EXHIBIT 10.48
RECEIVABLES PURCHASE AGREEMENT
between
LADCO FUNDING CORP. VI,
"LFC VI"
and
LADCO FUNDING CORP. VII,
the "Issuer"
June 1, 2000
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS...................................................................................... 2
1.01 Defined Terms.............................................................................. 2
ARTICLE 2 ASSIGNMENT OF LEASE RECEIVABLES AND INTERESTS IN
THE RELATED SECURITY............................................................................. 4
2.01 Purchase of Lease Receivables.............................................................. 4
2.02 Grant of Security Interest in the Related Security......................................... 4
2.03 Delivery of Lease Contracts; Filing of Financing Statements................................ 4
2.04 Servicing of Lease Contracts and Equipment................................................. 5
2.05 Review of Lease Contracts.................................................................. 5
2.06 Nature of Transfer of Lease Receivables.................................................... 5
ARTICLE 3 REPRESENTATIONS AND WARRANTIES................................................................... 6
3.01 Representations and Warranties of LFC VI................................................... 6
3.02 Representations and Warranties of the Issuer............................................... 9
3.03 Purchase or Substitution Required Upon Breach of Certain
Representations and Warranties............................................................. 10
3.04 Requirements for Repurchase or Substitution of Lease
Receivables and Acquisition of Additional or Substitute Lease
Receivables................................................................................ 10
ARTICLE 4 COVENANTS OF THE ISSUER AND LFC VI............................................................... 12
4.01 LFC VI Covenants........................................................................... 12
4.02 Issuer Covenants........................................................................... 15
4.03 Assignment of Lease Receivables and Related Security....................................... 15
4.04 Release of Rights in Related Security...................................................... 15
ARTICLE 5 CONDITIONS PRECEDENT............................................................................. 16
5.01 Conditions to the Issuer's Obligations..................................................... 16
5.02 Conditions to LFC VI's Obligations......................................................... 16
ARTICLE 6 TERM AND TERMINATION............................................................................. 18
6.01 Term....................................................................................... 18
6.02 Default by LFC VI.......................................................................... 18
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ARTICLE 7 MISCELLANEOUS.................................................................................... 19
7.01 Amendments................................................................................. 19
7.02 Governing Law.............................................................................. 19
7.03 Waiver of Jury Trial....................................................................... 19
7.04 Notices.................................................................................... 19
7.05 Separability Clause........................................................................ 19
7.06 Assignment................................................................................. 19
7.07 Further Assurances......................................................................... 19
7.08 No Waivers; Cumulative Remedies............................................................ 20
7.09 Binding Effect; Third Party Beneficiaries.................................................. 20
7.10 Counterparts............................................................................... 20
7.11 Set-Off.................................................................................... 20
7.12 Consent to Jurisdiction.................................................................... 20
EXHIBIT A Form of LFC VI Certificate
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This RECEIVABLES PURCHASE AGREEMENT, dated as of June 1, 2000 (as amended,
supplemented or modified from time to time, the "Agreement"), is between Ladco
Funding Corp. VI, a Delaware corporation ("LFC VI"), and Ladco Funding Corp.
VII, a Delaware corporation ("Issuer").
PRELIMINARY STATEMENT
LFC VI has entered into a Lease Acquisition Agreement dated as of June 1,
2000 (as amended, supplemented or modified from time to time, the "Lease
Acquisition Agreement") with Ladco Financial Group ("LFG"), pursuant to which,
among other things, LFG will assign to LFC VI all of LFG's right, title and
interest in and to certain Lease Assets, including the Lease Contracts, the
Lease Receivables and the Equipment. LFC VI and Issuer are entering into this
Agreement to provide for the purchase by Issuer of all of LFC VI's right, title
and interest in and to the Lease Receivables and a security interest in certain
of the remaining Lease Assets and LFC VI's rights under the Lease Acquisition
Agreement. LFC VI owns all of the Common Stock of Issuer. The Lease Assets, will
be serviced by Ladco Financial Group ("LFG") as further provided in that certain
Servicing Agreement dated as of June 1, 2000 by and between LFG, LFC VI, Issuer,
Norwest Bank Minnesota, National Association, as Indenture Trustee.
Issuer has entered into an Indenture dated as of June 1, 2000 (as amended,
supplemented or modified from time to time, the "Indenture"), with Norwest Bank
Minnesota, National Association, as Indenture Trustee (in such capacity, the
"Indenture Trustee"), and LFG, as Servicer (the "Servicer"), pursuant to which
Issuer intends to issue its 2000-1 Equipment Lease Backed Notes secured by,
among other things, the Lease Receivables, the interests in the Lease Assets and
the other rights that are acquired by the Issuer under this Agreement.
Issuer further intends to grant a security interest in all of its rights
against LFC VI under this Agreement to the Indenture Trustee.
ARTICLE 1
DEFINITIONS
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 Indenture, or if not defined therein, in the Lease Acquisition Agreement or
the Servicing Agreement.
"Accumulation Period": The meaning set forth in the Indenture.
"Acquisition Date": The meaning set forth in the Indenture.
"Amended Lease Collateral Schedule": The list of Lease Contracts attached
to the LFG Certificate, LFC VI Certificate, the Issuer Certificate and the
Indenture Trustee Certificate amending the Lease Collateral Schedule pursuant to
any substitution, repurchase, modification or acquisition of Lease Contracts in
accordance with the terms hereof and the Indenture.
"Closing Date": The meaning set forth in the Indenture.
"Common Stock": All of the issued and outstanding shares of Common Stock of
LFC VII, which consists of 1,000 shares having a par value of $.01 per share.
"Computer Tape": The meaning set forth in the Lease Acquisition Agreement.
"Eligible Lease Contract": The meaning set forth in the Lease Acquisition
Agreement.
"Equipment": The meaning set forth in the Lease Acquisition Agreement.
"Existing Indebtedness": The meaning set forth in the Indenture.
"Financing Proceeds": All of the proceeds derived by the Issuer from the
issuance of, and fundings by investors under, the Notes, net of transaction
costs related thereto (which shall include any amounts necessary to discharge
Existing Indebtedness pursuant to the related Release Agreement).
"Geographic Concentration Limits": The meaning set forth in the Lease
Acquisition Agreement.
"Indenture": The meaning set forth in the Preliminary Statement hereof.
"Initial Funding Date": The meaning set forth in the Indenture.
"Initial Lease Collateral Schedule": The meaning set forth in the Lease
Acquisition Agreement.
"Issuer Address": ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Lease Acquisition Agreement": The meaning set forth in the Preliminary
Statement hereof.
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"Lease Assets": The meaning set forth in the Lease Acquisition Agreement.
"Lease Contract": The meaning set forth in the Lease Acquisition Agreement.
"Lease Receivables": All Scheduled Payments and all other proceeds of the
Lease Contracts and any and all payments received on or with respect to the
Lease Contracts (including Guaranty Amounts, Insurance Proceeds and other
Recoveries, but excluding Residual Proceeds) that are due after the applicable
Cut-Off Date.
"Lease Receivable Repurchase Price": The meaning set forth in the
Indenture.
"LFC VI Address": ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"LFG": The meaning set forth in the Preliminary Statement hereof.
"Lien": The meaning set forth in the Indenture.
"Notes": The meaning set forth in the Indenture.
"Person": The meaning set forth in the Indenture.
"Product Mix Limits": The meaning set forth in the Lease Acquisition
Agreement.
"Purchase Price": Means, for each Lease Contract, an amount equal to the
IPB of all Lease Receivables related thereto, computed using an assumed discount
rate equal to the related Discount Factor.
"Related Security": All of LFC VI's right, title and interest in, to and
under (i) the Lease Assets (other than the Lease Receivables), (ii) the Lease
Acquisition Agreement, (iii) the Servicing Agreement, and (iv) all income and
proceeds of the foregoing or relating thereto; provided however, that Related
Security shall not include any Residual Proceeds.
"Residual Proceeds": With respect to any Lease Contract that has been paid
in full in accordance with its terms, the net proceeds (including Insurance
Proceeds) of any sale or other disposition of the related Equipment (including
any lease renewal and the periodic payment under the Lease Contract for use of
such Equipment after the initial term thereof).
"Substitute Lease Contract": The meaning set forth in the Indenture and the
Lease Acquisition Agreement.
"Substitute Lease Receivable": The meaning set forth in the Indenture and
this Agreement.
"Trust Estate": The meaning set forth in the Indenture.
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ARTICLE 2
ASSIGNMENT OF LEASE RECEIVABLES AND INTERESTS IN THE RELATED
SECURITY
2.01 Purchase of Lease Receivables.
(a) Subject to the terms and conditions set forth herein, LFC VI shall
from time to time sell to Issuer, and Issuer shall acquire from LFC VI, all of
LFC VI's right, title and interest in and to the Lease Receivables. In
consideration thereof, the Issuer shall pay to or on the direction of LFC VI an
amount equal to the Purchase Price, provided however, that any portion of the
Purchase Price in excess of the Financing Proceeds shall be deemed a
contribution to the Issuer's capital. Each such sale shall be evidenced by
delivery from LFC VI to Issuer of an executed LFC VI Certificate with a Lease
Collateral Schedule attached thereto and shall be effective as of the
Acquisition Date indicated thereon. LFC VI hereby acknowledges that its sale of
the Lease Receivables to the Issuer is absolute and irrevocable, without
reservation or retention of any interest whatsoever by LFC VI. The acquisition
hereunder of all such Lease Receivables and the interests in the Related
Security shall be subject to the approval of the Issuer, and the Issuer shall
have the option to accept or decline any Lease Receivables and the interests in
the Related Security proposed by LFC VI.
(b) Subject to all the terms and conditions of this Agreement and in
reliance upon the representations, warranties and covenants set forth in the
Lease Acquisition Agreement and this Agreement, as of the Initial Funding Date
the Issuer is purchasing the Lease Receivables related to the Lease Contracts
listed on the Initial Lease Collateral Schedule attached to the LFC VI
Certificate delivered on such date.
2.02 Grant of Security Interest in the Related Security.
(a) As security for the payment of the Lease Receivables sold to Issuer
from time to time by LFC VI, LFC VI hereby grants to Issuer a security interest
in all of LFC VI's right, title and interest in, to and under the Related
Security, including all Lease Contracts and Equipment related to any of the
Lease Receivables sold to Issuer from time to time by LFC VI, whether now owned
or hereafter acquired. This Agreement shall constitute a security agreement
under applicable law.
(b) To the extent that LFG or LFC VI retain possession of any files or
documentation pertaining to the Related Security, they shall hold such documents
in trust for the benefit of Issuer and the Indenture Trustee. The possession of
any documents or files pertaining to the Lease Receivables or the Related
Security by either LFG or LFC VI is for the purpose of servicing of such Lease
Assets. The documents and files retained by LFG or LFC VI, as the case may be,
relating to the Lease Receivables or the Related Security shall be segregated
from the books and records of LFG or LFC VI, as the case may be, and shall be
marked appropriately to reflect clearly the sale of the Lease Receivables and
the pledge of the Related Security to Issuer and the ultimate assignment thereof
to the Indenture Trustee.
2.03 Delivery of Lease Contracts; Filing of Financing Statements.
(a) In connection with the Issuer's acquisition of the Lease Receivables
and the interests in the Related Security, LFC VI shall deliver or cause to be
delivered the original Lease Contracts to the Indenture Trustee so that the
Indenture Trustee may retain possession thereof as "bailee" (within the meaning
of Section
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9-305 of the UCC) for the sole benefit of the Issuer; provided that, upon any
delivery of such Lease Contracts to the Indenture Trustee pursuant to the terms
of the Indenture or Servicing Agreement, the Indenture Trustee shall no longer
act as bailee for the Issuer. In addition, LFC VI agrees to record and file
prior to the Closing Date or within the time period set forth in the Indenture,
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 requirements of the Indenture.
(b) In connection with each acquisition of Lease Receivables hereunder,
LFC VI shall direct that the LFG Database maintained by LFG be marked to show
that the Lease Receivables and a security interest in the Related Security have
been acquired by the Issuer in accordance with this Agreement and that each of
the foregoing have been transferred by the Issuer to the Indenture Trustee in
accordance with the Transaction Documents.
2.04 Servicing of Lease Contracts and Equipment. LFC VI agrees that the
Servicer shall service the Lease Assets for the benefit of LFC VI and the Issuer
(and their respective successors and assigns) in accordance with the terms and
conditions of the Servicing Agreement and the other Transaction Documents. LFG
shall be permitted to retain the Servicing Files for so long as it is acting as
Servicer under the Servicing Agreement.
2.05 Review of Lease Contracts. If any party to the Transaction Documents
discovers that any Lease Contracts are missing or defective (that is, mutilated,
damaged, defaced, incomplete, improperly dated, clearly forged or otherwise
physically altered) in any material respect, LFC VI shall enforce its rights
against LFG under the Lease Acquisition Agreement for the benefit of Issuer and
the Indenture Trustee.
2.06 Nature of Transfer of Lease Receivables.
(a) Each sale of Lease Receivables by LFC VI to Issuer pursuant to this
Agreement is intended to be an absolute assignment constituting a "true sale"
for bankruptcy purposes of all of LFC VI's right, title and interest in, to and
under such Lease Receivables, without recourse (except to the Related Security
and as otherwise expressly provided herein), for all purposes. No assignment of
Related Security is intended to constitute an absolute assignment; but rather,
as indicated in Section 2.02, is intended to constitute only a Grant of a
security interest in such assets to secure repayment of the related Lease
Receivables.
(b) In the event that the sale of Lease Receivables by LFC VI to the
Issuer pursuant to this Agreement are deemed for any reason to be less than a
transfer of complete legal title of all of LFC VI's right, title and interest
in, to and under such Lease Receivables, the parties hereto intend that this
Agreement operate to transfer all of LFC VI's equitable interests in, to and
under the Lease Receivables to Issuer.
(c) In the event that the sale of the Lease Receivables from LFC VI to
Issuer are deemed to be a secured financing, LFC VI shall be deemed hereunder to
have Granted and conveyed to the Issuer, and LFC VI does hereby Grant and convey
to the Issuer, a security interest in all of LFC VI's right, title and interest
in, to and under the Lease Receivables, whether now owned or hereafter acquired.
For purposes of such Grant and conveyance, this Agreement shall constitute a
security agreement under applicable law.
(d) The transfers and assignments of Lease Receivables and interests in
the Related Security from LFC VI to Issuer hereunder do not constitute and are
not intended to result in a creation or an assumption by the Issuer of any
obligations of LFC VI under, or in connection with, any of the Lease Assets,
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or any agreement or instrument relating thereto, including, without limitation,
(a) any obligation to any Obligor, (a) any taxes, fees or other charges imposed
by any governmental authority or (c) any insurance premiums which accrued with
respect to any of the Lease Assets at the time that any of the Lease Receivables
or interests in Related Security are conveyed hereunder.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties of LFC VI.
(a) LFC VI hereby makes the following representations and warranties as
to each Lease Receivable and the interests in the Related Security to the Issuer
and for the benefit of the Indenture Trustee and the Noteholders, on which the
Issuer relies in acquiring the Lease Receivables and the interests in the
Related Security. Such representations and warranties speak as of the Initial
Funding Date with respect to Lease Receivables derived from Lease Contracts
listed on the Initial Lease Collateral Schedule or the related Acquisition Date
with respect to each Additional Lease Receivable unless otherwise indicated, but
shall survive any subsequent transfer, assignment, contribution or conveyance of
the Lease Receivables and the interests in the Related Security. LFC VI makes
these representations and warranties with respect to all Lease Receivables,
whether transferred from LFC VI to the Issuer in accordance with this Agreement
or originated by LFG on behalf of LFC VI, the Issuer or an affiliate thereof:
(i) all Lease Receivables sold to the Issuer hereunder are Lease
Receivables derived from Eligible Lease Contracts; and
(ii) The Product Mix Limits and Geographic Concentration Limits
described in the Lease Acquisition Agreement are not exceeded as to the
Lease Receivables derived from the Initial Lease Contracts and no transfer
by LFC VI of Additional Lease Receivables to the Issuer will cause the
Product Mix Limits and Geographic Concentration Limits to be exceeded on
the related Acquisition Date.
(b) LFC VI hereby makes the following representations and warranties on
which the Issuer relies in acquiring the Lease Receivables and interests in the
Related Security and on which the Issuer relies in issuing the Notes. Such
representations and warranties speak as of the Initial Funding Date and each
other Acquisition Date unless otherwise indicated, but shall survive any
subsequent transfer, assignment, contribution or conveyance of the Lease
Receivables and the interests in the Related Security:
(i) LFC VI has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Delaware with
the power and authority to own its properties and to transact the business
in which it is now engaged, and LFC VI is duly qualified to do business in
and is in good standing under the laws of each State in which any Equipment
or any Obligor is located and where it is required under applicable law to
effect such qualification, except where the failure to so qualify would not
have a material adverse effect on the ability of LFC VI to perform its
obligations under any of the Transaction Documents or on any of the Lease
Contracts, the Lease Receivables or the Equipment.
(ii) The performance of the obligations of LFC VI 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
organizational documents of LFC VI, or any material indenture, agreement,
mortgage, deed of trust or other instrument to which LFC VI is a party or
by which it is bound, or result in the creation or imposition of any lien,
charge or
7
encumbrance (except the lien created by the Transaction Documents) upon any
of the property or assets of LFC VI pursuant to the terms of such
indenture, mortgage, deed of trust, or other agreement or instrument to
which LFC VI is a party or by which LFC VI is bound or to which any of LFC
VI's property or assets is subject, nor will such action result in any
violation of the provisions of LFC VI's organizational documents 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 LFC
VI 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 and any other Transaction Document to which LFC
VI is a party have been duly authorized, executed and delivered by LFC VI
by all necessary corporate action and such agreements are the valid and
legally binding obligations of LFC VI, enforceable against LFC VI in
accordance with their respective terms, subject 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.
(iv) As of the Initial Funding Date, the LFC VI Address is the chief
executive office, chief place of business and the office where LFC VI keeps
its records concerning the Lease Contracts, Lease Receivables and the
Equipment.
(v) LFC VI does not believe, nor does it have any reasonable cause
to believe, that it cannot perform each and every covenant contained in
this Agreement.
(vi) The transactions contemplated by the Transaction Documents are
being consummated by LFC VI 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.
(vii) The Purchase Price and other consideration received by LFC VI
pursuant to this Agreement is fair consideration having value reasonably
equivalent to the value of the Lease Receivables and the performance of LFC
VI's obligations hereunder.
(viii) At the time of the transactions contemplated by the Transaction
Documents, both immediately before and after and as a result of the
transactions, LFC VI will not:
(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 LFC VI will be an
unreasonably small capital or the remaining assets of LFC VI will be
unreasonably small in relation to its respective business or the
transaction; or
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(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.
At all such times, LFC VI's assets and cash flow will enable it to meet its
present obligations in the ordinary course of business as they become due.
(ix) Both immediately prior to and immediately following the
consummation of the transactions contemplated hereby (A) the present fair
salable value of LFC VI's assets 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 matured; and (B) the sum of LFC VI's assets
was or will be greater than the sum of its debts, valuing its assets at a
fair salable value.
(x) The acquisition of the Lease Receivables and the interests in
the Related Security by the Issuer pursuant to this Agreement is not
subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction.
(xi) There are no proceedings or investigations pending, or to the
knowledge of LFC VI, threatened, against or affecting LFC VI 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) 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 LFC VI, or the ability of LFC VI to
perform its obligations under any Transaction Document or otherwise. LFC VI
is not in default with respect to any order of any court, governmental
authority or agency or arbitration board or tribunal.
(xii) All tax returns or extensions required to be filed by LFC VI in
any jurisdiction have in fact been filed, and all taxes, assessments, fees
and other governmental charges upon LFC VI, or upon any of the respective
properties, income or franchises of LFC VI, shown to be due and payable on
such returns have been, or will be, paid when due. All such tax returns are
true and correct and LFC VI has no knowledge of any proposed additional tax
assessment against it in any material amount nor of any basis therefor. The
provisions for taxes on the books of LFC VI are adequate in accordance with
generally accepted accounting principles.
(xiii) LFC VI (i) is not in violation of any laws, ordinances,
governmental rules or regulations to which it is subject, (ii) has not
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 not 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 LFC VI or its ability to perform its
obligations under any Transaction Document.
(xiv) It is the intention of LFC VI that the Lease Receivables be
acquired by the Issuer and that both the title and the beneficial interest
in and to the Lease Receivables not be part of LFC VI's estate in the event
of the filing of a bankruptcy petition by or against LFC VI under any
bankruptcy law.
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(xv) Immediately prior to the acquisition of the any Lease
Receivables and interests in the Related Security by the Issuer pursuant to
this Agreement, LFC VI was the sole owner of such Lease Assets (with the
exception of Equipment related to any Lease Contract that is deemed to
constitute a loan, as to which LFC VI has a valid first perfected security
interest in the related Equipment) and had good and marketable title
thereto, free and clear of all liens, claims and encumbrance (except for
the Existing Indebtedness and related security interests in the Lease
Assets which in each case shall be terminated on or prior to the related
Acquisition Date); and the acquisition of the Lease Receivables and the
interests in the Related Security by the Issuer does not violate the terms
or provisions of any Lease Contract.
(xvi) LFC VI is the registered owner of all of the issued and
outstanding Common Stock of the Issuer, all of which Common Stock is
validly issued, fully paid and nonassessable.
(xvii) LFC VI is exempt from registration as an "investment company"
under the Investment Company Act of 1940, as amended.
3.02 Representations and Warranties of the Issuer. The Issuer hereby makes
the following representations and warranties to LFC VI and for the benefit of
the Indenture Trustee and the Noteholders, on which representations and
warranties LFC VI relies in entering into this Agreement with the Issuer. LFC VI
agrees that any breach by Issuer of any such representations and warranties
shall not limit or excuse the full performance of LFC VI's obligations
hereunder. Such representations and warranties speak as of the Initial Funding
Date and each other Acquisition Date unless otherwise indicated, but shall
survive any subsequent transfer, assignment, contribution or conveyance of the
Lease Receivables and the interests in the Related Security:
(a) The Issuer has been duly organized and is validly existing in good
standing as a corporation under the laws of the State of Delaware, with the
power and authority to own its properties, perform its obligations hereunder and
under the Transaction Documents and to transact the business in which it is now
engaged or in which it proposes to engage; the Issuer 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 the failure to so qualify
would not have a material adverse effect on the ability of the Issuer to perform
its obligations hereunder and under the Transaction Documents.
(b) The transfer to and receipt by the Issuer of the Lease Receivables and
the interests in the Related Security 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 organizational documents of the Issuer or any material
indenture, agreement, mortgage, deed of trust or other instrument to which the
Issuer 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 Indenture) upon any of the property or assets of the Issuer pursuant to the
terms of, such indenture, mortgage, deed of trust, or other agreement or
instrument to which the Issuer is a party or by which it is bound or to which
any of the property or assets of the Issuer is subject, nor will such action
result in any violation of the provisions of the organization documents of the
Issuer 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 Issuer 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
10
governmental agency or body is required for the acquisition of the Lease
Receivables and the interests in the Related Security hereunder.
(c) This Agreement and the Transaction Documents have been duly
authorized, executed and delivered by the Issuer by all necessary action and
constitute valid and legally binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, subject to 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 equity or
law.
(d) There are no proceedings or investigations to which the Issuer is a
party pending or, to the knowledge of the Issuer, 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 Notes or the consummation of any of the transactions
contemplated by the Transaction Documents, or (c) seeking any determination or
ruling that would materially and adversely affect the performance by the Issuer
of its obligations under, or the validity or enforceability of, this Agreement
or the Transaction Documents.
(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 and the Transaction
Documents, have been or will be taken or obtained on or prior to the Closing
Date.
(f) The Issuer Address is the principal place of business and chief
executive office of the Issuer.
3.03 Purchase or Substitution Required Upon Breach of Certain
Representations and Warranties. If LFG (i) is required to repurchase any Lease
Contract or (ii) instead elects to assign to LFC VI a Substitute Lease Contract
pursuant to the terms of the Lease Acquisition Agreement, then LFC VI shall
promptly enforce such requirement or election thereunder. Concurrently with
LFG's repurchase of any Lease Contract from LFC VI under the Lease Acquisition
Agreement, LFC VI shall promptly repurchase any Lease Receivable related to any
such Lease Contract from the Issuer at the Lease Receivable Repurchase Price.
Concurrently with LFG's assignment to LFC VI of any Substitute Lease Contract
under the Lease Acquisition Agreement, LFC VI shall promptly assign to the
Issuer the Substitute Lease Receivable derived from such Substitute Lease
Contract and a security interest in the Related Security of such Substitute
Lease Receivable. LFC VI shall provide to the Issuer an officer's certificate
confirming that LFC VI's representations and warranties in Section 3.01 are true
and correct as to any Substitute Lease Receivable. The Lease Receivable
Repurchase Price for a repurchased Lease Receivable shall be paid, and any
Substitute Lease Receivable, the security interest in any Related Security of
such Substitute Lease Receivable and any documentation related thereto shall be
delivered, by LFC VI to the Issuer in accordance with Section 3.04(c) hereof. It
is understood and agreed that if any repurchase or substitution of a Lease
Receivable relates to a cure of a breach under Section 3.01, above, such
repurchase or substitution of such Lease Receivable and any indemnities provided
under Section 4.01(j) hereof or under the Indenture shall constitute the sole
remedy respecting such breach available to the Issuer and its assigns for any
losses, claims, damages and liabilities arising from the Issuer's ownership of
such Lease Receivable or the inclusion of such Lease Receivable and the
interests in the Related Security in the Trust Estate.
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3.04 Requirements for Repurchase or Substitution of Lease Receivables and
Acquisition of Additional or Substitute Lease Receivables.
(a) If LFC VI repurchases any Lease Receivable under this Agreement or if
LFC VI or if a Lease Receivable is required to be repurchased under Section 3.09
of the Servicing Agreement, such Lease Receivable shall be repurchased at the
Lease Receivable Repurchase Price. All repurchases shall be accomplished at the
times specified in subsection (c) below.
(b) If LFC VI instead elects to substitute any Lease Receivable under this
Agreement, or if a Lease Receivable is substituted under Section 3.09 of the
Servicing Agreement (a "Substitute Lease Receivable"), or (2) conveys to the
Issuer or originates on behalf of the Issuer any Additional Lease Receivable,
each such Substitute Lease Receivable and Additional Lease Receivable shall (i)
derive from an Eligible Lease Contract that satisfies all of the terms,
provisions and requirements of the Lease Acquisition Agreement regarding
Additional Lease Contracts and Substitute Lease Contracts; and (ii) shall be
accompanied by the Grant of security interest in all Related Security relating
to such Substitute Lease Receivable or Additional Lease Receivable.
Upon the substitution of any Substitute Lease Receivable pursuant to the
provisions of this Section 3.04(b), LFC VI hereby agrees that such Substitute
Lease Receivable and the security interest in the Related Security of such
Substitute Lease Receivable will be subject to all the terms and provisions of
this Agreement, the Lease Acquisition Agreement, the Servicing Agreement, the
Indenture and the other Transaction Documents just as if such the Substitute
Lease Receivable and the security interest in the Related Security of such
Substitute Lease Receivable had been part of the original pool of Lease
Receivables and security interests in Related Security acquired on the related
Acquisition Date. Upon the substitution of a Substitute Lease Receivable
pursuant to this Section 3.04(b), the Issuer and LFC VI shall also comply with
the provisions and limitations set forth in Section 4.05 of the Indenture. All
substitutions shall be accomplished at the time specified in subsection (c)
below.
(c) Any repurchase or substitution of a Lease Receivable and any interests
in the Related Security of such Lease Receivable by LFC VI in accordance with
this Agreement shall be made either by remittance of the Lease Receivable
Repurchase Price to the Servicer for deposit into the Collection Account in
accordance with Section 3.03(c) of the Servicing Agreement, by substitution of a
Substitute Lease Receivable and a security interest in the Related Security of
such Substitute Lease Receivable, or a combination thereof, as applicable, on or
prior to the expiration of the time periods set forth in the Lease Acquisition
Agreement relating to the repurchase of the Lease Contract from which such Lease
Receivable derived or the substitution of the Substitute Lease Contract from
which such Substitute Lease Receivable derived.
(d) Any voluntary repurchase or substitution of a Lease Receivable by LFC
VI pursuant to the terms of the Indenture in the event of a default or
delinquency with respect to such Lease Receivable shall satisfy the same
requirements for a repurchase or substitution, as the case may be, as are set
forth in this Section 3.04 and in the Indenture.
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ARTICLE 4
COVENANTS OF THE ISSUER AND LFC VI
4.01 LFC VI Covenants. LFC VI hereby covenants and agrees with the Issuer
as follows:
(a) Except as hereinafter provided, LFC VI 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 each Transaction Document to which it is a party or any of the
Lease Receivables or Lease Contracts and to perform its duties under each
Transaction Document. LFC VI shall not merge or consolidate with or into any
Person or sell substantially all of its assets to any Person, or permit any
Person to succeed to the business of LFC VI without prior written consent of the
Majority Noteholders.
(b) LFC VI, and any director, officer, employee or agent of LFC VI, 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.
(c) Each month during the Accumulation Period, LFC VI shall file any
financing statements required to be filed pursuant to Section 4.02(a) of the
Indenture. LFC VI, from time to time, at its own expense, shall execute and file
such additional financing statements (including continuation statements) as may
be necessary to preserve the security interests and liens described in Section
2.03(a) hereof or as may be reasonably requested by the Issuer, the Majority
Noteholders or the Indenture Trustee and are reasonably satisfactory in form and
substance to the Issuer and the Majority Noteholders; provided, however, that
financing statements against Obligors with respect to the Equipment having a
value of less than $5,000 will not be required to be filed. File stamped copies
of such financing statements, or other evidence of filing, shall be provided to
the Noteholders and the Indenture Trustee upon receipt.
(d) LFC VI will not 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 section 9-402 (7) of the
UCC, unless it shall have given the Issuer, the Noteholders and the Indenture
Trustee at least 30 days' prior written notice thereof and shall have filed all
necessary, or reasonably requested by LFC VI, the Issuer, the Majority
Noteholders or the Indenture Trustee amending all previously filed financing or
continuation statements and new financing statements in each case prior to the
effectiveness of such change.
(e) LFC VI will give the Issuer, the Noteholders and the Indenture Trustee
at least 30 days prior written notice of any relocation of its principal
executive office and shall have filed all necessary, or reasonably requested by
LFC VI, the Issuer, the Majority Noteholders or the Indenture Trustee amending
all previously filed financing or continuation statements and new financing
statements in each case prior to the effectiveness of such change.
(f) LFC VI 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 Issuer or
the Indenture Trustee in the Lease Receivables or the interests in the Related
Security. In the event that
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the rights of LFC VI under any of the Lease Receivables or any of the Related
Security are not assignable to the Issuer or to the Indenture Trustee, LFC VI
will enforce such rights on behalf of the Indenture Trustee.
(g) LFC VI will comply, in all material respects, with all acts, rules,
regulations, orders, decrees and directions of any governmental authority
applicable to the Lease Receivables and the interests in the Related Security or
any part thereof; provided, however, that LFC VI may contest any act,
regulation, order, decree or direction in any reasonable manner which shall not
materially and adversely affect the rights of the Issuer or the Indenture
Trustee in the Lease Receivables or in the Related Security.
(h) LFC VI will advise the Issuer, the Noteholders and the Indenture
Trustee promptly, in reasonable detail, of the occurrence of any breach by LFC
VI following discovery by LFC VI of such breach of any of its representations,
warranties and covenants contained herein.
(i) LFC VI will execute or endorse, acknowledge, and deliver to the
Issuer, the Noteholders and the Indenture 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
Receivables and the Related Security, and the rights covered by the Transaction
Documents, as the Issuer or the Indenture Trustee may reasonably request to
preserve and maintain title to the Lease Receivables and the security interests
in the Related Security and the rights of the Issuer, the Indenture Trustee and
the Noteholders therein against the claims of all persons and parties.
(j) LFC VI agrees to indemnify, defend and hold the Issuer, the Indenture
Trustee and the Noteholders 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 LFC VI of its representations, warranties
and covenants contained in Section 3.01 hereof or this Section 4.01 or (ii) any
material information furnished by LFC VI which is set forth in any schedule
delivered hereunder, being untrue in any respect when any such representation
was made or schedule delivered, provided that LFC VI shall not have any
liability with respect to a representation or warranty as to any specific Lease
Receivable or the interests in the Related Security other than to repurchase
such Lease Receivable and such interest in the Related Security of such Lease
Receivable or substitute for such Lease Receivable and the Related Security of
such Lease Receivable in accordance with Section 3.03 hereof unless such breach
of representation or warranty is the result of LFC VI's fraud, gross negligence,
bad faith or willful misconduct. LFC VI shall also indemnify the Issuer, the
Indenture Trustee, the Servicer and the Noteholders for any cost or expenses
incurred by them in the enforcement of this Agreement. The obligations of LFC VI
under this Section 4.01(j) shall be considered to have been relied upon by the
Issuer, the Indenture Trustee and the Noteholders and shall survive the
execution, delivery and performance of the Agreement, regardless of any
investigation made by or on behalf of the Issuer, until termination of the
Indenture. If LFC VI 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 LFC VI, without interest.
(k) LFC VI will do nothing to disturb or impair the acquisition hereunder
by the Issuer of the Lease Receivables and the interests in the Related
Security.
(l) Activities of the LFC VI. LFC VI (i) shall engage in only (A) the
------------------------
acquisition, ownership, selling and pledging of the property acquired by it
pursuant to the Lease Acquisition Agreement and (B) the exercise of any powers
permitted to corporations under the corporate law of its applicable state of
14
incorporation which are incidental to the foregoing or necessary to accomplish
the foregoing and LFC VI shall incur no debt other than trade payables and
expense accruals in connection with its operations in the normal course of
business; (ii) will (A) maintain its books and records separate from the books
and records of any other entity, (B) maintain separate bank accounts and no
funds of the LFC VI shall be commingled with funds of any other entity (except
the Issuer, as necessary in connection with the efficient servicing of the Lease
Assets), (C) keep in full effect its existence, rights and franchises as a
corporation under the laws of its applicable state of incorporation, 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; and (iii) will not
(A) dissolve or liquidate in whole or in part, (B) own any subsidiary (other
than the Issuer) or lend or advance any moneys to, or make an investment in, any
Person (other than the Issuer), (C) incur any debt for money borrowed or make
any capital expenditures, (D)(1) commence any case, proceeding or other action
under any existing or future bankruptcy, insolvency or similar law seeking to
have an order for relief entered with respect to it, or seeking reorganization,
arrangement, adjustment, wind-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, (2) seek appointment of a receiver,
trustee, custodian or other similar official for it or any part of its assets,
(3) make a general assignment for the benefit of creditors, or (4) take any
action in furtherance of, or consenting or acquiescing in, any of the foregoing,
(E) guarantee (directly or indirectly), endorse or otherwise become contingently
liable (directly or indirectly) for the obligations of, or own or purchase any
stock (other than the Common Stock), obligations or securities of or any other
interest in, or make any capital contribution to, any other Person, (F) merge or
consolidate with any other Person, (G) engage in any other action that bears on
whether the separate legal identity of the LFC VI will be respected, including
(1) holding itself out as being liable for the debts of any other party or (2)
acting other than in its corporate name and through its duly authorized officers
or agents, or (H) create, incur, assume, or in any manner become liable in
respect of any indebtedness other than expenses associated with the Closing
Date, and trade payables and expense accruals incurred in the ordinary course of
business in an amount less than $15,000 and which are incidental to its business
purpose. LFC VI shall not amend any article in its Certificate of Incorporation
without the prior written consent of the Majority Noteholders and satisfaction
of the Rating Agency Condition.
(m) Directors. LFC VI agrees that at all times, at least two of its
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directors will not be a director, shareholder, officer or employee of any direct
or ultimate parent or Affiliate of LFG; provided that an independent director or
independent officer may serve in similar capacities for other "special purpose
corporations" formed by LFG and their Affiliates.
(n) The Issuer. LFC VI will not (i) take any action that would cause the
----------
dissolution or liquidation of the Issuer or (ii) institute against the Issuer,
or join any other person in instituting against the Issuer, any case, proceeding
or other action under any existing or future bankruptcy, insolvency or similar
laws. This subsection (n) shall survive termination of this Agreement.
(o) LFC VI shall notify the Issuer and the Indenture Trustee promptly
after becoming aware of any Lien on any Lease Receivable or Related Security.
(p) On each date as of which LFC VI substitutes a Substitute Lease
Receivable and a security interest in the Related Security of such Substitute
Lease Receivable in accordance with the terms hereof, or otherwise assigns Lease
Receivables and security interests in Related Security to the Issuer, LFC VI
shall provide to the Issuer an LFC VI Certificate substantially in the form of
Exhibit A hereto subjecting such Lease Receivable and the security interest in
the Related Security to the provisions hereof and providing with
15
respect to such Lease Receivables and the security interest in such Related
Security the information required in the Amended Lease Collateral Schedule.
(q) LFC VI shall pay and discharge as the same shall become due and
payable, all tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being contested in good
faith.
4.02 Issuer Covenants. The Issuer hereby covenants and agrees with LFC VI
as follows:
(a) The Issuer hereby acknowledges and agrees that its rights and
interests in the Equipment are expressly subject to the rights of the related
Obligors in such Equipment pursuant to the applicable Lease Contract. The Issuer
covenants and agrees that, so long as an Obligor shall not be in default of any
of the provisions of the applicable Lease Contract, neither the Issuer nor any
Issuer of the Issuer will disturb the Obligor's quiet and peaceful possession of
the related Equipment and the Obligor's unrestricted use thereof for its
intended purpose.
(b) If in any enforcement suit or legal proceeding it is held that LFC VI
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 Issuer shall, at
the Servicer's expense, take such steps as the Issuer deems necessary to enforce
the Lease Contract, including bringing suit in the Issuer's name.
4.03 Assignment of Lease Receivables and Related Security. LFC VI
understands that the Issuer intends to Grant to the Indenture Trustee a security
interest in all its right, title and interest to the Lease Receivables, the
Related Security and this Agreement. LFC VI consents to such Grant and further
agrees that all representations, warranties, covenants and agreements LFC VI
made herein shall also be for the benefit of and inure to the Indenture Trustee
and all Noteholders.
4.04 Release of Rights in Related Security. Once (i) any Lease Contract
related to a Lease Receivable acquired by Issuer hereunder has expired by its
terms and all amounts in respect of such Lease Receivable owing under such Lease
Contract have been paid by the related Obligor or otherwise collected or (ii)
any Lease Contract related to a Lease Receivable acquired by Issuer hereunder is
repurchased or terminated or prepaid in its entirety and all amounts in respect
of such Lease Receivable owing under such Lease Contract have been paid by the
related Obligor or otherwise collected, Issuer, on behalf of itself and its
assigns, will be deemed to have released its interest in the Related Security
for such Lease Receivable. Subject to the limitations contained in the foregoing
paragraph, on or after the occurrence of (i) or (ii) above, Issuer shall and
shall cause its assigns to execute and deliver to LFC VI or its designee any
assignments, bills of sale, termination statements or any other releases or
instruments as LFC VI may reasonably request in order to evidence the release by
Issuer and its assigns of their interests in such Related Security.
16
ARTICLE 5
CONDITIONS PRECEDENT
5.01 Conditions to the Issuer's Obligations. The obligations of the Issuer
to provide LFC VI with the consideration provided for herein shall be subject to
the satisfaction of the following conditions:
(a) All representations and warranties of LFC VI contained in Section
3.01(a) of this Agreement and all information with respect to the Lease
Receivables and the Related Security provided in the Lease Collateral Schedule
or Amended Lease Collateral Schedule, as applicable, shall be true and correct
on the related Acquisition Date, all representations and warranties in Section
3.01(b) hereof, shall be true and correct as of the Initial Funding Date and
each other Acquisition Date, and LFC VI shall have delivered to the Issuer, the
Indenture Trustee and each Noteholder an officer's certificate to such effect;
(b) LFC VI shall have delivered all other information theretofore required
or reasonably requested by the Issuer to be delivered by LFC VI hereunder, duly
certified by an officer of LFC VI, and LFC VI shall have substantially performed
all other obligations required to be performed by the provisions of this
Agreement;
(c) On or prior to the Initial Funding Date and the applicable Acquisition
Date, LFC VI shall have delivered or caused to be delivered the Lease Contracts
relating to the Lease Receivables to the Indenture Trustee and there shall have
been made all filings, recordings and/or registrations, and there shall have
been given, or taken, any notice or any other similar action, as may be
necessary to meet the requirements in the relevant jurisdiction for perfection
of the transfer to the Issuer and in order to establish and preserve the right,
title and interest of the Issuer in the Lease Receivables and its security
interests in the Related Security, provided however, that with respect to
financing statements only those filings specified in Section 4.02(a) of the
Indenture shall be required to be filed;
(d) On or before the Closing Date, LFG, LFC VI, the Issuer, the Servicer
and the Indenture Trustee, as applicable, shall have entered into the Servicing
Agreement, the Lease Acquisition Agreement, the Indenture and this Agreement;
(e) All of the Notes shall be issued and sold on the Closing Date and the
Issuer shall receive the full consideration due it upon the issuance of such
Notes.
5.02 Conditions to LFC VI's Obligations. The obligations of LFC VI to enter
into this Agreement on the Closing Date and any LFC VI Certificate on a
subsequent Acquisition Date shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of the Issuer contained in this
Agreement shall be true and correct with the same effect as though such
representations and warranties had been made on the Closing Date;
(b) The Financing Proceeds set forth herein shall have been paid or
delivered to or at the direction of LFC VI simultaneously with the execution of
this Agreement or the LFC VI Certificate as applicable; and
17
(c) All corporate and legal proceedings and all instruments in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to LFC VI, and LFC VI shall have received from the Issuer
copies of all documents (including, without limitation, records of corporate
proceedings) relevant to the transactions herein contemplated as LFC VI may
reasonably have requested.
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ARTICLE 6
TERM AND TERMINATION
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 final payment
with respect to the last Lease Receivable is collected.
6.02 Default by LFC VI. If LFC VI shall be in default under this Agreement
and such default shall not have been cured for a period of 30 days, or if LFC VI
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 LFC VI are not stayed or
dismissed within 60 days after being commenced against LFC VI under any
bankruptcy, insolvency or other law for the relief of debtors, the Issuer shall
have the right, in addition to any other rights it may have under any applicable
law, to terminate this Agreement upon written notice to LFC VI; provided that
any termination of this Agreement shall not release LFC VI from any obligation
under this Agreement with respect to interests in Lease Receivables and Related
Security acquired by Issuer prior to such termination.
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ARTICLE 7
MISCELLANEOUS
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 Issuer and LFC VI only with the prior written consent of the
Indenture Trustee and the Majority Noteholders and satisfaction of the Rating
Agency Condition. Promptly after execution by the Issuer and LFC VI of any
amendment pursuant to this Section, the Issuer shall mail to each Noteholder a
copy of such amendment.
7.02 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED THEREIN, WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS OF ANY STATE THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF
A STATE OTHER THAN NEW YORK.
7.03 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE
PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS CONTRACT ACQUISITION
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE
RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
7.04 Notices. All demands, notices and communications hereunder shall be in
writing and shall be delivered by telecopy with confirmation of receipt or
mailed by registered or certified United States mail, postage prepaid, and
addressed, in the case of LFC VI, to the LFC VI Address, and in the case of the
Issuer, to the Issuer Address. 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.
7.05 Separability Clause. Any provisions of this Agreement which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.06 Assignment. Except as provided in Section 4.01(a) and Section 4.03,
this Agreement may not be assigned or delegated by LFC VI without the prior
written consent of the Issuer, the Majority Noteholders and the Indenture
Trustee and may not be assigned or delegated by the Issuer without the prior
written consent of LFC VI, the Majority Noteholders and the Indenture Trustee.
20
7.07 Further Assurances. Each of LFC VI and the Issuer agrees to do such
further acts and things and to execute and deliver to the Issuer, the Indenture
Trustee and the Majority Noteholders such additional assignments, agreements,
powers and instruments as are required by the Issuer, the Indenture Trustee and
the Majority Noteholders to carry into effect the purposes of this Agreement or
to better assure and confirm unto the Issuer, the Indenture Trustee or the
Noteholders their rights, powers or remedies hereunder. If any Obligor shall be
in default under any Lease Contract, upon reasonable request from the Servicer,
LFC VI 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
Issuer, the Indenture Trustee and the Noteholders therein against the claims of
all persons and parties to the extent LFC VI is capable of performing such
requested steps and the Servicer reasonably determines that the assistance of
LFC VI is necessary to effect the intent and purposes hereof.
7.08 No Waivers; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Issuer or LFC VI, 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.
7.09 Binding Effect; Third Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the Indenture Trustee,
the Noteholders, and their respective successors and permitted assigns.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original, and all of which when taken together shall constitute one and the same
Agreement.
7.11 Set-Off.
(a) LFC VI 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 Issuer at any time held
by or in the possession of LFC VI.
(b) The Issuer shall have the right to set-off against LFC VI any amounts
to which LFC VI may be entitled and to apply such amounts to any claims the
Issuer may have against LFC VI from time to time under this Agreement. Upon any
such set-off the Issuer shall give notice of the amount thereof and the reasons
therefor.
7.12 Consent to Jurisdiction.
(a) The parties hereto hereby irrevocable submit to the non-exclusive
jurisdiction of the United States District Court for the Southern District of
New York and any court in the State of New York Located in the City and County
of New York, and any appellate court from any thereof, in any action, suit or
proceeding brought against or by it in connection with this Agreement or for
recognition or enforcement of any judgment relating thereto, and the parties
hereto hereby irrevocably and unconditionally agree that all claims in respect
of any such action or proceeding may be heard or determined in such New York
state court or, to the extent permitted by law, in such federal court. The
parties agree that a final nonappealable
21
judgment in any such action, suit or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. To the extent permitted by applicable law, the parties hereby
waive and agree not to assert by way of motion, as a defense or otherwise in any
such suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of such courts, that the suit, action or proceeding is brought
in an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that the related documents or the subject matter thereof may not be
litigated in or by such courts.
(b) To the extent permitted by applicable law, the parties shall not seek
and hereby waive the right to any review of the judgment of any such court by
any court of any other jurisdiction which may be called upon to grant an
enforcement of such judgment.
(c) Service on any party hereto may be made by mailing or delivering
copies of the summons and complaint and other process which may be served in any
suit, action or proceeding to such party at its address listed in herein or in
the other Transaction Documents. Such address may be changed by the applicable
party or parties by written notice to each of the other parties hereto.
(d) Nothing contained in this Agreement shall limit or affect any party's
right to serve process in any other manner permitted by law or to start legal
proceedings relating to its rights under other agreements or against any other
party or its properties in the courts of any jurisdiction.
* * * * *
22
IN WITNESS WHEREOF, the Issuer and LFC VI have caused this Agreement to be
duly executed by their respective duly authorized officers as of the date and
year first above written.
LADCO FUNDING CORP. VI,
LFC VI
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President
LADCO FUNDING CORP. VII,
Issuer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President
EXHIBIT A
FORM OF LFC VI CERTIFICATE
Ladco Funding Corp. VII
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ______________
Norwest Bank Minnesota, National Association
Sixth Street & Marquette Avenue
MAC N9311-161
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
/Asset Backed Securities Administration
SunTrust Equitable Securities Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: _______________
Re: Receivables Purchase Agreement, dated as of June 1, 2000 (the
"Agreement"), between Ladco FCorp. VI ("LFC VI") and Ladco Funding
Corp. VII ("Issuer")
Ladies and Gentlemen:
1. This Certificate is being delivered pursuant to Section 2.01 of the
Agreement and Section 3.03 of the Indenture. Capitalized terms used herein shall
have the meanings assigned to such terms in the Agreement.
2. LFC VI hereby:
(a) transfers, assigns, sells and grants to the Issuer, without recourse,
except as provided in the Agreement, as of the date specified below, any and all
of LFC VI's right, title and interest in and to all of the Lease Receivables
relating to each Lease Contract identified on Schedule I attached hereto (the
"Subject Lease Receivables"), whether now existing or hereafter arising;
(b) grants to the Issuer a security interest in all of LFC VI's right,
title and interest in and to the Related Security, whether now owned or
hereafter acquired;
(c) submits to the Indenture Trustee the original Lease Contract for each
lease of the Subject Lease Receivables, together with the executed Release
Agreement, if applicable; and
(d) represents and warrants to the Issuer and the Indenture Trustee as
secured party for the benefit of the Noteholders that this LFC VI Certificate
has been duly authorized, executed and delivered.
LADCO FUNDING CORP. VI
Date: __________________
By: ______________________________
Name: ____________________________
Title: ___________________________
