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Exhibit 10.13.1
EXECUTION COPY
AMENDMENT NO. 1 TO
AMENDED AND RESTATED LOAN
PURCHASE AND SERVICING AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN PURCHASE AND
SERVICING AGREEMENT, dated as of NOVEMBER 23, 1999 (this "Amendment"), is
entered into by and among FNBNE FUNDING CORP., as the Seller, FIRST
INTERNATIONAL BANK (f/k/a First National Bank of New England), certain
INVESTORS, VARIABLE FUNDING CAPITAL CORPORATION ("VFCC"), as a Purchaser, FIRST
UNION SECURITIES, INC. (successor-in-interest to First Union Capital Markets
Corp.), as the Deal Agent, FIRST UNION NATIONAL BANK, as the Liquidity Agent,
and HSBC BANK USA, as the Collateral Custodian and Backup Servicer. Capitalized
terms used but not otherwise defined herein shall have the meanings given to
such terms in the Agreement (as defined below).
WHEREAS, the parties hereto entered into that certain Amended and
Restated Loan Purchase and Servicing Agreement, dated as of September 24, 1999
(the "Agreement");
WHEREAS, the parties hereto desire to amend the Agreement in certain
respects as provided herein;
NOW, THEREFORE, in consideration of the premises and other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
(a) The definition of "Commitment Termination Date" set forth in
Section 1.1 of the Agreement is hereby amended and restated as follows:
"Commitment Termination Date: November 15, 2002 or such later
date to which the Commitment Termination Date may be extended
(if extended) in the sole discretion of VFCC and each Investor
in accordance with the Terms of Section 2.1(b)."
(b) Section 1.1 of the Agreement is hereby amended by adding the
following defined term:
"Permitted Securitization Transaction: Any (a) financing
transaction undertaken by the Seller or an Affiliate of the
Seller that is secured, directly or indirectly, by the Assets
or any portion thereof or any interest therein, and (b) any
securitization, including any sale, lease, whole loan sale,
asset securitization,
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secured loan or other transfer, to the extent approved in
writing by the Deal Agent in its sole discretion."
(c) The definition of "Purchase Limit" set forth in Section 1.1 of the
Agreement is hereby amended and restated in its entirety as follows:
"Purchase Limit: At any time $95,000,000, on or after the
Termination Date, the "Purchase Limit" shall mean the
aggregate outstanding Capital."
(d) Section 1.1 of the Agreement is hereby amended by adding the
following defined term:
"Servicer's Put Option Date Certificate: A certificate
delivered by the Servicer pursuant to Section 2.17(a) in the
form of Exhibit M hereto."
(e) Article II of the Agreement is hereby amended to add the following
new Section 2.17:
"SECTION 2.17 PUT OPTION.
(a) The Seller hereby grants to the Deal Agent, on behalf of
the Purchasers, the option (the "Put Option") to require the
Seller to prepay all or a portion of the aggregate Capital in
connection with the sale and assignment to the Seller by the
Deal Agent, on behalf of the Purchasers, of the Assets,
subject to the following terms and conditions:
(i) The Deal Agent, on behalf of the Purchasers,
shall have given the Seller at least fifteen (15) days prior
written notice of its intention to exercise its Put Option.
Such notice shall specify the portion of the aggregate Capital
for which the Put Option is being exercised and shall set for
closing a date (the "Put Option Purchase Date"), which is not
less than fifteen (15) nor more than ninety (90) days after
the date such notice is sent. The Deal Agent, on behalf of the
Purchasers, may rescind such notice, without liability of any
kind, at any time prior to the Put Option Purchase Date by
giving written notice thereof to the Seller;
(ii) Any Put Option shall be exercised solely in
connection with a Permitted Securitization Transaction;
(iii) No portion of the proceeds used by the Seller
to prepay Capital on a Put Option Purchase Date shall be
realized from the Seller's sale or assignment of Assets back
to the Originator on such date;
(iv) Unless a Put Option Purchase Date is a Payment
Date (in which case the relevant calculations with respect to
such Put Option shall be reflected on the applicable Monthly
Report), the Servicer shall deliver to the Deal Agent a
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Servicer's Put Option Purchase Date Certificate, together with
evidence to the reasonable satisfaction of the Deal Agent
(which evidence may consist solely of the Servicer's Put
Option Purchase Date Certificate) that the Seller shall have
sufficient funds on the related Put Option Purchase Date to
effect the contemplated Put Option in accordance with this
Agreement. In effecting a Put Option, the Seller may use the
proceeds of sales of the Assets (which sales must be made in
arm's-length transactions to Persons other than the
Originator);
(v) After giving effect to the prepayment of Capital
pursuant to the exercise of the Put Option and the assignment
to the Seller of the Assets on any Put Option Purchase Date,
(x) the remaining aggregate Capital shall be less than or
equal to the lesser of the Capital Limit and the Purchase
Limit, (y) the representations and warranties contained in
Section 4.1 and Section 4.2 hereof shall continue to be
correct in all material respects, except to the extent
relating to an earlier date, and (z) neither an Early
Amortization Event nor an event that, with the giving of
notice of the lapse of time, or both, would become an Early
Amortization Event, shall have resulted.
(vi) On the related Put Option Purchase Date, the
Deal Agent shall have received, for the benefit of the
Purchasers and the Hedge Counterparties, as applicable, in
immediately available funds, an amount equal to the sum of (i)
the portion of the aggregate Capital to be prepaid plus (ii)
an amount equal to all unpaid Yield to the extent reasonably
determined by the Deal Agent to be attributable to that
portion of the aggregate Capital to be paid in connection with
the Put Option plus (iii) an aggregate amount equal to the sum
of all other amounts due and owing to the Deal Agent, the
Purchasers and the Hedge Counterparties, as applicable, under
this Agreement and the other Transaction Documents, to the
extent accrued to such date and to accrue thereafter
(including, without limitation, Breakage Costs and Hedge
Breakage Costs).
(vii) On or prior to each Put Option Purchase Date,
the Deal Agent shall designate the Assets to be sold and
assigned to the Seller.
(b) In connection with any Put Option that does not constitute
a prepayment in full of the outstanding aggregate Capital,
then, following receipt by the Deal Agent of the amounts
referred to in clause (v) above, there shall be sold and
assigned to the Seller all of the right, title and interest of
the Deal Agent in, to and under the portion of the Assets so
retransferred and such portion of the Assets so retransferred
shall be released from the Lien of this Agreement (subject to
the requirements of clause (iv) above).
(c) The Seller hereby agrees to pay the reasonable legal fees
and expenses of the Deal Agent, the Purchasers and the Hedge
Counterparties in connection with any Put Option (including,
but not limited to, expenses incurred in connection with the
release of the Lien of the Deal Agent, the Purchasers, the
Hedge
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Counterparties and any other party having such an interest in
the Assets in connection with such Put Option).
(d) In connection with any Put Option, on the related Put
Option Purchase Date, the Deal Agent, on behalf of the
Purchasers and the Hedge Counterparties, shall, at the expense
of the Seller (i) execute such instruments of release with
respect to the portion of the Assets to be retransferred to
the Seller, in recordable form if necessary, in favor of the
Seller as the Seller may reasonably request, (ii) deliver any
portion of the Assets to be retransferred to the Seller in its
possession to the Seller and (iii) otherwise take such
actions, and cause or permit the Collateral Custodian to take
such actions, as are necessary and appropriate to release the
Lien of the Deal Agent on the portion of the Assets to be
retransferred to the Seller and release and deliver to the
Seller such portion of the Assets to be retransferred to the
Seller."
(e) Notwithstanding any other provision of this Section 2.17,
the closing of the Put Option may only occur if the Seller
obtains the Capital for which the Put Option is being
exercised by transferring the applicable Assets in a Permitted
Securitization Transaction.
(g) The amount of the "Commitment" for the Required Investors set forth
on the signature pages of the Agreement is hereby amended and restated
to be "$95,000,000."
SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED. Except as
specifically amended hereby, the Agreement shall remain in full force and
effect. All references to the Agreement shall be deemed to mean the Agreement as
modified hereby. This Amendment shall not constitute a novation of the
Agreement, but shall constitute an amendment thereof. The parties hereto agree
to be bound by the terms and conditions of the Agreement, as amended by this
Amendment, as though such terms and conditions were set forth herein.
SECTION 3. REPRESENTATIONS. Each of the Seller and Servicer represent
and warrant as of the date of this Amendment as follows:
(i) it is duly incorporated or organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization;
(ii) the execution, delivery and performance by it of this
Amendment are within its powers, have been duly authorized, and do not
contravene (A) its charter, by-laws, or other organizational documents,
or (B) any Requirements of Law applicable to it;
(iii) no consent, license, permit, approval or authorization
of, or registration, filing or declaration with any governmental
authority, is required in connection with the execution, delivery,
performance, validity or enforceability of this Amendment by or against
it;
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(iv) this Amendment has been duly executed and delivered by
it;
(v) this Amendment constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity;
(vi) it is not in default under the Agreement; and
(vii) there is no Early Amortization Event, Servicer
Termination Event or event that, with the giving of notice or the lapse
of time, or both, would become an Early Amortization Event or Servicer
Termination Event.
SECTION 4. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
subject to the following conditions precedent: (i) delivery to the Deal Agent of
a copy of the Amendment, duly executed by each of the parties hereto; (ii)
delivery to the Deal Agent (in a form acceptable to it) of a due authorization,
execution, and enforceability opinion with respect to this Amendment; and (iii)
such other documents, agreements, certificates or legal opinions as the Deal
Agent, may reasonably require.
SECTION 5. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts, and
by the different parties hereto on the same or separate counterparts, each of
which shall be deemed to be an original instrument but all of which together
shall constitute one and the same agreement.
(b) The descriptive headings of the various sections of this Amendment
are inserted for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified except as
provided in the Agreement.
(d) First Union certifies by execution hereof that it is an Investor
with Commitments in excess of 66-2/3% of the Purchase Limit, and therefore is a
Required Investor pursuant to the Agreement.
(e) The failure or unenforceability of any provision hereof shall not
affect the other provisions of this Amendment.
(f) Whenever the context and construction so require, all words used in
the singular number herein shall be deemed to have been used in the plural, and
vice versa, and the masculine gender shall include the feminine and neuter and
the neuter shall include the masculine and feminine.
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(g) This Amendment represents the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements between the parties. There are no unwritten oral agreements
between the parties.
(h) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SELLER: FNBNE FUNDING CORP.
By: /s/ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
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Title: Vice President
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THE SERVICER: FIRST INTERNATIONAL BANK
(f/k/a First National Bank of England)
By: /s/▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President
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THE REQUIRED INVESTORS: FIRST UNION NATIONAL BANK
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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Commitment: $95,000,000
First Union National Bank
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Attention: Capital Markets Credit Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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VFCC: VARIABLE FUNDING CAPITAL CORPORATION
By First Union Securities, Inc. (successor-in-
interest to First Union Capital Markets Corp.)
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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First Union Securities, Inc.
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Attention: Conduit Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Lord Securities Corp.
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Attention: Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE DEAL AGENT: FIRST UNION SECURITIES, INC.
(successor-in-interest First Union Capital Markets
Corp.)
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Director
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First Union Securities, Inc.
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Attention: Conduit Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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THE HEDGE COUNTERPARTY: FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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First Union National Bank
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Attention: Capital Markets Credit Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE LIQUIDITY AGENT: FIRST UNION NATIONAL BANK
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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First Union National Bank
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Attention: Capital Markets Credit Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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THE COLLATERAL CUSTODIAN: HSBC BANK USA
By: /s/▇▇▇▇▇ Barstock
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Name: ▇▇▇▇▇ Barstock
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Title: Assistant Vice President
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HSBC Bank USA
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Corporate Trust Department, 12th Floor
New York, New York 10005
Attention: ▇▇▇▇▇ Barstock
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE BACKUP SERVICER: HSBC BANK USA
By: /s/▇▇▇▇▇ Barstock
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Name: ▇▇▇▇▇ Barstock
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Title: Assistant Vice President
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HSBC Bank USA
▇▇▇ ▇▇▇▇▇▇▇▇
Corporate Trust Department, 12th Floor
New York, New York 10005
Attention: ▇▇▇▇▇ Barstock
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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