Exhibit 10.8
EXECUTION COPY
MICROFINANCIAL INCORPORATED
10-M Commerce Way
Woburn, MA 01801
WARRANT PURCHASE AGREEMENT
THE CIT GROUP/COMMERCIAL SERVICES, INC.
1211 Avenue of the Americas
New York, NY 10036
September 29, 2004
Ladies and Gentlemen:
The undersigned, MicroFinancial Incorporated, a Massachusetts corporation
(the "Company"), agrees to issue and sell to The CIT Group/Commercial Services,
Inc. ("CIT"), the Common Stock Purchase Warrants of the Company in the form of
Exhibit A hereto, all being on the terms and subject to the conditions contained
in this Agreement.
Accordingly, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINED TERMS
As used herein, the following terms shall have the respective meanings
assigned to them in this Article I:
"Agent" shall have the meaning ascribed to it in the Loan Agreement.
"Articles of Organization" shall have the meaning ascribed to that term in
Section 2.1(a) hereof.
"Closing" shall have the meaning ascribed to that term in Article IV
hereof.
"Closing Date" means the date of the Closing.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall have the meaning ascribed to that term in Section
2.1(a) hereof.
"Company" shall have the meaning ascribed to that term in the preamble
hereto.
"Effective Date of the Loan Agreement" shall mean the Closing Date, as
defined in the Loan Agreement.
"GAAP" shall have the meaning ascribed to that term in the Loan Agreement.
"Investor Consent" means, at any particular date, the consent, approval or
vote of the Majority Investors.
"Investors" means (i) CIT so long as CIT shall continue to own and hold of
record any of the Securities, (ii) each Permitted Transferee of CIT so long as
such Permitted Transferee shall continue to own and hold of record any of the
Securities, and (iii) each Permitted Transferee of any other Investor so long as
such Permitted Transferee shall continue to own and hold of record any of the
Securities.
"Lenders" shall have the meaning ascribed to that term in the Loan
Agreement.
"Loan Agreement" means that certain Revolving Credit Agreement, as amended
or modified from time to time, dated as of September _, 2004, by and among
Leasecomm Corporation, TimePayment Corp. LLC, the Lenders, and the Agent (as
defined therein).
"Majority Investors" means those Investors holding at least 50.1% of the
Common Stock issued or issuable upon exercise of the Warrants.
"NASDAQ" means the National Association of Securities Dealers automated
quotation system.
"Permitted Transferee" means any Person.
"Person" means an individual, corporation, partnership, joint venture,
trust, or unincorporated organization, or a government or any agency or
political subdivision thereof.
"Registration Rights Agreement" means that certain Registration Rights
Agreement dated the date hereof between the Company and CIT.
"SEC" means the United States Securities and Exchange Commission.
"Securities" means the Warrants and the Warrant Shares.
"Securities Act" means the Securities Act of 1933, as amended, or any
federal statute or code which is a successor thereto.
"Subsidiary" means, in relation to the Company at any particular time, any
other corporation more than fifty percent (50%) of the outstanding voting shares
in the capital of which shall be owned or controlled (whether directly or
indirectly) by the Company and/or by any one or more of the Company's other
Subsidiaries.
"Warrants" shall have the meaning ascribed to that term in Section 2.2(a)
hereof and shall in any event include all other warrants delivered in exchange
or in substitution therefor.
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"Warrant Shares" means the shares of Common Stock issuable upon exercise
of the Warrants.
ARTICLE II
REPRESENTATIONS OF THE COMPANY
The Company represents and warrants to the Lenders as follows:
SECTION 2.1 CAPITALIZATION OF COMPANY.
(a) The authorized capital stock of the Company will, on and as of the
Closing Date, consist of (i) 25,000,000 shares of Common Stock, par value $0.01
per share (the "Common Stock"), of which 13,410,646 shares were outstanding as
of September 29, 2004, and (ii) 5,000,000 shares of preferred stock, of which
zero (0) shares were outstanding as of September 29, 2004. A description of the
capital stock and of the voting powers, rights, and privileges thereof is stated
in the Company's Articles of Organization (herein, the "Articles of
Organization").
(b) Except as described in the Company's SEC Documents, there are no
existing options, warrants, calls, preemptive (or similar) rights, subscriptions
or other rights, agreements, arrangements or commitments of any character
obligating the Company to issue, transfer or sell, or cause to be issued,
transferred or sold, any shares of the capital stock of the Company or other
equity interests in the Company or any securities convertible into or
exchangeable for such shares of capital stock or other equity interests, and
there are no outstanding contractual obligations of the Company to repurchase,
redeem or otherwise acquire any shares of its capital stock or other equity
interests.
Section 2.2 AUTHORIZATION OF WARRANTS.
(a) The Company will, prior to the Closing Date, duly and properly
authorize the issuance to CIT (i) a Warrant evidencing rights to purchase shares
of the Company's Common Stock (each a "Warrant" and collectively, the
"Warrants") and (ii) the shares of Common Stock issuable by the Company upon
exercise of the Warrants.
(b) The Warrants will be exercisable commencing as of the date hereof in
accordance with the terms thereof at a price, subject to adjustment as therein
provided, of eighty-two and one-half cents ($0.8250) per Warrant Share. The
Warrants will be in substantially the form of Exhibit A annexed to this
Agreement.
Section 2.3 ADDITIONAL REPRESENTATIONS.
(a) Incorporation. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts and is qualified to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification, except where the failure to so qualify would not have a material
adverse effect upon the Company. The Company has all requisite corporate power
and authority to carry on its business as now conducted and to carry out the
transactions contemplated hereby.
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(b) Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution,
delivery and performance of the Warrants, this Agreement and the Registration
Rights Agreement and the consummation of the transactions contemplated herein
and therein has been taken. When executed and delivered by the Company, each of
this Agreement, the Warrants and the Registration Rights Agreement shall
constitute the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such may be limited
by bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights generally and by general equitable principles, and except as the same may
be limited by the indemnification obligations of the Company under the
Registration Rights Agreement. The Company has all requisite corporate power to
enter into this Agreement, the Warrants and the Registration Rights Agreement
and to carry out and perform its obligations under the terms of this Agreement,
the Warrants and the Registration Rights Agreement.
(c) Valid Issuance of the Shares. The Warrant Shares will, upon issuance
pursuant to the terms hereof, be duly authorized and validly issued, fully paid
and nonassessable and not subject to any encumbrances, preemptive rights or any
other similar contractual rights of the stockholders of the Company or others.
(d) Financial Statements. (i) The Company has furnished to CIT the
Company's consolidated and consolidating balance sheets as of December 31, 2003,
and its consolidated and consolidating statements of income, changes in
stockholders' equity and cash flow for the fiscal year then ended and related
footnotes, audited and certified by the Company's Accountants. The Company has
also furnished to CIT it's unaudited consolidated balance sheet as of June 30,
2004 and consolidated statement of income for the three months ended June 30,
2004 (the "Financial Statements") in each case certified by the principal
financial officer of the Company, subject to normal, recurring year-end
adjustments that shall not in the aggregate be material in amount. All such
financial statements were prepared in accordance with GAAP applied on a
consistent basis throughout the periods specified and present fairly the
financial position of the Company and its subsidiaries as of such dates and the
results of the operations of the Company and its subsidiaries for such periods.
At the date hereof, the Company has no Indebtedness or other material
liabilities, debts or obligations, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, including, but not limited to,
liabilities or obligations on account of taxes or other governmental charges,
that are not set forth on the Financial Statements or on Exhibit C to the Credit
Agreement.
(ii) Since the date of the Financial Statements, there have been no
changes in the assets, liabilities, financial condition, business or prospects
of the Company other than changes in the ordinary course of business, the effect
of which has not, in the aggregate, been materially adverse to the Company taken
as a whole.
(e) SEC Documents. The Company shall by the Closing furnish to each CIT, a
true and complete copy of the Company's Annual Report on Form 10-K for the year
ended December 31, 2003 (the "Annual Report") and any other statement, report,
registration statement (other than registration statements on Form S-8) or
definitive proxy statement filed by the Company with the SEC during the period
commencing December 31, 2003 and ending on the date hereof (the "SEC
Documents"). As of their respective filing dates, the SEC Documents complied in
all
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material respects with the requirements of the Exchange Act or the Securities
Act, as applicable, and none of the SEC Documents contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading, as of their
respective filing dates.
(f) Consents. Except for (i) the filing and effectiveness of any
registration required to be filed by the Company under the Securities Act in
connection with the exercise by any Investor of its rights under the
Registration Rights Agreement and (ii) any required state "blue sky" law filings
in connection with the transactions contemplated under such registration
statement, all consents, approvals, orders and authorizations required on the
part of the Company in connection with the execution, delivery or performance of
this Agreement, the Warrants and the Registration Rights Agreement and the
consummation of the transactions contemplated herein and therein have been
obtained and will be effective as of the Effective Date of the Loan Agreement.
(g) No Conflict. The execution and delivery of this Agreement, the
Warrants and the Registration Rights Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in any violation of or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under (i) any provision of the Articles of Organization or By-laws of
the Company or (ii) any material or instrument, permit, franchise, license,
judgment, order, statute, law, ordinance, rule or regulation, applicable to the
Company or its properties or assets.
(h) Brokers or Finders. Except as disclosed in the Credit Agreement or as
set forth on Schedule 2.3(h), the Company has not dealt with any broker or
finder in connection with the transactions contemplated by this Agreement, and
the Company has not incurred, and shall not incur, directly or indirectly, any
liability for any brokerage or finders' fees or agents commissions or any
similar charges in connection with this Agreement or any transaction
contemplated hereby.
(i) New York Stock Exchange. The Common Stock is listed on the New York
Stock Exchange.
(j) Absence of Litigation. There is no litigation, arbitration, proceeding
or investigation pending, or, to the knowledge of the Company's or any
subsidiary's officers, threatened, against the Company or any subsidiary that,
if adversely determined, may reasonably be expected to result in a material
judgment not fully covered by insurance (after giving effect to deductibles),
may reasonably be expected to result in a forfeiture of all or any substantial
part of the property of the Company or its subsidiaries, or may reasonably be
expected to have a Material Adverse Effect (as defined in the Credit Agreement)
on the assets, business or prospects of the Company and its subsidiaries taken
as a whole.
(k) Reserved.
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(l) Contracts. All contracts, agreements and instruments required to be
filed as an exhibit to the annual report of the Company are legal, valid,
binding and in full force and effect and, to the knowledge of the Company, are
enforceable by the Company in accordance with their respective terms, subject to
(a) laws of general application relating to bankruptcy, insolvency and the
relief of debtors, (b) rules of law governing specific performance, injunctive
relief or other equitable remedies, and (c) actions or omissions of Persons
other than the Company, provided, however, that the Company has no actual
knowledge of any material actions or omissions by such other Persons. Except as
disclosed in the Annual Report and other than contracts or agreements relating
exclusively to the Company's manufacturing activities, the Company has not
granted rights to manufacture, produce, assemble, license, market or sell its
products to any other person and is not bound by any contract or agreement that
materially restricts the Company's exclusive right to develop, manufacture,
assemble, distribute or sell its products.
(m) Subsidiaries; Joint Ventures. The Company has no subsidiaries other
than those listed on Exhibit C to the Credit Agreement. The Company is not a
participant in any joint venture, partnership, or similar arrangement material
to its business.
(n) Taxes. The Company and each subsidiary has filed all federal, state
and other tax returns required to be filed, and all material taxes, assessments
and other governmental charges due from the Company and each subsidiary have
been fully paid, except for such taxes, assessments or charges that are being
contested in good faith by appropriate proceedings and with respect to which (a)
adequate reserves have been established and are being maintained in accordance
with GAAP and (b) no lien has been filed to secure such taxes, assessments or
charges. All such contests at the date hereof are described on Exhibit C to the
Credit Agreement. As of the date hereof, the Company and its subsidiaries have
not executed any waiver that would have the effect of extending the applicable
statute of limitations in respect of tax liabilities. The federal and state
income tax returns of the Company and each subsidiary have not been audited or
otherwise examined by any federal or state taxing authority. The Company and
each subsidiary have established on their books reserves adequate for the
payment of all federal, state and other tax liabilities.
ARTICLE III
SALE AND PURCHASE OF WARRANTS AT CLOSING
At the Closing hereunder, the Company will issue and sell to CIT, subject
to the terms and conditions hereof and in reliance upon the written
representations and warranties of the Company, in consideration for CIT entering
into the Loan Agreement, a Warrant to subscribe for and purchase fifty thousand
(50,000) shares of Common Stock and the Company hereby acknowledges receipt of
such consideration.
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ARTICLE IV
THE CLOSING
The closing under this Agreement (the "Closing") will take place at 9:00
a.m., local time, on September 29, 2004, or at such other time and on such other
date as may be mutually agreed upon in writing by CIT and the Company. At the
Closing, the Company will (among other things) deliver to CIT the Warrants
purchased by CIT hereunder, and CIT will deliver to the Company the total
consideration payable by CIT for the Warrant.
ARTICLE V
REPRESENTATIONS OF CIT
CIT represents and warrants to the Company that:
(a) CIT is purchasing the Warrant from the Company in accordance with the
terms hereof for CIT's own account without a view to any distribution thereof in
violation of the Securities Act, but, subject, nevertheless, to any requirement
of law that the disposition of CIT's property shall at all times be within CIT's
control. CIT has been informed and understands that the Securities have not been
registered pursuant to the provisions of Section 5 of the Securities Act and
therefore cannot be offered, sold or transferred unless such Securities are
registered under the provisions of the Securities Act or an exemption from such
registration is available.
(b) CIT represents that it is an "accredited investor" within the meaning
of Rule 501(a) promulgated under the Securities Act. CIT has sufficient
knowledge and experience in investing in companies similar to the Company so as
to be able to evaluate the risks and merits of such an investment and is able
financially to bear the risks thereof.
(c) CIT agrees that each stock certificate or instrument representing or
evidencing any Securities shall bear a legend in or substantially in the
following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER, AND ARE SUBJECT
TO, THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY
NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT OR IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE 1933 ACT."
ARTICLE VI
COVENANTS OF COMPANY
The Company hereby covenants with each of the Investors that, except as
otherwise expressly permitted or provided, in any particular instance, by a
written Investor Consent:
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SECTION 6.1 RECORDS AND ACCOUNTS. The Company will (i) keep, and cause
each of its Subsidiaries to keep, true and accurate records and books of account
in which full, true and correct entries will be made in accordance with GAAP and
(ii) maintain adequate accounts and reserves for all taxes (including income
taxes), depreciation, depletion, obsolescence and amortization of its properties
and the properties of its Subsidiaries, contingencies, and other reserves.
SECTION 6.2 FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Company will deliver to each of the Investors at their request:
(a) as soon as practicable after the end of each Company fiscal year and
in any event within 90 days after the end of each such fiscal year, a
consolidated balance sheet of the Company and Subsidiaries as at the end of such
year, and the related statements of income and cash flows or shareholders'
equity of the Company and Subsidiaries setting forth in each case the
corresponding figures for the preceding fiscal year, such statements to be
certified by a firm of independent certified public accountants selected by the
Company;
(b) as soon as is practicable after the end of each fiscal quarter of each
Company fiscal year and in any event within 45 days thereafter, consolidated
balance sheet of the Company and Subsidiaries as of the end of such period and
the related statements of income and cash flows and shareholders' equity of the
Company and Subsidiaries, subject to changes resulting from year-end
adjustments, such balance sheet and statements to be prepared and certified by
an authorized representative of the company in an officer's certificate as
having been prepared in accordance with GAAP except for footnotes and year-end
adjustments; and
(c) contemporaneously with the filing or mailing thereof, copies of all
material of a financial nature filed with the Securities and Exchange Commission
or sent to the stockholders of the Company.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.
SECTION 7.1 SURVIVAL OF REPRESENTATIONS. The representations and
warranties of the Company and of CIT contained in this Agreement, or any
agreement, instrument or document delivered pursuant to any of the provisions of
this Agreement, shall survive the execution and delivery of this Agreement, any
examination or investigation conducted by or on behalf of the Company or CIT,
and the Closing hereunder.
SECTION 7.2 INDEMNIFICATION FOR MISREPRESENTATIONS. The Company agrees to
indemnify and hold the Investors harmless from and against, and to pay to the
Investors, on demand by the Investors from time to time, the full amount of any
loss, claim, damage, liability, cost or expense (including reasonable attorneys'
fees) resulting to the Investors from any false, incorrect or misleading
representation or warranty of the Company contained in this Agreement, or any
agreement, instrument or document delivered by the Company to the Investors
pursuant to any of the provisions of this Agreement.
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ARTICLE VIII
RESERVED
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NOTICES.
(a) All notices and other communications pursuant to this Agreement shall
be in writing, either delivered in hand, mailed by United States registered or
certified first-class mail, postage prepaid, sent by overnight courier, or sent
by telegraph, telecopy, facsimile or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(i) if to the Company, at the address of the Company set forth on
the first page hereof, or at such other address as shall have been furnished to
the Investors in writing by the Company and a copy thereof shall in any event be
simultaneously transmitted to Gerald P. Hendrick, Esq., Edwards & Angell, 101
Federal Street, Boston, MA 02110;
(ii) if to any Investor, at such addresses (in each case) as shall
have been furnished to the Company by such Investor in writing, and a copy
thereof shall in any event be simultaneously transmitted to Burton Winnick,
Esq., Gadsby Hannah LLP, 225 Franklin Street, Boston, MA 02110.
(b) Any notice or other communication pursuant to this Agreement shall be
deemed to have been duly given or made and to have become effective (i) if
delivered by hand, overnight courier or facsimile to a responsible officer of
the party to which it is directed, at the time of receipt thereof by such
officer or the sending of such facsimile or (ii) if sent by registered or
certified first-class mail, postage prepaid, on the third business day following
the mailing thereof.
SECTION 9.2 GOVERNING LAW. THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.3 AMENDMENTS AND WAIVERS.
(a) Except as otherwise provided by paragraph (b) of this Section 9.3, and
except as otherwise expressly required by any other provisions of this
Agreement, none of the terms or provisions contained in this Agreement, and none
of the agreements, obligations or covenants of the Company contained in this
Agreement, may be amended, modified, supplemented, waived or terminated unless
(i) the Company shall execute an instrument in writing agreeing or consenting to
such amendment, modification, supplement, waiver or termination, and (ii) the
Company shall receive a prior written Investor Consent therefor.
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(b) Each of the terms and provisions contained in this Section 9.3 or in
the definitions of Permitted Transferee, Investor Consent or Majority Investors
contained in Article I hereof may be amended, modified, supplemented, waived or
terminated only by a written instrument or consent signed by the Company and by
each of the Investors holding of record any Securities at the effective date
thereof.
(c) In connection with any action taken or to be taken pursuant to
paragraph (a) of this Section 9.3, there shall be no obligation or requirement
on the part of the Company, any of the Investors or any other Persons (i) to
solicit or to attempt to solicit from all of the Investors the consent or
approval of all of the Investors for such action, or (ii) to submit any notices
of any kind to all of the Investors in advance of any action proposed to be
taken pursuant to paragraph (a) of this Section 9.3. However, copies of all
written consents or approvals given by Investors in connection with any action
taken or to be taken pursuant to and in compliance with paragraph (a) of this
Section 9.3 shall be sent by the Company, promptly after the receipt thereof by
the Company, to each Investor who shall have failed or refused to give a written
consent or approval for such action. (d) Any action taken pursuant to and in
compliance with paragraph (a) of this Section 9.3 shall be binding upon the
Company and upon all of the Investors, including all of the Investors who shall
have failed or refused to give a written consent or approval for such action.
SECTION 9.4 RIGHTS AND OBLIGATIONS SEVERAL. The rights and obligations of
each of the parties hereto shall be several (and not joint), except as otherwise
expressly provided by this Agreement.
SECTION 9.5 NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the
part of any Investor in exercising any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.6 ASSIGNMENT. This Agreement shall inure to the benefit and be
binding upon CIT and its heirs, successors and assigns. The Company's
obligations under this Agreement shall not be assigned, and its duties under
this Agreement shall not be delegated.
SECTION 9.7 ENTIRE AGREEMENT. This Agreement, including Exhibit A hereto,
the Warrants and the Registration Rights Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersede any prior understandings or agreements concerning the subject matter
hereof.
SECTION 9.8 SEVERABILITY. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
SECTION 9.9 BINDING EFFECT. All of the covenants and agreements of the
Company contained in, and all of the rights granted by the Company pursuant to,
this Agreement, shall inure to the benefit of each Investor, including each of
the Permitted Transferees of such Investor. None of such covenants, agreements
or rights shall be assignable
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or transferable by any Investor to any Person except to a Person who is a
Permitted Transferee of such Investor.
SECTION 9.10 COUNTERPARTS. This Agreement may be executed simultaneously
in several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement. In making proof of
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart signed by each of the parties hereto.
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If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return such
counterpart to the undersigned, whereupon this Agreement, as so accepted by you,
shall become a binding agreement under seal between you and the undersigned.
Very truly yours,
MICROFINANCIAL INCORPORATED
By: /s/ Richard F. Latour
------------------------------------
Richard F. Latour, President
Dated as of: September 29, 2004
The foregoing Warrant Purchase Agreement with MicroFinancial Incorporated
is hereby accepted by the undersigned on and as of the date thereof.
INVESTOR:
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ Daniel B. Ciotti
------------------------------------
Daniel B. Ciotti, Vice President
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