EXHIBIT 10.58
AMENDMENT NUMBER 1 TO NOTE PURCHASE AGREEMENT
AMENDMENT NUMBER 1 TO NOTE PURCHASE AGREEMENT (this "AMENDMENT"),
dated as of March 31, 1999 among FIRST INVESTORS AUTO RECEIVABLES CORPORATION, a
Delaware corporation, as issuer (in such capacity, the "ISSUER") and ENTERPRISE
FUNDING CORPORATION, a Delaware corporation (the "COMPANY"), amending that
certain Note Purchase Agreement dated as of October 22, 1996, as amended prior
to the date hereof (the "NOTE PURCHASE AGREEMENT").
WHEREAS, the Issuer has requested that the Note Purchase Agreement
be amended to reflect an increase in the Facility Amount; and
WHEREAS, the Transaction Documents require the consent of the Surety
Bond Provider to this amendment of the Note Purchase Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. DEFINED TERMS. As used in this Amendment, capitalized
terms shall have the same meanings assigned thereto in the Note Purchase
Agreement.
SECTION 2. AMENDMENT TO DEFINITIONS. (a) The definition of "Facility
Limit" is hereby deleted and replaced with the following:
""FACILITY LIMIT" shall mean shall mean $135,000,000."
(b) The definition of "Insurance Agreement" is hereby deleted and
replaced with the following:
""INSURANCE AGREEMENT" shall mean the Insurance Agreement dated as
of October 1, 1996 between the Issuer, the Seller, the Collateral
Agent, the Reserve Account Agent and the Surety Bond Provider as
such agreement may be amended, modified and supplemented from time
to time."
SECTION 3. AMENDMENT TO EXHIBIT A. Exhibit A is hereby deleted and
replaced with Exhibit A attached hereto.
SECTION 4. CONDITIONS PRECEDENT. This Amendment shall not become
effective until the Company shall have received the following, each of which
shall be in form and substance satisfactory to the Company:
(a) A copy of the resolutions of the Board of Directors of the
Issuer, certified by its Secretary approving the execution, delivery and
performance by the Issuer of this Amendment and the Note;
(b) The Restated Certificate of Incorporation of the Issuer,
certified by the Secretary of State or other similar official of the
Issuer's jurisdiction of incorporation dated a date reasonably prior to
the date hereof;
(c) A Good Standing Certificate for the Issuer issued by the
Secretary of State or a similar official of such Person's jurisdiction of
incorporation and certificates of qualification as a foreign corporation
issued by the Secretaries of State or other similar officials of each
jurisdic tion where such qualification is material to the transactions
contemplated by this Amendment and the Transaction Documents to which the
Issuer is a party, in each case, dated a date reasonably prior to the date
hereof;
(d) A Certificate of a Vice President or more senior officer
of the Issuer certifying that the representations and warranties of the
Issuer contained in the Note Purchase Agreement (other than any such
representations or warranties that, by their terms, are specifically made
as of a date other than the date hereof) are correct on and as of the date
hereof as though made on and as of the date hereof;
(e) An opinion of Buck, Keenan & Owens, LLP, counsel to the
Issuer, in form and substance acceptable to the Company and its counsel,
addressing certain corporate and enforceability matters relating to the
Note, this Amendment and the Note Purchase Agreement as amended hereby;
(f) An executed replacement Note (the "REPLACEMENT NOTE") (in
substantially the form called for by the Note Purchase Agree ment) in a
principal amount equal to the Facility Limit as increased hereby, in
replacement of the original Note (the "ORIGINAL NOTE");
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(g) An executed endorsement to the Surety Bond acknowl edging
the increase in the Facility Limit provided for herein; and
(h) An executed copy of this Amendment.
SECTION 5. CHANGE IN ADDRESS OF THE COMPANY. Effective upon the date
hereof, the address of the Company set forth in Section 5.1 of the Note Purchase
Agreement is hereby deleted and replaced with the following:
Enterprise Funding Corporation
c/o Global Securitization Services, LLC
25 West 43rd St., Suite 704
New York, New York 10036
Attention: Kevin Burns
Telephone: (212) 302-8331
Telecopy: (212) 302-8767
SECTION 6. REPRESENTATIONS AND WARRANTIES. The Issuer hereby makes
to the Company on and as of the date hereof, the following representations and
warran ties:
(a) AUTHORITY. The Issuer has the requisite corporate power
and authority to execute and deliver this Amendment and to perform
its obligations hereunder and under the Note Purchase Agreement (as
amended hereby). The execution, delivery and performance by the
Issuer of this Amendment and the performance of the Note Purchase
Agreement (as amended hereby) have been duly approved by all
necessary corporate action and no other corporate proceedings are
necessary to consummate such transactions;
(b) ENFORCEABILITY. This Amendment has been duly executed and
delivered by the Issuer. Each of the Note Purchase Agreement (as
amended hereby) and the Note delivered in connection herewith is the
legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, and is in full
force and effect; and
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Issuer contained in the Note Purchase Agreement
(other than any such representations or warranties that, by their
terms, are specif ically made as of a date other than the date
hereof) are correct on and as of the date hereof as though made on
and as of the date hereof.
SECTION 7. RETURN OF ORIGINAL NOTE. The Company shall, upon receipt
of the Replacement Note, return the Original Note to the Issuer for
cancellation.
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SECTION 8. LIMITED SCOPE. This amendment is specific to the circum
stances described above and does not imply any future amendment or waiver of
rights allocated to the Company under the Note Purchase Agreement.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. SEVERABILITY; COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11. RATIFICATION. Except as expressly affected by the
provisions hereof, the Note Purchase Agreement as amended shall remain in full
force and effect in accordance with its terms and is hereby ratified and
confirmed by the parties hereto. On and after the date hereof, each reference in
the Note Purchase Agreement to "this Agreement", "hereunder", "herein" or words
of like import shall mean and be a reference to the Note Purchase Agreement as
amended by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment Number 1 as of the date first written above.
FIRST INVESTORS AUTO RECEIVABLES
CORPORATION, as Issuer
By: ___________________________________________
Name:
Title:
ENTERPRISE FUNDING CORPORATION,
as Company
By: ___________________________________________
Name:
Title:
Consented to this __ day of March, 1999:
MBIA INSURANCE CORPORATION
By: ____________________________
Name:
Title: