FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST
AMENDMENT TO CREDIT AGREEMENT
This
FIRST AMENDMENT TO CREDIT AGREEMENT (the “First Amendment”) dated August 14,
2006, 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 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 Borrowers a revolving credit facility in the maximum aggregate
principal amount of $150,000,000.
B. The
Borrowers have requested an amendment to the available interest rates, 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:
“First
Amendment”
means
the First Amendment to this Agreement dated August 14, 2006.
“LIBOR
Flex Rate”
means
the quotient of (a) a fluctuating rate per annum which is designated or
published from time to time by the Agent as being its “One Month LIBOR Rate”
(which, unless Agent otherwise notifies the Borrowers, shall be equal to the
rate of interest (rounded upwards, if necessary, to the nearest
1/100th
of 1%),
at or about 11:00 a.m. London, England time, two (2) Business Days prior to
the
applicable Change Date (as defined below), as listed on the British Bankers
Association Interest LIBOR 01 or 02 as provided by Reuters (or another similar
service if Reuters is unavailable), as the rate at which Dollar deposits with
a
maturity of one month are offered to Agent in the London interbank market)
(it
being acknowledged that the LIBOR Flex Rate is not necessarily (i) the lowest
rate of interest or the only “LIBOR” denominated interest rate then available
from the Agent on fluctuating rate loans or (ii) calculated in the same manner
as any other “LIBOR” denominated interest rate offered by the Agent)
divided
by
(b) a
number equal to 1.00 minus
the
LIBOR Reserve Percentage.
It is
further acknowledged that the LIBOR Flex Rate is not necessarily calculated
in
the same manner as any other “LIBOR” denominated interest rate offered by any
other bank or published by any publication. The Agent will inform the Borrowers
of the current LIBOR Flex Rate upon their request. The interest rate change
will
not occur more often than once each month and shall be based on the LIBOR Flex
Rate effective as of the last business day of each month (the “Change
Date”)
and
apply thereafter until the next Change Date. If the LIBOR Flex Rate becomes
unavailable during the term of any Loan, the Agent may designate a substitute
index after notice to the Borrowers. The Borrowers understand that Agent may
make loans based on other indexes or rates as well.
“LIBOR
Flex Rate Loan”
means
a
Loan bearing interest at a fluctuating rate determined by reference to the
LIBOR
Flex Rate.
(c) Amended
Definitions.
(i) The
following definitions in Article 1 of the Credit Agreement shall be amended
and
restated to read in their entirety as follows:
“Applicable
Margin”
means,
(a) as to any Base Rate Loan, 0.0%, and (b) as to any LIBOR Loan or LIBOR Flex
Rate Loan, 1.50%.
“Type”
means,
relative to any Loan, the portion thereof, if any, being maintained as a Base
Rate Loan, a LIBOR Loan or a LIBOR Flex Rate Loan.
(ii) The
definition of “Interest Period” in Article 1 of the Credit Agreement shall be
amended to replace the reference to “six (6)” with “ten (10)” in phrase (e) of
such definition.
2. Amendment
to Section 2.3.
Section
2.3 of the Credit Agreement is hereby amended to add, after “Base Rate Loan” and
“Base Rate Loans”, respectively, “or LIBOR Flex Rate Loan” and “or LIBOR Flex
Rate Loans”.
3. Amendment
to Section 3.1.
Phrase
“(i)” of subsection 3.1(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows: “(i) any such prepayment shall be
applied, first, to any outstanding Swingline Loans, second, to any other Base
Rate Loans, third, to any LIBOR Flex Rate Loans, and, fourth, pro rata among
LIBOR Loans having the same Interest Period, in the direct order of maturity
of
such Interest Periods;”.
4. Amendments
to Section 3.2.
Subsection 3.2(a) of the Credit Agreement is hereby amended by added a phrase
“(iii)” at the end of such subsection, to read in its entirety as follows:
“(iii) on that portion maintained from time to time as a LIBOR Flex Rate Loan,
equal to the sum of the LIBOR Flex Rate from time to time in effect plus the
Applicable Margin”, and Subsection 3.2(c) of the Credit Agreement is hereby
amended to add, after “Base Rate Loan” and “Base Rate Loans”, respectively, “or
LIBOR Flex Rate Loan” and “or LIBOR Flex Rate Loans”.
5. Amendments
to Exhibits.
Exhibit
B (Form of Borrowing Request) and Exhibit D (Form of Continuation/Conversion
Notice) to the Credit Agreement are hereby amended and restated in their
entirety with Exhibit B and Exhibit D attached hereto.
6. 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 First Amendment and any other documents which the Lenders require such
Borrower to deliver hereunder (this First Amendment 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 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.
7. 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) First
Amendment.
this
First 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
First Amendment, if any; and
(c) Other
Documents and Actions.
such
additional agreements, instruments, documents, writings and actions as the
Lenders may reasonably request.
8. 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 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.
9. Acknowledgments.
To
induce the Lenders to enter into this First 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 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.
(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, 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.
10. Binding
Effect.
This
First Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
11. 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.
12. 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.
13. 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
FINANCIAL
CORPORATION
By:
___/s/
Xxxxx Xxxxxx ____________
Name:
Xxxxx
Xxxxxx
Title:
President,
COO
LEAF
FUNDING,
INC.
By:
___/s/
Xxxxx Xxxxxx ____________
Name:
Xxxxx
Xxxxxx
Title:
Senior Vice
President
Borrowers
Signature Page
First
Amendment to Credit Agreement
NATIONAL
CITY BANK,
as
Agent, Swingline
Lender and as a Lender
By:
___/s/
Xxxxxxxx Xxxxxxxx __________
Name:
Xxxxxxxx
Xxxxxxxx
Title:
Senior Vice
President
Lender
Signature Page
First
Amendment to Credit Agreement
HSH
NORDBANK AG, NEW
YORK BRANCH
By:
___/s/
Xxxxxx X. Sproull__________
Name:
Xxxxxx X.
Xxxxxxx
Title:
Senior Vice
President
By:
___/s/
Xxx X. Xxxxx _____________
Name:
Xxx X.
Xxxxx
Title:
Vice
President
Lender
Signature Page
First
Amendment to Credit Agreement
SOVEREIGN
BANK
By:
___/s/
Xxxxxxx X. Hassett__________
Name:
Xxxxxxx X.
Xxxxxxx
Title:
Vice
President
Lender
Signature Page
First
Amendment to Credit Agreement
LASALLE
BANK NATIONAL
ASSOCIATION
By:
___/s/
Xxxxxx X. Xxxxxxx ___________
Name:
Xxxxxx X.
Xxxxxxx
Title:
Senior Vice
President
Lender
Signature Page
First
Amendment to Credit Agreement
COMMERCE
BANK,
N.A.
By:
___/s/
Xxxxxx X. Grady___________
Name:
Xxxxxx X.
Xxxxx
Title:
Senior Vice
President
Lender
Signature Page
First
Amendment to Credit Agreement
WACHOVIA
BANK,
NATIONAL ASSOCIATION
By:
___/s/
Xxxx X. Fessick___________
Name:
Xxxx X.
Xxxxxxx
Title:
Senior Vice
President
