EXHIBIT 10.42
FIRST AMENDMENT
TO
AMENDED, RESTATED AND CONSOLIDATED
POOLING AND SERVICING 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" or "Servicer"), CHASE BANK OF TEXAS, N.A.,
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f/k/a Texas Commerce Bank National Association (the "Trustee" or "Back-up
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Servicer") and SUN AMERICA LIFE INSURANCE COMPANY, an Arizona corporation
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("SunAmerica") to the Amended, Restated and Consolidated Pooling and Servicing
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Agreement, dated as of August 28, 1997, by and among the Seller, Rockford,
Trustee and SunAmerica (as amended to date, the "Pooling and Servicing
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Agreement"). Capitalized terms used in this Agreement, and not defined herein,
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shall have the respective definitions provided in the Pooling and Servicing
Agreement.
The Seller, Rockford, Trustee and SunAmerica agree that it is in
their mutual interests to modify the Pooling and Servicing Agreement as follows:
NOW, THEREFORE, it is agreed:
1. In Section 1.01 of the Pooling and Servicing Agreement, the
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definition of "Defaulted Lease Contract" is hereby amended in its entirety to
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read as follows:
"Defaulted Lease Contract" shall mean a Lease Contract
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then constituting part of the Trust Assets as to which Servicer
has reasonably determined, in accordance with its customary
servicing procedures, that it shall not make a Servicer Advance
or that a prior Servicer Advance is unrecoverable; provided,
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however, that each Lease Contract then constituting part of the
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Trust Assets as to which the Lessee thereunder is delinquent in
any portion of the Scheduled Payments for a period of 121 days
or more shall automatically be deemed a Defaulted Lease
Contract; and provided, further, however, that any Lease
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Contract that becomes a Defaulted Lease Contract while it was a
part of the Trust Assets shall at all times remain a Defaulted
Lease Contract for purposes of this Agreement, notwithstanding
that such Lease Contract is subsequently repurchased by the
Seller for any reason whatsoever.
2. In Section 1.01 of the Pooling and Servicing Agreement, the
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definition of "Default Charge-off Ratio" is hereby amended by deleting the "(d)"
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after the words "divided by" and before the word "three", without the deletion
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or modification of any other material.
3. In Section 1.01 of the Pooling and Servicing Agreement, the
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definition of "Equipment" is hereby amended in its entirety to read as
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follows:
"Equipment" shall mean all equipment and/or other personal
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property (including, without limitation, Vehicles and
transferable computer software licenses) leased pursuant to or
otherwise covered by a Lease Contract, but excluding any non-
transferable computer software licenses covered thereby.
4. In Section 1.01 of the Pooling and Servicing Agreement, the
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definition of "Pre-Default Contract" is hereby amended in its entirety to read
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as follows:
"Pre-Default Contract" shall mean a Lease Contract as to
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which the Lessee thereunder is delinquent in any portion of the
Scheduled Payments for a period of more than 90 days but less
than 121 days.
5. In Section 1.01 of the Pooling and Servicing Agreement, the
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following new definition is hereby added immediately after the definition of
"Seller Certificate" and immediately before the definition of "Servicer":
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"Seriously Delinquent Contract" shall mean a Lease
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Contract as to which the Lessee thereunder is delinquent in any
portion of the Scheduled Payments for a period of more than 60
days but less than 91 days.
6. Section 2.01(d) of the Pooling and Servicing Agreement is
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amended by deleting the word "the" before the word "Equipment" in the eighth,
ninth and tenth lines thereof, and inserting the word "such" in its place in
each such line, without the deletion or modification of any other material.
7. The first sentence of Section 2.01(g) of the Pooling and
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Servicing Agreement is hereby amended in its entirety to read as follows:
"(g) Except as otherwise provided in and subject to
Section 12.14 hereof, the parties hereto acknowledge that each
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transfer of
Trust Assets to the Trust is intended to be (i) a sale of such
Trust Assets (other than the Equipment) and not a loan, and
(ii) a grant or assignment of a valid first priority perfected
security interest in the Equipment (except, with respect to
perfection in such Equipment, as set forth in the proviso in
Section 2.01(d)), free and clear of all Liens, from Seller to
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the Trust and that the Trust Assets not be part of the estate
of Seller in the event of an insolvency or bankruptcy of
Seller."
8. Section 2.03(d) of the Pooling and Servicing Agreement is
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hereby amended to read in its entirety as follows:
"(d) With respect to any Lease Contract to be prepaid or
terminated early at the request of the Lessee, Seller shall be
entitled either (i) to purchase such Lease Contract and the
related Equipment for an amount equal to the sum of (A) the
Repurchase Price with respect to such Lease Contract, plus (B)
the applicable Prepayment Fee therefor, which Seller shall
deposit in the Investment Account on or before 3:00 p.m. New
York time on the Tuesday or Thursday next succeeding the date
of such prepayment or early termination, whichever day shall
occur first (or if such Tuesday or Thursday is not a Business
Day, on the Business Day immediately following such day), or
(ii) to deliver a Substitute Lease Contract therefor meeting
the Substitution Criteria; provided, however, that subject to
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Section 2.03(g) hereof the cumulative Discounted Lease Contract
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Balance of all such Lease Contracts that are substituted for by
Seller hereunder (measured as of the date of such substitution)
shall not exceed 5.0 % of the Initial Aggregate Certificate
Principal Balance (measured as of the date of such
substitution); and provided, further, however, that subject to
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Section 2.03(g) hereof the cumulative Discounted Lease Contract
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Balance of all Delinquent Lease Contracts, Seriously Delinquent
Contracts and Pre-Default Contacts that constitute prepaid or
early-terminated Lease Contracts that are purchased or
substituted for by Seller hereunder (measured as of the date of
such purchase or substitution) shall not exceed 1.0% of the
Initial Aggregate Certificate Principal Balance (measured as of
the date of such purchase or substitution)."
9. Section 2.03(g) of the Pooling and Servicing Agreement is
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hereby amended to read in its entirety as follows:
"(g) In addition to the repurchase of Lease Contracts to
be prepaid or terminated early at the request of the Lessee
under Section 2.03(d) hereof, and notwithstanding any
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limitation on the repurchase of Lease Contracts by Seller
thereunder, Seller at any time shall be entitled to repurchase
any Lease Contract, together with the related Equipment, for an
amount equal to the sum of (i) the Repurchase Price with
respect to such Lease Contract, plus (ii) the applicable
Prepayment Fee therefor; provided, however, that (A) such Lease
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Contract first became part of the Trust Assets hereunder at
least sixty (60) days prior to the date of such repurchase, and
(B) the aggregate Repurchase Price of all Lease Contracts
repurchase by Seller under this Section 2.03(g) during any
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consecutive 12-month period shall not exceed $2,500,000. Seller
shall deposit such Repurchase Price in the Investment Account
on or before 3:00 p.m. New York time on the Tuesday or Thursday
next succeeding the date of such repurchase, whichever day
shall occur first (or if such Tuesday or Thursday is not a
Business Day, on the Business Day immediately following such
day)."
10. Section 2.04(a) of the Pooling and Servicing Agreement is
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hereby amended in its entirety to read as follows:
"(a) Seller shall be entitled to obtain a release from the
lien of this Agreement for any Lease Contract and the related
Equipment at any time: (i) after a payment by Rockford of the
Purchase Amount of the Lease Contract; (ii) after a Substitute
Lease Contract is substituted for such Lease Contract, in
accordance with Section 2.03(b)(ii) or Section 2.03(d) and
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Section 2.03(e) hereof; (iii) upon the repurchase of a Lease
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Contract by Seller under Section 2.03(d) or Section 2.03(g)
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hereof; or (iv) upon the termination of a Lease Contract
following the sale, lease or other disposition of the related
Equipment; provided, however, that, in each case, Seller first
delivers to Trustee and the Controlling Party an Officer's
Certificate (A) identifying the Lease Receivable and the
related Lease Contract and Equipment to be released, (B)
requesting the release thereof, (C) certifying that the
requirements of Section 2.03(b)(ii), Section 2.03(d) or Section
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2.03(g), as the case may be, and Section 2.03(e) hereof have
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been satisfied, in the event such Lease Contract and Equipment
are being transferred and assigned the pursuant to clause (ii)
hereof, (D) setting forth the amount deposited in the
Investment Account with respect thereto, in the event a Lease
Contract and the
related Equipment are being released from the lien of this
Agreement pursuant to clause (i) and (iii) hereof, and (E)
certifying that the amount deposited in the Investment Account
with respect to such Lease Contract equals (1) the Purchase
Amount of the Lease Contract, in the event the release of such
Lease Contract and related Equipment pursuant to clause (i)
hereof, or (2) equals the entire amount of Recoveries or
Residual Proceeds received with respect to such Lease Contract
and related Equipment, in the event of a release from the lien
of this Agreement pursuant to clause (iii) hereof; provided,
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however, that upon the termination of any Lease Contract, any
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Residual Proceeds from the related Equipment shall be placed in
the Investment Account prior to Trustee or Seller releasing
such Equipment from the security interest granted to Trustee by
Seller pursuant to this Agreement and prior to Seller
transferring and assigning such Lease Contract and related
Equipment to Rockford pursuant to the Equipment and Lease
Purchase Agreement."
11. The second sentence of Section 3.01(f) of the Pooling and
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Servicing Agreement is hereby amended in its entirety to read as follows:
"Servicer shall not consent to any amendment to any Lease
Contract which (a) would reduce, forgive, discharge or satisfy
any Scheduled Payments, defer the payment of any principal or
interest or any Scheduled Payment, reduce the Discounted Lease
Contract Balance or extend the term thereof, in any manner
that, in any such case, would prevent the complete amortization
of the Discounted Lease Contract Balance thereof from occurring
later than three (3) months after its original stated term, or
(b) would result in such Lease Contract, as so amended or
supplemented, no longer being an Eligible Lease Contract;
provided, however, that the cumulative Discounted Lease
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Contract Balance of the Lease Contracts with respect to which
Servicer agrees to any such amendment shall not exceed 1% of
the Initial Aggregate Certificate Principal Balance."
12. Section 4.06(a) of the Pooling and Servicing Agreement is
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hereby amended by: (a) inserting the words "and/or Section 2.03(g) hereof"
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immediately after the words "Section 2.03(d)" and immediately before the
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semicolon and the word "provided" in the eleventh line thereof, without the
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deletion or modification of any other material; and (b) by inserting the
parenthetical and words "(other than a Servicer Default described in Section
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9.01(o) hereof)" immediately after the word "Default" and before the comma and
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the words "the Class A" in the thirteenth line thereof, without the deletion
or modification of any other material.
13. Section 4.06(b) of the Pooling and Servicing Agreement is
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hereby amended by inserting the words "and/or Section 2.03(g) hereof"
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immediately after the words "Section 2.03(d)" and immediately before the
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semicolon and the word "provided", without the deletion or modification of any
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other material.
14. Section 4.08(b)(iii) of the Pooling and Servicing Agreement is
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hereby amended by deleting the words "specified for such purpose", without the
deletion or modification of any other material.
15. Section 4.08(b)(xii) of the Pooling and Servicing Agreement is
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hereby amended by inserting the words "(by wire transfer of funds or ACH
transfer)" immediately after the word "Bank" and immediately before the comma
and the words "the amount", without the deletion or modification of any other
material.
16. Section 5.01(c) of the Pooling and Servicing Agreement is
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hereby amended by deleting the words "4.08(b)(xv)" and inserting the words
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"4.08(b)(xiv)" in their place, without the deletion or modification of any
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other material.
17. Section 9.01(g) of the Pooling and Servicing Agreement is
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hereby amended by inserting the words "(after giving effect to all Recoveries
with respect thereto)" immediately after the word "Balances" and immediately
before the word "exceeding", without the deletion or modification of any other
material.
18. Section 9.01(i) of the Pooling and Servicing Agreement is
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hereby amended in its entirety to read as follows:
"(i) there shall at any one time be (i) Seriously
Delinquent Lease Contracts with Discounted Lease Contract
Balances exceeding in the aggregate 2.5% of the Aggregate
Discounted Lease Contract Balance, or (ii) Pre-Default Lease
Contracts with Discounted Lease Contract Balances exceeding in
the aggregate 1% of the Aggregate Discounted Lease Contract
Balance;"
19. Section 9.01(k) of the Pooling and Servicing Agreement is
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hereby amended in its entirety to read as follows:
"(k) there shall be a downgrading of the rating of the
Class A Certificates by any Rating Agency other than solely as
the result of the downgrading of the credit of the Bond
Insurer;"
20 Section 9.01(l) of the Pooling and Servicing Agreement is
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hereby amended by deleting the word "or", without the deletion or modification
of any other material.
21. In Section 9.01 of the Pooling and Servicing Agreement the
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following new Sections 9.01(n) and 9.01(o) are hereby added immediately after
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Section 9.01(m) and immediately before the words "(provided, however":
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"(n) Trustee shall make a claim under the Policy in
accordance with Section 4.10(a) hereof; or
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(o) there shall be a downgrading of the rating of the Class A
Certificates by any Rating Agency solely as the result of the downgrading of
the credit of the Bond Insurer."
22. 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 Pooling and Servicing Agreement is
ratified and affirmed by the Seller, the Servicer, the Trustee and Back-up
Servicer and SunAmerica, all effective as of the date hereof.
ROCKFORD INDUSTRIES, INC.,
as Servicer
By: ______________________________________________________
Name:
Title:
ROCKFORD LIMITED I,
as Seller
By: _______________________________________________________
Name:
Title:
SUNAMERICA LIFE INSURANCE COMPANY
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: