Exhibit 10.122


 


EXECUTION COPY


 


AMENDMENT NO. 5 TO

NOTE PURCHASE AGREEMENT


 


AMENDMENT NO. 5 TO NOTE PURCHASE AGREEMENT, dated as of August 15, 2005 (the “Amendment”), by and among FIRST INVESTORS
RESIDUAL FUNDING LP (“Issuer”), VARIABLE FUNDING CAPITAL CORPORATION, WACHOVIA BANK,
NATIONAL ASSOCIATION (f/k/a First Union National Bank), the financial
institutions 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”) and
collateral agent (the “Collateral Agent”).


 


W I T N E S S E T H:


 


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


 


WHEREAS, the parties to the Note Purchase Agreement desire to make certain
amendments to the Note Purchase Agreement;


 


NOW, THEREFORE, in consideration of the foregoing, and the
respective agreements, warranties and covenants contained herein, the parties
hereto agree, covenant and warrant as follows:


 


SECTION 1. DEFINITIONS


 


1.1          Interpretation.  All capitalized terms used herein (including the recitals hereto) shall
have the respective meanings assigned thereto in the Note Purchase Agreement
unless otherwise defined herein.


 


1.2          Revised
Definitions.


 


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


 


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


 


SECTION 2. REPRESENTATIONS, WARRANTIES AND
COVENANTS


 


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


 





















 


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


 


SECTION 3. EFFECTIVENESS OF THIS AMENDMENT


 


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


 


SECTION 4. PROVISIONS OF GENERAL APPLICATION


 


4.1          Effect
of this Amendment.  Except as modified pursuant hereto, no other changes
or modifications to the Transaction Documents are intended or implied and in
all other respects each of the Transaction Documents are hereby specifically
ratified, restated and confirmed by all parties hereto as of the effective date
hereof. To the extent of conflict between the terms of this Amendment and any
other Transaction Document, the terms of this Amendment shall control. The Note
Purchase Agreement and this Amendment shall be read and construed as one
agreement.


 


4.2          Further
Assurances.  Issuer and FIFS shall execute and deliver
such additional documents and take such additional action as may, in the
opinion of the Deal Agent, be necessary or desirable to effectuate the
provisions and purposes of this Amendment.


 


4.3          Binding
Effect.  This Amendment shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.


 


4.4          Survival
of Representations and Warranties.  All representations and warranties made in this Amendment or any
other document furnished in connection with this Amendment shall survive the
execution and delivery of this Amendment and the other documents, and no
investigation by the Deal Agent, the Collateral Agent or any Secured Party or


 


2





















 


any
closing shall affect the representations and warranties or the right of Lenders
to rely upon them.


 


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


 


4.6          Governing
Law.  THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW).


 


4.8          Counterparts.
 This Amendment may be executed in any number
of counterparts, but all of such counterparts shall together constitute but one
and the same agreement.


 


 


[Remainder of Page Intentionally Left Blank]


 


3





















 


IN WITNESS WHEREOF, this Amendment is executed and delivered as
of 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 Purchase
Agreement]


 





















 


	
  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 Purchase
Agreement]