Exhibit 10.13
EXECUTION COPY
AMENDMENT TO
WAREHOUSE NOTE PURCHASE AND SECURITY AGREEMENT
THIS AMENDMENT TO WAREHOUSE NOTE PURCHASE AND SECURITY AGREEMENT, dated
as of June 1, 2003 (this "Amendment") is by and among NHELP-III, Inc. as Issuer
(the "Issuer"); DELAWARE FUNDING CORPORATION, as Note Purchaser ("DFC"), THREE
RIVERS FUNDING CORPORATION, as Note Purchaser ("TRFC," and together with DFC,
the "Note Purchasers"); JPMORGAN CHASE BANK, successor to Xxxxxx Guaranty Trust
Company of New York, as DFC Agent and Administrative Agent (the "DFC Agent" and
the "Administrative Agent"); MELLON BANK, N.A. as TRFC Agent (the "TRFC Agent")
and amends and supplements the Warehouse Note Purchase and Security Agreement,
dated as of September 1, 1999 (as amended through the date hereof, the
"Agreement"), by and among the parties hereto and Xxxxx Fargo Bank Minnesota,
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 June 30, 2003 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
$500,000,000.
(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 6, 2003 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 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; 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 100.0% 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 August 2003;
(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 agrees to make, and the DFC Agent may in its sole
discretion make, the Extraordinary Note Purchases on or before
June 30, 2003. The Maturity Date of the Extraordinary Note
Purchases shall be the Settlement Date in August 2003.
Notwithstanding anything to the contrary in this Agreement or
the other Transaction Documents, for so long as any portion of
the Extraordinary Note Purchase (and any Rollover Note
Purchase related thereto) remains outstanding, the Issuer
shall not acquire Eligible Loans with proceeds of the
Extraordinary Note Purchases (and any Rollover Note Purchase
related thereto) at a price in excess of 100%, plus accrued
interest thereon.
(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 August 2003, 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, 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; (b) the parties to each Liquidity Agreement shall execute and deliver an
amendment to such Liquidity Agreement to increase the maximum liquidity purchase
thereunder, by an amount necessary to give effect to the Extraordinary Note
Purchases; (c) execution and delivery of a supplemental Fee Letter (the
"Supplemental Fee Letter") by the DFC Agent and the Issuer; (d) each Agent shall
have received (i) opinions of counsel to the Issuer satisfactory to such Agent
with respect to due authorization, execution and delivery by the Issuer of this
Amendment and enforceability of this Amendment and the Supplemental Fee Letter;
and (ii) a bring-down letter with respect to the opinions of counsel to the
Seller relating to true sale, non-consolidation and security interest matters.
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.
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 CORPORATION,
as Note Purchaser
By JPMorgan Chase Bank, as attorney-in-fact
for Delaware Funding Corporation
By /s/ [Illegible]
Name ________________________________________
Title _______________________________________
THREE RIVERS FUNDING CORPORATION,
as Note Purchaser
By /s/ [Illegible]
Name ________________________________________
Title _______________________________________
JPMORGAN CHASE BANK, as DFC Agent
and Administrative Agent
By /s/ [Illegible]
Name ________________________________________
Title _______________________________________
MELLON BANK, N.A., as TRFC Agent
By /s/ [Illegible]
Name ________________________________________
Title _______________________________________
NHELP-III, as Issuer
By: /s/ Xxxxx X. Xxxxxx
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Authorized Signatory
Vice President
