EXHIBIT 4.1
NEWCOURT RECEIVABLES CORPORATION
as Buyer
and
NEWCOURT FINANCIAL USA INC.
as Seller
PURCHASE AGREEMENT
Dated as of December 12, 1996
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of December 12,
1996 (this "Agreement"), by and between NEWCOURT
FINANCIAL USA INC., a Delaware corporation (the
"Financing Originator"), and NEWCOURT RECEIVABLES
CORPORATION, a Delaware corporation (the "Buyer").
W I T N E S S E T H :
WHEREAS; the Buyer desires to purchase from the
Financing Originator and the Financing Originator desires
to sell to the Buyer certain contracts originated or
purchased by the Financing Originator in its normal
course of business, together with, among other things the
related rights of payment thereunder and the interest of
the Financing Originator in the related equipment and
other interests securing the payments to be made under
such contracts; and
WHEREAS, each of the Buyer and the Financing
Originator is a wholly owned subsidiary of Newcourt
Credit Group USA Inc., a Delaware corporation, which in
turn is a wholly owned subsidiary of Newcourt Credit
Group Inc., an Ontario corporation.
NOW, THEREFORE, it is hereby agreed by and
between the Buyer and the Financing Originator as
follows:
ARTICLE I
GENERAL
Section 1.1 Definitions. For all purposes of
this Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires,
capitalized terms used herein shall have the following
meanings assigned to them:
"ADCB" shall have the meaning ascribed to such
term in the Pooling Agreement.
"Affiliate" shall have the meaning ascribed to
such term in the Pooling Agreement.
"Agreement" shall mean this Purchase Agreement,
as the same shall be amended, supplemented or modified
from time to time.
"Applicable Security" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Business Day" shall have the meaning ascribed
to such term in the Pooling Agreement.
"Category I Contract" shall mean any Series
1996-3 Contract which is an End-User Contract with an
Obligor that is a governmental entity or municipality.
"Category II Contract" shall mean any Series
1996-3 Contract which is an End-User Contract which
finances, or leases or is related to Software.
"Category III Contract" shall mean the
Guaranteed Residual Investment associated with any Series
1996-3 Contract.
"Category IV Contract" shall mean each Series
1996-3 Contract which is an End-User Contract and which
in the reasonable judgment of the Financing Originator is
a "true-lease."
"Closing Date" shall mean December 12, 1996.
"Contract" shall have the meaning ascribed to
such term in the Pooling Agreement.
"Contract Files" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Contract Specification Certificate" shall have
the meaning set forth in Section 2.1.2 hereof.
"Credit Guidelines" shall have the meaning
ascribed to such term in the Pooling Agreement.
"CSA" shall have the meaning ascribed to such
term in the Pooling Agreement.
"Cut-Off Date" means October 31, 1996.
"Defaulted Contract" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Discount Rate" shall mean, as of any date of
determination, the weighted average of the Series
Discount Rates for each Series outstanding on such date.
"Discounted Contract Balance" shall have the
meaning ascribed to such term in the Pooling Agreement.
"Eligible Secondary Contract" shall mean, (i)
each Secondary Contract as to which all of the
representations and warranties of the Financing
Originator in Section 4.2.2 hereof are true, complete and
correct except clauses 4.2.2(b), (h) (with respect to
ownership by the Financing Originator of the Contract)
and (w), and except that the term "Obligor" shall mean
"End-User" in each case, (ii) each Secondary Contract and
proceeds thereof in which the Financing Originator has a
duly perfected first priority lien; and (iii) each
Secondary Contract where the transfer of the Financing
Originator's security interest therein to the Buyer has
created a valid first priority security interest in such
Secondary Contract and the proceeds thereof in favor of
the Buyer which has been duly perfected.
"End-User" shall have the meaning ascribed to
such term in the Pooling Agreement.
"End-User Contract" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Equipment" shall have the meaning ascribed to
such term in the Pooling Agreement.
"Excess Concentration Amount" shall have the
meaning specified in the Pooling Agreement.
"Excluded Amounts" means (i) any collections on
or with respect to the Series 1996-3 Contracts or related
Equipment, which collections are attributable to any
taxes, fees or other charges imposed by any Governmental
Authority, (ii) any collections representing
reimbursements or insurance premiums or payments for such
services that were not financed by the Financing
Originator and (iii)any proceeds from the sale or other
disposition of Equipment in excess of the difference
between (x) the Discounted Contract Balance of the
related Series 1996-3 Contract as of the Cut-Off Date,
over (y) the present value as of the Cut-Off Date of all
amounts actually received by the Buyer in respect of such
Series 1996-3 Contract, discounted monthly at the
Applicable Series Discount Rate.
"Filing Locations" shall mean the States of
Indiana, Delaware, each State in which a Vendor is
located (as defined in the Relevant UCC State) and each
jurisdiction where Equipment is located (as defined in
the Relevant UCC State).
"Financing Agreement" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Financing Originator" shall mean Newcourt
Financial USA Inc., a Delaware corporation.
"Governmental Authority" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Guaranteed Residual Investment" shall have the
meaning ascribed to such term in the Pooling Agreement.
"Insolvency Event" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Insolvency Laws" shall mean the Bankruptcy
Code of the United States of America and all other
applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency,
reorganization, suspension of payments, or similar debtor
relief laws from time to time in effect affecting the
rights of creditors generally.
"Insurance Proceeds" shall have the meaning
ascribed to such term in the Pooling Agreement.
"IPA" shall have the meaning ascribed to such
term in the Pooling Agreement.
"Issuer Trustee" shall mean the institution
executing the Pooling Agreement as Issuer Trustee, or its
successor in interest, or any successor trustee appointed
as herein provided.
"Lease" shall have the meaning ascribed to such
term in the Pooling Agreement.
"Lessee" shall mean, with respect to any Lease,
the End-User with respect to such Lease.
"Lien" shall mean any mortgage, pledge,
hypothecation, assignment for security, security
interest, encumbrance, ▇▇▇▇, ▇▇▇▇ or charge of any kind,
whether voluntarily incurred or arising by operation of
law or otherwise, affecting any Property, including any
agreement to grant any of the foregoing, any conditional
sale or other title retention agreement, any lease in the
nature of a security interest, and the filing of or
agreement to file or deliver any financing statement
(other than a precautionary financing statement with
respect to a lease that is not in the nature of a
security interest) under the UCC or comparable law of any
jurisdiction.
"Liquidation Proceeds" shall mean with respect
to a Defaulted Contract, proceeds from the sale, lease or
re-lease of the Equipment, proceeds of the related
Insurance Policy and any other recoveries with respect to
such Defaulted Contract and the related Equipment, net of
Liquidation Expenses and amounts, if any, so received
that are required to be refunded to the Obligor on such
Contract.
"Low Balance Triad Contracts" shall mean the
Triad Contracts which on their respective dates of
execution had an outstanding balance of not more than $35,000.
"Newcourt" shall mean Newcourt Credit Group
Inc., an Ontario corporation.
"Obligor" shall mean, with respect to any
Series 1996-3 Contract, the Person or Persons obligated
to make payments with respect to such Series 1996-3
Contract, including any guarantor thereof.
"Officer's Certificate" shall mean a
certificate signed by any officer of a party hereto.
"Opinion of Counsel" shall mean a written
opinion of counsel acceptable to the Buyer and the
applicable Financing Originators, which counsel may be an
employee of the applicable Financing Originator or the
Buyer.
"PBCC" shall mean Pitney ▇▇▇▇▇ Credit
Corporation, a Delaware Corporation.
"PBCC Contract" shall mean each Series 1996-3
Contract listed on Schedule III hereto which the
Financing Originator purchased from PBCC pursuant to the
Asset Purchase Agreement, dated as of May 31, 1996.
"Permitted Liens" shall mean (a) with respect
to any Series 1996-3 Contract:
(i) Liens for state, municipal or other local
taxes if such taxes shall not at the time be
due and payable or if the Financing Originator
shall currently be contesting the validity
thereof in good faith by appropriate
proceedings and shall have set aside on its
books adequate reserves with respect thereto,
(ii) Liens in favor of the Buyer created under
this Agreement and (iii) Liens in favor of
third parties which are subordinate to the Lien
of the Buyer created under this Agreement on
terms having substantially similar effect to
those annexed hereto as Exhibit B;
and (b) with respect to the related Equipment:
(i) materialmen's, warehousemen's, mechanics'
and other liens arising by operation of law in
the ordinary course of business for sums not
due, (ii) Liens for state, municipal or other
federal taxes if such taxes shall not at the
time be due and payable or if the Financing
Originator shall currently be contesting the
validity thereof in good faith by appropriate
proceedings and shall have set aside on its
books adequate reserves with respect thereto,
(iii) Liens in favor of the Buyer created
pursuant to this Agreement and (iv) Liens in
favor of third parties which are subordinate to
the Lien of the Buyer created under this
Agreement on terms having substantially similar
effect to those annexed hereto as Exhibit B.
"Person" means any individual, sole
proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation,
institution, public benefit corporation, inn, joint stock
company, estate, entity or Governmental Authority.
"Prepayment Amount" shall have the meaning
specified in the Pooling Agreement.
"Prepaid Contract" shall have the meaning
specified in the Pooling Agreement.
"Pooling Agreement" shall mean the Pooling and
Servicing Agreement dated as of April 15, 1996 by and
among the NRC, as seller, Newcourt, as Servicer, Fleet
National Bank, as collateral agent, and Chemical Bank
Delaware, as issuer trustee.
Program Agreement" shall have the meaning
specified in the Pooling Agreement.
"Purchase Price" shall have the meaning
specified in Section 3.1.1 hereof.
"Recoveries" shall mean any and all recoveries
on account of a Defaulted Contract, including, without
limitation, any and all cash proceeds or rents realized
from the sale, lease or re-lease of repossessed Equipment
or other property, Insurance Proceeds, payments under a
guaranty, amounts representing late fees and penalties
and amounts received pursuant to a Program Agreement
(including, without limitation, amounts received from any
"ultimate net loss pool" that may have been created under
such Program Agreement), but in each case net of
Liquidation Expenses.
"Relevant UCC State" shall mean each
jurisdiction as to which the UCC in effect therein
governs the perfection of the ownership interest or
security interest of the Buyer pursuant to this
Agreement.
"Required Lease Cancellation Payment" shall
have the meaning set forth in Section 6.3.2 hereof.
"Requirements of Law" for any Person shall mean
the certificate of incorporation or articles of
association and by-laws or other organizational or
governing documents of such Person, and any material law,
treaty, rule or regulation, or determination of or
settlement with an arbitrator or Governmental Authority,
in each case applicable to or binding upon such Person or
to which such Person is subject.
"Resale Contracts" shall have the meaning
specified in Section 6.1.2 hereof.
"Resale Date" shall have the meaning specified
in Section 6.1.2 hereof.
"Residual Investment" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Sale Papers" shall have the meaning set forth
in Section 4.1(a) hereof.
"Scheduled Payment" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Secondary Contract" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Secured Obligations" shall have the meaning
set forth in Section 2.1.7 hereof.
"Secured or Unsecured Note" shall have the
meaning ascribed to such term in the Pooling Agreement.
"Series Discount Rate" shall have the meaning
specified in the Pooling Agreement.
"Series 1996-3 Assets" shall mean the
following:
(i) the Series 1996-3 Contracts specified
in Schedule I attached hereto, and all monies
due or to become due in payment of such Series
1996-3 Contracts on and after the Cut-Off Date,
any Prepayment Amounts, any payments in respect
of a casualty or early termination, and any
Recoveries received with respect thereto, but
excluding any Scheduled Payments due prior to
the Cut-Off Date and any Excluded Amounts;
(ii) the Equipment and the Applicable
Security related to the Series 1996-3 Contracts
including all proceeds from any sale or other
disposition of such Equipment;
(iii) the related Contract Files;
(iv) all payments made or to be made in
the future with respect to the Series 1996-3
Contracts or the related Obligor under any
Program Agreements or Vendor Assignments with
the Financing Originator and under any
guarantee or similar credit enhancement with
respect to the Series 1996-3 Contracts;
(v) all Insurance Proceeds with respect
to the Series 1996-3 Contracts; and
(vi) all income and proceeds of the
foregoing;
provided, that Series 1996-3 Assets shall not
include any Residual Investment other than a
Guaranteed Residual Investment.
"Series 1996-3 Contracts" means the Contracts
listed on Schedule I hereto
"Servicer" means Newcourt, in its capacity as
the Servicer under the Pooling Agreement, or any
subservicer or successor servicer under the Pooling
Agreement.
"Subordinated Residual Interest" shall have the
meaning ascribed to such term in the Pooling Agreement.
"Termination Date" shall have the meaning set
forth in Section 8.1 hereof.
"Triad" shall mean collectively, Triad Systems
Financial Corporation (formerly known as TSC Leasing
Corporation), a California corporation, and its
subsidiary, Orleans Leasing Corporation, a California
corporation.
"Triad Contracts" shall mean the Series 1996-3
Contracts originated by Triad.
"Trust" shall mean the trust created pursuant
to the Pooling Agreement and known as the "Newcourt
Receivables Asset Trust."
"UCC" shall mean the Uniform Commercial Code,
as amended from time to time, as in effect in any
specified jurisdiction.
"Vendor" shall have the meaning ascribed to
such term in the Pooling Agreement.
"Vendor Assignments" shall have the meaning
ascribed to such term in the Pooling Agreement.
"Vendor Note" shall have the meaning ascribed
to such term in the Pooling Agreement.
Section 1.2 Other Definitional Provisions.
The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement or any Sale
Paper shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; and Section,
Subsection, Schedule and Exhibit references contained in
this Agreement are references to Sections, Subsections,
Schedules and Exhibits in or to this Agreement unless
otherwise specified. All capitalized terms used and not
otherwise defined herein shall have the respective
meanings assigned thereto in the Pooling Agreement. In
the event that any term or provision contained herein
shall conflict with or be inconsistent with any term or
provision contained in the Pooling Agreement, the terms
and provisions contained herein shall govern with respect
to this Agreement.
[END OF ARTICLE I]
ARTICLE II
SALE AND CONVEYANCE OF CONTRACTS
Section 2.1 Sale.
2.1.1 The Financing Originator, in
consideration for the Purchase Price and upon the terms
and subject to the conditions set forth herein, does
hereby sell, assign, transfer, set-over, and otherwise
convey to the Buyer, without recourse (except to the
extent expressly provided herein), and the Buyer does
hereby purchase from the Financing Originator, on the
terms and subject to the conditions specifically set
forth herein, all of the Financing Originator's right,
title and interest in, to and under the Series 1996-3
Assets. The foregoing sale, transfer, assignment, set-
over and conveyance does not constitute and is not
intended to result in a creation or an assumption by the
Buyer of any obligation of the Financing Originator in
connection with the Series 1996-3 Contracts, or any
agreement or instrument relating thereto, including,
without limitation, any obligation to any Obligor or End-
User, or any other Person in respect of services not
financed by the Financing Originator, or (i) any taxes,
fees, or other charges imposed by any Governmental
Authority and (ii) any insurance premiums which remain
owing with respect to any Series 1996-3 Contract at the
time such Series 1996-3 Contract is sold hereunder.
Schedule I may be in the form of a computer file,
microfiche or written list and shall contain a true and
complete list prepared as of the Cut-Off Date, of all
End-User Contracts identified by contract type and
number, State to which invoices are delivered, general
description of Equipment subject to each End-User
Contract and the Discounted Contract Balance as of the
Cut-Off Date and which shall have attached to it a list
showing the Scheduled Payments for each End-User Contract
as of the Cut-Off Date. Schedule I is hereby
incorporated into this Agreement and made a part hereof.
2.1.2 On the Closing Date the Financing
Originator shall deliver an Officer's Certificate of a
Vice President or a more senior officer stating the
following with respect to the Series 1996-3 Contracts
("Contract Specification Certificate") sold to the Buyer
on the Closing Date:
(a) the ADCB as of the Cut Off Date of all Category
I Contracts listed on Schedule I;
(b) the ADCB as of the Cut Off Date of all Category
II Contracts listed on Schedule I;
(c) the aggregate nominal principal amount as of
the Cut Off Date of all Category III Contracts listed on
Schedule I; and
(d) the ADCB as of the Cut Off Date of all Category
IV Contracts listed on Schedule I.
2.1.3 The Financing Originator and the Buyer
hereby agree that in the event that the purchase of any
one or more Series 1996-3 Contracts on the Closing Date
would result in an Excess Concentration Amount as
determined by the Buyer, then the Buyer may in its sole
discretion choose not to purchase such Series 1996-3
Contracts.
2.1.4 (a) The Financing Originator agrees to
record and file in each Filing Location within 30 days
after the Closing Date, at its own expense, financing
statements (including any continuation statements with
respect to such financing statements when applicable)
with respect to the Series 1996-3 Assets described in
Section 2.1.1 meeting the requirements of law of the
applicable Filing Location in such manner and in such
Filing Locations as are necessary to perfect (to the
extent governed by the law of such Filing Locations) and
protect the interests of the Buyer created hereby under
the law of such Filing Location and against all creditors
of and purchasers from the Financing Originator, and to
deliver file-stamped copies of such financing statements
or continuation statements or other evidence of such
filings, which may, for purposes of this Section 2.1.4,
consist of telephone confirmations of such filings with
the file stamped copy to be provided to the Buyer as soon
as reasonably practicable after receipt thereof by the
Financing Originator.
(b) The Financing Originator shall deliver all
Instruments to the Buyer on the Closing Date. Pursuant
to Section 2.1(b)(ii) of the Pooling Agreement, the Buyer
is required to deliver any Instrument to the Issuer
Trustee. Accordingly, the Buyer hereby authorizes and
directs the Financing Originator to deliver any
Instruments to the Issuer Trustee on behalf of and for
the account of the Buyer, and agrees that such delivery
shall satisfy the condition set forth in the first
sentence of this Subsection 2.1.4(b). On or before the
Closing Date, the Financing Originator shall deliver to
the Buyer a computer file, microfiche or written list
containing a true and complete list, labeled on the first
page thereof as "Schedule II" and prepared as of the Cut-
Off Date, of all Series 1996-3 Contracts which are
Instruments identified by contract type and number.
Schedule II is hereby incorporated into this Agreement
and made a part hereof.
2.1.5 The Buyer shall not purchase Series
1996-3 Contracts from the Financing Originator if an
Insolvency Event shall have occurred with respect to the
Financing Originator.
2.1.6 In connection with the sale and
conveyance of Series 1996-3 Assets, the Financing
Originator agrees, at its own expense, on or prior to the
Closing Date, to indicate or cause to be indicated
clearly and unambiguously in its accounting records that
such Series 1996-3 Assets have been sold to the Buyer
pursuant to this Agreement as of the Closing Date.
2.1.7 It is the express intent of the
Financing Originator and the Buyer that the conveyance of
Series 1996-3 Assets described in Section 2.1.1 on the
Closing Date be construed as a sale of such Series 1996-3
Assets by the Financing Originator to the Buyer. It is,
further, not the intention of the Financing Originator or
the Buyer that such conveyance be deemed a grant of a
security interest in the Series 1996-3 Assets by the
Financing Originator to the Buyer to secure a debt or
other obligation of the Financing Originator to the
Buyer. However, in the event that, notwithstanding the
intent of the parties, the Series 1996-3 Assets are held
to continue to be property of the Financing Originator,
then (i) this Agreement also shall be deemed to be and
hereby is a security agreement within the meaning of the
UCC; and (ii) the conveyance by the Financing Originator
provided for in this Agreement shall be deemed to be and
the Financing Originator hereby grants to the Buyer a
security interest in and to all of the Financing
Originator's right, title and interest in, to and under
(A) the Series 1996-3 Contracts and all rights (but not
the obligations) relating to such Series 1996-3 Contracts
and all amounts due or to become due after the Cut-Off
Date, including all Scheduled Payments thereunder due on
or after the Cut-Off Date, any Prepayment Amounts, any
payments in respect of a casualty or early termination,
and any Recoveries received with respect thereto but
excluding any Scheduled Payments due prior to the Cut-Off
Date or any Excluded Amounts (B) the related Equipment
and Applicable Security, if any, (C) the related Contract
Files, (D) all payments made or to be made with respect
to each such Series 1996-3 Contract or the Obligor
thereunder, under any Program Agreements or Vendor
Assignments with the Financing Originator and under any
other guarantee or similar credit enhancement with
respect to the Series 1996-3 Contracts, (E) all Insurance
Policies and any Insurance Proceeds related to the Series
1996-3 Contracts and (F) all income and proceeds of the
foregoing to secure (1) the rights of the Buyer and (2) a
loan to the Financing Originator in the amount of the
Purchase Price as set forth in this Agreement (the
"Secured Obligations"). The Financing Originator and the
Buyer shall, to the extent consistent with this
Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a
security interest in the Series 1996-3 Assets described
in Section 2.1.1, such security interest would be deemed
to be a perfected security interest of first priority
(subject to Permitted Liens) in favor of the Buyer under
applicable law and will be maintained as such throughout
the term of this Agreement; provided that with respect to
any item of Equipment with respect to which title thereto
or a security interest therein is required to be noted on
a certificate of title or otherwise recorded, the
Financing Originator shall not be required to note the
name of the Collateral Agent on the certificate of title;
provided further, that to the extent financing statements
or similar filings are required with respect to any item
of related Equipment, the Financing Originator shall be
required to record such filings in the Filing Locations.
The Financing Originator and the Buyer may rely upon an
Opinion of Counsel addressed to them as to what is
required to provide the Buyer with such security
interest; and any such Opinion of Counsel shall permit
the Issuer Trustee and the applicable Indenture Trustee,
on behalf of the Noteholders, the Noteholders (in the
case of any Series issued in a private placement exempt
from the registration requirements of the Securities
Act), the Collateral Agent, and the Rating Agencies to
rely on it.
2.1.8 Immediately upon the release to the
Buyer by the Trustee, pursuant to Section 2.2(e) of the
Pooling Agreement, of Excluded Amounts, the Buyer hereby
irrevocably agrees to release to the Financing Originator
such Excluded Amounts, which release shall be automatic
and shall require no further act by the Buyer, provided,
that the Buyer shall execute and deliver such instruments
of release and assignment, or otherwise confirming the
foregoing release of any Excluded Amounts, as may be
reasonably requested by the Financing Originator.
[END OF ARTICLE II]
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price.
3.1.1 As consideration for the sale to the
Buyer by the Financing Originator of the Series 1996-3
Assets on the Closing Date, the Buyer shall pay (or cause
to be paid) to the Financing Originator an amount (the
"Purchase Price") equal to the ADCB of the Series 1996-3
Contracts on the Closing Date.
3.1.2 The Purchase Price shall be payable to
the Financing Originator on the Closing Date in cash.
[END OF ARTICLE III]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Financing Originator's
Representations and Warranties. The Financing Originator
hereby represents and warrants to the Buyer as of the
Closing Date that:
(a) Organization and Good Standing. The
Financing Originator is a corporation duly organized and
validly existing in good standing under the laws of the
State of Delaware and has full corporate power, authority
and legal right to own its property and conduct its
business as such properties are presently owned and as
such business is presently conducted and to execute,
deliver and perform its obligations under this Agreement
and each other document or instrument to be delivered by
the Financing Originator hereunder (collectively, the
"Sale Papers").
(b) Due Qualification. The Financing
Originator is duly qualified to do business and is in
good standing (or is exempt from such requirements), and
has obtained all necessary licenses and approvals, in
each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would have a material
adverse effect on its ability to perform its obligations
under the Sale Papers.
(c) Due Authorization. The execution and
delivery of the Sale Papers, and the consummation of the
transactions provided for herein and therein have been
duly authorized by the Financing Originator by all
necessary corporate action on the part of the Financing
Originator.
(d) No Conflict. The execution and delivery
of the Sale Papers, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof, will not conflict with, result in any breach of
any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or
both) a default under, any indenture, contract agreement,
mortgage, deed of trust, or other instrument to which the
Financing Originator is a party or by which it or any of
its property is bound.
(e) No Violation. The execution and delivery
of the Sale Papers, the performance of the transactions
contemplated by the Sale Papers and the fulfillment of
the terms thereof, will not conflict with or violate, in
any material respect, any Requirements of Law applicable
to the Financing Originator.
(f) No Proceedings. There are no proceedings
or investigations pending or, to the best knowledge of
the Financing Originator, threatened against it before
any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (i)
asserting the invalidity of the Sale Papers, (ii) seeking
to prevent the consummation of any of the transactions
contemplated thereby, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Financing
Originator, could reasonably be expected to be adversely
determined, and if adversely determined, would materially
and adversely affect the performance by the Financing
Originator of its obligations under the Sale Papers, (iv)
seeking any determination or ruling that would materially
and adversely affect the validity or enforceability
thereof, or (v) seeking any determination or ruling that
would materially and adversely affect the payment or
enforceability of the Series 1996-3 Contracts.
(g) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Governmental Authority required in connection with the
execution and delivery of the Sale Papers, the
performance of the transactions contemplated by the Sale
Papers and the fulfillment of the terms hereof and
thereof, have been obtained.
(h) Bulk Sales. The execution, delivery and
performance of this Agreement do not require compliance
with any "bulk sales" law by the Financing Originator.
(i) Solvency. The transactions contemplated
under the Sale Papers do not and will not render the
Financing Originator insolvent.
(j) Selection Procedures. No selection
procedures believed by the Financing Originator to be
materially adverse to the interests of the Buyer, the
Trust or the Noteholders were utilized by the Financing
Originator in selecting the Series 1996-3 Contracts.
(k) Use of Proceeds. No proceeds of the sale
of any Series 1996-3 Contract hereunder received by the
Financing Originator will be used by the Financing
Originator to purchase or carry any margin security.
(l) Not an Investment Company. The Financing
Originator is not an "investment company" within the
meaning of the Investment Company Act of 1940, as
amended, or is exempt from all provisions of such Act.
(m) Other Names. The legal name of the
Financing Originator is as set forth in this Agreement
and within the preceding five years the Financing
Originator has not used, and the Financing Originator
currently does not use, any tradenames, fictitious names,
assumed names or "doing business as" names other than
Confederation Leasing, Ltd. and Redbrick Financial
Services.
(n) Taxes. To the best of the Financing
Originator's knowledge, the Financing Originator has
filed all tax returns required to be filed in the normal
course of business and has paid or made adequate
provision for the payment of all taxes, assessments and
other governmental charges due from the Financing
Originator or is contesting any such tax, assessment or
other governmental charge in good faith through
appropriate proceedings; no tax lien has been filed and,
to the best of the Financing Originator's knowledge, no
claim is being asserted with respect to any such tax, fee
or other charge.
(o) Place of Business. The principal
executive offices of the Financing Originator are in
Indianapolis, Indiana and the offices where the Financing
Originator keeps its records concerning the Series 1996-3
Contracts are in San Jose, California, Indianapolis,
Indiana and Toronto, Ontario.
The representations and warranties set forth in
this Section 4.1 shall survive the sale, transfer and
assignment of the Series 1996-3 Contracts to the Buyer.
Upon discovery by the Financing Originator or the Buyer
of a material breach of any of the foregoing
representations and warranties, the party discovering
such breach shall give prompt written notice thereof to
the other and to the Issuer Trustee, the Indenture
Trustee, the Collateral Agent, and the Rating Agencies
immediately upon obtaining knowledge of such breach.
Section 4.2 Financing Originator's
Representations and Warranties Regarding Series 1996-3
Contracts.
4.2.1 Binding Obligation; Valid Transfer and
Security Interest. The Financing Originator hereby
represents and warrants to the Buyer as of the Cut-Off
Date that:
(a) Each of the Sale Papers constitutes a
legal, valid and binding obligation of the Financing
Originator, enforceable against the Financing
Originator in accordance with its terms, except as
such enforceability may be limited by Insolvency
Laws and except as such enforceability may be
limited by general principles of equity (whether
considered in a suit at law or in equity) or by an
implied covenant of good faith and fair dealing.
(b) This Agreement constitutes either (A) a
valid transfer to the Buyer of all right, title and
interest of the Financing Originator in, to and the
Series 1996-3 Assets (other than any Residual
Investment that is not a Guaranteed Residual
Investment), and such property will be held by the
Buyer free and clear of any Lien of any Person
claiming through or under the Financing Originator
or its Affiliates, except for Permitted Liens, or
(B) a grant of a security interest (as defined in
the Relevant UCC State) in such property to the
Buyer. Upon the filing of the financing statements,
the Buyer shall have a first priority perfected
security interest in such property, subject only to
Permitted Liens except with respect to any item of
Equipment that is a vehicle subject to vehicle
registration statutes. If this Agreement
constitutes the grant of a security interest in the
Secured Obligations, neither the Financing
Originator nor any Person claiming through or under
the Financing Originator shall have any claim,
except for the interest of the Financing Originator
in such property as a debtor for purposes of the UCC
as in effect in the Relevant UCC State.
(c) Schedule I to this Agreement is, as of the
Cut Off Date, an accurate and complete listing in
all material respects of the Series 1996-3 Contracts
which are End-User Contracts and the information
contained therein is true and correct in all
material respects as of the Cut Off Date.
(d) Schedule II to this Agreement is, as of the
Cut Off Date, an accurate and complete listing in
all material respects of the Series 1996-3 Contracts
which are Instruments.
(e) Schedule III to this Agreement is, as of
the Cut Off Date, an accurate and complete listing
in all material respects of the PBCC Contracts.
(f) Each End-User Contract has been transferred
to the Buyer free and clear of any Lien of any
Person (other than Permitted Liens) and in
compliance, in all material respects, with all
Requirements of Law applicable to the Financing
Originator and with respect to each Series 1996-3
Contract, all material consents, licenses, approvals
or authorizations of or registrations or
declarations with any Governmental Authority
required to be obtained, effected or given by the
Financing Originator in connection with the transfer
of such Series 1996-3 Contract to the Buyer have
been duly obtained, effected or given and are in
full force and effect; provided, however, that the
Financing Originator and the Buyer have agreed that
the certificates of title to any vehicles included
in the Equipment will not be re-registered to
indicate the sale of such vehicles to the Buyer or
the transfer from the Financing Originator to the
Buyer of the Financing Originator's security
interest in such vehicles.
4.2.2 Eligibility of Contracts. The Financing
Originator hereby represents and warrants to the Buyer as
of the Cut-Off Date, with respect to each Series 1996-3
Contract sold hereunder, that:
(a) the information delivered hereunder
(including without limitation, in the Contract
Specification Certificate) with respect to such
Series 1996-3 Contract, any related Secondary
Contract and any related Equipment is true and
correct in all material respects;
(b) immediately prior to the transfer of such
Series 1996-3 Contract to the Buyer, such Series
1996-3 Contract was owned by the Financing
Originator free and clear of any adverse claim;
(c) except as otherwise stated on Schedule I,
such Series 1996-3 Contract did not have a Scheduled
Payment that was a delinquent payment for more than
60 days, and such Series 1996-3 Contract is not
otherwise a Defaulted Contract;
(d) no provision of such Series 1996-3
Contract has been waived, altered or modified in any
respect, except by instruments or documents
contained in the Contract File (other than payment
delinquencies permitted under clause (c) above);
(e) such Series 1996-3 Contract is a valid and
binding payment obligation of the related Obligor
and is enforceable in accordance with its terms
(except as may be limited by applicable Insolvency
Laws, and the availability of equitable remedies);
(f) such Series 1996-3 Contract is not and
will not be subject to rights of rescission, setoff,
counterclaim or defense and, to the Financing
Originator's knowledge, no such rights have been
asserted or threatened with respect to such Series
1996-3 Contract;
(g) such Series 1996-3 Contract, at the time
it was made, did not violate the laws of the United
States or any state;
(h)(A) such Series 1996-3 Contract and any
related Equipment have not been sold, transferred,
assigned or pledged by the Financing Originator to
any other person (other than the sale of the related
Equipment to the End-User in connection with CSAs,
Secured Notes and "non-true leases" and a related
Residual Investment (other than a Guaranteed
Residual Investment, and any related Subordinated
Residual Interest) and, with respect to a "true
lease," any related Equipment is free and clear of
any Liens of any third parties except for any
Subordinated Residual Interest and Permitted Liens
and (B) either (1) such Series 1996-3 Contract is
secured by a fully perfected first priority security
interest in the related Equipment, or in the case of
a Vendor Note, the related Applicable Security
(except for the Equipment related to the Low Balance
Triad Contracts) or (2) in the case of a Series
1996-3 Contract secured by vehicle(s) subject to
state certificate of title statutes, either (x)
within 30 calendar days of the origination or
acquisition of such Series 1996-3 Contract by the
Financing Originator an application was filed in the
appropriate state office to note the Financing
Originator's interest on the certificate of title
for such vehicle and such interest will be so noted
within 180 days of such acquisition or origination
or (y) a certificate of title on which such
Financing Originator's interest has been noted has
been obtained;
(i) if such Series 1996-3 Contract constitutes
either "chattel paper" or an "instrument" (as
defined in the Relevant UCC State), there is not
more than one "secured party's original" or "payee's
original" counterpart of such Series 1996-3
Contract;
(j) all filings necessary to evidence the
conveyance or transfer of such Series 1996-3
Contract and security interest in any related
Equipment or Applicable Security (except for the
Equipment related to the Low Balance Triad
Contracts) to the Buyer have been made in all
appropriate jurisdictions;
(k) to the Financing Originator's knowledge,
the Obligor under such Series 1996-3 Contract is not
subject to bankruptcy or other insolvency
proceedings;
(l) the related billing address is in the
United States and such Series 1996-3 Contract is a
U.S. dollar-denominated obligation;
(m) such Series 1996-3 Contract does not
require the prior written consent of the related
Obligor or contain any other restriction on the
transfer or assignment thereof (other than a consent
or waiver of such restriction that has been obtained
prior to the Closing Date);
(n) either (x) the obligations of the Obligor
under such Series 1996-3 Contract are irrevocable
and unconditional and non-cancelable or (y) with
respect to certain Leases with Lessees that are
governmental entities or municipalities, if such
Lease is cancelled, in accordance with its terms,
either (1) the Vendor that assigned such Lease to
the Financing Originator is unconditionally
obligated to repurchase such Lease from the
Financing Originator for a purchase price not less
than the Discounted Contract Balance of such Lease
(as of the date of repurchase) plus interest thereon
at the Discount Rate through the Distribution Date
following the date of repurchase or (2) the
Financing Originator has provided to the Buyer the
indemnity required under Section 6.3.2;
(o) such Series 1996-3 Contract has an
original maturity of not greater than the term
specified in Schedule I;
(p) no adverse selection procedure was used in
selecting such Series 1996-3 Contract;
(q) the Obligor under such Series 1996-3
Contract is required to maintain casualty insurance
or to self-insure with respect to the related
Equipment in accordance with the Servicer's normal
requirements;
(r) such Series 1996-3 Contract or Secondary
Contract constitutes "chattel paper," evidence of an
"account," an "instrument" or a "general intangible"
as defined in the Relevant UCC State;
(s) such Series 1996-3 Contract is not a
"consumer lease" as defined in Section 2A-103(1)(e)
of the UCC of the Relevant UCC State;
(t) if such Series 1996-3 Contract is a Lease,
the related Lessee has represented to the Financing
Originator or to the related Vendor that it has
accepted the related Equipment and that it has had a
reasonable opportunity to inspect and test such
Equipment and the Financing Originator has not been
notified of any defects therein;
(u) such Series 1996-3 Contract is not subject
to any guarantee by the Financing Originator (or any
Affiliate thereof) nor has the Financing Originator
established any specific credit reserve with respect
to the related Obligor;
(v) if such Series 1996-3 Contract is a Lease,
then it is a "triple net lease" under which the
related End-User is responsible for the maintenance
of the related Equipment in accordance with general
industry standards applicable to such item of
Equipment;
(w) if such Series 1996-3 Contract is a Vendor
Note, such Vendor Note is secured by an Eligible
Secondary Contract;
(x) no provision of such Series 1996-3
Contract provides for a Prepayment Amount less than
the amount calculated in accordance with the
definition thereof, unless either (I) the related
Vendor has indemnified the Financing Originator in
an amount equal to the excess of the "Prepayment
Amount" as calculated in accordance with the
definition thereof over the amount otherwise payable
(under the terms of such Series 1996-3 Contract, or
under applicable law) upon a prepayment under such
Series 1996-3 Contract, or (II) the Financing
Originator has provided to the Buyer the indemnity
provided in Section 6.3.1;
(y) such Series 1996-3 Contract is not an
obligation of the United States of America or
agency, department, or instrumentality of the United
States of America; and
(z) if such Series 1996-3 Contract is a PBCC
Contract, such Contract and the related Vendor, if
any, have been re-underwritten by the Seller using
the standard credit underwriting procedures set
forth in the Credit Guidelines.
4.2.3 Eligible Secondary Contracts. The
Financing Originator hereby represents and warrants to
the Buyer as of the Closing Date that each Series 1996-3
Contract which is a Secondary Contract is an Eligible
Secondary Contract.
4.2.4 Notice of Breach. The representations
and warranties set forth in this Section 4.2 shall
survive the sale, transfer and assignment of the Series
1996-3 Assets to the Buyer. Upon discovery by the
Financing Originator or the Buyer of a material breach of
any of the representations and warranties set forth in
this Section 4.2, the party discovering such breach shall
give written notice thereof to the other and to the
Issuer Trustee, the Indenture Trustee, the Collateral
Agent and the Rating Agencies immediately upon obtaining
knowledge of such breach. The Financing Originator
agrees to cooperate with the Buyer in attempting to cure
any such breach.
Section 4.3 Representations and Warranties of
the Buyer. The Buyer hereby represents and warrants to
the Financing Originator as of the Closing Date, that:
4.3.1 Organization and Good Standing. The
Buyer is a corporation duly organized and validly
existing in good standing under the laws of the State of
Delaware, and has full corporate power, authority and
legal right to own its properties and conduct its
business as such properties are presently owned and such
business is presently conducted, and to execute, deliver
and perform its obligations under the Sale Papers.
4.3.2 Due Qualification. The Buyer is duly
qualified to do business and is in good standing as a
foreign corporation (or is exempt from such
requirements), and has obtained or will obtain all
necessary licenses and approvals, in each jurisdiction in
which failure to so qualify or to obtain such licenses
and approvals would have a material adverse effect on its
ability to perform its obligations under the Sale Papers.
4.3.3 Due Authorization. The execution and
delivery of the Sale Papers and the consummation of the
transactions provided for in the Sale Papers have been
duly authorized by the Buyer by all necessary corporate
action on the part of the Buyer.
4.3.4 No Conflicts. The execution and
delivery of the Sale Papers, the performance of the
transactions contemplated under the Sale Papers and the
fulfillment of the terms thereof will not conflict with,
result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any indenture,
contract, agreement, mortgage, deed of trust, or other
instrument to which the Buyer is a party or by which it
or any of its property is bound.
4.3.5 No Violation. The execution and
delivery of the Sale Papers, the performance of the
transactions contemplated by the Sale Papers, and the
fulfillment of the terms of the Sale Papers will not
conflict with or violate, in any material respect, any
Requirements of Law applicable to the Buyer.
4.3.6 No Proceedings. There are no
proceedings or investigations pending or, to the best
knowledge of the Buyer, threatened against the Buyer,
before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality (i)
asserting the invalidity of the Sale Papers, (ii) seeking
to prevent the consummation of any of the transactions
contemplated thereby, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Buyer,
could reasonably be expected to be adversely determined,
and if adversely determined, would materially and
adversely affect the performance by the Buyer of its
obligations under the Sale Papers, (iv) seeking any
determination or ruling that would materially and
adversely affect the validity or enforceability thereof
or (v) seeking any determination or ruling that would
materially and adversely affect the payment or
enforceability of the Series 1996-3 Contracts taken as a
whole.
4.3.7 All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of the Sale
Papers, the performance of the transactions contemplated
by the Sale Papers, and the fulfillment of or terms of
the Sale Papers have been obtained.
4.3.8 Solvency. The transactions under this
Agreement do not and will not render the Buyer insolvent.
4.3.9 Binding Obligation. Each of the Sale
Papers to which it is a party, and the consummation of
the transactions provided for therein, constitutes a
legal, valid and binding obligation of the Buyer,
enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect, affecting the
enforcement of creditors' rights in general and as such
enforceability may be limited by general principles of
equity (whether considered in a proceeding at law or in
equity).
The representations and warranties set forth in
this Section 4.3 shall survive the sale, transfer and
assignment of the Series 1996-3 Assets to the Buyer.
Upon discovery by the Buyer or the Financing Originator
of a material breach of any of the foregoing
representations and warranties, the party discovering
such breach shall give written notice to the other and to
the Trustee, the Indenture Trustee, and the Collateral
Agent immediately upon obtaining knowledge of such
breach.
[END OF ARTICLE IV]
ARTICLE V
COVENANTS
Section 5.1 Financing Originator Covenants.
The Financing Originator hereby covenants with respect to
each Series 1996-3 Contract, that:
(a) Security Interests. Except for the
transfers hereunder and any Residual Investment that
is not a Guaranteed Residual Investment, the
Financing Originator will not sell, pledge, assign
or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on such
Series 1996-3 Contract or any related Secondary
Contract, Equipment or Applicable Security or any
interest therein. The Financing Originator shall
immediately notify the Buyer of the existence of any
Lien, other than Permitted Liens, on such Series
1996-3 Contract or any related Secondary Contract,
Equipment or Applicable Security; and the Financing
Originator shall defend the right, title and
interest of the Buyer in, to and under such Series
1996-3 Contract and any related Secondary Contract,
Equipment and Applicable Security, against all
claims of third parties; provided, however, that
nothing in this Section 5.1(a) shall prevent or be
deemed to prohibit the Financing Originator from
suffering Permitted Liens to exist upon such Series
1996-3 Contract or any related Secondary Contract or
Equipment.
(b) Delivery of Collections. In the event the
Financing Originator receives any payments in
respect of such Series 1996-3 Contract, the
Financing Originator agrees to deposit such amounts
into the Collection Account within two Business Days
of the Date of Processing.
(c) Compliance with Law. The Financing
Originator hereby agrees to comply in all material
respects with all Requirements of Law applicable to
the Financing Originator.
(d) Merger; Sales. The Financing Originator
shall not enter into any transaction of merger or
consolidation, or liquidate or dissolve itself (or
suffer any liquidation or dissolution), or acquire
or be acquired by any Person, or convey, sell, lease
or otherwise dispose of all or substantially all of
its property or business, except as provided for in
Section 9.14.
(e) Location of Records. The Financing
Originator (i) shall not move outside the State of
Indiana, the location of its chief executive office
or the location of the Contract Files from the
location(s) thereof on the Closing Date without 45
days' prior written notice to the Buyer, the Issuer
Trustee and the Collateral Agent which notice shall
state whether, as a result of such relocation, the
applicable provisions of the UCC and the Personal
Property Security Act (Ontario), if applicable,
would require or make advisable the filing of any
amendment of any previously filed financing or
continuation statement or of any new financing
statement; (ii) shall promptly take all actions
required (including but not limited to all filings
and other acts necessary or advisable under the UCC
of the Relevant UCC State and the Personal Property
Security Act (Ontario), if applicable), of each
relevant jurisdiction. The Financing Originator
shall give the Buyer, the Issuer Trustee and the
Collateral Agent prompt notice of a change within
the State of Indiana of the location of its chief
executive office; and (iii) shall at all times
maintain each office from which it services
Contracts and its principal executive office within
the United States of America and Canada, provided,
the Financing Originator shall not relocate its
principal executive office to within the
jurisdiction of the Court of Appeals of the United
States for the 10th Circuit unless the Rating Agency
Condition shall have been satisfied with respect
thereto.
(f) Contracts not to be Evidenced by
Instruments. The Financing Originator will take no
action to cause any Series 1996-3 Contract which is
not, as of the Closing Date, evidenced by any
Instrument, to be so evidenced except in connection
with the enforcement or collection of such Series
1996-3 Contract.
(g) Delivery of Instruments. Following the
Closing Date, the Financing Originator shall deliver
to the Buyer all Series 1996-3 Contracts which shall
become evidenced by Instruments in order to continue
the first priority perfected security interest of
the Buyer in such Series 1996-3 Contracts. Pursuant
to Section 2.1(b)(ii) of the Pooling Agreement, the
Buyer is required to deliver any Instrument to the
Issuer Trustee. Accordingly, the Buyer hereby
authorizes and directs the Financing Originator to
deliver any Instruments to the Issuer Trustee, on
behalf of and for the account of the Buyer, and
agrees that such delivery shall satisfy the
condition set forth in the first sentence of this
Subsection 5.1(g).
Section 5.2 Covenant Regarding Sale Treatment.
The Buyer and the Financing Originator agree to treat all
conveyances hereunder for all purposes (including,
without limitation, tax and financial accounting
purposes) as a sale on all relevant books, records, tax
returns, financial statements and other applicable
documents.
[END OF ARTICLE V]
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 Mandatory Repurchase.
6.1.1 Breach of Warranty. On and after the
Closing Date, in the event that any of the
representations and warranties of the Financing
Originator with respect to a Series 1996-3 Contract set
forth in Section 4.2.1 or Section 4.2.2 shall not have
been true and correct as of the Closing Date, then no
later than 90 days after receipt by the Financing
Originator of written notice of such breach given by the
Buyer, the Financing Originator shall accept a retransfer
of each such Series 1996-3 Contract, or in the case of a
breach with respect to a Secondary Contract (except for a
Triad Contract), the related Vendor Note, on the terms
and conditions set forth below, or in the case of a
breach with respect to a Secondary Contract which is a
Triad Contract, the principal amount of the Triad Vendor
Note shall be reduced on the terms and conditions set
forth below; provided, however, that no such retransfer
or reduction shall be required to be made with respect to
any such Series 1996-3 Contract if, on any day within
such 90 day period, the representations and warranties in
Section 4.2.1 and Section 4.2.2 with respect to the
Series 1996-3 Contract shall then be true and correct in
all material respects as if such Series 1996-3 Contract
had been sold to the Buyer on such day. Notwithstanding
anything contained in this Section 6.1.1 to the contrary,
in the event of a breach with respect to (i) any Series
1996-3 Contract having been sold to the Buyer free and
clear of any Lien of any Person claiming through or under
the Financing Originator or its Affiliates and in
compliance in all material respects with all Requirements
of Law applicable to the Financing Originator, or (ii)
the transfer of the Financing Originator's security
interest in such Series 1996-3 Contract being effective
to create in favor of the Buyer a duly perfected security
interest in such Series 1996-3 Contract and any related
Applicable Security and in compliance in all material
respects with all Requirements of Law applicable to the
Financing Originator, immediately upon the earlier to
occur of the discovery of such breach by the Financing
Originator or receipt by the Financing Originator of
written notice of such breach given by the Buyer, the
Financing Originator shall repurchase and the Buyer shall
resell, without recourse, representation or warranty, all
of the Buyer's right, title, and interest in each such
Series 1996-3 Contract including any Vendor Note related
to the Secondary Contract (except for a Triad Contract)
as to which the breach applied. In consideration of such
resale the Financing Originator shall, on the date of the
resale of such Series 1996-3 Contract, pay to the Buyer
an amount equal to the Discounted Contract Balance of
such Series 1996-3 Contract on the date of repurchase
plus any outstanding Servicer Advances thereon. The
interest rate applied in calculating such Discounted
Contract Balance shall be the Discount Rate on the date
of repurchase. In the case of a breach of any of the
representations and warranties of the Financing
Originator with respect to a Triad Contract, the
Financing Originator shall, in lieu of repurchasing the
Triad Vendor Note, within the 90 day period described
above, deposit into the Collection Account an amount
equal to the Discounted Contract Balance of such Triad
Contract (calculated at the Discount Rate on the date of
such deposit) plus any outstanding Servicer Advances
thereon. Contemporaneously with such deposit, the
principal amount of the Triad Vendor Note shall be
reduced by an amount equal to such Discounted Contract
Balance. Upon each resale to the Financing Originator of
a Series 1996-3 Contract or reduction of the principal
balance of the Triad Vendor Note pursuant to this Section
6.1.1, the Buyer shall automatically and without further
action be deemed to sell, transfer, assign and set-over
to the Financing Originator, without recourse,
representation or warranty, all right, title and interest
of the Buyer, in, to and under (i) such Series 1996-3
Contract, in the case of a resale of such Series 1996-3
Contract, or (ii) the related Triad Contract, in the case
of a reduction of the principal balance of the Triad
Vendor Note, in each case including all monies due or to
become due with respect thereto, the related Equipment
and all proceeds thereof, Liquidation Proceeds and
Insurance Proceeds relating thereto and any related
rights to security, and all proceeds and products of the
foregoing. The obligation of the Financing Originator to
accept resale of any such Series 1996-3 Contract or
reduction of the principal balance of Triad Vendor Note
shall constitute the sole remedy respecting any breach of
the representations and warranties set forth in Section
4.2.1 and Section 4.2.2 with respect to such Series 1996-
3 Contract or related Secondary Contract.
6.1.2 Reassignment of Contracts. On and after
the Closing Date, in the event of a breach by the
Financing Originator of any of the representations and
warranties set forth in Section 4.1, which breach could
reasonably be expected to have a material adverse effect
on the rights of the Noteholders or of the Collateral
Agent under the Pooling Agreement or the ability of the
Buyer to perform its obligations under the Pooling
Agreement, the Buyer by notice then given in writing to
the Financing Originator, may direct the Financing
Originator to accept resale of all of the Series 1996-3
Contracts purchased from the Financing Originator (the
"Resale Contracts") and the Financing Originator shall be
obligated to accept resale of such Series 1996-3
Contracts on a date specified by the Buyer (such date,
the "Resale Date") occurring within the period of 60 days
after such notice on the terms and conditions set forth
below; provided, however, that no such resale shall be
required to be made if, at any time during such
applicable period, the representations and warranties
contained in Section 4.1 shall then be true and correct
in all material respects. The Financing Originator shall
pay to the Buyer on the Resale Date an amount equal to
the Financing Originator's pro rata share (as reasonably
determined by the Buyer) of the amount actually payable
by the Buyer to the Trust pursuant to Section 2.5(f) of
the Pooling Agreement. On the Resale Date, the Resale
Contracts and all monies due or to become due with
respect thereto, and all proceeds thereof, all rights to
security, and all proceeds and products of the foregoing,
shall be transferred to the Financing Originator. If the
Buyer gives a notice directing the Financing Originator
to accept a resale as provided above, the obligation of
the Financing Originator to accept a resale of the Resale
Contracts pursuant to this Section 6.1.2 shall constitute
the sole remedy respecting a breach of the
representations and warranties contained in Section 4.1
available to the Buyer.
Section 6.2 Conveyance of Reassigned
Contracts. Upon any reconveyance of Series 1996-3
Contracts by the Buyer to the Financing Originator
pursuant to either Section 6.1.1 or Section 6.1.2, the
Buyer shall execute and deliver to the Financing
Originator instruments of sale and assignment in such
form as shall reasonably be requested by the Financing
Originator, in order to vest in the Financing Originator,
or its designee or assignee, all right, title and
interest of the Buyer in, to and under such Series 1996-3
Contracts, any related Secondary Contracts and any
Equipment, provided, that any such reconveyance shall
expressly state that it is made by the Buyer without any
recourse, representation or warranty. Subject to the
foregoing, the Buyer shall execute such other documents
or instruments of conveyance or take such other actions
as the Financing Originator may reasonably require to
effect any repurchase of Series 1996-3 Contracts pursuant
to Section 6.1.1 or Section 6.1.2.
Section 6.3 Adjustments.
6.3.1 The Financing Originator hereby agrees
that, with respect to each Series 1996-3 Contract (i)
which provides for a Prepayment Amount less than the
amount calculated in accordance with the definition
thereof and (ii) as to which the related Vendor has not
agreed to indemnify the Buyer or any assignee of the
Buyer in an amount at least equal to the excess of the
"Prepayment Amount" as calculated in accordance with the
definition thereof over the amount otherwise payable upon
prepayment of such Series 1996-3 Contract, the Financing
Originator shall indemnify the Buyer or the Trust as
assignee thereof, in an amount equal to the amount
specified in the foregoing clause (ii).
6.3.2 The Financing Originator hereby agrees
that if, with respect to any Lease with Lessees that are
governmental entities or municipalities, (i) such Lease
may be cancelled in accordance with its terms and (ii)
the Vendor that assigned such Lease to the Financing
Originator is not unconditionally obligated to repurchase
such Lease from the Financing Originator for a purchase
price not less than the Discounted Contract Balance of
such Lease as of the date of repurchase (assuming that
the interest rate to be applied in calculating the
Discounted Contract Balance of such Lease is the Discount
Rate on the date of repurchase) plus interest at the
Discount Rate through the date of repurchase (such
amount, the "Required Lease Cancellation Payment") then
the Financing Originator shall indemnify the Buyer or the
Trust as assignee thereof against such cancellation in an
amount equal to the difference between the amount, if
any, received from the related Vendor and the Required
Lease Cancellation Payment.
[END OF ARTICLE VI]
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to the Buyer's
Obligations Regarding Contracts. The obligations of the
Buyer to purchase Series 1996-3 Contracts from the
Financing Originator on the Closing Date shall be subject
to the satisfaction of the following conditions:
7.1.1 All representations and warranties of
the Financing Originator shall be true and correct on the
Closing Date;
7.1.2 All information concerning the Series
1996-3 Contracts provided to the Buyer shall be true and
correct in all material respects as of the Closing Date;
7.1.3 On the Closing Date, the Financing
Originator shall have substantially performed all
obligations required to be performed by it on or prior to
the Closing Date pursuant to the provisions of this
Agreement;
7.1.4 All corporate and legal proceedings and
all instruments in connection with the transactions
contemplated by this Agreement shall be satisfactory in
form and substance to the Buyer, and the Buyer shall have
received from the Financing Originator copies of all
documents (including, without limitation, records of
corporate proceedings) relevant to the transactions
herein contemplated as the Buyer may reasonably have
requested.
Section 7.2 Conditions Precedent to the
Financing Originators' Obligations. The obligations of
the Financing Originator to sell Series 1996-3 Contracts
to the Buyer on the Closing Date shall be subject to the
satisfaction of the following conditions:
7.2.1 All representations and warranties of
the Buyer contained in this Agreement shall be true and
correct on the Closing Date;
7.2.2 Payment or provision for payment of the
Purchase Price to the Financing Originator in accordance
with the provisions of Section 3.1 hereof shall have been
made; and
7.2.3 All corporate and legal proceedings and
all instruments in connection with the transactions
contemplated by this Agreement shall be satisfactory in
form and substance to the Financing Originator, and the
Financing Originator shall have received from the Buyer
copies of all documents (including, without limitation,
records of corporate proceedings) relevant to the
transactions herein contemplated as the Financing
Originator may reasonably have requested.
[END OF ARTICLE VII]
ARTICLE VIII
TERM AND TERMINATION
Section 8.1 Termination. This Agreement shall
commence as of the date of execution and delivery hereof
and shall continue in full force and effect until the
earlier of (a) the maturity of the Series 1996-3
Contracts and (b) such date as shall be specified in a
written notice of either party to the other (which shall
be given not less than one Business Day prior to such
specified date); (any such date set forth in clause (a)
or (b) hereof being a "Termination Date"); provided,
however, that the termination of this Agreement pursuant
to this Section 8.1 shall not discharge any Person from
obligations incurred prior to any such termination of
this Agreement, including, without limitation, any
obligations to repurchase Series 1996-3 Contracts sold
prior to such termination pursuant to Section 6.1 hereof,
or to make the payments required under Section 6.3
hereof.
[END OF ARTICLE VIII]
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment. This Agreement and any
other Sale Papers and the rights and obligations of the
parties hereunder may not be changed orally, but only by
an instrument in writing signed by the Buyer and the
Financing Originator. The Buyer shall provide not less
than 10 Business Days prior written notice of any such
amendment to the Trustee, and upon entering into any such
amendment the Buyer shall provide prompt written notice
thereof and a copy of such amendment to the Rating
Agencies.
Section 9.2 Governing Law. THIS AGREEMENT AND
THE OTHER SALE PAPERS SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.3 Notices. All demands, notices and
communications hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at
or mailed by registered mail, return receipt requested,
to:
9.3.1 in the case of the Buyer, to:
Newcourt Receivables Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ Martitsch
9.3.2 in the case of the Financing Originator,
to:
Newcourt Financial USA Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ Martitsch
or, as to each party, at such other address as shall be
designated by such party in a written notice to each
other party.
Section 9.4 Severability of Provisions. If
any one or more of the covenants, agreements, provisions
or terms of the Sale Papers shall for any reason
whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed
severable from the remaining covenants, agreements,
provisions, or terms of the Sale Papers and shall in no
way affect the validity or enforceability of the other
provisions of the Sale Papers.
Section 9.5 Assignment.
9.5.1 Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by
the Buyer or the Financing Originator except as permitted
by this Section 9.5 or the Pooling Agreement.
Simultaneously with the execution and delivery of this
Agreement, the Buyer shall assign all of its right, title
and interest herein to the Trust as provided in Section
2.1 of the Pooling Agreement and the Trust shall assign
all of its right, title and interest herein to the
Collateral Agent as provided in Section 2.3 of the
Pooling Agreement, to each of which assignments the
Financing Originator hereby expressly consents. The
Financing Originator agrees to perform its obligations
hereunder for the benefit of the Trust. The Collateral
Agent or the Controlling Party may enforce the provisions
of this Agreement, exercise the rights of the Buyer and
enforce the obligations of the Financing Originator
hereunder without the consent of the Buyer. This
Agreement may not be assigned by the Financing Originator
except in connection with a merger or consolidation of
the Financing Originator with or into, or disposition of
the Financing Originator's properties and assets to,
another Person, provided, however, that any such merger,
consolidation or disposition shall satisfy the
requirements of Section 9.14, upon not less than 10
Business Days prior written notice to the Buyer, the
Trustee, the Collateral Agent and each Rating Agency.
Except for the foregoing assignments by the Buyer and the
Financing Originator, no assignment of this Agreement
shall occur or be effective unless the Rating Agency
Condition shall have been satisfied with respect thereto.
9.5.2 In connection with any assignment of
this Agreement by the Financing Originator, the Financing
Originator shall deliver to the Buyer an Officer's
Certificate that such assignment complies with this
Section 9.5, and shall cause such assignee (i) to execute
an agreement supplemental hereto, in form and substance
satisfactory to the Financing Originator, pursuant to
which such assignee shall expressly assume and agree to
the performance of every covenant and obligation of the
Financing Originator hereunder, (ii) to provide for the
delivery of an Opinion of Counsel that such supplemental
agreement is legal, valid and binding with respect to
such assignee, and (iii) to take such other actions and
execute such other instruments as may reasonably be
required to effectuate such assignment.
Section 9.6 Further Assurances. The Buyer and
the Financing Originator agree to do and perform, from
time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by
the other party more fully to effect the purposes of the
Sale Papers, including, without limitation, the execution
of any financing statements or continuation statements or
equivalent documents relating to the Series 1996-3
Contracts for filing under the provisions of the UCC or
other laws of any applicable jurisdiction.
Section 9.7 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the
part of the Buyer or the Financing Originator, any right,
remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise
of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights,
remedies, powers and privilege provided by law.
Section 9.8 Counterparts. The Sale Papers may
be executed in two or more counterparts including telefax
transmission thereof (and by different parties on
separate counterparts), each of which shall be an
original, but all of which together shall constitute one
and the same instrument.
Section 9.9 Binding Effect; Third-Party
Beneficiaries. The Sale Papers shall inure to the
benefit of and the obligations thereunder shall be
binding upon the parties hereto and their respective
successors and permitted assigns. Any permitted assigns
shall be third-party beneficiaries of this Agreement.
Section 9.10 Merger and Integration. Except
as specifically stated otherwise herein, the Sale Papers
set forth the entire understanding of the parties
relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by the
Sale Papers. The Sale Papers may not be modified,
amended, waived or supplemented except as provided
herein.
Section 9.11 Headings. The headings herein
are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any
provision hereof.
Section 9.12 Schedules and Exhibits. The
schedules and exhibits attached hereto and referred to
herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.
Section 9.13 No Bankruptcy Petition Against
the Buyer. The Financing Originator hereby covenants and
agrees that, prior to the date which is one year and one
day after the payment in full of all Notes of all Series,
it will not institute against or join any other Person in
instituting against the Buyer any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of
the United States or any state of the United States.
Section 9.14 Merger or Consolidation of, or
Assumption of the Obligations of, the Financing
Originator. The Financing Originator shall not
consolidate with or merge into any other corporation or
convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the corporation formed by such
consolidation or into which the Financing Originator
is merged or the Person which acquires by conveyance
or transfer the properties and assets of the
Financing Originator substantially as an entirety
shall be a corporation organized and existing under
the laws of the United States of America or any
State or the District of Columbia and, if the
Financing Originator is not the surviving entity,
shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Buyer in form
satisfactory to the Buyer, the performance of every
covenant and obligation of the Financing Originator
hereunder (to the extent that any right, covenant or
obligation of the Financing Originator, as
applicable hereunder, is inapplicable to the
successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit
from such right, as would apply, to the extent
practicable, to such successor entity); and
(ii) the Financing Originator shall have
delivered to the Buyer an Officer's Certificate that
such consolidation, merger, conveyance or transfer
and such supplemental agreement comply with this
Section 9.14 and that all conditions precedent
herein provided for relating to such transaction
have been complied with and an Opinion of Counsel
that such supplemental agreement is legal, valid and
binding with respect to the successor entity and
that the entity surviving such consolidation,
conveyance or transfer is organized and existing
under the laws of the United States of America or
any State or the District of Columbia. The Rating
Agencies shall receive prompt written notice of such
merger or consolidation of the Financing Originator.
Section 9.15 Protection of Right, Title and
Interest to Contracts and Equipment.
(a) The Financing Originator shall cause this
Agreement, all amendments hereto and/or all financing
statements and continuation statements and any other
necessary documents covering the Financing Originator's
and the Buyer's right, title and interest in, to and
under the Series 1996-3 Assets (except for any item of
Equipment with respect to which title thereto or a
security interest therein is required to be noted on a
certificate of title or otherwise recorded) to be
promptly recorded, registered and filed, and at all times
to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully
to preserve and protect the right, title and interest of
the Buyer hereunder to the Series 1996-3 Assets and
proceeds thereof. Notwithstanding the foregoing, the
Financing Originator and the Buyer have agreed that the
certificates of title to any vehicles included in the
Equipment will not be re-registered to indicate the sale
of such vehicles to the Buyer or the transfer from the
Financing Originator to the Buyer of the Financing
Originator's security interest in such vehicles. The
Financing Originator shall deliver to the Buyer file-
stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon
as available following such recording, registration or
filing. The Buyer shall cooperate fully with the
Financing Originator in connection with the obligations
set forth above and will execute any and all documents
reasonably required to fulfill the intent of this
subsection 9.15(a).
(b) Within 30 days after the Financing
Originator makes any change in its name, identity or
corporate structure which would make any financing
statement or continuation statement filed in accordance
with paragraph (a) above materially misleading within the
meaning of Section 9-402(7) of the UCC as in effect in
the Relevant UCC State, the Financing Originator shall
give the Buyer written notice of any such change and
shall file such financing statements or amendments as may
be necessary or advisable to continue the perfection of
the Buyer's security interest in the Series 1996-3
Contracts and the proceeds thereof.
[END OF ARTICLE IX]
IN WITNESS WHEREOF, the Buyer and the Financing
Originator have caused this Agreement to be duly executed
by their respective officers as of the day and year first
above written.
NEWCOURT RECEIVABLES CORPORATION,
as Buyer
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
By:/s/ ▇. ▇▇▇▇▇▇▇▇ Martitsch
--------------------------
Name: ▇. ▇▇▇▇▇▇▇▇ Martitsch
Title: Assistant Secretary
NEWCOURT FINANCIAL USA INC.,
as Seller
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
By:/s/ ▇. ▇▇▇▇▇▇▇▇ Martitsch
---------------------------
Name: ▇. ▇▇▇▇▇▇▇▇ Martitsch
Title: Assistant Secretary
EXHIBIT A
FORM OF CONTRACT
EXHIBIT B
FORM OF INTERCREDITOR AGREEMENT
Schedule I
LIST OF CONTRACTS
Schedule II
LIST OF INSTRUMENTS
Schedule III
LIST OF PBCC CONTRACTS
TABLE OF CONTENTS
ARTICLE I
GENERAL
Section 1.1 Definitions . . . . . . . . . . . . . 2
Section 1.2 Other Definitional Provisions . . . . 10
ARTICLE II
SALE AND CONVEYANCE OF CONTRACTS
Section 2.1 Sale . . . . . . . . . . . . . . . . . 11
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price . . . . . . . . . . . . 16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Financing Originator's
Representations and Warranties . . . . 17
Section 4.2 Financing Originator's
Representations and Warranties
Regarding Series 1996-3 Contracts . . 20
Section 4.3 Representations and Warranties
of the Buyer . . . . . . . . . . . . . 26
ARTICLE V
COVENANTS
Section 5.1 Financing Originator Covenants . . . . 29
Section 5.2 Covenant Regarding Sale Treatment . . 31
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 Mandatory Repurchase . . . . . . . . . 32
Section 6.2 Conveyance of Reassigned Contracts . . 34
Section 6.3 Adjustments. . . . . . . . . . . . . . 34
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to the Buyer's
Obligations Regarding Contracts . . . 36
Section 7.2 Conditions Precedent to
the Financing Originators'
Obligations . . . . . . . . . . . . . 36
ARTICLE VIII
TERM AND TERMINATION
Section 8.1 Termination . . . . . . . . . . . . . 38
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment . . . . . . . . . . . . . . 39
Section 9.2 Governing Law . . . . . . . . . . . . 39
Section 9.3 Notices . . . . . . . . . . . . . . . 39
Section 9.4 Severability of Provisions . . . . . . 40
Section 9.5 Assignment . . . . . . . . . . . . . . 40
Section 9.6 Further Assurances . . . . . . . . . . 41
Section 9.7 No Waiver; Cumulative Remedies . . . . 41
Section 9.8 Counterparts . . . . . . . . . . . . . 41
Section 9.9 Binding Effect; Third-Party
Beneficiaries . . . . . . . . . . . . 42
Section 9.10 Merger and Integration. . . . . . . 42
Section 9.11 Headings . . . . . . . . . . . . . . . 42
Section 9.12 Schedules and Exhibits . . . . . . . . 42
Section 9.13 No Bankruptcy Petition Against
the Buyer . . . . . . . . . . . . . . 42
Section 9.14 Merger or Consolidation of,
or Assumption of the
Obligations of, the Financing
Originator . . . . . . . . . . . . . . 42
Section 9.15 Protection of Right, Title
and Interest to Contracts
and Equipment . . . . . . . . . . . . 43
Exhibit A Form of Contract
Exhibit B Form of Intercreditor Agreement
Schedule I List of Contracts
Schedule II List of Instruments
Schedule III List of PBCC Contracts
