EXHIBIT 10.8
THIRD AMENDMENT
TO THE AMENDED AND RESTATED SERIES 2000-A SUPPLEMENT
TO THE MASTER FACILITY AGREEMENT
THIRD AMENDMENT, dated as of September 25, 2002 ("Third
Amendment"), among MARLIN LEASING CORPORATION, individually, and as the Servicer
(in such capacity, the "Servicer"), MARLIN LEASING RECEIVABLES CORP. IV, as the
Obligors' Agent ("MLR IV"), MARLIN LEASING RECEIVABLES IV LLC, as the Obligor
("MLR IV LLC"), DEUTSCHE BANK AG, NEW YORK BRANCH (in such capacity, the
"Agent"), XL CAPITAL ASSURANCE INC. (in such capacity, the "Series Support
Provider") and WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (the "Trustee")
to AMENDED AND RESTATED SERIES 2000-A SUPPLEMENT (as amended) to the MASTER
LEASE RECEIVABLES ASSET-BACKED FINANCING FACILITY AGREEMENT.
PRELIMINARY STATEMENT. Reference is made to the Amended and
Restated Series 2000-A Supplement, dated as of August 7, 2001 (as amended, the
"Series Supplement"), among the Servicer, MLR IV, MLR IV LLC, the Agent, the
Series Support Provider and the Trustee to the Master Lease Receivables
Asset-Backed Financing Facility Agreement, dated as of December 1, 2000 (the
"Master Agreement"), among the Servicer, MLR IV 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. Amendment to the Series Supplement. The Series
Supplement is, effective as of the date hereof, hereby amended as follows:
(a) The defined term "Termination Date" in Section 2.01 is hereby amended
and restated in its entirety as follows:
" "Termination Date" means the earliest to occur of: (i) December 21,
2004, 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), (ii) the day designated as the
Termination Date by the Obligor on sixty (60) days' prior written
notice to the Agent and the Series Support Provider, (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 date on which the financial strength
rating of XL Capital Assurance Inc. is withdrawn, suspended or rated
below "A" by Standard & Poor's or withdrawn, suspended or rated below
"A2" by Moody's, (v) the 90th day following the date on which the
Series Support Provider has delivered a written notice to the
Transferor and the Agent to the effect that the most recent audit
completed by the Series Support Provider or its designee of the
Transferor's origination, servicing and documentation procedures has
revealed to the Series Support Provider deficiencies which it
reasonably believes creates a material
adverse effect on the facility and (vi) 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. "
(b) The defined term "Premium Letter" in Section 2.01 is hereby amended and
restated in its entirety as follows:
" "Premium Letter" means the Amended and Restated Premium Letter dated
September 25, 2002 among the Series Support Provider, Marlin, MLR IV
and MLR IV LLC, pursuant to which the Insurer Fee, Default Fee, Unused
Fee and certain other amounts are to be paid to the Series Support
Provider, as the same may be amended, restated, supplemented or
otherwise modified from time to time hereafter. "
(c) The defined term "Insurance and Indemnity Agreement" in Section 2.01 is
hereby amended and restated in its entirety as follows:
" "Insurance and Indemnity Agreement" means the Insurance and Indemnity
Agreement dated August 7, 2001 among the Series Support Provider,
Marlin, MLR IV, MLR IV LLC and the Trustee, as the same may be amended,
restated, supplemented or otherwise modified from time to time
hereafter. "
(d) The defined term "Fee Letter" in Section 2.01 is hereby amended and
restated in its entirety as follows:
" "Fee Letter" means that certain Amended and Restated Fee Letter dated
as of September 25, 2002 by and among the Servicer, the Obligor, the
Obligor's Agent and the Agent, as it may be amended, restated,
supplemented or otherwise modified from time to time hereafter. "
(e) The defined term "Series 2000-A Note Interest Rate" in Section 2.01 is
hereby amended by adding at the end thereof the following:
"Notwithstanding the foregoing, the Series 2000-A Note Interest Rate
shall mean the sum of (i) the Series 2000-A Base Rate plus (ii) 2.00%
per annum at any time that (x) a Series Event of Default arising under
Sections 5.01 (a), (b), (c), (d), (e), (g), (h), (i), (j), (o), (p),
(q), (r), (s), (t), (u) or (bb) hereof has occurred and is continuing
and (y) the financial strength rating of the Series Support Provider is
withdrawn, suspended or rated below "A" by Standard & Poor's or is
withdrawn, suspended or rated below "A2" by Moody's. "
(f) The following defined terms are hereby added to Section 2.01 in the
appropriate alphabetical place:
"One Year Deficiency" has the meaning set forth in the Premium Letter.
"Two Year Deficiency" has the meaning set forth in the Premium Letter.
(g) Clause fifteenth of Section 3.03(a)(i) is hereby amended and restated
in its entirety as follows:
" fifteenth, from the remaining Series 2000-A Available Funds, ratably
to the Series 2000-A Noteholder, for the benefit of the applicable
Owners or to the Agent or the Series Support Provider, as applicable,
the Facility Fee, the Unused Fee, Breakage Costs, any Default Fee, any
Make-Whole Amounts, any One Year Deficiency, any Two Year Deficiency,
any outstanding and unpaid Accrued Liabilities and any other amounts
owing to the Series 2000-A Noteholders, the Series Support Provider or
the Agent under the Series 2000-A Related Documents, as certified by
the Agent or the Series Support Provider, as applicable, to the
Trustee, and the Obligors' Agent; "
(h) Clause thirteenth of Section 3.03(a)(ii) is hereby amended and restated
in its entirety as follows:
" thirteenth, from the remaining Series 2000-A Available Funds, to the
Series 2000-A Noteholder, any Noteholder's Carryover Interest on such
Settlement Date, but not to include any Noteholder's Carryover Interest
with respect to a prior Settlement Date to the extent in excess of the
Capped Monthly Interest for such prior Settlement Date; "
(i) Clause sixteenth of Section 3.03(a)(ii) is hereby amended and restated
in its entirety as follows:
" sixteenth, from the remaining Series 2000-A Available Funds, ratably
to the Series 2000-A Noteholder, for the benefit of the applicable
Owners or to the Agent or the Series Support Provider, as applicable,
the Facility Fee, the Unused Fee, Breakage Costs, any Default Fee, any
Make-Whole Amounts, any One Year Deficiency, any Two Year Deficiency,
any outstanding and unpaid Accrued Liabilities, any Noteholder's
Carryover Interest for such Settlement Date to the extent not paid
pursuant to clauses eighth or thirteenth above, any Monthly Interest
for such Settlement Date to the extent not paid pursuant to clause
eighth above, and any other amounts owing to the Series 2000-A
Noteholders or the Agent under the Series 2000-A Related Documents, as
certified by the Agent or the Series Support Provider, as applicable,
to the Trustee, and the Obligors' Agent; "
(j) Section 4.01(d) is hereby amended by deleting the word "and" after
clause (v) thereof, replacing the period after clause (vi) thereof with
"; and", and adding the following clause at the end thereof:
" (vii) the financial strength rating of the Series Support Provider is
at or above "AA-" by S&P and "Aa3" by Moody's. "
(k) Section 5.01(r) is hereby amended and restated in its entirety as
follows:
" (r) Marlin's Tangible Net Worth as of the end of any calendar quarter
is less than the sum of (x) $28,500,000 plus (y) 75% of all of Marlin's
positive net income (less dividends accrued on preferred stock) earned
since December 31, 2001;"
(l) Except as amended by items (a), (b), (c), (d), (e), (f), (g), (h), (i),
(j) and (k) above, all provisions of the Series Supplement shall remain
in full force and effect and are reconfirmed and ratified as of the
date hereof.
Section 2. Conditions Precedent. This Third Amendment shall
not become effective unless the following conditions have been met or waived:
(i) The First Amendment to the First Amended and Restated
Note Purchase Agreement shall have been duly executed
by the parties thereto;
(ii) The Series Support Provider and the Agent shall have
received such other instruments, agreements,
documents, certificates and bring down opinions as it
shall reasonably require in connection with this
Third Amendment;
(iii) The Series Support Provider and the Agent shall have
received confirmation from Standard and Poor's that
the Series 2000-A program is still rated at least
"BBB-" prior to giving consideration to the credit
enhancement resulting from the Policy;
(iv) MLR IV LLC shall have paid all fees and costs
required to be paid as set forth in the Proposal
Letter dated August 22, 2002 from the Series Support
Provider to the Servicer (as accepted by the Servicer
on August 23, 2002); and
(v) No event has occurred and is continuing which
constitutes a Series Event of Default or Event of
Servicer Termination or would constitute a Series
Event of Default or Event of Servicer Termination but
for the requirement that notice be given or time
elapse.
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 IV and MLR IV 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 IV and MLR IV 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 IV and MLR IV 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 IV
or MLR IV 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 and Restated Series 2000-A Supplement to be fully
executed by their respective officers as of the day and year first above
written.
MARLIN LEASING CORPORATION,
in its individual capacity and as Servicer
By: ____________________________________________
Name:
Title:
MARLIN LEASING RECEIVABLES CORP. IV,
as the Obligors' Agent
By: ____________________________________________
Name:
Title:
MARLIN LEASING RECEIVABLES IV LLC,
as the Obligor
By: MARLIN LEASING RECEIVABLES
CORP. IV,
as Managing Member
By: ____________________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
By: ____________________________________________
Name:
Title:
By: ____________________________________________
Name:
Title:
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By: ____________________________________________
Name:
Title:
XL CAPITAL ASSURANCE INC., as Series
Support Provider
By: ____________________________________________
Name:
Title: