FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST
AMENDMENT TO CREDIT AGREEMENT
This
FIRST AMENDMENT TO CREDIT
AGREEMENT (the “First Amendment”) dated May __, 2007, is by and between LEAF
EQUIPMENT LEASING INCOME FUND III, L.P., a Delaware limited partnership (the
“Borrower”), and National City Bank, as the sole Lender on the date hereof (the
“Lender”), and as administrative agent and collateral agent (in such capacity,
the “Agent”) for the Lender and other lenders from time to time (the
“Lenders”).
BACKGROUND
A. Pursuant
to that certain Credit Agreement dated March 30, 2007, by and among the
Borrowers, the Lenders and the Agent (as the same may be modified and amended
from time to time, including by this First Amendment, the “Credit Agreement”),
the Lenders agreed, inter alia, to extend to the Borrower a revolving
credit facility in the maximum aggregate principal amount of
$25,000,000.
B. The
Borrower has requested an increase of $25,000,000 to the facility, to which
the
Lenders are willing to agree, on the terms and subject to the conditions set
forth herein.
NOW,
THEREFORE, in consideration of the
foregoing premises and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Definitions.
(a) General
Rule. Except as expressly set forth herein, all capitalized terms
used and not defined herein shall have the respective meanings ascribed thereto
in the Credit Agreement.
(b) Additional
Definition. The following additional definition shall be added to
Article 1 of the Credit Agreement to read in its entirety as
follows:
“First
Amendment” means the First Amendment to this Agreement dated May __,
2007.
(c) Amended
Definition. The following definition in Article 1 of the Credit
Agreement shall be amended and restated to read in its entirety as
follows:
“Aggregate
Commitment” means the aggregate amount of the Lenders’
Commitments hereunder, as such amount may be reduced or modified at any
time or
from time to time pursuant to the terms hereof. On the date of the
First Amendment, the Aggregate Commitment is Fifty Million Dollars
($50,000,000).
2. Amendment
to Schedule I. Schedule I to the Credit Agreement is hereby
amended and restated in its entirety with Schedule I attached
hereto.
3. Amendment
to Note. The existing Note issued in favor of the Lender is
hereby amended and restated in its entirety with the Note from the Borrower,
dated the date hereof (the “Restated Note”), in the amount of Fifty Million
Dollars ($50,000,000).
4. Representations
and Warranties. The Borrower hereby represents and warrants to
the Agent and each Lender that:
(a) Representations. Each
of the representations and warranties contained in the Credit Agreement and/or
the other Credit Documents are true, accurate and correct in all material
respects on and as of the date hereof as if made on and as of the date hereof,
except to the extent such representation or warranty was made as of a specific
date;
(b) Power
and Authority. (i) The Borrower has the power and authority under
the laws of its jurisdiction of organization and under its organizational
documents to enter into and perform this First Amendment and any other documents
which the Agent requires the Borrower to deliver hereunder (this First
Amendment, the Restated Note and any such additional documents delivered in
connection with the First Amendment are herein referred to as the “Amendment
Documents”); and (ii) all actions, corporate or otherwise, necessary or
appropriate for the due execution and full performance by the Borrower of the
First Amendment have been adopted and taken and, upon their execution, the
Credit Agreement, as amended by this First Amendment will constitute the valid
and binding obligations of the Borrower enforceable in accordance with their
respective terms (except as may be limited by applicable insolvency, bankruptcy,
moratorium, reorganization, or other similar laws affecting enforceability
of
creditors’ rights generally and the availability of equitable
remedies);
(c) No
Violations of Law or Agreements. The making and performance of
the First Amendment will not violate any provisions of any law or regulation,
federal, state, local, or foreign, or the organizational documents of the
Borrower, or result in any breach or violation of, or constitute a default
or
require the obtaining of any consent under, any agreement or instrument by
which
the Borrower or its property may be bound;
(d) No
Default. No Default or Event of Default has occurred and is
continuing; and
(e) No
Material Adverse Effect. No Material Adverse Effect has occurred
since March 30, 2007.
5. Conditions
to Effectiveness of Amendment. This First Amendment shall be
effective upon the Agent’s receipt of the following, each in form and substance
reasonably satisfactory to the Lenders:
(a) Amendment
Documents. This First Amendment and the Restated Note, each duly
executed by the Borrower;
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(b) Consent
and Waivers. Copies of any consents or waivers necessary in order
for the Borrower to comply with or perform any of its covenants, agreements
or
obligations contained in any agreement, which are required as a result of the
Borrower’s execution of this First Amendment, if any;
(c) Secretary’s
Certificate. A certificate, dated the date hereof, duly executed
and delivered by the Borrower’s secretary as to: (i) resolutions approved by
Asset Management’s board of directors then in full force and effect authorizing
the execution, delivery and performance by the Borrower of each Credit Document
to be executed by the Borrower, and the transactions contemplated hereby and
thereby; (ii) the incumbency and signatures of its Authorized Officers,
authorized to act with respect to each Amendment Document to be executed by
the
Borrower; and (iii) the full force and validity of each Organizational Document
of the Borrower delivered as of March 30, 2007, pursuant to the Credit
Agreement;
(d) Opinion
of Counsel. An opinion, dated the date hereof, and addressed to the Agent
and all Lenders, from Ledgewood, counsel to the Borrower, in form and substance
reasonably satisfactory to the Agent;
(e) Fees
and Expenses. Payment of any fees and expenses of the Agent in
preparation and negotiation of the Amendment Documents; and
(f) Other
Documents and Actions. Such additional agreements, instruments,
documents, writings and actions as the Lenders may reasonably
request.
6. No
Waiver; Ratification. The execution, delivery and
performance of this First Amendment shall not operate as a waiver of any right,
power or remedy of the Agent or the Lenders under the Credit Agreement or any
Credit Document, or constitute a waiver of any provision
thereof. Except as expressly modified hereby, all terms, conditions
and provisions of the Credit Agreement and the other Credit Documents shall
remain in full force and effect and are hereby ratified and confirmed by the
Borrower. Nothing contained herein constitutes an agreement or
obligation by the Agent or any Lender to grant any further amendments to any
of
the Credit Documents.
7. Acknowledgments. To
induce the Lenders to enter into this First Amendment, the Borrower
acknowledges, agrees, warrants, and represents that:
(a) Acknowledgment
of Obligations; Collateral; Waiver of Claims. (i) The Credit Documents are
valid and enforceable against, and all of the terms and conditions of the Credit
Documents are binding on, the Borrower; (ii) the liens and security interests
granted to the Agent by the Borrower pursuant to the Credit Documents are valid,
legal and binding, properly recorded or filed and first priority perfected
liens
and security interests; and (iii) the Borrower hereby waives any and all
defenses, set-offs and counterclaims which they, whether jointly or severally,
may have or claim to have against the Agent or any Lender as of the date
hereof.
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(b) No
Waiver of Existing Defaults. No Default or Event of Default
exists immediately before or immediately after giving effect to this First
Amendment. Nothing in this First Amendment nor any communication
between the Agent, any Lender, the Borrower or any of their respective officers,
agents, employees or representatives shall be deemed to constitute a waiver
of
(i) any Default or Event of Default arising as a result of the foregoing
representation proving to be false or incorrect in any material respect; or
(ii)
any rights or remedies which the Agent or any Lender has against the Borrower
under the Credit Agreement or any other Credit Document and/or applicable law,
with respect to any such Default or Event of Default arising as a result of
the
foregoing representation proving to be false or incorrect in any material
respect.
8. Binding
Effect. This First Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns.
9. Governing
Law. This First Amendment and all rights and obligations of the
parties hereunder shall be governed by and be construed and enforced in
accordance with the laws of the internal laws of the Commonwealth of
Pennsylvania.
10. Headings. The
headings of the sections of this First Amendment are inserted for convenience
only and shall not be deemed to constitute a part of this First
Amendment.
11. Counterparts. This
First Amendment may be executed in any number of counterparts with the same
affect as if all of the signatures on such counterparts appeared on one document
and each counterpart shall be deemed an original.
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IN
WITNESS WHEREOF, the parties hereto
have caused this First Amendment to Credit Agreement to be executed under seal
by their duly authorized officers, all as of the day and year first written
above.
LEAF
EQUIPMENT LEASING INCOMEFUND III,
L.P., by its general partner
LEAF
ASSET MANAGEMENT,
LLC
By:
________________________________
Name:
Title:
NATIONAL
CITY BANK,
as
Agent and as the
Lender
By:
________________________________
Name:
Title:
First
Amendment to Credit
Agreement
SCHEDULE
I
INITIAL
COMMITMENTS
|
Lender
Name
|
Loan
Commitment
|
Loan
Percentages
|
|
National
City Bank
|
$50,000,000
|
100%
|
|
Total
|
$50,000,000
|
100%
|
First
Amendment to Credit
Agreement
