AMENDMENT NO. 1 TO
RECEIVABLES FUNDING AGREEMENT
THIS AMENDMENT NO. 1 TO RECEIVABLES FUNDING AGREEMENT, dated as of
August 23, 1999 (this "Amendment"), is entered into by and among FIDELITY
LEASING SPC IV, INC., as the Borrower, FIDELITY LEASING, INC., as the Servicer
and Originator, certain Liquidity Lenders named therein, VARIABLE FUNDING
CAPITAL CORPORATION, as a CP Lender, FIRST UNION CAPITAL MARKETS CORP., as the
Administrative Agent and the VFCC Managing Agent and HARRIS TRUST AND SAVINGS
BANK, as the Backup Servicer and the Collateral Custodian. Capitalized terms
used and not otherwise defined herein are used as defined in the Agreement (as
defined below).
WHEREAS, the parties hereto entered into that certain Receivables
Funding Agreement, dated as of July 14, 1999, as amended (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement in certain
respects as provided herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. Amendments.
(a) Section 1.1 of the Agreement is hereby amended by adding the
following definition in alphabetical order thereto:
IPO: As defined in Section 6.15(k)(i).
(b) Section 6.15(k) of the Agreement is hereby amended in its entirety
to read as follows:
(k) If Fidelity is the Servicer,
(i) the Tangible Net Worth of the Servicer shall (A)
prior to an initial public offering by the Servicer (an
"IPO"), on any day be less than $30,000,000, which amount
shall be increased each calendar quarter, beginning July 1,
1999 for the quarter ended June 30, 1999, by an amount equal
to (1) 75% of the immediately preceding quarter's net income
(with no downward adjustment for losses) and (2) 100% of any
proceeds from any new equity or (B) subsequent to an IPO, on
any day be less than the sum of (1) total shareholder's equity
immediately prior to such IPO, calculated in accordance with
GAAP (2) the net proceeds of such IPO and (3) the amount of
Subordinated Debt that RLI converts into equity immediately
before such IPO minus the sum of (x) intangibles calculated in
accordance with GAAP and (y) $2,000,000; provided, however
that the amount of Subordinated Debt that RLI converts into
equity pursuant to clause (B)(3) above shall be at least
$30,000,000; provided, further that the amount under this
clause (B) shall be increased each calendar quarter after such
IPO by an amount equal to 75% of net income (with no downward
adjustment for losses);
(ii) at any time prior to the closing of the IPO,
either (A) the Servicer shall make any payment on the
Subordinated Debt prior to the Collection Date or (B) the sum
of the balances outstanding under the 1996 Note and the 1998
Note shall be less than $5,000,000 and/or the balance
outstanding under the 1999 Note shall be less than
$38,000,000;
(iii) the Servicer shall amend, modify, restate,
supplement or otherwise modify the RLI Agreements without the
prior written consent of the Administrative Agent;
(iv) the Servicer shall cease to maintain Committed
Facilities of $400,000,000 (which amount shall include the
Facility Amount) and such failure continues to be unremedied
for a period of 30 days after the earlier to occur of (1) the
date on which written notice of such failure requiring the
same to be remedied shall have been given to the Servicer by
the Buyer or any Agent and (2) the date on which the Servicer
becomes aware thereof;
(v) the ratio of EBIT to Interest Expense of the
Servicer and its Subsidiaries shall be less than 1:15 at any
time; or
SECTION 2. Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, the Agreement shall remain in full force and
effect. All references to the Agreement shall be deemed to mean the Agreement as
modified hereby. This Amendment shall not constitute a novation of the
Agreement, but shall constitute an amendment thereof. The parties hereto agree
to be bound by the terms and conditions of the Agreement, as amended by this
Amendment, as though such terms and conditions were set forth herein.
SECTION 3. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts, and
by the different parties hereto on the same or separate counterparts, each of
which shall be deemed to be an original instrument but all of which together
shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page by facsimile shall be effective as delivery of a manually
executed counterpart of this Amendment.
(b) The descriptive headings of the various sections of this Amendment
are inserted for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
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(c) This Amendment may not be amended or otherwise modified except as
provided in the Agreement.
(d) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BORROWER: FIDELITY LEASING SPC IV, INC.
By:______________________________
Name:____________________________
Title:___________________________
1255 Wright's Lane
West Chester, Pennsylvania 19380
Attention:
Facsimile No.:
Confirmation No.:
THE SERVICER: FIDELITY LEASING, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
1255 Wright's Lane
West Chester, Pennsylvania 19380
Attention: ________________________
Facsimile No.:_____________________
Confirmation No.: 610-719-4515
VFCC
LIQUIDITY LENDERS: FIRST UNION NATIONAL BANK
By:
Name:
Title:
One First Union Center, TW-9
Charlotte, North Carolina 28288
Attention: Bill A. Shirley, Jr.
Facsimile No.: ____________________
Confirmation No.: _________________
VFCC: VARIABLE FUNDING CAPITAL
CORPORATION
By: First Union Capital Markets Corp.,
as attorney-in-fact
By:_________________________________
Name:_______________________________
Title:______________________________
Variable Funding Capital Corporation
c/o First Union Capital Markets Corp.
One First Union Center, TW-9
Charlotte, North Carolina 28288
Attention: CP Lender Administration
Facsimile No.: (704) 383-6036
Confirmation No.: (704) 383-9343
THE ADMINISTRATIVE AGENT FIRST UNION CAPITAL MARKETS CORP.
AND VFCC MANAGING AGENT:
By:_______________________________
Name:_____________________________
Title:____________________________
First Union Capital Markets Corp.
One First Union Center, TW-9
Charlotte, North Carolina 28288
Attention: CP Lender Administration
Facsimile No.: (704) 383-6036
Telephone No.: (704) 383-9343
THE COLLATERAL CUSTODIAN: HARRIS TRUST AND SAVINGS BANK
AND BACKUP SERVICER: as Collateral Custodian and Backup Servicer
By ______________________________
Title:
Harris Trust and Savings Bank
311 West Monroe Street, 12th Floor
Chicago, Illinois 60606
Attention:
Facsimile: (312) 461-3525
Telephone: (312) 461-2532