Exhibit 10.202
RECEIVABLES PURCHASE AGREEMENT
THIS RECEIVABLES PURCHASE AGREEMENT (this "Agreement") is entered into
as of June 30, 1999, by and between LITCHFIELD FINANCIAL
CORPORATION, a Massachusetts corporation with its chief executive
office at 430 Main Street, Williamstown, Massachusetts 01267
("Seller") and FIRST MASSACHUSETTS BANK, N.A. a national banking
association with a place of business located at 99 West Street,
Pittsfield, Massachusetts 01201(the "Purchaser").
WHEREAS, the Seller now owns the consumer receivables specified on
Schedule 1 hereto (the "Receivables") representing purchase money
indebtedness of purchasers (each a "Consumer") of fee simple interests in
real property (each a "Property");
WHEREAS, the Receivables were acquired by the Seller from the
originators of the Receivables (each an "Originator");
WHEREAS, the Seller desires to sell the Receivables to the Purchaser in
accordance with the terms and conditions of this Agreement;
WHEREAS, the Purchaser desires to purchase the Receivables from the
Seller in accordance with the terms and conditions of this Agreement; and
WHEREAS, the Purchaser desires to engage the Seller to service the
Receivables upon the sale of the Receivables to the Purchaser and the Seller
desires to perform such services;
NOW THEREFORE, for and in consideration of the foregoing, and the
covenants and agreements hereinafter set forth and other good and valuable
consideration, the legal adequacy and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound hereby,
hereby agree:
1. Definition of Receivable; Sale and Purchase of Eligible
Receivables. (a) As used herein, the term "Receivable" shall mean with respect
to each Receivable specified on Schedule 1 hereto: each and every promissory
note, instrument, installment sales contract, contract for deed, purchase
contract, or other evidence of indebtedness executed and delivered by the
Consumer or any other Obligor (as defined in paragraph 4 below) to evidence
the obligation to repay indebtedness, each mortgage, deed of trust, or other
security instrument, if any, creating a first lien on the related Property
(each a "Mortgage"), each other instrument, document, guarantee, contract,
or agreement of whatever nature evidencing or securing the indebtedness of
the Consumer and each other Obligor incurred in connection with the purchase
of a Property, all guarantees or reserves provided by Originators securing
the Receivables, and all payments, revenues, proceeds, property, contract
rights, general intangibles, claims, powers, benefits and remedies arising
from, or in any way related to, any of the foregoing.
(b) Subject to the terms and conditions of this Agreement, the accuracy
of all representations and warranties of the Seller contained herein, and the
payment of the Purchase Price (as defined in Paragraph 3 below) by the
Purchaser to the Seller on the Closing Date (as defined in Paragraph 2
below), the Seller hereby agrees to sell to the Purchaser, and the Purchaser
hereby agrees to purchase from the Seller, the Receivables.
2. Closing Date; Conditions Precedent to Purchase of Receivables. The
"Closing Date" with respect to the Receivable shall be the date on which the
purchase and sale of the Receivables shall occur and be funded. As a
condition to closing, the Seller shall have delivered to the Purchaser or its
designee or collateral agent the documents with respect to each Receivable
specified on Schedule A hereto.
In addition, the obligation of the Purchaser to purchase the Receivables
is subject to the fulfillment of each of the following conditions:
(a) all Receivable Documents (as defined in paragraph 4 below) shall be
in form and substance satisfactory to the Purchaser and shall have been duly
executed by all parties thereto, with the signatures properly notarized and
the instruments in proper form for recordation, as required, and, where
applicable, shall have been recorded; provided that the Seller shall have (i)
15 days from the Closing Date to deliver to the Purchaser the original files
comprising the Receivable Documents and (ii) 90 days from the Closing Date to
have filed in the appropriate recording office(s) any executed assignments
necessary for assigning the Receivables or the Receivable Documents to the
Purchaser;
(b) all representations and warranties of the Seller contained herein
shall be true and correct as of the Closing Date; and
(c) the Seller shall be in compliance with all of its duties,
obligations and covenants contained herein.
3. Purchase Price. The purchase price (the "Purchase Price") for each
Receivable shall be the outstanding principal amount of the Receivable on the
Closing Date. The Purchase Price shall be paid by the Purchaser to the Seller
in immediately available funds on the Closing Date. In addition, on and
after the Closing Date the Seller shall be entitled to a deferred purchase
price (the "Deferred Purchase Price") payable in arrears on the 25th business
day of each month equal to the aggregate remaining cash collections from the
Receivables in the previous calendar month (each a "Remittance Period,"
provided that the first Remittance Period shall commence on the Closing Date
and end on July 31, 1999) after payment to the Purchaser of (i) the greater
of (A) all principal collected in respect of the Receivables during the
Remittance Period or (B) all scheduled principal payments due to be paid in
respect of the Receivables during the Remittance Period and (ii) interest
accrued on the outstanding principal balance of the Receivables during the
Remittance Period at a rate equal to the LIBOR Rate plus 180 basis points
(the "Pass-through Rate") (the foregoing required payment to the Purchaser on
each Remittance Date is referred to herein as the "Required Monthly
Payment"). As used herein "LIBOR Rate" shall mean the rate published in The
Wall Street Journal under "Money Rates" (or if such publication shall cease
to publish such rate, then the rate published in such other nationally
recognized publication as the Purchaser may from time to time specify) as the
average of the interbank offered rates for U.S. Dollar deposits in the London
interbank market for a term of 90 days, based on quotations at 5 major
banks. The LIBOR Rate for each day of a Remittance Period shall be the rate
so published on the first business day of such Remittance Period.
Payment to LFC of the Deferred Purchase Price on any Remittance Date
shall be subordinate to the payment to the Purchaser of the Required Monthly
Payment on such Remittance Date. In the event collections on the Receivables
during any Remittance Period are insufficient to pay the Required Monthly
Payment on the related Remittance Date after giving effect to the
subordination of the Deferred Purchase Price, the Seller shall advance such
shortfall to the Purchaser. Any such advance shall be reimbursed to the
Seller on subsequent Remittance Dates prior to payment of the Required
Monthly Payment on such Remittance Date. The Seller's repurchase obligation
in Paragraph 7 hereof shall be reduced to the extent of any unreimbursed
advances.
4. Representations and Warranties. To induce the Purchaser to execute
this Agreement and to purchase the Receivables, the Seller makes the
following warranties and representations to the Purchaser and its successors
and assigns, each of which is true and correct as of the date of this
Agreement and on and as of the Closing Date, with the understanding that all
of the warranties and representations contained herein shall survive each
closing of the purchase and sale of Receivables hereunder:
(a) With respect to each Receivable:
(i) each promissory note, instrument, installment sales contract,
contract for deed, purchase contract, or other evidence of indebtedness
evidencing the obligation to repay indebtedness, each Mortgage, if any, and
each other instrument, document, guarantee, contract, or agreement of
whatever nature evidencing or securing each Receivable (each of the
foregoing a "Receivable Document") has been duly executed and/or endorsed by
the Consumer and/or any other person or entity that is or who may become
obligated under the Receivable whether as the maker or guarantor (each an
"Obligor"). All recordings or filings required to effectively assign all
right, title and interest in and to the Receivable to the Purchaser have been
recorded or filed or will be filed and recorded during the 90 day period
referred to in Paragraph 2(a)(ii) above. Each Receivable Document represents
the genuine, legal, valid and binding obligation of each Obligor, enforceable
against each Obligor by the holder of the Receivable in accordance with its
terms. Each party to the Receivable Documents had legal capacity to enter
into the Receivable and to execute and deliver the Receivable Documents. No
fraud, omission, misrepresentation or similar occurrence with respect to a
Receivable has taken place on the part of any person;
(ii) the Receivable is not and will not be subject to any right of
rescission, set-off, recoupment, counterclaim or defense, including the
defense of usury, whether or not arising out of transactions relating to the
Receivable, and no Obligor has asserted either orally or in writing any
illegality, breach, defense, set-off or counterclaim or otherwise disputed,
contested or repudiated the Receivable or the related Property;
(iii) immediately prior to the purchase by the Purchaser, the Seller is
the sole owner of the Receivable, and the Seller has good, indefeasible and
marketable title thereto, and has full right to transfer and sell the
Receivable to the Purchaser, free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Receivable pursuant
to this Agreement. Upon the sale of each Receivable, the Seller will have
transferred and conveyed good, indefeasible and marketable title in and to
such Receivable to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim, or security
interest;
(iv) the related Mortgage, if any, secures and creates a first lien on
an estate in fee simple in real property and is a valid, subsisting and
enforceable first lien on the related Property, and the Property is not
subject to any other lien, mortgage, security interest claim or encumbrance.
The related Property has not been released from the lien of the Mortgage, in
whole or in part, except in consideration of principal payments which are
reflected in the principal balance of the Receivable;
(v) the solicitation, origination and servicing of the Receivable did
not, and the terms and conditions of the Receivable as of any date do not
and will not, contravene or violate any applicable laws, rules or regulations
(including, without limitation, laws, rules and regulations relating to
usury, consumer protection, truth in lending, fair credit billing, fair
credit reporting, real estate settlement procedures, disclosure, equal credit
opportunity, fair debt collection practices and privacy) and no party to the
related Receivable Documents is in violation of any such law, rule or
regulation. At the time of origination of the Receivable, the Originator was
qualified to transact business and in good standing in the jurisdiction in
which the Receivable was originated;
(vi) the Receivable is denominated and payable in United States dollars
in the United States and relates to a Property located in the United States;
(vii) no payment, in whole or in part, on the Receivable is more than
30 days contractually past due;
(viii) the Receivable was originated by the related Originator in the
ordinary course of its business and the Originator and the Seller have
fulfilled all of their obligations in respect thereof. The Receivable
evidences a purchase money obligation incurred by the Consumer solely for the
purpose of financing the Consumer's purchase of the related Property;
(ix) the Receivable is required to be paid pursuant to the terms of the
related Receivable Documents, has not been paid in full or been compromised,
adjusted, extended, re-negotiated, released, cancelled, satisfied,
subordinated, rescinded or modified, and is not subject to compromise,
adjustment, extension, satisfaction, subordination, rescission, or
modification. The Seller has not waived the performance by any Obligor of any
action, if the Obligor's failure to perform such action would cause the
Receivable to be in default, nor has the Seller waived any default resulting
from any action or inaction by the Obligor;
(x) there are no proceedings or investigations pending or threatened
(a) asserting the invalidity of the Receivable or (b) seeking to enforce the
payment of the Receivable or (c) involving the condemnation or public taking
of the Property related to the Receivable;
(xi) no Obligor is subject to any bankruptcy, insolvency or
reorganization law or proceeding;
(xii) the Mortgage, if any, contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the related Property of the benefits of
the security provided thereby. There is no homestead or other exemption
available to a Consumer that would interfere with the right to sell the
related Property at a trustee's sale or the right to foreclose the Mortgage;
(xiii) each Obligor is a natural person and citizen of the United
States or Canada and meets the Seller's creditworthiness standards; and
(xiv) To the best of the Seller's knowledge the related Property does
not possess the presence of Hazardous Materials and neither the current nor
any proposed operation of the Property is likely to cause the production or
location upon the Property of Hazardous Materials. As used herein,
"Hazardous Materials" means (a) those substances as defined as "hazardous
substances," "hazardous materials," "toxic substances," or "solid waste" in
CERCLA, RCRA, and the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et. seq., and in the regulations promulgated pursuant thereto;
(b) those substances designated as a "hazardous substance" under or pursuant
to the Federal Water Pollution Control Act, 33 U.S.C. S1257, et seq., and in
the regulations promulgated pursuant thereto; (c) those substances listed in
the United States Department of Transportation Table (40 CFR 172.101 and
amendments thereto) or by the Environmental Protection Agency (or any
successor agency) as hazardous substances (40 CFR Part 302 and amendments
thereto); and (d) such other substances and materials classified as hazardous
or toxic under any local, state or federal law or regulation;
(b) The Seller is duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each state wherein it owns or leases any
material properties if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Seller, and in any event the Seller and its business and operations are in
full compliance with all applicable federal, state and local laws and
regulations; the Seller has the full power, authority and legal right to
hold, transfer and convey the Receivables and to execute and deliver this
Agreement and to perform its obligations hereunder; the execution, delivery
and performance of this Agreement (including all instruments of transfer to
be delivered pursuant to this Agreement) by the Seller and the consummation
of the transactions contemplated hereby have been duly and validly authorized
by all necessary action; this Agreement and all agreements contemplated
hereby have been duly executed and delivered and constitute the valid, legal,
binding and enforceable obligations of the Seller, regardless of whether such
enforcement is sought in a proceeding in equity or at law; and all requisite
corporate action has been taken by the Seller to make this Agreement and all
agreements contemplated hereby valid and binding upon the Seller in
accordance with their terms;
(c) The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Seller, and the transfer,
assignment, and conveyance of the Receivables by the Seller pursuant to this
Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(d) Neither the execution and delivery of this Agreement, the sale of
the Receivables to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any
of the terms, conditions or provisions of the Seller's organizational
documents or any legal restriction or any agreement or instrument to which
the Seller is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse
effect upon any of its properties pursuant to the terms of any mortgage,
contract, deed of trust or other instrument, or impair the ability of the
Purchaser to realize on the Receivables or impair the value of the
Receivables;
(e) There is no action, suit, proceeding, or investigation pending or
threatened against the Seller which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Receivables or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform
under the terms of this Agreement;
(f) No consent of any other party and no consent, approval,
authorization or order of, or
registration or filing with, or notice to any court or governmental agency or
body is required for the execution, delivery or performance by the Seller of
or compliance by the Seller with this Agreement or the sale of the
Receivables or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the
Closing Date;
(g) All information heretofore or contemporaneously herewith furnished
by the Seller to the Purchaser for the purposes of or in connection with this
Agreement or any related document or any transaction contemplated hereby or
thereby is, and all information hereafter furnished by or on behalf of the
Seller to the Purchaser will be, true and accurate in every material respect
on the date as of which such information is dated or certified; and none of
such information is or will be incomplete by omitting to state any material
fact necessary to make such information not misleading;
(h) The Seller has delivered to the Purchaser such financial
information as requested by the Purchaser (including audited or unaudited
financial statements). All such financial statements fairly present the
pertinent results of operations and changes in financial position for each of
the periods requested and the financial position at the end of each such
period of the Seller and its subsidiaries and have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as set forth in the notes thereto.
There has been no material adverse change in the business, operations,
financial condition, properties or assets of the Seller since the date of the
Seller's financial statements delivered to the Purchaser;
(i) The Seller has not dealt with any broker, investment banker, agent
or other person that may be entitled to any commission or compensation in
connection with the sale of the Receivables;
(j) The Seller understands and agrees that the Purchaser, without
independent investigation, is relying upon the above representations and
warranties in purchasing the Receivables from the Seller. The Seller further
agrees that the foregoing representations and warranties shall be continuing
in nature and shall remain in full force and effect until such time as the
Receivables shall be paid in full.
5. Protective Covenants. So long as any of the Receivables remain
outstanding, the Seller shall:
(a) Take no actions which are inconsistent with the Purchaser's purchase
of the Receivables hereunder and take all actions as may reasonably be
requested to further prove and demonstrate the Purchasers definitive
purchase and the Seller's definitive sale of the Receivables hereunder;
(b) Upon the request of the Purchaser, execute or cause the execution,
acknowledgment and delivery of such further instruments (including, without
limitation, declarations of no set-off) and do such further acts as may be
necessary, desirable or proper to carry out more effectively or otherwise
further the purposes of this Agreement;
(c) Not take any action with respect to any Receivable which is
inconsistent with the
provisions and the purpose of this Agreement; and
(d) Not solicit any Customer to refinance any performing Receivable.
6. Repurchase Obligation. All Receivables purchased by the Purchaser
hereunder are sold by the Seller to the Purchaser subject to the right of the
Purchaser to require the Seller to repurchase at the Repurchase Price (as
hereinafter defined) (i) any Receivable for which the Seller has breached any
representation or warranty contained in paragraph 4(a) (each an "Ineligible
Receivable") and (ii) any Receivable which at any time becomes more than one
hundred and twenty (120) days contractually past due or which at any time
becomes more than ninety (90) days contractually past due with respect to
which no payment has been made in the preceding 90 days (each a "Defaulted
Receivable"). The obligation of the Seller to purchase Defaulted Receivables
shall be limited to 10% of the principal balance of the Receivables at the
Closing Date (subject to reinstatement in the amount of any recovery proceeds
received by the Seller from the liquidation of any Defaulted Receivables
repurchased by the Seller). Immediately upon any Receivable becoming an
Ineligible Receivable or a Defaulted Receivable, the Seller shall repurchase
the Ineligible Receivable or Defaulted Receivable at a price (the "Repurchase
Price") equal to the then outstanding principal amount of the related
Receivable together with all accrued and unpaid interest accrued at the
Pass-through Rate to the date of repurchase. The Seller shall have thirty
(30) days after the date of notice by the Purchaser to repurchase an
Ineligible Receivable or Defaulted Receivable. Upon the repurchase of any
Ineligible Receivable or Defaulted Receivable hereunder, the Purchaser shall
convey and transfer back to the Seller, without recourse or warranty of
whatever nature, the Ineligible Receivable or Defaulted Receivable.
7. Servicing. (a) The Purchaser hereby engages and authorizes the
Seller to service and administer the Receivables in accordance with the terms
of this Paragraph 7. The Seller agrees that (i) its servicing of the
Receivables shall be carried out in accordance with the Seller's credit
criteria and prudent, customary and usual procedures of financial
institutions which service assets similar to the Receivables and, (ii) to the
extent more exacting, the procedures which the Seller would use if the
Receivables were beneficially owned by the Seller. The Seller, and its
officers, employees, and agents and representatives shall be responsible for
servicing of the Receivables, including, without limitation, the processing,
application and collection of payments due under the Receivable, the
accounting functions with regard to the Receivables, and such other
administrative actions as the Seller and the Purchaser shall deem necessary
and desirable.
(b) Subject to the provisions herein, the Seller shall have full power
and authority, acting alone and subject only to the specific requirements and
prohibitions of this Paragraph 7, to do and take any and all actions, or to
refrain from taking any such actions and to do any and all things in
connection with such servicing and administration which it may deem necessary
or desirable, including, without limitation, calculating and compiling
information required in connection with any report to be delivered pursuant
to this Paragraph 7. Without limiting the generality of the foregoing, but
subject to the provisions of this Paragraph 7, the Seller is hereby
authorized and empowered by the Purchaser on behalf of and for the benefit of
the Purchaser (i) to execute and deliver, in the Seller's own name, on behalf
of the Purchaser, any and all instruments of satisfaction or cancellation, or
of partial or full release or discharge, and all other comparable
instruments, with respect to the Receivables, including, without limitation,
consenting to sales, transfers or encumbrances of the collateral or
assignments and assumptions of the Receivable Documents, all in accordance
with the terms of the Receivables and the Receivable Documents, (ii) take any
and all actions or refrain from taking any action to enforce, foreclose upon,
exercise any right, remedy or privilege in respect of, manage, administer,
settle, compromise, or amend, modify, supplement, otherwise deal with the
Receivables and the Receivable Documents and (iii) grant or withhold consent
or approvals under the Receivables and the Receivable Documents, including,
without limitation (A) the right to approve any amendment, modification
(including any modification to any Receivable having a balloon principal
payment to provide for monthly amortization payments), or waiver of any
provision of the Receivable Documents; (B) controlling of the collection and
enforcement of the Receivable Documents or realization thereon by suit,
foreclosure, set-off, or otherwise; (C) consulting with legal counsel
(including counsel for the Obligor), independent public accountants and other
experts; (D) the employing of agents and attorneys-in-fact; (E) inspection of
the subject real property; (F) the disbursement of insurance proceeds for the
repair of damaged property; (G) the performance of such other matters as the
Seller may deem necessary. Notwithstanding the foregoing, the Purchaser
shall be notified of any proposed material modification to the terms of a
Receivable covered by this Agreement and such a material modification may be
made only if the Purchaser consents to such material modification.
(c) In connection with its servicing and administration of the
Receivables, the Seller will provide the Purchaser with periodic reports in a
form agreeable to the Purchaser. Such reports will be delivered on such
periodic basis as will be agreed by the parties from time to time, but in no
event less often than monthly.
(d) After the occurrence of an event of default under a Receivable, or
an event which with the lapse of time would be an event of default under a
Receivable, the Purchaser shall be notified of such event and shall have the
right, but not the obligation, to administer, manage, perform, and enforce
the terms of such Receivable and the related Receivable Documents (including,
without limitation, the right to foreclose on any Mortgage securing such loan
and security). The Purchaser may exercise such rights directly or indirectly,
by directing the Seller as to the desired course of action with regard to
such Receivable, or employ others to do so. The Purchaser shall not have the
foregoing rights with respect to Receivables that have been repurchased by
the Seller.
(e) The Seller's and the Purchaser's obligations hereunder shall
terminate with respect to a Receivable at the close of business at the
earliest of (i) the date that the obligations of the Obligor to make payments
or perform with respect to a Receivable shall have been irrevocably satisfied
in full in accordance with the terms of the Receivable Documents and all
obligations under this Agreement are satisfied; or (ii) the repurchase of a
Receivable by Seller in accordance with Section 6 hereof (except for the
obligation to reinstate the Seller's repurchase obligation under Paragraph 6
hereof in the event of any recoveries in respect of such Receivable) or (iii)
with respect to each Receivable, the Purchaser's assignment of its interest
in the Receivable; provided, however, this Agreement shall remain in full
force and effect with respect to the remaining Receivables. The parties may
also terminate this Agreement at any time upon mutual agreement.
(f) The Seller, in its capacity as servicer, shall have the right to
purchase all, but not less than all, of the Receivables at any time after
which the outstanding principal amount of the Receivables is equal to or less
than 10% of the outstanding principal balance of the Receivables on the
Closing Date. The purchase price for such Receivables shall be the Repurchase
Price on the date of purchase.
8. Relationship of Parties. The relationship between the Seller and
the Purchaser is and shall be that of a seller and purchaser, not a
debtor-creditor relationship. Neither this Agreement nor the performance
hereof shall be deemed as creating a joint venture or a partnership between
the Seller and the Purchaser or any employer-employee, agency or other
relationship of any nature. Each transfer of a Receivable to the Purchaser
hereunder constitutes an outright sale and assignment, negotiated at arm's
length, by the Seller to the Purchaser of all of the Seller's legal and
equitable ownership interest in such Receivable and in no way shall any such
transfer be construed as an extension of credit by the Purchaser to the
Seller or any Obligor. The Purchaser does not in any respect assume or incur
any obligation, liability or tax of the Seller with respect to the
Receivables or otherwise.
9. Notices. Any notice, approval, consent or other communication under
this Agreement shall be in writing and shall be considered given when (1)
delivered personally, or (2) mailed by registered or certified mail, return
receipt requested or (3) transmitted by telecopy with a confirming copy sent
by overnight mail or courier service to the parties at the addresses
indicated below (or at such other address as a party may specify by notice to
the others pursuant hereto). Notice given by a party's counsel shall be
considered notice given by that party.
(a) If to the Seller, to it at:
Litchfield Financial Corporation
430 Main Street
Williamstown, MA 01267
Attention: James Shippee
Telecopier No. 413-458-1015
(b) If to the Purchaser, to it at:
First Massachusetts Bank
99 West Street
Pittsfield, MA 01201
Attention: Richard Henderson
Telecopier No. 413-442-6983
(c) In each, with a copy to:
Cain, Hibbard, Myers & Cook, PC
66 West Street
Pittsfield, MA 01201
Attention: Michael E. MacDonald, Esquire
Telecopier No. 413-443-7694
and
Litchfield Financial Corporation
430 Main Street
Williamstown, MA 01267
Attention: John J. Malloy, Esquire
Telecopier 413-458-1015
10. Rights of the Purchaser. The Seller shall, upon the request of the
Purchaser or the Purchaser's assigns, do everything reasonably necessary or
advisable to put the Purchaser in a position to enforce the payment of all
Receivables and security interests or instruments covered by this Agreement
(including the execution of separate endorsements and assignments) or to
exercise all other rights and remedies that the Seller would have with
respect to the Receivables and security interests or instruments but for
their purchase by and assignment to the Purchaser.
11. Intention as True Sale. It is the express intention of the parties
hereto that the sale and purchase of Receivables hereunder is to absolutely
be categorized as a true sale of the Receivables rather than a conveyance as
security for the repayment of indebtedness. However, to the extent that the
transfers described herein are subsequently determined or found not to be a
sale under applicable law, it is fully and completely intended that this
agreement shall constitute a security agreement under applicable law and that
the Seller does hereby grant to the Purchaser and shall be deemed to have
granted to the Purchaser a first priority security interest in (i) all of the
Seller's right, title and interest in, to and under the Receivables,
including without limitation all payments of interest and principal received
by the Seller subsequent to the date of delivery of the Receivables to the
Purchaser, (ii) all of the Seller's right, title and interest in, to and
under the Receivables Documents related to the Receivables, if any, which are
being conveyed and assigned to the Purchaser by the Seller, (iii) all of the
Seller's servicing records as they relate to Receivable which are
contemporaneously being delivered to the Purchaser by the Seller, (iv) all
other property rights of whatever nature being conveyed by the Seller to the
Purchaser hereunder, and (v) any interest on or other proceeds from the
foregoing and all replacements and substitutions associated with the
foregoing.
12. No Third-Party Beneficiary. Notwithstanding anything to the
contrary contained herein, the parties hereto hereby expressly acknowledge
and agree that the terms and provisions set forth in this Agreement are
intended to inure solely to the benefit of the parties hereto and their
respective successors and assigns.
13. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties concerning the sale and purchase of the
Receivables, and merges and extinguishes all prior agreements, understandings
and negotiations, and no amendments or modifications hereof shall be valid
unless they are in writing and signed by all of the parties hereto.
14. Assignment; Binding Effect. All of the terms, covenants,
conditions, representations and warranties hereof shall inure to the benefit
of, and be binding upon, the successors and assigns of the parties hereto.
15. Interpretation. Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa,
and each gender will include any other gender. All paragraph headings are for
convenience only and do not define or limit any terms or provisions. The
invalidity or unenforceability of any one or more provisions of this
Agreement will in no way affect any other term or provision. This Agreement
shall not be construed more strictly against any one party than against any
other party, merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that all of the parties
hereto and their respective counsel have contributed substantially and
materially to the preparation of this Agreement.
16. Choice of Law. This Agreement and the transactions contemplated
hereunder shall be governed by and interpreted in accordance with the laws of
the Commonwealth of Massachusetts, without regard to the choice-of-law
provisions thereof.
17. WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION. EACH OF THE
SELLER AND THE PURCHASER WAIVES ITS RIGHT TO A JURY TRIAL IN THE EVENT OF ANY
DISPUTE OR LITIGATION ARISING HEREUNDER OR UNDER ANY RELATED DOCUMENT
EXECUTED IN CONNECTION HEREWITH. THE PARTIES HERETO COVENANT AND AGREE THAT
THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY AND ALL MATTERS AND
DISPUTES ARISING HEREUNDER SHALL OCCUR AND TAKE PLACE IN THE U.S. DISTRICT
COURT FOR THE DISTRICT OF MASSACHUSETTS, WESTERN SECTION OR A MASSACHUSETTS
STATE COURT LOCATED IN BERKSHIRE COUNTY, MASSACHUSETTS.
18. Multiple Counterparts. This agreement may be executed in multiple
counterparts, each of which, when read collectively, shall constitute a
single document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
FIRST MASSACHUSETTS BANK
_______________
_______________By: /s/ Richard Henderson
_______________Title: Vice President
_______________LITCHFIELD FINANCIAL CORPORATION
_______________
_______________By: /s/ John Malloy
_______________Title: Senior Vice President