AMENDMENT AGREEMENT NO. 2
Exhibit
10.2
AMENDMENT
AGREEMENT XX. 0
XXXXXXXXX
XXXXXXXXX XX. 0, dated as of April 22, 2008 (this “Agreement”), among
LEAF III A SPE, LLC, a Delaware limited liability company (“Borrower”), LEAF
FINANCIAL CORPORATION, a Delaware corporation (“LEAF Financial”), as
servicer (in such capacity, together with its successors and assigns, the “Servicer”), LEAF
FUNDING, INC., a Delaware corporation (“LEAF Funding”), LEAF
EQUIPMENT LEASING INCOME FUND III, L.P., a Delaware limited partnership (“LEAF III”), the
Required Lenders and XXXXXXX XXXXX BANK USA, a Utah industrial bank (“MLBUSA”), as
administrative agent (together with its permitted successors in such capacity,
the “Administrative
Agent”).
WITNESSETH:
WHEREAS, capitalized terms
used herein shall have the meanings ascribed thereto in the Definitions and
Rules of Construction attached as Appendix A to the Purchase and Sale Agreement,
dated as of July 2, 2007, between LEAF Funding and LEAF III, as amended,
supplemented or otherwise modified as of the date hereof;
WHEREAS, the parties hereto
intend to amend the Definitions and Rules of Construction attached to the
Purchase and Sale Agreement as Appendix A (the “Definitions”) on the terms and
subject to the satisfaction of the conditions set forth herein.
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants and agreements
contained herein, the parties hereto hereby agree as follows:
SECTION
1. Amendment.
(a) As
of the Effective Date, certain of the Definitions are hereby amended as
follows:
(i) The
definition of “Advance Rate” is hereby amended in its entirety to read as
follows:
“Advance
Rate” means, as of any date of determination, (a) if the aggregate amount of the
Contract Values of all Purchased Contracts as of such date is less than
$50,000,000, a percentage equal to the lowest of the following: (i) 90%; (ii) a
percentage equal to (x) 100%, less (y) an amount (expressed as a percentage)
equal to (A) $2,000,000, divided by (B) the aggregate amount of the Net Contract
Values of all Purchased Contracts as of such date; and (iii) a percentage equal
to (x) 100%, less (y) an amount (expressed as a percentage) equal to (A) the
aggregate amount of the Contract Values of all Purchased Contracts as of such
date of the three (3) largest Obligors, divided by (B) the aggregate amount of
the Net Contract Values of all Purchased Contracts as of such date; and (b) if
the aggregate amount of the Contract Values of all Purchased Contracts as of
such date is greater than or equal to $50,000,000, 90%.
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(ii) The
definition of “Contract Value” is hereby amended in its entirety to read as
follows:
“Contract
Value” means (i) with respect to any Contract that is 61 days or less
delinquent, as of any date of determination, the present value of the remaining
scheduled payments of such Contract, excluding any residual payment, discounted
at the Discount Rate and (ii) with respect to any Contract that is more than 61
days delinquent, as of any date of determination, an amount equal to zero;
provided, however, that any Contract that is more than 61 days delinquent and
which subsequently is no longer delinquent without first having (x) the related
obligor be subject to an Insolvency Event, (y) been charged off by the Servicer
in accordance with the Policy and Procedures, or (z) become 121 or more days
delinquent, and is still a Contract comprising part of the Collateral, shall
have a Contract Value as provided in clause (i) hereof.
(iii) The
definition of “Funded Rate” is hereby amended in its entirety to read as
follows:
“Funded
Rate” means as of any date of determination, a rate equal to the sum of the (a)
Hedged Swap Rate as of such date and (b) the Alternate Fee Rate.
(iv) Clause
(m) of the definition of “Servicer Default” is hereby amended in its entirety to
read as follows:
(m) Either
(x) as of the last day of each fiscal quarter beginning with the fiscal quarter
ending September 30, 2007, LEAF III shall have failed to maintain minimum
“partners capital” (as reflected in its financial statements, but excluding any
xxxx-to-market gain or loss on any swap or other hedge transaction, “Partners
Capital”) of no less than 75.00% of Partners Capital reported on the
corresponding financial statements as of the immediately preceding calendar
quarter, or (y) as of September 30, 2008 or any later calendar quarter, LEAF III
shall have failed to maintain minimum Partners Capital of no less than 75.00% of
Partners Capital as reported in its June 30, 2008 financial statements;
or
(v) Clause
(n) of the definition of “Servicer Default” is hereby amended in its entirety to
read as follows:
(n) LEAF
III, together with Borrower, shall have as of the last day of each fiscal
quarter thereof a ratio of Debt (as reflected in its financial statements,
excluding any applicable cash then on deposit in the Master DDA) as
of such date to Partners Capital as of such date (in each case determined on a
consolidated basis in accordance with GAAP) in excess of 8.5 to 1.0. For further
clarification, when calculating this ratio, the Borrower and LEAF III shall also
include other entities sponsored by LEAF III and the Borrower which are not
required to be consolidated under GAAP.
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(vi) The
definition of “Static Pool Loss Ratio” is hereby amended in its entirety to read
as follows:
“Static
Pool Loss Ratio" means, with respect to a Quarterly Origination Period, as of
any date of determination, an amount, expressed as a percentage, equal to (i)
the Cumulative Losses with respect to Contracts originated during such Quarterly
Origination Period divided by (ii) the original Contract Value of Contracts
originated during such Quarterly Origination Period, in each case, regardless of
whether such Contract still comprises part of the Collateral.
SECTION
2. Conditions Precedent to the
Effectiveness of this Agreement. This Agreement shall become
effective as of the date hereof (the “Effective Date”)
provided that each of the following conditions precedent shall have been
satisfied, or waived by the Required Lenders, on or before such
date:
(a) The
Required Lenders shall have received this Agreement, executed and delivered by a
duly Authorized Officer of each party hereto.
(b) As
of the date hereof, the representations and warranties made herein by LEAF
Funding, LEAF Financial, LEAF III and Borrower shall be true and correct in all
material respects on and as of such date as if made on and as of such date
(except to the extent such representation or warranty expressly relates to an
earlier date, in which case such representation or warranty shall be true and
correct in all material respects as of such earlier date).
(c) No
Potential Termination Event or Termination Event shall have occurred and be
continuing or shall occur as a result of this Agreement.
SECTION
3. Representations and
Warranties. To induce the Required Lenders to enter into this
Agreement, each of LEAF Funding, LEAF Financial, LEAF III and Borrower hereby
represent and warrant to the Required Lenders as follows:
(a) Its
execution, delivery and performance of this Agreement have been duly and validly
authorized by all necessary action on the part of it.
(b) No
Potential Termination Event or Termination Event has occurred and is continuing
or shall occur as a result of this Agreement.
SECTION
4. Reference to and Effect on
the Transaction Documents. As of the Effective Date, any
reference in any Transaction Document to the Definitions and Rules of
Construction attached to the Purchase and Sale Agreement as Appendix A shall be
to such Definitions and Rules of Construction as amended hereby.
SECTION
5. Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts (including by facsimile transmission of
signature pages hereto), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
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SECTION
6. Severability. Any
provision of this Agreement 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.
SECTION
7. GOVERNING LAW AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
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LEAF
III A SPE, LLC, as Borrower
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By:
_______________________
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Name:
____________________
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Title:
____________________
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LEAF
FINANCIAL CORPORATION, as Servicer
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By:
_______________________
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Name:____________________
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Title:
____________________
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LEAF
FUNDING, INC.
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By:
_______________________
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Name:
_________________
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Title:
_________________
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By:
LEAF Asset Management, LLC, its General
Partner
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Name:
_________________
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Title:
_________________
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XXXX
FUNDING, LLC, as a CP Rate Lender and as Required
Lender
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By:
_______________________
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Name:____________________
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Title:
____________________
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XXXXXXX
XXXXX BANK USA, as the Administrative
Agent
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By:
_______________________
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Name:____________________
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Title:
____________________
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