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AMENDMENT NO. 2 TO
AMENDED AND RESTATED LOAN
PURCHASE AND SERVICING AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN PURCHASE AND SERVICING
AGREEMENT, dated as of May 15, 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 that certain 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 (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 "Aggregate Outstanding Loan Balance" set forth in
Section 1.1 of the Agreement is hereby amended and restated as follows:
"Aggregate Outstanding Loan Balance: As of any date of
determination, the sum of the Outstanding Loan Balances of all
Eligible Loans included as part of the Asset Pool on such date;
provided, however, that for purposes of determining the Capital
Limit, the Aggregate Outstanding Loan Balance shall not include the
Outstanding Loan Balances of Defaulted Loans and Charged-Off Loans."
(b) The definition of "AIG 2 Loans" set forth in Section 1.1 of the
Agreement is hereby amended and restated as follows:
"AIG 2 Loans: Loans to an Obligor that are Inventory Buyer Program
Loans or Equipment Buyer Program Loans, a portion of the Outstanding
Loan Balance of
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which is insured by the AIG Policy 2; provided, however, that no AIG
2 Loan shall have an Outstanding Loan Balance in excess of
$500,000."
(c) The definition of "AIG Loan" set forth in Section 1.1 of the Agreement
is hereby amended and restated as follows:
"AIG Loan: A Loan to an Obligor that is a short term import loan,
with a term of 360 days or less and with interest and principal
payable at maturity, a portion of the Outstanding Loan Balance of
which is insured by the AIG Policy; provided, however, that no AIG
Loan shall have an Outstanding Loan Balance in excess of $500,000.
(d) The following definition of "Argentinian Loan" is hereby added to
Section 1.1 of the Agreement as follows:
"Argentinian Loan: A Loan either (i) secured by collateral located
in Argentina or (ii) to an Obligor whose principal place of business
is located in Argentina."
(e) The following definition of "Brazilian Loan" is hereby added to
Section 1.1 of the Agreement as follows:
"Brazilian Loan: A Loan either (i) secured by collateral located in
Brazil or (ii) to an Obligor whose principal place of business is
located in Brazil."
(f) Section 2.7(a)(J) of the Agreement is hereby amended and restated in
its entirety as follows:
"(J) TENTH, so long as (a) any AIG Loans or AIG 2 Loans in the Asset
Pool are outstanding and (b) the Average Default Ratio has not been
less than 4.0% for three (3) consecutive Collection Periods, to the
Cash Collateral Account, to the extent that the balance in such
account is less than the greater of (i) $2,000,000 or (ii) the
lesser of (A) an amount sufficient to cover the deductible amount of
the AIG Policy and/or AIG Policy 2 or (B) the sum of the Outstanding
Loan Balance of all AIG Loans and AIG 2 Loans in the Asset Pool on
such Payment Date;"
(g) Section 5.2(t)(iv) of the Agreement is hereby amended and restated in
its entirety as follows:
"(iv) the greater of (x) $2,000,000 or (y) amounts sufficient to
cover the deductible amount of the AIG Policy or AIG Policy 2 will
be on deposit in the Cash Collateral Account; provided, however,
that if the Average Default Ratio is less than 4.0% for three (3)
consecutive Collection Periods, the amount in clause (x) shall be
(a) $0 if no AIG Loans or AIG 2 Loans in the Asset Pool are
outstanding or (b) an amount sufficient to cover the deductible
amount of the AIG Policy and/or AIG Policy 2 if any AIG Loans or AIG
2 Loans in the Asset Pool are outstanding."
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(h) Section 6.4(g) of the Agreement is hereby amended and restated in its
entirety as follows:
"(g) Establishment and Maintenance of the Cash Collateral Account.
For so long as any AIG Loans or AIG 2 Loans in the Asset Pool are
outstanding and the Average Default Ratio has not been less than
4.0% for three (3) consecutive Collection Periods, the Servicer
shall cause to be established and maintained in the name of the Deal
Agent, with a "Qualified Institution" (as defined in subsection (f)
above) the Cash Collateral Account (the "Cash Collateral Account")
with a minimum of $2,000,000 to be held in such account."
(i) Section 7.1(n) of the Agreement is hereby amended and restated in its
entirety as follows:
"(n) (i) as of the Determination Dates occurring on April 30, 2000
and May 31, 2000, the Average Default Ratio is greater than 9.25%,
(ii) as of the Determination Date on June 30, 2000, the Average
Default Ratio is greater than 8.0%, (iii) as of the Determination
Date occurring on July 31, 2000, the Average Default Ratio is
greater than 5.0% or (iv) as of any Determination Date occurring
after July 31, 2000, the Average Default Ratio is greater than 4.0%;
or"
(j) Section 7.1 of the Agreement is hereby amended by adding the following
new subsection (v):
"(v) for the Determination Date on June 30, 2000, the Default Ratio
is greater than 3.5%."
(k) Schedule II of the Agreement is hereby amended by adding the
following:
"AIG Loans and AIG 2 Loans. The sum of the Outstanding Loan Balance
of all AIG Loans and AIG 2 Loans is no more than 42.5% of the
outstanding Capital through the June, 2000 Collection Period and no
more than 35% of the outstanding Capital for Collection Periods
thereafter.
"Argentinian Loans and Brazilian Loans: After May 15, 2000, no
Argentinian Loans or Brazilian Loans may be added to the Asset Pool.
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 delivery to the Deal Agent of a copy of the Amendment, duly
executed 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.
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(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 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/Ted Horan
---------------------------------
Name: Ted Horan
---------------------------------
Title: Vice President
---------------------------------
THE SERVICER: FIRST INTERNATIONAL BANK
(f/k/a First National Bank of England)
By: /s/Ted Horan
---------------------------------
Name: Ted Horan
---------------------------------
Title: Senior Vice President
---------------------------------
THE REQUIRED INVESTORS: FIRST UNION NATIONAL BANK
By: /s/David M. Roberts
---------------------------------
Name: David M. Roberts
---------------------------------
Title: Senior Vice President
---------------------------------
Commitment: $95,000,000
First Union National Bank
One First Union Center, TW-9
Charlotte, North Carolina 28288
Attention: Capital Markets Credit
Administration
Facsimile: (704) 374-3254
Telephone: (704) 374-4001
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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/Paul S. Zajac
---------------------------------
Name: Paul S. Zajac
---------------------------------
Title: Vice President
---------------------------------
First Union Securities, Inc.
One First Union Center, TW-9
Charlotte, North Carolina 28288
Attention: Conduit Administration
Facsimile: (704) 383-6036
Telephone: (704) 383-9343
With a copy to: Lord Securities Corp.
2 Wall Street, 19th Floor
New York, New York 10005
Attention: Vice President
Facsimile: (212) 346-9012
Confirmation No.: (212) 346-9008
THE DEAL AGENT: FIRST UNION SECURITIES, INC.
(successor-in-interest First Union
Capital Markets Corp.)
By: /s/James L. Sigman
---------------------------------
Name: James L. Sigman
---------------------------------
Title: Director
---------------------------------
First Union Securities, Inc.
One First Union Center, TW-9
Charlotte, North Carolina 28288
Attention: Conduit Administration
Facsimile: (704) 383-6036
Telephone: (704) 383-9343
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THE HEDGE COUNTERPARTY: FIRST UNION NATIONAL BANK
By: /s/David M. Roberts
---------------------------------
Name: David M. Roberts
---------------------------------
Title: Senior Vice President
---------------------------------
First Union National Bank
One First Union Center, TW-9
Charlotte, North Carolina 28288
Attention: Capital Markets Credit
Administration
Facsimile: (704) 374-3254
Telephone: (704) 374-4001
THE LIQUIDITY AGENT: FIRST UNION NATIONAL BANK
By: /s/David M. Roberts
---------------------------------
Name: David M. Roberts
---------------------------------
Title: Senior Vice President
---------------------------------
First Union National Bank
One First Union Center, TW-9
Charlotte, North Carolina 28288
Attention: Capital Markets Credit
Administration
Facsimile: (704) 374-3254
Telephone: (704) 374-4001
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THE COLLATERAL CUSTODIAN: HSBC BANK USA
By: /s/Susan Barstock
---------------------------------
Name: Susan Barstock
---------------------------------
Title: Assistant Vice President
---------------------------------
HSBC Bank USA
140 Broadway
Corporate Trust Department, 12th Floor
New York, New York 10005
Attention: Susan Barstock
Facsimile: (212) 658-6425
THE BACKUP SERVICER: HSBC BANK USA
By: /s/Susan Barstock
---------------------------------
Name: Susan Barstock
---------------------------------
Title: Assistant Vice President
---------------------------------
HSBC Bank USA
140 Broadway
Corporate Trust Department, 12th Floor
New York, New York 10005
Attention: Susan Barstock
Facsimile: (212) 658-6425
