EXHIBIT 10.13
EXECUTION COPY
FIRST AMENDMENT TO SERIES 2002-A
SUPPLEMENT TO THE MASTER LEASE RECEIVABLES
ASSET-BACKED FINANCING FACILITY
AGREEMENT AND CONSENT TO ASSIGNMENT OF 2002-A NOTE
FIRST 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 July 10, 2003, 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, ABN AMRO BANK N.V. ("ABN AMRO"), 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 NATIONAL CITY BANK ("Nat City"), 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 (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 (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 "North Coast Funding
LLC" and replacing them with "Amsterdam Funding Corporation", (ii) deleting all
references therein to "National City Bank"
and replacing them with "ABN AMRO Bank N.V.", and (iii) deleting all references
therein to "National City" and replacing them with "ABN AMRO".
(b) Clause (ii) of the definition of "Base LIBO Rate" in Section
2.01 of the Supplement is hereby amended and restated in its entirety as
follows:
(ii) if no such rate appears on Telerate page 3750 at such
time and day, then the LIBO Rate shall be determined by ABN AMRO at its
office in Chicago, Illinois as its rate (each such determination,
absent manifest error, to be conclusive and binding on all parties
hereto and their assignees) at which 30-day deposits (or such lessor
period of time as determined by the Agent to be appropriate, in the
event that the LIBO rate is to be determined for a portion of an
Interest Period ) in United States Dollars are being, having been, or
would be offered or quoted by ABN AMRO to major banks in the applicable
interbank market for Eurodollar deposits at or about 11:00 a.m.
(Chicago, Illinois time) on such day for a period equal to such
Interest Period (or portion thereof).
(c) The definition of "Breakage Costs" in Section 2.01 of the
Supplement is hereby amended and restated in its entirety as follows:
"Breakage Costs " means, for each Owner for each funding
period, to the extent that an Owner is funding the maintenance of its
investment in Series 2002 - A Notes during such funding period through
the issuance of Commercial Paper or at the LIBO Rate (or, in the case
of a requested Advance not made by such Owner for any reason other than
its default, scheduled to be funded), during which such investment is
reduced (in whole or in part) prior to the end of the period for which
it was originally scheduled to remain outstanding (the amount of such
reduction in such investment or such funding being referred to as the
"Allocated Amount"), the excess of (a) the discount or interest that
would have accrued on the Allocated Amount during the remainder of such
funding period if such reduction had not occurred over (b) the income,
if any, scheduled to be received by such Owner from investing the
Allocated Amount for the remainder of such funding period in a
commercially reasonable manner.
(d) The definition of "Business Day" in Section 2.01 of the
Supplement is hereby amended by deleting the words "Cleveland, Ohio" therein and
replacing them with "Chicago, Illinois".
(e) The definition of "Federal Funds Rate" in Section 2.01 of the
Supplement is hereby amended and restated in its entirety as follows:
"Federal Funds Rate" means for any day the greater of (i) the
average rate per annum as determined by ABN AMRO at which overnight
Federal funds are offered to ABN AMRO for such day by major banks in
the interbank market, and (ii) if ABN AMRO is borrowing overnight funds
from a Federal Reserve Bank that day, the average rate per annum at
which such overnight borrowings are made on that day. Each
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determination of the Federal Funds Rate by ABN AMRO shall be conclusive
and binding except in the case of manifest error.
(f) 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
July 10, 2003 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.
(g) 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 July 10, 2003 among Amsterdam Funding Corporation, the liquidity banks
named therein, and ABN AMRO, as the liquidity agent, as amended from time to
time.
(h) Section 2.01 of the Supplement is hereby amended to add the
following defined term immediately after the defined term "Liquidity Agreement":
"Liquidity Expiration Date" shall mean July 9, 2004.
(i) 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:
(i) during the period from the Series Closing Date to
July 9, 2004, $75,000,000; and
(ii) during the period from July 10, 2004 to July 9, 2005,
upon the prior written consent of the Series Support
Provider and the Agent, $100,000,000 (or, if such
consent is not forthcoming, then $75,000,000).
(j) The definition of "Prime Rate" in Section 2.01 of the
Supplement is hereby amended and restated in its entirety as follows:
"Prime Rate" means, for any period, the daily average during
such period of the floating commercial loan rate per annum of ABN AMRO
(which rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer by ABN AMRO)
announced from time to time as its prime rate or equivalent for Dollar
loans in the USA, changing as and when said rate changes.
(k) The definition of "Series 2002-A Base Rate" in Section 2.01 of
the Supplement is hereby amended and restated in its entirety as follows:
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"Series 2002-A Base Rate" means, on any date, a fluctuating
rate per annum equal to the higher of (a) the Prime Rate or (b) the
Federal Funds Rate plus 0.75%.
(l) Clause (i) of the definition of "Termination Date" in Section
2.01 of the Supplement is hereby amended and restated as follows:
(i) July 9, 2005, 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),
(m) Clause (vii) of the definition of "Termination Date" in
Section 2.01 of the Supplement is hereby amended and restated as follows:
(vii) the Liquidity Expiration Date.
(n) Section 4.01 of the Supplement is hereby amended by adding the
following as a new clause (j) thereunder:
(j) The Obligors' Agent may, not earlier than one hundred
twenty (120) days prior to the Liquidity Expiration Date, by written
notice to the Agent and the Liquidity Provider, make request for the
Liquidity Provider to extend the Liquidity Expiration Date for an
additional period of no more than 364 days on terms reasonably
acceptable to Obligor's Agent. The Liquidity Provider shall make a
determination, in its sole and absolute discretion, not less than sixty
(60) days after receipt of such request as to whether or not it will
agree to the extension requested. The failure of the Liquidity Provider
to provide timely notice of its decision to the Obligor's Agent shall
be deemed to constitute a refusal by the Liquidity Provider to extend
the Liquidity Expiration Date.
(o) The definitions of "Broker/Vendor Concentration Amount",
"Equipment Concentration Amount", "Government Concentration Amount", "State
Concentration Amount" and "User Concentration Amount" in Section 2.01 are all
hereby amended by deleting all references to "Net Investment" contained therein
and replacing them with "aggregate Contract Principal Balance of all Series
2002-A Contracts which are Eligible Contracts".
(p) Section 5.01(p) of the Supplement is hereby amended by
deleting all references to "Ratio" contained therein and replacing them with
"Rate".
(q) Section 5.01(t) of the Supplement is hereby amended by
deleting the colon after the word "quarter" and deleting "(i)" immediately
preceding the word "is".
(r) Section 5.01 of the Supplement is hereby amended by adding the
following as a new clause (dd) thereunder (provided, however, that such
amendment shall in no way amend or otherwise alter the definition of
"Overconcentration Amount") :
(dd) as of any date of determination, the
Overconcentration Amount exceeds $50,000, and such amount is not
reduced to below $50,000 within thirty (30) days of such date of
determination;
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(s) Section 5.02(a) of the Supplement is hereby amended by
inserting the word "any" immediately preceding the word "Event" in the first
line thereof.
(t) 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
ABN AMRO Bank N.V., Global Financial Markets-Asset Securitization, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, 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.
(u) The following is hereby added to the Supplement immediately
after Section 7.09 as a new Section 7.10:
Section 7.10. Each party hereto agrees, for the benefit of the
holders of the privately or publicly placed indebtedness for borrowed
money for Amsterdam Funding Corporation, not, prior to the date which
is one (1) year and one (1) day after the payment in full of all such
indebtedness, to acquiesce, petition or otherwise, directly or
indirectly, invoke, or cause Amsterdam Funding Corporation to invoke,
the process of any Governmental Authority for the purpose of (a)
commencing or sustaining a case against Amsterdam Funding Corporation
under any federal or state bankruptcy, insolvency or similar law
(including the Federal Bankruptcy Code), (b) appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official for Amsterdam Funding Corporation, or any substantial part of
its property, or (c) ordering the winding up or liquidation of the
affairs of Amsterdam Funding Corporation.
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 National City Bank to
ABN AMRO Bank N.V.,
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as Agent for the Purchasers. Each party to this Amendment hereby agrees and
acknowledges that, immediately upon the assignment of the Series 2002-A Note by
National City to ABN AMRO Bank N.V. (as Agent for the Purchasers), the Amendment
No. 1 to Series 2002-A Supplement to the Master Lease Receivables Asset-Backed
Financing Facility Agreement and Consent to Assignment of 2002-A Note dated as
of September 27, 2002 shall, by its terms (i.e., Section 6(a) thereof),
automatically become null and void and shall no longer be in force or effect.
SECTION 5. CONSENT TO SUCCESSOR AGENT. Pursuant to Section 8.07 of the
Note Purchase Agreement (i) upon the direction of Amsterdam Funding Corporation
as the Purchaser, Nat City has resigned as Agent and (ii) Amsterdam Funding
Corporation has appointed ABN AMRO as Agent and ABN AMRO has accepted such
appointment. Each party to this Amendment hereby consents to the appointment of
ABN AMRO 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.
(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
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STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS.
[The Remainder Of This Page Is Intentionally Left Blank]
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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
ABN AMRO BANK N.V., as Agent (and
Liquidity Provider with respect to
Section 4.01(j) only)
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
Address: Structured Finance
Asset Securitization
000 X. XxXxxxx Xxxxxx,
Xxxxx 000
Xxxxxxx, XX 00000
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Attention: Lender
Agent-Amsterdam
Telephone: (000) 000-0000
Fax: (000) 000-0000
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:
NATIONAL CITY BANK
By:___________________________________
Name:
Title:
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