FIRST AMENDMENT TO SECURED LOAN AGREEMENT
This First Amendment (this "Amendment") to the Secured Loan Agreement
referenced below is entered into as of December __, 2005, among Leaf Fund II,
LLC, a Delaware limited liability company, as Borrower (the "Borrower"), Leaf
Funding, Inc., a Delaware corporation, as Originator (the "Originator"), Lease
Equity Appreciation Fund II, L.P., a Delaware limited partnership, as Seller
(the "Seller"), Leaf Financial Corporation, a Delaware corporation, as Servicer
(the "Servicer"), U.S. Bank National Association, a national banking
association, as Collateral Agent (in such capacity, the "Collateral Agent") and
as Securities Intermediary (in such capacity, the "Securities Intermediary") and
WestLB AG, New York Branch, as Lender (the "Lender").
R E C I T A L S:
WHEREAS, the Borrower, the Originator, the Seller, the Servicer, the
Collateral Agent, the Securities Intermediary and the Lender are parties to the
Secured Loan Agreement, dated as of June 1, 2005 (as amended, supplemented and
otherwise modified from time to time, the "Secured Loan Agreement");
WHEREAS, the parties hereto desire to amend the Secured Loan Agreement
pursuant to Section 14.04 thereof to make certain amendments thereto as further
described in this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Amendments to the Secured Loan Agreement. Effective as of
the execution and delivery of this Amendment by all parties hereto:
(a) The definition of "Interest Coverage Ratio" in Appendix A
to the Secured Loan Agreement is hereby deleted.
(b) Section 7.02(jj) of the Secured Loan Agreement is hereby
amended and restated in its entirety as follows:
"(jj) As of the last day of each fiscal quarter commencing December 31,
2006, LEAF shall maintain "partners equity" (as reflected in its financial
statements) of no less than 75% of "partners equity" as of the last day of its
offering period pursuant to its Prospectus dated December 22, 2004 as reported
in its financial statements for December 31, 2006."
(c) Section 8.01(ff) of the Secured Loan Agreement is hereby
amended and restated in its entirety as follows:
"(i) LEAF shall have failed to maintain a Senior
Leverage Ratio no greater than 7.5:1.0 or (ii) the Servicer
shall have failed to maintain a (a) "Minimum Tangible Net
Worth" (defined as stockholders' equity plus subordinated debt
less intangibles) of $7,500,000 or (b) minimum stockholders'
equity of $1,000,000 or (iii) LEAF shall have defaulted (after
giving effect to any and all notice, grace and cure periods)
in respect of any material Indebtedness for borrowed money."
Section 2. Representations and Warranties. Each of the Borrower, the
Seller, the Servicer and the Originator hereby represents and warrants that (i)
it has the power and is duly authorized to execute and deliver this Amendment,
(ii) this Amendment has been duly authorized, executed and delivered, (iii) it
is and will continue to be duly authorized to perform its respective obligations
under the Loan Documents and this Amendment, (iv) the execution, delivery and
performance by it of this Amendment shall not (1) result in the breach of, or
constitute (alone or with notice or with the lapse of time or both) a default
under, any material agreement or instrument to which it is a party, (2) violate
(A) any provision of law, statute, rule or regulation, or organizational
documents or other constitutive documents, (B) any order of any Governmental
Authority or (C) any provision of any material indenture, agreement or other
instrument to which it is a party or by which it or any of its property is or
may be bound, or (3) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by the
Borrower other than pursuant to the Loan Documents, (v) this Amendment and each
of the Loan Documents to which it is a party or by which it or its assets may be
or is bound constitutes its legal, valid and binding obligations, enforceable
against it (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and similar laws affecting
creditors' rights generally and to general principles of equity), (vi) except as
publicly disclosed, there are no actions, suits, investigations (civil or
criminal) or proceedings at law or in equity or by or before any Governmental
Authority pending or, to its knowledge, threatened against or affecting it or
any of its business, property or rights (1) which involve any Loan Documents or
(2) which would be materially likely to result in a Material Adverse Effect,
(vii) it is not in default or violation with respect to any law, rule or
regulation, judgment, writ, injunction or decree order of any court,
governmental authority, regulatory agency or arbitration board or tribunal and,
with respect to the Originator, the effect of which would have a material
adverse effect on its business, assets, operations or financial condition and
(viii) no Facility Termination Event, Default or Event of Default has occurred
or is continuing. Except as expressly amended by the terms of this Amendment,
all terms and conditions of the Secured Loan Agreement shall remain in full
force and effect and are hereby ratified in all respects.
Section 3. Defined Terms; Headings. All capitalized terms used herein,
unless otherwise defined herein, have the same meanings provided herein or in
Appendix A to the Secured Loan Agreement. The headings of the various Sections
of this Amendment have been inserted for convenience of reference only and shall
not be deemed to be part of this Amendment.
Section 4. Limited Amendment. This Amendment is limited precisely as
written and shall not be deemed to (a) be a consent to a waiver or any other
term or condition of the Secured Loan Agreement, the other Loan Documents or any
of the documents referred to therein or executed in connection therewith or (b)
prejudice any right or rights the Lender or the Hedge Counterparties may now
have or may have in the future under or in connection with the Secured Loan
Agreement, the other Loan Documents or any documents referred to therein or
executed in connection therewith. Whenever the Secured Loan Agreement is
referred to in the Secured Loan Agreement or any of the instruments, agreements
or other documents or papers executed and delivered in connection therewith, it
shall be deemed to mean the Secured Loan Agreement, as the case may be, as
modified by this Amendment. Except as hereby amended, no other term, condition
or provision of the Secured Loan Agreement shall be deemed modified or amended,
and this Amendment shall not be considered a novation.
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Section 5. Construction; Severability. This Amendment is a document
executed pursuant to the Secured Loan Agreement and shall (unless otherwise
expressly indicated therein) be construed, administered or applied in accordance
with the terms and provisions thereof. If any one or more of the covenants,
agreements, provisions or terms of this Amendment shall be held invalid in a
jurisdiction for any reason whatsoever, then, in such jurisdiction, such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Amendment.
Section 6. Counterparts; Facsimile Signature. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement. The parties may execute facsimile copies of this Amendment
and the facsimile signature of any such party shall be deemed an original and
fully binding on said party.
Section 7. Governing Law. This Amendment shall be governed and
construed in accordance with the applicable terms and provisions of Section
14.09 (Governing Law) of the Secured Loan Agreement, which terms and provisions
are incorporated herein by reference.
Section 8. Successor and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to the Secured Loan Agreement to be duly executed by their respective authorized
officers as of the day and year first written above.
BORROWER: LEAF FUND II, LLC
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chief Operating Officer
ORIGINATOR: LEAF FUNDING, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chief Operating Officer
SELLER: LEASE EQUITY APPRECIATION FUND II, L.P.
By: LEAF FINANCIAL CORPORATION,
as General Partner
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name:
Title:
SERVICER: LEAF FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Operating Officer
LENDER: WESTLB AG, NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Director
COLLATERAL AGENT/
SECURITIES INTERMEDIARY: U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
