FIRST AMENDMENT TO RECEIVABLES LOAN AND SECURITY AGREEMENT
EXECUTION
COPY
FIRST
AMENDMENT TO RECEIVABLES LOAN AND SECURITY AGREEMENT
THIS
FIRST AMENDMENT TO THE RECEIVABLES LOAN AND SECURITY AGREEMENT, dated as
December 21, 2006 (this “Amendment”),
is
entered into by RESOURCE CAPITAL FUNDING II, LLC, (the “Borrower”),
LEAF
FINANCIAL CORPORATION (“LEAF
Financial”
or the
“initial
Servicer”)
as the
Servicer and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK (“▇▇▇▇▇▇
▇▇▇▇▇▇▇”)
as a
Lender.
R E C I T A L S
A. The
Borrower, LEAF Financial, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, U.S. Bank National Association and
Lyon Financial Services, Inc. are parties to the Receivables Loan and Security
Agreement, dated as of October 31, 2006 (as amended, supplemented or otherwise
modified from time to time, the “Agreement”);
B. The
parties hereto desire to amend the Agreement on the terms and conditions set
forth herein.
NOW
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Certain
Defined Terms.
Capitalized terms used but not defined herein shall have the meanings set forth
for such terms in Section
1.01
of the
Agreement.
2. Amendments
to the Agreement.
The
Agreement is hereby amended to incorporate the changes reflected on Exhibit
A
hereto.
3. Consent.
▇▇▇▇▇▇
▇▇▇▇▇▇▇ hereby consents to the execution and delivery of the First Amendment
to
the Purchase and Sale Agreement, dated as of the date hereof (the “PSA
Amendment”),
between the Originator and the Borrower.
4. Conditions
Precedent.
The
effectiveness of this Amendment is expressly conditioned upon the satisfaction
of the following conditions precedent:
(a) the
execution and delivery by all of the parties hereto of this Amendment and the
PSA Amendment; and
(b) The
execution and delivery by all of the parties thereto of the Membership Interest
Purchase Agreement, dated as of the date hereof, between RCC Commercial, Inc.,
as seller, and the Originator, as buyer; and
(c) the
delivery of favorable opinions of counsel regarding true sale and substantive
nonconsolidation matters, in form and substance reasonably satisfactory to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(d) The
delivery of a reliance letter to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services, Inc. with
respect to the opinions of counsel dated October 31, 2006 and delivered in
connection with the execution and delivery of the Receivables Loan and Security
Agreement, excluding any such opinions delivered with respect to true sale
and
nonconsolidation matters.
5. Representations
and Warranties.
Both
the Borrower and the Servicer represents and warrants to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
that:
(a) this
Amendment has been duly authorized, executed and delivered on its behalf, and
the Agreement, as so amended, constitutes its legal, valid and binding
obligation enforceable against it in accordance with the terms hereof or
thereof;
(b) the
representations and warranties made by it in the Agreement (as amended by this
Amendment) are true and correct as of the date hereof (except to the extent
such
representations and warranties speak as a prior date or have been the subject
of
any prior notice or waiver); and
(c) after
giving effect to this Amendment, no Program Termination Event, Event of Default,
or Unmatured Event of Default shall exist on the date hereof.
6. Effect
of Amendment.
Except
as expressly amended and modified by this Amendment, all provisions of the
Agreement shall remain in full force and effect. After the date hereof, all
references in the Agreement to “this Agreement”, “hereof”, or words of similar
effect referring to such Agreement shall be deemed to be references to the
Agreement as amended by this Amendment. This Amendment shall not be deemed
to
expressly or impliedly waive, amend or supplement any provision of the Agreement
other than as set forth herein.
7. Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
on separate counterparts, each of which shall be deemed to be an original and
all of which when taken together shall constitute but one and the same
instrument.
8. Governing
Law.
This
Amendment shall be governed by, and construed in accordance with, the law of
the
State of New York without regard to any otherwise applicable principles of
conflicts of law.
9. Section
Headings.
The
various headings of this Amendment are included for convenience only and shall
not affect the meaning or interpretation of this Amendment, the Agreement or
any
provision hereof or thereof.
Signature
pages follow
2
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
|
THE
BORROWER:
|
RESOURCE
CAPITAL FUNDING II, LLC
By: ______________________________
Name:
Title:
|
|
THE
SERVICER:
|
LEAF
FINANCIAL CORPORATION
By: ______________________________
Name:
Title:
|
|
THE
LENDER:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ BANK
By: ______________________________
Name:
Title:
|
S-1
Exhibit
A
AMENDMENTS