AMENDMENT TO REVOLVING CREDIT AGREEMENT AND ASSIGNMENT
THIS AMENDMENT TO REVOLVING CREDIT AGREEMENT AND ASSIGNMENT (this
"Amendment") made as of March 28, 2003, by and among LEAF FINANCIAL CORPORATION,
a Delaware corporation with offices at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Leaf Financial"), LEASE EQUITY APPRECIATION
FUND I, L.P., a Delaware limited partnership with offices at 00 Xxxxxxxx Xxxxx,
Xxxx X-00, Xxxxxxxxxx, Xxxxxxxx 00000 ("Leaf I"), LEAF FUNDING, LLC, a Delaware
limited liability company with offices at 000 X. Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000 ("Leaf Funding") (each a "Debtor" and together, the
"Debtors") and NATIONAL CITY BANK, a national banking association with offices
at Xxx Xxxxx Xxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Secured
Party").
BACKGROUND
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A. On June 11, 2002, Leaf Financial and Secured Party entered into a
Revolving Credit Agreement and Assignment (the "Agreement"), in which Secured
Party promised from time to time to make loans to Leaf Financial in exchange for
Leaf Financial's grant of a security interest and an assignment to Secured Party
of all Leaf Financial's right, title and interest in certain Collateral (as
defined in Section 2(a) of the Agreement), pursuant to a Security Agreement of
even date therewith between Leaf Financial and Secured Party and an Assignment
of even date therewith between Leaf Financial and Secured Party.
B. Leaf Financial desires to add Leaf I and Leaf Funding as debtors
under the Agreement, and Secured Party has agreed to amend the Agreement to
permit such additions.
C. Leaf Financial is the sole shareholder of Leaf Asset Management,
Inc., which is the general partner of Leaf I.
D. Leaf Financial is also the sole member of Leaf Funding.
E. Until the Commitment Termination Date (as defined in Section 1(a) of
the Agreement), Debtors and Secured Party contemplate that Secured Party will
continue to make loans to Debtors (each, a "Loan" and collectively the "Loans")
evidenced by a certain Amended and Restated Master Note attached as Exhibit A to
this Amendment (the "Note").
F. Leaf Financial intends to transfer the existing collateral to Leaf
I, which will then pledge it to Secured Party as collateral for the Loans. In
the future, either Leaf Financial, Leaf Funding or Leaf I will hold title to
Collateral and all will assign any of its rights in such Collateral to Secured
Party.
G. Leaf I and Leaf Funding will jointly assign and grant to Secured
Party a security interest in the Collateral pursuant to a Security Agreement
dated of even date herewith between Leaf I, Leaf Funding and Secured Party and
will deliver Assignments in the form of Exhibit B to the Agreement and finally
will join into the Note as Makers with Leaf Financial.
H. Debtors may repay such Loans with the proceeds of fundings to be
made under permanent financing to be undertaken in the near future, which
permanent financing may require a transfer and release of the Collateral
hereunder.
I. All of the requirements of law have been fully complied with and all
other acts and things necessary to make this Amendment a valid, binding and
legal instrument have been done and performed.
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
A. Consent. Secured Party hereby consents to the addition of Leaf
Funding and Leaf I as debtors under the Agreement and waives all prohibitions
thereto in the Agreement, including but not limited to Sections 6(d) and (e).
Such consent and waiver does not, however, constitute a waiver to any future
actions prohibited by the Agreement.
B. Amendments. The Agreement is hereby amended in the following
respects:
1. The Agreement shall be amended to include Leaf Funding and Leaf I
as well as Leaf Financial in the definition of the word "Debtor" throughout the
Agreement and any exhibits attached thereto.
2. Section 1(d)(ii) of the Agreement shall be amended by replacing
the words "Leaf Financial" with the word "Debtor" throughout the section.
3. Section 4(a) of the Agreement shall be amended by deleting the
language in such section in its entirety and replacing it with the following
language:
(a) Organization and Qualification. Leaf Financial Corporation is
a corporation, Leaf Funding, LLC is a limited liability company and Lease Equity
Appreciation Fund I, L.P. is a limited partnership, all of which are organized,
validly existing and in good standing under the laws of the State of Delaware;
and all are duly qualified and in good standing as foreign business entities
authorized to do business in each state or jurisdiction where such qualification
is necessary, where lack of qualification would have a materially adverse affect
on Secured Party's rights and remedies with respect to the Collateral.
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4. Section 6(p) of the Agreement shall be amended in the following
respects:
(a) The affirmative covenants of Debtor entitled "Financial
Covenants" shall apply to Debtor on a consolidated basis;
(b) The definition for "Adjusted Net Worth" shall be amended to
read: "Adjusted Net Worth" means the Net Worth of LEAF Financial Corporation,
its affiliates and investment partnerships managed by LEAF Financial Corporation
plus the non-current portion of Subordinated Debt; and
(c) The definition for "Net Worth" shall be amended to read: "Net
Worth" means the sum of capital stock, plus retained earnings, plus
paid-in-surplus, plus cash in escrow, minus treasury stock.
5. Section 6 of the Agreement shall be amended to add the following
language at the end of such section: "Notwithstanding anything to the contrary
herein, including but not limited to the negative covenants in subsections 6(c),
(d) and (e), the Debtor shall be permitted to transfer the Contracts from Leaf
Financial or Leaf Funding to Leaf I without the consent of Secured Party so long
as each Debtor which holds any interest in the Collateral has delivered a
Security Agreement, Assignment, and UCC Financing Statements to Secured Party to
cover the Contracts being transferred to such Debtor and Debtor has notified
Secured Party within ten (10) days after such transfer regarding which Contracts
were transferred.
C. The parties will construe all other provisions of the Agreement to
give effect to the provisions hereof.
D. The Agreement will continue in full force and effect as amended
hereby.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment as of the date first above written.
DEBTORS:
--------
Address for Notices: LEAF FINANCIAL CORPORATION, a
-------------------- Delaware corporation
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
By: Xxxxx Xxxxxx
----------------------
Name: Xxxxx Xxxxxx
Title: President
Address for Notices: LEASE EQUITY APPRECIATION
-------------------- FUND I, L.P., a Delaware limited
c/o Leaf Asset Management, Inc. partnership
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
By: Leaf Asset Management, Inc., its
general partner
By: Xxxxx Xxxxxx
----------------------
Name: Xxxxx Xxxxxx
Title: President
Address for Notices: LEAF FUNDING, LLC, a Delaware
-------------------- limited liability company
c/o Leaf Financial Corporation By: LEAF Financial Corporation, its
0000 Xxxxxx Xxxxxx, 10th Floor sole member
Xxxxxxxxxxxx, XX 00000
By: Xxxxx Xxxxxx
----------------------
Name: Xxxxx Xxxxxx
Title: President
SECURED PARTY:
--------------
NATIONAL CITY BANK, a national
banking association
By: Xxxxxxx Xxxxxx
---------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
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EXHIBIT A
---------
AMENDED AND RESTATED MASTER NOTE
$10,000,000.00 March 28, 2003
THIS AMENDED AND RESTATED MASTER NOTE (this "Note") is made this 28th
day of March, 2003 by LEAF FINANCIAL CORPORATION, a Delaware corporation with
offices at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
("Leaf Financial"), LEASE EQUITY APPRECIATION FUND I, L.P., a Delaware limited
partnership with offices at 00 Xxxxxxxx Xxxxx, Xxxx X-00, Xxxxxxxxxx, Xxxxxxxx
00000 ("Leaf I"), and LEAF FUNDING, LLC, a Delaware limited liability company
with offices at 000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000
("Leaf Funding") (collectively, the "Debtor") for the benefit of NATIONAL CITY
BANK, a national banking association (together with any other holder hereof,
"Lender").
This Note: (i) amends and restates in its entirety that certain Master
Note dated June 11, 2002 between Leaf Financial and Lender (the "Original
Note"); and (ii) joins into the Original Note Leaf I and Leaf Funding as debtors
with Leaf Financial.
FOR VALUE RECEIVED, the undersigned Debtor promises to pay to the order
of Lender, at its office at Xxx Xxxxx Xxxxx, 00xx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, or at such other place as Lender may from time to time
designate in writing, without grace, the principal sum of TEN MILLION AND NO/100
DOLLARS ($10,000,000.00) or so much thereof as has been advanced hereunder,
together with interest on the unpaid balance of the principal from time to time
outstanding at the rate per annum set forth in the Credit Agreement as
hereinafter defined. Principal and interest owing under this Note shall be
payable as provided in the Credit Agreement.
In the event that any payment of principal or interest is not made
within five (5) days of the date when due hereunder, whether at its stated
maturity, by acceleration or otherwise, it is hereby agreed that Lender shall
have the option of collecting, on demand, interest on the unpaid amount of such
delinquent payment from the day when due until the day when paid, at a rate
equal to three percent (3%) above the "Prime Rate" (as defined in the
Agreement), provided however, that in no event shall the rate of interest
charged exceed the maximum rate permitted by applicable law.
Interest owing under this Note shall be computed on the basis of a
360-day year for the actual number of days elapsed. All payments made hereunder
shall at Lender's option be applied first to late charges, then to accrued
interest, then to principal. All amounts owing under this Note shall be payable
in lawful money of the United States of America which, as at the time of
payment, shall be legal tender for the payment of public and private debts and
shall be payable without relief or benefit of any valuation, stay, appraisement,
extension or redemption laws now or hereafter existing.
This Note is secured by: (i) that certain Revolving Credit Agreement
and Assignment dated June 11, 2002, as amended by an Amendment to the Credit
Agreement of even date herewith between Debtor and Lender (the "Credit
Agreement"); (ii) the Security Agreement dated as of June 11, 2002 between Leaf
Financial and Lender; (iii) the Security Agreement dated as of even date
herewith between Leaf I, Leaf Funding and Lender; (iv) the Guaranty of Payment
dated as of June 11, 2002 between Guarantor and Lender; and (v) Assignments
issued pursuant to the Credit Agreement, under which a security interest is
granted in favor of Lender, which together with all other agreements,
instruments and documents delivered in connection therewith and herewith, are
hereinafter sometimes referred to as the "Loan Documents".
In the event of any default, after applicable notice and cure periods,
in the payment or performance of any liability or obligation owing under this
Note, under any of the Loan Documents, or under any other instrument, document
or agreement executed by or binding on Debtor in favor of Lender, Lender may
during the continuation of such default declare this Note, all interest
hereunder and all other amounts payable hereunder to be immediately due and
payable, without further notice or demand of any kind. In addition, upon the
occurrence and during the continuation of any such default, Lender shall have
all other rights and remedies existing in Lender's favor at law or in equity or
provided for in any of the Loan Documents or in any of such other instruments,
documents, or agreements. The rights and remedies of Lender as provided herein,
in the Loan Documents, in such other instruments, documents, and agreements, at
law and in equity shall be cumulative and concurrent, and may be pursued
singularly, successively, or together, at the sole discretion of Lender. No act
of omission or commission of Lender, including specifically any failure to
exercise any right, remedy or recourse, shall be deemed to be a waiver or
release of the same, such waiver or release to be effected only through a
written document executed by Lender and then only to the extent specifically
recited therein. A waiver or release with reference to any one event shall not
be construed as continuing, as a bar to, or as a waiver or release of, any
subsequent right, remedy or recourse as to any other event.
Voluntary prepayments of this Note are permitted as more fully provided
in the Credit Agreement. Mandatory prepayment in full of this Note shall be
required to be paid upon the occurrence of certain events and within the times
provided in the Credit Agreement.
Notwithstanding anything herein to the contrary, in no event shall
interest, fees or charges payable under this Note or any Loan Document exceed
those permitted by applicable law. Any provision of this Note or of any Loan
Document which would otherwise charge or require payment of any interest, fee or
charge in excess of the maximum permitted by applicable law shall be hereby
amended to charge and require payment of only the maximum interest, fee or
charge permitted by applicable law.
Debtor waives presentment and demand for payment, dishonor, notice of
dishonor, protest and notice of protest of this Note. Debtor agrees to pay all
of Lender's reasonable costs and expenses of collection, including reasonable
attorneys' and paralegals' fees and expenses.
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If more than one party shall execute this Note, the term "Debtor" as
used herein shall mean all parties signing this Note and each of them, and all
such parties shall be jointly and severally obligated hereunder. The provisions
of this Note shall be binding upon Debtor and its heirs, personal
representatives, successors and assigns and shall inure to the benefit of Lender
and its successors and assigns.
THE LOAN EVIDENCED HEREBY HAS BEEN MADE, AND THIS NOTE HAS BEEN
DELIVERED, AT PHILADELPHIA, PENNSYLVANIA AND SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE COMMONWEALTH OF PENNSYLVANIA. DEBTOR HEREBY (I) IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE
COMMONWEALTH OF PENNSYLVANIA OR THE STATE OF OHIO, OVER ANY ACTION OR PROCEEDING
TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR RELATED TO THIS NOTE OR ANY OF
THE LOAN DOCUMENTS; (II) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT DEBTOR MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
ANY SUCH ACTION OR PROCEEDING; (III) AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER
JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND
(IV) AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR PROCEEDING AGAINST LENDER OR
ANY OF LENDER'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PROPERTY, CONCERNING
ANY MATTER ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OF THE LOAN DOCUMENTS
IN ANY COURT OTHER THAN ONE LOCATED IN A COUNTY WHERE DEBTOR MAINTAINS AN OFFICE
IN PENNSYLVANIA OR OHIO. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR IMPAIR
LENDER'S RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW OR LENDER'S
RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST DEBTOR OR ITS PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTION. DEBTOR WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION ARISING OUT OF THIS NOTE.
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If this Note is not dated when executed by Debtor, Lender is hereby
authorized, without notice to Debtor, to date this Note as of the date when the
first loan evidenced hereby is made. Wherever possible each provision of this
Note shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note.
DEBTOR:
-------
LEAF FINANCIAL CORPORATION, a
Delaware corporation
By: Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: President
LEASE EQUITY APPRECIATION FUND I,
L.P., a Delaware limited partnership
By: Leaf Asset Management, Inc., its
general partner
By: Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: President
LEAF FUNDING, LLC, a Delaware limited
liability company
By: LEAF Financial Corporation, its
sole member
By: Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: President
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EXHIBIT B
---------
ASSIGNMENT
FOR VALUE RECEIVED and pursuant to that certain Revolving Credit Agreement and
Assignment dated June 11, 2002, together with that certain Amendment to
Revolving Credit Agreement and Assignment dated March 28, 2003 (the "Agreement")
between the undersigned and NATIONAL CITY BANK (the "Assignee"), the undersigned
hereby grants a security interest in, and collaterally assigns to the Assignee,
all of the undersigned's right, title and interest in and to:
(i) Contracts. All lease agreements, conditional sale contracts,
pay-per-use agreements, notes, security agreements and/or financing
documents and agreements described on Schedule A hereto entered into
between undersigned as lessor, seller, provider or lender and the
entity named therein as lessee, purchaser, user or borrower (together
with any guarantors or other parties obligated in respect of the
Contracts, an "Obligor" or the "Obligors"), together with any master
lease agreements or other documents which relate to the above described
documents (collectively the "Contracts").
(ii) Goods. All goods and other property and rights covered by any
Contract, together with all accessories, accessions, attachments and
appurtenances appertaining or attached to or used in connection with
any of such property, whether now owned or hereafter acquired (the
"Equipment").
(iii) Obligor Guaranties. All guaranties given to undersigned, or under
which undersigned has rights, by any person or entity guaranteeing the
payment and/or performance of any Contract (an "Obligor Guaranty").
(iv) Rights and Payments. All right, title and interest of undersigned
in, under and to the Contracts, and all rents and other sums due and to
become due thereunder, including Any and all extensions or renewals
thereof ("Payments").
(v) Software. All software products and license agreements or rights
covered under any Contract (to the extent the undersigned has
transferable rights in such Software).
(vi) Other Security. All instruments, documents of title, accounts,
general intangibles or money in each case related to or other property
of any kind securing the payment of any Contract.
(vii) Substitutions, Renewals, Replacements, Improvements. All
enhancements to and substitutions, renewals and replacements of, and
improvements to any of the foregoing.
(viii) Proceeds. All cash and noncash proceeds of any of the foregoing
including insurance proceeds and casualty loss payments.
Notwithstanding anything to the contrary herein, undersigned
specifically does not grant a security interest in, or collaterally assign to
the Assignee, any of the undersigned's right, title and interest in and to any
money received from or escrow accounts in which such money received from
partners of the undersigned are held.
The Aggregate Borrowing Limits of the Contracts assigned hereby is
$_________ and the Borrowing Limit attributable to each Contract is listed on
the attached Schedule A hereto.
Notwithstanding anything herein or in the Agreement to the contrary,
the undersigned has not assigned or delegated, and the Assignee has not assumed
or promised to perform, any of the undersigned's duties or obligations under the
Contract or with respect to any property referred to in or covered by the
Contract.
The terms and conditions of this Assignment, including, but not limited
to, the undersigned's warranties with respect to the Contract and the
undersigned's obligations to the Assignee with respect to such Contract, are as
provided for in the Agreement, to which reference is hereby made for a statement
thereof. The term "Payments" as used in this Assignment shall have the same
meaning herein as in the Agreement.
This Assignment shall be governed by and construed in accordance with
the internal laws (as opposed to the conflicts of law provisions) of the
Commonwealth of Pennsylvania.
This Assignment shall be binding upon and inure to the benefit of the
undersigned and the Assignee and their respective successors and assigns.
Dated: March 28, 2003 LEASE EQUITY APPRECIATION
FUND I, L.P., a Delaware
limited partnership
By: Leaf Asset Management,
Inc., its general partner
By: Xxxxx Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
Title: President
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