EXHIBIT 10.1
FOURTH AMENDMENT TO
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SECOND AMENDED AND RESTATED WAREHOUSE REVOLVING CREDIT
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FACILITY AGREEMENT
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THIS
FOURTH AMENDMENT TO THE SECOND AMENDED AND RESTATED WAREHOUSE
REVOLVING CREDIT FACILITY AGREEMENT (this "Amendment") is entered
into as of
April 2, 2007 and amends in certain respects the Second Amended and
Restated
Warehouse Revolving Credit Facility Agreement dated as of August
31, 2001 (as
amended, the "Credit Agreement"), among MARLIN LEASING CORPORATION
(the
"Borrower"), each of the financial institutions that is or pursuant
to the terms
thereof may become a party thereto as lender (individually, a
"Lender" , and
collectively, the "Lenders") and NATIONAL CITY BANK, as Agent for
the Lenders
(the "Agent").
W I T N E S S E T H:
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WHEREAS, the parties wish to amend certain provisions of the
Credit
Agreement; and
WHEREAS, the parties hereto desire to effect such amendments on the
terms
and subject to the conditions herein set forth.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Agent, the
Borrower and the
Lenders hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein and not
otherwise
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defined herein shall have the respective meanings ascribed to them
in the Credit
Agreement.
SECTION 2. Credit Agreement Amendments.
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(a)
The definition
of "Borrowing Base" in Section 1.01 of the Credit
Agreement is
hereby amended and restated to read in its entirety as follows:
"Borrowing Base" - as to any Eligible Contract as at the date of
any
determination thereof, but subject to paragraphs (a) through (f)
of
this definition below, the lesser of (i)(x) 88.5% of the then
Net
Present Value of such Eligible Contract (other than Exception
Contracts) and (y) 87.0% of the then Net Present Value of
Exception
Contracts or (ii) 100% of the Net Investment pertaining to the
Eligible
Equipment subject to such Eligible Contract, less, all security
deposits and advance lease payments and other sums received by
the
Borrower relating to any Eligible Contract (solely as they relate
to
assets included in the Borrowing Base). Notwithstanding the
foregoing:
(a) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts with any one User
(including Affiliates of such User) shall not exceed
$200,000;
(b) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which have initial
lease terms in excess of 60 months from the commencement
date of such Contracts shall not exceed 10% of the aggregate
Commitment for all Lenders;
(c) except for the Exception Contracts and Contracts
evidenced by Financing Agreements, no Contract may be
included in the Borrowing Base for a period of in excess of
360 days;
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(d) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which constitute
Prepayable Contracts shall not exceed $1,000,000;
(e) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which constitute
Recourse Contracts shall not exceed $1,000,000;
(f) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which constitute
Sub-lease Contracts shall not exceed $2,000,000; and
(g) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which constitute
Business Capital Loan Agreements shall not exceed
$15,000,000.
(b)
The definition
of "Change of Control" in Section 1.01 of the Credit
Agreement is
hereby amended and restated to read in its entirety as follows:
"Change of Control" means
(a) the sale, lease or transfer of all or substantially all
of the assets of the Borrower to any Person or group (as
such term is defined in Section 13(d)(3) of the Exchange
Act) other than the shareholders listed on Schedule 3.01(a);
(b) the liquidation or dissolution of (or the adoption of a
plan of liquidation by the board of directors) of the
Borrower;
(c) the acquisition by ant Person or group (as so defined)
(other than the shareholders listed on Schedule 3.01(a)) of
a direct or indirect majority in interest (more than 50%) of
the issued and outstanding Voting Securities of the Borrower
by way of merger or consolidation or otherwise; or;
(d) the occurrence of any event that constitutes an (Organic
Change" as such term is defined in the Amended Articles
(provided,
however, that a Public Offering (as such term is
defined in the Amended Articles) by the Borrower and
transactions directly related thereto shall not constitute
an Organic Change).
(c)
The definition
of Commitment Termination Date" in Section 1.01 of
the Credit
Agreement is hereby amended and restated to read in its
entirety
as follows:
"Commitment Termination Date" - the earlier of (x) March 31, 2009
or
such
later date as shall be applicable pursuant to Section 2.04 or
(y)
such other date as the Commitment shall terminate in accordance
with
this Agreement.
(d)
The definition
of "Contract" in Section 1.01 of the Credit
Agreement is hereby amended and
restated to read in its entirety as follows:
"Contract" means any Lease, Finance Agreement, Business Capital
Loan Agreement
or Conditional Sale Agreement entered into or otherwise
acquired by the
Borrower, in which the Borrower is lessor, sublessor or
seller, as the
case may be.
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(e)
The definition
of "EBITDA" in Section 1.01 of the Credit
Agreement is
hereby amended and restated to read in its entirety as follows:
"EBITDA" means for any period, for Marlin Business Services Corp.
and
its consolidated subsidiaries, the sum of net income for such
period
plus (a) income taxes, (b) Interest Expense and (c)
depreciation,
amortization and fair value adjustments, all of which is to be
computed over the previous twelve (12) months.
(f)
The definition
of "Exception Contracts" in Section 1.01 of the
Credit Agreement
is hereby amended and restated to read in its entirety as
follows:
"Exception Contracts" means the Prepayable Contracts, Recourse
Contracts,
Business Capital Loan Agreements, and Sub-lease Contracts.
(g)
The definition
of "Interest Coverage Ratio" in Section 1.01 of
the Credit
Agreement is hereby amended and restated to read in its
entirety
as follows:
"Interest Coverage Ratio" means, as of any date of determination,
and
with respect to Marlin Business Services Corp. and its
consolidated
subsidiaries, EBITDA as a multiple of Interest Expense.
(h)
The definition
of "Interest Expense" in Section 1.01 of the
Credit Agreement
is hereby amended and restated to read in its entirety as
follows:
"Interest Expense" means, for any period, for Marlin Business
Services
Corp. and its consolidated subsidiaries, the sum (without
duplication)
of all interest in respect of indebtedness accrued or
capitalized
during such period (whether or not actually paid during such
period);
plus the net amount payable under hedge agreements (whether or
not
actually paid during such period, all of which is to be computed
over
the previous twelve (12) months).
(i)
The definition
of "Prepayable Contracts" in Section 1.01 of the
Credit Agreement
is hereby amended and restated to read in its entirety as
follows:
"Prepayable Contracts" - any Contract (other than Business
Capital
Loan Agreements) for which Borrower permits the prepayment of
all
remaining principal due under the Contract prior to the expiration
of
the Contract's term.
(j)
The definition
of "Principals" in Section 1.01 of the Credit
Agreement is
hereby deleted in its entirety.
(k)
Section 1.01 of
the Credit Agreement is hereby amended to add the
following new
defined term:
"Business Capital Loan Agreement" shall mean loan agreement
substantially in this form of Exhibit "A" hereto t
