Exhibit 10.6
THIS THIRD AMENDMENT TO WAREHOUSE LOAN AND SECURITY AGREEMENT (this
"Amendment") is made as of November 16, 1999 among NHELP-I, INC., a corporation
duly organized under the laws of the State of Nevada (the "Borrower"), CONCORD
MINUTEMEN CAPITAL COMPANY, LLC, a Delaware limited liability company
("Concord"), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national
banking association, as eligible lender and trustee (the "Trustee").
PRELIMINARY STATEMENTS
1. The Borrower, Concord and the Trustee have previously entered
into that certain Warehouse Loan and Security Agreement dated as of September
30, 1998 (as heretofore amended by that First Amendment to Warehouse Loan and
Security Agreement dated as of December 15, 1998 and that Second Amendment to
Warehouse Loan and Security Agreement dated as of September 29, 1999, the
"Original Agreement").
2. Pursuant to Section 9.01 of the Original Agreement, the
Borrower, the Required Lenders and, to the extent affected thereby, the Trustee
may amend the Original Agreement with the prior written consent of the Agent. As
of this date, Concord is the Required Lender and the Agent has given its 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
ADDITIONS ARE INDICATED BY UNDERLINING AND DELETIONS ARE INDICATED BY
BRACKETS THROUGHOUT THIS AMENDMENT.
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 1.01. DEFINITIONS. The definitions set forth below are added to
the Original Agreement or amended to provide as follows:
"Cost of Funds" shall mean the sum of (i) the rate
(excluding dealer fees), or if more than one rate, the daily weighted
average of the rates, at which Concord's commercial paper notes having
a term equal to the relevant Interest Period, may be sold by any
placement agent or commercial paper dealer reasonably selected by
Concord, as agreed to between each such placement agent or dealer and
Concord to fund or maintain the Advances, plus (ii) the commissions and
charges charged as a percentage of such face amount and converted to an
interest bearing equivalent rate per annum (0.05%).
"Regular Interest Rate" means Cost of Funds plus
0.08% [LIBOR plus 0.10%].
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01 DATE OF EXECUTION. Although this Amendment for convenience
and for the purpose of reference is dated and shall be effective as of the date
first written above, the actual dates of execution by the Borrower, by Concord
and by the Trustee are as indicated by their respective acknowledgments hereto
annexed.
SECTION 2.02 LAWS GOVERNING. It is the intent of the parties hereto
that this Amendment shall in all respects be governed by the internal law, and
not the conflicts, of the State of Illinois.
SECTION 2.03 SEVERABILITY. If any covenant, agreement, waiver or part
thereof contained in this Amendment shall be forbidden by any pertinent law or
under any pertinent law shall be effective to render this Amendment invalid or
unenforceable or to impair the lien hereof, then 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 therein.
SECTION 2.04 COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. One or more counterparts
of this Amendment may be delivered by telecopier, with the intention that they
shall have the same effect as an original counterpart thereof.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
THE BORROWER:
NHELP-I, INC.
BY /S/ Xxxxx Xxxxxx
---------------------------------------
Title: Vice President
Date: 11/16/99
THE LENDER:
CONCORD MINUTEMEN CAPITAL COMPANY, LLC
BY /S/ Xxxxxx Xxxxx
---------------------------------------
Title: Manager
Date: November 16, 1999
THE TRUSTEE:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
BY /S/ Xxxxx X. Xxxxxxxx
---------------------------------------
Title: Corporate Trust Officer
Date: 11/17/99
CONSENTED TO AND ACKNOWLEDGED:
THE AGENT:
MELLON BANK, N.A.
BY /S/ Xxxxxx Xxxxxx
---------------------------------------
Title: V.P.
Date: 11/17/99
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