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EXHIBIT 10.2
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CONTRIBUTION AGREEMENT
between
T & W FINANCIAL CORPORATION
("Company")
T & W FUNDING COMPANY V, L.L.C.
("Contributor")
T & W FUNDING COMPANY VI, L.L.C.
("Contributor")
and
T & W FUNDING COMPANY I, L.L.C.
("Transferor")
Dated as of February 1, 1997
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TABLE OF CONTENTS
SECTION HEADING PAGE
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ARTICLE 1 DEFINITIONS ................................................................... 2
Section 1.01. Defined Terms ............................................................. 2
ARTICLE 2 DISPOSITION OF LEASE ASSETS ................................................... 3
Section 2.01. Lease Disposition ......................................................... 3
Section 2.02. Lease Acquisition; Delivery of Lease Contracts; Filing of
Financing Statements ...................................................... 3
Section 2.03. Servicing of Lease Contracts and Equipment and Leased
Vehicle ................................................................... 3
Section 2.04. Review of Lease Contracts ................................................. 4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES ................................................ 4
Section 3.01. Representations and Warranties of the Company and the
Contributors .............................................................. 4
Section 3.02. Representations and Warranties of the Transferor .......................... 15
Section 3.03. Purchase or Substitution Required upon Breach of
Certain Representations and Warranties .................................... 17
Section 3.04. Requirements for Purchase or Substitution of Lease
Contracts ................................................................. 17
ARTICLE 4 COVENANTS OF THE COMPANY AND THE CONTRIBUTORS ................................. 19
Section 4.01. Company and Contributor Covenants ......................................... 19
Section 4.02. Transferor Covenants ...................................................... 23
Section 4.03. Assignment of Lease Assets ................................................ 24
ARTICLE 5 CONDITIONS PRECEDENT .......................................................... 24
Section 5.01. Conditions to the Transferor's Obligations ................................ 24
Section 5.02. Conditions to the Company's and the Contributors'
Obligations ............................................................... 25
ARTICLE 6 TERM AND TERMINATION .......................................................... 25
Section 6.01. Term ...................................................................... 25
Section 6.02. Default by the Company or the Contributors ................................ 25
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ARTICLE 7 MISCELLANEOUS ................................................................. 26
Section 7.01. Amendments ................................................................ 26
Section 7.02. Governing Law ............................................................. 26
Section 7.03. Notices ................................................................... 26
Section 7.04. Separability Clause ....................................................... 26
Section 7.05. Assignment ................................................................ 26
Section 7.06. Further Assurances ........................................................ 26
Section 7.07. No Waivers; Cumulative Remedies ........................................... 27
Section 7.08. Binding Effect ............................................................ 27
Section 7.09. Set-Off ................................................................... 27
Section 7.10. Counterparts .............................................................. 27
EXHIBIT A
Form of Supplement Substitute Lease Contracts
EXHIBIT B
Form of Lease Contract
EXHIBIT C
Form of Assignment and Assumption Agreement
EXHIBIT D
Existing Indebtedness of T & W Funding Company VI, L.L.C.
EXHIBIT E
Credit Manual
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This CONTRIBUTION AGREEMENT (herein, as supplemented and amended from
time to time as permitted hereby, this "Agreement"), dated as of February 1,
1997, is entered into by T & W FINANCIAL CORPORATION, a Washington corporation
(herein, together with its permitted successors and assigns, the "Company"), T &
W FUNDING COMPANY V, L.L.C., a Delaware limited liability company, and T & W
FUNDING COMPANY VI, L.L.C., a Delaware limited liability company (herein, each
together with its permitted successors and assigns, a "Contributor" and,
collectively, the "Contributors") and T & W FUNDING COMPANY I, L.L.C., a
Delaware limited liability company (herein, together with its permitted
successors and assigns, the "Transferor").
PRELIMINARY STATEMENT
The Transferor has entered into a Trust and Security Agreement dated as
of February 1, 1997 (the "Trust and Security Agreement"), with Norwest Bank
Minnesota, National Association, as trustee (the "Trustee") and as back-up
servicer (the "Back-up Servicer") and the Company, as Servicer (the "Servicer"),
pursuant to which a series of Certificates will be issued
(the "Certificates").
In furtherance thereof, the Transferor, the Contributors and Company
have entered into this Agreement to provide for, among other things, an
agreement as to the terms of the contribution by the Contributors to the
Transferor of certain of their right, title and interest in and to certain Lease
Assets which the Transferor is and will be conveying to the Trustee; in
addition, the Company is herein making certain covenants, representations and
warranties with respect to Lease Contracts that it originated on behalf of the
Contributors. The Transferor will be conveying to the Trust such Lease Assets
and Lease Contracts, as security for the Certificates. As a precondition to the
effectiveness of this Agreement, the Transferor, the Trustee, the Back-up
Servicer and the Servicer will enter into the Servicing Agreement to provide for
the servicing of the Lease Assets. In connection with the issuance of the
Certificates, each of the Contributors will contribute certain Lease Assets to
the Transferor in exchange for a membership interest in the Transferor and, if
applicable, the assumption by the Transferor of certain debt of the applicable
Contributor pursuant to a separate Assignment and Assumption Agreement entered
into between the Transferor and each Contributor. In connection with the
additional Fundings under the Certificates and pursuant to this Agreement, each
of the Contributors will contribute additional Lease Assets to the Transferor in
return for cash, an assumption of related debt, if any, and an increase, as
necessary, of such Contributor's membership interest in the Transferor. The list
of leases transferred in accordance with this Agreement shall be listed on
Schedule II of each such Assignment and Assumption Agreement.
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In order to further secure the Certificates, the Transferor is conveying
to the Trustee a security interest in, among other things, the rights of the
Transferor derived under this Agreement and the Servicing Agreement, and each of
the Contributors and the Company agrees that all covenants and agreements made
by it in this Agreement with respect to the Lease Assets shall also be for the
benefit and security of the Trustee, the Bond Insurer and the
Certificateholders.
ARTICLE 1
DEFINITIONS
Section 1.01. Defined Terms. For purposes of this Agreement, the
following terms shall have the meanings specified herein. Capitalized terms used
herein but not otherwise defined shall have the respective meanings assigned to
such terms in the Trust and Security Agreement, or if not defined there, in the
Servicing Agreement.
"Company Address" shall mean ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
"Contributor Address" for each Contributor, shall mean ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Eligible Lease Contract" shall mean a Lease Contract that satisfies the
selection criteria set forth in Section 3.01(a) and (b) hereof, provided that
with respect to any Substitute Lease Contract or Additional Lease Contract, as
applicable, any reference in such Section to Cut-Off Date shall be deemed to
refer to the date as of which such Eligible Lease Contract becomes a Substitute
Lease Contract or an Additional Lease Contract, as applicable.
"Transferor Address" shall mean ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Lease Assets" shall mean with respect to the Lease Contracts, the
Contributors' and the Company's interest in (a) the Lease Contracts and the
Lease Receivables, including the proceeds of the Lease Contracts and Lease
Receivables and all payments received on or with respect to the Lease Contracts
and Lease Receivables after the related Cut-Off Date, other than payments of
principal and interest due on the Lease Contracts and Lease Receivables on or
before the related Cut-Off Date, (b) the Lease Contract Files, (c) the Equipment
and any Leased Vehicle (or a security interest in Equipment which is the subject
of a Loan Contract), (d) the Insurance Policies and (e) all income and proceeds
of the foregoing or relating thereto.
"Lease Contract File" shall mean, with respect to each Lease Contract,
the following documents:
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(i) a copy of the Lease Contract, the Certificate of Title or
the Application for Certificate of Title, as applicable;
(ii) any evidence of insurance and any other documents
evidencing or related to any Insurance Policy;
(iii) copies of such documents, if any, that the Company keeps
on file indicating that the Equipment or Leased Vehicle is owned by the
lessor in accordance with its customary procedures relating to an
individual Lease Contract, Customer or Equipment or Leased Vehicle; and
(iv) evidence that the Customer received the Equipment or Leased
Vehicle and that the Equipment or Leased Vehicle was in good working
order and acceptable to the Customer at the time of receipt by the
Customer.
"Substitute Lease Contract" shall have the meaning set forth in
Section 3.04(b) hereof.
"Substitution Criterion" shall have the meaning set forth in
Section 3.04(b).
ARTICLE 2
DISPOSITION OF LEASE ASSETS
Section 2.01. Lease Disposition. In reliance upon the representations,
warranties and covenants set forth in this Agreement and in accordance with the
Trust and Security Agreement, the Transferor will convey the Lease Assets to the
Trust.
Section 2.02. Lease Acquisition; Delivery of Lease Contracts; Filing of
Financing Statements. (a) In return for the respective membership interests and
other rights created by this Agreement, each of the Contributors hereby
transfers, assigns, sells, grants and contributes, or shall contribute, to the
Transferor, without recourse except as provided in Section 3.03 of this
Agreement, on the Closing Date or each Funding Date, as the case may be, any and
all of such Contributor's respective right, title and interest in and to all of
the Lease Assets set forth on Schedule II to respective Assignment and
Assumption Agreement. Each of the Contributors hereby acknowledges that its
respective transfer of the Lease Assets to the Transferor is absolute and
irrevocable, without reservation or retention of any interest whatsoever by such
Contributor.
(b) In connection with the Transferor's disposition of the Lease Assets,
the Company, on behalf of the Transferor and the Contributors, shall deliver the
original Lease Contracts, Certificates of Title or Applications for Certificates
of Title, as applicable, to the Trustee so that
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the Trustee may retain possession thereof as provided in the Transaction
Documents. In addition, the Company agrees to record and file, at its own
expense, financing statements (and thereafter timely continuation statements
with respect to such financing statements) with respect to the Lease Assets,
meeting the timing and filing requirements of the Transaction Documents.
(c) In connection with such acquisition, the Company shall promptly, at
its own expense, cause any Electronic Ledger maintained by it to be marked to
show that the Lease Assets have been acquired by the Transferor in accordance
with this Agreement and transferred by the Transferor to the Trust in accordance
with the Transaction Documents.
Section 2.03. Servicing of Lease Contracts and Equipment and Leased
Vehicle. The Servicer shall service the Lease Contracts and the related Lease
Receivables and Equipment or Leased Vehicle for the benefit of the Transferor
(and its successors and assigns) in accordance with the terms and conditions of
the Transaction Documents. Notwithstanding the foregoing, the Company
acknowledges and agrees that its obligations under this Agreement are
independent of any obligations it may have as Servicer and that its obligations
under this Agreement will continue in full force and effect, whether or not it
is acting as Servicer, until termination of this Agreement in accordance with
Section 6.01 hereof.
Section 2.04. Review of Lease Contracts. If the Company, any of the
Contributors, the Transferor or the Trustee (who shall thereupon notify the
Company) discovers that any Lease Contracts, Certificates of Title or
Applications for Certificates of Title, as applicable, are missing or defective
(that is, mutilated, damaged, defaced, incomplete, improperly dated, clearly
forged or otherwise physically altered) in any material respect, the Company or
the applicable Contributor shall correct or cure such omission, defect or other
irregularity within 30 days from the date the Company or the applicable
Contributor discovered, or is notified by the Trustee, the Bond Insurer or the
Transferor of, such omission or defect within such period. Otherwise, the
Company or the applicable Contributor shall purchase or replace such Lease
Contract from the Transferor in accordance with Section 3.03 hereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Company and the
Contributors. Each of the Contributors and the Company hereby makes the
following representations and warranties to the Transferor and for the benefit
of the Bond Insurer, the Trustee and Certificateholders, on which the Transferor
relies in acquiring the Lease Assets. Such representations and warranties speak
as of the related Cut-Off Date unless otherwise indicated, but shall survive any
subsequent transfer, assignment, contribution or conveyance of the Lease
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Contracts and related Lease Receivables and Equipment or Leased Vehicle. Each of
the Contributors makes the following representations and warranties only with
respect to Lease Assets that it is transferring to the Transferor in accordance
with this Agreement. The Company makes these representations and warranties with
respect to all Lease Contracts, whether transferred to the Transferor in
accordance with this Agreement or originated by the Company on behalf of the
Transferor or an affiliate thereof.
(a) As to each Lease Contract including all Lease Contracts acquired
through bulk purchases:
(i) The information set forth in the related Lease Schedule is
true and correct as of the related Cut-Off Date.
(ii) Such Lease Contract is pursuant to its terms an absolute and
unconditional obligation of the Customer, non-cancellable and
non-prepayable prior to the expiration of the initial term of such Lease
Contract; it does not provide for the substitution, exchange or addition
of any other items of Equipment or Leased Vehicles pursuant to such
Lease Contract; and the rights with respect to such Lease Contract are
assignable by the lessor thereunder without the consent of any Person.
Such Lease Contract is net to the lessor of any maintenance, taxes,
insurance or other expenses and contains provisions requiring the
Customer to assume all risk of loss or malfunction of the related
Equipment or Leased Vehicle.
(iii) Either the Company or one of the Contributors has heretofore
provided to the Trustee the sole original counterpart of such Lease
Contract previously in its possession, as amended, and the terms of such
Lease Contract has not been amended, waived or modified subsequent to
the above being provided to the Trustee, and, if another original
counterpart of such Lease Contract should subsequently come into the
possession of such party hereto, it will also be so provided to the
Trustee. On or prior to the Closing Date, the Company shall have
provided to the Trustee the Application for Certificate of Title with
respect to each Leased Vehicle. Within 120 days of the Closing Date, the
Company shall have provided to the Trustee the original Certificate of
Title with respect to each Leased Vehicle. On or prior to each Funding
Date or date of substitution, as the case may be, the Company shall have
provided to the Trustee the original Certificate of Title with respect
to each Leased Vehicle.
(iv) There is only one original executed counterpart of such Lease
Contract that constitutes "chattel paper" for purposes of
Section 9-105(l)(b) and 9-308 of the UCC, and the Electronic Ledgers
have been marked as provided in Section 2.02(b) hereof.
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(v) Such Lease Contract was not originated in, nor is it subject
to the laws of, any jurisdiction, the laws of which would make unlawful
the sale, transfer or assignment of such document under any of the
Transaction Documents, including any repurchase in accordance with
Transaction Documents.
(vi) Such Lease Contract is, and on the related Funding Date will
be, in full force and effect in accordance with its respective terms,
and neither the Company, any of the Contributors nor any Customer has or
will have suspended or reduced any payments or obligations due or to
become due thereunder by reason of a default by the other party to such
Lease Contract; as of the related Cut-Off Date, the Customer has not
been delinquent in making payments due under such Customer's Lease
Contract for a period in excess of 30 days (without regard to advances,
if any, made by the Servicer), and there are no proceedings pending, or
to the best of the knowledge of the parties hereto, threatened asserting
insolvency of such Customer; there has been no other default, breach or
violation and no event permitting acceleration under such Lease
Contract; there are no proceedings pending, or to the best of the
knowledge of the parties hereto, threatened, wherein such Customer or
any governmental agency has alleged that such Lease Contract is illegal
or unenforceable; and none of the Scheduled Payments are subject to any
set-off or credit of any kind.
(vii) Such Lease Contract is the valid, binding and legally
enforceable obligation of the parties thereto enforceable in accordance
with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights generally and
to general principles of equity regardless of whether enforcement is
sought in a court of law or equity.
(viii) All filings (including Uniform Commercial Code filings) and
recordings as may be necessary to perfect the interest of the Trustee in
such Lease Contract and the related Lease Receivable have been
accomplished and are in full force and effect. All filings and
recordings required to perfect the interest of the Transferor and the
Trustee in the Equipment underlying such Lease Contract have been or
will be, within 30 days of the related Funding Date, accomplished in
accordance with the Transaction Documents and are or will be in full
force and effect.
(ix) Except for Lease Contracts acquired through bulk purchases,
such Lease Contract is identical to one of the form lease contracts
attached as Exhibit B hereto (or a form approved by the
Certificateholders and the Bond Insurer subsequent to the Closing Date),
except for such immaterial modifications or deviations from such form
lease contracts which appear in certain Lease Contracts or which may
appear in the future form
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lease contracts of the Company or either of the Contributors; any such
modifications or deviations from the form lease contracts will not have
a material adverse effect on the Certificateholders or the Bond Insurer
and will not reduce the Scheduled Payments or other payments due under
such Lease Contract; provided, further, the form of Lease Contracts
acquired through bulk purchases will be approved by the Bond Insurer and
the Certificateholders.
(x) Such Lease Contract was originated by the Company on behalf
of one of the Contributors, was purchased by the Company on behalf of
one of the Contributors or was purchased by one of the Contributors in
the ordinary course of business and meets the Company's rating system;
provided, however that no Additional Lease Contract was originated by
the Company. The origination and collection practices used by the
Company with respect to such Lease Contract (or by the originator with
respect to purchased Lease Contracts) have been in all respects legal,
proper, prudent and customary in the equipment and vehicle financing and
servicing business and comply in all material respects to the Company's
underwriting criteria as set forth in the Credit Manual attached hereto
as Exhibit E; and no Customer has been involved as a debtor in any
bankruptcy or insolvency proceeding during the term of the Lease
Contract.
(xi) Any payment required to be made by a Customer subject to a
PUT ("Purchase Upon Termination") clause does not exceed five times the
largest regular rental payment due under such Lease Contract. In
determining whether to lease Equipment or a Leased Vehicle to any
particular Customer, the Company considered each Customer's ability to
pay any PUT payments included in the terms of such Lease Contract.
(xii) Such Lease Contract has an original stated term of at least
six months and not more than 84 months. Such Lease Contract is within
its original term and has not had any extensions or modifications. Such
Lease Contract or assignment has a remaining term of not more than 83
months.
(xiii) The Equipment or Leased Vehicle related to such Lease
Contract was properly delivered to the Customer in good repair, without
defects and in satisfactory order and is in proper working order as of
the related Cut-Off Date. The Customer has accepted such Equipment or
Leased Vehicle leased to it and, after reasonable opportunity to inspect
and test such Equipment or Leased Vehicle, has not notified the Company
or any of the Contributors of any defects therein.
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(xiv) With the exception of the Loan Contracts, such Lease Contract
constitutes a "true lease" for federal income tax purposes. Such Lease
Contract or Loan Contract satisfies such other ratios and tax related
criteria as maybe set forth herein.
(xv) The related Customer will have made at least one lease
payment with respect to such Lease Contract, including any security
deposit or advance payment made by the lessee upon the execution of such
Lease Contract or the delivery of the Equipment or Leased Vehicle. Such
Lease Contract obligates the related Customer to make all Scheduled
Payments thereunder in full notwithstanding the collection by the lessor
of a security deposit with respect thereto. The calculation of the
Implicit Principal Balance of the related Lease Receivable does not
include any security deposits or advance payments collected by or on
behalf of the lessor which are applied to Scheduled Payments.
(xvi) The related Customer is not a lessee that is a merchant with
respect to the Equipment or Leased Vehicle leased under such Lease
Contract.
(xvii) All requirements of applicable federal, State and local laws,
and regulations thereunder, including, without limitation, usury laws,
if any, in respect of such Lease Contract have been complied with in all
material respects, and such Lease Contract complied in all material
respects at the time it was originated or made and now complies in all
material respects with all legal requirements of the jurisdiction in
which it was originated.
(xviii) With the sole exception of the related Customer's right to
quiet enjoyment, such Lease Contract is not and will not be subject to
any right of rescission, set-off, counterclaim or defense, including the
defense of usury, whether arising out of transactions concerning such
Lease Contract or otherwise, and the operation of any of the terms of
such Lease Contract or the exercise by the Transferor or such Customer
of any right under such Lease Contract will not render such Lease
Contract unenforceable in whole or in part, and no such right of
rescission, set-off, counterclaim or defense, including a defense
arising out of a breach of such Customer's right of quiet enjoyment of
the related Equipment or Leased Vehicle, has been asserted with respect
thereto, except that certain rights or defenses may exist under
applicable law which, individually or in the aggregate, do not make the
remedies available to the Company, the Contributor or the Transferor
with respect to such Lease Contract inadequate for the practical
realization of the benefits provided thereby.
(xix) The Company or one of the Contributors has duly fulfilled all
obligations on the lessor's part to be fulfilled under or in connection
with such Lease Contract, including, without limitation, giving any
notices or consents necessary to effect the
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acquisition of the Lease Assets by the Transferor and has done nothing
to impair the rights of the Certificateholders or the Bond Insurer in
the Lease Contract or payments with respect thereto.
(xx) The Lease Contract and the Equipment or Leased Vehicle have
not been sold, transferred, assigned or pledged by the Company or any of
the Contributors to any person other than the Transferor (except for
security interests in the Lease Assets which shall be terminated on or
prior to the Closing Date or the related Funding Date), and the
Transferor has all of the right, title and interest in and to the Lease
Contract, the Lease Receivables and the related Equipment or Leased
Vehicle, free and clear of all liens and encumbrances, except for the
interests of the Customer pursuant to the Lease Contract.
(xxi) Each Lease Contract requires that the Customer maintain the
Equipment or Leased Vehicle in good and workable order and that the
Customer obtain and maintain physical damage insurance, or provide
self-insurance or purchase insurance from the Transferor (which may be
self-insured) covering the Equipment or Leased Vehicle. Insurance
coverage required to be maintained by the Customer under each Lease
Contract is of a type customary for the equipment or vehicle covered
thereby and consistent with industry practice for monitoring compliance
thereof; such insurance coverage is in full force and effect.
(xxii) The related Equipment is not subject to any titling
requirements unless such Equipment is a Leased Vehicle.
(xxiii) Each Lease Contract related to a Leased Vehicle constitutes a
"true lease".
(b) As to the pool of Lease Contracts, including all Lease Contracts
acquired through bulk purchases as of each Cut-Off Date:
(i) Customers located in any single State are obligated with
respect to Lease Contracts accounting for no more than 10% of the
Aggregate Implicit Principal Balance except that Customers located in
(A) Washington are obligated with respect to Lease Contracts accounting
for no more than 45% of the Aggregate Implicit Principal Balance; (B)
each of California and New York are obligated with respect to Lease
Contracts accounting for no more than 20% of the Aggregate Implicit
Principal Balance. Up to 5% of the Aggregate Implicit Principal Balance
of Lease Contracts may be with Customers located in Canada, so long as
such Customers are obligated to pay any withholding taxes over and above
net rental payments.
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(ii) Lease Contracts with Customers located in a particular zip
code do not account for more than 3% of the Aggregate Implicit Principal
Balance.
(iii) No single Customer accounts for more than 2.5% of the
Aggregate Implicit Principal Balance and no ten Customers account for
more than 15% of the Aggregate Implicit Principal Balance.
(iv) Lease Contracts with rental payments that are not fixed for
the remaining term do not exceed 15% of the Aggregate Implicit Principal
Balance.
(v) The computer tape, from which the selection of the Lease
Contracts was made, was made available to the Transferor's accountants
who are providing an agreed upon procedures letter to the Bond Insurer
and the Certificateholders with respect to certain information and such
information was complete and accurate as of its date and includes a
description of the same Lease Contracts that are described in the Lease
Schedule and the payments due thereunder as of the related Cut-Off Date.
(vi) None of the Company or either Contributor used any selection
procedures that identified the Lease Contracts as being less desirable
or valuable than other comparable equipment or vehicle leases owned by
the Company or either Contributor.
(vii) No more than 1% of the Aggregate Implicit Principal Balance
are Lease Contracts made to a lessee who is an individual and who takes
under the lease primarily for a personal, family, or household purpose.
(viii) Lease Contracts containing a PUT clause account for no more
than 10% of the Aggregate Implicit Principal Balance.
(ix) The aggregate Implicit Principal Balance of the Loan
Contracts do not exceed 20% of the aggregate Implicit Principal Balance
of the Lease Contracts; provided, however, on the Closing Date none of
the Lease Contracts are Loan Contracts.
(x) At least 85% of the Aggregate Implicit Principal Balance is
attributable to Lease Contracts that provide that payment of the
Scheduled Payments due thereon are to be made monthly.
(xi) All Lease Contracts are denominated in U.S. dollars.
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(xii) Lease Contracts with a remaining term exceeding 60 months
account for no more than 10% of the Aggregate Implicit Principal
Balance. The weighted average remaining term of the Leases Contracts
does not exceed 48 months.
(xiii) Unless otherwise approved in writing by the Bond Insurer, no
more than 10% of the Aggregate Implicit Principal Balance are Lease
Contracts acquired by the Company or one of the Contributors in a bulk
purchase; provided, however, that no more than 5% of the Aggregate
Implicit Principal Balance are Lease Contracts acquired by the Company
or one of the Contributors from any single entity. The Company has fully
re-underwritten all Customers with Lease Contracts that account for 1%
or more of the Aggregate Implicit Principal Balance.
(xiv) Unless otherwise approved by the Bond Insurer, no more that
25% of the Aggregate Implicit Principal Balance are Lease Contracts with
respect to which the related Equipment relates to Customers in the
restaurant business (as defined by SIC code).
(xv) Unless otherwise approved by the Bond Insurer, no more that
20% of the Aggregate Implicit Principal Balance are Lease Contracts with
respect to which the related Equipment relates to Customers in the
grocery store business (as defined by SIC code).
(xvi) Unless otherwise approved by the Bond Insurer, no more that
15% of the Aggregate Implicit Principal Balance are Lease Contracts with
respect to which the related Equipment relates to Customers in the
refuse system business (as defined by SIC code).
(xvii) Unless otherwise approved by the Bond Insurer, no more that
20% of the Aggregate Implicit Principal Balance are Lease Contracts with
respect to which the related Equipment relates to Customers in the
funeral home and crematory business (as defined by SIC code).
(xviii) Unless otherwise approved by the Bond Insurer, no more that
10% of the Aggregate Implicit Principal Balance are Lease Contracts with
respect to which the related Equipment relates to Customers in any
single industry, except as set forth in clauses (xiv) through (xvii)
above (as defined by SIC code).
(c) As to any Lease Contracts related to a bulk purchase:
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(i) Prior to making any bulk purchase, the Company shall deliver
to the Bond Insurer for review and approval a description of the
Company's policies and procedures with respect to bulk purchases
including, but not limited to, (i) a description of all due diligence
performed on the party from whom the Lease Contracts are purchased; (ii)
a description of any re-underwriting procedures performed by the
Company; and, (iii) any Lease Contract File and legal document review
procedures performed by the Company.
(ii) The Company shall provide all of the same representations,
warranties and covenants for the Lease Contracts acquired through bulk
purchases as for Lease Contracts originated by the Company itself. In
addition, the Company shall represent and warrant that the underwriting
criteria of the originator of the Lease Contracts to be acquired through
bulk acquisitions comply in all material respects with the Company's
underwriting criteria.
(iii) With respect to each bulk purchase, the Company shall fully
re-underwrite all Customers that comprise 1% or more of the Aggregate
Implicit Principal Balance, and on a quarterly basis at the request of
the Bond Insurer, a third party acceptable to the Bond Insurer shall be
permitted to re-underwrite a sample of Lease Contracts acquired through
bulk purchases. This review shall be made at the Company's expense.
(iv) The Company shall provide to the Bond Insurer additional
information with respect to the performance of Lease Contracts acquired
through bulk purchases. This information shall be reported in the format
currently provided for in the Transaction Documents.
(v) The inclusion of the Lease Contracts acquired through bulk
purchases shall not adversely affect the risk assigned by either Rating
Agency to the Bond Insurer in connection with insuring the Certificates.
(vi) On each Funding Date, the Company shall cause to be delivered
to the Trustee and the Bond Insurer an Opinion of Counsel with respect
to the treatment of the transfer from each originator of Lease Assets
acquired through bulk purchase to the Company or either Contributor, as
the case may be, as a "true sale" and the perfected first priority
security interest of the Trustee in such Lease Assets.
(d) As to each of the Company and the Contributors:
(i) Each of the Company and the Contributors has been duly
organized and is validly existing and in good standing as a corporation
or as a limited liability company, as applicable, under the laws of its
jurisdiction of incorporation or formation, as applicable,
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with power and authority to own its properties and to transact the
business in which it is now engaged, and each is duly qualified to do
business in and is in good standing under the laws of each State in
which any Equipment, Leased Vehicle or any Customer is located or is not
required under applicable law to effect such qualification, except where
failure to so qualify would not have a material adverse effect on the
ability of such entity to perform its obligations under the Transaction
Documents or on any of the Lease Contracts, the Lease Receivables or the
Equipment or Leased Vehicles.
(ii) The performance of the obligations of each of the Company and
the Contributors under this Agreement and the other Transaction
Documents and the consummation of the transactions herein and therein
contemplated will not conflict with or result in any breach of any of
the terms or provisions of, or constitute with or without notice, lapse
of time or both, a default under the Certificate of Incorporation or
Bylaws of such entity, or any material indenture, agreement, mortgage,
deed of trust or other instrument to which such entity is a party or by
which it is bound, or result in the creation or imposition of any lien,
charge or encumbrance (except the lien created by the Transaction
Documents) upon any of the property or assets of such entity pursuant to
the terms of such indenture, mortgage, deed of trust, or other agreement
or instrument to which such entity is a party or by which such entity is
bound or to which any of such entity's property or assets is subject,
nor will such action result in any violation of the provisions of such
entity's Certificate of Incorporation or By-laws or any statute or any
order, rule or regulation of any court or any regulatory authority or
other governmental agency or body having jurisdiction over such entity
or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with or other action of any
court, or any such regulatory authority or other governmental agency or
body is required for consummation of the transactions contemplated by
this Agreement and the other Transaction Documents except such consents,
approvals and authorizations which have been obtained or such
registrations or qualifications which have been made.
(iii) This Agreement, the Insurance Agreement (with respect to the
Company only) and any other Transaction Document to which each of the
Company and the Contributors is a party have been duly authorized,
executed and delivered by such entity by all necessary corporate action
and such agreements are the valid and legally binding obligations of
such entity, enforceable against such entity in accordance with their
respective terms, subject as to enforcement to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights generally and
to general principles of equity regardless of whether enforcement is
sought in a court of law or equity.
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(iv) The Company Address is the chief executive office, chief
place of business and the office where the Company keeps its records
concerning the Lease Contracts, Lease Receivables and the Equipment and
Leased Vehicles.
(v) The Contributor Address for each of the Contributors is the
chief executive office, chief place of business and the office where
each of the Contributors keeps its records concerning the Lease
Contracts, the Lease Receivables and the Equipment and Leased Vehicles.
(vi) Each of the Company and the Contributors does not believe,
nor does it have any reasonable cause to believe, that it cannot perform
each and every covenant contained in the Transaction Documents to which
it is a party.
(vii) The transactions contemplated by the Transaction Documents
are being consummated by each of the Company and the Contributors in
furtherance of its ordinary business purposes, with no contemplation of
insolvency and with no intent to hinder, delay or defraud any of its
present or future creditors.
(viii) Neither on the date of the transactions contemplated by the
Transaction Documents or immediately before or after such transactions,
nor as a result of the transactions, will any of the Company or the
Contributors:
(A) be insolvent such that the sum of its debts is
greater than all of its respective property, at a fair
valuation;
(B) be engaged in or about to engage in, business or a
transaction for which any property remaining with the Company or
any of the Contributors will be an unreasonably small capital or
the remaining assets of any of the Company or the Contributors
will be unreasonably small in relation to its respective
business or the transaction; and
(C) have intended to incur or believed it would incur,
debts that would be beyond its respective ability to pay as such
debts mature or become due. The Company's or each Contributor's
assets and cash flow enable it to meet its present obligations
in the ordinary course of business as they become due.
(ix) Both immediately before and after the transactions
contemplated by the Transaction Documents (a) the present fair salable
value of each of the Company's and each Contributor's assets,
respectively, was or will be in excess of the amount that will be
required to pay its probable liabilities as they then exist and as they
become absolute and
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matured; and (b) the sum of each of the Company's and each Contributor's
assets, respectively, was or will be greater than the sum of its debts,
valuing its assets at a fair salable value.
(x) There are no proceedings or investigations pending, or to the
knowledge of either the Company or any of the Contributors, threatened,
against or affecting any of the Company or the Contributors in or before
any court, governmental authority or agency or arbitration board or
tribunal (including, but not limited to any such proceeding or
investigation with respect to any environmental or other liability
resulting from the ownership or use of any of the Equipment or Leased
Vehicles) which, individually or in the aggregate, involve the
possibility of materially and adversely affecting the properties,
business, prospects, profits or condition (financial or otherwise) of
either the Company or the Contributors, or the ability of either the
Company or any of the Contributors to perform its obligations under the
Transaction Documents to which it is a party. Neither the Company nor
any of the Contributors is in default with respect to any order of any
court, governmental authority or agency or arbitration board or
tribunal.
(xi) All tax returns or extensions required to be filed by each of
the Company and the Contributors in any jurisdiction have in fact been
filed, and all taxes, assessments, fees and other governmental charges
upon each entity, or upon any of the respective properties, income or
franchises shown to be due and payable on such returns have been, or
will be, paid. To the best of the knowledge of the Company and each of
the Contributors, all such tax returns are true and correct and each
entity has no knowledge of any proposed additional tax assessment
against it in any material amount nor of any basis therefor.
(xii) Neither the Company nor any of the Contributors (i) is in
violation of any laws, ordinances, governmental rules or regulations to
which it is subject, (ii) has failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the
ownership of its property or to the conduct of its business, and
(iii) is in violation in any material respect of any term of any
agreement, charter instrument, bylaw or instrument to which it is a
party or by which it may be bound which violation or failure to obtain
might materially adversely affect the business or condition (financial
or otherwise) of the Company or any of the Contributors.
(xiii) This Agreement does not contain any untrue statement of
material fact or omit to state a material fact necessary to make the
statements contained herein and therein not misleading.
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(xiv) It is the intention of the Company and each of the
Contributors that the Lease Assets are owned by the Transferor and that
the beneficial interest in and title to the Lease Assets are not part of
the Company's or any of the Contributors' estate in the event of the
filing of a bankruptcy petition by or against the Company or either of
the Contributors under any bankruptcy law.
(xv) Immediately prior to the pledge and grant to the Trustee of a
security interest in the Lease Assets by the Transferor pursuant to the
Trust and Security Agreement, the Transferor was the sole owner of the
Lease Contracts and the related Leased Vehicle or the related Equipment
(with the exception of Equipment which is the subject of a Loan
Contract, as to which the Transferor has a valid security interest in
the related Equipment), the Transferor had good and marketable title
thereto, free and clear of all liens, claims and encumbrances (except
for the security interests in the Lease Assets which shall be terminated
on or prior to the Closing Date or the related Funding Date) and as of
such time the Transferor owned no other assets other than the Lease
Assets and the accounts established under the Trust and Security
Agreement.
(xvi) The Contributors are the registered owners of all of the
membership interests of the Transferor, all of which are fully paid and
nonassessable and owned of record, free and clear of all mortgages,
assignments, pledges, security interest, warrants, options and rights to
purchase.
(xvii) Each of the Company, the Contributors, the Transferor and
their shareholders and members shall treat the Lease Contracts as owned
by the Transferor for Federal, State and local income tax purposes,
shall report and include in the computation of the Transferor's gross
income for such purposes in its consolidated or combined return the
rental and other income from the Lease Contracts, shall treat the
Certificates as debt of the Transferor for such purposes, and shall
cause the Transferor to deduct the interest paid or accrued with respect
to the Certificates in accordance with its applicable method of
accounting for such purposes.
(xviii) Each of the Company and the Contributors are in compliance
with the Employee Retirement Income Security Act of 1974, as amended.
(xix) None of the Contributors will incur any indebtedness or
transact any business other than that contemplated by the Transaction
Documents as set forth in Exhibit D hereto.
Section 3.02. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to, and agrees with the Company and
the Contributors for the
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benefit of the Bond Insurer, the Trustee and Certificateholders, on which each
of the Company and the Contributors relies in entering into this Agreement with
the Transferor. Such representations and warranties speak as of the related
Cut-Off Date unless otherwise indicated, but shall survive any subsequent
transfer, assignment, contribution or conveyance of the Lease Contracts and
related Lease Receivables and Equipment or Leased Vehicles.
(a) The Transferor has been duly organized and is validly existing in
good standing as a special purpose limited liability company under the laws of
the State of Delaware, with power and authority to own its properties, perform
its obligations under the Transaction Documents and to transact the business in
which it is now engaged or in which it proposes to engage; the Transferor is
duly qualified to do business and is in good standing in each State in which the
nature of its business requires it to be so qualified, except where failure to
so qualify would not have a material adverse effect on the ability of the
Transferor to perform its obligations under the Transaction Documents.
(b) The transfer to and receipt by the Transferor of the Lease Contracts
and the related Lease Receivables and the Equipment or Leased Vehicles pursuant
to this Agreement and the consummation of the transactions contemplated herein
and in the Transaction Documents will not conflict with or result in breach of
any of the terms or provisions of, or constitute (with or without notice, lapse
of time or both) a default under the Certificate of Formation or Limited
Liability Company Agreement of the Transferor or any material indenture,
agreement, mortgage, deed of trust or other instrument to which the Transferor
is a party or by which it is bound, or result in the creation or imposition of
any lien, charge or encumbrance (except for the lien created by the Trust and
Security Agreement) upon any of the property or assets of the Transferor
pursuant to the terms of, such indenture, mortgage, deed of trust, or other
agreement or instrument to which the Transferor is a party or by which it is
bound or to which any of the property or assets of the Transferor is subject,
nor will such action result in any violation of the provisions of the
Certificate of Formation or Limited Liability Company Agreement of the
Transferor or any statute or any order, rule or regulation of any court or
regulatory authority or other governmental agency or body having jurisdiction
over the Transferor or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with or other action
of any court or any such regulatory authority or other governmental agency or
body is required for the acquisition of the Lease Contracts and the related
Lease Receivables and the Equipment or Leased Vehicles hereunder.
(c) The Transaction Documents have been duly authorized, executed and
delivered by the Transferor by all necessary action and constitute valid and
legally binding obligations of the Transferor enforceable against the Transferor
in accordance with their terms, subject as to enforcement to bankruptcy,
insolvency, reorganization and other similar laws of general
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applicability relating to or affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is sought in a
court of equity or law.
(d) There are no proceedings or investigations to which the Transferor
is a party pending or, to the knowledge of the Transferor, threatened, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by the Transaction Documents, or
(iii) seeking any determination or ruling that would materially and adversely
affect the performance by the Transferor of its obligations under, or the
validity or enforceability of, the Transaction Documents to which it is a party.
(e) All approvals, authorizations, consents, orders or other actions of
any Person or of any court, governmental agency or body or official, required in
connection with the execution and delivery of this Agreement, have been or will
be taken or obtained on or prior to the Closing Date or the related Funding
Date.
(f) The Transferor Address is the principal place of business and chief
executive office of the Transferor.
(g) Since the formation of the Transferor (i) the Transferor has engaged
solely in the acquisition, ownership, leasing, selling and pledging of equipment
and vehicles pursuant to lease contracts substantially in the form attached
hereto as Exhibit B originated by the Company on behalf of the Transferor and
the exercise of any powers permitted to limited liability companies under the
limited liability company law of the State of Delaware which are incidental to
the foregoing or necessary to accomplish the foregoing; (ii) the Transferor has
incurred no debt other than trade payables and expense accruals in connection
with its operations in the normal course of business; (iii) the Transferor has
maintained its books and records separate from the books and records of any
other entity, has maintained separate bank accounts and no funds of the
Transferor have been commingled with funds of any other entity; (iv) the
Transferor has kept in full effect its existence, rights and franchises as a
limited liability company under the laws of the State of Delaware, and has
obtained and preserved its qualification to do business as a foreign limited
liability company in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of the Lease Contracts;
(v) the Transferor does not own any subsidiary and has not loaned or advanced
any moneys to, or made an investment in, any Person; (vi) the Transferor has not
made any capital expenditures; (vii) the Transferor has not guaranteed (directly
or indirectly), endorsed or is otherwise contingently liable (directly or
indirectly) for the obligations of, or own or purchased any stock, obligations
or securities of or any other interest in, or made any capital contribution to,
any Person; and (viii) the Transferor has not engaged in any other action that
bears on whether the separate legal identity of the
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Transferor will be respected, including without limitation (1) has not held
itself out as being liable for the debts of any other party, (2) has not acted
other than in its corporate name and through its duly authorized officers or
agents, and (3) has not created, incurred, assumed, or in any manner became
liable in respect of any indebtedness other than trade payables and expense
accruals incurred in the ordinary course of business and which are incidental to
its business purpose.
Section 3.03. Purchase or Substitution Required upon Breach of Certain
Representations and Warranties. Upon discovery by the Company, any of the
Contributors or the Transferor of the breach of any representations or
warranties set forth in Sections 3.01 and 3.02 hereof which materially and
adversely affects the value of a Lease Contract, the related Equipment or Leased
Vehicle, or the interests of the Certificateholders or of the Bond Insurer, or a
breach of any of the representations and warranties set forth in Sections
3.01(a)(i), 3.01(a)(ii), 3.01(a)(iii), 3.01(a)(v), 3.01(a)(vii) or 3.01(a)(xx),
the party discovering such breach shall give prompt written notice to the other
parties, the Bond Insurer and to the Trustee. Each of the Company and the
Contributors shall, within 30 days from the date such entity was notified of, or
otherwise discovers, such breach, cure such breach, or, (1) if the breach
relates to a particular Lease Contract and is not cured (as the liquidated
damages remedy therefor), either (a) purchase such Lease Contract and the
related Equipment or Leased Vehicle from the Transferor at the Purchase Price or
(b) provide a Substitute Lease Contract or (2) if the breach relates to a
representation or warranty regarding the selection criteria of the Lease
Contracts as a whole and is not cured by the Company or the Contributor, either
(a) purchase such non-conforming Lease Contracts and the related Equipment or
Leased Vehicle from the Transferor or (b) provide Substitute Lease Contracts as
set forth above, so that the representations and warranties with respect to the
selection criteria are correct, as evidenced by a certificate of an officer of
the Company or the applicable Contributor to the Trustee. The Purchase Price for
a purchased Lease Contract and the related Equipment or Leased Vehicle shall be
paid, and any Substitute Lease Contract shall be delivered, by the Company or
the applicable Contributor to the Transferor in accordance with Section 3.04(c)
hereof. It is understood and agreed that the obligation of the Company and the
Contributor to cure or purchase or replace any Lease Contract as to which such a
breach has occurred shall constitute the sole remedy respecting such breach
available to the Transferor, the Certificateholders or the Trustee on behalf of
the Certificateholders (except for any indemnities provided under
Section 4.01(j) hereof or under the Trust and Security Agreement) for any
losses, claims, damages and liabilities arising from the Transferor's ownership
of such Lease Contract or the inclusion of such Lease Contract in the Trust
Property.
Section 3.04. Requirements for Purchase or Substitution of Lease
Contracts. (a) If the Company or any of the Contributors is required to purchase
any Lease Contract under Section 3.03 or if the Transferor is required or elects
to purchase any Lease Contract under Section 3.10 of the Servicing Agreement,
such Lease Contract shall be purchased by the
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Company or the applicable Contributor at the Purchase Price. All purchases shall
be accomplished at the times specified in subsection (c) below.
(b) If the Company or any of the Contributors is required to substitute
any Lease Contract under Section 3.03, or if the Transferor is required or
elects to substitute any Lease Contract under Section 3.10 of the Servicing
Agreement (a "Substitute Lease Contract"), each such Substitute Lease Contract
shall (i) be an Eligible Lease; (ii) be with respect to types of Equipment,
types of Leased Vehicles and types of Customers represented in the pool of Lease
Contracts previously pledged to the Trustee pursuant to the Trust and Security
Agreement; (iii) be with a Customer whose credit is equal to or better than that
of the Customer under the withdrawn Lease Contract; (iv) be written on one of
the standard lease forms attached as Exhibit B to this Agreement; (v) be
accompanied by (A) a supplement to this Agreement substantially in the form of
Exhibit A hereto subjecting such Lease Contract to the provisions hereof and
providing with respect to such Substitute Lease Contract the information
required in the Lease Schedule and (B) evidence of the UCC filings required as
set forth in the Trust and Security Agreement; and (vi) not have been selected
using procedures that identified the Lease Contracts as being less desirable or
valuable than other comparable equipment or vehicle leases owned by the Company
or any of the Contributors. In addition, such Substitute Lease Contracts shall
meet the following substitution criterion (collectively, the "Substitution
Criterion"):
(1) Such Substitute Lease Contracts have an aggregate Implicit
Principal Balance at least equal to the aggregate Implicit Principal
Balance of the Lease Contracts being withdrawn; and
(2) Such Substitute Lease Contracts have a weighted average
remaining term (determined based upon the Implicit Principal Balance of
such Substituted Lease Contracts) that is not more than 33% longer or
shorter than the weighted average remaining term of the Lease Contracts
being withdrawn (determined based upon the Implicit Principal Balance of
such withdrawn Lease Contracts).
A Substitute Lease Contract may have scheduled payments that are due
after the last day of the month preceding the stated maturity of the
Certificate, but such payments shall not be counted in any Implicit Principal
Balance computation. Upon a substitution as described in this Section 3.04(b),
either the Company or the Contributor shall also pay any past due lease payments
not received through the Calculation Date preceding the date on which the
substitution occurs. Upon the substitution of any Substitute Lease Contract
pursuant to the provisions of this Section 3.04(b), each of the Company and the
Contributors hereby agrees that such Substitute Lease Contract will be subject
to all the terms and provisions of this Agreement, the Servicing Agreement and
the Trust and Security Agreement just as if such Substitute Lease Contract had
been one of the original Lease Contracts acquired on the Closing Date or the
related Funding
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Date. Upon the substitution of a Substitute Lease Contract pursuant to this
Section 3.04(b), the Transferor, the Contributors and the Company shall also
comply with the provisions and limitations set forth in the Trust and Security
Agreement. All substitutions shall be accomplished at the time specified in
subsection (c) below.
(c) Any purchase or substitution of a Lease Contract by the Company or
any of the Contributors in accordance with Section 3.03 hereof or this
Section 3.04 or by the Transferor under Section 3.10 of the Servicing Agreement
shall be made either by remittance of the Purchase Price to the Servicer for
deposit into the Collection Account in accordance with Section 3.03(a) of the
Servicing Agreement or by substitution of a Substitute Lease Contract, as
applicable, following the expiration of the cure period set forth in
Section 3.03 hereof.
(d) Any voluntary purchase or substitution of a Lease Contract by the
Transferor pursuant to the terms of a related Servicing Agreement or Trust and
Security Agreement in the event of a default, delinquency or modification with
respect to such Lease Contract shall satisfy the same requirements for a
purchase or substitution, as the case may be, as are set forth in this
Section 3.04.
ARTICLE 4
COVENANTS OF THE COMPANY AND THE CONTRIBUTORS
Section 4.01. Company and Contributor Covenants. Each of the Company and
the Contributors hereby covenants and agrees with the Transferor as follows:
(a) Except as hereinafter provided, such entity 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 in which such qualification is or shall
be necessary to protect the validity and enforceability of this
Agreement or any of the Lease Contracts and to perform its duties
hereunder. Any person into which such entity may be merged or
consolidated, or to whom such entity has sold substantially all of its
assets, or any corporation resulting from any merger, conversion or
consolidation to which such entity shall be a party, or any Person
succeeding to the business of such entity shall be the successor of such
entity hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided, however, that (w) immediately
after giving effect to such transaction, no representation or warranty
made pursuant to Section 3.01(c) shall have been breached, (x) such
successor executes an agreement or assumption, in form reasonably
satisfactory to the Trustee and the Bond Insurer, to perform every
obligation under this Agreement, (y) such entity shall have
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delivered to the Transferor and the Bond Insurer a certificate of an
officer of such entity and an Opinion of counsel each stating that such
consolidation, merger, or succession and such agreement of assumption
complies with this Section 4.01 and that all conditions precedent, if
any, provided for in this Agreement relating to such transaction have
been complied with, and (z) such entity shall have delivered to the
Transferor and the Bond Insurer an Opinion of Counsel either (1) stating
that, in the 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 Transferor in the Lease Assets 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.
(b) Neither the Company nor any of the Contributors, nor any of
the directors, officers, employees or agents of any such entity shall be
under any liability to the Transferor, the Trustee or the
Certificateholders for any action taken or for refraining from the
taking of any action in good faith pursuant to this Agreement, or for
errors in judgment not involving recklessness or gross negligence;
provided, however, that this provision shall not protect either such
entity against any breach of warranties or representations made herein,
or failure to perform its obligations in strict compliance with this
Agreement, or any liability which would otherwise be imposed by reason
of any breach of the terms and conditions of this Agreement. The
Company, the Contributors and any director, officer, employee or agent
of any such entity, may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. Neither the Company nor any of the
Contributors shall be under any obligation to appear in, prosecute, or
defend any legal action that is not incidental to its obligations under
this Agreement and that in its opinion may involve it in any expense or
liability.
(c) Each of the Company and the Contributors will from time to
time, at its own expense, execute and file such additional financing
statements (including continuation statements) as may be necessary to
preserve the security interests and liens described in
Section 3.01(a)(viii) and are reasonably satisfactory in form and
substance to the Transferor; provided, however, that financing
statements with respect to the Equipment shall be filed only with
respect to the Equipment initially located in the Enumerated States and
neither the Company nor any of the Contributors will be required to file
any financing statements with any Customer as Debtor.
(d) Neither the Company nor any of the Contributors will change
its name, identity or corporate structure in any manner that would,
could, or might make any financing statement or continuation statement
misleading within the meaning of
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Section 9-402(7) of the UCC, unless it shall have given the Transferor,
the Bond Insurer and the Trustee at least 10 days' prior written notice
thereof.
(e) Each of the Company and the Contributors will give the
Transferor, the Bond Insurer and the Trustee at least 10 days' prior
written notice of any relocation of its principal executive office if,
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.
(f) Each of the Company and the Contributors will duly fulfill
all obligations on its part to be fulfilled under or in connection with
each Lease Contract, will not change or modify the terms of the Lease
Contracts except as expressly permitted by the terms of the Transaction
Documents and will do nothing to impair the rights of the Transferor or
the Trustee in the Lease Contracts or the Equipment or Leased Vehicles.
In the event that the rights of the Company or any of the Contributors
under any Lease Contract, any guaranty of the related Customer's
obligations under any Lease Contract, or any Insurance Policy are not
assignable to the Transferor or to the Trustee, each of the Company and
the Contributors will enforce such rights on behalf of the Trustee.
(g) Each of the Company and the Contributors will comply, in all
material respects, with all material acts, rules, regulations, orders,
decrees and directions of any governmental authority applicable to the
Lease Assets or any part thereof; provided, however, that each of the
Company and the Contributors may contest any act, regulation, order,
decree or direction in any reasonable manner which shall not materially
and adversely affect the rights of the Transferor or the Trustee in the
Lease Assets.
(h) Each of the Company and the Contributors will advise the
Transferor, the Bond Insurer and the Trustee promptly, in reasonable
detail, of the occurrence of any breach by the Company or any of the
Contributors following discovery by the Company or any of the
Contributors of such breach of any of its representations, warranties
and covenants contained herein.
(i) Each of the Company and the Contributors will execute or
endorse, acknowledge, and deliver to the Transferor, the Bond Insurer
and the Trustee from time to time such schedules, confirmatory
assignments, conveyances, and other reassurances or instruments and take
such further similar actions relating to the Lease Contracts, the
related Lease Receivables and Equipment or Leased Vehicles, and the
rights covered by the Transaction Documents, as the Transferor, the Bond
Insurer or the Trustee may reasonably request to preserve and maintain
title to the Lease Assets and the rights of the
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Trustee, the Bond Insurer and the Certificateholders therein against the
claims of all persons and parties.
(j) Each of the Company and the Contributors agrees to
indemnify, defend and hold the Transferor harmless from and against any
and all loss, liability, damage, judgment, claim, deficiency or expense
(including interest, penalties, reasonable attorney's fees and amounts
paid in settlement) that is caused by (i) a breach at any time by the
Company or any of the Contributors of its representations, warranties
and covenants contained in Section 3.01 hereof or this Section 4.01 or
(ii) any material information furnished by the Company or any of the
Contributors which is set forth in any Lease Schedule delivered
hereunder, being untrue in any respect when any such representation was
made or schedule delivered, provided that neither the Company nor any of
the Contributors shall have any liability with respect to a
representation or warranty as to any specific Lease Contract, Lease
Receivable, Equipment or Leased Vehicle other than to purchase such
Lease Contract or substitute for such Lease Contract in accordance with
Section 3.03 hereof unless such breach of representation or warranty is
the result of the Company's or the applicable Contributor's fraud, gross
negligence, bad faith or willful misconduct. Each of the Company and the
Contributors shall also indemnify the Trustee, the Servicer and the Bond
Insurer for any cost or expenses incurred by them in the enforcement of
this Agreement. The obligations of the Company and the Contributors
under this Section 4.01(j) shall be considered to have been relied upon
by the Transferor and shall survive the execution, delivery and
performance of this Agreement, regardless of any investigation made by
or on behalf of the Transferor, until termination of the Trust and
Security Agreement. If the Company or any of the Contributors has made
any indemnity payments pursuant to this Section 4.01(j) and thereafter
the recipient collects any of such amounts from others, such party will
promptly repay the amount collected to the Company or the applicable
Contributor, as applicable, without interest.
(k) Neither the Company nor any of the Contributors will do
anything to disturb or impair the acquisition hereunder by the
Transferor of the Lease Contracts and the related Lease Receivables and
Equipment or Leased Vehicles.
(l) Each of the Company and the Contributors (i) will
(A) maintain its books and records separate from the books and records
of the Transferor and (B) maintain bank accounts separate from those of
the Transferor and (ii) will not (x) take any action that would cause
the dissolution or liquidation of the Transferor, (y) guarantee
(directly or indirectly), endorse or otherwise become contingently
liable (directly or indirectly) for the obligations of the Transferor,
or (z) for one year and one day after the termination of this Agreement
institute
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against the Transferor, or join any other person in instituting against
the Transferor, any case, proceeding or other action under any existing
or future bankruptcy, insolvency or similar laws. This subsection (1)
shall survive termination of this Agreement.
(m) Each of the Company and the Contributors shall notify the
Transferor, the Bond Insurer and the Trustee promptly after becoming
aware of any material Lien on any Lease Asset.
(n) On each date as of which the Company or the applicable
Contributor substitutes a Substitute Lease Contract in accordance with
Section 3.03 hereof, the Company shall provide to the Transferor a
supplement to this Agreement substantially in the form of Exhibit A
hereto subjecting such Lease Contract to the provisions hereof and
providing with respect to such Substitute Lease Contract the information
required in the Lease Schedule.
(o) The annual financial statements of the Company and the
Contributors will disclose the effects of the transactions contemplated
by the Transaction Documents in accordance with generally accepted
accounting principles. The financial statements of the Company, the
Contributors and the Transferor will also disclose that the assets of
the Transferor are not available to pay creditors of the Company or any
of the Contributors, as applicable. The resolutions, agreements and
other instruments underlying the Transaction Documents will be
continuously maintained by each of the Company and the Contributors as
official records.
(p) Each of the Company, the Contributors, the Transferor and
their shareholders and members shall treat the Lease Contracts as owned
by the Transferor for federal, State and local income tax purposes,
shall include in the computation of the Transferor's gross income for
such purposes the rental and other income from the Lease Contracts,
shall treat the Certificates as debt of the Transferor for such
purposes, and shall cause the Transferor to deduct the interest paid or
accrued with respect to the Certificates in accordance with its
applicable method of accounting for such purposes.
(q) The Company will, at its own cost and expense, (i) retain
the Electronic Ledger as a master record of the Lease Contracts,
Equipment and Leased Vehicles and copies of all documents relating to
each Lease Contract (other than the original executed Lease Contracts
and the original Certificates of Title) as custodian for the Transferor,
the Trustee and other Persons, if any, with interests in the Lease
Contracts, Equipment and Leased Vehicles and (ii) ▇▇▇▇ the Lease
Contracts and the Electronic Ledger to the effect that the Lease
Contracts, Equipment and Leased Vehicles have been acquired by the
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Transferor and that they have been transferred and assigned to the
Trustee pursuant to the Trust and Security Agreement.
(r) During the term of this Agreement and for one year and one
day after the termination hereof, none of the Company or the
Contributors will file any involuntary petition or otherwise institute
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or
similar law against the Transferor.
Section 4.02. Transferor Covenants. The Transferor hereby covenants and
agrees with the Company and the Contributors as follows:
(a) The Transferor hereby acknowledges and agrees that its
rights in the Equipment and Leased Vehicles are expressly subject to the
rights of the related Customers in such Equipment and Leased Vehicles
pursuant to the applicable Lease Contract. The Transferor covenants and
agrees that, so long as a Customer shall not be in default of any of the
provisions of the applicable Lease Contract, neither the Transferor nor
any assignee of the Transferor will disturb the Customer's quiet and
peaceful possession of the related Equipment and Leased Vehicles and the
Customer's unrestricted use thereof for its intended purpose.
(b) On each date as of which Lease Contracts and the related
Equipment or Leased Vehicles are to be purchased or replaced by the
Company or a Contributor, as applicable, pursuant to Section 3.03, the
Transferor shall submit to the Company an instrument of assignment
assigning such Lease Contract and Equipment or Leased Vehicle to the
Company or a Contributor, as applicable, signed by the president, senior
vice president or any vice president of the Transferor. Each such
assignment shall operate as an assignment, without recourse,
representation, or warranty, to the Company or a Contributor, as
applicable, of all of the Transferor's right, title, and interest in and
to such Lease Contract, Equipment, Leased Vehicle and any security
documents relating thereto, such assignment being an assignment outright
and not for security, and upon payment of the Purchase Price or delivery
of a Substitute Lease Contract, the Company or a Contributor, as
applicable, will thereupon own such Lease Contract and all such security
and documents, free of any further obligation to the Transferor with
respect thereto. If in any enforcement suit or legal proceeding it is
held that the Company or a Contributor, as applicable, may not enforce a
Lease Contract on the ground that it is not a real party in interest or
holder entitled to enforce the Lease Contract, the Transferor shall, at
the Transferor's expense, take such steps as the Transferor deems
necessary to enforce the Lease Contract, including bringing suit in the
Transferor's name.
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(c) The Transferor warrants that it will own and possess the
Equipment and Leased Vehicles subsequent to its acquisition thereof and
that it will warrant and defend its title to such Equipment or Leased
Vehicle against all Persons, claims and demands whatsoever. The
Transferor shall not assign, sell, pledge, or exchange, or in any way
encumber or otherwise dispose of the Equipment or Leased Vehicle, except
as permitted under the Trust and Security Agreement.
(d) Each of the Company, the Contributors, the Transferor and
their shareholders shall treat the Lease Contracts as owned by the
Transferor for federal, State and local income tax purposes, shall
include in the computation of the Transferor's gross income for such
purposes the rental and other income from the Lease Contracts, shall
treat the Certificates as debt of the Transferor for such purposes, and
shall cause the Transferor to deduct the interest paid or accrued with
respect to the Certificates in accordance with its applicable method of
accounting for such purposes.
(e) On or prior to the Closing Date, the Transferor shall
provide to the Trustee the Applications for Certificates of Title with
respect to each Leased Vehicle. Within 120 days of the Closing Date, the
Transferor shall provide the Trustee the original Certificate of Title
with respect to each Leased Vehicle.
Section 4.03. Assignment of Lease Assets. Each of the Company and the
Contributors understands that the Transferor will assign to and grant to the
Trustee a security interest in all its right, title and interest to this
Agreement and the Lease Assets. Each of the Company and the Contributors
consents to such assignment and grants and further agrees that all
representations, warranties, covenants and agreements the Company and the
Contributors made herein shall also be for the benefit of and inure to the
Trustee, the Bond Insurer and the Certificateholders.
ARTICLE 5
CONDITIONS PRECEDENT
Section 5.01. Conditions to the Transferor's Obligations. The
obligations of the Transferor hereunder shall be subject to the satisfaction of
the following conditions:
(a) All representations and warranties of each of the Company
and the Contributors contained in this Agreement and all information
provided in the Lease Schedule shall be true and correct on the Closing
Date and the related Funding Date, and each of the Company and the
Contributors shall have delivered to the Transferor, the Bond Insurer
and the Trustee an Officer's Certificate to such effect;
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(b) Each of the Company and the Contributors shall have
delivered all other information theretofore required or reasonably
requested by the Transferor to be delivered by the Company and each of
the Contributors hereunder, duly certified by an officer of
the Company or the Contributor, as applicable, and each of the Company
and the Contributors shall have substantially performed all other
obligations required to be performed by the provisions of this
Agreement;
(c) On or before the Closing Date, the Transferor, the Servicer,
the Back-Up Servicer and the Trustee shall have entered into the
Servicing Agreement; and
(d) The Certificates shall be issued and sold on the Closing
Date, and the Transferor shall receive the full consideration due it
upon the issuance of such Certificates.
Section 5.02. Conditions to the Company's and the Contributors'
Obligations. The obligations of the Company and the Contributors to enter into
this Agreement shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Transferor
contained in this Agreement shall be true and correct on the Closing
Date and the related Funding Date with the same effect as though such
representations and warranties had been made on such date; and
(b) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement and the
Transaction Documents shall be satisfactory in form and substance to
each of the Company and the Contributors, and each of the Company and
the Contributors shall have received from the Transferor copies of all
documents (including, without limitation, records of corporate
proceedings) relevant to the transactions herein contemplated as each of
the Company and the Contributors may reasonably have requested.
ARTICLE 6
TERM AND TERMINATION
Section 6.01. Term. This Agreement shall commence as of the date of
execution and delivery hereof and, shall continue in full force and effect until
the later of (i) payment with respect to the last Lease Asset or
(ii) termination of the Trust and Security Agreement.
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Section 6.02. Default by the Company or the Contributors. If either of
the Company or any of the Contributors shall be in default under this Agreement
and such default shall not have been cured for a period of 60 days, or if either
of the Company or any of the Contributors shall become insolvent or make an
assignment for the benefit of its creditors or have a receiver appointed for all
or substantially all of its properties, or if any proceedings are commenced, or
consented to, by the Company or any of the Contributors, as applicable, are not
stayed or dismissed within 90 days after being commenced against the Company or
any of the Contributors, as applicable, under any bankruptcy, insolvency or
other law for the relief of debtors, the Transferor shall have the right with
the prior written consent of the Bond Insurer, in addition to any other rights
it may have under any applicable law, to terminate this Agreement upon 30 days
prior written notice to the Company or any of the Contributors, as applicable;
provided that any termination of this Agreement shall not release the Company or
any of the Contributors from any obligation under this Agreement.
ARTICLE 7
MISCELLANEOUS
Section 7.01. Amendments. This Agreement and the rights and obligations
of the parties hereunder may not be changed orally but only by an instrument in
writing signed by the party against which enforcement is sought. This Agreement
may be amended by the Transferor, the Contributors and the Company only with the
prior written consent of the Trustee and the Bond Insurer.
Section 7.02. Governing Law. This Agreement shall be construed in
accordance with the internal laws of the State of New York, without regard to
choice of law principals.
Section 7.03. Notices. All demands, notices and communications hereunder
shall be in writing and shall be delivered or mailed by registered or certified
United States mail, postage prepaid, and addressed, in the case of the Company,
to the Company Address, in the case of each of the Contributors, to the
Contributor Address, in the case of the Transferor, to the Transferor Address
and in the case of the Bond Insurer, to the address set forth in
Section 13.03(e) of the Trust and Security Agreement. All notices and demands
shall be deemed to have been given either at the time of the delivery thereof to
any officer of the Person entitled to receive such notices and demands at the
address of such Person for notices hereunder, or on the third day after the
mailing thereof to such address, as the case may be. Any Person may change the
address for notices hereunder by giving notice of such change to the other
Person.
Section 7.04. Separability Clause. Any provisions of this Agreement
which are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the
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extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 7.05. Assignment. Except as provided in Section 4.01(a) hereof,
this Agreement may not be assigned or delegated by the Company or any of the
Contributors without the prior written consent of the Transferor, the Bond
Insurer and the Trustee and may not be assigned or delegated by the Transferor
without the prior written consent of the Company, the Contributors, the Bond
Insurer and the Trustee.
Section 7.06. Further Assurances. Each of the Company, the Contributors
and the Transferor agrees to do such further acts and things and to execute and
deliver to the Trustee such additional assignments, agreements, powers and
instruments as are required by the Trustee or the Bond Insurer to carry into
effect the purposes of this Agreement or to better assure and confirm unto the
Trustee, the Bond Insurer or the Certificateholders their rights, powers or
remedies hereunder. If any Customer shall be in default under any Lease
Contract, upon reasonable request from the Servicer, each of the Company and the
Contributors will take all reasonable steps to assist in enforcing such Lease
Contract and preserving and maintaining title to the Lease Assets and the rights
of the Trustee, the Bond Insurer and the Certificateholders therein against the
claims of all Persons and parties to the extent such entity is capable of
performing such requested steps and the Servicer reasonably determines that the
assistance of the Company or any of the Contributors is necessary to effect the
intent and purposes hereof.
Section 7.07. No Waivers; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Transferor, any of the
Contributors or the Company, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise of
any right, remedy, 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. Binding Effect; Third Party Beneficiaries. This Agreement
will inure to the benefit of and be binding upon the parties hereto, the
Trustee, the Bond Insurer, the Certificateholders, and their respective
successors and permitted assigns. The Bond Insurer is an express third party
beneficiary of this Agreement.
Section 7.09. Set-Off. (a) Each of the Company and the Contributors
hereby irrevocably and unconditionally waives all right of set-off that it may
have under contract (including this Agreement), applicable law or otherwise with
respect to any funds or monies of the Transferor at any time held by or in the
possession of the Company.
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(b) The Transferor shall have the right to set-off against the Company
or the Contributors any amounts to which the Company or the applicable
Contributor may be entitled and to apply such amounts to any claims the
Transferor may have against the Company or the applicable Contributor from time
to time under this Agreement. Upon any such set-off the Transferor shall give
notice of the amount thereof and the reasons therefor.
Section 7.10. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall together constitute one original document.
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IN WITNESS WHEREOF, the Company, the Contributors and the Transferor have
caused this Agreement to be duly executed by their respective officers thereunto
duly authorized as of the date and year first above written.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee and as Back-up Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Corporate Trust Officer
T & W FINANCIAL CORPORATION,
as Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
T & W FUNDING COMPANY I, L.L.C.,
as Transferor
By: /s/ ▇▇▇▇▇▇▇ ▇. PRICE
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Price
Title: President
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EXHIBIT A
FORM OF SUPPLEMENT FOR SUBSTITUTE LEASE CONTRACTS
Pursuant to Section 3.04(b) of the Contribution Agreement dated as of
February 1, 1997 (the "Agreement") between T & W Financial Corporation (the
"Company"), T & W Funding Company V, L.L.C. and T & W Funding Company VI, L.L.C.
(each, a "Contributor" and collectively, the "Contributors") and T & W Funding
Company I, L.L.C. (the "Transferor"), attached hereto as Schedule I is a
supplement to Schedule II of the related Assignment and Assumption Agreement
which includes information regarding Lease Assets that are hereby sold,
assigned, transferred and delivered by the undersigned Contributor to the
Transferor in accordance with the Contribution Agreement.
[CONTRIBUTOR]
By
Name:
Title:
37
SCHEDULE I
38
EXHIBIT B
FORM OF LEASE CONTRACT
39
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("Assignment") is made as of
_________, 1997 (the "Contribution Date"), by and between _______________, a
Delaware limited liability company ("Assignor"), and T & W Funding Company I,
L.L.C., a Delaware limited liability company ("Assignee"), with reference to the
following facts:
RECITALS:
A. In connection with the contribution, from time to time, of certain
lease assets of Assignor in conjunction with the issuance of certificates (the
"Certificates") by the trust created by Assignee, Assignee and the Assignor have
executed the Contribution Agreement dated as of February 1, 1997 (the
"Contribution Agreement").
B. In connection with the Contribution Agreement, the Assignor desires
to assign and transfer to Assignee all of Assignor's right, title and interest
in and to each of the assets described in Schedule II hereto, as supplemented
from time to time, and the corresponding paragraphs below (the "Assigned
Interests").
C. Assignor desires to transfer and Assignee is willing to assume
certain indebtedness of Assignor listed on Schedule I hereto.
D. Assignee desires to accept the Assignment and transfer of the
Assigned Interests and assume all duties and obligations attendant thereto,
accruing after the Contribution Date.
E. Terms used but not defined herein have the meanings ascribed to them
in the Contribution Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and in consideration of the mutual
covenants set forth herein, the Assignor and Assignee hereby agree as follows:
1. Assignment. The Assignor hereby assigns, conveys, grants and
transfers, without recourse except as provided in the Contribution Agreement, to
Assignee (and the successors and assigns of Assignee) the following property:
1.1. The Assignor's right, title and interest in and to the
Lease Contracts and related Lease Receivables described and listed on
Schedule II hereto.
40
1.2. All of Assignor's right, title and interest in and to the
equipment or vehicles subject to each such Lease Contract (the
"Equipment" or "Leased Vehicle," as applicable).
1.3. All of Assignor's other Lease Assets relating to each such
Lease Contract.
2. Assumption. The Assignee hereby agrees to assume the indebtedness of
Assignor listed on Schedule I hereto and to use the proceeds of the initial sale
of Certificates to pay such indebtedness. Assignee hereby accepts the foregoing
Assignment and hereby assumes all of the other obligations incident hereto and
thereto, subject to the terms and conditions of the Contribution Agreement.
3. Further Assurance. The Assignor and Assignee each hereby agree to
provide such further assurances and to execute and deliver such documents and to
perform all such other acts as are necessary or appropriate to consummate and
effectuate this Assignment.
4. Distinct Entities. The Assignor and Assignee hereby acknowledge that
for all purposes the Assignor and Assignee are each separate and distinct legal
entities. Accordingly, the Assignor shall not be liable to any third party for
the debts, obligations and liabilities of the Assignee; and Assignee shall not
be liable to any third party for the debts, obligations and liabilities of the
Assignor to the extent that such debts, obligations and liabilities have not
been expressly assumed by Assignee hereunder.
5. Governing Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of Delaware, and the parties hereto
hereby acknowledge and agree that this Assignment and Assumption Agreement and
the transactions contemplated hereunder were negotiated and entered into in the
State of Delaware.
6. Authority. The Assignor and Assignee each hereby represent
respectively that they have full power and authority to enter into this
Assignment.
7. Counterparts. This Assignment may be executed in multiple
counterparts, each of which shall be deemed an original but all of which, taken
together, shall constitute one and the same instrument.
8. Successors and Assigns. The Assignor and Assignee each agree that
this Assignment will be binding and will inure to the benefit of the Assignor
and its successors and assigns and the Assignee and its successors and assigns.
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9. Third Party Beneficiary. The Assignor and Assignee each agree that
MBIA Insurance Corporation is an express third party beneficiary to this
Assignment.
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IN WITNESS WHEREOF, this Assignment has been executed as of the date first
above written.
________________________., Assignor
By
Name:
Title:
T & W FUNDING COMPANY I, L.L.C.,
Assignee
By
Name:
Title:
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SCHEDULE I
SCHEDULE OF EXISTING INDEBTEDNESS
LENDER AMOUNT
$______________
$______________
44
SCHEDULE II
LEASE SCHEDULE
45
EXHIBIT D
EXISTING INDEBTEDNESS OF
T & W FUNDING COMPANY VI, L.L.C.
LENDER AMOUNT
Seafirst Bank $7,068,085.54
CoreStates Bank, N.A. $4,331,399.92
46
EXHIBIT E
CREDIT MANUAL