Exhibit 10.20
EXECUTION COPY
FIFTH AMENDMENT TO SERIES 2002-A
SUPPLEMENT TO THE MASTER LEASE RECEIVABLES
ASSET-BACKED FINANCING FACILITY AGREEMENT
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FIFTH AMENDMENT TO SERIES 2002-A SUPPLEMENT TO THE MASTER LEASE RECEIVABLES
ASSET-BACKED FINANCING FACILITY AGREEMENT (this "Amendment"), made as of March
18, 2005, is entered into by and among MARLIN LEASING CORPORATION ("MLC"),
individually, and as the Servicer, MARLIN LEASING RECEIVABLES CORP. II ("MLRC"),
as the Obligors' Agent, MARLIN LEASING RECEIVABLES II LLC, as the Obligor,
JPMORGAN CHASE BANK, NA (successor by merger to Bank One, N.A.), as the Agent,
and WELLS FARGO BANK, N.A. (successor-by-merger to Wells Fargo Bank Minnesota,
N.A.) ("Wells Fargo"), as the Trustee, and is consented to and acknowledged by
MBIA INSURANCE CORPORATION ("MBIA"), as Series Support Provider. 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
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WHEREAS, MLC, in its capacity as the Servicer, MLRC, in its capacity as the
Obligors' Agent, and Wells 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 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, and by that certain Second Amendment to the Series 2002-A
Supplement to the Master Agreement dated as of January 13, 2004, and by that
certain Third Amendment to the Series 2002-A Supplement to the Master Agreement
dated as of March 19, 2004, and by that certain Fourth Amendment to the Series
2002-A Supplement to the Master Agreement dated as of January 11, 2005 (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.
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(a) The definition of "Liquidity Expiration Date" (as first set forth in
the Second Amendment to the Series 2002-A Supplement to the Master Agreement and
most recently amended in the Fourth 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 April 8, 2006.
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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 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. 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
and any and all other notice provisions contained within the documents executed
in connection with the issuance of the Series 2002-A Note.
SECTION 5. MISCELLANEOUS.
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(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
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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.
MARLIN LEASING CORPORATION, in its
individual capacity and as Servicer
By:
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Name: George D. Pelose
Title: Senior Vice President
MARLIN LEASING RECEIVABLES CORP. II, as
the Obligors' Agent
By:
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Name: George D. Pelose
Title: Vice President
MARLIN LEASING RECEIVABLES II, LLC, as
the Obligor
By: MARLIN LEASING RECEIVABLES
CORP II, as Managing Member
By:
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Name: George D. Pelose
Title: Vice President
JPMORGAN CHASE BANK, NA (successor by
merger to Bank One, N.A.), as Agent
By:
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Name:
Title:
Address: Suite IL1-0079
1 Bank One Plaza
Chicago, IL 60670
Attention: Transaction
Management
Telephone: (312) 732-1281
Fax: (312) 732-3600
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WELLS FARGO BANK, NATIONAL
ASSOCIATION (successor-by-merger to
Wells Fargo Bank Minnesota, N.A.), as
Trustee
By:
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Name:
Title:
CONSENTED TO AND ACKNOWLEDGED BY:
MBIA INSURANCE CORPORATION
By:
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Name:
Title:
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