exv10w3






EXECUTION COPY




AMENDMENT NO. 1 TO BASE INDENTURE



THIS AMENDMENT NO. 1 TO BASE INDENTURE, dated as of November 18, 2005 (this “Amendment”),
is entered into by and among Cofina Funding, LLC (the “Issuer”), Cofina Financial, LLC (the
“Servicer”), Bank Hapoalim B.M. (the “Funding Agent”) and U.S. Bank National
Association, as Trustee (in such capacity, the “Trustee”). Capitalized terms used but not
defined herein have the meanings provided in the Indenture (defined below).




R E C I T A L S




     A. Reference is hereby made to (i) that certain Base Indenture, dated as of August 10, 2005
(the “Base Indenture”), between the Issuer and the Trustee, and that certain Series 2005-A
Supplement, dated as of August 10, 2005 (the “Series Supplement” and together with the Base
Indenture, the “Indenture”), (ii) that certain Servicing Agreement, dated as of August 10,
2005 (the “Servicing Agreement”), by and among the Issuer, the Servicer and the Trustee,
and (iii) that certain Omnibus Amendment and Agreement, dated as of August 30, 2005, among the
Issuer, the Servicer, the Guarantor, the Funding Agent and the Trustee.



     B. The parties hereto desire to enter into this Amendment to amend the Indenture as follows:



          1. The definition of “Required Spread Maintenance Reserve Amount” in Section 1.1 of the
Indenture is hereby amended and restated in its entirety as follows:





     “Required Spread Maintenance Reserve Amount” means, for each Settlement Period
(determined as of the last day of each Monthly Period), an amount equal to the sum of (I)
the sum for each Eligible Receivable at such time of the product of (a) the positive excess
(if any) of (A) the sum of 1.25% plus the Cost of Carry over (B) the interest rate for such
Receivable times (b) the Outstanding Balance of such Loan times (c) the remaining term to
maturity of such Loan, expressed in years and (II) the aggregate mark-to-market exposure of
the Issuer under all Interest Rate Hedge Agreements at such time as determined no less
frequently than on a monthly basis.



          2. The Granting Clause of the Indenture is hereby amended (i) to add “each Hedge Counterparty”
immediately after the phrase “the Noteholders, each ‘Indemnified Party’,” therein and (ii) to add
“each Interest Rate Hedge Agreement” after the phrase “the Issuer’s rights, powers and benefits,
but none of its obligations or burdens, under the Servicing Agreement,” therein.




          3. Section 5.4(c)(i)(2) of the Indenture is hereby amended to change the reference to “Spread
Maintenance Reserve Required Amount” to be a reference to “Required Spread Maintenance Reserve
Amount”.




 









 








          4. Section 5.4(c)(iii)(9) of the Indenture is hereby amended in its entirety to read as
follows:





(9) First, to each Interest Rate Hedge Provider on a pro rata basis (based on
amounts then due and payable under all Interest Rate Hedge Agreements), all
remaining amounts then due and payable under the related Interest Rate Hedge
Agreement (after giving effect to clause (5) above), if any, and, second, to a
subaccount of the Spread Maintenance Account, an amount equal to the mark-to-market
exposure under all Interest Rate Hedge Agreements at such time.



          5. Section 5.3(c) of the Indenture is hereby amended to add a new clause (iv) thereto:





(iv) Any amounts on deposit in the Spread Maintenance Account pursuant to Section
5.4(c)(iii)(9) shall be withdrawn from the Spread Maintenance Account by the Trustee
and applied to amounts otherwise payable under Section 5.4(c)(iii)(9) to the extent
amounts are not otherwise available therefor in accordance with the priority of
payments on the applicable Settlement Date.



          6. Section 5.3(b), Section 5.3(c), Section 5.3(d) and Section 5.3(e) of the Indenture are
hereby amended to delete the phrase “in the State of New York or in the city in which the Corporate
Trust Office is located,” in each such Section.




          7. Conditions Precedent. This Amendment shall become effective as of the date hereof
when the Funding Agent shall have received an original counterpart (or counterparts) of this
Amendment, executed and delivered by each of the parties hereto, or other evidence satisfactory to
the Funding Agent of the execution and delivery of this Amendment by such parties.




          8. Reaffirmation of Covenants, Representations and Warranties. Upon the effectiveness
of this Amendment, each of the Issuer, the Servicer and the Guarantor hereby reaffirms all
covenants, representations and warranties made in the Agreements and agrees that all such
covenants, representations and warranties shall be deemed to have been remade as of the effective
date of this Amendment (except for such representations and warranties that are limited by their
terms to an earlier date, in which case such representations and warranties shall speak of such
date).




          9. Representations and Warranties. Each of the Issuer, the Servicer and the Guarantor
hereby represents and warrants that (i) this Amendment constitutes a legal, valid and binding
obligation of such Person, enforceable against it in accordance with its terms, and (ii) upon the
effectiveness of this Amendment, no Event of Default shall exist under the Agreements.




          10. Effect of Amendment. Except as expressly amended and modified by this Amendment,
all provisions of the Agreements shall remain in full force and effect. After this Amendment
becomes effective, all references in each of the Agreements to “this Agreement”, “hereof”,
“herein”, or words of similar effect referring to such Agreement shall be deemed to be references
to the applicable Agreement as amended by this Amendment. This Amendment shall




 









 




not be deemed to expressly or impliedly waive, amend or supplement any provision of the
Agreements other than as set forth herein.




          11. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts, and each counterpart shall be deemed to be an original,
and all such counterparts shall together constitute but one and the same instrument.




          12. Governing Law. This Amendment shall be governed by, and construed in accordance
with the law of the State of New York (without reference to its conflict of law provisions other
than Section 5-1401 of the New York General Obligations Law).




          13. Section Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this Amendment, or the
Agreements or any provision hereof or thereof.




 









 





     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.



	 	 	 	 	 
	 	COFINA FUNDING, LLC

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



ACKNOWLEDGED AND AGREED TO:




	 	 	 	 	 
	COFINA FINANCIAL, LLC

 
	By:  	 	 
	Name:  	 	 
	Title:  	 	 
	 



AMENDMENT NO. 1 TO INDENTURE





 









 





	 	 	 	 	 
	BANK HAPOALIM B.M.

 
	By:  	 	 
	Name:  	 	 
	Title:  	 	 



	 	 	 	 	 
	By:  	 	 
	Name:  	 	 
	Title:  	 	 
	 



AMENDMENT NO. 1 TO INDENTURE