Exhibit 10.18
EIGHTH AMENDMENT TO
WAREHOUSE LOAN AND SECURITY AGREEMENT
This Eighth Amendment to Warehouse Loan and Security Agreement, dated
as of October 24, 2003 (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), Xxxxx
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"), XX XXXX Trust (as assignee of Receivables Capital Corporation) ("XX
XXXX Trust"), 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, XX XXXX Trust, 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 "Standby Servicer" set
forth in Section 1.1 of the Warehouse Agreement is hereby amended by deleting
the phrase "pursuant to the terms of the Servicing Assumption Agreement" where
it appears therein.
(b) Section 2.14 (a) of the Warehouse Agreement is hereby amended
by deleting the date "October 27, 2003" where it appears therein and
substituting therefor the date "October 25, 2004".
(c) Section 8.4 of the Warehouse Agreement is hereby amended by
deleting the phrase "and the Servicing Assumption Agreement, if applicable"
where it appears in the third sentence thereof.
(d) Section 10.4(a) of the Warehouse Agreement is hereby amended
by deleting the phrase "pursuant to the Servicing Assumption Agreement" where it
appears in the second sentence thereof.
EIGHTH AMENDMENT TO
WAREHOUSE LOAN AND SECURITY AGREEMENT
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;
(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
EIGHTH AMENDMENT TO
2 WAREHOUSE LOAN AND SECURITY AGREEMENT
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.
EIGHTH 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/ Xxxxx X. Xxxxx
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Name Printed: Xxxxx X. Xxxxx
Title: Manager
FINANCIAL PACIFIC LEASING, LLC
By: /s/ Xxxxx X. Xxxxx
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Name Printed: Xxxxx X. Xxxxx
Title: Chief Financial Officer
FINANCIAL PACIFIC COMPANY, solely for
purposes of Section 2(b)
By: /s/ Xxxxx X. Xxxxx
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Name Printed: Xxxxx X. Xxxxx
Title: Chief Financial Officer
EIGHTH AMENDMENT TO
S-1 WAREHOUSE LOAN AND SECURITY AGREEMENT
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION (as successor to Norwest
Bank Minnesota, National Association),
as Collateral Agent and Standby
Servicer
By: /s/ Xxxxxx Xxxxxxxxx
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Name Printed: Xxxxxx Xxxxxxxxx
Title: Corporate Trust Officer
EIGHTH AMENDMENT TO
S-2 WAREHOUSE LOAN AND SECURITY AGREEMENT
XX XXXX TRUST, as Lender
By: /s/ Xxxx X. Xxxxxx
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Name Printed: Xxxx X. Xxxxxx
Title: Principal
EIGHTH 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/ Xxxx X. Xxxxxx
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Name Printed: Xxxx X. Xxxxxx
Title: Principal
BANK OF AMERICA, N.A., as a Parallel
Lender
By: /s/ Xxxx X. Xxxxxx
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Name Printed: Xxxx X. Xxxxxx
Title: Principal
EIGHTH AMENDMENT TO
S-4 WAREHOUSE LOAN AND SECURITY AGREEMENT
ACKNOWLEDGED AND AGREED: MBIA INSURANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name Printed: Xxxxxx X. Xxxxxxx
Title: Vice President
EIGHTH AMENDMENT TO
S-5 WAREHOUSE LOAN AND SECURITY AGREEMENT
