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FIFTH AMENDMENT TO
REVOLVING
CREDIT AGREEMENT AND
ASSIGNMENT
THIS
FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT AND ASSIGNMENT (this “Fifth
Amendment”) made as of January 30, 2004, by and among LEAF FINANCIAL
CORPORATION, a Delaware corporation with offices at 0000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (“Leaf
Financial”) and LEAF FUNDING, INC., a Delaware corporation with offices at
000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (“Leaf Funding,
Inc.”, and together with Leaf Financial, each a “Debtor” and,
collectively, the “Debtors”) and NATIONAL CITY BANK, a national
banking association with offices at Xxx Xxxxx Xxxxx, 00xx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 (“Secured Party”).
BACKGROUND
A.
On June 11, 2002, Leaf Financial and Secured Party entered into that certain
Revolving Credit Agreement and Assignment (the “Original
Agreement”) a copy of which is attached hereto and made a part hereof
as Exhibit “A”, pursuant to which Secured Party promised from
time to time to make loans to Leaf Financial in exchange for Leaf
Financial’s grant of a security interest and an assignment to Secured Party
of all Leaf Financial’s right, title and interest in certain Collateral (as
defined in Section 2(a) of the Original Agreement), evidenced by that certain
Master Note of even date therewith between Leaf Financial and Secured Party (the
“Master Note”).
B.
On March 28, 2003, Leaf Financial, Lease Equity Appreciation Fund I, L.P., a
Delaware limited partnership (“Leaf I”), Leaf Funding, LLC, a
Delaware limited liability company (“Leaf Funding, LLC”), and
Secured Party entered into that certain First Amendment to the Original
Agreement (the “First Amendment”), a copy of which is attached
hereto and made a part hereof as Exhibit “B”, which amended
certain provisions of the Original Agreement and which was evidenced by that
certain Amended and Restated Master Note of even date therewith (the
“Amended and Restated Master Note”).
C.
On April 1, 2003, Leaf Financial, Leaf I, Leaf Funding, LLC, Leaf Funding, Inc.
and Secured Party entered into that certain Second Amendment to the Original
Agreement (the “Second Amendment”), a copy of which is attached
hereto and made a part hereof as Exhibit “C”, which amended
certain provisions of the Original Agreement, as amended, and which was
evidenced by that certain Amendment to Amended and Restated Master Note of even
date therewith.
D.
On June 6, 2003, Leaf Financial, Leaf I, Leaf Funding, Inc. and Secured Party
entered into that certain Extension to Revolving Credit Agreement and Assignment
(the “Extension”), a copy of which is attached hereto and made
a part hereof as Exhibit “D”, which extended the term of the
Original Agreement, as amended, for a specified period of time.
E.
On August 1, 2003, Leaf Financial, Leaf I, Leaf Funding, Inc. and Secured Party
executed an extension letter (the “August 1st
Letter”), a copy of which is attached hereto and made a part hereof as
Exhibit “E”, which extended the term of the Original Agreement,
as amended, until September 30, 2003.
F.
On September 29, 2003, Leaf Financial, Leaf I, Leaf Funding, Inc. and Secured Party
entered into that certain Third Amendment to Revolving Credit Agreement and Assignment
(the “Third Amendment”), a copy of which is attached hereto and made a
part hereof as Exhibit “F”, which, inter alia, extended the term
of the Agreement until December 31, 2003.
G.
On December 19, 2003, Leaf Financial, Leaf I, Leaf Funding, Inc. and Secured
Party entered into that certain Fourth Amendment to Revolving Credit Agreement
and Assignment (the “Fourth Amendment” and together with the
Original Agreement, the First Amendment, the Second Amendment, the Extension,
the August 1st Letter and the Third Amendment, the
“Agreement”), a copy of which is attached hereto and made a
part hereof as Exhibit “G”, which, inter alia, removed
Leaf I as a debtor under the Agreement and extended the term of the Agreement
until January 31, 2004, and which was evidenced by that certain Master Note of
even date therewith.
H.
Debtors and Secured Party mutually desire to further amend the Agreement and are
entering into this Fifth Amendment to set forth their entire understanding and
agreement with respect thereto.
NOW
THEREFORE, in consideration of the premises and the mutual covenants hereinafter set
forth, and intending to be legally bound hereby, the parties hereto agree that the
Agreement is further amended as follows:
A.
Amendment. The Agreement is hereby further amended to provide that the
“Commitment Termination Date”, as defined in the Agreement, shall be
extended until January 31, 2005, or such other date as to which Secured Party
shall agree in writing.
B.
Consent. Secured Party hereby consents to the foregoing Amendment and
waives all prohibitions thereto in the Agreement. Such consent and waiver does
not, however, constitute a waiver to any future actions prohibited by the
Agreement.
C. General Provisions.
1.
Except as expressly set forth herein, the Agreement remains unmodified and will
continue in full force and effect. The parties hereto will construe all other
provisions of the Agreement to give effect to the provisions hereof.
2.
This Fifth Amendment shall be binding upon and shall inure to the benefit of the
parties hereto and their nominees, successors and assigns.
3.
This Fifth Amendment may be executed in any number of counterparts, all of which
together shall constitute one agreement binding on all parties hereto,
notwithstanding that all parties have not signed the same counterpart.
4.
This Fifth Amendment shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
[SIGNATURES APPEAR
ON FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties have executed and delivered this Fifth Amendment to
Revolving Credit Agreement and Assignment as of the date first above written.
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