Exhibit 10.12
SECOND AMENDMENT TO
WAREHOUSE LOAN AND SECURITY AGREEMENT
This Second Amendment to Warehouse Loan and Security Agreement, dated
as of December 22, 1999 (this "Amendment"), is by and among Financial Pacific
Funding, LLC ("Borrower"), Financial Pacific Leasing, LLC, ("Servicer"), Norwest
Bank Minnesota, National Association, as collateral agent (in such capacity,
"Collateral Agent") and as standby servicer (in such capacity, "Standby
Servicer"), Receivables Capital Corporation ("RCC "), the financial institutions
party hereto, as parallel lenders ("Parallel Lenders"), and Bank of America,
N.A. (as successor to Bank of America National Trust and Savings Association),
as administrative agent and bank agent (the "Administrative Agent").
BACKGROUND
1. Borrower, Servicer, Collateral Agent, Standby Servicer, RCC,
the Parallel Lenders and the Administrative Agent are parties to that certain
Warehouse Loan and Security Agreement, dated as of December 30, 1998 (as
heretofore amended, the "Warehouse Agreement").
2. The parties hereto desire to amend the Warehouse Agreement in
certain respects as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment and
not otherwise defined herein shall have the meanings assigned thereto in the
Warehouse Agreement, as amended hereby.
SECTION 2. Amendments. (a) Section 1.1 of the Warehouse Agreement is
hereby amended by adding a new definition of "Indebtedness" therein as follows:
"Indebtedness" means all items that in accordance with GAAP
would be included in determining total liabilities as shown on the
liabilities side of the balance sheet as of the date that
"Indebtedness" is to be determined and in any event includes
liabilities secured by any mortgage, deed of trust, pledge, lien, or
security interest on property owned or acquired, whether or not such a
liability has been assumed, and the guaranties, endorsements (other
than for collection in the ordinary course of business), and other
contingent obligations with regard to the obligations of other Persons.
(b) The definition of "Bank Rate" set forth in Section 1.1 of the
Warehouse Agreement is hereby amended by adding the phrase ", plus (C) the
Program Fee Rate" at the end of such definition.
(c) Section 2.1(b) of the Warehouse Agreement is hereby amended by
deleting the amount of "$75,000,000" where it appears in clause (ii) thereof and
substituting therefor the amount of "$125,000,000".
(d) Clause (iii) of Section 2.9(xxvi) is hereby amended by
inserting the following proviso at the end of such clause (iii):
; provided, however, that the aggregate Principal Balances of
all Receivables that were originated by First Sierra Financial
Corp. may exceed 7.5%, but shall not exceed 10%, of the sum of
the aggregate Principal Balances of all Receivables;
(e) Section 4.3 of the Warehouse Agreement is amended and restated
in its entirety to read as follows:
SECTION 4.3. Application of Collections. All collections on a
Receivable for each Collection Period shall be applied by the Servicer
as follows: first, to any Scheduled Payment, or portion thereof that is
past due, second, to the Scheduled Payment then due, third, to any late
charges related to such Receivable, fourth, to taxes owed or advanced
by Servicer with respect to such Receivable, fifth, to insurance
premiums owed or advanced by Servicer with respect to such Receivable,
sixth, to other administrative fees and similar charges, and seventh,
any excess remaining thereafter shall be applied to prepay such
Receivable.
(f) Section 6.2(c) of the Warehouse Agreement is hereby amended by
deleting the amount of "$75,000,000" where it appears therein and substituting
therefor the amount of "$125,000,000".
(g) A new Section 6.3 shall be inserted at the end of Article VI
of the Warehouse Agreement as follows:
SECTION 6.3. Additional Conditions Precedent to Funding. On or
prior to the first Funding hereunder occurring on or after January 1,
2000, (i) each Notice Party shall have received a copy of a duly
executed interest rate cap confirmation supplementing the Hedging
Agreement, which interest rate cap confirmation shall be satisfactory
to the Administrative Agent and the Surety Provider, and (ii) the
Administrative Agent shall have received the payment of the upfront fee
payable pursuant to the fee letter, dated as of December __, 1999,
between the Administrative Agent, the Borrower and Financial Pacific.
(h) Section 9.1(e)(i) is hereby amended and restated in its
entirety to read as follows:
(i) The initial Servicer and its consolidated
subsidiaries shall maintain Tangible Net Worth,
calculated at the end of each calendar quarter,
beginning with the quarter ending December 31, 1999,
of not less than $15.0 million, plus 50% of net
income since September 30, 1999.
(i) Section 9.1(e)(ii) is amended and restated in its entirety to
read as follows:
(ii) The initial Servicer and its consolidated
subsidiaries shall maintain a minimum level of
adjusted earnings (before interest, income taxes,
depreciation and amortization) to interest coverage
of 1.4 on a rolling four quarter basis. In
calculating interest coverage, interest expense shall
include interest of the initial Servicer and its
consolidated subsidiaries, as well as, interest
accruing on the subordinated debt of Financial
Pacific Company. Amortization shall not include
amortization of capitalized initial direct costs
incurred in originating leases.
(j) Section 9.1(e)(iii) is amended and restated in its entirety to
read as follows:
(iii) The initial Servicer and its consolidated
subsidiaries shall maintain a ratio, on a
consolidated basis, of adjusted total debt to
adjusted consolidated Tangible Net Worth not to
exceed 18 to 1 calculated quarterly beginning
December 31, 1999; 17 to 1 calculated quarterly
beginning December 31, 2001; 16 to 1 calculated
quarterly beginning December 31, 2002; 15 to 1
calculated quarterly beginning December 31, 2003; 14
to 1 calculated quarterly beginning December 31,
2004; and 13 to 1 calculated quarterly beginning
December 31, 2005. Adjusted total debt shall include
only consolidated interest-bearing debt, plus (a) 50%
of Financial Pacific Company's subordinated debt
having a maturity of five years or more, and (b) 100%
of Financial Pacific Company's subordinated debt
having a maturity of less than five years. Adjusted
consolidated Tangible Net Worth shall include the
consolidated Tangible Net Worth, less (a) 50% of
Financial Pacific Company's subordinated debt having
a maturity of five years or more, and (b) 100% of
Financial Pacific Company's subordinated debt having
a maturity of less than five years.
(k) Section 9.1(e)(v) is amended by deleting the amount of "$12.5
million" in each place where it appears therein and substituting therefor the
amount of "$15.0 million".
(l) A new paragraph (vi) shall be inserted at the end of Section
9.1(e) of the Warehouse Agreement as follows:
(vi) The initial Servicer and its consolidated
subsidiaries (except Financial Pacific Funding, LLC)
shall maintain a ratio, on a consolidated basis, of
Indebtedness to Tangible Net Worth not to exceed 8 to
1 calculated quarterly beginning December 31, 1999.
(m) Paragraphs (a) and (b) of Section 9.2 are amended and restated
to read as follows:
(a) Quarterly Financial Statements. As soon as available
and in any event within 60 days after the end of each of the first
three quarters of each fiscal year of Financial Pacific Company, (i)
copies of Financial Pacific Company's quarterly financial reports
prepared in accordance with GAAP, (ii) copies of the initial Servicer's
quarterly financial reports prepared in accordance with GAAP, and (iii)
a calculation of the financial tests set forth in Section 9.1(e)
demonstrating that there is no breach of such Section, all certified by
the chief financial officer or chief accounting officer of the initial
Servicer;
(b) Annual Financial Statements of Financial Pacific
Company. As soon as available and in any event within 120 days after
the end of each fiscal year of Financial
Pacific Company, a copy of Financial Pacific Company's combined and
combining annual financial statements as reported on by nationally
recognized independent certified public accountants (which shall be a
"Big-5" accounting firm), along with consolidated and consolidating
schedules of the initial Servicer and the Borrower.
SECTION 3. Representations and Warranties. Borrower and Servicer hereby
represent and warrant that (i) after giving effect to this Amendment, the
representations and warranties contained in Section 7.1 of the Warehouse
Agreement and Section 8.1 of the Warehouse Agreement, respectively, are true and
correct on and as of the date hereof as though made on and as of such date, and
shall have been deemed to have been made on and as of such date, and (ii) no
event has occurred and is continuing, or would result from this Amendment, that
constitutes a Default or Event of Default.
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective on the date hereof, subject to the satisfaction of the following
conditions precedent:
(a) Each of the Notice Parties shall have received:
(i) This Amendment, duly executed by each of the parties
hereto;
(ii) A copy of the board of managers, managers or member
consents of each Borrower Party, as applicable, approving this
Amendment, certified by its Secretary or Chief Financial Officer;
(iii) Good standing certificates for each Borrower Party
issued by the Secretaries of State of each State where each such
Borrower Party is organized or has its principal place of business;
(iv) A certificate of the Secretary or Chief Financial
Officer, as applicable, of each Borrower Party certifying (A) the names
and true signatures of the officers authorized on its behalf to sign
this Amendment and (B) that the Operating Agreement of such Borrowing
Party has not been modified or amended since December 30, 1998;
(v) Constituent documents of each Borrower Party, duly
certified by the Secretary of State of the State in which each such
Borrower Party is organized, as of a recent date acceptable to the
Notice Parties; and
(vi) A favorable opinion of counsel for the Borrower
Parties as to the enforceability, due execution and authorization of
this Amendment and as to such other matters as any Notice Party shall
have reasonably requested;
(b) The Surety Bond shall have been amended or a new surety bond
shall have been issued to reflect the increase in the Funding Limit, in either
case to the satisfaction of the Administrative Agent; and
(c) The Insurance and Indemnity Agreement shall have been amended
to reflect the increase in the Funding Limit and any change in the MBIA Premium.
SECTION 5. Miscellaneous. The Warehouse Agreement, as amended hereby,
remains in full force and effect. Any reference to the Warehouse Agreement from
and after the date hereof shall be deemed to refer to the Warehouse Agreement as
amended hereby, unless otherwise expressly stated. This Amendment may be
executed in any number of counterparts and by the different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement. This Amendment may be executed by facsimile. This Amendment shall be
governed by, and construed in accordance with, the laws of the State of New York
without giving effect to the conflict of Laws principles thereof (other than
Section 5-1401 of the New York General Obligations Law) and the obligations,
rights and remedies of the parties under this Amendment shall be determined in
accordance with such laws.
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 above written.
FINANCIAL PACIFIC FUNDING, LLC
By: /s/ Dale A. Winter
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Name Printed: Dale A. Winter
Title: Executive Vice President and
Chief Financial Officer
FINANCIAL PACIFIC LEASING, LLC
By: /s/ Dale A. Winter
-----------------------------------
Name Printed: Dale A. Winter
Title: Executive Vice President and
Chief Financial Officer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Collateral Agent and
Standby Servicer
By: /s/ Tara H. Anderson
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Name Printed: Tara H. Anderson
Title: Corporate Trust Officer
RECEIVABLES CAPITAL CORPORATION, as
Lender
By: /s/ Stewart L. Cutler
-----------------------------------
Name Printed: Stewart L. Cutler
Title: Managing Director
BANK OF AMERICA, N.A., as
Administrative Agent and as Bank
Agent
By: /s/ John K. Svolos
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Name Printed: John K. Svolos
Title: Vice President
BANK OF AMERICA, N.A., as a Parallel
Lender
By: /s/ John K. Svolos
-----------------------------------
Name Printed: John K. Svolos
Title: Vice President
ACKNOWLEDGED AND AGREED: MBIA INSURANCE CORPORATION
By: /s/ Lisa A. Wilson
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Name Printed: Lisa A. Wilson
Title: Assistant Secretary