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EXHIBIT 10.10(a)
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
"), MERRILL LYNCH EQUIPMENT FINANCE LLC, a Delaware limited
liability company (" MLEF "), MERRILL LYNCH 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
(2)
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 $188,824,807.55 (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.
(3)
(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
(4)
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
(5)
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
(6)
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
(7)
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
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