Exhibit 10.9
THIS SIXTH AMENDMENT TO WAREHOUSE LOAN AND SECURITY AGREEMENT (this
"Amendment") is made as of September 24, 2002 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 XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national
banking association, as eligible lender and successor 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, that Second Amendment to
Warehouse Loan and Security Agreement dated as of September 29, 1999, that Third
Amendment to Warehouse Loan and Security Agreement dated as of November 16,
1999, that Fourth Amendment to Warehouse Loan and Security Agreement dated as of
February 1, 2000 and that Fifth Amendment to Warehouse Loan and Security
Agreement dated as of September 1, 2001 (collectively 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
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.
(a) The definition of "Facility Limit" set forth in the Original
Agreement is deleted in its entirety and the following inserted therefor:
"Facility Limit" means, at any time, $345,000,000 as
such amount may be adjusted from time to time pursuant to Section 2.03;
provided, however, at all times on or after the termination of the
Revolving Period, the "Facility Limit" shall mean the Facility Amount.
(b) Clause (a) of the definition of "Termination Date" set forth in the
Original Agreement is deleted in its entirety and the phrase "(a) September 22,
2003," inserted therefor.
SECTION 5.10. UCC MATTERS.
The third sentence of Section 5.10 set forth in the Original Agreement
is hereby deleted in its entirety and the following sentence is inserted
therefor (brackets are used solely to indicate deletions from the existing text;
italics are used solely to indicate additions to the existing text):
The Borrower agrees that from time to time, at its
expense, it will (a) promptly execute and deliver all further
instruments and documents, and take any and all further action that the
Agent or any Required Lender may reasonably request (and irrespective
of any such request or in the absence of any such request, as may be
necessary under applicable law, including without limitation, the UCC
and Section 1082(m)(l)(E)(i) of the Higher Education Act (20 U.S.C.
Section 1082 (m)(l)(E)(i)) in order to perfect, protect and more fully
evidence the Trustee's interest in the Pledged Collateral for the
benefit of the Secured Creditors, [or] and to enable the Trustee or the
Required Lenders to exercise or enforce any of their respective rights
hereunder, and (b) at all times maintain records evidencing any and all
Student Loans intended to constitute Pledged Collateral hereunder, and
cause all financing statements intended to cover any such Pledged
Collateral to contain such language, in each case sufficient to satisfy
the requirements of 20 U.S.C. Section 1082 (m)(l)(E)(ii) (dealing with
collateral descriptions and references to records), or any successor
thereto."
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01 EFFECTIVENESS. This Amendment shall be effective as of the
date hereof when executed by the Borrower, by Concord and by the Trustee;
provided, however, that this Amendment shall not be effective (and any
counterpart hereto executed by the Agent shall not be deemed to have been
delivered), unless and until that certain Amendment No. 7 to Liquidity Agreement
dated of even date herewith (a copy of which is attached hereto) has been duly
executed and delivered by each of the signatories thereto.
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 law of 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
shall be rendered invalid or unenforceable under any pertinent law, or any
pertinent law shall be effective to impair the lien hereof, then such covenant,
agreement, waiver, or part 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
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Title:
Date:
THE LENDER:
CONCORD MINUTEMEN CAPITAL COMPANY, LLC
By /s/ [ILLEGIBLE]
------------------------------------
Title: Manager
Date: September 24, 2002
THE TRUSTEE:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
By /s/ Xxxxx Xxxxx
------------------------------------
Title: Corporate Trust Officer
Date: September 13, 2002
CONSENTED TO AND ACKNOWLEDGED:
THE AGENT:
MELLON BANK, N.A., as Agent
By /s/ X.X. Xxxxxx
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Title: V.P.
Date:
