EXECUTION COPY
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SW LEASING PORTFOLIO IV, INC.,
as Buyer
and
FIDELITY LEASING, INC.,
as Seller
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PURCHASE AND SALE AGREEMENT
Dated as of December 18, 1997
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TABLE OF CONTENTS
ARTICLE I GENERAL................................................................................................1
Section 1.1 Certain Defined Terms........................................................................1
Section 1.2 Other Definitional Provisions................................................................3
ARTICLE II SALE AND CONVEYANCE...................................................................................3
Section 2.1 Sale.........................................................................................3
Section 2.2 Subsequent Contracts.........................................................................5
ARTICLE III PURCHASE PRICE AND PAYMENT; MONTHLY REPORT...........................................................6
Section 3.1 Purchase Price...............................................................................6
Section 3.2 Payment of Purchase Price....................................................................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................7
Section 4.1 Seller's Representations and Warranties......................................................7
Section 4.2 Seller's Representations and Warranties Regarding the Agreement and the Contracts...........11
Section 4.3 Representations and Warranties of the Buyer.................................................12
ARTICLE V COVENANTS.............................................................................................13
Section 5.1 Seller Covenants............................................................................13
ARTICLE VI REPURCHASE OBLIGATION................................................................................15
Section 6.1 Retransfer of Ineligible Contracts..........................................................15
Section 6.2 Retransfer of Purchased Assets..............................................................16
Section 6.3 Adjustments.................................................................................17
Section 6.4 Substitution of Contracts...................................................................17
ARTICLE VII CONDITIONS PRECEDENT................................................................................18
Section 7.1 Conditions to the Buyer's Obligations Regarding Contracts...................................18
ARTICLE VIII TERM AND TERMINATION...............................................................................19
Section 8.1 Termination.................................................................................19
ARTICLE IX MISCELLANEOUS PROVISIONS.............................................................................19
Section 9.1 Amendment...................................................................................19
Section 9.2 Governing Law...............................................................................19
Section 9.3 Notices.....................................................................................19
Section 9.4 Severability of Provisions..................................................................20
Section 9.5 Assignment..................................................................................20
Section 9.6 Further Assurances..........................................................................21
Section 9.7 No Waiver; Cumulative Remedies..............................................................21
Section 9.8 Counterparts................................................................................22
Section 9.9 Binding Effect; Third-Party Beneficiaries...................................................22
Section 9.10 Merger and Integration.....................................................................22
Section 9.11 Headings...................................................................................22
Section 9.12 Schedules and Exhibits.....................................................................22
Section 9.13 No Proceedings.............................................................................22
Section 9.14 Merger or Consolidation of, or Assumption of the Obligations of, the Seller................22
Section 9.15 Costs, Expenses and Taxes..................................................................23
Section 9.16 Recourse Against Certain Parties..........................................................24
Schedule I List of Contracts
Schedule II Tradenames, Fictitious Names and "Doing Business As" Names
Exhibit A Form of Assignment
Exhibit B Form of Seller Funding Note
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PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT, dated as of December 18, 1997 by and
between FIDELITY LEASING, INC., a Pennsylvania corporation (the "Seller"), and
SW LEASING PORTFOLIO IV, INC., a Pennsylvania corporation (the "Buyer").
W I T N E S S E T H :
WHEREAS, the Buyer desires to purchase from the Seller and the Seller
desires to sell to the Buyer certain contracts originated or purchased by the
Seller in its normal course of business, together with, among other things the
related rights of payment thereunder and the interest of the Seller in the
related equipment and other interests securing the payments to be made under
such contracts.
NOW, THEREFORE, it is hereby agreed by and between the Buyer and the
Seller as follows:
ARTICLE I
GENERAL
Section 1.1 Certain Defined Terms.
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: Shall mean this 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 hereof
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 hereof.
Purchased Assets: The interests and property purchased pursuant to Sections
2.1(a) and (b).
Purchased Contracts: The Contracts listed on Schedule I hereto.
Receivables Purchase Agreement: The Receivables Purchase Agreement dated as of
December 18, 1997 by and among the Buyer, as seller thereunder, Fidelity
Leasing, Inc., as servicer, the investors named therein, Variable Funding
Capital Corporation, as a purchaser, ▇▇▇▇▇▇ Trust and Savings Bank, as
collateral custodian and backup servicer, First Union Capital Markets Corp.,
as deal agent and First Union National Bank, as liquidity agent, 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) hereof.
Residual Value: With respect to any Purchased Contract, the residual value of
any unit of equipment related to such Contract, as agreed to between the
Purchaser and the Seller on the date such Contract becomes a Purchased
Contract; provided, however, such residual value shall not be less than zero;
such Residual Value to be set forth on Schedule I hereto.
Residual Value Adjustment Amount: With respect to any Purchased Contract, the
excess of (a) Residual Value of such Purchased Contract over (b) net proceeds
from the sale, re-lease or other disposition of the equipment related to such
Purchased Contract upon the expiration, or earlier termination, of the term of
such Purchased Contract.
Sale Papers: Shall have the meaning set forth in Section 4.1(a) hereof.
Seller Note: The promissory note, in the form of Exhibit B hereto, issued to
the Seller by the Purchaser pursuant to Section 3.2(a) hereof, which note
shall have a principal balance at all times equal to the Seller Note Principal
Balance and shall bear interest at a rate per annum equal to the Seller Note
Interest Rate.
Seller Note Interest Rate: On any day, the rate per annum equal to 9.0%.
Seller Note Maturity Date: The day that is one year and one day following the
date on which the Aggregate Unpaids have been indefeasibly paid in full in
cash.
Seller Note Principal Balance: On any day an amount equal to (i) the sum of
(a) the Excess Amount on the Closing Date, (b) the aggregate of the Excess
Amounts on each Subsequent Purchase Date and (c) the aggregate of the Residual
Values, minus (ii) the sum of (a) the aggregate Residual Value Adjustment
Amount and (b) all other amounts from time to time received by the Seller in
reduction of the Seller Note Principal Balance; provided, however, that the
Seller Note Principal Balance shall never be less than zero.
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 the Seller to
the Buyer on a Subsequent Purchase Date.
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Subsequent Contracts: On any Subsequent Purchase Date, the Contracts sold by
the 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 the Seller transfers a Substitute
Contract to the Buyer.
Section 1.2 Other Definitional Provisions.
The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement or any Sale Paper shall refer to this
Agreement as a whole and not to any particular provision of this Agreement;
and Section, Subsection, Schedule and Exhibit references contained in this
Agreement are references to Sections, Subsections, Schedules and Exhibits in
or to this Agreement unless otherwise specified. In the event that any term or
provision contained herein shall conflict with or be inconsistent with any
term or provision contained in the Receivables Purchase Agreement, the terms
and provisions contained herein shall govern with respect to this Agreement.
ARTICLE II
SALE AND CONVEYANCE
Section 2.1 Sale.
(a) On the Closing Date, the 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:
(i) the Contracts that are owned by the 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;
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(v) all Insurance Proceeds with respect to each
such Contract; and
(vii) all income and proceeds of the foregoing.
(b) On each Subsequent Purchase Date, the Seller will sell, transfer,
assign and set over and otherwise convey to the Buyer and the Buyer will
purchase 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:
(i) the Subsequent Contracts identified on the
Subsequent Contract List delivered by the Seller 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
(vii) 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 Seller 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, the 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 the Seller to the Buyer on and after the Closing Date, (ii) that such
financing statements shall name the 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 Closing 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.
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(d) In connection with the sale of the Purchased Assets, the 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. The 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 to this Agreement, 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 Seller 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 Seller
to the Buyer to secure a debt or other obligation of the 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 the Seller hereby grants to the Buyer a "security
interest" within the meaning of Article 9 of the UCC in all of the 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 the Seller's other payment
obligations under this Agreement.
Section 2.2 Subsequent Contracts.
(a) The Seller shall on or prior to any Subsequent Purchase Date with
respect to any Contracts execute and deliver to the Buyer a written assignment
from Seller to the Buyer substantially the form of Exhibit A hereto. From and
after such Subsequent Purchase Date, such Subsequent Contracts shall be deemed
to be Contracts hereunder.
(a) Covenants of the Seller 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), the 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 the 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 apart of this Agreement;
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(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 the 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 the Seller or any of its Affiliates, except for
Liens permitted hereunder and (D) as of the related Subsequent Purchase Date,
(x) no Insolvency Event with respect to the Seller has occurred, (y) the Buyer
is not 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 the Seller, and (E) as of the related Subsequent Purchase Date, no
Restricting Event with respect to the Seller has occurred;
(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 the Seller to the Buyer.
ARTICLE III
PURCHASE PRICE AND PAYMENT; MONTHLY REPORT
Section 3.1 Purchase Price.
The purchase price for each Contract sold to the Buyer by the Seller
under this Agreement (the "Purchase Price") shall be a dollar amount equal to
the sum of a Residual Value and (b) Discounted Contract Balance determined as
of the related Cut Off Date.
Section 3.2 Payment of Purchase Price.
(a) Each Purchase Price payment shall be paid on the date of such
Purchase by the Purchaser to the Seller in the manner provided below:
(i) in cash, in an amount equal to the lesser of (A) the amount (such
amount being referred to herein as the "Available Funds") of funds
available to the Purchaser on the date of such Purchase pursuant to the
terms of the Receivables Purchase Agreement and (B) the aggregate Purchase
Price of such Contracts; and
(ii) to the extent that the aggregate Purchase Price of Contracts to
be sold to the Buyer on any day exceeds (such excess being hereinafter
referred to as the "Excess Amount") the amount of the cash payment in
(i)(A) above, such excess shall be paid (A) on the Closing Date, by the
issuance to the Seller of the Seller Note in a principal amount equal to
the Excess Amount as of the Closing Date and (B) on each Subsequent
Purchase Date, by increasing the principal balance of the Seller Note by
an amount equal to the Excess Amount for such Purchase Date.
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(b) 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 Seller to the Purchaser.
(c) The Seller Note shall bear interest at a rate per annum equal,
from time to time, to the Seller Note Interest Rate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Seller's Representations and Warranties.
The Seller hereby represents and warrants to the Buyer, as of the
Closing Date and each Subsequent Purchase Date, that:
(a) Organization and Good Standing. The 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 the Seller hereunder
(collectively, the "Sale Papers").
(b) Due Qualification. The 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 the Seller by all
necessary corporate action on the part of the Seller.
(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 the Seller is a party or
by which it or any of its property is bound.
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(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 the 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 the Seller.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Seller, threatened against the 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 the 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 the Seller.
(i) Solvency. The transactions contemplated under this Agreement and
the Sale Papers do not and will not render the Seller insolvent.
(j) Selection Procedures. No selection procedures believed by the
Seller to be materially adverse to the interests of the Buyer were utilized by
the 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 the Seller will be used by the Seller to purchase or
carry any margin security.
(l) Not an Investment Company. The 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. The legal name of the Seller is as set forth in this
Agreement and within the preceding five years the Seller has not used, and the
Seller currently does not use, any tradenames, fictitious names, assumed names
or "doing business as" names other than those set forth on Schedule II hereto.
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(n) Taxes. The 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 it 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 the books of
the Seller); no tax lien has been filed and, to the Seller's knowledge, no
claim is being asserted, with respect to any such tax, fee or other charge.
(o) Place of Business. The principal executive offices of the Seller
are in Ambler, Pennsylvania and the offices where the Seller keeps its records
concerning the Contracts are in Ambler, Pennsylvania.
(p) No Liens. Each Purchased Asset, together with the Contract
related thereto, shall, at all times, be owned by the 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. The Seller agrees that, for a period of
one year and one day after the Aggregate Unpaids have been paid in full, the
Seller 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. Each of the
Buyer and the 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 the creditors of the Seller would not
result in making such assets available to satisfy such creditors under the
Bankruptcy Code.
(r) Security Interest. The 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 of UCC-1 financing statements naming the Buyer
as secured party and the 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.
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(s) Accounting. The Seller will account for the transfers by it 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 the Seller and any Affiliates thereof,
and the Seller hereby acknowledges that the Deal Agent and the Purchasers
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 the Seller and from each such
Affiliate of the Seller.
(u) Value Given. The cash payments received by the 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 the 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 the Seller, or to the
extent that information contained therein is supplied by the Seller),
information, exhibit, financial statement, document, book, record or report
furnished or to be furnished by the 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 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.
(x) Accuracy of Representations and Warranties. Each representation
or warranty by the Seller contained herein or in any certificate or other
document furnished by the Seller pursuant hereto or in connection herewith is
true and correct in all material respects.
The representations and warranties set forth in this Section 4.1
shall survive the sale, transfer and assignment of the Purchased Assets to the
Buyer. Upon discovery by the 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 Deal Agent
immediately upon obtaining knowledge of such breach.
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Section 4.2 Seller's Representations and Warranties
Regarding the Agreement and the Contracts.
The Seller hereby represents and warrants to the Buyer, as of the
Closing Date and each Subsequent Purchase Date that:
(a) Binding Obligation; Valid Transfer and Security Interest.
(i) This Agreement and each of the Sale Papers constitutes a
legal, valid and binding obligation of the Seller, enforceable against the
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 the 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 the 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 the 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 the 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 the 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 the Seller to
the Buyer, the 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 the 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 the 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 the 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.
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(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 the 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 Deal Agent 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 the 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.
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(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Buyer, threatened against the Buyer,
before any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of this 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.
The Seller hereby covenants with respect to each Contract, that:
(a) Compliance with Laws; Preservation of Corporate Existence. The
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, the 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, the
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 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 the Seller becoming aware thereof. The Seller will immediately
notify the Buyer of the existence of any Lien on any Contract transferred
hereunder or related Equipment; and the 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 the Seller from suffering to exist Permitted Liens upon any of the
Contracts transferred hereunder or any related Equipment.
(d) Delivery of Collections. The Seller agrees to pay to the Buyer
promptly (but in no event later than two Business Days after receipt) all
Collections received by the Seller in respect of the Contracts transferred
hereunder.
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(e) Compliance with Law. The Seller hereby agrees to comply in all
material respects with all Requirements of Law applicable to the Seller, the
Contracts and the Equipment.
(f) Activities of the Seller. The 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. The 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. The 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. The Seller (x) shall
not move outside the Commonwealth of Pennsylvania, the location of its chief
executive office, without 30 days' prior written notice to the Buyer and the
Deal Agent 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 Deal Agent 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. The Seller will give the Buyer and the
Deal Agent prompt notice of a change within the Commonwealth of Pennsylvania
of the location of its chief executive office.
(j) Accounting of Purchases. The 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 the Seller to
the Buyer.
(k) ERISA Matters. The 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 an
Multiemployer Plan that the 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 the Seller under ERISA or
the Code.
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(l) Nature of Business. The 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. The 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 Seller and (ii) receipt by
the Seller of written notice thereof given by the Buyer, the 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 the Seller and its Affiliates (other than Permitted Liens)
and in compliance in all material respects, with all Requirements of Law
applicable to the Seller, immediately upon the earlier to occur of the
discovery of such breach by the Seller or receipt by the Seller of written
notice of such breach given by the Buyer, the 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 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 Seller shall, on the date of retransfer
of such Ineligible Contract, make a deposit in the Collection Account (for
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allocation pursuant to Section 2.7, 2.8 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
Payment 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 Seller
of such Ineligible Contract, the Buyer shall automatically and without further
action be deemed to transfer, assign and set-over to the 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 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 Seller, execute such
documents and instruments of transfer as may be prepared by the Seller and
take such other actions as shall reasonably be requested by the 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 the
Purchasers under the Receivables Purchase Agreement or the Deal Agent as agent
for the Purchasers under the Receivables Purchase Agreement 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 Seller may direct the Seller to accept retransfer
of all of the Contracts purchased from the Seller and the Seller shall be
obligated to accept retransfer of such Contracts on a Payment Date specified
by the 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 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 to the Purchasers under 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 Payment 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 Payment 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 Seller, and the Buyer shall, at the
sole expense of the Seller, execute and deliver such instruments of transfer,
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in each case without recourse, representation or warranty, as shall be
prepared and reasonably requested by the Seller to vest in the 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.
The 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, the 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 Seller, request that any
Contract be replaced by one or more other Contracts (each, a "Substitute
Contract"), provided that no such replacement shall occur unless each of the
following conditions is satisfied as of the date of such replacement and
substitution:
(a) the Seller has previously recommended to 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 (A) the Purchase Limit
and (B) the Capital Limit;
(d) such Substitute Contracts, at the time of substitution by the
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;
(e) all representations and warranties of the Seller contained in
Section 5.1 and 5.2 shall be true and correct as of the date of substitution
of any such Substitute Contract;
(f) the substitution of any Substitute Contract does not cause a
Payout Event to occur under the Receivables Purchase Agreement; and
(g) the Seller shall deliver to the Deal Agent on the date of such
substitution a certificate of a Responsible Officer certifying that each of
the foregoing is true and correct as of such date.
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In connection with any such substitution, the Buyer shall,
automatically and without further action, be deemed to transfer to the 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 the 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 the
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 the 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, the 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 Payout 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 the 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.
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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 hereof, or to make the payments
required under Section 6.3 hereof.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 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 the
Seller, with the prior written consent of the Deal Agent. The Buyer shall
provide not less than 10 Business Days prior written notice of any such
amendment to the Deal Agent.
Section 9.2 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY
AGREES TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE STATE OF
NEW YORK. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON
FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
Section 9.3 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or
mailed by registered mail, return receipt requested, to:
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(a) in the case of the Buyer, to:
SW Leasing Portfolio IV, Inc.
3000 Mellon Bank Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) in the case of the Seller, to:
Fidelity Leasing, Inc.
Seven ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. English
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) in the case of the Deal Agent, to:
First Union Capital Markets Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Conduit Administrator
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
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 the Seller except as permitted
by this Section 9.5 or by the Receivables Purchase Agreement. Simultaneously
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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 Deal Agent as agent for the Purchasers under the Receivables
Purchase Agreement as provided in the Receivables Purchase Agreement, to which
assignment the Seller hereby expressly consents. The Seller agrees to perform
its obligations hereunder for the benefit of the Deal Agent as agent for the
Purchasers under the Receivables Purchase Agreement and the Deal Agent, as
agent for the Purchasers under the Receivables Purchase Agreement under the
Receivables Purchase Agreement shall be a third party beneficiary hereof. The
Deal Agent as agent for the Purchasers under the Receivables Purchase
Agreement may enforce the provisions of this Agreement, exercise the rights of
the Buyer and enforce the obligations of the Seller hereunder as provided in
of the Receivables Purchase Agreement. This Agreement may not be assigned by
the Seller except in connection with a merger or consolidation of the Seller
with or into, or disposition of the 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 Deal Agent.
(b) In connection with any permitted assignment of this Agreement by
the Seller, the Seller shall deliver to the Buyer and the Deal Agent an
Officer's Certificate that such assignment complies with this Section 9.5, and
shall cause such assignee to execute an agreement supplemental hereto, in form
and substance satisfactory to the Seller, pursuant to which such assignee
shall expressly assume and agree to the performance of every covenant and
obligation of the 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 the 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 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 of any rights, remedies, powers and privilege
provided by law.
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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.
The Seller hereby covenants and agrees that, prior to the date which
is one year and one day after the payment in full of the Note, 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, the Seller.
The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as
an entirety to any Person, unless:
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(i) the Person formed by such consolidation or into which
the Seller is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Seller substantially as an
entirety shall be, if the 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 the Seller hereunder (to the extent that
any right, covenant or obligation of the 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) the Seller shall have delivered to the Buyer and the
Deal Agent an Officer's Certificate that such consolidation, merger,
conveyance or transfer and such supplemental agreement 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 Deal Agent shall receive prompt
written notice of such merger or consolidation of the Seller; and
(iii) after giving effect thereto, no Event of Termination
under the Receivables Purchase Agreement or an event which with
notice or lapse of time or both would constitute such an Event of
Termination thereunder shall have occurred.
Section 9.15 Costs, Expenses and Taxes.
(a) The Seller agrees to pay on demand all costs and expenses of the
Buyer incurred in connection with the preparation, execution, delivery,
administration (including periodic auditing), amendment or modification of, or
any waiver or consent issued in connection with, this 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 Seller shall pay on demand any and all stamp, sales, excise
and other taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing and recording of this Agreement or any
agreement or other document delivered in connection with this Agreement
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(c) The Seller shall pay on demand any and all damages, losses,
claims, liabilities, fees and related costs and expenses, including attorney's
fees and expenses, incurred by or awarded against the Buyer or any of its
Affiliates (each, an "Indemnified Party") arising out of or as a result of the
transactions contemplated under this Agreement and owed by such Indemnified
Party to any other Person; provided, that the Seller shall not be liable to
pay any portion of any such damages, losses, claims or liabilities resulting
from the gross negligence or willful misconduct of an Indemnified Party or the
breach of a Requirement of Law by an Indemnified Party.
Section 9.16 Recourse Against Certain Parties.
(a) No recourse under or with respect to any obligation, covenant or
agreement (including, without limitation, the payment of any fees or any other
obligations) of the 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 the Seller or
any incorporator, officer, employee or director of the 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 the 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 the Seller, and that no personal
liability whatsoever shall attach to or be incurred by any administrator of
the Seller or any incorporator, officer, employee or director of the 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 the 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 the Seller and each incorporator, officer, employee or
director of the Seller or of any such administrator, or any of them, for
breaches by the 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 other them, under or by reason of
any of the obligations, covenants or agreements of the Buyer contained in this
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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.
[Signatures to Follow]
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IN WITNESS WHEREOF, the Buyer and the Seller have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
SW LEASING PORTFOLIO IV, INC.
By:______________________________________
Name:________________________________
Title:_______________________________
FIDELITY LEASING, INC.
By:______________________________________
Name:________________________________
Title:_______________________________