EXHIBIT 10.18
EXECUTION COPY
THIRD AMENDMENT TO SERIES 2002-A
SUPPLEMENT TO THE MASTER LEASE RECEIVABLES
ASSET-BACKED FINANCING FACILITY AGREEMENT
THIRD AMENDMENT TO SERIES 2002-A SUPPLEMENT TO THE MASTER LEASE
RECEIVABLES ASSET-BACKED FINANCING FACILITY AGREEMENT (this "Amendment"), made
as of March 19, 2004, 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, BANK ONE, NA ("Bank One"), as the Agent, and XXXXX FARGO BANK, N.A.
(successor-by-merger to Xxxxx Fargo Bank Minnesota, N.A.) ("Xxxxx Fargo"), as
the Trustee, and is consented to and acknowledged by MBIA INSURANCE CORPORATION
("MBIA"), as Series Support Provider. Capitalized terms used and not otherwise
defined herein shall have the meanings given to such terms in the 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 capacities as Trustee and Back-Up
Servicer, entered into that certain Master Lease Receivables Asset-Backed
Financing 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 certain of the parties hereto, as amended by that certain
First Amendment to the Series 2002-A Supplement to the Master Agreement dated as
of July 10, 2003 and by that certain Second Amendment to the Series 2002-A
Supplement to the Master Agreement dated as of January 13, 2004 (such agreement
as amended, modified, restated, replaced, waived, substituted, supplemented or
extended, the "Supplement"); and
WHEREAS, the parties hereto desire to amend the Supplement 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. AMENDMENTS.
(a) The definition of "Maximum Series Limit" in Section 2.01 of
the Supplement is hereby amended and restated in its entirety as follows:
"Maximum Series Limit" means $100,000,000.
(b) Section 5.01(t)(i) of the Supplement is hereby amended and
restated in its entirety as follows:
(i) is less than the sum of (x) $55,000,000 plus (y) 50% of
all of Marlin's positive net income earned since December 31, 2003;
SECTION 2. SUPPLEMENT IN FULL FORCE AND EFFECT AS AMENDED. Except as
specifically amended hereby, all provisions of the Supplement shall remain in
full force and effect. After this Amendment becomes effective, all references to
"hereof," "herein," or words of similar effect referring to the Supplement shall
be deemed to mean the Supplement as amended hereby. This Amendment shall not
constitute a novation of the Supplement, but shall constitute an amendment
thereof. This Amendment shall not be deemed to expressly or impliedly waive,
amend or supplement any provision of the Supplement other than as set forth
herein.
SECTION 3. REPRESENTATIONS. Each of the parties hereto represent and
warrant as of the date of this Amendment as follows: (a) the execution, delivery
and performance by it of this Amendment are within its powers, have been duly
authorized; (b) this Amendment has been duly executed and delivered by it; and
(c) this 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 Amendment, waives any prior notice pursuant to Section 7.05 of the
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 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
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 Amendment may not be amended or otherwise modified except
as provided in the Supplement.
(d) The failure or unenforceability of any provision hereof shall
not affect the other provisions of this 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
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gender shall include the feminine and neuter and the neuter shall include the
masculine and feminine.
(f) This 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 AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
XXXXXX LEASING CORPORATION, in its
individual capacity and as Servicer
By:________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXX LEASING RECEIVABLES CORP. II, as
the Obligors' Agent
By:________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXX LEASING RECEIVABLES II, LLC, as
the Obligor
By: XXXXXX LEASING RECEIVABLES
CORP II, as Managing Member
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK ONE, NA, as Agent
By:________________________________________
Name:
Title:
Address: Suite IL1-0079
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Transaction
Management
Telephone: (000) 000-0000
Fax: (000) 000-0000
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XXXXX FARGO BANK, NATIONAL
ASSOCIATION (successor-by-merger Xxxxx
Fargo Bank Minnesota, N.A.), as Trustee
By:________________________________________
Name:
Title:
CONSENTED TO AND ACKNOWLEDGED BY:
MBIA INSURANCE CORPORATION
By:________________________________________
Name:
Title:
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