Exhibit 10.24
AMENDMENT NUMBER THREE
TO
CREDIT AGREEMENT
THIS AMENDMENT NUMBER THREE TO CREDIT AGREEMENT (this "Amendment") is
made as of June 11, 2003, by and among FINANCIAL PACIFIC LEASING, LLC, a
Washington limited liability company (the "Borrower"), U.S. BANK NATIONAL
ASSOCIATION and each other lender that from time to time becomes a party hereto
(collectively, the "Lenders" and individually, a "Lender"), and BANK OF AMERICA,
N.A., as Administrative Agent and Swing Line Lender.
RECITALS
A. Lenders, Administrative Agent and Borrower are parties to that
certain Credit Agreement dated as of November 30, 2001, as amended by that
certain Amendment Number One to Credit Agreement dated September 23, 2002, as
amended by that certain Amendment Number Two to Credit Agreement dated May 30,
2003 (as so amended and as otherwise amended from time to time, the "Credit
Agreement"), that certain Consent dated February 11, 2002, and that certain
Waiver Letter dated February 28, 2002.
B. The parties agree to amend certain financial covenants in the
agreement, pursuant to the terms and subject to the conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. DEFINITIONS. Capitalized terms not otherwise defined in this
Amendment shall have the meaning set forth in the Credit Agreement.
2. AMENDMENT TO SECTION 1.01. Section 1.01 of the Credit
Agreement is hereby amended as follows:
(a) AMENDMENT TO DEFINITION OF "APPLICABLE RATE." The
definition of "Applicable Rate" is hereby deleted and replaced with the
following:
"Applicable Rate" means, from time to time, the following
percentages per annum, based upon the Leverage Ratio as set forth in
the most recent Compliance Certificate received by the Administrative
Agent pursuant to Section 6.02(b):
APPLICABLE RATE
PRICING COMMITMENT EURODOLLAR BASE RATE
LEVEL LEVERAGE RATIO FEE RATE+ +
------------------------------------------------------------------------------------------------------------
1 Less than 2.50:1.00 .30% 1.500% .0%
2 Greater than or equal to .30% 1.750% .0%
2.50:1.00 but less than
3.25:1.00
3 Greater than or equal to .35% 2.125% .25%
3.25:1.00 but less than
or equal to 4.00:1.00
Any increase or decrease in the Applicable Rate resulting from a change
in the Leverage Ratio shall become effective as of the first day of the calendar
month immediately following the date a Compliance Certificate is delivered
pursuant to Section 6.02(b); provided, however, that if no Compliance
Certificate is delivered during a fiscal quarter when due in accordance with
such Section, then Pricing Level 3 shall apply as of the fist day of such
following calendar month until three Business Days after the Agent's receipt of
such Compliance Certificate at which time the appropriate Pricing Level based on
such Compliance Certificate shall apply.
(b) AMENDMENT TO DEFINITION OF "MATURITY DATE." The
definition of "Maturity Date" is hereby deleted and replaced with the following:
"Maturity Date" means (a) May 30, 2005 (b) such earlier date
upon which the Aggregate Commitments may be terminated in accordance
with the terms hereof, or (c) such later date as may be agreed to in
writing by the parties hereto pursuant to Section 2.14.
3. AMENDMENT TO SCHEDULE 2.01. Schedule 2.01 is hereby deleted
and replaced with the Schedule 2.01 attached hereto.
4. AMENDMENT TO FORM OF COMPLIANCE CERTIFICATE. Section III of
Schedule 2 to the Form of Compliance Certificate, attached as Exhibit C to the
Credit Agreement, is hereby deleted in its entirety and replaced with the
following:
III. SECTION 7.13(c) - LEVERAGE RATIO.
A. Total Liabilities at Statement Date: $__________
B. Tangible Net Worth at Statement Date $__________
(Line I.A.3):
C. Leverage Ratio (Line III.A / Line III.B): ____ to 1.0
Maximum Permitted: 4.0 to 1.0
5. AMENDMENT TO SCHEDULE 5.13. Schedule 5.13 is hereby deleted
and replaced with the Schedule 5.13 attached hereto.
6. NEW SECTION 5.19. The following is added as a new Section
5.19:
TAX SHELTER REGULATIONS. The Borrower does not intend to treat
the loans and related transactions as being a "reportable transaction"
(within the meaning of Treasury Regulation Section 1.6011-4). In the
event the Borrower determines to take any action inconsistent with such
intention, it will promptly notify the Administrative Agent thereof. If
the Borrower so notifies the Administrative Agent, the Borrower
acknowledges that one or more of the Lenders may treat its Loans as
part of a transaction that is subject to Treasury Regulation Section
301.6112-1, and such Lender or Lenders, as applicable, will maintain
the lists and other records required by such Treasury Regulation.
7. NEW SECTION 6.02(m). The following is added as a new Section
6.02(m), and "; and" replaces the "." at the end of Section 6.02(l):
(m) promptly after the Borrower has notified the Administrative Agent
of any intention by the Borrower to treat the Loans and related
transactions as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4), a duly completed copy of IRS
Form 8886 or any successor form.
8. AMENDMENT TO SECTION 7.13(c). Section 7.13(c) of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
LEVERAGE RATIO. Permit the Leverage Ratio of the Borrower as
of the end of any fiscal quarter of the Borrower to exceed 4.0 to 1.0.
9. AMENDMENT TO SECTION 10.08. The following is added at the end
of Section 10.08:
Notwithstanding anything herein to the contrary, "Information" shall
not include, and the Administrative Agent and each Lender may disclose
without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the meaning
of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions
or other tax analyses) that are provided to the Administrative Agent or
such Lender relating to such tax treatment and tax structure; provided
that with respect to any document or similar item that in either case
contains information concerning the tax treatment or tax structure of
the transaction as well as other information, this sentence shall only
apply to such portions of the
document or similar item that relate to the tax treatment or tax
structure of the Loans and transactions contemplated hereby.
10. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective when Borrower, Administrative Agent, and each Lender shall have
executed and delivered counterparts of this Amendment to Administrative Agent.
11. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to the Lenders and Agent that each of the representations and
warranties set forth in Article 5 of the Credit Agreement is true and correct in
each case as if made on and as of the date of this Amendment and Borrower
expressly agrees that it shall be an additional Event of Default under the
Credit Agreement if any representation or warranty made hereunder shall prove to
have been incorrect in any material respect when made.
12. FEES AND EXPENSES. In addition to any other amounts owing in
connection with this Amendment in accordance with the Credit Agreement,
immediately upon the execution and delivery of this Amendment, Borrower shall
pay to the Administrative Agent: (i) for the benefit of each Lender in
accordance with its Pro Rata Share an amendment fee equal to 12.5 basis points
(0.125%) of the Aggregate Commitments; (ii) for its own account, any arrangement
or other fees owing to the Administrative Agent in accordance with the letter
agreement between Borrower and to the Administrative Agent entered into in
connection with this Amendment; and (iii) any fees or expenses (including
attorney's fees) incurred by the Administrative Agent in connection with this
Amendment.
13. NO FURTHER AMENDMENT. Except as expressly modified by the
terms of this Amendment, all of the terms and conditions of the Credit Agreement
and the other Loan Documents shall remain in full force and effect and the
parties hereto expressly reaffirm and ratify their respective obligations
thereunder.
14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WASHINGTON.
15. 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.
16. INTEGRATION. This Amendment, together with the other Loan
Documents, comprises the complete, final and integrated agreement of the parties
on the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter.
17. ORAL AGREEMENTS NOT ENFORCEABLE.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
Number Three to Credit Agreement as of the date first above written.
FINANCIAL PACIFIC LEASING, LLC
By: /s/ XXXXX XXXXX
------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
By: /s/ XXX XXXX
------------------------------
Name: Xxx Xxxx
Title: Vice President
BANK OF AMERICA, N.A., AS A LENDER
AND SWING LINE LENDER
By: /s/ XXXX XXXXXXXX
------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
U.S. BANK NATIONAL ASSOCIATION, AS
A LENDER
By: /s/ J. XXXXX XXXXXXXX
------------------------------
Name: J. Xxxxx Xxxxxxxx
Title: Officer
