WAIVER AND AMENDMENT AGREEMENT
WAIVER AND
AMENDMENT
AGREEMENT, dated as of March 31, 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 Servicer,
Borrower and LEAF III have requested, and the Required Lenders have agreed to a
certain waiver as set forth below;
WHEREAS, the parties hereto
intend to amend certain Transaction Documents 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. Waiver. The
Required Lenders hereby grant a waiver of the requirement that LEAF III and
Borrower comply with subsection (n) of the definition of Servicer Default for
the fiscal quarter ending December 31, 2007, such waiver to be applicable solely
with respect to such fiscal quarter.
SECTION
2. Amendment.
(a) As of the
Effective Date, the Definitions and Rules of Construction attached to the
Purchase and Sale Agreement as Appendix A is hereby amended to add, replace and
otherwise revise (as the case may be) definitions in alphabetical order as
follows:
(i) “Lenders”: the
following is added after the term “Assignment Agreement”: “, a Support
Agreement.”
(ii) “LIBO Rate Lender”:
the following is added at the end of such definition: “and any Support
Institution which provides credit or liquidity support to a CP Rate Lender under
a Support Agreement.”
(iii) “Scheduled Maturity
Date” means November 24, 2008.
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(b) As of
April 22, 2008, the Definitions and Rules of Construction attached to the
Purchase and Sale Agreement as Appendix A shall be amended to add, replace and
otherwise revise (as the case may be) definitions in alphabetical order as
follows:
(i) “Alternate Fee Rate”
means 3.00%, per annum.
(ii) “Facility Fee Rate”
means 2.00%, per annum.
(iii) “Funded Rate”: clause
(b) is deleted in its entirety and replaced with the following
language: “the Alternate Fee Rate or the Facility Fee Rate, whichever
is then applicable.”
(c) As of April 22, 2008, Section
2.05(a)(ii)(y) of the Loan Agreement shall be deleted in its entirety and
replaced with the following term: “the Alternate Fee
Rate.”
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 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
4. 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
5. 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 or the
Loan Agreement shall be to such Definitions and Rules of Construction or Loan
Agreement, respectively, as amended hereby.
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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. 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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_______________________ |
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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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_______________________ |
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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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_______________________ |
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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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By:
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_______________________ |
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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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_______________________ |
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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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_______________________ |
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Name:
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Title:
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