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TRANSFER AND SALE AGREEMENT
between
FIDELITY LEASING, INC.
as Seller
and
FIDELITY EQUIPMENT LEASE DEPOSITOR I, LLC
as Trust Depositor
Dated as of June 2, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 General.......................................................................................1
ARTICLE II
TRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT
Section 2.01 Closing.......................................................................................1
Section 2.02 Conditions to the Closing.....................................................................3
Section 2.03 Assignment of Agreement.......................................................................3
Section 2.04 Acknowledgment with Respect to Prior Transactions.............................................4
Section 2.05 Release of Excluded Amounts...................................................................4
Section 2.06 Delivery of Instruments.......................................................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Seller..................................................4
Section 3.02 Representations and Warranties of Fidelity....................................................6
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
Section 4.01 Custody of Contracts..........................................................................6
Section 4.02 Filing........................................................................................6
Section 4.03 Name Change or Relocation.....................................................................7
Section 4.04 Sale Treatment................................................................................7
ARTICLE V
MISCELLANEOUS
Section 5.01 Prohibited Transactions with Respect to the Trust Depositor...................................8
Section 5.02 Termination...................................................................................8
Section 5.03 Assignment or Delegation by the Seller........................................................8
Section 5.04 Amendment.....................................................................................8
Section 5.05 Notices.......................................................................................9
Section 5.06 Merger and Integration.......................................................................10
Section 5.07 Headings.....................................................................................10
Section 5.08 GOVERNING LAW................................................................................10
Section 5.09 No Bankruptcy Petition.......................................................................10
Section 5.10 Third Party Beneficiaries....................................................................10
Section 5.11 Severability of Provisions...................................................................10
Section 5.12 No Waiver; Cumulative Remedies...............................................................10
Section 5.13 Counterparts.................................................................................11
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EXHIBITS
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Exhibit A Form of Assignment
Exhibit B Purchase Price of Contracts
TRANSFER AND SALE AGREEMENT
This TRANSFER AND SALE AGREEMENT, dated as of June 2, 1999, is
made between Fidelity Leasing, Inc. ("Fidelity or the "Seller"), as the seller
hereunder, and Fidelity Equipment Lease Depositor I, LLC, as the purchaser
hereunder (the "Trust Depositor").
WHEREAS, the Seller and the Trust Depositor wish to set forth
the terms and conditions pursuant to which the Trust Depositor will acquire all
right, title and interest of the Seller in and to the Initial Contracts on the
Closing Date (such Initial Contracts together with certain related property as
more fully described herein, constituting the "Contract Assets" as more
particularly defined below);
WHEREAS, the Trust Depositor intends concurrently with the
transfer of the Contract Assets hereunder to convey all right, title and
interest in such Contracts to Fidelity Equipment Lease Trust 1999-1 (the
"Trust") pursuant to a Sale and Servicing Agreement dated as of June 2, 1999 by
and among the Trust, the Trust Depositor, Fidelity Leasing, Inc., as Seller and
Servicer, the Back-Up Servicer (as defined therein), the Collateral Custodian
(as defined therein) and the Indenture Trustee (as defined therein) (the "Sale
and Servicing Agreement") executed concurrently herewith;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the Seller and the Trust Depositor
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. Unless otherwise defined in this
Agreement, capitalized terms used herein (including in the preamble above) shall
have the meanings assigned to them in the Sale and Servicing Agreement, and if
not defined therein, shall have the meanings assigned to them in the Indenture.
ARTICLE II
TRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT
Section 2.01 Closing. Subject to and upon the terms and
conditions set forth in this Agreement, the Seller hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trust Depositor on the Closing
Date, in consideration of the Trust Depositor's payment of the purchase price to
the Seller set forth on Exhibit B hereto in cash as the purchase price therefor,
all the right, title and interest of the Seller in and to the following items
(items (a)-(g) below, being collectively referred to herein as the "Contract
Assets"):
(a) the Initial Contracts, and all monies due or to become due
in payment of such Contracts on and after the Initial Cutoff Dates, any
Prepayment Amounts, any payments in respect of a casualty or early
termination, and any Defaulted Contract Recoveries received with
respect thereto, but excluding any Scheduled Payments due prior to the
Cutoff Date or any Excluded Amounts;
(b) the Financed Items related to such Contracts, including
all proceeds from any sale or other disposition of such Financed Items
(but subject to the exclusion and release herein of Excluded Amounts);
(c) the Contract Files;
(d) all payments made or to be made in the future with respect
to such Contracts or the Obligor thereunder under any Program Agreement
and under any guarantee or similar credit enhancement with respect to
such Contracts;
(e) all Insurance Proceeds with respect to each such Contract;
(f) all income from and proceeds of the foregoing; and
(g) the security interest of the Seller or its affiliates in
the Equipment or other property securing such Contracts and the
proceeds thereof.
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
Trust Depositor of (i) any obligation of the Seller in connection with the
Contract Assets, (ii) any agreement or instrument relating thereto, including,
without limitation, any obligation to any Obligor or any other Person in respect
of services not financed by the Seller, (iii) any taxes, fees, or other charges
imposed by any Governmental Authority, or (iv) any insurance premiums which
remain owing with respect to any Contract at the time such Contract is sold
hereunder. Although the Seller and the Trust Depositor agree that any such
transfer is intended to be a sale of ownership of the Contract Assets, rather
than the mere granting of a security interest to secure a borrowing, in the
event any such transfer is deemed to be of a mere security interest to secure
indebtedness, the Seller shall be deemed to have granted the Trust Depositor a
perfected first priority security interest in such Contract Assets and this
Agreement shall constitute a security agreement under applicable law, securing
the repayment of the purchase price paid hereunder and the obligations and/or
interests represented by the Notes, in the order and priorities, and subject to
the other terms and conditions of, the Sale and Servicing Agreement and the
Indenture, together with such other obligations or interests as may arise
hereunder and thereunder in favor of the parties hereto and thereto. If such
transfer is deemed to be the mere granting of a security interest to secure a
borrowing, the Trust Depositor may, repledge and reassign (i) all or a portion
of the Contract Assets pledged to the Trust Depositor and not released from the
security interest of this Agreement at the time of such pledge and assignment,
and (ii) all proceeds thereof. Such repledge and reassignment may be made by the
Trust Depositor with or without a repledge and reassignment by the Trust
Depositor of its rights under this Agreement, and without further notice to or
acknowledgments from the Seller. The Seller waives, to the extent permitted by
applicable law, all claims, causes of action and remedies, whether legal or
equitable (including any right of setoff), against the Trust Depositor or any
assignee of the Trust Depositor relating to such action by the Trust Depositor
in connection with the transactions contemplated by the Sale and Servicing
Agreement.
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Section 2.02 Conditions to the Closing. On or before the
Closing Date, the Seller shall deliver or cause to be delivered to the Trust
Depositor (or in the case of the Contract Files, to the Collateral Custodian)
each of the documents, certificates and other items as follows:
(a) a List of Contracts, certified by the Chairman of the
Board, President or any Vice President of the Seller together with an
Assignment substantially in the form attached as Exhibit A hereto;
(b) a certificate of an officer of the Seller substantially in
the form of Exhibit C-2 to the Sale and Servicing Agreement;
(c) an opinion of counsel for the Seller substantially in the
form of Exhibit E to the Sale and Servicing Agreement;
(d) a letter from Xxxxxx Xxxxxxxx LLP, or another nationally
recognized accounting firm, addressed to the Trust Depositor and the
Indenture Trustee and stating that such firm has reviewed a sample of
the Contracts and performed specific procedures for such sample with
respect to certain contract terms and identifying those Contracts which
do not so conform;
(e) copies of resolutions of the board of directors of the
Seller approving the execution, delivery and performance of this
Agreement and the transactions contemplated hereunder, certified in
each case by the Secretary or an Assistant Secretary of the Seller;
(f) officially certified recent evidence of due incorporation
or other formation and good standing of the Seller under the laws of
its jurisdiction of organization;
(g) the Seller shall have delivered the related Contract Files
to the Collateral Custodian; (h) evidence of proper filing with
appropriate offices in the UCC Filing Locations of UCC financing
statements executed by the Seller, as debtor, naming the Trust
Depositor as secured party and the Trust as assignee and identifying
the Contract Assets as collateral;
(i) a fully executed Transfer and Sale Agreement; and
(j) a fully executed Sale and Servicing Agreement, together
with the documents, certificates and other items described in Section
2.02 of the Sale and Servicing Agreement, to the extent not already
described above.
Section 2.03 Assignment of Agreement. The parties hereto
expressly acknowledge and agree that the Trust Depositor has the right to assign
its interest under this Agreement to the Trust as may be required to effect the
purposes of the Sale and Servicing Agreement, and that the Trust will in turn
have the right to assign such interest to the Indenture Trustee as may be
required to effect the purposes of the Indenture. The parties hereto further
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acknowledge and agree that each such assignment may be made without further
notice to, or consent of, the Seller, and the Trust and the Indenture Trustee
shall succeed to such of the rights of the Trust Depositor hereunder as shall be
so assigned.
Section 2.04 Acknowledgment with Respect to Prior
Transactions. Each party hereto hereby represents to the other parties hereto
that the Recitals to this Agreement are true and correct insofar as they relate
to such party, and acknowledges and agrees that the sales of Contract Assets by
the Seller and the other transactions contemplated hereby are undertaken by
Fidelity Leasing, Inc. as described therein.
Section 2.05 Release of Excluded Amounts. Immediately upon the
release to the Trust Depositor by the Trust of Excluded Amounts, the Trust
Depositor hereby irrevocably agrees to release to the Seller such Excluded
Amounts, which release shall be automatic and shall require no further act by
the Trust Depositor, provided, that the Trust Depositor shall execute and
deliver such instruments of release and assignment, or otherwise confirming the
foregoing release of any Excluded Amounts, as may be reasonably requested by the
Seller.
Section 2.06 Delivery of Instruments. On the Closing Date, the
Seller shall deliver possession of all "instruments" (within the meaning of
Article 9 of the UCC) not constituting part of chattel paper (within the meaning
of such Article 9), which evidence any Contract to the Trust Depositor, in each
case endorsed in blank without recourse. Pursuant to Section 2.06 of the Sale
and Servicing Agreement, the Trust Depositor is required to deliver any such
instrument to the Trust (or the Owner Trustee on its behalf), which in turn
(pursuant to Section 2.06 of the Sale and Servicing Agreement and Section 3.05
of the Indenture) is required to deliver such instruments to the Indenture
Trustee as pledgee under the Indenture. Accordingly, the Trust Depositor hereby
authorizes and directs the Seller to deliver possession of any such instruments
to the Trust (or the Owner Trustee on its behalf) on behalf of and for the
account of the Trust Depositor, and agrees that such delivery shall satisfy the
condition set forth in the first sentence of this Section 2.06. The Seller shall
also identify on the related List of Contracts, whether by attached schedule or
marking or other effective identifying designation, all Contracts which are or
are evidenced by such instruments.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Seller. The
Seller makes the following representations and warranties, on which the Trust
Depositor will rely in purchasing Contract Assets from the Seller on the Closing
Date and on which the Noteholders and the Trustees will rely under the
Indenture. Such representations speak as of the execution and delivery of this
Agreement and as of the Closing Date.
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(a) Due Organization and Good Standing. The Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of formation or incorporation and is duly qualified to
do business, and is in good standing, in such jurisdiction and in every other
jurisdiction in which the nature of its business requires it to be so qualified.
(b) Due Authorization and No Conflict. The execution, delivery
and performance by the Seller of this Agreement and all other Transaction
Documents to which it is a party, and the transactions contemplated hereby and
thereby, are within the Seller's corporate or other powers, have been duly
authorized by all necessary corporate or other action on the part of the Seller,
do not contravene (i) the Seller's charter or by-laws, (ii) any law, rule or
regulation applicable to the Seller, (iii) any contractual restriction contained
in any indenture, loan or credit agreement, contract, mortgage, security
agreement, bond, note, or other agreement or instrument binding on the Seller or
its property (except to the extent waived in writing by the party having the
benefit of such restriction) or (iv) any order, writ, judgment, award,
injunction or decree binding on the Seller or its property, and do not result in
or require the creation of any adverse claim upon or with respect to any of its
properties pursuant to any material indenture, loan or credit agreement,
contract, mortgage, security agreement, bond, note or other material agreement
binding on the Seller or its property (other than in favor of the Trust
Depositor as contemplated hereunder); and no transaction contemplated hereby
requires compliance with any bulk sales act or similar law. This Agreement has
been duly executed and delivered on behalf of the Seller.
(c) Governmental Consent. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority is
required for the due execution, delivery and performance by the Seller of this
Agreement or any other agreement, document or instrument to be delivered
hereunder.
(d) No Litigation. There are no actions, suits or proceedings
pending, or to the knowledge of the Seller threatened in writing, against the
Seller or any of its subsidiaries, or the property of the Seller or any of its
subsidiaries, in any court, or before any arbitrator of any kind, or before or
by any governmental body, which (i) assert the invalidity of any Transaction
Document or any action to be taken by the Seller in connection therewith, or
(ii) seek to prevent the consummation of the transactions contemplated by this
Agreement and the other Transaction Documents. The Seller is not in default with
respect to any order of any Governmental Authority.
(e) Use of Proceeds. No proceeds of any sale will be used by
the 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.
(f) Perfection of Interest in Contract Assets. Prior to the
Trust Depositor's purchase and/or acquisition of each Contract Asset to be sold
by the Seller hereunder, each Contract Asset shall, together with the Contract
related thereto, be owned by the Seller, free and clear of any adverse claim
arising as a result of any action taken by the Seller, and upon each purchase,
the Trust Depositor shall acquire all of the right, title and interest of the
Seller in each Contract Asset then existing or thereafter arising and in the
related security, Collections and Financed Items (except Software) (if any) with
respect thereto, in each case free and clear of any adverse claim arising as a
result of any action taken by the Seller; and no effective financing statement
or other instrument similar in effect filed by or permitted to be filed by the
Seller covering any Contract Asset, the related security, Collections or the
other Contract Asset with respect thereto shall at any time be on file in any
recording office except as such may be filed in favor of the Trust Depositor or
its assignees in accordance with this Agreement, and, with respect to the
Financed Items, against the related Obligor in favor of Fidelity or its
predecessor in interest.
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(g) Location of Chief Executive Office and Records. The chief
place of business and chief executive office of the Seller is located at 0000
Xxxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000.
(h) Transaction Documents. The Transaction Documents are the
only agreements pursuant to which the Trust Depositor purchases Contracts and
any other accounts receivable from the Seller, and the Transaction Documents
represent all material agreements between the Seller and the Trust Depositor.
All such Contract Assets are transferred without recourse to the Seller, except
to the extent of the representations and warranties made by the Seller hereunder
and under the Sale and Servicing Agreement and as otherwise expressly provided
herein or therein.
(i) Solvency. The Seller is not "insolvent" (as such term is
defined in ss.101(32)(A) of the Bankruptcy Code).
(j) No Fraudulent Conveyance. The transactions contemplated by
this Agreement and by each of the Transaction Documents are being consummated by
the Seller in furtherance of the Seller's ordinary business, with no
contemplation of insolvency and with no intent to hinder, delay or defraud any
of its present or future creditors. By its receipt of the purchase price
hereunder the Seller shall have received reasonably equivalent value for the
Contract Assets sold or otherwise conveyed to the Trust Depositor under this
Agreement.
Section 3.02 Representations and Warranties of Fidelity. Under
the Sale and Servicing Agreement, the Seller will represent and warrant to, and
covenant with, the Trust Depositor and for the benefit of the Trust, the
Trustees, the Noteholders and the Certificateholder with respect to all the
Contract Assets as provided in Sections 3.02, 3.03, 3.04 and 3.05 of the Sale
and Servicing Agreement.
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
Section 4.01 Custody of Contracts. Subject to the terms and
conditions of this Section 4.01, the contents of each Contract File shall be
held in the custody of the Collateral Custodian for the benefit of the
Noteholders, the Certificateholder, the Indenture Trustee and the Trust as the
owner thereof. The Seller agrees to cooperate with the Collateral Custodian and
the Servicer in their efforts to comply with all of their obligations under the
Sale and Servicing Agreement in respect of the Contract Assets, and acknowledges
and consents to the transactions contemplated therein.
Section 4.02 Filing. On or prior to the Closing Date, the
Seller shall cause the UCC financing statement(s) referred to in Section 2.02(h)
hereof to be filed and from time to time. The Seller shall take and cause to be
taken such actions and execute such documents as are necessary or desirable or
as the Trust Depositor or the Servicer may reasonably request to perfect and
protect the Trust Depositor's ownership interest in the Contract Assets against
all other persons, including, without limitation, the filing of financing
statements, amendments thereto and continuation statements, the execution of
transfer instruments and the making of notations on or taking possession of all
records or documents of title.
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Section 4.03 Name Change or Relocation.
(a) During the term of this Agreement, the Seller shall not
change its name, identity or structure or relocate its chief executive office,
or relocate or establish a new location where Contract Files are maintained,
without first giving at least 30 days' prior written notice to the Trust
Depositor, the Indenture Trustee and the Owner Trustee (on behalf of the Trust).
(b) If any change in the Seller's name, identity or structure
or other action would make any financing or continuation statement or notice of
ownership interest or lien filed under this Agreement seriously misleading
within the meaning of applicable provisions of the UCC or any title statute, the
Seller, no later than five days after the effective date of such change, shall
file such amendments as may be required to preserve and protect the Trust's and
the Indenture Trustee's interests in the Trust Assets and proceeds thereof. In
addition, the Seller shall not change its place of business or its chief
executive office (within the meaning of Article 9 of the UCC) from the location
specified in Section 3.01(g) above, or relocate or establish a location where it
maintains Contract Files which is other than in one the UCC Filing Locations,
unless it has first taken such action as is advisable or necessary to preserve
and protect the Trust's and the Indenture Trustee's interest in the Contract
Assets. Promptly after taking any of the foregoing actions, the Seller shall
deliver to the Trust Depositor and the Trustees an opinion of counsel stating
that, in the opinion of such counsel, all financing statements or amendments
necessary to preserve and protect the interests of the Trust and the Indenture
Trustee in the Contract Assets have been filed, and reciting the details of such
filing.
Section 4.04 Sale Treatment. The Seller and the Trust
Depositor shall treat the transfer of Contract Assets made hereunder for all
purposes as a sale and purchase on all of its relevant books, records, financial
statements and other applicable documents. Without limiting the generality of
the foregoing, such purposes include all financial accounting purposes;
provided, however, that if GAAP principals require such assets be shown on the
Seller's books, the Seller shall cause to be footnoted or otherwise indicated on
its books that such assets are shown on the books of the Seller solely because
of principles of consolidation under GAAP, that the Seller does not own such
assets, and that such assets are owned by the Trust. Notwithstanding the
preceding sentence, solely for state and federal income tax purposes the
transfer of Contract Assets by the Seller hereunder may not be treated as a sale
and purchase for state and federal income tax purposes so long as the Trust
Depositor is disregarded as a separate entity pursuant to Treasury Regulations
Sections 301.7701-3(b)(i)(ii).
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ARTICLE V
MISCELLANEOUS
Section 5.01 Prohibited Transactions with Respect to the Trust
Depositor. The Seller shall not:
(a) provide credit to any Noteholder for the purpose of
enabling such Noteholder to purchase Notes; or
(b) purchase any Notes in an agency or trustee capacity;
(c) lend any money to the Trust Depositor.
Section 5.02 Termination. This Agreement shall terminate
(after distribution of all amounts distributable pursuant to Section 7.05 of the
Sale and Servicing Agreement) on the Distribution Date on which the principal
balance of the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, Class B Notes, Class C Notes, Class D Notes and the Certificate is
reduced to zero; provided, however, that the Seller's representations and
warranties, covenants and indemnities shall survive termination of this
Agreement.
Section 5.03 Assignment or Delegation by the Seller. Except as
specifically authorized hereunder, the Seller may not convey and assign or
delegate any of its rights or obligations hereunder absent the prior written
consent of the Trust Depositor, the Trust and the Indenture Trustee, and any
attempt to do so without such consent shall be void.
Section 5.04 Amendment.
(a) This Agreement may be amended from time to time by the
Seller and the Trust Depositor, with notice to the Rating Agencies and the
Trustees, but without the consent of the Trust, the Indenture Trustee or any of
the Noteholders or the Certificateholder to correct manifest error, to cure any
ambiguity, to correct or supplement any provisions herein or therein which may
be inconsistent with any other provisions herein or therein, as the case may be,
or to add any other provisions with respect to matters or questions arising
under this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
opinion of Counsel for the Seller acceptable to the Trustees, adversely affect
the interests of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by
the Seller and the Trust Depositor, with notice to the Rating Agencies and with
the consent of the Required Holders and the Trustees, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Trustees for
the benefit of Noteholders or Certificateholder; provided, however, that no such
amendment or waiver shall (a) reduce in any manner the amount of, or delay the
timing of, collections of payments on the Contracts or distributions which are
required to be made on any Note or Certificate or (b) reduce the aforesaid
percentage required to consent to any such amendment, without the consent of the
holders of all affected Securities then outstanding.
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(c) Promptly after the execution of any amendment or consent
pursuant to this Section 5.04, the Trust Depositor shall furnish written
notification of the substance of such amendment and a copy of such amendment to
the Trustees and the Rating Agencies.
(d) It shall not be necessary for the consent of Noteholders
or the Certificateholder under this Section 5.04 to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Noteholders and the
Certificateholder shall be subject to such reasonable requirements as the
Trustees may prescribe.
(e) Upon the execution of any amendment or consent pursuant to
this Section 5.04, this Agreement shall be modified in accordance therewith, and
such amendment or consent shall form a part of this Agreement for all purposes,
and every holder of Notes and Certificates theretofore or thereafter issued
hereunder shall be bound thereby.
Section 5.05 Notices. All notices, demands, certificates,
requests and communications hereunder ("notices") shall be in writing and shall
be effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt to
be effective the date of delivery indicated on the return receipt, or (b) one
Business Day after delivery to an overnight courier for delivery the next
Business Day, or (c) on the date personally delivered to an authorized officer
of the party to which sent, or (d) on the date transmitted by legible telecopier
transmission with a confirmation of receipt, in all cases addressed to the
recipient as follows:
(i) If to the Seller:
Fidelity Leasing, Inc.
0000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention:
Facsimile Number: (000) 000-0000
Telephone Number: (000) 000-0000
(ii) If to the Trust Depositor:
Fidelity Equipment Lease Depositor I, LLC
0000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention:
Facsimile Number: (000) 000-0000
Telephone Number: (000) 000-0000
(iii) If to the Servicer, Indenture Trustee, Owner Trustee, Collateral
Custodian or Rating Agencies:
At the address specified for Notices thereto in the Sale and Servicing
Agreement.
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
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All communications and notices pursuant hereto to a Noteholder
shall be in writing and delivered or mailed at the address shown in the Note
Register.
Section 5.06 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, 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 5.07 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 5.08 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
Section 5.09 No Bankruptcy Petition. The Seller covenants and
agrees that, prior to the date that is one year and one day after the payment in
full of all amounts owing in respect of all outstanding Securities, it will not
institute against the Trust Depositor, or join any other Person in instituting
against the Trust Depositor any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceedings under the
laws of the United States or any state of the United States. This Section 5.09
will survive the termination of this Agreement.
Section 5.10 Third Party Beneficiaries. The Trust and each
Trustee is a third-party beneficiary to this Agreement to the extent of rights
and benefits specifically granted or established hereunder in favor of the Trust
or such Trustee in its capacity as such Trustee, and may enforce the provisions
hereof in such regard as if it were a direct party hereto.
Section 5.11 Severability of Provisions. If one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever 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 shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Notes or
Certificates or the rights of the Holders thereof.
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Section 5.12 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trust Depositor (or any
assignee thereof) or the 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 (except to the extent specifically provided
herein) of any rights, remedies, powers or privileges provided by law.
Section 5.13 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
together constitute but one and the same instrument.
[remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first written above.
FIDELITY EQUIPMENT LEASE DEPOSITOR I, LLC
By: _________________________________
Name:
Title:
FIDELITY LEASING, INC.
By: ___________________________________
Name:
Title:
Exhibit A
FORM OF ASSIGNMENT
In accordance with the Transfer and Sale Agreement (the
"Agreement") dated as of June 2, 1999 made by and between the undersigned, as
the Seller thereunder ("Seller"), and the Fidelity Equipment Lease Depositor I,
LLC, as purchaser thereunder (the "Trust Depositor"), the undersigned does
hereby sell, transfer, convey and assign, set over and otherwise convey to the
Trust Depositor all its right, title and interest in and to:
(a) the Initial Contracts, and all monies due or to become due
in payment of such Contracts on and after the Initial Cutoff Dates, any
Prepayment Amounts, any payments in respect of a casualty or early
termination, and any Defaulted Contract Recoveries received with
respect thereto, but excluding any Scheduled Payments due prior to the
Cutoff Date or any Excluded Amounts;
(b) the Financed Items related to such Contracts, including
all proceeds from any sale or other disposition of such Financed Items
(but subject to the exclusion and release herein of Excluded Amounts);
(c) the Contract Files;
(d) all payments made or to be made in the future with respect
to such Contracts or the Obligor thereunder under any Program Agreement
and under any guarantee or similar credit enhancement with respect to
such Contracts;
(e) all Insurance Proceeds with respect to each such Contract;
(f) all income from and proceeds of the foregoing; and
(g) the security interest of the Seller or its affiliates in
the Equipment or other property securing such Contracts and the
proceeds thereof.
This Assignment is made pursuant to and in reliance upon the
representation and warranties on the part of the undersigned contained in
Article III of the Agreement and no others. Capitalized terms used in this
Assignment and not defined shall have the same meanings as such terms would have
if used in the Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed this 2nd day of June, 1999.
FIDELITY LEASING, INC.
By: _________________________________________
Name:
Title:
FIDELITY EQUIPMENT LEASE DEPOSITOR I, LLC
By:
Name:
Title:
Exhibit B
Purchase Price of Contracts: $142,036,314
