FIRST AMENDMENT TO THE AMENDED AND RESTATED SERIES 2002-A SUPPLEMENT TO THE MASTER LEASE RECEIVABLES ASSET-BACKED FINANCING FACILITY AGREEMENT
Exhibit
10.1
Execution
Copy
FIRST
AMENDMENT TO THE AMENDED AND RESTATED SERIES 2002-A
SUPPLEMENT
TO THE MASTER LEASE RECEIVABLES
ASSET-BACKED
FINANCING FACILITY AGREEMENT
FIRST
AMENDMENT TO THE AMENDED AND RESTATED SERIES 2002-A SUPPLEMENT TO THE MASTER
LEASE RECEIVABLES ASSET-BACKED FINANCING FACILITY AGREEMENT (this “First
Amendment”), made as of August 30, 2007, is entered into by and among
XXXXXX LEASING CORPORATION (“MLC”), individually, and as the Servicer,
XXXXXX LEASING RECEIVABLES CORP. II (“MLRC”), as the Obligors’ Agent,
XXXXXX LEASING RECEIVABLES II LLC, as the Obligor, JPMORGAN CHASE BANK, N.A.
("JPMorgan"), as the Agent, and XXXXX FARGO BANK, N.A. (“Xxxxx
Fargo”), as the Trustee. Capitalized terms used and not otherwise
defined herein shall have the meanings given to such terms in the Amended and
Restated Series 2002-A Supplement (as defined below).
R
E C I T A L S
WHEREAS,
MLC, in its capacity as the Servicer, MLRC, in its capacity as the Obligors’
Agent, and Xxxxx Fargo, in its capacity as Trustee, entered into that certain
Master Lease Receivables Asset-Backed Facility Agreement, dated as of April
1,
2002 (such agreement as amended, modified, restated, replaced, waived,
substituted, supplemented or extended, the “Master Agreement”), which
Master Agreement was amended and supplemented by the Series 2002-A Supplement
to
the Master Agreement, dated as of April 1, 2002, among the parties hereto (the
“Original Series 2002-A Supplement”), which Original Series 2002-A
Supplement was amended and restated by that certain Amended and Restated Series
2002-A Supplement dated as of March 15, 2006 among the parties hereto (the
“Amended and Restated Series 2002-A Supplement” and, together with the
Note Purchase Agreement, the “Agreements”); and
WHEREAS,
the parties here to desire to amend the Agreements in certain respects as
provided herein;
NOW,
THEREFORE, based upon the above Recitals, the mutual premises and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION
1. Amendment
to Amended and Restated Series 2002-A
Supplement.
(a) The
following defined terms are hereby added to Section 2.01 to read as
follows:
"61
to 90
Day Delinquency Ratio for BCAP Loans" 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 Contracts
which are BCAP Loans 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 (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 Contracts which
are BCAP Loans included in the Servicer's servicing portfolio 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 Contracts which are BCAP Loans included in the Servicer's
servicing portfolio as of (i) during the Revolving Period, the end of the second
preceding Collection Period and (ii) during the Amortization Period, the
beginning of such Collection Period.
“BCAP
Amortization Event” means
the occurrence of either of the following: (a) at any time, the Three-Month
Rolling Average 61 to 90 Day Delinquency Ratio for BCAP Loans exceeds 1.25%,
or
(b) at any time, the Three-Month Rolling Average BCAP Charged-Off Ratio exceeds
2.5%.
"BCAP
Charged-Off Ratio" means,
as of the end of any Collection Period, twelve (12) times the percentage
equivalent of a fraction (i) the numerator of which is equal to the excess
of
(a) the sum of the aggregate of Marlin's net investment (calculated in
accordance with GAAP) in all BCAP Loans included in the Servicer's servicing
portfolio which would have first satisfied the definition of Charged-Off
Contracts (assuming that such definition applied to such BCAP Loans) during
such
Collection Period, over (b) the sum of all recoveries during such Collection
Period for BCAP Loans included in the Servicer's servicing portfolio and (ii)
the denominator of which is equal to the aggregate undiscounted scheduled
periodic payments on all BCAP Loans included in the Servicer's servicing
portfolio as of (x) during the Revolving Period, the end of the third preceding
Collection Period and (y) during the Amortization Period, the beginning of
such
Collection Period.
“BCAP
Loan” means any “business
capital” or other term loan (as distinct from a loan originated specifically to
acquire or finance a particular item or items of equipment). For the
avoidance of doubt, the defined term “Contract” shall include BCAP
Loans.
“Collateral”
means,
with respect
to any BCAP Loan, all property securing such BCAP Loan or otherwise supporting
payment thereof, including without limitation all property pledged by the
related User or guarantor to secure the payment of such BCAP Loan, all
guaranties, security agreements, UCC financing statements and other documents
or
agreements executed in connection with such BCAP Loan.
“Maximum
BCAP Loan Amount”
means, as of any date of determination, 10% percent of the Contract Principal
Balance of all Eligible Contracts in the Series 2002-A Trust Estate; provided
however that the Maximum BCAP Loan Amount shall be $25 million until the earlier
of (a) February 15, 2008 or (b) the inclusion of a BCAP Loan in a term
securitization.
(b) The
following definitions in Section 2.01 of the Amended and Restated Series 2002-A
Supplement are hereby amended and restated in their entirety as
follows:
"Charged-Off
Ratio" means, as of
the last day 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 2002-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 2002-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 2002-A Contracts,
and
the denominator of which is equal to the aggregate Contract Principal Balance
of
all Series 2002-A Contracts 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. For the avoidance of doubt,
the Contract Principal Balance of BCAP Loans which are Delinquent Contracts
which are repurchased or substituted pursuant to Section 5.10 hereof shall
not
be included in the calculation of Charged-Off Ratio.
"Eligible
Contract" means a Series 2002-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 or Collateral, if any, 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) in
the case
of any Series 2002-A Contract other than a BCAP Loan, constitutes "chattel
paper" within the meaning of §§ 9-102(11) and 9-102(78) of the UCC of all
applicable jurisdictions and there is only one original of such Contract
(bearing 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) that constitutes "chattel paper" for purposes of the Delaware, New York,
New Jersey and Nevada UCC and in the case of a BCAP Loan, constitutes a "general
intangible" within the meaning of the UCC of all applicable
jurisdictions;
(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 in compliance with, and satisfies
in
all material respects all applicable requirements of, the Credit and Collection
Policy;
(f) is
not a
Government 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) either
(x)
in the case of a Series 2002-A Contract other than a BCAP Loan
(i) (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 or (y) in the case of a BCAP Loan, 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 requires a security
interest in all Collateral purchased with the proceeds of the BCAP
Loan;
(j) is
payable
in substantially level monthly or quarterly rental payments calculated at a
fixed yield;
(k) 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
or
Collateral, and such Equipment or Collateral has not been the subject of loss
or
damage;
(l) together
with the Equipment relating thereto, if any, 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 2002-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,
(m) is
in full
force and effect in accordance with its terms and contains enforceable
provisions such that the rights and remedies of the holder thereof shall be
adequate for realization against the Equipment or Collateral, as applicable,
thereunder and of the benefits of any security granted thereunder;
(n) does
not
provide for the substitution, exchange, or addition of any other items of
Equipment or Collateral pursuant to such Contract which would result in any
reduction or extension of payments due thereunder;
(o) by
its terms
is due and payable in full on or within 72 months of the applicable Pledge
Date,
except in the case of the BCAP Loan, which by its terms is due and payable
in
full on or within 36 months of the applicable Pledge Date;
(p) arises
under
a Contract in substantially the form of one of the form contracts set forth
in
Exhibit E hereto or otherwise 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);
(q) (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 2002-A
Related Documents with respect thereto, including, without limitation, its
right
to review the Contract;
(r) 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, and (iii) originated by a Transferor eligible under
the
Credit and Collection Policy;
(s) 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;
(t) the
inclusion of which in the Series 2002-A Trust Estate would not require the
registration of the Obligor or of the Series 2002-A Trust Estate as an
"investment company" under the Investment Company Act of 1940, as
amended;
(u) the
addition
of which to the Series 2002-A Trust Estate would not result in the Weighted
Average Life to exceed 2.5 years;
(v) (x)
in the
case of a Series 2002-A Contract other than a BCAP Loan, 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 in favor of Xxxxxx or (y) in the case of a BCAP Loan, the BCAP Loan
is
secured by a first priority perfected security interest in such Collateral
in
favor of Xxxxxx (in each case, which security interest has been validly assigned
to the Transferor by Xxxxxx, to the Obligor by the Transferor and to the Trustee
by the Obligor);
(w) relates
to
Equipment, if any, 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;
(x) has
a
Contract Principal Balance which is less than or equal to $200,000;
provided, that, if such Contract is a BCAP Loan, such Contract has a
Contract Principal Balance which is less than or equal to $50,000;
(y) was
not
selected by the Transferor from the Transferor's pool of leases or loans in
a
manner adverse to the Series 2002-A Noteholders;
(z) arises
under
a lease, loan or financing contract, is not currently under any sub-lease
agreement, and does not permit any sub-leasing of the related Equipment or
Collateral;
(aa) 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;
(bb) is,
and has
been, at all times, a legal, valid and binding payment obligation of the User,
enforceable in accordance with its terms;
(cc) the
User of
which is not an Affiliate of the Transferor, the Servicer or any
Obligor;
(dd) has
been
accounted for on the Transferor's books as sold to the Obligor;
(ee) 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;
(ff) as
to which
the related User has been directed to make payment only to the Lockbox Account
at the Lockbox Bank;
(gg) as
to which
the related Equipment, where applicable, has been delivered to, and accepted
by,
the related User;
(hh) if
such
Contract is a "true lease", the Equipment is owned by the Obligor free and
clear
of all other liens;
(ii) in
the case
of a Series 2002-A Contract other than a BCAP Loan, 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
(jj) if
such
Contract is a BCAP Loan, the first Scheduled Payment has been remitted to the
Transferor by the User prior to the Pledge Date.
“Maximum
Series Limit” means
$175,000,000.
“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 Quarterly Payment Concentration
Amount, (vii) the Broker Concentration Amount and (viii) the aggregate Contract
Principal Balance of BCAP Loans which exceeds the Maximum BCAP Loan
Amount.
(c) With
respect to the Series 2002-A Notes issued pursuant to the Amended and Restated
Series 2002-A Supplement, the following sentence is hereby added to the
definition of “Contract” in Section 1.01 of the Master Agreement: “For the
avoidance of doubt, the defined term “Contract” shall include BCAP
Loans.”
(d) The
word “or” is hereby added to the end of Section 5.01(z) of the Amended and
Restated Series 2002-A Supplement.
(e) The
following Section 5.10 is hereby added to Article V of the Amended and Restated
Series 2002-A Supplement to read as:
“Section
5.10 Consequences
of a BCAP Amortization Event. Upon the occurrence of a BCAP
Amortization Event, no additional BCAP Loans may be pledged by the Obligor
to
the Series 2002-A Trust Estate. Additionally, Xxxxxx and the Obligor
shall repurchase all BCAP Loans within 60 days of the occurrence of a BCAP
Amortization Event. After such 60 day period, BCAP Loans shall not be
Eligible Contracts.”
(f) The
following Section 5.11 is hereby added to Article V of the Amended and Restated
Series 2002-A Supplement to read as:
“Section
5.11 BCAP
Loan Substitution and Repurchase. Xxxxxx or the Obligor, in their
sole discretion, may repurchase or, pursuant to Section 6.16 of the Master
Agreement, substitute any BCAP Loan which is past-due or has become a Delinquent
Contract or Charged-Off Contract; provided, however, that the
aggregate Contract Principal Balance of all BCAP Loans which are repurchased
(other than as required by Section 5.10) or substituted in any calendar quarter
may not exceed $150,000 without the written consent of the Agent.”
(g) The
documents attached hereto as Exhibit A, shall be added to Exhibit E of the
of
the Amended and Restated Series 2002-A Supplement.
SECTION
2. Supplement
in Full Force and Effect as Amended. Except as
specifically amended hereby, all provisions of the Amended and Restated Series
2002-A Supplement shall remain in full force and effect. After this First
Amendment becomes effective, all references to “hereof,” “herein,” or words of
similar effect referring to the Amended and Restated Series 2002-A Supplement
shall be deemed to mean the Amended and Restated Series 2002-A Supplement as
amended hereby. This First Amendment shall not constitute a novation of the
Amended and Restated Series 2002-A Supplement, but shall constitute an amendment
thereof. This First Amendment shall not be deemed to expressly or impliedly
waive, amend or supplement any provision of the Amended and Restated Series
2002-A Supplement other than as set forth herein.
SECTION
3. Representations. Each
of the parties hereto represent and warrant as of the date of this First
Amendment as follows: (a) the execution, delivery and performance by it of
this
First Amendment are within its powers and have been duly authorized; (b) this
First Amendment has been duly executed and delivered by it; and (c) this First
Amendment constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws
affecting the enforcement of creditors’ rights generally or by general
principles of equity.
SECTION
4. Waiver
of Notice. Each of the parties, by its
execution of this First Amendment, waives any prior notice pursuant to Section
7.05(d) of the Amended and Restated Series 2002-A Supplement and any and all
other notice provisions contained within the documents executed in connection
with the issuance of the Series 2002-A Note.
SECTION
5. Miscellaneous.
(a) This
First
Amendment may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument but
all
of which together shall constitute one and the same agreement.
(b) The
descriptive headings of the various sections of this First Amendment are
inserted for convenience of reference only and shall not be deemed to affect
the
meaning or construction of any of the provisions hereof.
(c) This
First
Amendment may not be amended or otherwise modified except as provided in the
Amended and Restated Series 2002-A Supplement.
(d) The
failure
or unenforceability of any provision hereof shall not affect the other
provisions of this First Amendment.
(e) Whenever
the
context and construction so require, all words used in the singular number
herein shall be deemed to have been used in the plural, and vice versa, and
the
masculine gender shall include the feminine and neuter and the neuter shall
include the masculine and feminine.
(f) This
First
Amendment represents the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
between the parties. There are no unwritten oral agreements between the
parties.
(g) THIS
FIRST AMENDMENTSHALL 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.
[The
Remainder Of This Page Is Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties have caused this First Amendment to be
executed by their respective officers thereunto duly authorized, as of the
date
first above written.
XXXXXX
LEASING CORPORATION, in its individual capacity and as Servicer
| By: |
___________________________
|
| Name: Xxxxx Xxxxxx |
|
|
Title:
Senior Vice President
|
XXXXXX
LEASING RECEIVABLES CORP. II, as the Obligors’ Agent
| By: |
___________________________
|
| Name: Xxxxx Xxxxxx |
|
|
Title:
Vice President
|
XXXXXX
LEASING RECEIVABLES II LLC, as the Obligor
|
|
By:XXXXXX
LEASING RECEIVABLES CORP. II, as Managing
Member
|
| By: |
___________________________
|
| Name: Xxxxx Xxxxxx |
|
|
Title:
Vice President
|
JPMORGAN
CHASE BANK, N.A., as Agent
| By: |
___________________________
|
| Name: |
|
|
Title:
|
XXXXX
FARGO
BANK, N.A., as Trustee
| By: |
___________________________
|
| Name: |
|
|
Title:
|
Exhibit
A
The
following documents are hereby added to Exhibit E of the of the Amended and
Restated Series 2002-A Supplement.
