Exhibit 10.5 Second Amendment to WestLB AG Secured Loan Agreement


    SECOND
      AMENDMENT TO SECURED LOAN AGREEMENT

     

    This
      Second Amendment (this “Amendment”)
      to the
      Secured Loan Agreement referenced below is entered into as of June 29, 2006,
      among Leaf
      Fund
      II, LLC, a Delaware limited liability company, as Borrower (the “Borrower”),
      Leaf
      Funding, Inc., a Delaware corporation, as Originator (the “Originator”),
      Lease
      Equity Appreciation Fund II, L.P., a Delaware limited partnership, as Seller
      (the “Seller”),
      Leaf
      Financial Corporation, a Delaware corporation, as Servicer (the “Servicer”),
      U.S.
      Bank National Association, a national banking association, as Collateral Agent
      (in such capacity, the “Collateral
      Agent”)
      and as
      Securities Intermediary (in such capacity, the “Securities
      Intermediary”)
      and
      WestLB AG, New York Branch, as Lender (the “Lender”).

     

    R E C I T A L S:

     

    WHEREAS,
      the Borrower, the Originator, the Seller, the Servicer, the Collateral Agent,
      the Securities Intermediary and the Lender are parties to the Secured Loan
      Agreement, dated as of June 1, 2005 (as amended, supplemented and otherwise
      modified from time to time, the “Secured
      Loan Agreement”);

     

    WHEREAS,
      the parties hereto desire to amend the Secured Loan Agreement pursuant to
      Section 14.04 thereof to make certain amendments thereto as further described
      in
      this Amendment;

     

    NOW,
      THEREFORE, in consideration of the mutual covenants and undertakings herein
      contained, and for other good and valuable consideration, the receipt and
      sufficiency of which are hereby acknowledged, the parties hereto hereby agree
      as
      follows:

     

    Section
      1.  Amendments
      to the Secured Loan Agreement.
      Effective as of the execution and delivery of this Amendment by all parties
      hereto:

     

    (a)  The
      definition of “Applicable Margin” in Appendix
      A
      to the
      Secured Loan Agreement is hereby amended and restated in its entirety as
      follows:

     

    “Applicable
      Margin”
means,
      for each Advance and (i) any date prior to the Facility Termination Date, 0.95%
      or (ii) any date that occurs on or after the Facility Termination Date,
      1.85%.”

     

    (b)  The
      definition of “Facility Termination Event” in Appendix
      A
      to the
      Secured Loan Agreement is hereby amended and restated in its entirety as
      follows:

     

    “Facility
      Termination Event”
means
      the occurrence of any of the following: (i) an Event of Default, (ii) the
      average of the Annualized Default Ratios on the Serviced Portfolio for the
      three
      most recently ended Collection Periods exceeds 2.5%, (iii) the average of the
      Annualized Default Ratios on the Securitized Portfolio for the three most
      recently ended Collection Periods exceeds 2.5%, (iv) the average of the NPA
      Ratios for the Securitized Portfolio for the three most recently ended
      Collection Periods exceeds 1.5% or (v) the Cumulative Net Loss exceeds the
      percentages found in the column titled “Facility Termination Event” in the
      definition of “Static Pool Test”; provided,
      however,
      that
      any such Facility Termination Event (other than clause (ii) or clause (iii))
      may
      be waived by the Lender.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (c)  The
      definition of “Maximum Facility Amount” in Appendix
      A
      to the
      Secured Loan Agreement is hereby amended and restated in its entirety as
      follows:

     

    “Maximum
      Facility Amount”
means
      $150,000,000.

     

    (d)  Section
      8.01(m) of the Secured Loan Agreement is hereby amended and restated in its
      entirety as follows:

     

    “(m)
      3-Month
      Rolling Average of the Annualized Default Ratio (Serviced
      Portfolio).
      The
      average of the Annualized Default Ratios on the Serviced Portfolio for the
      three
      most recently ended Collection Periods is equal to or greater than 3.50%;
      or”

     

    (e)  Section
      8.01(n) of the Secured Loan Agreement is hereby amended and restated in its
      entirety as follows:

     

    “(n)
      3-Month
      Rolling Average of the Annualized Default Ratio (Securitized
      Portfolio).
      The
      average of the Annualized Default Ratios on the Securitized Portfolio for the
      three most recently ended Collection Periods is equal to or greater than 3.50%;
      or”

     

    (f)  Paragraph
      (liii)(H) of Exhibit D to the Secured Loan Agreement is hereby amended and
      restated in its entirety as follows:

     

    “(liii)(H)
      after giving effect to the addition of the Contract to the pool of Eligible
      Contracts, the Aggregate Implicit Principal Balance of Eligible Contracts (as
      of
      any date of determination) with respect to which any one Person or any Affiliate
      of such Person is the related Customer does not exceed (1) if the Aggregate
      Implicit Principal Balance of the Eligible Contracts is less than $25,000,000,
      4.0% of the Aggregate Implicit Principal Balance of all Eligible Contracts,
      (2)
      if the Aggregate Implicit Principal Balance of the Eligible Contracts is less
      than $50,000,000 but is greater than $25,000,000, the greater of (x) $1,000,000
      and (y) 3.0% of the Aggregate Implicit Principal Balance of all Eligible
      Contracts and (3) if the Aggregate Implicit Principal Balance of the Eligible
      Contracts is greater than $50,000,000, 3.0% of the Aggregate Implicit Principal
      Balance of all Eligible Contracts;”

     

    Section
      2.  Representations
      and Warranties.
      Each of
      the Borrower, the Seller, the Servicer and the Originator hereby represents
      and
      warrants that (i) it has the power and is duly authorized to execute and deliver
      this Amendment, (ii) this Amendment has been duly authorized, executed and
      delivered, (iii) it is and will continue to be duly authorized to perform its
      respective obligations under the Loan Documents and this Amendment, (iv) the
      execution, delivery and performance by it of this Amendment shall not (1) result
      in the breach of, or constitute (alone or with notice or with the lapse of
      time
      or both) a default under, any material agreement or instrument to which it
      is a
      party, (2) violate (A) any provision of law, statute, rule or regulation, or
      organizational documents or other constitutive documents, (B) any order of
      any
      Governmental Authority or (C) any provision of any material indenture, agreement
      or other instrument to which it is a party or by which it or any of its property
      is or may be bound, or (3) result in the creation or imposition of any Lien
      upon
      or with respect to any property or assets now owned or hereafter acquired by
      the
      Borrower other than pursuant to the Loan Documents, (v) this Amendment and
      each
      of the Loan Documents to which it is a party or by which it or its assets may
      be
      or is bound constitutes its legal, valid and binding obligations, enforceable
      against it (subject, as to the enforcement of remedies, to applicable
      bankruptcy, reorganization, insolvency, moratorium and similar laws affecting
      creditors’ rights generally and to general principles of equity), (vi) except as
      publicly disclosed, there are no actions, suits, investigations (civil or
      criminal) or proceedings at law or in equity or by or before any Governmental
      Authority pending or, to its knowledge, threatened against or affecting it
      or
      any of its business, property or rights (1) which involve any Loan Documents
      or
      (2) which would be materially likely to result in a Material Adverse Effect,
      (vii) it is not in default or violation with respect to any law, rule or
      regulation, judgment, writ, injunction or decree order of any court,
      governmental authority, regulatory agency or arbitration board or tribunal
      and,
      with respect to the Originator, the effect of which would have a material
      adverse effect on its business, assets, operations or financial condition and
      (viii) no Facility Termination Event, Default or Event of Default has occurred
      or is continuing. Except as expressly amended by the terms of this Amendment,
      all terms and conditions of the Secured Loan Agreement shall remain in full
      force and effect and are hereby ratified in all respects. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Section
      3.  Conditions
      to Effectiveness.
      This
      Amendment shall not be effective until the following conditions precedent have
      been satisfied:

     

    (a)  the
      Lender shall have received:

     

    
      	(i)  	
              a
                copy of this Amendment duly executed by each of the parties
                hereto;

            


    

     

    
      	(ii)  	
              good
                standing certificates, dated as of a recent date, for each of the
                Borrower
                and the Servicer, issued by the Secretary of State of
                Delaware;

            


    

     

    
      	(iii)  	
              certified
                copies of requests for information or copies (or similar UCC search
                report
                certified by a party acceptable to the Lender), dated a date reasonably
                near to the effective date hereof, listing all effective financing
                statements, which name the Borrower (under its present name and any
                previous name) as debtor, together with copies of such financing
                statements as the Lender may
                request;

            


    

     

    
      	(iv)  	
              one
                or more bring down letters with respect to the Opinions of Counsel
                of
                counsel to the Borrower, the Servicer, the Custodian and the Backup
                Servicer, delivered in connection with the Secured Loan Agreement
                which
                bring down letters shall affirm such Opinions of Counsel as of the
                effective date hereof;

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	(v)  	
              one
                or more Opinions of Counsel of counsel to the Borrower and the Servicer
                in
                form and substance satisfactory to the Agent with respect to, among
                other
                things, the due authorization, execution and delivery of, and
                enforceability of, this Amendment;

            


    

     

    
      	(vi)  	
              all
                costs and expenses required to be paid in connection with this Amendment
                shall have been paid in full, and any fees due the Lender payable
                in
                connection with this Amendment shall have been paid in full;
                and

            


    

     

    
      	(vii)  	
              the
                Servicer shall have delivered to the Lender, in form and substance
                satisfactory to the Lender, a certificate signed by an officer of
                the
                Borrower having responsibility for financial matters of the Borrower
                which
                shall demonstrate that, as of the effective date of this Amendment
                no
                Facility Termination Event or Event of Default shall
                exist.

            


    

     

    (b)  All
      acts
      and conditions (including, without limitation, the obtaining of any necessary
      regulatory approvals and the making of any required filings, recordings or
      registrations) required to be done and performed and to have happened prior
      to
      the execution, delivery and performance of this Amendment and all related
      documents and to constitute the same legal, valid and binding obligations,
      enforceable in accordance with their respective terms, shall have been done
      and
      performed and shall have happened in due and strict compliance with all
      applicable laws.

     

    Section
      4.  Defined
      Terms;
      Headings.All
      capitalized terms used herein, unless otherwise defined herein, have the same
      meanings provided herein or in Appendix
      A
      to the
      Secured Loan Agreement. The
      headings of the various Sections of this Amendment have been inserted for
      convenience of reference only and shall not be deemed to be part of this
      Amendment.

     

    Section
      5.  Limited
      Amendment.
      This
      Amendment is limited precisely as written and shall not be deemed to (a) be
      a
      consent to a waiver or any other term or condition of the Secured Loan
      Agreement, the other Loan Documents or any of the documents referred to therein
      or executed in connection therewith or (b) prejudice any right or rights the
      Lender or the Hedge Counterparties may now have or may have in the future under
      or in connection with the Secured Loan Agreement, the other Loan Documents
      or
      any documents referred to therein or executed in connection therewith. Whenever
      the Secured Loan Agreement is referred to in the Secured Loan Agreement or
      any
      of the instruments, agreements or other documents or papers executed and
      delivered in connection therewith, it shall be deemed to mean the Secured Loan
      Agreement, as the case may be, as modified by this Amendment. Except as hereby
      amended, no other term, condition or provision of the Secured Loan Agreement
      shall be deemed modified or amended, and this Amendment shall not be considered
      a novation.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Section
      6.  Construction;
      Severability.
      This
      Amendment is a document executed pursuant to the Secured Loan Agreement and
      shall (unless otherwise expressly indicated therein) be construed, administered
      or applied in accordance with the terms and provisions thereof. If
      any
      one or more of the covenants, agreements, provisions or terms of this Amendment
      shall be held invalid in a jurisdiction for any reason whatsoever, then, in
      such
      jurisdiction, such covenants, agreements, provisions or terms shall be deemed
      severable from the remaining covenants, agreements, provisions or terms of
      this
      Amendment and shall in no way affect the validity or enforceability of the
      other
      covenants, agreements, provisions or terms of this Amendment.

     

    Section
      7.  Counterparts;
      Facsimile Signature.
      This
      Amendment may be executed by the parties hereto in several counterparts, each
      of
      which shall be deemed to be an original and all of which shall constitute
      together but one and the same agreement. The parties may execute facsimile
      copies of this Amendment and the facsimile signature of any such party shall
      be
      deemed an original and fully binding on said party.

     

    Section
      8.  Governing
      Law.
      This
      Amendment shall be governed and construed in accordance with the applicable
      terms and provisions of Section 14.09 (Governing Law) of the Secured Loan
      Agreement, which terms and provisions are incorporated herein by
      reference.

     

    Section
      9.  Successors
      and Assigns.
      This
      Amendment shall be binding upon and inure to the benefit of the parties hereto
      and their respective successors and assigns.

     

    



    
      
        
          


        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    



    IN
      WITNESS WHEREOF, the parties hereto have caused this Second Amendment to the
      Secured Loan Agreement to be duly executed by their respective authorized
      officers as of the day and year first written above.

     

    


    BORROWER:                      LEAF
      FUND II, LLC

     

    By:        
      _____________________________________       

    Name:
       Miles
      Herman

    Title:  Vice
      President

     

    ORIGINATOR:                     LEAF
      FUNDING, INC.

     

    By:        
      _____________________________________       

    Name:  Miles
      Herman

    Title:  SVP
&
      COO

     

    SELLER:                     
LEASE
      EQUITY APPRECIATION FUND II, L.P.

     

                              By:  LEAF
      FINANCIAL
      CORPORATION, 

                                        as
      General
      Partner

     

    By:        
      _____________________________________       

    Name:  Miles
      Herman

    Title:  President,
      COO

     

    SERVICER:                       
LEAF
      FINANCIAL
      CORPORATION

     

    By:        
      ____________________________________       

    Name:  Miles
      Herman 

    Title:  President,
      COO

     


    
      
        


        Second
          Amendment to Secured Loan Agreement

        


        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    LENDER:                     
WESTLB
      AG, NEW YORK BRANCH

     

    By:        
      ____________________________________      

    Name:

    Title:

     

    By:        
      ____________________________________      

    Name:

    Title:

     

    COLLATERAL
      AGENT/

    SECURITIES
      INTERMEDIARY:           U.S.
      BANK NATIONAL ASSOCIATION

     

    By:        
      ___________________________________      

    Name:

    Title: