SECOND AMENDMENT OF TRANSACTION DOCUMENTS
Exhibit (f)(3)
SECOND AMENDMENT OF TRANSACTION DOCUMENTS
THIS SECOND AMENDMENT OF TRANSACTION DOCUMENTS (this “Amendment”), made as of October 7, 2008,
by and among HORIZON CREDIT I LLC, a Delaware limited liability company (the “Borrower”), WESTLB
AG, NEW YORK BRANCH, as the Lender (in such capacity, together with its successors and assigns, the
“Lender”) and as the Agent for the Lender (in such capacity, together with its successors and
assigns, the “Agent”), and U.S. BANK NATIONAL ASSOCIATION, as the Custodian (in such capacity, the
“Custodian”), and as the Paying Agent (in such capacity, the “Paying Agent”),
WITNESSETH:
WHEREAS, the Borrower, the Lender, the Agent, the Custodian and the Paying Agent entered into
that certain Credit and Security Agreement, dated as of March 4, 2008 (as amended, the “Credit
Agreement”); and
NOW, THEREFORE, in consideration of the covenants and agreements herein contained, the parties
hereto amend the Credit Agreement, and covenant and agree, as follows:
1. Modification of the Credit Agreement.
A. Section 12.9 to the Credit Agreement is hereby replaced in its entirety with the
following:
Section 12.9. Collateral Matters; Interest Rate Hedge Agreements.
(a) The benefit of the provisions of this Agreement relating to Collateral securing the
Obligations hereunder shall also extend to and be available to the Agent when acting in the
capacity of Hedge Counterparty under any Interest Rate Hedge with the Borrower under any
Interest Rate Hedge agreement. The Borrower hereby agrees to amend any Transaction Document
or enter into any Interest Rate Hedge agreement and related credit support documentation
required by the Agent to secure Borrower’s obligations under such Interest Rate Hedge as
Agent shall reasonably request. Interest Rate Hedge agreements between Borrower and any
third party Hedge Counterparty, as they may relate to the Loan or the Collateral hereunder,
are subject to the prior written consent of the Agent.
(b) Borrower may, from time to time, so long as no Early Amortization Event, Event of
Default, or Unmatured Event of Default has occurred and is continuing, enter into one or
more Interest Rate Xxxxxx for which the aggregate notional amount, as to all Interest Rate
Xxxxxx entered and outstanding at any particular time, shall not exceed the outstanding
principal balance of the Loan hereunder as measured at such time.
B. The definition of “Portfolio Yield” in Exhibit I to the Credit Agreement is hereby
replaced in its entirety by the following new definition:
“Portfolio Yield” means, for any Collection Period, the annualized percentage
equivalent of the ratio of (a) the sum of (i) all collections representing interest (or
discount) on the Purchased Assets received by the Borrower during the Collection Period,
(ii) all collections representing Warrant proceeds received by the Borrower during the
Collection Period, (iii) all pre-payment, commitment, non-use, success and other cash fees
received by the Borrower during the Collection Period, and (iv) any payments made to the
Borrower under any Interest Rate Hedge,
less (b) any payments made by the Borrower under any Interest Rate Hedge, over (c) the
average Net Portfolio Balance for such Collection Period.
2. Ratification. The Credit Agreement (as amended by this Amendment) is hereby
ratified and remains in full force and effect.
3. Conditions Precedent to Effectiveness. The effectiveness of this Amendment is
subject to the conditions precedent:
(a) no Material Adverse Effect shall have occurred or would result from Borrower’s execution
and delivery of this Amendment; and
(b) no event has occurred and is continuing, or would result from Borrower’s execution and
delivery of this Amendment, that would constitute an Early Amortization Event, an Event of
Default or an Unmatured Event of Default.
4. Representations and Warranties. The Borrower hereby represents and warrants to the
Agent and the Lender that as of the date hereof the representations and warranties contained in
Section 3.1 of the Credit Agreement are true and correct, before and after giving effect to this
Amendment.
5. Effect of Amendment. Upon the effectiveness of this Amendment, on and after the
date hereof each reference in the Credit Agreement, to “this Agreement”, “hereof”, “hereunder” or
words of like import referring to the Credit Agreement shall mean and be a reference to the Credit
Agreement as modified, confirmed and ratified hereby.
6. Successors and Assigns. This Amendment shall inure to the benefit of the Agent,
the Lender and their respective successors and assigns, and bind the parties hereto and their
respective successors and permitted assigns.
7. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
8. Governing Law. This Amendment shall, in accordance with section 5-1401 of the
General Obligations Law of the State of New York, be governed by the laws of the State of New York,
without regard to any conflicts of law principles thereof that would call for the application of
the laws of any other jurisdiction.
9. Severability. In the event any term or provision of this Amendment or the
application thereof to any person or entity or circumstance, shall, for any reason or to any extent
be invalid or unenforceable, the remaining terms and provisions of this Amendment, or the
application of any such provision to persons, entities or circumstances other than those as to whom
or which it has been determined to be invalid or unenforceable, shall not be affected thereby, and
every provision of this Amendment shall be valid and enforceable to the fullest extent permitted by
law.
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IN WITNESS WHEREOF, each of the parties hereto have caused this SECOND AMENDMENT OF
TRANSACTION DOCUMENTS to be executed by its duly authorized signatories, as of the date first above
written.
HORIZON CREDIT I LLC, as the Borrower By: COMPASS HORIZON PARTNERS, LP, its Manager By: Navco Management Ltd., its General Partner |
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By: |
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Name: Xxxx Xxx Starzomski Title: Director/Treasurer |
Address:
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00 Xxxxxxxxx Xxxx Xxxx | |
Xxxxxxxxxx, XX 00000 | ||
Attention:
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Xxxxxx X. Xxxxxxx, Xx. | |
Fax:
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(000) 000-0000 | |
Telephone:
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(000) 000-0000 | |
Email:
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xxx@xxxxxxxxxxxxxxxxxx.xxx |
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WESTLB AG, NEW YORK BRANCH, as Lender |
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By: |
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Name: | |||
Title: | |||
By: |
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Name: | |||
Title: | |||
Address: | |||
0000 Xxxxxx xx xxx Xxxxxxxx | |||
Xxx Xxxx, Xxx Xxxx 00000 | |||
Attn: Asset Securitization Group | |||
Fax: 000-000-0000 |
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WESTLB AG, NEW YORK BRANCH, as Agent |
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By: |
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Name: | |||
Title: | |||
By: |
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Name: | |||
Title: | |||
Address: | |||
0000 Xxxxxx xx xxx Xxxxxxxx | |||
Xxx Xxxx, Xxx Xxxx 00000 | |||
Attn: Asset Securitization Group | |||
Fax: 000-000-0000 |
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U.S. BANK NATIONAL ASSOCIATION, as the Custodian as the Paying Agent |
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By: |
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Name: | |||
Title: |
Address:
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000 X. XxXxxxx Xxxxxx, Xxx. 000, | |
Xxxxxxx, Xxxxxxxx, 00000 | ||
Attention:
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Structured Finance, Horizon Credit I LLC | |
Fax:
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(000) 000-0000 | |
Telephone:
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(000) 000-0000 |
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