EX-10.21







Exhibit 10.21




FOURTH AMENDMENT TO THE

RECEIVABLES FINANCING AGREEMENT




     THIS
FOURTH AMENDMENT TO THE RECEIVABLES FINANCING AGREEMENT, dated as of February 20, 2009
(this “Amendment”), is entered into by and among PALISADES ACQUISITION XVI, LLC, a Delaware
limited liability company (the “Borrower”), PALISADES COLLECTION, L.L.C., a Delaware
limited liability company (the “Servicer”), FAIRWAY FINANCE COMPANY, LLC ( the
“Lender”), BMO CAPITAL MARKETS CORP. (“BMO CM”), as Administrator for the Lender
(in such capacity, the “Administrator”) and as collateral agent for the Secured Parties (in
such capacity, the “Collateral Agent”), and BANK OF MONTREAL (“BMO”), as liquidity
agent for the Liquidity Providers (in such capacity, the “Liquidity Agent”). Capitalized
terms used and not otherwise defined herein are used as defined in the Receivables Financing
Agreement, dated as of March 2, 2007 (as amended, supplemented or otherwise modified from time to
time, the “Receivables Financing Agreement”), among the Borrower, the Servicer, the Lender,
the Administrator, the Collateral Agent and the Liquidity Agent.



     WHEREAS, the parties hereto desire to amend the Receivables Financing Agreement in certain
respects as provided herein;



     NOW THEREFORE, in consideration of the premises and other material covenants contained herein,
the parties hereto agree as follows:



     SECTION 1. Amendments. The Receivables Financing Agreement is hereby amended as
follows:



     1.1 The definitions of “Aggregate Collection Rate”, “Applicable Percentage”,
“Collection Rate” and “Interest Adjustment Date” as set forth in Section 1.1 of the
Receivables Financing Agreement are hereby deleted.



     1.2 The following definition of “Asta Guaranties” is hereby added to Section 1.1 of
the Receivables Financing Agreement immediately following the definition of “Asta”:




““Asta
Guaranties” means (i) the guaranty, dated as of
February 20, 2009, from the guarantors from time to time party thereto in favor of the
Collateral Agent and (ii) the guaranty, dated as of
February 20, 2009 from
Asta Group, Incorporated in favor of the Collateral Agent, each as amended,
supplemented or otherwise modified from time to time.”



 









 





     1.3 The following definition of “Borrower Action” is hereby added to Section 1.1 of
the Receivables Financing Agreement immediately following the definition of “Borrower”:




““Borrower Action” means any litigation, investigation or proceeding
of the type described in Section 8.1.14 (excluding ordinary course
collection activity litigation and proceedings).”



     1.4 The definition of “Borrowing Base” as set forth in Section 1.1 of the Receivables
Financing Agreement is hereby deleted and replaced in its entirety as follows:




““Borrowing Base” means, on any Distribution Date, the GAAP balance
of all Eligible Receivables of the Borrower as determined by the Servicer
and as agreed to by the Administrator.”



     1.5 The definition of “Borrowing Base Deficit” as set forth in Section 1.1 of the
Receivables Financing Agreement is hereby deleted and replaced in its entirety as follows:




““Borrowing Base Deficit” means on any Distribution Date, the
excess, if any, of 110% of the Loans outstanding over the Borrowing Base.”



     1.6 The following definition of “Executive Officer” is hereby added to Section 1.1 of
the Receivables Financing Agreement immediately following the definition of “Event of Bankruptcy”
therein:




““Executive Officer” means, for any Person, each of the chief
executive officer, chief operating officer, chief financial officer and
general counsel.”



     1.7 The following definition of “Guarantor Security Agreements” is hereby added to
Section 1.1 of the Receivables Financing Agreement immediately following the definition of “GAAP”
therein:




““Guarantor Security Agreements” means (i) the guarantor security
agreement, dated as of February 20, 2009 among the guarantors from time to
time party thereto and the Collateral Agent and (ii) the security agreement,
dated as of February 20, 2009, between Asta Group, Incorporated and the
Collateral Agent, each as amended, supplemented or otherwise modified from
time to time.”



     1.8 The definition of “Stated Maturity Date” as set forth in Section 1.1 of the
Receivables Financing Agreement is hereby deleted and replaced in its entirety as follows:




““Stated Maturity Date” means April 30, 2011; provided,
however, that such date may be accelerated pursuant to Section
10.2; and provided, further, that, subject to Section
10.2, if the aggregate principal amount of all Loans from time to time
outstanding is reduced to $25,000,000 or less on or before the April 30, 2011
Distribution Date, the Stated Maturity Date will be extended to April 30,
2012.”



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     1.9 The following definition of “Pledged Note” is hereby added to Section 1.1 of the
Receivables Financing Agreement immediately following the definition of “Person” therein:




““Pledged Note” means that certain promissory note, dated February
20, 2009, executed by Asta payable to Asta Group, Incorporated in the
original principal amount of $700,000.”



     1.10 The definition of “Transaction Documents” as set forth in Section 1.1 of the
Receivables Financing Agreement is hereby amended by adding “the Asta Guaranties, the Guarantor
Security Agreements” immediately after “Transfer Agreement” therein.



     1.11 Section 9.1.8(e) of the Receivables Financing Agreement is hereby deleted in its entirety
and replaced with the following:




“(x) Within five Business Days of an Executive Officer’s knowledge thereof,
notice of (i) any material Borrower Action not previously disclosed to the
Collateral Agent and the Administrator, and (ii) any materially adverse
development in previously disclosed Borrower Action, (y) on a monthly basis,
a summary update of all Borrower Action known to any Executive Officer and
(z) to the extent reasonably requested by the Administrator, additional
documents or information relating to any Borrower Action.”



     1.12 The following Section 9.1.12 is hereby added to the Receivables Financing Agreement:




“Financial Advisor. The Servicer shall hire (a) by March 31, 2009
(or such other later time as is commercially reasonable) unless otherwise
agreed to by the Administrator in writing and (b) no more than once per
calendar year at the request of the Administrator, in each case, at the
Borrower’s sole expense, a financial advisor selected by the Servicer and
reasonably acceptable to the Administrator to review the collection process
with respect to the Receivables and to deliver a report to the Servicer,
with a copy to the Administrator, on financial advisor’s findings and
recommendation on how, if at all, to improve such collection process within
a reasonable amount of time thereafter.”



     1.13 Section 9.2.1 of the Receivables Financing Agreement is hereby amended by (i) replacing
“true-sale” with “non-recourse true-sale in form that complies with the requirements of this
Section 9.2.1 and is reasonably satisfactory to the Administrator” and (ii) replacing “Borrowing
Base Deficiency” with “Borrowing Base Deficit” therein.



     1.14 Section 9.2.4 is hereby deleted and replaced in its entirety as follows:




“9.2.4 Incurrence of Indebtedness. Borrower shall not create, incur
or permit to exist, any Indebtedness except for (a) Indebtedness and
liabilities incurred pursuant to the Transaction Documents and normal trade
payables incurred in the ordinary course of its business, (b) Indebtedness



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arising under Qualifying Hedge Agreements, (c) Permitted Indebtedness not in
excess of $1,000,000 in the aggregate or (d) Indebtedness which, if
applicable, may be vacated, stayed, discharged (without payment therefore to
affect such discharge) or bonded within thirty days of the occurrence
thereof. “Permitted Indebtedness” means judgments, settlements, legal fees
and other legal expenses (and claims which give rise to GAAP liabilities
related thereto) relating to the collection and/or sale of any of the
Receivable Assets, solely to the extent such Indebtedness is paid when due
and owing.



     1.15 Section 10.1.5 is hereby deleted and replaced in its entirety as follows:




“10.1.5 Borrowing Base Deficit. At any time a Borrowing Base Deficit
shall exist and such condition shall continue unremedied for 2 Business
Days.”



     1.16 Section 10.1.10 of the Receivables Financing Agreement is hereby amended by replacing the
“or” immediately before “(c)” with “,” and adding “or (d) any breach or default shall have occurred
under any of the Asta Guaranties or the Guarantor Security Agreements.”



     1.17 Section 10.1.14 of the Receivables Financing Agreement is hereby deleted and replaced in
its entirety as follows:




“Average Monthly Payments. Average payments of principal on the Loans
pursuant to Section 4.2(b) clause fourth are less
than $1,000,000 for any 3 consecutive Distribution Dates.”



     SECTION 2. Receivables Financing Agreement in Full Force and Effect as Amended.



     Except as specifically amended hereby, the Receivables Financing Agreement shall remain in
full force and effect. All references to the Receivables Financing Agreement shall be deemed to
mean the Receivables Financing Agreement as modified hereby. This Amendment shall not constitute a
novation of the Receivables Financing Agreement, but shall constitute an amendment thereof. The
parties hereto agree to be bound by the terms and conditions of the Receivables Financing
Agreement, as amended by this Amendment, as though such terms and conditions were set forth herein.



     SECTION 3. Miscellaneous.



          A. After giving effect to this Amendment, on and as of the date hereof, except as otherwise
disclosed in writing to BMO CM, the Borrower’s representations and warranties set forth in Section
8.1 of the Receivables Financing Agreement (as amended hereby) are true and correct in all material
respects, as though made on and as of such date (except to the extent such representations and
warranties relate solely to an earlier date and then as of such earlier date).




          B. This Amendment may be executed in any number of counterparts, and by the different parties
hereto on the same or separate counterparts, each of which when so executed



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and delivered shall be deemed to be an original instrument but all of which together shall
constitute one and the same agreement.




          C. The effectiveness of this Amendment is subject to the following condition precedents:





	 	i.	 	the Administrator shall have received
counterparts of this Amendment, duly executed by all parties hereto;
	 
	 	ii.	 	the execution and delivery of the Asta
Guaranties and the Guarantor Security Agreements by all parties
thereto;
	 
	 	iii.	 	the delivery of (a) the Pledged Note to the
Collateral Agent and (b) opinions in connection with this Amendment and
related documents in form and substance reasonably satisfactory to the
Collateral Agent; and
	 
	 	iv.	 	the Borrower shall have reimbursed the
Administrator for all its reasonable documented out-of-pocket costs and
out-of-pocket expenses incurred in connection with the preparation and
delivery of this Amendment, including, without limitation, the fees and
disbursements of counsel to the Administrator.





          D. The descriptive headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.




          E. This Amendment may not be amended or otherwise modified except as provided in the
Receivables Financing Agreement.




          F. Each of the Administrator and the Lender do not waive and have not waived, and hereby
expressly reserve, its right at any time to take any and all actions, and to exercise any and all
remedies, authorized or permitted under the Receivables Financing Agreement, as amended, or any of
the other Transaction Documents, or available at law or equity or otherwise.




          G. Any provision in this Amendment which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.




          H. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICTS OF LAW
PRINCIPLES (OTHER THAN THOSE SET FORTH IN SECTION 5- 1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK).




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          I. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES 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, THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF BORROWER, ASTA,
THE ORIGINATOR, THE SERVICER, THE ADMINISTRATOR, THE COLLATERAL AGENT, LENDER OR ANY OTHER AFFECTED
PARTY. EACH OF BORROWER AND THE SERVICER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER TRANSACTION
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE OTHER
PARTIES ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER TRANSACTION DOCUMENT.




          J. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER AND THE SERVICER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF
THE BORROWER AND THE SERVICER IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.




          K. The parties hereto hereby acknowledge the following breaches of the Transaction Documents
may have occurred: (i) the failure of the Borrower to notify the Administrator, the Collateral
Agent and the Liquidity Agent, in accordance with Section 9.18 of the Receivables Financing
Agreement of certain proceedings, (ii) the failure of the Borrower to deliver to the Administrator
an opinion of counsel described in Section 9.1.11 of the Receivables Financing Agreement for the
2008 calendar year, (iii) the failure to comply with Section 9.2.1 of the Receivables Financing
Agreement, (iv) the failure of the Borrower to satisfy the Rolling Collection Rate test set forth
in Section 10.1.14 of the Receivables Financing Agreement for the November 2008, December 2008 and
January 2009 Collection Periods and (v) the failure of the Borrower to deliver amendments to a
Subservicing Agreement and a related Management Agreement in accordance with Section 3.01 of the
Servicing Agreement (collectively, the “Potential Breaches”). The Lender, the
Administrator, the Collateral Agent and the Liquidity Agent each hereby agree to waive the
Termination Events and Servicer Termination Events, if any, relating to the Potential Breaches that
occurred prior to the date hereof.




[Signature Pages Follow]




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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their proper and duly authorized officers as of the 20th of February, 2009.




	 	 	 	 	 
	 	PALISADES ACQUISITION XVI, LLC,

as Borrower

 	 
	 	By:  	/s/ Gary Stern
 	 
	 	 	Name:  	Gary Stern 	 
	 	 	Title:  	Manager 	 
	 



Signature Page to Fourth Amendment





 









 








	 	 	 	 	 
	 	BMO CAPITAL MARKET CORP.,

as Administrator and as Collateral Agent

 	 
	 	By:  	/s/
John Pappano	 
	 	 	Name:  	John Pappano	 
	 	 	Title:  	Managing Director	 
	 



Signature Page to Fourth Amendment




	 	 	 	 	 



 









 






	 	 	 	 	 
	 	FAIRWAY FINANCE COMPANY, LLC,

as Lender

 	 
	 	By:  	/s/
Phillip A. Martone	 
	 	 	Name:  	Phillip A. Martone	 
	 	 	Title:  	Vice President	 
	 



Signature Page to Fourth Amendment




	 	 	 	 	 



 









 







	 	 	 	 	 
	 	PALISADES COLLECTION, L.L.C.,

as Servicer

 	 
	 	By:  	/s/ Gary Stern
 	 
	 	 	Name:  	Gary Stern 	 
	 	 	Title:  	Manager 	 
	 



Signature Page to Fourth Amendment





 









 








	 	 	 	 	 
	 	BANK OF MONTREAL, as Liquidity Agent

 	 
	 	By:  	/s/
John Pappano	 
	 	 	Name:  	John Pappano	 
	 	 	Title:  	Managing Director	 
	 



Signature Page to Fourth Amendment