Exhibit 10.107(b)
AMENDMENT NUMBER 3 TO NOTE PURCHASE AGREEMENT
THIS AMENDMENT NUMBER 3 TO NOTE PURCHASE AGREEMENT, dated as of January 14,
2002 (this "AMENDMENT") is entered into among FIRST INVESTORS AUTO RECEIVABLES
CORPORATION, a Delaware corporation, as issuer (in such capacity, the "ISSUER")
and VARIABLE FUNDING CAPITAL CORPORATION, a Delaware corporation, (the
"COMPANY"). Capitalized terms used and not otherwise defined herein are used as
defined in the Note Purchase Agreement (as defined below).
WHEREAS, the Issuer and the Company entered into that certain Note Purchase
Agreement, dated as of October 22, 1996, as amended by that Amendment Number 1
to Note Purchase Agreement, dated as of March 31, 1999, Amendment Number 2 to
Note Purchase Agreement, dated as of November 29, 2000 and the First Omnibus
Amendment to Transaction Documents, dated as of the date hereof (as amended,
supplemented or restated to the date hereof, the "NOTE PURCHASE AGREEMENT");
WHEREAS, the parties hereto desire to amend the Note Purchase Agreement in
certain respects as provided herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS. Effective as of the Effective Date, the Note
Purchase Agreement is hereby amended as follows:
(a) Section 1.1 of the Note Purchase Agreement are hereby amended as
follows:
(i) The introductory paragraph is hereby modified, amended and
restated to read in its entirety as follows:
"Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings given to such terms in the Security Agreement.
The following terms shall have the following meanings:"
(ii) The definition of "Related Commercial Paper" is hereby deleted in
its entirety.
(b) The following definition is added in appropriate alphabetical order in
Section 1.1 of the Note Purchase Agreement:
"BANKRUPTCY CODE" shall mean the United States Bankruptcy Reform Act
of 1978 (11 U.S.C.Section 101, et seq.), as amended from time to
time."
(c) Section 2.1(a) of the Note Purchase Agreement is hereby amended by
deleting the first sentence therein and substituting in lieu thereof, the
following:
"Subject to the terms and conditions hereof, the Issuer may from time
to time on or after the Effective Date and prior to the Termination
Date, request advances of principal under the Note. Upon the terms and
subject to the conditions herein set forth, the Company may, in its
sole and absolute discretion, make advances and, if the Company does
not make any such advances, the Liquidity Provider shall, make
advances (any such advance, whether made by the Company or the
Liquidity Provider, a "FUNDING", and the first such advance, the
"INITIAL FUNDING") to the Issuer."
(d) Section 2.1(c) of the Note Purchase Agreement is hereby amended by
deleting clause (i) therein and substituting in lieu thereof, the following:
"(i) before and after giving effect to such Funding and to the
application of the proceeds therefrom the Net Investment does not
exceed the Facility Limit;"
(e) Section 2.1(e) of the Note Purchase Agreement is hereby modified,
amended and restated to read in its entirety as follows:
"On the date of each Funding, the Company shall make available to the
Issuer in immediately available funds, the amount of the Funding to be
made on such day by remitting the amount thereof to an account of the
Issuer as designated in the related Funding Request."
(f) Section 4.2 of the Note Purchase Agreement is hereby amended by adding
the term "including Breakage Costs" immediately after the word costs in the
first sentence therein.
(g) Section 5.10 of the Note Purchase Agreement is hereby modified,
amended and restated to read in its entirety as follows:
"(a) No recourse under or with respect to any obligation, covenant or
agreement (including, without limitation, the payment of any fees or
any other obligations) of any Secured Party as contained in this
Agreement or any other agreement, instrument or document entered into
by it pursuant hereto or in connection herewith shall be had against
any administrator of such Secured Party or any incorporator,
affiliate, stockholder, officer, employee or director of such Secured
Party or of any such administrator, as such, by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any
statute or otherwise; IT BEING EXPRESSLY AGREED AND UNDERSTOOD that
the agreements of such
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Secured Party contained in this Agreement and all of the other
agreements, instruments and documents entered into by it pursuant
hereto or in connection herewith are, in each case, solely the
corporate obligations of such Secured Party, and that no personal
liability whatsoever shall attach to or be incurred by any
administrator of such Secured Party or any incorporation, stockholder,
affiliate, officer, employee or director of such Secured Party or of
any such administrator, as such, or any other of them, under or by
reason of any of obligations, covenants or agreements of such Secured
Party contained in this Agreement or in any other such instruments,
documents or agreements, or that are implied therefrom, and that any
and all personal liability of every such administrator of such Secured
Party and each incorporator, stockholder, affiliate, officer, employee
or director of such Secured Party or of any such administrator, or any
of them, for breaches by such Secured Party or any such obligations,
covenants or agreements, which liability may arise either at common
law or at equity, by statute or constitution or otherwise, is hereby
expressly waived as a condition of an in consideration for the
execution of this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, the
Company shall not have any obligation to pay any amount required to be
paid by it hereunder in excess of any amount available to the Company
after paying or making provision for the payment of its Commercial
Paper. All payment obligations of the Company hereunder are contingent
on the availability of funds in the excess of amounts necessary to pay
its Commercial Paper and each of the other parties hereto agrees that
it will not have a claim under Section 101(5) of the Bankruptcy Code
if and to the extent that any such payment obligation owed to it by
the Company exceeds the amount available to the Company to pay such
amount after paying or making the provision for the payment of its
Commercial Paper."
(c) The provisions of this Section 5.10 shall survive the termination
of this Agreement.
SECTION 2. EFFECTIVE DATE. This Amendment shall become effective as of the
date (the "EFFECTIVE DATE") on which each of the following conditions precedent
shall have been satisfied:
(a) AMENDMENT. The Company, the Administrative Agent and the Surety Bond
Provider shall have received multiple counterparts, as requested, of this
Amendment, executed and delivered by a duly authorized officer of each party
hereto.
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(b) LIQUIDITY AGREEMENT. The Liquidity Purchase Agreement shall have been
duly executed by the parties thereto.
(c) FIRST OMNIBUS AMENDMENT TO TRANSACTION DOCUMENTS. Each of the
conditions set forth in Section 6 of the First Omnibus Amendment to Transaction
Documents shall have been satisfied.
(d) OTHER INFORMATION. The Issuer shall have taken such other action,
including delivery of approvals, consents, opinions, documents and instruments,
as the Company, the Administrative Agent or the Surety Bond Provider may
reasonably request.
SECTION 3. MISCELLANEOUS.
(a) REFERENCES IN NOTE PURCHASE AGREEMENT. Upon the effectiveness of this
Amendment, each reference in the Note Purchase Agreement to "this Agreement",
"hereunder", "hereof", "herein", or words of like import shall mean and be a
reference to the Note Purchase Agreement as amended hereby, and each reference
to the Note Purchase Agreement in any other Transaction Document or any other
document, instrument or agreement, executed and/or delivered in connection with
any Transaction Document shall mean and be a reference to the Note Purchase
Agreement as amended hereby.
(b) EFFECT ON NOTE PURCHASE AGREEMENT. Except as specifically amended
hereby, the Note Purchase Agreement shall remain in full force and effect. This
Amendment shall not constitute a novation of the Note Purchase Agreement, but
shall constitute an amendment thereof.
(c) NO WAIVER. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Person under
the Note Purchase Agreement or any other document, instrument or agreement
executed in connection therewith, nor constitute a waiver of any provision
contained therein.
(d) SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
(e) COUNTERPARTS. 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. Delivery of an
executed counterpart of a signature page by facsimile shall be effective as
delivery of a manually executed counterpart of this Amendment.
(f) HEADINGS. 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.
(g) AMENDMENTS. This Amendment may not be amended or otherwise modified
except as provided in the Note Purchase Agreement.
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(h) GOVERNING LAW. THIS AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE
VALLIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH,THE LAWS OF THE STATE OF NEY YORK, OTHER THAN THE CONFLICT OF
LAW RULES THEREOF.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective officers thereunto duty authorized, as of the date first
above written.
FIRST INVESTORS AUTO RECEIVABLES
CORPORATION.
By:
---------------------------------
Name:
Title:
VARIABLE FUNDING CAPITAL CORPORATION
By First Union Securities, Inc.
as attorney-in-fact
By:
--------------------------
Name:
Title:
Consented to this __ day of January, 2002:
MBIA INSURANCE CORPORATION
By:
---------------------------------
Name:
Title:
