FIRST AMENDMENT TO SECURED LOAN AGREEMENT
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.
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.
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:
Name:
Title:
ORIGINATOR:
LEAF
FUNDING, INC.
By:
Name:
Title:
By:
LEAF FINANCIAL CORPORATION,
as
General
Partner
By:
Name:
Title:
SERVICER:
LEAF
FINANCIAL CORPORATION
By:
Name:
Title:
LENDER: WESTLB
AG, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
COLLATERAL
AGENT/
SECURITIES
INTERMEDIARY: U.S.
BANK NATIONAL ASSOCIATION
By:
Name:
Title:
