ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
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 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 $188,734,807.55 (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.
(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 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
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 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 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.
(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 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 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 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;
(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”.
(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.
(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:
(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:
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)
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;
(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.
(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 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 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.
[remainder
of page intentionally left blank]
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:
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:
XXXXXXX
XXXXX EQUIPMENT FINANCE LLC
By:
Name:
Title:
XXXXXXX
XXXXX COMMERCIAL FINANCE CORP.
By:
Name:
Title:
U.S.
BANK
NATIONAL ASSOCIATION
By:
Name:
Title:
N236634.4
Appendix
A
[as
attached]
N236634.4
Exhibit
I
[as
attached]
N236634.4
Exhibit
II
[as
attached]
Exhibit
III
[as
attached]
N236634.4
Appendix
A
DEFINITIONS
AND RULES OF CONSTRUCTION
I. AMENDMENT
AND
RESTATEMENT
Pursuant
to the Assignment, Assumption and Amendment Agreement (as defined herein),
this
Appendix A amends and restates in its entirety the existing Appendix A.
II. General.
These
definitional provisions are intended for use in connection with the Transaction
Documents (as defined herein) and is attached to and made a part of the
Purchase, Sale and Contribution Agreement (as defined herein).
III. Defined
Terms.
Unless
the context requires a different meaning, capitalized terms are used in this
Appendix A and in each of the other Transaction Documents (as defined herein)
as
follows:
“Accounts”
means
the Master DDA, the Collection Account and the Security Deposit
Account.
“Accrual
Period”
means
in respect of any Advance, (i) initially, the period from and including the
Purchase Date for such Advance to but excluding the Payment Date following
the
first calendar month after the calendar month such Purchase Date occurred,
and
(ii) thereafter, the period from and including each Payment Date in respect
of
such Advance to but excluding the next Payment Date, up to but excluding the
earlier of (x) the date on which LEAF II B SPE is required to repay such Advance
pursuant to the terms of the Loan Agreement, and (y) the date on which such
Advance is repaid in full.
“Advance”
means
a
loan made by the Lender to LEAF II B SPE pursuant to Section 2.02(a) of the
Loan Agreement, the proceeds of which were used to purchase
Contracts.
“Adverse
Claim”
means
a
lien, security interest, charge or encumbrance, or other right or claim in,
of
or on any Person’s assets or properties in favor of any other
Person.
“Affiliate”
means,
with respect to any specified Person, another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by
or
is under common control with the Person specified. For purposes of this
definition, “control” means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and “controlled” and “controlling” have meanings
correlative to the foregoing.
“Assignment,
Assumption and Amendment Agreement”
means
that certain Assignment, Assumption and Amendment Agreement, dated as of
September 29, 2006, among LEAF Financial, LEAF Funding, LEAF IDM, LEAF II,
LEAF
II B SPE, MLEF, the Lender and U.S. Bank National Association.
“Authorized
Officer’s Certificate”
means,
with respect to any Person, a certificate signed by an Authorized
Officer.
“Authorized
Representative”
has
the
meaning specified in Section 19 of the Custodial Agreement.
“Back-up
Servicer”
means
U.S. Bank National Association in its capacity as the Back-up Servicer under
the
Back-up Servicing Agreement, together with its successors and assigns.
“Back-up
Servicing Agreement”
means
the Back-up Servicing Agreement, dated as of April 8, 2003, among LEAF
Financial, the Back-up Servicer and the Lender, as amended, supplemented or
otherwise modified from time to time.
“Back-up
Servicing Fee”
means
the fee to be paid to the Back-up Servicer in accordance with the fee agreement
among LEAF Financial, the Back-up Servicer and the Lender, as amended,
supplemented or otherwise modified from time to time.
“Back-up
Servicer Fee Rate”
means,
as of any date of determination, the rate per annum, expressed as a percentage,
at which the fee payable to the Back-up Servicer is calculated as of such
date.
“Bankruptcy
Code”
means
The Bankruptcy Reform Act of 1978, as amended from time to time, and as codified
as 11 U.S.C. Section 101 et
seq.
“Base
Rate”
means
the rate of interest publicly announced by JPMorgan Chase Bank., its successors
or any other commercial bank designated by the Lender to LEAF II B SPE from
time
to time in New York, New York from time to time as its prime rate or base rate.
The prime rate or base rate is determined from time to time by such bank as
a
means of pricing some loans to its borrowers an neither tied to any external
rate of interest or index nor necessarily reflects the lowest rate of interest
actually charged by such bank to any particular class or category of customers.
Each change in the Base Rate shall be effective from and including the date
such
change is publicly announced as being effective.
“Board”
means
the Board of Governors of the Federal Reserve System or any successor
thereto.
“Closing
Date”
means
the date on which the conditions set forth in Section 4.01 of the Loan
Agreement are satisfied and the initial Advances are made.
“Code”
means
the Internal Revenue Code of 1986, as amended, reformed or otherwise modified
from time to time, and any successor statute of similar import, in each case
as
in effect from time to time. References to sections of the Code also refer
to
any successor sections.
“Collateral”
has
the
meaning specified therefor in Section 7.01 of the Loan Agreement.
“Collection
Account”
means
an account established by the Paying Agent on or before the initial Purchase
Date entitled “Xxxxxxx Xxxxx Commercial Finance Corp., as Lender, Account of
LEAF II B SPE, LLC”, and into which all Collections shall be deposited in
accordance with the terms of applicable Transaction Documents.
“Collections”
means,
with respect to any Contract, as of any date of determination or for any period,
the sum all amounts received by the Servicer under or in respect of such
Contract, including, without limitation, all scheduled and unscheduled payments,
taxes and assessments in respect of such Contract or the Subject Equipment,
insurance monitoring fees, insurance proceeds, payments under hedging
agreements, late fees, renewal payments, termination payments, disposition
proceeds, post maturity collections and Residual Proceeds.
“Commitment”
means
the commitment of the Lender to make Advances to LEAF II B SPE in an aggregate
amount not to exceed $200,000,000, as such amount may be terminated or reduced
from time to time in accordance with the terms of the Loan Agreement.
“Concentration
Limits”
means,
as of any date of determination, the following limits for individual or
affiliated lessees:
(a) the
aggregate outstanding Contract Value of Purchased Contracts of no one lessee
and
its Affiliates as of such date shall account for more than
$3,000,000;
(b) the
aggregate outstanding Contract Value of Purchased Contracts of any 3 lessees
and
their respective Affiliates taken together as of such date shall account for
no
more than $8,000,000;
(c) the
aggregate outstanding Contract Value of Purchased Contracts with respect to
Subject Equipment located in the State of California as of such date shall
exceed more than 30% of the aggregate outstanding Contract Value of all of
the
Purchased Contracts as of such date;
(d) the
aggregate outstanding Contract Value of Purchased Contracts with respect to
Subject Equipment located in any State of the United States (other than
California) as of such date shall exceed more than 20% of the aggregate
outstanding Contract Value of all of the Purchased Contracts as of such
date;
(e) the
aggregate outstanding Contract Value of Purchased Contracts that relate to
individual equipment categories and SIC codes as of such date shall not exceed
more than 35% of the aggregate outstanding Contract Value of all of the
Purchased Contracts as of such date;
(f) the
aggregate outstanding Contract Value of Purchased Contracts having remaining
terms exceeding between 86 and 180 months as of such date shall not exceed
15%
of the aggregate outstanding Contract Value of all of the Purchased Contracts
as
of such date;
(g) the
aggregate outstanding Contract Value of Purchased Contracts with respect to
Subject Equipment from no one single vendor or manufacturer and its Affiliates
as of such date shall exceed more than 35% of the aggregate outstanding Contract
Value of all of the Purchased Contracts as of such date; and
(h) the
aggregate outstanding Contract Value of Purchased Contracts that have a final
or
balloon payment equal to 34% of original Contract Value thereof as of such
date
shall not exceed 10% of the aggregate outstanding Contract Value of all of
the
Purchased Contracts as of such date.
“Contract”
means
a
finance lease, fair market value lease or secured equipment note(s), together
with (i) all right, title and interest of in the Subject Equipment with respect
to such Contract, (ii) all Contract Receivables with respect to such Contract,
(iv) all Collections with respect to such Contract and (iv) all other Related
Property with respect to such Contract.
“Contract
File”
means,
unless the Originator Checklist otherwise indicates by an asterisk or other
xxxx
that additional items shall be required, with respect to any Contract, a file
containing each of the following:
(a) an
original, certified copy or faxed copy of the master Contract, if applicable
for
the underlying transaction, and Contract schedule (provided, however, that
a
faxed copy shall be stamped “ORIGINAL” and the Originator Checklist shall
contain a notation that the Contract File contains such faxed
copy);
(b) an
original or copy of a delivery and acceptance for leases (which may be part
of
the Contract) for Contracts with an original cost greater than $50,000 (unless
otherwise not required and so indicated on the Originator
Checklist);
(c) original
or copy of an invoice relating to the Subject Equipment;
(d) evidence
of insurance for Contracts with an original cost greater than $100,000 (unless
otherwise not required and so indicated on the Originator
Checklist);
(e) copies
of
UCC filings for the Subject Equipment with an original cost greater than $25,000
for finance leases and loans and in excess of $50,000 on all fair market value
leases, as determined by the amount listed on the Originator Checklist or
information found in the Contract File; and
(f) in
the
case of a QSP Contract (noted on the Originator Checklist as Originator being
paid), proof of issuance of payment by the QSP for the Subject Equipment.
In
addition, with respect to any Contract, each of the following may be present
in
the Contract File and noted on the Originator Checklist, provided,
however,
that
the absence of any item listed in (a) through (f) below shall
not
be reported as an Exception on any Contract File Schedule and Exception Report
or Trust Receipt:
(a) an
original or faxed copy of a personal, corporate or other guaranty (which may
be
part of the Contract) as required in the original credit approval;
(b) an
original or faxed copy of a corporate resolution and secretary’s certificate, as
appropriate for the transaction;
(c) an
original or faxed copy of a xxxx of sale, in the case of a sale lease back
transaction;
(d) copies
of
photo identification; and
(e) an
original or copy of a landlord or mortgagee waiver.
Provided,
with
respect to any loan identified as an acquisition loan on the Originator
Checklist, the term “Contract File”, unless the Originator Checklist otherwise
indicates (by an asterisk or other xxxx) that additional items shall be
required, means the following:
(a) an
original, certified copy or faxed copy of a loan Contract or master loan
Contract;
(b) an
original, certified copy or faxed copy (if not part of the loan Contract and
so
noted on the Originator Checklist) of a term note;
(c) an
original or certified copy of a security agreement;
(d) an
original or copy of a sale agreement between seller and buyer, if
applicable;
(e) original
or copy of an invoice;
(f) evidence
of insurance for Contracts with an original cost of greater than $100,000
(unless otherwise not required and so indicated on the Originator
Checklist);
(g) copies
of
UCC filings for loans with an original cost greater than $25,000, as determined
by the amount listed on the Originator Checklist or information found in the
Contract File; and
(h) in
the
case of a QSP Contract, proof of issuance of payment by the QSP for the Subject
Equipment.
In
addition, with respect to any acquisition loan, the file may contain each of
the
following, which may be noted on the Originator Checklist, provided,
however,
that
the absence of any item listed in (a) through (m) below shall not be reported
as
an Exception on any Contract File Schedule and Exception Report or Trust
Receipt:
(a) an
original or faxed copy of a personal, corporate or other guaranty (which may
be
part of the Contract) as required in the original credit approval;
(b) an
original or faxed copy of a corporate resolution and secretary certificate
as
appropriate for the transaction;
(c) an
original or faxed copy of a xxxx of sale;
(d) an
original or faxed copy of an escrow agreement;
(e) copies
of
photo identification;
(f) copies
of
lien searches and applicable releases;
(g) an
original or copy of a landlord or mortgagee waiver;
(h) a
copy of
an office lease or sublease;
(i) evidence
of insurance coverage with respect to (i) liability insurance and (ii)
malpractice insurance;
(j) copies
of
licenses;
(k) a
copy of
wire instructions for funding proceeds of the term note;
(l) an
original or certified copy of the assignment of office lease; and
(m) a
copy of
the site inspection report.
“Contract
File Schedule and Exception Report”
means
a
list of Purchased Contracts held by the Custodian on each Business Day for
the
benefit of LEAF II B SPE and Lender, which includes codes indicating any
Exceptions with respect to each Purchased Contract listed thereon. Each Contract
File Schedule and Exception Report shall set forth (i) the Purchased
Contracts held by the Custodian, and (ii) all Exceptions with respect
thereto, with any updates thereto from the time last delivered.
“Contract
Receivable”
means,
with respect to any Contract, (i) all “accounts” (as such term is defined in the
UCC, together with all proceeds thereon) created by or that otherwise arise
under such Contract, (ii) all Collections with respect to such accounts and
(iii) all Related Property with respect to accounts.
“Contract
Value”
means
(i) with respect to any Contract that is not delinquent or is 120 days or less
delinquent, as of any date of determination, the present value of the remaining
scheduled payments of such Contract, excluding any residual payment, discounted
at the Discount Rate and (ii) with respect to any Contract that is more than
120
days delinquent, as of any date of determination, an amount equal to
zero.
“Cumulative
Losses”
means,
as of any date of determination, an amount equal to the difference of (i) the
sum of the Contract Value at the related Purchase Date of all Purchased
Contracts that (x) are more than 180 days past due as of such date or (y) LEAF,
in its capacity as the Servicer, has charged off in accordance with the Policy
and Procedures as of such date, over
(ii) the
aggregate amount received by the Servicer (net of any related expenses) in
connection with the realization of the full amounts due and to become due under
such Purchased Contracts and the sale of any property acquired in respect
thereof.
“Custodial
Identification Certificate”
means
the certificate executed by LEAF Financial in connection with the delivery
of
Contract Files to be held by the Custodian pursuant to the Custodial Agreement,
a form of which is attached as Annex 1
to the
Custodial Agreement.
“Custodian”
means
U.S. Bank National Association or any successor custodian appointed in
accordance with the terms of the Custodial Agreement.
“Custodian
Fee Rate”
means,
as of any date of determination, the rate per annum, expressed as a percentage,
at which the fee payable to the Custodian is calculated as of such
date.
“Custodial
Agreement”
means
the Custodial Agreement, dated as of April 8, 2003, among LEAF Funding, LEAF
II,
the Servicer, the Lender, LEAF II B SPE and the Custodian, as amended,
supplemented or otherwise modified from time to time.
“Default
Funding Rate”
means
as of any date of determination, a rate equal to the sum of (a) the Base Rate
as
of such date, and (b) 1.50%, per annum.
“Delinquency
Rate”
means,
as of any date of determination, the ratio, expressed as a percentage, of (i)
the aggregate outstanding Contract Value of all Purchased Contracts which are
60
days or more past due as of such date to (ii) the aggregate outstanding Contract
Value of all Purchased Contracts as of such date.
“Discount
Rate”
means
as of any date of determination, a rate equal to the sum of (a) the Funded
Rate,
(b) the Servicing Fee Rate, (c) the Back-up Servicing Fee Rate, and (d) the
Custodian Fee Rate, in each case as in effect as of such date.
“Dollar,”
“Dollars”
and
the
symbol “$”
each
means lawful money of the United States of America.
“Effective
Date”
has
the
meaning specified therefor in the Assignment, Assumption and Amendment
Agreement.
“Effective
Period”
means
the period beginning on the Closing Date and terminating on the Expiry
Date.
“Eligible
Contract”
means
a
Contract that meets each of the following criteria:
(a) the
Subject Equipment with respect to such Contract has been purchased (i) directly
by LEAF Funding from a vendor or manufacturer, or (ii) in the case of a QSP
Contract, by LEAF Funding from a QSP, and such QSP has purchased the Subject
Equipment directly from a vendor or manufacturer;
(b) such
Contract contains a “Hell or High Water” clause that unconditionally obligates
the lessee to make periodic Contract payments (including taxes), notwithstanding
damage to or destruction of the Subject Equipment, or any other event, including
obsolescence thereof;
(c) such
Contract is non-cancelable by the lessee, does not contain any early termination
option (or, if it does have such an option, it also contains a make-whole
provision)
(d) such
Contract is denominated in Dollars and for which all payments thereunder are
payable in Dollars and with respect to which there is no option to change the
currency or country in which such payments are made;
(e) the
Subject Equipment is located in the United States, Puerto Rico or
Canada;
(f) all
payments payable under such Contract are absolute, unconditional obligations
of
the lessees without right to offset for any reason;
(g) such
Contract requires the lessee to maintain the Subject Equipment in good working
order, to bear all the costs of operating the Subject Equipment, including
the
taxes, maintenance and insurance relating thereto;
(h) such
Contract provides that the Servicer may accelerate all Contract payments if
the
lessee is in default under such Contract;
(i) such
Contract provides for periodic Contract payments, which are principally due
and
payable on a monthly basis and the next payment due date is within 30 days
of
applicable Purchase Date with respect to such Contract;
(j) such
Contract provides that in the event of a casualty loss, the Servicer may require
the lessee, at the lessee's expense, to pay Servicer the sum of all unpaid
rents
and other payments due under such Contract, all accelerated future payments
due
under such Contract (discounted to a present value payoff amount) and the booked
residual value of the Subject Equipment;
(k) such
Contract provides that the lessee may not elect to utilize any security deposit
thereunder to offset any payment thereunder;
(l) such
Contract includes only the remaining non-cancelable contractual payments
purchased and funded but not more than the Maximum Contract Term;
(m)
the
Contract Value with respect to such Contract does not include the amount of
any
security deposits held by LEAF Funding or the Servicer (without the prior
written consent of the Lender);
(n) such
Contract shall not be modified, waived, or amended in any way which could
adversely affect the lessor, its assigns or obligees;
(o) for
each
Contract in which LEAF Funding is paying a vendor directly, LEAF Funding shall
have followed its standard guidelines regarding site inspections;
(p) the
maximum remaining term of such Contract shall not exceed 180
months;
(q) the
funds
to purchase such Contract have been disbursed to the applicable vendor or
manufacturer unless LEAF Funding is acquiring a QSP Contract, in which case
LEAF
Funding shall have funded the originator of the transaction;
(r) such
Contract shall have similar characteristics to other Contracts originated by
LEAF Financial and no procedures adverse to the interests of the Lender shall
have been used by LEAF Financial in selecting such Contract from other Eligible
Contracts originated by LEAF Financial;
(s) the
Custodian is in possession of the Contract File with respect to such Contract,
has issued to the Lender a Trust Receipt therefor and no Exceptions have been
cited by the Custodian;
(t) such
Contract was created in compliance with, and that, on the applicable Purchase
Date does not contravene in any material respect, any applicable
law;
(u) such
Contract will at all times be the legal, valid and binding payment obligation
of
the lessee, enforceable against such lessee in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors’ rights generally, and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(v)
such
Contract has not been satisfied, subordinated or rescinded;
(w) such
Contract is not subject to any enforceable provision prohibiting the transfer
by
LEAF Funding to LEAF II B SPE of its interests therein;
(x) such
Contract is either (x) not subject to any foreign withholding tax or (y)
provides for a “gross-up” or indemnity of any payments upon the imposition of
any such tax;
(y) with
respect to any Contract that is a finance lease and that has a Contract Value
of
$25,000 or more, such Contract is secured by a first priority perfected security
interest in the Subject Equipment;
(z) such
Contract has been originated by LEAF Financial in accordance with the Policy
and
Procedures;
(aa) at
the
time of initial purchase of such Contract, the lessee thereunder is not subject
to an Insolvency Event;
(bb) the
lessee or obligor thereunder is not a Governmental Authority; and
(cc) such
Contract does not have a Contract Value in excess of $750,000, unless the Lender
shall have given its prior written consent with respect thereto; provided the
Lender shall have use commercially reasonable efforts to provide such consent
within three Business Days of any request for such consent.
“Entity”
means
any individual, partnership, corporation, limited liability company, limited
liability partnership, association, estate, trust, business trust, and
Governmental Authority.
“Equipment”
means
“equipment” as such term is defined in the UCC.
“Equipment
Cost”
means,
for any Contract, the Contract Value of such Contract as of the applicable
Purchase Date.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute of similar import, in each case as in effect from time to
time. References to sections of ERISA also refer to any successor
sections.
“ERISA
Affiliate”
means
with respect to any Person, (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b)
of the Code) as such Person; (ii) a trade or business (whether or not
incorporated) under common control (within the meaning of Section 414(c)
of
the Code) with such Person; or (iii) a member of the same affiliated
service group (within the meaning of Section 414(m) of the Code) as such
Person, any corporation described in clause (i) above or any trade or
business described in clause (ii) above.
“Exception”
means,
with respect to any Purchased Contract, (i) any variances from the requirements
of the definition of “Contract
File”
with
respect to such Purchased Contract , or (ii) any written notice to or actual
knowledge of the Custodian of a Lien, other than Permitted Liens, with respect
to such Purchased Contract.
“Expiry
Date”
means
the earliest to occur of (x) February 28, 2007, (y) the date on which
a Termination Event shall have been deemed to have occurred or shall have been
declared to have occurred and (z) the date on which the aggregate amount of
the
Commitment equals zero.
“Facility
Fee”
means,
as of any date of determination a fee payable by LEAF II B SPE to the Lender
in
an amount equal to (x) the Facility Fee Rate, times
(y) the
average daily amount of the Note Balance (determined as of the close of business
on any date of determination) during the immediately preceding month, which
fee
shall be calculated on the basis of a 360-day year and the actual number of
days
elapsed and shall be payable for each Monthly Period in arrears on each Payment
Date.
“Facility
Fee Rate”
means
0.95%, per annum.
“Funded
Rate”
means
as of any date of determination, a rate equal to the sum of the (a) Hedged
Swap
Rate as of such date and (b) the Facility Fee Rate.
“FDIC”
means
the Federal Deposit Insurance Corporation.
“GAAP”
means
the generally accepted accounting principles promulgated or adopted by the
Financial Accounting Standards Board and its predecessors and successors from
time to time.
“Governmental
Authority”
means
any nation or government, any state, city, town, municipality, county, local
or
other political subdivision thereof and any department, commission, board,
bureau, instrumentality, agency or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
“Governmental
Authorization”
means
any permit, license, authorization, plan, directive, consent order or consent
decree of or from any Governmental Authority.
“Hedged
Swap Rate”
means,
as of any date of determination, the weighted average of the fixed rates
associated with the Hedging Agreements (weighted by notional balances) as of
such date.
“Hedging
Agreement”
means
one or more written hedging agreements, swap agreements or similar arrangements
acceptable to LEAF Financial, LEAF II B SPE and the Lender to which LEAF II
B
SPE is a party, with an aggregate notional value equal to the aggregate amount
of the Contract Values for all Purchased Contracts as of such date, intended
to
offset a decline in value of Purchased Contracts due to changes in market
interest rates.
“Indemnified
Amounts”
means
claims, damages, losses, liabilities, expenses, disbursements, obligations,
penalties, actions, suits, judgments and amounts paid in settlement thereof
of
any kind or nature whatsoever (including reasonable legal fees and expenses
in
connection with investigating, negotiating and settling any such claim, damage,
loss, liability, expense, disbursement, obligation, penalty, action, suit,
judgment or amount).
“Indemnified
Parties”
means
the Lender, the Custodian, the Paying Agent, the Back-up Servicer and any of
their respective officers, directors, shareholders, members, successors,
assigns, servants, agents or employees.
“Insolvency
Event”
means,
as to any Person:
(a) (i) a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of such Person in an involuntary case under the Bankruptcy
Code or any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, which decree or order is not stayed, or any other similar
relief shall be granted under any applicable federal or state law, (ii) an
involuntary case is commenced against such Person under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect which
remains undismissed, undischarged or unbonded for a period of 45 days or
(iii) such Person shall have a decree or an order for relief entered with
respect to it or commence a voluntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect; or
(b) such
Person shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to all or substantially all
of
its property, or a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against such Person; or
such
Person shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make a general assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations.
“LEAF
Financial”
means
LEAF Financial Corporation, a Delaware corporation.
“LEAF
Funding”
means
LEAF Funding, Inc., a Delaware corporation.
“LEAF
II”
means
Lease Equity Appreciation Fund II, L.P., a Delaware limited partnership, as
assignee of Leaf Institutional Direct Management, LLC, a Delaware limited
liability company (“LEAF
IDM”).
“LEAF
II B SPE”
means
LEAF II B SPE, LLC, a Delaware limited liability company, as assignee of
Xxxxxxx
Xxxxx Equipment Finance LLC,
a
Delaware limited liability company (“MLEF”).
“Lender”
means
Xxxxxxx Xxxxx Commercial Finance Corp., a Delaware corporation.
“LIBO
Base Rate”
means
for any Advance, with respect to each Accrual Period, the rate per annum equal
to the rate appearing at page 3750 of the Telerate Screen as the one-month
LIBOR
(i) with respect to the Accrual Period beginning on the Closing Date, two
(2) Business Days prior to the Closing Date, and (ii) with respect to all
other Accrual Periods, two (2) Business Days prior to the end of the immediately
preceding Accrual Period, and if such rate shall not be so quoted, the rate
per
annum at which the Reference Banks are offered Dollar deposits at or about
11:00 a.m., New York time, on such date by prime banks in the interbank
eurodollar market where the eurodollar and foreign currency exchange operations
in respect of their loans are then being conducted for delivery on such day
for
a period of one month, and in an amount comparable to the amount of the Advances
then being requested and to be outstanding on such day.
“LIBO
Rate”
means,
at any time, a rate per annum (rounded upwards to the nearest 1/100th of one
percent) determined by the Lender to be equal to (i) the LIBO Base Rate
divided by (ii) 1 minus the LIBO Reserve Requirements.
“LIBO
Reserve Requirements”
shall
mean for any calendar month and for any Lender as to which LIBO Reserve
Requirements are actually required to be maintained, the aggregate (without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on such day or during such calendar month, as applicable
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto), dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board) maintained by a member bank of
such Governmental Authority.
“Lien”
means
any mortgage, deed of trust, pledge, lien (statutory or otherwise), security
interest, lease, easement, title defect, restriction, levy, execution, seizure,
attachment, charge or other encumbrance or security or preferential arrangement
of any nature, including, without limitation, any conditional sale or title
retention arrangement, any capitalized lease and any assignment, deposit
arrangement or financing lease intended as, or having the effect of,
security.
“Loan
Agreement”
means
the Loan and Security Agreement, dated as of April 8, 2003, between LEAF II
B
SPE and the Lender, as amended, supplemented or otherwise modified from time
to
time.
“Loan
Documents”
means
the Loan Agreement, the Notes, if any, and all other agreements, instruments,
and other documents executed and delivered pursuant thereto or otherwise
evidencing or securing any Advance or other Obligation.
“Master
DDA”
means
a
depositary account maintained by the Master DDA Securities Intermediary pursuant
to the Master DDA Control Agreement or any successor securities account
maintained pursuant to the Master DDA Control Agreement.
“Master
DDA Control Agreement”
means
the Account Control Agreement, dated as of May 21, 2003, among LEAF Funding,
the
Master DDA Securities Intermediary and the Lender, as amended, supplemented
or
otherwise modified from time to time.
“Master
DDA Intercreditor Agreement”
means
Amended and Restated Intercreditor Agreement, dated as of April 18, 2005,
together with the joinders thereto, among Sovereign Bank, a national banking
association; OFC Capital, a division of ALFA Financial Corporation, an Alabama
corporation; National City Commercial Capital Corporation f/k/a Information
Leasing Corporation, an Ohio corporation; WestLB AG, New York Branch; Commerce
Bank, National Association, a national banking association; National City Bank,
a national banking association; Xxxxxxx Xxxxx Equipment Finance LLC, a Delaware
limited liability company; Xxxxxxx Xxxxx Commercial Finance Corp., a Delaware
corporation; LEAF Institutional Direct Management, LLC, a Delaware limited
liability company; Lease Equity Appreciation Fund I, L.P., a Delaware limited
partnership; LEAF II; LEAF Funding; LEAF Fund I, LLC, a Delaware limited
liability company; LEAF Fund II, LLC, a Delaware limited liability company;
RCC
Commercial, Inc., a Delaware corporation; Resource Capital Funding, LLC, a
Delaware limited liability company; Black Forest Funding Corporation; Bayerische
Hypo- Und Vereinsbank AG, New York Branch; LEAF Financial; and U.S. Bank
National Association, a national banking association, as amended, supplemented
or otherwise modified from time to time.
“Master
DDA Securities Intermediary”
means
U.S. Bank National Association, or any other securities intermediary that
maintains the Master DDA pursuant to the Master DDA Control
Agreement.
“Matured
Contract”
means
any Contract that has reached the end of its original term.
“Maximum
Advance Amount”
means,
as of any date of determination, an amount equal to (i) 92.0%, times
(ii) the
aggregate outstanding Contract Value of all of the Purchased Contracts as of
such date.
“Monthly
Period”
means
each period that begins on the first day of a calendar month and ending on
the
last day of the same calendar month.
“Multiemployer
Plan”
means
any Employee Benefit Plan which is a “multiemployer plan” as defined in
Section 3(37) of ERISA.
“Non-Excluded
Taxes”
has
the
meaning specified therefor in Section 2.07 of the Loan
Agreement.
“Note”
means
each promissory note, if any, of LEAF II B SPE made and delivered to the Lender
substantially in the form of Exhibit A to the Loan Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
“Note
Balance”
means,
as of any date of determination, an amount equal to (x) the aggregate principal
amount of all Advances as of such date, less
(y) the
aggregate amount of all principal payments received by the Lender as of such
date with respect to the Advances in accordance with the Priority of
Payments.
“Obligations”
means,
whether now existing or hereafter incurred (i) the prompt payment by LEAF II
B
SPE, as and when due and payable (by scheduled maturity, required prepayment,
acceleration, demand or otherwise), of all amounts from time to time owing
by it
in respect of the Loan Agreement, the Notes and the other Loan Documents,
including, without limitation, principal of and interest on the Loans
(including, without limitation, all interest that accrues after the commencement
of any case, proceeding or other action relating to the bankruptcy, insolvency
or reorganization of LEAF II B SPE, whether or not a claim for post-filing
interest is allowed in such proceeding), and all interest thereon, all fees,
commissions, expense reimbursements, indemnifications and all other amounts
due
or to become due under any Loan Document; and (ii) the due performance and
observance by LEAF II B SPE of all of its other obligations from time to time
existing in respect of the Loan Agreement and all other Loan Documents.
“Originator
Checklist”
means
a
checklist substantially in the form attached as Exhibit
A
hereto.
“PATRIOT
Act”
means
The Uniting and Strengthening America by Providing Appropriate Tools Required
to
Intercept and Obstruct Terrorism, as amended (USA Patriot Act of
2001).
“Paying
Agent”
means
U.S. Bank National Association or any successor paying agent appointed in
accordance with the terms of the Paying Agent Agreement.
“Paying
Agent Agreement”
means
the Paying Agent Agreement, dated as of April 8, 2003, among LEAF Funding,
LEAF
II, the Servicer, the Lender, LEAF II B SPE and the Paying Agent, as amended,
supplemented or otherwise modified from time to time.
“Payment
Date”
means
the twentieth (20th)
day of
each calendar month or, if such day is not a Business Day, the next succeeding
Business Day.
“PBGC”
means
the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA.
"Permissible
Static Pool Loss Ratio"
means,
as of any date of determination, the ratio, for each Quarterly Origination
Period, corresponding to the applicable number of months elapsed since the
mid-point of such Quarterly Origination Period, as set forth on Schedule I
hereto.
“Permitted
Liens”
means
(i) the Liens arising under the Purchase, Sale and Contribution Agreement,
(ii) the Liens arising under the Purchase and Sale Agreement, (ii) the
Liens arising under the Servicing Agreement, (iv) the Liens in favor of the
Lender arising under the Loan Agreement, and (v) Liens for current taxes,
assessments or other governmental charges or levies not delinquent.
“Person”
means
any natural person, corporation, business trust, joint venture, association,
limited liability company, partnership, joint stock company, corporation, trust,
unincorporated organization or Governmental Authority.
“Plan”
means
any Employee Benefit Plan, other than a Multiemployer Plan, which is subject
to
Section 412 of the Internal Revenue Code or Section 302 of
ERISA.
“Policy
and Procedures”
means
those policies and procedures to be followed by LEAF Financial with respect
to
the origination, collection and administration of Contracts and as set forth
in
LEAF Financial’s Policy and Procedures Manual on the Closing Date, as the same
may be amended or modified with the prior written consent of the
Lender.
“Potential
Servicer Default”
means
any occurrence or event which, with the giving of notice, the passage of time
or
both, would constitute a Servicer Default.
“Potential
Termination Event”
means
any occurrence or event which, with the giving of notice, the passage of time,
or both, would constitute a Termination Event.
“Priority
of Payments”
means
on each Payment Date, the application of funds that have been deposited in
the
Collection Account during the immediately preceding Monthly Period in the
following order of priority:
(a) on
a pari
passu basis, (i) to the Back-Up Servicer, an amount equal to the Back-Up
Servicing Fee then due and payable, and (ii) to the Custodian, an amount equal
to the Custodian Fee then due and payable;
(b) if
the
Back-Up Servicer is the Servicer, an amount equal to the Servicing Fee then
due
and payable;
(c) to
the
counterpart(y)(ies), the aggregate amount due under each Hedging Agreement
as of
such date (including any breakage fees);
(d) to
the
Lender, an amount equal to the Unused Fee for the immediately preceding Monthly
Period and, to the extent not previously paid, for all prior Monthly Periods
(plus interest on such unpaid amounts at the applicable interest rate for
Advances during the Monthly Period(s) such amounts were overdue (assuming the
oldest are paid first)); provided, no Unused Fee shall be due and payable at
any
time the Default Funding Rate is in effect;
(e) to
the
Lender, an amount equal to the aggregate amount of all interest then due and
payable on the Advances for the immediately preceding Accrual Period and, to
the
extent not previously paid, for all prior Accrual Periods (plus interest on
such
unpaid amounts at the applicable interest rate for the Advances during the
Accrual Period(s) such amounts were overdue (assuming the oldest are paid
first));
(f) to
the
Servicer, an amount equal to the Servicing Fee then due and payable;
(g) to
the
Lender, a principal payment on the Advances in an amount equal to the excess
of
(i) the aggregate amount of the Note Balance as of the end of the related
Monthly Period over
(ii) the
Maximum Advance Amount as of the end of the related Monthly Period;
(h) the
Lender, all other amounts due and payable thereto by LEAF II B SPE under the
Transaction Documents;
(i) to
the
Servicer, all other amounts due and payable thereto by LEAF II B SPE under
the
Transaction Documents;
(j) to
LEAF
II B SPE, all remaining funds.
Notwithstanding
anything herein to the contrary:
(1) if
a
Termination Event shall have occurred, all amounts in the Collection Account
remaining after the distributions set forth in clauses (a) - (e) above shall
be
distributed to the Lender as additional principal to be applied to the Advances
until fully repaid;
(2) all
amounts deposited into the Collection Account in accordance with either Section
2.04(b) of the Purchase, Sale and Contribution Agreement and Section 2.03(b)
of
the Purchase and Sale Agreement, or Section 2.06(b)(ii) of the Purchase, Sale
and Contribution Agreement and 2.05(b)(ii) of the Purchase and Sale Agreement,
as applicable, shall be immediately distributed to the Lender and applied to
reduce the Note Balance then outstanding without any further application with
respect to the Priority of Payments; and
(3) on
any
Borrowing Date, provided no Termination Event shall have occurred, all amounts
in the Collection Account as of such date in excess of the Maximum Advance
Amount as of such date, shall, at the written request of LEAF II B SPE, be
distributed to LEAF II B SPE.
“Proceeding”
means
any suit in equity, action or law or other judicial or administrative
proceeding.
“Purchase
and Sale Agreement”
means
the Purchase and Sale Agreement, dated as of April 8, 2003, between LEAF II
and
LEAF II B SPE, as amended, supplemented or otherwise modified from time to
time.
“Purchase
Date”
has
the
meaning set forth in Section 3.02(a) of the Purchase, Sale and Contribution
Agreement.
“Purchase
Date Contract Value”
means,
for any Purchased Contract, the Contract Value of such Purchased Contract as
of
the applicable Purchase Date.
“Purchase
Date Notice”
has
the
meaning set forth in Section 3.02(a) of the Purchase, Sale and Contribution
Agreement.
“Purchase
Price”
means,
with respect to any Purchased Contract, the price payable in consideration
of
the sale of such Purchased Contract in an amount equal to the Contract Value
of
such Purchased Contract as of the applicable Purchase Date.
“Purchase,
Sale and Contribution Agreement”
means
the Purchase, Sale and Contribution Agreement, dated as of April 8, 2003,
between LEAF Funding and LEAF II, as amended, supplemented or otherwise modified
from time to time.
“Purchased
Contracts”
has
the
meaning set forth in Section 2.01 of the Purchase, Sale and Contribution
Agreement.
“QSP”
means
a
qualified strategic partner qualified to originate Contracts in accordance
with
the Policy and Procedures.
“QSP
Contract”
means
a
Contract originated by a QSP which has purchased the Subject Equipment from
a
vendor or manufacturer.
“Quarterly
Matured Lease Pools”
means,
for any quarter, the aggregate amount of Residual Proceeds on Matured Leases
for
such quarter grouped by month of maturity.
“Quarterly
Origination Period”
means
each three-month period ending on each of March 31, June 30, September 30 and
December 31 of each year.
“Records”
means
the Contracts and all other documents, books, records and other writings and
information (including, without limitation, computer programs, tapes, disks,
punch cards, data processing software and related property and rights, but
excluding any credit profiles and rights in any personally identifiable data
of
any lessee) maintained with respect to Contracts and the related
lessees.
“Reference
Banks”
means
three major banks that are engaged in the London interbank market, as selected
by the Lender.
“Related
Property”
means,
with respect to any Contract:
(a) all
“instruments”, “chattel paper”, “accounts”, “general intangibles”, “commercial
tort claims”, “investment property” and “letter of credit rights” (as each such
term is defined in the UCC) evidencing or arising under such Contract;
(b) all
security interests or liens and property subject thereto from time to time,
if
any, purporting to secure payment of such Contract;
(c) all
guarantees, indemnities, warranties, insurance (and proceeds thereof) or other
agreements or arrangements of any kind from time to time supporting or securing
payment of such Contract;
(d) all
Records related to such Contract;
(e) all
service contracts and other contracts and agreements associated with such
Contract; and
(f) all
proceeds of any of the foregoing.
“Reportable
Event”
means
(i) a “reportable event” within the meaning of Section 4043 of ERISA
and the regulations issued thereunder with respect to any Plan (excluding those
for which the provision for 30-day notice to the PBGC has been waived by
regulation); (ii) the failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code with respect to any Plan (whether
or not waived in accordance with Section 412(d) of the Internal Revenue
Code) or the failure to make by its due date a required installment under
Section 412(m) of the Internal Revenue Code with respect to any Plan or the
failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in
a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by LEAF Financial, any of its Subsidiaries or any of their respective
ERISA Affiliates from any Plan with two or more contributing sponsors or the
termination of any such Plan resulting in liability to LEAF Financial, any
of
its Subsidiaries or any of their respective Affiliates pursuant to
Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Plan, or the occurrence of any event or condition
which might constitute grounds under ERISA for the termination of, or the
appointment of a trustee to
administer,
any Plan; (vi) the imposition of liability on LEAF Financial, any of its
Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of LEAF Financial, any
of its Subsidiaries or any of their respective ERISA Affiliates in a complete
or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA)
from
any Multiemployer Plan if there is any potential liability therefor, or the
receipt by LEAF Financial, any of its Subsidiaries or any of their respective
ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or
that it intends to terminate or has terminated under Section 4041A or 4042
of ERISA; (viii) the occurrence of an act or omission which could give rise
to the imposition on LEAF Financial, any of its Subsidiaries or any of their
respective ERISA Affiliates of fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409,
Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any
Employee Benefit Plan; (ix) the assertion of a material claim (other than
routine claims for benefits) against any Employee Benefit Plan other than a
Multiemployer Plan or the assets thereof, or against LEAF Financial, any of
its
Subsidiaries or any of their respective ERISA Affiliates in connection with
any
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of
notice of the failure of any Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to
qualify under Section 401(a) of the Internal Revenue Code, or the failure
of any trust forming part of any Plan to qualify for exemption from taxation
under Section 501(a) of the Internal Revenue Code; or (xi) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Plan.
“Repurchase
Date”
has
the
meaning set forth in Section 2.04(b) of the Purchase, Sale and Contribution
Agreement.
“Repurchase
Notice Date”
has
the
meaning set forth in Section 2.04(a) of the Purchase, Sale and Contribution
Agreement.
“Repurchased
Contract”
has
the
meaning set forth in Section 2.04(a) of the Purchase, Sale and Contribution
Agreement.
“Requirements
of Law”
means,
with respect to any Person the certificate of incorporation or articles of
association and by-laws or other organizational or governing documents of such
Person and any law, treaty, rule or regulation, or determination of any
arbitrator or Governmental Authority, in each case applicable to or binding
upon
such Person or any of its property or to which such Person or any of its
property is subject, whether Federal, state or local (including, usury laws,
the
Federal Truth in Lending Act and retail installment sales acts).
“Residual
Proceeds”
means
all amounts realized on the disposal or releasing of any Subject Equipment
that
is subject to a Matured Contract, without deduction of any credit
losses.
“Residual
Value”
means,
with respect to any Contract, the value of the Subject Equipment to the lessor
thereunder at the end of such Contract, as estimated by LEAF Financial at the
origination of such Contract in accordance with the Policy and
Procedures.
“S&P”
means
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. or any
successor thereto.
“SEC”
means
the United States Securities and Exchange Commission.
“Security
Deposit Account”
means
an account established by the Paying Agent on or before the Effective Date
entitled “Xxxxxxx Xxxxx Commercial Finance Corp., as Lender, Account of LEAF II
B SPE, LLC”, and into which amounts with respect to respect to security deposits
for Contracts shall be deposited in accordance with the terms of applicable
Transaction Documents.
“Servicer”
means
LEAF Financial, in its capacity as Servicer under the Servicing Agreement,
or
any Successor Servicer.
“Servicer
Default”
means
any of the following events:
(a) any
failure by the Servicer to deliver to the Lender (x) the Servicer Certification
as required pursuant to Section 2.05(a) of the Servicing Agreement or (y) any
other report as required pursuant to Section 2.05(b) of the Servicing Agreement,
in any case within three (3) Business Days after the earlier of the date upon
which (i) the Lender provides written notification of such failure to the
Servicer or (ii) the Servicer or any shareholder thereof becomes aware that
such
Servicer Certification or report has not been delivered; or
(b) any
failure by the Servicer to remit, or cause to be remitted, any payment,
transfer, deposit or other delivery after the date upon which such payment,
transfer, deposit or delivery is required to be made pursuant to the Servicing
Agreement; provided,
that
the Servicer shall have a one (1) Business Day grace period with respect to
all
such remittances on not more than one occasion; or
(c) an
Insolvency Event shall occur with respect to the Servicer; or
(d) any
representation, warranty or certification made by the Servicer under the
Servicing Agreement, or in any certificate or information delivered pursuant
to
the Servicing Agreement, shall prove to have been incorrect in any respect
when
made and which has a material adverse effect on the interests of the or the
Lender, which, if subject to cure, continues unremedied for a period of
30 days after the earliest of (i) the date on which written notice of
that failure, requiring the same to be remedied, shall have been given to the
Servicer by the Lender and (ii) the date on which the Servicer has actual
knowledge of such failure; or
(e) the
Servicer shall assign or delegate its duties under the Servicing Agreement
other
than as specifically permitted by the Servicing Agreement; or
(f) any
failure by the Servicer to observe or perform in any material respect any other
covenant or agreement of the Servicer pursuant to the Servicing Agreement which
materially and adversely affects the rights of the Lender and which, if subject
to cure, continues unremedied for a period of 30 days after the earlier of
(i)
the Servicer receives written notification from the Lender or (ii) the date
on
which the Servicer is required to provide notice of such failure; or
(g) as
of the
last day of any Monthly Period, the Delinquency Rate as of such date shall
be 4%
or more, subject to a cure period of one month; or
(h) the
Weighted Average Static Pool Loss Ratio as of the last day of any Monthly Period
shall exceed the Weighted Average Permissible Static Pool Loss Ratio as of
such
date;
or
(i) either
Crit XxXxxx or Xxxxx Xxxxxx is no longer active in the management of LEAF
Financial, provided that in such event, LEAF Financial shall have ninety (90)
days to identify and hire a replacement for either, subject to the prior written
approval of the Lender; or
(j) Resource
America Inc. at any time ceases to own and control, directly or indirectly,
at
least 80% of all of the capital and voting stock of LEAF Financial;
or
(k) any
event
or series of events shall occur that, individually or in the aggregate, could,
in the sole and absolute discretion of the Lender, be deemed to have a material
adverse effect on the business, operations, properties, assets, condition
(financial or otherwise) or prospects of LEAF Financial; or
(l) any
breach or default by Resource America, Inc. with respect to any term of any
loan
agreement, mortgage, note, certificate, indenture or other agreement or
instrument relating to one or more items of items of indebtedness in an
aggregate principal amount of $20,000,000 or more, in each case beyond the
grace
period, if any, provided therefor, if the effect of such breach or default
is to
cause, or to permit the holder or holders of such indebtedness (or a trustee
on
behalf of such holder or holders) to cause, such indebtedness to become or
be
declared due and payable (or redeemable) prior to its stated maturity;
or
(m) LEAF
II,
together with LEAF SPE II, shall not have as of the last day of each fiscal
quarter thereof a tangible net worth (determined on a consolidated basis in
accordance with GAAP) of at least $40,000,000; or
(n) LEAF
II,
together with LEAF SPE II, shall have as of the last day of each fiscal quarter
thereof a ratio of total liabilities as of such date to stockholders’ equity as
of such date (in each case determined on a consolidated basis in accordance
with
GAAP) in excess of 8.0 to 1.0.
“Servicer
Default Notice”
means,
in the event of any Servicer Default, a written notice by the Lender to the
Servicer terminating the rights and obligations of the Servicer, as Servicer,
under the Servicing Agreement as to all or any of the Purchased Contracts.
“Servicing
Agreement”
means
the Servicing Agreement, dated as of April 8, 2003, among the Servicer, LEAF
Funding, LEAF II, LEAF II B SPE and the Lender, as amended, supplemented or
otherwise modified from time to time.
“Servicing
Fee”
has
the
meaning specified in Section
2.02(a)
of the
Servicing Agreement.
“Servicing
Fee Rate”
means,
as of any date of determination, the rate per annum, expressed as a percentage,
at which the Servicing Fee is calculated as of such date.
“Servicing
Standard”
means
to service the Purchased Contracts (i) in the same manner in which, and with
the
same degree of skill, care prudence and diligence with which, the Servicer
services and administers similar leases and Contracts for its own account and
the account of its Affiliates or any third parties, or (ii) in a manner normally
associated with the prudent and professional servicing of similar leases and
Contracts, whichever is the highest, and in each case, in material compliance
with all applicable laws, but without regard to (a) any known relationship
that
the Servicer or any of its Affiliates may have with any lessee, any of their
respective affiliates or any other party to the Transaction Documents; (b)
the
Servicer’s obligation to make advances or incur servicing expenses with respect
to the Purchased Contracts or any similar leases and Contracts; (c) the
Servicer’s right to receive compensation for its services; (d) the ownership or
servicing for others by the Servicer of any other leases or Contracts; (e)
the
indemnification obligations of the Servicer or (f) the existence of any loans
made by the Servicer or any of its Affiliates to any lessee.
“Servicing
Transfer”
means
the termination of all of the rights and obligations of the Servicer under
the
Transaction Documents and the appointment of a Successor Servicer.
"Static
Pool Loss Ratio"
means,
with respect to a Quarterly Origination Period, as of any date of determination,
an amount, expressed as a percentage, equal to (i) the Cumulative Losses with
respect to Contracts originated during such Quarterly Origination Period
divided
by
(ii) the
original Contract Value of Contracts originated during such Quarterly
Origination Period.
“Subject
Equipment”
means,
with respect to any Contract, the Equipment subject to such
Contract.
“Subsidiary”
means,
with respect to any Person (herein referred to as the “parent”), any
corporation, partnership, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, owned,
controlled or held by the parent or (b) that is, at the time any
determination is being made, otherwise controlled, by the parent or one or
more
subsidiaries of the parent or by the parent and one or more subsidiaries of
the
parent.
“Successor
Servicer”
means
a
servicer (including the Back-up Servicer) who is appointed as a successor
servicer pursuant to Section 4.02
of the
Servicing Agreement.
“Termination
Event”
means
any of the following events:
(a) (x)
any
failure by LEAF Funding to observe or perform in any material respect any
covenant or agreement of LEAF Funding pursuant to the Purchase, Sale and
Contribution Agreement which adversely affects the rights of the Lender, (y)
any
failure by LEAF II to observe or perform in any material respect any covenant
or
agreement of LEAF II pursuant to the Purchase and Sale Agreement or the
Assignment, Assumption and Amendment Agreement which adversely affects the
rights of the Lender or (z) any failure by LEAF II B SPE to observe or perform
in any material respect any covenant or agreement of LEAF II B SPE pursuant
to
the Loan Agreement or the Assignment, Assumption and Amendment Agreement which
adversely affects the rights of the Lender and, which, if subject to cure,
continues unremedied for a period of 30 days after the earlier of (i) receipt
by
LEAF Funding, LEAF II or LEAF II B SPE, as applicable, of written notification
there of from the Lender or (ii) the date on which LEAF Funding, LEAF II or
LEAF
II B SPE, as applicable, is required to provide notice of such failure pursuant
to the applicable Transaction Document; or
(b) (x)
any
representation, warranty or certification made by LEAF Funding under the
Purchase, Sale and Contribution Agreement, or in any certificate or information
delivered pursuant to the Purchase, Sale and Contribution Agreement, including
in a Purchase Date Notice, (y) any representation, warranty or certification
made by LEAF II under the Purchase and Sale Agreement, or in any certificate
or
information delivered pursuant to the Purchase and Sale Agreement, including
in
a Purchase Date Notice, or in the Assignment, Assumption and Amendment Agreement
or (z) any representation, warranty or certification made by LEAF II B SPE
under
the Loan Agreement, or in any certificate or information delivered pursuant
to
the Loan Agreement, including in a Purchase Date Notice, or in the Assignment,
Assumption and Amendment Agreement, and in any such case, shall prove to have
been incorrect in any material respect when made, which, if subject to cure,
continues unremedied for a period of 30 days after the earliest of
(i) the date on which written notice of that failure, requiring the same to
be remedied, shall have been given to LEAF Funding, LEAF II or LEAF II B SPE,
as
applicable, by the Lender and (ii) the date on which LEAF Funding, LEAF II
or LEAF II B SPE, as applicable, has actual knowledge of such failure;
or
(c) an
Insolvency Event shall occur with respect to LEAF Funding, LEAF II or LEAF
II B
SPE; or
(d) any
Purchased Contract shall not be free of all Liens other than Permitted Liens;
or
(e) a
Servicer Default shall have occurred and is continuing.
“Transaction
Documents”
means,
collectively, the Purchase, Sale and Contribution Agreement, including this
Appendix A, the Purchase and Sale Agreement, the Loan Agreement, the Note,
the
Servicing Agreement, the Back-up Servicing Agreement, the Custodial Agreement,
the Paying Agent Agreement, the Master DDA Control Agreement, the Master DDA
Intercreditor Agreement and the Assignment, Assumption and Amendment
Agreement..
“Transaction
Expenses”
has
the
meaning specified in Section
2.02(b)(i)
of the
Servicing Agreement.
“Trust
Receipt”
means
a
Trust Receipt in the form of Annex 2
to the
Custodial Agreement delivered to the Lender by the Custodian covering all of
the
Purchased Contracts subject to the Custodial Agreement from time to time, as
reflected on the Contract File Schedule and Exception Report attached thereto
in
accordance with Section 4(d) of the Custodial Agreement.
“Unused
Fee”
means,
as of any date of determination, a fee payable by LEAF II B SPE to the Lender
in
an amount equal to (x) the Unused Fee Rate, times
(y) the
difference of the (i) the Commitment in effect as of such date and (ii) the
average daily amount of the Note Balance (determined as of the close of business
on any date of determination) during the immediately preceding month, which
fee
shall be calculated on the basis of a 360-day year and the actual number of
days
elapsed and shall be payable for each Monthly Period in arrears on each Payment
Date.
“Unused
Fee Rate”
means
0.20%, per annum.
“UCC”
means
the Uniform Commercial Code as in effect from time to time in the State of
New
York; provided
that if
by reason of mandatory provisions of law, the perfection or the effect of
perfection or non-perfection of any security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than New York, “UCC”
means
the Uniform Commercial Code as in effect in such other jurisdiction for purposes
of the provisions of the Transaction Documents relating to such perfection
or
effect of perfection or non-perfection.
“United
States”
or
“U.S.”
means
the United States of America, its fifty States and the District of
Columbia.
"Weighted
Average Static Pool Loss Ratio"
means,
as of any date of determination, an amount equal to the weighted average
(weighted by original Contract Value of Contracts originated in each applicable
Quarterly Origination Period) of the Static Pool Loss Ratios with respect to
each Quarterly Origination Period.
"Weighted
Average Permissible Static Pool Loss Ratio"
means,
as of any date of determination, an amount equal to the weighted average
(weighted by original Contract Value of Contracts originated in each applicable
Quarterly Origination Period) of the Permissible Static Pool Loss Ratios with
respect to each Quarterly Origination Period.
“Withdrawal
Liability”
means,
as of the most recent valuation date for each Multiemployer Plan for which
the
actuarial report is available, an amount equal to the sum of (x) the potential
liability of LEAF Financial, its Subsidiaries and their respective ERISA
Affiliates as of such date for a complete withdrawal from such Multiemployer
Plan (within the meaning of Section 4203 of ERISA) plus
(y) the
potential liability of LEAF Financial, its Subsidiaries and their respective
ERISA Affiliates as of such date for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to
Section 4221(e) of ERISA.
“written”
or
“in
writing”
means
any form of written communication, including, without limitation, by means
of
telex, telecopier device, telegraph, electronic mail or messaging systems,
the
Internet or cable.
IV. RULES
OF
CONSTRUCTION.
Except
as
otherwise expressly provided herein or in any of the Transaction Documents
or
unless the context otherwise clearly requires:
(a) defined
terms include, as appropriate, all genders and the plural as well as the
singular;
(b) references
to designated articles, Sections and other subdivisions of a Transaction
Document refer to the designated article, Section, or other subdivision of
such
Transaction Document as a whole and to all subdivisions of the designated
article, Section or other subdivision;
(c) the
words
“herein,” “hereof,” “hereto,” “hereunder” and other words of similar import
refer to the Transaction Document in which such reference is made as a whole
and
not to any particular article, Section or other subdivision of such Transaction
Document;
(d) any
term
that relates to a document, 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 the Transaction Document in which such reference is
made;
(e) the
term
“including” and all its variations mean “including but not limited to.” Except
when used in conjunction with the word “either,” the word “or” is always used
inclusively (for example, the phrase “A or B” means “A or B or both,” not
“either A or B but not both”);
(f) all
accounting terms used in an accounting context and not otherwise defined shall
be construed in accordance with GAAP; and
(g) in
the
computation of a period of time from a specified date to a later specified
date
or an open-ended period, the word “from” means “from and including” and the
words “to” or “until” mean “to but excluding, and in setting deadlines or other
periods, “by” means “on or before,” and “after” means “from and
after”.
Schedule
I
Permissible
Static Pool Loss Ratio
Month
Elapsed %
|
1
|
4.60%
|
|
2
|
4.65%
|
|
3
|
4.65%
|
|
4
|
4.65%
|
|
5
|
4.70%
|
|
6+
|
4.70%
|
Exhibit
A to Appendix A
Form
of Originator Checklist
(As
Attached)
10133999.3
EXHIBIT
III
FORM
OF
EFFECTIVE DATE NOTICE
This
Effective Date Notice, dated as of September __, 2006, is delivered pursuant
to
Section 3(c)(iii) of the Assignment, Assumption and Amendment Agreement, dated
as of the date hereof (the Agreement”),
by
and 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").
Terms
used in this Effective Date Notice that are not defined herein have meanings
assigned to such terms in the Agreement.
The
undersigned, being an Authorized Officer of LEAF Funding, does hereby certify to
each of MLEF, the Lender and U.S. Bank that as of the Effective Date, the
following statements are true and correct as of such date:
(a)
LEAF
Funding’s representations and warranties contained in Section 4 of the Agreement
are true and correct on and as of the Effective Date as though made on and
as of
such date;
(b) no
event
has occurred and is continuing that constitutes a Potential Termination Event
or
a Termination Event;
(c) LEAF
Funding has complied with all of its covenants under the Agreement and has
fulfilled in all respects all of its obligations thereunder; and
(d) LEAF
Funding is not insolvent or subject to any Insolvency Event.
The
undersigned, being an Authorized Officer of LEAF IDM, does hereby certify to
each of MLEF, the Lender and U.S. Bank that as of the Effective Date, the
following statements are true and correct as of such date:
(a)
LEAF
IDM’s representations and warranties contained in Section 4 of the Agreement are
true and correct on and as of the Effective Date as though made on and as of
such date;
(b) no
event
has occurred and is continuing that constitutes a Potential Termination Event
or
a Termination Event;
(c) LEAF
IDM
has complied with all of its covenants under the Agreement and has fulfilled
in
all respects all of its obligations thereunder; and
(d) LEAF
IDM is not incolvent or subject to any Insolvency Event.
The
undersigned, being an
Authorized Officer of LEAF II, does hereby certify to each of MLEF, the Lender
and U.S. Bank that as of the Effective Date, the following
statements
are true and correct as of such date:
(a)
LEAF
II’s
representations and warranties contained in Section 4 of the Agreement are
true
and correct on and as of the Effective Date as though made on and as of such
date;
(b) no
event
has occurred and is continuing that constitutes a Potential Termination Event
or
a Termination Event;
(c) LEAF
II
has complied with all of its covenants under the Agreement and has fulfilled
in
all respects all of its obligations thereunder; and
(d) LEAF
II
is not insolvent or subject to any Insolvency Event.
The
undersigned, being an Authorized Officer of LEAF Financial, does hereby certify
to each of MLEF, the Lender and U.S. Bank that as of the Effective Date, the
following statements are true and correct as of such date:
(a)
LEAF
Financial’s representations and warranties contained in Section 4 of the
Agreement are true and correct on and as of the Effective Date as though made
on
and as of such date;
(b) no
event
has occurred and is continuing that constitutes a Potential Termination Event
or
a Termination Event;
(c) LEAF
Financial has complied with all of its covenants under the Agreement and has
fulfilled in all respects all of its obligations thereunder; and
(d) LEAF
Financial is not insolvent or subject to any Insolvency Event.
The
undersigned, being an Authorized Officer of LEAF II B SPE, does hereby certify
to each of MLEF, the Lender and U.S. Bank that as of the Effective Date, the
following statements are true and correct as of such date:
(a)
LEAF
II B
SPE’s representations and warranties contained in Section 4 of the Agreement are
true and correct on and as of the Effective Date as though made on and as of
such date;
(b) no
event
has occurred and is continuing that constitutes a Potential Termination Event
or
a Termination Event;
(c) LEAF
II B
SPE has complied with all of its covenants under the Agreement and has fulfilled
in all respects all of its obligations thereunder;
(d) LEAF II B SPE is not insolvent or subject to any Insolvency Event;
and
(e)
as
of the
Effective 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.
[remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the each of the undersigned has caused this Effective Date
Notice to be executed and delivered 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:
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:
10139549.3
NOTE
$200,000,000
September 29, 2006
New
York,
New York
FOR
VALUE RECEIVED,
LEAF II
B SPE, LLC, a Delaware limited liability company (“LEAF II B SPE”), promises to
pay XXXXXXX XXXXX COMMERCIAL FINANCE CORP., a Delaware corporation (“Payee”) or
its assigns, on each day set forth for a payment hereunder under the Priority
of
Payments (as defined in the Loan Agreement referred to below), the lesser of
(a)
TWO HUNDRED MILLION DOLLARS ($200,000,000) and (b) the unpaid principal amount
of all advances made by Payee to LEAF II B SPE as Advances under the Loan
Agreement referred to below.
LEAF
II B
SPE also promises to pay interest on the unpaid principal amount hereof, from
the date hereof until paid in full, at the rates and at the times which shall
be
determined in accordance with the provisions of that certain Loan and Security
Agreement, dated as of April 8, 2003, and as amended by the Assignment,
Assumption and amendment Agreement (as defined therein) (as it may be further
amended, supplemented or otherwise modified, the “Loan Agreement”; the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and between LEAF II B SPE and Payee.
This
Note
is the “Note” and is issued pursuant to and entitled to the benefits of the Loan
Agreement, to which reference is hereby made for a more complete statement
of
the terms and conditions under which the Advances evidenced hereby were made
and
are to be repaid.
All
payments of principal and interest in respect of this Note shall be made in
lawful money of the United States of America in same day funds in accordance
with the terms of the Loan Agreement. Payee hereby agrees, by its acceptance
hereof, that before disposing of this Note or any part hereof it will make
a
notation hereon of all principal payments previously made hereunder and of
the
date to which interest hereon has been paid; provided, the failure to make
a
notation of any payment made on this Note shall not limit or otherwise affect
the obligations of LEAF II B SPE hereunder with respect to payments of principal
of or interest on this Note.
This
Note
is subject to mandatory prepayment and to prepayment at the option of LEAF
II B
SPE, each as provided in the Loan Agreement.
THIS
NOTE
AND THE RIGHTS AND OBLIGATIONS OF LEAF II B SPE AND PAYEE HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
Upon
the
occurrence of a Termination Event, the unpaid balance of the principal amount
of
this Note, together with all accrued and unpaid interest thereon, may become,
or
may be declared to be, due and payable in the manner, upon the conditions and
with the effect provided in the Loan Agreement.
The
terms
of this Note are subject to amendment only in the manner provided in the Loan
Agreement.
No
reference herein to the Loan Agreement and no provision of this Note or the
Loan
Agreement shall alter or impair the obligations of LEAF II B SPE, which are
absolute and unconditional, to pay the principal of and interest on this Note
at
the place, at the respective times, and in the currency herein
prescribed.
LEAF
II B
SPE promises to pay all costs and expenses, including reasonable attorneys’
fees, all as provided in the Loan Agreement, incurred in the collection and
enforcement of this Note. LEAF II B SPE and any endorsers of this Note hereby
consent to renewals and extensions of time at or after the maturity hereof,
without notice, and hereby waive diligence, presentment, protest, demand notice
of every kind and, to the full extent permitted by law, the right to plead
any
statute of limitations as a defense to any demand hereunder.
[remainder
of page intentionally left blank]
IN
WITNESS WHEREOF,
LEAF II
B SPE has caused this Note to be duly executed and delivered by its Authorized
Officer thereunto duly authorized as of the date and at the place first written
above.
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:
TRANSACTIONS
ON
NOTE
|
Date
|
Advances
Made This Date
|
Amount
of Principal Paid This Date
|
Outstanding
Principal Balance This Date
|
Notation
Made By
|
10135637.4
EXHIBIT
A
FORM
OF
PURCHASE DATE NOTICE
This
Purchase Date Notice, dated as of __________, is delivered pursuant to (x)
Section 3.02(a) of the Purchase, Sale and Contribution Agreement dated as of
April 8, 2003, as amended by the Assignment, Assumption and Amendment Agreement
(as defined therein) (as it may be further amended, supplemented or otherwise
modified, the “Purchase
Sale and Contribution Agreement”)
between
LEAF FUNDING, INC , a Delaware corporation, and LEASE EQUITY APPRECIATION FUND
II, L.P., a Delaware limited partnership (“LEAF
II”),
and
(y) Section 3.02(a) of the Purchase and Sale Agreement dated as of April 8,
2003
, as amended by the Assignment, Assumption and Amendment Agreement between
LEAF
II and LEAF II B SPE, LLC, a Delaware limited liability company (“LEAF
II B SPE”).
Terms
used in this Purchase Date Notice that are not defined herein have meanings
assigned to such terms in the Purchase, Sale and Contribution
Agreement.
The
undersigned, being an Authorized Officer of LEAF Funding, does hereby certify
to
each of LEAF II, LEAF II B SPE and the Lender:
1. The
Purchase Date to which this Purchase Date notice relates is ____________ (the
“Subject
Purchase Date”),
which
is a Business Day.
2. This
Purchase Date Notice is being delivered no later than two (2) Business Days
prior to the such date of a proposed purchase of Purchased
Contracts.
3.
This
Purchase Date Notice is irrevocable.
4. The
wire
instructions pursuant to which the proceeds of the cash portion of the Purchase
Price are to be sent are as set forth at the end of this Purchase Date
Notice.
5.
As of
the Subject Purchase Date, the following statements are true and correct as
of
such date:
(a) the
information set forth in this Purchase Date Notice and in the computer file
accompanying this Purchase Date Notice is true and correct on and as of such
date as though made on and as of such date;
(b) LEAF
Funding’s representations and warranties contained in Section 4.01 of the
Purchase,
Sale and Contribution Agreement are true and correct on and as of the subject
Purchase
Date as though made on and as of such date;
(c) no
event
has occurred and is continuing, or would result from such purchase, that
constitutes a Potential Termination Event or a Termination Event;
(d) LEAF
Funding has complied with all of its covenants under the Purchase, Sale and
Contribution Agreement and has fulfilled in all respects all of its obligations
thereunder; and
(e) LEAF
Funding is not insolvent or subject to any Insolvency Event.
The
undersigned, being an Authorized Officer of LEAF II, does hereby certify to
each
of LEAF II B SPE and the Lender that as of the Subject Purchase Date, the
following statements are true and correct as of such date:
(a)
LEAF
II’s
representations and warranties contained in Section 4.01 of the Purchase and
Sale Agreement are true and correct on and as of the Subject Purchase Date
as
though made on and as of such date;
(b)
no
event
has occurred and is continuing, or would result from such purchase, that
constitutes a Potential Termination Event or a Termination Event;
(c)
LEAF
II
has complied with all of its covenants under the Purchase and Sale Agreement
and
has fulfilled in all respects all of its obligations thereunder;
and
(d) LEAF
II
is not insolvent or subject to any Insolvency Event.
The
undersigned, being an Authorized Officer of LEAF Financial, does hereby certify
to each of LEAF II B SPE and the Lender that as of the Subject Purchase Date,
the following statements are true and correct as of such date:
(a) LEAF
Financial’s representations and warranties contained in Section 2.03 of the
Servicing Agreement are true and correct on and as of the subject Purchase
Date
as though made on and as of such date;
(b) no
event
has occurred and is continuing, or would result from such purchase, that
constitutes a Potential Termination Event or a Termination Event;
(c) LEAF
Financial has complied with all of its covenants under the Servicing Agreement
and has fulfilled in all material respects all of its obligations thereunder;
and
(d) LEAF Financial is not insolvent or subject to any Insolvency
Event.
The
undersigned,
being an Authorized Officer of LEAF II B SPE, does hereby certify to the Lender
that as of the Subject Purchase Date, the following statements are true and
correct as of such date:
(a)
LEAF
II B
SPE’s representations and warranties contained in Section 4.01 of the Loan
Agreement are true and correct on and as oft he subject Purchase Date as though
made on and as of such date;
(b)
no
event
has occurred and is continuing, or would result from such purchase, that
constitutes a Potential Termination Event or a Termination Event;
(c)
LEAF
II B
SPE has complied with all of its covenants under the Loan Agreement and has
fulfilled in all respects all of its obligations thereunder;
(d)
LEAF
II B
SPE is not insolvent or subject to any Insolvency Event; and
(e)
immediately
prior to and after giving effect to the Advances to be made on the Subject
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.
Please
transfer the Purchase Price for the Contracts described herein immediately
available funds by 4:00 New York time today in the amount of
$___________________ to Seller in accordance with the following wire
instructions:
Wiring
Instructions:
Beneficiary:
ABA:
Bank
Acct. #
$
Amount:
[remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the each of the undersigned has caused this Purchase Date
Notice to be executed and delivered as of the date first above
written.
LEAF
FINANCIAL CORPORATION
By:
Name:
Title:
LEAF
FUNDING, INC.
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:
