THIRD AMENDMENT TO THE
RECEIVABLES PURCHASE AGREEMENT
AMENDMENT NO. 3 (the "Amendment"), dated as of July 14, 1999, to the Receivables
Purchase Agreement, dated as of June 24, 1998, and as amended, among FIDELITY
LEASING SPC I, INC., (the "Seller"), FIDELITY LEASING, INC. (the "Servicer"),
the Investor named herein, VARIABLE FUNDING CAPITAL CORPORATION, FIRST UNION
CAPITAL MARKETS CORP. f/k/a FIRST UNION CAPITAL MARKETS, a division of WHEAT
FIRST SECURITIES, INC. (the "Deal Agent"), FIRST UNION NATIONAL BANK (the
"Liquidity Agent"), XXXXXX TRUST AND SAVINGS BANK (the "Collateral Custodian"
and "Backup Servicer") (as amended, modified or supplemented from time to time,
the "Receivables Purchase Agreement"). Capitalized terms used and not defined
herein shall have the same meanings as defined in the Receivables Purchase
Agreement.
RECITALS
The parties listed on the signature pages hereto desire to amend the
Receivables Purchase Agreement to the extent set forth herein, and are willing
to do so subject to the terms and conditions set forth herein.
Accordingly, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable
considerations, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree to amend the Receivables Purchase Agreement as follows:
SECTION 1. Amendment.
(a) Section 1.1 of the Receivables Purchase Agreement is hereby amended
by adding the following definitions in alphabetical order thereto:
B-Note: The promissory note, dated as of July 14, 1999, made by
Fidelity Leasing SPC I, Inc. and payable to the order of First Union
National Bank.
B-Note Agreement: The Secured Subordinated Loan Agreement, dated as of
July 14, 1999 among the Seller, the Servicer and First Union National
Bank.
B-Note Interest: "Interest" as defined in the B-Note Agreement.
B-Note Lender: The "Lender" under the B-Note Agreement.
(b) Section 1.1 of the Receivables Purchase Agreement is hereby amended
by adding the following paragraph at the end of the definition "Permitted
Liens":
(c) Liens granted pursuant to the Transaction Documents and/or the
B-Note Agreement.
(c) Section 2.7 of the Receivables Purchase Agreement is hereby amended
by in its entirety to read as follows:
Section 2.7 Non-Liquidation Settlement Procedures.
The provisions of this Section 2.7 shall apply during the term
of this Agreement prior to the occurrence of the Payout Event.
(a) On each Payment Date, the Servicer shall pay to the
following Persons, from (i) the Collection Account, to the extent of
available funds, and (ii) a Servicer Advance if made or required
pursuant to Section 6.3, the following amounts in the following order
of priority:
(i) FIRST, pro rata to each Hedge Counterparty, any amounts,
including any Hedge Breakage Costs, owing that Hedge Counterparty under
its respective Hedging Agreement in respect of any Hedge
Transaction(s), for the payment thereof;
(ii) SECOND, to the Servicer, in an amount equal to any
Unreimbursed Servicer Advances, for the payment thereof;
(iii) THIRD, to the Servicer, in an amount equal to any
accrued and unpaid Servicing Fee arrearage, for the payment thereof;
(iv) FOURTH, to the Servicer, in amount equal to any accrued
and unpaid Servicing Fee, for the payment thereof;
(v) FIFTH, to the extent not paid for by Fidelity, to the
Backup Servicer, in an amount equal to any accrued and unpaid Backup
Servicing Fee, for the payment thereof;
(vi) SIXTH, to the extent not paid for by Fidelity, to the
Collateral Custodian, in an amount equal to any accrued and unpaid
Custodial Fee, for the payment thereof;
(vii) SEVENTH, to the extent not paid for by Fidelity, to the
Deal Agent for the ratable payment to each Purchaser in an amount equal
to any accrued and unpaid Commitment Fees;
(viii) EIGHTH, to the extent not paid for by Fidelity, to the
Deal Agent for the ratable payment to each Purchaser, in an amount
equal to any accrued and unpaid Program Fees and Yield for such Payment
Date;
(ix) NINTH, to the Deal Agent, in the amount of unpaid
Increased Costs and/or Taxes, for payment to the Purchasers in respect
thereof;
(x) TENTH, to the B-Note Lender, in an amount equal to the
accrued and unpaid B-Note Interest under the B-Note for such Accrual
Period;
(xi) ELEVENTH, to the extent that funds are available, any
remaining amounts may be reinvested in Eligible Contracts; provided,
however, that if the aggregate Capital exceeds the lesser of (i) the
Capital Limit; or (ii) the Purchase Limit an amount equal to such
excess shall be paid to the Deal Agent to pay down Capital outstanding;
(xii) TWELFTH, to the extent funds are available to satisfy
any unpaid Indemnified Amounts, amounts required to be paid by the
Seller pursuant to the indemnification provisions of Section 8.1 and
any other amounts due hereunder;
(xiii) THIRTEENTH, any remaining amounts shall be used to pay
amounts due and owing in respect of the B-Note to the extent not paid
pursuant to clause NINTH above; and
(xiv) FOURTEENTH, any remaining amount shall be distributed to
the Seller.
(b) Notwithstanding anything to the contrary contained in this
Section 2.7 or any other provision in this Agreement, if on any
Business Day prior to the Payout Event the aggregate outstanding amount
of Capital shall exceed the lesser of (i) the Purchase Limit or (ii)
the Capital Limit, then the Seller shall remit to the Deal Agent, prior
to any reinvestment of funds as set forth in item ELEVENTH of Section
2.7(a) and in any event no later than the close of business of the Deal
Agent on the next succeeding Business Day, a payment (to be applied by
the Deal Agent to outstanding Capital allocated to Monthly Periods
selected by the Deal Agent, in its reasonable discretion) in such
amount as may be necessary to reduce outstanding Capital to an amount
less than or equal to the lesser of (i) the Purchase Limit or (ii) the
Capital Limit.
(d) Section 2.8 of the Receivables Purchase Agreement is hereby amended
by in its entirety to read as follows:
Section 2.8 Settlement Procedures Following a Termination Date.
The provisions of this Section 2.8 shall apply during the term of
this Agreement after the occurrence of a Payout Event provided that no
Restricting Event has occurred.
(a) [reserved].
(b) On each Payment Date, the Servicer shall pay to the following
Persons, from (i) the Collection Account, to the extent available funds
and (ii) a Servicer Advance if made or required pursuant to Section
6.3, the following amounts in the following order of priority:
(i) FIRST, pro rata to each Hedge Counterparty, any amounts,
including any Hedge Breakage Costs, owing that Hedge Counterparty under
its respective Hedging Agreement in respect of any Hedge
Transaction(s), for the payment thereof;
(ii) SECOND, to the Servicer, in an amount equal to any
Unreimbursed Servicer Advances, for the payment thereof;
(iii) THIRD, to the Servicer, in an amount equal to any accrued and
unpaid Servicing Fee arrearage, for the payment thereof;
(iv) FOURTH, to the Servicer, in an amount equal to any accrued and
unpaid Servicing Fee, for the payment thereof;
(v) FIFTH, to the extent not paid for by Fidelity, to the Backup
Servicer, in an amount equal to any accrued and unpaid Backup Servicing
Fee, for the payment thereof;
(vi) SIXTH, to the extent not paid for by Fidelity, to the
Collateral Custodian, in an amount equal to any accrued and unpaid
Custodial Fee, for the payment thereof;
(vii) SEVENTH, to the extent not paid for by Fidelity, to the Deal
Agent for the ratable payment to each Purchaser in an amount equal to
any accrued and unpaid Commitment Fees;
(viii) EIGHTH, to the extent not paid for by Fidelity, to the Deal
Agent, in an amount equal to any accrued and unpaid Program Fees and
Yield for such Payment Date;
(ix) NINTH, to the Deal Agent, in the amount of unpaid
Increased Costs and/or Taxes, for payment to the Purchasers in respect
thereof;
(x) TENTH, to the B-Note Lender, in an amount equal to the
accrued and unpaid B-Note Interest under the B-Note for such Accrual
Period;
(xi) ELEVENTH, to the Deal Agent for payment to the Purchasers
in an amount necessary to reduce the aggregate Capital to an amount
equal to the product of (i) the Asset Interest and (ii) the ADCB as of
the current Determination Date;
(xii) TWELFTH, to the extent funds are available to satisfy
any unpaid Indemnified Amounts required to be paid by the Seller
pursuant to the indemnification provisions of Section 8.1, and any
other amounts due hereunder;
(xiii) THIRTEENTH, any remaining amounts shall be used to pay
amounts due and owing in respect of the B-Note to the extent not paid
pursuant to clause NINTH above; and
(xii) FOURTEENTH, any remaining amount shall be distributed to
the Seller, provided, however, that if the Overcollateralization is
less than or equal to the product of (i) 0.05 and (ii) the Purchase
Limit as of the day immediately preceding the occurrence of a
Termination Date, the amount which would have been distributed to the
Seller will be distributed to the Purchaser in reduction, to zero, of
the aggregate Capital.
(c) If at any time on or after the occurrence of a Payout
Event, the Deal Agent or the Seller determines that as of the close of
business on the day immediately preceding the Termination Date the
outstanding amount of Capital exceeded the lesser of (i) the Purchase
Limit, or (ii) the Capital Limit, then the Seller shall immediately
remit to the Deal Agent, for the benefit of the Purchasers, a payment
(to be applied by the Deal Agent to outstanding Capital allocated to
Monthly Periods selected by the Deal Agent, in its reasonable
discretion) in such amount as may be necessary to reduce the amount of
Capital to the lesser of (i) the Purchase Limit, or (ii) the Capital
Limit as of the close of business on the date immediately preceding the
Payout Event.
(e) Section 2.9 of the Receivables Purchase Agreement is hereby
amended by in its entirety to read as follows:
Section 2.9 Settlement Procedures Following a Restricting Event.
The provisions of this Section 2.9 shall apply during the term
of this Agreement after the occurrence of a Restricting Event.
(a) [reserved].
(b) On each Payment Date, the Servicer shall pay to the
following Persons, from (i) the Collection Account, to the extent of
available funds and (ii) a Servicer Advance if made or required
pursuant to Section 6.3, the following amounts in the following order
of priority:
(i) FIRST, pro rata to each Hedge Counterparty, any amounts,
including any Hedge Breakage Costs, owing that Hedge Counterparty under
its respective Hedging Agreement in respect of any Hedge
Transaction(s), for the payment thereof;
(ii) SECOND, to the Servicer, in an amount equal to any
Unreimbursed Servicer Advances, for the payment thereof;
(iii) THIRD, to the Servicer, in an amount equal to any
accrued and unpaid Servicing Fee arrearage, for the payment thereof;
(iv) FOURTH, to the Servicer, in an amount equal to any
accrued and unpaid Servicing Fee, for the payment thereof;
(v) FIFTH, to the extent not paid for by Fidelity, to the
Backup Servicer, in an amount equal to any accrued and unpaid Backup
Servicing Fee, for the payment thereof;
(vi) SIXTH, to the extent not paid for by Fidelity, to the
Collateral Custodian, in an amount equal to any accrued and unpaid
Custodial Fee, for the payment thereof;
(vii) SEVENTH, to the extent not paid for by Fidelity, to the
Deal Agent for the ratable payment to each Purchaser in an amount equal
to any accrued and unpaid Commitment Fees;
(viii) EIGHTH, to the extent not paid for by Fidelity, to the
Deal Agent, for the ratable payment to each Purchaser in an amount
equal to any accrued and unpaid Program Fees and Yield for such Payment
Date;
(ix) NINTH, to the Deal Agent, in the amount of unpaid
Increased Costs and/or Taxes, for payment to the Purchasers in respect
thereof;
(x) TENTH, to the B-Note Lender, in an amount equal to the
accrued and unpaid B-Note Interest under the B-Note for such Accrual
Period;
(xi) ELEVENTH, to the extent that funds are available, to the
Deal Agent for the Purchasers in reduction of aggregate Capital;
(xii) TWELFTH, to the extent funds are available to satisfy
any unpaid Indemnified Amounts, amounts required to be paid by the
Seller pursuant to the indemnification provisions of Section 8.1, and
other amounts due hereunder; and
(xiii) THIRTEENTH, upon payment in full of the Advances
Outstanding and the payment in full of the Aggregate Unpaids, any
remaining amount shall be used to pay amounts due and owing in respect
of the B-Note to the extent not paid pursuant to clause NINTH above;
and
(xiv) FOURTEENTH, upon the reduction of the Capital to zero
and the payment in full of the Aggregate Unpaids, any remaining amount
shall be distributed to the Seller.
(c) If at any time on or after the Restricting Event, the Deal
Agent or the Seller determines that as of the close of business on the
day immediately preceding Termination Date the outstanding amount of
Capital exceeded the lesser of (i) the Purchase Limit, or (ii) the
Capital Limit, then the Seller shall immediately remit to the Deal
Agent, for the benefit of the Purchasers, a payment (to be applied by
the Deal Agent to outstanding Capital allocated to Monthly Periods
selected by the Deal Agent, in its reasonable discretion) in such
amount as may be necessary to reduce the amount of Capital to the
lesser of (i) the Purchase Limit, or (ii) the Capital Limit as of the
close of business on the date immediately preceding the Restricting
Event.
(f) Section 5.2(e) of the Receivables Purchase Agreement is hereby
amended by inserting the words ", the B-Note" after the words "this Agreement"
where they appear in the last line therein.
(g) Section 5.2(f) of the Receivables Purchase Agreement is hereby
amended in its entirety to read as follows:
(f) Indebtedness. The Seller shall not create, incur, assume
or suffer to exist any Indebtedness or other liability whatsoever,
except (i) obligations incurred under this Agreement, the B-Note or
under any Hedging Agreement required by Section 5.4(a), or (ii)
liabilities incident to the maintenance of its corporate existence in
good standing.
SECTION 2. Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, the Agreement shall remain in full force and
effect. All references to the Agreement shall be deemed to mean the Agreement,
as modified hereby. This Amendment shall not constitute a novation of the
Agreement, but shall constitute an amendment thereof. The parties hereto agree
to be bound by the terms and conditions of the Agreement, as amended by this
Amendment, as though such terms and conditions were set forth herein.
SECTION 3. Miscellaneous.
(a) This Amendment may be executed in any number of
counterparts, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument but all
of which together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Amendment by facsimile shall be
effective as delivery of a manually executed counterpart.
(b) The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction of any of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified
except as provided in the Agreement.
(d) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE SELLER: FIDELITY LEASING SPC I, INC.
By ___________________________________
Title:
THE SERVICER: FIDELITY LEASING, INC.
By ___________________________________
Title:
THE INVESTORS: FIRST UNION NATIONAL BANK
By ___________________________________
Title:
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention:
Facsimile No.:
Confirmation No:
VFCC: VARIABLE FUNDING CAPITAL
CORPORATION
By First Union Capital Markets Corp.,
as attorney-in-fact
By ___________________________________
Title:
Variable Funding Capital Corporation
c/o First Union Capital Markets Corp.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Attention: Conduit Administration
Facsimile No.:
Confirmation No.:
With a copy to:
Lord Securities Corp.
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE DEAL AGENT: FIRST UNION CAPITAL MARKETS CORP.
By ________________________________
Title:
First Union Capital Markets Corp.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administration
Facsimile No.:
Telephone No.:
THE LIQUIDITY AGENT: FIRST UNION NATIONAL BANK
By ________________________________
Title:
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention:
Facsimile No.:
Telephone No.:
THE COLLATERAL CUSTODIAN: XXXXXX TRUST AND SAVINGS BANK,
as Collateral Custodian
By ______________________________________
Title:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administrator
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
THE BACKUP SERVICER: XXXXXX TRUST AND SAVINGS BANK,
as Backup Servicer
By ________________________________________
Title:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administrator
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
