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Exhibit 10.13.3
AMENDMENT NO. 3 TO
AMENDED AND RESTATED LOAN
PURCHASE AND SERVICING AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED LOAN PURCHASE AND
SERVICING AGREEMENT, dated as of December 13, 2000 (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 a Loan Purchase and Servicing
Agreement, dated as of December 23, 1998, that was amended and restated by the
Amended and Restated Loan Purchase and Servicing Agreement, dated as of
September 24, 1999, as amended by Amendment No. 1, dated as of November 23, 1999
and Amendment No. 2, dated as of May 15, 2000 (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) Section 1.1 is hereby amended by adding the following definitions
thereto:
"FDIC: Federal Deposit Insurance Corporation or any successor
thereto.
FDIC Action: The entering into with, or issuance by, the FDIC
of a memorandum of understanding or any similar or more severe
enforcement action that has a Material Adverse Effect with
respect to the Originator or any Affiliate thereof; provided,
that, the determination of whether a memorandum of
understanding or any more severe enforcement action has a
Material Adverse Effect, or whether an enforcement action is
more severe than a memorandum of understanding, shall be made
by the Deal Agent (in its reasonable discretion).
Material Adverse Effect: With respect to any memorandum of
understanding with the FDIC or any similar or more severe
enforcement action taken by the FDIC, means a material adverse
effect on (a) the ability of the Originator or any Affiliate
to conduct its business in the manner that it conducted
business before
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the date of such memorandum of understanding or enforcement
action, (b) the capitalization of the Originator, provided,
that, no memorandum of understanding or enforcement action
will be deemed to have a material adverse effect on the
Originator's capitalization if and for so long as the
Originator remains in compliance with any operational and/or
capitalization agreement or plan prepared in connection with
such memorandum of understanding or other enforcement action,
(c) the validity, enforceability or collectibility of the
Agreement or any other Transaction Document, or the validity
enforceability or collectibility of the Assets generally or
any material portion of the Assets, (d) the rights and
remedies of the Deal Agent and the Secured Parties, (e) the
ability of the Seller, the Servicer, the Backup Servicer, or
the Collateral Custodian to perform its respective obligations
under the Agreement or any Transaction Document, or (f) the
status, existence, perfection, priority or enforceability of
the Secured Parties' interest in the Assets.".
(b) The definition of "Commitment Termination Date" set forth in
Section 1.1 of the Agreement is hereby amended and restated in its entirety as
follows:
"Commitment Termination Date: November 23, 2003, 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).".
(c) The definition of "Eligible Loan" in Section 1.1 is hereby amended
as follows:
(1) Subsection (xx) is hereby amended and restated in its
entirety as follows:
"(xx) the Loan has an Eligible Risk Rating and was
approved according to the Originator's Credit and
Collection Policies;";
(2) Subsection (xxiii) is hereby amended by deleting the word
"and" at the end thereof;
(3) Subsection (xxiv) is hereby amended by deleting the period
at the end thereof and substituting in its place the following:
" ; and"; and
(4) The following subsection (xxv) shall be added at the end
thereof:
"(xxv) if a Loan is an AIG 2 Loan, it became part of
the Asset Pool prior to December 13, 2000.".
(d) The definition of "Eligible Obligor" in Section 1.1 is
hereby amended as follows:
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(1) Subsection (viii) is hereby amended by deleting
the period at the end thereof and substituting in its place
the following:
" ; and"; and
(2) Subsection (ix) is hereby amended and restated in
its entirety as follows:
"(ix) the Obligor has an Eligible Risk
Rating and was approved according to the
Originator's Credit and Collection
Policies.".
(e) The definition of "Eligible Risk Rating" in Section 1.1 is hereby
amended and restated in its entirety as follows:
"Eligible Risk Rating: As of any date of determination, with
respect to a designated Loan or Obligor, a risk rating of
"4.0" or better as determined or should have been determined
by the Servicer in accordance with the Credit and Collection
Policies or as designated by the Originator.".
(f) Article I is hereby amended by adding the following Section 1.4
thereto:
"SECTION 1.4 INTERPRETATION.
In each Transaction Document, unless a contrary intention
appears:
(i) the singular number includes the plural number
and vice versa;
(ii) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such
successors and assigns are permitted by the Transaction
Documents;
(iii) reference to any gender includes each other
gender;
(iv) reference to day or days without further
qualification means calendar days;
(v) reference to any time means Charlotte, North
Carolina time;
(vi) reference to any agreement (including any
Transaction Document), document or instrument means such
agreement, document or instrument as amended, supplemented or
modified and in effect from time to time in accordance with
the terms thereof and, if applicable, the terms of the other
Transaction Documents, and reference to any promissory note
includes any promissory note that is an extension or renewal
thereof or a substitute or replacement therefor;
(vii) reference to any Requirements of Law means such
Requirements of Law as amended, modified, codified, replaced
or reenacted, in whole or in part,
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and in effect from time to time, including rules and
regulations promulgated thereunder and reference to any
section or other provision of any Requirements of Law means
that provision of such Requirements of Law from time to time
in effect and constituting the substantive amendment,
modification, codification, replacement or reenactment of such
section or other provision; and
(viii) use of the convention "MM" in this Agreement
(including any Exhibit or Schedule) or any Transaction
Document in connection with a dollar amount denotes a dollar
amount in million dollar increments; for example, $35MM means
$35,000,000.00.".
(g) Section 2.1 is hereby amended by adding the following subsection
(d) thereto:
"(d) Notwithstanding the foregoing Sections 2.1(b) and (c),
upon the occurrence of any FDIC Action and (x) the failure of
the Originator to be in compliance with the requirements of
such FDIC Action on the date that is 120 days after the
effective date of the FDIC Action (a "clause (x) failure") or
(y) as to any portion of the FDIC Action that requires
compliance after the end of such 120 days, the failure of the
Originator to be in compliance with the requirements of such
FDIC Action at or within 60 days after such compliance is
required by such FDIC Action (a "clause (y) failure"), the
Commitment Termination Date shall be the date that is the
earlier of (i) (a) with respect to a clause (x) failure, the
date that is 120 days after the FDIC Action, or (b) with
respect to a clause (y) failure, the date that is 60 days
after the date of the clause (y) failure, and (ii) the then
Commitment Termination Date, unless the Deal Agent and 100% of
the Investors, upon appropriate due diligence and credit
approvals agree that the then Commitment Termination Date
should not be accelerated.".
(h) Section 5.2 is hereby amended by adding the following subsection
(v) thereto:
"(v) No New AIG 2 Loans. The Seller will not purchase from the
Originator nor will the Seller sell and assign Asset Interests
to the Purchaser in any AIG 2 Loan after December 13, 2000.".
(i) Article VI is hereby amended by adding the following Section 6.31
thereto:
"SECTION 6.31 COVENANTS OF ORIGINATOR AND PURCHASER.
Each of the Originator and the Purchaser hereby covenants that
it will provide copies to the Deal Agent of all written
communications with the Federal Deposit Insurance Corporation
regarding any enforcement actions (including any FDIC Action)
within five days of such action; provided, that the Originator
and the Purchaser will not provide copies to the Deal Agent of
any written communication with the FDIC which the Originator
or Purchaser, as applicable, is not permitted to deliver to
the Deal Agent under applicable laws or regulations.".
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(j) Schedule II is hereby amended as follows:
(1) The concentration and mix requirement "Loan Size" is
hereby amended and restated in its entirety as follows:
"Loan Size: No single Loan may exceed the greater of
$2.375MM or 2.5% of the outstanding Capital;
provided, however, if the Aggregate Outstanding Loan
Balance is less than $20MM then no single Loan may
exceed 2.5% of the outstanding Capital.";
(2) The concentration and mix requirement "Obligor
Concentration" is hereby amended and restated in its entirety as
follows:
"Obligor Concentration: The Outstanding Loan Balance
of Loans to any single Eligible Obligor shall not
exceed the greater of $4.75MM or 5% of the
outstanding Capital; provided, however, if the
Aggregate Outstanding Loan Balance is less than
$20MM, then the Outstanding Loan Balance of Loans to
any single Eligible Obligor shall not account for
more than 5% of the outstanding Capital.";
(3) The concentration and mix requirement "Top Five" is hereby
amended and restated in its entirety as follows:
"Top Five: The Outstanding Loan Balance of the top
five (5) Loans shall not exceed the greater of $9.5MM
or 10% of the outstanding Capital; provided, however,
if the Aggregate Outstanding Loan Balance is less
than $20MM, then the Outstanding Loan Balance of the
top five (5) Loans shall not account for more than
10% of the outstanding Capital.";
(4) The following concentration and mix requirement is added
thereto:
"Loans Risk Rated 4.0: The Outstanding Loan Balance
of all Commercial Loans risk rated 4.0 shall not
account for more than 10% of the outstanding
Commercial Loans, such risk rating to be measured on
the initial Purchase Date."; and
(5) The concentration and mix requirement "Credit Line Ratio
Minimum" is hereby deleted in its entirety.
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.
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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;
(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.
(viii) the Seller certifies by execution hereof that this
Amendment will not jeopardize its status as a qualifying special
purpose entity under FASB 125 Statement, as amended and interpreted.
SECTION 4. CONDITION PRECEDENT. The effectiveness of this Amendment is
subject to the due execution of this Amendment by each of the parties hereto.
SECTION 5. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts
(including by facsimile), 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.
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(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 Seller certifies by execution hereof that this Amendment will
not jeopardize its status as a qualifying special purpose entity under FASB 125
Statement, as amended and interpreted.
(f) The failure or unenforceability of any provision hereof shall not
affect the other provisions of this Amendment.
(g) 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.
(h) 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.
(i) 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/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
THE SERVICER: FIRST INTERNATIONAL BANK
(f/k/a First National Bank of New England)
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
THE REQUIRED INVESTORS: FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
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: Director
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First Union Securities, Inc.
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Attention: Conduit Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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: Vice President
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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
▇▇▇ ▇▇▇▇▇▇▇▇
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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