Contract
Exhibit 10.8(j)
ELEVENTH
AMENDMENT TO CREDIT AGREEMENT
This ELEVENTH AMENDMENT TO CREDIT
AGREEMENT (the “Eleventh Amendment”) dated March 31, 2010, is by and among LEAF
FINANCIAL CORPORATION, a Delaware corporation (“LEAF Financial”), and LEAF
FUNDING, INC., a Delaware corporation (“LEAF Funding” and together with LEAF
Financial, each individually a “Borrower” and individually and collectively,
jointly and severally, the “Borrowers”), the various financial institutions and
other Persons parties hereto (the “Lenders”), and PNC BANK, NATIONAL
ASSOCIATION, a national banking association, as successor to National City Bank,
as administrative agent and collateral agent for the Lenders (in such capacity,
the “Agent”).
BACKGROUND
A. Pursuant
to that certain Credit Agreement dated July 31, 2006, by and among the
Borrowers, the Lenders, and the Agent, as amended by a First Amendment dated
August 14, 2006, a Second Amendment dated December 22, 2006, a Third Amendment
dated March 14, 2007, a Fourth Amendment dated September 10, 2007, a Fifth
Amendment dated September 28, 2007, a Sixth Amendment dated October 18, 2007, a
Seventh Amendment dated July 31, 2009, an Eighth Amendment dated September 30,
2009, a Ninth Amendment dated November 30, 2009, and a Tenth Amendment dated
January 29, 2010 (as the same may be modified and amended from time to time,
including by this Eleventh Amendment, the “Credit Agreement”), the Lenders
agreed, inter alia, to
extend to the Borrowers a revolving credit facility in the current maximum
aggregate principal amount of $100,000,000.
B. The
Borrowers have requested an amendment to the Credit Agreement, 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
Definitions. The following additional definitions shall be
added to Article 1 of the Credit Agreement to read in their entirety as
follows:
“Commitment Excess”
means the amount by which (a) the Aggregate Commitment exceeds (b) the
outstanding principal amount of all Loans.
“Eleventh Amendment”
means the Eleventh Amendment to this Agreement dated March 31,
2010.
-
1-
“Existing CP Facility”
means any CP Facility entered into prior to the date of the Eleventh
Amendment.
“New CP Facility”
means any CP Facility entered into on or after the date of the Eleventh
Amendment.
(c) Amended
Definition. The following definition in Article 1 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
“Termination Date”
means the earliest of (a) May 15, 2010, and (b) the date on which the
Commitments are terminated in full or permanently reduced to zero pursuant to
the terms of this Agreement.
2. Amendment to Section 2.2 of
the Credit Agreement. Paragraph (b) of Section 2.2 of the
Credit Agreement is hereby amended and restated in its entirety, to read as
follows:
(b) Mandatory Reductions.
To the extent not previously reduced pursuant to paragraph (a) above, to or
below the following amount, the Aggregate Commitment shall be automatically and
permanently reduced at the time of (i) any borrowing under any New CP Facility,
by the amount of the related payment required by Section 8.11(d) hereof, and
(ii) the occurrence of any Commitment Excess, by the amount equal to an integral
multiple of $500,000 necessary to reduce the Commitment Excess to an amount
equal to or less than $25,000,000.
3. Amendment to Section 3.1 of
the Credit Agreement. Paragraph (c) of Section 3.1 of the
Credit Agreement is hereby amended by adding a new subsection (iv) to read as
follows:
(iv) Prepayments upon Sale to
LEAF SPE. Immediately upon the receipt by any Borrower of any proceeds of
a sale required by Section 8.11 hereof, the Borrowers shall make a mandatory
prepayment of the Loans in an amount equal to 100% of such
proceeds.
4. Amendment to Section 8.11 of
the Credit Agreement. Section 8.11 of the Credit Agreement is
hereby amended and restated in its entirety, to read as follows:
Section
8.11 CP Facility
Availability.
(a) LEAF
SPEs shall at all times maintain a commitment or commitments for CP Facilities
in an aggregate maximum amount not less than two hundred percent (200%) of the
Aggregate Commitment.
(b) If,
at any time, any LEAF SPE has any availability under any Existing CP Facility
for which any Collateral would be eligible collateral under such Existing CP
Facility (any such Collateral is referred to as “Eligible
-
2-
Collateral”),
the Borrowers shall (i) sell to such LEAF SPE, in accordance with its customary
procedures, such Eligible Collateral as such LEAF SPE may at such time finance
under such Existing CP Facility, and (ii) immediately apply the proceeds of such
sale to repay Loans.
(c) Any
New CP Facility will contain eligibility criteria for collateral that are no
more restrictive than the eligibility criteria under this Agreement (i.e. any
Eligible Contract shall be eligible for financing under any such New CP
Facility).
(d) If,
at any time, any LEAF SPE has any availability under any New CP Facility, the
Borrowers shall (i) sell to such LEAF SPE, in accordance with its customary
procedures, such Collateral as such LEAF SPE may at such time finance under such
Existing CP Facility, and (ii) immediately apply the proceeds of such sale to
repay Loans.
5. Representations and
Warranties. Each Borrower hereby represents and warrants to
the Agent and each Lender that, as to such Borrower:
(a) Representations. each
of the representations and warranties of such Borrower 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) such 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 Eleventh Amendment and any other
documents which the Lenders require such Borrower to deliver hereunder (this
Eleventh Amendment and any such additional documents delivered in connection
with the Eleventh 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 this
Eleventh Amendment have been adopted and taken and, upon their execution, the
Credit Agreement, as amended by this Eleventh 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 this Eleventh
Amendment will not violate any provisions of any law or regulation, federal,
state, local, or foreign, or the organizational documents of such 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 such
Borrower or its property may be bound;
(d) No
Default. no Default or Event of Default has occurred and is
continuing; and
-
3-
(e) No Material Adverse
Effect. no Material Adverse Effect has occurred since
September 30, 2008.
6. Conditions to Effectiveness
of Amendment. This Eleventh Amendment shall be effective upon
the Agent’s receipt of the following, each in form and substance reasonably
satisfactory to the Lenders:
(a) Eleventh
Amendment. this Eleventh Amendment, duly executed by the
Borrowers and the Lenders;
(b) Deposit Account Control
Agreement. The Agent, LEAF Asset Management, LLC, a Delaware
limited liability company (“LAMI”), and any bank at which LAMI maintains any
deposit account, shall have delivered a control agreement with respect to any
such deposit accounts;
(c) Consent and
Waivers. copies of any consents or waivers necessary in order
for the Borrowers to comply with or perform any of its covenants, agreements or
obligations contained in any agreement, which are required as a result of the
Borrowers’ execution of this Eleventh Amendment, if any;
(d) Extension
Fees. each Lender shall have been paid an extension fee by the
Borrowers equal to fifteen basis points (0.15%) of such Lender’s Revolving Loan
Commitment as of the date of this Eleventh Amendment;
(e) Costs and
Expenses. all reasonable costs and expenses of the Agent in
connection with the preparation and review of this Eleventh Amendment,
including, but not limited to, the reasonable fees, expenses and disbursements
of counsel to the Agent; and
(f) Other Documents and
Actions. such additional agreements, instruments, documents,
writings and actions as the Lenders may reasonably request.
7. No Waiver;
Ratification. The execution, delivery and performance of
this Eleventh 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 any 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.
8. Acknowledgments. To
induce the Lenders to enter into this Eleventh Amendment, each 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
-
4-
Credit
Documents are binding on, the Borrowers; (ii) the liens and security interests
granted to the Agent by the Borrowers 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 Borrowers hereby waive 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; and
(b) No Waiver of Existing
Defaults. no Default or Event of Default exists immediately
before or immediately after giving effect to this Eleventh
Amendment. Nothing in this Eleventh Amendment nor any communication
between the Agent, any Lender, any 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 any 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.
9. Binding
Effect. This Eleventh Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
10. Governing
Law. This Eleventh 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.
11. Headings. The
headings of the sections of this Eleventh Amendment are inserted for convenience
only and shall not be deemed to constitute a part of this Eleventh
Amendment.
12. Counterparts. This
Eleventh 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.
-
5-
IN WITNESS WHEREOF, the parties hereto
have caused this Eleventh 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 FINANCIAL
CORPORATION
By:
________________________________
Name:
Title:
LEAF FUNDING, INC.
By:
________________________________
Name:
Title:
Borrowers
Signature Page
Eleventh
Amendment to Credit Agreement
PNC BANK, NATIONAL ASSOCIATION,
assuccessor to National City
Bank, as Agent,
Swingline Lender and as a
Lender
By:
________________________________
Name:
Title:
Agent
Signature Page
Eleventh
Amendment to Credit Agreement
HSH NORDBANK AG, NEW YORK
BRANCH
By:
________________________________
Name:
Title:
By:
________________________________
Name:
Title:
Lender
Signature Page
Eleventh
Amendment to Credit Agreement
SOVEREIGN BANK
By:
________________________________
Name:
Title:
Lender
Signature Page
Eleventh
Amendment to Credit Agreement
BANK OF AMERICA, N.A.
By:
________________________________
Name:
Title:
Lender
Signature Page
Eleventh
Amendment to Credit Agreement
TD BANK, N.A.
By:
________________________________
Name:
Title:
Lender
Signature Page
Eleventh
Amendment to Credit Agreement
XXXXX FARGO BANK, N.A., successor
bymerger to Wachovia Bank,
National Association
By:
________________________________
Name:
Title:
Lender
Signature Page
Eleventh
Amendment to Credit Agreement
