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EXHIBIT 10.1
EXECUTION VERSION
RECEIVABLES TRANSFER AGREEMENT
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AMONG
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
FIRST SIERRA RECEIVABLES III, INC.,
FIRST UNION NATIONAL BANK,
VARIABLE FUNDING CAPITAL CORPORATION,
FIRST SIERRA EQUIPMENT CONTRACT TRUST ▇▇▇▇-▇,
▇▇▇▇▇▇▇ FINANCE CORPORATION,
BANKERS TRUST COMPANY
AND
FIRST SIERRA EQUIPMENT CONTRACT TRUST 2000-2, A COMMON LAW
TRUST ACTING THROUGH FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS
OWNER TRUSTEE
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DATED AS OF
JUNE 1, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.............................................................................3
SECTION 1.01 Definitions....................................................................3
SECTION 1.02 Other Definitional Provisions..................................................3
ARTICLE II TRANSFER OF CONVEYED ASSETS............................................................4
SECTION 2.01 Direction; Acquisition of Initial Conveyed Assets..............................4
SECTION 2.02 Reserved.......................................................................6
SECTION 2.03 Custody of Contract Files......................................................6
SECTION 2.04 Intention of the Parties; Grant of Security Interest...........................6
ARTICLE III REPRESENTATIONS AND WARRANTIES........................................................6
SECTION 3.01 Representations and Warranties.................................................6
SECTION 3.02 Removal of Non-Conforming Contracts by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.......................18
SECTION 3.03 Substitution of Contracts and Equipment by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇...................18
ARTICLE IV COVENANTS.............................................................................19
SECTION 4.01 Seller and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Covenants.........................................19
SECTION 4.02 Receivables III Covenants.....................................................22
SECTION 4.03 Transfer of Conveyed Assets...................................................25
ARTICLE V CONDITIONS PRECEDENT...................................................................25
SECTION 5.01 Conditions to Trust Obligations...............................................25
ARTICLE VI TERMINATION...........................................................................26
SECTION 6.01 Termination...................................................................26
SECTION 6.02 Effect of Termination.........................................................26
ARTICLE VII MISCELLANEOUS PROVISIONS.............................................................27
SECTION 7.01 Amendment.....................................................................27
SECTION 7.02 GOVERNING LAW.................................................................27
SECTION 7.03 Notices.......................................................................27
SECTION 7.04 Severability of Provisions....................................................28
SECTION 7.05 Assignment....................................................................28
SECTION 7.06 Further Assurances............................................................28
SECTION 7.07 No Waiver; Cumulative Remedies................................................28
SECTION 7.08 Counterparts..................................................................28
SECTION 7.09 Binding Effect: Third-Party Beneficiaries.....................................28
SECTION 7.10 Merger and Integration........................................................28
SECTION 7.11 Headings......................................................................29
SECTION 7.12 Schedules and Exhibits........................................................29
SECTION 7.13 No Bankruptcy Petition Against Receivables III or the Trust...................29
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Exhibits, Schedules & Annexes
Schedule 1 LIST OF INITIAL CONTRACTS
Annex A DEFINED TERMS
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RECEIVABLES TRANSFER AGREEMENT
THIS RECEIVABLES TRANSFER AGREEMENT (this "Agreement"), dated as
of June 1, 2000, is entered into among ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC., formerly First
Sierra Financial Inc. ("▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"), a Delaware corporation located at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, in its individual capacity,
FIRST SIERRA RECEIVABLES III, INC. ("Receivables III"), a Delaware corporation
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, FIRST UNION
NATIONAL BANK (formerly First Union National Bank of North Carolina) ("First
Union"), a Delaware corporation located at One First Union Center, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, VARIABLE FUNDING CAPITAL
CORPORATION ("VFCC"), a Delaware corporation located at One First Union Center,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 0610, FAIRWAY FINANCE
CORPORATION ("FFC"), a Delaware corporation located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, BANKERS TRUST COMPANY (the "Indenture Trustee") a
New York banking corporation located at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, not in its individual capacity but as Trustee of the First Sierra
Equipment Lease Trust 1997-A, the First Sierra Equipment Lease Trust 1997-B and
the First Sierra Equipment Lease Trust 1998-E (each as defined herein), FIRST
SIERRA EQUIPMENT CONTRACT TRUST 1999-H, a Delaware business trust (the "Series
1999-H Trust"), located at Christiana Bank & Trust Company, Greenville Center,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and FIRST SIERRA EQUIPMENT
CONTRACT TRUST 2000-2 (the "Issuer" or the "Trust"), a Delaware common law trust
acting through First Union Trust Company, National Association, not in its
individual capacity but solely as Owner Trustee, located at One ▇▇▇▇▇▇ Square,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The First Sierra
Equipment Lease Trust 1997-A, the First Sierra Equipment Lease Trust 1997-B, the
First Sierra Equipment Lease Trust 1998-E and the First Sierra Equipment
Contract Trust 1999-H are collectively referred to herein as the "Warehouse
Trusts." Receivables III and each Warehouse Trust are collectively referred to
herein as the "Sellers." First Union, VFCC and FCC are collectively referred to
herein as the "Investors."
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in the ordinary course of its business
acquires and originates equipment contracts and commercial loans in the United
States; and
WHEREAS, Receivables III, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and Bankers Trust
Company have entered into an Amended and Restated Master Investment Pooling and
Servicing Agreement, dated as of March 25, 1998 (the "Investment Agreement"),
whereby Receivables III may, from time to time, sell pools of contracts,
contract receivables, equipment and certain rights related thereto and arising
therefrom ("Assets") to one or more trusts to be formed pursuant to the
Investment Agreement and a supplement thereto; and
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WHEREAS, pursuant to the Investment Agreement, the parties
thereto may, from time to time, execute a supplement to the Investment Agreement
and form a trust for the purpose of (i) accepting the transfer of a specific
pool of Assets from Receivables III, (ii) issuing one or more senior
certificates ("Senior Certificates"), junior certificates ("Junior
Certificates") and residual certificates ("Residual Certificates" and, together
with the Senior Certificates, the "Certificates") representing beneficial
ownership interests in the assets of each trust and (iii) selling the Senior
Certificates to investors; and
WHEREAS, pursuant to a Series 1997-A Supplement, dated as of June
30, 1997, as amended (the "Series 1997-A Supplement"), among Receivables III,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Bankers Trust Company and First Union, the parties thereto
formed a trust (the "First Sierra Equipment Lease Trust 1997-A"), issued a
Senior Certificate to First Union representing the senior beneficial ownership
interest in the Assets conveyed by Receivables III to the First Sierra Equipment
Lease Trust 1997-A (the "1997-A Assets") and issued a Residual Certificate to
Receivables III representing the residual beneficial ownership interest in the
1997-A Assets conveyed to the First Sierra Equipment Lease Trust 1997-A; and
WHEREAS, First Union and Receivables III, as the beneficial
owners of the 1997-A Assets in the First Sierra Equipment Lease Trust 1997-A,
have directed that Bankers Trust Company, as the Trustee of such trust, convey
the 1997-A Assets to the Trust; and
WHEREAS, pursuant to a Series 1997-B Supplement, dated as of June
26, 1997, as amended (the "Series 1997-B Supplement"), among Receivables III,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Bankers Trust Company, VFCC and First Union, the parties
thereto formed a trust (the "First Sierra Equipment Lease Trust 1997-B", issued
a Senior Certificate to VFCC representing the senior beneficial ownership
interest in the Assets conveyed by Receivables III to the First Sierra Equipment
Lease Trust 1997-B (the "1997-B Assets") and issued a Residual Certificate to
Receivables III representing the residual beneficial ownership interest in the
1997-B Assets conveyed to the First Sierra Equipment Lease Trust 1997-B; and
WHEREAS, VFCC and Receivables III, as the beneficial owners of
the 1997-B Assets in the First Sierra Equipment Lease Trust 1997-B, have
directed that Bankers Trust Company, as trustee of such trust, convey the 1997-B
Assets to the Trust; and
WHEREAS, pursuant to a Series 1998-E Supplement, dated as of
December 21, 1998 (the "Series 1998-E Supplement"), among Receivables III,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Bankers Trust Company, FFC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc.,
the parties thereto formed a trust (the "First Sierra Equipment Lease Trust
1998-E"), issued a Senior Certificate to FFC representing a senior beneficial
ownership interest in the Assets conveyed by Receivables III to the First Sierra
Equipment Lease Trust 1998-E and issued a junior certificate representing a
junior beneficial ownership interest in the Assets conveyed by Receivables III
to the First Sierra Equipment Lease Trust 1998-E (the
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"1998-E Assets") and a Residual Certificate to Receivables III representing the
residual beneficial ownership interest in the 1998-E Assets conveyed to the
First Sierra Equipment Lease Trust 1998-E; and
WHEREAS, FFC and Receivables III, as the beneficial owners of the
1998-E Assets in the First Sierra Equipment Lease Trust 1998-E, have directed
that Bankers Trust Company, as trustee of such trust, convey the 1998-E Assets
to the Trust; and
WHEREAS, pursuant to a Facility Agreement, dated as of August 1,
1999 (the "Series 1999-H Facility Agreement"), among Receivables III,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, the Series 1999-H Trust, Bankers Trust Company, issued a
secured note to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc., secured by the Assets
conveyed by Receivables III to the Series 1999-H Trust (the "1999-H Assets") and
a trust certificate to Receivables III representing the beneficial ownership
interest in the Series 1999-H Trust and the 1999-H Assets; and
WHEREAS, Receivables III, as the holder of the trust certificate
issued by the Series 1999-H Trust, desire to convey the 1999-H Assets to the
Trust; and
WHEREAS, each of the Warehouse Trusts, on behalf of and at the
request of Receivables III, have agreed to, and Receivables III desires to
convey, transfer, contribute and assign all of its right, title and interest in
and to the 1997-A Assets, the 1997-B Assets, the 1998-E Assets and the 1999-H
Assets, as applicable, to the Owner Trustee, on behalf of the Trust, upon the
terms and conditions hereinafter set forth; and
WHEREAS, each of the Sellers and the Trust agree that all
representations, warranties, covenants and agreements made by it herein shall be
for the benefit of the Noteholders, the Trust Certificateholder, the Owner
Trustee and Indenture Trustee.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Whenever used in this Agreement,
capitalized terms used and not defined herein shall have the meanings set forth
in Annex A to the Indenture.
SECTION 1.02 Other Definitional Provisions.
(a) Terms used in Related Documents. Each term defined in this
Agreement will have the meaning assigned to such term in this Agreement when
used in
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any certificate or other document made or delivered pursuant to this Agreement,
unless such term is otherwise defined therein.
(b) Accounting Terms. As used in this Agreement, accounting terms
which are not defined pursuant to Section 1.01 have the respective meanings
given to them under generally accepted accounting principles, as in effect on
the date of this Agreement. To the extent that the definitions of accounting
terms in this Agreement are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement will control.
(c) "Hereof," etc. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement will refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
Section, Schedule and Exhibit references contained in this Agreement are
references to Sections, Schedules and Exhibits in or to this Agreement, unless
otherwise specified.
(d) Number and Gender. Each defined term used in this Agreement
has a comparable meaning when used in its plural or singular form. Each
gender-specific term used in this Agreement has a comparable meaning whether
used in a masculine, feminine or gender-neutral form.
(e) Including. Whenever the term "including" (whether or not that
term is followed by the phrase "but not limited to" or "without limitation" or
words of similar effect) is used in this Agreement in connection with a listing
of items within a particular classification, that listing will be interpreted to
be illustrative only and will not be interpreted as a limitation on, or
exclusive listing of, the items within that classification.
ARTICLE II
TRANSFER OF CONVEYED ASSETS
SECTION 2.01 Direction; Acquisition of Initial Conveyed
Assets.
(a) (i) (i) In accordance with the terms of the Investment
Agreement, each of the Investors, as the Senior Certificateholders of the
related Warehouse Trust, and Receivables III, as the Junior
Certificateholder and the Residual Certificateholder of the Warehouse
Trusts, together representing all of the beneficial ownership interests in
the Warehouse Trusts, hereby direct Bankers Trust Company to convey to the
Trust those assets of each Warehouse Trust and Receivables III which
comprise the Initial Conveyed Assets. Upon receipt of the consideration
specified below, each of the Investors hereby release all of its right,
title and interest in, to and under the Initial Conveyed Assets, such
receipt being hereby acknowledged by execution of this Agreement by each
Investor.
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(ii) Receivables III, as the Residual Certificateholder of the
Warehouse Trusts, hereby requests the Warehouse Trusts to join in the
conveyance of the Initial Conveyed Assets.
(iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital, Inc., as lender to the
Series 1999-H Trust, and Receivables III, as the holder of the trust
certificate issued by the Series 1999-H Trust, hereby direct Christiana Bank
& Trust Company, as owner trustee of the Series 1999-H Trust, to execute
this Agreement on behalf of the Series 1999-H Trust, thereby conveying to
the Trust those assets of the Series 1999-H Trust which comprise the Initial
Conveyed Assets. Upon receipt of the consideration specified below, ▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Capital, Inc. hereby releases all of its right, title and
interest in, to and under the Initial Conveyed Assets, such receipt being
hereby acknowledged by execution of this Agreement by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Capital, Inc.
(b) In consideration for (w) the issuance to Receivables III of
the trust certificate to be issued by the Holding Trust pursuant to the Holding
Trust Agreement, (x) the issuance to the Holding Trust of the trust certificate
to be issued by the Trust pursuant to the Trust Agreement, (y) the receipt of
$2,860,003.25 by First Sierra Equipment Lease Trust 1997-A, $88,705,957.06 by
First Sierra Equipment Lease Trust 1997-B, $72,717,183.35 by First Sierra
Equipment Lease Trust 1998-E and $36,143,116.26 by the Series 1999-H Trust on
behalf of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital, Inc. and (z) other good and valuable
consideration, each of the Sellers hereby sells, transfers, assigns, sets over
and conveys to the Trust all of its right, title and interest in, to and under
the Initial Conveyed Assets (with respect to each Seller individually, to the
extent of such Seller's interest in such Initial Conveyed Assets, whether now
existing or hereinafter arising, without recourse (except as may be set forth in
the Servicing Agreement)).
(c) In connection with such sale and conveyance, each Seller
agrees to record and file, at the expense of the Servicer, financing statements
(and thereafter will file continuation statements with respect to such financing
statements) with respect to the related Initial Conveyed Assets contributed and
to be transferred to the Trust pursuant to this Agreement and the Substitute
Conveyed Assets, meeting the requirements of applicable state law and the Filing
Requirements in such manner and in such jurisdictions as are necessary to
perfect and to maintain the perfection of, the transfer, conveyance and
contribution of the related Initial Conveyed Assets and the related Substitute
Conveyed Assets (subject to the Filing Requirements with respect to the
Equipment) from each of the Sellers to the Trust and the transfer, assignment
and pledge of the Pledged Property from the Trust to the Indenture Trustee on
behalf of the Noteholders, pursuant to the Indenture, and to deliver an executed
copy of such financing statements or other evidence of such filings to the Trust
(and copies to the Indenture Trustee) on or prior to each Conveyance Date;
provided, however, that the Contract Files (including each original executed
Contract) will not be physically delivered to the Trust but instead will be
delivered to and held by the Indenture Trustee on behalf of the Trust.
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(d) In connection with such assignment and conveyance,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall, at its own expense, on or prior to the related
Conveyance Date, and with respect to Substitute Contracts, as soon as possible,
but in no event later than two (2) Business Days after the related Conveyance
Date (i) cause the Contract Management System to be marked with a specified code
(the "Contract Management Code") to show that the Initial Conveyed Assets or the
Substitute Conveyed Assets, as the case may be, have been assigned and
transferred to the Trust in accordance with this Agreement and pledged to the
Indenture Trustee on behalf of the Noteholders, pursuant to the Indenture and
(ii) prepare and hold in its capacity as Servicer, as agent of the Trust and the
Indenture Trustee the List of Initial Contracts on or prior to the Closing Date.
Pursuant to Section 3.03 hereof, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ from time to time may convey
Substitute Contracts to the Trust at any time by delivering a List of Substitute
Contracts to the Trust on each Conveyance Date containing for each Substitute
Contract transferred on such Conveyance Date the information set forth in the
definition of List of Substitute Contracts.
(e) The sale and conveyance of the Conveyed Assets will be
without recourse to the Sellers.
SECTION 2.02 Reserved.
SECTION 2.03 Custody of Contract Files. In connection with the
sale, assignment, transfer and conveyance of the Contracts to the Trust pursuant
to this Agreement, the Indenture Trustee will retain the Contract Files and any
related evidence of insurance and payments in accordance with the terms of the
Indenture.
SECTION 2.04 Intention of the Parties; Grant of Security
Interest. It is the intention of the parties hereto that each transfer of the
Conveyed Assets to be made pursuant to the terms hereof shall constitute an
absolute assignment and a sale of such Contract by each Seller to the Trust and
not a loan. In the event, however, that a court of competent jurisdiction were
to hold that any such transfer constitutes a loan and not a sale, it is the
intention of the parties hereto that this Agreement is deemed to be a security
agreement and that each Seller shall be deemed to have granted to the Trust as
of the related Conveyance Date a first priority perfected security interest in
all of such Seller's right, title and interest in, to and under each Conveyed
Asset, and all income and proceeds thereof. Such grant is made to secure the
payment of all amounts payable under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties.
(a) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby makes the following representations
and warranties for the benefit of the Owner Trustee, the Indenture Trustee, the
Noteholders and the Trust. Such representations and warranties are made as of
any Conveyance Date
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with respect to Contracts transferred to the Trust on such date and shall
survive each assignment, transfer and conveyance by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ of the
Conveyed Assets to the Trust and its successors and assigns.
(i) Organization and Good Standing. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a
corporation duly organized, validly existing and in good standing,
under the laws of the State of Delaware, with corporate 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 and own the Conveyed Assets;
(ii) Due Qualification. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is qualified as a
foreign corporation in any state where it is required to be so
qualified to conduct its business, to enforce the Source Agreements to
which it is a party, and to service the Contracts as required by the
Servicing Agreement and has obtained all necessary licenses, consents
and approvals as required under federal and state law, in each case,
where the failure to be so qualified, licensed, consented to or
approved could reasonably be expected materially and adversely to
affect the ability of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to comply with the terms of this
Agreement or any other Transaction Document to which it is a party;
(iii) Legal Name. The legal name of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is as set
forth on the signature line of this Agreement and, other than the
change from First Sierra Financial, Inc. to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ has not changed its name since its incorporation and
since its incorporation, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ did not use, nor does
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ now use, any trade names, fictitious names, assumed
name of "doing business as" names;
(iv) Power and Authority. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ has the corporate
power and authority to execute and deliver this Agreement, the Source
Agreements to which it is a party and the Contracts and any other
Transaction Document to which it is a party, and to carry out their
respective terms; and the execution, delivery, and performance of this
Agreement, the Source Agreements, the Contracts and any other
Transaction Document to which it is a party has been duly authorized by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ by all necessary corporate action;
(v) Due Execution and Delivery. This Agreement and each of the
other Transaction Documents to which it is a party have been duly
executed and delivered on behalf of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
(vi) Valid Assignment; Binding Obligations. This Agreement and
the other Transaction Documents to which ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a party,
when duly executed and delivered, will constitute legal, valid, and
binding obligations of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ enforceable against
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in accordance with their respective terms subject as
to enforceability to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights
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generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(vii) Insolvency. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is not insolvent and will not
be rendered insolvent by the transactions contemplated by this
Agreement and has an adequate amount of capital to conduct its business
in the ordinary course and to carry out its obligations hereunder and
under each other Transaction Document to which it is a party;
(viii) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of this Agreement and
each Transaction Document to which it is a party 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) a default under,
the articles of incorporation or bylaws of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any
material term of any indenture, agreement, mortgage, deed of trust, or
other instrument to which ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 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
or each Transaction Document to which it is a party or violate any law
or any order, injunction, writ, rule, or regulation applicable to
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ of any court or of any federal or state regulatory
body, administrative agency, or other Governmental Authority having
jurisdiction over ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any of its properties which would
have a material adverse effect on the Conveyed Assets;
(ix) Ability to Perform. No event has occurred which adversely
affects ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s operations or its ability to perform its
obligations under the Transaction Documents to which it is a party;
(x) No Proceedings. There are no Proceedings or investigations
pending, or, to the knowledge of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, threatened, before
any court, regulatory body, administrative agency, or other tribunal or
Governmental Authority (A) asserting the invalidity of this Agreement
or each other Transaction Document to which it is a party, (B) seeking
to prevent the consummation of any of the transactions contemplated by
this Agreement, or (C) seeking any determination or ruling that might
(in the reasonable judgment of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) materially and
adversely affect the performance by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ of its obligations
under, or the validity or enforceability of, this Agreement or each
other Transaction Document to which it is a party;
(xi) No Consent Required. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is not required to
obtain the consent of any other Person, or any consent, license,
approval or authorization or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery or performance of this Agreement and the other
Transaction Documents to which it is a party, except for such as have
been obtained, effected or made;
8
12
(xii) Consolidated Return Taxable Income from the Equipment and
the Related Contracts. The Depositor and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are members
of an affiliated group within the meaning of Section 1504 of the Code
which has filed, and will continue to file, a consolidated return for
federal income tax purposes at all times until satisfaction in full of
all obligations (i) of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereunder and (ii) of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and the Depositor under the Transaction Documents or
other documents relating to the financing contemplated hereby. The
Depositor shall treat the Contracts as owned by it for federal, state
and local income tax purposes, and the affiliated group of which the
Depositor is a member within the meaning of Section 1504 of the Code
shall treat the Contracts as owned by the Depositor and shall report
and include the rental and other income from the Equipment and the
Contracts in gross income;
(xiii) Principal Place of Business. The principal place of
business and chief executive office of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is located at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and, there are now
no, and during the past four months there have not been, any other
locations where ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is located (as that term is used in
the UCC in the state of such location) except that, with respect to
such changes occurring after the date of this Agreement, as shall have
been specifically disclosed to the Servicer and the Indenture Trustee
in writing;
(xiv) Tax Returns. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ has filed on a timely basis
all tax returns (federal, state and local) required to be filed and has
paid or made adequate provisions for the payment of all taxes,
assessments and other governmental charges due from ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
and
(xv) Pensions. Each pension plan or profit sharing plan to which
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a party has been fully funded in accordance with
the obligations of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ set forth in such plan.
(b) Receivables III, on its own behalf and as beneficial owner of
the trust certificate issued by the Series 1999-H Trust, hereby makes the
following representations and warranties for the benefit of the Indenture
Trustee, the Owner Trustee, the Noteholders and the Trust. Such representations
and warranties are made as of each Conveyance Date and shall survive each sale,
assignment, transfer and conveyance by the Sellers of the respective Conveyed
Assets to the Trust and its successors and assigns.
(i) Organization and Good Standing. Receivables III is a
corporation duly organized, validly existing and in good standing,
under the laws of the State of Delaware, with corporate 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 and own the Conveyed Assets.
Receivables III has no subsidiaries other than special purpose trusts
created to finance the acquisition of Contracts and Equipment;
9
13
(ii) Due Qualification. Receivables III is qualified as a foreign
corporation in any state where it is required to be so qualified to
conduct its business and has obtained all necessary licenses, consents
and approvals as required under federal and state law, in each case,
where the failure to be so qualified, licensed, consented to or
approved could reasonably be expected materially and adversely to
affect the ability of Receivables III to comply with the terms of this
Agreement or any other Transaction Document to which it is a party;
(iii) Legal Name. The legal name of Receivables III is as set
forth in the signature line of this Agreement and Receivables III has
not changed its name since its incorporation and since its
incorporation, Receivables III did not use, nor does Receivables III
now use, any trade names, fictitious names, assumed name of "doing
business as" names;
(iv) Power and Authority. Receivables III has the corporate power
and authority to execute and deliver this Agreement and any other
Transaction Document to which it is a party, and to carry out their
respective terms; Receivables III has duly authorized the sale and
assignment to the Owner Trustee, on behalf of the Trust, of all of its
right, title and interest, if any, in the Conveyed Assets by all
necessary corporate action; and the execution, delivery, and
performance of this Agreement and any other Transaction Document to
which it is a party has been duly authorized by Receivables III by all
necessary corporate action;
(v) Due Execution and Delivery. This Agreement has been duly
executed and delivered on behalf of Receivables III;
(vi) Valid Assignment; Binding Obligations. This Agreement
constitutes a valid assignment, transfer and conveyance to the Owner
Trustee, on behalf of the Trust, of all right, title, and interest of
Receivables III in, to and under the Conveyed Assets, and the Conveyed
Assets will be held by the Trust free and clear of any Lien of any
Person claiming through or under Receivables III, except the lien on
the Conveyed Assets in favor of the Indenture Trustee granted pursuant
to the Indenture; and this Agreement, when duly executed and delivered,
will constitute the legal, valid, and binding obligation of Receivables
III enforceable against Receivables III in accordance with their
respective terms subject as to enforceability to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law);
(vii) Insolvency. Receivables III is not insolvent and will not
be rendered insolvent by the transactions contemplated by this
Agreement and has an adequate amount of capital to conduct its business
in the ordinary course and to carry out its obligations hereunder and
under each other Transaction Document to which it is a party;
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14
(viii) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of this Agreement and
each Transaction Document to which it is a party 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) a default under,
the articles of incorporation or bylaws of Receivables III, or any
material term of any indenture, agreement, mortgage, deed of trust, or
other instrument to which Receivables III 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
and each Transaction Document to which it is a party, or violate any
law or any order, injunction, writ, rule, or regulation applicable to
Receivables III of any court or of any federal or state regulatory
body, administrative agency, or other Governmental Authority having
jurisdiction over Receivables III or any of its properties which would
have a material adverse effect on the Conveyed Assets;
(ix) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Receivables III, threatened, before
any court, regulatory body, administrative agency, or other tribunal or
Governmental Authority (A) asserting the invalidity of this Agreement
or any Transaction Document to which it is a party, (B) seeking to
prevent the consummation of any of the transactions contemplated by
this Agreement, or (C) seeking any determination or ruling that might
(in the reasonable judgment of Receivables III) materially and
adversely affect the performance by Receivables III of its obligations
under, or the validity or enforceability of, this Agreement or any
Transaction Document to which it is a party;
(x) No Consent Required. Receivables III is not required to
obtain the consent of any other Person, or any consent, license,
approval or authorization or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery or performance of this Agreement and the
Transaction Documents to which it is a party, except for such having
been obtained, effected or made;
(xi) Fair Consideration. The consideration received by
Receivables III as set forth herein is fair consideration having value
reasonably equivalent to or in excess of the value of the Conveyed
Assets conveyed by it and the performance of Receivables III's
obligation hereunder;
(xii) Principal Place of Business. The principal place of
business and chief executive office of Receivables III is located at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and, there are now
no, and during the past four months there have not been, any other
locations where Receivables III is located (as that term is used in the
UCC in the state of such location) except that, with respect to such
changes occurring after the date of this Agreement, as shall have been
specifically disclosed to the Servicer and the Indenture Trustee in
writing. The principal place of business and chief executive office of
each of the
11
15
Warehouse Trusts (other than the Series 1999-H Trust) is located in
care of Bankers Trust Company, Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ and the principal place of business of the Series 1999-H Trust is
located in care of Christiana Bank & Trust Company, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and, there are now no, and during the past
four months there have not been, any other locations where each
Warehouse Trust is located (as that term is used in the UCC in the
state of such location).
(xiii) Valid Business Reasons. Receivables III has valid business
reasons for selling its interest in the Conveyed Assets rather than
obtaining a loan with the Conveyed Assets as collateral;
(xiv) Absence of Event. No event has occurred which adversely
affects Receivables III's operations or its ability to perform its
obligations under the Transaction Documents to which it is a party; and
(xv) Non Consolidation. Receivables III is operated in such a
manner that it will not be consolidated in the estate of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ such that the separate existence of Receivables III
and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ would be disregarded in the event of a bankruptcy
or insolvency of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
(c) First Union hereby makes the following representations and
warranties for the benefit of the Indenture Trustee, the Owner Trustee, the
Noteholders and the Trust. Such representations and warranties are made as of
each Conveyance Date and shall survive each sale, assignment, transfer and
conveyance by the Sellers of the respective Conveyed Assets to the Trust and its
successors and assigns:
(i) Organization and Good Standing. First Union is a national
bank duly organized, validly existing and in good standing, under the
laws of the United States, with corporate 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 and own the Conveyed Assets;
(ii) Due Qualification. First Union is qualified as a foreign
corporation in any state where it is required to be so qualified to
conduct its business and has obtained all necessary licenses, consents
and approvals as required under federal and state law, in each case,
where the failure to be so qualified, licensed, consented to or
approved could reasonably be expected materially and adversely to
affect the ability of First Union to comply with the terms of this
Agreement or any other Transaction Document to which it is a party;
(iii) Power and Authority. First Union has the corporate power
and authority to execute and deliver this Agreement and each other
Transaction Document to which it is a party, and to carry out their
respective terms; and the execution, delivery, and performance of this
Agreement and any other
12
16
Transaction Document to which it is a party has been duly authorized by
First Union by all necessary corporate action;
(iv) Due Execution and Delivery. This Agreement has been duly
executed and delivered on behalf of First Union;
(v) Valid Assignment; Binding Obligations. This Agreement
constitutes a valid contribution, assignment, transfer and conveyance
to the Owner Trustee, on behalf of the Trust, of all right, title, and
interest of First Union in, to and under the Conveyed Assets and the
Conveyed Assets will be held by the Trust free and clear of any Lien of
any Person claiming, through or under First Union, except the lien on
the Conveyed Assets in favor of the Indenture Trustee granted pursuant
to the Indenture; and this Agreement, when duly executed and delivered,
will constitute legal, valid, and binding obligations of First Union
enforceable against First Union in accordance with their respective
terms subject as to enforceability to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law);
(vi) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of this Agreement 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)
a default under, the articles of incorporation or bylaws of First
Union, or any material term of any indenture, agreement, mortgage, deed
of trust, or other instrument to which First Union 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, or violate any law or any order, injunction, writ,
rule, or regulation applicable to First Union of any court or of any
federal or state regulatory body, administrative agency, or other
Governmental Authority having jurisdiction over First Union or any of
its properties which would have a material adverse effect on the
Conveyed Assets;
(vii) Valid Business Reasons. First Union has valid business
reasons for selling its interest in the Conveyed Assets rather than
obtaining a loan with the Conveyed Assets as collateral;
(viii) Absence of Event. No event has occurred which adversely
affects First Union's operations or its ability to perform its
obligations under the Transaction Documents to which it is a party;
(ix) Insolvency. First Union is not insolvent and will not be
rendered insolvent by the transactions contemplated by this Agreement
and has an adequate amount of capital to conduct its business in the
ordinary course and to carry out its obligations hereunder and under
each other Transaction Document to which it is a party;
13
17
(x) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of First Union, threatened, before any
court, regulatory body, administrative agency, or other tribunal or
Governmental Authority (A) asserting the invalidity of this Agreement,
(B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any determination or
ruling that might (in the reasonable judgment of First Union)
materially and adversely affect the performance by First Union of its
obligations under, or the validity or enforceability of, this
Agreement;
(xi) No Consent Required. First Union is not required to obtain
the consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Transaction Documents to which
it is a party, except for such having been obtained, effected or made;
(xii) Fair Consideration. The consideration received by First
Union as set forth herein is fair consideration having value reasonably
equivalent to or in excess of the value of the Conveyed Assets conveyed
by it and the performance of First Union's obligations hereunder; and
(xiii) Accounting Treatment. First Union will treat the
assignment of the Conveyed Assets to the Trust pursuant to Article II
as a sale of the Conveyed Assets to the Trust for financial reporting
and accounting purposes.
(d) VFCC hereby makes the following representations and
warranties for the benefit of the Indenture Trustee, the Noteholders and the
Trust. Such representations and warranties are made as of each Conveyance Date
and shall survive each sale, assignment, transfer and conveyance by the Sellers
of the respective Conveyed Assets to the Trust and its successors and assigns:
(i) Organization and Good Standing. VFCC is a corporation duly
organized, validly existing and in good standing, under the laws of the
State of Delaware, with corporate 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 and
own the Conveyed Assets;
(ii) Due Qualification. VFCC is qualified as a foreign
corporation in any state where it is required to be so qualified to
conduct its business and has obtained all necessary licenses, consents
and approvals as required under federal and state law, in each case,
where the failure to be so qualified, licensed, consented to or
approved could reasonably be expected materially and adversely to
affect the ability of VFCC to comply with the terms of this Agreement
or any other Transaction Document to which it is a party;
14
18
(iii) Power and Authority. VFCC has the corporate power and
authority to execute and deliver this Agreement and each other
Transaction Document to which it is a party, and to carry out their
respective terms; and the execution, delivery, and performance of this
Agreement and each other Transaction Document to which it is a party
has been duly authorized by VFCC by all necessary corporate action;
(iv) Due Execution and Delivery. This Agreement has been duly
executed and delivered on behalf of VFCC;
(v) Valid Assignment; Binding Obligations. This Agreement
constitutes a valid sale, assignment, transfer and conveyance to the
Owner Trustee, on behalf of the Trust, of all right, title, and
interest of VFCC in, to and under the Conveyed Assets and the Conveyed
Assets will be held by the Trust free and clear of any Lien of any
Person claiming, through or under VFCC, except the lien on the Conveyed
Assets in favor of the Indenture Trustee granted pursuant to the
Indenture; and this Agreement, when duly executed and delivered, will
constitute the legal, valid, and binding obligation of VFCC enforceable
against VFCC in accordance with their respective terms subject as to
enforceability to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally and to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law);
(vi) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of this Agreement 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)
a default under, the articles of incorporation or bylaws of VFCC, or
any material term of any indenture, agreement, mortgage, deed of trust,
or other instrument to which VFCC 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, or violate any law or any order, injunction, writ, rule, or
regulation applicable to VFCC of any court or of any federal or state
regulatory body, administrative agency, or other Governmental Authority
having jurisdiction over VFCC or any of its properties which would have
a material adverse effect on the Conveyed Assets;
(vii) Valid Business Reasons. VFCC has valid business reasons for
selling its interest in the Conveyed Assets rather than obtaining a
loan with the Conveyed Assets as collateral;
(viii) Absence of Event. No event has occurred which adversely
affects VFCC's operations or its ability to perform its obligations
under the Transaction Documents to which it is a party;
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19
(ix) Insolvency. VFCC is not insolvent and will not be rendered
insolvent by the transactions contemplated by this Agreement and has an
adequate amount of capital to conduct its business in the ordinary
course and to carry out its obligations hereunder and under each other
Transaction Document to which it is a party;
(x) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of VFCC, threatened, before any court,
regulatory body, administrative agency, or other tribunal or
Governmental Authority (A) asserting the invalidity of this Agreement,
(B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any determination or
ruling that might (in the reasonable judgment of VFCC) materially and
adversely affect the performance by VFCC of its obligations under, or
the validity or enforceability of, this Agreement;
(xi) No Consent Required. VFCC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the other Transaction Documents to
which it is a party except for such having been obtained, effected or
made;
(xii) Fair Consideration. The consideration received by VFCC as
set forth herein is fair consideration having value reasonably
equivalent to or in excess of the value of the Conveyed Assets conveyed
by it and the performance of VFCC's obligations hereunder; and
(xiii) Accounting Treatment. VFCC will treat the assignment of
the Conveyed Assets to the Trust pursuant to Article II as a sale of
the Conveyed Assets to the Trust for financial reporting and accounting
purposes.
(e) FFC hereby makes the following representations and warranties
for the benefit of the Indenture Trustee, the Noteholders and the Trust. Such
representations and warranties are made as of each Conveyance Date and shall
survive each sale, assignment, transfer and conveyance by the Sellers of the
respective Conveyed Assets to the Trust and its successors and assigns:
(i) Organization and Good Standing. FFC is a corporation duly
organized, validly existing and in good standing, under the laws of the
State of Delaware, with corporate 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 and
own the Conveyed Assets;
(ii) Due Qualification. FFC is qualified as a foreign corporation
in any state where it is required to be so qualified to conduct its
business and has obtained all necessary licenses, consents and
approvals as required under federal
16
20
and state law, in each case, where the failure to be so qualified,
licensed, consented to or approved could reasonably be expected
materially and adversely to affect the ability of FFC to comply with
the terms of this Agreement or each Transaction Document to which it is
a party;
(iii) Power and Authority. FFC has the corporate power and
authority to execute and deliver this Agreement and any other
Transaction Document to which it is a party, and to carry out their
respective terms; and the execution, delivery, and performance of this
Agreement and each other Transaction Document to which it is a party
has been duly authorized by FFC by all necessary corporate action;
(iv) Due Execution and Delivery. This Agreement has been duly
executed and delivered on behalf of FFC;
(v) Valid Assignment; Binding Obligations. This Agreement
constitute a valid sale, assignment, transfer and conveyance to the
Owner Trustee, on behalf of the Trust, of all right, title, and
interest of FFC in, to and under the Conveyed Assets and the Conveyed
Assets will be held by the Trust free and clear of any Lien of any
Person claiming, through or under FFC, except the lien on the Conveyed
Assets in favor of the Indenture Trustee granted pursuant to the
Indenture; and this Agreement, when duly executed and delivered, will
constitute the legal, valid, and binding obligation of FFC enforceable
against FFC in accordance with their respective terms subject as to
enforceability to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally and to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law);
(vi) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of this Agreement 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)
a default under, the articles of incorporation or bylaws of FFC, or any
material term of any indenture, agreement, mortgage, deed of trust, or
other instrument to which FFC 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, or violate any law or any order, injunction, writ, rule, or
regulation applicable to FFC of any court or of any federal or state
regulatory body, administrative agency, or other Governmental Authority
having jurisdiction over FFC or any of its properties which would have
a material adverse effect on the Conveyed Assets;
(vii) Valid Business Reasons. FFC has valid business reasons for
selling its interest in the Conveyed Assets rather than obtaining a
loan with the Conveyed Assets as collateral;
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21
(viii) Absence of Event. No event has occurred which adversely
affects FFC's operations or its ability to perform its obligations
under the Transaction Documents to which it is a party;
(ix) Insolvency. FFC is not insolvent and will not be rendered
insolvent by the transactions contemplated by this Agreement and has an
adequate amount of capital to conduct its business in the ordinary
course and to carry out its obligations hereunder and under each other
Transaction Document to which it is a party;
(x) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of FFC, threatened, before any court,
regulatory body, administrative agency, or other tribunal or
Governmental Authority (A) asserting the invalidity of this Agreement,
(B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any determination or
ruling that might (in the reasonable judgment of FFC) materially and
adversely affect the performance by FFC of its obligations under, or
the validity or enforceability of, this Agreement;
(xi) No Consent Required. FFC is not required to obtain the
consent of any other Person, or any consent, license, approval or
authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery
or performance of this Agreement and the Transaction Documents to which
it is a party except for such having been obtained, effected or made;
(xii) Fair Consideration. The consideration received by FFC as
set forth herein is fair consideration having value reasonably
equivalent to or in excess of the value of the Conveyed Assets conveyed
by it and the performance of FFC's obligations hereunder; and
(xiii) Accounting Treatment. FFC will treat the assignment of the
Conveyed Assets to the Trust pursuant to Article II as a sale of the
Conveyed Assets to the Trust for financial reporting and accounting
purposes.
SECTION 3.02 Removal of Non-Conforming Contracts by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Upon the occurrence of a Warranty Event with respect to a
Contract, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will repurchase such Contract by depositing (or
causing to be deposited) to the Collection Account the Repurchase Amount with
respect to such Contract in accordance with the terms of Section 4.01 of the
Indenture or replace such Contract with a Substitute Contract pursuant to
Section 3.03 hereof and Section 4.02 of the Indenture.
SECTION 3.03 Substitution of Contracts and Equipment by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
(a) With respect to a substitution of Contracts in accordance
with the provisions of this Section 3.03 and Section 4.02 of the Indenture, each
proposed
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Substitute Contract must be an Eligible Contract, and be eligible to be
substituted by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ pursuant to Section 4.02 of the Indenture.
(b) Any substitution of a Contract pursuant to this Agreement
will be effected by (i) delivery to the Indenture Trustee, as custodian of the
original executed counterpart of each such Substitute Contract, (ii) filing of
any UCC financing statements in accordance with the Filing Requirements
necessary to perfect the interest of the Trust and the Indenture Trustee in the
Substitute Contracts, (iii) delivery to the Indenture Trustee of a List of
Substitute Contracts reflecting such substitution and (iv) delivery to the
Indenture Trustee of a release request and the originally executed trust receipt
relating thereto.
(c) The parties hereto agree that in addition to the obligation
of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to repurchase or to substitute any Contract and the related
Equipment as to which a breach of the representations set forth in the Servicing
Agreement has occurred and is continuing, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will enforce its
remedies against the Source under the Source Agreement. In consideration of the
purchase of the Equipment and the Contract, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall remit the
Repurchase Amount to the Servicer for allocation of such Repurchase Amount
pursuant to the terms of the Indenture. Except as may be set forth in the other
Transaction Documents, it is understood and agreed that the obligations of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ with respect to a breach as provided in this Section 3.03 and
Section 4.01 of the Indenture constitute the sole remedy against
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for such breach available to the Trust, the Indenture Trustee
and Noteholders. The representations and warranties set forth in Sections 3.01
and 3.02 hereof shall survive the assignment of the Conveyed Assets to the Owner
Trustee, on behalf of the Trust, and the pledge of the Pledged Property to the
Indenture Trustee.
(d) Except as provided in this Article III, upon each Seller's
transfer of its interest in the Conveyed Assets to the Trust, the Sellers will
not bear any further risk with respect to the ultimate collectibility of the
Contracts or the adequacy of the collateral securing the Contracts or the value
or sufficiency of the Equipment.
ARTICLE IV
COVENANTS
SECTION 4.01 Seller and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Covenants.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and the Sellers, as applicable, hereby covenant and agree with
the Trust, the Owner Trustee, the Noteholders and the Indenture Trustee with
respect to itself as follows:
(a) Preservation of Security Interest. The Sellers shall execute
and file such financing statements and cause to be executed and filed such
continuation statements, all in such manner and in such places as may be
required by the Filing Requirements and by law fully to preserve, maintain, and
protect the respective right, title and interest of the Owner Trustee, on behalf
of the Trust, and the Indenture Trustee in the
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Conveyed Assets. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall deliver (or cause to be delivered) to
the Trust file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Obligations with Respect to Conveyed Assets. Each of the
Sellers and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will duly fulfill all obligations on its part to be
fulfilled under or in connection with each Contract and the Source Agreement,
and will do nothing to impair the rights of the Owner Trustee, on behalf of the
Trust, or the Indenture Trustee in any of the Conveyed Assets.
(c) Compliance with Law. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will comply, in all
material respects, with all acts, rules, requisitions, orders, decrees and
directions of any Governmental Authority applicable to its business and to the
Conveyed Assets or any part thereof; provided, however, that ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
may contest any act, regulation, order, decree or direction in any reasonable
manner which shall not materially and adversely affect the rights of the Trust,
the Indenture Trustee or the Owner Trustee in the Conveyed Assets.
(d) Conveyance of Conveyed Assets; Security Interests. Except for
the transfers and conveyances hereunder or under any other Transaction Document,
the Sellers will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien, on any Conveyed Asset,
or any interest therein and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall defend the right, title, and
interest of the Owner Trustee, on behalf of the Trust, the Indenture Trustee and
their respective successors and assigns in, to, and under the Conveyed Assets,
against all claims of third parties claiming, through or under the Sellers;
provided, however, that nothing in this Section 4.01(d) shall prevent or be
deemed to prohibit ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ from suffering to exist upon any of the
Conveyed Assets any Liens for municipal or other local taxes if such taxes shall
not at the time be due and payable or if ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall concurrently be
contesting the validity thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves with respect thereto and
such contests pose no risk of forfeiture.
(e) Notification of Breach. The Sellers will advise the Trust and
the Indenture Trustee promptly, in reasonable detail, upon discovery of the
occurrence of any breach by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ of any of its representations,
warranties and covenants contained herein.
(f) Further Assurances.
(i) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will make, execute or endorse, acknowledge
and file or deliver to the Trust and the Indenture Trustee from time to
time such schedules, confirmatory assignments, conveyances, transfer
endorsements, powers of attorney, certificates, reports and other
assurances or instruments and take such further steps relating to the
Conveyed Assets and other rights covered by this Agreement, as the
Trust or the Indenture Trustee may request and reasonably require,
provided that no UCC filing will be required with respect to the
Equipment, except as required by the Filing Requirements.
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(ii) The Sellers hereby agree to do all acts, transactions, and
things and to execute and deliver all agreements, documents,
instruments, and papers by and on behalf of the Sellers as the Trust or
its counsel may reasonably request in order to consummate the transfer
of the Conveyed Assets to the Trust and the subsequent pledge thereof
to the Indenture Trustee for the benefit of the Noteholders, and the
rating, issuance and sale of the Notes.
(g) Indemnification. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to indemnify, defend
and hold the Trust, the Owner Trustee and the Indenture Trustee harmless from
and against any and all loss, liability, damage, judgment, claim, deficiency, or
expense (including interest, penalties, reasonable attorneys' fees and amounts
paid in settlement) to which any of them may become subject insofar as such
loss, liability, damage, judgment, claim, deficiency, or expense arises out of
or is based upon a breach by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ of its representations and
warranties contained in Section 3.01 or its covenants contained in Section 4.01,
or any information certified or set forth in this Agreement or in any schedule
delivered by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereunder, being untrue in any material respect at
any time. The obligations of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ under this Section 4.01(g) shall
be considered to have been relied upon by the Trust, the Owner Trustee and the
Indenture Trustee and shall survive the execution, delivery, and performance of
this Agreement regardless of any investigation made by the Trust, the Owner
Trustee, the Indenture Trustee or on their respective behalf. THE
INDEMNIFICATION OBLIGATIONS OF ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ PURSUANT TO THE PRECEDING
PROVISIONS OF THIS PARAGRAPH SHALL APPLY REGARDLESS OF ANY NEGLIGENCE OR OTHER
FAULT ON THE PART OF THE TRUST, THE OWNER TRUSTEE, THE INDENTURE TRUSTEE OR ANY
OF THEIR RESPECTIVE OFFICERS, EMPLOYEES OR AGENTS.
(h) Notice of Liens. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall notify the Trust and
the Indenture Trustee, promptly after becoming aware of any Lien on any Conveyed
Asset.
(i) Taxes. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall promptly pay all applicable
taxes required to be paid in connection with the assignment of the Conveyed
Assets and acknowledges that the Trust shall have no responsibility with respect
thereto. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall promptly pay and discharge, or cause the payment
and discharge of, all federal income taxes (and all other material taxes) when
due and payable by each such Seller, except (i) such as may be paid thereafter
without penalty or (ii) such as may be contested in good faith by appropriate
proceedings and for which an adequate reserve has been established and is
maintained in accordance with GAAP. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall promptly notify the
Trust, the Indenture Trustee and the Noteholders of any material challenge,
contest or proceeding pending by or against ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ before any taxing
authority. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and the Depositor shall have entered into a Tax
Sharing Agreement, pursuant to which (i) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall assume the sole
responsibility for making any required payments of taxes to the Internal Revenue
Service and shall agree to indemnify and hold the Depositor harmless against any
claims of liability for such taxes and (ii) the Depositor shall be required to
make certain payments to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in respect of its separate federal
income tax liability. So long as any Notes remain outstanding, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and the Depositor shall not terminate or
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amend such Tax Sharing Agreement without the prior written consent of the
Indenture Trustee, except that ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall not require the Depositor
to make any payments to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, pursuant to the Tax Sharing Agreement,
which exceed the aggregate federal income tax liability of the Depositor, on a
separate return basis for all taxable years covered by the Tax Sharing
Agreement, that would arise if all allowable losses arising at any time during
such period were applied to reduce the Depositor's aggregate separate taxable
income for all such years.
(j) Taxes and Other Liabilities. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall promptly
pay and discharge all material taxes, assessments, fees, claims and other
governmental charges when due and payable by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, the First Sierra
Group, or any member of the First Sierra Group, except (i) such as may be paid
thereafter without penalty or (ii) such as may be contested in good faith by
appropriate proceedings and for which an adequate reserve has been established
and is maintained in accordance with GAAP. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall promptly
notify the Trust and the Indenture Trustee of any material challenge, contest or
proceeding pending by or against ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or the First Sierra Group
before any taxing authority.
(k) Non-Consolidation. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be operated in such
a manner that Receivables III and/or the Holding Trust, the holder of the trust
certificate to be issued by the Trust, would not be substantively consolidated
with ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, such that the separate corporate existence of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and Receivables III, on the one hand, and Holding Trust and/or
the Trust, on the other hand, would be ignored in the event of a bankruptcy of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
(l) No Agency. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will not act as an agent of
Receivables III, Holding Trust or the Trust in any capacity except to the
limited extent provided in the Transaction Documents, but instead will present
itself to the public as a corporation separate from Receivables III and/or
Holding Trust or the Trust;
(m) Financial Statements. The financial statements and books and
records of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ reflect the separate existence of Receivables III,
Holding Trust and the Trust.
SECTION 4.02 Receivables III Covenants. Receivables III hereby
covenants and agrees with the Trust, the Noteholders and the Indenture Trustee
as follows:
(a) Obligor's Quiet Enjoyment. Receivables III hereby
acknowledges and agrees that its rights in the Equipment are expressly subject
to the rights of the related Obligors in such Equipment pursuant to the
applicable Contracts. Receivables III covenants and agrees that, so long as an
Obligor shall not be in default of any of the provisions of the applicable
Contract, neither Receivables III nor any assignee of Receivables III will
disturb the Obligor's quiet and peaceful possession of the related Equipment and
the Obligor's use thereof for its intended purpose.
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(b) Operation of Receivables III. Receivables III shall be
operated in such a manner that it would not be substantively consolidated in the
trust estate of another Person (that is, such that the separate legal existence
of Receivables III and such Person would be disregarded) and in that regard,
Receivables III shall:
(i) be a limited purpose corporation whose primary activities are
restricted in its certificate of incorporation;
(ii) not engage in any action that would cause the separate legal
identity of Receivables III not to be respected, including, without
limitation, (a) holding itself out as being liable for the debts of any
other party or (b) acting other than through its duly authorized
agents;
(iii) not be involved in the day-to-day management of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or Holding Trust;
(iv) not incur, assume or guarantee any indebtedness except for
such indebtedness as may be incurred by Receivables III in connection
with the issuance of the Notes;
(v) not commingle its funds, assets and records relating thereto
with those of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any other entity;
(vi) entitle the separate creditors of Receivables III to be
satisfied out of Receivables III's assets prior to any value in
Receivables III becoming available to Receivable III's equityholders,
or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s creditors or Holding Trust's creditors;
(vii) act solely in its own name in the conduct of its business,
including business correspondence and other communications, and shall
conduct its business so as not to mislead others as to the identity of
the entity with which they are concerned;
(viii) maintain company records and books of account and shall
not commingle its company records and books of account with the records
and books of account of any entity;
(ix) not engage in any business or activity other than in
connection with or relating to its Certificate of Incorporation and/or
Bylaws;
(x) not form, or cause to be formed, any subsidiaries;
(xi) comply with all restrictions and covenants in, and shall not
fail to comply with the corporate formalities established in, its
Certificate of Incorporation and/or Bylaws;
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(xii) maintain its assets separately from the assets of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Holding Trust and the First Sierra Equipment Contract
Trust 2000-2 (including, in each case, through the maintenance of a
separate bank account);
(xiii) manage its day-to-day business without the involvement of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or Holding Trust;
(xiv) maintain a separate office from that of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and/or Holding Trust;
(xv) not act as an agent of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or Holding Trust,
except to the limited extent provided in the Transaction Documents; and
(xvi) maintain at all times two independent directors as required
by its Certificate of Incorporation and/or Bylaws.
(c) Merger or Consolidation.
(i) Receivables III will keep in full effect its existence,
rights and franchises as a corporation and will obtain and preserve its
qualification to do business as a foreign corporation in each
jurisdiction which permits such qualification and in which it is
necessary to protect the validity and enforceability of this Agreement,
any other Transaction Document to which it is a party or any of the
Contracts and to perform its duties under this Agreement and each other
Transaction Document to which it is a party.
(ii) Any partnership or corporation (i) into which Receivables
III may be merged or consolidated, (ii) resulting from any merger,
conversion, or consolidation to which Receivables III shall be party,
or (iii) succeeding to Receivables III's business substantially as a
whole, shall execute an agreement of assumption to perform all of
Receivables III's obligations under this Agreement and any other
Transaction Document to which Receivables III is a party, and upon such
execution will be Receivables III's successor under this Agreement and
any other such Transaction Document, without the execution or filing of
any document or any further act on the part of any of the parties to
this Agreement and any other such Transaction Document, anything in
this Agreement and any other Transaction Document to the contrary
notwithstanding; provided, however, that (a) immediately after giving
effect to such transaction, no covenant made pursuant to Section
4.02(c) shall have been breached, (b) Receivables III shall have
delivered to the Trust, the Rating Agencies, the Owner Trustee and the
Indenture Trustee an Officer's Certificate and an opinion of counsel,
satisfactory to each of them, each stating that such consolidation,
conversion, merger, or succession and such agreement of assumption
comply with this Section 4.02(c) and that all conditions precedent, if
any, provided for in this Agreement relating to such transaction have
been complied with, (c) Receivables III shall have delivered to the
Trust, the Owner Trustee, the Rating Agencies and the Indenture Trustee
an opinion of counsel, satisfactory to each of them, either (1) stating
that, in the
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opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the Owner
Trustee, on behalf of the Trust, in the Contracts and reciting the
details of such filings, or (2) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect such
interest and (d) such partnership or corporation shall have
organizational documents with similar restrictions as those of
Receivables III.
(d) Non-Consolidation. Receivables III shall be operated in such
a manner that Holding Trust or the Trust would not be substantively consolidated
with Receivables III, such that the separate corporate existence of Receivables
III, on the one hand, and Holding Trust or the Trust, on the other hand, would
be ignored in the event of a bankruptcy of Receivables III.
(e) No Agency. Receivables III will not act as an agent of
Holding Trust or the Trust in any capacity except to the limited extent provided
in the Transaction Documents, but instead will present itself to the public as a
corporation separate from Holding Trust or the Trust.
SECTION 4.03 Transfer of Conveyed Assets. Each Seller,
Receivables III and each Investor understands that the Trust intends to pledge
the Pledged Property to the Indenture Trustee on behalf of the Noteholders,
pursuant to the Indenture. Each Seller, Receivables III and each Investor agrees
that such assignee of the Trust may exercise the rights of the Trust hereunder
and shall be entitled to all of the benefits of the Trust hereunder to the
extent provided for in such assignment.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 Conditions to Trust Obligations. The obligations of
the Trust to accept the transfer of the Initial Conveyed Assets on the Closing
Date shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, each
Seller, Receivables III and each Investor contained in this Agreement shall be
true and correct on the Closing Date with the same effect as though such
representations and warranties had been made on such date;
(b) All information concerning the Initial Conveyed Assets
provided to the Trust shall be true and correct as of the Initial Cut-Off Date
in all material respects;
(c) Each Seller shall have delivered to the Trust a List of
Initial Contracts with respect to its respective Initial Contracts as of the
Initial Cut-Off Date and shall have substantially performed all other
obligations required to be performed by the provisions of this Agreement;
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(d) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and each Seller shall have recorded and
filed, at its expense, any financing statement with respect to the Initial
Contracts and the other Initial Conveyed Assets to be transferred from time to
time to the Owner Trustee, on behalf of the Trust, from each Seller pursuant to
this Agreement meeting the requirements of applicable state law in such manner
in such jurisdictions as are necessary to perfect the transfer of the Initial
Contracts and the other Initial Conveyed Assets from each such Seller to the
Owner Trustee, on behalf of the Trust, and shall deliver a file-stamped copy of
such financing statements or other evidence of such filings to the Trust;
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Trust, and the Trust shall have
received from each Seller copies of all documents (including, without
limitation, records of corporate proceedings) relevant to the transactions
herein contemplated as the Trust may reasonably have requested; and
(f) All respective conditions necessary to vest in each Seller
good title, free and clear of all Liens (other than Liens permitted in the
proviso contained in Section 4.01(d) hereof), to its respective Initial
Contracts and interests in Original Equipment shall have been satisfied.
ARTICLE VI
TERMINATION
SECTION 6.01 Termination. The respective obligations and
responsibilities of each Seller, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and the Trust created by this
Agreement shall terminate upon the latest of (i) the maturity or other
liquidation of the last Contract and the disposition of any amounts received
upon disposition of any Defaulted Contracts and any Equipment leased thereunder;
and (ii) the termination of the Indenture in accordance with the terms thereof;
provided, however, that the indemnifications contained in Section 4.01(g) herein
shall survive the termination of this Agreement and the other Transaction
Documents.
SECTION 6.02 Effect of Termination.
No termination or rejection or failure to assume the executory
obligations of this Agreement in the bankruptcy of any Seller or the Trust shall
be deemed to impair or affect the obligations pertaining to any executed sale or
executed obligations, including, without limitation, pre-termination breaches of
representations and warranties by any Seller. Without limiting the foregoing,
prior to termination, the failure of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to pay a Repurchase Amount
shall not render such transfer or obligation executory, nor shall the continued
duties of the parties pursuant to Article IV or Section 7.06 of this Agreement
render an executed sale executory.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Agreement may be amended from time
to time by the parties hereto only with (i) the prior written consent of the
Servicer and the Indenture Trustee and (ii) prior written notice to the Rating
Agencies by the Servicer and, to the extent such amendment materially affects
the interests of the Owner Trustee, with the prior written consent of the Owner
Trustee.
SECTION 7.02 GOVERNING LAW. THIS AGREEMENT AND ANY AMENDMENT
HEREOF PURSUANT TO SECTION 7.01 SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED THEREIN AND THE OBLIGATIONS, RIGHTS, AND
REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 7.03 Notices. All demands, notices, and communications
under this Agreement shall be in writing and shall be deemed to have been duly
given, made and received (i) when delivered against receipt of registered or
certified mail or upon actual receipt of registered or certified mail, postage
prepaid, return receipt requested; (ii) when delivered by courier with
appropriate evidence of receipt; or (iii) upon transmission via facsimile or
telex with appropriate evidence of receipt (a) in the case of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
at the following address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇, (b) in the case of Receivables III, at the following
address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Fax No.: (713)
▇▇▇-▇▇▇▇, (c) in the case of First Union, One First Union Center, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 0610, (d) in the case of the
Indenture Trustee, Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust and Agency Group -- Structure & Finance, Fax No.: (212)
▇▇▇-▇▇▇▇, (e) in the case of VFCC, One First Union Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, (f) in the case of FFC, c/o
Nesbitt ▇▇▇▇▇ Securities, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (g) in the case of the Trust, c/o First Union Trust Company, National
Association, One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Administration, Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇, (h)
in the case of the Indenture Trustee at its address set forth in Section 11.06
of the Indenture and (i) in case of the Series 1999-H Trust, c/o Christiana Bank
& Trust Company, Greenville Center, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Attention: Corporate Trust Administration, Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇.
Either party may alter the address to which communications are to be sent by
giving notice of such change of address in conformity with the provisions of
this Section 7.03 for giving notice and by otherwise complying with any
applicable terms of this Agreement, including, but not limited to, subsections
4.01(b) and (c).
27
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SECTION 7.04 Severability of Provisions. If any one or more of
the covenants, agreements, provisions, or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, 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 7.05 Assignment. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the Sellers
or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, without the prior written consent of the Trust and the
Indenture Trustee (acting upon the written direction of the Majority Holders)
and, except as provided in Section 4.03, this Agreement may not be assigned by
the Trust without the prior written consent of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, the Sellers and
the Indenture Trustee. Whether or not expressly stated, all representations,
warranties, covenants and agreements of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Receivables III, the
Investors and the Trust in this Agreement, or in any document delivered by any
of them in connection with this Agreement, shall be for the benefit of, and
shall be exercisable by, the Owner Trustee and the Indenture Trustee for the
benefit of the Noteholders.
SECTION 7.06 Further Assurances. Each of the parties hereto
agrees to do such further acts and things and to execute and deliver to the
Indenture Trustee such additional assignments, agreements, powers and
instruments as are required by the Indenture Trustee to carry into effect the
purposes of this Agreement or to better assure and confirm unto the Indenture
Trustee its rights, powers and remedies hereunder.
SECTION 7.07 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trust or each 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 hereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privilege provided by law.
SECTION 7.08 Counterparts. This Agreement may be executed in two
or more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which shall constitute one and the
same instrument.
SECTION 7.09 Binding Effect: Third-Party Beneficiaries. This
Agreement will inure to the benefit of and be binding upon the parties hereto.
The Indenture Trustee, the Owner Trustee and the Noteholders are intended third
party beneficiaries of this Agreement.
SECTION 7.10 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.
28
32
SECTION 7.11 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 7.12 Schedules and Exhibits. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
SECTION 7.13 No Bankruptcy Petition Against Receivables III or
the Trust. Each of the parties hereto agrees that, prior to the date that is one
year and one day after the payment in full of the latest maturing Notes issued
by the Trust, it will not institute against Receivables III or the Trust, or
join any other Person in instituting against Receivables III or the Trust, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under the laws of the United States or any state of the
United States. This Section 7.13 shall survive the termination of this
Agreement.
[Signature Pages Follow]
29
33
IN WITNESS WHEREOF, the parties hereto have caused this
Receivables Transfer Agreement to be duly executed by their respective officers
as of the day and year first above written.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.,
in its individual capacity
By: /s/ E. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: E. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
FIRST SIERRA RECEIVABLES III, INC., in its
individual capacity and as Junior
Certificateholder of the First Sierra
Equipment Lease Trust 1998-E
By: /s/ E. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: E. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK,
as Certificateholder of the First Sierra
Equipment Lease Trust 1997-A
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
VARIABLE FUNDING CAPITAL CORPORATION, as
Certificateholder of the First Sierra
Equipment Lease Trust 1997-B
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
34
FAIRWAY FINANCE CORPORATION, as Senior
Certificateholder of the First Sierra
Equipment Lease Trust 1998-E
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FIRST SIERRA EQUIPMENT CONTRACT
TRUST 1999-H
By: CHRISTIANA BANK & TRUST COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as Trustee
of each of the First Sierra Equipment
Lease Trust 1997-A, the First Sierra
Equipment Lease Trust 1997-B and the First
Sierra Equipment Lease Trust 1998-E
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FIRST SIERRA EQUIPMENT CONTRACT TRUST
2000-2, A COMMON LAW TRUST ACTING THROUGH
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, NOT IN ITS INDIVIDUAL
CAPACITY BUT SOLELY AS OWNER TRUSTEE, as
Issuer
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
35
Acknowledged and Agreed:
▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE CAPITAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
36
SCHEDULE 1
LIST OF INITIAL CONTRACTS
37
ANNEX A
DEFINED TERMS