ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
EXHIBIT
10.10(a)
EXECUTION
ASSIGNMENT,
ASSUMPTION AND AMENDMENT AGREEMENT
ASSIGNMENT,
ASSUMPTION AND AMENDMENT
AGREEMENT,
dated
as
of September 29, 2006 (this “Agreement”),
among
LEAF FUNDING, INC., a Delaware corporation (“LEAF
Funding”),
LEAF
INSTITUTIONAL DIRECT MANAGEMENT, LLC, a Delaware limited liability company
(“LEAF
IDM”),
LEAF
FINANCIAL CORPORATION, a Delaware corporation ("LEAF
Financial"),
LEASE
EQUITY APPRECIATION FUND II, L.P., a Delaware limited partnership (“LEAF
II”),
LEAF
II B SPE, LLC, a Delaware limited liability company (“LEAF
II B SPE”),
XXXXXXX
XXXXX EQUIPMENT FINANCE LLC,
a
Delaware limited liability company (“MLEF”),
XXXXXXX XXXXX COMMERCIAL FINANCE CORP., a Delaware corporation ("Lender”),
and
U.S. BANK NATIONAL ASSOCIATION, as Custodian and Paying Agent ("U.S.
Bank").
WITNESSETH:
WHEREAS,
capitalized terms used herein not otherwise defined herein shall have the
meanings ascribed thereto in Appendix A attached hereto;
WHEREAS,
LEAF
Funding, LEAF IDM, LEAF Financial, MLEF, the Lender and U.S. Bank are parties
to
the Transaction Documents (as such term is defined in that certain Purchase,
Sale and Contribution Agreement, dated as of April 8, 2003, between LEAF
Funding
and LEAF IDM, as amended, supplemented or otherwise modified prior to the
date
hereof, and referred to herein as the “Existing
Transaction Documents”),
pursuant to which (i) LEAF Funding shall from time to time sell to LEAF IDM,
and
LEAF IDM shall from time to time purchase from LEAF Funding, all of LEAF
Funding’s right, title and interest in, to and under certain Purchased
Contracts; (ii) LEAF IDM shall from time to time sell to MLEF, and MLEF shall
from time to time purchase from LEAF IDM, all of LEAF IDM’s right, title and
interest in, to and under such Purchased Contracts; (iii) the Lender shall
from
time to time lend to MLEF amounts sufficient to purchase such Purchased
Contracts, and MLEF’s obligations to the Lender shall be secured by, among other
things, MLEF’s right, title and interest in, to and under such Purchased
Contracts; and (iv) the Servicer shall service such Purchased Contracts;
WHEREAS,
the
parties hereto intend that MLEF transfer, assign and convey to LEAF II B
SPE all
of MLEF’s right title and interest in, to and under the Purchased Contracts and
the Existing Transaction Documents, and in connection therewith, LEAF II
B SPE
shall assume and undertake to perform all of MLEF’s liabilities and obligations
under the Purchased Contracts and the Existing Transaction
Documents;
WHEREAS,
the
parties hereto intend that LEAF IDM transfer, assign and convey to LEAF II
all
of LEAF IDM’s right title and interest in, to and under the Purchased Contracts
and the Existing Transaction Documents, and in connection therewith, LEAF
II
shall
assume
and undertake to perform all of LEAF IDM’s liabilities and obligations under the
Purchased Contracts and the Existing Transaction Documents; and
WHEREAS,
the
parties hereto intend to amend the Transaction Documents in order to give
effect
to the foregoing transactions 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. Assignment
and Assumption; Purchase Price.
On the
Effective Date (as defined in Section 3 hereof), subject to the terms and
conditions hereof:
(a) MLEF
hereby sells, transfers, assigns and otherwise conveys, without recourse,
to
LEAF II B SPE and LEAF II B SPE hereby purchases from MLEF, all of MLEF’s right,
title and interest in, to and under each of the Purchased Contracts owned
by
MLEF as of the date hereof, together with all of MLEF’s right, title and
interest in, to and under each of the Transaction Documents. MLEF’s sale,
transference and assignment hereunder of the Purchased Contracts and MLEF’s
right, title and interest in, to and under each of the Transaction Documents
is
final and irrevocable from and after the Effective Date, and none of LEAF
Funding, LEAF IDM, LEAF Financial, LEAF II and LEAF II B SPE shall have any
right to require that such transference and assignment terminate or that
MLEF
repurchase such Purchased Contracts or MLEF’s right, title and interest in, to
and under each of the Transaction Documents from LEAF II B SPE.
(b) MLEF
delegates, transfers, assigns and otherwise conveys, with recourse, to LEAF
II B
SPE, and LEAF II B SPE hereby assumes from MLEF, all of MLEF’s duties,
obligations and liabilities in, to and under each of the Purchased Contracts
owned by MLEF as of the date hereof, together with all of MLEF’s right, title
and interest in, to and under each of the Transaction Documents. MLEF’s
delegation, transference and assignment hereunder of the Purchased Contracts
and
MLEF’s right, title and interest in, to and under each of the Transaction
Documents is final and irrevocable from and after the Effective Date, and
none
of LEAF Funding, LEAF IDM, LEAF Financial, LEAF II and LEAF II B SPE shall
have
any right to require that such delegation, transference and assignment terminate
or that MLEF re-assume such duties, obligations and liabilities from LEAF
II B
SPE.
(c) LEAF
IDM
hereby sells, transfers, assigns and otherwise conveys, without recourse,
to
LEAF II and LEAF II hereby purchases from LEAF IDM, all of LEAF IDM’s right,
title and interest in, to and under each of the Purchased Contracts owned
by
LEAF IDM as of the date hereof, together with all of LEAF IDM’s right, title and
interest in, to and under each of the Transaction Documents. LEAF IDM’s sale,
transference and assignment hereunder of the Purchased Contracts and LEAF
IDM’s
right, title and interest in, to and under each of the Transaction Documents
is
final and irrevocable from and after the Effective Date, and none of LEAF
Funding, LEAF IDM, LEAF Financial, LEAF II and LEAF II B SPE shall have any
right to require that such transference and assignment terminate or that
LEAF
IDM repurchase such
(2)
Purchased
Contracts or LEAF IDM’s right, title and interest in, to and under each of the
Transaction Documents from LEAF II.
(d) LEAF
IDM
delegates, transfers, assigns and otherwise conveys, with recourse, to LEAF
II,
and LEAF II hereby assumes from LEAF IDM, all of LEAF IDM’s duties, obligations
and liabilities in, to and under each of the Purchased Contracts owned by
LEAF
IDM as of the date hereof, together with all of LEAF IDM’s right, title and
interest in, to and under each of the Transaction Documents. LEAF IDM’s
delegation, transference and assignment hereunder of the Purchased Contracts
and
LEAF IDM’s right, title and interest in, to and under each of the Transaction
Documents is final and irrevocable from and after the Effective Date, and
none
of LEAF Funding, LEAF IDM, LEAF Financial, LEAF II and LEAF II B SPE shall
have
any right to require that such delegation, transference and assignment terminate
or that LEAF IDM re-assume such duties, obligations and liabilities from
LEAF
II.
(e) Each
of
the parties hereto consents to the foregoing sales, transfers, assignments,
conveyances and delegations and each party hereto hereby acknowledge and
agrees
that all property, whether tangible or intangible, as sold, transferred,
assigned, conveyed and delegated is done so subject to the continuing first
priority Lien of the Lender therein.
(f) In
consideration of the foregoing, LEAF II B SPE shall pay to MLEF a net amount
equal to $188,824,807.55 (the “Purchase
Price”),
which
shall include LEAF II B SPE’s assumption of the indebtedness and liabilities of
MLEF then due and owing under the Existing Transaction Documents in the
principal amount of $173,043.222.82. All amounts payable to MLEF in cash
shall
be paid in same day funds, without defense, setoff or counterclaim, and shall
be
made to an account of MLEF or Affiliate thereof that has been notified to
LEAF
II in writing
SECTION
2. Amendment.
As of
the Effective Date:
(a) Purchase,
Sale and Contribution Agreement.
The
Purchase, Sale and Contribution Agreement is hereby amended as
follows:
(i) Each
reference therein to “Borrower” shall be deemed to be a reference to LEAF II B
SPE, as assignee of MLEF.
(ii)
Each
reference therein to “LEAF SPE” shall be deemed to be a reference to LEAF II, as
assignee of LEAF IDM.
(iii) Each
reference therein to the phrase “the applicable Collection Account” is hereby
amended by deleting it in its entirety and, in lieu thereof, inserting the
phrase “the Collection Account”.
(iv) The
Definitions and Rules of Construction attached thereto as Appendix A is hereby
amended and restated in its entirety in the form of Appendix A attached
hereto.
(3)
(v) The
Form
of Purchase Date Notice attached thereto as Exhibit A is hereby amended and
restated in its entirety in the form of Exhibit I attached hereto.
(vi) Section
2.02 thereof is hereby amended by deleting it in its entirety and, in lieu
thereof, the following:
“SECTION
2.02 Purchase
Price.
In
consideration of the sale, transference and assignment of the Purchased
Contracts to be sold, transferred and assigned on any Purchase Date, LEAF
II
shall pay to LEAF Funding the Purchase Price for each Purchased Contract
on the
applicable Purchase Date, which shall be paid in immediately available funds
on
such Purchase Date in accordance with the funding instructions set forth
in the
applicable Purchase Date Notice.”
(vii) Section
2.03 thereof is hereby amended by deleting it in its entirety and, in lieu
thereof, inserting “Section 2.03 Intentionally Omitted.”
(viii) Section
3.02(a)(iii)(A)(1) thereof is hereby amended by deleting it in its entirety
and,
in lieu thereof, inserting “(1) Intentionally Omitted;”.
(ix) Section
3.02(f)(i)(A) thereof is hereby amended by deleting it in its entirety and,
in
lieu thereof, inserting “(A) Intentionally Omitted;”.
(b) Purchase
and Sale Agreement.
The
Purchase and Sale Agreement is hereby amended as follows:
(i) Each
reference therein to “Borrower” shall be deemed to be a reference to LEAF II B
SPE, as assignee of MLEF.
(ii)
Each
reference therein to “LEAF SPE” shall be deemed to be a reference to LEAF II, as
assignee of LEAF IDM.
(iii) Each
reference therein to the phrase “the applicable Collection Account” is hereby
amended by deleting it in its entirety and, in lieu thereof, inserting the
phrase “the Collection Account”.
(iv) Section
2.02 thereof is hereby amended by deleting it in its entirety and, in lieu
thereof, the following:
“SECTION
2.02 Purchase
Price.
In
consideration of the sale, transference and assignment of the Purchased
Contracts to be sold, transferred and assigned on any Purchase Date, LEAF
II B
SPE shall pay to LEAF II the Purchase Price for each Purchased Contract on
the
applicable Purchase Date, which shall be paid in immediately available funds
on
such Purchase Date in accordance with the funding instructions set forth
in the
applicable Purchase Date Notice. Notwithstanding
(4)
anything
herein or in any other Transaction Document to the contrary, as of each Purchase
Date, the excess, if any, of the fair market value of any Purchased Contract
over the Purchase Price for such Purchased Contract on such Purchase Date
shall
be deemed to be a contribution to the capital of LEAF II B SPE by LEAF II,
which
shall increase LEAF II’s beneficial ownership interest in LEAF II B
SPE.”
(v) Section
2.04 thereof is hereby amended by deleting it in its entirety.
(vi) Article
VIII thereof is hereby amended by inserting the following at the end
thereof:
“SECTION
8.14 Relationship
of LEAF II and LEAF II B SPE.
(a) The
relationship between LEAF II and LEAF II B SPE shall be that of buyer and
seller. Neither is a trustee or agent for the other, nor does either have
fiduciary obligations to other. This Agreement shall not be construed to
create
a partnership or joint venture between LEAF II and LEAF II B SPE.
(b) LEAF
II B
SPE shall maintain at all times a telephone number different from any telephone
numbers of LEAF II. LEAF II B SPE shall use stationery separate from that
of
LEAF II.
(c) LEAF
II B
SPE and LEAF II shall take steps to ensure that their respective creditors
are
aware that LEAF II B SPE is a legal entity separate and distinct from any
other
Entity and maintains its assets, and conducts its operations, separate from
those of any other Entity. Neither LEAF II B SPE nor LEAF II shall fail to
correct any known misunderstanding regarding their separate identity. LEAF
II
shall not purport to operate as an integrated, single economic unit with
LEAF II
B SPE in dealing with any unaffiliated Entity. LEAF II shall not finance
LEAF II
B SPE’s operations or guarantee LEAF II B SPE’s obligations. LEAF II B SPE shall
pay from its own funds, to the extent funds are available, its operating
expenses and liabilities, including legal fees and expenses, or shall reimburse
LEAF II for any such expenses or liabilities paid by LEAF II on LEAF II B
SPE’s
behalf. LEAF II B SPE shall not hold out the assets or creditworthiness of
LEAF
II as being available for the payment of LEAF II B SPE’s liabilities or
obligations, and LEAF II B SPE shall not hold out its assets or creditworthiness
as being available for the payment of the liabilities or obligations of LEAF
II
or any of its affiliates other than LEAF II B SPE. LEAF II shall not hold
out
the assets or creditworthiness of LEAF II B SPE, nor shall LEAF II B SPE
permit
LEAF II to hold its assets or creditworthiness, as being available for the
payment of the liabilities or obligations of LEAF II or any of its affiliates
(other than LEAF II B SPE). LEAF II shall not hold out the assets
or
(5)
creditworthiness
of it or any of its affiliates (other than LEAF II B SPE) as being available
for
the payment of the liabilities or obligations of LEAF II B SPE. LEAF II B
SPE
shall not permit the assets or creditworthiness of LEAF II or any of its
affiliates (other than LEAF II B SPE) to be held out as being available for
payment of the liabilities or obligations of LEAF II B SPE. Neither LEAF
II nor
LEAF II B SPE shall use or permit the separate trust existence of LEAF II
B SPE
to be used by LEAF II to abuse creditors or to perpetrate a fraud, injury,
or
injustice on creditors.
(d) LEAF
II
and LEAF II B SPE shall each conduct its respective business separate and
apart
from the business conducted by the other. LEAF II B SPE shall maintain its
books
and records distinct and separately identifiable from the corporate records
of
LEAF II and any other Entity. LEAF II B SPE shall prepare financial records
distinct and separately identifiable from the financial records of LEAF II
or
any of its affiliates (other than LEAF II B SPE). LEAF II B SPE shall prepare
and maintain such statements and reports in accordance with generally accepted
accounting principles. LEAF II shall indicate in such consolidated financial
statements that the assets of LEAF II B SPE are not available to satisfy
the
creditors of any Entity other than LEAF II B SPE. To the extent that LEAF
II B
SPE is required to file tax returns under applicable law, LEAF II B SPE shall
file such tax returns separate from those of any other Entity. LEAF II B
SPE
shall keep its funds and bank accounts separate and apart from the funds
of LEAF
II and any of its affiliates (other than LEAF II B SPE), and shall maintain
its
other assets separately identifiable and distinguishable from the assets
of LEAF
II and any of its affiliates (other than LEAF II B SPE). LEAF II B SPE shall
not
commingle its funds or other assets with those of any other Entity.
(e) LEAF
II B
SPE shall act solely in its own name and solely through its duly Authorized
Officers or agents. LEAF II B SPE shall comply with the provisions of its
limited liability company agreement, and shall comply in all material respects
with the laws of the State of Delaware, insofar as they pertain to its
separateness. In addition, LEAF II, as the sole member of LEAF II B SPE,
shall
execute such consents as may be necessary to authorize action by LEAF II
B SPE,
and LEAF II B SPE shall maintain appropriate records of its written consents
and
shall observe all requisite corporate formalities insofar as they pertain
to
LEAF II B SPE’s separate existence.
(f) All
transactions between LEAF II and LEAF II B SPE are and shall be duly authorized
and documented, and recorded accurately in their respective books and records.
All such transactions shall be fair to each party, constitute exchanges for
fair
consideration and for reasonably equivalent value, and shall be made in good
faith and without any intent to
(6)
hinder,
delay, or defraud creditors. LEAF II B SPE shall not take any action, and
shall
not engage in transactions with LEAF II or any of its Affiliates (other than
LEAF II B SPE) except as directed by LEAF II, and LEAF II shall not give
any
directions that are prohibited by LEAF II B SPE’s limited liability company
agreement.”
(c) Loan
Agreement.
The
Loan Agreement is hereby amended as follows:
(i) Each
reference therein to “Borrower” shall be deemed to be a reference to LEAF II B
SPE, as assignee of MLEF.
(ii) Each
reference therein to “LEAF SPE” shall be deemed to be a reference to LEAF II, as
assignee of LEAF IDM.
(iii) The
form
of Class A Note attached thereto as Exhibit A is hereby amended and restated
in
its entirety in the form of Exhibit II attached hereto.
(iv) The
form
of Class B Note attached thereto as Exhibit B is hereby deleted in its
entirety.
(v) Section
2.01 thereof is hereby amended by deleting it in its entirety and, in lieu
thereof, the following:
“SECTION
2.01 Commitment.
During
the Effective Period, subject to the terms and conditions herein set forth,
the
Lender agrees to make Advances to LEAF II B SPE in an aggregate principal
amount
not to exceed the Commitment. The Commitment shall automatically and permanently
be reduced to zero on the Expiry Date. Subject to the terms, provisions and
limitations set forth herein, LEAF II B SPE may borrow and repay, but not
reborrow, Advances on or after the Closing Date and prior to the Expiry
Date.”
(vi) Section
2.02(a) thereof is hereby amended by deleting it in its entirety and, in
lieu
thereof, the following:
“(a)
Upon
receipt of the Purchase Date Notice, and subject to the terms and conditions
hereof, the Lender shall make Advances to LEAF II B SPE on the applicable
Purchase Date in an aggregate amount equal to (x) the Advance Rate as of
such
date times
(y) the
Contract Value of each Purchased Contract to be purchased as of such Purchase
Date.”
(vii) Section
2.03(c) thereof is hereby amended by deleting it in its entirety and, in
lieu
thereof, the following:
“(c)
If
requested in writing by the Lender, all Advances made by the Lender to LEAF
II B
SPE shall be evidenced by a single Note duly executed on behalf of LEAF II
B SPE
and delivered to and made payable
(7)
to
the
order of the Lender in a principal amount equal to the amount of the
Commitment.”
(viii) The
second sentence of Section 2.04 thereof is hereby amended by deleting it
in its
entirety and, in lieu thereof, the following:
“Each
Advance shall bear interest on the principal amount thereof from time to
time
outstanding, from the date of on which such Advance is made until such principal
amount becomes due, at a rate per annum equal to the sum of (i) the LIBO
Rate,
plus
(ii) the
Facility Rate; provided, upon the occurrence of a Servicer Default each Advance
shall bear interest on the principal amount thereof from time to time
outstanding, from the date of such occurrence until such principal amount
becomes due, at a rate per annum equal to the Default Funding
Rate.”
(ix) Section
2.05 thereof is hereby amended by deleting the phrase “the Applicable Priority
of Payments” in its entirety and, in lieu thereof, inserting the phrase “the
Priority of Payments”.
(x) Section
3.02(d) thereof is hereby amended by deleting the “and” at the end of clause
(iii) thereof, deleting the “.” at the end of clause (iv) thereof inserting, in
lieu thereof “ and;”, and inserting the following the following at the end
thereof:
“(v)
immediately prior to and after giving effect to the Advances to be made on
such
Purchase Date, (x) the Maximum Advance Amount as of such date does not exceed
the aggregate amount of the Note Balance as of such date, and (y) the aggregate
amount of the Note Balance as of such date does not exceed the Commitment
in
effect as of such date.”
(xi) Section
4.01 thereof is hereby amended by inserting the following the following at
the
end thereof:
“(f)
No
Proceedings.
There
are no proceedings, injunctions, writs, restraining orders or investigations
pending or, to the best knowledge of LEAF II B SPE, threatened against LEAF
II B
SPE before any Governmental Authority (i) asserting the illegality, invalidity
or unenforceability, or seeking any determination or ruling that would affect
the legality, validity or enforceability of, this Agreement or any of the
other
Transaction Documents, (ii) seeking to prevent the consummation of any of
the
transactions contemplated by this Agreement or any of the other Transaction
Documents, or (iii) seeking any determination or ruling that is reasonably
likely to affect adversely the financial condition or operations of LEAF
II B
SPE or the validity or enforceability of, or the performance by LEAF II B
SPE of
its obligations under, this Agreement or any of the other Transaction
Documents.
(8)
(g)
No
Consents.
No
authorization, consent, license, order or approval of, filing, registration
or
declaration with, or notice to, any Person, including, without limitation,
any
Governmental Authority, is required for LEAF II B SPE in connection with
the
execution and delivery of this Agreement or any of the other Transaction
Documents by LEAF II B SPE or the performance of its obligations under this
Agreement or any of the other Transaction Documents, except for the filing
of
documents required to have been filed on or prior to the Closing Date or
a
Purchase Date pursuant to Sections 3.01 and 3.02, all of which were so filed
and
are in full force and effect.
(h)
Ownership;
Liens.
(i)
On
each Purchase Date, LEAF II B SPE is the sole and exclusive owner of each
Purchased Contract purchased by LEAF II B SPE on such date, each such Purchased
Contract is free and clear of any Lien and no effective financing statement
or
other instrument similar in effect covering such Purchased Contract is on
file
in any recording office.
(ii)
As
of each Purchase Date, each Purchased Contract shall be acquired by LEAF
II B
SPE from LEAF II free and clear of any Lien except Permitted Liens.
(i)
Location.
The
principal place of business and major executive office of LEAF II B SPE,
and the
offices where LEAF II B SPE keeps the originals of its books, records and
documents regarding the Purchased Contracts sold hereunder, are located at
LEAF
II B SPE’s address specified in Section 8.09.
(j)
Valid
Lien.
This
Agreement creates, to secure the Obligations, a valid security interest (as
defined in the UCC) in the Collateral and, upon the filing of the financing
statements on Form UCC-1 described in Section 3.01, Lender will have a valid
first priority perfected security interest in the Collateral (subject to
Section
9-315 of the UCC).
(k)
Solvency.
LEAF II
B SPE is solvent and will not become insolvent after giving effect to the
transactions contemplated by this Agreement. LEAF II B SPE is currently repaying
all of its indebtedness as such indebtedness becomes due; and, after giving
effect to the transactions contemplated by this Agreement, LEAF II B SPE
will
have adequate capital to conduct its business as presently conducted and
as
contemplated by this Agreement.
(l)
Compliance.
LEAF II
B SPE has complied, and will comply on each Purchase Date, in all respects
with
all Requirements of Law with respect to it, its business and properties and
all
Purchased Contracts sold
(9)
hereunder.
LEAF II B SPE has maintained and will maintain all applicable permits,
certifications and licenses necessary in any respect with respect to its
business and properties and all Purchased Contracts sold hereunder, LEAF
II B
SPE has filed or caused to be filed, and will file, on a timely basis all
tax
returns required by any Governmental Authority.
(m)
No
Rescission.
No
Purchased Contract has been satisfied, subordinated or rescinded or, except
as
disclosed in writing to Lender, amended in any manner.
(n)
No
Insolvency Event.
No
Insolvency Event has occurred with respect to LEAF II B SPE nor, in LEAF
II B
SPE’s good faith judgment, is any Insolvency Event anticipated to occur with
respect to LEAF II B SPE in the foreseeable future.
(o)
Fraudulent
Conveyance.
LEAF II
B SPE is not entering into the transactions contemplated hereby with any
intent
of hindering, delaying or defrauding creditors.
(p)
Eligible
Contracts.
As of
the relevant Purchase Date:
(i)
each
Purchased Contract sold on such date is an Eligible Contract and the transfer,
sale and conveyance to LEAF II hereunder of such Purchased Contract does
not
conflict with, result in a breach of any of the provisions of, or constitute
(with or without notice or lapse of time or both) a default under, such
Purchased Contract or violate any Requirement of Law or subject the Lender
to
any fine, penalty or liability; and
(ii)
the
information set forth in the Purchase Date Notice with respect to each Purchased
Contract to be purchased on such date, together with the applicable electronic
data file provided in connection therewith, is and shall be true and
correct.
(q)
No
Proceedings.
There
are no proceedings, injunctions, writs, restraining orders or investigations
pending or, to the best knowledge of an Authorized Officer of LEAF II B SPE,
threatened with respect to any Purchased Contract before any Governmental
Authority asserting the illegality, invalidity or unenforceability, or seeking
any determination or ruling that would affect the legality, validity or
enforceability of any such Purchased Contract.
(r)
Legal
Name.
The
legal name of LEAF II B SPE is LEAF II B SPE, LLC.
(s)
ERISA.
No Plan
(as defined in Section 3(3) of ERISA) maintained by LEAF II B SPE or any
of its
ERISA Affiliates (as defined in Section
(10)
414(b),
(c), (m) or (o) of the Code) has any accumulated funding deficiency (within
the
meaning of Section 302 of ERISA or Section 412 of the Code), whether or not
waived, LEAF II B SPE and each ERISA Affiliate of LEAF II B SPE have, in
a
timely manner, made all contributions required to be made by it to any Plan
and
Multiemployer Plan (as defined in Section 4001(a)(3) of ERISA) to which
contributions are or have been required to be made by LEAF II B SPE or such
ERISA Affiliate, and no event requiring notice to the Pension Benefit Guaranty
Corporation under Section 302(f) of ERISA has occurred and is continuing
or
could reasonably be expected to occur with respect to any such Plan, in any
case, that could reasonably be expected to result, directly or indirectly,
in
any Lien being imposed on the property of LEAF II B SPE or the payment of
any
material amount to avoid such Lien. No Reportable Event (as defined in Section
4043 of ERISA) with respect to LEAF II B SPE or any of its ERISA Affiliates
has
occurred or could reasonably be expected to occur that could reasonably be
expected to result, directly or indirectly, in any Lien being imposed on
the
property of LEAF II B SPE or the payment of any material amount to avoid
such
Lien.
(t)
PATRIOT
Act.
To the
extent applicable, LEAF II B SPE is in compliance, in all material respects,
with the (i) Trading with the Enemy Act, as amended, and each of the
foreign assets control regulations of the Untied States Treasury Department
(31
CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation
or
executive order relating thereto, and (ii) the PATRIOT Act. No part of the
proceeds of any Advance will be used, directly or indirectly, for any payments
to any governmental official or employee, political party, official of a
political party, candidate for political office, or anyone else acting in
an
official capacity, in order to obtain, retain or direct business or obtain
any
improper advantage, in violation of the United States Foreign Corrupt Practices
Act of 1977, as amended.”
(xii) Section
5.01(e) thereof is hereby amended by deleting the phrase “the applicable
Collection Account” in its entirety and, in lieu thereof, inserting the phrase
“the Collection Account”.
(xiii) Section
5.01(f) thereof is hereby amended by deleting it in its entirety and, in
lieu
thereof, inserting the following:
“(f)
Reporting
Requirements.
(i)
LEAF
II B SPE shall (A) within one Business Day after an Authorized Officer of
LEAF
II B SPE obtains knowledge of the occurrence of any Potential Termination
Event
or any Termination Event, notify (either orally or in writing) the Lender
of
such
(11)
occurrence
and (B) as soon as possible and in any event within three Business Days after
an
Authorized Officer of LEAF II B SPE obtains knowledge of the occurrence of
any
Potential Termination Event or any Termination Event, deliver to Lender,
the
Lender a statement of an Authorized Officer of LEAF II B SPE setting forth
details of such Termination Event or such event and the action that LEAF
II B
SPE has taken and proposes to take with respect thereto.
(ii)
As
soon as possible and in any event within 10 Business Days after an Authorized
Officer of LEAF II B SPE obtains knowledge thereof, LEAF II B SPE shall notify
the Lender of any litigation, investigation or proceeding that could reasonably
be expected to impair in any respect the ability of LEAF II B SPE to perform
its
obligations under this Agreement.
(iii)
LEAF II B SPE shall promptly deliver to Lender such other information,
documents, records or reports regarding the Purchased Contracts as Lender
may
from time to time reasonably request in order to protect Lender’s interests
under or as contemplated by this Agreement.”
(xiv) Section
5.01 thereof is hereby amended by inserting the following at the end
thereof:
“(g)
Extension
or Amendment of Contract Receivables.
Except
as otherwise permitted under the Servicing Agreement, LEAF II B SPE will
not (i)
extend, amend or otherwise modify the terms of any Purchased Contract or
(ii)
rescind or cancel any Purchased Contract.
(h)
No
Actions Against Obligors.
Except
in accordance with the Servicing Agreement, LEAF II B SPE will not commence
or
settle any legal action to enforce any rights under any Purchased
Contract.”
(xv) Article
VIII thereof is hereby amended by inserting the following at the end
thereof:
“SECTION
8.11 Indemnification.
Without
limiting any other rights that any of the Indemnified Parties may have hereunder
or under any applicable law, LEAF II B SPE hereby agrees to indemnify the
Indemnified Parties from and against any and all Indemnified Amounts, whether
direct, indirect or consequential, as a result of or arising from or relating
to
or in connection with any of the following:
(a)
the
reliance by any of the Indemnified Parties on any representation or warranty
made by LEAF II B SPE under this Agreement that was incorrect in any respect
when made or deemed made;
(12)
(b)
any
breach by Lender of any of its obligations under this Agreement or any other
Transaction Document;
(c)
any
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnified Party is a party thereto;
(d)
any
commingling by LEAF II B SPE of Collections with other funds of LEAF II B
SPE or
any of its Affiliates; or
(e)
any
breach by LEAF II B SPE of any obligation under, or any violation by LEAF
II B
SPE of any Requirement of Law with respect to, any Purchased
Contract;
provided, however,
that
LEAF II B SPE shall not have any obligation to any Indemnified Party pursuant
to
this Section 8.11 for any of the foregoing (x) caused by the gross negligence
or
willful misconduct of such Indemnified Party as determined by a final judgment
of a court of competent jurisdiction or (y) that arise out of facts and
circumstances related to the Purchased Contracts occurring prior to the
Effective Date. To the extent that the undertaking to indemnify, pay and
hold
harmless set forth in this Section 8.11 may be unenforceable because it is
violative of any law or public policy, LEAF II B SPE shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable
law,
to the payment and satisfaction of all Indemnified Amounts incurred by the
Indemnified Parties.
Each
Indemnified Party shall use reasonable efforts to notify LEAF II B SPE in
advance of making any claim under this Section. Any Indemnified Amounts due
under this Section shall be payable when incurred and, in any event, within
ten
Business Days of submission of a claim by the Indemnified Party. This Section
shall survive the payment of all amounts otherwise due under this
Agreement.”
(d) Servicing
Agreement.
The
Servicing Agreement is hereby amended as follows:
(i) Each
reference therein to “Borrower” shall be deemed to be a reference to LEAF II B
SPE, as assignee of MLEF.
(ii) Each
reference therein to “LEAF SPE” shall be deemed to be a reference to LEAF II, as
assignee of LEAF IDM.
(iii) Each
reference therein to the phrase “the applicable Collection Account” or the
phrase “the applicable Collection Account” is hereby amended by deleting it in
its entirety and, in lieu thereof, inserting the phrase “the Collection
Account”.
(13)
(iv) Each
reference therein to the phrase “the Applicable Priority of Payments” is hereby
amended by deleting it in its entirety and, in lieu thereof, inserting the
phrase “the Priority of Payments”.
(v) Section
2.01(b) thereof is hereby amended by deleting the phrase “the Master DDA, the
Collection Accounts and the Reserve Accounts” in its entirety and, in lieu
thereof, inserting the phrase “the Master DDA and the Collection
Account”.
(vi) Section
2.01(c)(iv) thereof is hereby amended by deleting the phrase “and all funds on
deposit in the applicable Reserve Account” in its entirety.
(vii) Section
2.01(c)(v) thereof is hereby amended by deleting it in its entirety and,
in lieu
thereof, inserting the phrase “Intentionally Omitted”.
(viii) Section
2.01(f)(ii) thereof is hereby amended by deleting it in its entirety and,
in
lieu thereof, inserting the following:
“(ii)
at
the Servicer’s expense, with the prior written consent of the Lender, and
subject to Section 2.01(g), entering into subservicing arrangements with
any Person for the purpose of administering or collecting the
Collections.”
(ix) Section
4.01(b)(i) thereof is hereby amended by deleting the phrase “the Master DDA, the
Collection Accounts and the Reserve Accounts” in its entirety and, in lieu
thereof, inserting the phrase “the Master DDA and the Collection
Account”.
(e) Back-up
Servicing Agreement.
The
Back-up Servicing Agreement is hereby amended as follows:
(i) Each
reference therein to “Borrower” shall be deemed to be a reference to LEAF II B
SPE, as assignee of MLEF.
(ii) Each
reference therein to “LEAF SPE” shall be deemed to be a reference to LEAF II, as
assignee of LEAF IDM.
(iii) Section
2.04 thereof is hereby amended by deleting the phrase “the Applicable Priority
of Payments” in its entirety and, in lieu thereof, inserting the phrase “the
Priority of Payments”.
(f) Paying
Agent Agreement.
The
Paying Agent Agreement is hereby amended as follows:
(i) Each
reference therein to “Borrower” shall be deemed to be a reference to LEAF II B
SPE, as assignee of MLEF.
(14)
(ii) Each
reference therein to “LEAF SPE” shall be deemed to be a reference to LEAF II, as
assignee of LEAF IDM.
(iii) Each
reference therein to the phrase “the applicable Collection Account” or the
phrase “the applicable Collection Account” or the phrase “either Collection
Account” is hereby amended by deleting it in its entirety and, in lieu thereof,
inserting the phrase “the Collection Account”.
(iv) Each
reference therein to the phrase “the Applicable Priority of Payments” is hereby
amended by deleting it in its entirety and, in lieu thereof, inserting the
phrase “the Priority of Payments”.
(v) Section
3(a) thereof is hereby amended by deleting the phrase “the Master DDA, the
Collection Accounts and the Reserve Accounts” in its entirety and, in lieu
thereof, inserting the phrase “the Master DDA and the Collection
Account”.
(vi) Section
5(b) thereof is hereby amended as follows by deleting it in its entirety
and, in
lieu thereof, inserting the phrase “Intentionally Omitted”.
(vii) Sections
6(b), 6(c) and 6(d) thereof are each hereby amended by deleting it in its
entirety.
(viii) Section
7(b) thereof is hereby amended by deleting the phrase “and funds on deposit in
the applicable Reserve Account, in each case,”; in its entirety.
(g) Custodial
Agreement.
The
Paying Agent Agreement is hereby amended as follows:
(i) Each
reference therein to “Borrower” shall be deemed to be a reference to LEAF II B
SPE, as assignee of MLEF.
(ii) Each
reference therein to “LEAF SPE” shall be deemed to be a reference to LEAF II, as
assignee of LEAF IDM.
(h) Master
DDA Control Agreement.
The
Master DDA Control Agreement is hereby amended as follows:
(i) Each
reference therein to “Borrower” shall be deemed to be a reference to LEAF II B
SPE, as assignee of MLEF.
(ii) Each
reference therein to “LEAF SPE” shall be deemed to be a reference to LEAF II, as
assignee of LEAF IDM.
(i) Master
DDA Intercreditor Agreement.
The
Master DDA Intercreditor Agreement is hereby amended as
follows:
(15)
(i) Each
reference therein to “Borrower” shall be deemed to be a reference to LEAF II B
SPE, as assignee of MLEF.
(ii) Each
reference therein to “LEAF SPE” shall be deemed to be a reference to LEAF II, as
assignee of LEAF IDM.
(j) Addressees.
Each of
the Transaction Documents is amended to provide that notice information for
each
of the addressees in the Transaction Documents shall be as follows:
If
to
LEAF Funding:
LEAF
Funding, Inc.
c/o
LEAF
Financial Corporation
0000
Xxxxxx Xxxxxx, 0xx
xxxxx
Xxxxxxxxxxxx,
XX 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
Attn: Crit
XxXxxx
With
copies to:
Xxx
Xxxxx, Esq.
General
Counsel
LEAF
Financial Corporation
(same
info as above)
and:
Xxxxxxx
Abt, Esq.
Ledgewood
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
If
to
LEAF II:
Lease
Equity Appreciation Fund II, L.P.
c/o
LEAF
Financial Corporation
(same
as
above)
If
to
LEAF II B SPE:
LEAF
II B
SPE, LLC
c/o
LEAF
Financial Corporation
(same
as
above)
(16)
If
to the
Lender:
Xxxxxxx
Xxxxx Commercial Finance Corp.
4
World
Financial Center,10th
Fl.
Xxx
Xxxx,
XX 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
Attn:
Xxxxxxx
X. Xxxxx
If
to
U.S. Bank:
U.S.
Bank
National Association
000
Xxxx
Xxxxx Xxxxxx
Xx.
Xxxx,
XX 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
Attn:
Structured Finance/Leaf Financial
SECTION
3. 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 Lender and U.S. Bank, on or before such
date:
(a) Purchase
Price.
LEAF II
B SPE shall have paid to MLEF the Purchase Price in accordance with the terms
and conditions hereof.
(b) Collection
Accounts and Reserve Accounts.
The
Paying Agent shall have (i) renamed the currently existing “Collection Account
(Pool A)” as “Xxxxxxx Xxxxx Commercial Finance Corp., as Lender, Account of LEAF
II B SPE, LLC”, which account, as of the Effective Date and thereafter, shall
for all purposes of the Transaction Documents be the “Collection Account”, (ii)
transferred all amounts then on deposit in the Collection Account (Pool B),
Reserve Account (Pool A) and Reserve Account (Pool B) into the Collection
Account, and (iii) terminated each of the Collection Account (Pool B), Reserve
Account (Pool A) and Reserve Account (Pool B).
(c) Delivery
of Agreements, Documents, Instruments, Etc.
The
Lender shall have received each of the following, each, unless otherwise
noted,
dated as of Effective Date:
(i) this
Agreement, executed and delivered by a duly Authorized Officer of each party
hereto;
(ii) a
Note,
executed and delivered by a duly Authorized Officer of LEAF II B
SPE;
(iii) an
Effective Date Notice in form of Exhibit III attached hereto executed and
delivered by a duly Authorized Officer of LEAF Financial, LEAF Funding, LEAF
IDM, LEAF II and LEAF II B SPE;
(17)
(iv) copies
of
the organizational documents of each of LEAF II and LEAF II B SPE, certified
by
the Secretary of State of the State of Delaware, or, if such document is
of a
type that may not be so certified, certified by the secretary of each of
LEAF II
and LEAF II B SPE, as applicable, together with a good standing certificate
from
the Secretary of State of the State of Delaware and, if applicable, each
other
jurisdiction in the United States in which each of LEAF II and LEAF II B
SPE is
qualified to do business and, to the extent generally available, a certificate
or other evidence of good standing as to payment of any applicable franchise
or
similar taxes from the appropriate taxing authority of each jurisdiction
of
organization, each dated a recent date prior to the Effective Date;
(v) resolutions
of the board of directors (or any duly authorized committee thereof) or members
of each of LEAF II and LEAF II B SPE approving and authorizing the execution,
delivery and performance by such Person of the Transaction Documents to which
it
is a party, certified as of the Effective Date by the secretary of each of
LEAF
II and LEAF II B SPE, as applicable, as being in full force and effect without
modification or amendment;
(vi) signature
and incumbency certificates of the officers of each of LEAF II and LEAF II
B SPE
executing the Transaction Documents to which it is a party;
(vii) executed
copies of one or more favorable written opinions of counsel for LEAF Financial,
LEAF Funding, LEAF IDM, LEAF II and LEAF II B SPE in form and substance
satisfactory to the Lender and its counsel, dated as of the Effective Date
and
covering substantially such matters as LEAF II B SPE or the Lender may
reasonably request (this Agreement constituting a written request by each
of
LEAF Financial, LEAF Funding, LEAF IDM, LEAF II and LEAF II B SPE to such
counsel to deliver such opinions to LEAF II B SPE and the Lender), including,
without limitation, (x) concerning the potential application to LEAF Funding,
LEAF II and LEAF II B SPE of the doctrine of “substantive consolidation” under
the federal bankruptcy laws and (y) concerning the true sale nature of the
transactions contemplated hereby and the other Transaction Documents;
and
(viii) financing
statements relating to the conveyance of the Purchased Contracts, naming
LEAF II
as debtor, LEAF II B SPE as secured party and LEAF II B SPE as assignee thereof,
or other similar instruments or documents, as may be necessary or, in the
opinion of the Lender, desirable under the UCC of any appropriate jurisdiction
or other applicable law to perfect LEAF II’s ownership of the Purchased
Contracts and a first priority security interest therein, which financing
statements, instruments or documents shall be filed with the Secretary of
State
of the State of Delaware and such other filing offices as may be necessary
or
appropriate.
(18)
(d) Representations
and Warranties.
As of
the date hereof, the representations and warranties made herein by LEAF Funding,
LEAF IDM, LEAF Financial, LEAF II and LEAF II B SPE 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).
(e) No
Potential Termination Event or Termination Event.
No
Potential Termination Event or Termination Event shall have occurred and
be
continuing or shall occur as a result of this Agreement.
SECTION
4. Representations
and Warranties.
To
induce MLEF, the Lender and U.S. Bank to enter into this Agreement, each
of LEAF
Funding, LEAF IDM, LEAF Financial, LEAF II and LEAF II B SPE hereby represent
and warrant to MLEF, the Lender and U.S. Bank as follows as of the date
hereof:
(a) Representations
and Warranties - Transaction Documents.
The
representations and warranties made by each of LEAF Funding, LEAF IDM, LEAF
Financial, LEAF II and LEAF II B SPE in any Transaction Document (giving
effect
to the transactions contemplated hereby) are 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).
(b) Representations
and Warranties - This Agreement.
(i) It
is
duly organized and validly existing as a corporation, limited liability company
or limited partnership, as the case may be, in good standing under the laws
of
the State of Delaware. It has full power, authority and legal right to own
its
properties and conduct its business, as presently owned and conducted, and
as is
proposed to be conducted under this Agreement (and, in the case of LEAF II
B
SPE, the Note), and to execute, deliver and perform its obligations under
this
Agreement (and, in the case of LEAF II B SPE, the Note).
(ii) It
is
duly qualified to do business (or is exempt from such qualification
requirements), is in good standing, and has obtained all Governmental
Authorizations in each jurisdiction in which qualification and such Governmental
Authorization are required in connection with the conduct its business, as
presently owned and conducted, and as is proposed to be conducted under this
Agreement (and, in the case of LEAF II B SPE, the Note), and the execution,
delivery and performance of its obligations under this Agreement (and, in
the
case of LEAF II B SPE, the Note), except to the extent that any failure to
be so
qualified could not reasonably be expected to have a material adverse
effect.
(iii) Its
execution, delivery and performance of this Agreement (and, in the case of
LEAF
II B SPE, the Note) and the consummation of the transactions
(19)
contemplated
by this Agreement (and, in the case of LEAF II B SPE, the Note) have been
duly
and validly authorized by all necessary action on the part of it.
(iv) This
Agreement (and, in the case of LEAF II B SPE, the Note) constitutes a valid
and
legally binding obligation of it, enforceable against it in accordance with
its
terms, except as such enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors’ rights generally, now and hereafter in effect, and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(v) Its
execution and delivery of this Agreement (and, in the case of LEAF II B SPE,
the
Note), its performance of the transactions contemplated hereby and its
fulfillment of the terms hereof and thereof applicable to it do not (A)
contravene it’s organizational documents, (B) conflict with or violate any
Requirements of Law applicable to it, (C) violate any provision of, or require
any filing, registration, consent or approval under, any Requirement of Law
presently in effect having applicability to it, except for such filings,
registrations, consents or approvals as have already been obtained or made
and
are in full force and effect, and (D) conflict with, result in any breach
of any
of the terms or provisions of, or constitute (with or without notice or lapse
of
time or both) a default under, any indenture, Purchased Contract, agreement,
mortgage, deed of trust or other instrument to which it is a party or by
which
it or its properties or assets are bound which conflict, violation, default
or
breach would have an adverse effect on it’s ability to perform its obligations
hereunder or on the ownership of the Purchased Contracts.
(vi) There
are
no proceedings, injunctions, writs, restraining orders or investigations
pending
or, to the best knowledge of it, threatened against it before any Governmental
Authority (A) asserting the illegality, invalidity or unenforceability, or
seeking any determination or ruling that would affect the legality, validity
or
enforceability of, this Agreement (and, in the case of LEAF II B SPE, the
Note),
(B) seeking to prevent the consummation of any of the transactions contemplated
by this Agreement (and, in the case of LEAF II B SPE, the Note), or (C) seeking
any determination or ruling that is reasonably likely to affect adversely
the
financial condition or operations of it or the validity or enforceability
of, or
the performance by it of its obligations under, this Agreement (and, in the
case
of LEAF II B SPE, the Note).
(vii) No
authorization, consent, license, order or approval of, filing, registration
or
declaration with, or notice to, any Person, including, without limitation,
any
Governmental Authority, is required for it in connection with the execution
and
delivery of this Agreement (and, in the case of LEAF II B SPE, the Note)
by it
or the performance of its obligations under this Agreement (and, in
the
(20)
case
of
LEAF II B SPE, the Note), except for the filing of documents required to
have
been filed on or promptly after the Effective Date.
(c) No
Potential Termination Event or Termination Event.
No
Potential Termination Event or Termination Event has occurred and is continuing
or shall occur as a result of this Agreement.
SECTION
5. Reference
to and Effect on the Transaction Documents.
As of
the Effective Date, any reference in any Transaction Document to a Transaction
Document shall be to such Transaction Document as amended hereby.
SECTION
6. 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.
SECTION
7. 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
8. Integration.
This
Agreement and the other Transaction Documents represent the agreement of
LEAF
Funding, LEAF IDM, LEAF Financial, LEAF II, LEAF II B SPE, MLEF, the Lender
and
U.S. Bank with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by LEAF II B SPE, Lender or U.S.
Bank relative to subject matter hereof not expressly set forth or referred
to
herein or in the Transaction Documents.
SECTION
9. 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.
SECTION
10. PATRIOT
ACT.
Purchaser hereby notifies each of LEAF Funding, LEAF IDM, LEAF Financial,
LEAF
II, LEAF II B SPE that pursuant to the requirements of the PATRIOT Act, it
is
required to obtain, verify and record information that identifies each such
Person, which information includes the name and address of each such Person
and
other information that will allow such Purchaser to identify each of LEAF
Funding, LEAF IDM, LEAF Financial, LEAF II, LEAF II B SPE in accordance with
the
PATRIOT Act.
(21)
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.
LEAF
FINANCIAL CORPORATION
By:
Name:
Title:
LEAF
FUNDING, INC.
By:
Name:
Title:
LEAF
INSTITUTIONAL DIRECT MANAGEMENT, LLC
By:
LEAF
Funding, Inc., its sole member
By:
Name:
Title:
LEASE
EQUITY APPRECIATION FUND II, L.P.
By:
LEAF
Financial Corporation, its general partner
By:
Name:
Title:
LEAF
II B
SPE, LLC
By:
Lease
Equity Appreciation Fund II, L.P., its sole member
By:
LEAF
Financial Corporation, its general partner
By:
Name:
Title:
(22)
XXXXXXX
XXXXX EQUIPMENT FINANCE LLC
By:
Name:
Title:
XXXXXXX
XXXXX COMMERCIAL FINANCE CORP.
By:
Name:
Title:
U.S.
BANK
NATIONAL ASSOCIATION
By:
Name:
Title:
(23)
Appendix
A
[as
attached]
Exhibit
I
[as
attached]
Exhibit
II
[as
attached]
Exhibit
III
[as
attached]
