EXHIBIT 10.15(d)
This Amendment No. 3 to Indenture and Servicing Agreement, dated as of
December 21, 1999 (this "Amendment No. 3"), is executed by and among Creditrust
SPV98-2, LLC, 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"), Creditrust Corporation,
individually ("Creditrust") and as servicer (the "Servicer") and Asset Guaranty
Insurance Company, as note insurer (the "Note Insurer").
RECITALS
WHEREAS, the parties hereto have executed and delivered an Indenture and
Servicing Agreement (the "Indenture") dated as of December 1, 1998, by and among
the Issuer, the Trustee and Backup Servicer, the Servicer and the Note Insurer,
as amended by Amendment No. 1 dated as of February 16, 1999 and Amendment No. 2
dated as of June 1, 1999, in connection with the issuance and sale by the Issuer
of the 8.61% Creditrust Receivables-Backed Notes, Series 1998-2;
WHEREAS, subject to the terms and conditions hereof, the parties hereto and
the Noteholders have agreed to amend the Indenture to make the modifications
provided for herein; and
WHEREAS, the parties hereto have obtained the consent (the "Consent") of
the Noteholders evidencing not less than 66 2/3% of the Voting Interests, and
the Trustee has furnished to the Rating Agency and the Placement Agent written
notification of the substance of this Amendment No. 3 and the Consent.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties and the
Noteholders to the extent provided herein:
ARTICLE I
DEFINITIONS; AMENDMENTS; TRUSTEE COVENANT
SECTION 1.1. Definitions. Any capitalized term used herein but not
defined herein shall have the meaning ascribed to it in the Indenture.
SECTION 1.2. Definition of Net Proceeds. Section 1.01 of the Indenture is
hereby amended by changing the definition of Net Proceeds to read in its
entirety as follows:
"Net Proceeds" means (i) with respect to a Receivable, all monies in
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available funds collected, received or otherwise recovered from or for the
account of the related Obligor on such Receivable and (ii) an amount equal
to seventy percent (70%) of all monies deposited into the Collection
Account in connection with the assignment, sale, transfer or conveyance of
a Receivable by the Issuer in connection with the sale of Receivables
permitted pursuant to Section 1.3 of Amendment No. 3 to this Indenture
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(each a "Specified Receivable"); provided, however, that solely with
respect to the definition of Servicing Fee in this Section 1.01, monies
described in the foregoing clause (ii) shall not constitute Net Proceeds;
provided, further, however, that solely with respect to the definition of
Available Funds in this Section 1.01, one hundred percent (100%) of the
monies described in the foregoing clause (ii) shall constitute Net
Proceeds. Third-Party Fees and court costs incurred in connection with
collecting a Receivable (other than a Specified Receivable) will be
deducted from collections on such Receivable by such third parties or by
the Servicer on their behalf and will not constitute Net Proceeds.
SECTION 1.3. Disposition of Receivables.
Notwithstanding anything to the contrary in this Indenture or in any other
Transaction Document, the assignment, sale, transfer and conveyance of any of
the Receivables identified by the Servicer or the Issuer to the Trustee and the
Controlling Party for sale pursuant to this Section 1.3, including all property
and rights described in Section 2.01(b) of the Indenture which are related to
such Receivables (the "Sold Receivables") shall be permitted to occur under the
Indenture and the other Transaction Documents, provided that the following
conditions are satisfied:
(a) the Controlling Party shall have given its prior written consent to
the terms and conditions of each such sale, including but not limited to the
total purchase price payable by the purchaser of such Receivables (the "Purchase
Price"), which consent shall be based upon its investigation of the facts and
circumstances relating to such sale, which the Servicer and the Issuer agree to
facilitate by way of production of any information relating to such sale
reasonably requested by the Controlling Party, including without limitation any
and all information distributed to prospective purchasers of such Sold
Receivables, the sales price paid by Creditrust for such Receivables and the
identity of such prospective purchasers, and shall not be unreasonably withheld;
(b) In connection with the sale of the Sold Receivables, the Issuer
deposits or causes to be deposited into the Collection Account (for application
in accordance with Sections 4.03(b) and 4.04(b) of the Indenture) an amount
which is not less than the Purchase Price; and
(c) The purchaser of the Sold Receivables has agreed that it has no
recourse to Issuer with respect to the Sold Receivables and that it is
purchasing such Receivables "as is, where is" and without the benefit of any
representation or warranty whatsoever by or on behalf of the Issuer, except as
to Issuer's title to the Sold Receivables and as to the absence of any lien
thereon created by Issuer.
SECTION 1.4. Section 8.01(g) and Schedule B Amendments.
(a) Section 8.01(g) is hereby amended to read as follows:
"(g) On June 30, 1999, then on March 31, 2000, and then on the last
day of each June and December thereafter, the cumulative amount of Net Proceeds
in respect of all
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Receivables from the Closing Date to such date is less than the amounts
specified in Schedule B;"
(b) Schedule B is hereby amended by deleting the date "December 1999" and
the Minimum Cumulative Net Proceeds amount related thereto, and inserting in
place thereof the date "March 2000" and a Minimum Cumulative Net Proceeds amount
opposite March 2000 of $23,433,027.
SECTION 1.5. Release.
Upon any assignment, sale, transfer or conveyance of the Sold Receivables
by the Issuer in accordance with this Amendment No. 3, receipt by the Trustee in
the Collection Account of an amount at least equal to the Purchase Price, and
upon written instructions from the Issuer to the Trustee ordering the release of
the security interest, the Trustee on behalf of the Noteholders and the Note
Insurer shall, without further action, be deemed to have released its security
interest in, to and under such Sold Receivables and all monies due or to become
due with respect thereto after the date of the assignment, sale, transfer or
conveyance, and all proceeds thereof, but the Trustee does not release and
expressly reserves its security interest in and to the Purchase Price. The
Trustee shall execute such documents and instruments and take such other actions
as shall be reasonably requested by the Issuer to effect the security interest
release pursuant to this Section 1.5. The Trustee shall not have any duty or
obligation to monitor the requirements related to the assignment, sale, transfer
or conveyance of the Sold Receivables and the release of the security interest
related thereto and shall have no liability to any party with regard to such
sale or release.
SECTION 1.6. Inspection Right; Termination of Servicing.
(a) The Indenture is amended by inserting the following Section 11.11
after the conclusion of Section 11.10 thereof:
"Section 11.11. Inspection. In addition to, and not by
way of limitation of, any other rights of the Controlling
Party hereunder or under the other Transaction Documents,
each of the Issuer and the Servicer shall permit the
Controlling Party, or any representative thereof, at its
expense and upon prior written notice to the Issuer or
Servicer (as the case may be), to visit and inspect any of
the properties of the Issuer or the Servicer (as the case
may be), to examine all of its books of account, records,
reports, and other papers, to make copies and extracts
therefrom and to discuss its affairs, finances (including
liquidity position) and accounts with its officers,
employees, and independent public accountants (and by this
provision each of the Issuer and the Servicer authorizes
said accountants to discuss the finances and affairs of the
Issuer or the Servicer), all at such reasonable times and as
often as may be reasonably requested. All information
obtained by the Controlling
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Party, or its representative, whether pursuant to this
Section 11.11 or otherwise, shall be maintained by the
Controlling Party, or its representative, as applicable, in
confidence and shall not be disclosed to any other Person
(other than any agents, consultants, attorneys or
accountants of such Person, any assignee or participant or
potential assignee or participant of such Person, any rating
agency rating the Notes or the indebtedness, claims paying
ability or financial strength of such Person, or any
reinsurer or potential reinsurer of such Person), unless
such disclosure is ordered by a court of applicable
jurisdiction."
By executing this Amendment No. 3 below, Creditrust, in its individual capacity,
agrees that in the event it is no longer the Servicer, but only until one year
and one day after the Note Balance is paid in full, the foregoing Section 11.11
shall apply with equal force to Creditrust in its individual capacity as if it
were the "Servicer" as set forth in the foregoing Section 11.11.
(b) Sections 8.02 and 8.03 of the Indenture are hereby amended to
read as follows:
"Section 8.02 Consequences of a Servicer Default; Other
Termination of Servicing.
(a) If a Servicer Default shall occur and be
continuing, so long as such Servicer Default has not been
cured or waived pursuant to Section 8.05, the Trustee shall,
upon the direction of the Controlling Party, and may (with
the written consent of the Controlling Party), at its
discretion, by notice then given in writing to the Servicer
and the Note Insurer (a "Servicing Termination Notice")
terminate all (but not less than all) of the rights and
obligations of the Servicer, as Servicer under this
Agreement and the other Transaction Documents, and in and to
the Receivables and proceeds thereof. In addition, the
rights and obligations of the Servicer shall automatically
terminate upon the last day of each calendar month, unless
the Servicer is appointed in writing by the Controlling
Party for the successive monthly period. On or after the
receipt by the Servicer of a Servicing Termination Notice,
or, if earlier, upon the automatic termination of the rights
and obligations of the Servicer in accordance with the terms
of the next preceding sentence, all authority and power of
the Servicer under this Agreement, whether with respect to
the Notes, the Receivables, the Transaction Documents or
otherwise, shall, without further action, pass to and be
vested in the Backup Servicer pursuant to and under this
Section or such Successor Servicer as may be appointed under
Section 8.03; and, without limitation, the Backup Servicer
or such Successor Servicer shall be
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hereby authorized and empowered to execute and deliver, on
behalf of the predecessor Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or
otherwise. The predecessor Servicer shall cooperate with the
Backup Servicer or the Successor Servicer, as applicable, in
effecting the termination of the responsibilities and rights
of the predecessor Servicer under this Agreement, including,
without limitation, the transfer to the Backup Servicer or
the Successor Servicer, as applicable, for administration by
it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit with respect to the
Receivables, or have been deposited by the predecessor
Servicer in the Accounts with respect to the Receivables or
thereafter received by the predecessor Servicer with respect
to the Receivables. All reasonable costs and expenses
(including attorneys' fees) incurred in connection with
transferring the Receivable Files to the Backup Servicer or
the Successor Servicer, as applicable, and amending this
Agreement to reflect such succession as Servicer pursuant to
this Section shall be paid first, pursuant to Section
4.04(b)(ii), and second, by the predecessor Servicer upon
presentation of reasonable documentation for such costs and
expenses; provided, however, that the amount of such costs
and expenses shall not exceed $75,000 (the amount of such
costs and expenses are referred to herein as the "Transition
Fees").
(b) In addition to the provisions set forth in clause
(a) above, and not by way of limitation of any remedies to
which any of the Trustee, the Note Insurer or the
Noteholders are entitled upon the occurrence of a Servicer
Default, the Issuer and the Servicer acknowledge and agree
that, so long as a Servicer Default shall occur and be
continuing, and such Servicer Default has not been cured or
waived pursuant to Section 8.05, or, if earlier, upon the
automatic termination of the rights and obligations of the
Servicer in accordance with the terms of clause (a) above,
the Trustee shall, upon the direction of the Controlling
Party and may (with the written consent of the Controlling
Party), at its discretion, by notice then given in writing
to the Servicer and the Note Insurer, direct the Servicer
(or Backup Servicer or Successor Servicer as the case may
be) to (x) deposit all checks and other items of collections
received in respect of Receivables directly into an Account
immediately upon receipt, and/or (y) instruct each
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Obligor to remit all collections in respect of receivables
directly to an Account designated for such purpose.
Section 8.03 Backup Servicer to Act; Appointment of
Successor Servicer.
On and after the time the Servicer receives a Servicing
Termination Notice pursuant to Section 8.02 or tenders its
resignation pursuant to Section 7.05, or, if earlier, on and
after the automatic termination of the rights and
obligations of the Servicer in accordance with the terms of
Section 8.02(a) above, the Backup Servicer shall, by an
instrument in writing, assume the rights and
responsibilities of the Servicer in its capacity as Servicer
under this Agreement and the Insurance Agreement and the
transactions set forth or provided for in this Agreement and
the Insurance Agreement, and shall be subject to all the
responsibilities, restrictions, duties and liabilities
relating thereto placed on the Servicer by the terms and
provisions of this Agreement and the Insurance Agreement;
provided, however, that the Backup Servicer shall not be
liable for any acts, omissions or obligations of the
Servicer prior to such succession or for any breach by the
Servicer of any of its representations and warranties
contained in this Agreement, in the Insurance Agreement or
in any related Transaction Document. As compensation
therefor, the Backup Servicer shall be entitled to such
compensation (whether payable out of the Collection Account
or otherwise) as the Servicer would have been entitled to
under this Agreement, plus any additional amounts determined
in the manner set forth below, if no such notice of
termination or resignation had been given. Notwithstanding
anything herein to the contrary, Norwest Bank Minnesota,
National Association shall not resign from the obligations
and duties imposed on it as Backup Servicer under this
Agreement except upon determination that the performance of
its duties under this Agreement shall no longer be
permissible under applicable law. Notice of any such
determination permitting the resignation of Norwest Bank
Minnesota, National Association shall be communicated to the
Trustee, the Noteholders, the Note Insurer, and the Rating
Agency at the earliest practicable time and any such
determination shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee and the Noteholders
concurrently with or promptly after such notice. In the
event the Backup Servicer is unable or unwilling so to act,
it shall appoint or petition a court of competent
jurisdiction to appoint any established institution having a
net worth of not less than $50,000,000 and whose regular
business includes the servicing of
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consumer receivables as a successor servicer. In connection
with such appointment and assumption, or the assumption by
the Backup Servicer of the status of Successor Servicer, the
Backup Servicer may make such arrangements for the
compensation of such Successor Servicer (including itself)
out of payments on or in respect of the Receivables as
provided in the second sentence following this sentence. Any
Successor Servicer appointed pursuant to this Section 8.03
must have, and must certify that it has, the experience and
ability to service the Receivables in accordance with the
obligations of the Servicer hereunder, and the ability to
make the same relevant representations regarding the
servicing of the Receivables as the Servicer makes
hereunder, including being Year 2000 Compliant. The
Successor Servicer shall be entitled to compensation equal
to the greater of (A) the Servicing Fee and (B) the current
"market rate" paid for servicing receivables similar to the
Receivables which rate shall be determined by averaging bids
obtained from not less than three entities experienced in
the servicing of receivables similar to the Receivables and
that are not Affiliates of the Trustee, the Backup Servicer,
the Servicer or the Issuer or the Note Insurer and are
reasonably acceptable to the Note Insurer; provided however,
that no such compensation shall be in excess of an amount
acceptable to the Controlling Party and the Rating Agency
and provided that if the Successor Servicer is an Affiliate
of the Trustee, such fees will not exceed the greater of the
Servicing Fee or the lowest of the three bids obtained as
provided in this sentence. The Backup Servicer and such
Successor Servicer shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such
succession. The Backup Servicer shall not be relieved of its
duties as Successor Servicer under this Section until the
newly appointed Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer under this
Agreement.
(c) Section 9.01(c) of the Indenture is hereby amended to read
as follows:
(i) (A) prior to the occurrence of a Servicer Default
actually known to a Responsible Officer of the Trustee, if
any, and after the curing or waiving of all such Servicer
Defaults that may have occurred, or (B) prior to the
occurrence of the automatic termination of the rights and
obligations of the Servicer pursuant to Section 8.02, the
duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of
such
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duties and obligations as are specifically set forth in this
Agreement, no implied rights or obligations shall be read
into this Agreement against the Trustee, the permissive
right of the Trustee to do things enumerated in this
Agreement shall not be construed as a duty and, in the
absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(d) Section 9.04(a) of the Indenture is hereby amended to read
as follows:
(v) (A) prior to the occurrence of a Servicer Default
(actually known to a Responsible Officer of the Trustee), if
any, and after the curing or waiving of all Servicer
Defaults that may have occurred, or (B) prior to the
occurrence of the automatic termination of the rights and
obligations of the Servicer pursuant to Section 8.02, the
Trustee shall not be bound to make any investigation into
the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document,
unless requested in writing to do so by the Note Insurer or
the Noteholders evidencing not less than 25% of the Voting
Interests; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded
to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such cost, expense or
liability as a condition to so proceeding; the reasonable
expense of every such examination shall be paid by the
Issuer or, if paid by the Trustee, shall be reimbursed by
the Issuer upon demand; and nothing in this clause shall
derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information
regarding the Obligors; and
SECTION 1.7. Trustee Covenant. In accordance with Section 11.01(d) of the
Indenture, the Trustee hereby agrees and covenants to furnish, promptly after
the execution of this Amendment No. 3, written notification of the substance of
this Amendment No. 3 and the Consent to each of the Noteholders.
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ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2.1. Amendment. This Amendment No. 3 shall only be amended in the
same manner as the Indenture shall be amended.
SECTION 2.2. Entire Agreement; Effect. This Amendment No. 3, together
with the Transaction Documents, is intended by the parties to and does
constitute the entire agreement of the parties with respect to the transaction
contemplated hereunder. This Amendment No. 3 supersedes any and all prior
understandings concerning the terms hereof, however it does not alter, amend or
waive any of the terms or provisions of the Indenture except for those terms or
provisions expressly amended hereby.
SECTION 2.3. Governing Law. This Amendment No. 3 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 Amendment No. 3 shall
be determined in accordance with such laws, including Section 5-2402 of the
General Obligation Law of New York, but otherwise without regard to conflict of
laws provisions.
SECTION 2.4. Severability of Provisions; Counterparts. If any one or more
of the covenants, agreements, provisions or terms of this Amendment No. 3 shall
be for any reason whatsoever held invalid or unenforceable in any jurisdiction,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Amendment
No. 3 and shall in no way affect the validity or enforceability of the other
provisions of this Amendment No. 3 or the Notes, or the rights of the
Noteholders. This Amendment No. 3 may be executed simultaneously in any number
of counterparts, each of which shall be deemed to be an original, and all of
which shall constitute but one and the same instrument.
SECTION 2.5. Note Insurer. This Amendment No. 3 is not evidence of any
position by the Note Insurer, affirmative or negative, as to whether action by
the Noteholders, or any other party, is required in addition to the execution of
this Amendment No. 3 by the Note Insurer. No representation is made by the Note
Insurer as to the necessity for or the satisfaction of any additional action or
condition under the Indenture with respect to the amendment thereof. This
Amendment No. 3 does not modify the obligations of the Note Insurer under the
Policy as set forth therein.
SECTION 2.6. Conditions Precedent. This Amendment No. 3 shall become
effective as of December 21, 1999 upon the satisfaction of the following
conditions precedent:
(a) The Note Insurer shall have received:
(i) fully executed counterparts of this Amendment No. 3 (which may be
by facsimile); and
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(ii) a favorable supplemental opinion of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
LLP, special counsel to the Issuer and the Servicer, covering the
validity, legality and enforceability of this Amendment No. 3 and
certain bankruptcy-remoteness matters, all in form and substance
reasonably satisfactory to the Note Insurer and the Note
Insurer's counsel; and
(b) No event or condition has occurred and is continuing, or would result
from the execution, delivery or performance of this Amendment No. 3, that would
constitute an Event of Default or a Servicer Default.
SECTION 2.7. Representations, Warranties and Covenants. Upon the
effectiveness of this Amendment No. 3, each of the Issuer and the Servicer
hereby remakes and reaffirms all covenants, representations and warranties made
by it in the Indenture (except, in each case, to the extent that such covenants,
representations or warranties expressly speak as to another date).
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to be duly
executed by their respective officers as of the day and year first above
written.
CREDITRUST SPV98-2, LLC,
as Issuer
By: _______________________________________
Xxxxxx X. Xxxxxx
President
CREDITRUST CORPORATION,
as Servicer
By: _______________________________________
Xxxxxx X. Xxxxxx
Chairman and
Chief Executive Officer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity,
but solely as Trustee and as Backup Servicer
By: _______________________________________
Xxxxx X. Xxxxx
Corporate Trust Officer
ASSET GUARANTY INSURANCE
COMPANY
By: _______________________________________
Xxxxxx X. Xxxxxxx
Senior Vice President
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CONSENT TO AMENDMENT NO. 3
The undersigned is a Noteholder under a certain Indenture and Servicing
Agreement (the "Indenture") dated as of December 1, 1998, among Creditrust
SPV98-2, LLC, 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"), Creditrust Corporation, as
servicer (the "Servicer") and Asset Guaranty Insurance Company, as note insurer
(the "Note Insurer"), as amended by Amendment No. 1 dated as of February 16,
1999 and Amendment No. 2 dated as of June 1, 1999. Any capitalized term used in
this Consent without a definition shall have the meaning set forth in the
Indenture.
The undersigned hereby consents to Amendment No. 3 to the Indenture, a copy
of which is attached to this Consent, and in particular the assignment of Sold
Receivables contemplated by Section 1.3 thereof and the release of Sold
Receivables contemplated by Section 1.5 thereof.
METROPOLITAN LIFE INSURANCE COMPANY
By: _______________________________________
Xxxxxxx Xxxxxx
Assistant Vice President
NATIONAL BANK OF ALASKA
By: _______________________________________
Xxxx X. Xxxxxxxxxx
Vice President
ABSF II LLC*
By: _______________________________________
Name:
Title:
*Beneficial owner for XXXX & Co.
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(Execution Copy)
AMENDMENT NO. 3
TO
INDENTURE AND SERVICING AGREEMENT
(Series 1998-2)
_____________
CREDITRUST SPV98-2, LLC,
as Issuer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee and Backup Servicer of the Receivables
and
CREDITRUST CORPORATION,
as Servicer of the Receivables
and
ASSET GUARANTY INSURANCE COMPANY
as Note Insurer
Dated as of December 21, 1999
_____________
CREDITRUST RECEIVABLES-BACKED NOTES, SERIES 1998-2
___________________
