EXHIBIT 10.7
Execution Copy
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XXXXXX LEASING CORP.,
Individually, and as the Servicer,
XXXXXX LEASING RECEIVABLES CORP. IV,
as the Obligors' Agent,
XXXXXX LEASING RECEIVABLES IV LLC,
as the Obligor,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
XL CAPITAL ASSURANCE, INC.
as the Series Support Provider
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
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AMENDED AND RESTATED SERIES 2000-A SUPPLEMENT
Dated as of August 7, 2001
to the
MASTER LEASE RECEIVABLES ASSET-BACKED FINANCING FACILITY
AGREEMENT
Dated as of December 1, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I CREATION OF THE SERIES 2000-A NOTES........................................................... 1
Section 1.01 Designation....................................................................... 1
Section 1.02 Pledge of Series 2000-A Trust Estate.............................................. 1
Section 1.03 Payments.......................................................................... 2
Section 1.04 Assignment to a Group; Crossover Amounts.......................................... 2
ARTICLE II DEFINITIONS.................................................................................. 2
Section 2.01 Definitions....................................................................... 2
ARTICLE III DISTRIBUTIONS AND STATEMENTS TO SERIES 2000-A NOTEHOLDER; SERIES SPECIFIC COVENANTS......... 26
Section 3.01 Series 2000-A Accounts............................................................ 26
Section 3.02 Agent to Send Notice of Amounts Due............................................... 27
Section 3.03 Distributions from Series 2000-A Facility Account................................. 27
Section 3.04 Reporting and Review Requirements................................................. 33
Section 3.05 Compliance With Withholding Requirements.......................................... 36
Section 3.06 Servicer Advances................................................................. 36
Section 3.07 Special Representations, Covenants and Acknowledgements........................... 36
Section 3.08 Hedging Arrangements.............................................................. 41
Section 3.09 Lockbox Account................................................................... 43
Section 3.10 The Policy; Accrued Liabilities................................................... 43
Section 3.11 Option to Purchase in Lieu of Draw................................................ 44
Section 3.12 Insurer Advances.................................................................. 45
Section 3.13 Replacement of Series Support Provider............................................ 45
ARTICLE IV SERIES PRINCIPAL AMOUNT FOR SERIES 2000-A.................................................... 46
Section 4.01 Advances.......................................................................... 46
ARTICLE V SERIES EVENTS OF DEFAULT...................................................................... 48
Section 5.01 Series Events of Default.......................................................... 48
Section 5.02 Direction by the Series Support Provider.......................................... 52
ARTICLE VI PREPAYMENT AND REDEMPTION.................................................................... 52
Section 6.01 Mandatory Prepayment.............................................................. 52
Section 6.02 Optional Redemption............................................................... 53
Section 6.03 Tender of Series 2000-A Note...................................................... 53
ARTICLE VII MISCELLANEOUS............................................................................... 54
Section 7.01 Agent Authorized to Act for the Purchasers; Notices............................... 54
Section 7.02 Ratification of Master Agreement.................................................. 54
Section 7.03 Counterparts...................................................................... 54
Section 7.04 GOVERNING LAW..................................................................... 55
Section 7.05 Amendments and Waivers............................................................ 55
Section 7.06 Non-petition Clause............................................................... 55
Section 7.07 Certain Information............................................................... 55
Section 7.08 Reserved.......................................................................... 55
Section 7.09 Termination....................................................................... 55
Section 7.10 Series Support Provider........................................................... 55
Section 7.11 Issuance of Additional Series of Notes............................................ 56
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EXHIBITS
Schedule 1 Interest Coverage Ratio
Schedule 2 Hedge Counterparties
Exhibit A Form of Series 2000-A Note
Exhibit B Form of Agent's Monthly Statement of Amounts Due
Exhibit C Wire Instructions for Agent
Exhibit D Form of Servicer's Certificate
Exhibit E Forms of Contracts
Exhibit F Certain Information
Exhibit G Form of Pledge Notice
Exhibit H Form of Non-Appropriation Rider
Exhibit I Form of Cap Agreement
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This Amended and Restated Series 2000-A Supplement, (the
"Series 2000-A Supplement") dated as of August 7, 2001, is by and among Xxxxxx
Leasing Corp., a Delaware corporation, individually (in such capacity "Xxxxxx"),
and as initial servicer (in such capacity, the "Servicer"), Xxxxxx Leasing
Receivables Corp. IV, a Nevada corporation ("MLR IV"), as the Obligors' Agent,
Xxxxxx Leasing Receivables IV LLC, a Nevada limited liability company ("MLR IV
LLC"), as the Obligor, Deutsche Bank AG, New York Branch, as Agent (the
"Agent"), Xxxxx Fargo Bank Minnesota, National Association, a national banking
association (the "Trustee") and XL Capital Assurance Inc. ("XLCA") as the Series
Support Provider.
RECITALS
Reference is hereby made to the Series 2000-A Supplement,
dated as of December 1, 2000, as amended by Amendment No. 1, dated as of May 13,
2001 and as amended, restated, supplemented or otherwise modified from time to
time in accordance with the provisions thereof (the "Original Series 2000-A
Supplement"), among Xxxxxx, MLR IV, MLR IV LLC, the Agent and the Trustee.
The Original Series 2000-A Supplement was executed and
delivered pursuant to Section 13.02 of the Master Lease Receivables Financing
Facility Agreement dated as of December 1, 2000 (as it may be amended,
supplemented and otherwise modified from time to time, the "Master Agreement")
among the Servicer, the Obligors' Agent and the Trustee. In the event that any
term or provision contained herein shall conflict with or be inconsistent with
any term or provision contained in the Master Agreement, the terms and
provisions of this Series 2000-A Supplement shall govern with respect to the
Series 2000-A Notes.
The parties hereto desire to amend and restate the Original
Series 2000-A Supplement upon the terms and conditions set forth in this Series
2000-A Supplement and the Master Agreement.
The parties hereto hereby agree to amend and restate the
Original Series 2000-A Supplement as follows:
ARTICLE I
CREATION OF THE SERIES 2000-A NOTES
Section 1.01 Designation. There is hereby created a Series of
Notes to be issued pursuant to the Master Agreement and this Series 2000-A
Supplement to be known as "Xxxxxx Lease Receivables Master Asset-Backed
Financing Facility, Series 2000-A Notes." The Obligor with respect to the Series
2000-A Notes is MLR IV LLC. The Notes shall be issued as Definitive Notes in
accordance with Sections 5.11 of the Master Agreement.
Section 1.02 Pledge of Series 2000-A Trust Estate. The Obligor
hereby pledges to the Trustee for the benefit of the Series 2000-A Secured
Parties, and the Trustee hereby accepts the pledge of, all right, title and
interest of such Obligor whether now owned and existing or hereafter acquired or
arising in and to (1) each and every Contract now or hereafter listed as a
Series 2000-A Contract on a Pledge Notice delivered to the Trustee, (2) all
Collections, Security
Deposits (in accordance with Section 6.14 of the Master Agreement) and Related
Security associated therewith, (3) all Servicing Charges with respect thereto,
(4) all balances, instruments, monies, investment property and other securities
and investments from time to time in or acquired with amounts at any time on
deposit in each Series 2000-A Account, and in the Lockbox Account to the extent
such amounts in the Lockbox Account represent Collections or proceeds of Series
2000-A Contracts or earnings with respect thereto, (5) each Series 2000-A
Transfer Agreement Supplement and all of the Obligor's rights (directly or
through the Obligors' Agent) to enforce the provisions of, and to benefit from
the representations, warranties and covenants made therein and in the Master
Transfer Agreement, but only insofar as such rights relate to the Series 2000-A
Trust Estate, (6) all security interests in the Equipment not owned by the
Obligor, and all Equipment owned by the Obligor, in each case associated with
the Series 2000-A Contracts, (7) any Crossover Amounts allocated to the Series
2000-A Trust Estate from another Series, (8) all of the Obligor's right, title
and interest, if any, in and to each Hedge Agreement and (9) all proceeds of
each of the foregoing, but excluding the following: any obligations of the
Obligor, if any, under a Series 2000-A Transfer Agreement Supplement and Initial
Unpaid Amounts (such non-excluded property, the "Series 2000-A Trust Estate").
Section 1.03 Payments. All amounts to be paid or deposited by
any Person hereunder shall be paid or deposited in accordance with the terms
hereof no later than 12:00 noon (New York City time) on the day when due in
immediately available funds, or by prior day ACH debit (so long as such funds
represent immediately available funds), and if such amounts are payable to the
Series 2000-A Noteholder, they shall be paid as specified in the Note Purchase
Agreement (as defined below), or, if the Series Support Provider is entitled to
such payments, as directed by the Series Support Provider.
Section 1.04 Assignment to a Group; Crossover Amounts. There
is hereby established a Group for purposes of the Master Agreement, which shall
be known as "Group B"; the Series 2000-A Notes are hereby assigned to Group B.
The amounts described in clause eighteenth of Section 3.03(a)(i) and in clause
eighteenth of Section 3.03(a)(ii) are hereby designated as the "Crossover
Amounts" for the Series 2000-A Notes for purposes of the Master Agreement.
No other Series of Notes shall be assigned to Group B without
the prior written consent of the Series Support Provider.
ARTICLE II
DEFINITIONS
Section 2.01 Definitions. Whenever used in this Series 2000-A
Supplement and when used in the Master Agreement with respect to the Series
2000-A Notes, the following words and phrases shall have the following meanings,
and the definitions of such terms are applicable to the singular as well as the
plural forms of such terms and to the masculine as well as to the feminine and
neuter genders of such terms. Unless otherwise defined in this Series 2000-A
Supplement, terms defined in the Master Agreement are used herein as therein
defined. For purposes of the Master Agreement, certain definitions are set forth
in Section 3.07(b) hereof.
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"31 to 60 Day Delinquency Ratio" means, as of the end of any
Collection Period, the percentage equivalent of a fraction, the numerator of
which is equal to the aggregate Contract Balance Remaining of all Series 2000-A
Contracts as to which any Scheduled Payment (or part thereof in excess of 10% of
such Scheduled Payment) is delinquent 31 or more days, but no Scheduled Payment
(nor part thereof in excess of 10% of such Scheduled Payment) is delinquent more
than 60 days and which is not a Charged-Off Contract as of the end of such
Collection Period, and the denominator of which is the aggregate Contract
Balance Remaining of all Series 2000-A Contracts as of the end of the Collection
Period immediately preceding such Collection Period.
"61 to 90 Day Delinquency Ratio" means, as of the end of any
Collection Period, the percentage equivalent of a fraction, the numerator of
which is equal to the sum of (x) the aggregate Contract Balance Remaining of all
Series 2000-A Contracts as to which any Scheduled Payment (or part thereof in
excess of 10% of such Scheduled Payment) is delinquent 61 or more days, but no
Scheduled Payment (nor part thereof in excess of 10% of such Scheduled Payment)
is delinquent more than 90 days, and which is not a Charged-Off Contract as of
the end of such Collection Period plus (y) the aggregate Contract Balance
Remaining of all Series 2000-A Contracts which were Restructured during such
Collection Period and the two preceding Collection Periods, and the denominator
of which is the aggregate Contract Balance Remaining of all Series 2000-A
Contracts as of the end of the second preceding Collection Period.
"91 Plus Day Delinquency Ratio" means, as of the end of any
Collection Period, the percentage equivalent of a fraction, the numerator of
which is equal to the aggregate Contract Balance Remaining of all Series 2000-A
Contracts as to which any Scheduled Payment (or part thereof in excess of 10% of
such Scheduled Payment) is delinquent 91 or more days, and which is not a
Charged-Off Contract as of the end of such Collection Period, and the
denominator of which is the aggregate Contract Balance Remaining of all Series
2000-A Contracts as of the end of the third preceding Collection Period.
"31 to 60 Day Portfolio Delinquency Rate" means, as of the end
of any Collection Period, the percentage equivalent of a fraction, the numerator
of which is equal to the aggregate Contract Balance Remaining of all leases
included in the Servicer's servicing portfolio as to which any Scheduled Payment
(or part thereof in excess of 10% of such Scheduled Payment) is delinquent 31 or
more days, but no Scheduled Payment (or part thereof in excess of 10% of such
Scheduled Payment) is more than 60 days delinquent (and which would not be
"Charged-Off Contracts" if treated as "Contracts") as of the end of such
Collection Period, and the denominator of which is the aggregate Contract
Balance Remaining of all leases included in the Servicer's servicing portfolio
as of the end of such Collection Period.
"61 to 90 Day Portfolio Delinquency Rate" means, as of the end
of any Collection Period, the percentage equivalent of a fraction, the numerator
of which is equal to the aggregate Contract Balance Remaining on all leases
included in the Servicer's servicing portfolio as to which any Scheduled Payment
(or part thereof in excess of 10% of such Scheduled Payment) is delinquent 61 or
more days, but no Scheduled Payment (or part thereof in excess of 10% of such
Scheduled Payment) is more than 90 days delinquent (and which would not be
Charged-Off Contracts if treated as "Contracts") as of the end of such
Collection Period, and the denominator
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of which is the aggregate Contract Balance Remaining of all leases included in
the Servicer's servicing portfolio as of the end of such Collection Period.
"91 Plus Day Portfolio Delinquency Rate" means, as of the end
of any Collection Period, the percentage equivalent of a fraction, the numerator
of which is equal to the aggregate Contract Balance Remaining of all leases
included in the Servicer's servicing portfolio as to which any Scheduled Payment
(or part thereof in excess of 10% of such Scheduled Payment) is 91 or more days
delinquent (and which would not be "Charged-Off Contracts" if treated as
"Contracts"), as of the end of such Collection Period, and the denominator of
which is the aggregate Contract Balance Remaining of all leases included in the
Servicer's servicing portfolio as of the end of such Collection Period.
"Accrued Liabilities" means with respect to any Settlement
Date, the sum of (i) all amounts paid by the Series Support Provider under the
Policy or for Insurer Advances, for the benefit of the Owners, and not yet
reimbursed to the Series Support Provider, (ii) all amounts owing under the
Insurance and Indemnity Agreement (excluding the Insurer Fee, Unused Fee and
Default Fee) as most recently certified to the Trustee by the Series Support
Provider, pursuant to Section 3.04(l) hereof, and not yet reimbursed to the
Series Support Provider, and (iii) interest on the foregoing amounts from the
date incurred to the date of payment to or reimbursement of the Series Support
Provider at the per annum rate set forth in the Insurance and Indemnity
Agreement (as most recently certified to the Trustee by the Series Support
Provider pursuant to Section 3.04(l) hereof), and not yet reimbursed to the
Series Support Provider.
"Advance Amount" means, as of any Pledge Date:
(a) with respect to any Pledge of any Series 2000-A
Contracts under Section 4.01 (b) hereof, the excess, if any, of (x) the Pro
Forma Borrowing Base over (y) the Net Investment immediately prior to such
Pledge;
(b) with respect to any Pledge of any Series 2000-A
Contracts under Section 4.01(e) hereof, the excess, if any, of (x) the Pro Forma
Borrowing Base over (y) the Borrowing Base as of the immediately preceding
Calculation Date; and
(c) with respect to any Pledge under Section 4.01(f)
hereof, $0.
"Agent" means Deutsche Bank AG, New York Branch, in its
capacity as agent for the Purchasers pursuant to Article VIII of the Note
Purchase Agreement and any successor Agent appointed pursuant thereto.
"Amortization Period" means the period commencing on the
Termination Date, and ending on the earlier to occur of (i) the final
disposition of, and application of the proceeds of, the Series 2000-A Trust
Estate and (ii) the payment in full of all Series Trustee Secured Obligations.
"Applicable Discount Rate" means with respect to any Series
2000-A Contract, the sum of:
(i) the Fee Rate; and
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(ii) the Hedge Rate under the Hedge Agreement to
which applies to such Series 2000-A
Contract, determined as of the related
Pledge Date.
"Applicable Hedge Agreement" means, with respect to any
Interest Period, any Hedge Agreement under which payment is scheduled to be made
(in the absence of any "netting") on the Settlement Date relating to such
Interest Period.
"Applicable Trigger Charged-Off Ratio" means, as of any date
of determination:
(x) if the Net Investment as of such date of
determination is less than $25,000,000,
5.0%;
(y) if the Net Investment as of such date of
determination is $25,000,000 or more but
less than $50,000,000, 3.5%; and
(z) if the Net Investment as of such date of
determination is $50,000,000 or more, 2.75%.
"Average Charged-Off Ratio" means, as of any day of
determination, the arithmetic average of the Charged-Off Ratio as of the last
day of each of the three preceding Collection Periods (or such lesser number of
Collection Periods as shall have occurred since the Series Closing Date).
"Back-Up Servicer Fee" means the monthly fee payable to the
Back-Up Servicer on each Settlement Date, which shall be the greater of (a)
one-twelfth of four basis points per annum times the aggregate Contract
Principal Balance of the Series 2000-A Contracts as of the end of the preceding
Collection Period and (b) $1,500. This fee is only to be paid to the Back-up
Servicer for so long as it is acting as such and is not payable during such time
as the Back-up Servicer acts as the successor Servicer.
"Base LIBO Rate" for any Interest Period (or portion thereof
for which an Owner initially funds an investment in the Series 2000-A Notes
other than by issuing Commercial Paper) with respect to the Series 2000-A Notes,
shall mean an interest rate per annum equal to the rate of interest equal to
either (as determined by the Agent) (i) the arithmetic mean of the offered rates
for deposits in U.S. Dollars for a period of one month (or such lesser period of
time as determined by the Agent to be appropriate in the event that the LIBO
Rate is to be determined for a portion of an Interest Period) (the "Period"),
commencing on the second London Banking Day immediately preceding the first day
of such Period, which appear on the Reuters Screen LIBO Page as of approximately
11:00 a.m., London time, if at least two such offered rates appear on the
Reuters Screen LIBO Page ("LIBOR Reuters"), or (ii) the rate for deposits in
U.S. dollars having, the Period designated commencing on the second London
Banking Day immediately preceding the first day of such Period which appears on
the Telerate Page 3750 as of 11:00 a.m., London time ("LIBOR Telerate").
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on the
Reuters Monitor Money Rate Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank offered
rates of major banks), and "Telerate Page 3750" means the display designated as
page "3750" on the Telerate Service (or such page as may replace the 3750 page
on that
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service or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits. If fewer than two offered rates appear on the
Reuters Screen LIBO Page, or if no rate appears on the Telerate Page 3750, as
applicable, the Base LIBO Rate in respect of that LIBOR Determination Date will
be determined as if the parties had specified the rate described in the
following paragraph (b) below. "LIBOR Determination Date" means the second
London Banking Day immediately preceding the first day of the related Period.
With respect to a day on which fewer than two offered rates
appear on the Reuters Screen LIBO Page, as specified in (i) above, or if no rate
appears on Telerate Page 3750 as specified in (ii) above, as applicable, the
Base LIBO Rate will be determined at approximately 11:00 a.m., London time, on
such day on the basis of the rates at which deposits in United States dollars
having the Period specified are offered to prime banks in the London interbank
market by four major banks in the London interbank market selected by the Agent
commencing on the second London Banking Day immediately preceding the first day
of such Period and in a principal amount equal to an amount of not less than
$1,000,000 that is representative for a single transaction in such market at
such time. The Agent will request the principal London office of each of such
banks to provide a quotation of its rate. If at least two such quotations are
provided, the Base LIBO Rate for such day will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, the Base LIBO Rate for
such day will be the arithmetic mean of the rates quoted at approximately 11:00
a.m., New York City time, on such day by three major banks in New York, New York
selected by the Agent, for loans in United States dollars to leading European
banks, having the specified Period, commencing on the second London Banking Day
immediately preceding the first day of such Period and in a principal amount
equal to an amount of not less than $1,000,000 that is representative for a
single transaction in such market at such time; provided, however, that if the
banks selected as aforesaid by the Agent are not quoting as described above, the
Base LIBO Rate in effect for the applicable period will be the Base LIBO Rate in
effect on such day.
"Borrowing Base" means, as of any date of determination, the
sum of:
(x) the lesser of:
(i) the product of (a) the sum of (i) the
aggregate Contract Principal Balance of all
Series 2000-A Contracts which are Eligible
Contracts and which are not Charged-Off
Contracts as of such date plus (ii) on any
date of determination other than on any
Settlement Date, the principal portion of
Series 2000-A Available Funds then on
deposit in the Series 2000-A Facility
Account which represents the excess of (x)
the Contract Principal Balance of Eligible
Contracts at the beginning of the related
Collection Period over (y) the Contract
Principal Balance of Eligible Contracts
which have not been subject to Prepayment as
of the related date of determination, minus
(iii) the Overconcentration Amount as of
such date times (b) the Purchase Price
Percentage as of such date of determination;
and
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(ii) the sum of (a) the aggregate Contract
Principal Balance of all Series 2000-A
Contracts which are Eligible Contracts and
which are not Charged-Off Contracts as of
such date plus (b) on any date of
determination other than on any Settlement
Date, the principal portion of Series 2000-A
Available Funds then on deposit in the
Series 2000-A Facility Account which
represents the excess of (x) the Contract
Principal Balance of Eligible Contracts at
the beginning of the related Collection
Period over (y) the Contract Principal
Balance of Eligible Contracts which have not
been subject to Prepayment as of the related
date of determination, minus (c) the
Overconcentration Amount as of such date
minus (d) the Credit Support Floor Amount;
and
(y) the aggregate Residual Advance Amount, if any, with
respect to such date of determination.
"Breakage Costs" means, for each Owner for each funding
period, to the extent that an Owner is funding the maintenance of its investment
in the Series 2000-A Notes during such funding period through the issuance of
Commercial Paper or at the LIBO Rate, during which such investment is reduced
(in whole or in part) prior to the end of the period for which it was originally
scheduled to remain outstanding (the amount of such reduction in such investment
being referred to as the "Allocated Amount"), the excess of (a) the discount or
interest that would have accrued on the Allocated Amount during the remainder of
such funding period if such reduction had not occurred over (b) the income, if
any, scheduled to be received by such Owner from investing the Allocated Amount
for the remainder of such funding period in a commercially reasonable manner.
"Broker Concentration Amount" means, as of any date of
determination, the excess, if any, of (x) the aggregate Contract Principal
Balance of all Series 2000-A Contracts originated by, or purchased from brokers
over (y) twenty-five percent (25%) of the aggregate Contract Principal Balance
of all Series 2000-A Contracts which are Eligible Contracts at such time.
"Broker/Vendor Concentration Amount" means, as of any date of
determination, for each broker or vendor that has originated or sold any Series
2000-A Contracts for or to the Transferor, the excess, if any, of (x) the
aggregate Contract Principal Balance of all Series 2000-A Contracts originated
by, or purchased from such broker or vendor over (y) five percent (5%) of the
aggregate Contract Principal Balance of all Series 2000-A Contracts which are
Eligible Contracts at such time.
"Business Day" shall mean any day that is a Business Day under
the Master Agreement which is also a day on which banks are not authorized or
required to close in New York, New York or in Minneapolis, Minnesota and on
which The Depository Trust Company of New York is open for business.
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"Cap Agreement" means a Hedge Agreement under which the Hedge
Counterparty will only make payments when and if the Base LIBO Rate exceeds a
specified level, and which provides for no payment by the Trustee at any time,
substantially in the form of Exhibit I hereto.
"Capped Monthly Interest" means, with respect to any
Settlement Date, an amount equal to the interest accrued on either (i) if the
Pool Balance is hedged only with a Cap Agreement, the Series 2000-A Note Balance
outstanding from time to time during the preceding Interest Period or (ii) if
any portion of the Pool Balance is hedged with a Swap Agreement, the notional
balance outstanding with respect to such Swap Agreement from time to time during
the preceding Interest Period, calculated at a rate equal to the Base LIBO Rate
(determined as of 11:00 a.m. (London time) on the second London Banking Day
prior to the commencement of such Interest Period) (whether or not any Owner
funded its investment in the Series 2000-A Note other than by issuing Commercial
Paper), plus 1.25%.
"Charged-Off Ratio" means, as of the end of any Collection
Period, twelve (12) times the percentage equivalent of a fraction the numerator
of which is equal to the excess of (x) the aggregate Contract Principal Balance
as of the end of such Collection Period of, plus any related Servicer Advances
made with respect to, all Series 2000-A Contracts which became Charged-Off
Contracts during such Collection Period, plus the aggregate Contract Principal
Balance of any Delinquent Contracts which were removed from the Series 2000-A
Trust Estate in exchange for Substitute Contracts during such Collection Period,
over (y) the sum of all Recoveries received during such Collection Period with
respect to the Series 2000-A Contracts, and the denominator of which is equal to
the aggregate Contract Principal Balance of all Series 2000-A Contracts which
are Eligible Contracts at such date as of (i) during the Revolving Period, the
end of the third preceding Collection Period and (ii) during the Amortization
Period, the beginning of such Collection Period.
"Collateral Administration Agreement" shall mean the
Collateral Administration Agreement, dated as of December 1, 2000, among the
Obligor, the Obligors' Agent, the Transferor, the Servicer, the Trustee and the
Agent, as the same may be amended, restated, supplemented or otherwise modified
from time to time hereafter.
"Commercial Paper" means any note, draft, xxxx of exchange, or
bankers' acceptance which has a maturity at the time of issuance not exceeding
nine months, exclusive of days of grace, or any renewal thereof the maturity of
which is likewise limited.
"CP Margin" has the meaning ascribed thereto in the Fee
Letter.
"Credit Support Amount" means, as of any date of
determination, the excess of (x) the aggregate Contract Principal Balance of all
Series 2000-A Contracts which are Eligible Contracts at such date and which are
not Charged-Off Contracts as of such date of determination, minus the
Overconcentration Amount as of such date over (y) the Net Investment as of such
date.
"Credit Support Floor Amount" means, as of any date of
determination, the greater of (x) $2,500,000 and (y) 25% of the Maximum
Applicable Credit Support.
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"Crossover Amounts" has the meaning set forth in Section 1.04
hereof.
"Debt-to-Equity Ratio" means, as of any date of determination,
and with respect to Xxxxxx and its consolidated subsidiaries, Total Debt as a
multiple of Tangible Net Worth; "Total Debt" shall reflect all liabilities
(excluding deferred taxes) under GAAP, provided that "Total Debt" shall include
all liabilities (other than deferred taxes), whether "on-balance sheet" or
"off-balance sheet" for GAAP, as well as subordinated debt any portion of the
principal of which is payable in less than five years from the date of its
issuance.
"Default Fee" means, as of any Settlement Date, the fee due to
the Series Support Provider for such Settlement Date, as calculated pursuant to
the Premium Letter.
"Deficiency Amount" means with respect to the Series 2000-A
Notes (i) with respect to the third succeeding Settlement Date after any
Settlement Date, the amount, if any, by which the Capped Monthly Interest for
such third preceding Settlement Date related to such Settlement Date exceeded
the aggregate amount of funds available and actually paid in respect of such
Capped Monthly Interest on such Settlement Date, and which remains unpaid on
such third succeeding Settlement Date after the related Settlement Date plus,
(b) interest on each such amount accruing from the date of non-receipt of such
amount to the date of payment by the Series Support Provider at the Series
2000-A Note Interest Rate and (ii) with respect to the Termination Date, an
amount, if any, in U.S. Dollars, equal to the outstanding amount of the Series
2000-A Note Balance, in no event exceeding $125,000,000, as of such date, that
remains unpaid.
"Eligible Bank Account" means a segregated account, which may
be an account maintained with the Trustee, which is either (a) maintained with a
depository institution or trust company whose long-term unsecured debt
obligations are rated at least BBB+ by S&P and Baa1 by Xxxxx'x and whose
short-term unsecured obligations are rated at least A-1 by S&P and P-1 by
Xxxxx'x; or (b) a trust account or similar account maintained with a federally
or state chartered depository institution subject to regulations regarding
fiduciary funds on deposit substantially similar to 12 C.F.R. 9.10(b).
"Eligible Contract" means a Series 2000-A Contract which:
(a) (i) is with a User whose billing address is in the
United States or its territories and possessions and requires (A) all
payments under such Contract to be made in United States dollars and
(B) all Equipment relating to such Contract be held in the United
States and (ii) is with a User who, if a natural person, is a resident
of the United States with legal capacity to contract or, if a
corporation or other business organization, is organized under the laws
of the United States, or any political subdivision thereof and has its
chief executive office in the United States;
(b) has not had any of its terms, conditions or
provisions amended, modified or waived other than in compliance with
the Credit and Collection Policy and has not been Restructured at any
time;
(c) constitutes "tangible chattel paper" within the
meaning of Sections 9-102(11) and (78) of the UCC of all applicable
jurisdictions and there is only one original (bearing
9
the original signature of an employee of Xxxxxx, together with the
facsimile copy of the signature of the User or the original signature
of the User) of such Contract that constitutes "chattel paper" for
purposes of the Delaware, New York, New Jersey and Nevada UCC;
(d) was originated in accordance with, and does not
contravene, any applicable federal, state and local laws, and
regulations thereunder (including, without limitation, any law, rule
and regulation relating to truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection
practices and privacy) and with respect to which no part of such
Contract is in violation of any applicable law, rule or regulation;
(e) was originated or purchased without recourse (other
than with respect to an obligation to repurchase in the event of breach
of a representation or warranty by the related Vendor or Broker) in
compliance with, and satisfies in all material respects all applicable
requirements of the Credit and Collection Policy;
(f) is not a Contract which has the United States or any
of its agencies or instrumentalities as the User;
(g) as of the related Pledge Date, is not a Delinquent
Contract;
(h) (i) contains "hell or high water" provisions
requiring the related User to assume all risk of loss or malfunction of
the related Equipment, (ii) requires the related User to pay all
expenses in connection with the maintenance, repair, insurance and
taxes, together with all other ancillary costs with respect to the
related Equipment and (iii) makes the related User absolutely and
unconditionally liable for all payments required to be made thereunder,
without any right of set-off, counterclaim, or other defense (other
than the discharge in bankruptcy of such related User) and without any
right to prepay the Contract or any contingencies tied to the Obligor;
(i) is payable in level monthly or quarterly rental
payments calculated at a fixed yield;
(j) creates a valid and enforceable security interest
(or, in the case of a "true lease", a valid ownership interest) in
favor of the Transferor in the related Equipment, and such Equipment
has not been the subject of loss or damage;
(k) together with the Equipment relating thereto, was the
subject of a valid sale and assignment from the Transferor with good
title transferred to the Obligor thereby and is free and clear of any
Liens, other than the claims arising pursuant to this Series 2000-A
Supplement and Master Agreement and the other documents relating to
this transaction; provided, however, that nothing in this paragraph (k)
shall prevent or be deemed to prohibit the Transferor from suffering to
exist upon such Contract any Lien for federal, state, municipal or
other local taxes if such taxes shall not at the time be due and
payable or if the Transferor shall concurrently be contesting the
validity thereof in good faith by appropriate proceedings that have
stayed enforcement thereof and shall have set aside on its books
adequate reserves with respect thereto,
10
(l) is in full force and effect in accordance with its
terms and contains enforceable provisions such that the right and
remedies of the holder thereof shall be adequate for realization
against the Equipment, if any, thereunder and of the benefits of any
security granted thereunder;
(m) does not provide for the substitution, exchange, or
addition of any other items of Equipment pursuant to such Contract
which would result in any reduction or extension of payments due
thereunder;
(n) by its terms is due and payable in full on or within
72 months of the applicable Pledge Date;
(o) arises under a Contract in substantially the form of
one of the form contracts set forth in Exhibit E hereto or otherwise
promptly approved by the Agent and the Series Support Provider in
writing, which is in full force and effect and constitutes the legal,
valid and binding obligation of the related User enforceable against
such User in accordance with its terms subject to no offset,
counterclaim or other defense (other than the discharge in bankruptcy
of such User);
(p) (i) does not preclude the pledge, transfer or
assignment thereof, (ii) does not require the consent of the User to
the pledge, assignment or transfer thereof, and (iii) does not contain
a confidentiality provision that purports to restrict the ability of
the Trustee to exercise its rights under the Series 2000-A Related
Documents with respect thereto, including, without limitation, its
right to review the Contract;
(q) was (i) originated or purchased by the Transferor in
the ordinary course of its business, (ii) approved and purchased or
funded in the ordinary course of the Transferor's business, (iii)
originated by an Originator eligible under the Credit and Collection
Policy and (iv) originated with respect to a transaction in which the
related Equipment is not used for personal, family, or household
purposes by the related User;
(r) is with a User that, as of the Contract's Pledge
Date, is not the User with respect to any Charged-Off Contract, and is
not and has never been a Charged-Off Contract;
(s) the inclusion of which in the Series 2000-A Trust
Estate would not require the registration of the Obligor or of the
Series 2000-A Trust Estate as an "investment company" under the
Investment Company Act of 1940, as amended;
(t) the addition of which to the Series 2000-A Trust
Estate would not result in the Weighted Average Life to exceed 2.5
years;
(u) if the Original Equipment Cost of the Equipment
related to such Contract is valued at greater than $25,000, is secured
by a first priority perfected security interest in such Equipment;
11
(v) relates to Equipment which (i) is not a vehicle or
other type of equipment which is subject to a certificate of title or
other similar titling statute and (ii) to the best of the Servicer's
knowledge, has not suffered any damage or loss;
(w) had a Contract Principal Balance upon origination
which was less than or equal to $200,000;
(x) was not selected by the Transferor from the
Transferor's pool of leases in a manner adverse to the Series 2000-A
Noteholders or the Series Support Provider;
(y) arises under a lease or financing contract, is not
currently under any sub-lease agreement, and does not permit any
sub-leasing of the related Equipment;
(z) is one as to which all parties to the Contract have
satisfied all obligations to be required to be fulfilled by such
parties as of the related Pledge Date;
(aa) is, and has been, at all times, a legal, valid and
binding payment obligation of the User, enforceable in accordance with
its terms;
(bb) the User of which is not an Affiliate of the
Transferor, the Servicer or any Obligor;
(cc) has been accounted for on the Transferor's books as
sold to the Obligor;
(dd) is not subject to, nor with respect to which has
there been asserted, any litigation or any right to rescission, set
off, counterclaim or other defense of the User;
(ee) as to which the related User has been directed to
make payment only to the Lockbox Account at the Lockbox Bank;
(ff) as to which the related Equipment has been delivered
to, and accepted by, the related User;
(gg) if such Contract is a "true lease", the Equipment is
owned by the Obligor free and clear of all other liens;
(hh) if such Contract was originated by a third party and
acquired by the Transferor, and if the Original Equipment cost related
thereto exceeded $25,000, a UCC-1 financing statement was filed against
the related User in the appropriate jurisdiction by the originator
thereof and a UCC-3 assignment was filed assigning the original UCC-1
to the Transferor; and
(ii) if such Contract is a tax exempt lease, satisfactory
evidence of the User's tax exempt status was presented to Xxxxxx at the
time of origination and included in the Contract File.
"Equipment Concentration Amount" means, as of any date of
determination, the sum of:
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(i) for the Equipment Type "Computers and Peripherals",
the excess, if any, of (x) the aggregate Contract
Principal Balance of all Series 2000-A Contracts with
respect to which the related Equipment is such
Equipment Type over (y) twenty-five percent (25%) of
the aggregate Contract Principal Balance of all
Series 2000-A Contracts which are Eligible Contracts
at such time;
(ii) for the Equipment Type "Software", the excess, if
any, of (x) the aggregate Contract Principal Balance
of all Series 2000-A Contracts with respect to which
the related Equipment is such Equipment Type over (y)
ten percent (10%) of the aggregate Contract Principal
Balance of all Series 2000-A Contracts which are
Eligible Contracts at such time;
(iii) for the Equipment Type "Surveillance Systems", the
excess, if any, of (x) the aggregate Contract
Principal Balance of all Series 2000-A Contracts with
respect to which the related Equipment is such
Equipment Type over (y) ten percent (10%) of the
aggregate Contract Principal Balance of all Series
2000-A Contracts which are Eligible Contracts at such
time;
(iv) for the Equipment Type "Telecommunications
Equipment", the excess, if any, of (x) the aggregate
Contract Principal Balance of all Series 2000-A
Contracts with respect to which the related Equipment
is such Equipment Type over (y) twenty percent (20%)
of the aggregate Contract Principal Balance of all
Series 2000-A Contracts which are Eligible Contracts
at such time;
(v) for the Equipment Type "Copiers", the excess, if any,
of (x) the aggregate Contract Principal Balance of
all Series 2000-A Contracts with respect to which the
related Equipment is such Equipment Type over (y)
twenty percent (20%) of the aggregate Contract
Principal Balance of all Series 2000-A Contracts
which are Eligible Contracts at such time;
(vi) for the Equipment Type "Veriphone Equipment," or
other equipment that utilizes a similar underwriting
criteria, the excess, if any, of (x) the aggregate
Contract Principal Balance of all Series 2000-A
Contracts with respect to which the related Equipment
is such Equipment Type over (y) two (2.0%) of the
aggregate Contract Principal Balance of all Series
2000-A Contracts which are Eligible Contracts at such
time; and
(vii) for each other Equipment Type, the excess, if any, of
(x) the aggregate Contract Principal Balance of all
Series 2000-A Contracts with respect to which the
related Equipment is such Equipment Type, over (y)
fifteen percent (15%) of the aggregate Contract
Principal Balance of all Series 2000-A Contracts
which are Eligible Contracts at such time.
13
"Equipment Type" means, with respect to each Series 2000-A
Contract, the related Equipment "type", as indicated on the Servicer's servicing
system with respect to such Series 2000-A Contract.
"Facility Fee" has the meaning ascribed thereto in the Fee
Letter.
"Fee Letter" means that certain letter agreement dated as of
August 7, 2001 by and among the Obligor, the Obligors' Agent and the Agent, as
it may be amended or modified and in effect from time to time.
"Fee Rate" means the aggregate of the rates at which fees are
payable in connection with Series 2000-A (i.e., LIBO Margin (as set forth in the
Fee Letter), the Servicing Fee of 1.00%, the Trustee's Fee of 0.02%, the Back-Up
Servicer's Fee of 0.04%, the Increased Servicer Fee of 0.25%) and the rate at
which the Insurer Fee due to the Series Support Provider are calculated, as set
forth in the Premium Letter.
"Government Concentration Amount" means, as of any date of
determination, the excess of (x) the aggregate Contract Principal Balance of all
Series 2000-A Contracts which are Government Contracts having a state,
municipality or agency or instrumental of a state or a municipality as the User
over (y) four percent (4.0%) of the aggregate Contract Principal Balance of all
Series 2000-A Contracts which are Eligible Contracts at such time.
"Government Contract" means, with respect to this Series
2000-A Supplement, a Contract of Equipment under which the User is a state or
local government or government agency (or any agency or instrumentality thereof)
and, if the Contract Principal Balance of such Contract is greater than $10,000,
such entity has executed and delivered a form of non-appropriation rider
substantially in the form of Exhibit H attached hereto.
"Hedge Agreement" means an interest rate cap or swap agreement
between the Trustee and a Hedge Counterparty satisfying the conditions specified
in Section 3.08 hereof.
"Hedge Counterparty" means a Person having long term unsecured
debt obligations rated at least AA- by S&P and Aa3 by Xxxxx'x and who is either
(i) listed on Schedule 2 hereto or (ii) reasonably acceptable to the Agent and
the Series Support Provider.
"Hedge Rate" means, with respect to any Hedge Agreement and
the Series 2000-A Contracts assigned thereto, (a) if such Hedge Agreement is a
Cap Agreement, the fixed rate per annum which the Base LIBO Rate must exceed to
result in payments made thereunder by the Hedge Counterparty to the Series
2000-A Facility Account, and (b) if such Hedge Agreement is an interest rate
swap agreement, the fixed rate per annum which is applied to the notional amount
of such Hedge Agreement to calculate the payments to be made by the Trustee
thereunder to the Hedge Counterparty.
"Increased Servicer Fee" means as of any Settlement Date, an
amount not to exceed 0.25% of the aggregate Contract Principal Balance of the
Series 2000-A Contracts as of the first day of the prior Collection Period,
payable on each Settlement Date to any successor Servicer in accordance with
Section 9.02(b) of the Master Agreement as additional compensation
14
in excess of the Servicing Fee for the performance of its duties hereunder and
under the Master Agreement.
"Independent Public Accountants" shall mean, with respect to
Xxxxxx, any "Big 4" accounting firm, or other accounting firm reasonably
acceptable to the Series Controlling Party.
"Insurance and Indemnity Agreement" means the Insurance and
Indemnity Agreement dated August 7, 2001 among the Series Support Provider,
Xxxxxx, MLR IV, MLR IV LLC and the Trustee.
"Insured Amounts" means with respect to the Policy, the sum of
(i) with respect to any Settlement Date, the Monthly Interest due on such
Settlement Date up to the amount of the Capped Monthly Interest due on such
Settlement Date and (ii) with respect to the Policy Termination Date, the Series
2000-A Note Balance, not to exceed $125,000,000.
"Insurer Advance" means any advance of funds by the Series
Support Provider in respect of a Deficiency Amount other than pursuant to the
Policy pursuant to Section 3.12 hereof.
"Insurer Fee" means, as of any Settlement Date, the premiums
due to the Series Support Provider, as calculated pursuant to the Premium
Letter.
"Interest Coverage Ratio" has the meaning set forth in
Schedule 1 hereto.
"Interest Period" means, with respect to any Settlement Date,
the period from and including the prior Settlement Date (or, in the case of the
first Settlement Date, from and including the Series Closing Date) to but
excluding such Settlement Date.
"LIBO Margin" has the meaning ascribed thereto in the Fee
Letter.
"LIBO Rate" for any Interest Period (or portion thereof for
which an Owner initially funds an investment in the Series 2000-A Notes other
than by issuing Commercial Paper) with respect to the Series 2000-A Notes shall
mean the applicable Base LIBO Rate divided by the percentage equal to the
difference of one minus the LIBOR Reserve Percentage applicable during such
Interest Period (or portion thereof), if any.
"LIBO Rate Disruption Event" shall mean, for any Owner with
respect to any Series 2000-A Note, for any Interest Period or portion thereof,
any of the following: (a) a determination by such Owner that it would be
contrary to law or to the directive of any central bank or other governmental
authority to obtain United States dollars in the London interbank market to fund
its investment in such Series 2000-A Note for such Interest Period or portion
thereof, (b) prime banks in the London interbank market are not then generally
quoting a Base LIBO Rate or not then quoting a Base LIBO Rate to Persons such as
such Owner, or (c) the inability of such Owner by reason of circumstances
affecting the London interbank market generally, to obtain U.S. Dollars in such
market to fund its investment in such Series 2000-A Note for such Interest
Period or portion thereof.
15
"LIBOR Reserve Percentage" shall mean, relative to each
Interest Period or portion thereof, a percentage (expressed as a decimal) equal
to the daily average during such Interest Period or portion thereof of the
percentages in effect on each day of such Interest Period or portion thereof, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor), for determining the maximum reserve requirements applicable to
"Eurocurrency liabilities" pursuant to Regulation D or any other applicable
regulation of the Board of Governors of the Federal Reserve System which
prescribes reserve requirements applicable to "Eurocurrency liabilities" as
currently defined in Regulation D.
"Liquidity Provider" shall mean a financial institution to
whom the Obligors' Agent shall have consented (which consent shall not be
unreasonably withheld) providing liquidity support to or for the account of any
Purchaser, whether by an extension of credit, the acquisition of an interest in
the Series 2000-A Notes, or otherwise, or having a commitment to provide such
support under a liquidity agreement which relates to this Supplement.
"Lockbox Account" means the account no. 2000006320698
established and maintained by the Lockbox Bank for the purpose of receiving
payments on the Series 2000-A Contracts.
"Lockbox Bank" means First Union National Bank or any other
commercial bank acceptable to the Series Support Provider.
"London Banking Day" means a day on which commercial banks are
open for business (including dealers in foreign exchange and foreign currency
deposits) in London, England.
"Make-Whole Amount" has the meaning set forth in the Premium
Letter.
"Xxxxxx" means Xxxxxx Leasing Corp., a Delaware corporation.
"Master Agreement" has the meaning set forth in the Recitals
hereto.
"Master Transfer Agreement" means that certain Master Lease
Acquisition and Sale Agreement dated as of December 1, 2000 among Xxxxxx, the
Obligors' Agent and the Obligors set forth therein as parties thereto from time
to time, as such agreement may be amended, supplemented or modified from time to
time.
"Maximum Applicable Credit Support" means:
(i) prior to the date of the first Take-Out, the
largest Credit Support Amount on any day
occurring since the Series Closing Date; and
(ii) on and after the date of the first Take-Out,
the largest Credit Support Amount on any day
occurring since the most recent Take-Out.
"Maximum Series Limit" means $125,000,000.
16
"Monthly Interest" means, with respect to any Settlement Date,
interest due in respect of the Series 2000-A Notes calculated at the Series
2000-A Note Interest Rate for the preceding Interest Period (which amount shall
include, in the event the aggregate principal portion of the respective
investments of each Purchaser exceeded the Series 2000-A Note Balance after
giving effect to all distributions on the prior Settlement Date, an amount equal
to interest accrued on such excess at the rate described in paragraph (a) of the
definition of Series 2000-A Note Interest Rate).
"Net Investment" means as of any date of determination the sum
of (i) the Series 2000-A Note Balance as of such date plus (ii) accrued and
unpaid interest at the Series 2000-A Note Interest Rate through such date plus
(iii) any Noteholder's Carryover Interest as of such date.
"Non-Draw Option" has the meaning set forth in Section 3.11
hereof.
"Non-Draw Option Price" has the meaning set forth in Section
3.11 hereof.
"Note Purchase Agreement" shall mean the Note Purchase
Agreement dated as of December 1, 2000, among the Obligor, the Obligors' Agent,
the Purchasers and the Agent, as the same may be amended, restated, supplemented
or otherwise modified from time to time hereafter.
"Noteholder's Carryover Interest" means, as of any date of
determination, the amount of Monthly Interest due on any prior Settlement Date
but not paid, plus interest thereon through such date from such prior Settlement
Date, calculated using the Series 2000-A Note Interest Rate applicable for the
next Settlement Date, all as determined by the Agent.
"Notice for Payment" has the meaning set forth in Section
3.10(a) hereof.
"Obligor" means MLR IV LLC.
"Original Issue Date" has the meaning specified in Section
3.07(b)(x) hereof.
"Original Servicer Fee Rate" has the meaning specified in
Section 3.07(b)(ix) hereof.
"Overconcentration Amount" means an amount, at any time, equal
to the sum of (i) the aggregate User Concentration Amount for all Users, (ii)
the aggregate State Concentration Amount for all States, (iii) the Equipment
Concentration Amount, (iv) the aggregate Broker/Vendor Concentration Amounts for
all brokers and vendors, (v) the Government Concentration Amount, (vi) the
Broker Concentration Amount and (vii) the Quarterly Payment Concentration
Amount.
"Owner" means each Purchaser, each Liquidity Provider and each
other Person that has purchased, or has entered into a commitment to purchase, a
Series 2000-A Note, or an interest therein.
17
"Pledge" means the pledge by the Obligor hereunder of its
right, title and interest in and to specified Pledged Property related thereto
to the Trustee for the benefit of the Series 2000-A Noteholders in accordance
with Section 1.02 hereof.
"Pledge Date" has the meaning set forth in Section 4.01(b)
hereof.
"Pledge Notice" has the meaning specified in Section 4.01(b)
hereof.
"Pledged Property" means, with respect to the Series 2000-A
Trust Estate, each Series 2000-A Contract, together with all associated property
and rights with respect thereto described in clauses (2) through (7) of Section
1.02 hereof.
"Policy" means the Financial Guaranty Insurance Policy, number
CA00046A, issued by the Series Support Provider in favor of the Trustee for the
benefit of the Owners pursuant to the Insurance and Indemnity Agreement in the
form of Annex I thereto.
"Policy Termination Date" means the earliest of (i) the sixth
Settlement Date following the day payment is due on the latest maturing Series
2000-A Contract, or (ii) such date when all Accrued Liabilities have been paid
in full, or (iii) the date designated by the Series Support Provider upon the
exercise of the Non-Draw Option.
"Portfolio Charged-Off Ratio" means, as of the last day of any
Collection Period, the percentage equivalent of a fraction, the numerator of
which is equal to the product of (i) 12 and (ii) the excess of (x) the sum of
the aggregate of Marlin's net investment (calculated in accordance with GAAP) in
all leases included in the Servicer's servicing portfolio which would have first
satisfied the definition of Charged-Off Contracts (were such leases "Contracts")
during such Collection Period, over (y) the sum of all recoveries during such
Collection Period for leases included in the Servicer's servicing portfolio, and
the denominator of which is equal to the sum of the aggregate of Marlin's net
investment (calculated in accordance with GAAP) in all leases included in the
Servicer's servicing portfolio as of the beginning of the related Collection
Period.
"Premium Letter" means the Premium Letter dated August 7, 2001
among the Series Support Provider, Xxxxxx, MLR IV and MLR IV LLC, pursuant to
which the Insurer Fee, Default Fee and Unused Fee are to be paid to the Series
Support Provider.
"Pro Forma Borrowing Base" means, (x) as of any Pledge Date,
the Borrowing Base (including the various components thereof) as calculated
assuming that all Series 2000-A Contracts to be Pledged on such Pledge Date have
in fact been so Pledged and (y) as of any day which is not a Pledge Date, the
Borrowing Base as of such day.
"Principal Distribution Amount" means with respect to any
Settlement Date (i) the aggregate Contract Principal Balance of all Series
2000-A Contracts which are Eligible Contracts and which are not Charged-Off
Contracts as of the end of the second preceding Collection Period minus (ii) the
aggregate Contract Principal Balance of all Series 2000-A Contracts, which are
Eligible Contracts and which are not Charged-Off Contracts as of the end of the
immediately preceding Collection Period.
18
"Purchase Price Percentage" means as of any date of
determination the lesser of (i) .885 and (ii) 1 minus the product of a times b
times c, where:
a = the Average Charged-Off Ratio as of such date of
determination;
b = the Weighted Average Life, rounded to the second decimal
place; and
c = 2.25
"Purchaser" has the meaning specified in the Note Purchase
Agreement.
"Quarterly Payment Concentration Amount" means, as of any date
of determination, the excess of (x) the aggregate Contract Principal Balance of
all Series 2000-A Contracts which are payable on a quarterly basis over (y) two
percent (2%) of the aggregate Contract Principal Balance of all Series 2000-A
Contracts which are Eligible Contracts at such time.
"Record Date" means, with respect to any Settlement Date, the
close of business on the Business Day preceding such Settlement Date.
"Redemption Price" has the meaning specified in Section 6.02
hereof.
"Refinance Proceeds" means with respect to any Collection
Period, proceeds of the issuance of a new series of notes or the issuance of
certificates in connection with a Take-Out of Series 2000-A Contracts, which
proceeds shall be remitted to the Trustee immediately upon receipt for deposit
into the Series 2000-A Facility Account for application in accordance with
Section 3.03 hereof.
"Replacement Policy" has the meaning set forth in Section 3.13
hereof.
"Replacement Series Support Provider" has the meaning set
forth in Section 3.13 hereof.
"Residual Advance Amount" shall have the meaning set forth in
any notice delivered to the Trustee by the Obligors' Agent, countersigned and
approved by the Agent and the Series Support Provider. Prior to the delivery of
such notice and confirmation by Standard & Poor's that its Facility Shadow
Rating will not be affected, the Residual Advance Amount shall be considered to
be zero.
"Restructured" means, with respect to any Series 2000-A
Contract, any deferral of Scheduled Payments, reduction of the Scheduled
Payments, or extension of the term of such Series 2000-A Contract, in each case
by the Servicer for credit reasons.
"Revolving Period" means the period from and including January
2, 2001 to but excluding the Termination Date.
"Series Closing Date" means, with respect to the Series 2000-A
Notes, December 21, 2000.
19
"Series Controlling Party" has the meaning specified in
Section 3.07(b)(vi) hereof.
"Series Event of Default" has the meaning specified in Section
5.01 hereof.
"Series Related Documents" means, with respect to the Series
2000-A Notes, the Series 2000-A Related Documents.
"Series Secured Obligations" has the meaning specified in
3.07(b)(vii) hereof.
"Series Secured Parties" has the meaning specified in Section
3.07(b)(viii) hereof.
"Series Support" means, for purposes of this Series 2000-A
Supplement, the Policy.
"Series Support Provider" means, for purposes of this Series
2000-A Supplement, XL Capital Assurance Inc.
"Series Support Provider Default" means the existence and
continuance of any of the following:
(a) a failure by the Series Support Provider to make a payment
when or as required under the Insurance and Indemnity Agreement in
accordance with its terms or under the Policy in accordance with its
terms; or
(b)(i) the Series Support Provider (A) files any petition or
commences any case or proceeding under any provision or chapter of the
United States Bankruptcy Code, the New York State Insurance Law, or any
other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization, (B) makes a general
assignment for the benefit of its creditors, or (C) has an order for
relief entered against it under the United States Bankruptcy Code, the
New York State Insurance Law, or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or (ii) a court of
competent jurisdiction, the New York Department of Insurance or other
competent regulatory authority enters a final and nonappealable order,
judgment or decree (A) appointing a custodian, trustee, agent or
receiver for the Series Support Provider or for all or any material
portion of its property or (B) authorizing the taking of possession by
a custodian, trustee, agent or receiver of the Series Support Provider
(or the taking of possession of all or any material portion of the
property of the Series Support Provider); or
(c) a court of competent jurisdiction shall have determined in
a final, nonappealable order that the Policy is not longer in full
force and effect.
"Series Termination Date" means, with respect to the Series
2000-A Notes, the date on which all Series Secured Obligations have
been paid in full.
20
"Series Trust Estate" means, with respect to the Series 2000-A
Notes, the Series 2000-A Trust Estate.
"Series Trustee Secured Obligations" has the meaning set forth
in Section 3.07(b)(vii).
"Series 2000-A Account" means each of the Series 2000-A
Facility Account, the Series 2000-A Insurance Account and the Lockbox Account.
"Series 2000-A Alternative Rate" means, for any Interest
Period (or portion thereof) for which a Purchaser initially funds an investment
in the Series 2000-A Notes other than by issuing Commercial Paper, an interest
rate per annum equal to the LIBO Rate for such Interest Period (or such portion
thereof); provided, however, that:
(a) if a Purchaser shall notify the Agent that a LIBO Rate
Disruption Event has occurred and is continuing, then, in any such
case, the "Series 2000-A Alternative Rate" for the Series 2000-A Notes
for such Interest Period or portion thereof shall be an interest rate
per annum equal to the Series 2000-A Base Rate from time to time in
effect unless the Agent, the Series Support Provider and the Obligors'
Agent agree in writing to a different rate; and
(b) without limiting the foregoing, if with respect to any
Interest Period or portion thereof any Purchaser shall have notified
the Agent that the rate at which deposits of the United States dollars
are being offered to such Purchaser in the London interbank market does
not accurately reflect the cost to such Purchaser of funding its
investment in the Series 2000-A Notes for such Interest Period or
portion thereof, the Obligors' Agent, the Series Support Provider and
the Agent shall negotiate in good faith to determine a mutually
agreeable different rate as the Series 2000-A Alternative Rate
sufficient to meet such Purchaser's costs and, pending the conclusion
of those negotiations, the Series 2000-A Alternative Rate for each
Interest Period shall be the LIBO Rate; provided, however, that if the
Obligors' Agent, the Series Support Provider and the Agent have not
agreed upon a rate before the end of the second full Interest Period
following the date of such Purchaser's notice to the Agent, the Series
2000-A Alternative Rate for each successive Interest Period for so long
as the condition giving rise to such notice shall be continuing shall
be the Series 2000-A Base Rate.
"Series 2000-A Available Funds" means, with respect to any
Settlement Date, the aggregate amount of Collections received by the Servicer
during the prior Collection Period with respect to the Series 2000-A Trust
Estate (other than Collections representing Advance Payments until such Advance
Payments are applied as Collections in accordance with Section 7.01 of the
Master Agreement), plus any net payments under a Hedge Agreement received since
the previous Settlement Date (or the Series 2000-A Series Closing Date in the
case of the first Settlement Date), plus any Prepayment Amounts deposited in the
Series 2000-A Facility Account pursuant to Section 6.01 hereof plus any
Crossover Amounts received from a Series in Group B since the previous
Settlement Date.
21
"Series 2000-A Base Rate" means, on any date, a fluctuating
rate of interest per annum equal to the higher of (a) the rate of interest most
recently announced by the Agent in New York, New York as its base commercial
lending rate (not necessarily intended to be the lowest rate of interest charged
by the Agent in connection with the extensions of credit) and (b) .50% above the
rate per annum at which the Agent, as a branch of a foreign bank, in its sole
discretion, can acquire federal funds in the interbank overnight federal funds
market, including through brokers of recognized standing.
"Series 2000-A Contract" means each Contract listed on a List
of Contracts attached to a Pledge Notice which is delivered in connection with a
Pledge of Pledged Property with respect to the Series 2000-A Trust Estate, and
which Contract has not been released from the Series 2000-A Trust Estate as
provided herein or in the Master Agreement.
"Series 2000-A Advance Payment Account" has the meaning set
forth in Section 3.01(b) hereof.
"Series 2000-A Facility Account" has the meaning set forth in
Section 3.01(a) hereof.
"Series 2000-A Insurance Account" means the account or
accounts created and maintained pursuant to Section 3.10(b).
"Series 2000-A Note" means any one of the Series 2000-A Notes
executed by the Obligor in favor of the Agent and authenticated by or on behalf
of the Trustee, substantially in the form of Exhibit A hereto, and any
replacement therefor.
"Series 2000-A Note Balance" means, as of any time of
determination, the aggregate, cumulative amount of the Advance Amounts funded
pursuant to Section 4.01(b) hereof since the Series Closing Date, reduced by the
aggregate, cumulative amounts described in Sections 3.03(a)(i) eleventh,
3.03(a)(ii) eleventh and 3.03(a)(ii) fifteenth and actually paid to the Series
2000-A Noteholders on all prior Settlement Dates.
"Series 2000-A Noteholder" shall mean any Owner, as defined in
the Note Purchase Agreement.
"Series 2000-A Note Interest Rate" means for any Interest
Period for the Series 2000-A Notes, the weighted average of the following rates
determined for each Purchaser (based on the respective investments of each
Purchaser in the Series 2000-A Notes and the time period for which applicable
rates are in effect):
(a) to the extent that a Purchaser funds its
investments in the Series 2000-A Notes for such Interest
Period or portion thereof by issuing Commercial Paper, the sum
of (i) the CP Margin and (ii) the weighted average of the
rates at which Commercial Paper issued by such Purchaser to
fund the purchase or maintenance of their investments in the
Series 2000-A Notes during such Interest Period or portion
thereof has been sold by any placement agent or commercial
paper dealer selected by such Purchaser; provided, that, for
purposes of calculating such weighted average, if any such
rate is a discount rate, such
22
discount rate shall be converted to an interest-bearing
equivalent rate per annum for a 360-day year and
(b) to the extent that a Purchaser funds its
investments in the Series 2000-A Notes for such Interest
Period or portion thereof other than by issuing Commercial
Paper, a rate equal to the sum of (i) the applicable LIBO
Margin and (ii) the Series 2000-A Alternative Rate for such
Interest Period or portion thereof or such other rate as the
Agent and the Obligors' Agent shall agree to in writing.
The Series 2000-A Note Interest Rate for any Interest Period shall be adjusted
to yield, when applied to the outstanding principal balance of the Series 2000-A
Notes, an amount sufficient to pay interest on the incremental effective
principal balance of any funding resulting from the capitalization of interest,
if any, during such Interest Period.
As used in paragraph (a) of this definition, each Purchaser's weighted average
of the Commercial Paper rates shall include (x) any incremental carrying costs
incurred with respect to Commercial Paper maturing on dates other than those on
which corresponding funds are received by such Purchaser, and (y) other
borrowings by such Purchaser to fund the Net Investment (other than under any
liquidity agreement or other program support agreement), including borrowings to
fund small or odd dollar amounts that are not easily accommodated in the
commercial paper market.
"Series 2000-A Related Documents" means, collectively, this
Series 2000-A Supplement, the Fee Letter, the Premium Letter, the Hedge
Agreement(s), the Master Agreement, the Master Transfer Agreement, the Insurance
and Indemnity Agreement, the Collateral Administration Agreement, the Note
Purchase Agreement, the Policy, the Series 2000-A Notes and all other
instruments, documents, financing statements and agreements executed and
delivered by the Obligor, the Obligors' Agent or the Servicer in connection
herewith or therewith and each Series 2000-A Transfer Agreement Supplement
executed pursuant thereto with respect to the Series 2000-A Trust Estate.
"Series 2000-A Secured Parties" shall have the meaning set
forth in Section 3.07(b)(viii) hereof.
"Series 2000-A Transfer Agreement Supplement" means each
Transfer Agreement Supplement entered into pursuant to the Master Transfer
Agreement which transfers Series 2000-A Contracts to the Obligor for inclusion
in the Series 2000-A Trust Estate.
"Series 2000-A Trust Estate" shall have the meaning set forth
in Section 1.02 hereof.
"Servicer's Certificate" means a report with respect to Series
2000-A, in substantially the form of Exhibit D hereto (appropriately completed),
furnished by the Servicer to the Obligors' Agent, the Trustee, the Series
Support Provider and the Agent pursuant to Section 6.06 of the Master Agreement.
"Servicing Fee" means as of any Settlement Date, an amount
equal to one-twelfth of 1.00% of the aggregate Contract Principal Balance of the
Series 2000-A Contracts as of the
23
first day of the prior Collection Period, payable on each Settlement Date to the
Servicer pursuant to Section 3.03 hereof as compensation for the performance of
its duties hereunder and under the Master Agreement.
"Settlement Date" means the 15th of each month (or if the 15th
of any month is not a Business Day, then on the next succeeding Business Day)
commencing with January 16, 2001.
"State Concentration Amount" means:
(i) for any State other than New Jersey,
Florida, Texas or California, the excess, if
any, of (x) the aggregate Contract Principal
Balance of all Series 2000-A Contracts with
respect to which any User is domiciled in
such State, over (y) ten percent (10%) of
the aggregate Contract Principal Balance of
all Series 2000-A Contracts which are
Eligible Contracts at such time; plus
(ii) for each of New Jersey, Florida, Texas and
California, individually, the excess, if
any, of (x) the aggregate Contract Principal
Balance of all Series 2000-A Contracts with
respect to which any User is domiciled in
such State over fifteen percent (15%) of the
aggregate Contract Principal Balance of all
Series 2000-A Contracts which are Eligible
Contracts at such time.
"Support Interest Funding" means any drawing under the Policy
or any Insurer Advance or other payment by the Series Support Provider or in
lieu of funding a drawing under the Policy, in either case made with respect to
interest as calculated pursuant to clause (i) of the defined term "Insured
Amounts".
"Support Principal Funding" means any drawing under the Policy
or any Insurer Advance or other payment by the Series Support Provider or in
lieu of funding a drawing under the Policy, in either case made with respect to
principal as calculated pursuant to clause (ii) of the defined term "Insured
Amounts".
"Swap Agreement" means a Hedging Agreement other than a Cap
Agreement, substantially in the form of Exhibit J hereto.
"Take Out" means the refinancing of all of the Series 2000-A
Contracts (whether through the issuance of asset-backed securities, funding
through other Committed Financing Facilities, whole loan sales or otherwise).
"Tangible Net Worth" means, with respect to Xxxxxx, its
shareholders' equity, less any intangible assets, all determined in accordance
with GAAP, provided that subordinated debt, none of the principal of which is
payable less than five years from the date of its issuance shall be considered
equity.
"Termination Date" means the earliest to occur of: (i) the two
(2) year anniversary of the Series Closing Date, or such later date as the
parties (with the express written
24
consent of the Agent and Series Support Provider) may hereafter agree in
accordance with Section 4.01(i), (ii) the day designated as the Termination Date
by the Obligor on sixty (60) days' prior written notice to the Agent and the
Series Support Provider, (iii) the day on which the Series Controlling Party
declares the occurrence of the Termination Date or on which the Termination Date
automatically occurs pursuant to Section 5.01, (iv) the date on which the
financial strength rating of XL Capital Assurance Inc. is withdrawn, suspended
or rated below "A" by Standard & Poor's, (v) the 90th day following the date on
which the Series Support Provider has delivered a written notice to the
Transferor and the Agent to the effect that the most recent audit completed by
the Series Support Provider or its designee of the Transferor's origination,
servicing and documentation procedures has revealed to the Series Support
Provider deficiencies which it reasonably believes creates a material adverse
effect on the facility and (vi) a Hedge Counterparty fails to satisfy the
definition thereof and is not replaced within fifteen (15) Business Days by a
Person satisfying the definition thereof.
"Three-Month Rolling Average" means, with respect to any pool
performance ratio, the sum of the applicable ratio for the most recently ended
Collection Period and two immediately preceding Collection Periods (or such
fewer Collection Periods as have previously occurred) divided by three (or such
smaller number).
"Trustee Fee" means the monthly fee payable to the Trustee on
each Settlement Date, which shall be the greater of (x) one-twelfth of two basis
points (0.02%) per annum times the aggregate Contract Principal Balance of the
Series 2000-A Contracts as of the end of the preceding Collection Period and (y)
$1,000.
"Unused Fee" has the meaning ascribed thereto in the Premium
Letter.
"User Concentration Amount" means, for any User, the excess,
if any, of (x) the aggregate Contract Principal Balance of all Series 2000-A
Contracts with respect to which such User or any Affiliate of such User is the
User, over the lesser of (a) three quarters of one percent (0.75%) of the
aggregate Contract Principal Balance of all Series 2000-A Contracts which are
Eligible Contracts at such time and (b) $300,000.
"Weighted Average Hedge Rate" means, with respect to any
Interest Period, the weighted average (weighted based on the related notional
balances, as well as the number of days during such Interest Period for which
the related Hedge Agreement was in effect) of Hedge Rates applicable to all
Hedge Agreements under which payment will be received on the Settlement Date
relating to such Interest Period.
"Weighted Average Life" means, as of any date of
determination, a term in years equal to the sum of:
[sigma] (Pn X Tn)
---------
PB
25
where:
[sigma] = The mathematical symbol for summation. The
summation is computed from 1 to n, where n is the number of
months from the date of determination until the date of the
last Scheduled Payment under the last Series 2000-A Contract
scheduled to be outstanding;
Pn = The sum of the principal portions of the Scheduled
Payments for all Series 2000-A Contracts which are Eligible
Contracts in the nth month after the date of determination;
Tn = The remaining period, in months, from the time of
calculation until such nth month; and
PB = The aggregate Contract Principal Balance of all Series
2000-A Contracts which are Eligible Contracts at the time of
calculation,
divided by 12 and rounded to the second decimal place.
ARTICLE III
DISTRIBUTIONS AND STATEMENTS TO
SERIES 2000-A NOTEHOLDER; SERIES SPECIFIC COVENANTS
Section 3.01 Series 2000-A Accounts.
(a) The Trustee, for the benefit of the Series 2000-A
Secured Parties, shall establish and maintain an account (the "Series 2000-A
Facility Account") as a segregated trust account in the Trustee's corporate
trust department, identified as the "Facility Account for Xxxxxx Master
Financing Facility Agreement, in trust for the Series 2000-A Secured Parties."
The Trustee shall make or permit withdrawals from the Series 2000-A Facility
Account only as provided in this Series 2000-A Supplement;
(b) The Trustee, for the benefit of the Series 2000-A
Secured Parties, shall establish and maintain an account (the "Series 2000-A
Advance Payment Account") as a segregated trust account in the Trustee's
corporate trust department, identified as the "Advance Payment Account for
Xxxxxx Master Financing Facility Agreement, in trust for the Series 2000-A
Secured Parties." The Trustee shall make or permit withdrawals from the Series
2000-A Advance Payment Account only as provided in this Series 2000-A Supplement
and in the Master Agreement;
(c) The Trustee shall deposit to the Series 2000-A
Facility Account all Refinance Proceeds remitted to it by the Obligor
immediately upon the Trustee's receipt thereof;
(d) The Trustee shall deposit to the Series 2000-A
Facility Account any Crossover Amounts remitted to it from other Series assigned
to Group B, as provided in the Series Supplement(s) relating to such other
Series; and
26
(e) Notwithstanding the foregoing or anything in the
Master Agreement to the contrary, upon written instruction from the Servicer,
the Trustee may deduct from amounts otherwise specified for deposit to the
Series 2000-A Facility Account any amounts previously deposited by the Trustee
into the Series 2000-A Facility Account but which (i) are subsequently
uncollectible as a result of dishonor of the instrument of payment for or on
behalf of the User, (ii) are later determined to have resulted from mistaken
deposits or (iii) constitute Servicing Charges.
Section 3.02 Agent to Send Notice of Amounts Due. On each
Determination Date, the Agent shall send to the Servicer (with a copy to the
Trustee and the Series Support Provider), a notice in the form of Exhibit C to
the Note Purchase Agreement.
Section 3.03 Distributions from Series 2000-A Facility
Account.
(a) On each Settlement Date, the Trustee (based solely on
the information set forth in the related Servicer's Certificate) shall allocate
and distribute funds on deposit in the Series 2000-A Facility Account in the
following order of priority, without duplication:
(i) if such Settlement Date occurs during the Revolving
Period:
first, from Series 2000-A Available Funds, to pay to
the Servicer any amounts referred to in Section
3.01(e) and to pay to any other Persons that
mistakenly deposited funds into the Series 2000-A
Facility Account, such mistakenly deposited funds;
second, from the remaining Series 2000-A Available
Funds, to the Servicer, an amount necessary to
reimburse the Servicer for any unreimbursed Servicer
Advances with respect to Series 2000-A Contracts;
third, from the remaining Series 2000-A Available
Funds, to the Trustee for payment to Hedge
Counterparties, amounts due under the related Hedge
Agreements, limited to the net fixed amount due
applied against the outstanding Net Investment,
except amounts due as fees, expenses or as the
consequence of the occurrence of an event of default
or termination event under such Hedge Agreement or
otherwise due upon the termination of such Hedge
Agreement, which amounts shall be paid as provided in
clause sixteenth below;
fourth, from the remaining Series 2000-A Available
Funds to the Servicer, if the Servicer is not the
Obligor or an Affiliate of the Obligor, in payment of
any Servicing Fee then due;
fifth, from the remaining Series 2000-A Available
Funds, to the Trustee, the Trustee Fee, and to the
Back-up Servicer, the Back-Up Servicing Fee, any
out-of-pocket expenses of the Trustee and the Back-up
Servicer or successor Servicer reasonably incurred in
connection with the Series 2000-A transaction and,
subject to an aggregate, cumulative maximum
(including amounts paid under paragraph (a)(ii) fifth
below) of $50,000
27
(with respect to the above described expenses) during
the term of this facility, any expenses in excess of
such cumulative maximum amount if such expenses are
approved in writing by the Series Support Provider
and any servicing Transition Cost due such Persons
under this Series Supplement;
sixth, from the remaining Series 2000-A Available
Funds, if no Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider (x) the Insurer Fee due to the Series
Support Provider on such Settlement Date in
connection with the Series Support and (y) any unpaid
Insurer Fee due on prior Settlement Dates, together
with (in the case of any such unpaid Insurer Fee)
interest thereon at the rate specified in the Premium
Letter;
seventh, from the remaining Series 2000-A Available
Funds, if no Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider, the aggregate amount necessary to reimburse
the Series Support Provider for prior unreimbursed
Support Interest Fundings, together with interest
thereon, calculated at the rate set forth in the
Insurance and Indemnity Agreement, all as certified
by the Series Support Provider to the Trustee, the
Agent and the Obligors' Agent;
eighth, from the remaining Series 2000-A Available
Funds, to the Series 2000-A Noteholders, the
following amounts in the following order: (a) any
Monthly Interest with respect to any prior Settlement
Date due but not paid pursuant to this clause eighth
(or pursuant to a Support Interest Funding made
pursuant hereto) on a prior Settlement Date;
provided, however, that no such amount of Monthly
Interest carried forward with respect to a prior
Settlement Date shall include any amount of Monthly
Interest for a prior Settlement Date that was in
excess of the Capped Monthly Interest for such prior
Settlement Date, and (b) Monthly Interest for such
Settlement Date but not in an amount in excess of the
Capped Monthly Interest for such Settlement Date;
ninth, from the remaining Series 2000-A Available
Funds, if a Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider, the amounts described in clauses sixth and
seventh above;
tenth, from the remaining Series 2000-A Available
Funds, if no Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider, the aggregate amount necessary to reimburse
the Series Support Provider for prior unreimbursed
Support Principal Fundings, together with interest
thereon, calculated at the rate set forth in the
Insurance and Indemnity Agreement, all as certified
by the Series Support Provider to the Trustee, the
Agent and the Obligors' Agent;
28
eleventh, from the remaining Series 2000-A Available
Funds, to the Series 2000-A Noteholders in reduction
of the Series 2000-A Note Balance, the lesser of:
(x) such remaining Series 2000-A
Available Funds and
(y) the excess of (i) the Net
Investment, after taking into account any reduction
thereof on such Settlement Date pursuant to the
preceding clauses of this subsection (a)(i), over (2)
the Pro Forma Borrowing Base;
twelfth, from the remaining Series 2000-A Available
Funds, if a Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider, the amounts described in clause tenth
above;
thirteenth, from the remaining Series 2000-A
Available Funds, ratably to the Series 2000-A
Noteholder, the following amounts in the following
order: (a) any Noteholder's Carryover Interest for
such Settlement Date; and (b) any Monthly Interest
for such Settlement Date, in each case to the extent
not paid pursuant to clause eighth above;
fourteenth, from the remaining Series 2000-A
Available Funds, to the Obligor, the lesser of:
(i) the Advance Amount for all Series
2000-A Contracts being Pledged on such Settlement
Date in accordance with Section 4.01(e) hereof; and
(ii) such remaining Series 2000-A
Available Funds;
fifteenth, from the remaining Series 2000-A Available
Funds, ratably to the Series 2000-A Noteholder, for
the benefit of the applicable Owners or to the Agent
or the Series Support Provider, as applicable, the
Facility Fee, the Unused Fee, Breakage Costs, any
Default Fee, any Make-Whole Amounts, any outstanding
and unpaid Accrued Liabilities and any other amounts
owing to the Series 2000-A Noteholders, the Series
Support Provider or the Agent under the Series 2000-A
Related Documents, as certified by the Agent or the
Series Support Provider, as applicable, to the
Trustee, and the Obligors' Agent;
sixteenth, from the remaining Series 2000-A Available
Funds, ratably, to each Hedge Counterparty (and based
upon the amounts owed to each) any amounts due to it
as fees, expenses or as the consequence of an event
of default or termination event under the related
Hedge Agreement or otherwise due upon the termination
of the related Hedge Agreement;
29
seventeenth, from the remaining Series 2000-A
Available Funds, (i) to the Servicer, if the Servicer
is the Obligor or an Affiliate of the Obligor, in
payment of any accrued and unpaid Servicing Fee then
due and (ii) to any successor Servicer in payment of
any accrued and unpaid Increased Servicer Fees then
due; and
eighteenth, from the remaining Series 2000-A
Available Funds, the balance, if any, to other Series
in Group B, if any, and thereafter to the Obligors'
Agent for the benefit of the Obligor, or as otherwise
directed by it in writing.
(ii) if such Settlement Date occurs during the
Amortization Period:
first, from Series 2000-A Available Funds to pay to
the Servicer any amounts referred to in Section
3.01(e) and to pay to any other Persons that
mistakenly deposited funds into the Series 2000-A
Facility Account, such mistakenly deposited funds;
second, from the remaining Series 2000-A Available
Funds, to the Servicer, an amount necessary to
reimburse the Servicer for any unreimbursed Servicer
Advances with respect to the Series 2000-A Contracts;
third, from the remaining Series 2000-A Available
Funds, to the Trustee for payment to Hedge
Counterparties, amounts due under the related Hedge
Agreements limited to the net fixed amount due
applied against the outstanding Net Investment,
except amounts due as fees, expenses or as the
consequence of the occurrence of an event of default
or termination event under such Hedge Agreement or
otherwise due upon the termination of such Hedge
Agreement, which amounts shall be paid as provided in
clause seventeenth below;
fourth, from the remaining Series 2000-A Available
Funds, to the Servicer, if the Servicer is not the
Obligor or an Affiliate of the Obligor, in payment of
any Servicing Fee then due;
fifth, from the remaining Series 2000-A Available
Funds, to the Trustee, the Trustee Fee, and to the
Back-up Servicer, the Back-Up Servicing Fee, any
out-of-pocket expenses of the Trustee and the Back-up
Servicer or successor Servicer reasonably incurred in
connection with the Series 2000-A transaction and,
subject to an aggregate, cumulative maximum
(including amounts paid under paragraph (a)(i) fifth
above) of $50,000 (with respect to the above
described expenses) during the term of this facility,
any expenses in excess of such cumulative maximum
amount if such expenses are approved in writing by
the Series Support Provider and any servicing
Transition Cost due such Persons under this Series
Supplement;
30
sixth, from the remaining Series 2000-A Available
Funds, if no Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider (x) the Insurer Fee due to the Series
Support Provider on such Settlement Date in
connection with the Series Support and (y) any unpaid
Insurer Fee due on prior Settlement Dates, together
with (in the case of any such unpaid Insurer Fee)
interest thereon at the rate specified in the Premium
Letter;
seventh, from the remaining Series 2000-A Available
Funds, if no Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider, the aggregate amount necessary to reimburse
the Series Support Provider for prior unreimbursed
Support Interest Fundings, together with interest
thereon, calculated at the rate set forth in the
Insurance and Indemnity Agreement, all as certified
by the Series Support Provider to the Trustee, the
Agent and the Obligors' Agent;
eighth, from the remaining Series 2000-A Available
Funds, to the Series 2000-A Noteholders, the
following amounts in the following order: (a) any
Monthly Interest with respect to any prior Settlement
Date due but not paid pursuant to this clause eighth
(or pursuant to a Support Interest Funding made
pursuant hereto) on a prior Settlement Date;
provided, however, that no such amount of Monthly
Interest carried forward with respect to a prior
Settlement Date shall include any amount of Monthly
Interest for a prior Settlement Date that was in
excess of the Capped Monthly Interest for such prior
Settlement Date, and (b) Monthly Interest for such
Settlement Date but not in an amount in excess of the
Capped Monthly Interest for such Settlement Date;
ninth, from the remaining Series 2000-A Available
Funds, if a Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider, the amounts described in clauses sixth and
seventh above;
tenth, from the remaining Series 2000-A Available
Funds, if no Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider, the aggregate amount necessary to reimburse
the Series Support Provider for prior unreimbursed
Support Principal Fundings, together with interest
thereon, calculated at the rate set forth in the
Insurance and Indemnity Agreement, all as certified
by the Series Support Provider to the Trustee, the
Agent and the Obligors' Agent;
eleventh, from the remaining Series 2000-A Available
Funds, to the Series 2000-A Noteholders, in reduction
of the Series 2000-A Note Balance, the product of (x)
the Principal Distribution Amount and (y) 88.5%;
31
twelfth, from the remaining Series 2000-A Available
Funds, if a Series Support Provider Default has
occurred and is continuing, to the Series Support
Provider, the amounts described in clause tenth
above;
thirteenth, from the remaining Series 2000-A
Available Funds, to the Series 2000-A Noteholder, the
following amounts in the following order: (a) any
Noteholder's Carryover Interest for such Settlement
Date; and (b) any Monthly Interest for such
Settlement Date, in each case to the extent not paid
pursuant to clause eighth above;
fourteenth, from the remaining Series 2000-A
Available Funds, (i) to the Servicer, if the Servicer
is the Obligor or an Affiliate of the Obligor, in
payment of any accrued and unpaid Servicing Fee then
due and (ii) to any successor Servicer in payment of
any accrued and unpaid Increased Servicer Fees then
due;
fifteenth, from the remaining Series 2000-A Available
Funds, to the Series 2000-A Noteholders in reduction
of the Series 2000-A Note Balance, the lesser of (i)
100% of such amount and (ii) the then-outstanding
Series 2000-A Note Balance (calculated after taking
into account any reduction therein under clause
eleventh above);
sixteenth, from the remaining Series 2000-A Available
Funds, ratably to the Series 2000-A Noteholder, for
the benefit of the applicable Owners or to the Agent
or the Series Support Provider, as applicable, of the
Facility Fee, the Unused Fee, Breakage Costs, any
Default Fee, any Make-Whole Amounts, any outstanding
and unpaid Accrued Liabilities and any other amounts
owing to the Series 2000-A Noteholders or the Agent
under the Series 2000-A Related Documents, as
certified by the Agent or the Series Support
Provider, as applicable, to the Trustee, and the
Obligors' Agent;
seventeenth, from the remaining Series 2000-A
Available Funds, ratably, to each Hedge Counterparty
(and based upon the amounts owed to each) any amounts
due as fees, expenses or as the consequence of an
event of default or termination event under the
related Hedge Agreement or otherwise due upon the
termination of the related Hedge Agreement; and
eighteenth, from the remaining Series 2000-A
Available Funds the balance, if any, to other Series
in Group B, if any, and thereafter to the Obligors'
Agent for the benefit of the Obligor, or as otherwise
directed by it in writing.
(b) All payments of interest, principal, fees, and other
amounts payable to the Series 2000-A Noteholders hereunder shall be made on each
Settlement Date to the Agent for the benefit of the applicable Purchaser(s) and
all payments of amounts payable to the Series Support Provider shall be made on
each Settlement Date by wire transfer of immediately available funds to an
account designated in writing by the Agent or the Series Support Provider, as
applicable, in
32
the form of Exhibit C hereto delivered to the Trustee on or prior to the related
Determination Date without in the case of the Agent or the Series Support
Provider presentation or surrender of the Series 2000-A Note or the making of
any notation thereon.
(c) Any designation by the Agent or the Series Support
Provider, as applicable, of an account for receipt of wire transfers pursuant to
the preceding clause (b) shall be a standing instruction, effective with respect
to the applicable Settlement Date and all subsequent Settlement Dates thereafter
until revoked. In the absence of such timely wire transfer instructions, payment
will be made by cashiers check sent by overnight courier to the Agent or the
Series Support Provider, as applicable, at the address designated pursuant to
Section 7.01. All reasonable costs and expenses incurred by the Trustee in
connection with the distribution of the payments to the Series 2000-A
Noteholders or the Series Support Provider as set forth in this Section 3.03(c)
shall be paid by the Servicer.
(d) The Trustee shall not have any duty or obligation to
recalculate, recompute or verify the information contained in the Servicer's
Certificate.
Section 3.04 Reporting and Review Requirements.
(a) The Servicer shall send to the Agent, the Series
Support Provider and the Trustee a Servicer's Certificate with respect to each
Collection Period, such Servicer's Certificate to be in the form of that
attached hereto as Exhibit D, not later than three (3) Business Days prior to
the immediately succeeding Settlement Date.
(b) By January 31 of each calendar year, commencing
January 31, 2002, the Servicer shall prepare and distribute to the Trustee and
to the Agent a statement containing such information as is required to be
provided by an issuer of indebtedness under the Code and such other customary
information as is necessary or may reasonably be requested by the Agent to
enable the Purchasers to prepare their tax returns.
(c) The Series Support Provider or its designee shall, at
Marlin's expense (not to exceed $30,000 per annum plus out-of-pocket costs and
expenses) be permitted to conduct such audits of Marlin's origination, servicing
and documentation procedures as the Series Support Provider shall deem
necessary, once, following the first Collection Period and thereafter, not more
frequently than quarterly (provided such audits shall commence no sooner than
January 1, 2001). In addition, the Series Support Provider or its designee shall
have the right (1) as long as a Series Event of Default has not occurred and is
not continuing, to conduct additional audits at the Series Support Provider's
(or its designee's) expense, upon at least two Business Day's prior notice and
(2) following the occurrence of and during the continuance of a Series Event of
Default, to conduct audits as frequently as it deems necessary, at any time
without prior notice and at Marlin's expense.
(d) Xxxxxx shall provide the Agent and the Series Support
Provider with a covenant compliance certificate (as part of the Servicer's
Certificate), to the effect that, as of the end of each calendar quarter, Xxxxxx
and each Obligor is in compliance with its respective covenants hereunder
(listing any exceptions) signed by the Servicing Officer of Xxxxxx and delivered
within 45 days of the end of such calendar quarter.
33
(e) Xxxxxx shall provide the Agent and the Series Support
Provider with consolidated and consolidating financial statements (consolidating
financial statements to include, in columnar format, all wholly-owned
subsidiaries of Xxxxxx, with the exception of subsidiaries that are
special-purpose entities), in each case prepared in accordance with GAAP (i)
unaudited, on a quarterly basis, within 45 days of the end of each calendar
quarter, certified by the Chief Financial Officer of Xxxxxx and (ii) audited, on
an annual basis, within 120 days of the end of each fiscal year, audited by
Marlin's Independent Public Accountants.
(f) Xxxxxx shall provide the Agent and the Series Support
Provider with a copy of its "monthly business review" within 30 days of the end
of each month.
(g) Xxxxxx shall provide the Agent and the Series Support
Provider with a copy of its annual management/internal control report prepared
by Marlin's Independent Public Accountants, promptly following Marlin's receipt
thereof and in no event later than 120 days following the end of each fiscal
year.
(h) Xxxxxx shall provide the Agent and the Series Support
Provider with a copy of its annual budget for each upcoming fiscal year,
including statements of income and cash flows, and balance sheets, not later
than 30 days after the beginning of such fiscal year.
(i) The Servicer and the Trustee shall furnish to the
Agent and the Series Support Provider during the term of this Series 2000-A
Supplement, such periodic, special or other reports or information not
specifically provided for herein, as shall be necessary, reasonable and
appropriate as shall be requested by the Agent or the Series Support Provider,
all such reports or information to be provided by and in accordance with
reasonable instructions and directions as the Agent or the Series Support
Provider may reasonably require and as the Servicer and the Trustee may
reasonably be able to produce. In furtherance of, and not in limitation of the
foregoing, there shall be delivered to the Agent and the Series Support Provider
by the Trustee, promptly following the Trustee's receipt thereof, copies of (i)
each Servicer's annual compliance statement delivered to the Trustee pursuant to
Section 6.07 of the Master Agreement, and (ii) each financial statement and
report delivered to the Trustee pursuant to Section 6.08 of the Master
Agreement. The Trustee's obligation under this Section 3.04(c) shall only
pertain to information provided by the Servicer to the Trustee or otherwise in
the Trustee's possession.
(j) The Trustee shall promptly, after any Responsible
Officer's receipt of copies thereof, or any Responsible Officer acquiring actual
knowledge thereof, send to the Agent and the Series Support Provider (at the
Servicer's expense):
(i) written notice of any breach by the Transferor, the
Obligor, the Obligors' Agent or the Servicer of any
of their respective representations, warranties or
covenants made in any of the Series 2000-A Related
Documents to which it is a party;
(ii) a copy of each Servicer compliance statement
delivered to the Trustee pursuant to Section 6.07 of
the Master Agreement;
34
(iii) a copy of each financial statement, Independent
Accountant's review, notice and report delivered to
the Trustee pursuant to Sections 6.08 and 12.04 of
the Master Agreement;
(iv) written notice of the occurrence of any Series Event
of Default or Event of Servicer Termination;
(v) written notice of any failure of the Trustee to
conform to the eligibility requirements for the
Trustee pursuant to Section 11.08 of the Master
Agreement;
(vi) written notice of the appointment of any co-trustee
or separate trustee by the Trustee pursuant to
Section 11.15 of the Master Agreement; and
(vii) copies of all other financial statements, reports,
information and/or notices as may be reasonably
requested by the Agent or the Series Support Provider
and, in each case, which has been received by or is
otherwise in the possession of the Trustee or to
which the Trustee would have access or would be
entitled to receive or request in accordance with the
terms of the Master Agreement;
provided, however, that in each case the Trustee shall only be required to send
such notices and other items to the Agent and the Series Support Provider to the
extent that the Trustee has itself received or has knowledge of the related
information. Except as may be specifically provided herein, the Trustee shall
have no obligation to seek to obtain any such information.
(k) The Trustee shall promptly, after any Responsible
Officer's receipt of copies thereof, or any Responsible Officer acquiring actual
knowledge thereof, send to the Rating Agency (at the Servicer's expense):
(i) written notice of the waiver of any of the events set
forth in Sections 5.01(o), (p) or (q), which events
would otherwise constitute Series Events of Default;
and
(ii) written notice of any approval by the Series Support
Provider of expenses for payment pursuant to clause
fifth of Sections 3.03(a)(i) and 3.03(a)(ii) hereof;
provided, however, that in each case the Trustee shall only be required to send
such notices and other items to the Rating Agencies to the extent that the
Trustee has itself received or has knowledge of the related information. Except
as may be specifically provided herein, the Trustee shall have no obligation to
seek to obtain any such information.
(l) At least three Business Days prior to the date on
which the Servicer is required to deliver the Servicer Certificate referred to
in Section 3.04(a) above, the Series Support Provider shall report to the
Servicer, the Agent and the Trustee (in writing) the amount of all Accrued
Liabilities outstanding and unpaid as of such date (including a breakdown as to
the amounts outstanding and unpaid under each of clauses (i) and (ii) of the
definition of
35
"Accrued Liabilities"), together with the amount of any additional interest
accruing thereon under the Insurance and Indemnity Agreement through the next
Settlement Date. The Trustee shall be entitled to rely conclusively upon each
such certification in preparing any reports or accountings under Section 3.04
hereof and in making distributions pursuant to Section 3.03 hereof on such
Settlement Date. In the absence of its receipt of any such certification prior
to any Settlement Date, the Trustee shall be entitled to conclude that no
amounts other than amounts drawn under the Policy or advanced pursuant to an
Insurer Advance (and remaining unreimbursed to the Series Support Provider) of
which it has knowledge are then outstanding and owing as Accrued Liabilities as
of such Settlement Date.
Section 3.05 Compliance With Withholding Requirements.
Notwithstanding any other provisions of this Series 2000-A Supplement or the
Master Agreement to the contrary, the Trustee, for and on behalf of, and at the
direction of the Servicer, shall comply with all federal withholding
requirements respecting payments (or advances thereof) to the Agent on behalf of
the Purchasers as may be applicable to instruments constituting indebtedness for
federal income tax purposes. Except as otherwise provided in the Note Purchase
Agreement, any amounts so withheld shall be treated as having been paid to the
Agent on behalf of the applicable Purchasers for all purposes of this Series
2000-A Supplement. In no event shall the consent of the Agent or any Purchasers
be required for any such withholding. The Series Support Provider shall not be
obligated to pay any additional amounts to the Owners in the event that any
taxes or related amounts are withheld or assessed from or with respect to
payments on the Series 2000-A Notes.
Section 3.06 Servicer Advances. No later than one Business Day
preceding each Settlement Date, if the Servicer determines that any Scheduled
Payment (or portion thereof), which was due and payable pursuant to a Series
2000-A Contract during the related Collection Period was not received by such
date, the Servicer may make a Servicer Advance in an amount up to the amount of
such delinquent Scheduled Payment (or portion thereof), to the extent that in
its sole discretion it determines it can recoup such amount from subsequent
Collections under the related Series 2000-A Contract. The Servicer shall remit
any Servicer Advances to the Series 2000-A Facility Account for application in
accordance with the terms of Section 3.03.
Section 3.07 Special Representations, Covenants and
Acknowledgements.
(a) With respect to the Series 2000-A Notes, the Obligor
and the Obligors' Agent does hereby represent and warrant, as of each Pledge
Date:
(i) Insolvency. Each of the Obligor and the Obligors'
Agent is Solvent and will remain Solvent after giving
effect to the issuance of the Series 2000-A Notes and
the transactions contemplated by this Series 2000-A
Supplement, the Master Facility Agreement and each
Series 2000-A Related Document to which it is a
party.
(ii) Principal Place of Business. Exhibit F hereto sets
forth the principal place of business, state of
incorporation or organization, and chief executive
36
office and the location of the Contract Files for the
Obligor and the Obligors' Agent.
(iii) Valid Pledge. Each Pledge constitutes the grant of a
perfected, first priority security interest in all
Pledged Property (other than any Equipment having a
value of $25,000 or less, with respect to which such
security interest is validly granted, but may not be
perfected or of first priority) to the Trustee.
(iv) Governmental Authorization. Other than the filing of
the financing statements required hereunder, no
authorization or approval or other action by, and no
notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by the Obligor and the
Obligors' Agent of this Agreement, the Master
Facility Agreement and each Series 2000-A Related
Document to which it is a party except for such
authorizations, approvals, actions, notices and
filings as have already been obtained, taken or made.
(v) Accuracy of Information. All information heretofore
furnished in writing by the Obligor or the Obligors'
Agent to the Trustee, the Series Support Provider or
to the Agent for purposes of or in connection with
this Agreement, the Master Facility Agreement and
each Series 2000-A Related Document to which it is a
party or any Pledge is true, accurate and complete in
every material respect on the date such information
is stated or certified.
(vi) Names. In the past two years, none of the Obligor nor
the Obligors' Agent has used any corporate names,
trade names or assumed names other than the name in
which it has executed this Agreement.
(vii) No Adverse Selection. The Series 2000-A Contracts
have been, and will be, selected by the Obligors'
Agent in a manner that is not adverse to the
interests of the Trustee, the Series 2000-A
Noteholders or the Series Support Provider.
(viii) Eligibility. Each Series 2000-A Contract being
Pledged on such Pledge Date is an Eligible Contract.
(ix) No Event of Default. No Series Event of Default has
occurred and is continuing, nor does any situation
exist which, with the giving of notice and/or the
passage of time, would result in the occurrence of a
Series Event of Default.
(b) The Obligor, the Obligors' Agent, Xxxxxx and the
Servicer do hereby covenant, acknowledge and agree that:
(i) Access to Documentation. The Agent, the Series
Support Provider and any of their duly authorized
representatives, attorneys or accountants shall
37
have the same access to the documentation relating to
the Series 2000-A Trust Estate as the Trustee is
provided pursuant to Section 6.09 of the Master
Agreement.
(ii) Servicer to Indemnify. The Servicer shall indemnify
the Agent, the Series Support Provider and the
Noteholders to the same extent and on the same terms
as the Trustee, pursuant to Section 8.01 of the
Master Agreement.
(iii) Certain Consents Required. The prior written consent
of the Series Support Provider and the Agent shall be
required for the Obligor to take any action described
in Section 14.03(a) or 14.03(b) of the Master
Agreement; provided, however, that in no event shall
this Section 3.7(b)(iii) require the consent of the
Series Support Provider or the Agent for any Take
Out.
(iv) Notice of Return of Final Payment. The Servicer shall
give the Agent and the Series Support Provider notice
of any return of final payment given to the Trustee
pursuant to Section 5.06 of the Master Agreement, at
the same time such notice is given to the Trustee.
(v) Acknowledgement of Obligor. The Obligor hereby
confirms and acknowledges that, by its execution
hereof, (a) it shall be deemed to be a party to the
Master Agreement and to the Master Transfer Agreement
for the purpose of making all representations,
warranties and covenants, and being bound by all
obligations, applicable to the Obligor thereunder, to
the extent (and only to the extent) such
representations, warranties, covenants and
obligations relate to the Series 2000-A Note and/or
the Series 2000-A Trust Estate and (b) it confirms
the right and ability of the Obligors' Agent to
execute any and all Series 2000-A Documents on behalf
of such Obligor, and that the Obligors' Agent's
signature thereon shall have the same force and
effect as if the Obligor was a direct signatory
thereto.
(vi) Series Controlling Party. The parties hereto
acknowledge that so long as no Series Support
Provider Default shall have occurred and be
continuing, the Series Support Provider shall be the
"Series Controlling Party" with respect to the Series
2000-A Notes for purposes of the Master Agreement and
this Series 2000-A Supplement and that if a Series
Support Provider Default shall have occurred and be
continuing, the Agent shall be the "Series
Controlling Party" for purposes of the Master
Agreement and this Series 2000-A Supplement so long
as such Series Support Provider Default shall
continue.
(vii) Series Trustee Secured Obligations. The "Series
Trustee Secured Obligations" and the "Series Secured
Obligations" with respect to the Series 2000-A Notes
shall mean, collectively (a) all amounts due to the
Series 2000-A Noteholders for principal and interest
and under the Note Purchase Agreement, (b) any
amounts due to the Agent hereunder and
38
under the Note Purchase Agreement, either in its
individual capacity or on behalf of the Purchasers,
(c) any fees and expenses due to the Trustee or the
Back-up Servicer with respect to the Series 2000-A
Notes, (d) amounts due to the Series Support Provider
hereunder and under the Insurance and Indemnity
Agreement including all Accrued Liabilities and (e)
any payments due to any Hedge Counterparty with
respect to the Series 2000-A Note.
(viii) Series Secured Parties. The "Series Secured Parties"
with respect to the Series 2000-A Note are the
Trustee, the Back-up Servicer, the Series Support
Provider, the Agent, the Series 2000-A Noteholders,
and each Hedge Counterparty (the "Series 2000-A
Secured Parties").
(ix) Original Servicer Fee Rate. The "Original Servicer
Fee Rate" with respect to the Series 2000-A Note is
the percentage set forth in the definition of
"Servicing Fee" herein.
(x) Original Issue Date. The "Original Issue Date" with
respect to the Series 2000-A Note is the Series
Closing Date.
(xi) Limitation of Allowable Prepayments. The Servicer
shall not accept any Prepayment unless the amount
received in connection therewith is at least equal to
the related Prepayment Amount as of such date, or, if
less, unless the Servicer makes a non-recoverable
deposit to the Master Facility Account in the amount
of any shortfall (which non-recoverable deposit shall
be a "Collection" with respect to the Series 2000-A
Trust Estate).
(xii) Limitation on Removals. Notwithstanding Sections
6.12(a) and (b) of the Master Agreement, the Servicer
may not remove any Contract pursuant to such Sections
6.12(a) and (b) if the aggregate of the Contract
Principal Balances removed pursuant to such Section
exceeds ten percent (10%) of the then aggregate
Contract Principal Balance of all Series 2000-A
Contracts which are Eligible Contracts on such date.
(xiii) Series Controlling Party to Appoint Successor
Servicer with Respect to this Series. The Series
Controlling Party shall have the right to appoint a
successor Servicer with respect to the Series 2000-A
Contracts in the event of an Event of Servicer
Termination.
(xiv) Terms of Take-Out. Immediately following each
Take-Out, the Net Investment shall be reduced to
zero.
(xv) Equipment Type. The Servicer will not change the
Equipment Type classifications on its servicing
system without the prior written consent of the
Series Controlling Party.
(xvi) Change in Credit and Collection Policy. There has
been no, nor shall there be any, material change in
the Credit and Collection Policy since
39
March 31, 2000 without the prior written consent of
the Agent and the Series Support Provider, the
determination as to whether such consent shall be
given shall be made promptly upon request therefor.
(xvii) Reserved.
(xviii) Reserved.
(xix) ERISA. Except as may otherwise be imposed by law,
Xxxxxx has no obligation to provide, and will not
have any obligation to provide, post-retirement
medical or life insurance or other death benefits to
any person other than pursuant to the "Xxxxxx Leasing
Corp. 401(k) Profit Sharing Plan" (the "401 (k)
Plan"). Except with respect to the 401(k) Plan,
Xxxxxx, does not currently maintain, have an
obligation to contribute to or pay withdrawal
liability to, or have any other obligation with
respect to, any "pension plan" (within the meaning of
section 3(2) of ERISA) or any multiemployer plan
(within the meaning of section 3(37) of ERISA). For
purposes hereof, all references to "ERISA" shall be
deemed to refer to the Employee Retirement Income
Security Act of 1974 (and any sections of the Code),
as now in effect and as it may hereafter be amended
or modified, and all regulations promulgated
thereunder and all references to "Xxxxxx" in this
paragraph (xix) shall be deemed to refer to Xxxxxx
and all other entities with which Xxxxxx is
affiliated within the meaning of Section 414(b) and
415(h) of the Code, as amended by ERISA, and Sections
210(c) and 4001(a)(2) of ERISA.
(xx) Substitute Contracts. Any Substitute Contract
delivered to the Series 2000-A Trust Estate shall, if
delivered during the Amortization Period, in addition
to being an Eligible Contract, have substantially
similar characteristics as the Replaced Contract.
(xxi) Equipment Filings. If, at any time during the term of
this facility, Xxxxxx or any Obligor or the Obligors'
Agent becomes aware that the aggregate Contract
Principal Balance for all Series 2000-A Contracts
having Users located in any one state exceeds 3% of
the then aggregate Contract Principal Balance for all
Series 2000-A Contracts, the Obligor shall, if
appropriate Equipment Filings have not been made in
such state and/or the state of incorporation of such
Obligor if required by the UCC, within ten Business
Days of so becoming aware, cause UCC-1 financing
statements naming Xxxxxx as debtor/seller and MLR IV
LLC as secured party/buyer and naming MLR IV LLC as
debtor and the Trustee as secured party to be filed
with the appropriate registry, sufficient in form to
perfect the Trustee's security interest in the
Equipment located in such state (the filing of any
such UCC-1 financing statement being an "Equipment
Filing"). At the time of any such Equipment Filing
the Obligor shall also cause to be delivered to the
Trustee, the Agent, the Series Support Provider and
each Rating Agency an opinion of counsel to the
effect that such Equipment
40
Filing is in form sufficient to perfect such security
interest in the related Equipment.
(xxii) Amendment to Master Transfer Agreement. For so long
as any Series Secured Obligations remain outstanding
with respect to this Series 2000-A Supplement, the
Obligor, the Obligors' Agent and Xxxxxx hereby agree
that they will not consent to any agreement pursuant
to Section 7.05 of the Master Transfer Agreement or
consent to any amendment to the Master Transfer
Agreement pursuant to Section 7.01 of the Master
Transfer Agreement without the prior written consent
of the Agent and the Series Support Provider, such
consent not to be unreasonably withheld, the
determination as to whether such consent shall be
given shall be made promptly upon request therefor.
(c) The Obligor hereby makes each of the representations,
warranties and covenants set forth in Section 2.01(a) of the Master Agreement to
the Trustee, the Series 2000-A Noteholders, the Series Support Provider and the
Agent on which representations, warranties and covenants the Trustee relies in
accepting the Series 2000-A Trust Estate in trust, and on which the Series
2000-A Noteholders have relied in agreeing to purchase the Series 2000-A Notes.
Such representations, warranties and covenants are deemed to be made and
affirmed on the Series Closing Date, and shall survive the date of the making or
remaking of such representations and warranties.
Section 3.08 Hedging Arrangements.
(a) Xxxxxx shall provide for one or more Hedge
Agreement(s) with respect to the Series 2000-A Trust Estate with an aggregate
notional balance at least $2,000,000 greater than the Outstanding Net Investment
and a future aggregate notional balance at least equal to the future principal
portion of the Net Investment (calculated at a zero loss and zero prepayment
assumption). Each Hedge Agreement shall:
(i) provide for payments on each Settlement Date (x)
which, in the case of a Cap Agreement, are made only
by the Hedge Counterparty to the Trustee, in an
amount equal to the current notional amount of the
Hedge Agreement applied to the excess, if any, of the
Base LIBO Rate over the Hedge Rate with respect
thereto, and (y) in the case of a Swap Agreement, are
to be made (1) by the Hedge Counterparty to the
Trustee in an amount equal to the current notional
amount of the Swap Agreement applied to the Base LIBO
Rate, and (2) by the Trustee to the Hedge
Counterparty in an amount equal to such notional
amount applied to the Hedge Rate with respect thereto
(which amounts may be netted, with the net amount
paid by one party to the other);
(ii) be satisfactory in form and substance to the Series
Support Provider and the Agent;
41
(iii) provide that all payments made by the Hedge
Counterparty thereunder shall be made directly into
the Series 2000-A Facility Account;
(iv) provide for termination at the option of the Trustee
upon release of the related Series 2000-A Contracts
from the Lien of the Indenture;
(v) require the Hedge Counterparty to find a replacement
Hedge Counterparty to execute a new Hedge Agreement
satisfactory to the Series Support Provider and the
Agent within 10 Business Days of any downgrade of the
ratings of the Hedge Counterparty below the levels
set forth in the definition of "Hedge Counterparty",
which replacement must meet the qualifications set
forth in the definition of "Hedge Counterparty";
(vi) be between the related Hedge Counterparty and the
Trustee;
(vii) if such Hedge Agreement is a Cap Agreement, be
substantially in the form of Exhibit I hereto; and
(viii) if such Hedge Agreement is a Swap Agreement, be
substantially in the form of Exhibit J hereto.
(b) In the event that a Hedge Counterparty no longer
satisfies the ratings requirement specified in the definition thereof and does
not itself find a replacement which has executed a Hedge Agreement as required
under clause (v) of Section 3.08(a), Xxxxxx shall be required, within 15
Business Days following the failure of such Hedge Counterparty to satisfy such
ratings requirement, to provide a substitute Person satisfying the requirements
of the definition of Hedge Counterparty to be substituted as the Hedge
Counterparty under the applicable Hedge Agreement(s) or to enter into a new
Hedge Agreement satisfactory to the Series Support Provider and the Agent.
(c) The Trustee shall not designate an "Early Termination
Date" under any Hedge Agreement following any "Event of Default" or "Termination
Event" thereunder without the prior written consent of the Series Controlling
Party, and must designate such an "Early Termination Event" at the Series
Controlling Party direction if the circumstances would permit the Trustee to
then make such a designation.
(d) The Trustee shall promptly forward to the Series
Controlling Party a copy of any notice received from a Hedge Counterparty
relating to any downgrade, withdrawal or suspension of such Hedge Counterparty's
(or such Hedge Counterparty's guarantor's) ratings.
(e) The Trustee shall not execute any assignment,
assumption, credit support annex, extension, amendment, modification, waiver,
confirmation, designation of "Reference Market Makers," schedule or other
agreement in connection with any Hedge Agreement without first obtaining the
prior written consent of the Series Controlling Party. A copy of any such item
received by the Trustee, together with a copy of any other notice or
communication received by the Trustee in connection with any Hedge Agreement
shall be forwarded to the Series Controlling Party promptly on receipt. Notice
of (i) any assignment or transfer by a Hedge Counterparty of any of its rights
or obligations under any Hedge Agreement (ii) any assumption,
42
amendment, extension, modification, waiver or event of default under any Hedge
Agreement, and (iii) the Hedge Counterparties entering into any new Hedge
Agreement shall be given by the Trustee to each Rating Agency.
Section 3.09 Lockbox Account.
(a) The Servicer shall establish a Lockbox Account
identified as "the Lockbox Account for Xxxxxx Master Facility Agreement, in
trust for the Series 2000-A Secured Parties" on behalf of, and in the name of,
MLR IV LLC, which shall be an Eligible Bank Account. The Servicer shall direct
each User to make all payments with respect to the Series 2000-A Contracts which
are due after the related Pledge Date directly to the Lockbox Account. Any
notice delivered pursuant to the preceding sentence of this Section 3.09 after
the date hereof shall provide that (i) it is irrevocable except by, or a notice
accompanied by written consent of, the Series Controlling Party and (ii) the
User will only be discharged from its obligations under the Series 2000-A
Contract to the extent payments are sent to the Lockbox Account.
(b) The Servicer shall issue and maintain a standing
instruction to the Lockbox Bank under the Lockbox Agreement to the effect that
(x) on each Business Day the Lockbox Bank shall (i) cause all items received in
the post-office box related to the Lockbox Account since the preceding Business
Day relating to the Series 2000-A Contracts to be deposited into the Lockbox
Account, and (ii) remit by electronic funds transfer, into the Series 2000-A
Facility Account all available funds on deposit in the Lockbox Account and (y)
if the Lockbox Bank receives a written notice from the Series Controlling Party
stating that a Series Event of Default has occurred hereunder, the Lockbox Bank
shall thereafter follow such directions as it may thereafter receive from the
Series Controlling Party with respect to Collections on the Series 2000-A
Contracts, and shall not thereafter follow any directions of the Servicer
(unless otherwise directed by the Series Controlling Party). Such standing
instruction shall be evidenced by an agreement with the Lockbox Bank in form and
substance acceptable to the Series Controlling Party. The Servicer will transfer
any payments it receives directly rather than by payment to the Lockbox Account
by or on behalf of the Users pursuant to the Contracts and all Recoveries in
respect thereof to the Series 2000-A Facility Account immediately upon receipt
thereof.
(c) Neither the Servicer, any Obligor nor any Affiliate
thereof shall direct or shall have directed any payments to be remitted to the
Lockbox Account unless such payments relate to the Series 2000-A Contracts, or
to Contracts relating to other Series of Notes assigned to Group B.
Section 3.10 The Policy; Accrued Liabilities.
(a) If, on any Determination Date, the Trustee determines
(based solely on information set forth in the related Servicer's Certificate)
that a Deficiency Amount exists in an amount greater than zero, the Trustee
shall promptly (and, in any event, not later than the date that is two (2)
Business Days prior to the related Settlement Date) notify the Series Support
Provider in writing of such Deficiency Amount. Unless the Trustee shall have
received written notice from the Series Support Provider to the effect that the
Series Support Provider intends to make an Insurer Advance in respect of such
Deficiency Amount on the related Settlement Date,
43
the Trustee shall deliver to the Series Support Party a notice substantially in
the form of Exhibit A to the Policy (the "Notice for Payment") as a claim for an
Insured Amount in an amount equal to such Deficiency Amount. Such Notice for
Payment shall be delivered in accordance with the terms of the Policy no later
than 10:00 a.m., New York City time, on the second (2nd) Business Day
immediately preceding such Settlement Date.
(b) The Trustee, for the benefit of the Series 2000-A
Secured Parties, shall establish and maintain an account (the "Series 2000-A
Insurance Account") as a segregated trust account in the Trustee's corporate
trust department, identified as the "Insurance Account for Xxxxxx Master
Financing Facility Agreement, in trust for the Series 2000-A Secured Parties."
The Trustee shall make or permit withdrawals from the Series 2000-A Facility
Account only as provided in this Series 2000-A Supplement. Upon receipt of an
Insured Amount or Insurer Advance from the Series Support Provider on behalf of
the Owners, the Trustee shall deposit such amounts into the Series 2000-A
Insurance Account. On each Settlement Date, the Trustee shall distribute the
Deficiency Amount, if any, from amounts on deposit in the Series 2000-A
Insurance Account to the Owners on a pro rata basis in payment of such
Deficiency Amount.
(c) The Trustee (i) shall be deemed to receive any
Insured Amount or Insurer Advance from the Series Support Provider as
attorney-in-fact on behalf of each Owner and (ii) shall distribute such Insured
Amount or Insurer Advance to such Owner as set forth in subsection (b) above.
Insured Amounts from proceeds of the Policy and Insurer Advances disbursed by
the Trustee shall not be considered payment by MLR IV LLC with respect to the
Owners, nor shall such disbursement of such Insured Amounts or Insurer Advances
discharge the obligations of MLR IV LLC with respect to the amounts thereof. The
Series Support Provider shall become subrogee and the deemed assignee of such
Owners, of an amount of Series 2000-A Notes equal to the amount of Insured
Amounts paid or Insurer Advances made by the Series Support Provider. The
Trustee hereby agrees, and each Owner, by its acceptance of its Series 2000-A
Note, hereby agrees, for the benefit of the Series Support Provider that the
Trustee shall recognize that to the extent the Series Support Provider makes
payments of Insured Amounts or Insurer Advances, either directly or indirectly
(as by paying through the Trustee), to the Owners, the Series Support Provider
will be subrogated to the rights of the Owners to the extent of such payments.
(d) Any payment of Accrued Liabilities to the Series
Support Provider pursuant to Section 3.03 (b) shall be deemed to be applied
first to amounts owing under clause (iii), if any, second under clause (ii), if
any, and then under clause (i), of the definition of Accrued Liabilities.
Section 3.11 Option to Purchase in Lieu of Draw.
(a) The Owners hereby grant to the Series Support
Provider (or its designee, and each reference in this Section 3.11(a) to the
Series Support Provider shall also be deemed to be a reference to such designee,
as the context may require) the option (the "Non-Draw Option"), in lieu of
making a payment under the Policy on the presentation of the Notice for Payment
under the Policy pursuant to section 3.10(a), to purchase all (but not less than
all) of the Owners' rights and title to, and interest in, such Series 2000-A
Notes, at a price (the "Non-Draw Option Price") equal to the greater of (i)
amount which would have been payable by the Series Support
44
Provider in connection with a draw under the Policy in respect of such Series
2000-A Notes and (ii) the Series 2000-A Note Balance, all accrued interest
thereon, but only to the extent of Capped Monthly Interest. Payment made by the
Series Support Provider of the Non-Draw Option Price shall be made in
immediately available funds by 12:00 p.m. New York City time on the later of (a)
the third Business Day following receipt by the Series Support Provider, at its
designated offices, of a Notice for Payment pursuant to Section 3.10(a), and (b)
the date on which payment under the Policy pursuant to such Notice for Payment
would have been due in respect of the Series 2000-A Notes. All calculations
required to determine the Non-Draw Option Price, shall be made by the Trustee as
of the draw date specified in the relevant Notice for Payment under the Policy
delivered pursuant to Section 3.10(a). The Series Support Provider may exercise
the Non-Draw Option by telephone notice confirmed in writing by the Series
Support Provider to the Owner immediately thereafter.
(i) Simultaneously with the payment of the Non-Draw
Option Price, the Owners shall deliver to the Series Support Provider such
transfer documents as shall be necessary pursuant to the terms hereof to assign
to the Series Support Provider the Series 2000-A Notes purchases pursuant to the
Non-Draw Option and take any and all other actions as may be required by the
terms of this 2000-A Series Supplement (including but not limited to causing to
be provided any legal opinion that may be required by the Trustee in connection
with such transfer), or otherwise, to cause a transfer of such Series 2000-A
Notes to the Series Support Provider.
Section 3.12 Insurer Advances.
The Series Support Provider shall have the right to make
Insurer Advances with respect to any Deficiency Amount or potential Deficiency
Amount hereunder. Any payment of such Insurer Advances may be made by the Series
Support Provider in its sole discretion at any time before such Deficiency
Amount is due hereunder. Any amounts paid by the Series Support Provider as
Insurance Advances shall be deposited into the Series 2000-A Insurance Account
for distribution pursuant to Section 3.10(b) hereof.
Section 3.13 Replacement of Series Support Provider. At any
time following a reduction or withdrawal of the claims-paying or financial
strength ratings of the Series Support Provider below "AA-" by S & P (or the
equivalent financial strength rating by any nationally recognized statistical
rating agency then rating the Series Support Provider), the Obligor shall upon
the direction of the Agent terminate the Insurance Agreement and the Policy upon
ten days' prior written notice to the Trustee and the Series Support Provider;
provided, however, that on or prior to the date such termination shall take
place (i) the Obligor has entered into a new Insurance Agreement with a
replacement insurer (a "Replacement Series Support Provider") providing for the
issuance of a replacement policy (a "Replacement Policy") on substantially
similar terms as the Policy being replaced, (ii) each Rating Agency has
confirmed in writing that such termination will not result in a reduction or
withdrawal of its rating of the Series 2000-A Notes, (iii) all Accrued
Liabilities owing to the Series Support Provider have been paid in full and (iv)
such Replacement Policy is delivered to the Trustee.
45
ARTICLE IV
SERIES PRINCIPAL AMOUNT FOR SERIES 2000-A
Section 4.01 Advances.
(a) The Trustee shall deliver the Series 2000-A Note when
authenticated as directed in writing by the Obligor, and in accordance with
Section 5.01 of the Master Agreement.
(b) The Agent on behalf of the Series 2000-A Noteholders
agrees, by its acceptance of the Series 2000-A Note, that the Obligors' Agent
may, during the Revolving Period, on any Business Day, but not more frequently
than weekly (a "Pledge Date"), request upon not less than three (3) Business
Days' prior written notice (to be delivered not later than 4:00 p.m. New York
time) in the form set forth in Exhibit G hereto (a "Pledge Notice") delivered to
the Agent, the Series Support Provider, the Servicer and the Trustee, and upon
satisfaction of the conditions set forth in the Note Purchase Agreement and in
this Section 4.01, that the Agent remit to the Obligors' Agent an amount, to the
extent received by the Agent from Purchasers under the Note Purchase Agreement,
representing an increase in the Series 2000-A Noteholders' investment in the
Series 2000-A Notes (each such increase in investment, an "Advance") in an
amount equal to the related Advance Amount.
(c) The Obligor shall Pledge the Pledged Property to the
Trustee to be held in trust as part of the Series 2000-A Trust Estate in
connection with the delivery of each Pledge Notice. Each Pledge Notice shall
specify:
(i) the proposed Pledge Date,
(ii) the related List of Contracts, which shall also
include for each Series 2000-A Contract and the
related discounted Booked Residual;
(iii) the amount of the related Advance Amount, which shall
not be less than $1,000,000 except as provided in
paragraph (e) below;
(iv) the Purchase Price Percentage for such Pledge;
(v) the Hedge Rate applicable to such Series 2000-A
Contracts;
(vi) the aggregate Contract Principal Balance of all
Series 2000-A Contracts being Pledged; and
(vii) the Borrowing Base immediately prior to such Pledge
and the Pro Forma Borrowing Base.
(d) No Advance will be funded with respect to any Series
2000-A Contract unless:
(i) the Trustee has previously delivered its
Certification (as defined in the Collateral
Administration Agreement) with respect thereto, which
46
Certification shall indicate that (1) the Trustee is
holding the related Series 2000-A Contracts pursuant
to the Collateral Administration Agreement and (2)
there is no Deficiency (as defined in the Collateral
Administration Agreement) with respect to such Series
2000-A Contract;
(ii) no Series Event of Default or event which, with the
giving of notice and/or the passage of time, would
constitute a Series Event of Default, shall have
occurred and be continuing;
(iii) after giving effect to the proposed Advance, the Net
Investment shall not exceed the lesser of (x) the
Borrowing Base and (y) the Maximum Series Limit as of
such date;
(iv) the representations and warranties of the Obligor
under the Series 2000-A Related Documents are true
and correct in all material respects as of the
related Pledge Date, unless such representation and
warranty speaks only as of a particular date;
(v) the Termination Date has not occurred; and
(vi) the Agent and the Series Support Provider shall have
received all such other documents, opinions and other
information as it shall have reasonably requested not
fewer than ten Business Days in advance.
(e) In addition to the provisions of paragraph (b) above,
in which a pledge of additional Series 2000-A Contracts results in an increase
in the Series 2000-A Note Balance, during the Revolving Period, a Pledge of
additional Series 2000-A Contracts may also be funded from the monthly cash
flow, as set forth in clause fourteenth of Section 3.03(a)(i). In connection
with such a Pledge, the Obligor, upon satisfaction of the applicable conditions
set forth in paragraphs (b), (c) and (d) above, may Pledge such additional
Series 2000-A Contracts to the Trustee to hold in trust as part of the Series
2000-A Trust Estate without receiving any additional Advance Amount from the
Purchasers, but in consideration of receiving the Advance Amount paid under
clause fourteenth of Section 3.03(a)(i) hereof, by delivering a Pledge Notice to
the Trustee, the Series Support Provider and the Agent, not less than three (3)
Business Days prior to the proposed Pledge Date (which shall be a Settlement
Date).
(f) In addition to the provisions of paragraphs (b) and
(e) above, in which a Pledge of additional Series 2000-A Contracts is funded by
the Purchasers, or is made to sustain the revolving nature of the facility, the
Obligor, upon satisfaction of the applicable conditions set forth in paragraphs
(c) and (d) above, may Pledge Pledged Property to the Trustee to be held in
trust as part of the Series 2000-A Trust Estate without receiving any additional
Advance Amount, by delivering a Pledge Notice to the Trustee not less than three
(3) Business Days prior to the proposed Pledge Date (which shall be a Business
Day, but need not be a Settlement Date).
(g) If a Purchaser makes an Advance in accordance with
paragraph (b) above, the Agent shall remit the related Advance Amount to the
Series 2000-A Facility Account or to such other account as the Obligors' Agent
may specify in writing, in immediately available funds, no later than 12:00 noon
(New York City time). The Servicer shall notify the Trustee and
47
the Agent and the Series Support Provider of the amount of such Advance Amount
and shall appropriately note such Advance Amount (and the increased Series
2000-A Note Balance) on the next succeeding monthly Servicer's Certificate.
(h) The Agent shall and is hereby authorized to record on
the grid attached to the Series 2000-A Note (or at the Agent's option, in its
internal books and records) the date and amount of any Advance Amount paid by it
on behalf of a Purchaser, and each repayment thereof; provided, that failure to
make any such recordation on such grid or any error in such grid shall not
adversely affect the Agent's rights with respect to the full Series 2000-A Note
Balance and its right to receive interest payments in respect of the Series
2000-A Note Balance.
(i) The Obligor or the Obligors' Agent may, within 180
days, but no later than 45 days, prior to the then existing Termination Date, by
written notice to the Agent and the Series Support Provider, make written
request to extend the Termination Date for an additional period of 364 days. The
Agent and the Series Support Provider shall independently make a determination,
in their sole discretion and after a full credit review, not more than 30 days
after such party receives the written notice from the Obligor or the Obligors'
Agent requesting the extension of the Termination Date prior to the then
applicable Termination Date as to whether or not such party will agree to extend
the Termination Date; provided, however, that the failure to make a timely
response to the Obligor's or the Obligors' Agent's request for extension of the
Termination Date shall be deemed to constitute a refusal to extend the
Commitment Termination Date.
ARTICLE V
SERIES EVENTS OF DEFAULT
Section 5.01 Series Events of Default. If any one of the
following shall occur:
(a) the Obligor or the Servicer shall fail to make when
due and payable any payment or deposit required hereunder or under any other
Series 2000-A Related Document, in any case on or before the date occurring one
(1) Business Day after the date such payment or deposit shall become due; or
(b) the Obligor or the Transferor shall fail to perform
or observe any covenant with respect to such Person set forth in any Series
2000-A Related Document, and such failure shall remain unremedied for ten (10)
Business Days after receipt by the Obligors' Agent of written notice thereof by
the Trustee, the Series Support Provider or the Agent; or
(c) any representation or warranty made by the Obligor,
the Servicer or the Transferor in any Series 2000-A Related Document or in any
other document delivered pursuant thereto shall prove to have been incorrect
when made or deemed made and continues to be incorrect for a period of ten (10)
Business Days after the earlier to occur of (1) the discovery thereof by the
Obligor or (2) the receipt by the Obligors' Agent of written notice thereof from
the Trustee, the Series Support Provider or the Agent; or
48
(d) an Insolvency Event shall occur with respect to the
Transferor, the Obligor, the Obligors' Agent, or the Servicer; or
(e) the Net Investment exceeds the lesser of the Maximum
Series Limit and the Borrowing Base (x) for three consecutive Business Days or
(y) as of the close of business on any Settlement Date; or
(f) the Trustee on behalf of the Series 2000-A Secured
Parties shall fail to have a valid and perfected first priority security
interest in either (x) the Series 2000-A Contracts or (y) items of Equipment
having an Original Equipment cost in excess of $25,000 and, in the case of this
clause (y), relating to a material portion of the Equipment in the Series 0000-X
Xxxxx Xxxxxx;
(g) (x) the Obligor shall fail to pay any principal of or
premium or interest on any indebtedness when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) or (y) the Servicer or the Transferor shall fail to pay any principal
of or premium or interest on any indebtedness having a principal amount of
$1,000,000 or greater when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise) and,
with respect to both clauses (x) and (y), any such failure shall continue after
the applicable grace period, if any, specified in the agreement or instrument
relating to such indebtedness; or any other default under any agreement or
instrument relating to any such indebtedness of any Obligor, the Servicer or the
Transferor or any other event shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument if
the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such indebtedness; or any such indebtedness
shall be declared to be due and payable or required to be prepaid (other than by
a regularly scheduled required prepayment) prior to the stated maturity thereof;
or
(h) an Event of Servicer Termination shall have occurred
and be continuing; or
(i) a material adverse change shall occur in the
operations or financial condition of Xxxxxx, the Servicer, the Obligor or the
Obligors' Agent or any other event shall occur the effect of which is to
materially and adversely affect the collectibility of the Contracts generally or
the ability of Xxxxxx, the Servicer, the Obligor or the Obligors' Agent to
perform its respective duties under the Series 2000-A Related Documents; or
(j) Xxxxxx shall (i) default on a payment obligation (and
such default is not cured within any applicable cure period and which default is
not waived) or a termination event shall occur, in either case, with respect to
any on or off-balance sheet financing or (ii) default (in a manner other than a
payment default) on any debt obligation with an outstanding balance in excess of
$1,000,000; or
(k) Xxxxxx ceases to own (directly or indirectly) one
hundred percent of the capital stock or membership interests of the Obligor; or
49
(l) the financial strength rating of the Series Support
Provider is withdrawn, suspended or reduced below BBB- by S&P (or the equivalent
financial strength rating by any nationally recognized statistical rating agency
then rating the Series Support Provider);
(m) a Series Support Provider Default shall have occurred
and the Series Support Provider is not replaced within forty-five (45) calendar
days with a surety provider, the financial strength of which is rated "AAA" by
S&P (or the equivalent financial strength rating by any nationally recognized
statistical rating agency then rating the Series Support Provider), and provides
surety bond substantially identical in all respects (including the level of
premiums with respect thereto);
(n) Xxxxxx, the Transferor, the Obligors' Agent, the
Servicer or the Obligor shall enter into any transaction or merger in which it
is not the surviving entity without the consent of the Series Support Provider
(which consent shall not be unreasonably withheld);
(o) at any time, the Three-Month Rolling Average 31 to 60
Day Portfolio Delinquency Ratio exceeds 8.0%, or the Three-Month Rolling Average
61 to 90 Day Portfolio Delinquency Ratio exceeds 2.0%, or the Three-Month
Rolling Average 91 Plus Day Portfolio Delinquency Ratio exceeds 1.0% or the
Three-Month Rolling Average Portfolio Charged-Off Ratio is in excess of 2.50%;
(p) The Three-Month Rolling Average 31 to 60 Day
Delinquency Ratio exceeds 8.0%, or the Three-Month Rolling Average 61 to 90 Day
Delinquency Ratio exceeds 2.0%, or the Three-Month Rolling Average 91 Plus Day
Delinquency Ratio exceeds 1.0%, in each case which is calculated for the first
time in the fourth month after the Series Closing Date or after a Take-Out, as
applicable;
(q) at any time, the Three-Month Rolling Average
Charged-Off Ratio exceeds the Applicable Trigger Charged-Off Ratio;
(r) Marlin's Tangible Net Worth as of the end of any
calendar quarter is less than the sum of (x) $19,900,000 plus (y) 75% of all of
Marlin's positive net income (less dividends accrued on preferred stock) earned
since September 30, 2000;
(s) Marlin's Debt-to-Equity Ratio as of the end of any
calendar quarter exceeds 12.0;
(t) Xxxxxx records a financial loss on any quarterly or
annual financial statements in excess of $100,000;
(u) Marlin's annual audited financial statements are
qualified in any manner;
(v) a Hedge Counterparty fails to satisfy the definition
thereof and is not replaced within fifteen (15) Business Days with a Person
satisfying the definition thereof;
(w) two out of three of Xxxxxx X. Xxxx, Xxxx Xxxxxxx or
Xxxx Xxxxxx are no longer officers of Xxxxxx, are no longer involved in the day
to day operations of Xxxxxx, or are
50
unable to work for six consecutive months and are not replaced by new personnel
reasonably acceptable to the Series Support Provider within 90 days of the
occurrence of such event;
(x) as of any Settlement Date, the aggregate notional
balances applicable to all Hedging Agreements:
(i) if all such Hedging Agreements are Cap Agreements,
are less than the Net Investment as of such
Settlement Date; and
(ii) if not all such Hedging Agreements are Cap
Agreements:
(a) during the Revolving Period, are
less than or greater than the Net
Investment as of such Settlement
Date by an amount (y) in excess of
five percent of the Net Investment
as of such Settlement Date or (z) in
excess of one percent of the Net
Investment as of the end of any
calendar quarter;
(b) during the Amortization Period, are
less than or greater than the Net
Investment as of such Settlement
Date by an amount in excess of five
percent of the Net Investment as of
such Settlement Date;
(y) any Series 2000-A Note or any other Note shall cease
to constitute debt of the Obligor for federal income tax purposes;
(z) the Termination Date shall have occurred;
(aa) At any time, Xxxxxx fails to maintain unused
commitment availability under credit facilities for the warehousing or financing
of collateral or for general corporate purposes at a minimum level of thirty
(30%) percent of Marlin's cumulative originations for the immediately preceding
three month period; provided, however, that such minimum level shall be
exclusive of the credit facility contemplated herein;
(bb) the Interest Coverage Ratio is no less than 3:1,
measured quarterly on a rolling four quarter basis;
(cc) an "Event of Default" (as defined in the Insurance
and Indemnity Agreement) shall have occurred; or
(dd) a draw under the Policy is made pursuant to the terms
thereof and pursuant to Section 3.10 hereunder;
then, and in any such event, a "Series Event of Default" shall be deemed to have
occurred.
At any time following the occurrence and during the
continuance of any Series Event of Default, the Series Controlling Party (or, in
the case of subparagraph (l) above, the Agent) may, by notice to the Obligors'
Agent, declare the occurrence of the Termination Date,
51
except that, in the case of any event described in subparagraph (d) above, the
Termination Date shall be deemed to have occurred automatically upon the
occurrence of such event.
Upon the declaration or automatic occurrence of the
Termination Date, the Series 2000-A Note and all other indebtedness and
liabilities of the Obligor and the Transferor to the Series 2000-A Secured
Parties shall become immediately due and payable, without any further act or
notice by any Person. Upon any occurrence of a Series Event of Default, the
Trustee and the Series 2000-A Secured Parties shall have, in addition to all
other rights and remedies under this Agreement or otherwise, all other rights
and remedies provided under the UCC of the applicable jurisdiction and other
applicable laws, which rights shall be cumulative; provided, however, that in
the absence of material fraud on the part of the Transferor, the Obligor or the
Servicer, and so long as no Series Event of Default shall have occurred under
clause (d) above, the Series Controlling Party shall not direct the Trustee to
liquidate the Series 2000-A Trust Estate during the ninety (90) day period
immediately following the occurrence of such Series Event of Default.
Any Series Event of Default, once declared, or any declaration
of the Termination Date, may be rescinded by the Series Controlling Party, on
such terms and conditions as may be stipulated by the Series Controlling Party
at such time.
The Trustee shall promptly send a written notice to Moody's
and to Standard & Poor's of the occurrence of, and the waiver of, any Series
Event of Default, to the extent that the Trustee has actual knowledge of, or has
received notice of, any such occurrence or waiver.
Section 5.02 Direction by the Series Support Provider.
Notwithstanding anything contained herein to the contrary, if
a Series Event of Default has occurred and is continuing, so long as there has
been no Series Support Provider Default, the Series Support Provider shall have
the sole right (to the exclusion of the Owners) to direct the Trustee as to any
and all remedies to be sought or taken under this Series 2000-A Supplement and
the Trustee shall not exercise any such remedies unless directed by the Series
Support Provider; provided, however, that, upon the occurrence of the event set
forth in Section 5.01(l), the Agent shall have the right to so direct the
Trustee. Each Owner, by its purchase of a Series 2000-A Note, shall be deemed to
have consented to the Series Support Provider rights hereunder with respect to a
Series Event of Default. At such time as there exists and is continuing a Series
Support Provider Default the Trustee shall not be bound to continue to comply
with any term or condition of this Series 2000-A Supplement that requires the
consent of or approval or direction from the Series Support Provider.
ARTICLE VI
PREPAYMENT AND REDEMPTION
Section 6.01 Mandatory Prepayment. Notwithstanding any
limitation on recourse contained in this Series 2000-A Supplement or the Master
Agreement, if on any day, any Series 2000-A Contract is discovered not to have
been an Eligible Contract on its applicable Pledge Date, then the Obligor shall,
on or prior to the Business Day preceding the next following
52
Settlement Date, deliver to the Servicer for deposit in the Series 2000-A
Facility Account, the related Prepayment Amount. Upon payment in full by the
Obligors' Agent to the Servicer of the Prepayment Amount, the security interest
of the Trustee in the related Series 2000-A Contract and the Related Security
shall be deemed released, and the Trustee shall, upon written request, promptly
deliver to the Obligor any documents in the Trustee's possession evidencing the
Series 2000-A Contract and its interest in such Equipment related thereto and
such Related Security. The Trustee shall take all actions at the expense of and
at the request of the Servicer to ensure that such security interest is
released, including, at the Obligor's expense, execute such UCC-3 assignments,
termination statements and other documents as may reasonably be requested and
prepared by the Obligors' Agent.
Section 6.02 Optional Redemption.
(a) "Clean-Up Call" Redemption. On any Settlement Date
occurring on or after the date upon which the Series 2000-A Note Balance shall
have been reduced to an amount which is less than or equal to 15% of the Maximum
Series Limit, the Obligor shall have the option to redeem the outstanding Series
2000-A Note at a redemption price (the "Redemption Price") equal to the
outstanding Series 2000-A Note Balance of the Series 2000-A Notes, plus all
accrued and unpaid interest thereon and all fees and other amounts owing to the
Agent on behalf of the Purchasers in connection therewith, together with any
amounts then due the Series Support Provider with respect to unreimbursed
drawings under the Policy, together with interest thereon, calculated at the
rate set forth in the Insurance and Indemnity Agreement, plus any amounts owing
to the Series Support Provider under this Series 2000-A Supplement, the
Insurance and Indemnity Agreement and the Premium Letter, all as certified by
the Series Support Provider to the Trustee, the Agent and the Obligor's Agent.
The Obligors' Agent shall give the Servicer, the Trustee, the Series Support
Provider and the Agent at least 30 days' irrevocable prior written notice of the
date on which the Obligor intends to exercise such option to purchase. Not later
than 12:00 P.M., New York City time, on such Settlement Date the Obligor shall
remit such amount to the Agent and the Series Support Provider (by wire transfer
to an account to be designated by the Agent and the Series Support Provider, as
applicable, which designation may be a standing wire direction) in immediately
available funds. Such purchase option is subject to payment in full of the
Redemption Price. The Agent shall promptly thereafter distribute the applicable
amounts to each of the applicable Purchasers in accordance with their respective
interests therein.
Section 6.03 Tender of Series 2000-A Note. The Obligors' Agent
may request the Agent to tender to the Trustee all or a portion of the Series
2000-A Note that it then holds, provided that such tender shall only take place
if:
(a) (i) the Agent, the Series Support Provider and the
Trustee have received written and irrevocable notice on or before the last day
of the Collection Period most recently ended prior to, and in any event at least
10 days prior to any date set for such tender and the Agent has consented to
such tender (which consent shall not be unreasonably withheld) and (ii) the
Trustee shall have received written and irrevocable notice of the election
described in subsection (b)(i) and (b)(ii) below, and in the event such election
is that described in (b)(ii) such payment will be deposited with the Trustee
with instructions to pay the Agent;
53
(b) upon the date set for tender, the Agent shall receive
either (i) if it so elects, in lieu of payment, a new Series of Notes or (ii)
payment in an amount equal to the then Series 2000-A Note Balance being
tendered, plus interest accrued but unpaid on such Series 2000-A Note to, but
not including, the date of tender, together with all other fees and amounts then
due and payable or relating to the Series 2000-A Note Balance being tendered, or
to the related Series 2000-A Noteholders pursuant to the terms hereof, or of the
Note Purchase Agreement;
(c) the purchaser of any Series 2000-A Notes so tendered
shall not be the Obligor or any Affiliate of the Obligor;
(d) in the event that the Series 2000-A Note is being
tendered in full on the Termination Date, all Accrued Liabilities and Insurer
Fees, Unused Fees and any Default Fees owed to the Insurer pursuant to the terms
of this Agreement, the Policy, the Premium Letter and the Insurance and
Indemnity Agreement have to be paid in full; and
The provisions of this Section 6.03 shall apply whether or not
a Series Event of Default shall have occurred and then be in effect.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Agent Authorized to Act for the Purchasers;
Notices. The parties hereto acknowledge that the Agent is authorized, pursuant
to the terms of the Note Purchase Agreement, to act for the Purchasers,
including, without limitation, for purposes of receiving distributions as
described in this Series 2000-A Supplement on behalf of such Purchasers.
Notwithstanding anything to the contrary in the Master Agreement or this Series
2000-A Supplement, the Trustee and the Servicer shall deliver all notices and
distributions to be made to the Agent as the registered owner of a Series 2000-A
Note and such delivery shall be deemed to comply with all requirements of the
Master Agreement. All notices, demands and requests to the Agent pursuant to the
Master Agreement or this Series 2000-A Supplement, in each case, be in writing
and shall be deemed duly given if personally delivered at, mailed by overnight
courier to, or sent by facsimile transmission to Deutsche Bank AG, New York
Branch, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. 00000, Fax (000) 000-0000,
Attention: Asset Finance Department or at such other address or facsimile number
as shall be designated by the Agent in a written notice to each party hereto.
Section 7.02 Ratification of Master Agreement. As supplemented
by this Series 2000-A Supplement, the Master Agreement is in all respects
ratified and confirmed and the Master Agreement, as so supplemented by this
Series 2000-A Supplement shall be read, taken and construed as one and the same
instrument.
Section 7.03 Counterparts. This Series 2000-A Supplement may
be executed in one or more counterparts, each of which so executed shall be
deemed to be an original, but all of which shall together constitute but one and
the same instrument.
54
Section 7.04 GOVERNING LAW. THIS SERIES 2000-A SUPPLEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT TAKING INTO ACCOUNT THE
CONFLICT OF LAWS PRINCIPLES OF ANY JURISDICTION.
Section 7.05 Amendments and Waivers.
(a) Notwithstanding anything contained in the Master
Agreement to the contrary, no term or condition of this Series 2000-A Supplement
shall be amended, modified, waived or terminated without the prior written
consent of the Obligors' Agent, the Servicer, the Trustee, the Series Support
Provider and the Agent.
(b) No waiver with respect to any term or condition of
the Master Agreement or this Series 2000-A Supplement shall extend to any
subsequent or other event, circumstance or default or impair any right
consequent thereon except to the extent expressly so waived.
(c) Notice of any amendment of this Series 2000-A
Supplement or of the Master Agreement shall be forwarded to Standard & Poor's by
the Servicer.
Section 7.06 Non-petition Clause. By its acceptance of the
Series 2000-A Note on behalf of the Purchasers, the Agent on behalf of itself
and the Purchasers shall be deemed to have agreed that prior to the date which
is one year and one day after the termination of the Master Agreement, such
Person shall not acquiesce, petition or otherwise invoke or cause the Obligor or
the Obligors' Agent to invoke the process of any Governmental Authority for the
purpose of commencing or sustaining a case against the Obligor under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of or for the Obligor or the Obligors' Agent or any substantial part of its
property or ordering the winding-up or liquidation of the affairs of the Obligor
or the Obligors' Agent.
Section 7.07 Certain Information. Certain information
concerning the Obligor or the Obligors' Agent and the Servicer is set forth in
Exhibit F hereto, which the Obligor or the Obligors' Agent and the Servicer
hereby represent and warrant to the Trustee, the Series Support Provider and the
Agent as being accurate.
Section 7.08 Reserved.
Section 7.09 Termination. The obligations of the parties
hereto shall continue until all obligations owing to the Series 2000-A
Noteholders, the Series Support Provider and the Series 2000-A Secured Parties
herein and under the other Series 2000-A Related Documents have been
indefeasibly paid in full.
Section 7.10 Series Support Provider.
(a) The Series Support Provider is an express third-party
beneficiary of all Series 2000-A Related Documents.
55
(b) Upon the specific request of the Series Support
Provider, the Trustee shall, in each instance, provide to the Series Support
Provider copies of any report, notice, Opinion of Counsel, Officer's
Certificate, request for consent or request for amendment to any document
related hereto promptly upon the Trustee's production or receipt thereof.
(c) So long as there does not exist a failure by the
Series Support Provider to make a required payment under the Policy or other
Series Support Provider Default, except as specifically set forth herein, the
Series Support Provider shall have the right to exercise all rights of the
Owners under this Series 2000-A Supplement without any consent of such Owners.
Section 7.11 Issuance of Additional Series of Notes.
(a) So long as the Series 2000-A Notes are outstanding no
additional Series of Notes may be issued pursuant to the Master Agreement and no
debt may be issued by the Obligor and/or the Obligors' Agent without the prior
written consent of the Series Support Provider.
56
IN WITNESS WHEREOF, the Obligor, the Obligors' Agent, and
Xxxxxx, in its individual capacity and as the Servicer, the Agent and the
Trustee have caused this Series 2000-A Supplement to be fully executed by their
respective officers as of the day and year first above written.
XXXXXX LEASING CORP.,
in its individual capacity and as Servicer
By:______________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXX LEASING RECEIVABLES CORP. IV,
as the Obligors' Agent
By:______________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXX LEASING RECEIVABLES IV LLC,
as the Obligor
By: XXXXXX LEASING RECEIVABLES
CORP. IV,
as Managing Member
By:______________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
By:______________________________________________
Name:_________________________________________
Title:________________________________________
By:______________________________________________
Name:_________________________________________
Title:________________________________________
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:______________________________________________
Name:_________________________________________
Title:________________________________________
XL CAPITAL ASSURANCE, INC.
By:______________________________________________
Name:_________________________________________
Title:________________________________________
Schedule 1
"Interest Coverage Ratio" means, as of the date of
determination, the ratio of (a)(i) EBITDA for the period of four consecutive
fiscal quarters ending on, or most recently ended prior to, such date less (ii)
Charge Offs for such period to (b) Interest Expense for such period.
For the purposes of this Schedule 1 only, the following terms
shall have the following meanings:
"EBITDA" means, for any period, the sum, for Xxxxxx and its
Affiliates (determined on a consolidated basis without duplication in accordance
with GAAP), of the following: (a) net operating income (calculated before taxes,
Interest Expense, securitization income, extraordinary and unusual items and
income or loss attributable to equity in Affiliates) for such period plus (b)
(i) Net Margin on Managed Assets, (ii) depreciation and amortization (to the
extent deducted in determining net operating income) and (iii) provision for
loan losses (to the extent deducted in determining net operating income) for
such period.
"Charge Offs" means, for any period, the sum of any payments
due and payable to Xxxxxx or its Affiliates (determined on a consolidated basis
without duplication in accordance with GAAP) under any contract, lease or other
agreement all or a portion of which (i) has been, or should have been, in
accordance with the Credit and Collection Policy, written off the books of
Xxxxxx or any Affiliate, as applicable, as uncollectible or (ii) has remained
unpaid for a period of 121 days or more from the original due date for such
payment.
"Interest Expense" shall mean, for any period, the sum, for
Xxxxxx and its Affiliates (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of capital lease liabilities) accrued or capitalized
during such period (whether or not actually paid during such period); excluding,
however, all such interest in respect of Indebtedness incurred for the sole
purpose of, or in connection with, the financing of lease receivables, plus (b)
the net amount payable (or minus the net amount receivable) under Hedging
Liabilities during such period (whether or not actually paid or received during
such period).
"Hedging Liability" means, relative to any Person, all
liabilities of such Person under interest rate and currency swap, cap and collar
agreements and all other writings designed to protect such Person against
fluctuations in interest or currency exchange rates.
"Indebtedness" means, relative to any Person, without
duplication:
(a) all obligations of such Person for borrowed money
(including all notes payable and drafts accepted representing
extensions of credit) and all obligations evidenced by bonds,
debentures, notes or other similar instruments on which interest
charges are customarily paid;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn, and
bankers' acceptances issued for the account of such Person;
(c) all capitalized leases of such Person;
(d) net monetary liabilities of such Person under all
Hedging Liabilities (calculated, at any time, as the aggregate amount
(giving effect to any netting agreement) that such Person would be
required to pay if the agreements giving rise to such Hedging
Liabilities were terminated at such time);
(e) all obligations of such Person to pay the deferred
purchase price of property services that, in accordance with GAAP,
would be included on the liability side of the balance sheet of such
Person as of the date at which Indebtedness is to be determined;
(f) all indebtedness referred to in clause (a), (b), (c),
(d) or (e) secured by a Lien on property owned or being purchased by
such Person (including indebtedness arising under conditional sales or
other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
provided, however, that in the case of any such Indebtedness which is
by its terms non-recourse to such Person, the amount of such
Indebtedness shall, for the purpose of this clause, be deemed to be the
lesser of (x) the aggregate unpaid principal amount of such
Indebtedness and (y) the fair market value of the property subject to
such Lien, as determined by such Person in good faith; and
(g) all contingent liabilities of such Person in respect
of any Indebtedness of any other Person.
"Net Margin on Managed Assets" means accrued interest income
for any period on lease receivables serviced by Xxxxxx less accrued interest
expense in respect of Indebtedness incurred for the sole purpose of, or in
connection with, the financing of lease receivables serviced by Xxxxxx.
Schedule 2
HEDGE COUNTERPARTIES
Barclays Bank PLC.
Deutsche Bank AG New York Branch
ABN AMRO Bank N.V.
EXHIBIT A
FORM OF SERIES 2000-A NOTE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR REGULATORY
AUTHORITY OF ANY STATE. THIS NOTE HAS BEEN OFFERED AND SOLD PRIVATELY. THE
HOLDER HEREOF ACKNOWLEDGES THAT THESE SECURITIES ARE "RESTRICTED SECURITIES"
THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND AGREES FOR THE
BENEFIT OF THE OBLIGORS AND THEIR AFFILIATES THAT THESE SECURITIES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER JURISDICTION AND (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED PURCHASER WITHIN THE MEANING OF THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE MASTER FACILITY AGREEMENT AND THE SERIES SUPPLEMENT
REFERRED TO HEREIN.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED TO AN EMPLOYEE
BENEFIT PLAN, TRUST OR ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYMENT RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR DESCRIBED IN SECTION 4975(e)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED, EXCEPT IN ACCORDANCE WITH THE MASTER
FACILITY AGREEMENT AND SERIES SUPPLEMENT REFERRED TO HEREIN.
No. 1 $125,000,000
XXXXXX LEASING RECEIVABLES MASTER ASSET-BACKED FINANCING FACILITY,
SERIES 2000-A NOTE
A-1
XXXXXX LEASING CORP.,
as the Servicer, and
XXXXXX LEASING RECEIVABLES IV LLC,
as the Obligor
(Not an interest in or obligation of Xxxxxx Leasing Corp., or its affiliates,
other than Xxxxxx Leasing Receivables IV LLC)
This certifies that DEUTSCHE BANK AG, NEW YORK BRANCH (the
"Series 2000-A Noteholder") is the registered owner of this Series 2000-A Note
(the "Series Note") issued by Xxxxxx Leasing Receivables IV LLC ("MLR IV LLC"),
(the "Obligor"), created pursuant to that certain Master Lease Receivables
Asset-Backed Financing Facility Agreement, dated as of December 1, 2000 (as the
same may be further amended, restated, supplemented or otherwise modified from
time to time, the "Master Facility Agreement"), by and among Xxxxxx Leasing
Corp. (the "Servicer"), Xxxxxx Leasing Receivables Corp. IV ("MLR IV"), as
Obligors' Agent (in such capacity, the "Obligors' Agent"), and Xxxxx Fargo Bank
Minnesota, National Association, as trustee and back-up servicer (the "Trustee")
To the extent not otherwise defined herein, capitalized terms
used herein have the meanings assigned in the Master Facility Agreement or the
Series Supplement (as hereinafter defined), as applicable. This Series Note is
issued under and is subject to the terms, provisions and conditions of the
Series 2000-A Supplement to the Master Facility Agreement, dated as of December
1, 2000 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Series Supplement") among the Servicer, the
Series Obligor, the Obligors' Agent, the Trustee and Deutsche Bank AG, New York
Branch, as Agent (the "Agent"), to which the Series 2000-A Noteholder, by virtue
of its acceptance hereof, assents and by which the Series 2000-A Noteholder is
bound.
The Series Obligor has pledged to the Trustee for the benefit
of the Series 2000-A Secured Parties, and the Trustee has accepted the pledge
of, all of the Series Obligor's now owned and existing and hereafter acquired or
arising right, title and interest in and to the Series 2000-A Trust Estate
described in the Series 2000-A Supplement.
It is the intent of the Obligor and the Series 2000-A
Noteholder that, for federal, state and local income and franchise tax purposes,
the Series Note will be evidence of indebtedness of the Series Obligor. The
Series Obligor and the Series 2000-A Noteholder, by the acceptance of this
Series Note, agree to treat this Series Note for federal, state and local income
and franchise tax purposes as indebtedness of the Series Obligor secured by the
Series 2000-A Trust Estate.
Subject to, and in accordance with, the terms and conditions
of the Series Note and the Series Supplement, the Series 2000-A Note Balance
(the "Series Note Balance") may from time to time be increased; provided that
the outstanding principal balance of this Series Note shall not exceed the
dollar amount first above written.
The Agent, on behalf of the Purchasers, is authorized to
record, on the schedule annexed thereto and made a part hereof or on other
appropriate records of the Agent, the date and
A-2
amount of each Advance made by the Purchasers, each continuation thereof, the
interest rate from time to time on each Advance and the date and amount of each
payment or repayment of principal thereof. Any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded, provided
that the failure of the Agent to make any such recordation (or any error in such
recordation) shall not affect the obligations of the Series Obligor hereunder or
under the Series Supplement and Master Facility Agreement in respect of this
Series Note.
The Master Facility Agreement and the Series Supplement
permit, with certain exceptions, the amendment thereof and the modification of
the rights and obligations of the Series Obligor, the Servicer and the Trustee
and the rights of the Series 2000-A Noteholder under the Master Facility
Agreement or the Series Supplement at any time by the Servicer, the Series
Obligor and the Trustee without, in certain cases, the consent of the Series
2000-A Noteholder, as more particularly described in the Master Facility
Agreement and the Series Supplement.
The transfer of this Series Note is subject to certain
restrictions set forth in the Master Facility Agreement, the Series Supplement
and the Note Purchase Agreement.
The Servicer, the Trustee and any agent of the foregoing may
treat the person in whose name this Series Note is registered as the owner for
all purposes, and none of the foregoing shall be affected by any notice to the
contrary.
Unless the certificate of authentication attached hereto has
been executed by or on behalf of the Trustee, by manual or facsimile signature,
this Series Note shall not be entitled to any benefit under the Master Facility
Agreement or the Series Supplement or be valid for any purpose.
A-3
IN WITNESS WHEREOF, the Series Obligor has caused this Series
Note to be duly executed and authenticated.
Dated as of [_________]
XXXXXX LEASING RECEIVABLES IV LLC
By: XXXXXX LEASING RECEIVABLES
CORP. IV, as Managing Member
By:______________________________________________
Title:
Attested:
By:____________________________
Title:_________________________
A-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series Notes designated herein referred to
in the within-mentioned Master Facility Agreement and the within-mentioned
Series Supplement thereto.
[______________________________]
as Trustee
By:_______________________________
Authorized Signatory
A-5
SCHEDULE TO SERIES 2000-A NOTE
Amount Amount of Principal
Date of Advance Repaid Total Principal Outstanding
------------------ -------------------- ------------------- ---------------------------
------------------ $------------------- ------------------- ------------------
------------------ $------------------- ------------------- ------------------
------------------ $------------------- ------------------- ------------------
------------------ $------------------- ------------------- ------------------
------------------ $------------------- ------------------- ------------------
------------------ $------------------- ------------------- ------------------
------------------ $------------------- ------------------- ------------------
------------------ $------------------- ------------------- ------------------
------------------ $------------------- ------------------- ------------------
------------------ $------------------- ------------------- ------------------
A-6
EXHIBIT B
[RESERVED]
B-1
EXHIBIT C
Instructions for sending wires to the Agent on behalf of the Noteholders and the
Series Support Provider pursuant to Section 3.03(b):
In the case of the Agent:
Deutsche Bank
ABA # 000-000-000
A/C 104363460008
A/C Name: TTI
Ref: Xxxxxx
In the case of the Series Support Provider:
Receiving Bank: Fleet Bank NA
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
ABA - 000000000
Beneficiary: XL Capital Assurance Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Account Number 94278-35841
Reference: Policy number: CA00046A
Xxxxxx Leasing Receivables IV LLC, Series 2000-A
Notes
C-1
EXHIBIT D
FORM OF SERVICER'S CERTIFICATE
D-1
EXHIBIT E
FORM OF CONTRACTS
E-1
EXHIBIT F
PLACES OF BUSINESS OF THE OBLIGOR AND THE SERVICER; LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBERS
A. Obligor
1. Xxxxxx Leasing Receivables IV LLC
a. Chief Executive Office and Principal Place of Business
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
b. Other Locations of Records
000 Xxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxx, Xxx Xxxxxx 00000
x. XXXX: 00-0000000
d. State of Organization: Nevada
B. Servicer
1. Xxxxxx Leasing Corporation
Chief Executive Office and Principal Place of Business
000 Xxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxx, Xxx Xxxxxx 00000
2. Other Locations of Records
None
3. Servicer's FEIN:
00-0000000
4. State of Incorporation:
Delaware
F-1
EXHIBIT G
FORM OF PLEDGE NOTICE
[DATE]
TO: Deutsche Bank AG, New York Branch XL Capital Assurance, Inc.
00 Xxxx 00xx Xxxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Finance Department
Xxxxx Fargo Bank Minnesota, N.A.
Marlin Leasing Corp. MAC N9311-161
000 Xxxxxxx Xxxxx, Xxxxx 000 Xxxxx Xxxxxx and Marquette Avenue
Mt. Laurel, New Jersey 08054 Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxx Attention: Corporate Trust Services -
Asset Backed
Administration
Re: Xxxxxx Lease Receivables Master Facility, Series
2000-A Note
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Series
2000-A Supplement, dated as of August 7, 2001 (the "Series Supplement"), among
Xxxxxx Leasing Corp. (the "Servicer"), Xxxxxx Leasing Receivables IV LLC ("MLR
IV LLC" or the "Series Obligor"), Deutsche Bank AG, New York Branch, as agent,
XL Capital Assurance, Inc., as the Series Support Provider and Xxxxx Fargo Bank
Minnesota, National Association ("Xxxxx Fargo"), as trustee, and to that certain
Master Lease Receivables Asset-Backed Financing Facility Agreement, dated as of
December 1, 2000 (the "Master Facility Agreement"), among the Servicer, MLR IV
and Norwest, as trustee and back-up servicer. Capitalized terms used herein
shall have the meanings assigned to such terms in the Series Supplement and
Master Facility Agreement.
Pursuant to Section 4.01(b) of the Series Supplement, the
undersigned, a duly authorized representative of the Series Obligors, hereby
provide notice of an increase in the Series 2000-A Note Balance (each amount, an
"Advance Amount"), and in that connection sets forth below the information
relating to such proposed increase, as required by Section 4.01(c) of the Series
Supplement:
(i) The aggregate amount of the related Advance Amount is
$____________.
(ii) The date on which such Advance Amount shall occur is
_______________.
G-1
(iii) Attached hereto as Exhibit A is the related List of Contracts.
(iv) The Purchase Price Percentage applicable to the Pledge is
___%.
(v) The Hedge Rate applicable to such Series 2000-A Contracts
being Pledged is ____%.
(vi) The aggregate Contract Principal Balance of all Series 2000-A
Contracts being Pledged is $_______________.
(vii) The Borrowing Base immediately prior to such pledge is
$__________, and the Pro Forma Borrowing Base is $__________.
The undersigned certifies that as of the date hereof and on
the date of the proposed Advance Amount, all of the conditions precedent to the
proposed Advance Amount set forth in Section 4.01 of the Series Supplement have
been satisfied.
Very truly yours,
XXXXXX LEASING RECEIVABLES
CORP. IV, as the Obligors' Agent
By:___________________________________
Name:
Title:
XXXXXX LEASING RECEIVABLES IV LLC
By: XXXXXX LEASING RECEIVABLES
CORP. IV, as Managing Member
By:_______________________________
Name:
Title:
G-2
EXHIBIT H
FORM OF NON-APPROPRIATION RIDER
H-1
EXHIBIT I
FORM OF CAP AGREEMENT
