FIRST AMENDMENT TO SECOND AMENDED AND RESTATED SERIES 2000-A SUPPLEMENT TO THE MASTER LEASE RECEIVABLES ASSET-BACKED FINANCING FACILITY AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED
SERIES
2000-A SUPPLEMENT TO THE MASTER LEASE RECEIVABLES
ASSET-BACKED
FINANCING FACILITY AGREEMENT
FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED SERIES 2000-A SUPPLEMENT TO THE
MASTER
LEASE RECEIVABLES ASSET-BACKED FINANCING FACILITY AGREEMENT (this
“Amendment”), made as of September 25, 2007, is entered into by and among
XXXXXX LEASING CORPORATION (“MLC”), individually, and as the Servicer,
XXXXXX LEASING RECEIVABLES CORP. IV (“MLRC”), as the Obligors’ Agent,
XXXXXX LEASING RECEIVABLES IV LLC, as the Obligor, DEUTSCHE BANK AG, NEW
YORK
BRANCH (“DEUTSCHE BANK”), 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
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 December 1, 2000 (such agreement as amended,
modified, restated, replaced, waived, substituted, supplemented or extended,
the
“Master Agreement”), which Master Agreement was amended and
supplemented by the Second Amended and Restated Series 2000-A Supplement
to the
Master Agreement dated as of September 28, 2006 among certain of the parties
hereto, (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:
(a) Clause
(i) of the definition of “Applicable Discount Rate” set forth in Section 2.01 of
the Supplement is hereby amended and restated in its entirety to read as
follows:
|
|
(i)
|
(v)
1.25% plus (w) the Servicing Fee of 1.00% plus (x) the
Trustee’s Fee of 0.015% plus (y) the Back-Up Servicer’s Fee of
0.03% plus (z) the Increased Servicer Fee of 0.25%;
and
|
(b) The
defined term “Fee Rate” set forth in Section 2.01 of the Supplement is hereby
deleted in its entirety.
(c) The
defined term of “Termination Date” in Section 2.01 of the Supplement is hereby
amended and restated in its entirety to read as follows:
“Termination
Date” means the earliest to occur of: (i) March 24, 2008 or such later date
as the parties (with the express written consent of the Agent) 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, (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 90th day following
the
date on which the Agent has delivered a written notice to the Transferor to
the effect that the most recent audit completed by the Agent or its
designee of the Transferor’s origination, servicing and documentation procedures
has revealed to the Agent deficiencies which it reasonably believes creates
a material adverse effect on the facility and (v) 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.
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. 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 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.
[The
Remainder Of This Page Is Intentionally Left Blank]
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: Xxxxx
Xxxxxx
|
|
|
Title: Senior
Vice President
|
XXXXXX
LEASING RECEIVABLES CORP. IV, as the Obligors’ Agent
|
|
By:
__________________
|
|
|
Name: Xxxxx
Xxxxxx
|
|
|
Title: Vice
President
|
XXXXXX
LEASING RECEIVABLES IV, LLC, as the Obligor
|
|
By:XXXXXX
LEASING RECEIVABLES CORP IV, as Managing
Member
|
|
|
By:
__________________
|
|
|
Name: Xxxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
DEUTSCHE
BANK AG, NEW YORK BRANCH, as Agent
|
|
|
By:
__________________
|
|
|
Name:
|
|
|
Title:
|
|
|
By:
__________________
|
|
|
Name:
|
|
|
Title:
|
XXXXX
FARGO
BANK, N.A., as Trustee
|
|
By:
__________________
|
|
|
Name:
|
|
|
Title:
|
