EXHIBIT 10.44
FIRST AMENDMENT
TO
PURCHASE AGREEMENT
First Amendment, dated as of April 8, 1998, by and among ROCKFORD
LIMITED I, a New York corporation (the "Seller"), ROCKFORD INDUSTRIES, INC., a
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California corporation ("Rockford"), SUN AMERICA LIFE INSURANCE COMPANY, an
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Arizona corporation (the "Purchaser") and CHASE BANK OF TEXAS, N.A., f/k/a Texas
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Commerce Bank National Association (the "Trustee") to the Purchase Agreement,
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dated as of August 28, 1997, by and among the Seller, Rockford, Purchaser and
Trustee (as amended to date, the "Purchase Agreement"). Capitalized terms used
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in this Agreement, and not defined herein, shall have the respective definitions
provided in the Purchase Agreement.
The Seller, Rockford, Purchaser and Trustee agree that it is in their
mutual interests to modify the Purchase Agreement as follows:
NOW, THEREFORE, it is agreed:
I. In Section 1.01 of the Purchase Agreement, the definition of
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"Deferred Lease" is hereby deleted in its entirety, and the two following new
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definitions are hereby added in its place:
"Deferred A Lease" means any Lease Contract under which the
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Lessee is not required to make any regular monthly equal or
decreasing Scheduled Payment (or the monthly Scheduled Payments
are each zero) for three months or less immediately following the
commencement date of such Lease Contract; provided, however, that
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once the regular monthly equal or decreasing Scheduled Payments
become due and payable under such Lease Contract, such Lease
Contract shall no longer constitute a Deferred A Lease.
"Deferred B Lease" means any Lease Contract under which the
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Lessee is not required to make any regular monthly equal or
decreasing Scheduled Payment (or the monthly Scheduled Payments
are each zero) for more than three months (but not more than six
months) immediately following the commencement date of such Lease
Contract; provided, however, that once the regular monthly
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equal or decreasing Scheduled Payments become due and payable
under such Lease Contract, such Lease Contract shall no longer
constitute a Deferred B Lease.
I. In Section 1.01 of the Purchase Agreement, the definition of
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"Step Lease" is hereby deleted in its entirety, and the two following new
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definitions are hereby added in its place:
"Step A Lease" means any Lease Contract (other than a
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Deferred A Lease or Deferred B Lease) under which the requirement
that the Lessee make regular monthly equal or decreasing
Scheduled Payments thereunder does not begin until the thirteenth
(13th) month immediately following the commencement date of such
Lease Contract; provided, however, that once the regular monthly
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equal or decreasing Scheduled Payments become due and payable
under such Lease Contract, such Lease Contract shall no longer
constitute a Step A Lease.
"Step B Lease" means any Lease Contract (other than a
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Deferred A Lease or Deferred B Lease) under which the requirement
that the Lessee make regular monthly equal or decreasing
Scheduled Payments thereunder does not begin until the eighteenth
(18th) month immediately following the commencement date of such
Lease Contract; provided, however, that once the regular monthly
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equal or decreasing Scheduled Payments become due and payable
under such Lease Contract, such Lease Contract shall no longer
constitute a Step B Lease.
I. Section 3.02(b) of the Purchase Agreement is amended by
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inserting the word "transferable" immediately after the word "any" and
immediately before the word "computer", and by inserting the word "license"
immediately after the word "software" and immediately before the word
"included", without the deletion or modification of any other material.
I. Section 3.02(k) of the Purchase Agreement is hereby amended
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in its entirety to read as follows:
"(k) Except as permitted by the following proviso, each
Lease Contract is a lease contract having regular predetermined
equal
or decreasing rental payments due on a monthly basis (without
regard to any guaranteed purchase options of the respective
Lessee), that are not subject to change based upon a fluctuating
index or reference rate; provided, however, that: (i) not more
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than 20% of the Aggregate Discounted Lease Contract Balance may
be Deferred A Leases; (ii) not more than 15% of the Aggregate
Discounted Lease Contract Balance may be Deferred B Leases; (iii)
not more than 20% of the Aggregate Discounted Lease Contract
Balance may be Step A Leases; (iv) not more than 10% of the
Aggregate Discounted Lease Contract Balance may be Step B Leases;
(v) not more than 10% of the Aggregate Discounted Lease Contract
Balance may be Lease Contracts with regular Scheduled Payments
due less frequently than a monthly basis but not less frequently
than an annual basis; (vi) not more than 50% of the Aggregate
Discounted Lease Contract Balance may be Deferred A Leases,
Deferred B Leases, Step A Leases, Step B Leases and Lease
Contracts described in clause (v) hereof; (vii) with respect to
the Lease Contracts relating to any particular increase in the
aggregate outstanding principal balance of the Class A
Certificates and Class B Certificates, (A) the Aggregate
Discounted Lease Contract Balance of all Deferred B Leases
relating to such increase may not exceed 20% of the Aggregate
Discounted Lease Contract Balance of all Lease Contracts relating
to such increase, (B) the Aggregate Discounted Lease Contract
Balance of all Deferred A Leases, Deferred B Leases, Step A
Leases, Step B Leases and Lease Contracts described in clause (v)
hereof, relating to such increase, may not exceed 50% of the
Aggregate Discounted Lease Contract Balance of all Lease
Contracts relating to such increase, (C) the Aggregate Discounted
Lease Contract Balance of all Step A Leases and Step B Leases
relating to such increase may not exceed 30% of the Aggregate
Discounted Lease Contract Balance of all Lease Contracts relating
to such increase, and (D) the Aggregate Discounted Lease Contract
Balance of all Lease Contracts described in clause (v) hereof
relating to such increase may not exceed 15% of the Aggregate
Discounted Lease Contract Balance of all Lease Contracts relating
to such increase; and (viii) not less than 80% of the Aggregate
Discounted Lease Contract Balance shall consist of Lease
Contracts (A) under which at least one Scheduled Payment
(including, without limitation, any advance rental payment or
other initial up-front payment, or any billed payment) has been
made under such Lease Contract, in an
amount equal to the first "non-zero" payment thereunder, or (B)
which are in a deferral period (i.e., the most recent regular
Scheduled Payment thereunder is equal to zero)."
I. Section 3.02(t) of the Purchase Agreement is hereby amended
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in its entirety to read as follows:
"(t) Each Lease Contract involves the lease of tangible
personal property owned by Seller or the loan of money secured by
a security interest in tangible personal property owned by the
Lessee thereunder, except in the case of any transferable
computer software license covered thereby, for which Seller's or
such Lessee's interest is limited to a non-exclusive,
transferable license."
I. The first sentence of Section 3.02(ee) of the Purchase
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Agreement is hereby amended in its entirety to read as follows:
"(ee) Seller has good and legal title to each of the Lease
Contracts and either has good and legal title to the related
Equipment (except for any transferable computer software license
included therein, for which Seller's interest is limited to a non-
exclusive, transferable license) or a first priority security
interest in such Equipment, in all cases free and clear of any
encumbrances and adverse claims, except for the rights of the
Lessees in and to the Equipment that are expressed in and under
the Lease Contracts."
I. Section 3.02(tt) of the Purchase Agreement is hereby amended
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in its entirety to read as follows:
"(tt) After the transfer of the Lease Receivable with
respect to any Lease Contract to the Trust (and based upon the
Discounted Lease Contract Balances): (i) the Lessees with respect
to Equipment located in any single State will be obligated under
Lease Contracts accounting for no more than 10% of the Aggregate
Discounted Lease Contract Balance; provided, however, that
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Lessees with respect to Equipment located in the States of
California, New York, Florida or New Jersey, respectively, may in
each case be obligated with respect to Lease Contracts accounting
for no more than 25%, 20%, 15% and 15%, respectively, of the
Aggregate Discounted Lease Contract
Balance; (ii) Lease Contracts with respect to Equipment which
consists of computer hardware, transferable or non-transferable
software licenses or peripherals, will account for no more than
30% of the Aggregate Discounted Lease Contract Balance; provided,
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however, that such Lease Contracts with respect to Equipment
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consisting solely of transferable or non-transferable software
licenses will account for no more than 10% of the Aggregate
Discounted Lease Contract Balance; and (iii) Lease Contracts with
respect to Equipment sold by any one vendor will account for no
more than 10% of the Aggregate Discounted Lease Contract
Balance."
I. This Amendment may be executed in two or more counterparts which,
taken together, shall constitute a single agreement binding upon the parties
hereto. As hereby amended, the Purchase Agreement is ratified and affirmed by
the Seller and the Purchaser, all effective as of the date hereof.
ROCKFORD INDUSTRIES, INC.,
By: ______________________
Name:
Title:
ROCKFORD LIMITED I,
as Seller
By:_______________________
Name:
Title:
SUN AMERICA LIFE INSURANCE COMPANY,
as Purchaser
By:_______________________
Name:
Title:
(Signatures continued.)
(Signatures continued.)
CHASE BANK OF TEXAS, N.A.,
f/k/a Texas Commerce Bank National Association,
as Trustee and Back-up Servicer
By: ______________________
Name:
Title:
AGREED AND ACCEPTED:
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CAPITAL MARKETS ASSURANCE CORPORATION
By: ______________________
Name:
Title: