MASTER PROGRAM AGREEMENT
AMONG
LEASE EQUITY APPRECIATION FUND I, LP ("ASSIGNOR")
AND
Information Leasing Corporation ("ASSIGNEE")
AND
LEAF FINANCIAL CORPORATION ("SERVICER")
This MASTER PROGRAM AGREEMENT ("Agreement"), with an effective date of September
29, 2003, is entered into by and between Lease Equity Appreciation Fund I, LP, a
Delaware limited partnership having a place of business at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Assignor"), and Information Leasing
Corporation, an Ohio corporation having its principal place of business at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Assignee") and LEAF Financial
Corporation, a Delaware corporation having its principal place of business at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Servicer").
WITNESSETH:
WHEREAS, Assignor wishes to sell to Assignee, and Assignee wishes to purchase
from Assignor, pursuant to the terms and conditions of this Agreement, certain
Lease Transactions (as defined herein) and grant or assign a security interest
in the relevant Equipment (as defined herein) related thereto;
WHEREAS, following the Closing of each Lease Purchase Transaction, Assignor
shall at its expense, as provided in this Agreement, perform certain
administrative, collection and other services for Assignee through the Servicer
with respect to the purchased Lease Transaction as provided in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending hereby to be legally bound, the parties hereby agree
as follows:
ARTICLE 1.
DEFINITIONS
In addition to words and terms defined elsewhere in this Agreement, the
following terms will have the respective meanings set forth in this Article 1.
"Assignment" shall mean an Assignment in substantially the form of Exhibit 1
attached hereto.
"Bankruptcy" means, with respect to a party, (a) the entry of a decree or order
for relief against the party by a court of competent jurisdiction in any
involuntary case brought against the party under any bankruptcy, insolvency or
other similar law generally affecting the rights of creditors and relief of
debtors now or hereafter in effect (collectively, "Debtor Relief Laws"), (b) the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar agent under applicable Debtor Relief Laws or other
applicable laws for the party or for any substantial part of its assets or
property which remains undismissed for a period of 60 days, (c) the ordering of
the winding up or liquidation of the party's affairs, (d) the filing of a
petition seeking involuntary relief under any applicable Debtor Relief Law,
against the party, which petition remains undismissed for a period of sixty (60)
days, (e) the commencement by the party of a voluntary case under any applicable
Debtor Relief Law or (f) the making by the party of any general assignment for
the benefit of its creditors.
"Business Day" means a day in Cincinnati, Ohio, other than a Saturday, Sunday or
any holiday on which commercial banks in such location are required or
authorized by law or executive order to be closed.
"Assignee" shall mean Information Leasing Corporation
"Claim" shall mean any third party claim of any nature whatsoever, including any
demand, liability, obligation, cause of action, suit, proceeding, judgment,
award, assessment or reassessment.
"Closing" shall have the meaning specified in Section 3.3.
"Closing Date" shall be the date specified on Exhibit 2 as such date relates to
each Closing.
"Credit Reserve" shall have the meaning specified in Section 3.7.
"Customer" shall mean the Person executing any item of Paper as the lessee or
other obligor that is obligated to remit the Periodic Payments with respect to
such Paper. Such term shall also include any Person who has guaranteed some or
all of the Customer's obligations under an item of Paper.
"Damages" shall mean any loss whatsoever suffered by Assignee, including
expenses, debts, costs, damages, penalties, fines, charges, liabilities,
interest, and all reasonable legal and other fees and disbursements arising
under, pursuant to or out of a Claim.
"Discount Rate" shall mean the discount rate specified on Exhibit 2 used to
price the Paper being purchased pursuant to such Lease Transaction Purchase
Schedule. The calculation of the applicable Discount Rate shall be based on the
then Index Rate plus the applicable Margin.
"Debtor Relief Laws" shall have the meaning specified in the definition of
"Bankruptcy".
"Equipment" shall mean the equipment subject to an item of Paper, which is
purchased by Assignee pursuant to a Lease Transaction Purchase Schedule.
"Event of Default" shall have the meaning set forth in Section 8.1.
"File" shall mean with respect to each item of Paper, all of Assignor's records
and information pertaining to the underlying Lease Transaction, including
without limitation, a fully-executed original of the Paper, duly signed by the
Customer and the Assignor and all relevant credit information pertaining to the
Paper.
"Guaranteed Residual Value" shall have the meaning specified in the definition
of Residual Value.
"Holdback Amount" shall have the meaning specified in Section 3.7.
"Holdback Reimbursement" or "Holdback Reimbursements" shall have the meaning
specified in Section 3.7.
"Indemnitee" shall have the meaning specified in Section 7.2.
"Index Rate" shall mean, with respect to any Lease Purchase Transaction, yield
to maturity for United States Treasury obligations having a remaining term equal
to the dollar-weighted average remaining term of the all Lease Transactions
included such Lease Purchase Transaction. The Index Rate shall be locked in on
the business day prior to Closing, and shall be obtained by referring to
treasury yields as published in The Wall Street Journal for such business day.
"Indemnitor" shall have the meaning specified in Section 7.2.
"Investment Balance" shall mean, as of any date of determination with respect to
an item of Paper, an amount equal to the sum of (a) all Periodic Payments due,
and past due to Assignee, as Assignor's assignee, under such item of Paper
(excluding rental taxes, if applicable), plus (b) all future payments due to
Assignee, as Assignor's assignee, under such item of Paper (excluding rental
taxes, if applicable) discounted to their present value utilizing the Discount
Rate, plus (c) any other amounts then accrued or due and unpaid to Assignee,
plus (d) any reasonable expenses of collection incurred by Assignee, including,
but not limited to, reasonable attorneys' fees and costs of repossession, which
have not been recovered from the Customer, plus (e) the Guaranteed Residual
Value, if any, of the Equipment subject thereto discounted to its present value
using the Discount Rate, and (f) interest computed at the Discount Rate from the
date of such calculation until such time as the Investment Balance as it is
reduced from time to time is actually received by Assignee, less any Payments
received by Assignee subsequent to the calculation date and before the
Investment Balance is paid to Assignee, to be applied as of receipt first to
accrued interest and then to reduce the Investment Balance.
"Invoice Amount" means the invoiced cost of the Equipment under a Lease
Transaction as shown on a vendor's invoice but exclusive of taxes, installation,
delivery, service or other charges commonly referred to as soft costs.
"Lease Agreement" shall mean (a) a loan or credit sale agreement entered into
between Assignor or Assignor's predecessor in interest and a Customer pursuant
to which the Assignor finances equipment for the Customer, or (b) a lease
agreement entered into between Assignor or Assignor's predecessor in interest
and a Customer pursuant to which the Customer leases Equipment from Assignor, or
(c) in the case of Master Documents covering one or more Lease Schedules being
sold and assigned to Assignee, any such Lease Schedule to the extent related to
the original relevant master lease agreement, and an original or certified copy
of the original master lease agreement.
"Lease Purchase Transaction" shall have the meaning specified in Section 2.1.
"Lease Schedule" means a schedule or other Lease Agreement referencing or
incorporating a master lease agreement pursuant to which Equipment is identified
and leased or financed under the terms of such master lease agreement and in
which the Periodic Payments and other relevant information concerning specific
lease or financing terms and such Equipment is set forth and agreed to by the
lessee.
"Lease Transaction" shall mean a Lease Agreement and/or a Lease Schedule and
includes any Guaranteed Residual Value, unless Assignor advises Assignee in
writing prior to Closing that to do so would result in double sales tax issues.
Non-Guaranteed Residual Values and Guaranteed Residual Values which Assignor
believes may cause double sales tax if sold or assigned remain Assignor's
assets.
"Lease Transaction Information" shall have the meaning specified in Section
4.1(o).
"Lease Transaction Purchase Price" means the aggregate of the Purchase Prices
for each item of Paper being purchased prior to any adjustments detailed on the
appropriate Exhibit 2. The Lease Transaction Purchase Price following
adjustments is called the "Advance for Lease Transactions" on Exhibit 2.
"Lease Transaction Purchase Schedule" shall mean a document substantially in the
form of Exhibit 2 hereto which, among other things, sets forth the operative
Discount Rate, the Lease Transaction Purchase Price (and any adjustments to the
Lease Transaction Purchase Price agreed to by Assignor and Assignee) and any
special provisions for each Lease Purchase Transaction.
"Lien(s)" mean(s) any lien, charge, claim, mortgage, security interest, pledge,
or other encumbrance of any kind.
"Lockbox Account" shall have the meaning specified in Section 4.1(c).
"Loss" or "Losses" shall have the meaning specified in Section 3.7.
"Loss Liability Balance" shall have the meaning specified in Section 3.7.
"Margin" shall mean the number of basis points to be added to the Index Rate in
order to calculate the Discount Rate for each Lease Purchase Transaction, as
identified in the applicable Lease Transaction Purchase Schedule.
"Master Documents" shall have the meaning specified in the definition of
Transaction Documents.
"Notice Party" shall have the meaning specified in Section 9.5.
"Paper" means chattel paper (as defined in the Uniform Commercial Code) arising
out of the purchase, financing or lease of any Equipment by a Customer,
including equipment leases, conditional sales contracts and loan and security
agreements, in each case having an original principal balance (or in the case of
a Lease Agreement, a discounted present value, using the interest rate implicit
in the Lease Agreement) of less than One Hundred Thousand Dollars ($100,000.00)
in the aggregate for any Customer, unless an amount greater than One Hundred
Thousand Dollars ($100,000.00) in the aggregate for any Customer is approved by
Assignee in writing.
"Payments" means the Periodic Payments and any other amounts which are or become
due and payable under an item of Paper.
"Periodic Payments" shall mean the scheduled periodic payments which the
Customer is obligated to pay under an item of Paper; provided, however, such
term shall not include any payments for taxes, insurance or other payments not
included in the Periodic Payments as scheduled.
"Permitted Lien" shall mean the interests of the Customer in the Equipment under
an item of Paper and any liens for Taxes with respect to such Equipment which
are not yet due and payable.
"Person" means any individual, partnership, association, sole proprietorship,
limited liability company, limited liability partnership, corporation,
cooperative, trust or other legal entity.
"Policies and Procedures" shall have the meaning specified in Section 4.1(a).
"Purchase Price," with respect to each item of Paper, shall be an amount equal
to the sum of the remaining Periodic Payments of such Paper to be paid by the
Customer and as set forth in the related Lease Transaction Purchase Schedule
(Exhibit 2 hereto) during the original firm term of such Paper, plus the
Guaranteed Residual Value, if any, of the relevant Equipment, in each case
discounted to its present value as of the Closing Date, using the Discount Rate
set forth on the Lease Transaction Purchase Schedule covering such Paper and
detailed on the schedule to Exhibit 2 as it relates to each item of Paper. As
used in this definition, "firm term" means the period during which the Customer
is unconditionally obligated to make Periodic Payments under said Paper without
any right of termination.
"Remarketing Proceeds" means the net proceeds generated from the renewal, sale
or other disposition of Equipment subject to a Lease Transaction, provided that
in the case of a renewal the Remarketing Proceeds shall consist of the present
value of the firm term lease payments, plus the present value of the Residual
Value, if any, of the Equipment at the end of such new lease term, in each case
discounted to present value at the Discount Rate) less the remarketing costs
actually incurred in connection with the remarketing of such Equipment.
"Repurchase Price" shall mean the then Investment Balance with respect to the
affected item of Paper except that if the Paper is repurchased by Assignor
pursuant to Section 6.3 the Discount Rate shall be reduced by one and one-half
percent (1.50%); unless Assignee is awarded, after Assignee's credit approval
for the same Customer, a new transaction at then current market rates in which
case the Discount Rate will be used to calculate the Repurchase Price. No
penalty shall be applied for repurchases which are deemed critical for marketing
purposes for an individual Customer, with approval from Assignee.
"Residual Value" means, as to Equipment subject to a Lease Agreement, the
amount, if any, carried on Assignor's books as the residual value of such
Equipment. The Lease Transaction Purchase Schedule shall show the Residual Value
of the Equipment for each Lease Agreement included on such Schedule. "Guaranteed
Residual Value" shall be only those Residual Values payments wherein the
Customer has an obligation to purchase the Equipment or make such payment at the
end of the term of the agreement. Guaranteed Residual Value includes end of term
puts, first amendment leases and upon review may include return/restocking fees
and other lessee specific performance obligations. For the purposes hereof,
Guaranteed Residual Values shall not exceed ten percent (10%) of the original
Invoice Amount for any Lease Transaction, unless specifically agreed to by
Assignee in writing. Residual Values taken by the Assignor at the end of the
agreement term: (i) wherein the Customer does not have an obligation to
purchase, but simply an option to purchase, or (ii) to the extent that a
Guaranteed Residual Value is in excess of ten percent of the related Invoice
Amount, such Residual Values (or portions thereof) shall hereinafter be referred
to as "Non-Guaranteed Residual Value".
"Residual Value Payment" means with respect to any Lease Transaction, an amount
equal to the Residual Value, whether Guaranteed or Non-Guaranteed, of the
subject Equipment, discounted at the Discount Rate to a present value as of the
date the Residual Value Payment is made if the Residual Value Payment is made
before the end of the original firm term of the Lease Transaction, or if the
Residual Value Payment is made after the end of the original firm term of the
Lease Transaction, plus interest at the Discount Rate from the end of the
original firm term of such Lease Transaction to the date when the Residual Value
and all accrued interest is paid in full.
"Responsible Assignee Officer" means ▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President, or
another officer or employee of Assignee subsequently designated in writing by
Assignee to Assignor as the person having day-to-day responsibility for
Assignee's administration of the Paper.
"Taxes" shall mean any and all sales, use, property, documentary stamp,
intangible, excise or similar taxes, levies or assessments (by whatever name)
assessed or imposed in connection with a Lease Purchase Transaction, a Lease
Transaction or the purchase, sale, leasing or use of the Equipment.
"Total Reimbursed Losses" shall have the meaning specified in Section 3.7.
"Transaction Credit Reserve" shall have the meaning specified in Section 3.7.
"Transaction Holdback Amount" shall have the meaning specified in Section 3.7.
"Transaction Documents" collectively shall mean the sole original, fully
executed item of Paper and a signed original of all documents reasonably
ancillary thereto, certified by a duly authorized officer of Assignor to be true
and complete on and as of the Closing Date and in full force and effect
including, without limitation, any guarantee of such Paper, any acceptance
certificate, signature authority certification, notification and acknowledgment
of assignment and such other documents as Assignee may reasonably require;
provided that, to the extent that Transaction Documents include master or
blanket agreements that apply to transactions other than Lease Transactions
"Master Documents," Assignor shall provide Assignee with certified copies of
such Master Documents and make the originals available to Assignee for
litigation, audit and other reasonable business purposes as necessary.
"Unreimbursed Advance" or "Unreimbursed Advances" shall have the meaning set
forth in Section 3.7.
ARTICLE 2.
THE PROGRAM
Section 2.1 Lease Purchase Transactions. This Agreement sets forth the terms and
conditions under which Assignor will from time to time sell to Assignee, and
Assignee will purchase from Assignor, Lease Transactions described in a Lease
Transaction Purchase Schedule. Each purchase by Assignee from Assignor of Lease
Transactions subject to a Lease Transaction Purchase Schedule is referred to
herein as a "Lease Purchase Transaction". At the Closing of each Lease Purchase
Transaction, Assignor shall assign and sell to Assignee each item of Paper
listed in the relevant Lease Transaction Purchase Schedule together with all the
other Transaction Documents to the extent related to each item of Paper then
being assigned and sold. Each Lease Transaction offered to Assignee shall
include only Paper and a grant of first priority security interest in, or
Assignor's interest in, as appropriate, the Equipment, together with all
replacements, substitutions, accessions, alterations thereto and proceeds
thereof. Assignor and Assignee agree that Assignee is not being conveyed actual
title to the Equipment. Following the Closing of each Lease Purchase
Transaction, Assignor shall at its expense, as provided in this Agreement,
perform certain administrative, collection and other services for Assignee
through the Servicer with respect to the purchased Lease Transaction as provided
in this Agreement.
Section 2.2 Purchase Price. The Lease Transaction Purchase Price shall be
determined by calculating the aggregate present value of firm term Periodic
Payments and Guaranteed Residuals Values for all Paper and Equipment covered by
a particular Exhibit 2, specifically excluding any Non-Guaranteed Residual
Values, at the Discount Rate plus appropriate interim interest adjustments and
other adjustments as noted on Exhibit 2.
Section 2.3 No Partnership or Joint Venture. At no time will this Agreement be
deemed to create a partnership, joint venture, contractor, agency or any other
relationship between Assignor and Assignee except as set forth in Article 4
hereof.
Section 2.4 Nonexclusive Relationship. The relationship set forth herein is
non-exclusive. Except to the extent otherwise provided in this Agreement,
Assignor shall not be obligated to offer Lease Transactions for sale to
Assignee.
ARTICLE 3.
LEASE PURCHASE TRANSACTIONS
Section 3.1 Documents and Credit Review. To offer a Lease Transaction for sale
to Assignee, Assignor shall deliver to Assignee a proposed Schedule A to the
Lease Transaction Purchase Schedule, together with such other information and
documents as Assignee determines are appropriate to enable Assignee to evaluate
and respond to Assignor's offer.
Section 3.2 Acceptance of Assignor's Offer to Sell Lease Transaction. Within
five Business Days after Assignee's receipt of Assignor's offer to sell a Lease
Transaction, Assignee shall either: (a) reject Assignor's offer to sell the
offered Lease Transaction; or (b) notify Assignor in writing of Assignee's
willingness to purchase the offered Lease Transaction, including any terms and
conditions which Assignee deems reasonable or appropriate (which may require the
deletion of particular items or classes of Paper included in the offered Lease
Transaction). If Assignee fails to either reject or accept such offer within
such five day period, Assignee shall be deemed to have rejected such offer.
Assignee shall be entitled to accept or reject any offered Lease Transaction in
its sole discretion for any reason.
Section 3.3 Closing of Lease Purchase Transactions. The closing (the "Closing")
of the sale and purchase of each Lease Purchase Transaction shall occur upon the
following terms, conditions and provisions:
(a) Assignor shall deliver to Assignee a completed and final Lease
Transaction Purchase Schedule for a requested Lease Transaction
Purchase Price of not less than Two Hundred Fifty Thousand Dollars
($250,000.00) duly executed by Assignor, covering the Paper and
describing the related Equipment, together with a true and complete
list of all current and correct billing information for the Paper,
including name and address for notice of payment and other
information, the complete Files of Assignor relating to the Paper
and other Transaction Documents (including certified copies of
Master Documents) being sold and assigned as part of such Lease
Transaction which a duly authorized officer of Assignor shall
certify in writing to Assignee that such Paper, Files and other
Transactional Documents are true and complete on and as of the
Closing Date.
(b) Assignor shall deliver to Assignee such other documents,
certificates and evidence of compliance by Assignor with the terms
of this Agreement as Assignee may reasonably request consistent with
the terms of this Agreement;
(c) Upon the Closing Date, (i) Assignor or the appropriate party shall
execute and deliver to Assignee lien releases and payoff information
from any lender or lienholder of Assignor holding a lien or interest
in the Paper and/or Equipment together with an Assignment pursuant
to which Assignor sells, assigns, transfers and conveys to Assignee
good and marketable title to such item of Paper and its related
Transaction Documents (including certified copies of Master
Documents) then being sold and assigned, free and clear of all
Liens; (ii) Assignee shall sign and deliver to Assignor a copy of
the Lease Transaction Purchase Schedule (as signed and previously
delivered to Assignee by Assignor) relating to such sale; (iii)
Assignor shall deliver the original notice and other materials
required in Article 4; and (iv) Assignee shall pay a total amount
equal to the Advance for Lease Transactions for such Lease
Transaction, with such amounts to be distributed per mutual
agreement of Assignor and Assignee in writing as follows: first to
Assignor's lenders and other lienholders, second to the Holdback
Amount for such Lease Purchase Transaction, which shall be held in
the Holdback Account and applied by Assignee as provided in Section
3.7 and any remainder to the Assignor in immediately available
funds.
(d) All such documents, payment applications and deliveries shall be in
form, amount and substance mutually satisfactory to Assignee and
Assignor.
Section 3.4 Terms and Conditions. Except as otherwise provided in the Lease
Transaction Purchase Schedule relating to a Lease Transaction sold hereunder,
each sale of a Lease Transaction made pursuant to this Agreement shall be
governed by the terms and conditions set forth herein. In the event of a
conflict between the provisions hereof and those of a particular Lease Purchase
Transaction, the terms of the Lease Purchase Transaction Schedule shall govern.
Section 3.5 No Assumption by Assignee. Assignee does not assume any of the
obligations of Assignor under any item of Paper or Equipment and Assignor shall
remain liable with respect to any such obligations notwithstanding the
assignment and sale of such to Assignee.
Section 3.6 Grant of Security Interest; Financing Statements. Assignor hereby
grants to Assignee, or assigns to Assignee if Assignor holds only a security
interest, a security interest in the Equipment (and the proceeds thereof,
including insurance proceeds) subject to each item of Paper purchased by
Assignee pursuant to this Agreement to secure the payment and performance by
each Customer of its obligations under said Paper. Assignor authorizes Assignee
at the Closing to file UCC-1 financing statements in proper form showing
Assignee as secured party and Assignor as debtor, relating to the assignments of
Paper made hereby and the security interests granted hereby. Assignor further
agrees to provide Assignee such UCC-3 assignment, termination or partial release
statements for any UCC-1 financing statements naming Assignor as debtor covering
the related Paper as Assignee may reasonably request.
Section 3.7 Reserves for Losses and Servicing. For each Lease Purchase
Transaction, Assignee and Assignor agree to establish a credit reserve equal to
the percentage of the Advance for Lease Transactions set forth in the Lease
Transaction Purchase Schedule ("Transaction Credit Reserve") as of the Closing
Date and Assignee shall retain and hold back from the Advance for Lease
Transactions the percentage of the Advance for Lease Transactions set forth in
the Lease Transaction Purchase Schedule as a funded portion of the Transactional
Credit Reserve ("Transaction Holdback Amount"). The sum of all Transaction
Credit Reserves shall be the "Credit Reserve" and the sum of all Transactional
Holdback Amounts shall be the "Holdback Amount." The Credit Reserve and Holdback
Amount shall be administered as follows:
(a) The Assignee shall establish a special deposit account ("Holdback
Account") with The Provident Bank in the name of the Assignee for
the benefit of the Assignor, into which the Assignee shall deposit
each Transactional Holdback Amount. Amounts in the Holdback Account
shall earn interest at market rates for the benefit of the Assignor.
(b) Assignor shall have no right to withdraw funds from the Holdback
Account until all obligations of Assignor are satisfied per the
terms of this Agreement at which time all remaining funds in the
Holdback Account shall be paid to Assignor, provided that if the
amount in the Holdback Account at the end of any month is in excess
of the Loss Liability Balance, as defined below, Assignee shall
remit the excess to Assignor within two business days after a
written request for such from Assignor.
(c) Assignor shall be required to repurchase from Assignee all Losses,
defined in the next paragraph, up to an amount equal to the Credit
Reserve. The purpose of the Holdback Amount is to provide additional
security to Assignee of the payment obligations of Assignor under
this Section 3.7.
The Assignor shall pay to Assignee all credit losses (individually
"Loss", collectively "Losses") up to an amount equal to the Credit
Reserve; provided that such Losses shall first be deducted from amounts
in the Holdback Account, and if the Holdback Account is depleted,
Assignor shall promptly pay Assignee such Losses as invoiced.
Notwithstanding any provision herein to the contrary, Assignor's
aggregate liability for Losses shall not exceed the Credit Reserve. To
the extent that: (i) Assignor has advanced Payments relating to Paper
which subsequently becomes a Loss, all unreimbursed Payments advanced by
Assignor relating to such Loss (each an "Unreimbursed Advance" and
collectively "Unreimbursed Advances"); and (ii) the Holdback Account
does not have sufficient funds to pay the Loss, the Unreimbursed Advance
shall be applied towards Assignor's obligation to pay Losses up to an
aggregate amount equal to the Credit Reserve. Assignee shall reimburse
Assignor for all Unreimbursed Advances to the extent that such
Unreimbursed Advances would result in payment by Assignor of more than
the Credit Reserve.
For purposes of this Section 3.7, a Loss for an item of Paper shall be
deemed to have occurred on the earlier of (i) one hundred twenty (120)
days contractual delinquency, or (ii) the date upon which the Equipment
covered by such item of Paper has been repossessed and disposed of by
Assignor or Assignor determines that such Equipment has no value for
such purposes. The amount of the Loss shall be an amount equal to the
Investment Balance as of the date that such Loss is determined to have
occurred pursuant to the foregoing sentence.
Assignee and Assignor shall track all Losses reimbursed to Assignee, whether
from the Holdback Account, Unreimbursed Advances and/or Assignor directly
(collectively, the "Total Reimbursed Losses"). In the event a Loss occurs and
funds are subsequently collected through recovery, litigation, settlement or
sale of Equipment or similar means, such collected funds shall be distributed as
follows: a) first to reimburse the collecting party for reasonable out of pocket
expenses incurred with respect to the Loss; b) reimburse Assignee for any losses
sustained above the Credit Reserve; c) reimburse to the Holdback Account any
funds utilized from the Holdback Amount to pay a Loss (each a "Holdback
Reimbursement" and collectively, "Holdback Reimbursements"); and d) the
remaining funds to the Assignor. The Credit Reserve minus: (i) the Total
Reimbursed Losses, plus (ii) all Holdback Reimbursements shall equal Assignor's
remaining liability for Losses at any time (the "Loss Liability Balance").
Section 3.8 First Payment Default Provision / Assignor Recourse. Assignor agrees
to identify to Assignee and repurchase from Assignee any Lease Transaction that
becomes a First Payment Default, hereinafter defined in this Section, and
ultimately becomes a Loss. Any sums paid by Assignor to Assignee for a First
Payment Default shall be above and beyond the Credit Reserve.
For purposes of this Section 3.8, a First Payment Default shall be deemed to
have occurred when the first payment regularly scheduled to be remitted to
Assignee for Lease Transaction purchased or assigned pursuant to this Agreement
is not paid by the Customer to Assignor or Assignee within thirty days of the
due date and such Lease Transaction is not brought completely current prior to
becoming a Loss. In the event that such Lease Transaction is brought current
prior to becoming a Loss, Assignor shall be obligated to provide Assignee with
reasonable evidence, in Assignee's sole opinion, that the Customer did in fact
pay the account current or such Loss shall be deemed to have occurred pursuant
to this Section 3.8.
Furthermore, for any Lease Transaction purchased hereunder that is greater than
thirty (30) days past due as of the Closing Date, such accounts shall be
included under this First Payment Default provision until such accounts are
brought completely current and remain current for a period of three (3)
consecutive months.
Section 3.9 Cross-collateralization. The amounts represented by Credit Reserve,
whether in the form of the Holdback Account or otherwise, are available for
Assignee to apply at its sole discretion to any Loss suffered with respect to a
Lease Transaction. The termination or expiration of a Lease Transaction for
which a contribution was made to the Credit Reserve shall not, in itself, give
rise to a reduction in the Holdback Account or Loss Liability Balance.
Section. 3.10 [Omitted]
Section 3.11 Security Deposits. Security deposits with respect to the Lease
Transactions included in a Lease Purchase Transaction shall be identified on
Exhibit 2 will be deducted from the Lease Transaction Purchase Price at Closing,
which shall constitute Assignor's conveyance of such security deposits to
Assignee. To the extent that Assignor held security deposits, following the
Closing such amounts shall be deemed Assignee's and Assignee shall be entitled
to such amounts. Following the Closing, Assignee shall account for such security
deposits on its books and records, but need not establish a funded account for
such security deposits. Upon: (i) Assignee's receipt of all Periodic Payments,
any Guaranteed Residual Value and any other amounts payable to Assignee in
connection with a Lease Transaction; or (ii) Assignee's receipt of the
Investment Balance of such Lease Transaction following a Loss, Assignee shall
return to Assignor the security deposit which was netted from the Lease
Transaction Purchase Price for such Lease Transaction, minus any amounts applied
to the Customer's obligations thereunder.
ARTICLE 4.
ADMINISTRATION OF LEASE TRANSACTIONS
Section 4.1 Servicing and Administration of Paper, Affirmative Covenants
Assignor. Assignor, as Servicing Agent, covenants and agrees with respect to
each Lease Transaction purchased hereunder and each item of Paper therein:
(a) to retain for its collection and servicing files, from the Files to
be delivered to Assignee at each Closing, copies of all documents
necessary to service and collect on each item of Paper and Equipment
and thereafter to maintain adequate records with respect to each
item of Paper and Equipment and the related Customers in accordance
with its standard policies and procedures for contracts and leases
held for its own account ("Policies and Procedures") and Assignor
further covenants that it will not change its Policies and
Procedures with respect to the Paper in a manner adverse to Assignee
without the prior written consent of Assignee;
(b) to maintain adequate staff and telecommunications, computer and
other data processing equipment (a) to service the Paper as
contemplated by this Agreement, (b) to handle billing inquiries,
complaints and requests for other information from the Customers in
a timely and businesslike manner and in accordance with Assignor's
policies and procedures for contracts and leases held for its own
account and (c) to implement address and other changes in the
Customers' records;
(c) except for items of Paper using automatic payment withdrawal (ACH or
credit card), to send an invoice not later than fifteen (15) days
prior to the payment due date (or such other date as is consistent
with Assignor's usual practices) under each item of Paper to the
Customer thereunder for all amounts then due and owing under such
item of Paper, which invoice shall direct such Customer to make all
payments due under such Paper directly to Lockbox Account (the
"Lockbox Account") at Provident Bank, Cincinnati;
(d) following learning of a default by a Customer under an item of
Paper, Assignor agrees to notify Assignee of such default (if not
otherwise covered in a report provided to Assignee hereunder) and
follow the Policies and Procedures with respect thereto. For purpose
of this Agreement, Assignor shall be deemed to be in compliance with
its obligations to provide Assignee such notice provided that
Assignor shall have supplied Assignee with the Lease Transaction
Information required under Paragraph (o) of this Section. Upon
Assignee's request, Assignee may at its option assume full servicing
responsibility for the defaulted item of Paper.
(e) In the case of accounts repurchased due to default, Assignor, in
order to minimize ultimate net losses and refresh the Credit
Reserve, Assignor will continue to provide servicing and collection
services with respect to such defaulted item of Paper, but will,
when in Assignor's judgment it is beneficial to do so and in a
manner consistent with Assignor's Policies and Procedures, refer
such defaulted item of Paper to a collection agency or collection
counsel (in either case on a contingent fee basis of the kind
Assignor obtains for its own delinquent accounts) who shall then
pursue such collection efforts in the name of Assignor. At such time
Assignee shall reassign such defaulted item of Paper to Assignor for
purposes of collection and Assignor shall thereafter remit to
Assignee following such assignment any proceeds (net of the
collection agency or collection counsel's contingent fees and
expenses) from such collection efforts in order to replenish the
Credit Reserve. Assignor agrees that it will not, in any event,
agree to any settlement of such collection efforts except in
compliance with Assignor's Policies and Procedures;
(f) to provide Assignee with such information (including without
limitation, collection files) regarding any Customer or any Paper as
Assignee may reasonably request;
(g) to determine the correct amount of any sales or use taxes due and
payable on a monthly or other periodic basis under applicable law or
regulation with respect to the Equipment subject to each item of
Paper or the Periodic Payments due thereunder to ▇▇▇▇ the Customer
under each item of Paper on the invoices to be sent pursuant to
subparagraph (c) above for any such sales or use taxes and to direct
each Customer to remit such sales or use taxes directly to the
Lockbox Account or pay such amount directly to the taxing
jurisdiction in accordance with the Lease Agreement or upon the
written instructions provided by the Assignor;
(h) to properly determine the amount of any personal property taxes due
and payable by Assignor or any other party under applicable law or
regulation with respect to the Equipment subject to each item of
Paper, to ▇▇▇▇ the Customer under each item of Paper on invoices
sent pursuant to subparagraph (c) above or otherwise in accordance
with Assignor's usual procedures for such personal property taxes
and any other indemnification type payments for which Assignor
and/or Assignee is entitled and to direct each Customer to remit
such personal property taxes directly to the taxing jurisdiction or
the Lockbox Account as appropriate;
(i) to file all tax returns as required by the applicable taxing
jurisdictions, including but not limited to sales and personal
property taxes, and to pay as collected all related tax liabilities
to the appropriate governmental authorities in a timely manner,
except, and unless Assignor has notified Assignee in writing, to the
extent that such liabilities and taxes are being contested in good
faith and by appropriate and lawful proceedings diligently conducted
and for which adequate reserves or other appropriate provisions
shall have been made;
(j) to advise Assignee in writing of any casualty to, theft of or other
loss of any Equipment under any Paper promptly upon learning
thereof;
(k) to advise Assignee in writing promptly of all material information
Assignor receives concerning any Paper, including, but not limited
to (1) any default by the Customer thereunder, including but not
limited to the failure to obtain or maintain any required insurance
coverage (but excluding notice of defaults covered in reports
provided to Assignee hereunder); (2) any material adverse change in
the business or financial condition of the Customer; (3) the
commencement of Bankruptcy proceedings by or against the Customer;
(4) the dissolution or liquidation of the Customer; (5) the
appointment of a receiver, trustee, liquidator or conservator for
the Customer; (6) any bulk transfer of the assets of the Customer;
and (7) any assignment by the Customer for the benefit of its
creditors;
(l) in the event that Assignor receives any payment or other amount
payable under any item of Paper, any guaranty or any other
Transaction Document executed in connection with any item of Paper
or any insurance proceeds or other amounts payable in respect of any
item of Paper outside of the Lockbox Account with the exception of
document fees, administrative fees, interim rents, property tax
reimbursements, indemnification payments and Assignor's share of
late fees payable according to the terms of the Paper or herein such
fees being applied to the account of Assignor, to hold such payment,
proceeds or other amounts in trust for Assignee and to remit the
entire amount of such payment, proceeds or other amounts to the
Lockbox Account (or directly to Assignee with respect to Paper being
serviced by Assignee) within two (2) business days after receipt and
identification that such amounts are proceeds of such item of Paper
(prior to such payment thereof to Assignee, such amounts shall be
held in trust for the benefit of the Assignee);
(m) except as otherwise specified in this Agreement, to administer all
the Paper in accordance with the Policies and Procedures for
contracts and leases held for Assignor's own account but in any
event in accordance with all applicable laws and regulations and
exercising a degree of care consistent with the industry accepted
normal and customary practices;
(n) to provide Assignee with such information (including without
limitation, collection files) regarding any Customer, Equipment and
Paper as Assignee may reasonably request;
(o) during the term of this Agreement, at the end of each Business Day
Assignor shall cause each computer system containing information
relating to the Paper, Payments, Equipment and Assignor's collection
activities (collectively the "Lease Transaction Information") to be
downloaded to an appropriate back-up storage device and shall take
such other reasonable and prudent action to protect and safeguard
the Lease Transaction Information as is customary for entities
similarly engaged in the business of originating and servicing lease
transactions. Assignor shall provide Assignee with a monthly
download of the Lease Transaction Information in a form and system
compatibility mutually acceptable to Assignee and Assignor. Assignor
shall implement such procedures as may reasonably be deemed
necessary by Assignee to protect the Lease Transaction Information;
(p) to provide a monthly aging report covering all the Paper of all the
Lease Transactions in form and substance reasonably satisfactory to
Assignee and make such other periodic or special reports as Assignee
may request; and
(q) to provide on a monthly basis, an electronic remittance advice for
each payment submitted to Assignee by Assignor in form and substance
reasonably satisfactory to Assignee.
Section 4.2 Administration in the Name of Assignor. Assignor shall administer
the Paper in its own name. In the event that Assignee assumes the administration
of any Paper, it shall administer such Paper in its own name. Except as provided
in Section 4.1(e), Assignor will not, without the prior written approval of
Assignee, subcontract with any other person or entity, other than LEAF Financial
Corporation ("Servicer"), for providing all of the servicing and administration
responsibilities and obligations as set forth in this Agreement. Assignor will
timely remit to the applicable taxing jurisdiction that portion of any monthly
or other periodic payment that it receives under a Paper which it identifies in
accordance with its then existing cash application hierarchy as a sales or use
tax payable to such jurisdiction. ASSIGNEE HEREBY ACKNOWLEDGES THAT SERVICER
WILL BE PERFORMING ALL OF ASSIGNOR'S SERVICING AND ADMINISTRATIVE OBLIGATIONS
WITH RESPECT TO THE LEASE TRANSACTIONS. SERVICER HEREBY AGREES TO SERVICE ALL
LEASE TRANSACTIONS IN ACCORDANCE WITH THE TERMS AND CONDITIONS RELATING TO
SERVICING UNDER THIS AGREEMENT. Servicer does not hereby assume any liability or
obligation to pay for Losses, indemnify Assignee or any other party, or satisfy
any other monetary obligation Assignor may under the terms of this Agreement
and/or any Lease Purchase Transaction. Assignor hereby agrees that the
delegation of servicing and administrative responsibilities to Servicer shall
not relieve Assignor of any of its obligations under this Agreement.
Section 4.3 Notice of Payment Change and Billing Information. For each Lease
Transaction purchased hereunder, Assignor agrees to provide Assignee with an
original notice substantially in the form of Exhibit 3, which shall be issued on
Assignor's letterhead and executed by Assignor's duly authorized officer, but be
blank as to the addressee and contract information as shown on such Exhibit 3,
together with a sufficient supply of the Assignor's letterhead for Assignee's
preparation of a letter to each Customer under each item of Paper for such Lease
Transaction. Assignor irrevocably authorizes Assignee, in the exercise of its
discretion, upon termination of Assignor's authority to service any item of
Paper pursuant to Section 4.3 below or as otherwise provided in this Agreement,
to mechanically reproduce the executed letter (with completed information as to
the Customer and the Paper) and/or to reproduce the letters and execute them on
Assignor's behalf and to deliver the same as an original to each applicable
Customer.
Section 4.4 Servicing by Assignee. Assignee shall have the right, but not the
obligation, to terminate Assignor's and Servicer's authority to service any and
all Paper upon: (a) the breach by Assignor or Servicer of a material
representation or warranty, covenant or other obligation of Assignor or Servicer
hereunder which remains uncured for a period of fifteen (15) Business Days after
Assignor's receipt of notice of such breach from Assignee; (b) Assignor becomes
the subject of a Bankruptcy or similar insolvency proceeding, ceases to conduct
business as an ongoing concern, sells or otherwise transfers all or
substantially all of its assets outside its normal course of business; (c) the
gross receivable balance of Paper (exclusive of any Paper repurchased or
substituted by Assignor due to such Paper constituting a Loss) which is more
than thirty (30) days past due as a percentage of the total balance of the gross
receivables for the Paper (exclusive of any Paper repurchased or substituted by
Assignor due to such Paper constituting a Loss) is equal to or greater than Four
and One Half Percent (4.50%) for two (2) consecutive months or Six Percent (6%)
in any individual month; (d) the Losses charged against the Credit Reserve
exceed Thirty Percent (30.00%) of the Credit Reserve; or (e) the Servicer fails
to perform any of its material lease servicing obligations, and fails to cure
such breach within 15 days of notice of default, under the servicing agreement
between Assignor and Servicer, an exact copy of which is attached hereto as
Exhibit 4; or (g) Servicer fails to meet any of the Servicing Agent obligations
under this Agreement subject to the same cure rights of Assignor. As provided in
Section 4.1, Assignee shall have the right, but not the obligation, to terminate
Assignor's and Servicer's authority to service any Paper that becomes more than
sixty (60) days past due. If Assignor's and Servicer's authority to service any
Paper is terminated by Assignee, Assignee may deliver to the Customers under the
Paper for which such authority is terminated the notices described above in
Section 4.3 and directly ▇▇▇▇ for and collect in Assignee's name all amounts
payable under such Paper. If Assignee undertakes the servicing of any Paper,
Assignee shall be exclusively responsible for all aspects of servicing such
Paper and shall have all duties which Assignor would have had in the servicing
thereof including the duties as to sales and property taxes and under Section
4.1 hereof and (i) neither Assignor nor Servicer shall initiate any
communication in any way with the applicable Customer concerning the billing and
collecting of Payments under the Paper, except to the extent Assignor is
directed to do so by Assignee, (ii) neither Assignor nor Servicer shall
interfere or attempt to interfere with the issuance or delivery of notices by
Assignee to Customers as contemplated by Section 4.4 above and (iii) Assignor
and Servicer shall cooperate fully with Assignee in promptly transferring such
servicing to Assignee and will deliver to Assignee any and all related status
reports, collection records, correspondence, and other books and records
concerning the Paper.
Section 4.5 Power of Attorney. After the occurrence of an Event of Default, or
after prior written consent of Assignor, Assignor hereby constitutes and
appoints Assignee as Assignor's true and lawful attorney in fact with full power
of substitution for Assignor in its name, place and stead, to ask, demand,
collect, receive, receipt for, ▇▇▇ for, compound and give acquittance for, any
and all payments and sums due under any Paper sold or assigned by Assignor to
Assignee under this Agreement, and to endorse, in writing or by stamp,
Assignor's name on all checks, collections, receipts or instruments given in
payment or part payment of said amounts due. Assignor further constitutes and
appoints Assignee as its true and lawful attorney in fact for the purpose of
endorsing vehicle titles and UCC financing statements assignments as would
reasonably be required of any owner or servicer of Lease Transactions.
Section 4.6 Closing Fee; Inspection; Audit Fees; Original Paper and/or Certified
Copies. Assignor has already remitted to Assignee a closing fee in the sum of
ten thousand dollars ($10,000.00) with the execution of the original term sheet
governing the transaction contemplated herein. Assignee and its duly authorized
representatives and designees shall have the right to inspect, audit and copy
and Assignor agrees to give Assignee and such representatives and designees
access to, the books, records, files, databases and other information of
Assignor pertaining to the Paper from time to time after notice and during
regular business hours. Assignor agrees to reimburse Assignee for its time,
travel and out-of-pocket expenses in an amount not to exceed Five Thousand
Dollars ($5,000.00) per calendar year. Assignor further agrees to make its
officers and employees available to Assignee and its duly authorized
representatives and designees during normal business hours and following prior
written notice for the purpose of discussing the status and servicing of the
Paper. Assignee shall keep the originals of all Paper and the originals of all
guarantees, security agreements, and other documents related thereto, but upon
reasonable request by Assignor, Assignee will make copies thereof available to
Assignor at Assignor's expense. Both parties shall treat all information
disclosed to each other, including the books, records, files, and databases
available pursuant to this Section 4.6, as confidential information and shall
maintain the confidential status in the same manner as it treats its own
confidential information, but in any event, no less than reasonable care.
Section 4.7 No Fee for Servicing and Collecting. Neither Assignor, as Servicing
Agent, nor Servicer shall be entitled to a servicing fee from Assignee.
Assignor, as servicing agent may retain all late charges, and all amounts in
excess of the Repurchase Price of a Lease Transaction. No additional
compensation shall be due or payable to Servicing Agent for the services
provided and to be provided by Servicing Agent under this Agreement.
Section 4.8 No Assignment by Assignor of Servicing Obligations. Except as
expressly authorized in this Agreement, the Assignor may not delegate any
servicing and collection responsibilities hereunder to an entity other than
Servicer without the prior written consent of Assignee, provided that any such
delegation shall not relieve Assignor of any of its obligations under this
Agreement.
Section 4.9 Residuals; Residual Value Payments. Guaranteed Residual Value
Payments shall be remitted to Assignee as received into the Lockbox or
otherwise. The failure of a Customer to pay a Guaranteed Residual Value Payment
within 120 days of its due date with respect to a Lease Transaction shall be
deemed a Loss. Upon Assignee's receipt of the Repurchase Price with respect to a
Lease Transaction, Assignor shall be entitled to any and all additional proceeds
including Non-Guaranteed Residual Values of such Lease Transaction, free of all
interests and claims by Assignee.
Section 4.10 Remarketing. With respect to any Lease Transaction for which
Equipment is returned to or repossessed by either Assignor or Servicer, Assignor
and/or Servicer shall make a commercially reasonable effort to remarket such
Equipment.
Section 4.11 Payments to Assignee. Assignor shall remit Periodic Payments and
Guaranteed Residual Value payments to Assignee each month for each item of Paper
on the due date per Exhibit 2 whether or not the Customer has made such payment
to Assignor and regardless of any claims or defenses that Customer may have
against any party; provided that Assignor shall have no obligation to make an
Unreimbursed Advance with respect to a Lease Transaction if: (i) the Lease
Transaction is more than one hundred twenty (120) days past due, or (ii) if by
making such Unreimbursed Advance, the Loss Liability Balance would be exceeded.
If Assignor makes an Unreimbursed Advance and the related Lease Transaction is
determined to be a Loss: (i) such Unreimbursed Advance shall be credited towards
Assignor's obligation to reimburse Assignee for Losses up to the then Loss
Liability Balance; and (ii) if such Unreimbursed Advance would result in
Assignee receiving more than the then applicable Loss Liability Balance,
Assignee shall promptly return to Assignor such excess amount.
ARTICLE 5.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.1 Assignor's Representations, Warranties and Covenants.
(a) Assignor's Representations and Warranties Regarding Authority to
Enter Into Agreement. Assignor hereby represents and warrants to
Assignee as of the date hereof, and as of each Closing Date, that:
(i) Assignor (A) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware,
(B) has all powers and material governmental licenses required
to conduct its business including all applicable commercial
lending or other similar business licenses governing the Lease
Transactions included in Lease Transactions sold hereby, and
(C) has full corporate power, authority and legal right to
execute, deliver and perform this Agreement and to carry out
the transactions contemplated hereby;
(ii) This Agreement has been duly executed and delivered by
Assignor and (assuming due execution and delivery by Assignee)
constitutes the valid and binding obligation of Assignor,
enforceable in accordance with its terms, except (A) as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting the
enforcement of creditors' rights generally and the effect of
rules of law governing equitable remedies or (B) to the extent
such enforceability is affected by the actions or inactions of
Assignee; and
(iii) The principal place of business and chief executive offices of
Assignor are located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇ ▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ unless Assignee is otherwise notified of
a change of address pursuant to Section 9.5.
(b) Assignor's Representations and Warranties Regarding Lease Purchase
Transactions. With respect to each Lease Purchase Transaction,
Assignor hereby represents and warrants to Assignee as of the
applicable Closing Date, that with respect to each item of Paper
included in the Lease Purchase Transaction:
(i) The information set forth in the Lease
Transaction Purchase Schedule with respect to each item of
Paper and the underlying Equipment is correct and complete in
all material respects as its relates to such items of Paper
and, Equipment;
(ii) Each Lease Transaction represented by an
item of Paper is a commercial transaction for business
purposes and none of the Equipment is, being used for
household, consumer or personal purposes;
(iii) Assignor is the record and beneficial owner
of the Paper and has good title to and owns the Paper free and
clear of any and all Liens and, upon the execution and
delivery of an Assignment and the payment of the Advance for
Lease Transactions, shall transfer to Assignee good title to
the Paper being sold, in each case, free and clear of any and
all Liens; and Assignor has not sold, assigned or pledged the
Paper or any of its rights therein to any party under any then
effective agreement other than Assignee;
(iv) Each Transaction Document has been duly
authorized, executed and delivered by the Customer under the
Paper. The Paper, related Transaction Documents and all
accompanying guarantees, waivers, and other instruments are
legal, valid, genuine and binding obligations enforceable in
accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, now or hereafter in
effect, and except as such enforceability may be limited by
general principles of equity (whether considered in suit at
law or in equity);
(v) As of the applicable Closing Date, the File
pertaining to the Paper is accurate and complete in all
material respects as to information and documents received by
Assignor, and signatures are genuine and the names, addresses,
amounts and other statements of fact contained in each item of
Paper are materially true and correct, including, without
limitation, information regarding the payment history of each
Lease Transaction and the Assignor has not failed to state any
fact of which it is aware, necessary to make any of the above
not misleading;
(vi) All taxes (excluding taxes on net income),
assessments, fines, fees and other liabilities (which could
result in any defect of title or lien or limitation of the
Assignor's rights being assigned hereby or other costs to
Assignee) relating to each item of Paper, the Payments due on
the Paper, and the Equipment subject to the Paper as of or
prior to the Closing Date have been paid when due or will be
timely remitted by Assignor to the appropriate taxing
authority and all required filings in respect of any such
taxes, assessments, fines, fees and other liabilities have
been timely made; as to each of the foregoing, except to the
extent that such taxes, assessment, fines, fees and other
liabilities are being contested in good faith and by
appropriate and lawful proceedings diligently conducted and
for which adequate reserves or other appropriate provisions
shall have been made;
(vii) No payment default, or to Assignor's
knowledge, other event of default or event which, with the
passage of time or notice, or both, would constitute an event
of default under such Paper has occurred and is continuing;
(viii) All items of Paper are documented
substantially using Assignor's standard forms, copies of
which have been previously delivered to and approved in
writing by Assignee and, with respect to each item of Paper;
(ix) The Customer has provided written and/or
telephonic confirmation that the Equipment subject to such
item of Paper has been delivered to and accepted by the
Customer;
(x) All the executed chattel paper originals of
the Paper have been delivered to Assignee and Assignor has
provided Assignee with a signed original of all other
documents which comprise the Paper and all of the other
Transaction Documents other than Master Documents, for which
Assignor has provided Assignee with certified copies of the
originals held by Assignor; such documents represent the
entire agreement as to each subject transaction, and there
have been no amendments, modifications, waivers or releases
of any of the provisions thereof except as Assignor has
notified Assignee in writing prior to Closing;
(xi) The Paper and the related Transaction
Documents are assignable by Assignor to Assignee (and its
successors and assigns) without the prior written consent of,
or prior notice to, any Person (other than any written
notices which may be required to be given to a Customer by
law and which have been duly given) and the sale of the Paper
to Assignee and grant or assignment of a security interest in
the Equipment does not conflict with or constitute a breach
of any instrument or agreement to which Assignor is a party
or by which it is or may be bound;
(xii) Each Assignment shall: (1) have been duly
executed by Assignor and (2) be valid and enforceable against
Assignor 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 or hereafter in
effect, and except as such enforceability may be limited by
general principles of equity (whether considered in suit at
law or in equity);
(xiii) Neither Assignor, nor its predecessors in
interest or agents, has participated in any fraudulent act or
omission in connection with the Paper;
(xiv) Assignor has good, valid and marketable
title to, or a valid and binding interest in, any tangible
property included in any Lease Transaction free and clear of
all Liens excluding Permitted Liens and those the Customer is
obligated to discharge or satisfy (provided that Assignor
does not make the above representation with respect to items
of Equipment which consist of software, service obligations
or similar non-tangible property);
(xv) There is no action, suit, investigation or
proceeding pending against Assignor, or to Assignor's
knowledge, threatened against Assignor in connection with any
Lease Transaction before any arbitrator or governmental
authority;
(xvi) Except as Assignor may have advised
Assignee in writing, no Customer has given Assignor notice
of the exercise of or intent to exercise any end of term
option provided in the respective Lease Agreement,
including, without limitation, the exercise of any
termination or purchase option;
(xvii) Neither the execution, delivery and
performance of this Agreement nor the consummation of the
transactions contemplated hereby and thereby by Assignor
requires the consent, approval or other authorization of or
by any court, administrative agency or other governmental
authority;
(xviii) There is no action, suit or proceeding
pending as to which Assignor has been served or to
Assignor's knowledge, threatened against or affecting
Assignor before or by any court, administrative agency or
other governmental authority, as the case may be, that
brings into question the validity of the transactions
contemplated by this Agreement or that could impair the
consummation of this Agreement; and
(xix) Each Lease Transaction meets the following
minimum criteria:
1. No Lease Transaction may be in payment default as of the
Closing Date.
2. Assignor has no knowledge of any pending defaults or
default in any of its other accounts related to any
Customer included in the Lease Purchase Transactions.
3. No Lease Transaction may have historic delinquency
exceeding 30 days past due.
4. No Lease Transaction has been restructured or re-aged
except on an exception basis upon request of Assignor,
and expressly approved by Assignee in writing.
5. Lease Transactions shall have at least six months
remaining until maturity.
6. "Application Only" transactions will be accepted for
transactions with up to $100,000 Invoice Amount or
Customer exposure. Larger transactions or Customer
exposures exceeding $100,000 will be accepted for
individual consideration with appropriate financial
packages only.
Section 5.2 Assignee's Representations and Warranties. Assignee hereby
represents and warrants to Assignor, as of the date hereof, and as of the
Closing Date, that:
(a) Assignee (i) is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Ohio;
(ii) has all corporate powers required to conduct its business as
contemplated herein and (iii) has full corporate power, authority
and legal right to execute, deliver and perform this Agreement and
to carry out the transactions contemplated hereby; and
(b) The execution, delivery and performance of this Agreement by
Assignee have been duly authorized by all necessary corporate action
of Assignee; this Agreement has been duly executed and delivered by
Assignee and (assuming due execution and delivery by Assignor)
constitutes the valid and binding obligation of Assignee,
enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting the enforcement of
creditors' rights generally and the effect of rules of law governing
equitable remedies.
(c) In exercising any rights, remedies and/or actions hereunder
and with respect to any Lease Transaction or item of Equipment,
Assignee shall at all times comply with applicable law.
(d) Provided a Customer is not in default of its obligations
under a Lease Transaction, Assignee shall not interfere with such
Customer's right to possess and use the Equipment in accordance with
the Lease Transaction.
Section 5.3 Assignor and Assignee's Transfer Tax Agreement. Assignor and
Assignee each agree to pay all excise, sales, registration, stamp, recording,
documentary, conveyancing, transfer and similar taxes, if any, due from the sale
of any Lease Transactions pursuant to this Agreement for which each party would
customarily be responsible. In the event of any future statute, law, regulation,
ruling or similar decree which would retroactively create a taxable event
related to the purchase transactions contemplated by this Agreement, the
Assignor and Assignee agree to split the amount of any such taxes equally
between them. The purpose of the preceding sentence is to cause Assignor and
Assignee to share equally in the event that a future state level statute, law,
regulation, ruling or similar decree dictates that the sale of leases from one
company to another is a taxable event; which neither Assignor nor Assignee
believes to be the case at any Closing Date. In the event of an audit, Assignor
and Assignee will cooperate with each other, and with reasonable advance notice
will provide the audited party with reasonable access to relevant documents.
ARTICLE 6.
ASSIGNEE'S ACTIONS; REPURCHASE AND SUBSTITUTION OF PAPER
Section 6.1 Actions Assignee May Take. Assignor agrees that so long as Assignee
in good faith believes such action to be appropriate under the circumstances to
protect Assignee's interests upon the occurrence of an event of default under
any item of Paper or any related Transaction Documents, and subject to Section
6.2, Assignee may take any of the following actions with respect to the Paper or
Transaction Documents, and any Customer or other party obligated thereunder,
without impairing, limiting or otherwise materially affecting the obligations of
Assignor under this Agreement so long as commercially reasonable:
(a) renew, extend (including extensions beyond the original term of the
Paper), modify, release or discharge any obligation of any Customer
or any other person obligated on the Paper or on any Transaction
Documents (the "obligations");
(b) agree to the substitution of a Customer or any other party obligated
thereunder;
(c) accept partial payments of the obligations;
(d) accept new or additional documents, instruments or agreements
relating to or in substitution of the obligations;
(e) settle, release (by operation of law or otherwise), compound,
compromise, collect or liquidate any of the obligation and the
security therefor in any manner;
(f) consent to the transfer or return of the Equipment described in the
Paper and take and hold additional security or guaranties for the
obligations;
(g) amend, exchange, release or waive any security or guaranty; or
(h) bid and purchase at any sale of the Paper or the Equipment and apply
any security or proceeds and direct the order and manner of sale
thereof.
Section 6.2 Assignor's Requirement to Repurchase or Substitute Paper in Default.
With respect to any item of Paper in default for one hundred twenty (120) days
or more, Assignor must either immediately repurchase such item of Paper for the
Repurchase Price or substitute a new item of Paper for the defaulted item;
provided that under no circumstances shall Assignor's obligation to repurchase
or substitute Paper in Default exceed the then Loss Liability Balance. Any
substitution is subject to the Assignee's sole discretion whether or not to
agree to any such substitution. Any difference between the Investment Balance of
the defaulted Paper and the agreed upon Advance for Leases which would be made
with respect to the substitute Paper, shall be cured with a cash settlement to
Assignee or Assignor, as appropriate, for the difference at the time of
substitution. Upon receipt of such payment or substitute Paper, Assignee shall
reassign the defaulted item of Paper, the applicable related Transaction
Documents and Equipment to Assignor on an As-Is basis without recourse or
warranty by Assignee, except for a warranty of retransfer of all interests
received from Assignor free of any liens and encumbrances created by or arising
through Assignee.
Section 6.3 Assignor's Option to Purchase or Substitute Paper not in Default.
Assignor shall have the option to repurchase or substitute any item of Paper for
the Repurchase Price, using the adjusted Discount Rate as described in the
definition of Repurchase Price.
Section 6.4 Re-Assignment of Security Interest. Upon receipt by Assignee of
payment of the Repurchase Price of a Lease Transaction, whether by payment by
Assignor, Customer, Remarketing Proceeds, receipt of an acceptable substitute
contract or other full payoff, Assignee shall reassign such Lease Transaction
and Equipment as-is without recourse or warranty by Assignee, except a warranty
of retransfer of all interests received from Assignor free of any liens and
encumbrances created by or arising through Assignee.
ARTICLE 7.
INDEMNITIES
Section 7.1 General Indemnity.
(a) Assignor shall, at its option and its own expense, either settle,
compromise or defend, and shall indemnify and hold Assignee harmless
for, from and against, any and all Claims and Damages (for purposes of
Section 7 hereof, collectively "Claims") arising from (i) any breach by
Assignor of any warranty, covenant or other obligation or the
inaccuracy of any representation of Assignor in this Agreement; (ii)
the violation (other than any such violation to the extent resulting
from the activities of Assignee) by Assignor of any local, state or
federal law, rule or regulation in performing any billing or collection
activities or any such violation by Assignor in performing any other
activities pursuant to this Agreement; (iii) the violation (other than
any such violation to the extent resulting from the activities of
Assignee) by Servicer of any local, state or federal law, rule or
regulation in performing any billing or collection activities or any
such violation by Servicer in performing any other activities pursuant
to this Agreement or the servicing agreement attached as Exhibit 4.
Assignor shall pay all amounts of any settlement, compromise or award
in a final judgement against Assignee with respect to such Claim.
Notwithstanding the above, Assignor shall not be responsible for
consequential, special or indirect damages or damages caused by
Assignee's gross negligence or willful misconduct.
(b) Assignee shall, at its option and its own expense, either settle,
compromise or defend, and shall indemnify and hold Assignor harmless
for, from and against, any and all Claims and Damages arising from (i)
any breach by Assignee of any warranty, covenant or other obligation or
the inaccuracy of any representation of Assignee in this Agreement;
(ii) the violation (other than any such violation to the extent
resulting from the activities of Assignor) by Assignee of any local,
state or federal law, rule or regulation in performing any billing or
collection activities or any such violation by Assignee in performing
any other activities pursuant to this Agreement. Assignee shall pay all
amounts of any settlement, compromise or award in a final judgment
against Assignor with respect to such Claim. Notwithstanding the above,
Assignee shall not be responsible for consequential, special or
indirect damages or damages caused by Assignor's or Servicer's gross
negligence or willful misconduct.
Section 7.2 Notice by Indemnitee; Settlement, Compromise and Defense by
Indemnitor. When Assignee or Assignor is seeking indemnification ("Indemnitee"),
shall give prompt written notice to the indemnifying party or ("Indemnitor") of
such Claim, which notice shall set forth in reasonable detail a description of
the nature and amount of the Claim and shall include copies of any relevant
documents in the Indemnitee's possession with respect thereto. The Indemnitor
shall at its option either settle, compromise or defend the Claim, and the
Indemnitee, at the request and expense of the Indemnitor, shall cooperate in
such settlement, compromise or defense thereof. The Indemnitee may have separate
counsel who shall be employed by Indemnitee at Indemnitee's expense; provided,
however, Indemnitor shall pay the reasonable fees and expenses of such separate
counsel only if, in the opinion of counsel to Indemnitor, the interests of
Indemnitee, on the one hand, and Indemnitor, on the other hand, are adverse such
that separate counsel for the Indemnitee is required. The Indemnitor shall not
be obligated to pay any Claim to the Indemnitee to the extent of any monetary
loss caused to the Indemnitor by the negligence of the Indemnitee. No express or
implied waiver by an Indemnitee of any default hereunder shall be construed as a
waiver of any other default. The failure or delay of an Indemnitee, provided
such failure or delay does not have a material negative monetary impact to
Indemnitor, to exercise any of its rights granted hereunder regarding any
default shall not constitute a waiver of such right as to any other default and
any single or partial exercise of any particular right granted an Indemnitee
hereunder shall not exhaust the same or constitute a waiver of any other right
provided herein.
Section 7.3 Preservation of Rights and Remedies. Notwithstanding the foregoing
provisions of this Article 7, nothing contained in this Article 7 shall affect
or impair either of Assignor's or Assignee's rights or remedies against the
other party arising out of or relating to any breach by such party of any
warranty, covenant or other obligation or the inaccuracy of any representation
or such party, contained in this Agreement. In the event of any such breach or
inaccuracy, an aggrieved party shall be entitled to recover all of its actual,
but not any consequential, incidental or punitive damages from the other party.
In addition, in the event an aggrieved party obtains a final, non-appealable
judgment against the other party in any action arising out of such breach or
inaccuracy or otherwise related to this Agreement, such prevailing party shall
be entitled to recover from the non-prevailing party all of its reasonable
attorneys' fees and costs in connection therewith.
ARTICLE 8.
REMEDIES; EVENTS OF DEFAULT; POWER OF ATTORNEY
Section 8.1 Events of Default. It shall be an Event of Default under this
Agreement if one or more of the following occur:
(a) Assignor or Servicer shall be in default under any warranty,
representation, covenant or any other obligation made herein, and
such default shall continue for fifteen (15) Business Days after
notice thereof to Assignor;
(b) Assignor or Servicer undergoes a change in ownership or
control of any type, including, without limitation, a sale, buy-out
or other transaction of a similar nature, and this change, in the
reasonable judgment of Assignee results in a deterioration in
Assignor's creditworthiness, and Assignee gives Assignor notice in
writing of such determination and Assignor does not cure such
deterioration to Assignee's reasonable satisfaction within thirty
(30) Business Days from the date of such notice;
(c) Assignor or Servicer is in Bankruptcy; or
(d) Assignor shall fail to make any payment due to Assignee
hereunder on or before its respective due date.
(e) Intentionally left blank;
(f) Assignor fails to make any payment due Assignee in a timely
fashion;
(g) Assignor or Servicer is in payment default with any of its
other lenders for a period of more than 15 days from the time
Assignor is notified of such default by the applicable lender;
(h) Servicer or Assignor terminates or fails to renew the
servicing agreement (Exhibit 4);
(i)
Section 8.2 Remedies Upon an Event of Default. If an Event of Default occurs and
remains uncured for a period greater than fifteen (15) Business Days, in
addition to any other remedies to which Assignee may be entitled, Assignee may
exercise one or more of the following remedies (1) immediately terminate
Assignor's and Servicer's authority and obligation to ▇▇▇▇ and collect payments
due and to become due from Customers with respect to any or all items of Paper
and (2) cease any further fundings under this Agreement and (3) deliver to the
affected Customers under the items of Paper for which such authority is
terminated, the notices described above in Article 4 and (4) directly ▇▇▇▇ for
and collect all amounts payable under such items of Paper and (5) direct such
Customers to remit all Payments directly to Assignee and (6) assume all
collection activities with respect to all Lease Transactions relating to Paper
for which Assignor's or Servicer's authority and obligation to ▇▇▇▇ and collect
payments due has been terminated and (7) pursue any other remedies or security
available under any intercreditor, blocked account or similar agreements.
Assignee shall promptly give notice to Assignor and Servicer of such termination
pursuant to (4) in the preceding paragraph, specifying the items of Paper to
which it applies and thereupon Assignor shall promptly (and, in any event,
within five (5) Business Days) deliver to Assignee copies of all of Assignor's
collection records and files with respect to each Lease Transaction as to which
Assignor's or Servicer's authority has been terminated. Following any such
termination of authority to ▇▇▇▇ and collect under this Section or any other
provision of this Agreement, Assignor and Servicer agree to cooperate with and
assist Assignee in its efforts with respect to billing and collection in such
manner as Assignee may reasonably request.
None of the rights or remedies of Assignee or the holder hereunder or under the
Agreement are to be deemed waived or affected by any failure to exercise. All
remedies conferred upon Assignee or the holder of this Agreement or any other
instrument or agreement to which the undersigned is a party or under which any
or all of them is bound, shall be cumulative and not exclusive, and such
remedies may be exercised concurrently or consecutively at Assignee's or the
holder's option.
ARTICLE 9.
MISCELLANEOUS
Section 9.1 Binding Effect, Assignment; Governing Law.
(a) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns. Assignor shall not assign its rights or delegate its duties
or obligations hereunder without the prior written consent of
Assignee. Assignee may sell, assign or transfer some or all of its
economic rights and interests in any Lease Purchase Transaction, and
any corresponding rights under this Agreement. Servicer may not
assign any of its obligations or duties related to the Lease
Transactions without the prior written consent of Assignee.
(b) THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF OHIO.
(c) Any provision of this Agreement which is held by any court of
competent jurisdiction to be illegal, void or unenforceable shall be
of no force and effect, but the illegality or unenforceability of
such provision shall have no effect upon and shall not impair the
enforceability of any other provision in this Agreement or otherwise
diminish either party's rights under the remaining provisions of
this Agreement.
Section 9.2 Jury Trial Waiver. EACH PARTY HEREBY WAIVES ITS RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OF CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT IT HAS REVIEWED THIS JURY TRIAL
WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 9.3 Term of Agreement; Termination; Renewals and Extensions. The term of
this Agreement shall commence as of the effective date specified herein and
continue until terminated. This Agreement may be terminated by one of the
parties upon at least thirty (30) days prior written notice to the other.
Notwithstanding any termination of this Agreement, unless otherwise agreed to by
Assignor and Assignee, all of the rights and obligations of the parties
contained in this Agreement shall continue in full force and effect as they
relate to all Lease Purchase Transactions completed by Assignee prior to such
termination until all items of Paper sold to Assignee have expired or have
otherwise been terminated and all Equipment has been sold or otherwise disposed
of.
Section 9.4 Prohibition of Publicity. Except as otherwise provided herein, the
parties agree that neither party will use, assert or publicize the name of the
other for any purpose whatsoever, including without limitation, advertising and
promotional purposes, without the prior written consent of the other party,
which consent shall not be unreasonably withheld or delayed. Any press releases
concerning this Agreement shall likewise require the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed.
Section 9.5 Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to be received (a) if mailed,
five (5) days after such notice is sent via first class United States certified
mail, postage prepaid to the address listed below for the party to whom the
notice is being sent ("Notice Party"); (b) if hand delivered or delivered by
courier, upon actual delivery of such notice to the Notice Party at the address
listed below for such Notice Party; or (c) if sent by facsimile, on the first
business day after the date of the sender's receipt of a confirmed transmission
of such notice to the Notice Party at the facsimile number, if any, listed below
for such Notice Party provided the party giving such notice delivers a copy of
such notice, in accordance with this Section 9.5, within two (2) days after the
transmission of such notice by facsimile to the Notice Party. The addresses and
facsimile numbers for each party to this Agreement, as of the date hereof, are:
If to Assignee: If to Assignor:
Information Leasing Corporation Lease Equity Appreciation Fund I, LP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Wilmington, Delaware
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, SVP Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, President
Facsimile No.: 513/977-8746 Facsimile No. 215/▇▇▇-▇▇▇▇
Telephone No.: 513/▇▇▇-▇▇▇▇ Telephone No. 800/▇▇▇-▇▇▇▇
If to Servicer:
LEAF Financial Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, President
Any party may change its address or facsimile number by providing written
notice, in accordance with the foregoing provisions of this Section 9.5, to each
other party of such change.
Section 9.6 Entire Agreement; No Modification; Severability. This Agreement
exclusively and completely states the rights of Assignee and Assignor with
respect to the subject matter hereof of thereof and supersedes all other
agreements, written or oral, with respect thereto. Except as provided herein,
none of the terms or conditions under this Agreement may be changed, waived,
modified or varied in any manner whatsoever, including, but not limited to, any
action or inaction of either party, unless in a writing duly signed and executed
by the affected party. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall be, as to such jurisdiction, 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 9.7 Headings. The headings of Sections contained in this Agreement are
provided for convenience only and they form no part of this Agreement and shall
not affect its construction or interpretation.
Section 9.8 Future Cooperation; Rights and Remedies Cumulative. Assignee and
Assignor agree to sign such further documents and take such further action as
may reasonably be necessary to effectuate the intent and purposes of this
Agreement. All rights and remedies of Assignee under this Agreement or any
applicable law shall be cumulative.
Section 9.9 Miscellaneous. This agreement has been mutually negotiated between
the parties hereto and the parties agree that this Agreement shall not be
construed against any party based upon the assertion that one or more of them
was the "drafter".
Section 9.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written, but on the dates set forth under their
respective signatures.
Lease Equity Appreciation Fund I, LP Information Leasing Corporation
"Assignor" "Assignee"
By: LEAF Asset Management, Inc. By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its General Partner -------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ------------------------
Title: President Title: President
----------------------------- -----------------------
Date: 9/29/03 Date: 10/03/03
------------------------------ ------------------------
LEAF Financial Corporation
"Servicer"
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
Date: 9/29/03
-------------------------------