Contract
EXHIBIT 10.1
EXECUTION
COPY
THIRD
AMENDMENT
TO THE AMENDED AND RESTATED
SERIES 2002-A SUPPLEMENT
TO THE MASTER FACILITY
AGREEMENT
THIRD AMENDMENT, dated as of March 31,
2009 ("Third
Amendment"), among XXXXXX LEASING CORPORATION, individually, and as the
Servicer (in such capacity, the "Servicer"), XXXXXX
LEASING RECEIVABLES CORP. II, as the Obligors' Agent ("MLR II"), XXXXXX
LEASING RECEIVABLES II LLC, as the Obligor ("MLR II LLC"),
JPMORGAN CHASE BANK, N.A. (in such capacity, the "Agent"), and XXXXX
FARGO BANK, N.A. (the "Trustee") to AMENDED
& RESTATED SERIES 2002-A SUPPLEMENT to the MASTER LEASE RECEIVABLES
ASSET-BACKED FINANCING FACILITY AGREEMENT.
PRELIMINARY
STATEMENT. Reference is made to the Amended & Restated Series
2002-A Supplement, dated as of March 15, 2006 (as amended, the "Series Supplement"),
among the Servicer, MLR II, MLR II LLC, the Agent, and the Trustee to the Master
Lease Receivables Asset-Backed Financing Facility Agreement, dated as of April
1, 2002 (as amended, the "Master Agreement"),
among the Servicer, MLR II and the Trustee, as further amended by the First
Amendment to the Series Supplement, dated as of August 29, 2008, among the
Servicer, MLR II, MLR II LLC, the Agent and the Trustee, and as further amended
by the Second Amendment thereto, dated as of March 15, 2009, among the Servicer,
MLR II, MLR II LLC, the Agent and the Trustee. Capitalized terms not
otherwise defined herein shall have the meaning ascribed to such terms in the
Series Supplement.
Each of the parties hereto has agreed
to amend the Series Supplement as hereinafter set forth.
Section
1. Third Amendment to the
Series Supplement. The Series Supplement is, effective as of
the date hereof, hereby amended as follows:
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(a)
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The
definitions of “Aggregate Contract Principal Balance,” “Bank Approval,”
“Cumulative Net Loss Percentage,” “Performance Guarantor” and “Performance
Guaranty” are hereby added to Section 2.01 as alphabetically appropriate
as follows:
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“Aggregate Contract Principal
Balance” equals $165,462,691 as of March 31, 2009.
“Bank Approval” means
that certain requisite governmental approval or governmental approvals the
receipt of which is necessary in order to expand the deposit-taking capacity of
Xxxxxx Business Bank beyond that currently permitted by the FDIC.
“Cumulative Net Loss
Percentage” means, with respect to each Collection Period (commencing
with the April 2009 Collection Period), the percentage equivalent of a fraction,
the numerator of which is the excess of the (a) Contract Principal Balance of
all Contracts that became Charged-Off Contracts during such Collection
Period and all prior Collection Periods commencing with the April
2009 Collection Period over (b) the aggregate amount of all Recoveries collected
by the Servicer with respect to such Collection Periods and the denominator of
which is the Aggregate Contract Principal Balance.
“Performance
Guarantor” means Xxxxxx Business Services Corp.
“Performance Guaranty”
means that certain Performance Guaranty dated as of March 31, 2009 by the
Performance Guarantor in favor of the Trustee, as such agreement may be amended,
supplemented or modified from time to time.
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(b)
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The
definition of “EBITDA” in Section 2.01 is hereby amended and restated in
its entirety to read as follows:
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“EBITDA” means for any
period, for Xxxxxx Business Services Corp. and its consolidated subsidiaries,
the sum of the company’s adjusted net income for such period plus (i) income
taxes, (ii) Interest Expense and (iii) depreciation and amortization, all of
which is to be computed over the previous twelve calendar months.
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(c)
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The
definition of “Fee Rate” in Section 2.01 is hereby amended and restated in
its entirety to read as follows:
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“Fee Rate” means the
aggregate of the rates at which fees are payable in connection with Series
2002-A (i.e., a
LIBO Margin of 475 basis points, the Servicing Fee of 1.00%, the Trustee’s Fee
of 0.015%, and the Back-Up Servicer’s Fee of 0.03%).
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(d)
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The
definition of "Liquidity Expiration Date" in Section 2.01 is hereby
amended and restated in its entirety to read as
follows:
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“Liquidity Expiration
Date” means March 30, 2010.
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(e)
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The
definition of “Maximum Series Limit” in Section 2.01 is hereby amended and
restated in its entirety to read as
follows:
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“Maximum Series Limit”
means, at any time, the then-outstanding Series 2002-A Note Balance (calculated
after giving effect to any reduction thereof on such day).
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(f)
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The
definition of “Series 2002-A Related Documents” in Section 2.01 is hereby
amended and restated in its entirety to read as
follows:
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“Series 2002-A Related
Documents” means, collectively, this Series 2002-A Supplement, the Fee
Letter, the Performance Guaranty, the Hedge Agreement(s), the Master Agreement,
the Master Transfer Agreement, the Collateral Administration Agreement, the Note
Purchase Agreement, the Series 2002-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 2002-A Transfer Agreement Supplement executed pursuant thereto
with respect to the Series 2002-A Trust Estate.
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(g)
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The
definition of “Termination Date” in Section 2.01 is hereby amended and
restated in its entirety to read as
follows:
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“Termination Date”
means the earliest to occur of: (i) March 30, 2010, 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, (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, (vi) the Liquidity
Expiration Date and (vii) the Second Amended and Restated Warehouse Revolving
Credit Facility agented by National City Bank is paid in full and one
or more replacement Committed Financing Facilities (in addition to this
facility) providing for committed financing, in the aggregate (excluding this
facility), of not less than $20,000,000 is not in place at any
time. The Agent shall notify the Obligors’ Agent immediately upon
receipt of notice of, but in any event at least 10 days prior to the date
referenced in clause (vi), the up-coming occurrence of such event described in
clause (vi). In addition, no later than 45 days before the scheduled
termination of the Liquidity Agreement, the Agent shall notify the Obligors’
Agent as to whether the Company has submitted a renewal request under the
Liquidity Agreement.
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(h)
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The
definition of “Revolving Period” in Section 2.01 is hereby amended and
restated in its entirety to read as
follows:
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“Revolving Period”
means the period from and including the Series Closing Date to but excluding
April 1, 2009.
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(i)
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The
definition of “Amortization Period” in Section 2.01 is hereby amended and
restated in its entirety to read as
follows:
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“Amortization Period”
means the period commencing on April 1, 2009, and ending on the earlier to occur
of (i) the final disposition of, and application of the proceeds of, the Series
2002-A Trust Estate and (ii) the payment in full of all Series Trustee Secured
Obligations.
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(j)
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The
lead-in phrase of Section 3.03(a)(i) is hereby amended and restated in its
entirety to read as follows:
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(i) if
such Settlement Date occurs during the Revolving Period, or relates to the
distribution of amounts collected during the Collection Period immediately
preceding the end of the Revolving Period:
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(k)
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The
lead-in phrase of Section 3.03(a)(ii) is hereby amended and restated in
its entirety to read as follows:
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(ii) for
any other Settlement Date not covered in Section 3.03(a)(i):
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(l)
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Priority
sixteenth
of clause (a)(ii) of Section 3.03 is hereby amended and restated in its
entirety to read as follows:
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sixteenth, from the
remaining Series 2002-A Available Funds, to the Series 2002-A Noteholders in
reduction of the Series 2002-A Note Balance, the greatest of the
following:
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(w)
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50%
of such remaining Series 2002-A Available Funds after giving effect to
distributions set forth in clauses first through
fifteenth
above;
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(x)
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if
a Series Event of Default has occurred and is continuing, (as applicable),
100% of such remaining Series 2002-A Available Funds after giving effect
to distributions set forth in clauses first through
fifteenth
above; and
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(y)
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if,
following March 31, 2009, Xxxxxx or an Affiliate thereof issues securities
eligible to be financed by investors under the Federal Reserve Bank of New
York's Term Asset-Backed Securities Loan Facility (“TALF”) and the
enhancement level (overcollateralization, plus subordinate classes of
securities, plus the reserve account) required by the rating agencies to
achieve the “AAA” level (the “AAA Enhancement Level”) exceeds the
enhancement level then supporting the Series 2002-A Notes, 100% of such
remaining Series 2002-A Available Funds after giving effect to
distributions set forth in clauses first through
fifteenth
above, until such AAA Enhancement Level is reached (and maintained on each
subsequent Settlement Date) with respect to the Series 2002-A
Notes.
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(m)
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Clause
(d) of Section 4.01 is hereby amended by deleting the word “and” from
sub-clause (v), replacing the period at the end of sub-clause (vi) with “;
and”, and adding the following new sub-clause
(vii):
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(vii) the
proposed date of such Advance is on or prior to Xxxxx 00, 0000.
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(x)
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Xxxxxxx
(x), (x), (x), (x), (q) and (y) of Section 5.01 are hereby amended and
restated in its entirety to read as
follows:
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(h) [Reserved];
or
(n) [Reserved];
or
(o) [Reserved];
or
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(p)
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during
the Amortization Period only, the Three- Month Rolling Average 31 to 60
Day Delinquency Ratio exceeds 6.0%, or the Three-Month Rolling Average 61
to 90 Day Delinquency Ratio exceeds 1.75%, or the Three-Month Rolling
Average 91 Plus Day Delinquency Ratio exceeds 1.25%;
or
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(q)
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the
Cumulative Net Loss Percentage exceeds (i) 0.75% for any Collection Period
ending on or prior to June 30, 2009, (ii) 1.50% for any Collection Period
ending on or prior to September 30, 2009, (iii) 2.25% for any Collection
Period ending on or prior to December 31, 2009, or (iv) 3.00% for any
Collection Period ending on or prior to March 30, 2010;
or
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(y)
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the
Interest Coverage Ratio for Xxxxxx Business Services Corp. as at the end
of any calendar quarter is less than 1.25:1, measured quarterly on a
rolling four quarter basis; or
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(o)
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A
new Section 6.04 is hereby added as
follows:
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Section
6.04 Repayment From TALF Proceeds. The net proceeds from
any sale of “AAA” (but not any lower-rated tranche, if any are sold, which such
proceeds shall be paid over to Xxxxxx or an Affiliate thereof) TALF securities
shall be deposited to the Series 2002-A Facility Account and applied as a
prepayment of the Series 2002-A Note Balance; provided that no release of
Contracts from the Series 2002-A Trust Estate shall be permitted unless in
connection therewith either (i) the Series 2002-A Notes are repaid in full or
(ii) after giving effect to the application of the proceeds of any such release,
the Borrowing Base (calculated using a Purchase Price Percentage of 75%) exceeds
the Series 2002-A Note Balance.
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(p)
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Except
as amended by provisions above, all provisions of the Series Supplement
shall remain in full force and effect and are reconfirmed and ratified as
of the date hereof.
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Section
2. Conditions
Precedent. This Third Amendment shall not become effective
unless the following conditions have been met or waived:
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(i)
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The
Agent shall have received such other instruments, agreements, documents
and certificates as it shall reasonably require in connection with this
Third Amendment; and
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(ii)
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MLR
II and MLR II LLC shall have paid all amounts payable on the date hereof
under the Fee Letter.
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Section
3. Governing
Law. This Third Amendment shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
the choice of law provisions thereof.
Section
4. Headings. Section
headings in this Third Amendment are included herein for convenience of
reference only and shall not constitute a part of this Third Amendment for any
purpose.
Section
5. Counterparts. This
Third Amendment may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument, and any party
hereto may execute this Third Amendment by signing any such
counterpart. Delivery of an executed counterpart of a signature page
to this Third Amendment by telecopier shall be effective as delivery of a
manually executed counterpart of this Third Amendment.
Section
6. Representations and
Warranties. Each of the Servicer, MLR II and MLR II LLC
reaffirms and restates the representations and warranties set forth in the
Series Supplement and any agreement, document or instrument related thereto, and
certifies that such representations and warranties are true and correct on the
date hereof with the same force and effect as if made on such date, except as
they may specifically refer to an earlier date, in which case they were true and
correct as of such date. In addition, the Servicer, MLR II and MLR II
LLC each represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) that (a) no Series Event of
Default or Event of Servicer Termination (nor any event that but for notice or
lapse of time or both would constitute an Series Event of Default or Event of
Servicer Termination) shall have occurred and be continuing as of the date
hereof nor shall any Series Event of Default or Event of Servicer Termination
(nor any event that but for notice or lapse of time or both would constitute a
Series Event of Default or Event of Servicer Termination) occur due to this
Third Amendment becoming effective, (b) the Servicer, MLR II and MLR II
LLC each has the corporate or other power and authority to execute and deliver
this Third Amendment and has taken or caused to be taken all necessary corporate
actions to authorize the execution and delivery of this Third Amendment, and
(c) no consent of any other person (including, without limitation,
shareholders, members or creditors of the Servicer, MLR II or MLR II LLC), and
no action of, or filing with any governmental or public body or authority is
required to authorize, or is otherwise required in connection with the execution
and performance of this Third Amendment other than such that have been
obtained.
[Signature
Pages Follow]
IN WITNESS WHEREOF, the parties have
caused this Third Amendment to the Amended & Restated Series 2002-A
Supplement to be fully executed by their respective officers as of the day and
year first above written.
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XXXXXX
LEASING CORPORATION,
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in
its individual capacity and as
Servicer
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By:
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Name:
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Title:
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XXXXXX
LEASING RECEIVABLES CORP. II, as the Obligors'
Agent
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By:
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Name:
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Title:
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XXXXXX
LEASING RECEIVABLES II LLC,
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as
the Obligor
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By:
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XXXXXX
LEASING RECEIVABLES CORP. II,
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as
Managing Member
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A., as Agent
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By:
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Name:
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Title:
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XXXXX FARGO BANK,
N.A., as Trustee
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By:
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Name:
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Title:
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