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EXHIBIT 10.31
FORM OF NOTES
THIS NOTE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OR THE
SECURITIES LAWS OF ANY STATE. NO TRANSFER OF THIS NOTE SHALL BE MADE UNLESS THAT
TRANSFER IS MADE IN A TRANSACTION WHICH DOES NOT REQUIRE REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES ACT OR UNDER APPLICABLE STATE SECURITIES OR
"BLUE SKY" LAWS. IN THE EVENT THAT A TRANSFER IS TO BE MADE, THE PROSPECTIVE
TRANSFEREE OF THE HOLDER HEREOF SHALL DELIVER TO THE INDENTURE TRUSTEE (I) AN
INVESTMENT LETTER SUBSTANTIALLY IN THE FORM SET FORTH IN AN EXHIBIT TO THE
INDENTURE OR (II) AN OPINION OF COUNSEL THAT THE TRANSFER IS EXEMPT FROM SUCH
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES ACT (WHICH OPINION SHALL NOT
BE AT THE EXPENSE OF THE ISSUER, THE INDENTURE TRUSTEE, THE SERVICER OR THE
TRUST ESTATE). NEITHER THE ISSUER NOR THE INDENTURE TRUSTEE IS OBLIGATED TO
REGISTER OR QUALIFY THE NOTES UNDER THE SECURITIES ACT OR ANY OTHER SECURITIES
LAW. THE PURCHASER OF THIS NOTE AGREES THAT IT WILL, AND EACH SUBSEQUENT
TRANSFEREE IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE OF THE RESALE
RESTRICTIONS REFERRED TO ABOVE.
DUE TO THE PROVISIONS FOR THE PAYMENT OF PRINCIPAL CONTAINED HEREIN, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF. ANYONE PURCHASING THIS NOTE MAY ASCERTAIN THE OUTSTANDING
PRINCIPAL AMOUNT HEREOF BY INQUIRY OF THE INDENTURE TRUSTEE.
No. [] $[]
CUSIP NO. 55274AAB6
MFI FINANCE CORP. I
6.939% CONTRACT-BACKED NOTE, SERIES 2000-2
THE FULL AND COMPLETE PAYMENT OF FINAL PRINCIPAL OF, AND INTEREST ON, THIS
NOTE IS UNCONDITIONALLY AND IRREVOCABLY INSURED AT THE TIMES SPECIFIED IN, AND
SUBJECT TO THE TERMS OF, A FINANCIAL GUARANTY INSURANCE POLICY
ISSUED BY AMBAC ASSURANCE CORPORATION.
Registered Owner: []
DELIVERY DATE: [] STATED MATURITY DATE: June 16, 2006
MFI Finance Corp. I, a corporation duly organized and existing under
the laws of the Commonwealth of Massachusetts (the "Issuer," which term includes
any successor entity under the Indenture referred to below), for value received,
hereby promises to pay to the Registered Owner, or its registered assigns, the
principal sum of [___________________________DOLLARS AND ____CENTS ($__)] in
monthly installments beginning on January 16, 2001, and to pay interest monthly
in arrears on the unpaid portion of said principal sum (and, to the extent that
the payment of such interest shall be legally enforceable, on any overdue
installment of interest on this Note) on the sixteenth day of each calendar
month or, if such sixteenth day is not a Business Day, the Business Day
immediately following (each, a "Payment Date"), for the period from and
including the Delivery Date set forth above through January 15, 2001, and
thereafter, monthly from and including the most recent Payment Date through the
day immediately preceding the applicable Payment Date, until the last day
preceding
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the Final Payment Date, at the rate of 6.939% per annum (calculated on the basis
of a 360-day year consisting of 12 months of 30 days each).
The principal of this Note shall be payable in installments ending no
later than the Stated Maturity Date hereof unless this Note becomes due and
payable at an earlier date by declaration of acceleration, call for redemption
or otherwise. All reductions in the principal amount of a Note effected by
payments of installments of principal made on any Payment Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not such payment is noted on this Note. Each installment of principal
payable on this Note shall be in an amount equal to this Noteholder's pro-rata
share of the Principal Distribution Amount and the Additional Principal Amount,
if any, available to be paid to Noteholders of this Series in accordance with
the priorities of Section 12.02(d) of the Indenture. The principal payable on
this Note shall be paid on each Payment Date beginning on the Initial Payment
Date and ending on the applicable Final Payment Date. All payments of principal
with respect to all of the Notes shall be made on a pro rata basis based upon
the ratio that the Outstanding Principal Amount of a Note bears to the
Outstanding Principal Amount of all Notes; provided, however, that if as a
result of such proration a portion of such principal would be less than $.01,
then such payment shall be decreased to the nearest whole cent, and no
subsequent adjustment shall be made in respect thereof.
The principal and interest on this Note are payable by wire transfer in
accordance with the terms of the Indenture.
This Note is one of a duly authorized issue of Notes of the Issuer
designated as its 6.939% Contract-Backed Notes, Series 2000-2, Due June 16, 2006
(herein called the "Notes") issued and to be issued under the Indenture, dated
as of March 1, 2000, and the Supplement to Indenture, Contract Backed Notes,
Series 2000-2, dated as of December 1, 2000 (together, the "Indenture"), among
the Issuer, MicroFinancial Incorporated (formerly known as Boyle Leasing
Technologies, Inc.), as Servicer, and Wells Fargo Bank Minnesota, National
Association (successor to Norwest Bank Minnesota, National Association), as
Indenture Trustee (the "Indenture Trustee," which term includes any successor
Indenture Trustee under the Indenture), to which the Indenture, and all
indentures supplemental thereto, reference is hereby made for a statement of the
respective rights thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered. Each capitalized term used and not otherwise
defined herein has the meaning assigned thereto in the Indenture. This Note is
issued under and is subject to the terms, provisions and conditions of the
Indenture to which the Holder of this Note by virtue of the acceptance hereof
assents and by which such Holder is bound.
The property of the Trust Estate includes certain Contract Assets and
certain other assets described in the Indenture. The Notes are payable out of
the Trust Estate pari passu among the Noteholders equally and ratably without
prejudice, priority or distinction between any Note by reason of time of issue
or otherwise.
Unless earlier declared due and payable by reason of an Event of
Default, the Notes are payable only at the time and in the manner provided in
the Indenture and are not redeemable or prepayable at the option of the Issuer
before such time, except that the Notes shall be redeemable at the option of the
Issuer, and in the absence of the exercise thereof, by the Note Insurer in whole
but not in part at any time after the Outstanding Principal Amount of the Notes
declines below 10% of the Outstanding Principal Amount as of the Delivery Date
at the applicable Redemption Price plus any fees due under the Indenture. If an
Event of Default as defined in the Indenture shall occur and be continuing, the
principal of all the Notes may become or be declared due and payable in the
manner and with the effect provided in the Indenture.
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As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Note Register of
the Issuer upon surrender of this Note for registration of transfer at the
office or agency of the Issuer in the United States of America maintained for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Indenture Trustee and duly
executed by the holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of the same Stated Maturity of authorized
denominations and for the same initial aggregate principal amount will be issued
to the designated transferees.
Prior to due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee shall treat the Person in whose name this Note is registered as the
owner hereof for the purpose of receiving payment as herein provided and for all
other purposes whether or not this Note be overdue, and neither the Issuer, the
Indenture Trustee, nor any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer, the Trustee, the Back-up Servicer, the Servicer and the Note
Insurer without the consent of the Holders of the Notes. The Indenture also
contains provisions permitting the Note Insurer, on behalf of the Holders of all
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver shall be conclusive and binding upon the Holder of
this Note and upon all future Holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The Notes are issuable only in registered form without coupons in such
authorized denominations as provided in the Indenture and subject to certain
limitations therein set forth.
This Note and the Indenture shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
conflicts of laws principles.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note,
but solely from the assets of the Trust Estate pledged to the Indenture Trustee
under the Indenture and the Note Insurance Policy at the times, place and rate,
and in the coin or currency, herein prescribed.
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STATEMENT OF INSURANCE
OBLIGATIONS: $50,561,633.11 (aggregate) POLICY NUMBER: AB0412BE
MFI Finance Corp. I
6.939% Contract-Backed Notes, Series 2000-2
The Note Insurer, in consideration of the payment of the premium and
subject to the terms of a Note Insurance Policy to be issued by the Note Insurer
to the Indenture Trustee for the benefit of the holders of the Series 2000-2
Notes (the "Note Insurance Policy"), will unconditionally and irrevocably agree,
for the benefit of the Holders (as defined below) that an amount equal to each
Insured Amount and Preference Amount (each as defined below) will be paid by the
Note Insurer to (i) in the case of an Insured Amount, the Indenture Trustee, as
trustee for the Holders, on behalf of the Holders, or (ii) in the case of a
Preference Amount, the receiver, conservator, debtor-in-possession or trustee in
bankruptcy, or the Indenture Trustee, as set forth below, in each case after a
claim by the Indenture Trustee for such Insured Payment is made to the Note
Insurer pursuant to a Notice (as defined below). The Note Insurer's obligations
under the Note Insurance Policy with respect to a particular Insured Amount or
Preference Amount shall be discharged to the extent funds equal to the
applicable Insured Amount or Preference Amount, as the case may be, are received
by the Indenture Trustee or, in the case of a Preference Amount, such other
entity described below, whether or not such funds are properly applied by the
Indenture Trustee or such other entity. Insured Payments shall be made only at
the time set forth in the Note Insurance Policy and no accelerated Insured
Payments shall be made regardless of any acceleration or early redemption of the
Series 2000-2 Notes, unless such acceleration is at the sole option of the Note
Insurer.
The Note Insurance Policy does not cover (i) premiums, if any, payable
in respect of the Series 2000-2 Notes, (ii) shortfalls, if any, attributable to
any payment of withholding taxes (including penalties and interest in respect of
any such liability) or (iii) any risk other than nonpayment, including the
failure of the Indenture Trustee to make any disbursements of available funds
required under the Indenture to the Holders of the Series 2000-2 Notes.
The Note Insurer will pay any Insured Amount (other than Preference
Amounts) payable under the Note Insurance Policy no later than 12:00 noon, New
York City time, on the second Business Day following receipt in New York, New
York on a Business Day by the Note Insurer of a Notice; provided that if such
Notice is received after 12:00 noon, New York City time, on such Business Day,
it will be deemed to be received on the following Business Day. If any such
Notice received by the Note Insurer is not in proper form or is otherwise
insufficient for the purpose of making a claim under the Note Insurance Policy,
it shall be deemed not to have been received by the Note Insurer for purposes of
this paragraph, and the Note Insurer shall promptly so advise the Indenture
Trustee in writing and the Indenture Trustee may resubmit an amended or
corrected Notice. If such an amended or corrected Notice is in proper form and
is otherwise sufficient for the purpose of making a claim under the Note
Insurance Policy, it shall be deemed to have been timely received on the
Business Day of such resubmission subject to the proviso above.
The Note Insurer will pay any Preference Amount, to or on behalf of a
Holder as provided below, on the later of (x) in the case of principal payments
only, the Principal Draw Date and (y) the third Business Day following receipt
on a Business Day by the Note Insurer of: (i) a certified copy of a final,
non-appealable order of a court or other body exercising jurisdiction in the
applicable Insolvency Proceeding to the effect that such Holder is required to
return such Preference Amount paid during the term of the Note Insurance Policy
because the payments of such amounts were avoided as a preferential transfer or
otherwise rescinded or required to be
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restored by such Holder (the "Order"); (ii) an assignment in such form as is
reasonably required by the Note Insurer, irrevocably assigning to the Note
Insurer all rights and claims of such Holder relating to or arising under the
Indenture or otherwise with respect to such Preference Amount; (iii) appropriate
instruments to effect the appointment of the Note Insurer as agent for such
Holder in any legal proceeding related to such Preference Amount, such
instruments being in a form satisfactory to the Note Insurer; and (iv) a Notice
appropriately completed and executed by the Indenture Trustee; provided that if
such documents are received by the Note Insurer after 12:00 noon New York City
time on such Business Day, they will be deemed to be received on the following
Business Day. Such payment shall be disbursed to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the Order, and not to the
Indenture Trustee or any Holder directly, unless the Indenture Trustee or such
Holder has made a payment of the Preference Amount to the court or such
receiver, conservator, debtor-in-possession or trustee in bankruptcy named in
the Order, in which case the Note Insurer will pay the Indenture Trustee,
subject to the delivery of (a) the items referred to in clauses (i), (ii), (iii)
and (iv) above to the Note Insurer and (b) evidence satisfactory to the Note
Insurer that payment has been made to such court or receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the Order.
The Note Insurance Policy is noncancellable. The premium on the Note
Insurance Policy is not refundable for any reason including payment, or
provision being made for payment, prior to the maturity of the Series 2000-2
Notes.
Insured Payments payable under the Note Insurance Policy unless
otherwise stated therein will be disbursed by the Note Insurer by wire transfer
of immediately available funds in the amount of the Insured Amount or Preference
Amount, as applicable, less, in the case of Preference Amounts, any amount held
by the Indenture Trustee for the payment of such Preference Amount and legally
available therefor.
Solely the Indenture Trustee on behalf of the Holders shall have the
right to make a claim for an Insured Payment under the Note Insurance Policy.
Subject to the terms of the Indenture, the Note Insurer shall be
subrogated to the rights of each Holder to receive payments under the Series
2000-2 Notes to the extent of any payment by the Note Insurer under the Note
Insurance Policy.
As used in the Note Insurance Policy, the following terms shall have
the following meanings:
"Holder" means each holder of a Series 2000-2 Note (other than
the Issuer or any other obligor upon the Series 2000-2 Notes or any
affiliate of the Issuer or such other obligor) who, on the applicable
Payment Date, is entitled under the terms of the applicable Series
2000-2 Note, to payment thereunder.
"Insolvency Proceeding" means, with respect to any entity, the
commencement of any bankruptcy, insolvency, readjustment of debt,
reorganization, marshaling of assets and liabilities or similar
proceeding by or against such entity, or the commencement, after the
date of the Note Insurance Policy, of any proceeding by or against such
entity for the winding up or liquidation of its affairs, or the consent
after the date of the Note Insurance Policy to the appointment of a
trustee, conservator, receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, reorganization, marshaling of assets
and liabilities or similar proceeding relating to such entity.
"Insured Amounts" means (i) with respect to any Payment Date,
the Interest Deficiency Draw Amount (as defined in the Indenture) with
respect to the Series 2000-2 Notes for such Payment Date and (ii) with
respect to the Principal Draw Date, the Note Principal Balance
Deficiency (as defined in the
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Indenture) on the Principal Draw Date, not to exceed $50,561,633.11,
with respect to the Series 2000-2 Notes on the 2000-2 Stated Maturity
Date plus any Interest Deficiency Draw Amount with respect to the
2000-2 Notes on such date.
"Insured Payments" means (i) with respect to any Payment Date,
the aggregate amount actually paid by the Note Insurer to the Indenture
Trustee in respect of Insured Amounts for such Payment Date and (ii)
Preference Amounts for any given Business Day.
"Notice" means the telephonic or telegraphic notice (promptly
confirmed in writing by telecopy) substantially in the form of Exhibit
A or B, as applicable, to the Note Insurance Policy, the original of
which is subsequently delivered by registered or certified mail, from
the Indenture Trustee specifying the amount of any Insured Payment that
shall be due and owing. Such Notice shall be deemed received upon
telephonic confirmation to the Indenture Trustee by the Note Insurer of
the receipt of the telecopy.
"Preference Amount" means any payment of principal of or
interest on a Series 2000-2 Note that has become due and payable
pursuant to the terms of the Indenture, that was made to a Holder by or
on behalf of the Issuer (including any such payment by the Indenture
Trustee or any payment agent) and that has been deemed a preferential
transfer and recoverable, or theretofore recovered, from such Holder
pursuant to an Order.
Capitalized terms used in the Note Insurance Policy and not otherwise
defined therein will have the respective meanings set forth in the Indenture as
of the date of the execution of the Note Insurance Policy, without giving effect
to any subsequent amendment or modification to the Indenture unless such
amendment or modification has been approved in writing by the Note Insurer.
No wavier of any rights of the Note Insurer, the Holders or the Trustee
or consent by any of them shall be valid unless signed by an authorized officer
or agent thereof.
The Note Insurance Policy is being issued under and pursuant to, and
shall be construed under, the laws of the State of New York, without giving
effect to the conflict of laws principles thereof.
THE INSURANCE PROVIDED BY THE NOTE INSURANCE POLICY IS NOT COVERED BY
THE PROPERTY/CASUALTY INSURANCE SECURITY FUND SPECIFIED IN ARTICLE 76 OF THE NEW
YORK INSURANCE LAW.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, MFI Finance Corp. I has caused this Note to be
signed, manually, by its Treasurer.
By:_____________________________
Treasurer
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CERTIFICATE OF AUTHENTICATION
This is one of the 6.939% Contract-Backed Notes Series 2000-2 described
in the within-mentioned Indenture.
Dated: December ___, 2000
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
By:______________________________
Authorized Signatory