AMENDMENT No. 1 TO SECURED LOAN AGREEMENT
Exhibit 10.1
AMENDMENT No. 1 TO SECURED LOAN AGREEMENT
AMENDMENT TO SECURED LOAN AGREEMENT (this “Amendment”) dated as of September 24, 2007 among
WESTLB AG, NEW YORK BRANCH (the “Lender”), U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the “Collateral Agent” and “Securities Intermediary”), LEAF EQUIPMENT LEASING
INCOME FUND III, L.P., a Delaware limited partnership (“LEAF” or the “Seller”), LEAF FINANCIAL
CORPORATION, a Delaware corporation (the “Servicer”), LEAF FUNDING INC., a Delaware corporation
(the “Originator”) and LEAF FUND III, LLC, a Delaware limited liability company (the “Borrower”).
W
I T N E S S E
T H:
WHEREAS, the parties hereto are parties to the Secured Loan Agreement, dated as of June 19,
2007 (the “Secured Loan Agreement”);
WHEREAS, pursuant to Section 14.04 of the Secured Loan Agreement, the parties hereto wish to
amend the Secured Loan Agreement and hereby agree that the Secured Loan Agreement is hereby
amended; and
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
SECTION 1. Definitions.
(a) Whenever
used in this Amendment, capitalized terms used and not otherwise
defined herein shall have the meanings set forth in Appendix A to the Secured Loan Agreement.
(b) Any
term that relates to a document or a statute, rule, or regulation includes any
amendments, modifications, supplements, or any other changes that may have occurred since the
document, statute, rule, or regulation came into being, including changes that occur after the
date of this Amendment.
SECTION 2. Amendments. The parties hereto hereby agree, pursuant to Section 14.04 of
the Secured Loan Agreement, to amend the Secured Loan Agreement as follows:
(a) The definition of Maximum Facility Amount in Appendix A shall be struck in its
entirety and replaced with:
entirety and replaced with:
“Maximum Facility Amount” means $250,000,000.
(b) The
Note is hereby modified so that the Maximum Facility Amount thereunder is
$250,000,000.
SECTION 3. Representations and Warranties. Borrower, LEAF and Servicer each hereby
severally certifies as to itself that its respective representations and warranties set forth in
Article VI of the Secured Loan Agreement (and any other representations and warranties made by
Borrower, LEAF or Servicer in the Secured 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 severally
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 Secured 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. Ratification. Upon execution of this Amendment, the Secured Loan Agreement
shall be amended in accordance herewith, and the respective rights, limitations, obligations,
duties, liabilities and immunities of the parties shall hereafter be determined, exercised and
enforced subject in all respects to such amendments, and the terms of this Amendment shall be a
part of the Secured 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. GOVERNING LAW. THIS AGREEMENT SHALL, IN
ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW
PRINCIPLES THEREOF.
SECTION 6. Counterparts. For the purpose of facilitating the execution of this
Amendment and for other purposes, this Amendment may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be an original and together shall constitute and be
one and the same instrument.
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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. Amendment. This Amendment may be amended or modified from time to time by
the parties hereto, but only by an instrument in writing signed by each of the parties hereto.
SECTION 9. Headings. The Section headings are not part of this Amendment and shall
not be used in its interpretation.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first
above written.
LEAF FUND III, LLC, as Borrower |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | President, COO | |||
LEAF EQUIPMENT LEASING INCOME FUND III, L.P., as Seller |
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By: | LEAF ASSET MANAGEMENT LLC as General Partner |
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By: | /s/ Xxxxx Xxxxxx | |||||||
Name: | Xxxxx Xxxxxx | |||||||
Title: | President, COO |
LEAF FINANCIAL CORPORATION, as Service |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | President, COO | |||
LEAF FUNDING, INC., as Originator |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Senior Vice President |
U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent and Securities Intermediary |
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By: | ||||
Name: | ||||
Title: |
WESTLB AG, NEW YORK BRANCH, as Lender |
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By: | ||||
Name: | ||||
Title: |
By: | ||||
Name: | ||||
Title: | ||||