Exhibit 10.14
Loan and Security Agreement Amendment dated June 30, 2003, between the Company
and Israel Discount Bank of NY.
EXECUTION COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of June 27, 2003 (this "Amendment No. 2"), by
and among ASTA FUNDING ACQUISITION II, LLC and PALISADES COLLECTION, L.L.C.
(together, the "Borrower"), ASTA FUNDING, INC. ("Asta Funding"), ISRAEL DISCOUNT
BANK OF NEW YORK ("Lender") and the Debtors, to the Second Amended and Restated
Loan and Security Agreement dated January 28, 2003, as amended (the "Loan
Agreement").
RECITALS
A. Asta Funding has requested that the Lender amend the Loan Agreement
to provide that its individual 75% interest in the net collection of receivables
arising from two (2) portfolios of consumer receivables owned by Computer
Finance LLC ("Computer"), a wholly-owned subsidiary of Asta Funding ("Asta
Funding Profit Percentage") be included in the Borrowing Base as an Eligible
Portfolio.
B. Asta Funding's Profit Percentage is subject to the terms of an
Assignment Agreement dated as of December 28, 2001, among Greenwich Capital
Financial Products, Inc., Hilco Receivables, LLC ("Hilco"), Asta Funding and
Computer (the "Computer Assignment"), pursuant to which Hilco has an undivided
25% interest in the receivables owned by Computer and Asta Funding has filed a
UUC-1 Financing Statement with respect to the receivables owned by Computer (the
"Asta Funding Filing").
C. The Borrower has requested that the Lender grant a temporary
increase in the New Line of Credit from $25,000,000 to $36,000,000 (the
"Temporary Line Increase"), which Temporary Line Increase shall be evidenced by
the Demand Promissory Note of the Borrower in the amount of $5,000,000 in the
form annexed hereto as Exhibit A (the "Demand Note") in the form annexed hereto
as Exhibit A and by the Demand Promissory Note of the Borrower in the amount of
$6,000,000 in the form annexed hereto as Exhibit B (the "$6,000,000 Demand
Note").
D. These Recitals are incorporated and made a part of the Loan
Agreement.
E. The parties have agreed to amend the Loan Agreement in accordance
with the terms hereof. All capitalized terms used in this Amendment No. 2 shall
have the meaning given each such term in the Loan Agreement. Accordingly, the
Borrower, Asta Funding, the Debtors and the Bank hereby agree that the Loan
Agreement is hereby amended as follows:
SECTION 1. Amendments.
(a) Section 1.15 is hereby deleted in its entirety and
shall read as follows:
"1.15 "Average Collections" shall mean an amount
equal to an average of the actual Collections received with
respect to each Eligible Portfolio in the three (3) full
calendar months immediately preceding the date of computation
or determination."
(b) Section 1.24 is hereby amended by (i) deleting the word
"and" immediately prior to the "(b)", (ii) inserting an "and" at the end of such
Section, and (iii) by adding the following:
"(c) all of Asta Funding's right, title and interest
in and to the Asta Funding Profit Percentage, together with
all proceeds, Support Obligations, Payment Intangibles,
Books and Records and Asta Funding's rights under the
Computer Assignment, including, without limitation, the Asta
Funding Filing."
(c) Section 1.27 is hereby amended by inserting after the word
"Payments" the phrase "and all proceeds of the Asta Funding Profit Percentage."
(d) the term "Obligations" shall include all principal and
interest payable under the Demand Note and the $6,000,000 Demand Note.
(e) on the Amendment Effective Date (as hereinafter defined)
the Asta Funding Profit Percentage shall be deemed an Eligible Portfolio for all
purposes under the Loan Agreement.
(f) on the date thirty (30) days after the Amendment Effective
Date, the New Line of Credit shall automatically be reduced to $25,000,000 and
all Obligations in excess thereof shall be immediately due and payable to the
Lender, without demand.
(g) the Loan Agreement hereby is amended by adding a new
Section 2.5, which shall read as follows:
"2.5 Minimum Average Loan Balance. Commencing July,
2003, the Borrower shall maintain an average loan balance in
each month of not less than $15,000,000 as determined on the
last Banking Day of each month (the "Minimum Average Loan
Balance"), provided, that the Minimum Average Loan Balance
shall automatically decrease in each successive month by
$1,500,000 until such Average Loan Balance equals zero. In
the event on the last Banking Day of any month the Minimum
Average Loan Balance is less than as required for such
month, the Borrower shall pay the Lender a fee, equal to the
average rate of interest charged to the Borrower applied to
the amount of the loans in that month below the Minimum
Average Loan Balance for such month. Such fee shall be
payable on demand and may be charged to any account of the
Borrower with the Lender and shall be included in the
Obligations and be secured by the Collateral."
SECTION 2. Conditions to Effectiveness of Fifth Amendment.
This Amendment No. 2 shall become effective on the date (the
"Amendment Effective Date") on which the following conditions precedent shall
have been satisfied:
(a) the Lender shall have received this Amendment No. 2
executed and delivered by a duly authorized officer of the Borrower, Asta
Funding, each Debtor and the Lender;
(b) the Lender shall have received an Amendment to the General
Security Agreement, dated November 21, 2001, as amended, of Asta Funding,
granting to the Lender a security interest in the Asta Funding Profit
Percentage, in form, scope and substance acceptable to the Lender ("Asta
Assignment"), executed and delivered by a duly authorized officer of Asta
Funding;
(c) the Lender shall have received a UCC-3 Assignment of the
Asta Funding Filing for filing in the State of Delaware, in form and scope
acceptable to the Lender;
(d) the Lender shall have received the Demand Note and the
$6,000,000 Demand Note, executed and delivered by the Borrower; and
(e) the Lender shall have received such other documents as the
Bank or its counsel may reasonably request;
SECTION 3. Limited Effect.
Except as expressly amended and modified by this Amendment No.
2, the Loan Agreement shall continue to be, and shall remain, in full force and
effect in accordance with its terms.
SECTION 4. Representations and Warranties.
The Borrower, Asta Funding and each Debtor hereby (a) ratifies
and confirms its respective obligations under the Loan Agreement and each Loan
Document to which it is a party and (b) confirms and reaffirms the
representations and warranties contained in Section 17 of the Loan Agreement and
in each of the Loan Documents; provided, however, that reference therein to the
"Loan Documents" shall be deemed to include this Amendment No. 2, the Asta
Assignment ,the Demand Note and the $6,000,000 Demand Note. The Borrower, Asta
Funding and each Debtor hereby represents and warrants that as of the Amendment
Effective Date, after giving effect to this Amendment No. 2, no Event of Default
shall have occurred or be continuing. Asta Funding hereby represents and
warrants that (i) the Computer Assignment has not been amended and is in full
force and effect, (ii) it has no knowledge of any defense, offset or
counterclaim in favor of Computer with respect to the payment of the Asta
Funding Profit Percentage, and (iii) the consent of Hilco is not required to the
execution and delivery of the Asta Assignment.
SECTION 5. Counterparts.
This Amendment No. 2 may be executed by the parties hereto on
any number of separate counterparts, each of which shall be an original and all
of which taken together shall constitute one and the same instrument.
SECTION 6. Governing Law.
THIS AMENDMENT NO. 2 SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower, Asta Funding, the Debtors
and the Lender have caused this Amendment No. 2 to be duly executed by their
duly authorized officers, all as of the date first above written.
ASTA FUNDING ACQUISITION II, LLC
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Manager
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Manager
PALISADES COLLECTION, L.L.C.
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Manager
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Manager
ASTA FUNDING, INC.
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: President
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Secretary and
Chief Financial Officer
ASTA FUNDING ACQUISITION I, LLC
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Manager
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Manager
E.R. RECEIVABLES CORP., L.L.C.
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Manager
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Manager
PALISADES ACQUISITION I, LLC
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Manager
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Manager
PALISADES ACQUISITION II, LLC
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: Manager
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Manager
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Xxxxx Xxxx
-------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
AMENDMENT TO THE
GENERAL SECURITY AGREEMENT
(Asta Funding, Inc.)
THIS AMENDMENT TO THE GENERAL SECURITY AGREEMENT (this "Amendment")
dated as of June 27, 2003 between Asta Funding, Inc. (the "Obligor"), and Israel
Discount Bank of New York (the "Bank").
WHEREAS, pursuant to the Second Amended and Restated Loan and Security
Agreement dated as of January 28, 2003 (the "Loan Agreement"), among the
Obligor, the Bank and certain Affiliates (as such term is used in the Loan
Agreement) of the Obligor, the Obligor has executed a General Security Agreement
dated as of November 15, 2001 (the "Security Agreement"), in favor of the Bank;
and
WHEREAS, the Obligor wishes to obtain a temporary increase in the line
of credit available to the Borrowers (as defined in the Loan Agreement) under
the Loan Agreement to an amount not to exceed $36,000,000.00; and
WHEREAS, the Bank has consented to that increase, provided that the
Obligor grants to the Bank a lien in the Obligor's 75% "profit interest" in the
receivables owned by the Obligor's subsidiary, Computer Finance LLC, a Delaware
limited liability company;
NOW THEREFORE, in consideration of the foregoing, the Security
Agreement is amended as follows:
1. The definition of "Collateral" in Section I is hereby amended by restating
clause (b) in its entirety to read as follows:
"(b) all of Asta Funding's (i) Auto Loans, Auto Contracts and the
Accounts, Collections rights, claims, actions and/or causes of action, Books and
Records, lawsuits, judgments and Support Obligations relating thereto that have
been granted to Lender pursuant to the Original Restated Agreement, and (ii) (a)
the Asta Profit Percentage (as such term is defined in that certain Loan and
Security Agreement dated as of August 30, 2001, by and among Greenwich Capital
Financial Products, Inc., Computer Finance LLC and Asta Funding), and (b) the
Asta Purchased Profit Percentage (as such term is defined in that certain
Assignment Agreement dated as of December 28, 2001, by and among Greenwich
Capital Financial Products, Inc., Hilco Receivables, LLC and the Asta Funding).
2. The Obligor reaffirms as of the date hereof the representations and
warranties set forth in Sections 5 and 7 of the Security Agreement.
3. The Obligor reaffirms as of the date hereof the covenants set forth in
Sections 6 and 8 of the Security Agreement
4. All other terms and conditions of the Security Agreement shall continue to be
of full force and effect, to the extent they remain unchanged by the foregoing,
and the Obligor shall continue to remain bound thereby.
IN WITNESS WHEREOF, intending to be legally bound, the
undersigned have caused this Amendment to be duly executed as of the date first
above written.
ASTA FUNDING, INC.,
as Obligor
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: President & CEO
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: EVP & Chief Financial Officer
ISRAEL DISCOUNT BANK OF NEW YORK,
as Bank
By: /s/ Xxxxx Herztman
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
