THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD
AMENDMENT TO CREDIT AGREEMENT
This
THIRD AMENDMENT TO CREDIT AGREEMENT (the “Third Amendment”) dated March 14,
2007, 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 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 and a Second Amendment dated December 22, 2006 (as the
same may be modified and amended from time to time, including by this Third
Amendment, the “Credit Agreement”), the Lenders agreed, inter
alia,
to
extend to the Borrowers a revolving credit facility in the maximum aggregate
principal amount of $150,000,000.
B. The
Borrowers have requested an amendment to the Credit Agreement permitting certain
Investments, 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:
“Credit
Card Business”
means the
business of providing merchant advance financing to small businesses (and
activities reasonably incidental, complementary or substantially similar
thereto).
“Credit
Card Subsidiary”
means,
so long as such entities are engaged solely in the Credit Card Business, Merit
Capital Advance, LLC, a Delaware limited liability company, Merit Capital
Manager, LLC, a Delaware limited liability company, and LEAF
Ventures.
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“LEAF
Ventures”
means
LEAF Ventures, LLC, a Delaware limited liability company.
“Third
Amendment”
means
the Third Amendment to this Agreement dated March 14, 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:
“Subsidiary”
means,
with respect to any Person, any other Person of which more than 50% of the
Voting Securities of such other Person (irrespective of whether at the time
Capital Securities of any other class or classes of such other Person shall
or
might have voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned or controlled by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person. Notwithstanding the foregoing, the term
“Subsidiary” shall not include any LEAF SPE or any Credit Card Subsidiary
(provided that any Credit Card Subsidiary shall still be deemed an “Affiliate”
of the Borrowers for purposes of Section 10.9 hereof). Unless the context
otherwise specifically requires, the term “Subsidiary” shall be a reference to a
Subsidiary of a Borrower.
2. Amendment
to Section 10.4.
Subsection (a) of Section 10.4 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
“(a) Investments
(i) identified on Schedule 6.8 or Schedule 10.4, together with any future
transfers of Investments described on Schedule 6.8, subject to the additional
covenants set forth on Schedule 6.8, and (ii) made by LEAF Financial in LEAF
Ventures out of funds contributed to LEAF Financial (to the extent such
Investments in LEAF Ventures not to exceed $5,500,000);”
3. 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 Third Amendment and any other documents which the Lenders require such
Borrower to deliver hereunder (this Third Amendment and any such additional
documents delivered in connection with the Third Amendment are herein referred
to as the “Amendment Documents”); and (ii) all actions, corporate or otherwise,
necessary or appropriate for the due
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execution
and full performance by the Borrower of this Third Amendment have been adopted
and taken and, upon their execution, the Credit Agreement, as amended by this
Third 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 Third 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
(e) No
Material Adverse Effect.
no
Material Adverse Effect has occurred since July 31, 2006.
4. Conditions
to Effectiveness of Amendment.
This
Third Amendment shall be effective upon the Agent’s receipt of the following,
each in form and substance reasonably satisfactory to the Lenders:
(a) Third
Amendment.
this
Third Amendment, duly executed by the Borrowers and the Lenders;
(b) 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
Third Amendment, if any; and
(c) Other
Documents and Actions.
such
additional agreements, instruments, documents, writings and actions as the
Lenders may reasonably request.
5. No
Waiver; Ratification.
The
execution, delivery and performance of this Third 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.
6. Acknowledgments.
To
induce the Lenders to enter into this Third Amendment, each Borrower
acknowledges, agrees, warrants, and represents that:
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(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 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 Third Amendment. Nothing in this Third 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.
7. Binding
Effect.
This
Third Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
8. Governing
Law.
This
Third 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.
9. Headings.
The
headings of the sections of this Third Amendment are inserted for convenience
only and shall not be deemed to constitute a part of this Third
Amendment.
10. Counterparts.
This
Third 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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of page intentionally left blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Third 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
Third
Amendment to Credit Agreement
ACKNOWLEDGEMENT
OF GUARANTORS
The
undersigned, each by its elected officer duly authorized as of the date set
forth below, having previously executed and delivered to the Agent, pursuant
to
the Credit Agreement (the “Credit Agreement”) being amended by this Third
Amendment (the “Third Amendment”), that certain Guaranty and Suretyship
Agreement, dated July 31, 2006, (the “Guaranty”), securing the Obligations under
the Credit Agreement, does hereby consent and agree to the above terms and
conditions of this Third Amendment, together with the First Amendment,
including, without limitation, specifically as to Section 5 of the Third
Amendment amending the Guaranty, and confirms that the Guaranty is in full
force
and effect, without any setoff, counterclaim, deduction or other claim of
avoidance of any nature (except as therein expressly provided).
RESOURCE
AMERICA, INC.
By:
_________________________
Name:
Title:
RESOURCE
LEASING, INC.
By:
_________________________
Name:
Title:
Dated
this Xxxxx 00, 0000
Xxxxxxxxxx
Signature Page
Third
Amendment to Credit Agreement
NATIONAL
CITY BANK,
as
Agent,
Swingline Lender and as a Lender
By:
________________________________
Name:
Title:
Agent
Signature Page
Third
Amendment to Credit Agreement
HSH
NORDBANK AG, NEW YORK BRANCH
By:
________________________________
Name:
Title:
By:
________________________________
Name:
Title:
Lender
Signature Page
Third
Amendment to Credit Agreement
SOVEREIGN
BANK
By:
________________________________
Name:
Title:
Lender
Signature Page
Third
Amendment to Credit Agreement
LASALLE
BANK NATIONAL ASSOCIATION
By:
________________________________
Name:
Title:
Lender
Signature Page
Third
Amendment to Credit Agreement
COMMERCE
BANK, N.A.
By:
________________________________
Name:
Title:
Lender
Signature Page
Third
Amendment to Credit Agreement
WACHOVIA
BANK, NATIONAL
ASSOCIATION
By:
________________________________
Name:
Title:
