EIGHTH AMENDMENT TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
THIS EIGHTH AMENDMENT TO FOURTH AMENDED AND
RESTATED LOAN AGREEMENT (this “ Amendment ”) is
executed and entered into as of July 10, 2009, by and among
ASTA FUNDING ACQUISITION I, LLC, a Delaware limited
liability company, ASTA FUNDING ACQUISITION II, LLC , a
Delaware limited liability company, PALISADES COLLECTION,
L.L.C. , a Delaware limited liability company, PALISADES
ACQUISITION I, LLC , a Delaware limited liability company,
PALISADES ACQUISITION II, LLC , a Delaware limited liability
company, PALISADES ACQUISITION IV, LLC , a Delaware limited
liability company, PALISADES ACQUISITION V, LLC , a Delaware
limited liability company, PALISADES ACQUISITION VI, LLC , a
Delaware limited liability company, PALISADES ACQUISITION VII,
LLC , a Delaware limited liability company, PALISADES
ACQUISITION VIII, LLC , a Delaware limited liability company,
PALISADES ACQUISITION IX, LLC , a Delaware limited liability
company, PALISADES ACQUISITION X, LLC , a Delaware limited
liability company, CLIFFS PORTFOLIO ACQUISITION I, LLC , a
Delaware limited liability company, SYLVAN ACQUISITION I,
LLC , a Delaware limited liability company, and OPTION CARD,
LLC , a Colorado limited liability company (sometimes
collectively referred to herein as “ Borrowers ”
and individually as a “ Borrower ”); ASTA
FUNDING, INC. , a Delaware corporation, COMPUTER FINANCE,
LLC , a Delaware limited liability company, ASTAFUNDING.COM,
LLC , a Delaware limited liability company, ASTA COMMERCIAL,
LLC , a Delaware limited liability company, and VATIV
RECOVERY SOLUTIONS, LLC , a Texas limited liability company,
ASTA FUNDING ACQUISITION IV, LLC , a Delaware limited
liability company, PALISADES ACQUISITION XI, LLC , a
Delaware limited liability company, PALISADES ACQUISITION XII,
LLC, a Delaware limited liability company, PALISADES
ACQUISITION XIII, LLC , a Delaware limited liability company,
PALISADES ACQUISITION XIV, LLC , a Delaware limited
liability company, PALISADES ACQUISITION XV, LLC , a
Delaware limited liability company, PALISADES ACQUISITION XVII,
LLC , a Delaware limited liability company, PALISADES
ACQUISITION XVIII, LLC , a Delaware limited liability company,
CITIZENS LENDING GROUP LLC , a Delaware limited liability
company and VENTURA SERVICES, LLC , a Delaware limited
liability company (collectively, “ Guarantors
”); ISRAEL DISCOUNT BANK OF NEW YORK, a New York
banking corporation (“ IDB ”), as collateral
agent for itself and the lenders signatory hereto from time to time
(together with any successor collateral agent appointed pursuant to
Section 9.7, the “ Collateral Agent ”), as
administrative agent (together with any successor administrative
agent appointed pursuant to Section 9.7, the “
Administrative Agent ”, and together with the
Collateral Agent, the “ Agents ”), and as
co-lead arranger; MERRILL LYNCH COMMERCIAL FINANCE CORP.
(“ Merrill Lynch ”), as co-lead arranger and as
co-administrative agent; and the Lenders (as defined
below).
A. Borrowers and Guarantors (collectively,
the “ Credit Parties ”), along with
Administrative Agent and Lenders are parties to a certain Fourth
Amended and Restated Loan and Security Agreement dated as of
July 11, 2006 (as amended, modified, supplemented or restated
from time to time, the “ Credit Agreement ”).
All capitalized terms used in this Amendment, unless specifically
defined herein, shall have the meanings attributed to them in the
Credit Agreement.
B. The Credit Parties have requested that
the Lenders amend certain terms of the Credit Agreement to, among
other things, extend the Commitment Termination Date.
For good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Credit
Parties, Administrative Agent and Lenders agree as
follows:
SECTION 1.
ACCURACY OF RECITALS.
The Credit Parties acknowledge, represent,
warrant and agree that the Recitals stated above are true and
complete in all respects.
2.1 The following definitions as contained in
Annex A attached to the Credit Agreement are amended and restated
in their entirety to read as follows:
“ Commitment Termination Date
” means the earliest of (a) December 31, 2009, (b)
the date of termination of Lenders’ obligations to make
Advances or permit the existing Revolving Loan to remain
outstanding pursuant to Section 8.2(b) , and
(c) the date of indefeasible prepayment in full by Borrowers
of the Revolving Loan, and the permanent reduction of all
Commitments to zero dollars ($0).
“
Revolving Loan Commitment ” means (a) as to any
Lender, the aggregate commitment of such Lender to make Advances as
set forth on Annex J to the Agreement or in the most recent
Assignment Agreement executed by such Lender and (b) as to all
Lenders, the aggregate commitment of all Lenders to make Advances
which aggregate commitment shall not exceed the following amounts:
(1) Forty Million Dollars ($40,000,000) from the date hereof
through July 30, 2009; (2) Thirty Four Million Dollars
($34,000,000) from July 31, 2009 through August 30, 2009;
(3) Thirty Million Eight-Hundred Thousand Dollars
($30,800,000) from August 31, 2009 through September 29,
2009; (4) Twenty Two Million Nine-Hundred Thousand Dollars
($22,900,000) from September 30, 2009 through October 30,
2009; (5) Fifteen Million Dollars ($15,000,000) from
October 31, 2009 through November 29, 2009;
(6) Seven Million Four-Hundred Thousand Dollars ($7,400,000)
from November 30, 2009 through December 30, 2009; and
(6) Zero Dollars ($0) on December 31, 2009.
2
2.2 Annex J attached to the Credit
Agreement is hereby deleted in its entirety and replaced with the
Replacement Annex J attached to this Amendment as
Exhibit A .
2.3 Section 1.1(a)(ii) of the Credit
Agreement is amended and restated in its entirety as
follows:
(i) Use of Advances to finance Portfolio
purchases in excess of $7,500,000 shall require the consent of the
Administrative Agent and use of Advances to finance Portfolio
purchases in excess of (a) $15,000,000 in the aggregate as of
July 31, 2009 and August 31, 2009; (b) $8,000,000 in the
aggregate as of September 30, 2009; (c) $6,000,000 in the
aggregate as of October 31, 2009 and November 30, 2009;
and (d) $2,000,000 in the aggregate as of December 31, 2009,
during any 120 day period shall require the consent of the
Requisite Lenders. In connection with such purchases, Borrowers
shall deliver to Administrative Agent and Requisite Lenders, if
applicable, the Portfolio Proposal relating to such purchases. For
purposes of this Section 1.1(a)(ii) only, any Requisite
Lenders that have not responded within 4 Business Days of receipt
of a request for their consent for the purchase of Portfolios in
excess of such amounts set forth above shall be deemed to have
consented to such purchase. Borrowers agree not to intentionally
propose, modify or structure (or permit to be structured) any
Portfolio purchases from any one or more sellers or its affiliates,
whether as a single transaction or a series of transactions, for
the purpose of evading the requirements of this
Section 1.1(a)(ii) to obtain the consent of
Administrative Agent or Requisite Lenders, as the case may be.
Without limiting the foregoing, any Portfolio purchase occurring
within 120 days of any other Portfolio purchase or purchases
shall be included for purposes of determining whether the consent
of the Administrative Agent or Requisite Lenders is required under
this Section 1.1(a)(ii) . Notwithstanding anything in this
Section to the contrary, a Borrower may acquire a Rejected
Portfolio having a purchase price in excess of the amount set forth
in this Section without the consent of the Administrative Agent or
the Requisite Lenders if the purchase is made with Borrowers’
own cash or borrowings that are made without including the Rejected
Portfolio as an Eligible New Portfolio in the Borrowing Base, and
if the Rejected Portfolio is subject to a security interest or Lien
in favor of Collateral Agent, for the benefit of itself, the Agents
and Lenders, to secure the Obligatio
|
