MASTER LOAN AND SECURITY AGREEMENT
THIS MASTER LOAN AND SECURITY AGREEMENT (this "Agreement"), dated as of
November 26, 2003, is entered into by and between LEASE EQUITY APPRECIATION FUND
I, L.P., a Delaware limited partnership, with principal offices at 0000 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, XX 00000 ("Borrower"), and OFC CAPITAL, a
division of ALFA Financial Corporation, an Alabama corporation, with principal
offices at 000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx 00000 ("Lender").
W I T N E S S E T H:
WHEREAS, Borrower is in the business, among other things, of leasing
and financing the acquisition of various types of equipment and other personal
property and, in connection therewith, acquires from LEAF Funding, Inc. (the
"Originator") equipment leases and loan transactions with commercial users
(each, a "Transaction" and, collectively, the "Transactions"); and
WHEREAS, Borrower may, from time to time, borrow from Lender and Lender
may make available to Borrower loans (each a "Loan" and collectively "Loans")
secured by Borrower's right, title and interest in and to the Transactions, and
the related documents including promissory notes, security agreements,
guarantees, security interests, and all other agreements, documents or
instruments evidencing a payment obligation under, providing security for, or
otherwise relating to, a Transaction (each a "Transaction Document" and
collectively, the "Transaction Documents"), and a security interest in the
equipment and other personal property covered thereby (the "Equipment"); and
WHEREAS, Borrower and Lender desire that this Agreement serve as a
master agreement which sets forth the terms and conditions governing any Loan by
Borrower to Lender. The Transactions securing each Loan shall be set forth on a
Schedule to this Agreement (each a "Schedule" and collectively the "Schedules")
and each shall be sequentially numbered.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. The Loan; Collateral.
1.1 The Loans. In reliance upon the representations and warranties
hereinafter set forth, and subject to the fulfillment of all the terms and
conditions of this Agreement, Lender may from time to time lend to Borrower, and
Borrower may from time to time borrow from Lender, Loans in an aggregate
principal amount not to exceed Fifteen Million Dollars ($15,000,000), with the
Loan Amount (as defined in Section 1.2 hereof) of each Loan to be determined in
accordance with Section 1.2 hereof. Borrower acknowledges and agrees that Lender
is under no obligation to make any Loans hereunder and any Loans shall be in
Lender's sole and absolute discretion.
1.2 Loan Amount.
(a) Each Loan shall be in an amount (the "Loan Amount") equal to
ninety-three percent (93%) of the aggregate payments due on and after
the applicable Cut-off Date (as defined below) discounted to the
Closing Date (as defined below) at the rate of six and nine-tenths
percent (6.9%) (the "Interest Rate"). The Loan Amount will be set forth
in a closing letter (each, a "Closing Letter") to be executed by the
parties prior to the applicable Closing Date and evidenced by a
promissory note in the form of Exhibit B hereto (each a "Note" and,
collectively, the "Notes"). Lender shall, at the time of each Closing,
withhold cash collateral (each, a "Cash Reserve" and, collectively, the
"Cash Reserves") in an amount equal to three (3%) percent (the "Reserve
Percentage") of the Loan Amount, which Cash Reserve will be held and
applied by Lender pursuant to Section 1.4 hereof.
(b) The Loan Amount assumes that the unpaid balance information set
forth on the applicable Schedule is true and correct as of the
applicable Closing Date, and if such unpaid balance information proves
to be inaccurate or incorrect, the Loan Amount will be adjusted
accordingly, and Borrower or Lender, as the case may be, shall upon
demand setting forth the required adjustments immediately pay the other
the amount of the adjustments and Borrower shall execute a replacement
note in the corrected Loan Amount.
(c) On the closing of each Loan hereunder (each, a "Closing", and
the date of such Closing, the "Closing Date"), Lender shall pay to
Borrower the Loan Amount, less: (i) the applicable Cash Reserve, (ii)
an amount representing all security deposits held by Borrower to secure
the obligations of Obligors, as described on Exhibit 1 to each
Schedule, (iii) an amount representing all Payments that are payable on
or after the Cut-off Date (as defined below) but which have been
collected prior to the Closing Date, as described on Exhibit 1 to each
Schedule, and (iv) an amount representing all sales and use taxes and
personal property taxes covering the Equipment (collectively, "Taxes")
which (unless payable by the Obligor under the Transaction Documents)
should have been paid by Borrower prior to the Closing. In the event it
is subsequently determined that additional Taxes which are payable
prior to the Closing are payable, Borrower shall promptly remit to
Lender such additional amounts. Borrower's obligations under this
Section shall survive the consummation of the transactions contemplated
by this Agreement.
(d) Lender shall pay to Borrower, upon the satisfaction in full of
all amounts due and payable under all Loans hereunder, interest on all
security deposits deducted from the Loan Amount under Section
1.2(c)(ii) above, such interest to accrue at the Interest Rate for such
time as such security deposits are held by Lender hereunder.
(e) Each Loan shall be repaid with interest at the Interest Rate
over a term of 60 months in accordance with the amortization schedule
annexed to the relevant Note (the "Amortization Schedule"). All
payments shall be due on the 15th day of each month or, if such day is
not a business day, the next succeeding business day (each a "Payment
Date"). On each Payment Date, all Payments made with respect to the
Transactions to which such Loan relates that have been collected in the
Lockbox Account (as defined in the Servicing Agreement), together with
such additional funds advanced by Servicer (as defined below) or
Borrower as required to make the full payment to Lender shall be paid
to Lender by wire transfer. To the extent any Transactions are
repurchased or prepaid as provided hereunder, the Amortization Schedule
shall be adjusted accordingly.
1.3 Collateral for Loans. To secure the repayment of the each Loan, the
obligations of LEAF Financial Corporation ("Servicer") under the Servicing
Agreement of even date herewith in the form attached hereto as Exhibit C by and
between Servicer and Lender (the "Servicing Agreement"), the obligations of
Resource America, Inc. under the Continuing Service Guaranty of even date
herewith (the "Continuing Service Guaranty"), and the obligations or Originator
and Servicer under the guaranty of even date herewith delivered by Originator
and Servicer with respect to Borrower's obligations hereunder (the "Originator
Guaranty") and all other agreements between Borrower and Lender, and to further
secure the due payment and performance of all of the obligations of the Obligors
(as defined in Section 2.1(c)(i) below) under the Transaction Documents,
Borrower hereby grants to Lender a lien on and a security interest in and to all
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Transactions listed in each Schedule, all payments to become due and payable
under all Transaction Documents on or after the cut-off date (each, a "Cut-off
Date") specified in the applicable Closing Letter (collectively, the
"Payments"), the related Transaction Documents, and all Equipment and other
collateral securing the Transactions that are the subject of such Schedule,
together with all additions, replacements, substitutions, parts, repairs,
accessories, accessions and attachments to such Equipment and all proceeds of
all of the foregoing, including insurance proceeds (collectively, "Collateral").
1.4 Cash Reserves.
(a) The Cash Reserve shall be retained by Lender and deposited in a
non-interest bearing bank account (the "Cash Reserve Account")
established by Lender in the name of Lender. Borrower hereby grants to
Lender a security interest in (i) the Cash Reserve, (ii) the Cash
Reserve Account, and (iii) all moneys, financial assets and investment
property in the Cash Reserve Account, as security for the prompt
payment and performance of the liabilities and the obligations of (A)
the Obligors under all Transactions in each Schedule, (B) Borrower
hereunder, (C) Servicer under the Servicing Agreement, (D) Resource
America, Inc. under the Continuing Service Guaranty, and (E) Originator
and Servicer under the Originator Guaranty.
(b) Lender may, but shall not be obligated to, withdraw from the
Cash Reserve Account an amount equal to any Payments which an Obligor
or Borrower fail to pay; provided the application of such Cash Reserves
shall not relieve (a) Borrower from its obligations under the Note or
this Agreement, including its repurchase obligations under Section 5,
or (b) Servicer from its obligation to make Servicer Advances pursuant
to Section 2.2(b) of the Servicing Agreement.
(c) Any delinquent Payments due and payable under any Transaction
that have not been advanced by Borrower, and any sums recovered by
Borrower or Lender with respect to any Transactions for which the Cash
Reserve Account was charged, shall be deposited in the Cash Reserve
Account up to the amount of any previous drawings by Lender thereunder
with respect to such Transaction.
(d) Upon (i) receipt by Lender of the aggregate of all Payments
payable by the Obligors under all Transactions forming a part of the
Collateral hereunder, and all indemnity or reimbursement obligations of
Borrower with respect to such Transactions or under any other document,
instrument or agreement executed in connection herewith and therewith,
and (ii) the satisfaction, by Borrower, of all of Borrower's
obligations to Lender under this Agreement, Lender shall return to
Borrower any unapplied portion of the Cash Reserve, without interest.
1.5 Prepayment. Except as set forth below, Borrower may not prepay all
or any portion of any Loan. Borrower may, on any Payment Date, prepay all, but
not less than all, of the outstanding principal balance of the Loans; provided
such prepayment is accompanied by all accrued interest to the date of prepayment
plus any other amounts due and payable hereunder, plus an amount equal to the
difference between (A) the present value of the Payments due and to become due
on the prepayment date, discounted at the Interest Rate, and (B) the net present
value of such Payments discounted at a rate equal to the yield on a U.S.
Treasury Note having a maturity closest to the average life to maturity of the
Notes evidencing the Loans. Notwithstanding the foregoing, however, Borrower may
prepay any Loan at any time after the principal amount of such Loan has been
reduced below an amount equal to ten percent (10%) of the original Loan Amount
without premium or penalty. In the event that any Obligor prepays all or any
portion of any Transaction, Borrower shall attempt to substitute a replacement
Transaction for such prepaid Transaction in accordance with Section 5 below,
but, in the event that Borrower is unable to provide an acceptable substitute
Transaction within ten (10) days of such prepayment by the Obligor, Borrower
shall forthwith repurchase such Transaction; provided that the interest rate
used to calculate the Repurchase Price shall be the Interest Rate minus one
percent (1%).
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SECTION 2. Representations and Warranties; Covenants.
2.1 Representations and Warranties of Borrower. Borrower hereby makes,
as of the date of this Agreement and as of each Closing Date of any financing
evidenced by a Note, the following representations, warranties and covenants to
Lender:
(a) Organization, Power and Qualification.
(i) Borrower is a Delaware limited partnership that is duly
organized, validly existing and duly licensed, qualified and in
good standing to engage in its regular course of business in each
jurisdiction in which the character of its properties or the
nature of its activities requires such qualifications, except
where the failure to be so qualified, licensed or in good
standing would not affect the enforceability of any Transaction
or Transaction Document;
(ii) Borrower has full power and authority to enter into this
Agreement, each Note and the Servicing Agreement, and to take any
action and execute any documents required by the terms hereof and
thereof;
(iii) Each of this Agreement, the Notes, and the Servicing
Agreement has been duly authorized by all necessary proceedings
of Borrower, has been duly and validly executed and delivered by
Borrower, and, assuming due authorization, execution and delivery
by Lender, are legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with the terms hereof
and thereof, except as such enforcement may be limited by (a)
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws, now or hereafter in effect, relating to or
affecting the rights, powers, privileges, remedies or interests
of creditors generally, (b) rules or principles of equity
affecting enforcement of obligations generally, whether at law,
in equity or otherwise, or (c) the exercise of the discretionary
powers of any court or other authority before which a proceeding
may be brought seeking equitable remedies, including, without
limitation, specific performance and injunctive relief (each, a
"Bankruptcy Exception");
(iv) No consent, approval, authorization, order, registration
or qualification of, or with, any person, or of, or with, any
court or regulatory authority or other governmental body having
jurisdiction over Borrower, the absence of which would adversely
affect the legal and valid execution, delivery and performance by
Borrower of this Agreement, the Notes, the Servicing Agreement or
the documents and instruments contemplated hereby or thereby or
the taking by Borrower of any actions contemplated herein or
therein, is required;
(v) Neither the execution and delivery of this Agreement, the
Notes, the Servicing Agreement, the consummation of the
transactions contemplated hereby or thereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement,
the Notes or the Servicing Agreement by Borrower, conflict with
or result in a breach of or a default under any of the terms,
conditions or provisions of any legal restriction (including,
without limitation, any judgment, order, injunction, decree or
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ruling of any court or governmental authority, or any federal,
state, local or other law, statute, rule or regulation) or any
covenant or agreement or instrument to which Borrower is now a
party, or by which Borrower or any of Borrower's property is
bound, nor does such execution, delivery, consummation or
compliance violate or result in the violation of the Certificate
of Formation, partnership agreement or any other organizational
documents of Borrower; and
(vi) The principal executive office of Borrower is the address
stated with respect to Borrower in the recitals above.
(b) Accuracy of Information. All information, in whatever form
provided by Borrower to Lender concerning the Transactions, including,
without limitation: (i) the legal names and addresses of Obligors, (ii)
the amount, due dates and monthly payments due under Transaction
Documents, (iii) descriptions of Transaction Documents, (iv) stated or
guaranteed residual values, (v) cash flows, (vi) delinquencies, and
(vii) the amount of security deposits, certificates of deposit or other
collateral held by Borrower as security for Transaction obligations,
have been provided with the knowledge that Lender has been induced to
enter into this Agreement and to accept each Transaction as Collateral
for the obligations described in Section 1.3 on the terms agreed upon
in reliance on such information, and Borrower warrants that all such
information is accurate and correct in all material respects.
(c) Transaction Representations.
(i) Each Transaction and Transaction Document is genuine and
represents a valid obligation of each lessee, borrower,
guarantor, pledgor and/or each other party named therein or which
is obligated to make payments on any Transaction or Transaction
Document (each, an "Obligor") under such Transaction, and each
such Transaction Document is and will continue to be enforceable
against each Obligor in accordance with the terms thereof,
subject to the Bankruptcy Exception;
(ii) Each Transaction is denominated in United States dollars
and has been entered into by Obligors domiciled in the United
States of America.
(iii) Borrower or Servicer has, as of the Closing Date,
received at least one Payment from each Obligor under each
Transaction.
(iv) As of the applicable Closing Date, each Transaction has a
remaining term of at least twelve (12) months but no more than
eighty-four (84) months from such Closing Date.
(v) No Transaction has a present value (discounted at the
Interest Rate) greater than Five Hundred Thousand Dollars
($500,000).
(vi) Each Transaction Document contains an irrevocable,
unconditional obligation of each Obligor to pay all amounts set
forth therein, and is and shall continue to be in all respects
free from dispute, set-off, defense, counterclaim or recoupment
of any kind, and is and shall continue to be non-cancelable for
the duration of its term and is net of any maintenance or cost
per copy charges;
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(vii) Each Transaction was originated or acquired by Originator
in the ordinary course of Originator's business in connection
with the sale or lease of one or more units of new or used
Equipment intended for commercial or other business use, and the
cost of all Equipment and all costs, fees and expenses incurred
by Originator or Borrower in connection with each such
Transaction and any Transaction Document have been paid;
(viii) Originator was, at the time such Transaction was
originated, duly licensed, if necessary, and qualified and in
good standing to engage in its regular course of business in each
jurisdiction in which the character of its properties or the
nature of its activities then required such qualification, except
where the failure to have been so qualified, licensed or in good
standing would not affect the enforceability of any Transaction
or of any Transaction Document, and such Originator had full and
legal power and authority to enter into such Transaction;
(ix) Borrower has delivered to U.S. Bank National Association
(the "Custodian"), as Custodian under that certain Custodial
Agreement dated as of April 8, 2003 (the "Custodial Agreement")
by and among Xxxxxxx Xxxxx Equipment Finance LLC, Xxxxxxx Xxxxx
Commercial Finance Corp., LEAF Institutional Direct Management,
LLC, LEAF Funding, Inc., and Servicer, as amended, the sole and
exclusive original or original counterpart of each Transaction
Document and such additional Transaction Documents required by
the terms and conditions of the Custodial Agreement;
(x) The Transaction Documents are in the forms previously
provided to Lender and satisfies Borrower's internal credit and
collection policies and procedures as in effect as of the Closing
Date, and there have been no material modifications or amendments
to such Transaction Documents;
(xi) The terms and conditions contained in the Transaction
Documents correctly reflect the entire agreement between the
parties thereto and there are no other written agreements or
representations, or any oral agreements by Borrower, in
connection therewith;
(xii) As of the applicable Closing Date, (A) no Transaction is
a Delinquent Transaction (as defined in the Servicing Agreement),
(B) no Transaction has, at any time, been delinquent for a period
of more than sixty (60) days, (C) no Event of Bankruptcy (as
defined below) has occurred with respect to any Obligor, (D) no
other default exists under any Transaction Document, (E) no
Obligor thereunder has failed generally to, or admitted in
writing its inability to, pay its debts as they become due and
(F) the Servicer has not declined to make any advance on behalf
of any Obligor required to be made by it or repossessed and/or
"charged-off" any Transaction. For purposes of this Agreement, an
"Event of Bankruptcy" means the occurrence of either of the
following events: (A) a court of competent jurisdiction shall
enter a decree or order for relief in respect of such person in
any involuntary case under applicable bankruptcy and solvency or
similar laws now or hereafter in effect, or appoint a receiver,
liquidator, Lender, custodian, trustee, sequestrator or other
similar official of such person to offer any substantial part of
its property or ordering the winding up or liquidation of its
affairs, or (B) such person shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or shall
consent to the appointment of, or taking possession by a
receiver, liquidator, Lender, trustee, custodian, sequestrator or
other similar official of such person of, any substantial part of
its property, or shall make any general assignment for the
benefit of creditors, or, if a corporation or similar entity,
take any corporate action in furtherance of any of the foregoing;
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(xiii) Except as set forth on Exhibit 1 to a Schedule, as of
the applicable Closing Date, Borrower has not, directly or
indirectly, in any way extended or otherwise restructured the
payment terms or any other term or condition of any Transaction
Document or made any extension or other accommodation to any
Obligor for purposes of changing or beneficially affecting the
delinquency status of any Transaction;
(xiv) Each Schedule correctly reflects, as of the applicable
Closing Date, for each Transaction, the name of each Obligor, the
periodic installments of rent, the number of periodic
installments remaining to be paid on such Transactions and the
total Payments payable with respect to each Transaction;
(xv) Except as set forth on a Schedule, as of the applicable
Closing Date, no rental, installment or other amount due on a
Transaction after the applicable Cut-off Date has been prepaid;
(xvi) Each Transaction Document complies with all applicable
state, federal, local and other laws, rules, regulations and
requirements in effect as of the applicable Closing Date with
respect to the creation of such obligations, the billing or
collection of discounts, fees or similar charges, the amount of
interest or other charges which may be collected and the
disclosure of discounts, fees, interest or other charges;
(xvii) Each Transaction Document is in full force and effect,
and there are no claims, suits, actions, arbitrations or other
proceedings or governmental investigations, including, without
limitation, any counterclaims or claims by any Obligor, pending,
or, to the best of Borrower's knowledge, threatened, against
Borrower relating to any Transaction or the acquisition,
collection or administration of any Transaction. Borrower has not
received any notice of, nor to the best of Borrower's knowledge,
is there any valid basis for any claim against, or assertion of
liability against, Borrower relating to any Transaction, or the
acquisition, collection or administration thereof. Borrower has
not been the subject of any proceeding, nor, to the best of
Borrower's knowledge, has there been any investigation by or
before any regulatory authority in connection with Borrower's
business practices with respect to any Transaction, or the
acquisition, collection or administration thereof;
(xviii) Any down payment or advance rental that may be required
with respect to any Transaction has been fully paid in cash and
no part thereof has been loaned, directly or indirectly, by
Borrower, and all amounts payable to any broker, vendor or
supplier have been paid in full;
(xix) All Equipment leased or sold to the Obligors has been
delivered to, and unconditionally accepted by, the Obligors and
the cost of Equipment paid to the appropriate vendor;
(xx) Borrower either owns or has a valid, first priority
purchase money security interest in the Collateral, free and
clear of any lien, security interest or other encumbrance
(collectively, a "Lien"), except for any Liens released at or
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prior to Closing, and Borrower has not previously assigned, sold
or hypothecated any interest that it may have in or under any
Transaction or any Collateral, and upon the consummation of the
transactions contemplated hereby and the applicable Assignment,
Lender will be vested with such security interests, and all
right, title and interest of Borrower in and under each
Transaction and Transaction Document and the Collateral free and
clear of any Lien thereon, except in favor of Lender, and will be
entitled to all of the benefits due and owing to Borrower (but
none of the obligations) under the Transaction Documents;
(xxi) As of the applicable Closing Date, the Collateral having
a cost of $100,000 or more relating to any Transaction is
properly insured as required by the terms of the Transaction
Documents by insurance obtained by the Obligor, naming Lender as
loss payee and additional insured, and, with respect to
Collateral having a cost of less than $100,000, shall be insured
under Servicer's blanket insurance policy naming Lender as an
additional insured. To Borrower's best knowledge, there are no
pending claims by or through any Obligor against Borrower, the
manufacturer or supplier of any of the Equipment based on express
or implied warranties, product liability or otherwise;
(xxii) As of the applicable Closing Date, all outstanding
Taxes, fees, charges or assessments levied or assessed against
each Transaction being financed or the Equipment that is the
subject of such Transaction at any time prior to the applicable
Closing Date have been fully paid by Borrower or by the Obligor,
as the case may be;
(xxiii) There are no oral or written agreements of any kind
between Borrower and any other person, company or entity
(including, without limitation, brokers, vendors, Obligors and
governmental bodies) which will or may materially and adversely
affect Lender's interests in or to any of the Transactions or the
Collateral;
(xxiv) Within the last six (6) years, neither Borrower nor
Originator has conducted business under any other trade name,
fictitious name or any other legal name;
(xxv) Except as set forth on a Schedule, no Obligor has a right
under any Transaction Document or any other agreement to buy out
or terminate a Transaction prior to the completion of its
original term;
(xxvi) Borrower has not received actual written notice from any
Obligor of a bulk sale (or pending bulk sale) of such Obligor's
assets, or notice of any Obligor's attempt to assign its rights
under its Transaction Documents or sublease the Equipment;
(xxvii) After the applicable Closing Date, Borrower will not
have any ongoing maintenance or service obligations with respect
to any of the Collateral; and
(xxviii) Prior to the applicable Closing Date, Borrower has
satisfactorily fulfilled all of its obligations and warranties to
Obligors under the Transactions which are the subject of the
applicable Assignment.
(d) Brokers. No person acting on behalf of Borrower is or will be
entitled to any brokers' or finders' fee or any other commission or
similar fee, directly or indirectly, for the transactions hereunder or
pursuant to any Assignment, other than Diversity Capital, LLC, which
fee shall be payable by Borrower at each Closing from the Loan Amount.
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(e) Knowledge. For the purpose hereof, the term "to the best of
Borrower's knowledge" means the actual knowledge, after reasonable
inquiry and investigation, of the officers of Borrower.
2.2 Representations and Warranties of Lender.
Lender hereby represents and warrants to Borrower as follows:
(a) Organization, Power and Qualification.
(i) Lender is a division of ALFA Financial Corporation, which
is duly organized, validly existing and in good standing to
engage in its regular course of business in each jurisdiction in
which the character of its properties or the nature of its
activities requires such qualification, except where the failure
to be so qualified, licensed or in good standing would not affect
the enforceability of this Agreement; and
(ii) Lender has full power and authority to enter into this
Agreement and the Servicing Agreement and to take any action and
execute any documents required by the terms hereof and thereof.
2.3 Covenants of Borrower. The Borrower hereby covenants and agrees
that until all Loans hereunder have been paid and performed in full and this
Agreement shall have terminated:
(a) Borrower shall maintain a minimum tangible net worth of at
least $7.5 million, plus 25% of all capital raised after November 30,
2003;
(b) At no time shall the aggregate value of all Transactions that
are more than ninety (90) days past due but less than one hundred
twenty (120) days past due exceed an amount equal to 1.5% of the
aggregate principal balance of all then-outstanding Loans.
(c) Borrower shall give Lender at least thirty (30) days' prior
written notice of any relocation of its state of organization or its
chief executive office, and Borrower shall at all times maintain its
place of organization and its chief executive office within the United
States;
(d) Borrower shall not permit, and shall not allow Originator or
Servicer to permit, the return or repossession of any Equipment or the
modification of any Transaction Document after the applicable Closing
Date, except to the extent authorized by Servicer, and agrees to assist
Lender, upon Lender's request, in the enforcement of any of Lender's
rights and remedies under any Transaction Document; and
(e) Borrower agrees to cause each Obligor to maintain casualty
insurance on any and all Equipment leased to such Obligor as provided
in Section 2.1(c)(xxi). Borrower agrees not to waive the requirement of
any insurance coverage under policies maintained by an Obligor pursuant
to any Transaction Document. Borrower shall cooperate, and shall cause
Servicer to cooperate, with Lender in causing all insurance maintained
on the Equipment which is the subject of any Transaction to be amended
to name "Borrower or its Lender" as loss payee and additional insured
as their interest may appear.
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(f) Borrower agrees that it shall, if required by applicable law,
pay and discharge or cause to be paid and discharged, all sales, use,
rental and personal property or similar taxes and fees (excluding any
taxes on Lender's net income) which arise prior to the applicable
Closing Date in connection with the sale, lease, use or ownership of
the Equipment covered by an assigned Transaction Document. Borrower
further agrees to indemnify and hold Lender harmless from and against
all claims, losses and damages arising as a result of a breach by
Borrower of the foregoing agreement;
(g) Borrower agrees to assist Lender in obtaining and filing
executed UCC-1 financing statements against Obligors or assignments
thereof to the extent that Lender deems such action necessary or
desirable;
(h) For the term of any Transaction Document, Borrower shall
promptly advise Lender of any matter of which Borrower has knowledge
which may be detrimental to an Obligor's financial condition;
(i) Borrower shall deliver (i) as soon as available, but not later
than forty-five (45) days after the end of each quarter (except the
last) of each fiscal year, a copy of the quarterly, unaudited financial
statements of each of Borrower, Servicer and Originator, consisting of
a balance sheet and income statement, concerning their respective
businesses, prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
fiscal quarter, the results of operations for the quarter then ended
and certified as true and correct by Borrower's chief operating officer
or chief financial officer which certification shall also contain a
statement that none of Borrower, Servicer or Originator is in default
under any indebtedness in excess of $100,000 owed to any person or
entity; and (ii) as soon as available, but not later than one hundred
twenty (120) days after the end of each fiscal year, a copy of the
annual, audited financial statements of each of Borrower, Servicer and
Originator consisting of a balance sheet and income statement prepared
in conformity with generally accepted accounting principles applied on
a basis consistent with that of the preceding fiscal year and
presenting fairly the financial condition of such persons as at the end
of that fiscal year and the results of operations for the twelve (12)
month period then ended and signed by Borrower's chief operating
officer or chief financial officer;
(j) Borrower shall deliver to Lender, monthly, a schedule setting
forth those Transaction Documents which have been replaced with
substitute Transactions pursuant to Section 5.2;
(k) Borrower shall make or cause to be made all filings in respect
of, and pay or cause to be paid when due, all taxes, assessments,
fines, fees and other liabilities (including all taxes and other claims
in respect of the Transactions and the related Equipment) unless being
reasonably contested in accordance with Section 2.6(d); provided,
however, that Borrower shall only be responsible for personal property
taxes collected by or required to be paid by Borrower;
(l) Borrower shall perform all Borrower's obligations arising by
contract or imposed by applicable law, rule or regulation with respect
to any of the Collateral;
(m) Borrower shall, or shall cause Servicer to, as soon as
possible, and in any event within ten (10) days after the occurrence of
any Event of Default, provide a written notice setting forth the
details of such Event of Default and the action which is proposed to be
taken by the Borrower or Servicer with respect thereto;
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(n) Borrower shall from time to time execute and deliver such
further documents and do such further acts and things as Lender may
reasonably request in order to fully effect the purposes of this
Agreement and to protect Lender's interest in the Collateral;
(o) Borrower shall enforce for the benefit of Lender any repurchase
agreement or guaranty of any Equipment supplier; and
(p) Borrower shall cooperate with Lender's "back-up servicer," by
providing the back-up servicer such information as it requests,
including monthly downloads in computer readable form of billing and
portfolio data.
SECTION 3. Conditions to Loan.
3.1 Conditions Precedent to Loan. Lender's obligation to make any Loan
on any Closing Date is subject to the fulfillment or prior written waiver of
each of the following conditions precedent, each in form and substance
satisfactory to Lender and its counsel:
(a) Borrower shall have duly executed and delivered to Lender a
Schedule listing the Transactions being purchased at such Closing;
(b) Borrower shall have duly executed and delivered to Lender a
Note evidencing the Loan Amount and repayment terms in the form or
Exhibit A attached hereto;
(c) Borrower shall not be in default in the performance of any
material obligation hereunder and the Servicer shall not be in default
in the performance of any material obligation under the Servicing
Agreement;
(d) Lender shall have received an opinion of Borrower's counsel,
substantially in the form of Exhibit B attached hereto;
(e) Borrower shall have entered into and delivered to Lender an
amendment to the Custodial Agreement adding Lender as a party thereto;
(f) Borrower shall have delivered to the Custodian, the original
Transaction Documents for each relevant Transaction, which shall
consist of the following documents (collectively, the "Transaction
File") and the Custodian shall have acknowledged receipt thereof:
(i) an original counterpart of each the lease agreement,
conditional sale agreement, or secured note evidencing the
Transaction, together with all amendments, riders and supplements
thereto identified on a Schedule, provided, to the extent any
Transaction is evidenced by a schedule to a Master Lease Agreement,
it shall be a requirement of Closing that the original schedule and
a certified copy, rather than the original, of the Master Lease
Agreement referenced by such schedule be delivered to Lender;
(ii) each guaranty, security agreement, pledge agreement and
any other agreement securing or guaranteeing any of the obligations
under the Transaction;
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(iii) with respect to Transactions having a fixed price
purchase option and an equipment cost in excess of $25,000 or
Transactions with a fair market value purchase option and an
equipment cost in excess of $50,000, acknowledgment copies of all
UCC-1 financing statements designating the relevant Obligor, as
debtor, and Originator or Borrower, as secured party, filed by
Borrower or Originator, as the case may be, at its expense in
Obligor's state of organization;
(iv) copies of documentation relating to the purchase of the
Equipment (and the related contract, if applicable) by Originator
or Borrower and all invoices and evidence of Borrower's title to
the related Equipment;
(v) documents evidencing or related to any insurance policy,
and evidence of (A) insurance on the Equipment naming Lender or
Borrower and its assignee as sole loss payee and additional insured
or (B) evidence (which shall be acknowledged by Lender when
acceptable) showing that insurance on the Equipment exists and that
such insurance is in full force and effect;
(vi) original certificate, executed by the Obligor, evidencing
delivery and acceptance of the Equipment for Equipment having a
cost of $50,000 or more and telephone verification for Equipment
having a cost of under $50,000; and
(vii) any other documents relating to any of the foregoing or
otherwise evidencing a payment obligation under, providing security
for, or otherwise relating to a Transaction.
(g) To the extent obtainable, Borrower shall have delivered to
Lender, in computer readable form by Lender, all payment histories,
collection data, monthly payment streams and other records in
Borrower's data base or possession relating to each assigned
Transaction, or shall provide Lender with electronic access to such
information;
(h) Borrower shall have delivered to Lender a copy of appropriate
resolutions of the general partner of Borrower, certified by the
Secretary or Assistant Secretary of the general partner as being true,
correct and complete, and in form and substance satisfactory to Lender,
authorizing the execution, delivery and performance of this Agreement,
the applicable Note, and the Servicing Agreement by Borrower;
(i) Borrower, at its own expense, shall have filed and delivered
copies to Lender of all Forms UCC-3 that have been filed as required by
Section 3.1(e)(iii) to assign from Originator to Borrower, and such
Forms UCC-3 as may be necessary to assign from Borrower to Lender,
Borrower's security interests under all financing statements filed to
perfect Borrower's security interests in the Equipment, the Transaction
Documents and any other Collateral that is the subject of the
applicable Schedule, but only to the extent the original cost of the
Equipment equaled or exceeded $50,000, and Borrower agrees to pay all
costs incurred by Lender for recording and filing such UCC-3's and any
UCC searches ordered by Lender;
(j) Borrower shall have executed and delivered to Lender a UCC-1
financing statement naming Borrower as debtor and Lender as secured
party to evidence Lender's interest in the Transaction Documents and
the Collateral that are the subject of the applicable Assignment;
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(k) Borrower shall have delivered to Lender and/or caused to be
performed such other items that may be reasonably requested by Lender;
(l) Servicer and Lender shall have entered into the Servicing
Agreement, Originator and Servicer shall have entered into the
Originator Guarantee, and Resource America, Inc. shall have entered
into a guarantee of the Servicer's obligations under the Servicing
Agreement, all in form acceptable to Lender; and
(m) Borrower shall not have suffered any material adverse change,
nor shall any material adverse change be threatened, in the financial
condition, business or operations of Borrower since the date of
Borrower's most recent financial statement delivered to Lender.
SECTION 4. Events of Default.
4.1 Events of Default. If any one or more of the following events
(each, an "Event of Default") shall occur and be continuing, the Lender shall be
entitled to exercise the remedies set forth in Section 4.2 hereof:
(a) The failure to pay any installment of interest or principal or
any other amount payable to Payee under this Agreement or the Note
within three (3) business days of when due; or
(b) A breach by Borrower or Servicer, as the case may be, of any
provision of this Agreement or the Servicing Agreement which is not
cured within fifteen (15) days after knowledge thereof or receipt of
notice of such breach; or
(c) A voluntary or involuntary petition of receivership is filed by
or against Borrower or Servicer under any provisions of the United
State Bankruptcy Code or any insolvency law and if involuntary, is not
stayed or dismissed within sixty (60) days of such filing; or
(d) The failure by Servicer to make any payment, transfer, deposit
or notice as contemplated by the Servicing Agreement or to deliver any
monthly report required thereunder within three (3) business days of
the date such payment, transfer, deposit notice or monthly report is
due; or
(e) Any representation or warranty made by Borrower in this
Agreement or any certificate, financial statement or other document
delivered pursuant thereto shall not be materially accurate and
complete on any date as of which made or deemed made; or
(f) Borrower or Servicer shall default in making any payments due
with respect to any other recourse indebtedness of Borrower or Servicer
and such default shall not be cured within the applicable cure period;
or
(g) One or more judgments for the payment of money shall be
rendered against Servicer or Borrower in an aggregate amount in excess
of $100,000 and the same shall remain undischarged for a period of 30
days during which execution of such judgment shall not be effectively
stayed; or
(h) A "Change of Control" shall occur with respect to Borrower. For
these purposes, a "Change of Control" shall mean the sale or transfer
of more than 50% of the general partnership interests of the Borrower
to anyone other than Servicer or any other affiliate of Resource
America, Inc.; or
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(i) This Agreement shall for any reason (other than pursuant to the
express terms thereof) cease to create a valid first priority lien on
and security interest in the Collateral to the extent required
hereunder purported to be covered thereby or Borrower or Servicer shall
so assert in writing.
4.2 Remedies. If any Event of Default shall occur and be continuing,
then and in every such event, and at any time thereafter during the continuance
of such Event of Default, the Lender may declare the entire unpaid principal
balance of all Loans outstanding hereunder to be immediately due and payable,
together with all collection costs incurred by Lender (including all reasonable
attorneys' fees and expenses), whereupon such Loans shall become forthwith due
and payable both as to principal and interest together with all other amounts
payable by the Borrower under this Agreement which may be due or accrued and
unpaid, without presentment, demand, protest or any other notice of any kind,
all of which are expressly waived; provided that if the Event of Default set
forth in paragraph (c) of Section 4.1 hereof shall occur with respect to the
Borrower, then without any notice to the Borrower or any other act by Lender or
any other person the Loans shall become forthwith due and payable, all without
presentment, demand, protest or notice of any kind, all of which are expressly
waived. Following an Event of Default, Lender may enforce its rights hereunder
and under any other instrument or agreement delivered in connection herewith and
take any other action to which it is entitled hereunder, thereunder, or by law,
whether for the specific performance of any covenant or agreement contained in
this Agreement, in any such instrument or agreement or to enforce payment as
provided herein, therein, or by law.
SECTION 5. Full Recourse; Repurchase/Substitution; Indemnification Obligations.
5.1 Full Recourse.
(a) Each Loan hereunder shall be fully recourse to all of the
assets of Borrower (but not the partners thereof).
(b) Borrower shall, upon the written demand of Lender at any time
during the ninety (90) days following the Closing Date, repurchase for
the Repurchase Price provided in Section 5.2 below, any Transaction so
designated for any or no reason and regardless of whether such
Transaction is a Delinquent Transaction (as defined in the Servicing
Agreement) or Defaulted Transaction.
(c) Borrower shall, upon the written demand of Lender, repurchase,
for the Repurchase Price provided in Section 5.2 below (plus any
expenses incurred by Lender in enforcing such Transaction), any
Transaction where (i) the Obligor is in default or an event of default
under any Transaction Document has occurred (as default is defined
therein, which default (even if subsequently cured) remained uncured
for a period of one hundred twenty (120) days; (ii) the Obligor has
failed to perform any of its material obligations under any Transaction
Document, which failure is not cured within the period provided
therein; (iii) the Obligor has become insolvent, admitted or shown an
inability to pay its debts as they mature, made an assignment for the
benefit of creditors, or instituted or has had instituted against it
any proceeding alleging that the Obligor is insolvent or unable to pay
its debts as they mature if such proceeding is not withdrawn or
dismissed within sixty (60) days; or (iv) the Obligor has had entered
against it any final judgment of $100,000 or more and such final
judgment (after all appeals) remains unsatisfied for a period of thirty
(30) days if such judgment is reasonably deemed by Lender to be a
material adverse factor in the creditworthiness of the Obligor (each, a
"Defaulted Transaction").
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(d) Borrower shall, upon the written demand of Lender, repurchase
for the Repurchase Price provided in Section 5.2 below (plus any
expenses incurred by Lender in enforcing such Transaction), any
Transaction for which the Borrower shall have breached in any material
respect any of the representations, warranties or covenants set forth
in the applicable Transaction Documents which, if curable, is not cured
within twenty (20) business days after receipt of written notice from
Lender, without first requiring Lender to proceed against any Obligor
or any other person or the Collateral or any other security.
(e) Provided that Borrower is not in default hereunder or under any
Note, Lender may, in lieu of demanding Borrower repurchase any
Defaulted Transaction (and the related Collateral), by a written notice
to such effect, permit Servicer to continue its collection efforts for
the benefit of the Lender for whatever additional time it deems
appropriate without waiving in any way its right to demand Borrower to
repurchase such Defaulted Transaction and the related Collateral;
provided, that Servicer may not enter into any settlement or change any
terms of the Defaulted Transaction or related Transaction Documents or
sell any underlying collateral without Lender's prior written consent.
(f) In lieu of repurchasing a Defaulted Transaction and the related
Collateral, Borrower may, at its option, with respect to any Defaulted
Transaction, substitute a new Transaction (and new Transaction File)
for such Defaulted Transaction; provided that (i) such substitute
Transaction shall, in Lender's reasonable discretion, be of
substantially equivalent remaining term, balance of payments and credit
quality as the replaced Transaction, (ii) the Borrower may not
substitute any Transaction if the Repurchase Price of such Transaction,
together with the aggregate Repurchase Prices of all other Transactions
for which a substitution has been made pursuant to this Section 5.1(e),
would exceed twenty percent (20%) of the Purchase Price of the Schedule
for which the replaced Transaction formed a part; and (iii) Lender will
not advance additional funds with respect of such substitute
Transaction.
(g) If Borrower fails to repurchase any Transaction and the related
Collateral as required herein, such failure shall constitute a further
Event of Default under the Note evidencing the indebtedness of which
the Transaction is a part.
5.2 Repurchase Price.
(a) The Repurchase Price shall be the sum of (a) all unpaid
Payments due on or before the Repurchase Date, plus interest thereon at
the Interest Rate, plus (b) all Payments due after the Repurchase Date
under the applicable Transaction Document (plus the amount of any
purchase option for the Equipment if included in the computation of the
Loan Amount), discounted to present value at the Interest Rate used to
determine the Loan Amount of the Schedule for which such Transaction
forms a part plus (c) if repurchase is made pursuant to Section 5.1(d),
all collection costs (including reasonable attorneys' fees and
expenses) incurred by Lender, provided if the repurchase is made
pursuant to Section 5.1(d), the Payments shall be present valued at the
Interest Rate minus two (2%) percent.
(b) Upon receipt of the Repurchase Price, Lender shall, provided
Borrower is not otherwise in default of any obligations under this
Agreement, promptly reassign the repurchased Transaction and the
related Collateral to Borrower, "AS IS" and "WHERE IS," without
recourse to, or representation or warranty express or implied by,
Lender, but free and clear of all liens and encumbrances created by
Lender.
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5.3 Interest After Default. If Borrower fails to pay any amount that
may become due to Lender hereunder or under any Note on any Payment Date or
Repurchase Date, then (i) interest shall accrue thereon from and after the
Payment Date or Repurchase Date until paid in full at the Interest Rate plus two
percent (2%) per annum, and (ii) Borrower shall reimburse Lender upon demand for
all collection costs hereunder (including reasonable attorneys' fees and
expenses).
5.4 General Indemnification. Borrower indemnifies, defends and holds
harmless Lender, its successors and assigns, from and against any and all suits,
claims, liabilities, counterclaims, actions, damages, penalties, losses, costs
or expenses (including, without limitation, reasonable attorneys' fees, expenses
and court costs) of any kind Lender shall suffer as a direct result of or
arising out of (a) any breach by Borrower of any warranty, representation,
covenant or agreement contained herein, or other document executed by Borrower
in connection herewith, or contained in any Transaction Document, (b) any
misrepresentation in, or omission from, any statement, certificate, Exhibit,
Schedule or other agreement, instrument or document prepared and delivered or to
be delivered by Borrower pursuant to this Agreement, (c) any negligence of
Borrower or of any agent or employee of Borrower or any warranty given by
Borrower in respect of the purchase, installation, delivery, maintenance and
condition of any Collateral, (d) any Taxes and any governmental charges, fees,
fines or penalties whatsoever, levied against any Transaction or any Equipment
for any periods prior to the applicable Closing Date and not paid by Borrower in
the event Borrower is liable for such Taxes, or (e) any Transaction or
Transaction Document being unenforceable by reason of the failure of Borrower
(or any predecessor-in-interest to Borrower) to have qualified to do business or
to have any license or permit required by any state or other governmental
entity. Borrower further indemnifies and holds harmless Lender, its successors
and assigns, from and against any and all liabilities (including interest and
penalties) with respect to any Taxes required to be collected in respect of any
Transaction or any Equipment after the Closing Date if such Taxes had not been
collected by Borrower prior to the Closing Date on reliance of any exemption
being available or otherwise applicable and it is subsequently determined by
Lender, and Lender shall deliver to Borrower a letter explaining the basis for
such determination, that either (i) no exemption certificate is available in the
Transaction files provided by Borrower to Lender upon consummation of the
transactions contemplated hereunder and under the applicable Loan, and no
exemption certificate is obtainable from an Obligor, following Lender's
reasonable commercial efforts to obtain same from such Obligor; or (ii) in
Lender's reasonable judgment based upon an opinion of counsel, such exemption is
either not available or is otherwise improper or fraudulent under the
circumstances.
5.5 Environmental Indemnification. Borrower shall fully and promptly
pay, perform, discharge, defend and indemnify and hold harmless Lender, its
successors and assigns from and against any claim, loss or damage, including the
costs of any remedial action arising from any breach of any environmental law in
connection with a Transaction, including, without limitation, any claim arising
under the Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. Section 9601 et. seq.), unless Borrower can establish that such
condition first arose after the applicable Cut-off Date.
SECTION 6. Miscellaneous.
6.1 Remarketing Obligations. Borrower hereby assigns and transfers unto
Lender or shall cause the Originator to assign and transfer to Lender, all of
its rights and interests in, to and under all remarketing and recourse
arrangements with originating lessors and vendors relating to any Transaction.
Notwithstanding such assignment, Borrower shall at Lender's request be
responsible for all efforts, cost and expenses in connection with the
remarketing of any Equipment.
16
6.2 Costs, Recording and Other Fees. Borrower shall pay all recording
fees, assessments or other statutory fees necessary to perfect Lender's
interests in the Transactions financed hereunder and in consummating the
transactions contemplated hereby and thereby and shall pay all Taxes, if any,
payable upon or in connection with the conveyance and transfer contemplated
hereunder. Borrower shall be responsible for the reasonable fees, costs and
expenses incurred by Lender in connection with the consummation of the
transactions contemplated by this Agreement and any Note, including all
reasonable attorneys' fees in the preparation, negotiation and closing of the
transactions contemplated hereunder.
6.3 Power of Attorney. Borrower hereby irrevocably constitutes and
appoints Lender as Borrower's attorney-in-fact with full power of substitution,
for Borrower and in Borrower's name to do, at Lender's option and at Borrower's
expense, all lawful acts and things which Lender may deem necessary to perfect
and continue the perfection of any security interest created hereunder and to
ask, demand, collect (including, but not limited to, the execution, in
Borrower's name, of assignment notification letters), receipt for, xxx for,
compound and give acquittance for any and all payments assigned hereunder and to
endorse, in writing or by stamp, Borrower's name or otherwise on all checks for
any monies in respect of the Transactions in which Lender holds a security
interest.
6.4 Successor and Assigns. Lender shall have the absolute right,
without requiring Borrower's consent, to assign all or any of its rights or
delegate all or any of its duties hereunder. Borrower may not assign all or any
or its rights or delegate all or any of its duties hereunder without the prior
written consent of Lender, which consent shall not be unreasonably withheld or
delayed, provided no such assignment shall relieve Borrower of any of its
obligations hereunder or any Note executed hereunder.
6.5 Payments In Immediately Available Funds. Each payment to be made
hereunder or any Note shall be made on the required payment date in lawful money
of the United States and in New York Federal Reserve or other funds immediately
available in New York, New York.
6.6 Rights Cumulative. All rights, remedies and powers granted to
Lender hereunder are irrevocable and cumulative, and not alternative or
exclusive, and shall be in addition to all other rights, remedies and powers
given hereunder and thereunder, or in or by any other instrument, or available
in law or equity.
6.7 Waivers. No failure or delay on the part of Borrower or Lender in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
6.8 Notices. All notices, requests or other communications desired or
required to be given under this Agreement shall be in writing and shall be sent
by (a) certified or registered mail, return receipt requested, postage prepaid,
(b) national prepaid overnight delivery service, (c) telecopy or other facsimile
transmission (following with hard copies to be sent by national prepaid
overnight delivery service) or (d) personal delivery with receipt acknowledged
in writing, as follows: (1) if to Borrower, at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxx, and (2) if to Lender, at 000
Xxxxxxxx Xxxx Xxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxxx
Acquillon. All notices and demands shall be deemed to have been given either at
the time of the delivery thereof to any officer of the person entitled to
receive such notices and demands at the address of such person for notices
hereunder, or on the third day after the mailing thereof to such address, as the
case may be.
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6.9 Deliveries to Lender. All items and amounts to be delivered,
remitted or otherwise furnished by Borrower to Lender pursuant hereto or in
connection herewith and therewith shall, except as otherwise provided for herein
and therein, be delivered, remitted or furnished to Lender at its office at the
address set forth herein and therein or at such other place as the Lender may
direct.
6.10 Merger and Integration; Amendments, Etc. This Agreement and any
documents executed in connection herewith set forth the entire understanding of
the parties relating to the subject matter hereof, and all other and/or prior
understandings, written or oral, are hereby superseded. This Agreement and any
Assignment may not be modified, amended, waived, terminated or supplemented,
except in accordance with its express terms and in a writing executed by
Borrower and Lender.
6.11 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement or any Assignment. References
to any Section are to such Section of this Agreement.
6.12 Governing Law. This Agreement and any Assignment shall be governed
by the internal substantive laws of the State of New York, without regard to
principles of conflicts of law or choice of law.
6.13 Counterparts. This Agreement and any Assignment may be signed in
one or more counterparts (and by different parties on separate counterparts),
each of which shall be an original and all of which shall be taken together as
one and the same agreement.
6.14 Severability. If any provision hereof is void or unenforceable in
any jurisdiction, such voidness or unenforceability shall not affect the
validity or enforceability of (i) such provision in any other jurisdiction or
(ii) any other provision herein in such or any other jurisdiction.
6.15 Survival of Duties, Warranties and Representations. Each party
hereto covenants that its respective duties, warranties and representations set
forth in this Agreement and in any document delivered or to be delivered in
connection herewith or therewith, shall survive the execution of this Agreement
and any Assignment and the closing of the transactions contemplated hereunder
and thereunder.
6.16 Jurisdiction, Forum Selection Venue; Jury Trial Waivers. BORROWER
AND LENDER AGREE TO SUBMIT FOR THEMSELVES, IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT AND ANY SCHEDULE OR FOR RECOGNITION AND ENFORCEMENT
OF ANY JUDGMENT IN RESPECT HEREOF OR THEREOF, TO THE EXCLUSIVE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK IN NEW YORK COUNTY, THE COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS
FROM ANY THEREOF, (B) CONSENT THAT ANY ACTION OR PROCEEDING SHALL BE BROUGHT IN
SUCH COURTS, AND WAIVE ANY OBJECTION THAT EACH MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT, (C) AGREE THAT SERVICE
OF PROCESS OF ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY CERTIFIED MAIL
(OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE APPROPRIATE
PARTY AT ITS ADDRESS AS SET FORTH HEREIN, AND SERVICE MADE SHALL BE DEEMED TO BE
COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR FIVE (5) DAYS AFTER THE SAME
SHALL HAVE BEEN POSTED AS AFORESAID, AND (D) AGREE THAT NOTHING HEREIN OR IN ANY
SCHEDULE SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER
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PERMITTED BY LAW. BORROWER AND LENDER EACH HEREBY UNCONDITIONALLY WAIVES ITS
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY SCHEDULE AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS
BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF OR THEREOF,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN BORROWER AND LENDER.
[The rest of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers as of the
day and year first above written.
LEASE EQUITY APPRECIATION FUND I, L.P. OFC CAPITAL, A DIVISION OF
ALFA FINANCIAL CORPORATION
By: LEAF Asset Management, Inc.,
its general partner
By: /s/ Crit XxXxxx By: /s/ Xxxxxx Xxxx
----------------------------- -------------------------
Name: Crit XxXxxx Name: Xxxxxx Xxxx
------------------------ -----------------------
Title: Chairman Title: President
----------------------- ----------------------
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