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Exhibit 10.4.1
FLOATING RATE MIDLAND RECEIVABLES-BACKED
VARIABLE FUNDING NOTES, SERIES 1999-A
FIRST AMENDMENT TO INDENTURE AND SERVICING AGREEMENT
This FIRST AMENDMENT, dated as of June 17, 1999 (this "Amendment"), is
executed by and among Midland Funding 98-A Corporation, as issuer (the
"Issuer"), Norwest Bank Minnesota, National Association, as trustee (in such
capacity, the "Trustee"), and as backup servicer (in such capacity, the "Backup
Servicer"), Midland Credit Management, Inc., as servicer (the "Servicer"), Asset
Guaranty Insurance Company, as note insurer (the "Note Insurer"), Banco
Santander, S.A., New York Branch (the "Initial Noteholder") and Xxxx & Co. (the
"Additional Noteholder").
RECITALS
WHEREAS, the Issuer, the Trustee, the Backup Servicer, the Servicer and
the Note Insurer are parties to an Indenture and Servicing Agreement dated as of
March 31, 1999 (the "Indenture and Servicing Agreement") relating to the
Floating Rate Midland Receivables-Backed Variable Funding Notes, Series 1999-A;
WHEREAS, the Initial Noteholder is the holder of the only Note issued
by the Issuer pursuant to the Indenture and Servicing Agreement on the date
hereof;
WHEREAS, the Additional Noteholder wishes to purchase a Note with a
Maximum Principal Amount of $15,000,000 pursuant to Section 6.03 of the
Indenture and Servicing Agreement;
WHEREAS, the Seller, the Servicer and Additional Noteholder have
requested that the Indenture and Servicing Agreement be amended as provided
herein in connection with such purchase;
WHEREAS, the parties hereto are willing to agree to such amendments on
the terms and conditions contained herein; and
WHEREAS, Section 12.01 of the Indenture and Servicing Agreement permits
amendment of the Indenture and Servicing Agreement on the terms and subject to
the conditions provided therein;
NOW THEREFORE, in consideration of the promises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Indenture and Servicing Agreement.
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SECTION 1. AMENDMENTS. Subject to the terms and conditions set forth
herein, the Indenture and Servicing Agreement is hereby amended as follows:
(a) The definition of "Funding Termination Event" is amended by
(i) deleting the word "or" at the end of paragraph (e)
thereof, (ii) deleting the period and inserting "; or" at the
end of paragraph (f) thereof and (iii) adding a new paragraph
(g) thereto to read follows:
(g) an Insurer Default shall have occurred and be continuing
on June 16, 2000.
(b) Section 2.04(l)(iv) is amended in its entirety to read as
follows:
(iv) (A) Each Pool consists solely of Receivables originated
by a single Originator under a single Major Card or Other
Card, and (B) the addition of the Receivables of any such Pool
to the Receivables then subject to this Agreement would not
cause the Funding Amount for all Receivables then subject to
this Agreement and acquired from any single Originator to
exceed an amount equal to 45% of the aggregate Funding Amount
for all Receivables then subject to this Agreement.
(c) Section 6.10(a) is amended by adding a new second sentence
thereto to read as follows:
Without limiting any other provision hereof, the commitments
of the Noteholders to make Fundings hereunder shall terminate
on June 16, 2000, provided that so long as no Funding
Termination Event shall have occurred and be continuing on
June 16, 2000, such commitments shall be automatically
extended to the Scheduled Termination Date.
SECTION 2. EFFECTIVENESS. This amendment provided for by this First
Amendment shall become effective as of the date hereof upon the occurrence of
each of the following events:
(a) the Trustee, the Seller, the Servicer and the Note
Insurer shall have received counterparts of this
First Amendment, duly executed by the parties hereto;
and
(b) the Trustee shall have furnished the Rating Agency
and the Placement Agent with written notification of
the substance of this First Amendment.
SECTION 3. REPRESENTATIONS. Each party hereto hereby represents and
warrants that this Amendment has been duly executed and delivered by such party
and constitutes the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms
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except as the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights and
remedies in general.
SECTION 4. REFERENCE. On and after the effective date of this
Amendment, each reference in the Indenture and Servicing Agreement to "this
Agreement", hereunder", "herein" or words of like import referring to the
Indenture and Servicing Agreement, and each reference in the other Transaction
Documents to the "Indenture and Servicing Agreement", "thereunder", "thereof" or
words of like import referring to the Indenture and Servicing Agreement shall
mean and be a reference to the Indenture and Servicing Agreement as amended by
this Amendment.
SECTION 5. COUNTERPARTS; EFFECTIVENESS; FULL FORCE AND EFFECT. This
Amendment may be executed by one or more of the parties to this Amendment on any
number of separate counterparts (including by facsimile transmission), and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A copy of this Amendment signed by all the parties shall be
lodged with the Trustee. Except as expressly set forth herein, the terms,
provisions and conditions of the Indenture and Servicing Agreement and the other
Transaction Documents shall remain in full force and effect and in all other
respects are hereby ratified and confirmed.
SECTION 6. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
SECTION 7. NOTE INSURER CONSENT AND REPRESENTATION. This Amendment is
not evidence of any position by the Note Insurer, affirmative or negative, as to
whether action by the holders of the Notes or any other party is required in
addition to the execution of this Amendment by the Note Insurer. No
representation is made by the Note Insurer as to the necessity for or the
satisfaction of any additional consent requirements with respect to the
provisions of the Indenture or otherwise. The Note Insurer represents and
warrants that the Policy is in effect in accordance with its terms on the date
hereof.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in the Indenture
and Servicing Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
MIDLAND FUNDING 98-A CORPORATION,
as Issuer
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: President
MIDLAND CREDIT MANAGEMENT, INC.
as Servicer
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
and as Backup Servicer
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice President
ASSET GUARANTY INSURANCE COMPANY
By:
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Name: Xxxxx Xxxxxx
Title: Vice President
BANCO SANTANDER, S.A.,
NEW YORK BRANCH
By:
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Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
MIDLAND FUNDING 98-A CORPORATION,
as Issuer
By:
------------------------------------------------
Name:
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Title: President
MIDLAND CREDIT MANAGEMENT, INC.
as Servicer
By:
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Name:
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Title: President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
and as Backup Servicer
By:
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Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice President
ASSET GUARANTY INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
BANCO SANTANDER CENTRAL
HISPANO, S.A., NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President and Manager
XXXX & CO.
By: /s/ Xxxxxxxxxx X. May
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Name: XXXXXXXXXX X. MAY
Title: VICE PRESIDENT
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