1
EXHIBIT 10.16
AMENDMENT
THIS AMENDMENT (this "Amendment") is entered into as of September 23,
1999, by and among CCI/Triad Financial Holding Corporation, a California
corporation ("SPE"), and IFC Credit Corporation, an Illinois corporation
("Lender").
INTRODUCTION
A. SPE and Lender are parties to that certain Loan and Security
Agreement, dated as of July 1, 1999 (the "Agreement").
B. SPE and Lender wish to amend the agreement to add a hold back
provision.
NOW THEREFORE, in consideration of the foregoing and other valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
The parties confirm that Section 5.3(f) and Exhibit D of the Agreement are
hereby included and a part of the Agreement, and Lender agrees that is shall
hold executed copies of the Notices of Assignment in its files unless an Event
of Default shall have occurred and be continuing.
1. Section 1 of the Agreement is hereby amended by adding the following
provisions:
1.1 "Holdback Account" - as defined in Section 8.4.1.
1.2 "Holdback Amount" - as defined in Section 8.4.1.
2. Section 3.3 of the Agreement is hereby amended by adding to the end
of the second sentence thereof the following: "provided, however, that an amount
equal to the Holdback Amount shall be deducted from each Discount Facility Loan
and put into the Holdback Account by Lender on the Closing Date rather than paid
to SPE."
3. Section 8.1 of the Agreement is hereby amended as of the dated
hereof by relettering clauses (j) and (k) thereof as clauses (k) and (l) and
adding a new clause (j) as follows:
"(j) to the extent such put option available to TSFC, SPE or CCI/Triad
under a Lease is included in the calculation of the Discount Loan Value
of a Lease financed with a Discount Facility Loan, the failure of TSFC,
SPE or CCI/Triad as applicable to exercise any put option under any
Lease and to collect the proceeds of such exercise and to remit them to
Lender or to
1
2
provide any applicable notice to Lessee in connection with such put
option;"
4. Section 8.4 of the Agreement is hereby amended by adding a new
sentence after the first sentence thereof as follows: "In the event that SPE
fails to make such payment within 24 hours of such demand, Lender may withdraw
the amount demanded from the Holdback Account, in which event Lender shall
notify SPE of such withdrawal, provided, that Lender may not withdraw more than
the Holdback Amount."
5. Section 8.4 of the Agreement is hereby amended by adding the
following provision:
8.4.1 Holdback. In order to provide a means of liquidity for the Net
Loss Pool, Lender shall establish a Holdback Account, into which Lender
shall deposit five percent (5%) of each Discount Facility Loan made on
each Closing Date (the "Holdback Amount"). The "Holdback Account" shall
be an account segregated on the books of the Lender which shall be
credited quarterly with interest at a rate per annum equal to 4% per
annum. Lender may withdraw funds from the Holdback Account as provided
in Section 8.4. SPE shall have no right to withdraw funds from the
Holdback Account. On the first Business Day of each calendar quarter
(each a "Calculation Date"), Lender shall (i) multiply the outstanding
principal balance of all Discount Facility Loans at the close of
business on the last Business Day of the previous calendar quarter by
5% (such product, the "Adjusted Holdback Amount") and (ii) if the
aggregate amount in the Holdback Account is greater than the Adjusted
Holdback Amount and no Event of Default shall have occurred and be
continuing, pay to SPE all funds in the Holdback Account in excess of
the Adjusted Holdback Amount. If on the Calculation Date the Adjusted
Holdback Amount exceeds the amount in the Holdback Account, SPE agrees
to immediately pay to Lender the amount of such shortfall in
immediately available funds and upon receipt of such funds, Lender
shall deposit them into the Holdback Account. In addition, in the event
Lender has made the maximum amount of Discount Facility Loans
contemplated in Section 2.1, if no Event of Default shall have occurred
and be continuing, SPE is otherwise in compliance with this Section
8.4.1 and in the event the liability of SPE under Section 8.4 is less
than the dollar amount in the Holdback Account, Lender agrees to remit
such excess from the Holdback Account on each Calculation Date to SPE.
6. To induce Lender to enter into this Amendment, SPE represents as
follows:
(a) SPE is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to
borrow monies under the
2
3
Agreement, as amended hereby, and to perform its obligations
under the Agreement, as amended hereby.
(b) The execution and delivery of this Amendment, and the
performance by SPE of its obligations under the Agreement, as
amended hereby, do not and will not conflict with any
provision of law or of the charter or by-laws of SPE or of any
agreement binding upon SPE.
(c) The Agreement, as amended hereby, is a legal, valid, and
binding obligation of SPE, enforceable against SPE in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, or other similar laws of
general application affecting the enforcement of creditors'
rights or by general principles of equity limiting the
availability of equitable remedies.
7. This Amendment is subject to the satisfaction of each of the
following conditions precedent:
(a) SPE shall have delivered to Lender a fully executed
counterpart of this Amendment, duly executed by SPE's
president.
(b) As of the closing date hereof, no Event of Default under
the Agreement shall have occurred and be continuing.
(c) As of the closing date hereof, the warranties in Section 9
of the Agreement and in Section 6 of this Amendment shall be
true and correct as though made on such date, except for such
changes as are specifically permitted under the Agreement.
8. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
9. This Amendment shall be binding upon SPE and Lender and their
respective successors and assigns, and shall inure to the benefit of SPE and
Lender and the successors and assigns of Lender.
10. The Agreement, as amended hereby, shall remain in full force and
effect and is hereby ratified and confirmed in all respects.
11. Each reference in the Agreement to "this Agreement," "hereunder,"
"hereof," or words of similar import in instruments or documents provided for in
the Agreement or delivered or to be delivered thereunder or in connection
therewith, shall, except where the context otherwise requires, be deemed a
reference to the Agreement as amended hereby.
3
4
12. The parties intend and agree that a carbon copy, photocopy or
facsimile of this Amendment with their signature thereon and all counterparts
when taken together, shall be treated as an original, and shall be deemed to be
as binding, valid, genuine, and authentic as an original-signature document for
all purposes, including all matters of evidence and the "best evidence" rules.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed at Chicago, Illinois by their respective officers thereunto duly
authorized as of the date first written above.
CCI/TRIAD FINANCIAL HOLDING CORPORATION
By /s/ XXXXXXX XXXX
Its President
IFC CREDIT CORPORATION
By /s/
------------------------------
Its
------------------------------
4
