EXHIBIT 10.17
EXECUTION COPY
SECOND AMENDMENT TO SERIES 2002-A
SUPPLEMENT TO THE MASTER LEASE RECEIVABLES
ASSET-BACKED FINANCING FACILITY
AGREEMENT AND CONSENT TO ASSIGNMENT OF 2002-A NOTE
SECOND AMENDMENT TO SERIES 2002-A SUPPLEMENT TO THE MASTER LEASE
RECEIVABLES ASSET-BACKED FINANCING FACILITY AGREEMENT AND CONSENT TO ASSIGNMENT
OF 2002-A NOTE (this "Amendment"), made as of January 13, 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 successor Agent, and 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, and ABN AMRO BANK, N.V. ("ABN AMRO"), as
the retiring Agent. 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, certain of the parties hereto and various financial
institutions names therein, as the banks, have entered into that certain Note
Purchase Agreement, dated as of April 1, 2002, as amended by that certain First
Amendment to Note Purchase Agreement dated as of July 10, 2003 (such agreement
as amended, modified, restated, replaced, waived, substituted, supplemented or
extended, the "Note Purchase Agreement"); and
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
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 (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 Supplement and the Series 2002-A Related Documents are
hereby amended by (i) deleting all references therein to "Amsterdam Funding
Corporation" and replacing them "Falcon Asset Securitization Corporation", (ii)
deleting all references therein to "ABN AMRO Bank N.V." and replacing them with
"Bank One, NA", and (iii) deleting all references therein to "ABN AMRO" and
replacing them with "Bank One".
(b) The definition of "Cap Agreement" in Section 2.01 of the
Supplement is hereby amended by adding the words "or Obligor" immediately after
the first use of the word "Trustee" in such section.
(c) The definition of "Fee Letter" in Section 2.01 of the
Supplement is hereby amended and restated in its entirety as follows:
"Fee Letter" means that certain letter agreement dated as of
January 13, 2004, 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.
(d) The definition of "Hedge Agreement" in Section 2.01 of the
Supplement is hereby amended by adding the words "or Obligor" immediately after
the word "Trustee" in such section.
(e) The definition of "Hedge Counterparty" in Section 2.01 of the
Supplement is hereby amended by deleting the words "National City" and replacing
them with "Bank One, NA".
(f) The definition of "Liquidity Agreement" in Section 2.01 of the
Supplement is hereby amended and restated in its entirety as follows:
"Liquidity Agreement" shall mean the liquidity agreement dated
as of January 13, 2004, among Falcon Asset Securitization Corporation,
the liquidity banks named therein, and Bank One, as the liquidity
agent, as amended from time to time.
(g) The definition of "Liquidity Expiration Date" (as first set
forth in the First Amendment to the Series 2002-A Supplement to the Master
Agreement) is hereby amended and restated in its entirety as follows:
"Liquidity Expiration Date" shall mean January 11, 2005.
(h) 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 $75,000,000, or upon the prior
written consent of the Series Support Provider and the Agent,
$100,000,000.
(i) The definitions of "Series 2002-A Base Insured Note Interest
Rate" and "Series 2002-A Note Interest Rate" in Section 2.01 of the Supplement
are hereby amended by deleting the existing clause (a) in each such definition
and replacing it with the following:
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(a) to the extent that a Purchaser funds its investment in the
Series 2002-A Notes for such Interest Period or portion thereof by
issuing Commercial Paper, the sum of (i) the CP Margin, (ii) the
weighted average of the rates at which Commercial Paper issued by such
Purchaser to fund the purchase or maintenance of its investments in the
Series 2002-A Notes during such Interest Period or portion thereof,
plus (iii) any and all accrued commissions in respect of placement
agents and Commercial Paper dealers, and issuing and paying agent fees
incurred, in respect of such Commercial Paper for such Interest Period
or portion thereof, plus (iv) other costs associated with funding small
or odd-lot amounts with respect to all receivable purchase facilities
which are funded by such Commercial Paper for such Interest Period or
portion thereof; provided, however, for purposes of calculating such
weighted average, (1) if any such rate is a discount rate, such
discount rate shall be converted to an interest bearing equivalent rate
per annum for a 360 day year, and (2) for clauses (iii) and (iv) above,
such amounts shall be converted to an interest bearing equivalent rate
per annum for a 360 day year.
(j) Clause (i) of the definition of "Termination Date" in Section
2.01 of the Supplement is hereby amended and restated as follows:
(i) April 8, 2006, or such later date as the parties (with the
express written consent of the Agent and Series Support Provider) may
hereafter agree in accordance with Section 4.01(i),
(k) Section 3.04(c) of the Supplement is hereby amended by adding
the following immediately after the first sentence of such section:
The Agent and the Series Support Provider shall be permitted
to jointly conduct one of the three audits per year, and the Agent
shall be entitled to receive copies of the other audits conducted by
the Series Support Provider or its designee.
(l) Sections 3.08(a)(i), 3.08(a)(vi), 3.08(c), 3.08(d), and
3.08(e) of the Supplement are hereby amended by adding the words "or Obligor"
immediately after each use of the word "Trustee" in such sections.
(m) Section 3.08(a)(iv) of the Supplement is hereby amended by
adding the words "and Obligor" immediately after the word "Trustee" in such
section.
(n) Section 7.01 of the Supplement is hereby amended by deleting
the last sentence thereof and replacing it with the following:
All notices, demands and requests to the Agent pursuant to the
Master Agreement or this Series 2002-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
Bank One, NA (Main Office Chicago), Suite IL1-0079, 1 Bank Xxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Fax 000.000.0000, or at such other address or
facsimile number as shall be designated by the Agent in a written
notice to each party hereto.
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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, the Master Agreement or the
Note Purchase Agreement 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. CONSENT TO ASSIGNMENT. Each party to this Amendment hereby
consents to the assignment of the Series 2002-A Note by ABN AMRO Bank N.V. to
Bank One, NA, as Agent for the Purchasers.
SECTION 5. CONSENT TO SUCCESSOR AGENT. Pursuant to Section 8.07 of the
Note Purchase Agreement (i) upon the direction of Falcon Asset Securitization
Corporation as the Purchaser, ABN AMRO has resigned as Agent and (ii) Falcon
Asset Securitization Corporation has appointed Bank One as Agent and Bank One
has accepted such appointment. Each party to this Amendment hereby consents to
the appointment of Bank One as the Agent.
SECTION 6. 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, Section 9.01 of the Note Purchase Agreement and any and all other
notice provisions contained within the documents executed in connection with the
issuance of the Series 2002-A Note.
SECTION 7. 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.
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(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.
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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: Xxxxx XX0-0000
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 MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: _______________________________________
Name:
Title:
CONSENTED TO AND ACKNOWLEDGED BY:
MBIA INSURANCE CORPORATION
By: ______________________________________
Name:
Title:
CONSENTED TO AND ACKNOWLEDGED BY:
ABN AMRO BANK N.V.
By: ______________________________________
Name:
Title:
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