exv10w1






Exhibit 10.1




AMENDMENT No. 5 TO SECURED LOAN AGREEMENT




     AMENDMENT TO SECURED LOAN AGREEMENT (this “Amendment”) dated as of June 1, 2008 among WESTLB
AG, NEW YORK BRANCH (the “Lender”), U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the “Collateral Agent” and “Securities Intermediary”), LEASE EQUITY
APPRECIATION FUND II, 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 II, 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 1,
2005 (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) Subsections (a) and (b) of Section 2.11 shall be struck in their entirety and
replaced with:




          (a) [Reserved].




          (b) [Reserved].



 









 






     (b) The definitions of Applicable Margin, Expected Facility Termination Date and Senior
Leverage Ratio in Appendix A shall be struck in their entirety and replaced with:




          “Applicable Margin” means, for each Advance and (i) any date prior to the
Facility Termination Date, 1.20% or (ii) any date that occurs on or after the Facility
Termination Date, 1.85%.




     “Expected Facility Termination Date” means June 30, 2009.




          “Senior Leverage Ratio” means, with respect to LEAF, the result obtained by
dividing LEAF’s Combined Recourse Debt by LEAF’s Adjusted Partner’s Capital. For such
determination, “Combined Recourse Debt” means all of LEAF’s debts and liabilities, but
excluding third party accounts payable, accrued expenses, non-recourse debt, SFAS 133/138
adjustments (if any), and intercompany obligations less applicable cash then on the
deposit in the “Lockbox Account”, and “Adjusted Partner’s Capital” means partner’s capital
(in accordance with GAAP with no adjustment for other comprehensive income accounted for
pursuant to SFAS 133/138) plus “Due to General Partner” plus subordinated debt, if any. For
such determination (including Section 7.02(jj)), “Due to General Partner” means amounts, as
set forth in the financial statements of LEAF, that are due to LEAF Financial Corporation
and its affiliates, as general partner of LEAF, for management fees and expenses due for
servicing the Securitized Portfolio in addition to amounts LEAF Financial Corporation has
paid for property taxes due on the Securitized Portfolio that have been billed to Customers.




     (c) The definition of Facility Termination Event shall be amended in that clause (x)
of such definition shall be struck in its entirety and replaced with:




(x) LEAF shall have failed to maintain a Senior Leverage Ratio no greater
than 8.0:1.0,



     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



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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 in accordance herewith, and the respective rights, limitations, obligations,
duties, liabilities and immunities of the parties shall hereafter be determined, exercised and
enforced subject in all respects to such amendments, and the terms of this Amendment shall be a
part of the Secured Loan Agreement for any and all purposes. Except as modified and expressly
amended by this Amendment, the Amendment is in all respects ratified and confirmed, and all the
terms, provisions and conditions thereof shall be and remain in full force and effect.



     SECTION 6. GOVERNING LAW. THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THEREOF.



     SECTION 7. Counterparts. For the purpose of facilitating the execution of this
Amendment and for other purposes, this Amendment may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be an original and together shall constitute and be
one and the same instrument.



     SECTION 8. Severability of Provisions. If any one or more of the provisions or terms
of this Amendment shall be for any reason whatsoever held invalid, then such provisions or terms
shall be deemed severable from the remaining provisions or terms of this Amendment and shall in no
way affect the validity or enforceability of the other provisions or terms of this Amendment.



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     SECTION 9. Amendment. This Amendment may be amended or modified from time to time by
the parties hereto, but only by an instrument in writing signed by each of the parties hereto.



     SECTION 10. Headings. The Section headings are not part of this Amendment and shall
not be used in its interpretation.



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     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year
first above written.



	 	 	 	 	 
	 	LEAF FUND II, LLC,

     as Borrower

 	 
	 	By:  	s/ Miles Herman
 	 
	 	 	Name:  	Miles Herman 	 
	 	 	Title:  	Vice President 	 
	 
	 	LEASE EQUITY APPRECIATION FUND II, 

L.P., as Seller

 	 
	 	By:  	LEAF FINANCIAL CORPORATION,
as General Partner
 	 
	 	 	 
	 	By:  	                                                  /s/ Miles Herman
 	 
	 	 	Name:  	Miles Herman 	 
	 	 	Title:  	President, COO 	 
	 
	 	LEAF FINANCIAL CORPORATION, as 

Servicer

 	 
	 	By:  	/s/ Miles Herman
 	 
	 	 	Name:  	Miles Herman 	 
	 	 	Title:  	President, COO 	 
	 
	 	LEAF FUNDING INC., as Originator

 	 
	 	By:  	/s/ Miles Herman
 	 
	 	 	Name:  	Miles Herman 	 
	 	 	Title:  	Senior Vice President 	 



 









 




	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, 

as Collateral Agent and Securities Intermediary

 	 
	 	By:  	/s/ Diane L. Reynolds
 	 
	 	 	Name:  	Diane L. Reynolds 	 
	 	 	Title:  	Vice President 	 
	 
	 	WESTLB AG, NEW YORK BRANCH, as Lender

 	 
	 	By:  	/s/ Matthew F. Tallo
 	 
	 	 	Name:  	Matthew F. Tallo 	 
	 	 	Title:  	Executive Director 	 
	 
	 	 	 
	 	By:  	                                               /s/ Vesselina Koleva
 	 
	 	 	Name:  	Vesselina Koleva 	 
	 	 	Title:  	Director