Waiver Letter to Note Purchase Agreement among MCG Capital Corporation, MCG Master Trust, Variable Funding Capital Corporation, and Wachovia Securities, Inc.
This letter agreement, dated January 27, 2003, is between MCG Capital Corporation, MCG Master Trust, Variable Funding Capital Corporation, and Wachovia Securities, Inc. It provides a one-time waiver of the requirement that the Average Portfolio Charged-Off Ratio not exceed a specified percentage for reports and tests due on or before January 27, 2003, under the existing Note Purchase Agreement. The waiver does not apply to future periods, and all other terms of the original agreement remain in effect. The agreement is effective upon execution by all parties and is governed by New York law.
Exhibit 10.53
January 27, 2003
| MCG Master Trust c/o MCG Capital Corporation 1100 Wilson Boulevard, Suite 800 Arlington, VA 22209 Attn: Chief Financial Officer and General Counsel
MCG Capital Corporation 1100 Wilson Boulevard, Suite 800 Arlington, VA 22209 Attn: Chief Financial Officer and General Counsel
| Wachovia Bank, National Association, As Liquidity Agent One Wachovia Center, Mail Code: NC0610 Charlotte, North Carolina 28288 Attention: Capital Markets Credit Administration Facsimile No. (704) 374-3254 Confirmation No.: (704) 374-4001 | |
| Variable Funding Capital Corporation c/o Wachovia Securities, Inc. One Wachovia Center Charlotte, North Carolina 28288 Attention: Conduit Administration Facsimile No.: (704) 383-6036 Confirmation No.: (704) 383-9343 | Wells Fargo Bank Minnesota, National Association 6th and Marquette Streets MAC# N9311-161 Minneapolis, MN 55679 Attn: Corporate Trust Services – Asset Backed Admin. |
| Re: | Note Purchase Agreement dated as of June 1, 2000 (as amended, the “Agreement”) among MCG Capital Corporation, as Servicer (“MCG”), MCG Master Trust, as Issuer (the “Issuer”), Variable Funding Capital Corporation, as a CP Purchaser (“VFCC”) and Wachovia Securities, Inc., as VFCC Deal Agent and as Administrative Agent |
Ladies and Gentlemen:
Reference is hereby made to the Agreement. Capitalized terms used in this letter (the “Letter”) and not otherwise defined herein shall have the meanings given to such terms in the Agreement or in Appendix A to the Sale and Servicing Agreement (as defined in the Agreement) or in the Terms Supplement relating to the Series 2000-1 Notes.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
| 1. | Waiver. The parties hereto agree that for purposes of any reports required to be prepared, and any tests required to be satisfied, under the Basic Documents on or before January 27, 2003 (including, without limitation, any reports or tests as of December 31, 2002), the requirement that the Average Portfolio Charged-Off Ratio not exceed a specified percentage is hereby waived. This is a one-time waiver and shall not be construed to be (i) a modification or waiver as to future compliance with the Average Portfolio Charged-Off Ratio, (ii) a waiver of any Termination Event or Potential Termination Event that may exist on or after January 28, 2003 or (iii) an amendment or modification to the Agreement or any other Basic Document except as expressly set forth in this Letter or otherwise with respect to any period on or after January 28, 2003. This limited waiver is expressly subject to the terms of this Letter. |
| 2. | Representations and Warranties. Upon giving effect to paragraph 1 of this Letter, each of MCG and the Trust represents and warrants that as of the date hereof no event has occurred and is continuing which constitutes a Termination Event or a Potential Termination Event. |
| 3. | Effect of Modification. Except as expressly modified in this Letter, all of the terms, provisions and conditions of the Agreement and the other Basic Documents are hereby ratified and confirmed and shall remain unchanged and in full force and effect. |
| 4. | Expenses. MCG agrees to pay all reasonable costs and expenses incurred in connection with the preparation, execution and delivery of this Letter, including the reasonable fees and expenses of the Deal Agent’s legal counsel. |
| 5. | Condition Precedent. The effectiveness of this Letter is subject to the receipt by the Deal Agent of executed counterparts (or other evidence of execution, including facsimile signatures, satisfactory to Deal Agent) of this Letter, which collectively shall have been duly executed on behalf of each of the parties hereto. The effectiveness of this Letter also is subject to MCG’s covenant not to request a Swingline Advance on January 27, 2003. |
| 6. | Counterparts/Telecopy. This Letter may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of executed counterparts by telecopy shall be effective as an original and shall constitute a representation that an original will be delivered (provided that failure of an original to be delivered shall not impair the effectiveness of this Letter). |
| 7. | GOVERNING LAW. THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. |
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| 8. | ENTIRETY. THIS LETTER, THE AGREEMENT AND THE OTHER BASIC DOCUMENTS EMBODY THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, IF ANY, RELATING TO THE SUBJECT MATTER HEREOF. THIS LETTER, THE AGREEMENT AND THE OTHER BASIC DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. |
| Sincerely,
WACHOVIA SECURITIES, INC., as Deal Agent | ||
| By: | /s/ RAJ SHAH | |
| Name | Raj Shah | |
| Title: | Director | |
Accepted and Agreed:
MCG CAPITAL CORPORATION
| By: | /s/ STEVEN F. TUNNEY | |
| Name: | Steven F. Tunney | |
| Title: | President
|
MCG MASTER TRUST
| By: | MCG CAPITAL CORPORATION (as Servicer) |
| By: | /s/ STEVEN F. TUNNEY | |
| Name: | Steven F. Tunney | |
| Title: | President |
VARIABLE FUNDING CAPITAL
CORPORATION,
| By: | Wachovia Securities, Inc., | |
| as attorney-in-fact | ||
| By: | /s/ DOUGLAS R. WILSON, SR. | |
| Name: | Douglas R. Wilson, Sr. | |
| Title: | Vice President |
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