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 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
1818
Market Street, 9
th floor
Philadelphia,
PA 19103
Tel:
(215)
569-1844
Fax:
(215)
569-0675
Attn:
Crit
DeMent
With
copies to:
Dar
Patel, Esq.
General
Counsel
LEAF
Financial Corporation
(same
info as above)
and:
Richard
Abt, Esq.
Ledgewood
1900
Market Street, Suite 750
Philadelphia,
PA 19103
Tel:
(215)
731-9450
Fax:
(215)
735-2513
If
to LEAF II:
Lease
Equity Appreciation Fund II, L.P.
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:
Merrill
Lynch Commercial Finance Corp.
4
World Financial Center,10
th Fl.
New
York, NY 10080
Tel:
(212)
449-9369
Fax:
(212)
449-9015
Attn:
Jeffrey
S. Cohen
If
to U.S. Bank:
U.S.
Bank National Association
180
East Fifth Street
St.
Paul, MN 55101
Tel:
(651)
244-0727
Fax:
(651)
244-1917
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 “Merrill Lynch
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:
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:
MERRILL
LYNCH EQUIPMENT FINANCE LLC
By:
Name:
Title:
MERRILL
LYNCH COMMERCIAL FINANCE CORP.
By:
Name:
Title:
U.S.
BANK NATIONAL ASSOCIATION
By:
Name:
Title:
Appendix A
[as attached]
Exhibit I
[as attached]
Exhibit II
[as attached]
Exhibit III
[as attached]
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).
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 ”
means as to Person, any of the Chief Executive Officer, any
President, any Senior Vice President, any Executive Vice President
or any Vice President or the Treasurer thereof, as the case may be,
or, if such Person is managed by another Person (such other Person,
a “
Manager ”),
any of the Chief Executive Officer, any President, any Senior Vice
President, any Executive Vice President or any Vice President or
the Treasurer of such Manager, or the Manager of such
Manager.
“
Authorized Officer’s Certificate ”
means, with respect to any Person, a certificate signed by an
Authorized Officer.
&nbs
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