Exhibit 10.14
FOURTH AMENDMENT TO
WAREHOUSE LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Warehouse Loan and Security Agreement, dated
as of December 15, 2000 (this "Amendment"), is by and among Financial Pacific
Funding, LLC ("Borrower"), Financial Pacific Leasing, LLC, ("Servicer"), Wells
Fargo Bank Minnesota, National Association (as successor to 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) The definition of "Advance Percentage" set
forth in Section 1.1 of the Warehouse Agreement is hereby amended by deleting
subclause (y) of clause (ii) thereof and substituting therefor a new subclause
(y) as follows: "(y) the greater of (I) the most recent three-month rolling
average Annualized Charge Off Ratio and (II) the Annualized Charge Off Ratio for
the most recently ended Collection Period".
(b) The definition of "Change in Control" set forth in Section 1.1
of the Warehouse Agreement is hereby amended by deleting the phrase "any two of
Dale A. Winter, David T. Schaefer or Eldon G. Mackey" where it appears in
subparagraph (ii) of paragraph (b) thereof and substituting therefor the name
"Dale A. Winter".
(c) Section 2.14 (a) of the Warehouse Agreement is hereby amended
by deleting the date "December 15, 2000" where it appears therein and
substituting therefor the date "October 29, 2001".
(d) 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, 2000,
of not less than $15.0 million, plus 100% of net
income from and including January 1, 2001, less the
amount of dividends payable from and including
January 1, 2001 to Financial Pacific Company for
pass-through interest on those certain subordinated
notes issued by Financial Pacific Company to the
Northwestern Mutual Life Insurance Company and
Windward/Merban, L.P., on January 23, 1998, in the
principal amounts of $9,375,000 and $625,000,
respectively.
(e) Section 9.1(e)(ii) is amended by inserting the following
proviso at the end of the first sentence thereof: "provided that, for the fiscal
quarters ended March 31, 2001, June 30, 2001 and September 30, 2001, such level
shall be measured on a year to date basis rather than on a rolling four quarter
basis".
(f) Section 9.2 (a) is hereby amended by inserting the phrase
"consolidated and consolidating" before the phrase "quarterly financial reports"
where it appears in clause (i) thereof.
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, provided that
it is understood that the Servicer intends to make a $15,000,000 provision for
credit losses in its December 31, 2000, financial statement, 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. Covenant. Financial Pacific shall, on or prior to December
31, 2000, provide written evidence to the Administrative Agent, the Standby
Servicer and the Surety Provider that approximately $6,000,000 in additional new
equity has been contributed to Financial Pacific through the issuance of
preferred stock or otherwise in a manner acceptable to the Administrative Agent
and the Surety Provider. In the event that Financial Pacific shall fail to
provide such written evidence on or prior to December 31, 2000, such failure
shall constitute an immediate Event of Default under Section 10.1 of the
Warehouse Agreement for all purposes of the Warehouse Agreement and the other
Related Documents.
SECTION 5. 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 or directors,
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) Financial Pacific shall have paid any and all fees due to the
Agent or the Surety Provider in connection with the execution of this Amendment.
SECTION 6. 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
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Name Printed: Dale A. Winter
Title: Executive Vice President and
Chief Financial Officer
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION (as successor to 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/ Evelyn Echevarria
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Name Printed: Evelyn Echevarria
Title: Vice President
BANK OF AMERICA, N.A., (as successor to
Bank of America National Trust and
Savings Association) 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
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Name Printed: John K. Svolos
Title: Vice President
ACKNOWLEDGED AND AGREED: MBIA INSURANCE CORPORATION
By: /s/ Michael Alter
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Name Printed: Michael Alter
Title: Vice President