Exhibit 10.17
SEVENTH AMENDMENT TO
WAREHOUSE LOAN AND SECURITY AGREEMENT
This Seventh Amendment to Warehouse Loan and Security Agreement, dated
as of May 30, 2003 (this "Amendment"), is by and among Financial Pacific
Funding, LLC ("Borrower"), Financial Pacific Leasing, LLC, ("Servicer"), 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"), 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, 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) The definition of "31 to 60 Day Delinquency
Ratio" set forth in Section 1.1 of the Warehouse Agreement is hereby amended by
(i) deleting the phrase "as of the due date of each Receivable's Scheduled
Payment during the related Collection Period" where it appears in clause (a)
thereof and substituting therefor the phrase "as of the last day of the related
Collection Period", and (ii) deleting the phrase "as of the due date of the
related Receivable's Scheduled Payment in such Collection Period" where it
appears in clause (b) thereof and substituting therefor the phrase "as of the
last day of the related Collection Period".
(b) The definition of "61 to 90 Day Delinquency Ratio" set forth
in Section 1.1 of the Warehouse Agreement is hereby amended by (i) deleting the
phrase "as of the due date of each Receivable's Scheduled Payment during the
related Collection Period" where it appears in clause (a) thereof and
substituting therefor the phrase "as of the last day of the related Collection
Period", and (ii) deleting the phrase "as of the due date of the related
Receivable's Scheduled Payment in such Collection Period" where it appears in
clause (b) thereof and substituting therefor the phrase "as of the last day of
the related Collection Period".
SEVENTH AMENDMENT TO
WAREHOUSE LOAN AND SECURITY AGREEMENT
(c) Section 3.11 of the Warehouse Agreement is hereby amended by
deleting the first sentence thereof and substituting the following sentence
therefor:
The initial Servicer shall cause a firm of nationally-recognized
certified public accountants (which shall be one of the "Big 5"
accounting firms), who may also render other services to the initial
Servicer or to the Borrower, to deliver (1) to the Collateral Agent and
the Notice Parties on or before April 30 of each year as of December 31
of the preceding fiscal year, beginning April 30, 2000, a report
addressed to the Board of Directors of Financial Pacific Company, to
the effect that such firm has examined the consolidated financial
statements of Financial Pacific Company, which financial statements
include consolidating schedules related to the initial Servicer, and
issued its report therefor and that such examination was made in
accordance with generally accepted auditing standards (except as
otherwise noted therein), and accordingly included such tests of the
accounting records and such other auditing procedures as such firm
considered necessary in the circumstances; and (2) to the Notice
Parties on or before April 30 of each year, a report verifying the
information, including the accuracy of the calculations, on the
Servicer's Certificates delivered by the initial Servicer during the
prior year and tying such information to the initial Servicer's books
and records.
(d) Subparagraph (A) of Section 10.1(x) of the Warehouse Agreement
is hereby deleted and the following subparagraph (A) is hereby substituted
therefor:
(A) the 31 to 60 Day Delinquency Ratio exceeds 5.0% for such
Collection Period or the average of the 31 to 60 Day
Delinquency Ratios for the three most recently ended
Collection Periods exceeds 4.5%;
(e) Subparagraph (B) of Section 10.1(x) of the Warehouse Agreement
is hereby deleted and the following subparagraph (B) is hereby substituted
therefor:
(B) the 61 to 90 Day Delinquency Ratio exceeds 2.5% for such
Collection Period or the average of the 61 to 90 Day
Delinquency Ratios for the three most recently ended
Collection Periods exceeds 2.0%;
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. Each of the Notice Parties shall have received:
(i) This Amendment, duly executed by each of the parties
hereto;
SEVENTH AMENDMENT TO
2 WAREHOUSE LOAN AND SECURITY AGREEMENT
(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; and
(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.
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.
SEVENTH 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: Chief Financial Officer
FINANCIAL PACIFIC LEASING, LLC
By: /s/ Xxxxx X. Xxxxx
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Name Printed: Xxxxx X. Xxxxx
Title: Chief Financial Officer
SEVENTH 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
SEVENTH AMENDMENT TO
S-2 WAREHOUSE LOAN AND SECURITY AGREEMENT
RECEIVABLES CAPITAL CORPORATION, as
Lender
By: /s/ Xxxxxx Xxxxxxxxxx
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Name Printed: Xxxxxx Xxxxxxxxxx
Title: Vice President
SEVENTH 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
SEVENTH 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
SEVENTH AMENDMENT TO
S-5 WAREHOUSE LOAN AND SECURITY AGREEMENT
