**Exhibit 10.122**

** **

EXECUTION COPY

 

**AMENDMENT NO. 5 TONOTE PURCHASE AGREEMENT**

 

**AMENDMENT NO. 5 TO NOTE PURCHASE AGREEMENT,**dated as of August 15, 2005 (the “*Amendment*”),**by and among FIRST INVESTORSRESIDUAL FUNDING LP (“*Issuer*”),**VARIABLE FUNDING CAPITAL CORPORATION, WACHOVIA BANK,NATIONAL ASSOCIATION (f/k/a First Union National Bank), the financialinstitutions from time to time party thereto and WACHOVIA CAPITAL MARKETS, LLC(successor in interest to First Union Securities, Inc.), as the deal agent(the “*Deal Agent*”)**andcollateral agent (the “*Collateral Agent*”).

 

**W I T N E S S E T H****:**

 

**WHEREAS,** theparties hereto entered into the Note Purchase Agreement, dated as of December 6,2001 (as amended, modified and waived to the date hereof, the “*NotePurchase Agreement*”);**and

 

**WHEREAS,**the parties to the Note Purchase Agreement desire to make certainamendments to the Note Purchase Agreement;

 

**NOW, THEREFORE,**in consideration of the foregoing, and therespective agreements, warranties and covenants contained herein, the partieshereto agree, covenant and warrant as follows:

 

**SECTION 1. DEFINITIONS**

 

**1.1          Interpretation. **All capitalized terms used herein (including the recitals hereto) shallhave the respective meanings assigned thereto in the Note Purchase Agreementunless otherwise defined herein.

 

**1.2          RevisedDefinitions.**

 

(a)           The definition of “FacilityLimit” in Section 1.1 of the Agreement is hereby modified, amended andrestated to read in its entirety as follows:

 

“FacilityLimit:  On any day (a) prior tothe Termination Date $23,500,000 and (b) from and after the TerminationDate zero (0).”

 

**SECTION 2. REPRESENTATIONS, WARRANTIES ANDCOVENANTS**

 

Issuer hereby represents, warrants that each of the representations andwarranties made by it or on its behalf in any of the Transaction Documents wastrue and correct when made and is true and correct on and as of the date ofthis Amendment with the same full force and effect as if each of suchrepresentations and warranties had been made by it on the date hereof and inthis

 

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Amendment.Issuer further represents and warrants to the Deal Agent, the Initial NoteInvestor, the Liquidity Agent and each Note Investor, that: (i) theexecution, delivery and performance by it of this Amendment are within itscorporate powers or limited partnership powers, as the case may be, have beenduly authorized by all necessary action, will not violate any requirement oflaw or contractual obligation of Issuer and will not result in, or require, thecreation or imposition of any lien on any of its properties or revenues, (iii) noauthorization or approval or other action by, and no notice or filing with, anygovernmental authority or regulatory body is required for the due execution,delivery and performance by it of this Amendment, (iv) this Amendment isits legal, valid and binding obligation, enforceable against it in accordancewith its terms, except as such enforceability may be limited by bankruptcy,insolvency, reorganization or similar laws affecting creditors’ rightsgenerally and (v) it is in compliance with all applicable Requirements ofLaw. The representations and warranties set forth above shall survive theexecution of this Amendment.

 

**SECTION 3. EFFECTIVENESS OF THIS AMENDMENT**

 

The terms and provisions of this Amendment shall be effective on thelast to occur of receipt by the Deal Agent of (a) an original of thisAmendment fully executed by each of the parties hereto and (b) receipt bythe Deal Agent by wire transfer in immediately available funds of a renewal feein the amount of $250,000, which fee shall be fully earned and not refundablein whole or in part upon the execution and delivery of this Amendment.

 

**SECTION 4. PROVISIONS OF GENERAL APPLICATION**

 

**4.1          Effectof this Amendment. **Except as modified pursuant hereto, no other changesor modifications to the Transaction Documents are intended or implied and inall other respects each of the Transaction Documents are hereby specificallyratified, restated and confirmed by all parties hereto as of the effective datehereof. To the extent of conflict between the terms of this Amendment and anyother Transaction Document, the terms of this Amendment shall control. The NotePurchase Agreement and this Amendment shall be read and construed as oneagreement.

 

**4.2          FurtherAssurances. **Issuer and FIFS shall execute and deliversuch additional documents and take such additional action as may, in theopinion of the Deal Agent, be necessary or desirable to effectuate theprovisions and purposes of this Amendment.

 

**4.3          BindingEffect.  **This Amendment shall be binding upon andinure to the benefit of each of the parties hereto and their respectivesuccessors and assigns.

 

**4.4          Survivalof Representations and Warranties.  **All representations and warranties made in this Amendment or anyother document furnished in connection with this Amendment shall survive theexecution and delivery of this Amendment and the other documents, and noinvestigation by the Deal Agent, the Collateral Agent or any Secured Party or

 

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anyclosing shall affect the representations and warranties or the right of Lendersto rely upon them.

 

**4.5          Severability. **Any provision of this Amendment held by a court of competent jurisdictionto be invalid or unenforceable shall not impair or invalidate the remainder ofthis Amendment.

 

**4.6          GoverningLaw.  THIS AMENDMENT SHALL BE GOVERNEDBY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEWYORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUTREFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OFTHE NEW YORK GENERAL OBLIGATIONS LAW).**

 

**4.8          Counterparts. **This Amendment may be executed in any numberof counterparts, but all of such counterparts shall together constitute but oneand the same agreement.

 

 

[Remainder of Page Intentionally Left Blank]

 

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**IN WITNESS WHEREOF,**this Amendment is executed and delivered asof the day and year first above written.

 
| **ISSUER:** | **FIRST INVESTORS RESIDUAL FUNDING LP**               |
|-------------|-------------------------------------------------------|
| ** **  | ** **                                            |
|        | **By: FIALAC Holdings, Inc.,  its sole general** |
| **Partner** |                                                  |
|        |                                                  |
|        | By:                                                   | /s/ Bennie H. Duck |   |
|        | Name:  Bennie H. Duck                                 |
|        | Title:  Vice President and Chief Financial Officer    |

 

 

[Additional Signatures to Follow]

 

 

[Signature Page to Amendment No. 5 to Note PurchaseAgreement]

 

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| **INITIAL NOTE INVESTOR:** | **VARIABLE FUNDING CAPITAL CORPORATION,** |
|----------------------------|-------------------------------------------|
|                       |                                      |
|                       |                                      |
| ** **                 | **By:**                                   | **Wachovia Capital Markets, LLC,** |
| ** **                 | ** **                                | **as attorney-in-fact** |
| ** **                 | ** **                                |
| ** **                 | ** **                                |
| ** **                 | By:                                       | /s/ Douglas R. Wilson,  SR. | ** ** |
| ** **                 | Name:                                     | DOUGLAS R. WILSON, SR. | ** ** |
| ** **                 | Title:                                    |  VICE PRESIDENT | ** ** |
| ** **                 | ** **                                |
|                       |                                      |
| **DEAL AGENT and**         | ** **                                |
| **COLLATERAL AGENT**       | **WACHOVIA CAPITAL MARKETS, LLC**         |
|                       |                                      |
|                       |                                      |
| ** **                 | By:                                       | /s/ Justin Zakocs | ** ** |
| ** **                 | Name:                                     | Justin Zakocs | ** ** |
| ** **                 | Title:                                    |  Vice President | ** ** |
|                       |                                      |
|                       |                                      |
| **LIQUIDITY  AGENT and**   | ** **                                |
| **LIQUIDITY  BANK**        | **WACHOVIA  BANK, NATIONAL ASSOCIATION**  |
|                       |                                      |
|                       |                                      |
| ** **                 | By:                                       | /s/ Kevin T. McConnell | ** ** |
| ** **                 | Name:                                     | Kevin T. McConnell | ** ** |
| ** **                 | Title:                                    |  Director | ** ** |
|                            |                                           |  |  |  |  |  |  |

 

 

[End of Signatures]

 

 

[Signature Page to Amendment No. 5 to Note PurchaseAgreement]

 

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