FIRST INTERNATIONAL BANCORP INC
EX-10.13.2
<DOCUMENT>
<TYPE>EX-10.13.2
<SEQUENCE>5
<FILENAME>y45987ex10-13_2.txt
<DESCRIPTION>EX-10.13.2
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Exhibit 10.13.2


                               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
<PAGE>   2
                  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."
<PAGE>   3
         (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 __, 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.
<PAGE>   4
         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.
<PAGE>   5
         (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
<PAGE>   7
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
<PAGE>   8
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
<PAGE>   9
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




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