exh10_5.htm


     

    
      

      

    

     

    
      MORGAN
STANLEY BANK

       

      May 23,
2008

       

      Resource
Capital Funding II, LLC

      c/o LEAF
Financial Corporation

      2005
Market Street, 15th
Floor

      Philadelphia,
PA 19103

       

      


       

      Re:           Amended and Restated Fee
Letter

       

      Ladies
and Gentlemen:

       

      Reference
is made to the Receivables Loan and Security Agreement dated as of October 31,
2006 (as such may be amended, restated and/or otherwise modified from time to
time, the “RLSA”) among Resource
Capital Funding II, LLC, as Borrower (the “Borrower”), LEAF
Financial Corporation (“LEAF Financial”), as
Servicer, Morgan Stanley Bank (“Morgan Stanley”) and
the other Lenders party thereto from time to time, U.S. Bank National
Association, as Custodian and the Lender’s Bank, and Lyon Financial Services,
Inc. (d/b/a U.S. Bank Portfolio Services). Terms defined in the RLSA are used in
this amended and restated fee letter (this “Fee Letter”) as
therein defined.

       

      This Fee
Letter is the fee letter referred to in Section 2.08(a) of the RLSA and sets
forth the understanding of the parties hereto with respect to certain fees that
are payable by the Borrower in connection with the financing provided by the
Lenders pursuant to the RLSA. This Fee Letter amends and restates that certain
fee letter, dated as of October 31, 2006, among the parties hereto (the “Existing Fee
Letter”), and after the date hereof, all references in any Transaction
Document to the Fee Letter shall be deemed references to this Fee Letter. This
Fee Letter is not intended to constitute a novation of the Existing Fee Letter,
and all fees that have accrued under the Existing Fee Letter up to the date
hereof shall be payable as and when required in accordance with the terms
thereof.

       

      The
parties hereto agree as follows:

       

      l.           The
Borrower previously has paid to Morgan Stanley four installments of an
Arrangement Fee (as defined in the Existing Fee Letter) on October 15, 2006,
January 15, 2007, April 15, 2007 and July 15, 2007, each in the amount of
$125,000.  LEAF Financial hereby agrees to pay to Morgan Stanley on or
prior to the date hereof, a one-time, up-front, fully-earned and non-refundable
due diligence fee (the “Due Diligence Fee”),
in the amount of $25,000.

       

      
        
          
          

        

        
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      2.           In
consideration of Morgan Stanley executing this Fee Letter, the consent to the
Membership Interest Purchase Agreement, dated on or about the date hereof,
between LEAF Funding, Inc. and LEAF Commercial Finance Fund, LLC, and the fifth
amendment to the RLSA, dated as of the date hereof, the Borrower hereby agrees
to pay to Morgan Stanley an amendment fee in the amount of $500,000 (the “Amendment Fee”),
which such fee shall have been earned, in its entirety, as of the date
hereof.  The Amendment Fee is payable in two (2) equal installments
according to the following schedule:  1st payment
of $250,000 (the “First Installment”)
on or prior to the date hereof; and 2nd payment
of $250,000 on or prior to June 30, 2008.

       

      3.           The
Borrower hereby agrees that, in the event that the Lender increases the
Borrowing Limit pursuant to Section 2.16 of the RLSA, the Borrower shall pay to
the Agent, for its own account, immediately prior to the effectiveness of such
increase, a fee (the “Increase Fee”) in an
amount equal to 0.20% of the principal amount of such increase, which such fee
shall have been earned, in its entirety, on the date of such
increase.

       

      4.           (a)           During
the period commencing on the date hereof and ending on the Collection Date, the
Borrower shall pay Morgan Stanley, a fee (the “Unused Fee”) in
respect of each Fee Period (other than the Fee Period commencing on the date
hereof and the five following Fee Periods) which shall be equal to (A) 0.10%, if
the Facility Amount is equal to or less than $100,000,000, and 0.25%, if the
Facility Amount is greater than $100,000,000, multiplied by (B) an
amount equal to (i) the Borrowing Limit (or, if more than one Borrowing Limit
was in effect during such Fee Period, the daily average Borrowing Limit) in
effect during such Fee Period minus (ii) the daily
average Facility Amount during such Fee Period, as determined by the Lender,
multiplied by
(C) a fraction, the numerator of which shall be the actual number of days in
such Fee Period and the denominator of which shall be 360 days.

       

      (b)           The
Unused Fee shall be payable by the Borrower in arrears on each Remittance Date
commencing on the seventh (7th)
Remittance Date after the Closing Date with respect to the Fee Period
immediately preceding such Remittance Date, and on the Collection
Date.  The Unused Fee shall not be payable with respect to any Fee
Period during interest in respect of the Loans Outstanding is computed by
reference to the Default Funding Rate.

       

      5.           If
the Borrower exercises its right to prepay, in whole or in part, the outstanding
principal amount of the Loans in accordance with Section 2.15 of the RLSA, the
Borrower shall pay Morgan Stanley a fee (the “Prepayment Premium”)
in an amount equal to 0.50% multiplied by the
principal amount of the Loans then being prepaid.  Notwithstanding the
foregoing, such Prepayment Premium shall be credited against any fees paid to
Morgan Stanley in connection with a securitization transaction.

       

      6.           Whenever
any payment hereunder shall be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day and such extension of
time shall be included in the computation of such payment; provided, that no day
shall be included in more than one Fee Period.

       

      
        
          
          

        

        
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      7.           For
all purposes under the RLSA, “Adjusted Eurodollar Rate
Margin” shall mean (a) prior to June 1, 2008, (i) 0.60% per annum on the
portion of the Facility Amount equal to or less than $100,000,000 and (ii) 0.75%
per annum on the portion of the Facility Amount in excess of $100,000,000 (if
any), and (b) on and after June 1, 2008, 1.15% per annum on the Facility
Amount.

       

      8.           Unless
otherwise required by applicable law, each party hereto agrees to maintain the
confidentiality of this Fee Letter in communications with third parties and
otherwise; provided, that, this
Fee Letter may be disclosed by each party to its respective legal counsel and
auditors, any rating agency and any provider of liquidity support or credit
enhancement, if they agree to hold it confidential. The terms and provisions of
this Fee Letter shall be binding upon, and shall inure to the benefit of, the
successors and assigns of the parties hereof. THIS FEE LETTER SHALL, IN
ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
ANY CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF
THE LAWS OF ANY OTHER JURISDICTION.

       

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      This Fee
Letter may be executed in two or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this Fee
Letter by facsimile shall be effective as delivery of a manually executed
counterpart of this Fee Letter.

       

      Very
truly yours,

      


       

      MORGAN
STANLEY BANK, as Lender


       

      By:           ________________________________

       

      Name:

       

      Title:

       

      Agreed
and accepted as of

       

      the date
first above written:

       

      RESOURCE
CAPITAL FUNDING II, LLC,

      as
Borrower

      


      


      By:           ___________________________

       

      Name:

       

      Title:

       

      


       

      LEAF
FINANCIAL CORPORATION

      


      


      By:           ___________________________

       

      Name:

       

      Title:

       

       

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