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Exhibit 99
AMENDMENT NO. 6 TO VARIABLE FUNDING LOAN AGREEMENT
AMENDMENT NO. 6 TO VARIABLE FUNDING LOAN AGREEMENT (this "Amendment"),
dated as of September 27, 2000, by and among MID-STATE TRUST V, as Borrower (the
"Borrower"), ENTERPRISE FUNDING CORPORATION, as Lender (the "Lender"), FIRST
UNION NATIONAL BANK, as Collateral Agent (the "Collateral Agent") and Bank of
America, N.A., as successor by merger to NationsBank, N.A., as Administrative
Agent (the "Administrative Agent").
Capitalized terms used and not defined in this Amendment shall have the
meanings given such terms in the Variable Funding Loan Agreement, dated as of
March 3, 1995, among the parties hereto, as amended from time to time (as so
amended, the "Loan Agreement").
PRELIMINARY STATEMENTS
WHEREAS, certain of the parties hereto are party to the Loan Agreement;
and
WHEREAS, the parties hereto wish to amend the Loan Agreement, as
hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, in the Loan Agreement , and other good and valuable consideration, the
receipt and adequacy of which is hereby expressly acknowledged, and intending to
be legally bound hereby, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO LOAN AGREEMENT. Annex A to the Loan Agreement
is hereby amended by changing "$500,000,000" in the definition of "MAXIMUM NET
INVESTMENT" to "$400,000,000".
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall be
effective on and as of the date on which (i) all parties hereto have executed
this Amendment and delivered their signature pages hereto to the Administrative
Agent, (ii) the Administrative Agent shall have received the Second Amended and
Restated Fee Letter, dated the date hereof, in form and satisfactory to the
Lender, (iii) the Lender shall have received the Endorsement to the Surety Bond
issued by the Surety Provider, dated September 27, 2000 duly executed by the
Surety Provider, dated the date hereof, in the form attached hereto as Exhibit
A, (iv) the Administrative Agent shall have received an Amended and Restated
Variable Funding Note in the form of Exhibit B attached hereto, executed by the
Borrower and (v) the Administrative Agent shall have received the Extension
Letter, dated as of the date hereof, by and among the Surety Provider, the
Administrative Agent, the Lender, the Depositor and the Borrower.
SECTION 3. SEVERABILITY OF PROVISIONS. Any provision of this Amendment
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
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SECTION 4. CAPTIONS. The captions in this Amendment are for convenience
of reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION 5. AGREEMENT TO REMAIN IN FULL FORCE AND EFFECT. Except as
amended hereby, the Loan Agreement shall remain in full force and effect and is
hereby ratified, adopted and confirmed in all respects. All references in the
Loan Agreement to "herein," or words of like import, and all references to the
Loan Agreement in any agreement or document shall hereafter be deemed to refer
to the Loan Agreement as amended hereby.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Amendment.
SECTION 8. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Amendment is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as
trustee of the Trust, in the exercise of the powers and authority conferred and
vested in it under the Trust Agreement, (b) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose of binding
only the Trust and (c) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Amendment.
SECTION 9. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
certifies that (i) the representations and warranties made by it in Section 3.1
of the Loan Agreement are true and correct as of the date hereof, as though made
on and as of the date hereof and (ii) as of the date hereof, there is no Event
of Default or event which, with the passage of time of the giving of notice,
could result in an Event of Default.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
MID-STATE TRUST V
By: Wilmington Trust Company, not in
its individual capacity but solely
as Owner Trustee
By:_______________________________
Name:
Title:
ENTERPRISE FUNDING CORPORATION
By:_______________________________
Name:
Title:
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By:_______________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
AS COLLATERAL AGENT
By:_______________________________
Name:
Title:
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Capital Markets Assurance
Corporation hereby consents to
the foregoing amendment by the
execution hereof:
CAPITAL MARKETS ASSURANCE
CORPORATION
By:_______________________________
Name:
Title:
Date:
