PURCHASE AND SALE AGREEMENT
Dated as of February 4, 1999
Among
FIDELITY LEASING SPE III, LLC
as the Buyer
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FIDELITY LEASING, INC.
as the Servicer
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and
JLA CREDIT CORPORATION
as the Originator
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TABLE OF CONTENTS
ARTICLE II - GENERAL..............................................................................................1
SECTION 1.1. Certain Defined Terms......................................................................1
SECTION 1.2. Other Definitional Provisions..............................................................1
ARTICLE II - SALE AND CONVEYANCE..................................................................................2
SECTION 2.1. Sale.......................................................................................2
SECTION 2.2. Provisions Regarding Vehicles..............................................................3
ARTICLE III - PURCHASE PRICE AND PAYMENT; MONTHLY REPORT..........................................................4
SECTION 3.1. Purchase Price.............................................................................4
SECTION 3.2. Payment of Purchase Price..................................................................4
ARTICLE IV - REPRESENTATIONS AND WARRANTIES.......................................................................4
SECTION 4.1. Representations and Warranties of the Originator and Servicer..............................4
SECTION 4.2. Originator's Representations and Warranties Regarding the Purchase Agreement and the
Contracts..................................................................................8
SECTION 4.3. Representations and Warranties of the Buyer................................................9
ARTICLE V - COVENANTS............................................................................................10
SECTION 5.1. Covenants of the Originator...............................................................10
ARTICLE VI - REPURCHASE OBLIGATION...............................................................................12
SECTION 6.1. Retransfer of Ineligible Contracts........................................................12
SECTION 6.2. Retransfer of Purchased Assets............................................................13
SECTION 6.3. Adjustments...............................................................................13
SECTION 6.4. Substitution of Contracts.................................................................14
ARTICLE VII - CONDITIONS PRECEDENT...............................................................................15
SECTION 7.1. Conditions to the Buyer's Obligations Regarding Contracts.................................15
ARTICLE VIII - TERM AND TERMINATION..............................................................................15
SECTION 8.1. Term and Termination......................................................................16
ARTICLE IX - MISCELLANEOUS PROVISIONS............................................................................16
SECTION 9.1. Amendment.................................................................................16
SECTION 9.2. Governing Law.............................................................................16
SECTION 9.3. Notices...................................................................................16
SECTION 9.4. Severability of Provisions................................................................17
SECTION 9.5. Assignment................................................................................17
SECTION 9.6. Further Assurances........................................................................18
SECTION 9.7. No Waiver; Cumulative Remedies............................................................18
SECTION 9.8. Counterparts..............................................................................19
SECTION 9.9. Binding Effect; Third-Party Beneficiaries.................................................19
SECTION 9.10. Merger and Integration....................................................................19
SECTION 9.11. Headings..................................................................................19
SECTION 9.12. Schedules and Exhibits....................................................................19
SECTION 9.13. No Proceedings............................................................................19
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SECTION 9.14. Merger or Consolidation of, or Assumption of the Obligations of, the Originator...........20
SECTION 9.15. Costs, Expenses and Taxes.................................................................20
SECTION 9.16. Recourse Against Certain Parties..........................................................21
Schedule I List of Contracts
Schedule II Tradenames, Fictitious Names and "Doing Business As" Names
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PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (the "Purchase Agreement") is
made as of February 4, 1999, by and among FIDELITY LEASING SPE III, LLC, a
Delaware limited liability company (the "Buyer"), FIDELITY LEASING, INC., a
Pennsylvania corporation (the "Servicer"), and JLA CREDIT CORPORATION, a
Delaware corporation (the "Originator").
W I T N E S S E T H :
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WHEREAS, the Buyer desires to purchase from the Originator and
the Originator desires to sell to the Buyer certain Contracts originated or
purchased by the Originator in its normal course of business, together with,
among other things, the related rights of payment thereunder and the interest of
the Originator in the related Equipment and other interests securing the
payments to be made under such Contracts; and
WHEREAS, the Servicer wishes to service such Contracts and, as
an inducement to the Buyer, has agreed to enter into this Purchase Agreement.
NOW, THEREFORE, it is hereby agreed by and between the Buyer,
the Servicer, and the Originator as follows:
ARTICLE I
GENERAL
Section 1.1. Certain Defined Terms. Certain capitalized terms
used throughout this Purchase Agreement are defined above or in this Section
1.1. In addition, capitalized terms used but not defined herein have the
meanings given to such terms in the Receivables Credit Agreement, dated as of
the date hereof among the Buyer, the Servicer, the Investors, VFCC, FCMC, First
Union and Xxxxxx, as such Receivables Credit Agreement may be amended,
supplemented or modified from time to time.
"Purchase" Any purchase made hereunder pursuant to Section
2.1 hereof.
"Purchase Price" As defined in Section 3.1 hereof.
"Purchased Assets" The interests and property purchased
pursuant to Section 2.1(a).
"Sale Papers" As defined in Section 4.1(a) hereof.
Section 1.2 Other Definitional Provisions.
The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Purchase Agreement or any Sale Paper shall
refer to this Purchase Agreement as a whole and not to any particular provision
of this Purchase Agreement. Section, Subsection and Schedule references
contained in this Purchase Agreement are references to Sections, Subsections and
Schedules in or to this Purchase Agreement unless otherwise specified. In the
event that any term or provision contained herein shall conflict with or be
inconsistent with any term or provision contained in the Receivables Credit
Agreement, the terms and provisions contained herein shall govern, with respect
to this Purchase Agreement.
ARTICLE II
SALE AND CONVEYANCE
Section 2.1. Sale.
(a) As of the Closing Date, the Originator hereby sells,
transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer
hereby purchases from the Originator, without recourse, all right, title and
interest of the Originator in, to and under the following property, whether now
existing or hereafter created or acquired (all such assets, the "Purchased
Assets"):
(i) the Contracts that are owned by the Originator on the
Closing Date and that are listed on the List of Contracts, together
with all Collections and all monies due or to become due in payment of
such Contracts on and after the Cut Off Date, including but not limited
to any Prepayment Amounts, any payments in respect of a Casualty Loss
or early termination, and any Recoveries received with respect thereto,
but excluding any Scheduled Payments due prior to the Cut Off Date and
any Excluded Amounts;
(ii) the Equipment related to such Contracts including all
proceeds from any sale or other disposition of such Equipment;
(iii) the Contract Files;
(iv) all payments made or to be made in the future with
respect to such Contracts or the Obligor thereunder and under any
guarantee or similar credit enhancement with respect to such Contracts;
(v) all Insurance Proceeds with respect to each such Contract;
and
(vi) all income and proceeds of the foregoing.
The foregoing sale, transfer, assignment, set over and conveyance does not
constitute and is not intended to result in a creation or an assumption by the
Buyer of any obligation of the Originator or any other Person in connection with
the Contracts or under any agreement or instrument relating thereto including,
without limitation, any obligation to any Obligors.
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(b) In connection with the sale of the Purchased Assets, the
Originator agrees (i) to record and file, at its own expense, any financing
statements (and continuation statements with respect to such financing
statements when applicable) with respect to the Purchased Assets, meeting the
requirements of applicable state law in such manner and in such jurisdictions as
are necessary to perfect, and maintain the perfection of, the sale of the
Purchased Assets from the Originator to the Buyer on and after the Closing Date,
(ii) that such financing statements shall name the Originator, as seller, and
the Buyer, as purchaser, of the Purchased Assets, and (iii) to deliver a
file-stamped copy of such financing statements or other evidence of such filings
(excluding continuation statements, which shall be delivered as filed) to the
Buyer on or prior to the Closing Date.
(c) In connection with the sale of the Purchased Assets, the
Originator further agrees that it will, at its own expense, indicate clearly and
unambiguously in its computer files, on or prior to the Closing Date, that such
Contracts have been sold to the Buyer pursuant to this Purchase Agreement. The
Originator further agrees to deliver to the Buyer on the Closing Date, a
computer file or microfiche list containing a true and complete list of all
Contracts, identified by account number and Outstanding Balance as of the Cut
Off Date. Such file or list shall be marked as Schedule I to the Receivables
Credit Agreement and is hereby incorporated into and made a part of this
Purchase Agreement.
(d) It is the intention of the parties hereto that the
conveyance of the Contracts and the other Purchased Assets by the Originator to
the Buyer as provided in this Section 2.1 be, and be construed as, an absolute
sale, without recourse, of the Contracts and the other Purchased Assets by the
Originator to the Buyer. Furthermore, it is not intended that such conveyance be
deemed a pledge of the Contracts and the other Purchased Assets by the
Originator to the Buyer to secure a debt or other obligation of the Originator.
If, however, notwithstanding the intention of the parties, the conveyance
provided for in this Section 2.1 is determined to be a transfer for security,
then this Agreement shall also be deemed to be a "security agreement" within the
meaning of Article 9 of the UCC, and the Originator hereby Grants to the Buyer a
"security interest" within the meaning of Article 9 of the UCC in all of the
Originator's right, title and interest in and to the Contracts and the other
Purchased Assets, now existing and hereafter created, in an amount equal to the
aggregate Purchase Price and each of the Originator's other payment obligations
under this Purchase Agreement.
SECTION 2.2. Provisions Regarding Vehicles.
In the event a Contract related to a Vehicle becomes a
Defaulted Contract, the Originator, shall, at the request of the Servicer,
transfer the title to the related Vehicle as instructed by the Servicer. In
connection therewith, the Buyer will pay to the Originator any amounts realized
upon liquidation of the Vehicle (net of expenses of liquidation, Servicer
Advances with respect to such Contract, and an amount equal to Interest on the
discounted value of such Contract for any period during which payments were not
made and Servicer Advances were not made) which exceeds the Discounted Contract
Balance of the related Defaulted Contract.
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ARTICLE III
PURCHASE PRICE AND PAYMENT; MONTHLY REPORT
SECTION 3.1. Purchase Price.
The purchase price for each Contract sold to the Buyer by the
Originator under this Agreement (the "Purchase Price") shall be a dollar amount
equal to the Discounted Contract Balance determined as of the Cut Off Date.
SECTION 3.2. Payment of Purchase Price.
(a) The Purchase Price for each Contract existing on the
Closing Date shall be paid or provided for on the Closing Date (i) by payment of
$142,997,336.98 in immediately available funds, and (ii) the remainder shall be
deemed paid through a contribution to capital of the Buyer by the Originator in
an amount equal to such remainder.
(b) Unless otherwise specified herein, all payments of the
Purchase Price of any Contract sold hereunder shall be made in the bank account
designated in writing by the Originator to the Purchaser.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of the
Originator and Servicer.
The Originator and the Servicer hereby represent and warrant
to the Buyer, as of the Closing Date, that:
(a) Organization and Good Standing. The Originator is a
corporation duly organized and validly existing in good standing under the laws
of the State of Delaware, and has full corporate power, authority and legal
right to own or lease its properties and conduct its business as such properties
are presently owned or leased and as such business is presently conducted and to
execute, deliver and perform its obligations under this Purchase Agreement and
each other document or instrument to be delivered by the Originator hereunder
(collectively, the "Sale Papers").
(b) Due Qualification. The Originator is duly qualified to do
business and is in good standing as a corporation, and has obtained all
necessary licenses and approvals, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would have a material adverse
effect on its ability to perform its obligations hereunder or under the Sale
Papers.
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(c) Due Authorization. The execution and delivery of this
Purchase Agreement and each of the Sale Papers, and the consummation of the
transactions provided for herein and therein have been duly authorized by the
Originator by all necessary corporate action on the part of the Originator.
(d) No Conflict. The execution and delivery of this Purchase
Agreement and each of the Sale Papers, the performance of the transactions
contemplated hereby and thereby, and the fulfillment of the terms hereof and
thereof will not conflict with or result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any material indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Originator is a party
or by which it or any of its property is bound.
(e) No Violation. The execution and delivery of this Purchase
Agreement and each of the Sale Papers, the performance of the transactions
contemplated hereby and thereby, and the fulfillment of the terms hereof and
thereof (including, without limitation, the sale of Purchased Assets by the
Originator or remittance of Collections in accordance with the provisions of
this Purchase Agreement), will not conflict with or violate, in any material
respect, any Requirements of Law applicable to the Originator.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Originator or the Servicer, threatened
against the Originator before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality (i) asserting the invalidity
of this Purchase Agreement or any of the Sale Papers, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this Purchase
Agreement or any of the Sale Papers, or (iii) seeking any determination or
ruling that could reasonably be expected to be adversely determined, and if
adversely determined, would materially and adversely affect the performance by
the Originator of its obligations under this Purchase Agreement or any of the
Sale Papers.
(g) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental Authority
required in connection with the execution and delivery by the Originator of this
Purchase Agreement and the Sale Papers, the performance of the transactions
contemplated by this Purchase Agreement and the Sale Papers, and the fulfillment
of or terms hereof and thereof, have been obtained.
(h) Solvency. The Originator is Solvent and transactions
contemplated by this Agreement and the Sale Papers do not and will not impair
such Solvent state of the Originator.
(i) Bulk Sales. The execution, delivery and performance of
this Purchase Agreement do not require compliance with any "bulk sales" law by
the Originator.
(j) Other Names. The legal name of the Originator is as set
forth in this Purchase Agreement, and within the preceding five years the
Originator has not used, and the
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Originator currently does not use, any tradenames, fictitious names, assumed
names or "doing business as" names other than those set forth on Schedule II
hereto.
(k) Selection Procedures; Credit and Collection Policy. No
procedures believed by the Originator to be materially adverse to the interests
of the Buyer were utilized by the Originator in identifying and/or selecting the
Contracts to be sold, assigned, transferred, set-over and otherwise conveyed
hereunder. In addition, each Contract shall have been underwritten in accordance
with and satisfy the standards of any Credit and Collection Policy which has
been established by the Originator and is then in effect.
(l) Taxes. The Originator has filed or caused to be filed all
Tax returns which, to its knowledge, are required to be filed. The Originator
has paid or made adequate provisions for the payment of all Taxes and all
assessments made against it or any of its property (other than any amount of Tax
the validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in accordance with GAAP have been
provided on the books of the Borrower), and no Tax lien has been filed and, to
the Originator's knowledge, no claim is being asserted, with respect to any such
Tax, fee or other charge.
(m) Agreements Enforceable. This Purchase Agreement and the
Sale Papers constitute the legal, valid and binding obligation of the Originator
enforceable against the Originator in accordance with their respective terms,
except as such enforceability may be limited by Insolvency Laws and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(n) Exchange Act Compliance. The proceeds of the sale of any
Purchased Assets will not be used by the Originator to acquire any security in
any transaction which is subject to Section 13 or 14 of the Securities Exchange
Act of 1934, as amended.
(o) No Liens. Each Purchased Asset, together with the Contract
related thereto, shall, at all times, be owned by the Originator free and clear
of any Lien except as provided herein, and upon the sale, transfer or assignment
hereunder, the Buyer shall acquire (subject to recordation where necessary) a
valid and perfected first priority undivided ownership interest in each
Purchased Asset then existing or thereafter arising and Collections with respect
thereto, free and clear of any Adverse Claim except as provided hereunder. No
effective financing statement or other instrument similar in effect covering any
Purchased Asset or Collections with respect thereto shall at any time be on file
in any recording office except such as may be filed in favor of the Buyer
relating to this Purchase Agreement and except for those related solely to the
Subordinated Note.
(p) Reports Accurate. No report (if prepared by the
Originator, or to the extent that information contained therein is supplied by
the Originator), information, exhibit, financial statement, document, book,
record or report furnished or to be furnished by the Originator to the Buyer in
connection with this Purchase Agreement is or will be inaccurate in any material
respect as of the date it is or shall be dated or (except as otherwise disclosed
to the Buyer at such time) as of the date so furnished, and no such document
contains or will
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contain any material misstatement of fact or omits or shall omit to state a
material fact or any fact necessary to make the statements contained therein not
misleading.
(q) Location of Offices. The principal place of business and
chief executive office of the Originator and the office where the Originator
keeps all the Records are located at the address of the Originator listed in
Section 9.3 herein.
(r) Lock-Boxes. The names and addresses of all the Lock-Box
Banks, together with the account numbers of the Lock-Box Accounts of the
Originator at such Lock-Box Banks, and the names, addresses and account numbers
of all accounts to which Collections of the Purchased Assets have been sent, are
specified in Schedule II of the Receivables Credit Agreement (which shall be
deemed to be amended in respect of terminating or adding any Lock-Box Account or
Lock-Box Bank upon satisfaction of the notice and other requirements specified
in respect thereof).
(s) Value Given. (i) The Buyer shall have given reasonably
equivalent value to the Originator in consideration for the transfer to the
Buyer of the Purchased Assets under this Purchase Agreement, (ii) no such
transfer shall have been made for or on account of an antecedent debt owed by
the Originator to the Buyer, (iii) no such transfer is or may be voidable or
subject to avoidance under any section of the Bankruptcy Code.
(t) Accounting. The Originator accounts for the transfers by
it to the Buyer of interests in Assets and Collections under this Purchase
Agreement as sales of such Purchased Assets in its books, records and financial
statements, in each case consistent with GAAP and with the requirements set
forth herein.
(u) Separate Entity. The Originator is operated as an entity
with assets and liabilities distinct from those of the Servicer, the Buyer and
any Affiliates thereof, and the Buyer hereby acknowledges that the Deal Agent
and the Secured Parties under the Receivables Credit Agreement are entering into
the transactions contemplated by the Receivables Credit Agreement in reliance
upon the Originator's identity as a separate legal entity from the Buyer and
from each such other Affiliate of the Buyer.
(v) Security Interest. The Originator has granted a security
interest (as defined in the UCC) to the Buyer, in the Purchased Assets and
Collections, which is enforceable in accordance with applicable law upon
execution and delivery of this Agreement. Upon the filing of UCC-1 financing
statements naming the Buyer as secured party and the Originator as debtor, the
Buyer shall have a first priority perfected security interest in the Purchased
Assets and Collections (except for any Permitted Liens). All filings (including,
without limitation, such UCC filings) as are necessary in any jurisdiction to
perfect the interest of the Buyer in the Purchased Assets and Collections have
been made.
(w) Investment Company Act. The Originator is not, and is not
controlled by, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
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(x) Confirmation from the Originator. The Originator agrees
that, for a period of one year and one day after the Aggregate Unpaids have been
paid in full, the Originator will not cause the Buyer to file a voluntary
petition or institute, cause to be instituted or join in any insolvency petition
or proceeding under the Bankruptcy Code or any other Insolvency Laws. Each of
the Buyer and the Originator is aware that in light of the circumstances
described in the preceding sentence and other relevant facts, the filing of a
voluntary petition under the Bankruptcy Code for the purpose of making any
Purchased Asset or any other assets of the Buyer available to satisfy claims of
the creditors of the Originator would not result in making such assets available
to satisfy such creditors under the Bankruptcy Code.
(y) Accuracy of Representations and Warranties. Each
representation or warranty by the Originator and Servicer contained herein or in
any certificate or other document furnished by the Originator and Servicer
pursuant hereto or in connection herewith is true and correct in all material
respects.
The representations and warranties set forth in this Section 4.1 shall survive
the sale, transfer and assignment of the Purchased Assets to the Buyer. Upon
discovery by the Originator or the Buyer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice thereof to the other and to the Deal Agent immediately
upon obtaining knowledge of such breach.
SECTION 4.2. Originator's Representations and Warranties
Regarding the Purchase Agreement and the Contracts.
The Originator hereby represents and warrants to the Buyer, as
of the Closing Date:
(a) Binding Obligation; Valid Transfer and Security Interest.
(i) This Purchase Agreement and each of the Sale Papers
constitutes a legal, valid and binding obligation of the Originator,
enforceable against the Originator in accordance with its terms, except
as such enforceability may be limited by Insolvency Laws and except as
such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(ii) This Purchase Agreement constitutes a valid transfer
to the Buyer of all right, title and interest of the Originator in, to
and under the Purchased Assets, and such transfer will be free and
clear of any Lien of any Person claiming through or under the
Originator or its Affiliates, except for Permitted Liens. Upon the
filing of the financing statements described in Section 4.1(v), the
Buyer shall have a first priority perfected security interest in such
property, subject only to Permitted Liens. Neither the Originator nor
any Person claiming through or under the Originator shall have any
claim to or interest in the Collections.
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(b) Eligibility of Contracts. As of the Closing Date, (i) the
Contract List and the computer file or microfiche or written list delivered in
connection therewith is an accurate and complete listing in all material
respects of all the Contracts transferred hereunder, and the information
contained therein with respect to the identity of such Contracts and the amounts
owing thereunder is true and correct in all material respects as of the Closing
Date, (ii) each such Contract is an Eligible Contract, (iii) each such Contract
and the Equipment or Vehicle is free and clear of any Lien of any Person (other
than Permitted Liens) and in compliance, in all material respects, with all
Requirements of Law applicable to the Originator, and (iv) with respect to each
such Contract, all material consents, licenses, approvals or authorizations of
or registrations or declarations with any Governmental Authority required to be
obtained, effected or given by the Originator in connection with the transfer of
such Contract and the related Equipment or Vehicle to the Buyer have been duly
obtained, effected or given and are in full force and effect.
(c) Notice of Breach. The representations and warranties set
forth in this Section 4.2 shall survive the transfer and assignment of the
security interest in the Contracts to the Buyer. Upon discovery by the
Originator or the Buyer of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give written notice thereof
to the other and to the Deal Agent under the Receivables Credit Agreement
immediately upon obtaining knowledge of such breach.
SECTION 4.3. Representations and Warranties of the Buyer.
The Buyer hereby represents and warrants to the Originator, as
of the Closing Date, that:
(a) Organization and Good Standing. The Buyer is a limited
liability company duly organized and validly existing in good standing under the
laws of the State of Delaware, and has full limited liability company power,
authority and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Purchase Agreement and
each of the Sale Papers.
(b) Due Qualification. The Buyer is duly qualified to do
business and is in good standing as a foreign limited liability company (or is
exempt from such requirements), and has obtained or will obtain all necessary
licenses and approvals, in each jurisdiction in which failure to so qualify or
to obtain such licenses and approvals would have a material adverse effect on
its ability to perform its obligations hereunder or under the Sale Papers.
(c) Due Authorization. The execution and delivery of this
Purchase Agreement and each of the Sale Papers and the consummation of the
transactions provided for herein or therein have been duly authorized by the
Buyer by all necessary limited liability company action on the part of the
Buyer.
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(d) No Conflicts. The execution and delivery of this Purchase
Agreement and each of the Sale Papers, the performance of the transactions
contemplated hereby or thereby and the fulfillment of the terms hereof and
thereof will not conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any material indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Buyer is a party or by
which it or any of its property is bound.
(e) No Violation. The execution and delivery of this Purchase
Agreement and each of the Sale Papers, the performance of the transactions
contemplated hereby and thereby, and the fulfillment of the terms hereof and
thereof (including, without limitation, the purchase of Purchased Assets by the
Buyer in accordance with the provisions of this Purchase Agreement) will not
conflict with or violate, in any material respect, any Requirements of Law
applicable to the Buyer.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Buyer, threatened against the Buyer,
before any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Purchase
Agreement or any of the Sale Papers, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Purchase Agreement or any of the
Sale Papers, or (iii) seeking any determination or ruling that could reasonably
be expected to be adversely determined, and if adversely determined, would
materially and adversely affect the performance by the Buyer of its obligations
under this Purchase Agreement or any of the Sale Papers.
ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Originator.
The Originator hereby covenants with respect to each Contract,
that:
(a) Compliance with Laws; Preservation of Corporate Existence.
The Originator will comply in all material respects with all applicable laws,
rules, regulations and orders and preserve and maintain its corporate existence,
rights, franchises, qualifications and privileges.
(b) Contracts Not to be Evidenced by Promissory Notes. The
Originator will take no action to cause any Contract which is not, as of the
Closing Date, evidenced by an Instrument, to be so evidenced except in
connection with the enforcement or collection of such Contract.
(c) Security Interests. Except for the transfers hereunder,
the Originator will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or
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suffer to exist any Lien on any Contract transferred hereunder or related
Equipment or Vehicle, whether now existing or hereafter transferred hereunder,
or any interest therein, and Originator will not sell, pledge, assign or suffer
to exist any Lien on its interest, if any, hereunder. The Originator will
promptly notify the Buyer of the existence of any Lien on any Contract
transferred hereunder or related Equipment or Vehicle; and the Originator shall
defend the right, title and interest of the Buyer in, to and under the Contracts
transferred hereunder and the related Equipment, against all claims of third
parties; provided, however, that nothing in this Section 5.1(c) shall prevent or
be deemed to prohibit the Originator from suffering to exist Permitted Liens
upon any of the Contracts transferred hereunder or any related Equipment or
Vehicle.
(d) Delivery of Collections. The Originator agrees to pay to
the Buyer promptly (but in no event later than two Business Days after receipt)
all Collections received by the Originator in respect of the Contracts
transferred hereunder.
(e) Compliance with Law. The Originator hereby agrees to
comply in all material respects with all Requirements of Law applicable to the
Originator, the Contracts, the Equipment, and the Vehicles.
(f) Activities of the Originator. The Originator shall not
engage in any business or activity of any kind with the Buyer, or enter into any
transaction or indenture, mortgage, instrument, agreement, contract, lease or
other undertaking with the Buyer, which is not directly related to the
transactions contemplated and authorized by this Purchase Agreement, the
Receivables Credit Agreement, and the organizational documents of the Buyer.
(g) Guarantees. The Originator shall not become or remain
liable, directly or contingently, in connection with any Indebtedness or other
liability of the Buyer, whether by guarantee, endorsement (other than
endorsements of negotiable instruments for deposit or collection in the ordinary
course of business), agreement to purchase or repurchase, agreement to supply or
advance funds, or otherwise.
(h) Location of Originator, Records; Instruments. The
Originator (i) shall not move outside the State of California, the location of
its chief executive office, without 30 days' prior written notice to the Buyer
and the Deal Agent, (ii) shall not move the location of the Contract Files from
the locations thereof on the Closing Date, without 30 days' prior written notice
to the Buyer and the Deal Agent, and (iii) will promptly take all actions
required of each relevant jurisdiction in order to continue the first priority
perfected security interest of the Buyer in all Contracts transferred hereunder.
The Originator will give the Buyer and the Deal Agent prompt notice of a change
within the State of California of the location of its chief executive office.
(i) Accounting of Purchases. The Originator will not account
for or treat (whether in financial statements or otherwise) the transactions
contemplated hereby in any manner other than the sale of Purchased Assets by the
Originator to the Buyer.
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(j) ERISA Matters. The Originator will not (i) engage in any
prohibited transaction for which an exemption is not available or has not
previously been obtained from the United States Department of Labor, (ii) permit
to exist any accumulated funding deficiency, as defined in Section 302(a) of
ERISA and Section 412(a) of the Code, or funding deficiency with respect to any
Benefit Plan other than a Multiemployer Plan, (iii) fail to make any payments to
an Multiemployer Plan that the Originator may be required to make under the
agreement relating to such Multiemployer Plan or any law pertaining thereto,
(iv) terminate any Benefit Plan so as to result in any liability, or (v) permit
to exist any occurrence of any reportable event described in Title IV of ERISA
which represents a material risk of liability of the Originator under ERISA or
the Code.
(k) Nature of Business. The Originator will engage in no
business with the Buyer other than the sale and transfer of Purchased Assets
hereunder and the other transactions permitted or contemplated by this Purchase
Agreement.
(l) Change in the Purchase Agreement. The Originator will not
amend, modify, waive or terminate any terms or conditions of this Agreement
except as provided herein.
ARTICLE VI
REPURCHASE OBLIGATION
SECTION 6.1. Retransfer of Ineligible Contracts.
In the event of a breach of any representation or warranty set
forth in Section 4.2 with respect to a Contract transferred hereunder (each such
Contract, an "Ineligible Contract"), immediately upon knowledge by the
Originator of such breach, (a) the Originator shall accept a retransfer of each
such Ineligible Contract and any related Equipment selected by the Buyer as to
which such breach related, (ii) the Buyer shall retransfer to the Originator,
without recourse, representation or warranty, all of its right, title and
interest in such Ineligible Contract, and (iii) the Buyer shall, in connection
with such conveyance and without further action, be deemed to represent and
warrant that it has the limited liability company authority and has taken all
necessary limited liability company action to accomplish such conveyance, but
without any other representation or warranty, express or implied. In any of the
foregoing instances, the Originator shall accept the retransfer of each such
Ineligible Contract, and the ADCB shall be reduced by the Discounted Contract
Balance of each such Ineligible Contract and, if applicable, increased by the
Discounted Contract Balance of each such Substitute Contact. On and after the
date of retransfer, the Ineligible Contract so retransferred shall not be
included in the Collateral. In consideration of such retransfer, the Originator
shall, on the date of retransfer of such Ineligible Contract, make a deposit to
the Collection Account (for allocation pursuant to Sections 2.4(a) and 2.5(a) of
the Receivables Credit Agreement, as applicable) in immediately available funds
in an amount equal to the Discounted Contract Balance of such Ineligible
Contract plus interest thereon from the last day of the immediately preceding
Interest Period to and including the date of repurchase at a rate per annum
equal to
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the Interest Rate. Upon each retransfer to the Originator of such Ineligible
Contract, the Buyer shall automatically and without further action be deemed to
transfer, assign, and set over to the Originator, free and clear of any Lien
created pursuant to this Purchase Agreement, all the right, title and interest
of the Buyer in, to and under such Ineligible Contract and all monies due or to
become due with respect thereto, the related Equipment, and all proceeds of such
Ineligible Contract and Recoveries and Insurance Proceeds relating thereto and
all rights to security for any such Ineligible Contract, and all proceeds and
products of the foregoing. The Buyer shall, in connection with such transfer,
assignment and set over, and without further action, be deemed to represent and
warrant that it has the limited liability company authority and has taken all
necessary limited liability company action to accomplish such transfer,
assignment and set over, but without any other representation or warranty,
express or implied. The Buyer shall, at the sole expense of the Originator,
execute such documents and instruments of retransfer as may be prepared by the
Buyer on behalf of the Originator and take such other actions as shall
reasonably be requested by the Originator to effect the transfer of such
Ineligible Contract pursuant to this Section 6.1.
Section 6.2. Retransfer of Purchased Assets.
In the event of a breach of any of the representations and
warranties set forth in Section 4.2 hereof which breach could reasonably be
expected to have a material adverse effect on the rights of the Secured Parties
or the Deal Agent, as agent of the Secured Parties under the Receivables Credit
Agreement, or on the ability of the Buyer to perform its obligations under the
Receivables Credit Agreement, by notice then given in writing to the Originator,
the Buyer may direct the Originator to accept retransfer of all of the Purchased
Assets, in which case the Originator shall be obligated to accept retransfer of
such Purchased Assets on the Payment Date next following such notice (such date,
the "Retransfer Date"). The Originator shall deposit on the Retransfer Date an
amount equal to the deposit amount provided below for such Purchased Assets in
the Collection Account for distribution to the Secured Parties under the
Receivables Credit Agreement. The deposit amount for such retransfer will be
equal to (a) the sum of (i) the Aggregate Unpaids, and (ii) all Interest accrued
and to accrue, as reasonably determined by the Deal Agent, and (iii) all Hedge
Breakage Costs and any other amounts payable by Borrower under or with respect
to any Hedging Agreement minus (b) the amount, if any, available in the
Collection Account on such Payment Date. On the Retransfer Date, provided that
full Retransfer Amount has been deposited into the Collection Account, the
Purchased Assets and all proceeds thereof, all rights to security for such
Purchased Assets, and all proceeds and products of the foregoing, shall be
transferred to the Originator, and the Buyer shall, at the sole expense of the
Originator, execute and deliver such instruments of retransfer, in each case
without recourse, representation or warranty, as shall be prepared as reasonably
requested by the Originator, to vest in the Originator, or its designee or
assignee, all right, title and interest of the Buyer in, to and under the
Purchased Assets transferred hereunder, all monies due or to become due with
respect thereto, and all proceeds thereof and Insurance Proceeds relating
thereto.
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Section 6.3. Adjustments.
The Originator hereby agrees that, with respect to each
Contract transferred hereunder which provides for any payment constituting a
Prepayment, which amount is less than an amount equal to the aggregate remaining
Scheduled Payments related to such Contract, the Originator shall indemnify the
Buyer in an amount equal to the aggregate remaining Scheduled Payments related
to such Contract.
Section 6.4. Substitution of Contracts.
On any day prior to the occurrence of the Termination Date,
the Buyer may in its sole discretion, by written notice to the Originator,
request that any Contract be replaced by one or more other Contracts (each, a
"Substitute Contract"), provided that no such replacement shall occur unless
each of the following conditions is satisfied as of the date of such replacement
and substitution:
(i) the Servicer has previously recommended to the Deal Agent
(with a copy to the Collateral Custodian) in writing that the Contract
to be replaced should be replaced (each, a "Replaced Contract");
(ii) each Substitute Contract is an Eligible Contract on the
date of such substitution;
(iii) after giving effect to any such substitution, the
aggregate outstanding Principal does not exceed the lesser of (A) the
Borrowing Base and (B) the Credit Limit;
(iv) the aggregate Discounted Contract Balance of such
Substitute Contracts shall be equal to or greater than the aggregate
Discounted Contract Balances of the Replaced Contracts;
(v) such Substitute Contracts, at the time of substitution by
the Originator, shall have approximately the same remaining weighted
average life as the Replaced Contracts;
(vi) all representations and warranties of the Originator
contained in Section 4.1 and 4.2 shall be true and correct as of the
date of substitution of any such Substitute Contract;
(vii) the substitution of any Substitute Contract does not
cause an Event to Default to occur; and
(viii) the Buyer shall deliver to the Deal Agent on the date
of such substitution a certificate of a Responsible Officer certifying
that each of the foregoing is true and correct as of such date.
In addition, the Buyer shall deliver to the Collateral Custodian the related
Contract File as required by Section 3.2 of the Receivables Credit Agreement. In
connection with any such
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substitution, the Buyer shall, automatically and without further action, be
deemed to retransfer to the Originator, free and clear of any Lien created
pursuant to this Purchase Agreement, all of the right, title and interest of the
Buyer in, to and under such Replaced Contract, and the Buyer shall be deemed to
represent and warrant that it has the limited liability company authority and
has taken all necessary limited liability company action to accomplish such
transfer, but without any other representation or warranty, express or implied.
Any right of the Buyer to substitute any Contract pursuant to this Section 6.4
shall be in addition to, and without limitation of, any other rights or remedies
that the Buyer may have to require the Originator to substitute for, or accept
retransfer of, any Contract pursuant to the terms of this Purchase Agreement.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1. Conditions to the Buyer's Obligations Regarding
Contracts.
The obligations of the Buyer to purchase Purchased Assets from
the Originator on the Closing Date shall be subject to the satisfaction of the
following conditions:
(a) all representations and warranties of the Originator
contained in Sections 4.1 and 4.2 shall be true and correct on and as of such
day as though made on and as of such date;
(b) the Originator shall have performed all obligations
required to be performed by it on or prior to such day pursuant to the
provisions of this Purchase Agreement;
(c) no event has occurred and is continuing, or would result
from such purchase which constitutes an Event of Default under the Receivables
Credit Agreement;
(d) no law or regulation shall prohibit, and no order,
judgment or decree of any federal, state or local court or governmental body,
agency or instrumentality shall prohibit or enjoin, the making of any such
purchase by the Buyer in accordance with the provisions hereof; and
(e) all corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Purchase Agreement shall
be satisfactory in form and substance to the Buyer, and the Buyer shall have
received from the Originator copies of all documents (including, without
limitation, records of corporate proceedings, approvals and opinions) relevant
to the transactions herein contemplated as the Buyer may reasonably have
requested.
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ARTICLE VIII
TERM AND TERMINATION
Section 8.1. Term and Termination.
This Purchase Agreement shall commence as of the date of
execution and delivery hereof and shall continue in full force and effect until
the occurrence of the Collection Date pursuant to the Receivables Credit
Agreement; provided, however, that the termination of this Purchase Agreement
pursuant to this Section 8.1 shall not discharge any Person from obligations
incurred prior to any such termination of this Purchase Agreement, including,
without limitation, any obligations to repurchase Contracts sold prior to such
termination pursuant to Section 6.1 or 6.2 hereof, or to make the payments
required under Section 6.3 hereof.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment.
This Purchase Agreement and any other Sale Papers and the
rights and obligations of the parties hereunder may not be amended, waived or
changed orally, but only by an instrument in writing signed by the Buyer and the
Originator, with the prior written consent of the Deal Agent. The Buyer shall
provide not less than ten Business Days prior written notice of any such
amendment to the Deal Agent.
Section 9.2. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
HEREBY AGREES TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE STATE
OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON
FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
Section 9.3. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by registered mail, return receipt requested, to:
(a) in the case of the Buyer, to:
Fidelity Leasing SPE III, LLC
c/o Fidelity Leasing, Inc.
0000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Crit Xxxxxx
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
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(b) in the case of the Servicer, to:
Fidelity Leasing, Inc.
0000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Crit Xxxxxx
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
(c) in the case of the Originator, to:
JLA Credit Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
(d) in the case of the Deal Agent, to:
First Union Capital Markets Corp.
Xxx Xxxxx Xxxxx Xxxxxx, XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Conduit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
Section 9.4. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Purchase Agreement or any of the Sale Papers shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Purchase Agreement and the Sale Papers and shall in
no way affect the validity or enforceability of the other provisions of this
Purchase Agreement or any of the Sale Papers.
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Section 9.5. Assignment.
(a) Notwithstanding anything to the contrary contained herein,
this Purchase Agreement may not be assigned by the Buyer or the Originator
except as permitted by this Section 9.5 or by the Receivables Credit Agreement.
Simultaneously with the execution and delivery of this Purchase Agreement, the
Buyer shall assign all of its right, title and interest herein to the Deal Agent
as agent for the Lender under the Receivables Credit Agreement as provided in
the Receivables Credit Agreement, to which assignment the Originator hereby
expressly consents. The Originator agrees to perform its obligations hereunder
for the benefit of the Deal Agent as agent for the Lender under the Receivables
Credit Agreement and the Deal Agent, as agent for the Lender under the
Receivables Credit Agreement under the Receivables Credit Agreement shall be a
third party beneficiary hereof. The Deal Agent as agent for the Lender under the
Receivables Credit Agreement may enforce the provisions of this Purchase
Agreement, exercise the rights of the Buyer and enforce the obligations of the
Originator hereunder as provided in of the Receivables Credit Agreement. This
Purchase Agreement may not be assigned by the Originator except in connection
with a merger or consolidation of the Originator with or into, or disposition of
the Originator's properties and assets to, another Person, provided, however,
that any such merger, consolidation or disposition shall satisfy the
requirements of Section 9.14, upon not less than ten Business Days' prior
written notice to the Buyer and the Deal Agent.
(b) In connection with any permitted assignment of this
Purchase Agreement by the Originator, the Originator shall deliver to the Buyer
and the Deal Agent an Officer's Certificate that such assignment complies with
this Section 9.5, and shall cause such assignee to execute an agreement
supplemental hereto, in form and substance satisfactory to the Originator,
pursuant to which such assignee shall expressly assume and agree to the
performance of every covenant and obligation of the Originator hereunder, to
provide for the delivery of an Opinion of Counsel that such supplemental
agreement is legal, valid and binding with respect to such assignee, and to take
such other actions and execute such other instruments as may reasonably be
required to effectuate such assignment.
Section 9.6. Further Assurances.
The Buyer and the Originator agree to do and perform, from
time to time, any and all acts and to execute any and all further instruments
required or reasonably requested by the other party more fully to effect the
purposes of this Purchase Agreement and the Sale Papers, including, without
limitation, the execution of any financing statements, continuation statements,
termination statements, releases or equivalent documents relating to the
Contracts for filing under the provisions of the UCC or other laws of any
applicable jurisdiction.
Section 9.7. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part
of the Buyer or the Originator, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy,
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power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies, powers and privilege
provided by law.
Section 9.8. Counterparts.
This Purchase Agreement may be executed in two or more
counterparts including facsimile transmission thereof (and by different parties
on separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 9.9. Binding Effect; Third-Party Beneficiaries.
This Purchase Agreement shall inure to the benefit of and the
obligations thereunder shall be binding upon the parties hereto and their
respective successors and permitted assigns. Any permitted assigns shall be
third-party beneficiaries of this Purchase Agreement.
Section 9.10. Merger and Integration.
Except as specifically stated otherwise herein, this Purchase
Agreement sets forth the entire understanding of the parties relating to the
subject matter hereof, there are no other agreements between the parties for
transactions relating to or similar to the transactions contemplated by this
Purchase Agreement, and all prior understandings, written or oral, are
superseded by this Purchase Agreement. This Purchase Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 9.11. Headings.
The headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
Section 9.12. Schedules and Exhibits.
The schedules and exhibits attached hereto and referred to
herein shall constitute a part of this Purchase Agreement and are incorporated
into this Purchase Agreement for all purposes.
Section 9.13. No Proceedings.
The Originator and the Servicer each hereby convenants and
agrees that, prior to the date which is one year and one day after the payment
in full of the Loan, it will not institute against or join any other Person in
instituting against the Buyer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States.
-19-
SECTION 9.14. Merger or Consolidation of, or Assumption of
the Obligations of, the Originator.
The Originator shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets substantially
as an entirety to any person, unless:
(a) the Person formed by such consolidation or into which the
Originator is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Originator substantially as
an entirety shall be, if the Originator is not the surviving entity,
organized and existing under the laws of the United States or any state
or the District of Columbia and shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Buyer in form
satisfactory to the Buyer, the performance of every covenant and
obligation of the Originator hereunder (to the extent that any right,
covenant or obligation of the Originator, as applicable hereunder, is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to such successor entity);
(b) the Originator shall have delivered to the Buyer and the
Deal Agent an Officer's Certificate that such consolidation, merger,
conveyance or transfer and such supplemental agreement complies with
this Section 9.14 and that all conditions precedent herein provided for
relating to such transaction have been complied with and an Opinion or
Counsel that such supplemental agreement is legal, valid and binding
with respect to the successor entity and that the entity surviving such
consolidation, conveyance or transfer is organized and existing under
the laws of the United States or any state or the District of Columbia.
The Deal Agent shall receive prompt written notice of such merger or
consolidation of the Originator; and
(c) after giving effect thereto, no Event of Default under the
Receivables Credit Agreement or any event which with notice or lapse of
time or both would constitute such an Event of Default thereunder shall
have occurred.
Section 9.15. Costs, Expenses and Taxes.
(a) The Originator agrees to pay on demand all costs and
expenses of the Buyer incurred in connection with the preparation,
execution, delivery, administration (including periodic auditing),
amendment or modification of, or any waiver or consent issued in
connection with, this Purchase Agreement and the other documents to be
delivered hereunder or in connection herewith, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Buyer with respect thereto and with respect to advising the
Buyer as to its rights and remedies under this Purchase Agreement and
the other documents to be delivered hereunder or in connection
herewith, and all costs and out-of-pocket expenses, if any (including
reasonable counsel fees and expenses), incurred by the Buyer in
connection with the enforcement of this Purchase Agreement and the
other documents to be delivered hereunder or in connection herewith.
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(b) The Originator shall pay on demand any and all stamp,
sales, excise and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this Purchase
Agreement or any agreement or other document delivered in connection with this
Purchase Agreement
(c) The Originator shall pay on demand any and all damages,
losses, claims, liabilities, fees and related costs and expenses, including
attorney's fees and expenses, incurred by or awarded against the Buyer or any of
its Affiliates (each, an "Indemnified Party") arising out of or as a result of
the transactions contemplated under this Agreement and owed by such Indemnified
Party to any other Person; provided, that the Originator shall not be liable to
pay any portion of any such damages, losses, claims or liabilities resulting
from the gross negligence or willful misconduct of an Indemnified Party or the
breach of a Requirement of Law by an Indemnified Party.
Section 9.16. Recourse Against Certain Parties.
(a) No recourse under or with respect to any obligation,
covenant or agreement (including, without limitation, the payment of any fees or
any other obligations) of the Originator as contained in this Purchase Agreement
or any other agreement, instrument or document entered into by it pursuant
hereto or in connection herewith shall be had against any administrator of the
Originator or any incorporator, officer, employee or director of the Originator
or of any such administrator, as such, by the enforcement of any assessment or
by any legal or equitable proceeding, by virtue of any statute or otherwise; it
being expressly agreed and understood that the agreements of the Originator
contained in this Purchase Agreement and all of the other agreements,
instruments and documents entered into by it pursuant hereto or in connection
herewith are, in each case, solely the corporate obligations of the Originator
and that no personal liability whatsoever shall attach to or be incurred by any
administrator of the Originator or any incorporator, officer, employee or
director of Originator or of any such administrator, as such, or any of them,
under or by reason of any of the obligations, covenants or agreements of the
Originator contained in this Purchase Agreement or in any other such
instruments, documents or agreements, or which are implied therefrom, and that
any and all personal liability of every such administrator of the Originator and
each incorporator, officer, employee or director of the Originator or of any
such administrator, or any of them, for breaches by the Originator of any such
obligations, covenants or agreements, which liability may arise either at common
law or in equity, by statute or constitution, or otherwise, is hereby expressly
waived as a condition of, and in consideration for, the execution of this
Purchase Agreement. The provisions of this Section 9.16(a) shall survive the
termination of this Purchase Agreement.
(b) No recourse under or with respect to any obligation,
covenant or agreement (including, without limitation, the payment of any fees or
any other obligations) of the Buyer as contained in this Purchase Agreement or
any other agreement, instrument or document entered into by it pursuant hereto
or in connection herewith shall be had against any administrator of the Buyer or
any incorporator, officer, manager, member, employee or director of the Buyer or
of any such administrator, as such, by the enforcement of any
-21-
assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that the agreements of the
Buyer contained in this Purchase Agreement and all of the other agreements,
instruments and documents entered into by it pursuant hereto or in connection
herewith are, in each case, solely the limited liability company obligations of
the Buyer, and that no personal liability whatsoever shall attach to or be
incurred by any administrator of the Buyer or any incorporator, officer,
manager, member, employee or director of the Buyer or of any such administrator,
as such, or any other them, under or by reason of any of the obligations,
covenants or agreements of the Buyer contained in this Agreement or in any other
such instruments, documents or agreements, or which are implied therefrom, and
that any and all personal liability of every such administrator of the Buyer and
each incorporator, officer, manager, member, employee or director of the Buyer
or of any such administrator, or any of them, for breaches by the Buyer of any
such obligations, covenants or agreements, which liability may arise either at
common law or at equity, by statute or constitution, or otherwise, is hereby
expressly waived as a condition of and in consideration for the execution of
this Purchase Agreement. The provisions of this Section 9.16(b) shall survive
the termination of this Purchase Agreement.
[SIGNATURES SET FORTH ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Buyer, the Servicer, and the
Originator have caused this Purchase Agreement to be duly executed as of the day
and year first above written.
THE BUYER:
FIDELITY LEASING SPE III, LLC, a Delaware limited
liability company
JLA Credit Corporation, a Delaware corporation,
its Managing Member
By: ______________________________
Name: ______________________________
Title: ______________________________
THE SERVICER:
FIDELITY LEASING, INC., a Pennsylvania corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
THE ORIGINATOR:
JLA CREDIT CORPORATION, a Delaware corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
SCHEDULE I
LIST OF CONTRACTS
[SET FORTH ON FOLLOWING PAGE]
SCHEDULE II
TRADENAMES, FICTITIOUS NAMES AND "DOING BUSINESS AS" NAMES
airplanelease jlacredit leasemator momlease
applicationonly leaseairplanes leasemedical moneyovermoney
applicationonlylease leaseamator leasemker municpallease
apponly leasearmatic leasenetwork munilease
apponlylease leaseautos leasenetworks non-recourselease
biolease leasebuilder leasenotbooks operatinglease
builttoorderlease leaseclock leaseofficeequipment progresspayment
buycomplesaing leasecommerce leasepcs progresspaymentlease
buylease leasecommercecenter leaseperipherals projectfinancialease
cadlease leasecomp leasephones quotemaker
capitalmaster leaseconduit leasepostpress recourselease
channelcapital leaseconstruction leasepre-press resellerlease
channelcredit leaseconstruction leasepresses resellerleasing
channellease leaseconverter leaseprinters scitexleasing
clicklease leaseconverter leaseprinting shrinkwraplease
configureking leasecopiers leasequick siglease
ctileasing leasecopiers leaserate skippaymentlease
dollaroutlease leasecreator leasescltex softwarelease
fairmarketvaluelease leasecreator leaseservers steplease
fasblease leasectl leasesite techfresh
federallease leasectl leasesoft techrefreshlease
fmvlease leasecyberian leasesrus telephonyleasing
fullpayoutlease leasecyberian leasestorage trueoperatinglease
goconfigure leasedental leasetelephony turnkeylease
governmentlease leasedental leasetrucks unixleasing
hardwarelease leasedesktops leasevsbuy vendorlease
infolease leasedesktops leasewheels venturetechleasing
ingrammicroleasing leasefactor leasewhitebox virtualcaptive
interconnectleasing leaseforklifts leasezone whitebox
internationallease leaseitonline leasingcenter worldwidelease
isgleasing leaseking leasingzone wraplease
itclease leasemachinetools leveragelease
japanleasingofamerica leasematic majoraccountsleasing
