction of its subscription agreement in
Section 2.1(a) plus additional cash to be received from Antigua, each of the
Sellers hereby sells, transfers, assigns, and otherwise conveys to Antigua,
without recourse (but without limitation of its obligations in this Agreement),
and Antigua hereby acquires, all right, title and interest, including security
interests, whether now owned or hereafter acquired, of each of the Sellers in
and to the following:
(i) the Contracts, including, without limitation, (A) all monies
at any time paid or payable thereon or in respect thereof from and after
the Cut-Off Date, including but not limited to (1) Scheduled Payments
(including those Scheduled Payments due prior to, but not received as of,
the Cut-Off Date, but excluding those Scheduled Payments due on or after,
but received prior to, the Cut-Off Date), (2) Prepayments, (3)
Liquidation Proceeds, (4) Extension Fees, (5) payments to be applied by
the Servicer to the payment of insurance charges, maintenance, taxes or
other similar obligations, and (6) payments to be retained by the
Servicer in payment of Administrative Fees,
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(B) all security interests of the lessor or secured party, as the
case may be, in the related Equipment and all present or future leases
and other contracts relating to the Equipment and all revenues, payments,
rights to payment, profits, accounts, chattel paper, products and
contract rights arising from or related to the Equipment or any use
thereof or from any such lease or other contract, (C) all rights of the
lessor or secured party, as the case may be, in all Insurance Policies
and all other security for the payment of amounts due under the Contracts
(including all rights, if any, the lessor or the secured party may have
against vendors and other third parties for payments of such amounts),
(D) all items contained in the related Contract Files and any and all
other documents that are kept on file in accordance with the applicable
Seller's customary procedures relating to the Contracts, and (E) any and
all proceeds of any and all of the foregoing; and
(ii) the Leased Equipment and all proceeds thereof,
including in any event and without limitation, all present and future
leases and other contracts relating to the Leased Equipment and all
revenues, payments, rights to payment, profits, accounts, chattel paper,
products and contract rights arising from or related to the Leased
Equipment or any use thereof or from any such lease or other contract,
and any and all proceeds of any and all of the foregoing.
(C) ANTIGUA ACKNOWLEDGES THAT THE SELLERS ARE TRANSFERRING
THE LEASED EQUIPMENT "AS-IS, WHERE-IS," AND THAT THE SELLERS MAKE NO
REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED EQUIPMENT,
INCLUDING WITHOUT LIMITATION ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
Section 2.2. Intention of the Parties. The execution and
delivery of this Agreement shall constitute an acknowledgment by each of the
Sellers, TCC and Antigua that they intend that each assignment and transfer
herein contemplated constitute a sale and assignment outright, and not for
security, of the property described in Section 2.1(b), conveying good title
thereto free and clear of any Liens, from the Sellers to Antigua, and that all
such property shall not be a part of the estate of any Seller or TCC in the
event of the bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, or the occurrence of another similar event, of, or with respect to, any
Seller or TCC. In the event that such conveyance is determined to be made as
security for a loan made by Antigua, the Trust, the Equity Certificateholder or
the Noteholders to the Sellers or TCC, the Sellers and TCC hereby grant to
Antigua a security interest in all of the Sellers' and TCC's right, title and
interest in and to the property described in Section 2.1(b) to secure the loan
determined to have been made to the Sellers or TCC and the payment and
performance of the other obligations of the Sellers and TCC under this
Agreement, and agree that in such event this Agreement shall constitute a
security agreement under applicable law.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of TCC. TCC
makes the following representations and warranties, on which Antigua relies in
purchasing the Contracts and in transferring the Contracts to the Trust under
the Transfer and Servicing Agreement. Such representations are made as of the
Closing Date, but shall survive the sale, transfer and assignment of the
Contracts hereunder and the transfer of the Contracts by Antigua to the Trust
under the Transfer and Servicing Agreement. TCC and Antigua agree that Antigua
will assign to the Trust all of Antigua's rights under this Agreement at the
Closing Date and that the Trust will thereafter be entitled to enforce this
Agreement against TCC in the Trust's own name.
(a) Schedule of Representations. With respect to each
Contract, the representations and warranties set forth on the Schedule of
Representations are true and correct as of the date specified therein.
(b) Organization and Good Standing. TCC has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant
times, and now has, power, authority and legal right to acquire, own and
sell the Contracts transferred to Antigua.
(c) Due Qualification. TCC is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in each jurisdiction in which the ownership or
lease of its property or the conduct of its business requires such
qualification and in which the failure to so qualify would have a
material adverse impact on its business or financial condition.
(d) Power and Authority. TCC has the power and authority to
execute and deliver this Agreement and its Related Documents and to carry
out its terms and their terms, respectively, and the execution, delivery
and performance of this Agreement and all of TCC's Related Documents have
been duly authorized by TCC by all necessary corporate action.
(e) No Consents. TCC holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and 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
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agency in connection with the execution, delivery, performance,
validity or enforceability of this Agreement, except for such consents,
licenses, approvals or authorizations, or registrations or declarations,
as shall have been obtained or filed, as the case may be, prior to the
Closing Date.
(f) Valid Sale; Binding Obligations. This Agreement and
each of TCC's Related Documents have been duly executed and delivered,
and effect a valid sale, transfer and assignment of the Contracts and the
Originator's interest in the related Equipment, enforceable against TCC,
and creditors of and purchasers from TCC; and this Agreement and each of
TCC's Related Documents constitute legal, valid and binding obligations
of TCC, enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(g) No Violation. The execution and delivery of this
Agreement, the consummation of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with
or without notice or lapse of time, or both) a default under, the
certificate of incorporation or bylaws of TCC, or any indenture,
agreement, mortgage, deed of trust or other instrument to which TCC is a
party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement, the Transfer and Servicing Agreement and the
Indenture, or violate any law, order, rule or regulation applicable to
TCC of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over TCC or any of its properties.
(h) No Proceedings. There are no proceedings or
investigations pending or, to the knowledge of TCC, threatened against
TCC, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over TCC or
any properties of TCC (i) asserting the invalidity of this Agreement or
any of the Related Documents, (ii) seeking to prevent the issuance of the
Notes or the Equity Certificate or the consummation of any of the
transactions contemplated by this Agreement or any of the Related
Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by TCC of its obligations
under, or the validity or enforceability of, this Agreement or any of the
Related Documents or (iv) seeking to affect adversely the federal income
tax or other federal, state or local tax attributes of, or seeking to
impose any excise, franchise, transfer or
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similar tax upon, the transfer and acquisition of the Contracts hereunder
or under the Transfer and Servicing Agreement.
(i) Chief Executive Offices. The chief executive office of
TCC is located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, and the
offices where TCC keeps its records concerning the Contracts and related
documents are in Morristown, New Jersey.
Section 3.2. Representations and Warranties of Leasing
Services. Leasing Services makes the following representations and warranties,
on which Antigua relies in purchasing the Contracts and in transferring the
Contracts to the Trust under the Transfer and Servicing Agreement. Such
representations are made as of the Closing Date, but shall survive the sale,
transfer and assignment of the Contracts hereunder and the transfer thereof by
Antigua to the Trust under the Transfer and Servicing Agreement. Leasing
Services and Antigua agree that Antigua will assign to the Trust all of
Antigua's rights under this Agreement and that the Trust will thereafter be
entitled to enforce this Agreement against Leasing Services in the Trust's own
name.
(a) Schedule of Representations. With respect to each
Contract sold by Leasing Services to Antigua hereunder, the
representations and warranties set forth on the Schedule of
Representations are true and correct as of the date specified therein.
(b) Organization and Good Standing. Leasing Services has
been duly organized and is validly existing as a corporation in good
standing under the laws of the Commonwealth of Massachusetts, with power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is currently conducted,
and had at all relevant times, and now has, power, authority and legal
right to acquire, own and sell the Contracts sold by Leasing Services to
Antigua hereunder.
(c) Due Qualification. Leasing Services is duly qualified
to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in each jurisdiction in
which the ownership or lease of its property or the conduct of its
business requires such qualification and in which the failure to so
comply would have a material adverse impact on its business or financial
condition.
(d) Power and Authority. Leasing Services has the power and
authority to execute and deliver this Agreement and its Related Documents
and to carry out its terms and their terms, respectively; Leasing
Services has full power and authority to sell and assign the Contracts to
be sold and assigned to and deposited with Antigua hereunder and has duly
authorized such sale and assignment to Antigua by all necessary corporate
action; and the execution, delivery and performance of this Agreement and
all of Leasing
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Services's Related Documents have been duly authorized by Leasing
Services by all necessary corporate action.
(e) No Consents. Leasing Services holds all necessary
licenses, certificates and permits from all government authorities
necessary for conducting its business as it is presently conducted, and
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, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(f) Valid Sale; Binding Obligations. This Agreement and
each of Leasing Services's Related Documents have been duly executed and
delivered, and effect a valid sale, transfer and assignment of the
Contracts and Leasing Services' interest in the related Equipment,
enforceable against Leasing Services, and creditors of and purchasers
from Leasing Services; and this Agreement and each of Leasing Services's
Related Documents constitute legal, valid and binding obligations of
Leasing Services, enforceable in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(g) No Violation. The execution and delivery of this
Agreement, the consummation of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with
or without notice or lapse of time, or both) a default under, the
articles of incorporation or bylaws of Leasing Services, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which Leasing Services is a party or by which it is bound, or result in
the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of
trust or other instrument, other than this Agreement, the Transfer and
Servicing Agreement and the Indenture, or violate any law, order, rule or
regulation applicable to Leasing Services of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Leasing Services or any of its
properties.
(h) No Proceedings. There are no proceedings or
investigations pending or, to the knowledge of Leasing Services,
threatened against Leasing
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Services, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over Leasing Services or any properties of Leasing Services
(i) asserting the invalidity of this Agreement or any of the Related
Documents, (ii) seeking to prevent the issuance of the Notes or the
Equity Certificate or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by Leasing Services of its obligations under, or
the validity or enforceability of, this Agreement or any of the Related
Documents or (iv) seeking to affect adversely the federal income tax or
other federal, state or local tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Contracts hereunder or under the Transfer and
Servicing Agreement.
(i) Chief Executive Offices. The chief executive office of
Leasing Services is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, and the offices where Leasing Services keeps its records
concerning the Contracts and related documents are in Framingham,
Massachusetts.
Section 3.3. Representations and Warranties of Credit Corp.
Credit Corp. makes the following representations and warranties, on which
Antigua relies in purchasing the Contracts and in transferring the Contracts to
the Trust under the Transfer and Servicing Agreement. Such representations are
made as of the Closing Date but shall survive the sale, transfer and assignment
of the Contracts hereunder and the transfer thereof by Antigua to the Trust
under the Transfer and Servicing Agreement. Credit Corp. and Antigua agree that
Antigua will assign to the Trust all of Antigua's rights under this Agreement
and that the Trust will thereafter be entitled to enforce this Agreement against
Credit Corp. in the Trust's own name.
(a) Schedule of Representations. With respect to each
Contract sold by Credit Corp. to Antigua hereunder, the representations
and warranties set forth on the Schedule of Representations are true and
correct as of the date specified therein.
(b) Organization and Good Standing. Credit Corp. has been
duly organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to own
its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and now has, power, authority and legal right to acquire,
own and sell the Contracts sold by Credit Corp. to Antigua hereunder.
(c) Due Qualification. Credit Corp. is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in each jurisdiction in which the
ownership or lease
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of its property or the conduct of its business requires such
qualification and in which the failure to so qualify would have a
material adverse impact on its business or financial condition.
(d) Power and Authority. Credit Corp. has the power and
authority to execute and deliver this Agreement and its Related Documents
and to carry out its terms and their terms, respectively; Credit Corp.
has full power and authority to sell and assign the Contracts to be sold
and assigned to and deposited with Antigua hereunder and has duly
authorized such sale and assignment to Antigua by all necessary corporate
action; and the execution, delivery and performance of this Agreement and
all of Credit Corp.'s Related Documents have been duly authorized by
Credit Corp. by all necessary corporate action.
(e) No Consents. Credit Corp. holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and 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, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(f) Valid Sale; Binding Obligations. This Agreement and
each of Credit Corp.'s Related Documents have been duly executed and
delivered, and effect a valid sale, transfer and assignment of the
Contracts and Credit Corp.'s interest in the related Equipment,
enforceable against Credit Corp., and creditors of and purchasers from
Credit Corp.; and this Agreement and each of Credit Corp.'s Related
Documents constitute legal, valid and binding obligations of Credit
Corp., enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(g) No Violation. The execution and delivery of this
Agreement, the consummation of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with
or without notice or lapse of time, or both) a default under, the
certificate of incorporation or bylaws of Credit Corp., or any indenture,
agreement, mortgage, deed of trust or other instrument to which Credit
Corp. is a party or by which it is bound, or result
-11-
in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of
trust or other instrument, other than this Agreement, the Transfer and
Servicing Agreement and the Indenture, or violate any law, order, rule or
regulation applicable to Credit Corp. of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Credit Corp. or any of its
properties.
(h) No Proceedings. There are no proceedings or
investigations pending or, to the knowledge of Credit Corp., threatened
against Credit Corp., before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over Credit Corp. or any properties of Credit Corp. (i)
asserting the invalidity of this Agreement or any of the Related
Documents, (ii) seeking to prevent the issuance of the Notes or the
Equity Certificate or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by Credit Corp. of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related
Documents or (iv) seeking to affect adversely the federal income tax or
other federal, state or local tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Contracts hereunder or under the Transfer and
Servicing Agreement.
(i) Chief Executive Offices. The chief executive office of
Credit Corp. is located at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and
the offices where Credit Corp. keeps its records concerning the Contracts
and related documents are in Parsippany, New Jersey.
Section 3.4. Representations and Warranties of NCR Credit.
NCR Credit makes the following representations and warranties, on which Antigua
relies in purchasing the Contracts and in transferring the Contracts to the
Trust under the Transfer and Servicing Agreement. Such representations are made
as of the Closing Date but shall survive the sale, transfer and assignment of
the Contracts hereunder and the transfer thereof by Antigua to the Trust under
the Transfer and Servicing Agreement. NCR Credit and Antigua agree that Antigua
will assign to the Trust all of Antigua's rights under this Agreement and that
the Trust will thereafter be entitled to enforce this Agreement against NCR
Credit in the Trust's own name.
(a) Schedule of Representations. With respect to each
Contract sold by NCR Credit to Antigua hereunder, the representations and
warranties set forth on the Schedule of Representations are true and
correct as of the date specified therein.
(b) Organization and Good Standing. NCR Credit has been
duly organized and is validly existing as a corporation in good standing
under the
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laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant
times, and now has, power, authority and legal right to acquire, own and
sell the Contracts sold by NCR Credit to Antigua hereunder.
(c) Due Qualification. NCR Credit is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in each jurisdiction in which the
ownership or lease of its property or the conduct of its business
requires such qualification and in which the failure to so qualify would
have a material adverse impact on its business or financial condition.
(d) Power and Authority. NCR Credit has the power and
authority to execute and deliver this Agreement and its Related Documents
and to carry out its terms and their terms, respectively; NCR Credit has
full power and authority to sell and assign the Contracts to be sold and
assigned to and deposited with Antigua hereunder and has duly authorized
such sale and assignment to Antigua by all necessary corporate action;
and the execution, delivery and performance of this Agreement and all of
NCR Credit's Related Documents have been duly authorized by NCR Credit by
all necessary corporate action.
(e) No Consents. NCR Credit holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and 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, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(f) Valid Sale; Binding Obligations. This Agreement and
each of NCR Credit's Related Documents have been duly executed and
delivered, and effect a valid sale, transfer and assignment of the
Contracts and NCR Credit's interest in the related Equipment, enforceable
against NCR Credit, and creditors of and purchasers from NCR Credit; and
this Agreement and each of NCR Credit's Related Documents constitute
legal, valid and binding obligations of NCR Credit, enforceable in
accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at
law.
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(g) No Violation. The execution and delivery of this
Agreement, the consummation of the transactions contemplated by this
Agreement and the Related Documents and the fulfillment of the terms of
this Agreement and the Related Documents shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with
or without notice or lapse of time, or both) a default under, the
certificate of incorporation or bylaws of NCR Credit, or any indenture,
agreement, mortgage, deed of trust or other instrument to which NCR
Credit is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement, the Transfer and Servicing
Agreement and the Indenture, or violate any law, order, rule or
regulation applicable to NCR Credit of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over NCR Credit or any of its
properties.
(h) No Proceedings. There are no proceedings or
investigations pending or, to the knowledge of NCR Credit, threatened
against NCR Credit, before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality having
jurisdiction over NCR Credit or any properties of NCR Credit (i)
asserting the invalidity of this Agreement or any of the Related
Documents, (ii) seeking to prevent the issuance of the Notes or the
Equity Certificate or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii)
seeking any determination or ruling that might materially and adversely
affect the performance by NCR Credit of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related
Documents or (iv) seeking to affect adversely the federal income tax or
other federal, state or local tax attributes of, or seeking to impose any
excise, franchise, transfer or similar tax upon, the transfer and
acquisition of the Contracts hereunder or under the Transfer and
Servicing Agreement.
(i) Chief Executive Offices. The chief executive office of
NCR Credit is located at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, and
the offices where NCR Credit keeps its records concerning the Contracts
and related documents are in Parsippany, New Jersey.
Section 3.5. Representations and Warranties of Antigua.
Antigua makes the following representations and warranties, on which each of the
Sellers and TCC relies in selling, assigning, transferring and conveying the
Contracts to Antigua hereunder. Such representations are made as of the Closing
Date but shall survive the sale, transfer and assignment of the Contracts
hereunder and the transfer thereof by Antigua to the Trust under the Transfer
and Servicing Agreement.
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(a) Organization and Good Standing. Antigua has been duly
organized and is validly existing and in good standing as a corporation
under the laws of the State of Delaware, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at all
relevant times, and has, full power, authority and legal right to acquire
and own the Contracts and to transfer the Contracts to the Trust pursuant
to the Transfer and Servicing Agreement.
(b) Due Qualification. Antigua is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in each jurisdiction where the failure
to do so would materially and adversely affect (i) Antigua's ability to
acquire the Contracts, (ii) the validity or enforceability of the
Contracts or (iii) Antigua's ability to perform its obligations hereunder
and under the Related Documents.
(c) Power and Authority. Antigua has the power and
authority to execute and deliver this Agreement and its Related Documents
and to carry out its terms and their terms, respectively, and to acquire
the Contracts and the Equipment; and the execution, delivery and
performance of this Agreement and its Related Documents and all of the
documents required pursuant hereto or thereto have been duly authorized
by Antigua by all necessary action.
(d) No Consents. Antigua holds all necessary licenses,
certificates and permits from all government authorities necessary for
conducting its business as it is presently conducted, and 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, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(e) Binding Obligation. This Agreement and each of
Antigua's Related Documents constitutes a legal, valid and binding
obligation of Antigua, enforceable against Antigua in accordance with its
terms; and this Agreement and each of Antigua's Related Documents
constitute legal, valid and binding obligations of Antigua, enforceable
in accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
-15-
(f) No Violation. The execution, delivery and performance
by Antigua of this Agreement, the consummation of the transactions
contemplated by this Agreement and the Related Documents and the
fulfillment of the terms of this Agreement and the Related Documents do
not and will not conflict with, result in any breach of any of the terms
and provisions of or constitute (with or without notice or lapse of time,
or both) a default under the certificate of incorporation or bylaws of
Antigua, or any indenture, agreement, mortgage, deed of trust or other
instrument to which Antigua is a party or by which Antigua is bound or to
which any of its properties are subject, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust or other
instrument (other than the Transfer and Servicing Agreement and the
Indenture), or violate any law, order, rule or regulation, applicable to
Antigua or its properties, of any federal or state regulatory body or any
court, administrative agency, or other governmental instrumentality
having jurisdiction over Antigua or any of its properties.
(g) No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of Antigua, threatened
against Antigua, before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality having
jurisdiction over Antigua or its properties: (i) asserting the invalidity
of this Agreement or any of the Related Documents, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or any of the Related Documents, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by Antigua of its obligations under, or the validity or
enforceability of, this Agreement or any of the Related Documents or (iv)
that may adversely affect the federal or state income tax attributes of,
or seeking to impose any excise, franchise, transfer or similar tax upon,
the transfer and acquisition of the Contracts hereunder or the transfer
of the Contracts to the Trust pursuant to the Transfer and Servicing
Agreement.
(h) Chief Executive Offices. The chief executive office of
Antigua is located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, and the
offices where Antigua keeps its records concerning the Contracts and
related documents are in Morristown, New Jersey.
In the event of any breach of a representation and warranty made by Antigua
hereunder, each of the Sellers and TCC covenants and agrees that (i)it will not
take any action or pursue any remedy that it may have hereunder, in law, in
equity or otherwise, until a year and a day have passed since the date on which
all Notes and Certificates issued by the Trust, or a trust or similar vehicle
formed by Antigua, have been paid in full, and (ii)any remedy it may have
hereunder is subject to Section 6.12. Each of the Sellers, TCC and Antigua agree
that damages will not be an
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adequate remedy for breach of the foregoing covenant and that this covenant may
be specifically enforced by Antigua or by the Owner Trustee on behalf of the
Trust.
ARTICLE IV
COVENANTS OF THE SELLERS
Section 4.1. Protection of Title of Antigua and the Trust.
(a) At or prior to the Closing Date, Leasing Services shall
have filed or caused to be filed UCC-1 financing statements, executed by Leasing
Services, as seller or debtor, naming Antigua as secured party and the Trust as
assignee and (i) describing the Contracts and other property described in
Section 2.1 as collateral, filed with the office of the Secretary of State of
the Commonwealth of Massachusetts and in the appropriate filing office in
Middlesex County, and (ii) describing the Leased Equipment as collateral, filed
with the appropriate filing office in each jurisdiction where Leased Equipment
is located (other than Tennessee and Maryland). Leasing Services shall deliver
(or cause to be delivered) to Antigua, the Owner Trustee and the Indenture
Trustee file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing. In the event that
Leasing Services fails to perform its obligations under this subsection, Antigua
or the Owner Trustee may do so at the expense of TCC.
(b) At or prior to the Closing Date, Credit Corp. shall
have filed or caused to be filed UCC-1 financing statements, executed by Credit
Corp., as seller or debtor, naming Antigua as secured party and the Trust as
assignee and (i) describing the Contracts and other property described in
Section 2.1 as collateral, with the office of the Secretary of State of the
State of New Jersey, and (ii) describing the Leased Equipment as collateral,
filed with the appropriate filing office in each jurisdiction where Leased
Equipment is located (other than Tennessee and Maryland). Credit Corp. shall
deliver (or cause to be delivered) to Antigua, the Owner Trustee and the
Indenture Trustee file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing. In the
event that Credit Corp. fails to perform its obligations under this subsection,
Antigua or the Owner Trustee may do so at the expense of TCC.
(c) At or prior to the Closing Date, NCR Credit shall have
filed or caused to be filed UCC-1 financing statements, executed by NCR Credit,
as seller or debtor, naming Antigua as secured party and the Trust as assignee
and (i) describing the Contracts and other property described in Section 2.1 as
collateral, with the office of the Secretary of State of the State of New
Jersey, and (ii) describing the Leased Equipment as collateral, filed with the
appropriate filing office in each jurisdiction where Leased Equipment is located
(other than Tennessee and Maryland). NCR Credit shall deliver (or cause to be
delivered) to Antigua, the Owner Trustee and the Indenture Trustee file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing. In the event that NCR
-17-
Credit fails to perform its obligations under this subsection, Antigua or the
Owner Trustee may do so at the expense of TCC.
(d) If any of the Sellers or TCC change its name, identity,
or corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed by such Seller or TCC (or by
Antigua or the Owner Trustee on behalf of such Seller or TCC) in accordance with
paragraphs (a)- (d) above seriously misleading within the meaning of
'SS'9-402(7) of the UCC, it shall give Antigua and the Owner Trustee written
notice thereof no later than 10 days following the occurrence of such change,
and shall file appropriate amendments to all such previously filed financing
statements and continuation statements within the time period required by the
UCC.
(e) If any of the Sellers or TCC relocate its principal
executive office and, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement, it shall
give Antigua, the Indenture Trustee and the Owner Trustee written notice
thereof; and shall promptly file such appropriate amendments or financing
statements within the time period required by the UCC.
(f) Each of the Sellers and TCC shall at all times maintain
its principal executive office, and any office from which it services Contracts,
within the United States of America.
(g) Each of the Sellers shall maintain its computer systems
so that, from and after the time of sale under this Agreement of the Contracts,
the Leased Equipment and the other items described in Section 2.1(b) to Antigua,
and the conveyance of the Contracts by Antigua to the Trust, the master computer
records (including archives) of each of the Sellers that shall refer to a
Contract, any Leased Equipment or any of the other items described in Section
2.1(b) indicate clearly that such Contract, Leased Equipment or other item
described in Section 2.1(b) has been sold to Antigua and that such Contract has
been conveyed by Antigua to the Trust. Indication of the Trust's ownership of a
Contract shall be deleted from or modified on any of the Sellers' computer
systems when, and only when, the Contract has been paid in full, liquidated
(including receipt of all recoveries reasonably expected to be collected) or
purchased by the Depositor or TCC.
(h) If at any time any of the Sellers shall propose to
sell, grant a security interest in, or otherwise transfer any interest in lease
contracts or loan contracts of a character similar to the Contracts to any
prospective purchaser, lender or other transferee, such Seller shall give to
such prospective purchaser, lender, or other transferee computer tapes, records,
or print-outs (including any restored from archives) that, if they shall refer
in any manner whatsoever to any Contract, shall indicate clearly that such
Contract has been sold to Antigua and is owned by the Trust. Each Seller, TCC
and Antigua agree that, if any one of them receives an
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inquiry from a bona fide potential creditor regarding whether any lease
contract, loan contract or item of equipment is identified on the Schedule of
Contracts, they will instruct the Indenture Trustee to disclose the contents of
the Schedule of Contracts to such potential creditor in accordance with the
provisions of Section 11.17 of the Indenture.
(i) If any Seller receives payments in respect of
Contracts, any Leased Equipment or any of the other items described in Section
2.1(b), such Seller agrees to pay or cause to be paid to the Servicer all such
payments as soon as practicable after identification thereof, but in no event
later than two Business Days after receipt thereof by such Seller.
(j) Each Seller shall notify Antigua and the Indenture
Trustee within three Business Days after becoming aware of any Lien on any
Contract, Leased Equipment or other item described in Section 2.1(b), other than
the conveyances hereunder or under the Transfer and Servicing Agreement.
(k) Each Seller will promptly pay and discharge all taxes,
assessments, levies and other governmental charges imposed on it which may
materially and adversely affect any of the Contracts, Leased Equipment or other
items described in Section 2.1(b), or Antigua's rights with respect thereto.
(l) Each Seller hereby agrees that it will perform its
obligations under the agreements relating to the Contracts in conformity with
its customary and usual policies and procedures relating to the Contracts.
(m) No later than 10 days after the Closing Date, the
Sellers and TCC shall deliver to Antigua, the Owner Trustee and the Indenture
Trustee a written certification that all notifications and consents required by
paragraph (J) in the Schedule of Representations hereto have been given or
obtained, as applicable.
Section 4.2. Other Liens or Interests. Except for the
conveyances hereunder, with respect to any Contract, the Seller will not sell,
pledge, assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien on such Contract or any interest therein, and such
Seller shall defend the right, title, and interest of Antigua and the Trust in
and to such Contract against all claims of third parties claiming through or
under such Seller.
Section 4.3. Costs and Expenses. Each Seller and TCC shall
pay all reasonable costs and disbursements in connection with the performance of
its obligations hereunder and its Related Documents.
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Section 4.4. Indemnification.
Each of the Sellers, acting severally and not jointly, and
TCC, as applicable, shall defend, indemnify and hold harmless Antigua, the
Trust, the Owner Trustee, the Indenture Trustee, the Noteholders and the Equity
Certificateholder from and against:
(a) any and all costs, expenses, losses, damages, claims,
and liabilities, arising out of or resulting from any breach of any
representations and warranties of such Seller or TCC, as applicable, contained
herein (other than those set forth in the Schedule of Representations, the
exclusive remedies for which are specified in Section 5.1);
(b) any and all costs, expenses, losses, damages, claims,
and liabilities, arising out of or resulting from the use, ownership or
operation of any item of Equipment (notwithstanding the disclaimer of Section
2.1(c)); and, in addition, each of the Sellers and TCC shall cause Antigua and
the Trust to be named as an additional insured under its liability insurance
policies;
(c) any and all costs, expenses, losses, damages, claims
and liabilities arising out of or resulting from any action taken, or failed to
be taken, by it in respect of any portion of the Trust Assets other than any
action taken in accordance with this Agreement or any Related Document;
(d) any taxes that may at any time be asserted against
Antigua, the Trust, the Owner Trustee, the Indenture Trustee, the Noteholders
and the Equity Certificateholder with respect to the transactions contemplated
in this Agreement, including, without limitation, any sales, gross receipts,
general corporation, tangible or intangible personal property, privilege, or
license taxes (but not including any taxes asserted with respect to, and as of
the date of, the sale, transfer and assignment of the Contracts to Antigua and
of the Trust Assets to the Trust or the issuance and original sale of the Notes
or the Equity Certificate, or asserted with respect to ownership of the
Contracts or the Trust Assets, which shall be indemnified by the Sellers and TCC
pursuant to clause (e) below), or federal, state or other income taxes, arising
out of distributions on the Notes or the Equity Certificate or transfer taxes
arising in connection with the transfer of the Notes or the Equity Certificate)
and costs and expenses in defending against the same, arising or imposed against
such Persons by reason of the acts to be performed by such Seller or TCC, as
applicable, under this Agreement;
(e) any taxes which may at any time be asserted against
such Persons with respect to, and as of the date of, the conveyance or ownership
of the Contracts and the conveyance or ownership of the Trust Assets under the
Purchase Agreement or the Transfer and Servicing Agreement or the issuance and
original sale of the Notes and the Equity Certificate, including, without
limitation, any sales, gross receipts, personal property, tangible or intangible
personal property, privilege
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or license taxes (but not including any federal or other income taxes, including
franchise taxes, arising out of the transactions contemplated hereby or transfer
taxes arising in connection with the transfer of Notes or Equity Certificate)
and costs and expenses in defending against the same, arising or imposed against
such Persons;
(f) any and all costs, expenses, losses, claims, damages,
and liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon Antigua, the Owner Trustee, the
Trust, the Indenture Trustee, the Noteholders and the Equity Certificateholder
through the negligence, willful misfeasance, or bad faith of such Seller or TCC,
as applicable, in the performance of its duties under this Agreement or by
reason of reckless disregard of the obligations and duties of such Seller or
TCC, as applicable, under this Agreement;
(g) any loss, liability or expense incurred by reason of
the violation by such Seller or TCC, as applicable, of federal or state
securities laws in connection with the registration or the sale of the Notes and
the Equity Certificate; and
(h) any loss, liability or expense imposed upon, or
incurred by, Antigua, the Owner Trustee, the Indenture Trustee, the Trust, the
Noteholders or the Equity Certificateholder as a result of the failure of any
Contract, or the sale of the related Equipment, to comply with all requirements
of applicable law, but only to the extent such loss, liability or expense is not
covered by the repurchase of such Contract and Equipment as required by Section
5.1.
Indemnification under this Section 4.4 shall include
reasonable fees and expenses of counsel and expenses of litigation and shall
survive termination of the Trust. The indemnity obligations hereunder shall be
in addition to any obligation that any Seller or TCC, as applicable, may
otherwise have.
Promptly after receipt by an indemnified party under this
Section 4.4 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other
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than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
Section 4.5. Negative Covenant. TCC and the Sellers (a)
shall not engage in any transaction or series of transactions or otherwise take
any action or omit to take any action which could result in a determination that
any Seller shall have received less than reasonably equivalent value for the
transfer and conveyance of the Contracts and the other property described in
Section 2.1(b) to Antigua either on the Closing Date or thereafter and (b) in
any event, shall not use the proceeds received from the transfer and conveyance
of the Contracts and the other property described in Section 2.1(b) either on
the Closing Date or thereafter (i) to pay any dividend or make any distribution
on or in respect of its capital stock or (ii) to purchase, redeem or otherwise
acquire or retire for value any of its capital stock or the capital stock of any
of its affiliates (other than any of its wholly owned subsidiaries or a
corporation which by virtue thereof would become a wholly owned subsidiary of
the Seller), if, in the case of either (i) or (ii), at the time of any such
action and after giving effect thereto (x) the present fair saleable value of
the assets of such Seller or TCC is less than the amount that would be required
to be paid on or in respect of such Seller's or TCC's total liabilities
(including a reasonable estimate of its contingent liabilities (net of tax
benefits to the extent reasonably likely to be realized)), (y) the assets of
such Seller or TCC constitute an unreasonably small capital to carry out such
Seller's or TCC's business as it is then conducted or as such Seller or TCC then
intends to conduct its business or (z) such Seller or TCC has incurred, intends
to incur, or believes that it will incur, debts that would be beyond such
Seller's or TCC's ability to pay as they mature.
Section 4.6. Separate Identity.
(a) TCC shall take all actions required to maintain
Antigua's status as a separate legal entity, including, without limitation,
(i) not holding Antigua out to third parties as other than an entity with assets
and liabilities distinct from TCC and the Sellers; (ii) not holding itself out
to be responsible for the debts of Antigua or, other than by reason of owning
capital stock of Antigua, for any decisions or actions relating to Antigua;
(iii) taking such other actions as are necessary on its part to ensure that all
corporate procedures required by its and Antigua's respective certificates of
incorporation and by-laws are duly and validly taken; (iv) keeping correct and
complete records and books of account and corporate minutes; and (vi) not acting
in any other manner that could foreseeably mislead others with respect to
Antigua's separate identity.
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(b) Each of the Sellers shall take all actions required to
maintain Antigua's status as a separate legal entity, including, without
limitation, (i) not holding Antigua out to third parties as other than an entity
with assets and liabilities distinct from such Seller and such Seller's other
Subsidiaries; (ii) not holding itself out to be responsible for the debts of
Antigua or, other than by reason of owning capital stock of Antigua, for any
decisions or actions relating to Antigua; (iii) cause any financial statements
consolidated with those of Antigua to state that Antigua is a separate corporate
entity with its own separate creditors who, in any liquidation of Antigua, will
be entitled to be satisfied out of Antigua's assets prior to any value in
Antigua becoming available to Antigua's equity holders; (iv) taking such other
actions as are necessary on its part to ensure that all corporate procedures
required by its and Antigua's respective certificates of incorporation and
by-laws are duly and validly taken; (v) keeping correct and complete records and
books of account and corporate minutes; and (vi) not acting in any other manner
that could foreseeably mislead others with respect to Antigua's separate
identity.
ARTICLE V
REPURCHASES
Section 5.1. Repurchase of Contracts Upon Breach of
Representation or Warranty. Upon the occurrence of a Repurchase Event, TCC
shall, unless such breach shall have been cured in all material respects,
repurchase such Contract from the Trust and the related Leased Equipment (in the
case of a Lease Contract) from Antigua and, on or before the related Deposit
Date, TCC shall pay the Purchase Amount to the Servicer on behalf of the Owner
Trustee and Antigua pursuant to Section 2.6 of the Transfer and Servicing
Agreement. It is understood and agreed that, except as set forth in the
following paragraph, the obligation of TCC to repurchase any Contract and the
related Leased Equipment (if applicable) as to which a breach has occurred and
is continuing shall, if such obligation is fulfilled, constitute the sole remedy
against TCC and the applicable Seller for such breach available to Antigua, the
Noteholders, the Equity Certificateholder, the Owner Trustee on behalf of the
Equity Certificateholder or the Indenture Trustee on behalf of the Noteholders.
The provisions of this Section 5.1 are intended to grant the Owner Trustee and
the Indenture Trustee a direct right against TCC to demand performance
hereunder, and in connection therewith, TCC waives any requirement of prior
demand against Antigua or the Sellers with respect to such repurchase
obligation. Notwithstanding any other provision of this Agreement or the
Transfer and Servicing Agreement to the contrary, the obligation of TCC under
this Section shall not terminate upon a termination of TCC as Servicer under the
Transfer and Servicing Agreement and shall be performed by TCC in accordance
with the terms hereof notwithstanding the failure of the Servicer or Antigua to
perform any of their respective obligations with respect to such Contract under
the Transfer and Servicing Agreement.
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In addition to the foregoing and notwithstanding whether
the related Contract and the related Leased Equipment (if applicable) shall have
been purchased by TCC, TCC shall indemnify Antigua, the Owner Trustee, the
Indenture Trustee, the Trust, the Noteholders and the Equity Certificateholder
against all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred by any of them as a result of third party claims arising out of the
events or facts giving rise to such Repurchase Events.
Section 5.2. Reassignment of Purchased Contracts and Leased
Equipment. Upon deposit in the Collection Account of the Purchase Amount of any
Contract and the related Leased Equipment (if applicable) repurchased by TCC
under Section 5.1, Antigua and the Owner Trustee shall take such steps as may be
reasonably requested by TCC in order to assign to TCC all of Antigua's and the
Trust's right, title and interest in and to such Contract and the related Leased
Equipment (if applicable) and all security and documents conveyed to Antigua and
the Trust directly relating thereto, without recourse, representation or
warranty, except as to the absence of liens, charges or encumbrances created by
or arising as a result of actions of Antigua or the Owner Trustee. Such
assignment shall be a sale and assignment outright, and not for security. If,
following the reassignment of a Purchased Contract and the related Leased
Equipment (if applicable), in any enforcement suit or legal proceeding, it is
held that TCC may not enforce any such Contract on the ground that it shall not
be a real party in interest or a holder entitled to enforce the Contract,
Antigua and the Owner Trustee shall, at the expense of TCC, take such steps as
TCC deems reasonably necessary to enforce the Contract, including bringing suit
in Antigua's or the Owner Trustee's name or the name of the Indenture Trustee on
behalf of the Noteholders or Equity Certificateholder, as applicable.
Section 5.3. Waivers. No failure or delay on the part of
Antigua, the Trust or the Owner Trustee as assignee of Antigua, in exercising
any power, right or remedy under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
remedy preclude any other or future exercise thereof or the exercise of any
other power, right or remedy.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Liability of the Sellers and TCC. Each of the
Sellers and TCC shall be liable in accordance herewith only to the extent of the
obligations in this Agreement specifically undertaken, individually and not
jointly, by each Seller and TCC, and the representations and warranties of each
Seller and TCC.
Section 6.2. Merger or Consolidation of a Seller, TCC or
Antigua. Any corporation or other entity (i) into which any Seller, TCC or
Antigua may be merged
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or consolidated, (ii) resulting from any merger or consolidation to which any
Seller, TCC or Antigua is a party or (iii) succeeding to the business of any
Seller, TCC or Antigua, shall be the successor to such Seller, TCC or Antigua,
as the case may be (without relieving such Seller, TCC or Antigua of its
responsibilities hereunder, if it survives such merger or consolidation) without
the execution or filing of any document or any further act by any of the parties
to this Agreement. Such Seller, TCC or Antigua shall promptly inform the other
parties, the Owner Trustee and the Indenture Trustee of such merger,
consolidation or purchase and assumption. Notwithstanding the foregoing, as a
condition to the consummation of the transactions referred to in clauses (i),
(ii) and (iii) above, (x) immediately after giving effect to such transaction,
no representation or warranty made pursuant to Sections 3.1 (other than
subsections (a) and (i)), 3.2 (other than subsections (a) and (i)), 3.3 (other
than subsections (a) and (i)), 3.4 (other than subsections (a) and (i)), and 3.5
(other than subsection (h)) of this Agreement shall have been breached (for
purposes hereof, such representations and warranties shall speak as of the date
of the consummation of such transaction), (y) such Seller, TCC or Antigua, as
applicable, shall have delivered written notice of such consolidation, merger or
purchase and assumption to the Rating Agencies prior to the consummation of such
transaction and shall have delivered to the Owner Trustee and the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section 6.2 and that all conditions precedent, if any, provided for in
this Agreement, relating to such transaction have been complied with, and (z)
such Seller, TCC or Antigua, as applicable, shall have delivered to the Owner
Trustee and the Indenture Trustee an Opinion of Counsel, stating that, in the
opinion of such counsel, either (A) all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary to preserve and protect the interest of the Owner Trustee in the Trust
Assets and reciting the details of the filings or (B) no such action shall be
necessary to preserve and protect such interest.
Section 6.3. Limitation on Liability of the Sellers, TCC
and Others.
(a) Except with respect to the Representations and
Warranties herein and in the Schedule of Representations, and the
indemnification obligations set forth in Section 4.4 herein, each Seller and TCC
may rely in good faith on the advice of counsel or on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising under this Agreement. Each Seller and TCC shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its obligations under this Agreement or its Related Documents and
that in its reasonable judgment may involve it in any expense or liability.
(b) Any officer, director, employee or agent of TCC or any
Seller may rely in good faith on the advice of counsel or on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising
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under this Agreement. Neither any Seller nor TCC shall be under any obligation
to appear in, prosecute or defend any legal action that is not incidental to its
obligations under this Agreement or its Related Documents and that in its
reasonable judgment may involve it in any expense or liability.
Section 6.4. The Sellers and TCC May Own Notes or Equity
Certificate. Subject to the provisions of the Transfer and Servicing Agreement,
each of the Sellers and TCC, and any Affiliate of any Seller or TCC, may in its
individual or any other capacity become the owner or pledgee of Notes or Equity
Certificate with the same rights as it would have if it were not a Seller, TCC
or an Affiliate thereof (except as provided in Section 1.6).
Section 6.5. Amendment.
(a) This Agreement may be amended by the Sellers, TCC and
Antigua without the consent of the Owner Trustee, the Indenture Trustee, the
Equity Certificateholder or the Noteholders (i) to cure any ambiguity; (ii) to
correct or supplement any provisions in this Agreement that may be inconsistent
with any other provisions herein; or (iii) to make any other provisions with
respect to matters or questions arising under this Agreement that are not
inconsistent with the provisions hereof, provided, however, that such action
shall not, as evidenced by an Opinion of Counsel delivered to the Owner Trustee
and the Indenture Trustee, adversely affect in any material respect the
interests of the Noteholders or Equity Certificateholder.
(b) This Agreement may also be amended from time to time by
the Sellers, TCC and Antigua, with the prior written consent of a Note Majority
(which consent of any Holder of a Note given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Holder and on all future Holders of such Note and of any Note
issued upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Note), 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
Equity Certificateholder or the Noteholders; provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Contracts,
distributions that shall be required to be made on any Note or the applicable
rate of interest payable thereon, (ii) amend any provisions of Section 5.06 or
8.03 of the Indenture in such a manner as to affect the priority of payment of
interest or principal to Noteholders, or (iii) reduce the aforesaid percentage
required to consent to any such amendment or any waiver hereunder, without the
consent of the Holders of all Notes then Outstanding and affected thereby; and
provided, further, that no such amendment shall be effective unless and until
the Rating Agency Condition has been satisfied.
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(c) Promptly after the execution of any such amendment or
consent, the Owner Trustee or the Indenture Trustee, as applicable, shall
furnish written notification of the substance of such amendment or consent to
each Noteholder.
(d) It shall not be necessary for the consent of
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of the Noteholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by the Noteholders shall
be subject to such reasonable requirements as the Indenture Trustee may
prescribe, including the establishment of record dates. The consent of any
Holder of a Note given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder and
on all future Holders of such Note and of any Note issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Note.
Section 6.6. Notices. All demands, notices and
communications to the Sellers, TCC or Antigua hereunder shall be in writing,
personally delivered, or sent by telecopier (subsequently confirmed in writing),
reputable overnight courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been given upon receipt:
(a) in the case of TCC, to AT&T Capital Corporation, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: General Counsel, or
such other address as shall be designated by TCC in a written notice delivered
to the other parties and to the Owner Trustee and the Indenture Trustee;
(b) in the case of Leasing Services, to AT&T Capital
Corporation, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
General Counsel, or such other address as Leasing Services shall be designated
by a written notice delivered to the other parties and to the Owner Trustee and
the Indenture Trustee;
(c) in the case of Credit Corp., to AT&T Capital
Corporation, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
General Counsel, or such other address as shall be designated by Credit Corp. in
a written notice delivered to the other parties and to the Owner Trustee and the
Indenture Trustee;
(d) in the case of NCR Credit, to AT&T Capital Corporation,
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: General Counsel,
or such other address as shall be designated by NCR Credit in a written notice
delivered to the other parties and to the Owner Trustee and the Indenture
Trustee;
(e) in the case of Antigua, to AT&T Capital Corporation, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: General Counsel.
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Section 6.7. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement and the Related Documents set 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 and
the Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
Section 6.8. Severability of Provisions. If any one or more
of the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 6.9. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6.10. Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 6.11. Conveyance of the Contracts to the Trust. The
Sellers and TCC acknowledge that Antigua intends, pursuant to the Transfer and
Servicing Agreement, to convey the Contracts, the Leased Equipment and the other
items described in Section 2.1(b), together with its rights under this
Agreement, to the Trust on the Closing Date. The Sellers and TCC acknowledge and
consent to such conveyance and waive any further notice thereof and covenant and
agree that the representations and warranties of the Sellers and TCC contained
in this Agreement and the rights of Antigua hereunder are intended to benefit
the Owner Trustee, the Indenture Trustee, the Trust, the Noteholders and the
Equity Certificateholder. In furtherance of the foregoing, the Sellers and TCC
covenant and agree to perform their duties and obligations hereunder, in
accordance with the terms hereof, for the benefit of the Owner Trustee, the
Indenture Trustee, the Trust, the Equity Certificateholder and the Noteholders
and that, notwithstanding anything to the contrary in this Agreement, the
Sellers and TCC shall be directly liable to the Owner Trustee, the Indenture
Trustee and the Trust (notwithstanding any failure by the Servicer or Antigua to
perform its duties and obligations hereunder or under the Transfer and Servicing
Agreement) and that the Owner Trustee and the Indenture Trustee may enforce the
duties and obligations of the Sellers or TCC under this
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Agreement against the Sellers or TCC for the benefit of the Trust, the Equity
Certificateholder and the Noteholders.
Section 6.12. Nonpetition Covenant. Neither the Sellers,
TCC nor Antigua shall petition or otherwise invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Trust (or, in the case of the Sellers or TCC, against Antigua) under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust (or Antigua) or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Trust (or Antigua).
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IN WITNESS WHEREOF, the parties have caused this Purchase
and Sale Agreement to be duly executed by their respective officers as of the
day and year first above written.
ANTIGUA FUNDING CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: Treasurer
AT&T CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: Vice President and Treasurer
AT&T CAPITAL LEASING SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: Treasurer
AT&T CREDIT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: Treasurer
NCR CREDIT CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: Treasurer
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