Exhibit 10.12
EXECUTION COPY
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SECOND AMENDMENT TO WAREHOUSE NOTE PURCHASE AND SECURITY
AGREEMENT
among
NHELP-III, INC.,
as the Issuer
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as the successor Trustee
and
DELAWARE FUNDING CORPORATION,
as a Note Purchaser
and
THREE RIVERS FUNDING CORPORATION,
as a Note Purchaser
and
JPMORGAN CHASE BANK,
as DFC Agent and Administrative Agent
and
MELLON BANK, N.A.,
as TRFC Agent
Dated as of September 12, 2002
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TABLE OF CONTENTS
PAGE
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ARTICLE I
AMENDMENTS TO ORIGINAL AGREEMENT
Section 1.01. Defined Terms......................................... 1
Section 1.02. Amendments to Definitions............................. 1
Section 1.03. Additional Amendments................................. 2
ARTICLE II
GENERAL PROVISIONS
Section 2.01. Effective Date......................................... 3
Section 2.02. Laws Governing......................................... 3
Section 2.03. Severability........................................... 3
Section 2.04 Conditions Precedent to Amendment...................... 3
ARTICLE III
APPLICABILITY OF ORIGINAL AGREEMENT.................................... 4
THIS SECOND AMENDMENT TO WAREHOUSE NOTE PURCHASE AND SECURITY AGREEMENT
(the "Amendment") is made as of September 12, 2002, among: NHELP-III, INC., a
corporation duly organized under the laws of the state of Nevada (the "Issuer");
DELAWARE FUNDING CORPORATION, a Delaware corporation ("DFC"); THREE RIVERS
FUNDING CORPORATION, a Delaware corporation ("TRFC"); JPMORGAN CHASE BANK, a New
York banking corporation and successor to ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as DFC Agent (in such capacity, the "DFC Agent") and Administrative Agent
(in such capacity, the "Administrative Agent"); MELLON BANK, N.A., a national
banking association, as TRFC Agent (the "TRFC Agent") and ▇▇▇▇▇ FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association and successor to
Norwest Bank Minnesota, National Association, as eligible lender and successor
trustee (the "Trustee").
PRELIMINARY STATEMENTS
1. The Issuer, DFC, TRFC, the DFC Agent, the TRFC Agent, and the
Trustee have previously entered into that certain Warehouse Note Purchase and
Security Agreement dated as of September 1, 1999 (as amended through the date
hereof, the "Original Agreement").
2. Pursuant to Section 10.01 of the Original Agreement, the
Issuer, DFC, TRFC, the DFC Agent, the TRFC Agent and the Trustee may amend the
Original Agreement with the prior written consent of the Issuer, the Required
Note Purchasers, the Trustee and the Agents. As of this date, TRFC and DFC are
the Required Note Purchasers and the Agents have given their written consent to
the execution of this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL AGREEMENT
SECTION 1.01. DEFINED TERMS. All words and phrases defined in Article I
of the Original Agreement shall have the same meaning in this Amendment, except
as otherwise appears in this Article.
SECTION 1.02. AMENDMENTS TO DEFINITIONS. The definitions set forth
below are amended in their entirety to provide as follows:
"Facility Limit" means, at any time, $450,000,000 as such
amount may be adjusted from time to tune pursuant to Section 2.03;
provided, however, that at all times on or after the termination of the
Revolving Period, the "Facility Limit" shall mean the Facility Amount.
"Interest Period" means (a) a calendar month or (b) such other
period as maybe agreed upon from time to time by the Issuer and the
Required Note Purchasers. At no time may there he more than one
Interest Period outstanding, unless otherwise approved by the Required
Note Purchasers.
1
"Liquidity Termination Event" means the occurrence of any of
the following events: (a) any Liquidity Provider then providing
liquidity to a Conduit Note Purchaser has its rating lowered below
"A-l" by S&P or "P-l" by Moody's, unless a replacement Liquidity
Provider having ratings of at least "A-l" from S&P and "P-l" by ▇▇▇▇▇'▇
is substituted within 30 days of such downgrade, (b) any Liquidity
Provider shall fail to honor any of its payment obligations under the
related Liquidity Agreement unless such payment obligations are
otherwise satisfied by the related Agent, Conduit Note Purchaser or
another financial institution, (c) any Liquidity Agreement shall cease
for any reason to be in full force and effect or be declared null and
void and such Liquidity Agreement is not replaced or (d) 60 days after
written notice has been received by the Issuer stating that a
consolidation of (i) DFC and ▇.▇. ▇▇▇▇▇▇ Chase & Co. Incorporated or
(ii) TRFC and Mellon Bank N.A., has occurred,
"Pro Rata Share" means with respect to any Note Purchaser at
any time, a fraction (expressed as a percentage) the numerator of which
is the Aggregate Note Balance attributable to such Note Purchaser
and/or the Liquidity Note Purchasers (or an Agent or other Note
Purchaser on its behalf), and the denominator of which is the Aggregate
Note Balance. As of the date of this Agreement, the Pro Rata Share of
the DFC Agent shall be a fraction (expressed as percentage), the
numerator of which is 250 and the denominator of which is 450, and the
Pro Rata Share of TRFC shall be a fraction (expressed as a percentage),
the numerator of which is 200 and the denominator of which is 450.
"Regular Interest Rate" means, with respect to any Note on any
date during an Interest Period, a rate of interest equal to the per
annum rate (expressed as a percentage and an interest yield equivalent
and calculated on the basis of a 360-day year) equivalent to the sum of
the Margin plus the weighted average of the per annum rates paid or
payable by the applicable Note Purchaser from time to time as interest
on or otherwise in respect of the CP issued by such Note Purchaser
during such Interest Period as determined by the applicable Agent,
which rates shall reflect and give effect to (x) dealer and placement
agent fees and commissions, associated with the issuance of such Note
Purchaser's CP, and (y) other borrowings by such Note Purchaser,
including borrowings to fund small or odd dollar amounts that are not
easily accommodated in the commercial paper market to the extent such
amounts are allocated, in whole or in part, to such Note by the
applicable Agent; provided, that if any component of such rate is a
discount rate, in calculating the "Regular Interest Rate" for such day
the applicable Agent shall for such component use the rate resulting
from converting such discount rate to an interest bearing equivalent
rate per annum.
"Settlement Date" means the first Business Day of each month
or such other day as may be agreed to by the Issuer and the Note
Purchasers.
SECTION 1.03. ADDITIONAL AMENDMENTS.
(a) Section 10.02 is hereby amended in its entirety to provide as
follows:
2
SECTION 10.02. NOTICES, ETC. All notices and other
communications provided for hereunder shall, unless otherwise stated
herein, be in writing (including electronic mail or other form of
electronic transmission and communication by facsimile copy) and
mailed, delivered by nationally recognized overnight courier service,
transmitted or delivered by hand, as to each party hereto, at its
address set forth under its name on the signature pages hereof or at
such other address (which may be an electronic mail address or other
address for electronic delivery) as shall be designated by such party
in a written notice to the other parties hereto. All such notices and
communications shall be effective, upon receipt, or in the case of (a)
notice by mail, five days after being deposited in the United States
mails, first-class postage prepaid or (b) notice by electronic mail,
other electronic transmission or facsimile copy, when verbal
communication of receipt is obtained, except that notices and
communications pursuant to Article II shall not be effective until
received.
(b) Section 11.04 is hereby amended to delete the parenthetical phrase
"(which may be by telex)" in cause (e) of the final sentence of such section,
and to insert the parenthetical phrase "(which may be by electronic mail or
other electronic transmission)" in its place.
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01. EFFECTIVE DATE. This Amendment shall be effective as of
the later to occur of (i) September 12, 2002 or (ii) the date on which the
conditions precedent specified in Section 2.04 of this Amendment are satisfied.
SECTION 2.02. LAWS GOVERNING. It is the intent of the parties hereto
that this Amendment shall in all respects be governed by the laws of the State
of New York.
SECTION 2.03. SEVERABILITY. If any covenant, agreement, waiver, or part
thereof in this Amendment contained be forbidden by any pertinent law or under
any pertinent law be effective to render this Amendment invalid or unenforceable
or to impair the lien hereof, then each such covenant, agreement, waiver, or
part thereof shall itself be and is hereby declared to be wholly ineffective,
and this Amendment shall be construed as if the same were not included herein.
SECTION 2.04. CONDITIONS PRECEDENT TO AMENDMENT. The effectiveness of
this Amendment shall be subject to the condition precedent that DFC, TRFC, the
Agents and the Trustee shall have received an opinion of counsel to the Issuer,
in form and substance satisfactory to each Agent and the Trustee, concerning due
authorization, execution and delivery of this Amendment and the enforceability
of this Amendment in accordance with its terms (subject to customary
exceptions).
3
ARTICLE III
APPLICABILITY OF ORIGINAL AGREEMENT
The provisions of the Original Agreement are hereby ratified, approved
and confirmed, except as otherwise expressly modified by this Amendment. The
representations, warranties and covenants contained in the Original Agreement
(except as expressly modified herein) are hereby reaffirmed with the same force
and effect as if fully set forth herein and made again as of the date hereof.
[Signature Pages Follow]
4
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 ISSUER:
NHELP-III, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE NOTE PURCHASERS:
DELAWARE FUNDING CORPORATION
By: JPMorgan Chase Bank, as attorney-in-fact
for Delaware Funding Corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
THREE RIVERS FUNDING CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[Signature Page to Second Amendment to Warehouse Note Purchase and
Security Agreement]
THE AGENTS:
JPMORGAN CHASE BANK, as DFC
Agent and Administrative Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
MELLON BANK, N.A., as TRFC Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE TRUSTEE:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Corporate Trust Officer
[Signature Page to Second Amendment to Warehouse Note Purchase and
Security Agreement]
