Exhibit 10.3
[***] TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
FOURTH AMENDMENT
TO
INDENTURE AND SERVICING AGREEMENT
(Floating Rate Midland Receivables-Backed
Variable Funding Notes, Series 1999-A)
--------------------------------------------------------
MIDLAND FUNDING 98-A CORPORATION,
as Issuer
and
MIDLAND CREDIT MANAGEMENT, INC.,
as Servicer
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee and Backup Servicer
and
RADIAN ASSET ASSURANCE INC.,
as Note Insurer
and
BANCO SANTANDER CENTRAL HISPANO, S.A., NEW YORK BRANCH,
and
WAREHOUSE LINE , L.L.C.,
as Noteholders
Dated as of September 30, 2002
--------------------------------------------------------
[***] Omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange
Commission.
FOURTH AMENDMENT
TO
INDENTURE AND SERVICING AGREEMENT
(Floating Rate Midland Receivables-Backed
Variable Funding Notes, Series 1999-A)
This Fourth Amendment to Indenture and Servicing Agreement, dated as of
September 30, 2002 (this "Fourth Amendment"), is executed by and among Midland
Funding 98-A Corporation, as issuer (the "Issuer"), Xxxxx Fargo Bank Minnesota,
National Association (formerly known as 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"), Radian Asset Assurance Inc. (formerly known
as Asset Guaranty Insurance Company), as note insurer (the "Note Insurer") and
Banco Santander Central Hispano, S.A., New York Branch and Warehouse Line,
L.L.C., as noteholders (collectively, the "Noteholders"). Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to such terms
in the Indenture and Servicing Agreement (as defined below).
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 "Original Indenture"), as amended by the First Amendment to
Indenture and Servicing Agreement dated as of June 17, 1999 (the "First
Amendment"), the Second Amendment to Indenture and Servicing Agreement dated as
of January 31, 2000 (the "Second Amendment"), and the Third Amendment to the
Indenture and Servicing Agreement dated as of September 22, 2000 (the "Third
Amendment", and together with the Original Indenture, the First Amendment and
the Second Amendment, collectively, the "Indenture and Servicing Agreement")
relating to the Floating Rate Midland Receivables-Backed Variable Funding Notes,
Series 1999-A;
WHEREAS, the Issuer, the Servicer, the Trustee, the Backup Servicer,
the Note Insurer and the Noteholders desire to make certain amendments to the
Indenture and Servicing Agreement;
WHEREAS, the Noteholders are the only holders of the Notes issued by
the Issuer pursuant to the Indenture and Servicing Agreement on the date hereof;
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 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
AMENDMENTS
SECTION 1. Amendments to Indenture and Servicing Agreement. Subject to the
terms and conditions set forth herein, the Indenture and Servicing Agreement is
amended, as of the Amendment Effective Date, as follows:
(a) Each reference to "Norwest Bank Minnesota, National Association" in the
Indenture and Servicing Agreement shall be read and
construed as a reference to "Xxxxx Fargo Bank Minnesota,
National Association".
(b) Each reference to "Asset Guaranty Insurance Company" in the Indenture
and Servicing Agreement shall be read and construed as a reference to
"Radian Asset Assurance Inc.".
(c) Each reference to "Ernst & Young LLP" in the Indenture and Servicing
Agreement shall be read and construed as a reference to "BDO Xxxxxxx,
LLP Accountants and Consultants".
(d) Section 1.01 is amended as follows:
(i) The definition of "Liquidity" is deleted in its entirety.
(ii) The definition of "Net Proceeds" is amended by:
(A) deleting the last sentence thereof in its entirety; and
(B) adding the following proviso immediately prior to the end of
the first sentence thereof:
"; provided, however, that no proceeds from the sale
of accounts pursuant to Section 3.13(b), Net Seller
Recoveries or, unless specifically provided in the
definition of Servicing Fee, Capital One Net Proceeds
shall be considered Net Proceeds for purposes of
computing the Servicing Fee.".
(iii) The definition of "Permitted Third Party" is amended by deleting
the phrase "; and (iii)" and replacing it with the following phrase:
", (iii) solely with respect to, and for the original
term of, the Approved Capital One Program, Capital
One and (iv)".
(iv) The definition of "Servicing Fee" is amended by:
(A) deleting the phrase "or (B)" from the first sentence thereof
and replacing it with the following phrase:
", (B) Capital One Net Proceeds or (C)";
(B) deleting the word "and" from the first sentence thereof; and
(C) inserting the following clause immediately prior to the end of the first
sentence thereof:
" and (iii) (A) in respect of any related time
period occurring (1) after the aggregate of all
Combined Capital One Net Proceeds collected,
received or otherwise recovered shall exceed the
Combined Capital One Initial Specified Amount and
(2) before the aggregate of all Combined Capital One
Proceeds collected, received or otherwise recovered
shall exceed the Combined Capital One Subsequent
Specified Amount, [***]% of all 99-A Capital One Net
Proceeds collected, received or otherwise recovered
during such related time period and (B) in respect
of any related time period occurring after the
aggregate of all Combined Capital One Proceeds
collected, received or otherwise recovered shall
exceed the Combined Capital One Subsequent Specified
Amount, [***]% of all 99-A Capital One Net Proceeds
collected, received or otherwise recovered during
such related time period.".
(v) The definition of "Third-Party Costs" is amended by inserting
the following phrase, immediately after the phrase "Permitted
Third Party":
", other than Capital One,".
(vi) The following defined terms are incorporated therein, in appropriate
alphabetical order:
"'Approved Capital One Program' means the program
entered and performed by the Servicer and Capital One
pursuant to and in accordance with the Capital One
Balance Transfer Agreement."
"'Capital One' means Capital One Bank, a Virginia
banking corporation."
"'Capital One Balance Transfer Agreement' means the
Credit Card Balance Transfer Program Agreement dated
July 31, 2002 entered into between the Servicer and
Capital One, solely in respect of the Specified
Receivables, substantially in the form attached
hereto as Exhibit B, without giving effect to any
amendment, supplement, restatement, waiver or
modification thereof or thereto unless consented to
by the Controlling Party."
"'Capital One Balance Transfer Agreement Termination
Date' means April 30, 2003, unless otherwise agreed
in writing by the Controlling Party."
"'Capital One Subsequent Specified Amount' has the
meaning set forth on Exhibit C attached hereto."
"'Capital One Up-Front Payment Amount' has the
meaning set forth on Exhibit C attached hereto."
[***] Omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange
Commission.
"'Combined Capital One Initial Specified Amount' has
the meaning set forth on Exhibit C attached hereto."
"'Combined Capital One Net Proceeds' means the
portion of Net Proceeds collected received or
otherwise recovered on or with respect to a Specified
Receivable or from or for the account of the related
Obligor on such Specified Receivable pursuant to the
Approved Capital One Program."
"'99-A Capital One Net Proceeds' means the portion of
Net Proceeds collected received or otherwise
recovered on or with respect to a Specified 99-A
Receivable or from or for the account of the related
Obligor on such Specified 99-A Receivable pursuant to
the Approved Capital One Program including, for the
avoidance of doubt, the Capital One Up-Front Payment
Amount."
"'99-1 Receivables' shall have the meaning given to
the term "Receivables" in the 99-1 Indenture."
"'Second Amendment to 99-1 Indenture' means the
Second Amendment to Indenture and Servicing Agreement
dated as of September 30, 2002 among Midland Funding
99-1 Corporation, the Trustee, the Backup Servicer,
the Servicer and the Note Insurer, without giving
effect to any amendment, supplement, restatement,
waiver or modification thereof or thereto unless
consented to by the Controlling Party."
"'Semi-Annual Determination Date' means the last day
of each December and June, commencing on December 31,
2002."
"'Servicing Period' means the period from the
Amendment Effective Date to the Capital One Balance
Transfer Agreement Termination Date and thereafter
the following periods:
May 1, 2003 through October 31, 2003
November 1, 2003 through April 30, 2004
May 1, 2004 through October 31, 2004
November 1, 2004 through April 30, 2005
May 1, 2005 through September 15, 2005."
"'Specified Receivables' means the Specified 99-A
Receivables and the Specified 99-1 Receivables,
collectively."
"'Specified 99-A Receivables' means the Receivables
identified by pool identification number and
outstanding balance in a computer tape delivered to
the Note Insurer on the date of this Fourth
Amendment."
"'Specified 99-1 Receivables' means the 99-1
Receivables identified by pool identification number
and outstanding balance in a computer tape delivered
to the Note Insurer on the date of the Second
Amendment to 99-1 Indenture."
(e) Section 3.03 is amended by adding the following paragraphs (e), (f), (g)
and (h), immediately after Section 3.03(d):
"(e) Exercise of Rights Under the Capital One Balance Transfer
Agreement. The Servicer hereby covenants to exercise its
rights under the Capital One Balance Transfer Agreement and
take such other action in connection with the Approved Capital
One Program and the Receivables subject thereto as may be
reasonably requested by the Trustee or as the Servicer itself
reasonably determines may be appropriate or desirable, taking
into account the associated costs, to maximize the collection
of amounts payable in respect of the Specified Receivables
thereunder and otherwise protect the rights and interests of
the Noteholders, the Note Insurer and the Trustee in the
Specified Receivables."
(f) Receivables Subject to the Capital One Balance Transfer
Agreement. No Receivables other than the Specified Receivables
shall be or become subject to the Capital One Balance Transfer
Agreement without the prior written consent of the Controlling
Party.
(g) Proceeds in Respect of Specified 99-A Receivables. All
proceeds collected, received or recovered in respect of any
Specified 99-A Receivable and all other amounts received
pursuant to the Capital One Balance Transfer Agreement shall
be remitted by the Servicer to the Collection Account on the
Business Day immediately following the collection, receipt or
recovery by the Servicer of such proceeds and/or other
amounts.
(h) Bookkeeping and Reporting in Respect of Specified 99-A
Receivables.
(i) The Servicer shall maintain such accurate and
complete books, accounts and records as shall enable
the Servicer, the Trustee and the Note Insurer to (A)
identify and segregate the Specified 99-A Receivables
and all proceeds, collections and recoveries in
respect thereof from any other receivables or
proceeds, collections or recoveries in respect of
other receivables and from any assets of the Servicer
and (B) otherwise comply with this Fourth Amendment
and the Indenture and Servicing Agreement.
(ii) On or before 11:00 a.m. New York, New York time
on each Tuesday commencing November 19, 2002 during
the term of the Capital One Balance Transfer
Agreement, the Servicer shall deliver to the Trustee
and to the Note Insurer a weekly report in respect of
the immediately preceding week executed by a
Responsible Officer of the Servicer substantially in
the form attached hereto as Exhibit 3.03(h) (the
"Capital One Weekly Servicing Report").
(iii) The Servicer shall deliver to the Note Insurer and
the Trustee, promptly after having obtained knowledge
thereof, but in no event later than two (2) Business
Days thereafter, an Officer's Certificate specifying
the nature and status of any default, breach, or
other occurrence under or in connection with the
Capital One Balance Transfer Agreement which could
reasonably be expected to have a material adverse
effect on the rights or interests of the Note
Insurer, any Noteholder or the Trustee.
(iv) The Servicer shall deliver to the Note Insurer within
thirty (30) days after the Capital One Balance
Transfer Agreement Termination Date, a computer tape
identifying by pool identification number and
outstanding balance the Specified 99-A Receivables
which remain subject to the Indenture and Servicing
Agreement.".
(f) Exhibit 3.03(h) attached hereto is hereby attached to and made a part of
the Indenture and Servicing Agreement.
(g) Section 3.08 is amended by inserting the following phrase in the second
sentence thereof, immediately after the existing phrase "the reporting
period shall be each subsequent calendar quarter commencing
September 30, 1999":
", through December 31, 2001, and thereafter the reporting period
shall be each subsequent six-month period,".
(h) Section 3.09 is amended by (i) deleting the heading of such section in
its entirety and replacing it with the following:"Semi-Annual Servicer's
Compliance Report", and (ii) deleting the phrase "within thirty days
after the end of each calendar quarter of each year, beginning with the
calendar quarter ending in June of 1999, a report concerning the
activities of the Servicer during the preceding calendar quarter" from
the first sentence thereof and replacing it with the following:
"on the dates set forth in the table below, a report
concerning the activities of the Servicer during the period
set forth in the table below:
Reporting Date Reporting Period
September 30, 2002 January 1, 2002 through June 30, 2002
March 31, 2003 July 1, 2002 through December 31, 2002
September 30, 2003 January 1, 2003 through June 30, 2003
March 31, 2004 July 1, 2003 through December 31, 2003
September 30, 2004 January 1, 2004 through June 30, 2004
March 31, 2005 July 1, 2004 through December, 2004
September 15, 2005 January 1, 2005 through June 30, 2005".
(i) Section 3.13(b) is amended by:
(i) deleting the reference to "Exhibit 3.13(b)" from the second
sentence thereof and replacing it with a reference to "Exhibit
3.13(b)(i)"; and
(ii) adding the following sentence, immediately prior to the last
sentence thereof:
"The Servicer shall deliver to the Controlling Party
no later than five (5) Business Days following the
date of such sale, an Officer's Certificate in the
form of Exhibit 3.13(b)(ii).".
(j) Exhibit 3.13(b) is amended by:
(i) deleting the heading thereto in its entirety and replacing it with
the heading "Exhibit 3.13(b)(i)"; and
(ii) adding the following paragraph, immediately after paragraph 8:
"9. Attached as Exhibit E hereto is a revised pay-off
forecast for the Notes (calculated assuming the sale
of the Sale Receivables at the price and on the date
stated herein).".
(k) Exhibit 3.13(b)(ii) attached to this Fourth Amendment is hereby
attached to and made a part of the Indenture and Servicing Agreement.
(l) Section 3.13 is amended by adding the following paragraph (c)
immediately after Section 3.13(b):
"(c) The Servicer may purchase Receivables in arm's length
transactions pursuant to a sale agreement in the form attached
hereto as Exhibit 3.13(c)(i) and solely for the purpose of
facilitating a contemporaneous sale of such Receivables that
complies with the requirements of Section 8.07(c) and the
first and last sentences of Section 3.13(b) of the Indenture
and Servicing Agreement, upon receipt of the prior written
consent from the Controlling Party; provided, that in respect
of each such sale of Receivables to the Servicer (each such
sale, a "Specified Sale" and the Receivables sold pursuant to
a Specified Sale, the "Specified Sale Receivables") the
Servicer shall sell all of the related Specified Sale
Receivables (i) within one (1) Business Day of such Specified
Sale, (ii) in compliance with the requirements of Section
8.07(c) and the first and last sentences of Section 3.13(b) of
the Indenture, and (iii) for an amount equal to that which the
Servicer paid for such Specified Sale Receivables. The
Servicer shall deliver to the Controlling Party no later than
five (5) Business Days preceding the date of such proposed
Specified Sale, an Officer's Certificate in the form of
Exhibit 3.13(c)(ii). The Controlling Party shall within five
(5) Business Days of receipt of the foregoing notice advise
the Servicer and the Trustee of its consent or withholding of
consent to the proposed Specified Sale. The Servicer shall
deliver to the Controlling Party no later than five (5)
Business Days following the date of such Specified Sale, an
Officer's Certificate in the form of Exhibit 3.13(c)(iii). The
Net Proceeds of all Specified Sales must be in immediately
available funds.".
(m) Exhibits 3.13(c)(i), 3.13(c)(ii) and 3.13(c)(iii) attached to this
Fourth Amendment are hereby attached to and made a part of the
Indenture and Servicing Agreement.
(n) Section 4.04(b)(xii)(D) is amended by inserting the following phrase,
immediately after to the phrase "to the Issuer":
", unless otherwise provided under Section 12.12".
(o) Section 4.05(b)(y) is amended by inserting the following phrase,
immediately after the phrase "released from the lien of the Trust
Estate and paid to the Issuer":
", unless otherwise provided under Section 12.12".
(p) Section 4.05(d) is deleted in its entirety and replaced with the
following paragraph:
"(d) In addition to the remittances by the Trustee on each
Payment Date from the Reserve Account described in Section
4.05(b) above, the Trustee shall, on each Payment Date,
withdraw from the Reserve Account, and remit to the
Noteholders, pro-rata, based on their respective Note
Balances, the amount by which the amount on deposit in the
Reserve Account exceeds the Required Reserve Amount (after
giving effect to (i) all amounts deposited in the Reserve
Account from other sources on or before such Payment Date and
(ii) all distributions otherwise required to be made from the
Reserve Accounts or the Note Payment Account on such Payment
Date in accordance herewith), which remittance shall be
applied, ratably, in reduction of the then outstanding Note
Balance.".
(q) The Third Amendment provided for the addition to the Indenture and
Servicing Agreement of two sections designated as Section 8.07(p), both
of which are deleted in their entirety and replaced with the following
paragraph:
"(p) Outside Parties. The Servicer will not engage any outside
parties for the collection or servicing of Receivables
(including, without limitation, any activities in respect of
Receivables of the nature described in the Capital One Balance
Transfer Agreement) on any basis except Permitted Third
Parties.".
(r) Section 9.01(a) is amended by inserting the following phrase,
immediately after the phrase "the Monthly Servicer Report for the
related Collection Period":
", the weekly Capital One Servicing Report for the immediately
preceding week or the Semi-Annual Servicer's Compliance Report
for the related Reporting Period".
(s) The Second Amendment and the Third Amendment each provided for the
addition to the Indenture and Servicing Agreement of a section
designated as Section 9.01(o).
(i) Section 9.01(n) is deleted in its entirety and replaced by the
Section 9.01(o) that was added in the Second Amendment; and
(ii) the Section 9.01(o) that was added in the Third Amendment is
amended by deleting the phrase "the amount set forth on Exhibit
9.01(o) attached hereto for the applicable period" and replacing it
with "$5,000,000."
(t) Exhibit 9.01(o) is deleted in its entirety.
(u) Section 9.01(p) is deleted in its entirety and replaced with the following
paragraph:
"(p) as of (i) any Semi-Annual Determination Date, commencing
with the December 31, 2002 Semi-Annual Determination Date or
(ii) the Scheduled Termination Date, the Note Balance is
greater than the amount specified in Exhibit 9.01(p) for such
date; or".
(v) Exhibit 9.01(p) is deleted in its entirety and replaced with
Exhibit 9.01(p) attached to this Fourth Amendment.
(w) Section 9.01 is amended by:
(i) adding the following paragraph (q), immediately after
Section 9.01(p):
"(q) the Servicer shall fail to duly observe or
perform any of its covenants, obligations or
agreements set forth in the Capital One Balance
Transfer Agreement and such failure could reasonably
be expected to have a material adverse effect on the
rights or interests of the Note Insurer, the
Noteholders, the Trustee or the Trust Estate; or",
and
(ii) adding the following paragraph (r), immediately after
Section 9.01(q):
"(r) the Servicer shall agree to any amendment,
supplement, restatement, waiver or modification of
the Capital One Balance Transfer Agreement without
the prior written consent of the Controlling Party
(which consent shall not be unreasonably withheld).".
(x) Section 9.02(a) is amended by:
(i) deleting clause (ii) of the first sentence thereof in its
entirety and replacing it with the following clause:
"(ii) the last day of each Servicing Period, unless
the Servicer has been appointed by the Controlling
Party, on or prior to the 30th day immediately
preceding the last day of such Servicing Period, for
the next succeeding Servicing Period.";
(ii) deleting the phrase "If the Controlling Party does not appoint
the Servicer to a successive Collection Period by the first
day of the immediately preceding Collection Period, at the end
of the Collection Period through which the Servicer has previously
been appointed," from the third sentence thereof in its entirety
and replacing it with the following phrase:
"If the Controlling Party does not appoint the
Servicer to a successive Servicing Period by the 30th
day immediately preceding the last day of the
existing Servicing Period, at the end of the
Servicing Period through which the Servicer has
previously been appointed,"; and
(iii) deleting the phrase "On or after the receipt by the Servicer
of such written notice," from the fifth sentence thereof in
its entirety and replacing it with the following phrase:
"On or after the receipt by the Servicer of written
notice of termination, or, if earlier, upon the
automatic termination of the rights and obligations
of the Servicer in accordance with the terms of this
Section,".
(y) Section 9.02(b) is amended by inserting the following language,
immediately after the phrase "so long as a Servicer Default shall occur
and be continuing, and such Servicer Default has not been cured or
waived pursuant to Section 9.05,":
"or, if earlier, upon the automatic termination of the rights
and obligations of the Servicer in accordance with the terms
of paragraph (a) above,".
(z) Section 9.02(c) is amended by inserting the following language,
immediately after the phrase "Promptly upon the occurrence of an Event
of Default or Servicer Default,":
"or, if earlier, upon the automatic termination of the rights
and obligations of the Servicer in accordance with the terms
of paragraph (a) above,".
(aa) Section 9.02 is amended by:
(i) adding the following paragraph (d), immediately after Section 9.02(c):
"(d) In addition to the remedial 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 Servicer
acknowledges and agrees that, upon the occurrence of
a Servicer Default pursuant to Section 9.01(p), the
Servicing Fee shall automatically be reduced for the
Servicing Period immediately following the date of the
occurrence of such Servicer Default (i) in respect of
Net Proceeds, from [***]% to [***]% and (ii) in
respect of 99-A Capital One Net Proceeds, from [***]%
to [***]% and [***]% to [***]%, as applicable;
provided that no such reduction in Servicing Fee
incurred by a Servicer shall apply to its Successor
Servicer.".
[***] Omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.
(ii) adding the following paragraph(e),immediately after Section 9.02(d):
"(e) Notwithstanding any termination of Midland as
Servicer prior to the Capital One Balance Transfer
Agreement Termination Date, if Capital One shall not
consent to the replacement of Midland under, or the
early termination of, the Capital One Balance
Transfer Agreement, Midland (i) may continue to act
as Servicer solely in respect of the Specified 99-A
Receivables and to receive that portion of the
Servicing Fee related solely to such Specified 99-A
Receivables and (ii) shall remain bound by the terms
and provisions of the Indenture and Servicing
Agreement, in its individual capacity and as
Servicer, until the Capital One Balance Transfer
Agreement Termination Date; provided, that Midland
agrees that if it is terminated as Servicer following
a Servicer Default or if its rights and obligations
as Servicer are automatically terminated in
accordance with Section 9.02(a), it shall cooperate
in any negotiations of the Trustee and/or the
Controlling Party with Capital One for the
replacement of Midland under, or the early
termination of, the Capital One Balance Transfer
Agreement.
(bb) Section 9.03 is amended by inserting the following phrase, immediately
after the phrase "On and after the time the Servicer receives a notice
of termination pursuant to Section 9.02 or tenders its resignation
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 Section 9.02(a),".
(cc) Section 9.08 is amended by adding the following paragraph (m), immediately
after Section 9.08(l):
"(m) the Capital One Up-Front Payment Amount shall not have
been deposited in the Collection Account within two (2)
Business Days of the execution of this Fourth Amendment.
(dd) Exhibit A is deleted in its entirety and replaced with Exhibit A attached
hereto.
(ee) Exhibit B attached to this Fourth Amendment is hereby attached to and
made a part of the Indenture and Servicing Agreement.
(ff) Exhibit C attached to this Fourth Amendment is hereby attached to and
made a part of the Indenture and Servicing Agreement.
ARTICLE II
MISCELLANEOUS
SECTION 1. Effectiveness of Fourth Amendment; Conditions Precedent. This Fourth
Amendment shall become effective upon the satisfaction of the following
conditions precedent (such date, the "Amendment Effective Date"):
(a) each of the parties to this Fourth Amendment shall have received
fully executed counterparts of this Fourth Amendment;
(b) the Trustee and the Controlling Party shall have received a fully
executed copy of (i) the Capital One Balance Transfer Agreement and
(ii) each of the other documents, instruments and
agreements entered into in connection with the Capital One Balance
Transfer Agreement, which agreements shall be in form and substance
satisfactory to the Controlling Party;
(c) the Trustee shall have furnished written notification of the
substance of this Fourth Amendment to the Rating Agency and the
Placement Agent; and
(d) other than the Events of Default and Servicer Defaults waived
pursuant to the Eighth Waiver to Indenture and Servicing Agreement
dated of even date herewith among the Trustee, the Servicer and the
Note Insurer, no event or condition shall have occurred and be
continuing, or would result from the execution, delivery or
performance of this Fourth Amendment, that would constitute an
Event of Default or a Servicer Default, and the Trustee, the
Controlling Party and each of the Noteholders shall have received a
certificate of an authorized officer of the Servicer to such effect.
SECTION 2. Appointment. Midland is appointed as Servicer for the term commencing
on the Effective Date and extending to the Capital One Balance Transfer
Agreement Termination Date.
SECTION 3. Amendment. This Fourth Amendment shall
only be amended in accordance with the provisions of Section 12.01 of the
Indenture and Servicing Agreement.
SECTION 4. Reference to and Effect on Agreement.
(a) Upon the Amendment Effective Date:
(i) each reference in the Indenture and Servicing Agreement to
"this Agreement", "hereunder", "hereof" or words of like import
shall mean and be a reference to the Indenture and Servicing
Agreement, as amended hereby; and
(ii) each reference to the Indenture and Servicing Agreement in the
other Transaction Documents and in any other documents, instruments
and agreements executed and/or delivered in connection therewith,
shall mean and be a reference to the Indenture and Servicing
Agreement as amended hereby.
(b) Except as expressly amended hereby, the terms and conditions of the
Indenture and Servicing Agreement, of all of the other Transaction
Documents and of any other document, instrument or agreement
executed in connection herewith or therewith, shall remain in full
force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Fourth Amendment
shall not operate as a waiver of any right, power or remedy of any
of the parties hereto under the Indenture and Servicing Agreement
or any other Transaction Document or any other document, instrument
or agreement executed in connection herewith or therewith.
SECTION 5. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS FOURTH 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 FOURTH
AMENDMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATION LAW OF NEW YORK, BUT OTHERWISE WITHOUT REGARD
TO CONFLICT OF LAWS PROVISIONS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE
PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT
WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
SECTION 6. Severability of Provisions; Counterparts. If any one or more of the
covenants, agreements, provisions or terms of this Fourth Amendment 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 Fourth
Amendment and shall in no way affect the validity or enforceability of the other
provisions of this Fourth Amendment or the Notes, or the rights of the
Noteholders. This Fourth Amendment 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 7. Note Insurer. This Fourth Amendment 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 Fourth Amendment 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 Fourth
Amendment does not modify the obligations of the Note Insurer under the Policy
as set forth therein.
SECTION 8. Representations, Warranties and Covenants. Each of the Issuer and the
Servicer hereby:
(a) reaffirms all covenants, representations and warranties made by
it in the Indenture and Servicing Agreement;
(b) agrees that all such covenants, representations and warranties
shall be deemed to have been remade as of the date of this Fourth
Amendment; and
(c) represents and warrants that this Fourth Amendment constitutes
its legal, valid and binding obligation, enforceable against it
in accordance with its terms.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[Fourth Amendment to Indenture - Signature Page]
IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to be
duly executed by their respective officers as of the day and year first above
written.
MIDLAND FUNDING 98-A CORPORATION,
as Issuer
By:____/s/ Xxxx X. Xxxxxxx, III___________
Name: Xxxx X. Xxxxxxx, III
Title: President
MIDLAND CREDIT MANAGEMENT, INC.,
as Servicer
By:____/s/ Xxxx X. Xxxxxxx, III___________
Name: Xxxx X. Xxxxxxx, III
Title: President & CEO
XXXXX FARGO BANK MINNESOTA, not in its
individual capacity, but solely as Trustee and
as Backup Servicer
By:___/s/ Xxxxxxx Matyi_______________
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
RADIAN ASSET ASSURANCE INC.,
as Note Insurer
By:__/s/ Xxxxxxxxx Brostek____________________
Name: Xxxxxxxxx Xxxxxxx
Title: VP, Risk Management
BANCO SANTANDER CENTRAL HISPANO, S.A., NEW YORK
BRANCH, as a Noteholder
By:_____/s/ Xxxxx X. XxXxxxxx, Xx.___
Name: Xxxxx X. XxXxxxxx, Xx.
Title: Vice President and Manager
WAREHOUSE LINE, L.L.C., as a Noteholder
By:____/s/ Xxxxxx X. Lorusso____________________
Name: Xxxxxx X.Xxxxxxx
Title: President of Warehouse
Line Advisors for the L.L.C.
