Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT is made as of June 26, 2003, by
and between MRC RECEIVABLES CORPORATION, a Delaware corporation (the
“Borrower”), and CFSC CAPITAL CORP. VIII, a Delaware corporation (the “Lender”).
Recitals
WHEREAS, the Borrower and the Lender have entered into a Credit Agreement
dated as of December 20, 2000 (the “Credit Agreement”), pursuant to which the
Lender agreed to consider making financing available to the Borrower from time
to time to finance the Borrower’s purchase of pools of charged off credit card
accounts and other delinquent or deficiency consumer obligations.
WHEREAS, the Borrower has requested that the Lender enter into this First
Amendment to Credit Agreement (the“First Amendment”) to (i) permit the Borrower
to withhold from Asset Pool Proceeds (as defined in the Credit Agreement) prior
to the deposit of Asset Pool Proceeds in the Collateral Account all amounts due
and payable to it pursuant to Sections 2.8(f), (j) and (l) of the Credit
Agreement, and (ii) permit the Servicer (as defined in the Credit Agreement) to
withhold its Servicing Fees (as defined in the Credit Agreement) and Legal
Outsourcing Management Fees (as defined in that certain Second Amendment to
Servicing Agreement among the Servicer, the Borrower and the Lender dated as of
the date hereof (the “Servicing Amendment”)) from Asset Pool Proceeds prior to
the deposit of Asset Pool Proceeds in the Collateral Account.
WHEREAS, the Lender has agreed to permit such netting of amounts payable to the
Borrower and of Servicing Fees and Legal Outsourcing Management Fees pursuant to
the terms and subject to the conditions set forth in the Credit Agreement and
this First Amendment and the Servicing Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter set forth, the Lender and the Borrower hereby agree
as follows:
1. Definitions. The terms defined in the preamble hereto shall have the
meanings therein assigned to them, and all other defined terms used in this
First Amendment shall have the meanings assigned to them in the Credit
Agreement, unless otherwise specified herein. Section 1.1 of the Credit
Amendment shall be amended by adding the following defined term:
“Borrower Payments” shall mean all sums due and payable to the Borrower
pursuant to Section 2.8(f), (j) and (l).
“Legal Outsourcing Management Fees” shall have the meaning designated in
the Servicing Amendment.
2. Netting of Servicing Fees and Legal Outsourcing Management Fees. So long
as no Default, Event of Default, Asset Pool Shortfall or Termination Event has
occurred, until the Lender delivers to the Servicer written notice withdrawing
the consent granted pursuant to the Servicing Amendment, no Servicing Fees or
Legal Outsourcing Management Fees shall be payable to the Servicer pursuant to
Section 2.8 of the Credit Agreement but shall instead be payable to the Servicer
in accordance with the Servicing Amendment.
3. Netting of Borrower Payments. So long as no Default, Event of Default,
Asset Pool Shortfall or Termination Event has occurred, until the Lender
delivers to the Borrower written notice withdrawing the consent hereby granted,
the Borrower may, with respect to a particular Asset Pool and otherwise in
accordance with the terms and provisions of the Credit Agreement, without
further authorization from the Lender and prior to the deposit of Asset Pool
Proceeds in the Collateral Account, pay directly to itself (and the Servicer is
hereby authorized to make such disbursement) from the Servicer’s Collection
Account all Borrower Payments earned with respect to that Asset Pool that are
due and payable to the Borrower; provided, however, that Asset Pool Proceeds
collected with respect to a particular Asset Pool shall be used only to pay
Borrower Payments earned with respect to that Asset Pool and shall not be used
to pay Borrower Payments earned with respect to any other Asset Pool.
4. Accounting for Borrower Payments. The Borrower shall cause the Servicer
to provide to the Lender on each Distribution Date, for each Asset Pool, a
separate detailed accounting of all Borrower Payments actually incurred and paid
to the Borrower for the immediately preceding Distribution Period, which
accounting shall be certified by the signature of a duly authorized officer of
each of the Borrower and the Servicer. In the event that the amounts paid exceed
or fall short of the Borrower Payments actually due and payable pursuant to the
Credit Agreement for such preceding Distribution Period, an appropriate
adjustment shall be made by disbursements approved in writing by the Lender
pursuant to Section 2.8 of the Credit Agreement.
5. Withdrawal of Consent. The Lender may withdraw its consent granted
pursuant to this First Amendment for any reason or for no reason, at its sole
discretion. Such consent shall be deemed withdrawn immediately upon the delivery
of written notice thereof by telecopier as provided pursuant to Section 7.2 of
the Servicing Agreement or Section 9.4 of the Credit Agreement, as applicable.
From and after delivery of such a withdrawal notice, the Servicing Fees, Legal
Outsourcing Management Fees and Borrower Payments shall be due and payable only
pursuant to a Distribution Request duly approved by the Lender in accordance
with Section 2.8 of the Credit Agreement, it being hereby agreed that all Legal
Outsourcing Management Fees shall then be paid pursuant to Section 2.8 of the
Credit Agreement pari passu with all Servicing Fees.
6. Representations and Warranties; No Default; Authority. The Borrower
represents and warrants to the Lender that all of the representations and
warranties of the Borrower in the Credit Agreement are true as of the date of
this First Amendment and that no Default has occurred pursuant to the Credit
Agreement or any Loan Document. The Borrower has full authority to enter into
this First Amendment. This First Amendment will not violate the terms and
provisions of any other contract to which the Borrower or any of its Affiliated
Parties is a party.
7. No Waiver; Effect of Amendment. The terms and provisions of the Credit
Agreement, as amended hereby, shall remain in full force and effect, and the
parties hereto agree that this First Amendment shall not be and is not intended
to constitute a waiver of any of the terms and provisions of the Credit
Agreement.
8. Governing Law. This First Amendment shall be governed by and construed
in accordance with the laws of the State of Minnesota.
9. Counterpart Signatures. This First Amendment may be executed in
counterpart originals, all of which, when combined, shall constitute one
document binding on all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
effective as of the date first above written.
MRC RECEIVABLES CORPORATION (Borrower)
By: /s/ Carl C. Gregory, III
Name: Carl C. Gregory, III
Title: President & CEO
CFSC CAPITAL CORP. VIII (Lender)
By: /s/ Jeffrey Parker
Name: Jeffrey Parker
Title: President
[Signature Page to First Amendment to Credit Agreement]
