EXHIBIT 10.51
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
----------------------------------------------
This Third Amendment to Loan and Security Agreement is made as of July 11, 1997
("Amendment") to supplement and amend that certain Loan and Security Agreement
dated as of August 7, 1995 and all documents related thereto, as amended by that
First Amendment to Loan and Security Agreement dated as of February 12, 1996 and
that certain Second Amendment to Loan and Security Agreement dated as of June
24, 1996 (collectively, the "Loan Agreement") between XXXXXX FINANCIAL, INC., a
Delaware corporation ("Lender") and BANKVEST CAPITAL CORP., a Massachusetts
corporation ("Borrower"). Any capitalized terms used herein and which are
defined in the Loan Agreement shall have the meaning set forth in the Loan
Agreement. Where a textual passage is amended in part only, new language may be
shown double underlined, deleted language may be shown in *strikeout*, and ...
=================
(an ellipsis) may be used for language that is unmodified. Such double
underlining, strike out and ellipses as used herein are for convenience only to
illustrate changes from the Loan Agreement, and are not part of the Loan
Agreement as amended.
PRELIMINARY STATEMENT
---------------------
A. Pursuant to the Loan Agreement, Lender has made to Borrower various
Advances;
B. Borrower desires to increase the available facility under the Loan
Agreement to $40,000,000 (the "Increased Facility"), with availability to be
shared between the Loan Agreement and that Purchase and Sale Agreement dated as
of August 7, 1995 by and between Lender and Borrower, as amended from time to
time (collectively, "Sale Agreement"). Lender is willing to comply with
Borrower's request, subject to the terms and conditions set forth below.
NOW, THEREFORE, it is hereby agreed as follows:
1. AMENDED DEFINITIONS; ADDITIONAL DEFINITIONS. The definition of
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Facility Rate shall be amended to read as follows:
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"Facility Rate: ...; with respect to each Advance made on or after
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June 24, 1996, a fixed per annum interest rate equal to the lesser of (A)
================
the sum of (i) 2.75%; and (ii) the weekly average U.S. Treasury Constant
Maturities for a Treasury Note having approximately an equal term as the
weighted average term of the Contracts subject to the applicable Advance,
as reported by the Federal Release for the calendar week in which funding
of an Advance takes place, or (B) the Facility Rate, if any, set forth in
==============================================
the applicable Amortization Schedule executed in connection with each
=====================================================================
Advance."
=======
2. AMOUNT. Section 2.2.1 shall be amended to read as follows:
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"2.2.1 Amount. The Facility is a term loan in the maximum amount
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outstanding at any one time of up to *Twenty One* Forty Million Dollars
=====
*($21,000,000)* ($40,000,000) less any amounts outstanding under the Sale
============
Agreement, which, subject to the provisions of subsection 2.2.2 and Section
2.4 shall be made available to Borrower by Lender."
3. BORROWER CREDIT AUTHORITY. The second full paragraph of Section 2.2.2
-------------------------
shall be amended to read as follows:
Until the first two Advances have been completed hereunder in a manner
satisfactory to Lender, Lender shall retain the discretion ... to reject
any proposed Contract for an Advance hereunder. Thereafter, with respect to
any requested Advance, so long as (1) each Contract submitted meets all of
the other requirements (i) through and including (xiii) of the definition
of Eligible Contract; and (2) the Facility Funding Amount
with respect to each Contract is less than *$30,000.00* $50,000.00; *and
==========
(3) the amount of the requested Advance is between $250,000.00 and
$500,000.00,* Lender's approval shall no longer be required for any
Contract subject to the requested Advance to be deemed an Eligible
Contract, but the provisions of Section 2.1 hereof shall continue to apply.
4. FINANCIAL STATEMENTS AND OTHER REPORTS. Subsection 6.4(iii)(III)
--------------------------------------
shall be amended to read, in pertinent part, as follows:
"(iii) 30 days after the end of each quarter, ... (III) computer
diskettes/tapes containing all backup data regarding Facility Contracts and
Facility Equipment, in format *acceptable to lender* attached hereto as
==================
Exhibit 6.4(iii)(III); ..."
=====================
5. FORM OF FACILITY NOTE/EXHIBIT K. The Form of Facility Note shall be
-------------------------------
deleted, and the Exhibit K to this Amendment shall be substituted in its stead.
6. FORM OF PORTFOLIO DOWNLOAD/EXHIBIT 6.4(III)(III). Exhibit
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6.4(iii)(III)-- Form of Portfolio Download shall be added to the Loan Agreement
in the form attached to this Amendment as Exhibit 6.4(iii)(III).
7. INCREASED ADDITIONAL LOANS. Subject to the satisfaction of the terms
--------------------------
and conditions of this Amendment, the available facility under the Loan
Agreement shall be increased from $21,000,000.00 to $40,000,000.00 less any
amounts outstanding under the Sale Agreement, and Lender shall make available
the Increased Facility subject to the conditions set forth in the Loan Agreement
as amended, including, but not limited to, Section 2.1 thereof.
8. CONDITIONS OF INCREASED FACILITY. The Increased Facility shall be
--------------------------------
subject to the satisfaction of all of the following conditions in a manner, form
and substance satisfactory to the Lender:
8.1 Representations and Warranties. The representations and
------------------------------
warranties set forth in this Amendment and the Loan Agreement, where
applicable, shall be true and correct as of July 11, 1997 and as of the date
this Amendment is executed by Borrower.
8.2 Delivery of Documents. The following shall have been delivered
---------------------
to Lender, each duly authorized and executed:
(a) a Promissory Note in the form of Exhibit K attached hereto
(the "Revised Facility Note"), in substitution of the existing
Facility Note;
(b) a certificate of incumbency of Borrower in the form of
Exhibit 1 attached hereto, and a Unanimous Consent in the form of
Exhibit 2 attached hereto;
(c) a current certificate of good standing in the states in
which Borrower is qualified or authorized to do business;
(d) certified copies of any amendments to the articles of
incorporation and by-laws of Borrower since the date such materials
were last furnished to Lender; and
(e) such other documents, certificates, consents and waivers as
Lender may request.
Upon delivery of all of the foregoing, and the satisfaction by
Borrower of all conditions contained in this Amendment, the existing
Facility Note shall be cancelled and delivered to Borrower, and
thereafter all references in the Loan Agreement to the Note shall be
deemed to refer to the Revised Facility Note.
8.3 Material Adverse Changes. No event shall have occurred which has
------------------------
a material adverse effect on (i) the financial condition, property,
business, operations, prospects or profits of Borrower or the ability of
Borrower to perform its obligations hereunder or under the Loan Agreement
or (ii) the projections for financial performance of Borrower as set forth
in any document or paper furnished to Lender by Borrower or its
representatives.
9. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
------------------------------
Lender that all representations and warranties set forth in the Loan Agreement,
as modified by this Amendment as applicable, are true, complete and accurate in
all respects as of the date hereof.
10. SURVIVAL OF ORIGINAL AGREEMENT. Except as amended hereby, the Loan
------------------------------
Agreement shall remain in full force and effect, and Borrower shall continue to
be subject to the security interests and liens granted thereunder.
11. SUCCESSORS AND ASSIGNS. The terms hereof shall inure to the benefit of
----------------------
and be binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns.
12. COUNTERPARTS. This Amendment shall not be effective unless and until
------------
it has been executed by all parties hereto. This Amendment may be executed in
multiple counterparts, and signatures by facsimile shall be deemed acceptable.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first written above.
BANKVEST CAPITAL CORP. XXXXXX FINANCIAL, INC.
By: ______________________________ By: _______________________________
Title: ___________________________ Title: ____________________________
Attest:
__________________________________
3
EXHIBIT 6(A)(III)(III)
----------------------
FORM OF PORTFOLIO DOWNLOAD
--------------------------
With respect to all Facility Contracts, Borrower should deliver all of the
information below on a 3.5 inch diskette. The information should appear in
either an ASCII format with fields separated by commas (,) and records separated
by carriage returns (new line) or an Excel spreadsheet with field names running
horizontally across the top of the spreadsheet. A one line header may be
included but no footers or any type of subtotaling should appear on the
download.
1. Account Number (must be unique)
2. End-User Name
3. End-User Street Address
4. End-User City
5. End-User State
6. End-User Zip
7. Phone Number
8. Payment Amount (if level payment)
9. Balloon Amount ( if level payment)
10. Original Equipment Cost (the original acquisition cost of the equipment)
11. Remaining Gross Receivable (includes prepays and delinquencies/rent only)
12. Booked Residual Amount (the guaranteed and unguaranteed expected residual
value of equipment at the end of the lease)
13. Security Deposit
14. Advance Payment Amount (total dollar amount of advance payments to be
applied toward the end of the lease term)
15. Number of Advance Payments
16. Payment Frequency (the number of months between payments, i.e., Monthly
=1; Quarterly =3; Semi-Annual =6; Annual = 12.)
17. Tax Status (E= Exempt, N = Nonexempt for state purposes)
18. Advance or Arrears ( 1 = Adv; 2 = Arr.)
19. Original Term (the original number of months elapsed between the
origination date and the maturity date; does not include the expected
residual due date)
20. Remaining Term ( the number of months between Xxxxxx'x purchase date and
the maturity date)
21. Equipment Description
22. Equipment Address
23. Equipment City
24. Equipment State
25. Equipment Zip
26. Start Date (Origination Date-Date interest started accruing)
27. SIC Code
28. APR (the effective yield to the lessor of the lease expressed in a decimal
format)
29. Maturity Date (the date on which the obligor's final payment is currently
due)
30. Account Status (indicates current status of the account, i.e., "A" =
active; "C" = closed; "N" = non-accrual; "O"= charged off)
31. Scheduled Balance (sum of remaining rents not yet due, )
32. Original Gross Balance (sum of rental stream plus residual)
33. First Payment Due Date
34. Next Due Date
35. Due Day (day of the month account is due)
36. Days Late -30 (number of times a lease has been delinquent 30 days)
37. Days Late -60 (number of times a lease has been delinquent 60 days)
38. Days Late -90 (number of times a lease has been delinquent 90 days)
39. Days Late -120 (number of times a lease has been delinquent 120 days)
40. Payment stream for each deal (need only at time of funding or
substitution/only if non level payments)
i
EXHIBIT K
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Form of Facility Promissory Note
--------------------------------
REVISED FULL RECOURSE FACILITY NOTE
-----------------------------------
Up to *$21,000,000.00* $40,000,000.00
xxxxxxxxxxxxxx
Xxxxxxx, Xxxxxxxx August 7, 1995
For Value Received, BANKVEST CAPITAL CORP., a Massachusetts corporation
("Borrower"), promises to pay to the order of XXXXXX FINANCIAL, INC., a Delaware
corporation ("Lender"), the principal sum of *Twenty One* Forty Million Dollars
=====
*($21,000,000)* ($40,000,000.00), or so much as is advanced by Lender under the
================
Facility, plus interest thereon and any other charges applicable thereto, all as
set forth more fully in that certain Loan and Security Agreement dated of even
date herewith as amended from time to time and executed by and between Borrower
and Lender (the "Agreement"). All capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in such Agreement, the applicable
provisions of which are incorporated herein by this reference.
This Note is executed to evidence the Facility described in the Agreement. Each
Facility Advance shall bear interest as provided in the Agreement. Interest
which accrues on each Advance, together with the principal amount thereof, shall
be payable in accordance with the applicable Amortization Schedule attached to
each Contract Funding Request. Each payment described on such Amortization
Schedule represents payment of interest as well as principal. The principal
balance of the Facility, or any portion thereof, shall or may be prepaid as
described in the Agreement.
If any payment to be made pursuant to this Note becomes past due for a period in
excess of ten (10) days, Borrower shall pay to Lender on demand any late charges
or other payments which Lender is entitled to receive from Borrower pursuant to
the provisions of Article II of the Agreement.
At the election of the holder hereof, upon the occurrence of an Event of
Default, the Facility, and all accrued and unpaid interest thereon, together
with any other applicable charges, shall be and become immediately due and
payable in full.
If any suit or action is instituted or attorneys are employed to collect this
Note or any part thereof, Borrower promises and agrees to pay all costs of
collection, including actual court costs and reasonable attorneys' fees.
Borrower for itself and its successors and assigns hereby waives presentment for
payment, protest and demand, notice of protest, demand and of dishonor and
nonpayment of this Note, and expressly agrees that this Note, or any payment
hereunder, may be extended from time to time before, at or after maturity,
without in any way affecting the liability of Borrower hereunder or any
guarantor hereof.
Lender or the holder hereof shall not be required to look to any Collateral or
Additional Collateral for the payment of this Note, but may proceed against the
undersigned in such manner as it deems desirable. None of the rights or
remedies of Lender or the holder hereunder or under the Agreement are to be
deemed waived or affected by any failure to exercise same. All remedies
conferred upon Lender or the holder of this Note, the Agreement or any other
instrument or agreement to which the undersigned is a party or under which any
or all of them is bound, shall be cumulative and not exclusive, and such
remedies may be exercised concurrently or consecutively at Lender's or the
holder's option.
ii
THIS PROMISSORY NOTE SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF
THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN
THE STATE OF ILLINOIS. BORROWER DOES HEREBY SUBMIT, AT LENDER'S ELECTION, TO THE
EXCLUSIVE JURISDICTION AND VENUE OF ANY COURTS (FEDERAL, STATE OR LOCAL) HAVING
A SITUS WITHIN THE COUNTY OF XXXX AND THE STATE OF ILLINOIS WITH RESPECT TO ANY
DISPUTE, CLAIM, OR SUIT WHETHER DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS PROMISSORY NOTE. BORROWER EXPRESSLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO SERVICE BY CERTIFIED MAIL, POSTAGE PREPAID, DIRECTED TO
THE LAST KNOWN ADDRESS OF BORROWER, WHICH SERVICE SHALL BE DEEMED COMPLETED
WITHIN TEN (10) DAYS AFTER THE DATE OF MAILING THEREOF. BORROWER HEREBY
IRREVOCABLY WAIVES ANY CLAIM THAT THE COUNTY OF XXXX, STATE OF ILLINOIS IS AN
INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE AS WELL AS ANY
RIGHT IT MAY NOW OR HEREAFTER HAVE TO REMOVE ANY SUCH ACTION OR PROCEEDING, ONCE
COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE.
THE EXCLUSIVE CHOICE OF FORUM SET FORTH HEREIN SHALL NOT BE DEEMED TO PRECLUDE
THE ENFORCEMENT BY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING
OF ANY ACTION BY LENDER TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION.
BORROWER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS PROMISSORY NOTE. THIS
WAIVER IS INTENDED TO BE EFFECTIVE WITH RESPECT TO ALL DISPUTES WHICH ARISE OUT
OF THE PROMISSORY NOTE, THE LOAN DOCUMENTS OR PERTAIN TO THE TRANSACTIONS
CONTEMPLATED THEREBY. THIS WAIVER IS IRREVOCABLE, AND MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND SUCH WAIVER SET FORTH HEREIN SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS PROMISSORY
NOTE OR THE OTHER LOAN DOCUMENTS.
This Note shall be binding upon Borrower, its successors and assigns, and shall
inure to the benefit of the successors and assigns of Lender.
THIS NOTE REPLACES THAT CERTAIN FACILITY NOTE OF EVEN DATE IN THE MAXIMUM
PRINCIPAL AMOUNT OF *$7,5000,000* $40,000,000.00 BETWEEN BORROWER AND LENDER.
==============
IN WITNESS WHEREOF, Borrower has executed this Note as of the date first written
above.
BANKVEST CAPITAL CORP.
By: ____________________________________
Title _________________________________
iii
EXHIBIT 1
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FORM OF INCUMBENCY CERTIFICATE
OF
BankVest Capital Corp.
----------------------
The undersigned, being the duly elected ________________________ of BANKVEST
CAPITAL CORP., a corporation formed pursuant to the laws of the State of
Massachusetts (the "Company"), does hereby certify that the following persons
currently are serving in the Company in the capacities set forth opposite each
such name and that set forth opposite each such name is a true and correct
specimen of the signature of such person:
Name Title Signature
---- ----- ---------
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the ____
day of July, 1997.
BANKVEST CAPITAL CORP.
By: ____________________
Title: _________________
iv
EXHIBIT 2
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FORM OF UNANIMOUS CONSENT OF THE BOARD OF DIRECTORS
OF BANKVEST CAPITAL CORP.
We, the undersigned, being the Board of Directors of BankVest Capital Corp.,
a Massachusetts corporation (the "Company"), hereby do consent to the adoption
of, and hereby do adopt, the following resolutions:
WHEREAS, the Company and Xxxxxx Financial, Inc., a Delaware corporation
("Lender") entered into a Loan and Security Agreement dated as of August 7,
1995, as amended from time to time (collectively, "Loan Agreement"), pursuant to
which Lender agreed to make certain Advances to the Company;
WHEREAS, there has been presented and reviewed by the President, Vice
President, Secretary or Treasurer of the Company (i) a proposed form of a Third
Amendment to Loan and Security Agreement ("Amendment") to be executed by and
between Lender and the Company and (ii) proposed forms of certain other
documents to be executed in connection with the consummation of the transactions
contemplated by the Amendment (the "Related Amendment Agreements"). The Loan
and Security Agreement, the Amendment and the Related Amendment Agreements shall
hereinafter collectively be referred to as the "Loan Agreement". All other
capitalized terms used herein which are not otherwise defined herein and which
are defined in the Loan Agreement shall have the meaning set forth in the Loan
Agreement;
WHEREAS, pursuant to the terms of the Amendment, the Lender proposed to
increase the amount of the available Facility Advances to $40,000,000 (the
"Increased Facility"), less any amounts outstanding under that certain Purchase
and Sale Agreement dated as of August 7, 1995, as amended from time to time;
WHEREAS, as a condition precedent to the Increased Facility, Lender
requires, inter alia, the execution and delivery by the Company of the Amendment
and the other Related Amendment Agreements to which the Company is to be a
party; and
WHEREAS, the Board of Directors of the Company deem it to be in the best
interest of the Company to obtain the Increased Facility, and to execute and
deliver the Amendment and all other Related Amendment Agreements to which the
Company is to be a party, and to effect the transactions contemplated therein;
NOW, THEREFORE, it is hereby resolved that the Company be and it hereby is
authorized to execute and deliver to Lender the Amendment and each of the
Related Amendment Agreements to which the Company is to be a party; and
FURTHER RESOLVED, the President, Vice President, Secretary or Treasurer of
the Company, be and they hereby are authorized and directed, in the name and on
behalf of the Company to execute and deliver the Amendment, each of the Related
Amendment Agreements to which the Company is a party, and all other documents,
instruments, agreements and statements, which may be necessary to effectuate the
transactions contemplated hereby and thereby, all of which shall be in the forms
previously reviewed by the undersigned, or with such changes as the officer(s)
executing the same shall approve, and the execution and delivery thereof by such
officer(s) shall constitute the approval of the terms thereof;
FURTHER RESOLVED, that the President, Vice President, Secretary or
Treasurer of the Company, be and they hereby are authorized and directed, in the
name and on behalf of the Company, to do and perform any and all other acts and
to execute and deliver any and all other documents, instruments and
certificates, which may be necessary, appropriate or desirable in order to
consummate the transactions contemplated hereby.
v
FURTHER RESOLVED, that these resolutions may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which,
when taken together, shall be deemed to be one and the same instrument.
Dated: ___________________________
DIRECTORS:
__________________________________
__________________________________
__________________________________
vi
REVISED FULL RECOURSE FACILITY NOTE
-----------------------------------
Up to $40,000,000.00
Chicago, Illinois August 7, 1995
For Value Received, BANKVEST CAPITAL CORP., a Massachusetts corporation
("Borrower"), promises to pay to the order of XXXXXX FINANCIAL, INC., a Delaware
corporation ("Lender"), the principal sum of Forty Million Dollars
($40,000,000.00), or so much as is advanced by Lender under the Facility, plus
interest thereon and any other charges applicable thereto, all as set forth more
fully in that certain Loan and Security Agreement dated of even date herewith as
amended from time to time, and executed by and between Borrower and Lender (the
"Agreement"). All capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in such Agreement, the applicable provisions of which
are incorporated herein by this reference.
This Note is executed to evidence the Facility described in the Agreement. Each
Facility Advance shall bear interest as provided in the Agreement. Interest
which accrues on each Advance, together with the principal amount thereof, shall
be payable in accordance with the applicable Amortization Schedule attached to
each Contract Funding Request. Each payment described on such Amortization
Schedule represents payment of interest as well as principal. The principal
balance of the Facility, or any portion thereof, shall or may be prepaid as
described in the Agreement.
If any payment to be made pursuant to this Note becomes past due for a period in
excess of ten (10) days, Borrower shall pay to Lender on demand any late charges
or other payments which Lender is entitled to receive from Borrower pursuant to
the provisions of Article II of the Agreement.
At the election of the holder hereof, upon the occurrence of an Event of
Default, the Facility, and all accrued and unpaid interest thereon, together
with any other applicable charges, shall be and become immediately due and
payable in full.
If any suit or action is instituted or attorneys are employed to collect this
Note or any part thereof, Borrower promises and agrees to pay all costs of
collection, including actual court costs and reasonable attorneys' fees.
Borrower for itself and its successors and assigns hereby waives presentment for
payment, protest and demand, notice of protest, demand and of dishonor and
nonpayment of this Note, and expressly agrees that this Note, or any payment
hereunder, may be extended from time to time before, at or after maturity,
without in any way affecting the liability of Borrower hereunder or any
guarantor hereof.
Lender or the holder hereof shall not be required to look to any Collateral or
Additional Collateral for the payment of this Note, but may proceed against the
undersigned in such manner as it deems desirable. None of the rights or
remedies of Lender or the holder hereunder or under the Agreement are to be
deemed waived or affected by any failure to exercise same. All remedies
conferred upon Lender or the holder of this Note, the Agreement or any other
instrument or agreement to which the undersigned is a party or under which any
or all of them is bound, shall be cumulative and not exclusive, and such
remedies may be exercised concurrently or consecutively at Lender's or the
holder's option.
THIS PROMISSORY NOTE SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF
THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN
THE STATE OF ILLINOIS. BORROWER DOES HEREBY SUBMIT, AT LENDER'S ELECTION, TO THE
EXCLUSIVE JURISDICTION AND VENUE OF ANY COURTS (FEDERAL, STATE OR LOCAL) HAVING
A SITUS WITHIN THE COUNTY OF XXXX AND THE STATE OF ILLINOIS WITH RESPECT
TO ANY DISPUTE, CLAIM, OR SUIT WHETHER DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS PROMISSORY NOTE. BORROWER EXPRESSLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO SERVICE BY CERTIFIED MAIL, POSTAGE PREPAID, DIRECTED TO
THE LAST KNOWN ADDRESS OF BORROWER, WHICH SERVICE SHALL BE DEEMED COMPLETED
WITHIN TEN (10) DAYS AFTER THE DATE OF MAILING THEREOF. BORROWER HEREBY
IRREVOCABLY WAIVES ANY CLAIM THAT THE COUNTY OF XXXX, STATE OF ILLINOIS IS AN
INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE AS WELL AS ANY
RIGHT IT MAY NOW OR HEREAFTER HAVE TO REMOVE ANY SUCH ACTION OR PROCEEDING, ONCE
COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE.
THE EXCLUSIVE CHOICE OF FORUM SET FORTH HEREIN SHALL NOT BE DEEMED TO PRECLUDE
THE ENFORCEMENT BY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING
OF ANY ACTION BY LENDER TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION.
BORROWER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS PROMISSORY NOTE. THIS
WAIVER IS INTENDED TO BE EFFECTIVE WITH RESPECT TO ALL DISPUTES WHICH ARISE OUT
OF THE PROMISSORY NOTE, THE LOAN DOCUMENTS OR PERTAIN TO THE TRANSACTIONS
CONTEMPLATED THEREBY. THIS WAIVER IS IRREVOCABLE, AND MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND SUCH WAIVER SET FORTH HEREIN SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS PROMISSORY
NOTE OR THE OTHER LOAN DOCUMENTS.
This Note shall be binding upon Borrower, its successors and assigns, and shall
inure to the benefit of the successors and assigns of Lender.
THIS NOTE REPLACES THAT CERTAIN FACILITY NOTE OF EVEN DATE IN THE MAXIMUM
PRINCIPAL AMOUNT OF $21,000,000 BETWEEN BORROWER AND LENDER.
IN WITNESS WHEREOF, Borrower has executed this Note as of the date first written
above.
BANKVEST CAPITAL CORP.
By: ____________________________________
Title _________________________________
INCUMBENCY CERTIFICATE OF BankVest Capital Corp.
------------------------------------------------
The undersigned, being the duly elected ________________________ of BANKVEST
CAPITAL CORP., a corporation formed pursuant to the laws of the State of
Massachusetts (the "Company"), does hereby certify that the following persons
currently are serving in the Company in the capacities set forth opposite each
such name and that set forth opposite each such name is a true and correct
specimen of the signature of such person:
Name Title Signature
---- ----- ---------
________________________ _________________________ ________________________
________________________ _________________________ ________________________
________________________ _________________________ ________________________
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the day
of July, 1997.
BANKVEST CAPITAL CORP.
By: ____________________
Title: _________________
