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EXHIBIT 10.31
FIFTH AMENDMENT
TO
AMENDED AND RESTATED
LOAN AGREEMENT
AMONG
LEASECOMM CORPORATION,
AS BORROWER,
THE LENDERS NAMED HEREIN
AND
FLEET BANK, NATIONAL ASSOCIATION, AS AGENT
JANUARY 27, 1999
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FIFTH AMENDMENT TO AMENDED AND RESTATED
LOAN AGREEMENT
FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") made as of the 27th day of January, 1999 by and among LEASECOMM
CORPORATION, a Massachusetts corporation (the "Borrower"), FLEET BANK, N.A., a
national banking association, in its individual corporate capacity, and FIRST
UNION NATIONAL BANK (as successor to CORESTATES BANK, N.A.), a national banking
association, (individually, a "Lender" and, collectively, the "Lenders"), and
FLEET BANK, N.A., as agent for the Lenders (the "Agent"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed thereto
in the Loan Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties
to a Loan Agreement dated as of July 29, 1993, as amended and restated as of
July 28, 1995, as further amended by the First Amendment to Amended and Restated
Loan Agreement made as of October 30, 1995, the Second Amendment to Amended and
Restated Loan Agreement made as of August 6, 1996, the Third Amendment to Loan
Agreement and Consent made as of the August 11, 1998, and the Fourth Amendment
to Amended and Restated Loan Agreement made as of July 31, 1998 (the "Loan
Agreement") pursuant to which, INTER ALIA, the Lenders agreed to make available
to the Borrower a revolving credit and term loan facility;
WHEREAS, PNC Bank, National Association, State Street Bank and
Trust Company and Sanwa Business Credit Corporation have determined to withdraw
as Lenders under the Loan Agreement;
WHEREAS, the Borrower has requested that the Loan Agreement be
amended as hereinafter set forth;
WHEREAS, the Lenders are willing to amend the Loan Agreement
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree as follows:
1. AMENDMENTS. The Loan Agreement is hereby amended as follows:
(a) the definition of "BANK OF BOSTON FACILITY" set forth in Section
1.1 of the Loan Agreement is hereby amended by adding to the end
thereof before the "." the words ", as such facility shall be amended
from time to time."
(b) The definition of "BORROWING BASE" set forth in Section 1.1 of the
Loan Agreement is hereby amended by (i) deleting "50%" from part (iii)
of the first sentence thereof and substituting in lieu thereof "75%"
(ii) inserting the words "or (iii) with respect to Eligible Lease
Receivables relating to Federal Funds Rate Loans, the Borrowing Rate
applicable to each such Federal Funds Rate Loan as of such date" in the
second sentence thereof before the words "and (b) determination" and
(iii) inserting at the end of the first sentence thereof the words
"(iv) in the case of Eligible Installment Finance Contracts, an amount
equal to 75% of receivables then due and unpaid with respect to each
Eligible Installment Finance Contract"
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(c) The definition of "COMMITMENT" set forth in Section 1.1 of the Loan
Agreement is hereby amended by deleting the names of the Lenders and
the amounts set forth opposite the Lenders' names at the end of such
definition and replacing such names and amounts with the following:
"Fleet Bank, N.A. $30,000,000
First Union National Bank $25,000,000"
(d) The definition "COMMITMENT TERMINATION DATE" set forth in Section
1.1 of the Loan Agreement is hereby amended to read in its entirety as
follows:
"COMMITMENT TERMINATION DATE" - July 31, 2000, unless
extended pursuant to Section 2.14 hereof."
(e) The definition "EQUIPMENT" set forth in Section 1.1 of the Loan
Agreement is hereby amended by (i) inserting the words "microticket
equipment leased to commercial end-users, restaurant equipment, other
equipment costing less than $15,000" after the words "office
equipment."
(f) The definition "INTEREST PERIOD" set forth in Section 1.1 of the
Loan Agreement is hereby amended by inserting the words "or Eligible
Installment Finance Contracts" after the words ""Eligible Rental
Contracts"
(g) The definition "LEASE" set forth in Section 1.1 of the Loan
Agreement is hereby amended by inserting the words "or installment
sales contract" after the words "any lease agreement"
(h) The following definitions shall be added to Section 1.1 of the Loan
Agreement in their correct alphabetical position:
'CONTRACTOR' - a Person who is engaged in the business of
selling and providing service related contracts.
'ELIGIBLE INSTALLMENT FINANCE CONTRACT' - an Installment
Finance Contract:
(a) Which is in full force and effect;
(b) Which is assignable by the Contractor thereunder;
(c) Which provides that the customer's obligations thereunder
are absolute and unconditional, and not subject to defense,
deduction, set-off or claim and as to which no defenses,
set-offs, claims or counterclaims exist or have been asserted;
(d) Which is not subject to any Lien other than that in favor
of the Agent on behalf of the Lenders and in which the Agent
has a duly perfected first priority security interest under
the UCC; and
(e) Under which no payment is more than 90 days past due.
`INSTALLMENT FINANCE CONTRACT' - an agreement between a
Contractor and a customer providing for the sales and/or the
performance of services by the Contractor and the payment by
the customer for such services over time.
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`FEDERAL FUNDS RATE' - for any day, a fluctuating interest
rate per annum equal to the weighted average of the rates on
seven-day Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the
Agent.
`FEDERAL FUNDS RATE LOAN' - a Loan the interest on which is
determined on the basis of the Federal Funds Rate.
(i) The second sentence of Section 2.1(a) of the Loan Agreement is
hereby amended by (i)deleting the phrase "parts (i) through (iv)" and
inserting in lieu thereof the phrase "parts (i) through (vi)" and (ii)
inserting new sub-parts (v) and (vi) after sub-part (iv) as follows:
"or (v) in the case of Loans based upon Eligible Rental
Contracts, the aggregate outstanding principal amount of all
such Loans exceed 20% of the Commitment;"
(j) Section 2.1(b) of the Loan Agreement is hereby amended by adding
the words ", Federal Funds Rate Loans" after the words "Prime Rate
Loans" and before the words "and Libor Loans" in each of the first and
third sentences thereof.
(k) Clause (x) of Section 2.1(c) of the Loan Agreement is hereby
amended by inserting the words "or Eligible Installment Finance
Contracts" after the words "Eligible Leases" both times such phrase
appears.
(l) Clause (x) of part(ii) of Section 2.1(d) of the Loan Agreement is
hereby amended by inserting the words "or Eligible Installment Finance
Contracts" after the words "Eligible Leases"
(m) Section 2.2 of the Loan Agreement is hereby amended by inserting
the words "or a Federal Funds Rate Loan" after the words "conversion of
a Prime Rate Loan" in the first sentence thereof and after the words
"borrowing of a Prime Rate Loan" in the second sentence thereof.
(n) Section 2.3(a) of the Loan Agreement is hereby amended by
renumbering sub-parts "(vi)" and "(vii)" to be "(vii)" and "(viii)",
respectively, and adding a new sub-part (vi) as follows:
"(vi) a statement that such Eligible Installment Finance
Contracts, subject to the acceptance by the Agent of the
applicable obligor thereunder, satisfy the conditions to
qualify as Eligible Installment Finance Contracts,"
(o) Section 2.3(b)(iii) of the Loan Agreement is hereby amended by (i)
deleting "50%" and substituting in lieu thereof "75%" and (ii) adding a
new subsection (v) thereof following sub-section (iv) thereof, which
shall read in its entirety as follows:
"(v) With respect to Loans based upon Eligible Installment
Finance Contracts, the amount of each such Loan shall be an
amount equal to 75% of the receivables then due and unpaid on
such Eligible Installment Finance Contracts, discounted to
present value (which calculation shall not take into account
payments due and payable under such Eligible Installment
Finance Contracts beyond 60 months after the commencement date
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of such Eligible Installment Finance Contracts) by a
percentage equal to the Borrowing Rate applicable to such Loan
as of the applicable Borrowing Date."
(p) Section 2.5(a) of the Loan Agreement is hereby amended by deleting
".25% per annum" and substituting in lieu thereof ".275% per annum."
(q) Section 2.5(b) of the Loan Agreement is hereby amended to read in
its entirety as follows:
"(b) The Borrower shall pay to the Agent $70,000 per year,
which fee shall be payable quarterly in advance on January
___, 1999 and on the First Business Day of each April, July,
October and January thereafter, for so long as the Loan
Agreement is in effect."
(r) Section 2.6(a) of the Loan Agreement is hereby amended by (i)
inserting at the beginning thereof before the words "The aggregate" the
subheading "(i)", (ii) inserting after the words "Eligible Equipment"
the words "and Eligible Installment Finance Sales Contracts" in subpart
(i) thereof, and (iii) adding three new subparts (ii), (iii) and (iv)
as follows:
"(ii) If the percentage of the Borrowing Base attributable to
Eligible Lease Receivables, Net Book Value and receivables due
and unpaid on Eligible Installment Finance Contracts of any
single obligor that is an end user under an Eligible Lease or
Eligible Rental Contract or direct obligor under an Eligible
Installment Finance Contract exceeds an amount equal to 5% of
the Borrowing Base as of the date of any Borrowing Base
Report, the Borrower shall immediately, but in any event not
later than the next due date for the Borrowing Base Report
required to be delivered to the Agent pursuant to Section 5.10
hereof, cause the Borrowing Base to be increased by granting
to the Agent, as agent for the Lenders pursuant to the
Security Agreement, a Lien pursuant to and as contemplated by
Section 2.22 hereof and the Security Documents on additional
Eligible Leases and Eligible Rental Contracts and Eligible
Equipment and Eligible Installment Finance Contracts or other
security acceptable to the Lenders, in their sole discretion,
such that, after giving effect to the grant of such Lien, such
percentage no longer exceeds an amount equal to 5% of the
Borrowing Base.
(iii) If the percentage of the Borrowing Base attributable to
Eligible Lease Receivables and Net Book Value for which the
Eligible Equipment is microticket equipment leased to consumer
end-users exceeds 20% of the Borrowing Base as of the date of
any Borrowing Base Report, the Borrower shall immediately, but
in any event not later than the next due date for the
Borrowing Base Report required to be delivered to the Agent
pursuant to Section 5.10 hereof, cause the Borrowing Base to
be increased by granting to the Agent, as agent for the
Lenders pursuant to the Security Agreement, a Lien pursuant to
and as contemplated by Section 2.22 hereof and the Security
Documents on additional Eligible Leases and Eligible Rental
Contracts and Eligible Equipment and Eligible Installment
Finance Contracts or other security acceptable to the Lenders,
in their sole discretion, such that, after giving effect to
the grant of such Lien, such percentage no longer exceeds an
amount equal to 20% of the Borrowing Base.
(iv) If the percentage of the Borrowing Base attributable to
Eligible Lease Receivables and Net Book Value regarding
Eligible Equipment located in a single state exceeds 20% of
the Borrowing Base as of the date of any Borrowing Base
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Report, the Borrower shall immediately, but in any event not
later than the next due date for the Borrowing Base Report
required to be delivered to the Agent pursuant to Section 5.10
hereof, cause the Borrowing Base to be increased by granting
the Agent, as agent for the Lenders pursuant to the Security
Agreement, a Lien pursuant to and as contemplated by Section
2.22 hereof and the Security Documents on additional Eligible
Leases and Eligible Rental Contracts and Eligible Equipment
and Eligible Installment Finance Contracts or other security
acceptable to the Lenders, in their sole discretion, such
that, after giving effect to the grant of such Lien, such
percentage no longer exceeds an amount equal to 20% of the
Borrowing Base."
(s) The last sentence of Section 2.6(b) of the Loan Agreement is hereby
amended by inserting after the words "Eligible Rental Contracts" the
words "and Eligible Installment Finance Contracts"
(t) Section 2.7 of the Loan Agreement is hereby amended to read in
its entirety as follows:
"SECTION 2.7 CONVERSION OF LOANS.
Subject to Sections 2.17 and 2.19 hereof, the
Borrower shall have the option to convert any Prime Rate Loan,
into a Federal Funds Rate Loan or Libor Loan, any Federal
Funds Rate Loan into a Prime Rate Loan or Libor Loan, or any
Libor Loan into any Prime Rate Loan or Federal Funds Rate
Loan; provided, however, that in the case of any conversion of
such Loan, (a) the Borrower shall give to the Agent notice of
each such conversion as provided in Section 2.2; and (b) no
Loan may be converted if, on the proposed date of conversion,
an Event of Default or Default has occurred and is
continuing."
(u) Section 2.8 of the Loan Agreement is hereby amended to read in
its entirety as follows:
"SECTION 2.8 USE OF PROCEEDS OF LOANS.
The proceeds of each Loan hereunder may be used by
the Borrower solely to finance or refinance (i) Eligible
Equipment covered by Eligible Leases and Eligible Rental
Contracts or (ii) Eligible Installment Finance Contracts
referred to in the Borrowing Computation relating to such
Loan, and for no other purpose whatsoever."
(v) Subsections (i) and (ii) of Section 2.9(a) of the Loan Agreement
are hereby amended and restated in their entirety as follows:
"(i) with respect to any Revolving Credit Loan, (x) during
such periods that such Loan (or any portion thereof) is a
Prime Rate Loan, the Prime Rate; (y) during such periods that
such Loan (or any portion thereof) is a Libor Loan, Libor plus
1.75%; and (z) during such periods that such Loan (or any
portion thereof) is a Federal Funds Rate Loan, the Federal
Funds Rate plus 1.75%; and
(ii) with respect to any Term Loan, (x) during such periods
that such Loan (or any portion thereof) is a Prime Rate Loan,
the Prime Rate plus .50%; and (y) during such periods that
such Loan (or any portion thereof) is a Libor Loan, Libor plus
2.50%; PROVIDED, HOWEVER, that any Term Loans outstanding on
August 6, 1996 that are Libor Loans shall bear interest at the
rate established and in effect with respect thereto as of such
date; and (z) during such periods that such Loan (or any
portion thereof) is a Federal Funds Rate Loan, the Federal
Funds Rate plus 1.75%"
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(w) Section 2.9(d) of the Loan Agreement is hereby amended to read
in its entirety as follows:
"(d) Subject to Section 2.7 hereof, the Borrower shall be
permitted to convert any Loan, or any portion thereof, in an
amount equal to or exceeding $500,000."
(x) Section 2.13(a) of the Loan Agreement is hereby amended by adding a
new subpart (iii) after subpart (ii) as follows:
"and (iii) each borrowing of a Federal Funds Rate Loan (other
than a Conversion Term Loan) and each prepayment of a Federal
Funds Rate Loan shall be in an amount at least equal to
$500,000 or some greater integral multiple of $100,000."
(y) Section 2.16(b) of the Loan Agreement is hereby amended by adding
the words "or Federal Funds Rate Loan" after the words "Prime Rate
Loans" therein.
(z) Section 2.17 of the Loan Agreement is hereby amended by adding the
words "or Federal Funds Rate Loan" after the words "Prime Rate Loans"
therein.
(aa) Section 2.18 of the Loan Agreement is hereby amended by adding the
words "or Federal Funds Rate Loan" after the words "Prime Rate Loans"
each time such phrase occurs therein.
(ab) The fourth sentence of Section 2.21 of the Loan Agreement is
hereby amended and restated in its entirety as follows:
"Notwithstanding the foregoing, in the event the Agent shall
have made an advance on behalf of a Lender without prior
notice not to do so, the Borrower shall, on demand from the
Agent, repay to the Agent that amount so made available with
interest thereon, in respect of each day during the period
commencing on and including the date such advance was made by
the Agent until the date the Agent recovers such amount at a
rate per annum equal to (i) with respect to any Revolving
Credit Loan, (x) during such periods that such Loan (or any
portion thereof) is a Prime Rate Loan, the Prime Rate; (y)
during such periods that such Loan (or any portion thereof) is
a Libor Loan, Libor plus 1.75%; and (z) during such periods
that such Loan (or any portion thereof) is a Federal Funds
Rate Loan, the Federal Funds Rate plus 1.75% or (ii) with
respect to any Term Loan, (x) during such periods that such
Loan (or any portion thereof) is a Prime Rate Loan, the Prime
Rate plus .50%; and (y) during such periods that such Loan (or
any portion thereof) is a Libor Loan, Libor plus 2.50%;"
(ac) Section 2.22(a)(ii) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(ii) subject to the provisions of the Security Agreement, the
Borrower shall hold, as collateral custodian for the Agent,
all originally executed Leases included in the Collateral."
(ad) Section 2.22(a) of the Loan Agreement by adding a new subsection
"(v)" at the end thereof as follows:
"(v) if the Borrowing Base value attributable to Eligible
Lease Receivables or Net Asset Value for any installment sale
contract (x) is greater than $10,000, then the Borrower shall
file appropriate UCC financing statements against the obligor
of such installment
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sale contract or (y) is greater than $35,000, then the
Borrower shall name the Agent as assignee of such security
interest."
(ae) Section 4.2(f) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(f) Reserved."
(af) Section 6.9(a)(ii) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(ii) a Consolidated Tangible Net Worth of not less than the
sum of (i) 85% of the Consolidated Tangible Net Worth as of
December 31, 1997, and (ii) 50% of the aggregate amount of
Consolidated Net Income of the Guarantor and its Subsidiaries,
including the Borrower, for each of the fiscal quarters ending
on or after March 31, 1998 but without deducting therefrom any
amount of Consolidated Net Deficit for any of such fiscal
quarters;"
(ag) Section 6.9(a)(iii) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(iii) an allowance for bad debt of the Guarantor and
its Subsidiaries, including the Borrower, of at least 7%
of Gross Lease Installments;"
(ah) Section 6.12 of the Loan Agreement is hereby amended to read in
its entirety as follows:
"SECTION 6.12 BORROWING BASE.
Make such prepayments or pledge such additional
security, from time to time, as required by Section 2.6
hereof."
(ai) Section 7.4 of the Loan Agreement is hereby amended by (A)
inserting after the words "surviving entity, (ii)" the words "the total
consideration paid by the Borrower (x) in connection with any single
such transaction shall not exceed $10,000,000 and (y) in connection
with all such transactions during any fiscal year shall not exceed
$20,000,000 in the aggregate, (iii)", (B) deleting "(iii)" and
inserting in lieu thereof "(iv)" and (C) deleting "(iv)" and inserting
in lieu thereof "(v)".
(aj) Section 7.7(b) of the Loan Agreement is hereby amended by
inserting after the words "Eligible Equipment" the words "or Eligible
Installment Finance Contracts"
(ak) Exhibit H to the Loan Agreement is hereby deleted in its entirety
and Exhibit B attached hereto is hereby substituted in lieu thereof.
2. CONDITIONS PRECEDENT. Prior to or simultaneously with the entry by the
Borrower into this Amendment and as a condition precedent to the effectiveness
of this Amendment:
(a) DOCUMENTS. The Agent shall have received with sufficient original
counterparts for each Lender (i) this Amendment duly executed by the
Borrower and each Lender, (ii) the Confirmation of Guaranty annexed to
this Amendment duly executed by the Guarantor, (iii) an amendment to
the Security Agreement in form and substance satisfactory to the Agent
and (iv) such UCC financing statements and related documents as the
Agent shall require in connection therewith.
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(b) CORPORATE ACTION. The Borrower shall have taken all corporate
action required to be taken to authorize the execution, delivery and
performance of this Amendment, the agreements, documents and
instruments referred to herein and the transactions contemplated hereby
and thereby.
(c) CORPORATE DOCUMENTS AND CERTIFICATES. The Borrower and the
Guarantor shall have delivered to the Agent, with sufficient original
counterparts for each Lender, an officer's certificate, in form and
substance satisfactory to the Agent, confirming the following:
(i) None of its organizational documents have been amended
since the date(s) as of which copies of said organizational
documents were certified to the Agent pursuant to the Fourth
Amendment to Loan Agreement and Consent made as of July 31,
1998 except that the name of the Guarantor has been changed
from Boyle Leasing Technologies, Inc. to Micro Financial,
Inc.;
(ii) Specimen signature(s) of the person(s) authorized to
execute this Amendment;
(iii) The execution, delivery and performance of this
Amendment has been authorized by resolutions of the Board of
Directors of the Borrower and the Guarantor, copies of which
shall be attached to such officer's certificate; and
(iv) Each of the Borrower and the Guarantor remains in good
standing in its respective jurisdiction of incorporation and
in each jurisdiction in which it is qualified to do business.
(d) BANK OF BOSTON FACILITY. The Bank of Boston Facility shall have
been amended to reflect the amendments set forth herein (or shall be
amended subject only to effectiveness of the amendments set forth
herein) to the extent the provisions being amended pursuant to this
Amendment are contained therein, and the Agent shall have received
evidence satisfactory to it to such effect.
(e) PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Amendment and all documents incident
thereto, including, without limitation, the Certificate of
Incorporation Amendments, shall be reasonably satisfactory in form and
substance to the Agent, and the Agent and each Lender, upon request by
such Lender, shall have received all information and such counterpart
originals or certified or other of such documents as the Agent may
reasonably request prior to the date hereof.
(f) COMPLIANCE.
(i) The Borrower and the Guarantor shall have complied and
shall then be in compliance with all of the terms, covenants
and conditions of the Loan Agreement as amended by this
Amendment; and
(ii) The representations and warranties contained in Article 3
of the Loan Agreement shall be true and correct on the date
hereof; and
(iii) No Default or Event of Default shall have occurred, and
the Agent and each Lender shall have received a Compliance
Certificate dated the date hereof certifying, INTER ALIA, that
the conditions set forth in this Section 2 are satisfied on
such date.
(g) LEGAL MATTERS. All legal matters incident to the effectiveness of
this Amendment shall be satisfactory to counsel to the Agent.
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(h) LETTERS OF WITHDRAWAL.
(i) The Agent shall have received a letter of withdrawal duly
executed and delivered by Sanwa Business Credit Corporation
("Sanwa"), evidencing Sanwa's agreement to withdraw as a
Lender under the Loan Agreement; provided that Sanwa shall
remain as a Lender under the Loan Agreement only with respect
to existing Libor Loans and only until the end of the current
Interest Period for each such Loan.
(ii) The Agent shall have received a letter of withdrawal duly
executed and delivered by State Street Bank and Trust Company
("State Street"), evidencing State Street's agreement to
withdraw as a Lender under the Loan Agreement; provided that
State Street shall remain as a Lender under the Loan Agreement
only with respect to existing Libor Loans and only until the
end of the current Interest Period for each such Loan.
(iii) The Agent shall have received a letter of withdrawal
duly executed and delivered by PNC Bank, National Association
("PNC"), evidencing PNC's agreement to withdraw as a Lender
under the Loan Agreement; provided that PNC shall remain as a
Lender under the Loan Agreement only with respect to existing
Libor Loans and only until the end of the current Interest
Period for each such Loan.
3. REAFFIRMATION OF SECURITY INTEREST.
The Borrower hereby reaffirms as of the date hereof each and every security
interest and lien granted in favor of the Agent and the Lenders under the Loan
Documents, and agrees and acknowledges that such security interests and liens
shall continue from and after the date hereof, in each case after giving effect
to the Loan Agreement as amended by this Amendment, and the obligations secured
thereby and thereunder shall include Borrower's obligations under the Loan
Agreement as amended by this Amendment. Each such reaffirmed security interest
and lien remains and shall continue to remain in full force and effect and is
hereby in all respects ratified and confirmed.
4. REFERENCE TO AND EFFECT ON LOAN DOCUMENTS.
(a) On and after the date hereof, each reference in the Loan Agreement
to "this Agreement", "hereunder", "hereof", "herein" or words of like
import, and each reference in the other Loan Documents, shall mean and
be a reference to the Loan Agreement as amended hereby.
(b) Except as specifically amended herein, the Loan Agreement shall
remain in full force and effect in accordance with its terms.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS PRINCIPLES OF CONFLICT OF LAWS.
6. FURTHER ASSURANCES. Each of the parties hereto hereby agrees to do such
further acts and things and to execute, deliver and acknowledge such additional
agreements, powers and instruments as any other party hereto may reasonably
require to carry into effect the purposes of this Amendment.
7. COSTS AND EXPENSES. The Borrower hereby agrees to pay all reasonable
costs and expenses of the Agent (including reasonable attorneys' fees and
expenses) incurred in connection with the negotiation, preparation, execution
and delivery of this Amendment.
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8. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be executed in
any number of counterparts and by different parties on different counterparts,
but all such counterparts shall together constitute but one agreement. Execution
and delivery of this Amendment by facsimile transmission shall constitute
execution and delivery of this Amendment for all purposes, with the same force
and effect as execution and delivery of an originally manually signed copy
hereof.
9. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
or be given any substantive effect.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
BORROWER:
LEASECOMM CORPORATION
By: /s/ Peter R. Bleyleben
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Name: Peter R. Bleyleben
Title: Authorized Signatory
LENDERS:
FLEET BANK, NATIONAL ASSOCIATION
Address:
Fleet Bank, N.A.
1185 Avenue of the Americas
New York, New York 10036
Attention: Mr. Harris C. Mehos
Vice President
Telecopier: (212) 819-6212
By: /s/ James Fox
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Name: James Fox
Title: Authorized Signatory
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FIRST UNION NATIONAL BANK
(successor to CORESTATES BANK, N.A.)
Address:
1339 Chestnut Street
Mailstop: PA4827
Philadelphia, Pennsylvania 19101-7618
Attention: Ms. Theresa Smith
Vice President
Telecopier: (215) 786-7704
By: /s/ S. Scott Gates
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Name: S. Scott Gates
Title: Authorized Signatory
AGENT:
FLEET BANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ James Fox
-----------------------------------
Name: James fox
Title: Authorized Signatory
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CONFIRMATION OF GUARANTY
The undersigned Guarantor of the Obligations under the Loan
Documents hereby consents and agrees to the amendment on the date hereof,
pursuant to the Fifth Amendment to Amended and Restated Loan Agreement (the
"Fifth Amendment"), of the Amended and Restated Loan Agreement dated as of July
28, 1995, as amended by the First Amendment to Amended and Restated Loan
Agreement made as of October 30, 1995, the Second Amendment to Amended and
Restated Loan Agreement made as of August 6, 1996, the Third Amendment to Loan
Agreement and Consent made as of August 11, 1997, and the Fourth Amendment to
Amended and Restated Loan Agreement made as of July 31, 1998, acknowledges
receipt of a copy of the Fifth Amendment and agrees that its guaranty of the
payment and performance of the Obligations pursuant to the Guaranty dated as of
July 29, 1993 remains in full force and effect and shall continue to apply to
the Obligations, after giving effect to the Fifth Amendment. The undersigned
hereby reaffirms as of the date hereof each and every representation and
warranty made pursuant to the Guaranty, and confirms that each and every such
representation and warranty is true and correct on and as of the date hereof as
if made on and as of such date.
Dated: as of January 27, 1999
MicroFinancial, Inc. (formerly known as
Boyle Leasing Technologies, Inc.)
By: /s/ Peter R. Bleyleben
--------------------------------
Name: Peter R. Bleyleben
Title: Authorized Signatory
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