AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT
among
FIDELITY LEASING, INC.,
JLA CREDIT CORPORATION
and
FIDELITY LEASING SPC II, INC.
February 5, 1999
TABLE OF CONTENTS
Page
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ARTICLE I
GENERAL
Section 1.1 Certain Defined Terms. 1
Section 1.2 Other Definitional Provisions. 2
ARTICLE II
SALE AND CONVEYANCE
Section 2.1 Sale. 3
Section 2.2 Subsequent Contracts. 5
ARTICLE III
PURCHASE PRICE AND PAYMENT; MONTHLY REPORT
Section 3.1 Purchase Price. 6
Section 3.2 Payment of Purchase Price. 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Seller Representations and Warranties. 6
Section 4.2 Seller Representations and Warranties Regarding the
Agreement and the Contracts. 10
Section 4.3 Representations and Warranties of the Buyer. 11
ARTICLE V
COVENANTS
Section 5.1 Seller Covenants. 12
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 Retransfer of Ineligible Contracts. 14
Section 6.2 Retransfer of Purchased Assets. 15
Section 6.3 Adjustments. 16
Section 6.4 Substitution of Contracts 16
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to the Buyer's Obligations Regarding Contracts. 17
ARTICLE VIII
TERM AND TERMINATION
Section 8.1 Termination. 18
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment. 18
Section 9.2 Governing Law. 18
Section 9.3 Notices. 19
Section 9.4 Severability of Provisions. 20
Section 9.5 Assignment. 20
Section 9.6 Further Assurances. 20
Section 9.7 No Waiver; Cumulative Remedies. 21
Section 9.8 Counterparts. 21
Section 9.9 Binding Effect; Third-Party Beneficiaries. 21
Section 9.10 Merger and Integration. 21
Section 9.11 Headings. 21
Section 9.12 Schedules and Exhibits. 21
Section 9.13 No Proceedings. 21
Section 9.14 Merger or Consolidation of, or Assumption of the
Obligations of, the Sellers. 22
Section 9.15 Costs, Expenses and Taxes 22
Section 9.16 Recourse Against Certain Parties. 23
EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment
Schedule I Purchased Contracts
Schedule II Trade Names
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
------------------------------------------------
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, dated as of February
5, 1999 by and among FIDELITY LEASING, INC., a Pennsylvania corporation ("FLI"),
JLA CREDIT CORPORATION, a Delaware corporation ("JLA" and together with FLI, the
"Sellers") and FIDELITY LEASING SPC II, INC., a Delaware corporation (the
"Buyer").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, FLI and the Buyer are parties to a Purchase and Sale
Agreement, dated as of December 28, 1998 (the "Original Agreement") pursuant to
which the Buyer has purchased and accepted from FLI and FLI has sold or
contributed to the Buyer certain contracts originated or purchased by FLI in its
normal course of business, together with, among other things, the related rights
of payment thereunder and the interest of FLI in the related equipment and other
interests securing the payments to be made under such contracts;
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement as set forth in this Agreement in order to add JLA as a "Seller"
hereunder.
NOW, THEREFORE, it is hereby agreed by and between the Buyer and the
Sellers as follows:
I. ARTICLE
GENERAL
Section 1.1 Certain Defined Terms.
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Certain capitalized terms used throughout this 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 Purchase
Agreement.
Agreement: This Amended and Restated Purchase and Sale Agreement, as the same
shall be amended, supplemented, restated or replaced from time to time.
Excess Amount: Shall have the meaning specified in Section 3.2.
Original Agreement: Shall have the meaning specified in the first recital.
Purchase: Any purchase made hereunder pursuant to Section 2.1.
Purchase Date: Any day on which any Purchased Asset is acquired by the Buyer
pursuant to the terms of this Agreement.
Purchase Price: Shall have the meaning specified in Section 3.1.
Purchased Assets: The interests and property described in Sections
2.1(a)(i)-(vi) and (b)(i)-(vi).
Purchased Contracts: The Contracts listed on Schedule I hereto.
Receivables Purchase Agreement: The Receivables Purchase Agreement dated as of
December 29, 1998 by and among the Buyer, as seller, Fidelity Leasing, Inc., as
servicer, Market Street Funding Corporation, as purchaser, Xxxxxx Trust and
Savings Bank, as collateral custodian and backup servicer, and PNC Bank,
National Association, as administrator, as the same may be amended,
supplemented, restated or replaced from time to time.
Required Lease Cancellation Payment: Shall have the meaning set forth in Section
6.3(b).
Sale Papers: Shall have the meaning set forth in Section 4.1(a).
Servicer: Initially, Fidelity Leasing, Inc., in its capacity as the Servicer
under the Receivables Purchase Agreement, and its permitted successors and
assigns, and thereafter any Person appointed as successor as provided therein to
service the Assets thereunder.
Subsequent Contract List: The list of Contracts to be sold by a Seller to the
Buyer on a Subsequent Purchase Date.
Subsequent Contracts: On any Subsequent Purchase Date, the Contracts sold by a
Seller to the Buyer on such date as listed on the Subsequent Contact List.
Subsequent Purchase Date: Each Purchase Date other than the Closing Date.
Substitution Date: Any date on which either Seller transfers a Substitute
Contract to the Buyer.
Section 1.2 Other Definitional Provisions.
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(a) Unless otherwise specified therein, all terms defined in this
Agreement have the meanings as so defined herein when used in any other
Transaction Document, certificate, report or other document made or delivered
pursuant hereto.
(b) Each term defined in the singular form in Section 1.1 or elsewhere
in this Agreement shall mean the plural thereof when the plural form of such
term is used in any Transaction Document, certificate, report or other document
made or delivered pursuant hereto, and each term defined in the plural form in
Section 1.1 shall mean the singular thereof when the singular form of such term
is used herein or therein.
(c) The words "hereof," "herein," "hereunder" and similar terms when
used in this Agreement shall refer to this agreement as a whole and not to any
particular provision of this Agreement, and article, section, subsection,
schedule and exhibit references herein are references to articles, sections,
subsections, schedules and exhibits to this Agreement unless otherwise
specified.
(d) 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 Purchase Agreement, the terms and provisions contained herein shall
govern with respect to this Agreement.
ARTICLE II
SALE AND CONVEYANCE
Section 2.1 Sale.
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(a) On the Closing Date, each Seller hereby sells, transfers, assigns,
sets over and otherwise conveys to the Buyer as of the Closing Date, and the
Buyer hereby purchases from the Seller, without recourse, all right, title and
interest of the Seller in, to and under the following property, whether now
existing or hereafter created or acquired (to the extent not previously sold to
the Buyer pursuant to the Original Agreement):
(i) the Contracts that are owned by such Seller on the Closing
Date and that are listed on the Contract List, together with all Collections and
all monies due or to become due in payment of such Contracts after the related
Cut Off Date, and any payments in respect of a Casualty Loss or Early
Termination, but excluding any Scheduled Payments due on or prior to the related
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 specifically
with respect to such Contracts or the Obligor thereunder 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.
(b) On each Subsequent Purchase Date, either or both Sellers will sell,
transfer, assign and set over and otherwise convey to the Buyer and the Buyer
will purchase from the applicable Seller(s), without recourse, all right, title
and interest of such Seller(s) or the in, to and under the following property,
whether now existing or hereafter created or acquired:
(i) the Subsequent Contracts identified on the Subsequent
Contract List delivered by such Seller(s) to the Buyer two Business Days before
the applicable Subsequent Purchase Date, together with all Collections and all
monies due or to become due in payment of such Contracts after the related Cut
Off Date, and any payments in respect of a casualty or early termination, but
excluding any Scheduled Payments due on or prior to the related 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 specifically
with respect to such Contracts or the Obligor thereunder 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 Sellers 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.
(c) In connection with the sale of the Purchased Assets, each Seller
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 such Seller to the Buyer on and after the Closing Date, (ii) that such
financing statements shall name such Seller, 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 initial Purchase Date, in the case of the Original Contracts and
(if any additional filing is necessary) on or prior to the related Subsequent
Purchase Date, in the case of Subsequent Contracts.
(d) In connection with the sale of the Purchased Assets, each Seller
further agrees that it will, at its own expense, indicate clearly and
unambiguously in its computer files, on or prior to the Closing Date in the case
of the Original Contracts and on or prior to the related Subsequent Purchase
Date in the case of each Subsequent Contract, that such Contracts have been sold
to the Buyer pursuant to this Agreement. Each Seller further agrees to deliver
to the Buyer (i) on the Closing Date, a computer file or microfiche list
containing a true and complete list of all Original Contracts, identified by
account number and Outstanding Balance as of the Cut Off Date and (ii) on any
Subsequent Purchase Date with respect to Subsequent Contracts, a computer file
or microfiche list containing a true and complete list of all Subsequent
Contracts transferred on such date identified by account number and Outstanding
Balance as of the related Additional Cut Off Date. Such file or list shall be
marked as Schedule I, shall be delivered to the Buyer as confidential and
proprietary, and is hereby incorporated into and made a part of this Agreement.
(e) It is the intention of the parties hereto that the conveyance of
the Contracts and the other Purchased Assets by the Sellers 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 Seller 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 applicable Seller to the
Buyer to secure a debt or other obligation of such Seller. 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 each Seller hereby grants to the Buyer a "security
interest" within the meaning of Article 9 of the UCC in all of such Seller's
right, title and interest in and to the Contracts and the other Purchased
Assets, now existing and hereafter created, to secure a loan in an amount equal
to the aggregate Purchase Price and each of such Seller's other payment
obligations under this Agreement.
Section 2.2 Subsequent Contracts.
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(a) Each Seller shall on or prior to any Subsequent Purchase Date with
respect to any Contracts to be sold by such Seller on such Subsequent Purchase
Date execute and deliver to the Buyer a written assignment from such Seller to
the Buyer substantially in the form of Exhibit A. From and after such Subsequent
Purchase Date, such Subsequent Contracts shall be deemed to be Contracts
hereunder.
(b) Covenants of the Sellers In Connection With Additions. On or before
any Subsequent Purchase Date with respect to any Contracts acquired by the Buyer
as described in subsection 2.1(b), each applicable Seller shall:
(i) clearly indicate in its files that such Contracts have been
sold to the Buyer and deliver to the Buyer a computer file or microfiche list
which such Seller shall represent to contain a true and complete list of such
Subsequent Contracts, identified by account number as of the related Cut Off
Date, which computer file or microfiche list shall be as of such date
incorporated into and made a part of this Agreement;
(ii) provide the Buyer with an Officer's Certificate certifying as
follows: (A) each such Contract was, as of the related Subsequent Purchase Date,
an Eligible Contract, (B) no selection procedures believed by such Seller to be
materially adverse to the interest of the Buyer were utilized in selecting such
Contracts from the available Eligible Contracts in the Seller's portfolio, (C)
such Contracts and all proceeds thereof will be conveyed to the Buyer free and
clear of any Lien of any Person claiming through or under such Seller or any of
its Affiliates, except for Liens permitted hereunder, (D) as of the related
Subsequent Purchase Date, (x) no Insolvency Event with respect to such Seller
has occurred, (y) neither such Seller nor the Buyer is insolvent and (z) the
sale of such Contracts to the Buyer has not been made in contemplation of the
occurrence of any Insolvency Event with respect to such Seller, (E) as of the
related Subsequent Purchase Date, no Restricting Event with respect to such
Seller has occurred and (F) each of the conditions precedent set forth in
Section 7.1 have been satisfied with respect to such Contracts; and
(iii) record and file financing statements with respect to such
Contracts meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect the sale of such Contracts by
such Seller to the Buyer.
ARTICLE III
PURCHASE PRICE AND PAYMENT; MONTHLY REPORT
Section 3.1 Purchase Price.
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The purchase price for each Contract sold to the Buyer by a Seller
under this Agreement (the "Purchase Price") shall be a dollar amount equal to
the Discounted Contract Balance determined as of the related 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 in immediately
available funds to the applicable Seller to the extent available and (ii) the
remainder shall be deemed paid through a contribution to capital of the Buyer by
the applicable Seller in an amount equal to such remainder.
(b) The Purchase Price for any portion of the Contracts sold by a
Seller on any date after the Closing Date shall be paid either (i) in cash or
(ii) if the Buyer does not have sufficient cash to pay the full amount of the
Purchase Price, by means of a capital contribution by the applicable Seller to
the Buyer.
(c) Unless otherwise specified herein, all payments of the Purchase
Price of any Contract sold hereunder shall be made not later than 3:00 p.m. (New
York City time) on the date specified therefor in lawful money of the United
States of America in same day funds by depositing such amounts in the bank
account designated in writing by the applicable Seller to the Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Seller Representations and Warranties.
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Each Seller hereby represents and Warrants to the Buyer, as of the
initial Purchase Date and each Subsequent Purchase Date, that:
(a) Organization and Good Standing. Such Seller is a corporation duly
organized and validly existing in good standing under the laws of the
jurisdiction of its formation and has full corporate power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and as such business is presently conducted and to execute,
deliver and perform its obligations under this Agreement and each other document
or instrument to be delivered by it hereunder (collectively, the "Sale Papers").
(b) Due Qualification. Such Seller is duly qualified to do business and
is in good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals, in each
jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a material adverse effect on its ability to perform its
obligations hereunder or under the Sale Papers.
(c) Due Authorization. The execution and delivery of this Agreement and
each of the Sale Papers, and the consummation of the transactions provided for
herein and therein have been duly authorized by such Seller by all necessary
corporate action on its part.
(d) No Conflict. The execution and delivery of this 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, 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 such Seller is a party or by which it or any of its
property is bound.
(e) No Violation. The execution and delivery of this 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 such Seller or remittance of
Collections in accordance with the provisions of this Agreement), will not
conflict with or violate, in any material respect, any Requirements of Law
applicable to such Seller.
(f) No Proceedings. There are no proceedings or investigations pending
or, to the best its knowledge, threatened against such Seller before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or any of the
Sale Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this 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 such Seller of its obligations under this 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 of this Agreement and the Sale
Papers, the performance of the transactions contemplated by this Agreement and
the Sale Papers and the fulfillment of or terms hereof and thereof, have been
obtained.
(h) Bulk Sales. The execution, delivery and performance of this
Agreement do not require compliance with any "bulk sales" law by such Seller.
(i) Solvency. The transactions contemplated under this Agreement and
the Sale Papers do not and will not render such Seller insolvent.
(j) Selection Procedures. No selection procedures believed by such
Seller to be materially adverse to the interests of the Buyer were utilized by
such Seller in selecting the Contracts to be sold, assigned, transferred,
set-over and otherwise conveyed hereunder.
(k) Use of Proceeds. No proceeds of the sale of any Contract hereunder
received by such Seller will be used by it to purchase or carry any margin
security.
(l) Not an Investment Company. Such Seller is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or is exempt from all provisions of such Act.
(m) Other Names. Such Seller's legal name is as set forth in this
Agreement and within the preceding five years such Seller has not used, and such
Seller currently does not use, any trade names, fictitious names, assumed names
or "doing business as" names other than those set forth on Schedule II.
(n) Taxes. Such Seller has filed or caused to be filed all tax returns
which, to its knowledge, are required to be filed and has paid all taxes shown
to be due and payable on such returns or on any assessments made against such
Seller or any of its property and all other taxes, fees or other charges imposed
on it or any of its property by any Governmental Authority (other than any
amount of tax due the validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
accordance with generally accepted accounting principles have been provided on
its books); no tax lien has been filed and, to such Seller's knowledge, no claim
is being asserted, with respect to any such tax, fee or other charge.
(o) Place of Business. Such Seller's principal executive offices are at
0000 Xxxxxxx Xxxx in West Chester, Pennsylvania and the offices where it keeps
its records concerning the Contracts are at 0000 Xxxxxxx Xxxx in West Chester,
Pennsylvania.
(p) No Liens. Each Purchased Asset, together with the Contract related
thereto, shall, at all times, be owned by such Seller free and clear of any Lien
except as provided herein, and upon the sale, transfer or assignment hereunder,
the Buyer shall acquire a valid and perfected first priority undivided ownership
interest in each Purchased Asset then existing or thereafter arising and in the
Collections with respect thereto, free and clear of any Lien except as provided
herein. No effective financing statement or other instrument similar in effect
covering any Purchased Asset or the 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 Agreement.
(q) Special Purpose Entity. Such Seller agrees that, for a period of
one year and one day after the Aggregate Unpaids have been paid in full, it will
not cause the Buyer to file a voluntary petition or institute, cause to be
instituted or join in any involuntary petition or proceeding under the
Bankruptcy Code or any other bankruptcy or insolvency laws. Such Seller 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 the assets of the Buyer available to satisfy claims of its
creditors would not result in making such assets available to satisfy such
creditors under the Bankruptcy Code.
(r) Security Interest. Such Seller 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 the UCC upon execution and delivery of this
Agreement. Upon the filing UCC-1 financing statements naming the Buyer as
secured party and such Seller as debtor, the Buyer shall have a first priority
perfected security interest in the Purchased Assets and Collections. 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 (or prior to the applicable purchase hereunder will be)
made; provided, however, that filings as to related Equipment have been (or
prior to the applicable purchase hereunder will be) made solely in the Filing
Locations and such Equipment filings have been (or prior to the applicable
purchase hereunder will be) made by filing in each such Filing Location one
financing statement listing all Equipment, without the necessity of making
individual filings for each item of Equipment.
(s) Accounting. Such Seller will account for the transfers by such
Seller to the Buyer of interests in Purchased Assets and Collections under this
Agreement as sales of such Purchased Assets in its books, records and financial
statements, in each case consistent with GAAP, as applicable, and with the
requirements set forth herein.
(t) Separate Entity. The Buyer is operated as an entity with assets and
liabilities distinct from those of such Seller and any Affiliates thereof, and
such Seller hereby acknowledges that the Administrator and MSFC under the
Receivables Purchase Agreement are entering into the transactions contemplated
by the Receivables Purchase Agreement in reliance upon the Buyer's identity as a
separate legal entity from such Seller and from each such Affiliate of such
Seller.
(u) Value Given. The cash payments received by such Seller in respect
of the Purchase Price of each Contract sold hereunder constitutes reasonably
equivalent value in consideration for the transfer to the Buyer of such Contract
under this Agreement, such transfer was not made for or on account of an
antecedent debt owed by such Seller to the Buyer, and such transfer was not and
is not voidable or subject to avoidance under any section of the Bankruptcy
Code.
(v) Reports Accurate. No report (if prepared by such Seller, or to the
extent that information contained therein is supplied by such Seller),
information, exhibit, financial statement, document, book, record or report
furnished or to be furnished by such Seller to the Buyer in connection with this
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 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.
(w) Exchange Act Compliance. No proceeds of the sale of any Purchased
Assets will be used by such Seller to acquire any security in any transaction
which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as
amended.
(x) Accuracy of Representations and Warranties. Each representation or
warranty by such Seller contained herein or in any certificate or other document
furnished by it 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 a Seller 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 Administrator immediately
upon obtaining knowledge of such breach.
Section 4.2 Seller Representations and Warranties Regarding the
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Agreement and the Contracts.
----------------------------
Each Seller hereby represents and warrants to the Buyer, as of the
initial Purchase Date and each Subsequent Purchase Date that:
(a) Binding Obligation, Valid Transfer and Security Interest.
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(i) This Agreement and each of the Sale Papers constitutes a legal,
valid and binding obligation of such Seller, enforceable against such Seller in
accordance with its terms, except as such enforceability may be limited by
Insolvency Laws and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity) or by an
implied covenant of good faith and fair dealing.
(ii) This Agreement constitutes a valid transfer to the Buyer of
all right, title and interest of such Seller 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 such Seller or its Affiliates, except for Permitted
Liens. Upon the filing of the financing statements described in Section 4.1(r)
and, in the case of Subsequent Contracts on the applicable Subsequent Purchase
Date, the Buyer shall have a first priority perfected security interest in such
property, subject only to Permitted Liens.
(b) Eligibility of Contracts. As of the Cut Off 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 as of the Cut Off Date 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 Cut Off
Date, (ii) each such Contract is an Eligible Contract, (iii) each such Contract
and such Seller's interest in the related Equipment and Applicable Security, as
appropriate, has been transferred to the Buyer free and clear of any Lien of any
Person (other than Permitted Liens) and in compliance, in all material respects,
with all Requirements of Law applicable to such Seller 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 such Seller in connection with the transfer of
such Contract and the related Equipment to the Buyer have been duly obtained,
effected or given and are in full force and effect. On each Subsequent Purchase
Date on which Subsequent Contracts are transferred by such Seller to the Buyer,
such Seller shall be deemed to represent and warrant to the Buyer that (I) each
Subsequent Contract transferred on such day is an Eligible Contract, (II) each
such Subsequent Contract and such Seller's interest in the related Equipment, as
appropriate, has been transferred to the Buyer free and clear of any Lien of any
Person (other than Permitted Liens) and in compliance, in all material respects,
with all Requirements of Law applicable to such Seller or the originator
thereof, (III) with respect to each such Subsequent 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 such Seller in connection with the transfer of such Contract and the
related Equipment to the Buyer have been duly obtained, effected or given and
are in full force and effect and (IV) the representations and warranties set
forth in Section 4.2(b) clauses (i) through (iv), inclusive, are true and
correct with respect to each Contract transferred on such day as if made on such
day.
(c) Notice of Breach. The representations and warranties set forth in
this Section 4.2 shall survive the transfer and assignment of the respective
Contracts and Related Equipment, or interests therein, to the Buyer. Upon
discovery by a Seller 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 Administrator under the
Receivables Purchase Agreement immediately upon obtaining knowledge of such
breach.
Section 4.3 Representations and Warranties of the Buyer.
--------------------------------------------
The Buyer hereby represents and warrants to each Seller, as of the
Closing Date and each Subsequent Purchase Date, that:
(a) Organization and Good Standing. The Buyer is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware, and has full corporate power, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this 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 corporation (or is exempt from such
requirements), and has obtained or will obtain all necessary licenses and
approvals, in each jurisdiction in which failure to so qualify or to obtain such
licenses and approvals would have a material adverse effect on its ability to
perform its obligations hereunder or under the Sale Papers.
(c) Due Authorization. The execution and delivery of this 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
corporate action on the part of the Buyer.
(d) No Conflicts. The execution and delivery of this 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 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 Agreement) will not conflict with or violate, in any material
respect, any Requirements of Law applicable to the Buyer.
(f) No Proceeding. 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 Agreement or any of the
Sale Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this 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 Agreement or any of
the Sale Papers.
ARTICLE V
COVENANTS
Section 5.1 Seller Covenants.
-----------------
Each Seller hereby covenants with respect to each Contract, that:
(a) Compliance with Laws; Preservation of Corporate Existence. Such
Seller 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. Except to the
extent the provisions of Section 6.4 are satisfied, such Seller will take no
action to cause any Contract which is not, as of the Closing Date or the related
Subsequent Purchase Date, as the case may be, 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, such Seller
will not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any Contract transferred hereunder
or related Equipment, whether now existing or hereafter transferred hereunder,
or any interest therein, and such Seller will not sell, pledge, assign or suffer
to exist any Lien on its interest, if any, hereunder, other than Liens arising
by operation of law in the ordinary course of business for sums not due and
which are released or extinguished within fifteen (15) days (or such longer
period as the Buyer may approve in its sole discretion) of such Seller becoming
aware thereof. Such Seller will immediately notify the Buyer of the existence of
any Lien on any Contract transferred hereunder or related Equipment; and such
Seller 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 such Seller from suffering to exist
Permitted Liens upon any of the Contracts transferred hereunder or any related
Equipment.
(d) Delivery of Collections. Such Seller agrees to pay to the Buyer
promptly (but in no event later than two Business Days after receipt) all
Collections received by such Seller in respect of the Contracts transferred
hereunder.
(e) Compliance with Law. Such Seller hereby agrees to comply in all
material respects with all Requirements of Law applicable to such Seller, the
Contracts and the Equipment.
(f) Activities of the Seller. Such Seller 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 Agreement, the Receivables Purchase
Agreement and the Certificate of Incorporation of the Buyer.
(g) Guarantees. Such Seller 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) Merger; Sales. Such Seller shall not enter into any transaction of
merger or consolidation, or liquidate or dissolve itself (or suffer any
liquidation or dissolution), or acquire or be acquired by any Person, or convey,
sell, lease or otherwise dispose of all or substantially all of its property or
business, except as provided for in this Agreement.
(i) Location of Seller; Records; Instruments. Such Seller (x) shall not
move the location of its chief executive office, without 30 days' prior written
notice to the Buyer and the Administrator and (y) 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 Administrator and (z) will
promptly take all actions required (including, but not limited to, all filings
and other acts necessary or advisable under the UCC, if applicable, of each
relevant jurisdiction in order to continue the first priority perfected security
interest of the Buyer in all Contracts transferred hereunder.
(j) Accounting of Purchases. Such Seller 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 such Seller to
the Buyer.
(k) ERISA Matters. Such Seller will not (a) 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; (b) 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; (c) fail to make any payments to a
Multiemployer Plan that such Seller may be required to make under the agreement
relating to such Multiemployer Plan or any law pertaining thereto; (d) terminate
any Benefit Plan so as to result in any liability; or (e) permit to exist any
occurrence of any reportable event described in Title IV of ERISA which
represents a material risk of a liability of such Seller under ERISA or the
Code.
(l) Nature of Business. Such Seller 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 Agreement.
(m) Change in the Purchase and Sale Agreement. Such Seller 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"), no later than 30 days after the earlier of
(i) knowledge of such breach on the part of the applicable Seller and (ii)
receipt by such Seller of written notice thereof given by the Buyer, such Seller
shall accept a retransfer of each such Contract (and any related Equipment or
Applicable Security) selected by the Buyer to which such breach relates at such
time as there is a breach of any such representation or warranty on the terms
and conditions set forth below; provided, however, that no such retransfer shall
be required to be made with respect to such Ineligible Contract (and such
Contract shall cease to be an Ineligible Contract) if, on or before the
expiration of such 30-day period, the representations and warranties in Section
4.2 with respect to such Contract shall be made true and correct in all material
respects with respect to such Contract as if such Contract had been transferred
to the Buyer on such day. Notwithstanding anything contained in this Section 6.1
to the contrary, in the event of breach of any representation and warranty set
forth in Section 4.2, with respect to each Original Contract or Subsequent
Contract and the related Equipment having been conveyed to the Buyer free and
clear of any Lien of any Person claiming through or under such Seller and its
Affiliates (other than Permitted Liens) and in compliance in all material
respects, with all Requirements of Law applicable to such Seller, immediately
upon the earlier to occur of the discovery of such breach by such Seller or
receipt by such Seller of written notice of such breach given by the Buyer, such
Seller shall repurchase and the Buyer shall convey, free and clear of any Lien
created pursuant to this Agreement, all of its right, title and interest in such
Ineligible Contract, and the Buyer shall, in connection with such conveyance and
without further action, be deemed to represent and warrant that it has the
corporate authority and has taken all necessary corporate action to accomplish
such conveyance, but without any other representation or warranty, express or
implied. In any of the foregoing instances, the applicable Seller shall accept a
retransfer of each such Ineligible Contract, and there shall be deducted from
the ADCB of the Asset Pool the Discounted Contract Balance (calculated using the
Blended Discount Rate as of the most recent Determination Date) of each such
Ineligible Contract. On and after the date of such retransfer, each Ineligible
Contract so retransferred shall not be included in the pool of Purchased Assets.
In consideration of such retransfer the applicable Seller shall, on the date of
retransfer of such Ineligible Contract, make a deposit in the Collection Account
(for allocation pursuant to Section 2.7 or 2.9 of the Receivables Purchase
Agreement, as applicable,) in immediately available funds in an amount equal to
the Discounted Contract Balance, plus interest thereon from the most recent
Settlement Date to and including the date of repurchase at a rate per annum
equal to the weighted average of the Yield Rates. Upon each retransfer to the
applicable Seller of such Ineligible Contract, the Buyer shall automatically and
without further action be deemed to transfer, assign and set-over to such
Seller, free and clear of any Lien created pursuant to this Agreement, all the
right, title and interest of the Buyer in, to and under such Contract and all
monies due or to become due with respect thereto, the related Equipment and all
proceeds of such Contract and Liquidation Proceeds, Residual Proceeds and
Insurance Proceeds relating thereto and all rights to security for any such
Contract, and all proceeds and products of the foregoing, and 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 corporate authority
and has taken all necessary corporate 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 applicable
Seller, execute such documents and instruments of transfer as may be prepared by
such Seller and take such other actions as shall reasonably be requested by such
Seller 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 affecting the Contracts, which breach could
reasonably be expected to have a material adverse affect on the rights of MSFC
or the Administrator under the Receivables Purchase Agreement or on the ability
of the Buyer to perform its obligations under the Receivables Purchase
Agreement, the Buyer, by notice then given in writing to the applicable Seller
may direct such Seller to accept retransfer of all of the Contracts purchased
from such Seller and such Seller shall be obligated to accept retransfer of such
Contracts on a Settlement Date specified by such Seller (such date, the
"Retransfer Date") after such notice on the terms and conditions set forth
below; provided, however, that no such retransfer shall be required to be made
if, on or before expiration of such applicable period, the representations and
warranties contained in Section 4.2 shall then be true and correct in all
material respects. The applicable Seller shall deposit on the Retransfer Date an
amount equal to the deposit amount provided in the next sentence for such
Contracts in the Collection Account for distribution in accordance with the
Receivables Purchase Agreement. The deposit amount for such retransfer will be
equal to (x) the sum of (i) the outstanding Capital at the end of the Business
Day preceding the Settlement Date on which the retransfer is scheduled to be
made and (ii) an amount equal to all accrued, and to accrue, but unpaid Yield on
such Capital at the applicable Yield Rate through the latest maturing Fixed
Period minus (y) the amount, if any, available in the Collection Account on such
Settlement Date. On the Retransfer Date, provided that such amount has been
deposited in full into the Collection Account, the Contracts transferred
hereunder (or security interests therein) and all monies due or to become due
with respect thereto, the related Equipment (or security interests therein) and
all proceeds thereof, all rights to security for any such Contracts, and all
proceeds and products of the foregoing, shall be transferred to the applicable
Seller, and the Buyer shall, at the sole expense of such Seller, execute and
deliver such instruments of transfer, in each case without recourse,
representation or warranty, as shall be prepared and reasonably requested by
such Seller to vest in such Seller, or its designee or assignee, all right,
title and interest of the Buyer in, to and under the Contracts transferred
hereunder, all monies due or to become due with respect thereto, the related
Equipment and all proceeds thereof and insurance Proceeds relating thereto.
Section 6.3 Adjustments.
------------
Each Seller 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, such Seller shall indemnify the Buyer in an
amount equal to the 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 applicable Seller, request
that any Contract be replaced by one or more other Contracts (each, a
"Substitute Contract"); provided, however, that no such replacement shall occur
unless each of the following conditions is satisfied as of the date of such
replacement and substitution:
(a) such Seller has previously notified the Buyer in writing that the
Contract to be replaced should be replaced (each, a "Replaced Contract");
(b) each Substitute Contract is an Eligible Contract on the date of
such substitution;
(c) after giving effect to any such substitution, the aggregate of all
outstanding Capital does not exceed the lesser of (i) the Purchase Limit or (ii)
the Capital Limit;
(d) the aggregate Discounted Contract Balance (at the applicable Sale
Discount Rate) of such Substitute Contracts shall be equal to or greater than
the aggregate Discounted Contract Balances (at the applicable Sale Discount Rate
as of the date of the inclusion of such Contract in the Asset Pool) of Contracts
being replaced;
(e) such Substitute Contracts, at the time of substitution by such
Seller, shall have approximately the same weighted average life as the remaining
Scheduled Payments of Assets in the Asset Pool and shall not materially exceed
the last Scheduled Payment of any Asset in the Asset Pool;
(f) all representations and warranties of such Seller contained in
Section 4.1 and 4.2 shall be true and correct as of the date of substitution of
any such Substitute Contract;
(g) the substitution of any Substitute Contract does not cause a
Termination Event or Unmatured Termination Event to occur under the Receivables
Purchase Agreement; and
(h) such Seller shall deliver to the Administrator 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 connection with any such substitution, the Buyer shall,
automatically and without further action, be deemed to transfer to the
applicable Seller, free and clear of any Lien created pursuant to this
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 corporate authority and has taken all necessary corporate 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 6.5 shall be in addition to, and without limitation of, any
other rights or remedies that the Buyer may have to require such Seller to
substitute for, or accept retransfer of, any Contract pursuant to the terms of
this 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 a Seller
on the Closing Date and on any Subsequent Purchase Date shall be subject to the
satisfaction of the following conditions:
(a) all representations and warranties of such Seller 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) on and as of such day, such Seller shall have performed all
obligations required to be performed by it on or prior to such day pursuant to
the provisions of this Agreement;
(c) no event has occurred and is continuing, or would result from such
purchase which constitutes a Termination Event or Unmatured Termination Event
under the Receivables Purchase 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 Agreement shall be
satisfactory in form and substance to the Buyer, and the Buyer shall have
received from such Seller 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.
Section 7.2 Conditions to Effectiveness of Amendment and Restatement
---------------------------------------------------------
of Original Agreement.
----------------------
The effectiveness of this Agreement amending and restating the Original
Agreement shall be subject to the receipt by the Administrator of each of the
following items:
(a) certificates of the Secretary or Assistant Secretary of each of the
Sellers, each dated the date of this Agreement, certifying (i) the names and
true signatures of the incumbent officers of such Person authorized to sign this
Agreement and the other documents to be delivered by it hereunder, (ii) that the
copy of the certificate of incorporation of such Person attached thereto is a
complete and correct copy and that such certificate of incorporation has not
been amended, modified or supplemented and is in full force and effect, (iii)
that the copy of the bylaws of such Person attached thereto is a complete and
correct copy and that such by-laws have not been amended, modified or
supplemented and are in full force and effect, and (iv) the resolutions of such
Person's board of directors approving and authorizing the execution, delivery
and performance by such Person of this Agreement and the documents related
thereto (including, in the case of FLI, the Performance Guaranty);
(b) a good standing certificate for JLA issued by the Secretary of
State of Delaware;
(c) acknowledgment copies of proper financing statements, dated a date
reasonably near to the date hereof, describing the Assets and naming JLA as
debtor, the Buyer as secured party and the Administrator as assignee, or other,
similar instruments or documents, as may be necessary or, in the opinion of the
Administrator, desirable under the UCC of all appropriate jurisdictions or any
comparable law to perfect the Administrator's interests in all Assets;
(d) acknowledgment copies of proper financing statements, if any,
necessary to release all security interests and other rights of any Person in
the Assets previously granted by JLA;
(e) certified copies of requests for information or copies (or a
similar search report certified by a party acceptable to the Administrator),
dated a date reasonably near to the date hereof, listing all effective financing
statements which name JLA (under its present name and any previous name) as
debtor and which are filed in the jurisdictions in which the financing
statements referred to in clause above were filed, together with copies of such
financing statements (none of which, other than the financing statements
referred to above, shall cover any Assets or Contracts);
(f) opinions of special counsel to JLA relating to the effect that:
(1) JLA is a corporation organized, existing and in good
standing under the laws of its jurisdiction of organization,
with corporate power and authority to own its properties and
conduct its business as currently conducted; and JLA is
qualified to do business as a foreign corporation in good
standing in each jurisdiction in which it owns or leases
substantial properties or in which the conduct of its business
requires such qualification;
(2) JLA has or had at all relevant times full power, authority
and legal right to exercise, deliver and perform its
obligations under the Transaction Documents; and has or had at
all relevant times full power, authority and legal right to
acquire, own and transfer the Assets and the other property
transferred by it to the Buyer pursuant to this Agreement;
(3) Each of the Transaction Documents to which JLA is a party
has been duly authorized, executed and delivered by JLA and is
a valid and binding agreement, enforceable against JLA in
accordance with its respective terms, except to the extent
that enforcement thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally, (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or
in equity) and (C) the qualification that certain remedial
provisions of the Agreement may be unenforceable in whole or
in part, but the inclusion of such provisions does not affect
the validity of the Agreement, and the Agreement, together
with applicable law, contains adequate remedial provisions for
the practical realization of the benefits of the security
created thereby;
(4) The grant of the security interest in the Assets by JLA to
the Buyer pursuant to this Agreement, the compliance by JLA
with all of the provisions of, and the consummation of the
transactions contemplated in, the Transaction Documents will
not (A) conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which JLA is
a party or by which JLA is bound or to which any of the
property or assets of JLA is subject, (B) result in any
violation of the provisions of any order known to such counsel
of any court or governmental agency or body having
jurisdiction over JLA or any of its properties or (C) result
in any violation of the provisions of the charter or the
by-laws of JLA or any statute or any rule or regulation of any
governmental agency or body having jurisdiction over JLA or
any of its properties;
(5) No authorization, approval, consent or order of, or filing
with, any court or governmental authority or agency is
required by JLA in connection with the consummation of the
transactions contemplated in the Transaction Documents, except
such as have been obtained;
(6) To the best of such counsel's knowledge and information,
there are no legal or governmental proceedings pending or
threatened (A) asserting the invalidity of any Transaction
Document, (B) seeking to prevent the consummation by JLA of
any of the transactions contemplated by any Transaction
Document or (C) which might materially and adversely affect
the performance by JLA of its obligations under any
Transaction Document;
(7) The provisions of the Purchase Agreement are effective to
create a valid security interest in the Assets in favor of the
Buyer and such security interest is perfected and prior to all
other creditors of and purchasers from JLA; and
(8) Such other matters as the Administrator may reasonably
request, including without limitation, the "true sale" of the
Assets from JLA to the Buyer and the "non-consolidation" of
the Buyer with JLA;
(g) an executed copy of the Performance Guaranty, in form and substance
satisfactory to the Administrator;
(h) an opinion of Xxxxxx, Xxxxx & Xxxxxxx, special counsel to FLI,
relating to the due authorization, execution and enforceability of the
Performance Guaranty;.
(i) an executed copy of the first amendment to the Receivables Purchase
Agreement, in form and substance satisfactory to the Administrator, together
with all opinions and documents required to be delivered in connection
therewith;
(j) written confirmation from both Xxxxx'x and S&P that the
effectiveness of this Agreement and the first amendment to the Receivables
Purchase Agreement will not cause either such rating agency to reduce its rating
of the Commercial Paper Notes below A-1, in the case of S&P and P-1, in the case
of Xxxxx'x;
(k) such other approvals, opinions or documents as the Administrator
may reasonably require.
ARTICLE VIII
TERM AND TERMINATION
Section 8.1 Termination.
------------
This Agreement shall commence as of the date of execution and delivery
hereof and shall continue in full force and effect until the occurrence of the
Collection Date pursuant to the Receivables Purchase Agreement; provided,
however, that the termination of this Agreement pursuant to this Section 8.1
shall not discharge any Person from obligations incurred prior to any such
termination of this Agreement, including, without limitation, any obligations to
repurchase Contracts sold prior to such termination pursuant to Section 6.1 or
6.2, or to make the payments required under Section 6.3.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 7.1 Amendment.
----------
This 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 each Seller, with the prior
written consent of the Administrator. The Buyer shall provide not less than 10
Business Days prior written notice of any such amendment to the Administrator.
Section 7.2 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 7.3 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 SPC II, Inc.
0000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. English
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) in the case of the FLI, to:
Fidelity Leasing, Inc.
0000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. English
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) in the case of the JLA, to:
JLA Credit Corporation
c/o
Fidelity Leasing, Inc.
0000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. English
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(d) in the case of the Administrator, to:
PNC Bank, National Association
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
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 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
Agreement and the Sale Papers and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or any of the Sale
Papers.
Section 9.5 Assignment.
-----------
(a) Notwithstanding anything to the contrary contained herein, this
Agreement may not be assigned by the Buyer or either Seller except as permitted
by this Section 9.5 or by the Receivables Purchase Agreement. Simultaneously
with the execution and delivery of this Agreement, the Buyer shall assign all of
its right, title and interest herein (to the extent of the aggregate Asset
Interests) to the Administrator under the Receivables Purchase Agreement as
provided in the Receivables Purchase Agreement, to which assignment each Seller
hereby expressly consents. Each Seller agrees to perform its obligations
hereunder for the benefit of the Administrator under the Receivables Purchase
Agreement and the Administrator and MSFC shall be a third party beneficiary
hereof. The Administrator or MSFC may enforce the provisions of this Agreement,
exercise the rights of the Buyer and enforce the obligations of each Seller
hereunder as provided in of the Receivables Purchase Agreement. This Agreement
may not be assigned by either Seller except in connection with a merger or
consolidation of such Seller with or into, or disposition of such Seller's
properties and assets to, another Person; provided, however, that any such
merger, consolidation or disposition shall satisfy the requirements of Section
9.14, upon not less than 10 Business Days' prior written notice to the Buyer and
the Administrator.
(b) In connection with any permitted assignment of this Agreement by a
Seller, such Seller shall deliver to the Buyer and the Administrator 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 such Seller, pursuant to which such assignee shall
expressly assume and agree to the performance of every covenant and obligation
of such Seller 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 each Seller 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 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 either Seller, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privilege provided by law.
Section 9.8 Counterparts.
-------------
This Agreement may be executed in two or more counterparts including
telefax transmission thereof (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 9.9 Binding Effect; Third-Party Beneficiaries.
------------------------------------------
This 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 Agreement.
Section 9.10 Merger and Integration.
-----------------------
Except as specifically stated otherwise herein, this 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 Agreement, and
all prior understandings, written or oral, are superseded by this Agreement.
This 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 Agreement and are incorporated into this Agreement for
all purposes.
Section 9.13 No Proceedings.
---------------
Each Seller hereby covenants and agrees that, prior to the date which
is one year and one day after the payment in full of all Aggregate Unpaids and
all other amounts payable under the Receivables Purchase Agreement, it will not
institute against or join any other Person in instituting against the Buyer any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any State of
the United States.
Section 9.14 Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, a Seller.
-------------------------
Neither Seller shall consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into which such
Seller is merged or the Person which acquires by conveyance or transfer the
properties and assets of such Seller substantially as an entirety shall be, if
such Seller is not the surviving entity, organized and existing under the laws
of the United States of America 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 such Seller hereunder (to the extent that any
right, covenant or obligation of such Seller, 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);
(ii) such Seller shall have delivered to the Buyer and the
Administrator an Officer's Certificate that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply with this Section
9.14 and that all conditions precedent herein provided for relating to such
transaction have been complied with and an Opinion of Counsel that such
supplemental agreement is legal, valid and binding with respect to the successor
entity and that the entity surviving such consolidation, conveyance or transfer
is organized and existing under the laws of the United States of America or any
State or the District of Columbia. The Administrator shall receive prompt
written notice of such merger or consolidation of such Seller; and
(iii) after giving effect thereto, no Termination Event or Unmatured
Termination Event shall have occurred.
Section 9.14 Costs, Expenses and Taxes.
--------------------------
(a) The Sellers, jointly and severally, agree 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
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 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
Agreement and the other documents to be delivered hereunder or in connection
herewith.
(b) The Sellers, jointly and severally, agree to 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 Agreement or any agreement or other document delivered in connection with
this Agreement.
(c) The Sellers, jointly and severally, agree to 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, however, that no Seller
shall 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 any Seller as contained in this 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 such Seller or any
incorporator, officer, employee or director of such Seller 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 each Seller contained in this
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 such Seller, and that no personal liability
whatsoever shall attach to or be incurred by any administrator of such Seller or
any incorporator, officer, employee or director of such Seller or of any such
administrator, as such, or any other them, under or by reason of any of the
obligations, covenants or agreements of such Seller 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 such Seller and each incorporator, officer, employee or director of such
Seller or of any such administrator, or any of them, for breaches by such Seller
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 Agreement. The provisions of this Section 9.16(a) shall survive the
termination of this 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 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, employee or director of the Buyer 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 Buyer contained in this
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 Buyer, and that no personal liability
whatsoever shall attach to or be incurred by any administrator of the Buyer or
any incorporator, officer, employee or director of the Buyer 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 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, 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 Agreement. The provisions of this Section 9.16(b) shall survive the
termination of this Agreement.
Section 9.17 Amendment and Restatement.
--------------------------
This Agreement amends and restates in full the Original Agreement.
Nothing in this Agreement shall be construed to abrogate any of the obligations
of the parties hereto pursuant to the Original Agreement. Without limiting the
foregoing, all accrued amounts owing under the Original Agreement but not due
and payable as of the date hereof shall be due and payable on the next date for
payment of such amounts as provided for in this Agreement or the Original
Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Buyer and the Sellers have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
FIDELITY LEASING SPC II, INC.
By:
Name:
Title:
FIDELITY LEASING, INC.
By:
Name:
Title:
JLA CREDIT CORPORATION
By:
Name:
Title:
