FIRST AMENDMENT TO
AMENDED AND RESTATED
WAREHOUSE NOTE PURCHASE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED WAREHOUSE NOTE PURCHASE AND
SECURITY AGREEMENT, dated as of June 29, 2004 (this "AMENDMENT") is by and among
NHELP-III, Inc. as Issuer (the "ISSUER"); DELAWARE FUNDING COMPANY, LLC,
successor to Delaware Funding Corporation, as Note Purchaser ("DFC"), PARK
AVENUE RECEIVABLES COMPANY, LLC, successor to Park Avenue Receivables
Corporation ("PARCO"), THREE RIVERS FUNDING CORPORATION, as Note Purchaser
("TRFC," and together with DFC and PARCO, the "NOTE PURCHASERS"); JPMORGAN CHASE
BANK, as DFC Agent, PARCO Agent and Administrative Agent (in such capacities,
the "DFC AGENT", "PARCO AGENT" and the "ADMINISTRATIVE AGENT", respectively);
MELLON BANK, N.A. as TRFC Agent (the "TRFC AGENT") and amends and supplements
the Amended and Restated Warehouse Note Purchase and Security Agreement, dated
as of March 1, 2004 (as amended through the date hereof, the "AGREEMENT"), by
and among the parties hereto and Wells Fargo Bank, National Association, as
successor eligible lender and successor Trustee (the "TRUSTEE"). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Agreement.
RECITALS
WHEREAS, the parties to the Agreement have agreed to amend and supplement
certain provisions in the Agreement as set forth herein; and
WHEREAS, pursuant to Section 10.01 of the Agreement, the parties to the
Agreement are permitted to amend the Agreement in writing without the written
agreement of the Trustee, if not affected thereby.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, the parties to this Amendment agree as follows:
SECTION 1. AMENDMENTS.
(a) Section 1.01 is hereby amended by inserting the following
definition in the appropriate alphabetical order:
"EXTRAORDINARY NOTE PURCHASES" means Note Purchases made on or
before August 13, 2004 pursuant to Section 2.02(e) hereof in an amount
identified by the Issuer by written notice delivered in accordance
with, and in the form required by, Section 2.02 of this Agreement,
which Note Purchases shall be, in the aggregate, a principal amount
not to exceed $100,000,000.
(b) The definition of "Facility Limit" in Section 1.01 is hereby
amended by inserting the following before the period at the end thereof:
; PROVIDED, FURTHER, that commencing on June 29, 2004 and ending on
the date when the Extraordinary Note Purchases (and any Rollover Note
Purchase related thereto) are repaid in full, the Facility Limit shall
be increased for all purposes hereunder by the amount of the
then-outstanding amount of the Extraordinary Note Purchases (and any
Rollover Note Purchase related thereto), as the same may decrease from
time to time.
(c) The last sentence of the definition of "PRO RATA SHARE" in
Section 1.01 is hereby amended as follows:
As of the date of this Agreement, the Pro Rata Share of the DFC
Agent shall be a fraction (expressed as a percentage), the numerator
of which is 125 and the denominator of which is 450, the Pro Rata
Share of the PARCO Agent shall be a fraction (expressed as a
percentage), the numerator of which is 125 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; PROVIDED, HOWEVER, that with respect to
Extraordinary Note Purchases (and any Rollover Note Purchase related
thereto), the pro rata share of the DFC Agent shall be 50.0%, the pro
rata share of the PARCO Agent shall be 50.0% and the pro rata share of
the TRFC Agent shall be 0.0%.
(d) Article VII is hereby amended by inserting (i) the word "or"
following the semicolon at the end of clause (p) thereof, and (ii) the
following new clause following clause (q):
(q) the Extraordinary Note Purchases are not repaid in full by
the Issuer on or before the Settlement Date in September 2004;
(e) Section 2.02 is hereby amended by inserting a new paragraphs (e)
and (f) at the end of such section, which shall read as follows:
(e) On the terms and conditions set forth herein, DFC and PARCO
each agrees to make, and the DFC Agent and the PARCO Agent may each in
its sole discretion make, the Extraordinary Note Purchases on or
before August 13, 2004. The Maturity Date of the Extraordinary Note
Purchases shall be the Settlement Date in September 2004.
(f) Notwithstanding the provisions of Section 2.05(c)(iii), for
so long as any portion of the Extraordinary Note Purchases remain
unpaid by the Issuer on or after the Settlement Date in September
2004, any Principal and Yield due or accrued on the Note Purchases or
the Extraordinary Note Purchases on any Settlement Date will be
payable not later than 1:00 p.m. (New York time) on such Settlement
Date as follows:
FIRST, to the Holders and amount equal to accrued and unpaid
Yield on all outstanding Notes;
SECOND, (i) so long as (1) no Event of Default pursuant to any of
clauses (a) through (p) of Article VII or Termination Date
pursuant to clause (q) of Article VII has occurred and is
continuing, (2) no event has occurred (or is anticipated to occur
after giving effect to the payments to be made on such Settlement
Date) that with the giving of notice or passage of time or both
would result in an Event of Default pursuant to any of clauses
(a) through (p) of Article VII, and (3) all of the conditions to
a Rollover Note Purchase with respect to maturing Notes (other
than those associated with the Extraordinary Note Purchases) on
such Settlement Date have been satisfied (the failure to satisfy
the terms of any of clauses (1), (2) or (3), a "SECTION 2.02(f)
EVENT"), to DFC or a DFC Liquidity Provider and to PARCO or a
PARCO Liquidity Provider, as applicable, an amount of principal
necessary to repay the outstanding principal of the Notes
associated with the Extraordinary Note Purchases or (ii) if a
Section 2.02(f) Event has occurred and is continuing, to each
Holder pro rata based on its share of the outstanding Notes
(determined as the percentage equivalent of a fraction, the
numerator of which is the aggregate principal amount of all Notes
held by such Holder and the denominator is the aggregate
principal amount of all Notes), an amount of principal necessary
to repay the outstanding principal of the Notes; and
THIRD, to the Holders an amount of principal, net of any Rollover
Note Purchases, necessary to repay the outstanding principal of
the Notes and all other Obligations.
SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED. Except as
specifically amended hereby, all of the terms and conditions of the Agreement
shall remain in full force and effect. All references to the Agreement in any
other document or instrument shall be deemed to mean such Agreement, as amended
by this Amendment. 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 obligations of the Agreement, as amended by this
Amendment, as though the terms and obligations of this Amendment were set forth
in the Agreement.
SECTION 3. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
subject to the following conditions precedent: (a) this Amendment has been duly
executed and delivered by each of the parties listed on the signature pages
hereto; and (b) the parties to each of the DFC Asset Purchase Agreement and the
PARCO Asset Purchase Agreement shall execute and deliver an amendment to such
agreement to increase the maximum liquidity purchase thereunder, by an amount
necessary to give effect to the Extraordinary Note Purchases.
SECTION 4. PRIOR UNDERSTANDINGS. This Amendment sets forth the entire
understanding of the parties relating to the subject matter hereof, and
supersedes all prior understandings and agreements, written or oral.
SECTION 5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by separate parties hereto on separate counterparts, each of
which when
executed shall be deemed an original, but all such counterparts taken together
shall constitute one and the same instrument.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
DELAWARE FUNDING COMPANY, LLC,
as Note Purchaser
By JPMorgan Chase Bank, as attorney-in-fact
for Delaware Funding Company, LLC
By: /s/ Bradley S. Schwartz
------------------------------------------
Name:
Title:
PARK AVENUE RECEIVABLES
COMPANY, LLC, as Note Purchaser
By: /s/ Andrew L. Stidd
-----------------------------------------
Name:
Title:
THREE RIVERS FUNDING CORPORATION,
as Note Purchaser
By: /s/ Bernard J. Angelo
-----------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as DFC Agent and PARCO Agent
By: /s/ Sara Graff
-----------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/ Sara Graff
-----------------------------------------
Name:
Title:
MELLON BANK, N.A., as TRFC Agent
By: /s/ Stephen Cobain
-----------------------------------------
Name:
Title:
NHELP-III, as Issuer
By /s/ Terry J. Heimes
-----------------------------------------
Name:
Title:
cc: Wells Fargo Bank, National Association, as Trustee