CREDIT AGREEMENT Dated June 22, 2007, by and among LEAF COMMERCIAL FINANCE CO., LLC as the Borrower, VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS FROM TIME TO TIME PARTIES HERETO, as the Lenders, and NATIONAL CITY BANK, as the Agent for the Lenders
Dated
June 22,
2007,
by
and among
LEAF
COMMERCIAL FINANCE CO., LLC
as
the Borrower,
VARIOUS
FINANCIAL INSTITUTIONS AND OTHER PERSONS FROM TIME TO TIME
PARTIES
HERETO,
as
the Lenders,
and
NATIONAL
CITY BANK,
as
the Agent for the Lenders
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ARTICLE
I DEFINITIONS AND ACCOUNTING TERMS
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1
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Section
1.1
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Defined
Terms
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1
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Section
1.2
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Use
of Defined Terms.
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20
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Section
1.3
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Cross-References.
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20
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Section
1.4
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Accounting
and Financial Determinations.
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20
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ARTICLE
II REVOLVING CREDIT FACILITY
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21
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Section
2.1
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Loans
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21
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Section
2.2
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Reduction
of Aggregate Commitment Amount
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21
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Section
2.3
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Borrowing
Procedures
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21
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Section
2.4
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Continuation
and Conversion Elections
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22
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Section
2.5
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Funding
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22
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Section
2.6
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Notes.
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22
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ARTICLE
III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
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23
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Section
3.1
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Repayments
and Prepayments; Application
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23
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Section
3.2
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Interest
Provisions
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23
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Section
3.3
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Fees
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25
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ARTICLE
IV CERTAIN LIBOR AND OTHER PROVISIONS
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25
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Section
4.1
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LIBOR
Lending Unlawful
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25
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Section
4.2
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Deposits
Unavailable
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25
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Section
4.3
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Increased
LIBOR Loan Costs, etc.
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26
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Section
4.4
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Funding
Losses
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26
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Section
4.5
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Increased
Capital Costs
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26
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Section
4.6
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Taxes
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27
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Section
4.7
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Payments,
Computations, etc
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29
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Section
4.8
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Sharing
of Payments
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30
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Section
4.9
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Setoff
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30
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Section
4.10
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Mitigation;
Time Limitation
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30
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Section
4.11
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Replacement
of Lenders
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31
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ARTICLE
V CONDITIONS TO CREDIT EXTENSIONS
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32
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Section
5.1
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Initial
Loan
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32
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Section
5.2
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All
Loans
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34
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ARTICLE
VI REPRESENTATIONS AND WARRANTIES
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35
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Section
6.1
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Organization,
etc.
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35
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Section
6.2
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Due
Authorization, Non-Contravention, etc.
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35
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Section
6.3
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Government
Approval, Regulation, etc.
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36
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| Section 6.4 | Validity, etc. |
36
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i
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Section
6.5
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Financial
Information
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36
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Section
6.6
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No
Material Adverse Effect; Compliance with Laws
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36
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Section
6.7
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Litigation.
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37
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Section
6.8
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Subsidiaries
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37
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Section
6.9
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Ownership
of Properties
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37
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Section
6.10
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Taxes
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37
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Section
6.11
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Pension
and Welfare Plans
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37
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Section
6.12
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Environmental
Warranties
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38
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Section
6.13
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Accuracy
of Information
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38
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Section
6.14
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Margin
Stock
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39
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Section
6.15
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Foreign
Assets Control Regulations
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39
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Section
6.16
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Labor
Relations; Management Agreements
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39
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Section
6.17
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Insurance
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39
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Section
6.18
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Collateral
Documents
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39
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Section
6.19
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Compliance
with OFAC Rules and Regulations.
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40
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ARTICLE
VII FINANCIAL INFORMATION AND NOTICES
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40
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Section
7.1
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Financial
Statements and Projections.
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40
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Section
7.2
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Certificates.
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41
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Section
7.3
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Other
Reports.
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41
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Section
7.4
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Notice
of Litigation and Other Matters
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41
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Section
7.5
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Accuracy
of Information
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43
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ARTICLE
VIII AFFIRMATIVE COVENANTS
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43
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Section
8.1
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Maintenance
of Existence; Compliance with Laws, etc.
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43
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Section
8.2
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Maintenance
of Properties
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43
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Section
8.3
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Insurance
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43
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Section
8.4
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Visitations,
Books and Records, Field Audits
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44
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Section
8.5
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Environmental
Law Covenant
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45
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Section
8.6
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Use
of Proceeds
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45
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Section
8.7
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Future
Subsidiaries, Security, etc.
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45
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Section
8.8
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Procedures
to Ensure Information Dissemination
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45
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Section
8.9
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Further
Assurances
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45
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Section
8.10
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Maintenance
of Assets
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46
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ARTICLE
IX [INTENTIONALLY OMITTED]
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47
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ARTICLE
X NEGATIVE COVENANTS
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48
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Section
10.1
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Business
Activities
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48
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Section
10.2
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Indebtedness
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48
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Section
10.3
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Liens
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48
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Section
10.4
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Investments
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50
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Section
10.5
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Restricted
Payments
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50
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Section
10.6
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Issuance
of Capital Securities
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50
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Section
10.7
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Consolidation,
Merger, etc
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51
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Section
10.8
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Sale
of Assets
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51
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ii
-
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Section
10.9
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Transactions
with Affiliates
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51
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Section
10.10
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Restrictive
Agreements
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51
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Section
10.11
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Sale
and Leaseback
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51
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Section
10.12
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Amendment
to Material Documents
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52
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Section
10.13
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Hedging
Obligations
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52
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Section
10.14
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Accounting
Changes
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52
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Section
10.15
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Upstream
Limitations
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52
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ARTICLE
XI EVENTS OF DEFAULTS AND REMEDIES
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52
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Section
11.1
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Events
of Default
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52
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Section
11.2
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Action
if Bankruptcy
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55
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Section
11.3
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Action
if Other Event of Default
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55
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Section
11.4
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Application
of Proceeds
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55
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ARTICLE
XII THE AGENT
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56
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Section
12.1
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Actions
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56
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Section
12.2
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Funding
Reliance, etc.
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56
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Section
12.3
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Exculpation
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57
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Section
12.4
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Successor
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57
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Section
12.5
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Loans
by Agent
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57
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Section
12.6
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Credit
Decisions
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58
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Section
12.7
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Reliance
by Agent
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58
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Section
12.8
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Defaults
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58
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ARTICLE
XIII MISCELLANEOUS
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58
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Section
13.1
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Waivers,
Amendments, etc.
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58
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Section
13.2
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Notices;
Time
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60
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Section
13.3
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Payment
of Costs and Expenses
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61
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Section
13.4
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Indemnification
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61
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Section
13.5
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Survival
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63
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Section
13.6
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Severability
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63
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Section
13.7
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Headings
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63
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Section
13.8
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Execution
in Counterparts, Effectiveness, etc.
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63
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Section
13.9
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Governing
Law; Entire Agreement
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63
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Section
13.10
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Successors
and Assigns
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63
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Section
13.11
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Assignments
and Participations in Loans; Register
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63
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Section
13.12
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Other
Transactions
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66
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Section
13.13
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Forum
Selection and Consent to Jurisdiction
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67
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Section
13.14
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Waiver
of Jury Trial
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67
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Section
13.15
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USA
Patriot Act
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67
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-
iii
-
SCHEDULES
AND EXHIBITS
Schedule
I
- Initial
Commitments
Schedule
1.1 - Form
of Assignment Agreement
Schedule
6.7 - Litigation
Schedule
6.9 - Real
Property
Schedule
6.11 - Pension
and Welfare Plans
Schedule
6.12 - Environmental
Disclosures
Schedule
10.2 - Existing
Indebtedness
Schedule
10.3 - Existing
Liens
Schedule
10.4 - Existing
Investments
Schedule
10.9 - Transactions
with Affiliates
Exhibit
A
- Form of
Note
Exhibit
B - Form
of Borrowing Request
Exhibit
C
- Form of
Borrowing Base Certificate
Exhibit
D
- Form of
Continuation/Conversion Notice
Exhibit
E
- Form of
Compliance Certificate
Exhibit
F
- Form of
Lender Assignment Acceptance
-
iv
-
THIS
CREDIT AGREEMENT, dated June 22, 2007, is by and among
LEAF
COMMERCIAL FINANCE CO., LLC, a Delaware limited liability company (the
“Borrower”), the various financial institutions and other Persons from time to
time parties hereto (the “Lenders”), and NATIONAL CITY BANK, a national banking
association (“National City”), as administrative agent and collateral agent for
the Lenders (in such capacity, the “Agent”).
BACKGROUND
A. The
Borrower is purchasing from Pacific Capital Bank, N.A., a national banking
association (the “Seller”) certain assets (“Purchased Assets”) pursuant to that
certain Asset Purchase Agreement dated as of June 19, 2007 (the “Purchase
Agreement”), by and among the Seller and the Borrower, LEAF Funding and LEAF
Financial, as buyers (the “Acquisition”).
B. The
Borrower has requested a short term revolving credit facility, which the Lenders
have agreed to extend to the Borrower on the terms and conditions of this
Agreement for use by the Borrower to finance the purchase of (i) the Purchased
Assets from the Seller and (ii) any other Eligible Contracts (as defined
below).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged by the parties hereto, and intending to be legally
bound hereby, such parties hereby agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
Section
1.1 Defined
Terms
. The
following terms, when used in this Agreement, including its preamble and
background, shall, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular
and
plural thereof):
“Adjusted
Base Rate” means, on any date and with respect to all Base Rate Loans, a
fluctuating rate of interest per annum (rounded upward, if necessary, to the
next highest 1/100 of 1%) equal to the higher of (a) the Base Rate in effect
on
such day, and (b) the sum of the Federal Funds Rate in effect on such day plus
½
of 1%. Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect simultaneously with each change
in the Adjusted Base Rate. The Agent will give notice promptly to the
Borrower and the Lenders of changes in the Adjusted Base Rate; provided that
the
failure to give such notice shall not affect the Adjusted Base Rate in effect
after such change.
“Administrative
Questionnaire” means an administrative questionnaire in a form
supplied by the Agent to a Lender.
“Affected
Lender” is defined in Section 4.11(a).
“Affiliate”
of any Person means any other Person which, directly or indirectly, controls,
is
controlled by or is under common control with such Person (excluding however,
any trustee under, or any committee with responsibility for administering,
any
Plan). “Control” of a Person means the power, directly or indirectly,
(a) to vote 5% or more of the Capital Securities (on a fully diluted basis)
of
such Person having ordinary voting power for the election of directors, managing
members or general partners (as applicable), or (b) to direct or cause the
direction of the management and policies of such Person (whether by contract
or
otherwise).
“Agent”
is defined in the preamble and includes each other Person appointed as the
successor Agent pursuant to Section 12.4.
“Aggregate
Commitment” means the aggregate amount of the Lenders’
Commitments hereunder, as such amount may be reduced or modified at any
time or
from time to time pursuant to the terms hereof. On the Closing Date,
the Aggregate Commitment is One Hundred Million Dollars
($100,000,000).
“Aggregate
Original Net Equipment Cost” means, as of any date of determination, an
amount equal to the sum of the Original Net Equipment Costs of all Equipment
then subject to an Eligible Contract.
“Aggregate
Net Present Value” means, as of any date of determination, an amount equal
to the sum of the Net Present Values of all Eligible Contracts.
“Agreement”
means, on any date, this Credit Agreement as originally in effect on the Closing
Date and as thereafter from time to time amended, supplemented, amended and
restated or otherwise modified from time to time and in effect on such
date.
“Applicable
Margin” means, (a) as to any Base Rate Loan, 0.0%, and (b) as to any LIBOR
Loan or LIBOR Flex Rate Loan, 1.75%.
“Assignee
Lender” is defined in Section 13.11(a).
“Assignment
Agreement” means (a) the Purchase Agreement and (b) any Assignment Agreement
in the form set forth as Schedule 1.1 hereto pursuant to which the Borrower
purchases Contracts from LEAF Funding.
“Authorized
Officer” means any of the president, the chief executive officer, the chief
operating officer, the chief financial officer or the treasurer of the Borrower
or such other representative of the Borrower as may be designated in writing
by
any one of the foregoing with the consent of the Agent, such consent not to
be
unreasonably withheld; and, with respect to financial statements, financial
covenants and borrowing base calculations, the chief financial officer, chief
executive officer, chief operating officer or the treasurer of the
Borrower.
“Base
Rate” means, at any time, the rate of interest then most recently
established by the Agent in Cleveland, Ohio, as its base rate for U.S. dollars
loaned in the United States. The Base Rate is not necessarily
intended to be the lowest rate of interest determined by the Agent in connection
with extensions of credit.
-
2
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“Base
Rate Loan” means a Loan bearing interest at a fluctuating rate determined by
reference to the Adjusted Base Rate.
“Board”
means the Board of Governors of the Federal Reserve System or any successor
thereto.
“Borrower”
means LEAF Commercial Finance Co., LLC, a Delaware limited liability company,
together with its successors and permitted assigns.
“Borrowing”
means the Loans of the same type and, in the case of LIBOR Loans, having the
same Interest Period made by all Lenders required to make such Loans on the
same
Business Day and pursuant to the same Borrowing Request.
“Borrowing
Base” means at any time the lesser of (a) ninety percent (90%) of the then
Aggregate Net Present Value, and (b) one hundred percent (100%) of the Aggregate
Original Net Equipment Cost; provided that, in performing such calculation,
the
Aggregate Net Present Value and Aggregate Original Net Equipment Cost shall
be
reduced by such amount as may be necessary in order that: (i) no more than
an amount equal to five percent (5%) of the Aggregate Commitment is attributable
to any single Lessee; (ii) no more than an amount equal to ten percent
(10%) of the Aggregate Commitment is attributable to progress payments;
(iii) none of either such amount is attributable to any Contract or
Equipment the value of which has been used in six months or more of previous
calculations of the Borrowing Base, except with respect to any Contract (and
any
related Equipment) with a payment period of not greater than 12 months from
the
date of the first scheduled payment thereunder, as to which, no more than an
amount equal to twenty percent (20%) of the Aggregate Commitment is attributable
to such Contracts (and any related Equipment); (iv) no more than an amount
equal
to five percent (5%) of the Aggregate Commitment is attributable to Contracts
whereby the related lessee is an Affiliate of the Borrower; and (v) no more
than
an amount equal to twenty percent (20%) of the Aggregate Commitment is
attributable to Contracts with initial stated terms of greater than 120
months.
“Borrowing
Base Certificate” means a certificate duly completed and executed by an
Authorized Officer, substantially in the form of Exhibit C
hereto.
“Borrowing
Request” means a Loan request and certificate duly executed by an Authorized
Officer, substantially in the form of Exhibit B hereto.
“Business
Day” means (a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in
Cleveland, Ohio, and (b) relative to the making, continuing, prepaying or
repaying of any LIBOR Loans, any day which is a Business Day described in clause
(a) above and which is also a day on which dealings in Dollars are carried
on in
the London interbank eurodollar market.
“Capital
Expenditures” means, with respect to any Person, for any period, the
aggregate amount of all expenditures of such Person for fixed or capital assets
made during such period which, in accordance with GAAP, would be classified
as
capital expenditures.
-
3
-
“Capital
Securities” means, with respect to any Person, any and all shares, interests
(including partnership interests or limited liability company interests),
participations or other equivalents (however designated, whether voting or
non-voting) of such Person’s capital, whether now outstanding or issued after
the Closing Date.
“Capitalized
Lease Liabilities” means, which respect to any Person, all monetary
obligations of such Person under any leasing or similar arrangement which,
in
accordance with GAAP, would be classified as capital leases, and the amount
of
such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP, and the stated maturity thereof shall be the date of
the
last payment of rent or any other amount due under such lease prior to the
first
date upon which such lease may be terminated by the lessee without payment
of a
premium or a penalty.
“Cash
Equivalent Investment” means, at any time: (a) any direct obligation of (or
unconditionally guaranteed by) the United States or a State thereof (or any
agency or political subdivision thereof, to the extent such obligations are
supported by the full faith and credit of the United States or a State thereof)
maturing not more than one year after such time; (b) commercial paper maturing
not more than 270 days from the date of issue, which is issued by (i) a
corporation (other than an Affiliate of the Borrower) organized under the laws
of any State of the United States or of the District of Columbia and rated
A-1
or higher by S&P or P-1 or higher by Xxxxx’x, or (ii) any Lender (or
its holding company) rated A-1 or higher by S&P or P-1 or higher by Xxxxx’x;
(c) any certificate of deposit, time deposit or bankers acceptance, maturing
not
more than one year after its date of issuance and overnight bank deposits,
which
is issued by either (i) any bank organized under the laws of the United States
(or any State thereof) and which has (x) a credit rating of A2 or higher
from Xxxxx’x or A or higher from S&P and (y) a combined capital and
surplus greater than $500,000,000, or (ii) any Lender; (d) any repurchase
agreement having a term of 30 days or less entered into with any Lender or
any
commercial banking institution satisfying the criteria set forth in
clause (c)(i) which (i) is secured by a fully perfected security
interest in any obligation of the type described in clause (a), and
(ii) has a market value at the time such repurchase agreement is entered
into of not less than 100% of the repurchase obligation of such commercial
banking institution thereunder; or (e) any money market fund, 90% of the assets
of which are comprised of any of the items specified in clauses (b) and (c)
above and as to which withdrawals are permitted at least every 90 days and
which
do not have restrictions on liquidation rights.
“Casualty
Payment” means, as to any Contract, any payment under such Contract, made in
connection with an Event of Loss with respect to any Equipment subject to such
Contract, that terminates all or a portion of the related Lessee’s obligation to
make subsequent Lease Payments pursuant to the terms of such
Contract.
“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability
Act
of 1980, as amended.
“Change
in Control” means the Borrower shall cease to be a wholly owned Subsidiary
of LEAF Financial.
-
4
-
“Closing
Date” means the date this Agreement becomes effective pursuant to
Section 5.1.
“Code”
means the Internal Revenue Code of 1986, and the regulations thereunder, in
each
case as amended, supplemented, reformed or otherwise modified from time to
time.
“Collateral”
shall mean all tangible and intangible property, real and personal, of the
Borrower that is the subject of a Lien granted pursuant to a Credit Document
to
the Agent to secure the whole or any part of the Obligations or any guarantee
thereof, and shall include all casualty insurance proceeds and condemnation
awards with respect to any of the foregoing.
“Commitment”
means, as to any Lender, the obligation of such Lender to make Loans to the
Borrower hereunder in an aggregate principal or face amount at any time
outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule I hereto, as the same may be increased, reduced or modified at any
time
or from time to time pursuant to the terms hereof.
“Compliance
Certificate” means a certificate duly completed and executed by an
Authorized Officer, substantially in the form of Exhibit E hereto,
together with such changes thereto as the Agent may from time to time reasonably
request for the purpose of monitoring the Borrower’s compliance with the
financial covenants contained herein.
“Contingent
Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is surety for or
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) any
Indebtedness of any other Person (other than by endorsements of instruments
in
the course of collection), or guarantees the payment of dividends or other
distributions upon the Capital Securities of any other Person. The
amount of any Person’s obligation under any Contingent Liability shall (subject
to any limitation set forth therein) be deemed to be the maximum amount of
the
debt, obligation or other liability guaranteed thereby.
“Continuation/Conversion
Notice” means a notice of continuation or conversion and certificate duly
executed by an Authorized Officer, substantially in the form of
Exhibit D hereto.
“Contract”
means (i) a lease, loan or contract for use, hire or purchase of equipment,
(ii)
a practice acquisition loan, (iii) an ultimate net loss loan, (iv) other
commercial contracts such as service and maintenance agreements, or (v)
receivable financings secured by non-equipment collateral such as real estate,
together with any assignments thereof and any delivery and acceptance
certificate therefor, any guaranties and amendments, addendums and other
modifications thereto.
“Contract
File” means, with respect to any item of Equipment (or
Contract):
(a) if
subject to a Contract secured by such Equipment, the original (or a certified
copy of the original) counterpart thereof that constitutes “chattel paper” for
purposes of the UCC, if the Original Price for such Equipment is $250,000 or
greater, or, for any Contract
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which
does not constitute “chattel paper” (or for which the Original Price is an
amount less than $250,000), a true and complete copy of the originally executed
Contract; provided, however, for any Contract executed after the date of this
Agreement, the Contract File shall contain an original counterpart or complete
copy, as applicable, no later than ten (10) days after such Contract is
executed;
(b) with
respect to any Contract in excess of $100,000, evidence or verification of
an
insurance policy covering such risks and amounts and otherwise complying with
the requirements of the Servicing Standard and the related Contract for any
related Equipment (except where the related Lessee is self-insured in accordance
with the terms of this Agreement);
(c) any
loan or security agreement relating to such Equipment (or Contract) or any
Contract related thereto, together with originals of any notes, instruments
or
documents relating thereto;
(d) each
receipt of acceptance by the applicable Lessee of such Equipment (or Contract),
if any;
(e) with
respect to such Equipment (or Contract), each guaranty of any related Contract,
if any;
(f) each
UCC financing statement, as filed, which relates to such Equipment (or Contract)
or any related Contract, if any;
(g) each
amendment of any related Contract, if any; and
(h) each
assignment of any related Contract, if any.
“Contract
Payment” means, with respect to any Contract, the minimum monthly or other
periodic contractual rental or loan payment required to be made
thereunder.
“Control
Agreement” means an agreement in form and substance satisfactory to the
Agent which provides for the Agent to have “control” (as defined in
Section 8-106(c) and (d) of the UCC, as such term relates to an
uncertificated security or a security entitlement (as such terms are defined
therein) or as used in Section 9-104 of the UCC, as such term relates to
Deposit Accounts).
“Controlled
Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with any Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
“CP
Facility” means any commercial paper conduit facility, securitization
facility, warehouse line or similar credit facility maintained by any LEAF
SPE.
“Credit
Documents” collectively means this Agreement, the Notes, the Security
Agreement, the Intercreditor Agreement, the Lockbox Agreement, any Control
Agreement and
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“Default”
means any Event of Default or any condition, occurrence or event which, after
notice or lapse of time or both, would constitute an Event of
Default.
“Defaulted
Contract” means any Contract for which: (a) any Contract Payment (or portion
thereof) owing thereunder is more than 61 days delinquent (measured from its
contractual due date); (b) the related Lessee is in default under any other
provision of such Contract not dealt with in clause (a) and any applicable
grace and/or cure period set forth in such Contract has expired and the Borrower
has in accordance with its normal procedures declared such Contract to be in
default; or (c) the Borrower has otherwise determined that the remaining
amounts owing by the Lessee under such Contract are expected to be
uncollectible.
“Defaulting
Lender” is defined in Section 4.11(a).
“Deposit
Accounts” means any and all demand, time, savings, passbook, lockbox or
other accounts with a bank or other financial institution, including general
deposit and cash concentration accounts, in which any cash, payments or receipts
of or for the benefit of any Borrower are or are to be deposited, and all
deposits therein and investments thereof, whether now or at any time hereafter
existing.
“Disposition”
means any (a) sale, transfer, lease or other conveyance (including by way of
merger, condemnation, casualty loss or sale/leaseback) of, (b) the granting
of
options or other rights to sell, transfer, lease or otherwise convey, any,
or
(c) the receipt of any condemnation, insurance or similar proceeds with respect
to any casualty loss of, the Borrower’s assets (including the sale of Contracts
or accounts receivables and the sale of Capital Securities, but not including
an
issuance of Capital Securities) to any other Person in a single transaction
or
event or series of related transactions or events.
“Dollar”
and the sign “$” mean lawful money of the United States.
“Eligible
Contract” means a Contract owned by the Borrower that, as of any date of
determination, complies with the covenants set forth in this Agreement and
each
of the following requirements:
(a) Such
Contract originated in the ordinary course of the Borrower’s business and is not
a Defaulted Contract;
(b) Such
Contract is a legal, valid and binding full recourse payment obligation of
the
related Lessee enforceable in accordance with its 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) and is in full force and effect, is
not
subject to any defense, counterclaim or right of setoff, and has not been
satisfied, subordinated or rescinded;
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(c) The
initial stated term of such Contract is not greater than 180
months;
(d) With
the exception of any Contracts with a Governmental Authority required by law
to
have provisions to the contrary, the Lessee’s obligations under such Contract
are “hell or high water” obligations that are, among other characteristics,
non-cancelable, unconditional and not subject to any right of set-off,
rescission, counterclaim, offset, reduction or recoupment except that, upon
making of a Casualty Payment under such Contract, the obligation of the related
Lessee to make Lease Payments thereunder may be reduced
accordingly;
(e) Such
Contract contains provisions requiring the Lessee to pay all sales, use, excise,
rental, property or similar taxes imposed on or with respect to any related
Equipment and to assume all risk of loss, damage, or destruction of such
Equipment, and such Contract requires the Lessee to maintain any related
Equipment in good and workable order and to obtain and maintain liability
insurance, physical damage insurance and liability insurance on such Equipment
subject thereto and to name the lessor (including any private label lessor)
or
lender under the Contract as a loss payee and an additional insured with respect
thereto;
(f) The
pledge by the Borrower to the Agent of a security interest in such Contract
and
the related Equipment will not violate the terms or provisions of such Contract
or any other agreement to which any Borrower is a party or by which it is
bound;
(g) Such
Contract has not been rewritten or amended, other than in accordance with the
written policies and procedures of Borrowers and consistent with their past
practice, such that the amount of any Contract Payment owing pursuant to the
terms of such Contract has been decreased, or any other obligations of the
Lessee under such Contract have been diminished, due to any payment default
or
delinquency or the related Lessee’s financial inability to make such
payments;
(h) The
related Lessee is not subject to any action in bankruptcy, receivership,
reorganization, insolvency or other material adverse change in its condition
(since entering into the Contract);
(i) All
payments owing under such Contract are required to be made in
Dollars;
(j) Such
Contract provides for the acceleration of all Lease Payments thereunder upon
default by the Lessee;
(k) Such
Contract requires that, if an Event of Loss occurs, the related Lessee must
take
one of the following actions: (i) either (A) restore or repair the
affected Equipment to good repair, condition and working order or (B) replace
the Equipment with like equipment of the same or later model in good repair,
condition and working order, and, in either case, continue to make Contract
Payments on its regularly scheduled basis despite the occurrence of such Event
of Loss; or (ii) make a lump sum payment in an amount that is not less than
the
then Net Present Value;
(l) Such
Contract and the Equipment subject to such Contract are not subject to any
Liens
other than Permitted Liens;
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(m) The
Agent has a first priority perfected security interest in such Contract (subject
only to Permitted Liens), and a complete Contract File for such Contract is
maintained either (i) with a custodian who holds such Contract Files for the
benefit of the Agent, or (ii) in the chief executive office of the Borrowers
(or
such other location as is owned or, to the extent subject to a satisfactory
landlord waiver in favor of the Agent, leased by the Borrower), in a secure
and
fireproof filing cabinet clearly identifying the contents thereof as Collateral
hereunder, pledged to the Agent.
(n) The
Agent (directly or through the Borrower) has a first priority perfected security
interest in any Equipment subject to a finance lease (to the extent such
Equipment has, in the aggregate, an Original Net Equipment Cost of $25,000
or
more);
(o) The
Lessee and each item of Equipment subject to such Contract are domiciled or
located within the United States and Puerto Rico, as applicable;
and
(p) Such
Contract is eligible for financing under a CP Facility.
provided
that, compliance with paragraph (m) above is hereby waived for the first three
(3) Business Days following acquisition of such Contract pursuant to a Financed
Acquisition.
“Environmental
Laws” means all applicable federal, state or local statutes, laws,
ordinances, codes, rules, regulations and guidelines (including consent decrees
and administrative orders) relating to public health and safety and protection
of the environment.
“Equipment”
means inventory of the Borrower or equipment of a Lessee which is subject to
a
Contract or inventory of the Borrower held for the purpose of leasing or
contracting for use, hire or purchase with clients of the Borrower.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and
any
successor statute thereto of similar import, together with the regulations
thereunder, in each case as in effect from time to time. References
to Sections of ERISA also refer to any successor Sections thereto.
“Event
of Default” is defined in Section 11.1.
“Event
of Loss” means, with respect to any Equipment as of any date of
determination, any of the following events or conditions:
(a) total
loss or destruction thereof;
(b) theft
or disappearance thereof without recovery within sixty (60) days after such
theft or disappearance first becomes known to the Borrower;
(c) damage
rendering such Equipment unfit for normal use and, in the judgment of the
Borrower, beyond repair at reasonable cost; and
(d) any
condemnation, seizure, forced sale or other taking of title to or use of any
such Equipment,
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9
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provided,
however, no Equipment shall be deemed to be subject to an Event of Loss for
so
long as the Lessee continues to pay any Lease Payments with respect to such
Equipment without reduction or offset.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exemption
Certificate” is defined in Section 4.6(e).
“Federal
Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to (a) the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if
such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or (b) if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
“Financed
Acquisition” means an acquisition of Contracts or of a division or line of
business of another Person, by the Borrower from any Person in which the
following conditions are satisfied:
(a) immediately
before and immediately after giving effect to such acquisition, no Default
or
Event of Default shall have occurred and be continuing or would result
therefrom;
(b) all
transactions related thereto are consummated in accordance with applicable
law;
and
(c) the
Borrower shall have delivered to the Agent a Borrowing Base Certificate
evidencing compliance immediately following such acquisition, giving pro forma
effect to the consummation of such acquisition and all Loans made in connection
therewith.
“Fiscal
Quarter” means a fiscal quarter of the Borrower.
“Fiscal
Year” means the fiscal year of the Borrower (ending each December
31).
“GAAP”
means generally accepted accounting principles in effect in the
United States of America applied on a consistent basis.
“Governmental
Authority” means the government of the United States, any other nation or
any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Hazardous
Material” means (a) any “hazardous substance”, as defined by CERCLA,
(b) any “hazardous waste”, as defined by the Resource Conservation and
Recovery Act, as amended, or (c) any pollutant or contaminant or hazardous,
dangerous or toxic chemical,
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10
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material
or substance (including any petroleum product) within the meaning of any other
applicable federal, state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as amended.
“Hedging
Agreements” means, with respect to any Person, any currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
“Hedging
Obligations” means, with respect to any Person, all liabilities of such
Person under Hedging Agreements.
“Indebtedness”
of any Person means all debts, liabilities and obligations of such Person
including, without limitation:
(a) all
obligations of such Person for borrowed money;
(b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments;
(c) all
obligations, contingent or otherwise, relative to the face amount of all letters
of credit, banker’s acceptances and similar extensions of credit, whether or not
drawn, issued for the account of such Person;
(d) all
Capitalized Lease Liabilities of such Person;
(e) net
liabilities of such Person under all Hedging Obligations;
(f) whether
or not so included as liabilities in accordance with GAAP, all obligations
of
such Person to pay the deferred purchase price of equity interests, property
or
services, and indebtedness secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be secured
by) a
Lien on property owned or being acquired by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether
or
not such indebtedness shall have been assumed by such Person or is limited
in
recourse;
(g) Off-Balance
Sheet Liabilities of such Person;
(h) all
Contingent Liabilities of such Person in respect of any of the foregoing
(including any partial recourse obligation or liability to the maximum extent
of
such recourse, but excluding from any such amount, any fully non-recourse
obligation or liability); and
(i) all
accounts payable, income taxes payable and other accrued
liabilities.
The
Indebtedness of any Person shall include the Indebtedness of any other Person
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship
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11
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with
such
other Person, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
“Indemnified
Liabilities” is defined in Section 13.4.
“Indemnified
Parties” is defined in Section 13.4.
“Intercreditor
Agreement” means that certain Amended and Restated Intercreditor Agreement,
dated as of April 18, 2005, as amended, restated, supplemented or otherwise
modified from time to time, by and among the LEAF Agent, LEAF Financial, Leaf
Funding, Sovereign Bank, OFC Capital, a division of ALFA Financial Corporation,
National City Commercial Capital Corporation f/k/a Information Leasing
Corporation, Xxxxxxxx Xxxx Xxxx, XxxxXX XX, Xxx Xxxx Branch, Commerce Bank,
National Association, Xxxxxxx Xxxxx Equipment Finance LLC, Xxxxxxx Xxxxx
Commercial Finance Corp., LEAF Institutional Direct Management, LLC, Lease
Equity Appreciation Fund I, L.P., Lease Equity Appreciation Fund II, L.P.,
LEAF
Fund I, LLC, LEAF Fund II, LLC, RCC Commercial, Inc., Resource Capital Funding,
LLC, Black Forest Funding Corporation, Bayerische Hypo-Und Vereinsbank AG,
New
York Branch, U.S. Bank National Association, and any additional Persons who
become parties thereto in accordance with the terms thereof.
“Interest
Period” means, relative to any LIBOR Loan, the period beginning on (and
including) the date on which such LIBOR Loan is made or continued as, or
converted into, a LIBOR Loan and shall end on (but exclude) the day which
numerically corresponds to such date one, two, or three months thereafter
provided, however, that:
(a) the
Interest Period shall commence on the date of advance of or conversion to any
LIBOR Loan and, in the case of immediately successive Interest Periods, each
successive Interest Period shall commence on the date on which the next
preceding Interest Period expires;
(b) if
any Interest Period would otherwise expire on a day that is not a Business
Day,
such Interest Period shall expire on the next succeeding Business Day; provided,
that if any Interest Period with respect to a LIBOR Loan would otherwise expire
on a day that is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire
on
the next preceding Business Day;
(c) any
Interest Period with respect to a LIBOR Loan that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the relevant calendar month at the end
of
such Interest Period;
(d) no
Interest Period shall extend beyond the Termination Date; and
(e) there
shall be no more than six (6) different Interest Periods applicable to LIBOR
Loans outstanding at any time.
“Investment”
means,
relative to any Person, (a)
any loan, advance or extension of credit made by such Person to any other
Person, including the purchase by such Person of any
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“LEAF
Agent” means National City, in its capacity as administrative agent under
the LEAF Credit Agreement, or any successor thereto as administrative
agent.
“LEAF
Credit Agreement” means that certain Credit Agreement, dated July 31, 2006,
among the LEAF Financial and LEAF Funding, as Borrowers, the lenders thereunder,
and the LEAF Agent, as amended, supplemented, amended and restated or otherwise
modified from time to time.
“LEAF
Financial” means LEAF Financial Corporation, a Delaware
corporation.
“LEAF
Funding” means LEAF Funding, Inc., a Delaware corporation.
“LEAF
SPE” means any special purpose entity or similar bankruptcy remote entity,
whether or not an Affiliate of the Borrower, for which LEAF Financial provides
servicing under a Servicing Agreement.
“Lease
Payment” means, with respect to any Contract, any Contract Payment or other
payment required to be paid by the related Lessee under such
Contract.
“Lender
Assignment Agreement” means an assignment agreement substantially in the
form of Exhibit F hereto.
“Lenders”
is defined in the preamble (including any Person that becomes a Lender pursuant
to Section 13.11(a)).
“Lessee”
means a Person that is contractually obligated to make rental or loan and other
payments under a Contract (whether or not a lease), including any guarantor
of
such obligations.
“LIBOR”
means, relative to any Interest Period for any LIBOR Loan, the rate of interest
equal to the average (rounded upwards, if necessary, to the nearest 1/100 of
1%)
of the rates per annum at which Dollar deposits in immediately available funds
are offered to Agent in the London interbank market at or about 11:00 a.m.
London, England time two (2) Business Days prior to the beginning of such
Interest Period for delivery on the first day of such Interest Period, and
in an
amount approximately equal to the amount of such LIBOR Loan and for a period
approximately equal to such Interest Period.
“LIBOR
(Reserve Adjusted)” means, relative to any
Loan to be made, continued or maintained as, or converted into, a LIBOR Loan
for
any Interest Period, a rate per annum
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LIBOR
(Reserve
Adjusted) = LIBOR
1.00
- LIBOR Reserve
Percentage
“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 Borrower, 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 Borrower 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 Borrower
understands 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.
“LIBOR
Loan” means a Loan bearing interest, at all times during an Interest Period
applicable to such Loan, at a rate of interest determined by reference to LIBOR
(Reserve Adjusted).
“LIBOR
Reserve Percentage” means, relative to any Interest Period for LIBOR Loans,
the reserve percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirements (including all basic, emergency, supplemental, marginal
and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements) specified under regulations issued
from time to time by the Board and then applicable to assets or liabilities
consisting of or including “Eurocurrency Liabilities”, as currently defined in
Regulation D of the Board, having a term approximately equal or comparable
to such Interest Period.
“Lien”
means
any security interest, mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in
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“Loan”
means a loan made pursuant to Section 2.1(a).
“Lockbox
Agreement” means that certain Lockbox Agency and Control Agreement dated as
of July 31, 2006, as amended, restated, supplemented or otherwise modified
from
time to time, among LEAF Financial, LEAF Funding, LEAF Institutional Direct
Management, LLC, a Delaware limited liability company, Lease Equity Appreciation
Fund I, L.P., a Delaware limited partnership, U.S. Bank National Association,
in
its capacity as Lockbox Agent and as Lockbox Bank thereunder, LEAF Agent, and
any additional Persons who become parties thereto in accordance with the terms
thereof.
“Management
Agreements” shall mean any agreements or arrangements among the shareholders
and employment (including any phantom equity arrangements) and non-compete
agreements or arrangements between the Borrower and any of its directors,
officers or employees.
“Material
Adverse Effect” means, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singularly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences whether or not related,
a
material adverse change in, or a material adverse effect on, (a) the business,
results of operations, condition (financial or otherwise), assets, liabilities
or prospects of the Borrower, (b) the ability of the Borrower to perform any
of
its obligations under any of the Credit Documents, (c) the rights and remedies
of any Secured Party under any of the Credit Documents or (d) the legality,
validity or enforceability of any of the Credit Documents.
“Monthly
Payment Date” means the first (1st) day
of each
month, or, if any such day is not a Business Day, the next succeeding Business
Day.
“Moody’s”
means Xxxxx’x Investors Service, Inc. or any successor.
“National
City” is defined in the preamble.
“Net
Disposition Proceeds” means with respect to any Disposition, the
excess of:
(a) the
gross cash proceeds received by the Borrower, from any such Disposition and
any
cash payments in immediately available funds received in respect of promissory
notes (or other non-cash consideration) delivered to the Borrower in respect
thereof; over
(b) the
sum of (i) all reasonable and customary commissions, legal, and other
professional fees, sales commissions and other reasonable and customary costs
and disbursements, in each case actually incurred in connection with such
Disposition, and (ii) payments
made by the Borrower to retire any Indebtedness of the Borrower where payment
of
such Indebtedness is required in connection with such
Disposition.
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“Non-Excluded
Taxes” means any Taxes other than net income, net profit and franchise
taxes, and property (other than Taxes attributable to the Loan transactions),
business privilege or capital stock (other than Taxes attributable to the Loan
transactions), employment related or similar Taxes imposed with respect to
the
Agent or any Lender by any Governmental Authority under the laws of which the
Agent or such Lender is organized, in which it maintains its applicable lending
office or in which it is engaged in business activity through the presence
of
any office, employees, agent or other representative.
“Non-U.S.
Lender” means any Lender or Participant that is not a “United States
person”, as defined under Section 7701(a)(30) of the Code.
“Note”
means a promissory note of the Borrower payable to a Lender, in the form of
Exhibit A hereto (as such promissory note may be amended, endorsed
or otherwise modified from time to time), evidencing the aggregate Indebtedness
of the Borrower to such Lender resulting from outstanding Loans, and also means
all other promissory notes accepted from time to time in substitution therefor
or renewal thereof.
“Obligations”
means, in each case, whether now in existence or hereafter arising: (a) the
principal of and interest on (including, without limitation, any interest
accruing after the filing of any petition in bankruptcy or the commencement
of
any insolvency, reorganization or like proceeding, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans;
(b) all other obligations (monetary or otherwise, whether absolute or
contingent, matured or unmatured) of the Borrower arising under or in connection
with a Credit Document or a Secured Hedging Agreement; and (c) all other fees,
expenses and commissions (including, without limitation, attorney’s fees),
charges, indebtedness, loans, liabilities, financial accommodations,
obligations, covenants and duties owing by the Borrower to any Secured Party,
of
every kind, nature and description, direct or indirect, absolute or contingent,
due or to become due, contractual or tortious, liquidated or unliquidated,
that
relate to any Credit Document or Secured Hedging Agreement.
“OFAC”
means the U.S. Department of the Treasury’s Office of Foreign Assets
Control.
“Off-Balance
Sheet Liabilities” of any Person means (a) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold
by
such Person, (b) any liability of such Person under any sale and leaseback
transactions which do not create a liability on the balance sheet of such
Person, (c) any obligation of such Person under any Synthetic Lease or (d)
any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute
a
liability on the balance sheet of such Person.
“Organizational
Document” means, relative to any Person, as applicable, its certificate of
incorporation, by-laws, certificate of partnership, partnership agreement,
certificate of formation, limited liability agreement and all shareholder
agreements, voting trusts and similar arrangements
applicable to any of such Person’s partnership interests, limited liability
company interests or authorized shares of Capital
Securities.
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“Original
Net Equipment Cost” means, with respect to any Equipment subject to an
Eligible Contract, an amount equal to (a) the Borrower’s cost in accordance with
GAAP, less (b) the amount of any advance, security deposit or other up-front
payment made by the applicable Lessee to such Borrower with respect to such
Equipment or the related Contract.
“Original
Price” means, with respect to any Equipment subject to a Contract (a) which
is originated by LEAF Financial or LEAF Funding, the original invoice price
of
any related Equipment subject to such Contract, and, (b) any other such
Equipment, the amount paid by the Borrower to purchase the related
Contract.
“Other
Taxes” means any and all stamp, documentary or similar taxes, or any other
excise or property taxes or similar levies that arise on account of any payment
made or required to be made under any Credit Document or from the execution,
delivery, registration, recording or enforcement of any Credit
Document.
“Participant”
is defined in Section 13.11(b).
“PBGC”
means the Pension Benefit Guaranty Corporation and any entity succeeding to
any
or all of its functions under ERISA.
“Pension
Plan” means a “pension plan”, as such term is defined in Section 3(2)
of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in Section 4001(a)(3) of ERISA), and to which the Borrower
or
any corporation, trade or business that is, along with the Borrower, a member
of
a Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of
ERISA at any time during the preceding five years, or by reason of being deemed
to be a contributing sponsor under Section 4069 of ERISA.
“Percentage”
means, relative to any Lender, the percentage opposite its name on
Schedule I hereto under the Commitment column or set forth in a Lender
Assignment Agreement under the Commitment column, as such percentage may be
adjusted from time to time pursuant to Lender Assignment Agreements executed
by
such Lender and its Assignee Lender and delivered pursuant to
Section 13.11(a).
“Person”
means any natural person, corporation, limited liability company, partnership,
joint venture, association, trust or unincorporated organization, Governmental
Authority or any other legal entity, whether acting in an individual, fiduciary
or other capacity.
“Plan”
means any Pension Plan or Welfare Plan.
“Register”
is defined in Section 13.11(c).
“Related
Fund” means, with respect to any Lender, any fund that invests in loans and
whose decisions relating to such loans is controlled (by contract or otherwise)
by such Lender
or, in the case of a Lender that is a fund, by the same investment advisor
as
such Lender or by an Affiliate of such investment advisor.
“Release”
means a “release”, as such term is defined in CERCLA.
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“Required
Lenders” means Lenders holding more than fifty percent (50%) of the Total
Exposure Amount.
“Resource
Conservation and Recovery Act” means the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., as
amended.
“Restricted
Payment” means (a) the declaration or payment of any dividend (other than
dividends payable solely in Capital Securities of the Borrower) on, or the
making of any payment (including, without limitation, principal, interest,
fees
or expenses) or distribution on account of, or setting apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of any class of Capital Securities of the
Borrower or any options, warrants, or other rights to purchase any such Capital
Securities, whether now or hereafter outstanding, or the making of any other
distribution in respect thereof, either directly or indirectly, whether in
cash
or property, obligations of the Borrower or otherwise, or (b) any payment by
the
Borrower of any management or consulting fee to any Person or of any salary,
bonus or other form of compensation to any Person who is an Affiliate or
executive officer of any such Person, but excluding any such salary, bonus
or
other form of compensation to the extent approved by Parent.
“S&P”
means Standard & Poor’s Rating Services, a division of XxXxxx-Xxxx, Inc., or
any successor.
“Sanctioned
Country” means a country subject to a sanctions program identified on the
list maintained by OFAC and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx /ofac/sanctions/index.html, or
as otherwise published from time to time.
“Sanctioned
Person” means (a) a Person named on the list of “Specially Designated
Nationals and Blocked Persons” maintained by OFAC available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/xxxxx.xxxx, or as
otherwise published from time to time, or (b) (i) an agency of the government
of
a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country,
or (iii) a person resident in a Sanctioned Country, to the extent subject to
a
sanctions program administered by OFAC.
“SEC”
means the Securities and Exchange Commission.
“Secured
Hedging Agreement” means, collectively, any Hedging Agreement entered into
by the Borrower under which the counterparty of such agreement is (or at the
time such agreement was entered into, was) a Lender or an Affiliate of a
Lender.
“Secured
Hedging Obligations” means any Obligations with respect to Secured Hedging
Agreements.
“Secured
Parties” means, collectively, the Lenders, the Agent, each counterparty to a
Secured Hedging Agreement, and (in each case) each of their permitted respective
successors, transferees and assigns.
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“Security
Agreement” means the Security Agreement executed and delivered by the
Borrower pursuant to this Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
“Servicer
Default” means any default by LEAF Financial under any Servicing Agreement,
in connection with which, (a) the Borrower has received notice and which is
not
cured within the period allowed under such Servicing Agreement and (b) the
result of which is to permit the removal of the Borrower as
servicer.
“Servicing
Agreement” means (a) the Interim Servicing Agreement (as such term is
defined in the Purchase Agreement) and (b) any agreement pursuant to which
LEAF
Financial agrees to service Contracts owned by the Borrower or an Affiliate
of
the Borrower or a LEAF SPE.
“Servicing
Standard” means the degree of diligence, prudence, skill and care with which
the Borrower customarily service Contracts held for their own account and,
in
any event, in a manner consistent with the customary and usual practices of
other servicers of comparable contracts and equipment.
“SFAS
133/138” means, Statement of Financial Accounting Standards No. 133 –
“Accounting for Derivative Instruments and Hedging Activities” and Statement of
Financial Accounting Standards No. 138 – “Accounting for Certain Derivative
Instruments and Certain Hedging Activities, an amendment to FASB Statement
No.
133” issued by the Financial Accounting Standard Board, as such pronouncement
may be amended from time to time in accordance with its terms.
“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. Unless the context otherwise
specifically requires, the term “Subsidiary” shall be a reference to a
Subsidiary of the Borrower.
“Synthetic
Lease” means, as applied to any Person, any lease (including leases that may
be terminated by the lessee at any time) of any property (whether real, personal
or mixed) if both (a) the lease is not a capital lease in accordance with
GAAP and (b) the lessee is claiming ownership of the property so leased for
federal income tax purposes, other than any such lease under which that Person
is the lessor.
“Taxes”
means any and all income, stamp or other taxes, duties, levies, imposts,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, and all interest,
penalties or similar liabilities with respect thereto.
“Termination
Date” means the earliest of (a) August 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.
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“Total
Exposure Amount” means, on any date of determination, the outstanding
principal amount of all Loans and the unfunded amount of the
Commitments.
“Total
Liabilities” means, on any date, without duplication, the outstanding
principal (or equivalent) amount of all Indebtedness of the Borrower
described in paragraphs “(a)”, “(b)” or “(c)” of the definition of
“Indebtedness”, as of such date.
“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.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the
Commonwealth of Pennsylvania; provided, that if, with respect to any financing
statement or by reason of any provisions of law, the perfection or the effect
of
perfection or non-perfection of the security interests granted to the Agent
pursuant to the applicable Credit Document is governed by the Uniform Commercial
Code as in effect in a jurisdiction of the United States other than
Pennsylvania, “UCC” means the Uniform Commercial Code as in effect from time to
time in such other jurisdiction for purposes of the provisions of each Credit
Document and any financing statement relating to such perfection or effect
of
perfection or non-perfection.
“United
States” or “U.S.” means the United States of America, its fifty
states and the District of Columbia.
“Voting
Securities” means, with respect to any Person, Capital Securities of any
class or kind ordinarily having the power to vote for the election of directors,
managers, managing general partners or other voting members of the governing
body of such Person.
“Welfare
Plan” means a “welfare plan”, as such term is defined in
Section 3(1) of ERISA.
Section
1.2 Use
of Defined Terms. Unless
otherwise defined or the context otherwise requires, terms for which meanings
are provided in this Agreement shall have such meanings when used in each other
Credit Document, and each notice and other communication delivered from time
to
time in connection with this Agreement or any other Credit
Document.
Section
1.3 Cross-References. Unless
otherwise specified, references in a Credit Document to any Article or Section
are references to such Article or Section of such Credit Document, and
references in any Article, Section or definition to any clause are references
to
such clause of such Article, Section or definition.
Section
1.4 Accounting
and Financial Determinations. Unless
otherwise specified, all accounting terms used in each Credit Document shall
be
interpreted, and all accounting determinations and computations thereunder
shall
be made, in accordance with GAAP applied in the preparation of the most recent
financial statements referred to in Section 5.1(e). If any
preparation in the financial statements referred to in Section 7.1 hereafter
occasioned
by the promulgation of rules, regulations, pronouncements and opinions by or
required by the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or successors thereto or agencies with similar
functions) results in a change in any results, amounts, calculations, ratios,
standards or terms found in this Agreement from
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ARTICLE
II
REVOLVING
CREDIT FACILITY
Section
2.2 Reduction
of Aggregate Commitment Amount. The
Borrower may (without premium or penalty), from time to time on any Business
Day
occurring after the Closing Date, voluntarily reduce the amount of the Aggregate
Commitment on the Business Day so specified by the Borrower; provided, however,
that all such reductions shall require at least three (3) Business Days’ prior
notice to the Agent and be permanent, and any partial reduction of the Aggregate
Commitment shall be in a minimum amount of $5,000,000 and in any integral
multiple of $1,000,000 in excess thereof. Each Lender’s Commitment
shall be reduced by its Percentage of the reduction of the Aggregate
Commitment.
Section
2.3 Borrowing
Procedures. The
Borrower shall give the Agent irrevocable prior written notice in the form
of a
Borrowing Request (a) not later than 1:00 p.m. on the day a Borrowing of a
Base
Rate Loan or LIBOR Flex Rate Loan is to be made and (b) at least three (3)
Business Days prior to the date that a LIBOR Loan is to be made. Each
Borrowing Request shall be (i) in the case of Base Rate Loans or LIBOR Flex
Rate
Loans, in a minimum amount of $100,000 and any integral multiple of $100,000
in
excess thereof, and (ii) in the
case
of LIBOR Loans, in a minimum amount of $1,000,000 and any integral multiple
of
$500,000 in excess thereof, or, in either case, in the unused amount of the
Commitment. On the terms and subject to the conditions of this
Agreement, each Borrowing shall be comprised of the Type of Loans, and shall
be
made on the Business Day, specified in such Borrowing
Request.
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Section
2.4 Continuation
and Conversion Elections. By
delivering a Continuation/Conversion Notice to the Agent on or before 12:00
noon
on a Business Day, the Borrower may from time to time irrevocably elect, on
not
less three (3) Business Days’ (but not more than five (5) Business Days) notice,
that all, or any portion of any Borrowing of one Type of Loan may be converted
into the other Type of Loan (or continued, as to any LIBOR Loan), in minimum
amounts of $1,000,000 and any integral multiple of $500,000 in excess thereof;
provided that, in the absence of delivery of a Continuation/Conversion Notice
with respect to any LIBOR Loan at least three (3) Business Days before the
last
day of the then current Interest Period with respect thereto, such LIBOR Loan
shall, on such last day, automatically convert to a Base Rate Loan; provided
further, that, that (x) each such conversion or continuation shall be pro
rated among the applicable outstanding Loans of all Lenders that have made
such
Loans, and (y) no portion of the outstanding principal amount of any Loans
may be continued as, or be converted into, LIBOR Loans when any Default or
Event
of Default has occurred and is continuing.
Section
2.5 Funding. Each
Lender may, if it so elects, fulfill its obligation to make, continue or convert
LIBOR Loans hereunder by causing one of its foreign branches or Affiliates
(or
an international banking facility created by such Lender) to make or maintain
such LIBOR Loan; provided, however, that such LIBOR Loan shall nonetheless
be
deemed to have been made and to be held by such Lender, and the obligation
of
the Borrower to repay such LIBOR Loan shall nevertheless be to such Lender
for
the account of such foreign branch, Affiliate or international banking
facility. In addition, the Borrower hereby consents and agrees that,
for purposes of any determination to be made for purposes of Sections 4.1,
4.2,
4.3 or 4.4, it shall be conclusively assumed that each Lender elected to fund
all LIBOR Loans by purchasing Dollar deposits in the interbank eurodollar
market.
Section
2.6 Notes. The
Borrower agrees that, upon the request to the Agent by any Lender, the Borrower
will execute and deliver to such Lender a Note evidencing the Loans made by,
and
payable to the order of, such Lender in a maximum principal amount equal to
such
Lender’s Commitment. The Borrower hereby irrevocably authorize each
Lender to make (or cause to be made) appropriate notations on any grid attached
to such Notes (or on any continuation of such grid), which notations, if made,
shall evidence, inter alia, the date of, the outstanding principal of,
and the interest rate and Interest Period applicable to the Loans evidenced
thereby. Such notations shall, to the extent not inconsistent with
notations made by the
Agent
in the Register, be conclusive and binding on the Borrower absent manifest
error; provided, however, that the failure of any Lender to make any such
notations or any error in any such notation shall not limit or otherwise affect
any Obligations of the Borrower.
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ARTICLE
III
REPAYMENTS,
PREPAYMENTS, INTEREST AND FEES
Section
3.1 Repayments
and Prepayments; Application. The
Borrower shall repay in full all principal, interest and Obligations on the
Termination Date. Prior thereto, prepayments of Loans shall or may be
made as set forth below.
(a) Voluntary
Prepayments. From
time to time on any Business Day, the Borrower may make a voluntary prepayment,
in whole or in part, without premium or penalty, of the outstanding principal
amount of any Loan; provided, however, that: (i) any such prepayment shall
be
applied, first, to any Base Rate Loans, second, to any LIBOR Flex Rate Loans,
and, third, pro rata among LIBOR Loans having the same Interest Period, in
the
direct order of maturity of such Interest Periods; (ii) any such voluntary
prepayment of any Loan made in part, and not in whole, shall be in a minimum
amount of $500,000 and any integral multiple of $100,000 in excess thereof;
and
(iii) the Borrower shall comply with Section 4.4 in the event any
LIBOR Loan is prepaid on any day other than the last day of the Interest Period
for such LIBOR Loan.
(b) Mandatory
Prepayments.
(i) Loan
Prepayments. On
any date when the sum of the aggregate outstanding principal amount of all
Loans exceeds the lesser of (A) the Aggregate Commitment (as it may be reduced
from time to time pursuant to this Agreement), and (B) the Borrowing Base,
the
Borrower shall make a mandatory prepayment of Loans in an aggregate amount
equal
to such excess.
(ii) Prepayments
of Net Disposition Proceeds. Immediately
upon the receipt by the Borrower of any Net Disposition Proceeds, the Borrower
shall make a mandatory prepayment of the Loans in an amount equal to 100% of
such Net Disposition Proceeds, to the extent necessary to comply with paragraph
(i) above.
(iii) Prepayments
upon Acceleration. Immediately
upon any acceleration of any Loans pursuant to Section 11.2 or
Section 11.3, the Borrower shall repay all the Loans, unless, pursuant to
Section 11.3, only a portion of all the Loans is so accelerated (in which
case the portion so accelerated shall be so repaid). Such amounts
shall be applied in accordance with Section 11.4.
Section
3.2 Interest
Provisions. Interest
on the outstanding principal amount of Loans shall accrue and be payable in
accordance with the terms set forth below.
(a) Rates. Subject
to Sections 2.3 and 2.4, pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(i) on that
portion maintained from time to time as a Base Rate Loan, equal to the sum
of
the Adjusted Base Rate from time to time in effect plus the Applicable
Margin;
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(ii) on
that portion maintained as a LIBOR Loan, during each Interest Period applicable
thereto, equal to the sum of LIBOR (Reserve Adjusted) for such Interest Period
plus the Applicable Margin; and
(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;
All
LIBOR
Loans shall bear interest from and including the first day of the applicable
Interest Period to (but not including) the last day of such Interest Period
at
the interest rate determined as applicable to such LIBOR Loan.
(b) Default
Rate. Notwithstanding
the foregoing, the Borrower will pay to the Agent, for the account of the party
entitled thereto, interest, at a rate per annum (the “Default Rate”) equal to
the Adjusted Base Rate from time to time in effect (or, as to any LIBOR Loan
then outstanding, the LIBOR (Reserve Adjusted) rate applicable to such LIBOR
Loan during the remainder of the related Interest Period prior to conversion
thereof pursuant to Section 2.4), plus the sum of (i) the Applicable Margin
applicable thereto and (ii) an additional margin of 3% per annum, to the fullest
extent permitted by law, on any amount payable by the Borrower under any Credit
Document to or for the account of the Agent or any Lender that is not paid
in
full when due (whether at stated maturity, by acceleration, or otherwise) or
that is outstanding after the Agent has notified the Borrower that any other
Event of Default exists and that the Default Rate will apply, for the period
from and including the due date thereof, or in the case of other Events of
Default, the date the Agent has notified the Borrower that the Default Rate
will
begin to accrue, to but excluding the date the same is paid in full (or in
the
case of any other Event of Default, until the Event of Default no longer
exists). Interest payable at the Default Rate shall be payable from time to
time
on demand or, if not earlier demanded, on each Monthly Payment
Date.
(c) Payment
Dates. Interest
accrued on each Loan shall be payable, without duplication:
(i) on
the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan on the principal amount so paid or
prepaid;
(ii) with
respect to Base Rate Loans or LIBOR Flex Rate Loans, on each Monthly Payment
Date;
(iii) with
respect to LIBOR Loans, on the last Business Day of each applicable Interest
Period;
(iv) with
respect to any Base Rate Loans or LIBOR Flex Rate Loans converted into LIBOR
Loans on a day when interest would not otherwise have been payable pursuant
to
clause (iii) above, on the date of such conversion; and
(v) on
that portion of any Loan which is accelerated pursuant to Section 11.2 or
Section 11.3, immediately upon such acceleration.
Interest
accrued on Loans or other monetary Obligations after the date such amount is
due
and payable (whether upon maturity, upon acceleration or otherwise) shall be
payable upon demand.
(d) Maximum
Rate. Notwithstanding
anything to the contrary contained in any Credit Document, the interest paid
or
agreed to be paid under the Credit Documents shall not exceed the maximum rate
of non-usurious interest permitted by applicable law (the “Maximum
Rate”). If the Agent or any Lender shall receive interest in an
amount that exceeds the Maximum Rate, the excess interest shall be applied
to
the principal of the Loans or, if it exceeds such unpaid principal, refunded
to
the Borrower. In determining whether the interest contracted for,
charged, or received by the Agent or a Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Obligations
hereunder.
Section
3.3 Fees. The
Borrower agrees to pay the Agent a structuring and arrangement fee of
$25,000, which fee shall be non-refundable.
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ARTICLE
IV
CERTAIN
LIBOR AND OTHER PROVISIONS
Section
4.1 LIBOR
Lending Unlawful. If
any Lender shall determine (which determination shall, upon notice thereof
to
the Borrower and the Agent, be conclusive and binding on the Borrower) that
the
introduction of or any change in or in the interpretation of any law makes
it
unlawful, or any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert any Loan into, a LIBOR
Loan, the obligations of such Lender to make, continue or convert any such
LIBOR
Loan shall, upon such determination, forthwith be suspended until such Lender
shall notify the Agent that the circumstances causing such suspension no longer
exist, and all outstanding LIBOR Loans payable to such Lender shall
automatically convert into Base Rate Loans at the end of the then current
Interest Periods with respect thereto or sooner, if required by such law or
assertion.
Section
4.2 Deposits
Unavailable. If
the Agent shall have determined that:
(a) Dollar
deposits in the relevant amount and for the relevant Interest Period are not
available to it in the relevant market; or
(b) by
reason of circumstances affecting its relevant market, adequate means do not
exist for ascertaining the interest rate applicable hereunder to LIBOR
Loans;
then,
upon notice from the Agent to the Borrower and the Lenders, the obligations
of
all Lenders under Section 2.1 to make or continue any Loans as, or to convert
any Loans into, LIBOR Loans shall
forthwith be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer
exist.
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Section
4.3 Increased
LIBOR Loan Costs, etc. The
Borrower agrees to reimburse each Lender for any increase in the cost to such
Lender of, or any reduction in the amount of any sum receivable by such Lender
in respect of, such Lender’s Commitment and the making of Loans hereunder
(including the making, continuing or maintaining (or of its obligation to make
or continue) any Loans as, or of converting (or of its obligation to convert)
any Loans into, LIBOR Loans) that arise in connection with any change in, or
the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in after the date hereof of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any Governmental
Authority, except for such changes with respect to increased capital costs
and
Taxes which are governed by Sections 4.5 and 4.6, respectively. Each
affected Secured Party shall promptly notify the Agent and the Borrower in
writing of the occurrence of any such event, such notice stating in reasonable
detail the reasons therefor and the additional amount required fully to
compensate such Secured Party for such increased cost or reduced
amount. Such additional amounts shall be payable by the Borrower
directly to such Secured Party within five days of its receipt of such notice,
and such notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
Section
4.4 Funding
Losses. In
the event any Lender shall incur any loss or expense (including any loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to make or continue any portion of the
principal amount of any Loan as, or to convert any portion of the principal
amount of any Loan into, a LIBOR Loan) as a result of:
(a) any
conversion or repayment or prepayment of the principal amount of any LIBOR
Loan
on a date other than the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Article III or otherwise;
(b) any
Loans not being made as LIBOR Loans in accordance with the Borrowing Request
therefor; or
(c) any
Loans not being continued as, or converted into, LIBOR Loans in accordance
with
the Continuation/Conversion Notice therefor;
then,
upon the written notice of such Lender to the Borrower (with a copy to the
Agent), the Borrower shall, within five days of its receipt thereof, pay
directly to such Lender such amount as will (in the reasonable determination
of
such Lender) reimburse such Lender for such loss or expense. Such
written notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
Section
4.5 Increased
Capital Costs. If
any change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any Governmental
Authority (other than any law, regulation, directive, guideline, decision or
request relating to Taxes which are governed by Section 4.6) affects or would
affect the amount of capital
required or expected to be maintained by any Secured Party or any Person
controlling such Secured Party, as a consequence of this Agreement, and such
Secured Party determines (in good faith but in its sole and absolute discretion)
that the rate of return on its or such controlling
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Section
4.6 Taxes The
Borrower covenants and agrees as follows with respect to Taxes:
(a) Except
as otherwise provided herein, any and all payments by the Borrower under any
Credit Document shall be made without setoff, counterclaim or other defense,
and
free and clear of, and without deduction or withholding for or on account of,
any Taxes. In the event that any Taxes are required by law to be
deducted or withheld from any payment required to be made by the Borrower to
or
on behalf of the Agent or any Lender under any Credit Document,
then:
(i) subject
to clause (f), only if such Taxes are Non-Excluded Taxes, the amount of such
payment shall be increased as may be necessary such that such payment is made,
after withholding or deduction for or on account of such Taxes, in an amount
that is not less than the amount provided for in this Agreement or such Credit
Document; and
(ii) the
Borrower shall withhold the full amount of such Taxes from such payment (as
increased pursuant to clause (a)(i)) and shall pay such amount to the
Governmental Authority imposing such Taxes in accordance with applicable
law.
(b) In
addition, the Borrower shall pay any and all Other Taxes imposed to the relevant
Governmental Authority imposing such Other Taxes in accordance with applicable
law.
(c) As
promptly as practicable after the payment of any Taxes or Other Taxes, and
in
any event within 30 days of any such payment being due, the Borrower shall
furnish to the Agent a copy of an official receipt (or a certified copy thereof)
or other applicable documentation evidencing the payment of such Taxes or Other
Taxes. The Agent shall make copies thereof available to any Lender
upon request therefor.
(d) Subject
to clause (f), the Borrower shall indemnify the Agent and each Lender for any
Non-Excluded Taxes and Other Taxes levied, imposed or assessed on (and whether
or not paid directly by) the Agent or such Lender (whether or not such
Non-Excluded Taxes
or
Other Taxes are correctly or legally asserted by the relevant Governmental
Authority). Promptly upon receiving written notice from the Agent or
any Lender or otherwise upon having knowledge that any such Non-Excluded Taxes
or Other Taxes have been levied, imposed or
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(e) Each
Non-U.S. Lender, on or prior to the date on which such non-U.S. Lender becomes
a
Lender hereunder (and from time to time thereafter upon the request of the
Borrower or the Agent or as otherwise required by law, but only for so long
thereafter as such non-U.S. Lender is legally entitled to do so), shall deliver
to the Borrower and the Agent, but only to the extent that it is permitted
to do
so under applicable tax law, either:
(i) two
duly completed copies of either (x) Internal Revenue Service Form W-8BEN or
(y)
Internal Revenue Service Form W-8 ECI, or in either case an applicable successor
form; or
(ii) in
the case of a Non-U.S. Lender that is not legally entitled to deliver either
form listed in clause (e)(i) above, (x) a certificate of a duly authorized
officer of such Non-U.S. Lender to the effect that such Non-U.S. Lender is
not
(A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B)
of the Code, or (C) a controlled foreign corporation receiving interest from
a
related person within the meaning of Section 881(c)(3)(C) of the Code (such
certificate, an “Exemption Certificate”) and (y) two duly completed copies
of Internal Revenue Service Form W-8BEN or applicable successor form
to establish an exemption from United States backup withholding
tax.
(f) In
addition, each Non-U.S. Lender agrees that from time to time after the Closing
Date, when a lapse in time or change in circumstances unique to the situation
of
such Lender renders the form or forms and/or Exemption Certificate provided
under clause (e) above obsolete or inaccurate in any material respect, it will
deliver to the Borrower a new, accurate form or forms and/or Exemption
Certificate, as applicable to such Non-U.S. Lender, and such other forms as
may
be prescribed by law in order to confirm or establish the entitlement of such
Non-U.S. Lender to an exemption from or reduction in United States federal
withholding tax
with
respect to payments by the Borrower under the applicable Credit Document, but
only to the extent that it is permitted to do under applicable tax
law.
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(g) The
Borrower shall not be obligated to gross up any payments to any Lender pursuant
to clause (a)(i) above, or to indemnify any Lender pursuant to clause (d) above,
in respect of United States federal withholding taxes to the extent that such
taxes are imposed as a result of (x) the failure of such Lender to deliver
to
the Borrower the form or forms and/or an Exemption Certificate, as applicable
to
such Lender, pursuant to clause (e) above, or, (y) such form or forms and/or
Exemption Certificate not establishing a complete exemption from United States
federal withholding tax or the information or certifications made therein by
the
Lender being untrue or inaccurate on the date delivered in any material respect;
provided, however, that the Borrower shall be obligated to gross up any payments
to any such Lender pursuant to clause (a)(i) above, and to indemnify any such
Lender pursuant to clause (d), in respect of United States federal withholding
taxes if any such failure to deliver a form or forms or an Exemption Certificate
or the failure of such form or forms or Exemption Certificate to establish
a
complete exemption from United States federal withholding tax or inaccuracy
or
untruth contained therein resulted from a change in any applicable statute,
treaty, regulation or other applicable law or any interpretation of any of
the
foregoing occurring after the date hereof, which change rendered such Lender
no
longer legally entitled to deliver such form or forms or Exemption Certificate
or otherwise ineligible for a complete exemption from United States federal
withholding tax, or rendered the information or certifications made in such
form
or forms or Exemption Certificate untrue or inaccurate in any material
respect.
(h) If
the Agent or any Lender receives a refund in respect of Taxes as to which it
has
been grossed up by the Borrower pursuant to clause (a)(i) above or indemnified
by the Borrower pursuant to clause (d) above and the Agent or Lender, as
applicable determines in its sole, good faith judgment that such refund is
attributable to such gross up or indemnification, then the Lender or the Agent,
as the case may be, shall pay such amount to the Borrower as the Lender or
Agent
determines to be the proportion of the refund as will leave it, after such
payment, in no better or worse financial position with respect to Tax
liabilities and related expenses than it would have been in absent such
payment. Neither the Lenders nor the Agent shall be obligated to
disclose information regarding its tax affairs or computations to the Borrower
in connection with this clause (g) or any other provision of this
Section 4.6.
Section
4.7 Payments,
Computations, etc Unless
otherwise expressly provided in a Credit Document, all payments by the Borrower
pursuant to each Credit Document shall be made by the Borrower to the Agent
for
the pro rata account of the Secured Parties entitled to
receive such payment. All payments shall be made without setoff,
deduction or counterclaim not later than 12:00 noon on the date due in same
day
or immediately available funds to such account as the Agent shall specify from
time to time by notice to the Borrower. Funds received after that
time but before 5:00 p.m. on such date shall be deemed to have been received
by
the Agent on such date for purposes of Section 11.1(a), but for all other
purposes shall be deemed to have been received by the Agent on the next
succeeding Business Day. The Agent shall promptly remit in same day
funds to each Secured Party its share, if any, of such payments received by
the
Agent for the account of such Secured Party. Interest payable
hereunder with respect to Base Rate Loans shall be calculated on the basis
of a
year of 365 days (or 366 days, as applicable) for the actual days
elapsed. All other fees, interest and all other amounts payable
hereunder
shall be calculated on the basis of a 360 day year for the actual days
elapsed. Payments due on a day other than a Business Day shall
(except as otherwise required by the definition of the term “Interest Period”)
be made on the next succeeding Business Day and such extension of time shall
be
included in computing interest and fees in connection with that
payment.
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Section
4.8 Sharing
of Payments. If
any Secured Party shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) on account of any Loan
(other than pursuant to the terms of Sections 4.3, 4.4, 4.5 or 4.6) in excess
of
its pro rata share of payments obtained by all Secured
Parties, such Secured Party shall purchase from the other Secured Parties such
participations in Loans made by them as shall be necessary to cause such
purchasing Secured Party to share the excess payment or other recovery ratably
(to the extent such other Secured Parties were entitled to receive a portion
of
such payment or recovery) with each of them; provided, however, that if all
or
any portion of the excess payment or other recovery is thereafter recovered
from
such purchasing Secured Party, the purchase shall be rescinded and each Secured
Party which has sold a participation to the purchasing Secured Party shall
repay
to the purchasing Secured Party the purchase price to the ratable extent of
such
recovery together with an amount equal to such selling Secured Party’s ratable
share (according to the proportion of (a) the amount of such selling Secured
Party’s required repayment to the purchasing Secured Party to (b) total
amount so recovered from the purchasing Secured Party) of any interest or other
amount paid or payable by the purchasing Secured Party in respect of the total
amount so recovered. The Borrower agrees that any Secured Party
purchasing a participation from another Secured Party pursuant to this Section
may, to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as
fully as if such Secured Party were the direct creditor of the Borrower in
the
amount of such participation. If under any applicable bankruptcy,
insolvency or other similar law any Secured Party receives a secured claim
in
lieu of a setoff to which this Section applies, such Secured Party shall, to
the
extent practicable, exercise its rights in respect of such secured claim in
a
manner consistent with the rights of the Secured Parties entitled under this
Section to share in the benefits of any recovery on such secured
claim.
Section
4.9 Setoff. Each
Secured Party shall, upon the occurrence and during the continuance of any
Event
of Default described in Section 11.1(i) or, with the consent of the Required
Lenders, upon the occurrence and during the continuance of any other Event
of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) the Borrower hereby grants to each Secured Party a continuing
security interest in, any and all balances, credits, deposits, accounts or
moneys of the Borrower then or thereafter maintained with such Secured Party;
provided, however, that any such appropriation and application shall be subject
to the provisions of Section 4.8. Each Secured Party agrees
promptly to notify the Borrower and the Agent after any such setoff and
application made by such Secured Party; provided, however, that the failure
to
give such notice shall not affect the validity of such setoff and
application. The rights of each Secured Party under this Section are
in addition to other rights and remedies (including other rights of setoff
under
applicable law or otherwise) which such Secured Party may have.
Section
4.10 Mitigation;
Time Limitation.
(a) Each
Lender agrees that if any demand for payment under Sections 4.3, 4.4, 4.5,
or
4.6, or if any adoption or change of the type described in Section 4.1 shall
occur with respect to it, it will use reasonable efforts (consistent with its
internal policy and legal and
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(b) Failure
or delay on the part of any Secured Party to demand compensation pursuant to
Sections 4.3, 4.4, 4.5 or 4.6 shall not constitute a waiver of such Secured
Party’s right to demand such compensation, provided that the Borrower shall not
be required to compensate a Secured Party pursuant to the Sections 4.3, 4.4,
4.5
or 4.6 for any increased costs incurred or reductions suffered more than six
months prior to the date that such Secured Party notifies the Borrower of the
change giving rise to such increased costs or reductions and of such Secured
Party’s intention to claim compensation therefor (except that, if the change
giving rise to such increased costs or reductions is retroactive, then the
six
month period referred to above shall be extended to include the period of
retroactive effect thereof).
Section
4.11 Replacement
of Lenders. Each
Lender hereby severally agrees as set forth in this Section.
(a) If
any Lender (an “Affected Lender”) makes demand upon the Borrower for (or if the
Borrower is otherwise required to pay to such Lender) amounts pursuant to
Sections 4.3, 4.4, 4.5 or 4.6 and the payment of such additional amounts are,
and are likely to continue to be, materially more onerous in the reasonable
judgment of the Borrower with respect to the other Lenders or any Lender
defaults under the terms hereunder (a “Defaulting Lender”), the Borrower may,
within 30 days of receipt by the Borrower of such demand or notice (or the
occurrence of such other event causing the Borrower to be required to pay such
compensation) or from the date that such Lender becomes a Defaulting Lender,
as
the case may be, give notice in writing to the Agent and such Affected Lender
or
such Defaulting Lender, as the case may be, of its intention to replace such
Affected Lender or Defaulting Lender, as the case may be, with a financial
institution designated in such notice, subject to the other terms of this
Agreement. If the Agent shall, in the exercise of its reasonable
discretion and within 30 days of its receipt of such notice, notify the Borrower
and such Affected Lender or such Defaulting Lender, as the case may be, in
writing that the designated financial institution is satisfactory to the Agent
(such consent not being required where such financial institution is already
a
Lender), then such Affected Lender or such Defaulting Lender, as the case may
be, shall, subject to the payment of any amounts due pursuant to Section 4.4
by
the Borrower, assign, in accordance with Section 13.11(a), all of its
Commitments, Loans, Notes, and other rights and obligations under this Agreement
and all other Credit Documents to such designated financial institution;
provided, however, that (i) such assignment shall be without recourse,
representation or warranty (except, with respect to representations and
warranties, as to (A) such Affected Lender’s or such Defaulting Lender’s, as the
case may be, then existing Commitment Amount(s) and the outstanding principal
amount of Loans held by such Affected Lender or such Defaulting Lender,
as
the
case may be, and (B) the absence of Liens arising by, through and under the
Affected Lender or Defaulting Lender, as the case may be) and shall be on terms
and conditions reasonably satisfactory to such Affected Lender and such
designated financial institution, (ii) the purchase price paid by such
designated financial institution shall be in the amount of such Affected
Lender’s or such Defaulting Lender’s Loans, together with all accrued and unpaid
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(b) Upon
the effective date of an assignment described in clause (a) above, the Borrower
shall issue a replacement Note to such replacement Lender (but only if such
replacement Lender requests such Note) and such institution shall become a
“Lender” for all purposes under this Agreement and the other Credit
Documents. Upon any such termination or assignment, such replaced
Lender shall cease to be a party hereto but shall continue to be entitled to
the
benefits of any provisions of this Agreement which by their terms survive the
termination of this Agreement.
ARTICLE
V
CONDITIONS
TO CREDIT EXTENSIONS
Section
5.1 Initial
Loan. The
obligations of the Lenders to fund the initial Loan shall be subject to the
prior or concurrent satisfaction, each in the Agent’s reasonable discretion, or
waiver of each of the conditions precedent set forth in this
Article.
(a) Certificates,
Resolutions, etc. The
Agent shall have received from the Borrower:
(i) [Intentionally
Omitted]; and
(ii) a
certificate, dated the Closing Date, duly executed and delivered by the
Borrower’s secretary as to:
(A) resolutions
approved by the board of directors of LEAF Financial, the sole member of the
Borrower, then in full force and effect authorizing the execution, delivery
and
performance by the Borrower of each Credit Document to be executed by the
Borrower, and the transactions contemplated hereby and thereby;
(B) the
incumbency and signatures of its Authorized Officers, authorized to act with
respect to each Credit Document to be executed by the Borrower;
(C) the
full force and validity of each Organizational Document of such Person and
copies thereof; and
(D) any
Management Agreement or shareholder or similar agreement to which the Borrower
is a party.
(b) Delivery
of Notes. The
Agent shall have received, for the account of each Lender that has requested
a
Note, such Lender’s Note duly executed and delivered by an Authorized Officer of
the Borrower.
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(c) Payment
of Outstanding Indebtedness, etc. All
Indebtedness other than that identified in Schedule 10.2 hereto, together with
all interest, all prepayment premiums and other amounts due and payable with
respect thereto, shall have been paid in full and the commitments in respect
of
such repaid Indebtedness shall have been terminated, and all Liens securing
payment of any such Indebtedness shall have been released and the Agent shall
have received any Uniform Commercial Code termination statements (Form UCC-3)
or
other executed instruments as may be required in connection
therewith. After giving effect to the foregoing, the Borrower shall
have no Indebtedness other than Indebtedness permitted by this
Agreement.
(d) Closing
Fees, Expenses, etc. The
Agent shall have received for its own account, or for the account of each
Lender, as the case may be, all fees, costs and expenses due and payable
pursuant to Section 3.3 and, if then invoiced, Section 13.3.
(e) Financial
Information; Material Adverse Effect. The Agent shall have
received a pro forma (1) consolidated balance sheet of the
Borrower and (2) Compliance Certificate, each as of the Closing Date and giving
effect to the initial Loans, certified by an Authorized Officer, in form and
substance satisfactory to Agent.
(f) Opinion
of Counsel. The
Agent shall have received opinions, dated the Closing Date and addressed to
the
Agent and all Lenders, from Ledgewood, counsel to the Borrower, in form and
substance reasonably satisfactory to the Agent.
(g) Financing
Statements. All
Uniform Commercial Code financing statements (Form UCC-1) or other similar
financing statements and Uniform Commercial Code termination statements (Form
UCC-3) required pursuant to the Credit Documents shall have been filed by or
delivered to a filing service company acceptable to the Agent.
(h) Credit
Documents and Collateral Agreements. The
Agent shall have received fully executed copies of this Agreement, each other
Credit Document and each document relating to the Acquisition, including,
without limitation:
(i) the
Security Agreement, dated as of the Closing Date, duly executed and delivered
by
the Borrower, and a UCC financing statement (Form UCC-1) naming the
Borrower as a debtor and the Agent as the secured party, or other similar
instruments or documents to be filed under the UCC of all jurisdictions as
may
be necessary or, in the opinion of the Agent, desirable to perfect the security
interests of the Agent pursuant to the Security Agreement;
(ii) the
Agent and its counsel shall be satisfied that the Lien granted to the Agent,
for
the benefit of the Secured Parties in the collateral described above is a
first
priority (or local equivalent thereof) security interest (except for Liens
permitted by Section 10.3 hereof); and no Lien exists on any of the
collateral described above other than the Lien created in favor of the Agent,
for the benefit of the Secured Parties, pursuant to a Credit Document (except
for Liens permitted by Section 10.3 hereof) and shall have
received:
(A) copies
of UCC termination statements (Form UCC-3), if any, necessary to release all
Liens and other rights of any Person in any collateral securing the
Obligations, together with such other UCC termination statements (Form UCC-3)
as
the Agent may reasonably request from the Borrower; and
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(B) copies
of lien, tax, judgment and bankruptcy search reports, listing any liens and
all
effective financing statements which name the Borrower (under its present name
and any previous names) as a debtor, together with copies any such financing
statements;
(iii) the
Intercreditor Agreement and the Lockbox Agreement shall be in full force and
effect and no default shall exist thereunder;
(iv) a
joinder and an acknowledgement to the Intercreditor Agreement and the Lockbox
Agreement, shall have been duly authorized, executed and delivered to the
lockbox agent under the Lockbox Agreement; and
(v) the
executed Purchase Agreement and related documents.
(i) Real
Property. The
Borrower shall have used its commercially reasonable efforts to obtain a
landlord waiver for each of its leased real property locations, if any, each
in
form and substance satisfactory to the Agent.
(j) Consummation
of Transaction, etc. The
Agent shall have received evidence satisfactory to it that:
(i) There
shall exist at and as of the Closing Date (after giving effect to Acquisition
and the initial Loans hereunder) no conditions that would constitute a Default
or an Event of Default;
(ii) The
Acquisition shall have been completed pursuant to the Purchase Agreement, and
all required waiting periods (under the Xxxx-Xxxxx-Xxxxxx Act or otherwise)
shall have elapsed and all other required consents (under the LEAF Credit
Agreement or otherwise) shall have been delivered; and
(iii) There
shall exist no litigation or proceedings which could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, and all
approvals of Governmental Authorities, if any, required in connection with
the
Credit Documents shall have been obtained and be in full force and
effect.
Section
5.2 All
Loans. The
obligation of each Lender to make any Loan (including the initial Loan) shall
be
subject to and the satisfaction of each of the conditions precedent set forth
below.
(a) Compliance
with Warranties, No Default, etc. Both
before and after giving effect to any Loan the following statements shall be
true and correct as of the date of such Loan:
(i) the
representations and warranties set forth in each Credit Document shall, in
each
case, be true and correct in all material respects with the same effect as
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(ii) no
Material Adverse Effect has occurred and is continuing; and
(iii) no
Default or Event of Default has occurred and is continuing.
(b) Loan
Request, etc. The
Agent shall have received a Borrowing Request if any Loan has been requested
hereunder. Each of the delivery of a Borrowing Request and the
acceptance by the Borrower of the proceeds of such Loan shall constitute a
representation and warranty by the Borrower that on the date of such Loan (both
immediately before and after giving effect to such Loan and the application
of
the proceeds thereof) the statements made in Section 5.2(a) are true and
correct.
(c) Satisfactory
Legal Form. All
documents executed or submitted pursuant hereto by or on behalf of the Borrower
shall be reasonably satisfactory in form and substance to the Agent and its
counsel and the Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the Agent or its counsel may
reasonably request.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
In
order
to induce the Secured Parties to enter into this Agreement and to make Loans
hereunder, the Borrower represents and warrants on the date of each Loan (unless
stated to relate to an earlier date) to each Secured Party as set forth in
this
Article.
Section
6.1 Organization,
etc. The
Borrower is (i) validly organized and existing and in good standing under the
laws of the State of Delaware, (ii) except where such failure to be so qualified
could not, individually or in the aggregate, reasonably be expected to result
in
a Material Adverse Effect, is duly qualified to do business and is in good
standing as a foreign entity in each jurisdiction where the nature of its
business requires such qualification, and (iii) has full power and authority
and
holds all requisite governmental licenses, permits and other approvals to enter
into and perform its Obligations under each Credit Document to which it is
a
party
and
to own and hold under lease its property and to conduct its business
substantially as currently conducted by it.
Section
6.2 Due
Authorization, Non-Contravention, etc. The
execution, delivery and performance by the Borrower of each Credit Document
and
its participation in the consummation of all aspects of the Credit Documents,
are in each case within the Borrower’s powers, have been duly authorized by all
necessary action, and do not:
(a) contravene
any (i) of the Borrower’s Organizational Documents, (ii) material
contractual restriction binding on or affecting the Borrower, (iii) court
decree or order binding on or affecting the Borrower or (iv) law or
governmental regulation binding on or affecting the Borrower; or
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(b) result
in, or require the creation or imposition of, any Lien on the Borrower’s
properties (except as permitted by this Agreement).
Section
6.3 Government
Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority, other than those that have been, or on the Closing
Date will be, duly obtained or made and which are, or on the Closing Date will
be, in full force and effect and except for filings and registrations of any
UCC
financing statement, mortgages or intellectual property filings, all of which
have been duly executed, where applicable, and delivered to the Agent on the
Closing Date by the Borrower, as the case may be, is required for the due
execution, delivery or performance by the Borrower of any Credit Document to
which it is a party. The Borrower is not subject to registration
under the Investment Company Act of 1940, as amended, or is otherwise subject
to
any other regulatory scheme limiting its ability to incur debt.
Section
6.4 Validity,
etc. The
Credit Documents will, on the due execution and delivery thereof by the
Borrower, constitute, the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally
and by principles of equity).
Section
6.5 Financial
Information. The
financial statements (other than projections) of the Borrower furnished to
the
Agent and each Lender pursuant to Section 5.1(e) have been prepared in
accordance with GAAP as applied pursuant to the terms of this Agreement, and
present fairly the consolidated financial condition of the Persons covered
thereby as at the dates thereof and the results of their operations for the
periods then ended, subject, in the case of financial statements, to normal
recurring year-end adjustments and the absence of notes. The
projections furnished to Agent and each Lender pursuant to Section 5.1(e) are
based on reasonable assumptions and such assumptions are believed by the
Borrower to be fair in light of business conditions as they exist on the date
of
this Agreement. All balance sheets, all statements of operations,
shareholders’ equity and cash flow and all other financial information the
Borrower furnished or to be furnished pursuant to Section 7.1 have been and
will
for periods following the Closing Date (except for the aging reports referred
to
in Section 7.1(c) and the budget referred to in Section 7.1(d)) be prepared
in
accordance with GAAP as applied pursuant to the terms of this Agreement, and
do
or will present fairly the consolidated financial condition
of the Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended, subject, in the case of interim financial
statements, to normal recurring year-end adjustments and the absence of
notes.
Section
6.6 No
Material Adverse Effect; Compliance with Laws.
(a) No
Material Adverse Effect has occurred since the date of delivery of the most
recent audited financial statements delivered pursuant to Section 5.1(e) or
Section 7.1(b).
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(b) The
Borrower is in material compliance with the requirements of all applicable
laws,
rules and regulations (including, without limitation, all Environmental Laws,
ERISA, and the provisions of the Occupational Safety and Health Act, the Fair
Credit Reporting Act and the Fair Labor Standards Act, each as amended, and
the
rules and regulations promulgated thereunder).
Section
6.7 Litigation. There
is no pending or, to the knowledge of the Borrower, threatened litigation,
action or proceeding (a) except as disclosed in Schedule 6.7 hereto, affecting
the Borrower or any of its properties, businesses, assets or revenues, which
could reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, or (b) which purports to affect the legality,
validity or enforceability of any Credit Document.
Section
6.8 Subsidiaries. The
Borrower has no Subsidiaries.
Section
6.9 Ownership
of Properties. Schedule
6.9 hereto sets forth the address of each real property location which the
Borrower owns or leases, or on which any property of the Borrower is maintained,
together with a description of any lease or bailment or warehouse arrangement,
including the term of such arrangement and the contact information for the
landlord, bailee or warehouseman. The Borrower owns (i) in the
case of owned real property, good and marketable fee title to, and (ii) in
the case of any owned personal property, good and valid title to, or, in the
case of leased or licensed real or personal property, valid and enforceable
leasehold or license interests (as the case may be) in, all of its material
properties and assets, real and personal, tangible and intangible, of any nature
whatsoever, free and clear in each case of all Liens or claims, except for
Liens
permitted pursuant to Section 10.3.
Section
6.10 Taxes. The
Borrower and each Subsidiary of the Borrower has filed all federal and state
income tax returns, state and local sales, use and personal property tax
returns, and all other material Tax returns and reports required by law to
have
been filed by it and has paid all federal and state income taxes, state and
local sales, use and personal property taxes, and other material Taxes thereby
shown to be due and owing, except any such Taxes which are not delinquent or
are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on
its
books.
Section
6.11 Pension
and Welfare Plans. During
the twelve-consecutive-month period prior to the date of the execution and
delivery of this Agreement and prior to the date of any Loan hereunder, no
steps
have been taken to terminate any Pension Plan, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a
Lien
under Section 302(f) of ERISA. No condition exists or event or
transaction has occurred with respect to any Pension Plan which could reasonably
be expected to result in the incurrence by the Borrower or any member of the
Controlled Group of any material liability, fine or penalty. Except
as disclosed in Schedule 6.11 hereto, neither the Borrower nor any member of
the
Controlled Group has any Contingent Liability with respect to any
post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of
ERISA. Schedule 6.11 sets forth each Pension Plan and Welfare Plan to
which the Borrower is a party.
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Section
6.12 Environmental
Warranties. Except
for the matters set forth on Schedule 6.12 hereto, and only to the extent the
Borrower’s failure to comply in any case, individually or in the aggregate, has
or could reasonably be expected to have a Material Adverse Effect:
(a) at
all facilities and property (including underlying groundwater) owned, occupied,
or leased by the Borrower, except with respect to matters that have been fully
resolved, the Borrower is, and continues to be, in compliance with all
Environmental Laws;
(b) there
have been no past (which have not been resolved), and there are no pending
or,
to the knowledge of the Borrower, threatened (i) claims, complaints, notices
or
requests for information received by the Borrower with respect to any alleged
violation of any Environmental Law, or (ii) complaints, notices or
inquiries to the Borrower regarding potential liability under any Environmental
Law;
(c) there
have been no Releases or threatened Releases of Hazardous Materials at, on
or
under any property now or to the knowledge of any Authorized Officer previously
owned, occupied, or leased by any Borrower;
(d) the
Borrower has been issued and is in compliance with, and to the extent required
by applicable Environmental Laws have timely applied to renew, all permits,
certificates, approvals, licenses and other authorizations required by
Environmental Laws;
(e) no
property now or previously owned, occupied or leased by the Borrower is listed
or, to the knowledge of any Authorized Officer, proposed for listing on any
federal or state list of sites requiring any investigation, monitoring,
remediation, or clean-up;
(f) there
are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned or leased by
the
Borrower;
(g) the
Borrower has not directly transported or directly arranged for the
transportation of any Hazardous Material to any location which is the subject
of
federal, state or local enforcement actions or other investigations which may
lead to claims against the Borrower for any remedial work, damage to natural
resources or personal injury;
(h) there
are no polychlorinated biphenyls or friable asbestos present at any property
now
owned or leased by the Borrower or, to the knowledge of any Borrower (after
due
inquiry) previously owned or leased by the Borrower; and
(i) no
conditions exist at, on or under any property now owned or leased by the
Borrower or, to the knowledge of the Borrower (after due inquiry) previously
owned or leased by the Borrower, which, with the passage of time, or the giving
of notice or both, would give rise to any liability under any Environmental
Law.
Section
6.13 Accuracy
of Information. None
of the factual information heretofore or contemporaneously furnished (other
than
projections and forward looking information) in writing to any Secured Party
by
or on behalf of the Borrower by its
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Section
6.14 Margin
Stock. No
proceeds of any Loans will be used to purchase or carry margin stock or
otherwise for a purpose which violates, or would be inconsistent with, Board
Regulation T, U or X.
Section
6.15 Foreign
Assets Control Regulations. None
of the requesting or borrowing of any Loans or the use of the proceeds thereof
of such will violate the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as
amended) (the “Trading With the Enemy Act”) or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) (the “Foreign Assets Control Regulations”) or any
enabling legislation or executive order relating thereto (which for the
avoidance of doubt shall include, but shall not be limited to (a) Executive
Order 13224 of September 21, 2001 Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed.
Reg.
49079 (2001)) (the “Executive Order”) and (b) the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Public Law 107-56)) (the “Patriot
Act”). Furthermore, the Borrower (a) is not and will not become a
“blocked person” as described in the Executive Order, the Trading With the Enemy
Act or the Foreign Assets Control Regulations and (b) does not knowingly engages
and will not knowingly engage in any dealings or transactions, or be otherwise
associated, with any such “blocked person”.
Section
6.16 Labor
Relations; Management Agreements. There
are no strikes, lockouts or other material labor disputes or grievances against
the Borrower, or, to the Borrower’s knowledge, threatened against or affecting
the Borrower, and no significant unfair labor practice, charges or grievances
are pending against the Borrower, or to the Borrower’s knowledge, threatened
against any of them before any Governmental Authority. The Borrower
is party to any collective bargaining agreement. There are no
Management Agreements.
Section
6.17 Insurance. All
premiums in respect of insurance maintained by or on behalf of the Borrower
have
been paid. The Borrower reasonably believes that the insurance
maintained by or on behalf of the Borrower is adequate and conforms to the
requirements set forth in Section 8.3.
Section
6.18 Collateral
Documents.
(a) The
Security Agreement is effective to create, in favor of the Agent, a legal,
valid
and enforceable security interest in the Collateral described in the Security
Agreement and, upon the filings of financing statements pursuant to the UCC,
constitutes a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in such Collateral which may
be
perfected by filing, in each case prior and superior in right to any other
Person, other than with respect to Liens expressly permitted by Section
10.3.
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(b) Any
Control Agreement is effective to create, in favor of the Agent, a legal, valid
and enforceable Lien on all of the Borrower’s right, title and interest in and
to the Deposit Accounts described therein and the proceeds thereof, and
constitute a Lien on, and security interest in, all right, title and interest
of
the Borrower in such Deposit Accounts and the proceeds thereof, in each case
prior and superior in right to any other Person, other than with respect to
the
rights of Persons expressly permitted by Section 10.3.
(c) The
Borrower hereby covenants to perform all of its obligations under the Lockbox
Agreement and the Intercreditor Agreement and direct all Lessees to make all
Contract Payments to the “Lockbox” and the “Lockbox Account” (as such terms are
defined in the Lockbox Agreement).
Section
6.19 Compliance
with OFAC Rules and Regulations.
The
Borrower (a) is not a Sanctioned Person, (b) does not have any of its assets
in
Sanctioned Countries, and (c) does not derive any of its operating income from
investments in, or transactions with Sanctioned Persons or Sanctioned
Countries. No part of the proceeds of any Loan will be used directly
or indirectly to fund any operations in, finance any investments or activities
in or make any payments to, a Sanctioned Person or a Sanctioned
Country.
ARTICLE
VII
FINANCIAL
INFORMATION AND NOTICES
The
Borrower will furnish, or cause to be furnished, to the Agent and the Lenders,
each of the following:
Section
7.1 Financial
Statements and Projections.
(a) Quarterly
Financial Statements. As
soon as available and in any event within sixty (60) days after the end of
each
of the first three (3) Fiscal Quarters of each Fiscal Year, unaudited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries,
as of the close of such fiscal quarter and unaudited consolidated statements
of
income, retained earnings and cash flows for the fiscal quarter then ended
and
that portion of the Fiscal Year then ended for the Borrower and its consolidated
Subsidiaries, including, without limitation,
the notes thereto, all in reasonable detail setting forth in comparative form
the corresponding figures for the preceding Fiscal Year and prepared by the
Borrower in accordance with GAAP and, if applicable, containing disclosure
of
the effect on the financial position or results of operations of any change
in
the application of accounting principles and practices during the period, and
certified by an Authorized Officer to present fairly in all material respects
the financial condition of the Borrower and its consolidated
Subsidiaries, and the results of operations of the Borrower and its consolidated
Subsidiaries, for the periods then ended, subject to normal year end
adjustments.
(b) Annual
Financial Statements. As
soon as available and in any event within one hundred twenty (120) days after
the end of each Fiscal Year, audited
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(c) Aging
Reports. Monthly,
on the twentieth (20th) day of
each
month, a monthly aging report for the prior month of (i) the total portfolio
of
Contracts serviced by the Borrower, in summary form, and of (ii) Contracts
which
are Collateral.
Section
7.2 Certificates.
(a) Compliance
Certificate. At
each time financial statements are delivered pursuant to Section 7.1(a) or
Section 7.1(b) hereof, a Compliance Certificate dated as of the date of the
related financial statements.
(b) Borrowing
Base Certificate. Monthly,
on the twentieth (20th) day of
each
month, a Borrowing Base Certificate as of the last date of the immediately
preceding month.
Section
7.3 Other
Reports.
(a) Promptly
upon receipt thereof, copies of all reports, if any, submitted to the Borrower
or its board of directors by its independent public accountants in connection
with their auditing function, including, without limitation, any management
letters or reports and any management responses thereto;
(b) promptly
upon their becoming available, copies of such other financial statements,
reports, notices, prospectuses and registration statements, if any, as any
Borrower may be required to publicly file with the IRS, the SEC, any national
securities exchange
or any similar or corresponding governmental commission, department or agency
substituted therefor, or any similar or corresponding governmental commission,
department, board, bureau, or agency, federal or state; and
(c) tax
returns and such other information regarding the operations, business affairs
and financial condition of the Borrower or the Collateral as the Agent or any
Lender may reasonably request.
Section
7.4 Notice
of Litigation and Other Matters.
Promptly (but in no event later than five (5) Business Days after the Borrower
obtains knowledge thereof) telephonic and written notice of:
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(a) the
commencement of any proceedings and investigations by or before any Governmental
Authority, and all actions and proceedings in any court or before any arbitrator
against or involving the Borrower or any of its properties, assets or
businesses, which could reasonably be believed to create a potential liability
or judgment in excess of $1,000,000;
(b) any
notice of any violation received by the Borrower from any Governmental Authority
including, without limitation, any notice of violation of any Environmental
Law;
(c) any
labor controversy that has resulted in, or threatens to result in, a strike
or
other work action against the Borrower;
(d) any
attachment, judgment, lien, levy or order exceeding $1,000,000 that may be
assessed against or threatened against the Borrower;
(e) (i) the
institution of any steps by any Person to terminate any Pension Plan,
(ii) the failure to make a required contribution to any Pension Plan if
such failure is sufficient to give rise to a Lien under Section 302(f) of
ERISA, (iii) the taking of any action with respect to a Pension Plan which
could result in the requirement that the Borrower furnish a bond or other
security to the PBGC or such Pension Plan, or (iv) the occurrence of any
event with respect to any Pension Plan which could result in the incurrence
by
the Borrower of any material liability, fine or penalty, notice thereof and
copies of all documentation relating thereto;
(f) any
change (i) in the Borrower’s corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of the Borrower’s chief executive office, its
principal place of business, any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office
or
facility), (iii) in the Borrower’s identity or corporate structure, (iv) in the
Borrower’s Federal Taxpayer Identification Number or (v) in the Borrower’s
jurisdiction of organization (and the Borrower agrees not to effect or permit
any change referred to in the preceding sentence unless all filings have been
made under the UCC or otherwise that are required in order for the Agent to
continue at all times following such change to have a valid, legal and perfected
security interest in all the Collateral);
(g) if
any material portion of the Collateral is damaged or destroyed;
(h) any
change of any Authorized Officer;
(i) any
condition or event that constitutes a Default or Event of Default, written
notice thereof specifying the nature and duration thereof and the action being
or proposed to be taken with respect thereto;
(j) any
Disposition;
(k) any
default under a Servicing Agreement; and
(l) any
Material Adverse Effect.
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Section
7.5 Accuracy
of Information. All
written information, reports, statements and other papers and data furnished
by
or on behalf of the Borrower or any of its Subsidiaries to the Agent or any
Lender (other than financial forecasts) whether pursuant to this Article VII
or
any other provision of this Agreement shall be, at the time the same is so
furnished, complete and correct in all material respects to the extent necessary
to give the Agent or any Lender complete, true and accurate knowledge of the
subject matter based on the Borrower’s knowledge thereof.
ARTICLE
VIII
AFFIRMATIVE
COVENANTS
The
Borrower agrees with each Lender and the Agent that it will, and, where
required, will cause its consolidated Subsidiaries to, perform or cause to
be
performed the obligations set forth below.
Section
8.1 Maintenance
of Existence; Compliance with Laws, etc. The
Borrower will:
(a) except
as otherwise permitted by Section 10.7, preserve and maintain its legal
existence; and
(b) comply
in all material respects with all applicable laws, rules, regulations and
orders, including the payment (before the same become delinquent), of all
federal, state and other material Taxes and assessments imposed upon it or
upon
its property except to the extent being diligently contested in good faith
by
appropriate proceedings and for which adequate reserves in accordance with
GAAP
have been set aside on the books of the Borrower.
Section
8.2 Maintenance
of Properties. The
Borrower will maintain, preserve, protect and keep its properties in good
repair, working order and condition (ordinary wear and tear excepted), and
make
necessary repairs, renewals and replacements so that the business carried on
by
the Borrower may be properly conducted at all times, unless the Borrower
determines in good faith that the continued maintenance of such property is
no
longer economically desirable.
Section
8.3 Insurance. The
Borrower will:
(a) maintain
with financially sound and reputable insurance companies, insurance, with
respect to its properties and business, against loss or damage by fire and
other
insurance hazards (including extended coverage, property damage, worker’s
compensation, public liability and business interruption insurance) and against
other risks (including errors and omissions) of the kind and in such amount
customarily insured against by companies in the same or similar businesses
operating in the same or similar locations, and all insurance required to be
maintained under any other Credit Document;
(b) if
any portion of the Borrower’s property that is subject to a mortgage in favor of
the Agent is located in an area identified by the Federal Emergency Management
Agency or any successor thereto as an area having special flood hazards pursuant
to the National Flood Insurance Act, maintain with financially sound and
reputable insurance companies, flood insurance with policy limits and
deductibles in such amounts as are typically insured against in the same general
area, by Persons of comparable size engaged in the same or similar business;
and
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(c) maintain
all other insurance as may be required under the laws of any state or
jurisdiction in which it or they may be engaged in business
(d) deliver
(i) not later than seven (7) days after the Closing Date and annually thereafter
an original certificate of insurance signed by the Borrower’s independent
insurance broker describing and certifying as to the existence of the insurance
on the properties and assets of the Borrower and its consolidated Subsidiaries
required to be maintained by this Agreement and (ii) at the reasonable request
of the Agent from time to time (A) a summary schedule indicating all insurance
then in force with respect to the Borrower or (B) copies of the policies
evidencing such insurance coverage. Each insurance policy shall
provide for at least thirty (30) days’ prior written notice to the Agent of any
termination of or proposed cancellation, nonrenewal or material modification
of
such policy. All policies delivered pursuant to this Section shall be
in addition to any requirements to maintain specific types of insurance
contained in any other Credit Document.
Section
8.4 Visitations,
Books and Records, Field Audits. The
Borrower will, and will cause each of its consolidated Subsidiaries
to:
(a) keep
true books and records in which full, true and correct entries will be made
in
accordance with GAAP and maintain adequate accounts and reserves for all taxes
(including income taxes), all depreciation, depletion, obsolescence and
amortization of its properties, all contingencies, and all other reserves,
and
maintain computerized systems capable of (i) tracking the Eligible Contracts,
enabling the Borrower at all times to identify the same by Lessee and (ii)
enabling the Borrower to calculate the Net Present Value and Original Net
Equipment Cost;
(b) permit
the Agent, any Lender or any of their respective representatives, at reasonable
times and intervals upon reasonable notice to the Borrower, to visit the
Borrower’s offices, to discuss the Borrower’s financial matters with its
officers and employees, and its independent public accountants (and the Borrower
hereby authorizes such independent public accountant to discuss the Borrower’s
financial matters with the Agent, any Lender
or
any of their respective representatives) and to examine (and photocopy extracts
from) any of its books and records provided that no more than one such visit
shall occur during any Fiscal Year if no Event of Default has occurred and
is
continuing;
(c) shall
assist in any collateral field audit performed (by any accounting firm
reasonably acceptable to the Agent) at the request of the Agent, which audit
shall be in form and substance reasonably satisfactory to Agent, the cost of
which shall be paid by the Borrower; provided that the Borrower shall be
responsible for the cost of no more than one such audit performed during any
Fiscal Year if no Event of Default has occurred and is continuing;
and
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(d) pay
any fees of such independent public accountant or auditor incurred in connection
with the Agent’s and the Lenders’ exercise of its rights pursuant to this
Section, and reimburse all reasonable out-of-pocket costs of such visits of
the
Agent.
Section
8.5 Environmental
Law Covenant. The
Borrower will, except in each case where the failure to do so could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect:
(a) occupy,
use and operate all of its and their facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits, approvals,
certificates, licenses and other authorizations required by Environmental Laws
in effect and remain in material compliance therewith, and handle all Hazardous
Materials in compliance with, all applicable Environmental Laws;
and
(b) promptly
notify the Agent and provide copies upon receipt of all written claims,
complaints, notices or inquiries relating to the condition of its facilities
and
properties in respect of, or as to compliance with, Environmental Laws and
promptly resolve any non-compliance with Environmental Laws and keep its
property free of any Lien imposed by any Environmental Law.
Section
8.6 Use
of Proceeds. The
Borrower will apply the proceeds of the Loans to finance the purchase of
Eligible Contracts.
Section
8.7 Future
Subsidiaries, Security, etc. The
Borrower will not create or acquire any Subsidiaries or enter into any
joint-ventures. From time to time, the Borrower will, at their cost
and expense, promptly secure the Obligations by pledging or creating, or causing
to be pledged or created, perfected security interests with respect to such
of
its assets and properties as the Agent or the Required Lenders shall designate
pursuant to the terms of this Agreement (it being understood that it is the
intent of the parties that the Obligations shall be secured by all of the issued
and outstanding Capital Securities of any Subsidiaries of the Borrower and
substantially all the assets of the Borrower, including real and personal
property acquired subsequent to the Closing Date). Such Liens will be
created under the Credit Documents in form and substance reasonably satisfactory
to the Agent, and the Borrower shall deliver or cause to be delivered to the
Lenders all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Agent shall reasonably request
to
evidence compliance with this Section.
Section
8.8 Procedures
to Ensure Information Dissemination. The
Borrower will, and will cause each of its consolidated Subsidiaries to,
establish and maintain adequate policies and procedures to ensure that at least
one Authorized Officer is promptly informed of all matters referenced in this
Agreement for which the Secured Parties are relying on such Authorized Officer’s
knowledge with respect to the obligations set forth in Sections 6.13 and Article
VII.
Section
8.9 Further
Assurances.
(a) The
Borrower will, and will cause each Subsidiary which becomes a party hereto,
to
execute any and all further documents, financing statements, agreements and
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(b) If
any assets (including any real property or improvements thereto or any interest
therein) are acquired by the Borrower after the Closing Date (other than assets
constituting Collateral under the Security Agreement that become subject to
the
Lien of the Security Agreement upon acquisition thereof), the Borrower will
notify the Agent thereof, and, if requested by the Agent or the Required
Lenders, the Borrower will cause such assets to be subjected to a Lien securing
the Obligations applicable, and will take such actions as shall be necessary
or
reasonably requested by the Agent to grant and perfect such Liens, including
actions described in clause (a) of this Section, all at the expense of the
Borrower.
(c) If
any Borrower opens or establishes any Deposit Account with any Person (other
than with respect to any Deposit Account with the Agent), such Borrower shall
subject such Deposit Account to a Control Agreement to the extent required
by
the Security Agreement.
(d) Each
Contract acquired by the Borrower shall be acquired pursuant to an Assignment
Agreement.
(e) The
Borrower shall enter into and maintain a Servicing Agreement, in form and
substance reasonably satisfactory to the Agent, with respect to the
Contracts.
Section
8.10 Maintenance
of Assets. With
respect to the Contracts and related assets owned or serviced by the Borrower,
the Borrower shall:
(a) invoice
and collect from each Lessee all Lease Payments required to be paid by such
Lessee in such manner and to the same extent as the Borrower does with respect
to similar contracts held for their own account;
(b) fulfill
all of the obligations of the Borrower and any of the ongoing responsibilities
(if any) of the lessor or lender under a Contract and exercise all rights of
the
Borrower with respect to the Contracts and the Equipment;
(c) maintain
with respect to each Contract and each piece of Equipment, and with respect
to
each payment by each Lessee and compliance by each Lessee with the provisions
of
each Contract, complete and accurate records in such manner and to the same
extent as the Borrower does with respect to similar contracts held for their
own
accounts;
(d) execute,
deliver, report and file any and all tax returns with respect to sales, use,
personal property and other taxes (other than corporate income tax returns)
and
any and all notices, reports, licensing applications or other required filings
required to be filed in any jurisdiction with respect to any Equipment and
any
and all filings required with respect to such Equipment;
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(e) apply
for and maintain (or cause to be applied for and maintained) all licenses,
permits, registrations, authorizations and other governmental items necessary
for the Borrower to acquire, hold, manage and sell the Equipment, or enforce
or
collect Contracts, in each jurisdiction where the failure to maintain such
licenses, permits, registrations, authorizations or governmental items could,
individually or in the aggregate, reasonably be expected to cause a Material
Adverse Effect;
(f) pay
or cause to be paid all applicable taxes properly due and owing in connection
with the Contracts and Equipment;
(g)
enforce and negotiate the terms of any Contract in accordance with the terms
of
the Servicing Standard;
(h) repossess
and remarket any Equipment in accordance with the terms of the Servicing
Standard;
(i) negotiate
and maintain any insurance required by the Servicing Standard;
(j)
investigate, consistent with its past practices and policies and at its own
expense, the facts and circumstances surrounding each casualty or Event of
Loss
with respect to any Equipment, collect or arrange for payment from the
appropriate Lessee or third party and process all payment requests under the
insurance policies with respect to such Equipment;
(k) in
connection with its performance of the responsibilities and obligations, and
exercise of rights, under a Contract as lender, minimize any abatement,
reduction, recoupment, setoff, defense or counterclaim by the related
Lessee;
(l) fully
perform all obligations under the Contracts for which the nonperformance of
such
obligations would create a setoff or counterclaim right by the applicable
Lessee; and
(m) maintain,
in the custody of LEAF Financial, a Contract File with respect to each
Contract.
ARTICLE
IX
[INTENTIONALLY
OMITTED]
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ARTICLE
X
NEGATIVE
COVENANTS
The
Borrower covenants and agrees with each Lender and the Agent that the Borrower
will, and will cause its consolidated Subsidiaries to, perform or cause to
be
performed the obligations set forth below.
Section
10.1 Business
Activities. The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
engage in any business activity except for equipment leasing or lending and
those related business activities engaged in on the date of this Agreement
(and
activities reasonably incidental, complementary or substantially similar
thereto).
Section
10.2 Indebtedness. The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
create, incur, assume or permit to exist any Indebtedness, other
than:
(a) Indebtedness
in respect of the Obligations;
(b) Indebtedness
existing as of the Closing Date which is identified in Schedule 10.2 hereto,
together with refinancings, renewals or replacements of any such Indebtedness
in
the manner permitted under Section 10.5 hereof;
(c) unsecured
Indebtedness (i) for trade payables incurred in the ordinary course of business
of the Borrower and their Subsidiaries and (ii) in respect of performance,
surety or appeal bonds provided in the ordinary course of business, but
excluding (in each case), Indebtedness incurred through the borrowing of money
or Contingent Liabilities in respect thereof;
(d) Indebtedness
of the Borrower comprised of Hedging Obligations permitted pursuant to
Section 10.13;
(e) Capitalized
Lease Liabilities in an aggregate amount at any time outstanding not to exceed
$100,000;
(f) Purchase
money obligations in an aggregate amount at any time not to exceed $100,000;
and
(g) any
other unsecured Indebtedness in an aggregate amount at any time not to exceed
$100,000.
provided,
however, that no Indebtedness otherwise permitted by clause (c), (e) or (f)
above shall be assumed or otherwise incurred if a Default has occurred and
is
then continuing or would result therefrom.
Section
10.3 Liens. The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
create, incur, assume or permit to exist any Lien upon any of its property
(including Capital Securities of any Person), revenues, assets or other
Collateral, whether now owned or hereafter acquired, except:
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(a) Liens
securing payment of the Obligations;
(b) Liens
existing as of the Closing Date and disclosed in Schedule 10.3 hereto securing
Indebtedness described in Section 10.2(c); provided, that no such Lien shall
encumber any additional property (other than proceeds, products or replacements
of such property) not already securing such Indebtedness on the Closing
Date;
(c) Liens
securing Indebtedness permitted to be incurred under Sections 10.2(e) and (f);
provided, that (i) such Lien is granted within 60 days after such Indebtedness
is incurred, (ii) the Indebtedness secured thereby does not exceed the lesser
of
the cost or the fair market value of the applicable property, improvements
or
equipment at the time of such acquisition (or construction) or lease and (iii)
such Lien secures only the assets and the proceeds, products or replacements
of
such assets that are the subject of the Indebtedness referred to in such
clause;
(d) Liens
in favor of carriers, warehousemen, suppliers, repairmen, mechanics,
materialmen, landlords and other similar liens granted in the ordinary course
of
business for amounts not overdue for a period of more than 60 days or being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves or other appropriate provision in accordance with GAAP shall
have been made therefor;
(e) Liens
incurred or pledges or deposits made in the ordinary course of business in
connection with worker’s compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, bids, trade contracts, leases, statutory bonds,
performance bonds or other similar obligations (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety and appeal bonds or performance bonds;
(f) judgment
Liens which do not otherwise result in an Event of Default;
(g) easements,
rights-of-way, zoning restrictions, minor defects or irregularities in title
and
other similar charges or encumbrances, in each case, not interfering in any
material respect with the ordinary course of business of the
Borrower;
(h) Liens
for taxes, assessments or other governmental charges or levies not at the time
delinquent or thereafter payable without penalty or being diligently contested
in good faith by appropriate proceedings and for which adequate reserves or
other appropriate provisions in accordance with GAAP shall have been
made;
(i) Liens
arising from precautionary UCC financing statements regarding operating leases,
provided that such Lien is limited to the equipment leased;
(j) Liens
of a collecting bank under UCC 4-210 on items in the course of
collection;
(k) statutory
liens under UCC Article 2; and
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(l) bank
set-off rights against Deposit Accounts.
Section
10.4 Investments. The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
purchase, make, incur, assume or permit to exist any Investment in any other
Person, except:
(a) Investments
existing on the Closing Date and identified in Schedule 10.4
hereto;
(b) Cash
Equivalent Investments;
(c) Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each
case
in the ordinary course of business;
(d) Investments
constituting (i) accounts receivable arising, (ii) trade debt granted,
or (iii) deposits made in connection with the purchase price of goods or
services, in each case in the ordinary course of business;
(e) Investments
consisting of any deferred portion of the sales price received by the Borrower
or any Subsidiary in connection with any Disposition permitted under
Section 10.8;
(f) without
duplication, Investments to the extent permitted as Indebtedness pursuant to
Section 10.2(e); and
(g) Investments
by way of the acquisition of assets pursuant to Financed
Acquisitions.
Section
10.5 Restricted
Payments.
The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
declare, make or permit, or agree to pay or make, directly or indirectly, any
Restricted Payment, except for dividends (i) payable to the Borrower, and (ii)
payable by the Borrower solely in shares of any class of its common
stock.
Section
10.6 Issuance
of Capital Securities. The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
(a) issue any Capital Securities that, by their terms (or by the terms of any
securities into which they are convertible or for which they are exchangeable),
or upon the happening of any event, mature or are subject to mandatory
redemption,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder thereof, in whole or in part, on or prior to the date that is
six
months after the Termination Date (whether for value or otherwise) or (b) become
liable in respect of any obligation (contingent or otherwise) to purchase,
redeem, retire, acquire or make any other payment prior to at least six months
after the Termination Date in respect of any Capital Securities of the Borrower
or any option, warrant or other right to acquire any such Capital
Securities.
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Section
10.7 Consolidation,
Merger, etc. The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
liquidate or dissolve, consolidate with, or merge into or with, any other
Person, or purchase or otherwise acquire all or substantially all of the assets
or Capital Securities of any Person (or any division thereof).
Section
10.8 Sale
of Assets. The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
convey, sell, lease, assign, transfer or otherwise dispose of, more than ten
percent (10%) of their assets, business or property (whether now owned or
hereafter acquired, including, without limitation, Contracts and accounts
receivable) during any consecutive twelve (12) month period, or issue or sell
any shares of any such Person’s Subsidiary’s common stock to any Person other
than the Borrower, except: (a) a discount of or an adjustment to any
account receivable in accordance with past practices; (b) the sale or other
disposition for fair market value, and in the ordinary course of business,
of
obsolete or worn out property, or other property not necessary for operations,
and (c) sales of Contracts and the related Equipment, for fair market value,
but
only to the extent that such sales are without any recourse, direct or indirect,
to the Borrower or any consolidated Subsidiary thereof.
Section
10.9 Transactions
with Affiliates. Except
as set forth on Schedule 10.9 and excluding transactions, payments or
distributions otherwise expressly permitted hereunder, the Borrower will not
and
will not permit any of its consolidated Subsidiaries to, enter into or cause
or
permit to exist any arrangement, transaction or contract (including for the
purchase, lease or exchange of property or the rendering of services) with
any
Affiliate of the Borrower, unless such arrangement, transaction or contract
is
(a) on fair and reasonable terms no less favorable to the Borrower or such
Subsidiary than it could obtain in an arm’s-length transaction with a Person
that is not an Affiliate and (b) of the kind which would be entered into by
a
prudent Person in the position of the Borrower or such Subsidiary with a Person
that is not one of its Affiliates, and the Agent receives prompt written notice
of such transaction.
Section
10.10 Restrictive
Agreements. The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
enter into or permit to exist any agreement prohibiting:
(a) the
creation or assumption of any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired to the extent any such negative pledge
would prohibit the creation or first priority perfection of any Liens securing
payment of the Obligations;
(b) the
ability of the Borrower to amend or otherwise modify any Credit Document;
or
(c) the
ability of any Subsidiary to make any payments, directly or indirectly, to
the
Borrower, including by way of dividends, advances, repayments of loans,
reimbursements of management and other intercompany charges, expenses and
accruals or other returns on investments.
Section
10.11 Sale
and Leaseback. The
Borrower will not directly or indirectly enter into any agreement or
arrangement, as a lessee, providing for the sale or transfer by it of any
property (now owned or hereafter acquired) to a Person and the subsequent lease
or rental of such property or other similar property from such
Person.
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Section
10.12 Amendment
to Material Documents.
(a) The
Borrower will not, and will not permit any of its consolidated Subsidiaries
to,
amend, supplement or otherwise modify any: (i) Organizational Document; (ii)
Assignment Agreement; or (iii) Servicing Agreement, in any manner materially
adverse to the interests, rights or obligations of any Secured
Party.
(b) The
Borrower will not, and will not permit any of their consolidated Subsidiaries
to, agree to or permit any amendment, modification or waiver of any provision
of
any agreement, document, instrument or note governing or evidencing the
Subordinated Debt if the effect of such amendment, modification or waiver is
to:
(i) increase the interest rate on such Subordinated Debt or change (to earlier
dates) the dates upon which principal and interest are due thereon; (ii) alter
the redemption, prepayment or subordination provisions thereof; (iii) create
any
covenant thereunder or grant any collateral therefor; or (iv) otherwise confer
additional rights upon the holders thereof which individually or in the
aggregate would be adverse to the Borrower or any such consolidated Subsidiary
or to the any Secured Parties.
Section
10.13 Hedging
Obligations. The
Borrower will not enter into any Hedging Obligations other than Hedging
Obligations entered into in the ordinary course of business to manage interest
rate risk of the Borrower and not for speculative purposes.
Section
10.14 Accounting
Changes. The
Borrower will not make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change their Fiscal
Year.
Section
10.15 Upstream
Limitations.The
Borrower will not, and will not permit any of its consolidated Subsidiaries,
to
enter into any agreement, contract, or arrangement (other than the Credit
Documents) restricting the ability of any of its Subsidiaries to pay or make
dividends or distributions in cash or kind, to make loans, advances, or other
payments of whatsoever nature or to make transfers or distributions of all
or
any part of their assets to the Borrower or to any Subsidiary of the
Borrower.
ARTICLE
XI
EVENTS
OF DEFAULTS AND REMEDIES
Section
11.1 Events
of Default. Each
of the following events or occurrences described in this Article shall
constitute an “Event of Default”:
(a) Non-Payment
of Obligations. The
Borrower shall fail to make any payment or prepayment of any principal of any
Loan when due or any payment of interest on any Loan or any fee described in
Article III or any other monetary Obligation, within three (3) Business Days
of
when due.
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(b) Breach
of Warranty. Any
representation or warranty of the Borrower made or deemed to be made in any
Credit Document (including any certificates delivered pursuant to
Article V) is or shall be incorrect when made or deemed to have been made
in any material respect.
(c) Non-Performance
of Certain Covenants and Obligations. The
Borrower shall default in the due performance or observance of any of its
obligations under Article VII, Section 8.1, Section 8.7, Section 8.11 or
Article X.
(d) Non-Performance
of Other Covenants and Obligations. The
Borrower shall default in the due performance and observance of any agreement,
covenant or obligation contained in any Credit Document executed by it (other
than those described in Section 11.1(a)-(c) above), and, to the extent
susceptible to remedy, such default shall continue unremedied for a period
of
30 days after the earlier of (i) the date the Borrower is required pursuant
to the Credit Documents or otherwise to give notice thereof to the Agent
(whether or not such notice is actually given), or (ii) the date notice thereof
shall have been given to the Borrower by the Agent or any Lender.
(e) Default
on Other Indebtedness. A
default shall occur in the payment of an amount when due (subject to any
applicable grace period), whether by acceleration or otherwise, of any
Indebtedness (other than Indebtedness described in Section 11.1(a)) of the
Borrower or any of its Subsidiaries, having an outstanding principal amount,
individually or in the aggregate, in excess of $1,000,000, or a default shall
occur in the performance or observance of any obligation or condition with
respect to such Indebtedness if the effect of such default is to accelerate
the
maturity of any such Indebtedness or such default shall continue unremedied
for
any applicable period of time sufficient to permit the holder or holders of
such
Indebtedness, or any trustee or agent for such holders, to cause or declare
such
Indebtedness to become due and payable or to require such Indebtedness to be
prepaid, redeemed, purchased or defeased, or require an offer to purchase or
defease such Indebtedness to be made, prior to its expressed maturity, in each
case, regardless of whether such default is waived, or such right is exercised,
by such holder (or trustee or agent), unless the effect of such waiver is to
terminate permanently the right of such holder (or trustee or agent) to
accelerate the maturity thereof or demand cash collateral in respect thereof
on
account of such default.
(f) Judgments. Any
judgment or order for the payment of money individually or in the aggregate
in
excess of $1,000,000 (exclusive of any amounts to the extent covered by
insurance (less any applicable deductible) and as to which the insurer has
acknowledged its responsibility to cover such judgment or order) shall be
rendered against the Borrower or any of its Subsidiaries and such judgment
shall
not have been vacated or discharged or stayed or bonded pending appeal within
30 days (or such longer period during which execution of the same shall
have been stayed) after the entry thereof or enforcement proceedings shall
have
been commenced by any creditor upon such judgment or order.
(g) Pension
Plans. Any
of the following events shall occur with respect to any Pension
Plan:
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(i) the
institution of any steps by the Borrower, any member of its Controlled Group
or
any other Person to terminate a Pension Plan if, as a result of such
termination, any Borrower or any such member could be required to make a
contribution to such Pension Plan, or could reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $1,000,000;
or
(ii) a
contribution failure occurs with respect to any Pension Plan sufficient to
give
rise to a Lien under section 302(f) of ERISA.
(h) Change
in Control. Any
Change in Control shall occur.
(i) Bankruptcy,
Insolvency, etc. The
Borrower shall:
(i) become “insolvent”
as defined by Section 101(32) of the United States Bankruptcy Code, 11 U.S.C.
§101(32)or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, debts as they become due;
(ii) apply
for, consent to, or acquiesce in the appointment of a trustee, receiver,
sequestrator or other custodian for any substantial part of the property of
any
thereof, or make a general assignment for the benefit of creditors;
(iii) in
the absence of such application, consent or acquiescence in or permit or suffer
to exist the appointment of a trustee, receiver, sequestrator or other custodian
for a substantial part of the property of any thereof, and such trustee,
receiver, sequestrator or other custodian shall not be discharged within
60 days; provided, that the Borrower hereby expressly authorizes each
Secured Party to appear in any court conducting any relevant proceeding during
such 60 day period to preserve, protect and defend their rights under the Credit
Documents;
(iv) permit
or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency
law
or any dissolution, winding up or liquidation proceeding, in respect thereof,
and, if any such case or proceeding is not commenced by the Borrower, such
case
or proceeding shall be consented to or acquiesced in by the Borrower, or shall
result in the entry of an order for relief or shall remain for 60 days
undismissed; provided, that the Borrower hereby expressly authorizes each
Secured Party to appear in any court conducting any such case or proceeding
during such 60 day period to preserve, protect and defend their rights under
the
Credit Documents; or
(v) take
any action authorizing, or in furtherance of, any of the foregoing.
(j) Impairment
of Security, etc. Any
Credit Document or any Lien granted thereunder (except Liens released in
accordance with the terms of the Credit Documents) shall, in whole or in part,
terminate, cease to be in effect or cease to be the legally valid, binding
and
enforceable obligation of the Borrower; the Borrower shall, directly or
indirectly, contest in any manner such effectiveness, validity, binding nature
or enforceability; or, except as permitted under any Credit Document, any Lien
on collateral with a value singly or in the aggregate
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(k) Uninsured
Damage
. The
occurrence of any uninsured damage to or loss, theft or destruction of, any
assets of the Borrower or any of its Subsidiaries and such damage, loss, theft
or destruction shall exceed $1,000,000 in the aggregate at any
time.
(l) Servicer
Default. The occurrence of any Servicer Default.
Section
11.2 Action
if Bankruptcy. If
any Event of Default described in Section 11.1(i) shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations (other than Secured Hedging Obligations) shall automatically be
and
become immediately due and payable, without notice or demand to any
Person.
Section
11.3 Action
if Other Event of Default. If
any Event of Default (other than any Event of Default described in Section
11.1(i)) shall occur for any reason, whether voluntary or involuntary, and
be
continuing, the Agent, upon the direction of the Required Lenders, shall by
notice to the Borrower declare all or any portion of the outstanding principal
amount of the Loans and other Obligations (other than Secured Hedging
Obligations) to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such Loans
and
other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate.
Section
11.4 Application
of Proceeds. Following
an Event of Default and acceleration of the Obligations, the Agent shall apply
proceeds of Collateral as follows:
First,
to payment of that portion of the Obligations constituting fees, expenses
(including, without limitation, expenses relating to attorneys’ fees and other
professionals’ fees), indemnities and other amounts due to the Agent in its
capacity as such;
Second,
to payment of that portion of the Obligations constituting accrued and unpaid
interest and accrued and unpaid commitment fees or other fees, ratably amongst
the Secured Parties in proportion to the respective amounts described in this
clause “Second” due to them;
Third,
to payment of that portion of the Obligations constituting unpaid principal
of
any Loans, ratably amongst the Lenders in proportion to the respective amounts
described in this clause “Third” due to them;
Fourth,
to payment of all other Obligations, ratably amongst the Secured Parties in
proportion to the respective amounts described in this clause “Fourth” due to
them; and
Finally,
the balance, if any, after all of the Obligations have been satisfied, to the
Borrower or as otherwise required by law.
For
purposes of this Section 11.4, if there are Obligations arising out of Secured
Hedging Agreements, the Agent shall determine whether such obligations are
most
appropriately
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characterized
as interest, principal, fees or other and shall add those obligations to the
appropriate category above. Any determination of the Agent in this
regard shall be conclusive absent manifest error, provided, however, that
the characterization of such obligations shall be the same with respect to
all
Secured Parties.
ARTICLE
XII
THE
AGENT
Section
12.1 Actions. Each
Lender hereby irrevocably appoints National City as its Agent. Each
Lender authorizes the Agent to act on behalf of such Lender under each Credit
Document and, in the absence of other written instructions from the Required
Lenders received from time to time by the Agent (with respect to which the
Agent
agrees that it will comply, except as otherwise provided in this Section or
as
otherwise advised by counsel in order to avoid contravention of
applicable law), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof, together with such powers as may be reasonably incidental
thereto. Each Lender hereby indemnifies (which indemnity shall
survive any termination of this Agreement) the Agent,
pro rata according to such Lender’s proportionate Total
Exposure Amount, from and against any and all liabilities, obligations, losses,
damages, claims, costs or expenses of any kind or nature whatsoever which may
at
any time be imposed on, incurred by, or asserted against, the Agent in any
way
relating to or arising out of any Credit Document, including reasonable
attorneys’ fees, and as to which the Agent is not reimbursed by the Borrower;
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final proceeding
to have resulted from the Agent’s gross negligence or willful
misconduct. The Agent shall not be required to take any action under
any Credit Document, or to prosecute or defend any suit in respect of any Credit
Document, unless it is indemnified hereunder to its satisfaction. If
any indemnity in favor of the Agent shall be or become, in the Agent’s
determination, inadequate, the Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
Section
12.2 Funding
Reliance, etc. Unless
the Agent shall have been notified in writing by any Lender by 5:00 p.m. on
the Business Day prior to the date of any Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Agent may assume that such Lender
has made such amount available to the Agent and, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If
and to the extent that such Lender shall not have made such amount available
to
the Agent, when all conditions to borrowing have been satisfied such Lender
and
the Borrower severally agree to repay the Agent forthwith within three (3)
Business Days of demand such corresponding amount together with interest
thereon, for each day from the date the Agent made such amount available to
the
Borrower to the date such amount is repaid to the Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing (in the case of the
Borrower) and (in the case of a Lender), at the Federal Funds Rate for the
first
two (2) Business Days after which such amount has not been repaid, and
thereafter at the interest rate applicable to Loans comprising such
Borrowing.
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Section
12.3 Exculpation. Neither
the Agent nor any of its respective directors, officers, employees or agents
shall be liable to any Lender for any action taken or omitted to be taken by
it
under any Credit Document, or in connection herewith or therewith, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of any Credit Document,
nor for the creation, perfection or priority of any Liens purported to be
created by any of the Credit Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security,
nor
to make any inquiry respecting the performance by the Borrower of its
Obligations, except, in each case, to the extent determined by a court of
competent jurisdiction in a final proceeding to have resulted from their own
gross negligence or willful misconduct. Any such inquiry which may be
made by the Agent shall not obligate it to make any further inquiry or to take
any action. The Agent shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Agent believes to be genuine and to have been
presented by a proper Person.
Section
12.4 Successor. The
Agent may resign as such at any time upon at least 10 days’ prior notice to
the Borrower and the Lenders. If the Agent at any time shall resign,
the Required Lenders may appoint another Lender as a successor Agent (with,
so
long as no Default or Event of Default has occurred and is continuing, the
consent of the Borrower, provided that the resignation of the Agent is not
contingent upon such consent), which Lender, upon such appointment (and all
applicable consents), thereupon shall become the Agent hereunder. If
no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Agent’s giving notice of resignation, then the retiring Agent may, on behalf of
the Lenders, appoint a successor Agent, which shall be one of the Lenders or
a
commercial banking institution organized under the laws of the United States
(or
any State thereof) or a United States branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least $250,000,000;
provided, however, that if, such retiring Agent is unable to find a commercial
banking institution which is willing to accept such appointment and which meets
the qualifications set forth above, the retiring Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall assume and perform
all of the duties of the Agent hereunder until such time, if any, as the
Required Lenders appoint a successor as provided for above. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall be entitled to receive from the retiring Agent such
documents of transfer and assignment as such successor Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Credit
Documents. After any retiring Agent’s resignation hereunder as the
Agent, the provisions of this Article XII shall inure to its benefit as to
any
actions taken or omitted to be taken by it while it was the Agent under the
Credit Documents, and Section 13.3 and Section 13.4 shall continue to inure
to
its benefit.
Section
12.5 Loans
by Agent. Agent
shall have the same rights and powers with respect to (x) the Loans made by
it or any of its Affiliates, and (y) the Notes held by it or any of its
Affiliates as any other Lender and may exercise the same as if it were not
Agent. Agent and each of its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower
or
any Subsidiary or Affiliate of the Borrower as if Agent were not Agent
hereunder.
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Section
12.6 Credit
Decisions. Each
Lender acknowledges that it has, independently of the Agent and each other
Lender, and based on such Lender’s review of the financial information of the
Borrower, the Credit Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitment. Each Lender also acknowledges that
it will, independently of the Agent and each other Lender, and based on such
other documents, information and investigations as it shall deem appropriate
at
any time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under
the
Credit Documents.
Section
12.7 Reliance
by Agent. The
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by
or
on behalf of the proper Person, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. As
to any matters not expressly provided for by the Credit Documents, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Required
Lenders or all of the Lenders as is required in such circumstance, and such
instructions of such Lenders and any action taken or failure to act pursuant
thereto shall be binding on all Secured Parties. For purposes of
applying amounts in accordance with this Section, the Agent shall be entitled
to
rely upon any Secured Party that has entered into a Secured Hedging Agreement
for a determination (which such Secured Party agrees to provide or cause to
be
provided upon request of each Agent) of the outstanding Obligations owed to
such
Secured Party under any Secured Hedging Agreement. Unless it has
actual knowledge evidenced by way of written notice from any such Secured Party
and the Borrower to the contrary, the Agent, in acting in such capacity under
the Credit Documents, shall be entitled to assume that no Secured Hedging
Agreements or Obligations in respect thereof are in existence or
outstanding.
Section
12.8 Defaults. The
Agent shall not be deemed to have knowledge or notice of the occurrence of
a
Default unless the Agent has received a written notice from a Lender or the
Borrower specifying such Default and stating that such notice is a “Notice of
Default”. In the event that the Agent receives such a notice of the
occurrence of a Default, the Agent shall give prompt notice thereof to the
Lenders. The Agent shall (subject to Section 13.1) take such action
with respect to such Default as shall be directed by the Required Lenders;
provided, that unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or refrain
from
taking such action, with respect to such Default as it shall deem advisable
in
the best interest of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Required Lenders or all
Lenders.
ARTICLE
XIII
MISCELLANEOUS
Section
13.1 Waivers,
Amendments, etc.
(a) Waivers
and Amendments.
The provisions of each Credit Document may from time to time be amended,
modified or waived, if such amendment,
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(i) modify
this Section without the consent of all Lenders;
(ii) increase
the aggregate amount of any Loans required to be made by a Lender pursuant
to
its Commitment, extend the maturity date of any Loan made (or participated
in)
by any Lender or reduce any fees described in Article III payable to any Lender
without the consent of such Lender or change the date or the amount of any
principal repayment described in Section 3.1(a), without the consent of
each Lender to be adversely affected by such amendment, modification or
waiver;
(iii) forgive,
or otherwise reduce, the principal amount of or reduce the rate of interest
on
any Lender’s Loan or extend the date on which interest or fees are payable in
respect of any Lender’s Loans, in each case, without the consent of such Lender
(it being understood and agreed, however, that any vote to rescind any
acceleration made pursuant to Section 11.2 and Section 11.3 of amounts owing
with respect to the Loans and other Obligations shall only require the vote
of
the Required Lenders);
(iv) reduce
the percentage set forth in the definition of “Required Lenders” or modify any
requirement hereunder that any particular action be taken by all Lenders without
the consent of all Lenders;
(v) except
as otherwise expressly provided in a Credit Document, release the Borrower
from
its Obligations under any Credit Documents, or all or substantially all of
the
Collateral under the Credit Documents, in each case without the consent of
all
Lenders (and each counterparty under any Secured Hedging Agreement, if not
then
a Lender); or
(vi) affect
adversely the interests, rights or obligations of the Agent (in its capacity
as
the Agent), unless consented to by the Agent.
(b) Secured
Hedging Agreements. In
addition to the foregoing, no amendment shall be made to any Credit Document
without the consent of each counterparty to a Secured Hedging Agreement affected
thereby if the effect thereof would be to exclude the Obligations evidenced
by a
Secured Hedging Agreement from the collateral security and other benefits of
such Credit Document (it being understood that any release of Liens shall be
permitted to be effectuated by Agent, Required Lenders or all Lenders (together
with the consent of any counterparty to a Secured Hedging Agreement, if
required), as applicable, in accordance with the terms of this
Agreement).
(c) No
Waiver. No
failure or delay on the part of the Agent or any Lender in exercising any power
or right under any Credit Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power or right preclude any other
or
further exercise thereof or the exercise of any other power or
right. No notice to or demand on the Borrower in any case shall
entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Agent or any Lender under
any Credit Document shall,
except as may be otherwise stated in such waiver or approval, be applicable
to
subsequent transactions.
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(d) Replacement
of Lender. In
the event that any Lender or Lenders refuse to approve any waiver or amendment
the Agent deems advisable, then the Agent may or, so long as no Event of Default
has occurred and is continuing, the Borrower may (but shall not be obligated
to), upon notice to such Lender (and the Agent, if applicable), require such
Lender to assign and delegate without recourse (in accordance with and subject
to the restrictions contained in Section 13.11), all of its interests, rights,
duties and obligations under this Agreement and the Credit Documents to an
Assignee Lender that shall assume such obligations (which assignee may be a
Lender, if a Lender accepts such assignment); provided that (i) if it is an
assignment at the request of the Borrower, the Borrower shall have received
the
prior written consent of the Agent, which consent shall not unreasonably be
withheld or delayed, (ii) if it is an assignment at the request of the Agent
and
no Event of Default has occurred and is continuing, the Borrower shall have
consented to such assignment which consents shall not be unreasonably withheld
or delayed and (iii) such assigning Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under
the other Credit Documents, from the assignee (to the extent of such outstanding
principal, accrued interest and accrued fees) or Borrower (in the case of all
other amounts).
Section
13.2 Notices;
Time.
(a) Except
in the case of notices and other communications expressly permitted to be given
by telephone (and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by
hand or overnight courier service, mailed by certified or registered mail or
sent by facsimile, as follows:
(i) if
to the Borrower, to it c/o LEAF Financial at 0000 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxxxx, XX 00000, Attention of Xxxxx Xxxxxx (Facsimile No.
215.640.6363);
(ii) if
to the Agent, to National City Bank, Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention of Xxxxxxx Xxxxxx, Senior
Vice President (Facsimile No. (267.256.4002); and
(iii) if
to any other Lender, to it at its address (or facsimile number) set forth in
its
Administrative Questionnaire.
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Agent;
provided that the foregoing shall not apply to notices pursuant to Article
II
unless otherwise agreed by the Agent and the applicable Lender. The
Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
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(c) Any
party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the
date
of receipt.
(d) Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
the confirmation of transmission thereof is received by the
transmitter.
(e) Unless
otherwise indicated, all references to the time of a day in a Credit Document
shall refer to the time of day in Cleveland, Ohio.
Section
13.3 Payment
of Costs and Expenses
. The
Borrower agrees to pay on demand all reasonable out-of-pocket expenses of the
Agent (including the reasonable fees and out-of-pocket expenses of any counsel
to the Agent and of local counsel, if any, who may be retained by or on behalf
of the Agent) in connection with:
(a) the
negotiation, preparation, execution and delivery of each Credit Document,
including schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to any Credit Document as may from time
to
time hereafter be required, whether or not the transactions contemplated hereby
are consummated;
(b) the
filing, recording, refiling or rerecording of any Credit Document and/or any
financing statements relating thereto and all amendments, supplements,
amendments and restatements and other modifications to any thereof and any
and
all other documents or instruments of further assurance required to be filed
or
recorded or refiled or rerecorded by the terms of any Credit Document;
and
(c) the
preparation and review of the form of any document or instrument relevant to
any
Credit Document.
The
Borrower further agrees to pay, and to save each Secured Party harmless from
all
liability for, any stamp or other taxes which may be payable in connection
with
the execution or delivery of each Credit Document, the Loans or the issuance
of
the Notes. The Borrower also agrees to reimburse each Secured Party
upon demand for all reasonable out-of-pocket expenses (including reasonable
attorneys’ fees and legal expenses of counsel to each Secured Party) incurred by
such Secured Party in connection with (x) the negotiation of any
restructuring or “work-out” with the Borrower, whether or not consummated, of
any Obligations and (y) the enforcement of any Obligations.
Section
13.4 Indemnification. In
consideration of the execution and delivery of this Agreement by each Secured
Party, the Borrower hereby indemnifies, exonerates and holds each Secured Party,
and each of their respective affiliates, officers, directors, employees and
agents (collectively, the “Indemnified Parties”) free and harmless from
and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action
for
which indemnification hereunder is sought), including reasonable attorneys’ fees
and
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(a) any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan;
(b) the
entering into and performance of any Credit Document by any of the Indemnified
Parties (including any action brought by or on behalf of the Borrower as the
result of any determination by the Required Lenders pursuant to Article V
not to fund any Loan, provided that any such action is resolved in favor of
such
Indemnified Party);
(c) any
investigation, litigation or proceeding related to any acquisition or proposed
acquisition by the Borrower or any Subsidiary thereof of all or any portion
of
the Capital Securities or assets of any Person, whether or not an Indemnified
Party is party thereto;
(d) any
investigation, litigation, action or proceeding (including any threatened
investigation, litigation or proceeding) respectively made, filed, or instituted
and related to any environmental cleanup, audit, compliance or other matter
relating to either the protection human health or the environment or the Release
by the Borrower or any Subsidiary thereof of any Hazardous Material;
or
the
presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission, discharging or releases
from, any real property owned or operated by the Borrower or any Subsidiary
thereof of any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control of, the Borrower
or
Subsidiary;
except
for Indemnified Liabilities arising for the account of a particular Indemnified
Party which are determined by a court of competent jurisdiction in a final
proceeding to have resulted from the such Indemnified Party’s gross negligence
or willful misconduct. Except as otherwise provided in this
paragraph, the Borrower and its successors and assigns hereby waive, release
and
agree not to make any claim or bring any cost recovery action against, any
Indemnified Party under CERCLA or any state equivalent, or any similar law
now
existing or hereafter enacted. Except as otherwise provided in this
paragraph, it is expressly understood and agreed that to the extent that any
Indemnified Party is strictly liable under any Environmental Laws, the
Borrower’s obligation to such Indemnified Party under this indemnity shall
likewise be without regard to fault on the part of the Borrower with respect
to
the violation or condition which results in liability of an Indemnified
Party. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
Notwithstanding
anything to the contrary in this Agreement, no Indemnified Party shall effect
the settlement or compromise of any litigation, investigation or proceeding
(including
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any
threatened litigation, investigation or proceeding) in respect of which
indemnification may be sought, without the Borrower’s prior written consent (not
to be unreasonably withheld).
Section
13.5 Survival. The
obligations of the Borrower under Sections 4.3, 4.4, 4.5, 4.6, 13.3 and 13.4,
and the obligations of the Lenders under Section 13.1, shall in each case
survive any assignment from one Lender to another (in the case of Sections
13.3
and 13.4) and the occurrence of the date on which all Obligations have been
paid
in full in cash, all Secured Hedging Agreements have been terminated and all
Commitments shall have terminated. The representations and warranties
made by the Borrower in each Credit Document shall survive the execution and
delivery of such Credit Document.
Section
13.6 Severability. Any
provision of any Credit Document which is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions of such Credit Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section
13.7 Headings. The
various headings of each Credit Document are inserted for convenience only
and
shall not affect the meaning or interpretation of such Credit Document or any
provisions thereof.
Section
13.8 Execution
in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of
which shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower, the Agent and each
Lender (or notice thereof satisfactory to the Agent), shall have been received
by the Agent.
Section
13.9 Governing
Law; Entire Agreement. EACH
CREDIT DOCUMENT (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A CREDIT DOCUMENT)
WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA. The Credit Documents
constitute the entire understanding among the parties hereto with respect to
the
subject matter thereof and supersede any prior agreements, written or oral,
with
respect thereto.
Section
13.10 Successors
and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, that
the
Borrower may not assign or transfer its rights or obligations hereunder without
the consent of all Lenders (except as otherwise expressly permitted by the
Credit Documents).
Section
13.11 Assignments
and Participations in Loans; Register. Each
Lender may assign, or sell participations in, its Loans and Commitment to one
or
more other Persons in accordance with this the terms set forth
below.
(a) Assignments. Any
Lender, pursuant to a Lender Assignment Agreement, with the consent (which
consent shall not be unreasonably delayed or withheld)
of (i) the Borrower, to the extent no Default or Event of Default has occurred
and is continuing, and
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(i) notice
of such assignment and delegation, together with (A) payment instructions,
(B) the Internal Revenue Service forms or other statements contemplated or
required to be delivered pursuant to Section 4.6, if applicable, and
(C) addresses and related information with respect to such Assignee Lender,
shall have been delivered to the Borrower and the Agent by such assignor Lender
and such Assignee Lender;
(ii) such
Assignee Lender shall have executed and delivered to (A) the Borrower and the
Agent a Lender Assignment Agreement, accepted by the Agent, and (B), if it
shall
not be a Lender, shall deliver to the Agent an Administrative Questionnaire
in
which the assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public information
about the Borrower and its Subsidiaries and Affiliates or their respective
securities) will be made available and who may receive such information in
accordance with the such Assignee Lender’s compliance procedures and applicable
laws, including Federal and state securities laws; and
(iii) the
processing fees described below shall have been paid.
From
and
after the date that the Agent accepts such Lender Assignment Agreement,
(x) the Assignee Lender thereunder shall be deemed automatically to have
become a party hereto and to the extent that rights and obligations hereunder
have been assigned and delegated to such Assignee Lender in connection with
such
Lender Assignment Agreement, shall have the rights and obligations of a Lender
under the Credit Documents, and (y) the assignor Lender, to the extent that
rights and obligations hereunder have been assigned and delegated by it in
connection with such Lender Assignment Agreement, shall be released from its
obligations hereunder and under the other Credit Documents.
Within
five (5) Business Days after its receipt of notice that the Agent has received
and accepted an executed Lender Assignment Agreement, if requested by the
Assignee Lender, the Borrower shall execute and deliver to the Agent (for
delivery to the relevant Assignee Lender) a new Note evidencing such Assignee
Lender’s assigned Commitment and, if the assignor Lender has retained a
Commitment hereunder, if requested by such Lender, a replacement Note in the
principal amount of the Commitment retained by the assignor Lender hereunder
(such Note to be in exchange for, but not in payment of, the Note then held
by
such assignor Lender). Each such Note shall be dated the date of the
predecessor Note. The assignor Lender
shall xxxx each predecessor Note “exchanged” and deliver each of them to the
Borrower. Accrued interest on that part of each predecessor Note
evidenced by a new Note, and accrued
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Such
assignor Lender or such Assignee Lender must also pay a processing fee in the
amount of $3,500 to the Agent upon delivery of any Lender Assignment Agreement;
provided, however, that no such fee shall be payable in the case of an
assignment to an Affiliate of the assignor Lender or a Related Fund with respect
to such assignor Lender; and provided, further that, in the case of
contemporaneous assignments by a Lender to more than one fund managed by the
same investment advisor (which funds are not then Lenders hereunder), only
a
single such processing fee shall be payable for all such contemporaneous
assignments.
Notwithstanding
anything to the contrary set forth above, (A) any Lender may (without requesting
the consent of the Borrower or the Agent) pledge its Loans and all or any
portion of its rights in connection with this Agreement and the Credit Documents
to a Federal Reserve Bank in support of borrowings made by such Lender from
such
Federal Reserve Bank and (B) any Lender that is a fund that invests in bank
loans may (without the consent of the Borrower or the Agent) pledge its Loans
and all or any portion of its rights in connection with this Agreement and
the
Credit Documents to the holders (or to the trustees for such holders) of
obligations owed, or securities issued, by such fund as security for such
obligations or securities, provided, that any foreclosure or other exercise
of
remedies by such holder (or such trustee) shall be subject to the provisions
of
this Section regarding assignments in all respects. No pledge
described in the immediately preceding clause (ii) shall release such Lender
from its obligations hereunder.
(b) Participations
. Any
Lender may sell to one or more commercial banks or other Persons (each of such
commercial banks and other Persons being herein called a “Participant”)
participating interests in any of the Loans, Commitments, or other interests
of
such Lender hereunder; provided, however, that:
(i) no
participation contemplated in this Section shall relieve such Lender from its
Commitment or its other obligations under any Credit Document;
(ii) such
Lender shall remain solely responsible for the performance of its Commitment
and
such other obligations;
(iii) the
Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under each Credit
Document;
(iv) no
Participant, unless such Participant is an Affiliate of such Lender or is itself
a Lender, shall be entitled to require such Lender to take or refrain from
taking any action under any Credit Document, except that such Lender may agree
with any Participant that such Lender will not, without such Participant’s
consent, take any actions of the type
described in clauses (a), (b), or (f) or, to the extent requiring the consent
of
such Lender, clause (c) of Section 13.1 with respect to Obligations
participated in by such Participant; and
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(v) the
Borrower shall not be required to pay any amount under this Agreement that
is
greater than the amount which it would have been required to pay had no
participating interest been sold.
Subject
to clause (v) of this Section 13.11(b), the Borrower acknowledges and agrees
that each Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, and
4.9, shall be considered a Lender. Each Participant shall be entitled
to all information regarding the Borrower that has been provided to the Lender
selling the participation. Each Participant shall only be indemnified
for increased costs pursuant to Section 4.3, 4.5 or 4.6 if and to the extent
that the Lender which sold such participating interest to such Participant
concurrently is entitled to make, and does make, a claim on the Borrower for
such increased costs. Any Lender that sells a participating interest
in any Loan, Commitment or other interest to a Participant under this Section
shall indemnify and hold harmless the Borrower and the Agent from and against
any taxes, penalties, additions, interest or other costs or losses (including
reasonable attorneys’ fees and expenses) incurred or payable by the Borrower or
the Agent as a result of the failure of the Borrower or the Agent to comply
with
its obligations to deduct or withhold any Taxes from any payments made pursuant
to this Agreement or the relevant Credit Documents to such Lender or the Agent,
as the case may be, which Taxes would not have been incurred or payable if
such
Participant had been a Non-U.S. Lender that was entitled to deliver to the
Borrower, the Agent or such Lender, and did in fact so deliver, a duly completed
and valid Form 1001 or 4224 (or applicable successor form) or Exemption
Certificate entitling such Participant to receive payments under this Agreement
or the relevant Credit Documents without deduction or withholding of any United
States federal taxes.
(c) Register
. The
Borrower hereby designates the Agent to serve as the Borrower’s agent, solely
for the purpose of this Section, to maintain a register (the “Register”)
on which the Agent will record each Lender’s Commitment, the Loans made by each
Lender and the Notes evidencing such Loans, and each repayment in respect of
the
principal amount of the Loans of each Lender and annexed to which the Agent
shall retain a copy of each Lender Assignment Agreement delivered to the Agent
pursuant to this Section. Failure to make any recordation, or any
error in such recordation, shall not affect the Borrower’s obligations in
respect of such Loans or Notes. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the Agent and
the Lenders shall treat each Person in whose name a Loan and related Note is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A
Lender’s Commitment and the Loans made pursuant thereto and the Notes evidencing
such Loans may be assigned or otherwise transferred in whole or in part only
by
registration of such assignment or transfer in the Register. Any
assignment or transfer of a Lender’s Commitment or the Loans or the Notes
evidencing such Loans made pursuant thereto shall be registered in the Register
only upon delivery to the Agent of a Lender Assignment Agreement duly executed
by the assignor thereof. No assignment or transfer of a Lender’s
Commitment or the Loans made pursuant thereto or the Notes evidencing such
Loans
shall be effective unless such assignment or transfer shall have been recorded
in the Register by the Agent as provided in this Section.
Section
13.12 Other
Transactions. Nothing
contained herein shall preclude the Agent or any other Lender from engaging
in
any transaction, in addition to those contemplated by the Credit Documents,
with
the Borrower or any of their Affiliates in which the Borrower or such Affiliate
is not restricted hereby from engaging with any other Person.
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Section
13.13 Forum
Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY
CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWER
IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE COURTS
OF THE COMMONWEALTH OF PENNSYLVANIA OR IN THE UNITED STATES DISTRICT COURT
FOR
THE EASTERN DISTRICT OF PENNSYLVANIA; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE COMMONWEALTH OF PENNSYLVANIA AT THE ADDRESS FOR NOTICES
SPECIFIED IN SECTION 13.2. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE)
WITH
RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO
THE
FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THE CREDIT DOCUMENTS.
Section
13.14 Waiver
of Jury Trial. THE
AGENT, EACH LENDER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, ANY CREDIT DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS
OF
THE AGENT, ANY LENDER OR THE BORROWER IN CONNECTION THEREWITH. THE
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER CREDIT
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT, EACH LENDER ENTERING INTO THE CREDIT
DOCUMENTS.
Section
13.15 USA
Patriot Act. Each
Lender that is subject to the requirements of the Patriot Act hereby notifies
the Borrower that pursuant to the requirements of the Patriot
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[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this 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:
Title:
NATIONAL
CITY BANK,
as
Agent, and as a Lender
By:
________________________________
Name:
Title:
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SCHEDULE
I
INITIAL
COMMITMENTS
|
Lender
Name
|
Loan
Commitment
|
Loan
Percentages
|
|
National
City Bank
|
$100,000,000
|
100%
|
|
Total
|
$100,000,000
|
100%
|
Schedule
I
