AMENDMENT NO. 3 TO SECURED LOAN AGREEMENT
AMENDMENT
NO. 3
TO
THIS
AMENDMENT NO. 3, dated as June 28 2006
(the
“Amendment”),
to
the Secured Loan Agreement, dated as of December 31, 2004, as previously amended
(the “Loan
Agreement”),
between LEAF Fund I, LLC, as borrower (“Borrower”),
LEAF
Funding, Inc., as originator (“Originator”),
Lease
Equity Appreciation Fund I, L.P., as seller (“LEAF”),
LEAF
Financial Corporation, as servicer (“Servicer”),
U.S.
Bank National Association, as collateral agent and securities intermediary,
and
WestLB AG, New York Branch, as lender (“Lender”),
is
being entered into by Borrower, LEAF, Servicer and Lender.
WITNESSETH
WHEREAS,
Section 14.04 of the Loan Agreement provides that any term or provision of
the
Loan Agreement shall be amended, supplemented or otherwise modified only by
an
instrument in writing signed by LEAF, Servicer, Borrower, Lender and (to the
extent any such modification or supplement would have an adverse effect on
the
interest of the Collateral Agent or Backup Servicer) the Collateral Agent and/or
Backup Servicer;
WHEREAS,
the amendment to the Loan Agreement contemplated by this Amendment will not
have
an adverse effect on, or otherwise affect the interests, rights or obligations
of the Collateral Agent, the Backup Servicer or the Hedge
Counterparty;
WHEREAS,
the parties hereto have agreed to amend the Loan Agreement on the terms and
subject to the conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises and mutual agreement contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
Section
1. Defined
Terms.
For
purposes of this Amendment, unless the context clearly requires otherwise,
all
capitalized terms which are used but not otherwise defined herein shall have
the
respective meanings assigned to such terms in the Loan Agreement.
Section
2. Amendment
to Loan Agreement.
(a) The
definition of “Applicable Margin” set forth in Appendix A to the Loan Agreement
is hereby amended by deleting the definition in its entirety and replacing
it
with the following:
“Applicable
Margin”
means,
for each Advance and (i) any date prior to the Facility Termination Date, 0.95%
or (ii) any date that occurs on or after the Facility Termination Date,
1.85%.”
(b) Paragraph
(liii)(H) of Exhibit D to the Loan Agreement is hereby amended by deleting
such
paragraph in its entirety and replacing it with the following:
“(liii)(H)
after giving effect to the addition of the Contract to the pool of Eligible
Contracts, the Aggregate Implicit Principal Balance of Eligible Contracts (as
of
any date of determination) with respect to which any one Person or any Affiliate
of such Person is the related Customer does not exceed (1) if the Aggregate
Implicit Principal Balance of the Eligible Contracts is less than $25,000,000,
4.0% of the Aggregate Implicit Principal Balance of all Eligible Contracts,
(2)
if the Aggregate Implicit Principal Balance of the Eligible Contracts is less
than $50,000,000 but is greater than $25,000,000, the greater of (x) $1,000,000
and (y) 3.0% of the Aggregate Implicit Principal Balance of all Eligible
Contracts and (3) if the Aggregate Implicit Principal Balance of the Eligible
Contracts is greater than $50,000,000, 3.0% of the Aggregate Implicit Principal
Balance of all Eligible Contracts;”
Section
3. Representations
and Warranties.
Borrower,
LEAF and Servicer each hereby certifies that the representations and warranties
set forth in Article VI of the Loan Agreement (and any other representations
and
warranties made by Borrower, LEAF or Servicer in the Loan Agreement) are true
and correct on the date hereof with the same force and effect as if made on
the
date hereof, except to the extent such representations and warranties speak
specifically to an earlier date in which case they shall have been true and
correct on such date. In addition, Borrower, LEAF and Servicer each represents
and warrants (which representations and warranties shall survive the execution
and delivery hereof) that (a) no unwaived Facility Termination Event or Event
of
Default (nor any event that but for notice or lapse of time or both would
constitute an unwaived Facility Termination Event or Event of Default) shall
have occurred and be continuing as of the date hereof nor shall any unwaived
Facility Termination Event or Event of Default (nor any event that but for
notice or lapse of time or both would constitute an unwaived Facility
Termination Event or Event of Default) occur due to this Amendment becoming
effective, (b) Borrower, LEAF and Servicer each has the power and authority
to
execute and deliver this Amendment and has taken or caused to be taken all
necessary actions to authorize the execution and delivery of this Amendment,
(c)
no consent of any other person (including, without limitation, members or
creditors of Borrower, LEAF or Servicer), and no action of, or filing with
any
governmental or public body or authority is required to authorize, or is
otherwise required in connection with the execution and performance of this
Amendment, other than such that have been obtained, (d) the Loan Agreement,
as
amended by this Amendment, constitutes the legal, valid and binding obligation
of Servicer, LEAF and the Borrower, enforceable against them in accordance
with
its terms except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization and other similar laws of general
application affecting creditors’ rights generally and by general principles of
equity (whether such enforceability is considered in a proceeding in equity
or
law), and (e) the execution, delivery and performance of this Amendment will
not
violate any provision of any existing law or regulation or any order or decree
of any court, regulatory body or administrative agency or the certificate of
formation or the limited liability company agreement of Servicer, LEAF or
Borrower or any material indenture, agreement, mortgage, deed of trust or other
instrument to which Servicer, LEAF or the Borrower is a party or by which it
is
bound.
Section
4. Effect
of Amendment.
Upon
the
execution of this Amendment, the Loan Agreement shall be, and be deemed to
be,
modified and amended in accordance herewith and the respective rights,
limitations, obligations, duties, liabilities and immunities of the parties
hereto shall hereafter be determined, exercised and enforced subject in all
respects to such modifications and amendments, and all the terms and conditions
of this Amendment shall be deemed to be part of the terms and conditions of
the
Loan Agreement, for any and all purposes. Except as modified and expressly
amended by this Amendment, the Amendment is in all respects ratified and
confirmed, and all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
Section
5. Binding
Effect.
The
provisions of this Amendment shall be binding upon and shall be enforceable
by
the parties hereto and their respective successors and assigns.
Section
6. Governing
Law.
This
Amendment shall be construed in accordance with the substantive laws of the
State of New York (without regard to conflict of law principles, other than
Section 5-1401 of the New York General Obligations Law) and the
obligations, rights and remedies of the parties hereto shall be determined
in
accordance with such laws.
Section
7. Severability
of Provisions.
If
any
one or more of the provisions or terms of this Amendment shall be for any reason
whatsoever held invalid, then such provisions or terms shall be deemed severable
from the remaining provisions or terms of this Amendment and shall in no way
affect the validity or enforceability of the other provisions or terms of this
Amendment.
Section
8. Counterparts.
This
Amendment may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO
SECURED LOAN AGREEMENT to be executed by their duly authorized representatives
on the date first written above.
|
LEAF
FUND I, LLC, as Borrower
By:
_________________________________
Name:
Xxxxx Xxxxxx
Title:
Vice President
|
|
|
LEASE
EQUITY APPRECIATION FUND I, L.P., as Seller
By:
LEAF FINANCIAL CORPORATION, as General
Partner
By:
_________________________________
Name:
Xxxxx Xxxxxx
Title:
President, COO
|
|
|
LEAF
FINANCIAL CORPORATION, as Servicer
By:
_________________________________
Name:
Xxxxx Xxxxxx
Title:
President, COO
|
|
|
WESTLB
AG, NEW YORK BRANCH,
as
Lender
By:
_________________________________
Name:
Title:
By:
_________________________________
Name:
Title:
|
ACKNOWLEDGED
AND AGREED:
U.S.
BANK
NATIONAL ASSOCIATION,
as
Collateral Agent and Securities Intermediary
By:
Name:
Title:
LEAF
FUNDING, INC., as Originator
By:
Name: Xxxxx
Xxxxxx
Title: SVP
&
COO
DAL-FS1\85576v01
