Exhibit 10.19
NINTH AMENDMENT TO WAREHOUSE LOAN AND SECURITY
AGREEMENT
This Ninth Amendment to Warehouse Loan and Security Agreement, dated as of
April 16, 2004 (this "Amendment"), is by and among Financial Pacific Funding,
LLC ("Borrower"), Financial Pacific Leasing, LLC, ("Servicer"), Financial
Pacific Company ("Parent"), Xxxxx Fargo Bank, National Association (as successor
by merger to Xxxxx Fargo Bank Minnesota, National Association, formerly known as
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. Section 2.14(a) of the Warehouse Agreement is
hereby amended by deleting the date "October 25, 2004" where it appears therein
and substituting therefor the date "April 15, 2005."
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 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/ Xxxxx X. Xxxxx
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Name Printed: Xxxxx X. Xxxxx
--------------------
Title: Chief Financial Officer
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FINANCIAL PACIFIC LEASING, LLC
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name Printed: Xxxxx X. Xxxxx
--------------------
Title: Chief Financial Officer
---------------------------
FINANCIAL PACIFIC COMPANY
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name Printed: Xxxxx X. Xxxxx
--------------------
Title: Chief Financial Officer
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XXXXX FARGO BANK, NATIONAL ASSOCIATION
(as successor by merger to Xxxxx Fargo
Bank Minnesota, National Association,
formerly known as Norwest Bank
Minnesota, National Association), as
Collateral Agent and Standby Servicer
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name Printed: Xxxxxx Xxxxxxxxx
--------------------
Title: Assistant Vice President
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XX XXXX TRUST,
as Lender
By: Bank of America, National
Association, As Administrative
Trustee
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name Printed: Xxxx X. Xxxxxx
-----------------------
Title: Principal
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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
--------------------------------
Name Printed: Xxxx X. Xxxxxx
----------------------
Title: Principal
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BANK OF AMERICA, N.A., as a
Parallel Lender
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name Printed: Xxxx X. Xxxxxx
----------------------
Title: Principal
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ACKNOWLEDGED AND AGREED: MBIA INSURANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
----------------------
Title: Vice President
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