Exhibit 10.4
AMENDMENT No. 5 TO SECURED
LOAN AGREEMENT
AMENDMENT TO SECURED LOAN AGREEMENT
(this “Amendment”) dated as of June 26, 2009 among
WESTLB AG, NEW YORK BRANCH (the “ Lender ”),
U.S. BANK NATIONAL ASSOCIATION, a national banking association (the
“ Collateral Agent ” and “ Securities
Intermediary ”), LEAF EQUIPMENT LEASING INCOME FUND III,
L.P., a Delaware limited partnership (“ LEAF ”
or the “ Seller ”), LEAF FINANCIAL CORPORATION,
a Delaware corporation (the “ Servicer ”), LEAF
FUNDING INC., a Delaware corporation (the “ Originator
”) and LEAF FUND III, LLC, a Delaware limited liability
company (the “ Borrower ”).
W I T N E S
S E T H :
WHEREAS, the parties hereto are
parties to the Secured Loan Agreement, dated as of June 19,
2007 (as modified, amended or supplemented from time to time, the
“ Secured Loan Agreement ”);
WHEREAS, pursuant to
Section 14.04 of the Secured Loan Agreement, the parties
hereto wish to amend the Secured Loan Agreement and hereby agree
that the Secured Loan Agreement is hereby amended; and
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. Definitions
.
(a) Whenever used in this Amendment,
capitalized terms used and not otherwise defined herein shall have
the meanings set forth in Appendix A to the Secured Loan
Agreement.
(b) Any term that relates to a
document or a 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 this
Amendment.
SECTION 2. Amendments
.
(a) The definition of Maximum
Facility Amount in Appendix A shall be struck in its entirety and
replaced with:
“ Maximum Facility
Amount ” means $220,000,000.
b) The Note is hereby modified so
that the Maximum Facility Amount thereunder is
$220,000,000.
SECTION 3. Effective Date .
The effective date of this Amendment shall be the date
hereof.
SECTION 4. Representations and
Warranties .
Borrower, LEAF and Servicer each
hereby severally certifies as to itself that its respective
representations and warranties set forth in Article VI of the
Secured Loan Agreement (and any other representations and
warranties made by Borrower, LEAF or Servicer in the Secured Loan
Agreement) are true and correct on the date hereof with the same
force and effect as if made on the date hereof, except to the
extent such representations and warranties speak specifically to an
earlier date in which case they shall have been true and correct on
such date. In addition, Borrower, LEAF and Servicer each severally
represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) that (a) no
unwaived Facility Termination Event or Event of Default (nor any
event that but for notice or lapse of time or both would constitute
an unwaived Facility Termination Event or Event of Default) shall
have occurred and be continuing as of the date hereof nor shall any
unwaived Facility Termination Event or Event of Default (nor any
event that but for notice or lapse of time or both would constitute
an unwaived Facility Termination Event or Event of Default) occur
due to this Amendment becoming effective, (b) Borrower, LEAF
and Servicer each has the power and authority to execute and
deliver this Amendment and has taken or caused to be taken all
necessary actions to authorize the execution and delivery of this
Amendment, (c) no consent of any other person (including,
without limitation, members or creditors of Borrower, LEAF or
Servicer), and no action of, or filing with any governmental or
public body or authority is required to authorize, or is otherwise
required in connection with the execution and performance of this
Amendment, other than such that have been obtained, (d) the
Secured Loan Agreement, as amended by this Amendment, constitutes
the legal, valid and binding obligation of Servicer, LEAF and the
Borrower, enforceable against them in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization and other similar laws of
general application affecting creditors’ rights generally and
by general principles of equity (whether such enforceability is
considered in a proceeding in equity or law), and (e) the
execution, delivery and performance of this Amendment will not
violate any provision of any existing law or regulation or any
order or decree of any court, regulatory body or administrative
agency or the certificate of formation or the limited liability
company agreement of Servicer, LEAF or Borrower or any material
indenture, agreement, mortgage, deed of trust or other instrument
to which Servicer, LEAF or the Borrower is a party or by which it
is bound.
SECTION 5. Ratification .
Upon execution of this Amendment, the Secured Loan Agreement shall
be amended i
