**ASSET PURCHASE AGREEMENT**     THIS ASSET PURCHASE AGREEMENT (“Agreement”), dated as of July 23, 2008, is made andentered into by and among RoyNat Inc., a Canada corporation (“Purchaser”), Irwin CommercialFinance Canada Corporation, a British Columbia, Canada corporation (“Irwin Canada”), OnsetAlberta Ltd., an Alberta, Canada corporation (“Onset”, and collectively with Irwin Canada,“Seller”) and Irwin Union Bank and Trust Company, an Indiana banking corporation(“Parent”).**WITNESSETH:**     **WHEREAS**, Seller is engaged in the business of originating, purchasing, securitizing andservicing small-ticket equipment leases and conditional sales contracts throughout Canada(collectively, the “Business”);     **WHEREAS**, at the First Closing (as hereinafter defined) Purchaser desires to purchase fromSeller, and Seller desires to sell to Purchaser, the First Closing Assets (as hereinafter defined),upon the terms and subject to the conditions set forth in this Agreement;     **WHEREAS**, at the Second Closing (as hereinafter defined) Purchaser desires to purchase fromSeller, and Seller desires to sell to Purchaser, the Second Closing Assets, upon the terms andsubject to the conditions set forth in this Agreement;     **WHEREAS**, the First Closing Assets and the Second Closing Assets (collectively, the“Assets”) represent substantially all of the assets of Seller;     **WHEREAS**, Irwin Canada is a direct, wholly-owned subsidiary of Parent;     **WHEREAS**, Purchaser is a direct, wholly-owned subsidiary of The Bank of Nova Scotia; and     **WHEREAS**, capitalized terms not defined in the body of this Agreement shall have the meaningsascribed to them in Article 12;     **NOW, THEREFORE**, in consideration of the foregoing and the mutual covenants and promisescontained in this Agreement, and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound,hereby agree as follows:**ARTICLE 1 — PURCHASE AND SALE OF THE ASSETS****1.01****Assets**     Upon the terms and subject to the conditions set forth in this Agreement and on the basis ofand subject to the representations, warranties, covenants and agreements herein contained, at theFirst Closing, Purchaser shall purchase, acquire and accept from Seller, and Seller shall sell,transfer, assign, convey and deliver to Purchaser, all of Seller’s right, title and interest in, toand under:
 

 
 (a) Effective as of the First Effective Time, the following assets, free and clearof all Encumbrances, other than Permitted Encumbrances (collectively, the “FirstClosing Assets”): (i) the Portfolio;  (ii) all Lease Receivables and all CSC Receivables;  (iii) all rights in, to and under the Premier Insurance Program;  (iv) all rights in, to and under the Corporate Insurance Policies asa loss payee thereunder;  (v) all Financed Property; and  (vi) all Files and Records relating to any item in the Portfolio orthe Financed Property. (b) Effective as of the Second Effective Time, all of the other properties, assetsand interests of Seller (whether tangible or intangible) of any kind, nature, characterand description Related to the Business, whether real, personal or mixed, whetheraccrued, contingent or otherwise, that are owned, leased or licensed by Seller as ofthe Second Effective Time, other than the Excluded Assets, free and clear of allEncumbrances, other than Permitted Encumbrances (collectively, the “Second ClosingAssets”). For greater certainty, the Second Closing Assets shall include: (i) all Inventories;  (ii) all Equipment and Machinery;  (iii) all rights in, to and under the Assigned Equipment Leases;  (iv) all rights in, to and under the Assigned Contracts (other thanthe Premier Insurance Program and the Corporate Insurance Policies);  (v) all Intangible Assets, other than goodwill related to theExcluded Assets;  (vi) all Intellectual Property Assets, other than the ExcludedIntellectual Property Assets;  (vii) all prepaid expenses;  (viii) stationery, forms and invoices, brochures, advertising materials and similaritems, but excluding all of the Excluded Assets;  (ix) the Real Property Leases;  (x) all Files and Records;
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 (xi) all accounts receivable Related to the Business other thanaccounts receivable related to the Excluded Assets;  (xii) all rights and interests under or pursuant to all warranties,representations and guarantees, express, implied or otherwise, of or made bysuppliers or others in connection with any or all of the foregoing or theAssumed Liabilities or otherwise Related to the Business, other than any suchrights and interests related to the Excluded Assets or the ExcludedLiabilities; and  (xiii) all proceeds of any or all of the foregoing received or receivable after theSecond Effective Time.**1.02****Excluded Assets**     Notwithstanding any other provision of this Agreement to the contrary, any and all of theproperty, assets and interests of Seller that are not Assets shall remain the sole property ofSeller and are excluded from the Assets (collectively, the “Excluded Assets”). For greatercertainty, the Excluded Assets shall include: (a) all Cash and Cash Equivalents;  (b) all securities issued by any Person and owned by Seller, other than anysecurities that are, as of the First Closing Date, pledged as security for any Asset;  (c) all Derivatives;  (d) all financial statements, Tax Returns and other Tax records and relatedinformation of Seller;  (e) all rights in, to and under all insurance policies not Related to the Business,if any;  (f) the stock records, minute books and corporate seal (if any) of Seller;  (g) the shares of capital stock of Irwin Canada and Onset held in treasury and theshares of Onset held by Irwin Canada;  (h) photocopies of all Employee records, Key Employee records and other recordsthat Seller is required by Applicable Law to retain in its possession;  (i) all deferred Tax assets, all claims for refund of Taxes and other governmentalcharges of whatever nature;  (j) all rights in connection with and assets of the Benefit Plans;  (k) all rights of Seller under this Agreement and under the Related Agreements;  (l) all rights of Seller to any deposits and prepaid expenses pertaining to theExcluded Assets;
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 (m) all insurance benefits, including rights and proceeds, arising from or relatingto the First Closing Assets or the Assumed First Closing Liabilities prior to the FirstEffective Time;  (n) all insurance benefits, including rights and proceeds, but excluding benefits,right and proceeds of the Premier Insurance Program, arising from or relating to theSecond Closing Assets or the Assumed Second Closing Liabilities prior to the SecondEffective Time;  (o) all claims of Seller against third parties relating to the First Closing Assetsor the Assumed First Closing Liabilities, whether choate or inchoate, known or unknown,contingent or non-contingent, arising from or relating to any occurrence, event orcircumstance occurring any time prior to the First Effective Time;  (p) all claims of Seller against third parties relating to the Second ClosingAssets or the Assumed Second Closing Liabilities, whether choate or inchoate, known orunknown, contingent or non-contingent, arising from or relating to any occurrence,event or circumstance occurring any time prior to the Second Effective Time;  (q) all recoveries not paid on or prior to the Second Closing Date relating to anyProceedings relating to the Second Closing Assets and in respect of matters arisingfrom or relating to matters occurring any time prior to the Second Effective Time;  (r) all rights and actions against third parties relating to any of the ExcludedAssets or any of the Excluded Liabilities, including under insurance policies;  (s) the Intercompany Agreements;  (t) the trade-marked Irwin stylized “i” logo, the “Onset Alberta” name and mark,the “Irwin” name and mark and any variations of such name and mark used or formerlyused in connection with the Business, including “Irwin Commercial Finance”, “IrwinBusiness Finance”, “Irwin Equipment Finance”, and “Irwin Franchise Capital”, and alldomain names and internet protocol addresses, whether or not used or currently inservice, all of which are set forth in Section 1.02(t) of the DisclosureSchedules (including the owner thereof) (collectively, the “Excluded IntellectualProperty Assets”), and any goodwill associated therewith; provided, that certain ofthe Excluded Intellectual Property Assets shall be licensed to Purchaser pursuant tothe License Agreement;  (u) the Intercompany Receivables; and  (v) the Excluded Items.**1.03****Assumed Liabilities** (a) Effective as of the First Effective Time, Purchaser shall assume and agree todischarge only the following Liabilities of Seller related to the First Closing Assets(collectively, the “Assumed First Closing Liabilities”):
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 (i) those Liabilities of Seller under the CSC Documents and theLease Documents arising out of or relating to any time after the FirstEffective Time;  (ii) those Liabilities of Seller with respect to the Deposits;  (iii) those Liabilities of Seller under the Premier InsuranceProgram or the Corporate Insurance Policies solely as they relate to Purchaseras a loss payee arising out of or relating to any time after the FirstEffective Time; and  (iv) those Liabilities of Seller with respect to the First ClosingTransfer Taxes. (b) Effective as of the Second Effective Time, Purchaser shall assume and agree todischarge only the following Liabilities of Seller relating to the Second ClosingAssets: (i) those Liabilities of Seller under the Assigned Contracts (otherthan the Premier Insurance Program) arising out of or relating to any timeafter the Second Effective Time; and  (ii) those Liabilities of Seller with respect to the Second ClosingTransfer Taxes(collectively, the “Assumed Second Closing Liabilities” and, collectively with the AssumedFirst Closing Liabilities, the “Assumed Liabilities”).**1.04****Excluded Liabilities**     Notwithstanding any other provision of this Agreement to the contrary, any and all Liabilitiesof Seller, Parent or any of their respective Affiliates that are not Assumed Liabilities(collectively, the “Excluded Liabilities”) shall not be assumed by Purchaser, are excludedfrom the Assumed Liabilities and shall remain the sole and exclusive liability, obligation andresponsibility of Seller, Parent or their respective Affiliates, as applicable. For greatercertainty, the Excluded Liabilities shall include: (a) any Liability for Taxes arising out of the operation of the Business at orprior to the Second Effective Time, including: (i) any Taxes arising out of or relating to Seller’s operation ofthe Business or ownership of the Assets at or prior to the Second EffectiveTime;  (ii) any Liability for Taxes under the Income Tax Act or any otherTaxes whatsoever that are or may become payable by Seller, including any Taxesarising out of or relating to the sale and transfer of the Assets pursuant tothis Agreement (but excluding any Liability for First Closing Transfer Taxesand Second Closing Transfer Taxes); and  (iii) any deferred Taxes of any nature,
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   provided, however, that the Excluded Liabilities shall not include any Liability forTaxes arising out of or relating to the ownership of the First Closing Assets afterthe First Effective Time;  (b) any Liability arising out of or relating to Seller’s credit facilities or anysecurity interest related thereto;  (c) any environmental, health and safety Liabilities arising out of or relating tothe operation of the Business or Seller’s leasing or operation of the Leased RealProperty, in each case, at or prior to the Second Effective Time;  (d) any employment Liability, including any Liability under the Benefit Plans inrespect of Seller’s Employees, Key Employees, former employees, officers and directors;  (e) any Liability to distribute to any of Seller’s shareholders or otherwise applyall or any part of the consideration received hereunder;  (f) any Liability arising out of or relating to any Proceeding arising out of orrelating to any occurrence, event or circumstance happening or existing at or prior to:(i) the First Effective Time (whether or not such Proceeding is brought or initiatedprior to, at or after the First Effective Time) relating to the First Closing Assets orthe Assumed First Closing Liabilities; and (ii) the Second Effective Time (whether ornot such Proceeding is brought or initiated prior to, at or after the Second EffectiveTime) relating to the Second Closing Assets or the Assumed Second Closing Liabilities;  (g) any Liability of Seller under this Agreement or any of the Related Agreements;  (h) any Liability for Intercompany Payables or any Liability owing by Seller to anAffiliate of Seller or Parent;  (i) any Liability arising prior to or at (i) the First Effective Time in respect ofthe First Closing Assets, or (ii) the Second Effective Time in respect of the SecondClosing Assets;  (j) any Liability arising out of or relating to the Securitization Transactions orthe Securitization Documents, including, in each case, the termination thereof;  (k) any Undisclosed Liabilities;  (l) any Liability arising out of or relating to any or all of the Excluded Assets;and  (m) any Liability arising out of or relating to fraud of Seller, Parent or any oftheir respective Affiliates.
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**1.05****Purchase Price** (a) The aggregate consideration (the “Purchase Price”) to be paid byPurchaser to Seller for the Assets shall be equal to: (i) the sum of the following: (A) the Estimated Net Portfolio Value, calculatedin a manner consistent with the sample calculation attached hereto asExhibit 1.05, subject to adjustment pursuant to Section1.06 below; plus  (B) $3,750,000 in Canadian Dollars, subject toadjustment in the event of Material Portfolio Change since May 31, 2008(such amount, as adjusted, the “Additional Portfolio Amount”);plus  (C) $3,750,000 in Canadian Dollars, subject toadjustment in the event of a Material Portfolio Change between May 31,2008 and the First Closing Date (the “Holdback Amount”); and (ii) the assumption by Purchaser of the Assumed Liabilities. (b) The Estimated Net Portfolio Value and the Additional Portfolio Amount shall bepayable by Purchaser on the First Closing Date by wire transfer of immediatelyavailable funds in Canadian Dollars to an account or accounts designated in writing bySeller, which account or accounts shall be designated at least two (2) Business Daysprior to the First Closing Date.  (c) The Holdback Amount shall be payable by Purchaser on the Second Closing Date bywire transfer of immediately available funds in Canadian Dollars to an account oraccounts designated in writing by Seller, which account or accounts shall be designatedat least two (2) Business Days prior to the Second Closing Date.  (d) The Assumed First Closing Liabilities shall be assumed by Purchaser at theFirst Closing pursuant to an Assignment and Assumption Agreement.  (e) The Assumed Second Closing Liabilities shall be assumed by Purchaser at theSecond Closing pursuant to an Assignment and Assumption Agreement.  (f) By no later than three (3) Business Days prior to the First Closing Date,Seller and Purchaser shall have jointly prepared in good faith an estimated ClosingDate Balance Sheet, together with a calculation, using the data set forth in suchestimated Closing Date Balance Sheet, setting forth an amount equal to the NetPortfolio Value as at 11:59 p.m. EDT (the “Close of Business”) on the day priorto the First Closing Date (the “Estimated Net Portfolio Value”).  (g) Following the First Closing, Purchaser or Seller, as applicable, shall pay anyadjustment to the Estimated Net Portfolio Value pursuant to Section 1.06.
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**1.06****Adjustments to Purchase Price** (a) Closing Date Balance Sheet. Within twenty (20) Business Days followingthe First Closing Date, Purchaser shall prepare and deliver to Seller the Closing DateBalance Sheet. Using the data set forth in such Closing Date Balance Sheet, Purchasershall prepare a statement of the Net Portfolio Value as of the Close of Business on theday prior to the First Closing Date calculated in a manner consistent with the samplecalculation attached hereto as Exhibit 1.05, in detail reasonably acceptable toSeller (the “Closing Date Net Portfolio Value Statement”) showing as of theClose of Business on the day prior to the First Closing Date Purchaser’s determinationof the Net Portfolio Value (the “Purchaser’s Final Net Portfolio ValueDetermination”) and the proposed amount, if any, by which the Estimated NetPortfolio Value is to be adjusted as a result thereof. Purchaser shall complete suchClosing Date Net Portfolio Value Statement within twenty (20) Business Days after theFirst Closing Date and, upon completion, shall deliver a copy to Seller.  (b) Seller’s Notification. As promptly as practicable, but in no eventlater than fifteen (15) Business Days after receipt of the Closing Date Net PortfolioValue Statement, Seller shall notify Purchaser in writing whether it accepts ordisputes the accuracy of Purchaser’s Final Net Portfolio Value Determination. Duringsuch fifteen (15) Business Day period, Seller and its representatives shall be providedwith such access to all Files and Records and the Key Employees as they may reasonablyrequest to respond to the Closing Date Net Portfolio Value Statement. If Seller acceptsPurchaser’s Final Net Portfolio Value Determination or if Seller fails within suchfifteen (15) Business Day period to notify Purchaser of any dispute with respectthereto, Purchaser’s Final Net Portfolio Value Determination shall be deemed final andconclusive and binding upon all parties.  (c) Dispute Notice. If Seller disputes the calculation of Purchaser’s FinalNet Portfolio Value Determination, Seller shall give timely written notice (the“Dispute Notice”) to Purchaser no later than fifteen (15) Business Daysfollowing the receipt of the Closing Date Net Portfolio Value Statement, which DisputeNotice shall specify the reasons for such disagreement, the amounts of any adjustmentsthat are necessary in Seller’s good faith judgment for the computation of Purchaser’sFinal Net Portfolio Value Determination and the basis for Seller’s suggestedadjustment. If the parties resolve their differences over the disputed items, the finalNet Portfolio Value determination (as so determined or as determined pursuant toSeller’s acceptance in accordance with Section 1.06(b) or by the IndependentAuditor pursuant to this Section 1.06(c), as the case may be, the “FinalNet Portfolio Value”), shall be the amount agreed upon. If Purchaser and Seller areunable to resolve all disputed matters within fifteen (15) Business Days after thedelivery of a Dispute Notice (or such longer period as Purchaser and Seller maymutually agree in writing), all disputed matters raised by Seller not so resolved shallbe submitted to Deloitte & Touche LLP or if Deloitte & Touche LLP cannot act in suchmatter, another nationally recognized accounting firm that is independent of theparties hereto, is not the auditor for Purchaser, The Bank of Nova Scotia, Seller orParent, is mutually agreeable to Purchaser and Seller and has significant experience inthe commercial
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   finance industry (the “Independent Auditor”), for final resolution inaccordance with the terms and provisions of this Agreement. Purchaser and Sellershall use their respective Best Efforts to cause the Independent Auditor to make itsdetermination as soon as possible, but in no event later than fifteen (15) BusinessDays after the submission to it of the disputed matters. In no event shall theIndependent Auditor’s determination of the Final Net Portfolio Value be greater thanPurchaser’s determination pursuant to Section 1.06(a) or less than Seller’sdetermination pursuant to Section 1.06(b). If possible, the IndependentAuditor shall make its determination based solely on presentations by Purchaser andSeller; provided, that if the Independent Auditor is unable to reach a conclusion onthat basis, the Independent Auditor shall review such additional information andperform such additional procedures as the Independent Auditor reasonably deemsnecessary. In any event, the Independent Auditor’s determination shall be limited tomatters of dispute which are raised by Seller in the Dispute Notice. In the event aparty does not comply with the procedural and time requirements contained herein orsuch other procedural or time requirements as the parties otherwise agree to inwriting, the Independent Auditor shall render a decision based solely on theevidence it has which was timely provided by the parties. The Independent Auditor’sdetermination shall be final, binding and conclusive upon the parties hereto. TheIndependent Auditor’s resolution of any such disagreement shall be reflected in awritten report, which shall be delivered promptly to Purchaser and Seller. All fees,costs, expenses and disbursements of the Independent Auditor shall be paid by theparty with whose determination the Independent Auditor does not agree; provided,however, that if the Independent Auditor’s determination represents a compromisebetween the determination of Purchaser and Seller, then each party shall pay fiftypercent (50%) of such fees, costs, expenses and disbursements. If a retainer isrequired by the Independent Auditor, the retainer shall be split equally betweenSeller and Purchaser; provided, however, that the retainer shall be considered partof the fees, costs and expenses of such Independent Auditor and if either party haspaid a portion of such retainer, such party shall be entitled to be reimbursed bythe other party to the extent required by this Section 1.06(c). Any paymentto be made as a consequence of the Independent Auditor’s decision shall be made,free and clear of any deductions, not later than three (3) Business Days after thereceipt of such report by each of Purchaser and Seller.  (d) Payment by Purchaser. In the event that the amount of the Final NetPortfolio Value is greater than the Estimated Net Portfolio Value, then Purchasershall, within five (5) Business Days after the determination thereof, pay to Seller anamount equal to such difference, by wire transfer of immediately available funds inCanadian Dollars to an account designated in writing by Seller.  (e) Payment by Seller. In the event that the Final Net Portfolio Value isless than the Estimated Net Portfolio Value, then Seller shall, within five (5)Business Days after the determination thereof, pay to Purchaser an amount equal to suchdifference, by wire transfer of immediately available funds in Canadian Dollars to anaccount designated in writing by Purchaser.
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**1.07****Allocation of Purchase Price**     At or prior to the First Closing, the parties shall agree to a preliminary allocation of thePurchase Price among the Assets (the “Preliminary Allocation”). Purchaser and Seller agreethat the values so attributed to the Assets are the respective fair market values thereof, and eachparty shall report the sale and purchase of the Assets for all Tax purposes in a manner consistentwith such allocation. The parties hereto agree that the Preliminary Allocation shall be modified toreflect any adjustments made pursuant to this Agreement or the payment of any indemnificationclaims under Article 8 as mutually agreed upon by Purchaser and Seller in good faith (and,if applicable, consistent with the prior allocation of similar items). The parties shall file anyappropriate amendment to reflect any adjustments made to the Preliminary Allocation as provided inthis Section 1.07. Purchaser and Seller each agree not to assert, in connection with anyTax Return, audit or similar proceeding, any allocation of the Purchase Price that differs from theallocation set forth in the Preliminary Allocation, as it may be modified pursuant to thisprovision.**1.08****Assignment of Contracts**     If required by Applicable Law or the terms thereof to effect the proper and valid assignmentto and assumption by Purchaser of any CSC Document, Lease Document, Assigned Contract, or otherContract to be assigned to and assumed by Purchaser pursuant to this Agreement (each, a“Restricted Contract”) without breach or violation thereof, Seller and Parent agree to usetheir Best Efforts to obtain, prior to the First Effective Time with respect to any CSC Document orLease Document and with respect to the Premier Insurance Program and the Corporate InsurancePolicies or prior to the Second Effective time with respect to any Assigned Contract or such otherContract to be assigned to and assumed by Purchaser, the consent, waiver, authorization orapproval, as applicable, of each other party to any such Restricted Contract necessary to permitthe assignment to and assumption by Purchaser of all the Restricted Contracts as at the FirstEffective Time or the Second Effective Time, as applicable. Nothing in this Agreement or any of theRelated Agreements shall be deemed to constitute an assignment or an attempt to assign anyRestricted Contract if the attempted assignment thereof without the consent, waiver, authorizationor approval, as applicable, of each other party to such Restricted Contract would constitute abreach thereof or affect in any way the rights of Seller or Parent thereunder. Subject toSection 3.02, in the event Seller or Parent fails to obtain any such consent, waiver,authorization or approval, the parties shall cooperate with each other in any reasonable and lawfularrangements designed to provide to Purchaser the material benefits of use of any and allRestricted Contracts for which Seller or Parent has not obtained the consent, waiver, authorizationor approval, as applicable, for their respective terms (or any right or benefit arising thereunder,including the enforcement for the benefit of Purchaser of any and all rights of Seller or Parentagainst a third party thereunder). Subject to Section 3.02, to the extent permitted byApplicable Law, if any requisite consent, waiver, authorization or approval, as applicable, has notbeen obtained at or prior to the First Effective Time or the Second Effective Time, as the case maybe, the applicable Restricted Contract will be held by Seller or Parent in trust for the benefit ofPurchaser and Purchaser will perform the obligations of Seller or Parent thereunder and be entitledto receive all money becoming due and payable under and other benefits derived from the RestrictedContract immediately after receipt by Seller thereof. When such consent, waiver, authorization orapproval is obtained, Seller or Parent shall promptly assign, transfer, convey and deliver suchRestricted Contract to Purchaser, and Purchaser shall assume the obligations under such RestrictedContract from and after the First Effective Time or the Second Effective time, as the case
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may be, pursuant to a special-purpose assignment and assumption agreement substantiallysimilar in terms and conditions to those set forth in the Assignment and Assumption Agreement(which special-purpose agreement the parties shall prepare, execute and deliver in good faith atthe time of such transfer, with the parties each being responsible for their own respective costsand expenses incurred in connection with the preparation thereof).**ARTICLE 2 — CLOSING****2.01****Closing Date**     The closing of the transactions contemplated by Section 1.01(a) and Section1.03(a) of this Agreement (the “First Closing”) shall take place at the offices ofPurchaser’s counsel in Toronto, Ontario, at 10:00 a.m. eastern daylight time (“EDT”) onJuly 30, 2008 or at such other place and time, or on such other date, as may be mutually agreed toby the parties, subject in each case to the satisfaction or waiver of the conditions set forth inSection 3.01(a) and the satisfaction or waiver of the conditions set forth in Section3.02(a) (the “First Closing Date”). The closing of the transactions contemplated bySection 1.01(b) and Section 1.03(b) of this Agreement (the “SecondClosing”) shall take place at the offices of Purchaser’s counsel in Toronto, Ontario, at 10:00a.m. EDT on September 30, 2008 or at such other place and time, or on such earlier date, as may bemutually agreed to by the parties, subject in each case to the satisfaction or waiver of theconditions set forth in Section 3.01(b) and the satisfaction or waiver of the conditionsset forth in Section 3.02(b) (“Second Closing Date”). Subject to the provisions ofArticle 9, failure to consummate the transactions contemplated by this Agreement on theapplicable date and time and at the place determined pursuant to this Section 2.01 shallnot result in the termination of this Agreement and shall not relieve any party of any obligationunder this Agreement. In such a situation, the First Closing or the Second Closing, as applicable,shall occur as soon as practicable, subject to Article 9. The parties acknowledge and agreethat, except as otherwise specifically set forth herein, all proceedings to be taken and alldocuments to be executed and delivered by all parties at the First Closing or the Second Closing,as applicable, shall be deemed to have been taken and executed simultaneously, and no proceedingsshall be deemed taken nor any documents executed or delivered until all have been taken, executedand delivered.**2.02****Deliveries by Seller** (a) First Closing Deliveries. Subject to the satisfaction or waiver of theconditions set forth in Section 3.01(a), at the First Closing, Seller shalldeliver to Purchaser possession of all of the First Closing Assets, Purchaser shallassume the Assumed First Closing Liabilities, and Seller shall deliver (or cause to bedelivered) to Purchaser originals, or copies if specified, of the following: (i) evidence, in form and substance approved in advance byPurchaser: (A) of the termination of the SecuritizationTransactions and the Securitization Documents; and  (B) that, after giving effect to such terminationof the Securitization Transactions and the Securitization Documents:
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 (I) all of the Securitized Leases,Securitized CSCs and other property and assets subject to theSecuritization Transactions (collectively, the “SecuritizedAssets”) have been absolutely reassigned or otherwiseconveyed to Seller or the concurrent leases entered into underthe Securitization Documents in respect of the SecuritizedLeases have been terminated and that Seller has title theretofree and clear of all Encumbrances, other than PermittedEncumbrances;  (II) effective as of the time of suchtermination, there will be a discharge or other binding releaseof all Encumbrances registered against Seller or otherwiseattaching to the Securitized Assets or Financed Property inconnection with or pursuant to the Securitization Transactions,including the release of all Encumbrances in the SecuritizedAssets in favour of any indenture trustee, note trustee or othersecured creditor of any assignor of Securitized Assets underclause (I) above (each such discharge or release to be addressedto and capable of being relied upon by Purchaser and itsassignees, and otherwise in form and substance approved inadvance by Purchaser, acting reasonably) or such otherdocumentation as the parties may agree; and  (III) there will be perfection of thereassignments and conveyances contemplated in clause (I) aboveunder applicable personal property security legislation; and (ii) an acknowledgement, in form and substance reasonablysatisfactory to Purchaser, addressed to Purchaser and Seller and executed byeach of the applicable trusts confirming the termination of each SecuritizationTransaction and each Securitization Document to which, in each case, they werea party and confirming in each case that they have no interest in the relatedSecuritized Assets, or such other documentation as the parties may agree.  (iii) a counterpart of the First Closing Related Agreements andcounterparts of all agreements, documents and instruments required to bedelivered by Seller pursuant to the First Closing Related Agreements, dulyexecuted by Seller;  (iv) copies of each notice, consent, waiver, authorization andapproval required in connection with the assignment or transfer of the PremierInsurance Program and the Corporate Insurance Policies (including, in the caseof the Corporate Insurance Policies, all requisite documentation to addPurchaser as a loss payee thereunder), each in form and substance reasonablysatisfactory to Purchaser;
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 (v) clearance certificates issued under section 6 of the *RetailSales Tax Act*(Ontario), section 99 of the *British Columbia Social Service TaxAct*, section 45 of the *Tax Administration and Miscellaneous Taxes Act*(Manitoba), section 51 of the Revenue and Financial Services Act (Saskatchewan)and section 56 of the *Revenue Tax Act*, 1988 (PEI), covering the period up tothe First Closing Date; provided, however, that in the eventthat any such certificate is not received by Seller prior to the First Closingdespite Seller’s Best Efforts, then Seller shall deliver such certificate toPurchaser promptly upon receipt;  (vi) a Certificate of Good Standing of Irwin Canada issued by theBritish Columbia Registrar of Companies and a Certificate of Status of Onsetissued by the Alberta Registrar of Corporations, in each case dated withinthree (3) Business Days prior to the First Closing Date;  (vii) copies of all the resolutions adopted by the each of theboards of directors and shareholder of each of Irwin Canada and Onset and theboard of directors of Parent authorizing and approving the execution anddelivery of this Agreement and the transactions contemplated hereby, certifiedto be true, complete, correct and in full force and effect by the Secretary orother officer thereof;  (viii) true and complete copies of the certified articles of incorporation of eachof Irwin Canada, Onset and Parent, including all amendments thereto, and a copyof the bylaws of each of them, including all amendments thereto, in each case,certified to be true, complete and correct and in full force and effect by theSecretary or other officer thereof;  (ix) a certificate, dated the First Closing Date, duly executed byan officer of Seller and Parent pursuant to Sections 3.02(a)(ii) and3.02(a)(iii) of this Agreement;  (x) a favourable opinion of Davis LLP, as counsel to Seller,reasonably acceptable to Purchaser as to (i) Seller’s existence and corporatecapacity, (ii) that each of this Agreement and the First Closing RelatedAgreements to which it is a party have been duly authorized, executed anddelivered by Seller and, subject only to customary assumptions, limitations,exceptions and qualifications, constitutes under the laws of the Province ofOntario a valid and legally binding obligation of Seller enforceable againstSeller in accordance with its terms, and (iii) that all necessary consents,waivers, authorizations and approvals of, and all registrations, declarationsand filings with, any Governmental Entity having jurisdiction over Seller whichare required under the laws of the Provinces of British Columbia, Alberta,Ontario and Quebec and the federal laws of Canada applicable in those Provincesfor the execution and delivery by Seller of this Agreement and each of theFirst Closing Related Agreements to which it is a party and the
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   performance by Seller of its obligations hereunder and thereunder have beenobtained; (xi) a favourable opinion of Blake, Cassels & Graydon LLP, ascounsel to Seller, addressing customary matters for a transaction of similarnature to the termination of the Securitization Transactions and theSecuritization Documents, including that all necessary security registrationshave been made;  (xii) a favourable opinion of Ice Miller LLP, as counsel to Parent,reasonably acceptable to Purchaser, subject to customary assumptions,qualifications, limitations and exceptions in transactions of a similar sizeand nature in the United States, as to (i) due organization and valid existenceof Parent; (ii) Parent’s requisite power and authority, (iii) dueauthorization, execution and delivery of this Agreement and the First ClosingRelated Agreements to which Parent is a party, and (iv) that no consents,approvals or authorizations of, and no registrations or filings with, anygovernmental authority or regulatory body of the State of Indiana for theexecution and delivery by Parent of this Agreement and the First ClosingRelated Agreements to which it is a party and the performance by Parent of itsfinancial obligations hereunder and thereunder except any approvals and actionsthat have already been obtained or taken;  (xiii) evidence of the release of all Encumbrances on the First Closing Assets,other than Permitted Encumbrances, each in form and substance reasonablysatisfactory to Purchaser;  (xiv) subject to the last sentence of Section 13.04 hereof,all such other documents and instruments as Purchaser may reasonably requestfor the purpose of facilitating the consummation or performance of any of thetransactions contemplated by this Agreement or any of the First Closing RelatedAgreements;  (xv) the list of Employees referred to in Section 11.03(f);  (xvi) the Closing Tape;  (xvii) the Preliminary Allocation pursuant to Section 1.07; and  (xviii) a funding memorandum, duly executed by Seller. (b) Second Closing Deliveries. Subject to the satisfaction or waiver of theconditions set forth in Section 3.01(b), at the Second Closing, Seller shalldeliver to Purchaser possession of all of the Second Closing Assets, Purchaser shallassume the Assumed Second Closing Liabilities to Purchaser, and Seller shall deliver(or cause to be delivered) to Purchaser originals, or copies if specified, of thefollowing:
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 (i) counterparts of all Second Closing Related Agreements to whichSeller is a party and counterparts of all agreements, documents and instrumentsrequired to be delivered by Seller pursuant to any of the Second ClosingRelated Agreements to which Seller is a party, in each case duly executed bySeller;  (ii) copies of each notice, consent, waiver, authorization andapproval listed in Section 2.02(b)(ii) of the Disclosure Schedules,each in form and substance reasonably satisfactory to Purchaser (the“Seller Material Consents”);  (iii) clearance certificates issued under section 6 of the *RetailSales Tax Act*(Ontario), section 99 of the *British Columbia Social Service TaxAct*, section 45 of the *Tax Administration and Miscellaneous Taxes Act*(Manitoba), section 51 of the Revenue and Financial Services Act (Saskatchewan)and section 56 of the *Revenue Tax Act*, 1988 (PEI), covering the period up tothe Second Closing Date; provided, however, that in the eventthat any such certificate is not received by Seller prior to the Second Closingdespite Seller’s Best Efforts, then Seller shall deliver such certificate toPurchaser promptly upon receipt;  (iv) a Certificate of Good Standing of Irwin Canada issued by theBritish Columbia Registrar of Companies and a Certificate of Status of Onsetissued by the Alberta Registrar of Corporations, in each case dated withinthree (3) Business Days prior to the Second Closing Date;  (v) true and complete copies of the certified articles ofincorporation of each of Irwin Canada, Onset and Parent, including allamendments thereto, and a copy of the bylaws of each of them, including allamendments thereto, in each case, certified to be true, complete and correctand in full force and effect by the Secretary or other officer thereof;  (vi) a certificate, dated the Second Closing Date, duly executed byan officer of Seller and Parent pursuant to Sections 3.02(a)(ii) and3.02(a)(iii) of this Agreement;  (vii) a favourable opinion of Davis LLP, as counsel to Seller,reasonably acceptable to Purchaser as to (i) Seller’s existence and corporatecapacity, (ii) that each of this Agreement and the Second Closing RelatedAgreements to which it is a party have been duly authorized, executed anddelivered by Seller and, subject only to customary assumptions, limitations,exceptions and qualifications, constitutes under the laws of the Province ofOntario a valid and legally binding obligation of Seller enforceable againstSeller in accordance with its terms, and (iii) that all necessary consents,waivers, authorizations and approvals of, and all registrations, declarationsand filings with, any Governmental Entity having jurisdiction over Seller whichare required under the laws of the Provinces of British Columbia, Alberta,Ontario and Quebec and the federal laws of Canada applicable in those Provincesfor the execution and delivery by Seller of this Agreement and
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   each of the Second Closing Related Agreements to which it is a party and theperformance by Seller of its obligations hereunder and thereunder have beenobtained. (viii) a favourable opinion of Ice Miller LLP, as counsel to Parent, reasonablyacceptable to Purchaser, subject to customary in assumptions, qualifications,limitations and exceptions in transactions of a similar size and nature in theUnited States, as to (i) due organization and valid existence of Parent; (ii)Parent’s requisite power and authority, (iii) due authorization, execution anddelivery of this Agreement and the Second Closing Related Agreements to whichParent is a party, and (iv) that no consents, approvals or authorizations of,and no registrations or filings with, any governmental authority or regulatorybody of the State of Indiana for the execution and delivery by Parent of thisAgreement and the Second Closing Related Agreements to which it is a party andthe performance by Parent of its financial obligations hereunder and thereunderexcept any approvals and actions that have already been obtained or taken;  (ix) evidence of the release of all Encumbrances on the SecondClosing Assets, other than Permitted Encumbrances, each in form and substancereasonably satisfactory to Purchaser; and  (x) subject to the last sentence of Section 13.04 hereof,all such other documents and instruments as Purchaser may reasonably requestfor the purpose of facilitating the consummation or performance of any of thetransactions contemplated by this Agreement or any of the Second ClosingRelated Agreements.**2.03** **Deliveries by Purchaser** (a) First Closing Deliveries. Subject to the satisfaction or waiver of theconditions set forth in Section 3.02(a), at the First Closing, Purchaser shalldeliver (or cause to be delivered) to Seller originals, or copies if specified, of thefollowing: (i) the Estimated Net Portfolio Value plus the Additional PortfolioAmount, payable as provided in Section 1.05(b);  (ii) counterparts of each of the First Closing Related Agreements towhich Purchaser is a party and counterparts of all agreements, documents andinstruments required to be delivered by Purchaser pursuant to any of the FirstClosing Related Agreements to which it is a party, in each case duly executedby Purchaser;  (iii) copies of all the resolutions adopted by the board ofdirectors of Purchaser authorizing and approving the execution and delivery ofthis Agreement and the consummation of the transactions contemplated hereby,certified to be true, complete, correct and in full force and effect by theSecretary or other officer thereof;
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 (iv)  a Certificate of Compliance of Purchaser issued by IndustryCanada dated within three (3) Business Days prior to the First Closing Date;  (v) true and complete copies of the certified articles ofincorporation of Purchaser, including all amendments thereto, and a copy of thebylaws of Purchaser, including all amendments thereto, certified as true,complete and correct and in full force and effect by the Secretary or otherofficer thereof;  (vi) the Preliminary Allocation pursuant to Section 1.07;and  (vii) certificates, dated the First Closing Date, duly executed byan officer of Purchaser pursuant to Sections 3.01(a)(ii) and3.01(a)(iii) of this Agreement. (b) Second Closing Deliveries. Subject to the satisfaction or waiver of theconditions set forth in Section 3.02(b), at the Second Closing, Purchaser shalldeliver (or cause to be delivered) to Seller originals, or copies if specified, of thefollowing: (i) the Holdback Amount, payable as provided in Section1.05(c);  (ii) counterparts of each of the Second Closing Related Agreementsto which Purchaser is a party and counterparts of all agreements, documents andinstruments required to be delivered by Purchaser pursuant to any of the SecondClosing Related Agreements to which it is a party, in each case duly executedby Purchaser;  (iii) a Certificate of Compliance of Purchaser issued by IndustryCanada dated within three (3) Business Days prior to the Second Closing Date;  (iv) true and complete copies of the certified articles ofincorporation of Purchaser, including all amendments thereto, and a copy of thebylaws of Purchaser, including all amendments thereto, certified as true,complete and correct and in full force and effect by the Secretary or otherofficer thereof; and  (v) certificates, dated the Second Closing Date, duly executed byan officer of Purchaser pursuant to Sections 3.01(b)(ii) and3.01(b)(iii) of this Agreement.**2.04****Bulk Sales Waiver and Indemnity**     Purchaser waives compliance by Seller with the provisions of the *Bulk Sales Act*(Ontario) andsimilar legislation, if any, in other jurisdictions. Each of Parent and Seller agree to indemnify,on a joint and several basis, and save Purchaser fully harmless against, and will reimburse orcompensate, on a joint and several basis, Purchaser for, any damages, losses, obligations,Liabilities, claims, penalties, costs and expenses (including costs of investigation and defenseand reasonable attorneys’ fees and expenses) incurred by or asserted against Purchaser directly orindirectly arising from, in connection with or related in any manner whatsoever to the failure bySeller or Purchaser to comply with such bulk sales legislation. Any rights accruing to Purchaserunder this Section 2.04 shall be in addition to, and independent of, the rights ofindemnification under Article 8 and any
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payments made to Purchaser under this Section 2.04 shall not be subject to any of thelimitations of Article 8.**ARTICLE 3 — CONDITIONS PRECEDENT****3.01****Conditions Precedent to Obligations of Seller** (a) Conditions Precedent to First Closing. The obligations of Seller toconsummate the transactions contemplated by this Agreement to be completed at the FirstClosing are subject to the satisfaction, at or prior to the First Closing, of thefollowing conditions, any one or more of which may be waived in writing by Seller (inits sole and absolute discretion): (i) Deliveries by Purchaser. Purchaser shall have madedelivery to Seller of the items specified in Section 2.03(a).  (ii) Representations and Warranties of Purchaser. Allrepresentations and warranties made by Purchaser in this Agreement (consideredcollectively and individually) shall be true and correct in all materialrespects (and for this purpose all materiality qualifications in suchrepresentations and warranties will be disregarded) on and as of the FirstClosing Date as if made by Purchaser on and as of such date (except for thoserepresentations and warranties which refer to facts existing at a specificdate, which shall be true and correct as of such date), and Seller shall havereceived a certificate to that effect from Purchaser dated as of the FirstClosing Date.  (iii) Performance of the Obligations of Purchaser. Purchasershall have performed, complied with or fulfilled all of the covenants,agreements, obligations and conditions (considered collectively andindividually) required by this Agreement to be performed, complied with orfulfilled by Purchaser on or prior to the First Closing Date, and Seller shallhave received a certificate to that effect from Purchaser dated as of the FirstClosing Date.  (iv) Legal Proceedings. None of Purchaser, The Bank of NovaScotia, Seller or Parent shall be subject to any injunction, restraining orderor other similar decree of a court of competent jurisdiction prohibiting theconsummation of the transactions contemplated by this Agreement or any of theRelated Agreements.  (v) No Violation of Orders. There shall be no injunction orother order issued by any Governmental Entity that declares this Agreement orany of the Related Agreements invalid or unenforceable in any respect orprevents or attempts to prevent the consummation of the transactionscontemplated hereby or thereby.  (vi) Required Approvals. There shall have been received allconsents, waivers, authorizations and approvals of any Governmental Entitynecessary to permit
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   the consummation of the transactions contemplated by this Agreement,including any consents, waivers, authorizations and approvals requiredpursuant to any provision of the Competition Act, each of which is listed inSection 3.01(a)(vi) of the Disclosure Schedules.  (vii) Termination of Securitization Transactions andSecuritization Documents. All of the Securitization Transactions and theSecuritization Documents shall have been duly terminated.  (viii) Release of Parent Guarantees. Seller shall have received evidence, inform and substance satisfactory to it, of the release of Irwin FinancialCorporation from its obligations under the Parent Guarantees in respect of therelevant Securitization Documents. (b) Conditions Precedent to Second Closing. The obligations of Seller toconsummate the transactions contemplated by this Agreement to be completed at theSecond Closing are subject to the satisfaction, at or prior to the Second Closing, ofthe following conditions, any one or more of which may be waived in writing by Seller(in its sole and absolute discretion): (i) Deliveries by Purchaser. Purchaser shall have madedelivery to Seller of the items specified in Section 2.03(b).  (ii) Representations and Warranties of Purchaser. Allrepresentations and warranties made by Purchaser in this Agreement (consideredcollectively and individually) shall be true and correct in all materialrespects (and for this purpose all materiality qualifications in suchrepresentations and warranties will be disregarded) on and as of the SecondClosing Date as if made by Purchaser on and as of such date (except for thoserepresentations and warranties which refer to facts existing at a specificdate, which shall be true and correct as of such date), and Seller shall havereceived a certificate to that effect from Purchaser dated as of the SecondClosing Date.  (iii) Performance of the Obligations of Purchaser. Purchasershall have performed, complied with or fulfilled all of the covenants,agreements, obligations and conditions required under this Agreement and eachof the First Closing Related Agreements to which it is a party to be performed,complied with or fulfilled by Purchaser on or prior to the Second Closing Date,and Seller shall have received a certificate to that effect from Purchaserdated as of the Second Closing Date.  (iv) Legal Proceedings. None of Purchaser, The Bank of NovaScotia, Seller or Parent, shall be subject to any injunction, restraining orderor other similar decree of a court of competent jurisdiction prohibiting theconsummation of the transactions contemplated by this Agreement or any of theRelated Agreements.
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 (v) No Violation of Orders. There shall be no injunction orother order issued by any Governmental Entity that declares this Agreement orany of the Related Agreements invalid or unenforceable in any respect orprevents or attempts to prevent the consummation of the transactionscontemplated hereby or thereby.  (vi) Required Approvals. There shall have been received allconsents, waivers, authorizations and approvals of any Governmental Entitynecessary to permit the consummation of the transactions contemplated by thisAgreement to be completed at the Second Closing, including any consents,waivers, authorizations and approvals required pursuant to any provision of theCompetition Act, each of which is listed in Section 3.01(a)(vi) of theDisclosure Schedules.**3.02****Conditions Precedent to Obligations of Purchaser** (a) Conditions Precedent to First Closing. The obligation of Purchaser toconsummate the transactions contemplated by this Agreement to be completed at the FirstClosing is subject to the satisfaction, at or prior to the First Closing, of thefollowing conditions, any one or more of which may be waived in writing by Purchaser(in its sole and absolute discretion): (i) Deliveries by Seller. Seller shall have made deliveryto Purchaser of the items specified in Section 2.02(a).  (ii) Representations and Warranties of Seller and Parent.All First Closing Representations and Warranties (considered collectively andindividually) shall be true and correct in all material respects (and for thispurpose all materiality qualifications in such representations and warrantieswill be disregarded) on and as of the First Closing Date as if made by Sellerand Parent on and as of such date (except for those representations andwarranties which refer to facts existing at a specific date, which shall betrue and correct as of such date) and Purchaser shall have received acertificate to that effect from each of Seller and Parent dated as of the FirstClosing Date.  (iii) Performance of the Obligations of Seller and Parent.Seller and Parent shall have performed, complied with or fulfilled allcovenants, agreements, obligations and conditions (considered collectively andindividually) required by this Agreement to be performed, complied with orfulfilled by Seller or Parent on or prior to the First Closing Date, andPurchaser shall have received a certificate to that effect from each of Sellerand Parent dated as of the First Closing Date.  (iv) Legal Proceedings. None of Seller, Parent, Purchaser orThe Bank of Nova Scotia shall be subject to any injunction, restraining orderor other similar decree of a court of competent jurisdiction prohibiting theconsummation of the transactions contemplated by this Agreement or any of theRelated
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   Agreements. Since the date of this Agreement, there shall not have beencommenced against Seller, or against any direct or indirect majorityshareholder of Seller, any Proceeding (i) involving any challenge to, orseeking damages or other relief in connection with, any of the transactionscontemplated by this Agreement or any Related Agreement, or (ii) that mayhave the effect of preventing, delaying, making illegal, imposinglimitations or conditions on or otherwise interfering with any of thetransactions contemplated by this Agreement or any Related Agreement.  (v) No Violation of Orders. There shall be no injunction orother order issued by any Governmental Entity which declares this Agreement orany of the Related Agreements invalid or unenforceable in any respect orprevents or attempts to prevent the consummation of the transactionscontemplated hereby or thereby.  (vi) Required Approvals. There shall have been received allconsents, waivers, authorizations and approvals of any Governmental Entitynecessary to permit the consummation of the transactions contemplated by thisAgreement, including any consents, waivers, authorizations and approvalsrequired pursuant to any provision of the Competition Act, each of which islisted in Section 3.01(a)(vi) of the Disclosure Schedules.  (vii) Termination of Securitization Transactions andSecuritization Documents. The Securitization Transactions and theSecuritization Documents shall have been duly terminated.  (viii) Termination of Securcor Securitization. Seller shall have deliveredto Purchaser evidence in form and substance reasonably satisfactory toPurchaser, of the termination of the Securcor Securitization.  (ix) No Material Adverse Change. During the First InterimPeriod, there shall have been no Material Adverse Change.  (x) Master Tapes. The Pre-Closing Tape and the Closing Tapeshall have been delivered to Purchaser in accordance with this Agreement andeach shall be in form and substance satisfactory to Purchaser in its solediscretion.  (xi) No Extraordinary Decline in Value. No extraordinarydecline in the value of the Portfolio and no significant deterioration in thequality of the Portfolio or the Business shall have occurred during the FirstInterim Period.  (xii) Reputation. No matter shall have occurred in relationto the Business or the Portfolio which could adversely affect the reputation ofthe Business or Purchaser.  (xiii) Employment Agreements. Purchaser shall have finalized and enteredinto employment agreements with each of the Key Employees in form and substancereasonably satisfactory to Purchaser.
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 (b) Conditions Precedent to Second Closing. The obligation of Purchaser toconsummate the transactions contemplated by this Agreement to be completed at theSecond Closing is subject to the satisfaction, at or prior to the Second Closing, ofthe following conditions, any one or more of which may be waived in writing byPurchaser (in its sole and absolute discretion): (i) Deliveries by Seller. Seller shall have made deliveryto Purchaser of the items specified in Section 2.02.  (ii) Representations and Warranties of Seller and Parent.All Second Closing Representations and Warranties (considered collectively andindividually) shall be true and correct in all material respects (and for thispurpose all materiality qualifications in such representations and warrantieswill be disregarded) on and as of the Second Closing Date as if made by Sellerand Parent on and as of such date (except for those representations andwarranties which refer to facts existing at a specific date, which shall betrue and correct as of such date) and Purchaser shall have received acertificate to that effect from each of Seller and Parent dated as of theSecond Closing Date.  (iii) Performance of the Obligations of Seller and Parent.Seller and Parent shall have performed, complied with or fulfilled allcovenants, agreements, obligations and conditions (considered collectively andindividually) required by this Agreement for the Second Closing and each of theFirst Closing Related Agreements to which it is a party to be performed,complied with or fulfilled by Seller or Parent on or prior to the SecondClosing Date, and Purchaser shall have received a certificate to that effectfrom each of Seller and Parent dated as of the Second Closing Date.  (iv) Legal Proceedings. None of Seller, Parent, Purchaser orThe Bank of Nova Scotia shall be subject to any injunction, restraining orderor other similar decree of a court of competent jurisdiction prohibiting theconsummation of the transactions contemplated by this Agreement to be completedat the Second Closing or any of the Second Closing Related Agreements. Sincethe date of this Agreement, there shall not have been commenced against Seller,or against any direct or indirect majority shareholder of Seller, anyProceeding (i) involving any challenge to, or seeking damages or other reliefin connection with, any of the transactions contemplated by this Agreement orany Related Agreement, or (ii) that may have the effect of preventing,delaying, making illegal, imposing limitations or conditions on or otherwiseinterfering with any of the transactions contemplated by this Agreement to becompleted at the Second Closing or any Second Closing Related Agreement.  (v) No Violation of Orders. There shall be no injunction orother order issued by any Governmental Entity which declares this Agreement orany of the Related Agreements invalid or unenforceable in any respect orprevents or attempts to prevent the consummation of the transactionscontemplated hereby or thereby.
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 (vi) Required Approvals. There shall have been received allconsents, waivers, authorizations and approvals of any Governmental Entitynecessary to permit the consummation of the transactions contemplated by thisAgreement to be completed at the Second Closing, including any consents,waivers, authorizations and approvals required pursuant to any provision of theCompetition Act, each of which is listed in Section 3.01(a)(vi) of theDisclosure Schedules.  (vii) No Material Adverse Change. During the Second InterimPeriod, there shall have been no Material Adverse Change.  (viii) Due Diligence. Purchaser shall be satisfied with the results of itsdue diligence investigation with respect to the Second Closing Assets andAssumed Second Closing Liabilities, including interviews with selected staffand management of Seller.  (ix) Reputation. No matter shall have occurred in relationto the Business (as it exists immediately following the First Closing) or thePortfolio which could adversely affect the reputation of the Business (as itexists immediately following the First Closing) or Purchaser.  (x) Excluded Items. Each of the Excluded Items, and allLiabilities arising from or relating thereto, shall have been duly andeffectively sold by or otherwise transferred from Seller.  (xi) Acceptance of Employment Offers. A majority of theEmployees engaged in each of the principal functions of the Business shall haveaccepted the offers of employment made by Purchaser pursuant to Section11.03(a).**ARTICLE 4 — REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT**     Each Seller and Parent hereby represents and warrants to Purchaser, on a joint and severalbasis, on the date hereof, as of the First Closing Date with respect to the First ClosingRepresentations and Warranties and as of the Second Closing Date with respect to the Second ClosingRepresentations and Warranties as follows:**4.01****Organization; Power**     Each Seller is a corporation duly incorporated, organized and subsisting under the laws ofBritish Columbia (with respect to Irwin Canada) and Alberta (with respect to Onset). Parent is abanking corporation duly incorporated and validly existing under the laws of the State of Indiana.No proceedings have been taken or authorized by Seller, Parent or by any other Person with respectto the bankruptcy, insolvency, liquidation, dissolution or winding up of Seller or Parent or withrespect to any amalgamation, merger, consolidation, arrangement or reorganization of, or relatingto, Seller or Parent nor, to the Knowledge of Seller, have any such proceedings been threatened byany Person. Seller has all necessary power, authority, and capacity to carry on the Business as nowcarried on and to own the Assets and to sell, assign and transfer the Assets owned by it whichcollectively
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constitute all of the Assets to Purchaser as herein contemplated. Each Seller and Parent have thecorporate power and authority to enter into, execute and deliver this Agreement and will have thecorporate power and authority to enter into, execute and deliver each of the Related Agreements towhich they are a party, to consummate the transactions contemplated by this Agreement and each ofthe Related Agreements to which they are a party, to perform all of their obligations under thisAgreement and each of the Related Agreements to which they are a party and to comply with andfulfill the terms and conditions of this Agreement and each of the Related Agreements to which theyare a party.**4.02****Authorization and Validity of Agreement**     The execution, delivery and performance by each Seller and Parent of this Agreement and anyand all Related Agreements to which they are a party has been authorized by all necessary corporateaction on the part of each Seller and Parent. This Agreement and each of the Related Agreements towhich they are a party have been duly executed and delivered by each Seller and Parent and, in eachcase, constitutes a legal, valid and binding obligation of each Seller and Parent, as applicable,enforceable against each of them in accordance with their respective terms and conditions, exceptas enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratoriumor similar laws affecting the enforcement of creditor’s rights generally or by general principlesof equity.**4.03****No Conflict or Violation** (a) The execution, delivery and performance of this Agreement and each of theRelated Agreements to which they are a party by each Seller and Parent do not and shallnot violate or conflict with any provision of the articles of incorporation, bylaws orother Governing Documents thereof.  (b) The execution, delivery and performance of this Agreement and each of theRelated Agreements by each Seller and Parent do not and shall not: (i) violate anyApplicable Law with respect to Seller, Parent or the Business; (ii) except as set forthin Section 4.03(b) of the Disclosure Schedules, violate or result in a materialbreach of or constitute (with or without due notice or lapse of time or both) amaterial default under any Contract, consent order or other instrument or obligation towhich any Seller or Parent is a party, or by which its assets or properties may bebound; (iii) result in the imposition of any Encumbrance or restriction, except forPermitted Encumbrances, on the Business or any of the Assets, cause the maturity of anyLiability of any Seller or Parent to be accelerated or increased (with or without duenotice or lapse of time or both); or (iv) except as set forth in Section4.03(b) of the Disclosure Schedules, require any notice to, filing with or consent,waiver, authorization or approval from any Governmental Entity or any other Person.**4.04****Qualification to do Business**     Except as set out in Section 4.04 of the Disclosure Schedules, Seller is registered,licensed or otherwise qualified to do business under the laws of each of the jurisdictions wherethe ownership or operation of the Assets or the conduct of the Business requires such registration,license or
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qualification, each of which jurisdiction and each of which registration, license andqualification is specified in Section 4.04 of the Disclosure Schedules.**4.05****Documents Made Available to Purchaser**     All of the documents and information furnished to Purchaser (including pursuant to Section6.03) in connection with the transactions contemplated by this Agreement and the RelatedAgreements, taken as a whole but in no way limiting the scope or content of any otherrepresentation and warranty of Seller or Parent, were, in all material respects, true, accurate andcomplete as of their respective dates (or, if undated, as at the date of delivery thereof) and donot contain any untrue statement of a material fact or omit a material fact necessary to make anyof such documents or information not misleading in light of the circumstances in which they werefurnished.**4.06****Files and Records**     Seller has made available to Purchaser all Files and Records that are material to theBusiness, the Assets, the Assumed Liabilities and the transactions contemplated by this Agreement.All material financial transactions of the Business have been accurately recorded in the FinancialRecords in accordance with sound business and financial practice and the Financial Recordsaccurately reflect in all material respects the basis for the financial condition and the revenues,expenses and results of operations of the Business as of and to the date hereof. The Files andRecords are true and correct in all material respects. All Files and Records are owned exclusivelyby Seller and, except as set forth in Section 4.06 of the Disclosure Schedules, all Filesand Records are in the full possession and exclusive control of Seller.**4.07****Master Tapes**     Each of the Pre-Closing Tape and the Closing Tape to be furnished by Seller to Purchaserpursuant to this Agreement will be upon the delivery thereof, a true and accurate reproduction ofthe data and information contained in the Files and Records as of its respective time of productionand discloses or will disclose, as applicable, all data and information required to be includedthereon with respect to each CSC and Lease included in the Portfolio as at such time.**4.08****Financial Statements**     Attached to the Disclosure Schedules, and deemed to be incorporated by reference therein asSection 4.08 thereof, are copies of: (i) the consolidated balance sheets of Irwin Canada asof December 31, 2005 and December 31, 2006, and the consolidated balance sheets of Irwin FinancialCorporation and its subsidiaries as of December 31, 2007, and the related statements of income foreach of the fiscal years then ended; (ii) the consolidated balance sheet of Irwin Canada (the“Interim Balance Sheet”) as of June 30, 2008 (the “Balance Sheet Date”); and (iii)the related statement of income for the six (6) months then ended (collectively, the “FinancialStatements”). All Financial Statements referred to in this Section 4.08: (a) have been prepared in accordance with Canadian GAAP, except for the FinancialStatements of Irwin Financial Corporation and its subsidiaries, which have beenprepared in accordance with U.S. GAAP, in each case, on the basis of the Files andRecords; and
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 (b) are true and correct and fairly present the financial position of Seller as ofthe respective dates thereof and the results of Seller’s operations and income for theperiods covered thereby, except for the absence of footnotes and of customary year-endadjustments made in accordance with Canadian GAAP.**4.09****Tax Matters** (a) Seller has filed or caused to be filed on a timely basis all Tax Returns withrespect to Taxes that are or were required to be filed. Seller has paid, or madeprovision for the payment of, all Taxes shown to be due thereon, except such Taxes asare set forth in Section 4.09(a) of the Disclosure Schedules or which are notyet delinquent or are being contested in good faith and as to which adequate reserves(determined in accordance with Canadian GAAP) have been provided in the Interim BalanceSheet. Except as set forth in Section 4.09(a) of the Disclosure Schedules,Seller currently is not the beneficiary of any extension of time within which to fileany Tax Return or any waiver or extension of time for the assessment of any Tax. Thereis no pending or, to the Knowledge of Seller, threatened, claim by any GovernmentalEntity in a jurisdiction where Seller does not file Tax Returns that it is or may besubject to taxation by that jurisdiction.  (b) Except as set forth in Section 4.09(b) of the Disclosure Schedules,there is no Tax sharing agreement, Tax allocation agreement, Tax indemnity obligationor similar Contract, understanding or practice with respect to Taxes (including anyadvance pricing agreement, closing agreement or other arrangement relating to Taxes)that shall require any payment by Seller.  (c) Seller has made all collection and withholding of Taxes required to be madeunder all Applicable Law, including collection or withholding with respect to sales anduse Taxes and compensation paid to any employee, independent contractor, creditor ofSeller or other third party and the amounts collected or withheld have been properlyand timely paid over to the appropriate Taxing Authority. Seller is not a party to anyexpress Tax settlement agreement, arrangement, policy or guideline, formal or informal,as of the First Closing Date and as of the Second Closing Date, as applicable, andSeller has no obligation to make payments under any such arrangement.  (d) Seller is not a “non-resident” of Canada within the meaning of the Income TaxAct. Seller is registered for the purposes of the GST Legislation and the registrationnumber for Irwin Canada is 87042 0247 RT0001 and the registration number for Onset is87065 2518 RT0001. This Agreement provides for the sale to Purchaser of all or part ofa business that was established or carried on by Seller.**4.10****Absence of Certain Changes**     Except as set forth in Section 4.10 of the Disclosure Schedules, since December 31,2006, there has not been any: (a) damage, destruction, or casualty or personal injury or loss,whether or not insured, affecting any portion of the assets or properties of Seller, including theAssets, where such
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damage, destruction, casualty, injury or loss had or would have a material and adverse effecton Seller or the Business; (b) material change in Seller’s customary methods of operations or themanner in which the Business is conducted; (c) change in Seller’s accounting policies, proceduresor methodologies or tax principles, practices or policies, (d) sale, transfer or assignment of anymaterial tangible or intangible asset of Seller, except in the Ordinary Course of Business; (e)material mortgage, pledge or imposition of any Encumbrances on any asset of Seller, or materiallease of real property, machinery, equipment or buildings entered into by Seller; (f) declaration,setting aside or payment of any dividend or any other distribution in respect of any capital stockor other securities of Seller, except regularly scheduled dividends; (g) capital investment in,loan to, or acquisition of the securities or assets of (including by merger or consolidation), anyother Person; (h) increase in the compensation, bonus or other benefits payable, or the granting ofawards under equity based plans, to directors, consultants, officers or employees of Seller, otherthan increases in the Ordinary Course of Business or payments made in the Ordinary Course ofBusiness consistent with past practice; (i) change made or authorization to make a change toSeller’s Governing Documents; (j) event or condition of any character that constitutes or couldreasonably be expected to materially and adversely affect Seller; or (k) agreement orunderstanding, whether or not in writing, to do any of the foregoing.**4.11****Real Property**     Seller does not own any real property.**4.12****Leased Real Property** (a) Section 4.12 of the Disclosure Schedules sets forth a list of all realproperty in which Seller, as lessee, has a leasehold interest (the “Leased RealProperty”). Except as set forth in Section 4.12 of the DisclosureSchedules, neither Seller nor, to the Knowledge of Seller, any other party thereto isin breach of or default under any Real Property Lease, and no party to any RealProperty Lease has given Seller written notice of or made a written claim with respectto any breach or default thereunder. Except as set forth in Section 4.12 of theDisclosure Schedules, to the Knowledge of Seller, the Leased Real Property is notsubject to any Encumbrance that has been caused or created by Seller (other than thelien, if any, of current property Taxes and assessments not in default). To theKnowledge of Seller, there are no pending or threatened condemnation or otherProceedings or claims relating to any of the Leased Real Property.  (b) No notice of a violation of any Laws, or of any covenant, condition, easementor restriction which is material to the Leased Real Property or its use or occupancyhas been given to Seller.  (c) Seller holds good, valid and marketable leasehold title to the Leased RealProperty free and clear of all Encumbrances, other than Permitted Encumbrances andminor title imperfections and easements and encroachments created by Seller which donot adversely affect the use or operation of the Leased Real Property by Seller.
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**4.13****Equipment and Machinery** (a) Section 4.13 of the Disclosure Schedules sets forth a list of allEquipment and Machinery (whether owned or leased by Seller) included in the Assets, anda designation as to whether such Equipment and Machinery is owned or leased by Seller.Seller has good title, free and clear of all Encumbrances (other than the PermittedEncumbrances), to the Equipment and Machinery listed as owned by it. Seller holds goodand transferable leasehold interests in all Equipment and Machinery listed as leased byit.  (b) The Equipment and Machinery are in reasonably good operating condition andrepair (except for normal wear and tear), and are sufficient for the operation of theBusiness as presently conducted, subject to routine replacement, maintenance andrepair. To the Knowledge of Seller, all warranties given by the manufacturer or sellerof the Equipment and Machinery in respect thereof are in good standing and are bindingand enforceable and have not been amended, cancelled, modified or encumbered.**4.14****The CSCs** (a) Section 4.14(a) of the Disclosure Schedules contains a list of theCSCs, by Obligor, current interest rate, monthly payment and outstanding principalbalance as of the Close of Business on the day immediately prior to the date hereof andindicates whether and to what extent any payment (or part thereof) on any CSC is morethan thirty (30) days past due or whether any CSC is otherwise in default, andindicates which CSCs are subject to the Securitization Transactions.  (b) With respect to each CSC, except as set forth in Section 4.14(b) of theDisclosure Schedules: (i) each CSC Document: (A) is enforceable in accordance with itsterms, subject to bankruptcy, insolvency, and similar Laws, and are not subjectto any right of rescission, set-off, abatement, diminution, or counterclaim ordefense, including the defense of usury, and no such right of rescission,set-off, abatement, diminution, or reasonable counterclaim or defense has beenasserted with respect thereto; (B) has been duly executed and delivered bySeller and, to the Knowledge of Seller, by each Obligor that is a partythereto; and (C) is correct and complete in all material respects;  (ii) (A) unless otherwise allowed pursuant to the terms of the CSCDocuments, no CSC has been prepaid fully or partially; (B) all paymentsrequired to be made for such CSC under the terms of the CSC have been made; and(C) Seller has not advanced funds, or induced, solicited or knowingly receivedany advance of funds from a party other than the Obligor, for the payment ofany amount required by the CSC;  (iii) all interest, fees and other charges payable with respect toeach such CSC conform in all respects with all Applicable Laws of thejurisdiction governing such CSC;
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 (iv) any and all requirements of Applicable Law, including usury,truth-in-lending, real estate settlement procedures, consumer creditprotection, equal credit opportunity, foreign entity qualification anddisclosure laws, applicable to Seller with respect to each CSC have beencomplied with in all respects;  (v) the proceeds of each CSC have been fully disbursed, and thereis no obligation or requirement for future advances thereunder by Seller, andany and all requirements as to completion of any on-site or off-siteimprovements and as to disbursements of any escrow funds therefor have beencomplied with;  (vi) Seller has delivered to Purchaser a true and complete copy ofeach form of CSC Document which will be in effect as of the First EffectiveTime without revision; and  (vii) as of the First Effective Time, Seller will be the principaland sole owner of each CSC and the related CSC Documents and Seller shall havefull and absolute right, power and authority to assign, transfer and deliverthe CSCs, free and clear of Encumbrances, other than Permitted Encumbrances, toPurchaser and without notice to or consent, waiver, authorization or approvalof any Obligor or any other Person. (c) Except as set forth in Section 4.14(c) of the Disclosure Schedules: (i)there is no material default, breach or violation or, to the Knowledge of Seller, noevent of acceleration existing under any CSC or the related CSC Documents and, to theKnowledge of Seller, no event which, with the passage of time or the giving of notice,or both, would constitute a default, breach, violation or event of acceleration;(ii) to the Knowledge of Seller, no Obligor with respect to a CSC or any other CSCDocument has (A) filed, or consented by answer or otherwise to the filing against itof, a petition for relief or reorganization or arrangement or any other petition inbankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law ofany jurisdiction, (B) made an assignment for the benefit of its creditors, (C)consented to the appointment of a custodian, receiver, trustee, liquidator or otherofficer with similar power over itself or any substantial part of its property, (D)been adjudicated insolvent, or (E) taken action for the purpose of authorizing any ofthe foregoing; and (iii) Seller has not waived any default, breach, violation or eventof acceleration.  (d) With respect to each CSC, except as set forth in Section 4.14(d) of theDisclosure Schedules: (i) there is no pending or, to the Knowledge of Seller, threatenedlitigation with respect to any CSC which would adversely affect the rights ofPurchaser to enforce such CSC or otherwise obtain the benefits contemplatedwith respect to each CSC;
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 (ii) with respect to each CSC, Seller is in possession of completeFiles and Records and Seller has made available to Purchaser all such Files andRecords related to the CSCs and each such CSC Document contained in the Filesand Records of Seller relating to a CSC is true and correct in all materialrespects and accurately describes the transaction to which such CSC Documentrelates in all material respects;  (iii) Seller has fulfilled and performed its obligations under eachof the CSC Documents in all material respects, and Seller is not, and hasreceived no written notice alleging that it is, in breach or default under anyof them;  (iv) Save and except for CSCs for which, in accordance with theCredit Policies and the Ordinary Course of Business of Seller, a securityinterest has not been registered by Seller, each CSC is secured by either (x) aperfected, valid and enforceable first priority security interest in favour ofSeller in each item of Collateral, or (y) if a credit approval contemplatesthat Seller would have a secondary or other subordinate security interest inany Collateral, Seller has a perfected, valid and enforceable security interestin each item of Collateral relating to such CSC with the priority contemplatedby such credit approval, which security interests will be, in each case, as ofthe First Effective Time, assignable by Seller to Purchaser;  (v) no notice, consent, waiver, authorization or approval isrequired in connection with the execution, delivery or performance by, validityof or enforceability against any Obligor of any CSC Document other than thosewhich have been duly obtained, made or performed, and are in full force andeffect; and  (vi) Seller has not received any notice of violation of anyApplicable Law relating to any CSC Document.**4.15****The Leases and Lease Documents** (a) Section 4.15(a) of the Disclosure Schedules contains a list of theLeases, by Obligor, loss reserves and outstanding balance as of the Close of Businesson the day immediately prior to the date hereof and indicates whether and to whatextent any payment (or part thereof) on any Leases is more than thirty (30) days pastdue or whether any Leases are otherwise in default and indicates which Leases aresubject to the Securitization Transactions.  (b) Except as set forth in Section 4.15(b) of the Disclosure Schedules: (i) each Lease Agreement and the other Lease Documents: (A) isenforceable in accordance with its terms, subject to bankruptcy, insolvency andsimilar Laws, and are not subject to any right of rescission, set-off,abatement, diminution, or counterclaim or defense, including the defense ofusury, and no such right of rescission, set-off, abatement, diminution, orreasonable counterclaim or defense has been asserted with respect thereto, andneither
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   the operation of the terms of the Lease Documents, nor the exercise of anyright thereunder, will render them unenforceable, in whole or in part; (B)has been duly executed and delivered by Seller and, to the Knowledge ofSeller, by each Obligor that is a party thereto; (C) is correct and completein all material respects and (D) constitutes a valid and binding obligationof Seller (to the extent Seller is a party thereto) and a valid and bindingobligation of the other parties thereto, and is in full force and effectsubject to bankruptcy, insolvency, reorganization, moratorium, and similarlaws relating to or affecting creditors’ rights and to general equitableprinciples; (ii) (A) no Lease has been prepaid fully or partially; (B) allpayments required to be made for such Lease under the terms of the LeaseAgreement have been made; and (C) Seller has not advanced funds, or induced,solicited or knowingly received any advance of funds from a party other thanthe Obligor, for the payment of any amount required by the Lease;  (iii) all rent payments, fees and other charges payable with respectto each Lease Agreement conform in all respects with all Applicable Laws;  (iv) any and all requirements of any Applicable Law, includingusury, truth-in-lending, real estate settlement procedures, consumer creditprotection, equal credit opportunity, foreign entity qualification anddisclosure Laws, applicable to Seller with respect to each Lease have beencomplied with in all respects;  (v) each Lease is secured by a perfected, valid and enforceablefirst priority security interest in favour of Seller in each item of Collateralrelating to such Lease, which security interest will be, as of the FirstEffective Time, assignable by Seller to Purchaser;  (vi) there is no obligation or requirement for future purchasesunder any Lease by Seller;  (vii) Seller has delivered to Purchaser a true and complete copy ofeach form of Lease Document which will be in effect without revision; and  (viii) as of the First Effective Time, Seller will be the principal and sole ownerof each Lease and the related Lease Documents and Seller shall have full andabsolute right, power and authority to assign, transfer and deliver the Leases,free and clear of Encumbrances, other than Permitted Encumbrances, to Purchaserand without notice to or consent, waiver, authorization or approval of anyObligor or any other Person. (c) Except as set forth in Section 4.15(c) of the Disclosure Schedules: (i)there is no material default, breach, violation or, to the Knowledge of Seller, eventof acceleration existing under any Lease Agreement or the related Lease Documents and,to the Knowledge of Seller, no event which, with the passage of time or the giving ofnotice, or both, would constitute a default, breach, violation or event of
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   acceleration; (ii) to the Knowledge of Seller, no Obligor with respect to a LeaseAgreement or any other Lease Document has (A) filed, or consented by answer orotherwise to the filing against it of, a petition for relief or reorganization orarrangement or any other petition in bankruptcy, for liquidation or to takeadvantage of any bankruptcy or insolvency law of any jurisdiction, (B) made anassignment for the benefit of its creditors, (C) consented to the appointment of acustodian, receiver, trustee, liquidator or other officer with similar power overitself or any substantial part of its property, (D) been adjudicated insolvent, or(E) taken action for the purpose of authorizing any of the foregoing; and (iii)Seller has not waived any default, breach, violation or event of acceleration. (d) With respect to each Lease and the corresponding Lease Documents, except as setforth in Section 4.15(d) of the Disclosure Schedules: (i) there is no pending or, to Seller’s Knowledge, threatenedlitigation with respect to any Lease which would adversely affect the rights ofPurchaser to enforce such Lease or otherwise obtain the benefits contemplatedwith respect to each Lease;  (ii) with respect to each Lease, Seller is in possession of completeFiles and Records and Seller has made available to Purchaser all such Files andRecords related to the Leases, and each such Lease Document contained in theFiles and Records of Seller relating to a Lease is true and correct in allmaterial respects and accurately describes the transaction to which such LeaseDocument relates in all material respects;  (iii) Seller has fulfilled and performed its obligations under eachof the Lease Documents in all material respects, Seller is not required todisburse any additional funds to any Obligor, and Seller is not, and hasreceived no written notice alleging that it is, in breach or default under anyof them;  (iv) no notice, consent, waiver, authorization or approval isrequired in connection with the execution, delivery or performance by, validityof, or enforceability against any Obligor of any Lease Document other thanthose which have been duly obtained, made or performed, and are in full forceand effect; and  (v) Seller has not received any notice of violation of anyApplicable Law relating to any Lease Document.**4.16****Nature of CSCs and Leases** (a) None of the CSCs or Leases: (i) are in respect of a motor vehicle having a gross vehicle weight(specified by the manufacturer of the motor vehicle as the loaded weight of themotor vehicle or, in the case of a motor vehicle designed to pull a trailer,the motor vehicle with the trailer) that is less than twenty-one (21) tonnes;
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 (ii) are with a natural person Obligor in respect of personalproperty that is leased by such Obligor under a financial lease agreement orpurchased by such Obligor under a conditional sales agreement and intendedprimarily for the personal use or enjoyment of the Obligor or of a naturalperson who is not dealing with the Obligor at arm’s length;  (iii) are in respect of personal property, including personalproperty that is affixed to real property, unless such personal property wasselected by the Obligor and acquired by Seller at the request of the Obligor orwas previously acquired by Seller in respect of another financial leaseagreement or conditional sales agreement; or  (iv) entail responsibility on the part of Seller to install,promote, service, clean, maintain or repair the property that is the subject ofthe CSC or Lease. (b) Each of the CSCs and Leases is a financial lease agreement or conditional salesagreement, the primary purpose of which is the extending of credit to an Obligor.  (c) Seller does not have a residual interest in any CSC or Lease in excess oftwenty-five percent (25%) of the original cost of the Equipment and Machinery to whichthe CSC or Lease relates, and the sum of the estimated residual interest of Seller inthe Portfolio is not in excess of ten percent (10%) of the sum of the original costs ofacquisition of such leased properties by Seller.  (d) Each of the CSCs and Leases includes a provision assigning to the Obligor, orsetting out the responsibilities of Seller in respect of, the benefit of allwarranties, guarantees or other undertakings made by a manufacturer or supplier inrespect of the personal property that is the subject of the CSC or Lease.**4.17****Servicer Obligations**     Irwin Canada has serviced the CSCs and Leases in compliance with Applicable Laws in allmaterial respects from the date of origination, purchase or other acquisition by Irwin Canada ofeach such serviced CSC or serviced Lease through the Second Closing Date.**4.18****Title to the Assets and Related Matters**     Seller has good and marketable title to, or a valid leasehold interest in, all of the Assets,free and clear of all Encumbrances, except for the Permitted Encumbrances. Except with respect toany purchase option granted to a lessee as set forth in the Lease Documents, there is no agreement,option or other right or privilege in favour of any person binding upon or which at any time in thefuture may become binding upon any Seller to sell, transfer, assign, pledge, charge, mortgage or inany other way dispose of or encumber any of the Assets. Except as set forth in Section 4.18of the Disclosure Schedules, the Assets constitute all of the assets, tangible and intangible, ofany nature whatsoever necessary to operate the Business in the manner presently operated by Seller.On the date hereof, Seller is not a party to, and none of the Assets are the subject matter of, asecuritization transaction other than a Securitization Transaction.
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**4.19****Intellectual Property** (a) Section 4.19(a) of the Disclosure Schedules sets forth a true andcomplete list of (i) all patents, patent applications, trade-marks, service marks,certification marks, business names, trademark applications, industrial designapplications and registrations, integrated circuit topographies, mask works, tradenames, domain names, internet protocol addresses, registered copyrights and copyrightapplications owned by Seller (collectively, the “Proprietary IntellectualProperty”), (ii) all patents, trade-marks, trade names, domain names, internetprotocol addresses, service marks, certification marks, business names, integratedcircuit topographies, mask works, copyrights, technology, Software and processeslicensed to Seller or an Affiliate thereof pursuant to a written Contract and used bySeller primarily in the operation of the Business (collectively, the“Contract-Licensed Intellectual Property”) and (iii) all licenses governing theContract-Licensed Intellectual Property (the “Licenses”). Notwithstanding theforegoing, Section 4.19(a) of the Disclosure Schedules and the definitions ofProprietary Intellectual Property and Contract-Licensed Intellectual Property shall notinclude any of the Excluded Intellectual Property Assets identified in Section1.02(t) herein.  (b) Seller owns, or has the right to use pursuant to valid and effective Contractsset forth in Section 4.19(a) of the Disclosure Schedules, all ProprietaryIntellectual Property and Contract-Licensed Intellectual Property, all Off-the-ShelfSoftware, and all other Unregistered Intellectual Property, and all goodwill associatedwith each of the foregoing, where applicable (but not including Excluded IntellectualProperty Assets) used to conduct the Business as presently conducted (collectivelyreferred to as “Intellectual Property Assets”). Except as set forth inSection 4.19(b) of the Disclosure Schedules, no claims are pending or, to theKnowledge of Seller, threatened against Seller by any Person with respect to thePersonal Information and use of any Intellectual Property Assets, or challenging orquestioning their validity, enforceability or distinctiveness of any ProprietaryIntellectual Property or the validity or effectiveness of any Contract relating to theIntellectual Property Assets. Except as set forth in Section 4.19(b) of theDisclosure Schedules, to the Knowledge of Seller, none of the Intellectual PropertyAssets or the use thereof infringe, violate or otherwise misappropriate anyIntellectual Property of another Person.  (c) To the Knowledge of Seller, and except as set out in Section 4.19(c) ofthe Disclosure Schedules, Seller is entitled to the sole and exclusive use of all ofthe Intellectual Property Assets, and none of same is subject to any Encumbrances otherthan Permitted Encumbrances. Seller is not a party to any contract or commitment to payany royalty, license or other fee with respect to the use of the Intellectual PropertyAssets except as set out in Section 4.19(c) of the Disclosure Schedules. TheIntellectual Property Assets and the Excluded Intellectual Property Assets constituteall Intellectual Property necessary and material to the operation of the Business. Tothe Knowledge of Seller, except as set out in Section 4.19(c) of the DisclosureSchedules, no Intellectual Property Asset is subject to any outstanding order, award,decision, injunction, judgment, decree, stipulation or agreement materially restrictingthe transfer, use, enforcement or licensing thereof by Seller in the operation of the
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   Business. Except as set out in Section 4.19(c) of the Disclosure Schedules,no notice, consent, waiver, authorization or approval is required for Seller tolicense or sublicense any of the Intellectual Property Assets for the operation ofthe Business. (d) Seller has taken, and prior to the Second Closing Date will continue to take,such reasonable measures to preserve and protect the Personal Information and itsrights in the Intellectual Property Assets so as to restrict the use and disclosurethereof solely to authorized Persons. For clarification, reasonable measures topreserve and protect the Intellectual Property Assets shall: (i) not includeregistering or otherwise obtaining governmental protection for any of the UnregisteredIntellectual Property Assets; and (ii) for the Software and Off-the-Shelf Software,only include complying with the terms and conditions of the applicable Contract. Tothe Knowledge of Seller, Seller is not making unauthorized use of any information whichwas provided to it on a confidential basis or which constitutes the trade secret of anyPerson. Except for those Intellectual Property Assets licensed by Seller whichexpressly require consent, waiver, authorization, or approval to transfer to Purchaser,which may include, but are not limited to, Software and/or Off-the-Shelf Software, allof which such Intellectual Property Assets are set forth in Section 4.19(d) ofthe Disclosure Schedules the transactions contemplated by this Agreement, and all duediligence investigations conducted in respect of same, will not result in thetermination of, or otherwise require the consent, waiver, authorization or approval ofany party to, any Intellectual Property Asset or Personal Information.Section 4.19(d) of the Disclosure Schedules is a complete list of all of theSoftware, Off-the-Shelf Software and other Intellectual Property Assets for whichconsent, waiver, authorization or approval to transfer to Purchaser is required.  (e) Following the Second Closing, Purchaser will hold enforceable licenses for allOff-the-Shelf Software and Software used by or for Seller in connection with theBusiness, including a sufficient number of licenses for all the Off-the-Shelf Softwareand Software loaded on all computers forming part of the Assets.  (f) Seller has not developed or customized, nor contributed to developing orcustomizing, any Software, and none of the Software that constitutes IntellectualProperty Assets was developed for or on behalf of Seller by any party, including,without limitation, employees and individual contractors of Seller. All of the Softwarethat constitutes Intellectual Property Assets is Contract-Licensed IntellectualProperty. All of the Software that is used in the Business is Contract-LicensedIntellectual Property and is listed in Section 4.19(a) of the DisclosureSchedules.  (g) Except as set out in Section 4.19(g) of the Disclosure Schedules and tothe Knowledge of Seller, all Software and Off-the-Shelf Software that is owned, used orlicensed by Seller in the conduct of the Business is operative in all material respectsas required for the conduct of the Business, and is free of any material problems,defects, deficiencies, bugs, errors, viruses or other corrupting influences.
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 (h) All applications and registrations pertaining to the Excluded IntellectualProperty Assets that are licensed to Purchaser pursuant to Section10.01(b) (the “Licensed Excluded Intellectual Property”) are valid,subsisting and enforceable and have not been abandoned. Seller holds the entire right,title and interest in and to all of the Licensed Excluded Intellectual Property withgood and marketable title thereto, and none of same is subject to any Encumbrances orany other rights of others, other than Permitted Encumbrances. To the Knowledge ofSeller, no infringement, misuse or misappropriation of the Licensed ExcludedIntellectual Property has occurred or is occurring.**4.20****Privacy** (a) The collection, use and retention of the Personal Information by Sellercomplies with all Privacy Laws and is consistent with Seller’s own Privacy Policies.The disclosure or transfer of the Personal Information by Seller to any third partiesand disclosure of the Personal Information by Seller to Purchaser as part ofPurchaser’s due diligence in connection with the transactions contemplated by thisAgreement and as contemplated by this Agreement or any Related Agreement comply and,subject to Purchaser’s compliance with its obligations under Section 11.06, forthe purposes of Purchaser’s administration and collection practices and proceduresrelating to the Assets following the First Closing and the Second Closing, asapplicable, will comply, in each case, with all Privacy Laws and are consistent withSeller’s Privacy Policies.  (b) There are no restrictions on Seller’s collection, use, disclosure, transfer andretention of the Personal Information except as provided by Applicable Laws, Seller’sown Privacy Policies and the Eligible Account Documents.  (c) There are no investigations, inquiries, actions, suits, claims, demands orproceedings, whether statutory or otherwise, pending or ongoing with respect toSeller’s collection, use, disclosure, transfer or retention of the PersonalInformation.  (d) No order, whether statutory or otherwise, is pending or has been made, and nonotice has been given pursuant to any Privacy Laws, requiring Seller to take (or torefrain from taking) any action with respect to the Personal Information.  (e) Set out in Section 4.20(e) of the Disclosure Schedules are thefollowing in respect of the Personal Information: (i) all Privacy Policies;  (ii) a copy of all the forms of consent used by Seller in respect ofthe Personal Information; and  (iii) a description of all “opt-in” and “opt-out” proceduresutilized by Seller in respect of Seller’s or any third party’s use of thePersonal Information.
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**4.21****Employee Benefit Plans** (a) Section 4.21 of the Disclosure Schedules sets forth a complete andcorrect list of all Benefit Plans, none of which are registered or supplemental pensionplans. Seller has made available to Purchaser copies of all Benefit Plans, as amendedto the date hereof, together with summary descriptions thereof. To the Knowledge ofSeller, no event has occurred and there exists no condition or set of circumstanceswith respect to the Benefit Plans in connection with which Seller or Purchaser could besubject to any Liability under the terms of such Benefit Plans or any Applicable Lawwhich could reasonably be expected to materially and adversely affect Seller.  (b) Except as disclosed in Section 4.21 of the Disclosure Schedules, eachBenefit Plan has been maintained, operated and administered, in all material respects,in compliance with its terms and any related documents or agreements and ApplicableLaws.  (c) To the Knowledge of Seller, no fact or circumstance exists that could adverselyaffect the preferential tax treatment ordinarily accorded to any such Benefit Plans;  (d) All obligations regarding the Benefit Plans have been satisfied, there are nooutstanding defaults or violations by Seller or, to the Knowledge of Seller, any otherparty to any Benefit Plan and no Taxes, penalties, or fees are owing or exigible underor in respect of any of the Benefit Plans.  (e) All contributions or premiums required to be paid by Seller under the terms ofeach Benefit Plan or by Applicable Law have been made in a timely fashion in accordancewith Applicable Law and the terms of the Benefit Plans. Seller has no liability (otherthan liabilities accruing after the Second Closing Date) with respect to anycontributions or premiums to the Benefit Plans. Contributions or premiums for theperiod up to the Second Closing Date have been paid by Seller even though not otherwiserequired to be paid until a later date.  (f) With respect to any Benefit Plan, no actions, audits, investigations, suits orclaims (other than routine claims for benefits in the ordinary course) are pending or,to the Knowledge of Seller, threatened.**4.22****Employees; Labour Relations** (a) There are no collective bargaining agreements and other Contracts relating torelationships with Key Employees or Employees (other than the employment Contracts setforth in Section 4.27 of the Disclosure Schedules) to which Seller is a party.  (b) (i) There is no labour strike, lockout, dispute, slowdown or stoppage pendingor, to the Knowledge of Seller, threatened against or involving Seller, nor has anysuch event or labour difficulty occurred within the past five (5) years, (ii) Seller isnot a party to nor is Seller bound by any collective bargaining or similar agreementwith any labour organization nor has any union sought to represent Seller’s Key
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   Employees or Employees, (iii) none of Seller’s Key Employees or Employees arerepresented by any labour organization, (iv) except as set forth in Section4.22(b) of the Disclosure Schedules, Seller is in compliance in all materialrespects with all Applicable Laws relating to employment and employment practices,terms and conditions of employment, wages, overtime, hours of work, pay equity,employment equity, workers’ compensation, tax, employee remittances and occupationalsafety and health, (v) Seller is not engaged, nor has it engaged, in any unfairlabour practices and there is no unfair labour practice charge or complaint againstSeller pending or, to the Knowledge of Seller, threatened, (vi) no trade union,council of trade unions, employee bargaining agency or affiliated bargaining agentholds bargaining rights with respect to any Key Employees or Employees by way ofcertification, interim certification, voluntary recognition, designation orsuccessor rights, has applied to be certified as the bargaining agent of any KeyEmployees or Employees or has applied to have Seller declared a related employer orsuccessor employer pursuant to applicable labour legislation, and (vii) except asset forth in Section 4.22(b) of the Disclosure Schedules, Seller has no,and, within the last two (2) years has not had any, charges, complaints, orproceedings before any Governmental Entity responsible for regulating labour oremployment practices, pending, or, to the Knowledge of Seller, threatened againstit. (c) Section 4.22(c) of the Disclosure Schedules sets out, as at the datehereof: (i) the names of all Key Employees and Employees;  (ii) their position or title;  (iii) their status (e.g., full time, part time, temporary, casual,seasonal, co-op student);  (iv) their total annual remuneration for calendar years 2006, 2007and 2008 year-to-date, including a breakdown of (A) salary and (B) bonus orother incentive compensation, if any;  (v) other terms and conditions of their employment (other thanBenefit Plans);  (vi) their age;  (vii) their total length of employment including any prioremployment that would affect calculation of years of service for any purpose,including statutory entitlements, common law entitlements, contractualentitlements (express or implied), benefit entitlement or pension entitlement;and  (viii) whether any Key Employees or Employees are on any leave of absence and, ifso, the reason for such absence and the expected date of return. (d) Section 4.22(d) of the Disclosure Schedule sets out as at the datehereof:
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 (i) the names of all consultants who are natural persons(“Consultants”) of the Business;  (ii) whether the Consultant is providing services pursuant to awritten consulting contract;  (iii) the term of any Contract with the Consultant;  (iv) notice, if any, required for Seller to terminate the consultingrelationship without cause;  (v) the date the Consultant first commenced providing services tothe Business;  (vi) the hourly fee of the Consultant; and  (vii) the annual fees paid to the Consultant for the precedingcalendar year. (e) Except as set forth in Section 4.22(e) of the Disclosure Schedules, theconsummation of the transactions contemplated by this Agreement shall not trigger anyseverance or similar arrangement of Seller payable by Purchaser after the SecondClosing.**4.23****Environmental Compliance** (a) Within the past three (3) years, Seller has not received any written requestsfor information, notice, demand, letter, administrative inquiry, or formal complaint orclaim with respect to any Environmental Requirements. There are no pending nor, to theKnowledge of Seller, threatened environmental claims against Seller or in respect ofthe Business or any of the Assets.  (b) Seller has no material liability under Environmental Requirements or health andsafety Laws.  (c) None of the operations of Seller involve, or have involved, the violation ofEnvironmental Requirements or health and safety Laws governing the generation, storageor transportation of Hazardous Materials.**4.24****Licenses and Permits**     Seller has obtained and maintained in full force and effect all material Licenses and Permits.Section 4.24 of the Disclosure Schedules sets out a true and complete list of all Licensesand Permits, identifies which Licenses and Permits are assignable to Purchaser pursuant to theirterms and which are not so assignable and sets out all consents, waivers, authorizations andapprovals necessary for the assignment of any of the Licenses and Permits to Purchaser. Except asset forth in Section 4.24 of the Disclosure Schedules, the consummation of the transactionscontemplated hereby shall not give any Governmental Entity the right to terminate, revoke orotherwise limit any of the material Licenses and Permits. Seller is in compliance in all materialrespects with all terms, conditions and requirements of all of the Licenses and Permits, and noProceeding is pending or, to
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the Knowledge of Seller, threatened relating to the termination, revocation or limitation ofany of the Licenses and Permits.**4.25****Compliance with Law**     Except as set forth in Section 4.25 of the Disclosure Schedules, Seller and theBusiness are and have been at all times in compliance in all material respects with all ApplicableLaws. Seller is not in material default with respect to any order, writ, judgment, award,injunction or decree of any Governmental Entity or arbitrator applicable to it or the Business orany of the Assets. Seller has not received, at any time since December 31, 2005, any written noticefrom any Governmental Entity or any other Person regarding any actual, alleged, possible orpotential violation of, or failure to comply with, any material Applicable Law and there is nopending or, to the Knowledge of Seller, threatened investigation of Seller that could reasonably beexpected to result in such charge or notice in the future.**4.26****Insurance** (a) Section 4.26(a) of the Disclosure Schedules sets forth a list of allpolicies of title, liability, fire, casualty, business interruption, workers’compensation and all other forms of insurance (including self-insurance arrangements)(collectively, the “Corporate Insurance Policies” and individually, a“Policy”) insuring the properties, Assets or other operations of Seller or theBusiness. A correct summary of each Policy and a correct and complete copy of thePremier Insurance Program has been made available to Purchaser.  (b) Each of the Corporate Insurance Policies and the Premier Insurance Program isin full force and effect. Seller is not in material default under any materialprovisions of any Policy or the Premier Insurance Program, and Seller has not receivedwritten notice of cancellation of any Policy or the Premier Insurance Program. There isno claim by Seller pending under any Policy or under the Premier Insurance Program asto which coverage has been denied or disputed by the underwriters thereof, and Sellerhas no Knowledge of any basis for denial of any claim under any Policy or under thePremier Insurance Program. Seller has not received any written notice from or on behalfof any insurance carrier issuing any Policy or any Policy under the Premier InsuranceProgram that insurance rates therefor shall hereafter be materially increased (exceptto the extent that insurance rates may be increased for all similarly situated risks)or that there shall hereafter be a cancellation or an increase in a deductible (or anincrease in premiums in order to maintain an existing deductible) or non-renewal of anyPolicy or the Premier Insurance Program. Seller is not in default in any materialrespect under any of the Corporate Insurance Policies or under the Premier InsuranceProgram and has not waived or released any material rights thereunder.  (c) There are no Proceedings pending or, to the knowledge of the Seller, threatenedagainst or affecting Seller, the Business or any of the Assets under any Policy orunder the Premier Insurance Program. To the Knowledge of Seller, there exists no
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   fact, circumstance or situation that is likely to give rise to any claim under anyPolicy or under the Premier Insurance Program.**4.27****Contracts and Commitments**     Section 4.27 of the Disclosure Schedules contains a list of all of the followingContracts (other than the CSC Documents and the Lease Documents) (collectively, the “MaterialContracts”), which list specifically identifies which Material Contracts are assignable toPurchaser pursuant to their terms and which are not so assignable: (a) employment, employment offer letters, consulting, bonus, profit-sharing,percentage compensation, deferred compensation, stock purchase, stock option,restricted stock unit or other equity-based or profit sharing plan or arrangement,pension, welfare and retirement agreements, and Contracts with or relating to the KeyEmployees or Employees or former employees of Seller or Seller’s current or formerdirectors or officers;  (b) notes, mortgages and Contracts for the repayment or borrowing of money bySeller in excess of $50,000 in any one case or $500,000 in the aggregate, or for a lineof credit, including borrowings by Seller in the form of guarantees of, indemnificationfor or agreements to acquire any obligations of others, and all security or pledgeagreements related thereto;  (c) Contracts relating to any joint venture, partnership, strategic alliance orsharing of profits or losses with any Person to which Seller is a party or by which itor any of its assets is bound;  (d) Contracts containing covenants purporting to limit the freedom of Seller tocompete in any business or in any geographic area;  (e) Contracts requiring payments or distributions to any shareholder, officer,director, Key Employee or Employee, or any relative or Affiliate of any such Person;  (f) Contracts, agreements, arrangements and understandings (whether oral or inwriting) involving capital leases or capital expenditures or requiring Seller to make,or authorizing Seller to receive, payments;  (g) agreements with Key Employees and/or Employees as a group or individually;  (h) Contracts with subcontractors and other service providers;  (i) agreements to sell, lease or otherwise dispose of any assets or properties ofSeller other than in the Ordinary Course of the Business;  (j) Contracts relating to the Premier Insurance Program; and  (k) Contracts not made in the Ordinary Course of Business.
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All of the Material Contracts are valid and binding obligations of Seller and are in full force andeffect. Except as set forth in Section 4.27 of the Disclosure Schedules, neither Seller,nor, to the Knowledge of Seller, any other party thereto, has breached any material provision of,or is in material default under, the terms of any Material Contract, nor, to the Knowledge ofSeller, does any condition exist which, with or without notice or lapse of time, or both, wouldcause Seller or any other party to be in material default under any of the Material Contracts.Except as set forth in Section 4.27 of the Disclosure Schedules, the consummation of thetransactions contemplated by this Agreement shall not afford any other party the right to terminateany such Material Contract. Section 2.02(b)(ii) of the Disclosure Schedules sets out allconsents, waivers, authorizations and approvals necessary for the assignment of each of theMaterial Contracts. The Material Contracts constitute all of the Contracts that are necessary orrequired for the ownership of the Assets and the conduct of the Business as currently conducted.**4.28****Absence of Undisclosed Liabilities**     Except for those liabilities that are fully reflected and provided for on the Interim BalanceSheet, neither Seller nor the Business has any Liability arising out of or relating to the Assets,and there are no past events or existing circumstances that could give rise to any such Liability(collectively, the “Undisclosed Liabilities”).**4.29****Litigation**     Except as set forth in Section 4.29 of the Disclosure Schedules, (a) there are noProceedings pending or, to the Knowledge of Seller, threatened against or affecting Seller, theBusiness or any of the Assets, (b) there are no unsatisfied judgments of any kind against Seller orany of the Assets, and (c) none of Seller, the Business or any of the Assets is subject to anyjudgment, order, decree, rule or regulation of any court or Governmental Entity.**4.30****Broker’s and Finder’s Fees**     Except as set forth in Section 4.30 of the Disclosure Schedules, no broker, finder orother Person is entitled to any commission or finder’s fee in connection with this Agreement or thetransactions contemplated by this Agreement as a result of any actions or commitments of Seller,Parent or any of their respective Affiliates.**4.31****Consents and Regulatory Approvals**     Except for the Competition Act Approval, and as set out in Section 4.31 of theDisclosure Schedules, (a) no filing with, notice to, or consent, waiver, authorization or approvalof any Governmental Entity is required to be obtained or made by Seller or Parent in connectionwith the execution, delivery or performance by Seller and Parent of its respective obligationsunder this Agreement, any Related Agreements or any other agreement or instrument to be executed bySeller and/or Parent as contemplated herein or the consummation of the transactions contemplatedhereby or thereby; and (b) no filing with, notice to, or consent, waiver, authorization or approvalof any other Person is required to be obtained or made by Seller or Parent in connection with theexecution, delivery or performance by Seller and/or Parent of its obligations under this Agreement,any Related Agreement or any other agreement or instrument to be executed by Seller and/or Parentas contemplated herein or the consummation of the transactions contemplated hereby or thereby.
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**4.32****No Material Adverse Change; Ordinary Course of Business** (a) Except as set out in Section 4.32(a) of the Disclosure Schedules, sinceDecember 31, 2005, there has been no Material Adverse Change.  (b) Since December 31, 2005, Seller has carried on the Business in the OrdinaryCourse of Business.**4.33****Place of Business**     The principal place of business and chief executive office of Irwin Canada is located at666 Burrard Street, Suite 300, Vancouver, British Columbia, V6C 2X8. The principal place ofbusiness and chief executive office of Onset is located at 666 Burrard Street, Suite 300,Vancouver, British Columbia, V6C 2X8.**ARTICLE 5— REPRESENTATIONS AND WARRANTIES OF PURCHASER**     Purchaser hereby represents and warrants to Seller on the date hereof, as of the First ClosingDate and as of the Second Closing Date, as follows:**5.01****Organization; Power**     Purchaser is a corporation duly organized, validly existing, and in good standing under theLaws of Canada and has all requisite corporate power and authority to own its properties and assetsand to conduct its business as it is now conducted. Purchaser has all requisite corporate power andcorporate authority to enter into this Agreement and each of the Related Agreements to which it isa party and to perform its obligations hereunder and thereunder.**5.02****Authorization and Validity of Agreement**     The execution and delivery by Purchaser of this Agreement and each of the Related Agreementsto which it is a party and the performance of the obligations of Purchaser hereunder and thereunderhave been duly authorized by all necessary corporate action of Purchaser and no other corporateproceedings on the part of Purchaser are necessary to authorize the execution, delivery orperformance of this Agreement and each of the Related Agreements to which it is a party. ThisAgreement and each of the Related Agreements to which it is a party have been duly executed anddelivered by Purchaser and constitutes Purchaser’s legal, valid and binding obligation, enforceableagainst Purchaser in accordance with their respective terms and conditions, except asenforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium orsimilar laws affecting the enforcement of creditor’s rights generally or by general principles ofequity.**5.03****No Conflict or Violation**     The execution, delivery and performance of this Agreement and each of the Related Agreementsto which it is a party by Purchaser do not and shall not: (a) violate or conflict with any provision of the Governing Documents of Purchaser,or
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 (b) violate any Applicable Law with respect to Purchaser or violate or result in abreach of, or constitute (with due notice or lapse of time or both) a default under,any Contract to which Purchaser is a party or by which it is bound or to which any ofits properties or assets is subject.**5.04****Approvals and Consents**     Save and except for Competition Act Approval, the execution, delivery and performance of thisAgreement and each of the Related Agreements to which it is a party by Purchaser do not requirePurchaser to obtain the consent, waiver, authorization or approval of, or to make any filing with,any Governmental Entity or any other Person, except such consents, waivers, authorizations,approvals and filings, the failure to obtain or make which would not, individually or in theaggregate, materially and adversely affect the ability of Purchaser to perform its obligationshereunder.**5.05****Broker’s and Finder’s Fees**     No broker, finder or other Person is entitled to any commission or finder’s fee in connectionwith this Agreement or the transactions contemplated by this Agreement as a result of any actionsor commitments of Purchaser or its Affiliates.**5.06****Sufficient Funds to Close**     Purchaser has, and will have on the First Closing Date and on the Second Closing Date, asapplicable, the financial capability to consummate the transactions contemplated by this Agreement,and Purchaser understands that under the terms of this Agreement its obligations hereunder are notin any way contingent or otherwise subject to (a) the consummation of any financing arrangements orobtaining any financing or (b) the availability of any financing.**5.07****Due Diligence Investigation**     Purchaser acknowledges that it is a sophisticated institutional investor with knowledge andexperience in assets and businesses similar to the Assets and the Business, and it has had theopportunity to conduct its due diligence investigation with respect to the transactionscontemplated by this Agreement. Purchaser acknowledges that (i) it has had full access to theelectronic data room prepared by Seller in connection with the transactions contemplated by thisAgreement and the supplementary documents and written correspondence provided to Purchaser or itscounsel, (ii) it has reviewed the contents of the electronic data room and the supplementarydocuments and written correspondence, and (iii) it has had access to such Files and Records relatedto CSCs, Leases and other Assets as were made available to it by Seller.**5.08****Tax Matters**     Purchaser is registered for the purposes of the GST Legislation and the registration numberfor Purchaser is 104650114 RT0001.
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**ARTICLE 6 — COVENANTS****6.01****First Interim Period Covenants**     Except as otherwise required or permitted hereunder, each of Seller and Parent covenant andagree to comply with each of the following provisions, as applicable to it, during the FirstInterim Period (collectively, the “First Interim Period Covenants”) unless Seller or Parentobtains the prior written consent of Purchaser.     (1) Each of Seller and Parent covenants and agrees that, during the First Interim Period,Seller and Parent shall: (a) diligently service and make collections on all CSCs and Leases in accordancewith Seller’s past customs and practice;  (b) keep available in all material respects the services of each of the KeyEmployees and each of Seller’s present key officers, directors, Employees, agents,consultants and other similar representatives;  (c) maintain all Files and Records and accounts of the Business and the Assets inthe Ordinary Course of Business and record all transactions in its usual, regular andordinary manner consistent with Seller’s past customs and practice and post all entriestherein promptly in compliance with accepted practice and Applicable Law;  (d) operate the Business in the Ordinary Course of Business in compliance withApplicable Law and the terms and conditions of all Contracts, and in a manner thatmaintains good relations with Key Employees, Employees and suppliers and customers ofSeller and maintains and preserves the Assets and the organization and goodwill of theBusiness, in each case, in accordance with Seller’s past customs and practice;  (e) promptly advise Purchaser in writing of the particulars of: (i) any event, change or occurrence that constitutes or mightreasonably be expected to constitute a Material Adverse Change, provided that,if Seller or Parent is uncertain as to whether any event, change or occurrencemight reasonably be expected to constitute a Material Adverse Change, Seller orParent shall promptly advise Purchaser of the particulars of such event, changeor occurrence that gives rise to such uncertainty;  (ii) any material incorrectness or material breach of any FirstClosing Representation and Warranty or First Interim Period Covenant in thisAgreement, or the occurrence, or failure to occur, of any event that would belikely to cause or result in any breach of any covenant of Seller or Parent orcause or result in any representation or warranty of Seller or Parent beinguntrue or incorrect in any material respect (and for such purposesall materiality qualifications in such representations and warranties will bedisregarded);
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 (iii) any failure or expected failure of Seller or Parent to complywith or satisfy in any material respect any covenant, condition or agreement tobe complied with or satisfied by it under this Agreement; or  (iv) any Proceeding or threatened Proceeding Known to Seller thatwould have a material and adverse effect on Seller, the Assets or the Business,or that would prevent or materially delay the completion of the transactionscontemplated by this Agreement; (f) maintain each Seller’s authorizations, funding and collections practices withrespect to the Business and the Portfolio in a manner consistent with the CreditPolicies and in the Ordinary Course of Business;  (g) pay Taxes as they become due and payable; and  (h) diligently take all steps necessary to terminate the SecuritizationTransactions and the Securitization Documents at or prior to First Effective Time inthe manner contemplated in Section 2.02(a), advise Purchaser of Seller’sprogress towards completing such terminations and promptly advise Purchaser in writingof the particulars of such terminations as same are completed.     (2) Each of Seller and Parent covenants and agrees that, except as (i) specificallycontemplated by this Agreement or (ii) set forth in Section 6.01(2) of the DisclosureSchedules, none of Seller or Parent shall do any of the following, as applicable to it, during theFirst Interim Period: (a) amend its Governing Documents in any manner that would adversely affect any ofSeller or Parent’s ability to consummate the transactions contemplated by thisAgreement;  (b) permit its corporate existence or any of the Licenses and Permits to besuspended, lapsed, revoked or modified in any way that could reasonably be expected tocreate a material liability or obligation on the part of Seller with respect to any ofthe Assets;  (c) amend, modify, change or terminate any CSC Document, any Lease Document or anyAssigned Contract except in accordance with its terms;  (d) increase the compensation or benefits of, or grant awards under equity basedplans to, the Key Employees or Employees, or modify its termination pay policies orenter into or amend any employment arrangements or agreements with any Key Employee,Employee or prospective employee of Seller;  (e) conduct its cash management customs and practices (including collectionpolicies and payment terms applicable to any customers) other than in the OrdinaryCourse of Business consistent with Seller’s past customs and practice;  (f) sell, lease, license, transfer, assign, convey, pledge, or securitize orotherwise dispose of or grant any security interest in any of the Assets (other than aPermitted 
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   Encumbrance), or enter into any agreement or understanding to do any of theforegoing;  (g) do any act or omit to do any act that would cause any material incorrectness inor material breach of any representation, warranty, covenant or agreement of Seller orParent in this Agreement;  (h) permit Seller to enter into any new business line or undertake any businessother than in the Ordinary Course of Business or acquire or divest any Assets orbusinesses;  (i) enter into any transaction or perform any act that might interfere with or bematerially inconsistent with the successful completion of the transactions contemplatedby this Agreement;  (j) change its Credit Policies, operating policies or procedures (or the manner ofapplication thereof) with respect to the Business; or  (k) agree with any Person, consent or acquiesce to or otherwise commit themselvesto do any of the foregoing.**6.02****Second Interim Period Covenants**     Except as otherwise required or permitted hereunder, each of Seller and Parent covenants andagrees to comply with each of the following provisions, as applicable to it, during the SecondInterim Period (collectively, the “Second Interim Period Covenants”) unless Seller orParent obtains the prior written consent of Purchaser.     (1) Each of Seller and Parent covenants and agrees that, during the Second Interim Period,Seller and Parent shall: (a) keep available in all material respects the services of each of the present keyofficers, directors, Employees, agents, consultants and other similar representativesof Seller, except to the extent any key officer or director is a Key Employee;  (b) maintain all Files and Records and accounts of the Business (as it existsimmediately following the First Closing) and the Second Closing Assets in the OrdinaryCourse of Business and record all transactions in its usual, regular and ordinarymanner consistent with Seller’s past customs and practice and post all entries thereinpromptly in compliance with accepted practice and Applicable Law;  (c) operate the Business (as it exists immediately following the First Closing) inthe Ordinary Course of Business in compliance with Applicable Law and the terms andconditions of all Contracts, and in a manner that maintains good relations withEmployees, suppliers and customers of Seller and maintains and preserves the SecondClosing Assets and the organization and goodwill of the Business (as it existsimmediately following the First Closing), in each case, in accordance with Seller’spast customs and practice;
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 (d) promptly advise Purchaser in writing of the particulars of: (i) any event, change or occurrence that constitutes or mightreasonably be expected to constitute a Material Adverse Change, provided that,if Seller or Parent is uncertain as to whether any event, change or occurrencemight reasonably be expected to constitute a Material Adverse Change, Seller orParent shall promptly advise Purchaser of the particulars of such event, changeor occurrence that gives rise to such uncertainty;  (ii) any material incorrectness or material breach of any SecondClosing Representation and Warranty or Second Interim Period Covenant in thisAgreement or in any First Closing Related Agreement to which it is a party, orthe occurrence, or failure to occur, of any event that would be likely to causeor result in any breach of any Second Closing Interim Period Covenant of Selleror Parent or cause or result in any Second Closing Representation or Warrantyof Seller or Parent being untrue or incorrect in any material respect (and forsuch purposes all materiality qualifications in such representations andwarranties will be disregarded);  (iii) any failure or expected failure of Seller or Parent to complywith or satisfy in any material respect any covenant, condition or agreement tobe complied with or satisfied by it at or prior to the Second Closing or underany First Closing Related Agreement to which it is a party; or  (iv) any Proceeding or threatened Proceeding Known to Seller thatwould have a material and adverse effect on Seller, the Second Closing Assetsor the Business (as it exists immediately following the First Closing), or thatwould prevent or materially delay the completion of the transactionscontemplated by this Agreement; (e) maintain each Seller’s authorizations, funding and collections practices withrespect to the Business (as it exists immediately following the First Closing) and thePortfolio in a manner consistent with the Credit Policies and in the Ordinary Course ofBusiness except as otherwise set forth in the Servicing Agreement; and  (f) pay Taxes as they become due and payable.     (2) Each of Seller and Parent covenants and agrees that, except as (i) specificallycontemplated by this Agreement or (ii) set forth in Section 6.02 of the DisclosureSchedules, none of Seller or Parent shall do any of the following, as applicable to it, during theSecond Interim Period: (g) amend its Governing Documents in any manner that would adversely affect any ofSeller or Parent’s ability to consummate the transactions contemplated by thisAgreement;  (h) permit its corporate existence or any of the Licenses and Permits to besuspended, lapsed, revoked or modified in any way that could reasonably be expected tocreate a 
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    material liability or obligation on the part of Seller with respect to any ofthe Second Closing Assets;  (i) amend, modify, change or terminate any Assigned Contract except in accordancewith its terms;  (j) increase the compensation or benefits of, or grant awards under equity basedplans to, the Employees, or modify its termination pay policies or enter into or amendany employment arrangements or agreements with any Employee or prospective employee ofSeller;  (k) conduct its cash management customs and practices (including collectionpolicies and payment terms applicable to any customers) other than in the OrdinaryCourse of Business (as it exists immediately following the First Closing) consistentwith Seller’s past customs and practice;  (l) sell, lease, license, transfer, assign, convey, pledge, or securitize orotherwise dispose of or grant any security interest in any of the Second Closing Assets(other than a Permitted Encumbrance), or enter into any agreement or understanding todo any of the foregoing;  (m) do any act or omit to do any act that would cause any material incorrectness inor material breach of any Second Closing Representation and Warranty or in any covenantor agreement of Seller or Parent to be complied with or satisfied by Seller or Parentunder this Agreement during the Second Interim Period or at the Second Closing;  (n) permit Seller to enter into any new business line or undertake any businessother than in the Ordinary Course of Business or acquire or divest any Second ClosingAssets or businesses;  (o) enter into any transaction or perform any act that might interfere with or bematerially inconsistent with the successful completion of the transactions contemplatedby this Agreement;  (p) change its Credit Policies, operating policies or procedures (or the manner ofapplication thereof) with respect to the Business (as it exists immediately followingthe First Closing); or  (q) agree with any Person, consent or acquiesce to or otherwise commit themselvesto do any of the foregoing.**6.03****Access; Examination of Records and Assets; Cooperation**     Seller shall (a) provide Purchaser and its employees, accountants, legal counsel, professionaladvisors and representatives (collectively, the “Purchaser Group”) the right and everyreasonableopportunity, upon reasonable advance notice, to access and to inspect, during normal businesshours, and to enter upon its offices and premises in order to inspect its business operations, theAssets and
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the Assumed Liabilities, including all Files and Records, books of account andaccounting records, all data bases recorded or stored by means of any device, including inelectronic form, title documents, contracts and commitments in its possession or under its controlrelating to any of the Assets, any of the Assumed Liabilities or any of the Key Employees orEmployees, and to meet with such employees of Seller as Purchaser reasonably thinks necessary(including for the purposes of making offers of employment to the Key Employees and Employees,meeting with and interviewing Key Employees and Employees, holding information or “town hall”sessions with Key Employees and Employees, and all reasonable access related thereto), (b) furnishto Purchaser such additional information concerning Seller, the Business, the Assets and theAssumed Liabilities as may be reasonably requested, and (c) if reasonably requested, promptlyprovide copies, at the cost of Purchaser, of any information maintained in connection with any ofthe Assets, any of the Assumed Liabilities or any of the Key Employees or Employees, including thefollowing: all Contracts, Financial Records, Lease Agreements, Lease Documents, Real PropertyLeases, financial statements, records of past sales, customer lists, supplier lists and payrollrecords, names and other particulars related to any Key Employee or Employee; provided,however, that such rights of access are to be exercised in a manner that does notunreasonably interfere with the operations of Seller and shall be coordinated between PurchaserGroup and the Chief Executive Officer of Seller, or his/her designee, in a timely manner in orderto initiate and complete Purchaser’s due diligence investigation of Seller, the Business, theAssets and the Assumed Liabilities and to facilitate the transition of the Business to Purchaser.All information furnished pursuant to this Section 6.03 shall be treated in accordance withSection 10.01 of this Agreement. The exercise of any rights of access or inspection by oron behalf of Purchaser under this Section 6.03 shall not affect or mitigate the covenants,representations and warranties of Seller and Parent in this Agreement, which shall continue in fullforce and effect.**6.04****Approvals, Consents, Etc.**     Each party shall use its Best Efforts to consummate the transactions contemplated hereby andto provide all notices and obtain in writing prior to the First Closing Date or the Second ClosingDate, as the case may be, all consents, waivers, authorizations and approvals necessary in order toeffectuate the transactions contemplated hereby and shall deliver to the other party copies of suchconsents, waivers, authorizations and approvals in form and substance reasonably satisfactory tothe other party; provided however, that Seller shall provide Purchaser with a reasonableopportunity to review, comment upon and approve any form of notice, consent, waiver, authorizationor approval being obtained or provided by Seller or Parent in connection with this Agreement.Seller shall pay any costs and expenses necessary or required to obtain any such notice, consent,waiver, authorization or approval, but Seller shall have no Liability or obligation to pay anyincreased costs or expenses incurred by Purchaser under the terms of any amendment to an AssignedContract or Restricted Contract or any replacement Contract entered into by Purchaser with respectthereto; provided that any such amendment or replacement Contract shall be negotiated by or underthe sole direction of Purchaser with the cooperation of Seller.**6.05****Governmental Approvals; Competition Act Filing**     Promptly after the execution of this Agreement, Seller and Purchaser shall file allapplications and reports which are required to be filed by each ofthem with any Governmental Entity in connection with the transactions contemplated by this Agreement, including all filingsrequired pursuant to the Competition Act. Each party shall also promptly provide all informationthat
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any Governmental Entity may require in connection with any such application or report. Eachparty shall pay its own fees and amounts in connection with such applications and reports;provided, that Purchaser shall pay any filing fee under the Competition Act.     Each of Seller and Purchaser covenant and agree to proceed diligently, in a coordinatedfashion, and to use its Best Efforts to apply for and obtain the Competition Act Approval. Withoutlimiting the generality of the foregoing, each such party agrees: (a) as soon as practicable, and in any event within five (5) Business Days afterthe date of this Agreement, to prepare and provide to the Commissioner a request for anAdvance Ruling Certificate, including a request, in the alternative, that theCommissioner waive, pursuant to subsection 113(c) of the Competition Act, theobligation to give the requisite notice and to promptly furnish any additionalinformation requested under the Competition Act;  (b) if requested by Seller, Purchaser or the Commissioner, Purchaser and Sellershall promptly file a short-form or long-form pre-merger notification pursuant to theCompetition Act;  (c) to cooperate with each other in connection with the making of all filings orresponses referred to in this Section 6.05 including, to the extent that it isreasonably practical and subject to any reasonable confidentiality concerns havingregard to the circumstances as then exist, providing copies of all such documents tothe other party and its advisors prior to filing or responding and, if requested,consider in good faith all reasonable additions, deletions or changes suggested inconnection therewith;  (d) to the extent that it is reasonably practical having regard to thecircumstances as then exist, to promptly notify the other party of any communication tothat party from the Competition Bureau and permit the other party to review in advanceany proposed communication to the Competition Bureau;  (e) to the extent that it is reasonably practical having regard to thecircumstances as then exist, not to participate in any meeting with the CompetitionBureau in respect of any filings, investigation or other inquiry unless that partyconsults with the other party in advance and, to the extent permitted by theCompetition Bureau, gives the other party the opportunity to attend and participatethereat; and  (f) not to take any action that will have the effect of delaying, impairing orimpeding the receipt of any such required authorizations, consents, orders andapprovals; provided, however, that the foregoing shall not require either party toagree to an amendment of this Agreement or any Related Agreement.**6.06****Pre-First Closing Deliveries**     Seller shall, on or before the fifth (5th) Business Day prior to the First ClosingDate, deliver to Purchaser, the Pre-Closing Tape.
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**6.07****PPSA and Insurance Notices**     Seller shall forthwith deliver to Purchaser copies of any and all documents, notices andcorrespondence of every nature whatsoever received by any of them after the First Effective Time,with respect to the Business, any of the Assets, any of the Assumed Liabilities or any of the KeyEmployees or Transferred Employees pursuant to any applicable personal property security or similarlegislation or with respect to any insurance matter.**6.08****Insurance Proceeds Received After Effective Time** (a) Delivery of Notices, etc. Seller and Parent shall forthwith deliver toPurchaser insurance proceeds that are Assets received by any of them after the SecondEffective Time. Each of Seller and Parent acknowledges in favour of, and agrees with,Purchaser that such insurance proceeds will be held by Seller in trust for the benefitof Purchaser. Seller further acknowledges in favour of, and further agrees with,Purchaser that all right, title and interest in and to such insurance proceeds shall beconclusively deemed to have been transferred and assigned to Purchaser and all right,title and interest, of any Seller in and to such insurance proceeds shall cease. Allinterest on such insurance proceeds shall accrue to the benefit of Purchaser.  (b) Power of Attorney. Seller irrevocably constitutes and appointsPurchaser as its true and lawful attorney and agent for, in the name of and on behalfof Seller, to execute and deliver in the name of Seller all documents or instrumentsthat may be necessary to transfer and assign such insurance proceeds referred to inSection 6.08(a), or any part of them, to Purchaser, or its nominee or nominees,on the books of Seller. This appointment and power of attorney, being coupled with aninterest, shall not be revoked by the insolvency, bankruptcy or other incapacity ofSeller. Seller ratifies and confirms and agrees to ratify and confirm all that itsattorney may lawfully do or cause to be done by virtue of the provisions of thisSection 6.08.**6.09****Power of Attorney Regarding Personal Property Registrations and Quebec discharges**     Seller irrevocably constitutes and appoints Purchaser and its agents as the true and lawfulattorney and agent for, in the name of and on behalf of Seller, to (i) file in any applicablepersonal property registry any financing or other statement which Purchaser deems is necessary soas to reflect the transfer of any of the Leases or CSCs from Seller to Purchaser; (ii) file in anyapplicable personal property registry any discharge or release of the security interests orentitlements held by Seller in respect of any of the CSCs or Leases and, (iii) in the Province ofQuébec, to do anything which either Seller may lawfully do by attorney for the purpose of (A)discharging, releasing, reassigning, retroceding, waiving or subordinating the security in respectof any of the Leases or CSCs upon payment in full or in part or otherwise under or in respect ofany of the Leases or CSCs, (B) consenting to the discharge, release, reassignment, retrocession,waiver or subordination of any lease not forming part of any of the Leases or CSCs, including inthe case of both clauses (A) and (B) endorsing Seller’s name on any consents, filings,registrations or other documents in furtherance thereof. All costs associated with any such filingsshall be borne by Purchaser. This appointment and power of attorney, being coupled with aninterest, shall not be revoked by the insolvency, bankruptcy or other incapacity of Seller. Sellerratifies and confirms and agrees to ratify and confirm
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all that its attorney may lawfully do or cause to be done by virtue of the provisions of thisSection 6.09.**6.10****Additional Notices and Covenants**     Each party shall give all notices to any Governmental Entities and other third parties andtake such other action required to be given or taken by it in connection with the transactionscontemplated by this Agreement.**6.11****Notices** (a) Promptly after the First Closing (but not later than fifteen (15) Business Daysafter the First Closing Date) Seller shall notify all Obligors of the assignment of theCSC Documents and the Lease Documents to Purchaser and shall if requested in writing byPurchaser instruct such Obligors to remit from and after a specified date all futurepayments due under the CSC Documents or the Lease Documents, as applicable, toPurchaser at Purchaser’s principal office, such notification to be in a form mutuallysatisfactory to Seller and Purchaser.  (b) From time to time after the First Closing Date, promptly following the requestof Purchaser, Seller shall notify pertinent parties (including insurance companies,litigants, Governmental Entities, subordinate lenders and landlords) of the assignmentof the CSCs and other CSC Documents, the Lease Documents, or the Assigned Contracts, asapplicable, to Purchaser.**ARTICLE 7 — COOPERATION****7.01****Misapplied Payments**     Misapplied payments (including payments returned for insufficient funds) on any of the CSCs orLeases shall be processed as follows: (i) all parties shall cooperate in correcting misapplicationerrors; (ii) the party receiving notice of a misapplied payment occurring prior to the FirstClosing Date and discovered after the First Closing Date shall immediately notify the other party;(iii) if a misapplied payment occurring prior to the First Closing Date cannot be identified andsuch misapplied payment has resulted in a shortage in a custodial account or escrow account, Sellershall be liable for the amount of such shortage and Seller shall reimburse Purchaser for the amountof such shortage within twenty (20) Business Days after the receipt of written demand therefor fromPurchaser; (iv) if a misapplied payment that occurred prior to the First Closing Date has createdan improper Purchase Price as the result of an inaccurate Net Portfolio Value, the party withnotice of such misapplied payment shall promptly inform the other party and a wire transfer orcheck shall be issued to the party adversely affected by the improper payment application withinten (10) Business Days after notice thereof by the other party; and (v) any wire transfer or checkissued under the provisions of this Section 7.01 shall be accompanied by a statementindicating the corresponding Seller and/or Purchaser identification number and an explanation ofthe allocation of any such payments.
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**ARTICLE 8 — INDEMNIFICATION; SURVIVAL****8.01****Indemnification By Seller and Parent**     Subject to the applicable provisions of Section 8.08, each Seller and Parent shall, ona joint and several basis, indemnify and hold harmless Purchaser and each of its directors,officers, shareholders, employees, agents, representatives, Affiliates and successors(collectively, the “Purchaser Indemnified Parties”) from and against, and will reimburse orcompensate them for, any and all Indemnity Losses that are suffered, sustained, paid or incurred byor asserted against any of Purchaser Indemnified Parties directly or indirectly arising from orrelating to: (a) any incorrectness in or breach of any representation or warranty of any Selleror Parent in this Agreement or the Related Agreements;  (b) the breach of any covenant or agreement of Seller or Parent in this Agreementor the Related Agreements;  (c) any Liability of Seller or Parent (other than the Assumed Liabilities);  (d) any Liability arising out of or related to any of the First Closing Assets orthe operation of the Business arising out of or related to any transaction entered intoor event occurring at or prior to the First Closing, and, in each case, excluding anyLiability arising out of or related to any default or delinquency in payment by anObligor under a CSC Document or Lease Document;  (e) any Liability arising out of or related to any of the Second Closing Assets orthe operation of the Business (as it exists immediately following the First Closing)arising out of or related to any transaction entered into or event occurring at orprior to the Second Closing; and  (f) any and all Proceedings, demands, assessments, audits or judgments arising outof or related to any of the foregoing.**8.02****Indemnification by Purchaser**     Subject to the applicable provisions of Section 8.08, Purchaser shall indemnify andhold harmless Seller and its successors, shareholders, Employees, representatives, Affiliates andagents (collectively, the “Seller Indemnified Parties”) from and against any and allIndemnity Losses incurred by or asserted against any of Seller Indemnified Parties directly orindirectly arising from or relating to: (a) incorrectness in or breach of any representation or warranty of Purchaser inthis Agreement or the Related Agreements;  (b) the breach of any covenants or agreements of Purchaser in this Agreement or theRelated Agreements;  (c) any Assumed Liability;
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 (d) any Liability of Purchaser arising out of or related to the First ClosingAssets;  (e) provided that the Second Closing occurs, any Liability arising out of orrelated to any of the Second Closing Assets or the operation of the Business (asoperated by Purchaser after the Second Closing) arising out of or related to anytransaction entered into or event occurring after the Second Closing; and  (f) any and all Proceedings, demands, assessments, audits or judgments arising outof or related to any of the foregoing.**8.03****Indemnification Notice; Litigation Notice**     If a party entitled to indemnity pursuant to this Agreement (the “Claimant”) believesthat it has suffered or incurred any Indemnity Loss, it shall so notify the party which theClaimant believes has an obligation to indemnify (the “Indemnifying Party”) promptly inwriting describing such Indemnity Loss, the amount thereof, if known, and the method of computationof such Indemnity Loss, all with reasonable particularity (the “Indemnification Notice”).If any Proceeding is instituted by or against a third party (a “Third Person Claim”) withrespect to which the Claimant intends to claim any Liability or expense as an Indemnity Loss underthis Article 8, it shall promptly notify the Indemnifying Party in writing of suchProceeding describing such Indemnity Loss, the amount thereof, if known, and the method ofcomputation of such Indemnity Loss, all with reasonable particularity (the “LitigationNotice”) in lieu of an Indemnification Notice. To the extent failure to promptly notify theIndemnifying Party of such action or suit can reasonably be deemed to increase the Liability orexpense to the Claimant, the Indemnifying Party shall not be obligated to reimburse the Claimantfor the amount of such increase in Liability or expense.**8.04****Defense of Third Person Claims**     The Indemnifying Party shall have twenty (20) Business Days after receipt of the LitigationNotice to notify the Claimant in writing that it acknowledges its obligation to indemnify and holdharmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice andthat it elects to conduct and control any Proceeding with respect to an identifiable claim (the“Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafterdefined) or does not give the foregoing Election Notice during such twenty (20) Business Dayperiod, the Claimant shall have the right (but not the obligation) to defend, contest, settle orcompromise such Proceeding in the exercise of its reasonable discretion; provided, however, thatthe right of the Claimant to indemnification hereunder shall not be established thereby. If theIndemnifying Party timely gives the foregoing Election Notice and provides information satisfactoryto the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacityto defend, contest, settle or compromise such Proceeding and provide indemnification with respectto such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct andcontrol, through counsel reasonably satisfactory to the Claimant and at the Indemnifying Party’ssole expense, the defense, contest, settlement or compromise of such Proceeding, and the Claimantshall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a)the Indemnifying Party shall not thereby consent to the imposition of any injunction against theClaimant without the prior written consent of the Claimant, (b) the Indemnifying Party shall permitthe Claimant to participate in such defense, contest, settlement or compromise through legalcounsel chosen by the Claimant,
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but the fees and expenses of such legal counsel shall be borne by the Claimant, except asprovided in clause (c) below, (c) upon a final determination of such Proceeding, the IndemnifyingParty shall promptly reimburse the Claimant, to the extent required under this Article 8,for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees andexpenses of legal counsel that the Claimant incurred after the assumption of the conduct andcontrol of such Proceeding by the Indemnifying Party in good faith (which fees and expenses shallbe borne by the Claimant), and (d) the Claimant shall have the right to pay or settle any suchProceeding; provided, however, that in the event of such payment or settlement, the Claimant shallwaive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereofshall be claimed as an Indemnity Loss under this Article 8.     Notwithstanding any other provision of this Agreement to the contrary, if any Third PersonClaim relating to the Assets or the Assumed Liabilities is brought or instituted and the Claimantgives a Litigation Notice to the Indemnifying Party with respect thereto, Claimant will have thesole and exclusive right to conduct and control such Third Person Claim in a commerciallyreasonable manner through counsel of its choosing. The Indemnifying Party will be entitled toparticipate in the Third Person Claim as described herein, provided that the Indemnifying Partyacknowledges its obligation to indemnify the Claimant in accordance with the terms contained inArticle 8 (including reasonable expenses of counsel and other reasonable expenses of theThird Person Claim) and it reimburses the Claimant for any amount paid to any Governmental Entityin order to pursue a contest of the Third Person Claim. The Indemnifying Party will have the rightto employ, at its own expense, separate counsel, such counsel to be reasonably satisfactory to theClaimant, in any such Proceeding and participate in its defence. Such participation will bestrictly limited to being kept informed of the status of the Third Person Claim by counsel toPurchaser, to reviewing any proposed written communications and other documents to be submitted tothe relevant Governmental Entity or filed with a court, arbitrator or mediator in respect of theThird Person Claim and to receiving copies of any correspondence received from any GovernmentalEntity, party to such Third Person Claim, court, arbitrator or mediator relating to such ThirdPerson Claim, except that no compromise or settlement of any Third Person Claim or claims relatingto the Assets or the Assumed Liabilities may be made by the Claimant without the IndemnifyingParty’s consent, which consent may not be unreasonably withheld.**8.05****Disagreement Notice**     If the Indemnifying Party does not agree that the Claimant is entitled to full reimbursementfor the amount specified in the Indemnification Notice or the Litigation Notice, as the case maybe, the Indemnifying Party shall notify the Claimant (the “Disagreement Notice”) withintwenty (20) Business Days of its receipt of the Indemnification Notice or the Litigation Notice, asthe case may be.**8.06****Payment of Losses**     The Indemnifying Party shall pay to the Claimant in immediately available funds the amount towhich the Claimant may become entitled by reason of the provisions of this Article 8 withinfifteen (15) Business Days after such amount is finally determined either by mutual agreement ofthe parties or, in the case of an Indemnity Loss described in any Litigation Notice, the date onwhich both such amount and Claimant’s obligation to pay such amount have been determined by afinal,
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non-appealable judgment of the trial court or administrative body having jurisdiction oversuch Proceeding.**8.07****Survival**     All covenants, representations and warranties of each party contained in this Agreement and ineach of the Related Agreements shall survive the First Closing and the Second Closing and shallcontinue in full force and effect, subject to the provisions of this Article 8.**8.08****Limitations on Indemnification** (a) Seller and Parent shall not be required to indemnify Purchaser IndemnifiedParties for Indemnity Losses arising under Section 8.01 unless and until: (i) the amount of a single Indemnity Loss for which any PurchaserIndemnified Parties are otherwise entitled to indemnification pursuant to thisArticle 8 exceeds $30,000 Canadian Dollars (and for this purpose allsuch Indemnity Losses arising from or relating to the same event orcircumstances shall be aggregated); provided that, any of the PurchaserIndemnified Parties shall be entitled to indemnification pursuant to thisArticle 8 for any Indemnity Loss incurred by it arising from orrelating to the enforceability, subject to bankruptcy, insolvency and similarLaws, of any Lease, Lease Document, CSC or CSC Document, whether or not anysuch Indemnity Loss exceeds $30,000 Canadian Dollars, and the amount of allsuch Indemnity Losses shall be counted in determining the Aggregate MinimumLoss (each, a “Qualifying Indemnity Loss”); and  (ii) the aggregate amount of such Qualifying Indemnity Lossesexceeds $1,000,000 Canadian Dollars (the “Aggregate Minimum Loss”),   provided that, after the Aggregate Minimum Loss is exceeded, the PurchaserIndemnified Parties shall be entitled to be paid the full amount of the AggregateMinimum Loss and the full amount of any and all Indemnity Losses with respect to anyand all further indemnification claims hereunder (provided that any and all suchIndemnity Losses are Qualifying Indemnity Losses), subject, in each case, to thelimitations on recovery and recourse set forth herein. In no event shall Seller orParent, in the aggregate, be liable to indemnify Purchaser Indemnified Parties forIndemnity Losses arising under Section 8.01 in excess of the amount equal toten percent (10%) of the Purchase Price (the “Indemnification Cap”). Inaddition, in conjunction with seeking indemnification, Purchaser shall use its BestEfforts to mitigate and minimize the amount of Indemnity Losses for which it may beentitled to indemnification hereunder. Notwithstanding any of the other provisionsof this Agreement, the limitations set forth in this Section 8.08(a) shallnot apply to any Indemnity Losses arising under or attributable to any incorrectnessin or breach of any of the Special Representations or fraud on the part of Seller,Parent or any of their respective Representatives.
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 (b) Notwithstanding any of the other provisions of this Agreement, neither Sellernor Parent will be liable to Purchaser Indemnified Parties in respect of any IndemnityLosses directly or indirectly resulting from any incorrectness in or breach of: (i) any representation and warranty set forth in Section4.09 or otherwise related to Taxes of Seller or the Business after thelater of (A) the date that is seven (7) years immediately following the SecondClosing Date and (B) the date that is ninety (90) days following expiration ofthe last of the limitation periods contained in the Income Tax Act, and anyother legislation imposing Tax on Seller or the Business, subsequent to theexpiration of which an assessment, reassessment or other form or recognizeddocument assessing Liability for Tax for the period ended on the Second ClosingDate or, if the Second Closing does not occur, the First Closing Date, exceptif such representation and warranty proves to be false as a result of anymisrepresentation made or fraud committed by of Seller, Parent or any of theirrespective Representatives in filing a Tax Return or supplying information forthe purposes of the Income Tax Act or any other legislation imposing Tax onSeller or the Business in which case no time limit will apply;  (ii) any other First Closing Representation and Warranty of Sellerset forth in this Agreement after the date that is two (2) years immediatelyfollowing the First Closing Date unless notice of any claim by any PurchaserIndemnified Party against Seller or Parent with respect thereto is given toSeller or Parent by any Purchaser Indemnified Party on or prior to such date,whether or not any Purchaser Indemnified Party has discovered or could havediscovered any incorrectness in or breach of such representation and warrantybefore such time; or  (iii) provided that the Second Closing occurs, any other SecondClosing Representation and Warranty of Seller set forth in this Agreement afterthe date that is two (2) years immediately following the Second Closing Dateunless notice of any claim by any Purchaser Indemnified Party against Seller orParent with respect thereto is given to Seller or Parent by any PurchaserIndemnified Party on or prior to such date, whether or not any PurchaserIndemnified Party has discovered or could have discovered any incorrectness inor breach of such representation and warranty before such time, other than, in all cases, any Indemnity Losses arising under or attributable to anyincorrectness in or breach of any of the Special Representations or fraud on the part ofSeller, Parent or any of their respective Representatives.  (c) Notwithstanding any of the other provisions of this Agreement, Purchaser willnot be liable to any of the Seller Indemnified Parties in respect of any IndemnityLosses directly or indirectly resulting from any incorrectness in or breach of:
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 (i) any representation and warranty of Purchaser set forth in thisAgreement after the date that is two (2) years immediately following the FirstClosing Date unless notice of any claim by any Seller Indemnified Party againstPurchaser with respect thereto is given to Purchaser by any Seller IndemnifiedParty on or prior to such date, whether or not any Seller Indemnified Party hasdiscovered or could have discovered any incorrectness in or breach or suchrepresentation and warranty before such time; or  (ii) provided that the Second Closing occurs, any representation andwarranty of Purchaser set forth in this Agreement after the date that is two(2) years immediately following the Second Closing Date unless notice of anyclaim by any Seller Indemnified Party against Purchaser with respect thereto isgiven to Purchaser by any Seller Indemnified Party on or prior to such date,whether or not any Seller Indemnified Party has discovered or could havediscovered any incorrectness in or breach or such representation and warrantybefore such time, other than, in all cases, any Indemnity Losses arising under or attributable to anyincorrectness in or breach of any representation and warranty of Purchaser set forth inSections 5.01, 5.02, 5.03(a) and 5.05 or fraud on the partof Purchaser or any of its Representatives. In addition, in conjunction with seekingindemnification, each of Seller and Parent shall use its Best Efforts to mitigate andminimize the amount of Indemnity Losses for which it may be entitled to indemnificationhereunder.**8.09****Net Recovery**     The amount of any Indemnity Loss for which indemnification is provided under Section8.01 or Section 8.02 shall be net of any amounts recoverable by Purchaser IndemnifiedParties or Seller Indemnified Parties, as the case may be, under insurance policies with respect tosuch Indemnity Loss. Each of Purchaser and Seller shall use its Best Efforts to make any and allinsurance claims relating to any claim for which it is seeking indemnification under thisArticle 8. The amount of any Indemnity Loss claimed by any Purchaser Indemnified Parties orSeller Indemnified Parties, as the case may be, hereunder shall be reduced to the extent of any Taxsavings or benefits realizable by Purchaser Indemnified Parties or Seller Indemnified Parties, asthe case may be, that is attributable to any deduction, loss, credit or other Tax benefit resultingfrom or arising out of such Indemnity Loss. The amount of any Indemnity Loss claimed by a PurchaserIndemnified Party or Seller Indemnified Party, as the case may be, hereunder shall be reduced tothe extent Purchaser Indemnified Parties or Seller Indemnified Parties, as the case may be, recoverany amounts from third parties with respect to the matters relating to such Indemnity Loss.Notwithstanding anything to the contrary contained in this Agreement, Seller shall have noliability under this Agreement with respect to any matter to the extent the expense, loss orliability comprising the Indemnity Loss (or part thereof) with respect to such matter has beentaken into account in the determination of the Net Portfolio Value Adjustment.
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**8.10****Additional Representations and Warranties**     All statements contained in certificates and other instruments attached hereto or delivered orfurnished on behalf of any party hereto shall be deemed representations and warranties of thatparty pursuant to this Agreement.**8.11****Sole Remedy**     At all times from and after the First Closing, with respect to the transactions consummated atthe First Closing, and at all times from and after the Second Closing, with respect to thetransactions consummated at the Second Closing, the right to indemnification under thisArticle 8, subject to all of the terms, conditions and limitations hereof, shall constitutethe sole and exclusive right and remedy available to any party hereto for any actual or threatenedbreach of this Agreement or any Related Agreement or for any violation of Laws in connection withthe transactions provided for in this Agreement or any Related Agreement, and none of the partieshereto shall initiate or maintain any legal action at law or in equity against any other partyhereto which is directly or indirectly related to any breach or threatened breach of this Agreementor any of the Related Agreements or for any violation of Laws in connection with the transactionsprovided for in this Agreement or any Related Agreement, except that either party may pursue legalor equitable relief against the other in respect of any dispute arising out of or related toSection 1.06 and for any breach or violation of Section 10.01, 10.02 or10.03 of this Agreement. Without limiting the generality of the foregoing, in no eventshall Purchaser have or be entitled to any right to require Seller to repurchase any CSC or Leaseas a result of a breach of any of the representations or warranties contained in Article 4,or for any other reason whatsoever.**8.12****Tax Treatment of Indemnity Payments**     To the maximum extent permitted by Law, it is the intention of the parties to treat anyindemnity payment made under this Agreement as an adjustment to the Purchase Price for all Taxpurposes, and the parties agree to file their Tax Returns accordingly.**8.13****Risk of Loss** (a) The risk of loss with respect to the First Closing Assets shall remain withSeller until the First Effective Time. From and after the First Effective Time, therisk of loss with respect to the First Closing Assets shall pass to and be withPurchaser. Until the First Effective Time, Seller shall maintain in force the policiesof insurance under which any of the First Closing Assets are insured. If at or prior tothe First Effective Time any First Closing Asset is lost, damaged or destroyed and theloss, damage or destruction constitutes a Material Adverse Change, then Purchaser may,at its sole option: (i) terminate this Agreement in accordance with Section9.01(a)(ii); or  (ii) require Seller to assign to Purchaser any and all proceeds ofany insurance payable as a result of such loss, damage or destruction and toreduce the Purchase Price by the amount of the replacement cost of the FirstAssets that
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   were lost, damaged or destroyed, less the amount of any proceeds ofinsurance payable as a result of such occurrence. (b) The risk of loss with respect to the Second Closing Assets shall remain withSeller until the Second Effective Time. From and after the Second Effective Time, therisk of loss with respect to the Second Closing Assets shall pass to and be withPurchaser. Until the Second Effective Time, Seller shall maintain in force the policiesof insurance under which any of the Second Closing Assets are insured. If at or priorto the Second Effective Time any Second Closing Asset is lost, damaged or destroyed andthe loss, damage or destruction constitutes a Material Adverse Change, then Purchasermay, at its sole option: (i) terminate this Agreement in accordance with Section9.01(a)(ii); or  (ii) require Seller to assign to Purchaser any and all proceeds ofany insurance payable as a result of such loss, damage or destruction and toreduce the Purchase Price by the amount of the replacement cost of the SecondAssets that were lost, damaged or destroyed, less the amount of any proceeds ofinsurance payable as a result of such occurrence.**ARTICLE 9 — TERMINATION****9.01****Events of Termination** (a) Notwithstanding anything in this Agreement to the contrary, the consummation ofthe transactions contemplated by this Agreement may be terminated at any time prior tocompletion of the First Closing, as follows: (i) by Seller if there has been a material incorrectness in or amaterial default or breach by Purchaser with respect to Purchaser’srepresentations and warranties in Article 5 of this Agreement, or thedue and timely performance of any of the material covenants of Purchaser duringthe first Interim Period (and for all such purposes, any materialityqualification in any such representation, warranty, covenant or agreement shallbe disregarded), and in the case of a material default or breach of a covenantduring the First Interim Period, such material default or material breach shallnot have been cured (or reasonable efforts commenced to cure any such breach ordefault that cannot be cured within a thirty (30) day period) within thirty(30) Business Days after receipt by Purchaser of written notice from Sellerspecifying in reasonable detail the nature of such default or breach; or if anycondition in Section 3.01(a) has not been satisfied as of the FirstClosing Date or if satisfaction of such a condition is or becomes impossible(other than through the failure of Seller or Parent to comply with itsobligations under this Agreement) and Seller has not waived such condition onor before the First Closing Date;
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 (ii) by Purchaser if there has been a Material Adverse Change or amaterial incorrectness in or a material default or breach by Seller or Parentwith respect to any First Closing Representation and Warranty, or the due andtimely performance of any of the material First Interim Period Covenants (andfor all such purposes, any materiality qualification in any suchrepresentation, warranty, covenant or agreement shall be disregarded), and inthe case of a material default or breach of a material First Interim PeriodCovenant, such material default or material breach shall not have been cured(or reasonable efforts commenced to cure any such breach or default that cannotbe cured within a thirty (30) day period) within thirty (30) Business Daysafter receipt by Seller of written notice from Purchaser specifying inreasonable detail the nature of such default or breach or if any condition inSection 3.02(a) has not been satisfied as of the First Effective Timeor if satisfaction of such a condition is or becomes impossible (other thanthrough the failure of Purchaser to comply with its obligations under thisAgreement) and Purchaser has not waived such condition on or before the FirstClosing Date;  (iii) by Seller, on the one hand or Purchaser, on the other hand, atany time after August 15, 2008, if the First Closing has not occurred and theparty seeking to terminate this Agreement is not in material breach or defaultof any provision of this Agreement to be performed or complied with by itduring the First Interim Period or at the First Closing;  (iv) by Seller or Purchaser immediately upon receipt of notice thatany approval of a Governmental Entity that is required for the consummation ofthe transactions contemplated hereby has been denied by a final, non-appealableorder, or if Purchaser has been requested to withdraw any regulatoryapplication that is required for the consummation of the transactionscontemplated hereby; or  (v) by written agreement of Seller and Purchaser. (b) Notwithstanding anything in this Agreement to the contrary, the consummation ofthe transactions contemplated by this Agreement to be completed at or prior to theSecond Closing may be terminated at any time prior to completion of the Second Closing: (i) by Seller if there has been a material incorrectness in or amaterial default or breach by Purchaser with respect to Purchaser’srepresentations and warranties in Article 5 of this Agreement, or thedue and timely performance of any of the material covenants of Purchaser duringthe First Interim Period (and for all such purposes, any materialityqualification in any such representation, warranty, covenant or agreement shallbe disregarded), and in the case of a material default or breach of a covenantduring the First Interim Period, such material default or material breach shallnot have been cured (or reasonable efforts commenced to cure any such breach ordefault that cannot
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   be cured within a thirty (30) day period) within thirty (30) Business Daysafter receipt by Purchaser of written notice from Seller specifying inreasonable detail the nature of such default or breach; or if any conditionsin Section 3.01(b) has not been satisfied as of the First ClosingDate or if satisfaction of such a condition is or becomes impossible (otherthan through the failure of Seller or Parent to comply with its obligationsunder this Agreement) and Seller has not waived such condition on or beforethe First Closing Date;  (ii) by Purchaser if there has been a Material Adverse Change or amaterial incorrectness in or a material default or breach by Seller or Parentwith respect to any Second Closing Representation and Warranty, or the due andtimely performance of any of the material Second Interim Period Covenants (andfor all such purposes, any materiality qualification in any suchrepresentation, warranty, covenant or agreement shall be disregarded), and inthe case of a material default or breach of a material Second Interim PeriodCovenant, such material default or material breach shall not have been cured(or reasonable efforts commenced to cure any such breach or default that cannotbe cured within a thirty (30) day period) within thirty (30) Business Daysafter receipt by Seller of written notice from Purchaser specifying inreasonable detail the nature of such default or breach or if any condition inSection 3.02(b) has not been satisfied as of the Second Closing Date orif satisfaction of such a condition is or becomes impossible (other thanthrough the failure of Purchaser to comply with its obligations under thisAgreement) and Purchaser has not waived such condition on or before the SecondClosing Date;  (iii) by Seller, on the one hand or Purchaser, on the other hand, atany time after October 31, 2008, if the Second Closing has not occurred and theparty seeking to terminate this Agreement is not in material breach or defaultof any provision of this Agreement to be performed or complied with by it at orprior to the Second Closing; or  (iv) by written agreement of Seller and Purchaser. (c) Notwithstanding any other provision of this Agreement, this Agreement may notbe terminated after completion of the First Closing.**9.02****Effect of Termination** (a) Each party’s right of termination under Section 9.01 is in addition toany other rights it may have under this Agreement or otherwise, and the exercise of aright of termination will not be an election of remedies.  (b) In the event this Agreement is terminated pursuant to Section 9.01(a),all rights and obligations of the parties shall terminate without any liability of aparty to the other parties; provided, however, that the rights and obligations of theparties set forth in
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   Section 9.02(a), Section 9.02(b), Section 10.01, Section13.01 and Section 13.02 of this Agreement shall survive the terminationof this Agreement; provided further, that if this Agreement is terminated by a partypursuant to Section 9.01(a)(i) or 9.01(a)(ii), as applicable, theterminating party’s right to pursue legal remedies with respect thereto will survivesuch termination unimpaired.  (c) In the event this Agreement is terminated during the Second Interim Periodpursuant to this Article 9, all rights, duties, obligations, covenants,conditions and agreements of the parties pertaining to the Second Closing and thetransactions to be consummated in connection therewith including such rights andobligations with respect to any Second Closing Representation and Warranty and SecondInterim Period Covenant, to the extent pertaining to the Second Closing and thetransactions to be consummated in connection therewith, will terminate and have nofurther force or effect.**ARTICLE10 — RESTRICTIVE COVENANTS****10.01****Confidential Information; Use of Name and Marks** (a) Each of Purchaser, Seller and Parent agrees that it shall treat in confidenceand shall not use, disseminate or disclose, other than in connection with thetransactions contemplated by this Agreement, all documents, materials and otherinformation regarding the other parties to this Agreement which it obtains during thecourse of the negotiations leading to the consummation of the transactions contemplatedby this Agreement (whether obtained on, prior to or following the date hereof) or thepreparation of this Agreement or any of the Related Agreements (the “ConfidentialInformation”). The obligation of each party to treat such documents, materials andother information in confidence and not to use, disseminate or disclose such materialsshall not apply to any information which: (a) such party can demonstrate was alreadylawfully in its possession prior to the disclosure thereof by the other parties; (b) isknown to the public and did not become so known through any violation of a legalobligation on the part of the disclosing party; (c) is later lawfully acquired by suchparty from other sources; (d) is required to be disclosed under the provisions of anyLaw, or by any stock exchange or similar body or any federal, state or provincialregulatory authority having jurisdiction over the party; or (e) is required to bedisclosed by a rule or order of any court of competent jurisdiction or pursuant to anyProceeding. The obligation of each party to treat such documents, materials and otherinformation in confidence and not to use, disseminate or disclose such materials shallapply regardless of whether the transactions contemplated by this Agreement actuallyare consummated, and the parties shall not be relieved of any obligations under thisSection 10.01 in the event that the transactions contemplated by this Agreementare not actually consummated and/or in the event that this Agreement is terminatedpursuant to Section 9.01 of this Agreement. In the event that the transactionscontemplated by the First Closing are not consummated, each party shall immediatelyreturn and deliver any and all documents, materials and other information (and allcopies thereof) provided by any other party to the party which
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   provided or disclosed such documents, materials and other information and delete orotherwise destroy any and all electronic copies thereof. In the event thattransactions contemplated by the Second Closing are not consummated, each partyshall immediately return and deliver any and all documents, materials and otherinformation (and all copies thereof) provided by any other party to the party whichprovided or disclosed such documents, materials and other information and delete orotherwise destroy any and all electronic copies thereof, to the extent the samerelate solely to the transactions contemplated by the Second Closing. Purchaserhereby acknowledges that Purchaser may acquire certain information that is PersonalInformation. Purchaser hereby acknowledges and agrees that, whether or not thetransactions contemplated hereby are consummated and despite any termination of thisAgreement, Purchaser shall safeguard all Personal Information Purchaser acquires tothe same extent as required of Seller under the Privacy Laws. Notwithstanding anyother provision of this Agreement, a party will be permitted to retain one copy ofthe Confidential Information to the extent required for legal or regulatory purposesin accordance with an established records retention policy of or applicable to suchparty, provided that such Confidential Information is retained on a confidentialbasis in accordance with the provision of this Section 10.01.  (b) Seller and Parent hereby agree to cause Irwin Financial Corporation to grant toPurchaser, from the First Closing Date, an exclusive, royalty-free license, with theright to sublicense, to use and display the Excluded Intellectual Property Assets for atwelve (12) month period, and any of Seller’s domain names incorporating the “Irwin”name and mark and any variations of such name and mark used in connection with theBusiness pursuant to a License Agreement to be entered into as of the First ClosingDate.  (c) For a period of three (3) years following the Second Closing, Seller shall not,in Canada (i) use the Excluded Intellectual Property Assets (other than domain namesand internet protocol addresses to the extent that the same may be accessed by Personslocated inside Canada) or any trademarks related to the Business in Canada ortrademarks derivative of or confusing with such marks; and (ii) licence any thirdparties to use, nor sell to any third parties, the Excluded Intellectual PropertyAssets or any trademarks related to the Business in Canada, or trademarks derivative ofor confusing with such marks.**10.02****Non-Solicitation** (a) For a period of three (3) years following the First Closing and, provided thatthe transactions contemplated by the Second Closing take place, for a period of three(3) years following the Second Closing (such period, as applicable, the “RestrictedPeriod”), none of Seller, Parent nor any of their respective Affiliates shalldirectly or indirectly, as an entity, or on behalf of, through or in conjunction withany other Person or in any other capacity whatsoever, contact or solicit, either foritself or on behalf of any other Person, any Person that is Known to Seller to be acustomer or client of Purchaser or any Person that is Known to Seller to be a formercustomer or client of Seller in order to (a) divert or influence or attempt to divertor influence any
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   business of Purchaser to Seller or otherwise from Purchaser or the Business asoperated by Purchaser after the First Closing or the Second Closing, as the case maybe, or (b) otherwise interfere in any fashion with Purchaser’s operation of theBusiness. Furthermore, during the Restricted Period, none of Seller, Parent nor anyof their respective Affiliates shall directly or indirectly, either for itself or onbehalf of any other Person or in any other capacity whatsoever, solicit for hire,hire, retain, employ, contract for services in any capacity or otherwise interferewith the relationship of Purchaser with (a) any person Known by Seller to have beenemployed by or otherwise engaged to perform services for Purchaser prior to the dateof this Agreement or at any time during the Restricted Period, or (b) any KeyEmployee, Employee or any person who was employed in the Business prior to the dateof this Agreement. For the purposes of this Section 10.02(a), the phrase“Known” shall not include the knowledge of the Key Employees.  (b) Seller hereby acknowledges and agrees that the restrictive period of time andscope of restricted activity specified in Section 10.02 are reasonable andnecessary in view of the transactions contemplated by this Agreement and the nature ofthe business in which Seller was engaged or is engaged as of the First Closing or theSecond Closing, as the case may be, and in which Purchaser is, or shall be, engaged.Seller further acknowledges and agrees that the restrictions set forth in thisSection 10.02 are reasonable and necessary to protect Purchaser’s investmentunder this Agreement and to safeguard the value and goodwill associated with the Assetsand the Business. Seller acknowledges and agrees that Purchaser would not have enteredinto this Agreement but for Seller’s agreement and obligation pursuant to thisSection 10.02. If the scope of any stated restriction is too broad to permitenforcement of such restriction(s) to its full extent, then the parties agree that suchrestriction shall be enforced and/or modified to the maximum extent permitted by law.**10.03****Non-Competition** (a) For a period of three (3) years from the First Closing Date, and, provided thatthe transactions contemplated by the Second Closing Date are completed, for a period ofthree (3) years following the Second Closing, none of Seller, Parent or any of theirrespective Affiliates shall directly or indirectly carry on, engage in or be interestedin originating, purchasing, securitizing and, except as provided in the ServicingAgreement and except for the servicing of Excluded Items during the Second InterimPeriod, servicing small-ticket equipment leases and conditional sales contracts (the“Restricted Business”) within Canada.  (b) Seller hereby acknowledges and agrees that the restrictive period of time andscope of restricted activity specified in this Section 10.03 are reasonable andnecessary in view of the transactions contemplated by this Agreement and the nature ofthe business in which Seller was engaged or is engaged as of the First Closing or theSecond Closing, as the case may be, and in which Purchaser is, or shall be, engaged.Seller further acknowledges and agrees that the restrictions set forth in thisSection 10.03 are reasonable and necessary to protect Purchaser’s investmentunder this Agreement and to safeguard the value and goodwill associated with the Assetsand
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   the Business. Seller acknowledges and agrees that Purchaser would not have enteredinto this Agreement but for Seller’s agreement and obligation pursuant to thisSection 10.03. If the scope of any stated restriction is too broad to permitenforcement of such restriction(s) to its full extent, then the parties agree thatsuch restriction shall be enforced and/or modified to the maximum extent permittedby Applicable Law.  (c) Notwithstanding Section 10.03(a), none of Seller nor Parent shall beprohibited from: (i) acquiring or owning less than five percent (5%) (by votingpower) of the outstanding capital of any publicly-traded Person that is engagedin the Restricted Business; or  (ii) performing its obligations under this Agreement and theagreements and transactions contemplated in this Agreement or otherwise takingactions in connection with the winding up of the Business.**10.04****Remedies**     Upon any breach of any provision of Article 10 by Seller or any breach of Section10.01 by Purchaser, the other party shall be entitled to each of the following remedies, whichshall be deemed cumulative: (a) Injunctive Relief. Seller and Purchaser hereby acknowledge that anybreach of Sections 10.01, 10.02 or 10.03 may cause irreparableinjury to the goodwill and proprietary rights of the other party and its Affiliates andsubsidiaries, for which the other party shall not have an adequate remedy at law.Accordingly, Seller and Purchaser agree that the other party shall be able to seekimmediate injunctive relief in the form of a temporary restraining order, preliminaryinjunction and/or permanent injunction against it (after posting any required bond andmaking any required showing to the court) to restrain or enjoin any actual orthreatened violation of any provision of Sections 10.01, 10.02 or10.03 by which the other party is bound.  (b) Costs, Expenses and Attorneys’ Fees. Purchaser shall be entitled torecover from Seller all costs, expenses and reasonable attorneys’ fees incurred byPurchaser in seeking either enforcement of Article 10 of this Agreement ordamages for a breach of such Article, and Seller shall be entitled to recover fromPurchaser all costs, expenses and reasonable attorneys’ fees incurred by Seller inseeking enforcement of Section 10.01 of this Agreement or damages for a breachof such Section; provided, however, that, in the event the remedy contemplated byArticle 10 is denied, then the party against whom the violation was allegedshall be entitled to recover from the alleging party all costs, expenses and reasonableattorneys’ fees incurred by it in defending such action.**10.05****Corporate Existence**     For a period of not less than two (2) years from the Second Closing Date, Seller and Parentwill ensure that Irwin Canada will not dissolve, wind up, or otherwise terminate its corporateexistence without the prior written consent of Purchaser.
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**10.06****Exclusivity**     From the date of this Agreement to and including the earlier of (i) the date of termination ofthe Agreement pursuant to Section 9.01(a), (ii) the date of termination of the transactionsto be consummated at the Second Closing pursuant to Section 9.02(b), or (iii) October 31,2008 (any such date, the “Expiration Date”), each of Seller and Parent shall not, and shallensure that none of its respective Affiliates, directly or indirectly: (a) solicit or enter into or continue discussions or negotiations with anyprospective purchaser, except for Purchaser, relating to the sale of any shares ofSeller or relating to the sale of all or substantially all of the business or assets ofSeller or any of Seller’s subsidiaries; or  (b) solicit or enter into any agreement or arrangement with any prospectivepurchaser, except for Purchaser, relating to the sale of any shares of Seller orrelating to the sale of all or substantially all of the business or assets of Seller orany of Seller’s subsidiaries; or  (c) make available any information relating to Seller, to any prospectivepurchaser, other than Purchaser, relating to the sale of shares of Seller or inconnection with the sale of all or substantially all of the business or assets ofSeller or any of Seller’s subsidiaries,and until the Expiration Date, Seller and Parent will promptly advise Purchaser if Seller, Parentor any of their respective Affiliates are in discussions with any potential purchaser, other thanPurchaser, of the shares or all or substantially all of the business assets of Seller or any ofSeller’s subsidiaries.**ARTICLE11 — OTHER AGREEMENTS****11.01****Cooperation on Tax Matters** (a) The parties hereto shall cooperate, and shall cause their respectiverepresentatives to cooperate, in preparing and filing all Tax Returns (includingamended Tax Returns and claims for refund), in handling audits, examinations,investigations and administrative, court or other Proceedings relating to Taxes, inresolving all disputes, audits and refund claims with respect to such Tax Returns andTaxes, and any earlier Tax Returns and Taxes of Seller, and in all other appropriateTax matters, in each case including making employees available to assist the requestingparty, timely providing information reasonably requested, maintaining and makingavailable to each other all records necessary or desirable in connection therewith, andthe execution and delivery of appropriate and customary forms and authorizations whenthe requesting party reasonably requires such forms in connection with any Tax disputeor claim for refund. Any information obtained by any party or its Affiliates fromanother party or its Affiliates in connection with any Tax matters to which thisAgreement relates shall be kept confidential, except: (i) as may be otherwise necessaryin connection with the filing of Tax Returns or claims for refund or in
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   conducting an audit or other Proceeding relating to Taxes or as may be otherwiserequired by Applicable Law, to enforce rights under this Agreement or to pursue anyclaim for refund or contest any proposed Tax assessment; or (ii) for any externaldisclosure in audited financial statements or regulatory filings which a partyreasonably believes is required by Applicable Law or stock exchange or similarapplicable rules.  (b) Notwithstanding the provisions of Section 11.01(a), and in addition toall other obligations imposed by this Section 11.01: (i) Seller and Purchaseragree to give the other party reasonable written notice prior to transferring,destroying or discarding any Files and Records with respect to Tax matters and, ifPurchaser so requests, Seller shall allow Purchaser to take possession of such Filesand Records; and (ii) Seller shall retain (or cause Seller’s Affiliates to retain) allsuch Files and Records of Seller and Seller’s Affiliates until the expiration of anyapplicable statute of limitations (including any extension thereof) with respect to TaxReturns filed on behalf of Seller or its Affiliates.**11.02****Transfer Taxes**     Purchaser shall be liable for and shall pay, either to Seller or directly to the appropriateGovernmental Entity, as required, all transfer taxes, sales taxes (whether imposed by Canada, aprovince or local taxing authority therein) and all other Taxes or other like charges properlypayable upon and in connection with the transfer of the First Closing Assets to Purchaser, at theFirst Closing (the “First Closing Transfer Taxes”) and, for the transfer of the SecondClosing Assets to Purchaser at the Second Closing (the “Second Closing Transfer Taxes”), ineach case including but not limited to GST and provincial sales taxes, but excluding any incometaxes payable by Seller as a result of the completion of the transactions herein contemplated.Purchaser shall provide a purchase exemption certificate or other documentation for Assets that canbe acquired exempt from provincial sales taxes. Seller and Purchaser shall make a joint electionpursuant to the provisions of subsection 167(1) of the GST Legislation, and any similar TaxLegislation, in prescribed form and including the prescribed information, with respect to thepurchase and sale of the Assets pursuant to the provisions of this Agreement. Purchaser shall filethe joint election not later than the day on or before which the return is required to be filed byPurchaser under the GST Legislation and any similar Tax Legislation for Purchaser’s reportingperiod in which the sale was made, in compliance with the requirements of the GST Legislation andany similar Tax Legislation.**11.03****Employment** (a) Following the First Closing, Purchaser may, in its sole discretion, elect tooffer employment effective as of the Second Closing Date to any of the Employees whoare not Inactive Employees. Upon receiving notice from Seller that an Inactive Employeeis ready to return to work in the capacity in which he or she worked prior tocommencing his or her leave of absence, Purchaser may, in its sole discretion, elect tooffer employment effective as of the date he or she is ready to return to work in thecapacity in which he or she worked prior to commencing his or her leave of absence toany of the Inactive Employees. Purchaser shall recognize all past service of KeyEmployees and Transferred Employees with Seller and, if applicable, the
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   predecessors of Seller, for all purposes (other than the accrual of benefits inPurchaser’s pension and other benefit plans), including for any required notice oftermination, termination or severance pay (contractual, statutory or at common-law).  (b) Except in the case of Inactive Employees who become Transferred Employeeseffective as of the date on which they become Transferred Employees, the TransferredEmployees shall cease to participate under all Benefit Plans effective as of the SecondClosing Date. In the case of any Inactive Employee who becomes a Transferred Employee,such Transferred Employee shall cease to participate under all Benefit Plans effectiveas of the date on which he or she becomes a Transferred Employee. The Key Employeesshall cease to participate in all Benefit Plans effective as of the First Closing Date.  (c) Purchaser shall be responsible for and shall discharge all Liabilities relatingto all Transferred Employees, including with respect to termination pay, severance pay,pay in lieu of notice, any other damages relating to any termination of employment ofany Transferred Employee, and all salary, wages, bonuses, commissions, vacations andvacation pay and other compensation, benefits or perquisites relating to theTransferred Employees on and after the Second Closing Date (except in the case ofInactive Employees who become Transferred Employees, on and after the date on whichthey become Transferred Employees).  (d) Purchaser shall be responsible for and shall discharge all Liabilities relatingto all Key Employees, including with respect to termination pay, severance pay, pay inlieu of notice, any other damages relating to any termination of employment of any KeyEmployee, and all salary, wages, bonuses, commissions, vacations and vacation pay andother compensation, benefits or perquisites relating to the Key Employees on and afterthe First Closing Date.  (e) Seller shall be responsible for, and agree to pay when due, and perform anddischarge in accordance with their terms, all Liabilities: (i) relating to all Transferred Employees prior to the SecondClosing Date (except in the case of Inactive Employees who become TransferredEmployees, prior to the date on which they become Transferred Employees),including all Liabilities relating to all salary, wages, overtime, bonuses,commissions, vacations and vacation pay, and other compensation, benefits orperquisites relating to the Transferred Employees prior to the Second ClosingDate (except in the case of Inactive Employees who become TransferredEmployees, prior to the date on which they become Transferred Employees);  (ii) relating to all Key Employees prior to the First Closing Date,including all Liabilities relating to all salary, wages, overtime, bonuses,commissions, vacations and vacation pay, and other compensation, benefits orperquisites relating to the Key Employees prior to the First Closing Date; and
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 (iii) relating to all Employees who are not Transferred Employees,including all Employees who do not accept offers of employment made pursuant toSection 11.03(a). (f) Section 11.03(f) of the Disclosure Schedules contains an up-to-datelist of all Employees as of the date hereof. On the First Closing Date, Seller shalldeliver to Purchaser an up-to-date list of Employees as at the First Closing Datecertified complete by an officer of Seller.  (g) During the Second Interim Period, Seller shall have responsibility for thesupervision, management and direction of all Employees in performing the services to beperformed pursuant to the Servicing Agreement. During the Second Interim Period, Sellershall remain responsible for all salaries, bonuses, benefits and other compensationowing to the Employees, for all decisions relating to hiring, termination and terms andconditions of employment, and for all claims made by any Employee (including claims fortermination and severance payments), provided that Purchaser may make recommendationsto Seller in all regards.  (h) Purchaser may, at any time during the Second Interim Period, provide writtennotice to Seller regarding the unacceptable actions of an Employee specifying thedetails of such action and remedy sought regarding that Employee. If Purchaser is notsatisfied, acting reasonably and in good faith, that the actions of such Employee havebeen corrected within seven (7) calendar days of such notice, then Purchaser may, inits sole discretion, demand that such Employee cease performing any of the services tobe performed pursuant to the Servicing Agreement and Seller agrees to comply with anysuch demand forthwith upon receipt of any such notice.**11.04****Retention of Files and Records**     Purchaser shall retain possession of all Files and Records transferred to Purchaser hereunderand coming into existence after the First Closing Date with respect to the First Closing Assets orafter the Second Closing Date with respect to the Second Closing Assets, as the case may be, whichrelate to the Business prior to the First Closing Date or the Second Closing Date, as the case maybe, for a period consistent with Purchaser’s record-retention policies and practices, but in noevent less than seven (7) years. In addition, from and after the First Closing Date or the SecondClosing Date, as the case may be, upon reasonable written notice and during normal business hours,Purchaser shall provide access to Seller and its officers, directors, employees, consultants,attorneys, accounts and representatives, at Seller’s expense, to such Files and Records as Sellermay reasonably deem necessary or desirable to properly prepare for, file, prove, answer, prosecuteor defend any return, filing, audit, protest, claim, suit, inquiry or other Proceeding.**11.05****Transition Committee**     In order to ensure a smooth transition to Purchaser of the operation and management of theBusiness, Purchaser and Seller will, after the date of this Agreement, establish and operate atransition committee (the “Transition Committee”) consisting of one senior officer ofPurchaser and one senior officer of Seller, such person to be designated in writing by Seller andPurchaser,
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respectively, not later than the First Closing, together with such additions or changesthereto as Purchaser or Seller may reasonably request in respect of the members of the TransitionCommittee. This Transition Committee will commence its operations on the date hereof and continueuntil the Second Closing Date or termination of this Agreement under Article 9. The membersof the Transition Committee who are representatives of Purchaser will be entitled to requestinformation from Seller, Parent and the Business with respect to the properties, Assets, AssumedLiabilities, Employees, businesses and operations of the Business for any reason relating tofacilitating a smooth transition to Purchaser of the operations and management of the Business, andSeller or Parent, as applicable, will promptly provide to Purchaser any such information (to theextent it is available) as will have been reasonably requested, subject to any requirements imposedby any Governmental Entity. The Transition Committee will be entitled to do all things reasonablynecessary or advisable to plan for the transactions contemplated by this Agreement and theoperation of the Business following the First Effective Time and, if applicable, the SecondEffective Time.**11.06****Compliance with Privacy Laws**     Purchaser represents and warrants that it has, in connection with the preparation andnegotiation of this Agreement and consummation of the transactions contemplated herein, compliedwith all Privacy Laws and covenants and agrees that it will comply with all Privacy Laws, includingwithout limitation, in connection with the collection, use, disclosure, retention and protection ofPersonal Information.**ARTICLE12 — DEFINITIONS**     As used in this Agreement, the following terms have the meanings indicated below:“**Advance Ruling Certificate**” shall mean an advance ruling certificate issued by the Commissioner ofCompetition pursuant to section 102 of the *Competition Act*with respect to the transactionscontemplated by this Agreement.“**Affiliate**” shall mean, with respect to any Person, any other Person who directly or indirectlycontrols, is controlled by, or is under direct or indirect common control with, such Person, andincludes any Person in like relation to an Affiliate. A Person shall be deemed to “control” anotherPerson if such Person possesses, directly or indirectly, the power to direct or cause the directionof the management and policies of such other Person, whether through the ownership of votingsecurities, by contract or otherwise; and the term “controlled” shall have a similar meaning.“**Anti-Money Laundering and Terrorist Financing Laws**” shall mean all applicable federal lawsrelating to anti-money laundering and terrorist financing, including the Proceeds of Crime (MoneyLaundering) and Terrorist Financing Act (Canada) and the Criminal Code (Canada), including, in eachcase, the regulations made thereunder, including the know your client rules included therein.“**Applicable Law**” shall mean, with respect to any Person, property, transaction, event or othermatter, (i) any foreign or domestic constitution, treaty, law, statute, regulation, code,ordinance, principle of common law or equity, rule, municipal by-law, order, decree, judgment,consent decree, settlement agreement or other requirement (including a requirement arising atcommon law) having the force of law, including Privacy Laws, Anti-Money Laundering and TerroristFinancing Laws and
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all provincial consumer protection laws, (ii) any policy, practice, protocol, standard or guidelineof any Governmental Entity which, although not necessarily having the force of law, is regarded bysuch Governmental Entity as requiring compliance as if it had the force of law (collectively, the"**Law**”) relating or applicable to such Person, property, transaction, event or other matter and alsoincludes, where appropriate, any interpretation of the Law (or any part thereof) by any Personhaving jurisdiction over it, or charged with its administration or interpretation.“**Assigned Contracts**” shall mean all Contracts that are capable of being assigned or in respect ofwhich the rights and obligations may be granted to Purchaser and that relate directly or indirectlyto, or are necessary for, the conduct of the Business or the operation of the Assets, including anyCorporate Insurance Policies, except for the CSC Documents, the Lease Documents and theSecuritization Documents and except for those Contracts specifically listed in Article 12(Assigned Contracts) of the Disclosure Schedules.“**Assigned Equipment Leases**” shall mean any and all leases of Equipment and Machinery, and otheritems of personal property, other than any of the foregoing which constitute Excluded Assets.“**Assignment and Assumption Agreement**” shall mean an Assignment and Assumption Agreement, by andbetween Purchaser and Seller in the form attached hereto as Exhibit A.“**Bad Debt Allowance**” shall mean the reserves and allowances for losses in respect of theLease Receivables and CSC Receivables, as reflected on Seller’s consolidated balance sheetas of an applicable date, such reserves or allowances to be determined in accordance with Seller’sallowance methodology in a manner consistent with Seller’s past customs and practice (as disclosedin the most recent 10-K filing of Parent).“**Benefit Plans**” shall mean all compensation, bonus, deferred compensation, incentive compensation,share purchase, share appreciation, share or stock option, performance units, restricted units orother equity-based compensation, severance or termination pay, vacation pay, hospitalization orother medical, health and welfare benefits, life or other insurance, dental, eye care, disability,salary continuation, supplemental unemployment benefits, profit-sharing, mortgage assistance,employee loan, employee discount, employee assistance, counselling, pension, retirement orsupplemental retirement benefit plan, arrangement or agreement, including any defined benefit ordefined contribution pension plan and any group registered retirement savings plan, and any othersimilar employee benefit plan, arrangement or agreement, whether oral or written, funded orunfunded, including policies with respect to holidays, sick leave, long-term disability, vacations,expense reimbursements and automobile allowances and rights to company-provided automobiles, thatare sponsored or maintained or contributed to or required to be contributed to, by Seller for thebenefit of any of the Key Employees, Employees, former employees or beneficiaries of any of themwho worked in the Business during the twelve (12) months prior to the Second Closing or to whichSeller contributed in respect of such employees or former employees during the twelve (12) monthsprior to the Second Closing, whether or not insured and whether or not subject to any Law, exceptthat the term “Benefit Plan” shall not include any statutory plans with which Seller is required tocomply, including the Canada Pension Plan or plans administered pursuant to applicable provincialhealth tax, workers’ compensation, workers’ safety and insurance and employment insurancelegislation.
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“**Best Efforts**” shall mean the efforts that a reasonable business person desirous of achieving aresult would use in similar circumstances to achieve that result as expeditiously as possible.“**Bill of Sale**” shall mean a Bill of Sale by and between Purchaser and Seller in substantially theform attached hereto as Exhibit B.“**Business Day**” shall mean any day other than Saturday, Sunday and any day on which commercial banksin Vancouver, British Columbia and Toronto, Ontario are authorized by Law to be closed.“**Canadian Dollars**” shall mean the legal and lawful money of Canada.“**Canadian GAAP**” shall mean the generally accepted accounting principles from time to time approvedby the Canadian Institute of Chartered Accountants, or any successor entity thereto, applicable asat the date on which such principles are to be applied or on which any calculation or determinationis required to be made in accordance with generally accepted accounting principles.“**Cash**” shall mean all positive balances in any and all bank accounts of Seller, offset by anynegative balances in any such bank accounts plus (a) deposits in transit to the extent there hasbeen a reduction of receivables on account thereof, (b) any held checks to the extent that theyhave been included in accounts payable and (c) petty cash.“**Cash Equivalents**” shall mean: (a) marketable direct obligations issued by, or unconditionallyguaranteed by, the United States or Canadian government or issued by any agency thereof and backedby the full faith and credit of the United States or Canada, in each case maturing within one (1)year from the date of acquisition; (b) guaranteed investment certificates, certificates of deposit,time deposits, Eurodollar time deposits or overnight bank deposits or overnight back depositshaving maturities of six (6) months or less from the date of acquisition issued by any commercialbank organized under the laws of the United States or Canada or any state or province thereof; (c)commercial paper of an issuer, and maturing within twelve (12) months from the date of acquisition;(d) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of thisdefinition, having a term of not more than thirty (30) days; or (e) securities with maturities ofone (1) year or less from the date of acquisition issued or fully guaranteed by any state,commonwealth or territory of the United States, by any political subdivision or taxing authority ofany such state, commonwealth or territory or by any foreign government (including a province,territory or political subdivision thereof), the securities of which state, commonwealth,territory, political subdivision, taxing authority or foreign government (including any province,territory or political subdivision thereof) (as the case may be); (f) securities with maturities ofsix (6) months or less from the date of acquisition backed by standby letters of credit issued byany commercial bank satisfying the requirements of clause (b) of this definition; (g) money marketmutual or similar funds that invest exclusively in assets satisfying the requirements of clauses(a) through (f) of this definition; or (h) money market funds.“**Closing Date Balance Sheet**” shall mean the consolidated balance sheet of Irwin Canada settingforth the consolidated assets and liabilities of Irwin Canada and Onset as at the Close of Businesson the day immediately prior to the First Closing Date, which balance sheet shall be prepared inconformity with the preparation of the Interim Balance Sheet and in accordance with Canadian GAAP,consistently applied in accordance with Seller’s past practice; provided, however, that such
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balance sheet shall, notwithstanding the requirements of Canadian GAAP, exclude: (a) as an asset,all of the Excluded Assets; and (b) as a liability, all of the Excluded Liabilities.“**Closing Tape**” shall mean the Master Tape produced as at 11:59 p.m. EDT on the calendar dayimmediately prior to the First Closing Date.“**Collateral**” shall mean, as applicable, all the collateral given from time to time to securepayment and performance of the obligations under the CSC Documents or Lease Documents, includingreal property, machinery, equipment and other personal property, fixtures, promissory notes, cashand other monies, proceeds of insurance and real property, stock certificates, bonds andcertificates of deposit.“**Commissioner**” shall mean the Commissioner of Competition appointed pursuant to the CompetitionAct.“**Competition Act**” shall mean the Competition Act of Canada, as amended, and the rules andregulations promulgated thereunder from time to time.“**Competition Act Approval**” shall mean: (i) the issuance of an Advance Ruling Certificate;  (ii) Purchaser and Seller have given the notice required undersection 114 of the Competition Act with respect to the transactionscontemplated by this Agreement and the applicable waiting period under section123 of the Competition Act has expired or been waived in accordance with theCompetition Act; or  (iii) the obligation to give the requisite notice has been waivedpursuant to subsection 113(c) of the Competition Actand, in the case of (ii) or (iii), Purchaser has been advised in writing by the Commissioner or aperson authorized by the Commissioner that such person is of the view, at that time, that, ineffect, grounds do not exist to initiate proceedings before the Competition Tribunal under themerger provisions of the Competition Act with respect to the transactions contemplated by thisAgreement, and the form of and any terms and conditions attached to any such advice are acceptableto Purchaser, acting reasonably, and such advice has not been rescinded or amended.“**Contracts**” shall mean any contract, agreement, indenture, note, bond, loan, instrument, lease,conditional sale contract, mortgage, deed of trust, trust agreement, license, franchise, insurancepolicy, commitment or other arrangement or agreement of any kind, whether written or oral.“**Credit Policies**” shall mean the authorizations, funding, collection and write-off policies,procedures and practices currently adopted and followed by Seller in carrying on the Business,copies of which have been delivered to Purchaser.
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“**CSC**” shall mean the obligation of Obligors arising under conditional sale contracts or other titleretention agreements entered into with such Obligors made or acquired by Seller and shall excludeany conditional sale contracts or other title retention agreements that are Excluded Items.“**CSC Documents**” shall mean the conditional sale contracts and other title retention agreements,Security Documents and all other agreements, instruments and documents delivered or to be deliveredto Seller in connection with or relating to the CSCs including any insurance policy or certificateof insurance with respect thereto, any related statements or filings under any personal propertysecurity legislation, any related sales document, purchase order or invoice, and any otherdocuments on file with respect thereto, including correspondence, reports, books, records,financial statements, inspection reports and appraisals.“**CSC Receivables**” shall mean all amounts payable by an Obligor under a CSC, including all amountsowing or recovered pursuant to Proceedings related to collections in respect of each such CSC.“**Deposits**” shall mean, as of any date, all amounts paid by Obligors and held by Seller as securitydeposits or prepaid rent in respect of such Obligors’ obligations under corresponding LeaseDocuments or CSC Documents, as applicable.“**Derivatives**” shall mean all rights (and related obligations) of Seller or any of its Affiliatespursuant to any hedging or derivative Contracts related to a Securitization Transaction to whichSeller is a party.“**Employee**” shall mean an individual, other than a Key Employee, who is employed by Seller in theBusiness.“**Encumbrances**” shall mean all liens (statutory or other), leases, mortgages, hypothecs, pledges,security interests, conditional sales agreements, charges, claims, deeds of trust, options,warrants, ownership interest, purchase rights, rights of refusal, easements, rights of way (otherthan easements of record) and other encumbrances and restrictions of any kind or nature whatsoever.“**Environmental Requirements**” shall mean all Laws, policies, guidance documents, approvals, plans,authorizations, licenses or permits issued by any Governmental Entity relating to human health,pollution or protection of the environment (including ambient air, surface water, ground water,land surface or surface strata), including: (a) Laws relating to emissions, discharges, releases orthreatened releases of Hazardous Materials; and (b) Laws relating to the identification,generation, manufacture, processing, distribution, use, treatment, storage, disposal, recovery,transport or other handling of Hazardous Materials.“**Equipment and Machinery**” shall mean: (a) all fixed assets, including equipment, machinery,furniture, fixtures and improvements, materials, spare parts, replacement parts, computer hardwareand Software and vehicles owned or leased by Seller in connection with the Business (including allleases of such property), other than any such equipment or machinery that is the subject of a Leaseor CSC and that Seller has acquired for the purpose of making such Lease or CSC in the OrdinaryCourse of Business; (b) any rights of Seller to warranties applicable to the items described inclause (a) above, as well as any licenses received from manufacturers, lessors or sellers of anysuch item (in
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each case, to the extent assignable); and (c) any related records, documents, claims, credits andrights of recovery with respect to the items described in clauses (a) and (b).“**Excluded Items**” means, collectively, those certain obligations of purchasers arising underconditional sale contracts or other title retention agreements entered into with such purchasersmade or acquired by Seller, as seller, and leases (including true leases and finance leases)entered into by Seller, as lessor, or assigned to or otherwise acquired by Seller, in either case,that may not meet or comply with any or all of the criteria required or otherwise necessary forCSCs or Leases to comply with as set forth in Section 4.16, and all of which, as of theClose of Business on the day immediately prior to the date hereof, are set forth in Article12 (Excluded Items) of the Disclosure Schedules.“**Files and Records**” shall mean all Financial Records and all other files, records, books, data,papers, and other information related to the Business, the Assets or the Assumed Liabilities,whether in hard copy, electronic, digital or magnetic or other format, including customer lists andrecords, referral sources, equipment maintenance records, equipment warranty information, portfolioperformance reports and records, sales and advertising material, Software, correspondence, manuals,studies, sales literature and promotional material, trade association files, loan and leaseproduction and servicing reports and records, underwriting guidelines, customer payment histories,copies of financial and accounting records, research and development information and plans andprojections of or relating to the Business and copies of records relating to the Key Employees andTransferred Employees, whether or not Seller is required by Law to retain a copy thereof in itspossession.“**Financed Property**” shall mean that property (i) owned by Seller and acquired through foreclosureof any Collateral securing a CSC or settlement agreement transferring any Collateral securing a CSCor (ii) owned by Seller and acquired at the expiration or termination of any Lease applicable tosuch property.“**Financial Records**” shall mean all of the books of account and other financial data and informationRelated to the Business or related to any of the Purchased Assets or any of the AssumedLiabilities, and includes all records, data and information stored electronically, digitally or oncomputer-related media.“**First Closing Related Agreements**” shall mean, collectively, (i) an Assignment and AssumptionAgreement with respect to the Assumed First Closing Liabilities, (ii) a Bill of Sale with respectto the First Closing Assets, (iii) the Servicing Agreement, (iv) the License Agreement, and (v) alldocuments and instruments executed and delivered in connection with any of them or with thisAgreement at the First Closing.“**First Closing Representations and Warranties**” shall mean all of the representations and warrantiesof Seller and Parent set forth in Article 4 of this Agreement.“**First Effective Time**” shall mean 12:01 a.m. EDT on the First Closing Date.“**First Interim Period**” shall mean the period from the date of execution of this Agreement to theFirst Closing.
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“**Governing Documents**” shall mean, with respect to any particular entity: (a) if a corporation, thearticles or certificate of incorporation and the bylaws of such entity; (b) if a generalpartnership, the partnership agreement and any statement of partnership; (c) if a limitedpartnership, the limited partnership agreement, the certificate of limited partnership and theGoverning Documents of the general partner of such entity; (d) if a limited liability company, thearticles of organization and the operating agreement; (e) if another type of Person, any othercharter or similar document adopted or filed in connection with the creation, formation ororganization of the Person; (f) all equity holders’ agreements, voting agreements, voting trustagreements, joint venture agreements, registration rights agreements or other agreements ordocuments relating to the organization, management or operation of any Person or relating to therights, duties and obligations of the equity holders of any Person; and (g) any amendment orsupplement to any of the foregoing.“**Governmental Entity**” shall mean (a) any multinational, federal, provincial, state, territorial,regional, municipal, local or other governmental or public department, court, tribunal, agency,department, commission, commissioner, board, bureau ministry or instrumentality, foreign ordomestic, or any political subdivision or authority of any of the foregoing; (b) anyquasi-governmental or private body exercising any regulatory, expropriation or taxing authorityunder or for the account of any of the above; or (c) any self-regulatory organization or stockexchange.“**GST**” shall mean taxes, interest, penalties and fines imposed under Part IX of the Excise Tax Act(Canada) and the regulations made thereunder; and “**GST Legislation**” means such act and regulationscollectively.“**Hazardous Materials**” shall mean: (a) any substance that is or becomes defined as a “hazardoussubstance,” “hazardous waste,” “hazardous material,” “pollutant” or “contaminant” under anyEnvironmental Requirements, and (b) petroleum (including crude oil and any fraction thereof); and(c) any natural or synthetic gas (whether in liquid or gaseous state).“**Inactive Employee**” shall mean an Employee who is absent from active employment and is likely toreturn to active employment within twelve (12) months from the Second Closing Date.“**Income Tax Act**” shall mean, collectively, the Income Tax Act, R.S.C. 1985, 5thSupplement, the Income Tax Application Rules, R.S.C. 1985, 5th Supplement, and theIncome Tax regulations, in each case as amended to the date hereof.“**Indemnity Loss**” shall mean any damages, losses, obligations, Liabilities, claims, penalties, costsand expenses (including costs of investigation and defense and reasonable attorneys’ fees andexpenses).“**Intangible Assets**” shall mean all intangible personal property rights of Seller other than theIntellectual Property Assets, including going concern value, goodwill, the benefit of third partyrepresentations, warranties and guarantees, customer lists and related information (includingtelephone numbers, facsimile numbers, domain names, addresses and e-mail and website addresses),business plans and strategies, referral sources, the exclusive right of Purchaser to representitself as carrying on the Business in continuation and succession of Seller and all otherintangible assets of Seller, whether or not patentable or registrable.
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“**Intellectual Property**” shall mean all right, title and interest in and to all intellectualproperty rights of any kind, whether registered or not, including: (a) all trade-marks, service marks, certification marks, trade-markregistration applications, business names, trade names, design logosand brand names, including all goodwill associated therewith;  (b) all trade dress, other indications of origin and other trade-markrights and any labels, packaging or get up of any products orservices, including all goodwill associated therewith;  (c) all copyrights, Software, works of authorship, industrial designs andregistrations thereof and applications therefor;  (d) all moral rights and benefit of all waivers of moral rights;  (e) all inventions, discoveries, improvements, patents, patentapplications and patent rights (including any patents issuing on suchapplications or rights);  (f) all domain names and internet protocol addresses, whether or not usedor currently in service, including all goodwill associated therewith;  (g) all trade secrets, confidential information, ideas, formulas,compositions, inventor’s notes, know-how, manufacturing and productionprocesses and techniques, research and development information,drawings, specifications, plans, proposals and all other technical,business and customer information and customer listings; and  (h) all integrated circuit topographies and mask works, and allregistrations and applications therefortogether with any renewal, extension, reissue, division, continuation or modification thereof.“**Intercompany Agreements**” shall mean (i) that certain Intercompany Line of Credit, as amended, fromParent to Irwin Canada dated as of May 1, 2008; (ii) that certain Amended and Restated IntercompanyCapital Allocation Agreement by and among Parent, Irwin Commercial Finance Corporation, IrwinInternational Corporation, and Irwin Canada dated as of January 1, 2005; and (iii) those certainletter agreements to which Irwin Canada is a party that comprise a part of the Intercompany FeeAgreement by and among Parent and certain of its Affiliates dated as of January 1, 2008.“**Intercompany Payables**” shall mean all intercompany payables owing by Seller to any of itsAffiliates, including, principal and interest expense relating to intercompany borrowings, chargesfor shared services and charges for information technology services, including all such payableowing under any Intercompany Agreements.“**Intercompany Receivables**” shall mean all intercompany receivables owed to Seller by any of itsAffiliates, including intercompany wage allocations, intercompany vendor expenses and chargesrelating to the issuance of stock options.
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“**Inventory**” or “**Inventories**” shall mean all inventories of Seller, wherever located, including allsupplies and other items of personal property to be used or consumed by Seller in the operation ofthe Business.“**Key Employees**” shall mean, collectively, Joseph LaLeggia, Mark Cannon, Robert Murphy, RobertMormina and Luigi Spizzirri.“**Known to**”, “**to the Knowledge of**” or words of similar import, when used in connection with anyPerson, shall mean the knowledge of such Person after reasonable inquiry and, in the case ofSeller, shall mean the knowledge, after reasonable inquiry, of each of the Key Employees, WilliamMiller, Thomas Washburn, Greg Ehlinger, Matthew Souza, Brett Vanderkolk, Jody Littrell, JamesKasper, Alex Jung, Philip O’Halloran and Steven Schultz; provided that, for the purposes hereof,Seller shall in all cases be deemed to have the knowledge of (a) a prudent business person holdingthe positions or offices, as of the relevant date of such knowledge determination, of the KeyEmployees and the foregoing individuals as would have or should have been obtained after due anddiligent inquiry and (b) the person or persons who are the managers and supervisors acting in asupervisory capacity over the person or persons whose job or function is the daily administrationand servicing of the Portfolio.“**Law**” shall have the meaning ascribed thereto in the definition of “Applicable Law”.“**Leases**” shall mean the leases (including true leases and finance leases) entered into by Seller,as lessor, or assigned to Seller and shall exclude any such leases that are Excluded Items.“**Lease Agreements**” shall mean the documents setting forth the terms and conditions of the Leases.“**Lease Documents**” shall mean the Lease Agreements, the Security Documents and all other agreements,instruments and documents delivered or to be delivered to Seller in connection with or relating toany of the Leases, including any insurance policy or certificate of insurance with respect thereto,any related statements or filings under any personal property security legislation, any relatedsales document, purchase order or invoice, and any other documents on file with respect thereto,including correspondence, reports, books, records, financial statements, inspection reports andappraisals.“**Lease Receivables**” shall mean all amounts payable by an Obligor under a Lease, including allamounts owing or recovered pursuant to Proceedings related to collections in respect of each suchLease.“**Liability**” with respect to any Person, shall mean any liability, debt or obligation of such Personof any kind, character or description, whether known or unknown, absolute or contingent, accrued orunaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint orseveral, due or to become due, vested or unvested, executory, determined, determinable orotherwise, and whether or not the same is required to be accrued on the financial statements ofsuch Person.“**License Agreement**” means the license agreement pursuant to which Irwin Financial Corporation shalllicense certain of the Excluded Intellectual Property Assets to Purchaser, such agreement to besubstantially in the form attached hereto as Exhibit C.
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“**Licenses and Permits**” shall mean all licenses, permits, franchises, certificates, approvals andauthorizations that relate directly or indirectly to, or are necessary for, the conduct of theBusiness as presently conducted or the operation of the Assets as presently conducted, in eachcase, in the Ordinary Course of Business, and all pending applications therefor or renewalsthereof.“**Master Tape**” shall mean the standard master file tape or other electronic medium maintained by oron behalf of the Business with respect to the Portfolio, which tape or other electronic mediumshall include, for each Lease or CSC identified thereon, the related Obligor’s name and contactinformation, the Lease or CSC number, the outstanding balance and Deposit, any and all adjustmentsmade by or on behalf of a Seller and the data fields contained in Exhibit D.“**Material Adverse Change**” shall mean any change, occurrence, event, circumstance or effect that hashad, or could reasonably be expected to have a material and adverse effect on any of the Assets orthe Business or the Assumed Liabilities, in each case, taken as a whole, including any such change,occurrence, event, circumstance or effect arising out of or related to any change in ApplicableLaw, the amendment or revocation of any of the material Licenses and Permits, any significantchange in the Canadian financial leasing industry, or as a result of fire, explosion, accident,casualty, labour problem, flood, drought, riot, storm, terrorist act, pandemic, disease, influenza,virus, act of God or otherwise.“**Material Portfolio Change**” shall mean any material change (a) in the size or overall compositionof the Portfolio resulting in a decrease of not less than $4,000,000 in Canadian Dollars in thebook value of the Portfolio determined in accordance with the past customs and practice of Selleror (b) in the credit quality of the Portfolio resulting from a failure by Seller to apply theCredit Policies consistent with past customs and practice of Seller, excluding the sale of certainassets by Seller to Coactiv Capital Partners Canada Inc. as set forth in Section 4.10 ofthe Disclosure Schedules.“**Net Portfolio Value**” shall mean, in respect of Seller’s consolidated balance sheet as of anapplicable date: (a) the sum of: (i) the aggregate amount of the Lease Receivables; plus  (ii) the aggregate amount of the CSC Receivables; minus (b) the sum of: (i) the aggregate amount of Unearned Income in respect of theLease Receivables and CSC Receivables; plus  (ii) the then current Bad Debt Allowance in respect of theLease Receivables and CSC Receivables; plus  (iii) the amount of the Deposits in respect of the LeaseReceivables and CSC Receivables.
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“**Obligor**” shall mean the purchaser under a CSC or the lessee under a Lease, as applicable, andshall include any guarantor or any other party with a payment obligation with respect to a CSC or aLease.“**Off-the-Shelf Software**” shall mean commercially available off-the-shelf Software used by Sellerand that is subject to any type of license agreement, including but not limited to shrink-wrap orclick-wrap license.“**Ordinary Course of Business**” shall mean any action taken by a Person if such action is consistentin nature, scope and magnitude with the past practice of such Person’s business and is taken in theordinary course of the normal day-to-day operations of such Person’s business.“**Parent Guarantees**” shall mean those certain performance guarantees provided by Irwin FinancialCorporation in respect of certain obligations of Seller under the Securitization Transactions withStars Trust and with ICF Trust/Okanagan Funding Trust.“**Permitted Encumbrance**” shall mean any of the following: (a) the provisions of all applicablezoning Laws, statutory liens of landlords, carriers, workmen, warehousemen, repairmen, mechanics,contractors, materialmen and other similar Persons and other liens imposed by Applicable Laws; (b)easements, rights-of-ways, restrictions and other similar charges and encumbrances of record; (c)liens for Taxes and other governmental assessments, charges or claims not yet due and payable orthat the taxpayer is contesting; (d) any Contracts governing Seller’s use of the Software or theOff-the-Shelf Software; and (e) other Encumbrances arising in the Ordinary Course of Business; andprovided, for greater certainty, that Encumbrances granted or otherwise created pursuant to anySecuritization Transaction shall not constitute Permitted Encumbrances.“**Person**” shall mean any individual, corporation, partnership, joint venture, firm, association,limited liability company, joint-stock company, trust or unincorporated organization, or anyGovernmental Entity, officer, department, commission, board, bureau or instrumentality thereof.“**Personal Information**” shall mean information about an identifiable individual that is subject toPrivacy Laws.“**Portfolio**” shall mean, collectively, (i) each CSC, (ii) all CSC Documents, (iii) all of Seller’sright, title and interest in and to the Collateral related to any CSC, (iv) all right, title,interest and obligation of Seller in and to any of the CSCs or related CSC Documents, (v) eachLease, (vi) all Lease Documents, (vii) all of Seller’s right, title and interest in and to theCollateral related to any Lease, and (viii) all right, title, interest and obligation of Seller inand to any of the Leases or related Lease Documents.“**Pre-Closing Tape**” shall mean the Master Tape produced as at 11:59 p.m. EDT on July 23, 2008.“**Premier Insurance Program**” shall mean the program established by that certain Insurance Program byand between Premier Lease and Loan Services Agency, Inc. and Irwin Canada dated as of August 20,2003, as amended from time to time.“**Privacy Laws**” shall mean all applicable federal, provincial or other laws governing thecollection, use, disclosure and retention of Personal Information, including the *PersonalInformation Protection and Electronic Documents Act*(Canada).
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“**Privacy Policies**” shall mean, in respect of a Seller, all privacy, data protection and similarpolicies adopted or used by such Seller in respect of Personal Information, including anycomplaints process.“**Proceeding**” shall mean any proceeding, action, arbitration, audit, claim, complaint, hearing,investigation, inquiry, litigation or suit.“**Real Property Leases**” shall mean (i) the Lease, dated as of June 8, 2001, by and between 547495Ontario Limited and Onset Capital Corporation, as amended and extended, (ii) the Lease, dated as ofMay 31, 2004, by and between Bob Vesey Realty Inc. and Onset, as amended and extended, (iii) theLease of Office Space, dated as of July 21, 2004, by and between OMERS Realty Corporation and OnsetCapital Corporation, as amended and extended, (iv) the Agreement of Lease, dated as of April 20,1998, by and between Canadian Property Holdings Inc. and Accel Financial Group Ltd., as amended andextended and (v) the Garage Parking Lease, dated as of April 26, 2005, by and between CanadianProperty Holdings Inc. and Irwin Canada, as amended.“**Related Agreements**” shall mean the First Closing Related Agreements, the Second Closing RelatedAgreements and all documents and instruments executed and delivered in connection with any of themor with this Agreement.“**Related to the Business**” means directly or indirectly used in, arising from or otherwise relatedto the Business.“**Representatives**” means any director, officer, shareholder, employee, agent, representative, and/orAffiliate and, when used in connection with Seller, Parent or their respective Affiliates, shallinclude the Key Employees up to and including the First Closing Date.“**Second Closing Related Agreements**” shall mean, collectively (i) an Assignment and AssumptionAgreement with respect to the Assumed Second Closing Liabilities, (ii) a Bill of Sale with respectto the Second Closing Assets, (iii) the Transition Services Agreement, and (iv) all documents andinstruments executed and delivered in connection with any of them or with this Agreement at theSecond Closing.“**Second Closing Representations and Warranties**” shall mean all of the First Closing Representationsand Warranties other than those set forth in Sections 4.07, 4.14, 4.15,4.16 and 4.17; provided, however, that any determination of the truth, correctness,incorrectness or breach of any such representation and warranty shall not include any reference,whether direct or indirect, to any First Closing Asset or Assumed First Closing Liability.“**Second Effective Time**” shall mean 12:01 a.m. EDT on the Second Closing Date.“**Second Interim Period**” shall mean the period from the First Closing to the Second Closing.“**Securcor Securitization**” shall mean any and all transactions contemplated by the Master ConcurrentLease and Purchase Agreement dated as of December 13, 2004 by and among Onset Capital Corporation(now known as Irwin Canada), Onset and Securcor Trust.“**Securitization Documents**” shall mean each of the (i) Concurrent Lease Agreement, dated as ofJanuary 31, 2008, by and among Irwin Canada, Onset and ICF Trust; (ii) Master Concurrent Lease
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and Purchase Agreement, dated as of December 13, 2004, by and among Onset Capital Corporation (nowknown as Irwin Canada), Onset and Securcor Trust; (iii) Concurrent Lease Agreement, dated as ofNovember 25, 2003, by and among Onset Capital Corporation (as predecessor to Irwin Canada), Onsetand Stars Trust; and (iv) all agreements, documents or instruments contemplated by any of theforegoing.“**Securitization Transactions**” shall mean any and all transactions contemplated by any of theSecuritization Documents.“**Securitized Leases**” shall mean all lease transactions to which Seller is or was a party that aresubject to a Securitization Transaction.“**Securitized CSCs**” shall mean all conditional sales transactions to which Seller is or was a partythat are subject to a Securitization Transaction.“**Security Documents**” shall mean all the security agreements, Personal Property Security Actfinancing statements, pledge agreements, mortgages, deeds of trust, collateral assignments,guaranties, insurance loss payable endorsements, collateral assignments of life insurance policyproceeds and/or insurance policies and all other agreements, documents and instruments whichevidence or constitute security for the payment and performance of the obligations under any of theCSC Documents or the Lease Documents.“**Servicing Agreement**” shall mean that certain Portfolio Servicing Agreement pursuant to whichSeller will service the Portfolio during the Second Interim Period, such agreement to besubstantially in the form attached hereto as Exhibit E.“**Software**” shall mean all licensed software, other than Off-the-Shelf Software, in its object codeform, any related documentation, manuals, program files, data files, databases and all othermaterial related to such software owned, used or licensed by Seller in the conduct of the Business.“**Special Representations**” shall mean, collectively, the representations and warranties of Sellerand Parent set forth in Sections4.01, 4.02, 4.03(a), 4.09,4.12(c), 4.13(a), 4.14(b)(i), 4.14(b)(vii), 4.15(b)(i),4.15(b)(viii), 4.18, 4.19(b), 4.19(c), 4.20 and 4.30.“**Tax**” or “**Taxes**” shall mean all taxes, assessments, charges, dues, duties, levies and similarcharges of any kind lawfully levied, assessed or imposed by any Governmental Entity under anyapplicable Tax Law.“**Tax Authority**” means any national, federal, state, local or foreign governmental regulatory oradministration authority, agency, department or arbitral body of any country, state or politicalsubdivision thereof having responsibility for the imposition of any Tax.“**Tax Return**” shall mean and include all returns, statements, declarations, estimates, forms,reports, information returns and any other documents (including all consolidated, affiliated,combined or unitary versions of the same), including all related and supporting information, filedor required to be filed with any Governmental Entity in connection with the determination,assessment, reporting, payment, collection or administration of any Taxes.
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“**Transferred Employee**” shall mean an Employee who has accepted an offer of employment fromPurchaser.“**Transition Services Agreement**” means the transition services agreement to be entered into betweenSeller and Purchaser on the Second Closing Date, such agreement to be substantially in the formattached hereto as Exhibit F.“**Trusts**” shall mean the trusts that are a party to the Securitization Transactions, including StarsTrust, Securcor Trust and ICF Trust/Okanagan Funding Trust, as applicable.“**Unearned Income**” shall mean the unearned income booked in respect of a Lease or CSC reflected onthe Unearned Income line item of Seller’s consolidated balance sheet as of an applicable date.“**Unregistered Intellectual Property**” shall mean all right, title and interest in and to allunregistered intellectual property rights related to the Assets including: (i) all trade dress, trade-marks, trade names, design logos, brandnames, and other indications of origin and other trade-mark rightsand any labels, packaging or get up of any of the Assets, includingall goodwill associated therewith;  (ii) all unregistered copyrights, works of authorship, and industrialdesigns related to the Assets;  (iii) all moral rights and benefit of all waivers of moral rights relatedto the Assets;  (iv) all inventions, discoveries, improvements and patent rights relatedto the Assets;  (v) all trade secrets, confidential information, ideas, formulas,compositions, inventor’s notes, know-how, processes and techniques,research and development information, drawings, specifications,plans, proposals, and all other technical, business and customerinformation and customer listings related to the Assets; and  (vi) all rights of renewal, extension, reissue, division, continuation ormodification relating to any of the Proprietary IntellectualProperty.This definition of Unregistered Intellectual Property shall not include any of the ExcludedIntellectual Property Assets, Software or Off-the Shelf Software.“**U.S. GAAP**” shall mean generally accepted accounting principles in the United States in effect fromtime to time.In addition to terms defined above, the following terms shall have the respective meanings given tothem in the Sections set forth below:
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   **Defined term** **Section**Additional Portfolio Amount Section 1.05(a)(i)(B)Aggregate Minimum Loss Section 8.08(a)(ii)Agreement PreambleAssets PreambleAssumed Liabilities Section 1.03(b)Assumed First Closing Liabilities Section 1.03(a)Assumed Second Closing Liabilities Section 1.03(b)Balance Sheet Date Section 4.08Business PreambleClaimant Section 8.03Close of Business Section 1.05(f)Closing Date Net Portfolio Value Statement  Section 1.06(a)Confidential Information Section 10.01(a)Contract-Licensed Intellectual Property Section 4.19(a)Consultants Section 4.22(d)(i)Corporate Insurance Policies Section 4.26(a)Disagreement Notice Section 8.05Dispute Notice Section 1.06(c)EDT Section 2.01Election Notice Section 8.04Estimated Net Portfolio Value Section 1.05(f)Excluded Assets Section 1.02Excluded Intellectual Property Assets Section 1.02(t)Excluded Liabilities Section 1.04Expiration Date Section 10.06Final Net Portfolio Value Section 1.06(c)Financial Statements Section 4.08First Closing Section 2.01First Closing Assets Section 1.01(a)First Closing Date Section 2.01First Closing Transfer Taxes Section 11.02First Interim Period Covenants Section 6.01
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   **Defined term** **Section**Holdback Amount Section 1.05(a)(i)(C)Indemnification Cap Section 8.08(a)Indemnification Notice Section 8.03Indemnifying Party Section 8.03Independent Auditor Section 1.06(c)Intellectual Property Assets Section 4.19(b)Interim Balance Sheet Section 4.08Irwin Canada PreambleLeased Real Property Section 4.12(a)Licenses Section 4.19(a)Licensed Excluded IP Section 4.19(h)Litigation Notice Section 8.03Material Contracts Section 4.27Onset PreambleParent PreamblePolicy or Policies Section 4.26(a)Preliminary Allocation Section 1.07Proprietary Intellectual Property Section 4.19(a)Purchaser PreamblePurchase Price Section 1.05(a)Purchaser Indemnified Parties Section 8.01Purchaser Group Section 6.03Purchaser’s Final Net Portfolio Value Determination Section 1.06(a)Qualifying Indemnity Loss Section 8.08(a)(i)Restricted Business Section 10.03(a)Restricted Contract Section 1.08Restricted Period Section 10.02(a)Second Closing Section 2.01Second Closing Assets Section 1.01(b)Second Closing Date Section 2.01Second Closing Transfer Taxes Section 11.02
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   **Defined term** **Section**Second Interim Period Covenants Section 6.02Securitized Assets Section 2.02(a)(i)(B)(I)Seller PreambleSeller Indemnified Parties Section 8.02Seller Material Consents Section 2.02(b)(ii)Third Person Claim Section 8.03Transition Committee Section 11.05Undisclosed Liabilities Section 4.28**ARTICLE 13 — MISCELLANEOUS****13.01****Public Announcements**     No party to this Agreement shall make any public announcement of the transactions provided forin or contemplated by this Agreement or any of the Related Agreements unless the form and substanceof the announcement are mutually agreed upon by each party, which agreement shall not beunreasonably withheld, conditioned or delayed, or unless public disclosure is necessary to complywith Applicable Laws.**13.02****Costs and Expenses**     Whether or not the transactions contemplated by this Agreement and the Related Agreements areconsummated, except as otherwise expressly provided herein, each of the parties shall bear allexpenses and costs incurred by it in connection with this Agreement and the Related Agreements andthe transactions contemplated by any of them, including the fees and disbursements of any legalcounsel, independent accountants or any other Person or representative whose services have beenused by such party.**13.03****Utilities Proration**     Purchaser shall be solely responsible for all utility charges with respect to the Business onand after the Second Closing Date. Seller shall use Best Efforts to have meters for electricity,telephone, gas and water read as of the Close of Business on the Business Day prior to the SecondClosing Date or the opening of business on the Second Closing Date and for bills to be rendered toSeller based upon such readings. To the extent such meter readings are not used as the basis forcalculating all such charges, the electricity, telephone, gas and water utility charges shall bepro-rated as of the opening of business on the Second Closing Date between Seller and Purchaser(based upon the number of Business Days in applicable pre-Closing and post-Closing periods).**13.04****Further Assurances**     From and after the date of this Agreement, the parties shall cooperate reasonably with eachother in connection with any steps required to be taken as part of their respective obligationsunder
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this Agreement or any of the Related Agreements, and shall: (a) furnish upon request to eachother such further information; (b) execute and deliver to each other such other documents; and (c)do such other acts and things, all as the other party may reasonably request for the purpose ofcarrying out the intent of transactions contemplated by this Agreement and the Related Agreements.Without limiting the generality of the foregoing, in the event that any filings or registrationsare required with any Governmental Entity in order to complete a transfer of, or to evidence orperfect Purchaser’s ownership interest in, a particular Asset or set of Assets, which filings andregistrations cannot be completed on or prior to the First Closing or Second Closing, asapplicable, the parties shall use Best Efforts and cooperate with each other in order to completesuch filings or registrations as soon as practicable following the First Closing or Second Closing,as applicable.**13.05****Addresses for Notices, Etc.**     All notices, requests, demands and other communications that are required or may be givenpursuant to the terms of this Agreement or any of the Related Agreements shall be in writing, anddelivery shall be deemed sufficient in all respects and to have been duly given as follows: (a) onthe actual date of service if delivered personally; (b) at the time of receipt of confirmation bythe transmitting party if by facsimile transmission, provided that such transmitting was madeduring the recipient’s normal business hours on a Business Day, or if not so transmitted on aBusiness Day, as at the open of business of the recipient on the next following Business Day; (c)at the time of receipt if given by electronic mail to the e-mail addresses set forth in thisSection 13.05, provided that a party sending notice by electronic delivery shall bear theburden of authentication and of proving transmittal, receipt and time of receipt, and provided thatsuch transmittal was made during the recipient’s normal business hours on a Business Day, or if notso transmitted on a Business Day, as at the open of business of the recipient on the next followingBusiness Day; (d) on the third (3rd) Business Day after mailing if mailed by first classmail return receipt requested, postage prepaid and properly addressed as set forth in thisSection 13.05; or (e) on the next Business Day after delivery to a nationally recognizedovernight courier service during its business hours and properly addressed as set forth in thisSection:If to Seller:Irwin Commercial Finance Canada Corporation