FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.7(a)
FIRST
AMENDMENT TO CREDIT AGREEMENT
This
FIRST AMENDMENT TO CREDIT
AGREEMENT (the “First Amendment”) dated August 31, 2007, is by and between LEAF
COMMERCIAL FINANCE CO., LLC, a Delaware limited liability company (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 June 22, 2007, by and among the Borrower,
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 $100,000,000.
B. The
Borrower has requested an extension of the maturity date of the facility to
October 31, 2007, 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 August 31,
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:
“Termination
Date” means the earliest of (a) October 31, 2007, 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. Representations
and Warranties. The Borrower hereby represents and warrants to
the Agent and each Lender that:
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(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
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 June 22, 2007.
3. 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, duly executed by the
Borrower;
(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; and
(c) Other
Documents and Actions. Such additional agreements, instruments,
documents, writings and actions as the Lenders may reasonably
request.
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5. 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 it 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, 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.
6. Binding
Effect. This First Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns.
7. 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.
8. 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.
9. 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
COMMERCIAL FINANCE CO.,
LLC
By:
________________________________
Name: Crit
XxXxxx
Title: Chairman,
CEO
NATIONAL
CITY BANK,
as
Agent and as the
Lender
By:
________________________________
Name: Chrislos
Kytzidis
Title: Senior
Vice President
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