Exhibit 10.16
SIXTH AMENDMENT TO
WAREHOUSE LOAN AND SECURITY AGREEMENT
This Sixth Amendment to Warehouse Loan and Security Agreement, dated as
of October 25, 2002 (this "Amendment"), is by and among Financial Pacific
Funding, LLC ("Borrower"), Financial Pacific Leasing, LLC, ("Servicer"),
Financial Pacific Company ("Parent"), solely for purposes of Section 2(b), 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, Parent, 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 2.14 (a) of the Warehouse Agreement
is hereby amended by deleting the date "October 28, 2002" where it appears
therein and substituting therefor the date "October 27, 2003".
(b) Paragraph (a) to Section 9.5 of the Warehouse Agreement is
hereby deleted in its entirety and the following paragraph (a) is hereby
substituted therefor:
(a) Financial Pacific Company and its consolidated
subsidiaries (the initial Servicer and Borrower) shall maintain a
ratio, on a consolidated basis, of total debt to Tangible Net Worth not
to exceed (i) 24 to 1, calculated on a quarterly basis beginning
December 31, 1998, and (ii) 20 to 1, calculated on a quarterly basis
beginning December 31, 2002. Total debt shall include only
interest-bearing debt.
(c) Schedule 15.5 of the Warehouse Agreement is hereby amended by
replacing the notice addresses to the Borrower and to the Servicer and the
Originator with the following notice addresses:
SIXTH AMENDMENT TO
WAREHOUSE LOAN AND SECURITY AGREEMENT
To the Borrower:
Financial Pacific Funding, LLC
3455 South 344th Way
Suite 300
Federal Way, WA 98001
Attention: Erik Weedon
Facsimile: (800) 510-0101
Telephone: (253) 568-6140
To the Servicer and the Originator:
Financial Pacific Leasing, LLC
3455 South 344th Way
Suite 300
Federal Way, WA 98001
Attention: Dale A Winter
Facsimile: (800) 510-0101
Telephone: (253) 568-6000
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 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 limited liability company agreement of
such Borrowing Party has not been modified or amended since December
30, 1998;
SIXTH AMENDMENT TO
2 WAREHOUSE LOAN AND SECURITY AGREEMENT
(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;
(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; and
(vii) A replacement Premium Letter shall have been executed
reflecting any change in the MBIA Premium.
(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 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.
SIXTH AMENDMENT TO
3 WAREHOUSE LOAN AND SECURITY AGREEMENT
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/ Peter A. Davis
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Name Printed: Peter A. Davis
Title: Manager
FINANCIAL PACIFIC LEASING, LLC
By: /s/ Peter A. Davis
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Name Printed: Peter A. Davis
Title: Manager
FINANCIAL PACIFIC COMPANY, solely for
purposes of Section 2(b)
By: /s/ Peter A. Davis
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Name Printed: Peter A. Davis
Title: Chief Financial Officer
SIXTH AMENDMENT TO
S-1 WAREHOUSE LOAN AND SECURITY AGREEMENT
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION (as successor to Norwest
Bank Minnesota, National Association),
as Collateral Agent and Standby
Servicer
By: /s/ Jennifer C. Davis
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Name Printed: Jennifer C. Davis
Title: Assistant Vice President
SIXTH AMENDMENT TO
S-2 WAREHOUSE LOAN AND SECURITY AGREEMENT
RECEIVABLES CAPITAL CORPORATION, as
Lender
By: /s/ Evelyn Echevarria
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Name Printed: Evelyn Echevarria
Title: Vice President
SIXTH AMENDMENT TO
S-3 WAREHOUSE LOAN AND SECURITY AGREEMENT
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: Principal
BANK OF AMERICA, N.A., as a Parallel
Lender
By: /s/ John K. Svolos
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Name Printed: John K. Svolos
Title: Principal
SIXTH AMENDMENT TO
S-4 WAREHOUSE LOAN AND SECURITY AGREEMENT
ACKNOWLEDGED AND AGREED: MBIA INSURANCE CORPORATION
By: /s/ Andrew P. Laterza
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Name Printed: Andrew P. Laterza
Title: Vice President
SIXTH AMENDMENT TO
S-5 WAREHOUSE LOAN AND SECURITY AGREEMENT