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EXHIBIT 10.4
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") made as of the 30th day of October, 1995 by and among LEASECOMM
CORPORATION, a Massachusetts corporation (the "Borrower"), NATWEST BANK N.A., a
national banking association, in its individual corporate capacity, FLEET BANK
OF MASSACHUSETTS, N.A., a national banking association, SANWA BUSINESS CREDIT
CORPORATION, a Delaware corporation, CORESTATES BANK, N.A., a national banking
association, PNC BANK, NATIONAL ASSOCIATION, a national banking association and
COMMERZBANK AG, New York Branch, a New York State licensed branch of a German
banking corporation ("Commerzbank") (individually, a "Lender" and, collectively,
the "Lenders") , and NATWEST BANK N.A., as agent for the Lenders (the "Agent").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Loan Agreement.
WHEREAS:
A. 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
(the "Loan Agreement") pursuant to which, INTER ALIA, the Lenders agreed to make
available to the Borrower a revolving credit and term loan facility;
B. The Borrower has requested that the Loan Agreement be amended
to provide for the inclusion within the Borrowing Base of security monitoring
systems and the receivables relating thereto and that the Majority Lenders
consent to the Bank of Boston Facility;
C. 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 following definitions shall be added to Section
1.1 of the Loan Agreement in their correct alphabetical position:
"'DEALER' - a Person who is engaged in the business
of selling, servicing and installing security/alarm
monitoring and related equipment.
'DEALER AGREEMENT' - an agreement between the
Borrower and a Dealer, substantially in the form of
Exhibit J-1 hereto, setting forth the rights and
obligations of each with respect to a Security
Equipment Lease and/or Monitoring Agreement which has
been assigned by such Dealer to the Borrower.
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'ELIGIBLE SECURITY EQUIPMENT LEASE AND/OR MONITORING
AGREEMENT' - a Security Equipment Lease and/or
Monitoring Agreement:
(a) Which is in full force and effect;
(b) Which is assignable by the Dealer
thereunder;
(c) Which provides that the customer's
obligations thereunder (solely as to any equipment
covered thereby) 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;
(e) Under which no payment is more than 90 days
past due;
(f) Under which no default has occurred other
than to the extent permissible under clause (e)
immediately above;
(g) Which is the subject of a Dealer Agreement
which is in full force and effect, under which no
default shall have occurred by either party thereto
and which is not subject to any Lien other than 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
(h) With respect to which the monitoring
services are being provided by the Dealer under the
applicable Dealer Agreement or by a Servicer which is
acceptable to the Agent, which acceptance shall not
be unreasonably withheld.
'SECURITY EQUIPMENT LEASE AND/OR MONITORING
AGREEMENT' - an agreement between a Dealer and a
customer, substantially in the form of Exhibit J-2
hereto, which provides for (i) the selling, servicing
and installation by the Dealer of central station
security/alarm monitoring equipment and related
monitoring services or (ii) only monitoring services
with respect to such equipment.
'SERVICER' - a Person engaged in the business of
providing monitoring services for central alarm
systems."
(b) The definition of "Borrowing Base" in Section 1.1 of
the Loan Agreement is hereby amended by (i) inserting in part (i) of the first
sentence thereof after the words "Finance
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Leases" and before the comma, the words "or Eligible Security Equipment Lease
and/or Monitoring Agreements", (ii) inserting in part (ii) thereof within the
parenthetical after the words "(other than Rental Contracts)" the words "or
Eligible Security Equipment Lease and/or Monitoring Agreements" and (iii)
inserting in part (iii) thereof after the words "in the case of Eligible Rental
Contracts" the words "(other than Eligible Security Equipment Lease and/or
Monitoring Agreements)".
(c) The definition of "Eligible Equipment" in Section 1.1
of the Loan Agreement is hereby amended by inserting the words "(other than with
respect to security systems subject to a Security Equipment Lease and/or
Monitoring Agreement)" after the words "and in which" in sub-clause (b) thereof.
(d) The definition of "Eligible Lease" in Section 1.1 of
the Loan Agreement is hereby amended by deleting the period at the end of
sub-clause (1), inserting a semi-colon and the word "or" in lieu thereof, and by
adding a new sub-clause which shall read as follows:
"which is an Eligible Security Equipment Lease and/or
Monitoring Agreement."
(e) The definition of "Equipment" in Section 1.1 of the
Loan Agreement is hereby amended by inserting after the words "other than
electronic signs" within the parenthetical the words "or security systems
subject to a Security Equipment Lease and/or Monitoring Agreement".
(f) The proviso to Section 2.1 (a) of the Loan Agreement
is hereby amended to read in its entirety as follows:
"PROVIDED, HOWEVER, that no Loan will be made
hereunder if, after giving effect thereto and to all
other Loans being made concurrently therewith, (i)
the aggregate outstanding principal amount of all
Loans would exceed the Commitment, (ii) in the case
of such Loans based upon Operating Leases, the
aggregate outstanding principal amount of all such
Loans would exceed the Sublimit and (iii) in the case
of such Loans based upon Eligible Security Equipment
Lease and/or Monitoring Agreements, the aggregate
outstanding principal amount of all such Loans would
exceed 25% of the Commitment."
(g) Section 2.3(b) of the Loan Agreement is hereby
amended by inserting the words "or Eligible Security Equipment Lease and/or
Monitoring Agreements" (i) within the parenthetical after the words "(other than
Operating Leases)" in part (i) thereof and, (ii) after the words "Rental
Contracts" in part (ii) thereof, and by inserting the words "other than Eligible
Security Equipment Lease and/or Monitoring Agreements" after the words "based
upon Eligible
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Rental Contracts" in part (iii) thereof, and by adding a new sub-section (iv)
thereto following sub-section (iii) thereof, which shall read in its entirety as
follows:
"(iv) With respect to Loans based upon Eligible
Security Equipment Lease and/or Monitoring
Agreements, the amount of each such Loan shall be an
amount equal to the lesser of (x) 100% of the
Adjusted Cost of the security system (including any
monitoring services relating thereto) subject to such
Eligible Security Equipment Lease and/or Monitoring
Agreement or (y) 75% of the amount of Eligible Lease
Receivables relating to such Eligible Security
Equipment Lease and/or Monitoring Agreements,
discounted to present value (which calculation shall
not take into account payments due and payable under
such Eligible Security Equipment Lease and/or
Monitoring Agreements beyond 48 months after the
commencement date of such Eligible Security Equipment
Lease and/or Monitoring Agreements) by a percentage
equal to the Borrowing Rate applicable to such Loan
as of the applicable Borrowing Date."
(h) Section 4.2(e) of the Loan Agreement is hereby
amended by inserting after the words "its interest in the Equipment" in the
first sentence thereof the words "(other than Equipment consisting of security
systems subject to a Security Equipment Lease and/or Monitoring Agreement)".
(i) Section 4.2(f) of the Loan Agreement is hereby
amended to read in its entirety as follows:
"(f) The Borrower shall have delivered to the
Agent all executed original counterparts of each
Lease(s), including (or in addition to), where
applicable, each Security Equipment Lease and/or
Monitoring Agreement included in the Collateral for
such Loan, certified as such by the Borrower."
(j) Section 4.2(j) of the Loan Agreement is hereby amended by
inserting after the words "Compliance Certificate" the words "from the President
or Chief Financial Officer of the Borrower in the form of Exhibit G-1 hereto".
(k) Sections 5.11(a) and (b) are hereby amended by inserting
in each case before the words "and other Miscellaneous Equipment" the words ",
Security Equipment Lease and/or Monitoring Agreements".
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(1) Section 7.13 of the Loan Agreement is hereby amended
to read in its entirety as follows:
"Make or be or become obligated to make Capital
Expenditures (i) in any fiscal quarter in excess of
20% of Consolidated Tangible Net Worth as of the end
of the immediately preceding fiscal quarter and (ii)
in no event to exceed in any fiscal year 20% of
Consolidated Tangible Net Worth as of the end of such
fiscal year (as reflected in the Guarantor's audited
fiscal year end financial statements furnished to the
Agent pursuant to Section 5.1 of this Agreement)."
(m) Schedule 5.5 to the Loan Agreement is hereby deleted
in its entirety and Schedule 5.5 attached hereto is hereby substituted in lieu
thereof.
(n) Exhibit G-1 is hereby added to the Loan Agreement in
the form attached hereto as Exhibit G-1 and incorporated by reference.
(o) Exhibits B and H to the Loan Agreement are hereby
deleted in their entirety and Exhibits B and H, respectively attached hereto are
hereby substituted in lieu thereof.
(p) Exhibits J-1 and J-2 are hereby added to the Loan
Agreement in the respective forms attached hereto as Exhibits J-1 and J-2 and
incorporated by reference.
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 Borrower shall have executed and
delivered to the Agent with sufficient original counterparts for each Lender (i)
this Amendment, (ii) an amendment to the Security Agreement and the Assignment
of Leases in form and substance satisfactory to the Agent and (iii) such UCC
financing statements and related documents as the Agent shall require in
connection therewith.
(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:
(A) 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;
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(B) Specimen signature(s) of the person(s)
authorized to execute this Amendment;
(C) 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
(D) 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) Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this Amendment and all
documents incident thereto 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.
(e) 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 4(e) are satisfied on such date.
(f) Legal Matters. All legal matters incident to the
effectiveness of this Amendment shall be satisfactory to counsel to the Agent.
The Agent will advise the Borrower of any such matters prior to the date hereof.
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 effect and is hereby
in all respects ratified and confirmed.
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4. Consent to the Bank of Boston Facility.
The Lenders hereby (a) consent to the Borrower entering into the Bank
of Boston Facility, provided that the principal amount of Indebtedness permitted
to be incurred thereunder not exceed $20,000,000 and that the documentation
relating thereto be reasonably satisfactory to the Agent, and (b) authorize the
Agent on behalf of the Lenders to enter into an intercreditor agreement, in form
and substance satisfactory to the Agent, with The First National Bank of Boston
("Bank of Boston"), as lender under the Bank of Boston Facility, which confirms
that Bank of Boston or the Agent, as the case may be, has a prior lien as to its
collateral and shall not have an interest in the other's collateral.
5. 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.
6. 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.
7. Counterparts. 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.
8. 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.
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/ Xxxxx Xxxxxxxxx
-----------------------------------
Name:
Title
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LENDERS:
NATWEST BANK N.A.
Address:
NatWest Bank N.A.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Assistant Vice-President
NatWest Financial
Services Division
Telecopier: (000) 000-0000
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name:
Title
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CORESTATES BANK, N.A.
Address:
Corestates Bank PNB
0000 Xxxxxx Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xx. Xxxxx X. Xxxxxxxx
Vice President
Telecopier: (000) 000-0000
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name:
Title
PNC BANK, NATIONAL ASSOCIATION
Address:
PNC Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxx
Telecopier: (000) 000-0000
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name:
Title
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FLEET BANK OF MASSACHUSETTS, N.A.
Address:
Fleet Bank of Massachusetts
Fleet Center
00 Xxxxx Xxxxxx XXXXX00X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxx,
Vice President
Telecopier: (000) 000-0000
By: /s/ Xxxxx X. Wheluck
-----------------------------------
Name:
Title
SANWA BUSINESS CREDIT CORPORATION
Address:
Sanwa Business Credit Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Ms. M. Xxxx Xxxxxxxxxxx
Vice President
Telecopier: (000) 000-0000
By: /s/ Xxxx Xxxx Xxxxxxxxxxx
-----------------------------------
Name:
Title
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XXXXXXXXXXX XX, XXX XXXX BRANCH Address:
Commerzbank
2 World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxx Xxxxxxx
Telecopier: (000) 000-0000
By: /s/ Xxxxxx Xxxxxxx /s/ Xxx Xxxxxxx
-----------------------------------
Name:
Title
AGENT:
NATWEST BANK N.A., as Agent
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name:
Title
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SCHEDULE 5.5
[To be furnished on Leasecomm Corporation Letterhead]
NATWEST BANK N.A.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Financial Services Division
Re: The Loan Agreement dated as of July 29, 1993, as amended and restated
by the Amended and Restated Loan Agreement dated as of ____________
(the "Agreement"), and as further amended from time to time thereafter,
among Leasecomm Corporation ("the Borrower"), the banks party thereto,
and NatWest Bank N.A., as Agent.
-----------------:
Pursuant to Section 5.5 of the Agreement, as the same may be amended from time
to time: I, _______________, the duly elected, qualified and acting
[President/Chief Financial Officer] of the Borrower certify that no event has
occurred and is continuing which constitutes a Default or Event of Default with
respect to the Agreement, and that no default under any other agreement to which
either of the Loan Parties is a party or by which it is bound, or by which, to
the best of the knowledge of the Borrower, any of its properties or assets,
taken as a whole, may be materially affected.
Additionally, I further certify that to the best of my knowledge after due
inquiry, for the month ended ___________, 199__, the Borrower has complied with
all covenants (including but not limited to those covenants outlined in Article
6 and Article 7), agreements and conditions in each Loan Document and that each
representation and warranty contained in each Loan Document is true and correct
with the same effect as though each such representation and warranty had been
made on the date of this certificate.
Attached hereto is a detailed calculation indicating compliance with the
covenants contained in Section 6.9 of the Agreement. The calculations set forth
in this certificate are true and correct as of _______________ ___, 199__.
Capitalized terms used herein shall have the same meanings as those same terms
in the Loan Agreement.
IN WITNESS WHEREOF, I have executed this Covenant Compliance Certificate on this
_______ day of _____________, 199__.
---------------------------------
Name:
Title:
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COVENANT COMPLIANCE CALCULATIONS
The Borrower shall maintain at all times:
(I) RATIO OF CONSOLIDATED INDEBTEDNESS TO CONSOLIDATED TANGIBLE CAPITAL FUNDS
OF NOT MORE THAN 6:1:
(i) Consolidated Indebtedness: $________
(ii) Consolidated Tangible Capital Funds:
a. Capital Stock: $_______
b. Additional Paid-in Capital: $_______
c. Retained Earnings: $_______
d. Subordinated Debt: $_______
Subtotal 1 (sum of a, b, c, and d): $_______
Less:
x. Organizational Costs and Goodwill: $_______
y. Treasury Stock: $_______
z. 25% of Debt Issue Costs: $_______
Subtotal 2 (sum of x, y, and z): $_______
Total ii (Subtotal 1 minus Subtotal 2): $________
ACTUAL RATIO OF (i) TO (ii): _________
MAXIMUM RATIO: 6:1
_________
(II) MINIMUM CONSOLIDATED TANGIBLE NET WORTH:
Actual Consolidated Tangible Net Worth:
a. Capital Stock: $_______
b. Additional Paid-in Capital $_______
c. Retained Earnings: $_______
Subtotal 1 (sum of a, b, and c): $_______
Less:
x. Organizational Costs and Goodwill: $_______
y. Treasury Stock: $_______
z. 25% of Debt Issue Costs: $_______
Subtotal 2 (sum of x, y, and z): $_______
$_______
Total Actual Consolidated Tangible Net Worth (Subtotal 1 minus Subtotal 2): $________
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Minimum Consolidated Tangible Net Worth:
a. Base Amount: $5,500,000
b. 50% of Consolidated Net Income for
each fiscal Quarter after 12/31/94: $________
Total Minimum Consolidated Tangible Net Worth (sum of a and b): $________
(III) ALLOWANCE FOR BAD DEBT
Actual Allowance for Bad Debt: $________
Minimum Allowance for Bad Debt (equal to 5% of Gross Lease
Installments) $________
Difference between Actual and Minimum Allowance: $________
The Borrower shall have as of the end of each fiscal quarter:
(IV) FIXED CHARGE RATIO
(i) Consolidated Earnings:
a. Consolidated Net Income $_______
b. Provisions for deferred federal, state, or
other taxes $_______
c. Scheduled interest payments on all
indebtedness $_______
Total (sum of a, b, and c): $________
(ii) Fixed Charges:
a. Scheduled interest payments on all
indebtedness $________
ACTUAL RATIO OF (i) TO (ii): _________
REQUIRED MINIMUM RATIO: 1.25:1
(V) MAXIMUM CAPITAL EXPENDITURES
(i) Consolidated Tangible Net Worth as of the end of
the immediately preceding fiscal quarter $________
(ii) Aggregate Capital Expenditures for the current quarter $________
(ii)REPORTED AS A PERCENTAGE OF (i) _________
MAXIMUM ALLOWABLE PERCENTAGE 20%
_________
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The Borrower shall have as of the end of the fiscal year:
(iii) Consolidated Tangible Net Worth as of the end of the
fiscal year (per the audited financial statements) $________
(iv) Aggregate Capital Expenditures for the fiscal year $________
(iv)REPORTED AS A PERCENTAGE OF (iii) _________
MAXIMUM ALLOWABLE PERCENTAGE 20%
_________
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EXHIBIT G-1
COMPLIANCE CERTIFICATE
I, ________________, the duly elected, qualified and acting
____________________ of Leasecomm Corporation, a Massachusetts corporation (the
"Corporation"), pursuant to Section 4.2(j) of the Loan Agreement dated as of
July 29, 1993, as amended and restated as of July 28, 1995 (the "Loan
Agreement"; capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Loan Agreement), by and among the
Corporation, the Lenders signatory thereto, and NatWest Bank N.A., as agent for
the Lenders, do hereby certify as follows:
(i) The Corporation has fully complied with all the terms and conditions
of the Security Documents, including, but not limited to, delivering to the
Agent all executed copies of the Eligible Leases and Eligible Rental Contracts
included in the Collateral for the Loan being made on the date hereof.
(ii) The Corporation has complied, and as of the date hereof, is in
compliance with all terms, covenants and conditions of the Loan Agreement.
(iii) The representations and warranties of the Corporation contained in
Article 3 of the Loan Agreement are true and correct on and as of the date of
this Certificate.
(iv) There exists no Default or Event of Default.
IN WITNESS WHEREOF, I have executed this Certificate this ______ day of
_____________, 199___.
__________________________________________
[President] [Chief Financial Xxxxxxx]
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XXXXXXX X
LEASECOMM CORPORATION
BORROWING COMPUTATION
I, ________________________, the duly elected, qualified and acting
________________________ of Leasecomm Corporation, a Massachusetts corporation
(the "Corporation"), pursuant to Section 2.3 of the Loan Agreement dated as of
July 29, 1993, as amended and restated by the Amended and Restated Loan
Agreement (the "Agreement") dated as of ____________________, and as further
amended from time to time thereafter, among the Borrower, NatWest Bank N.A.,
Fleet Bank of Massachusetts, N.A., Sanwa Business Credit Corporation, CoreStates
Bank, N.A., PNC Bank N.A., and Commerzbank AG, New York Branch, as Lenders, and
NatWest Bank N.A., as Agent, and in connection with a request for the Lenders to
make a Loan to the Corporation pursuant to Section 2.2 of the Agreement
(capitalized terms used herein shall have the meanings respective meanings set
forth in the Agreement), do hereby certify as follows:
1. The following is a complete description of the Equipment to be
financed or refinanced with respect to the requested Loan:
2. The Original Cost and Adjusted Cost of the Equipment described above
is $__________ and $_____________, respectively.
3. The following is a complete description of the Leases covering the
above-described Equipment:
4. The following is a complete listing of the names of the Lessees
under such Eligible Leases:
5. The above-described Equipment and Leases, subject to the acceptance
by the Agent of such Equipment and no notice from the Agent that any
lessee of such Equipment is unacceptable, satisfy the conditions set
forth in the definitions of "Eligible Equipment" and "Eligible
Leases", respectively, contained in Section 1.1 of the Agreement.
ELIGIBLE LEASES OTHER THAN 0PERATING LEASES AND SECURITY EQUIPMENT LEASE AND/OR
MONITORING AGREEMENTS:
(1) 100% of the Adjusted Cost of the Eligible Equipment
subject to such Eligible Leases equals: $__________
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(2) The aggregate dollar amount of Eligible Lease
Receivables relating to such Eligible Leases equals: $__________
(3) 75% of the amount reported in Line 2 equals: $__________
(4) The amount indicated in Line 3 discounted to the
present value by a percentage equal to the Borrowing
Rate equals: $__________
(5) The requested Loan Amount: (the lesser of the amounts
calculated in Line 1 and Line 4) equals: $__________
ELIGIBLE OPERATING LEASES OTHER THAN ELIGIBLE RENTAL CONTRACTS AND
ELIGIBLE SECURITY EQUIPMENT LEASE AND/OR MONITORING AGREEMENTS:
(6) The Net Book Value of the Eligible Equipment subject
to such Eligible Leases equals: $__________
(7) 60% of the amount calculated in Line 6 equals: $__________
(8) The aggregate dollar amount of Eligible Lease
Receivables relating to such Eligible Leases equals: $__________
(9) 75% of the amount reported in Line 8 equals: $__________
(10) The amount indicated in Line 9 discounted to the
present value by a percentage equal to the Borrowing
Rate equals: $__________
(11) The requested Loan Amount: (the lesser of the amounts
calculated in Line 7 or Line 10) equals: $__________
ELIGIBLE RENTAL CONTRACTS OTHER THAN ELIGIBLE SECURITY EQUIPMENT LEASE
AND/OR MONITORING AGREEMENTS:
(12) The Net Book Value of the Eligible Equipment subject
to such Eligible Rental Contracts equals: $__________
(13) The requested Loan Amount: 50% of the amount
calculated in Line 12 equals: $__________
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ELIGIBLE SECURITY EQUIPMENT LEASE AND/OR MONITORING AGREEMENTS:
(14) 100% of the Adjusted Cost of the security system
subject to such Eligible Security Equipment Lease
and/or Monitoring Agreements equals: $__________
(15) The aggregate dollar amount of Eligible Lease
Receivables relating to such Eligible Security
Equipment Lease and/or Monitoring Agreements equals: $__________
(16) 75% of the amount reported in Line 15 equals: $__________
(17) The amount indicated in Line 16 discounted to the
present value by a percentage equal to the Borrowing
Rate equals: $__________
(18) The requested Loan Amount: (the lesser of the amounts
calculated in Line 14 or Line 17) equals: $__________
CALCULATION OF AGGREGATE BORROWING AVAILABILITY:
(19) The available Loan Amount for Eligible Leases other
than Operating Leases and Security Equipment Lease
and/or Monitoring Agreements (Line 5 from above): $__________
(20) The aggregate amount of loans outstanding which are
secured by Eligible Operating Leases other than
Eligible Security Equipment Lease and/or Monitoring
Agreements: $__________
(21) 5% of the aggregate Commitment outstanding (the
"Sublimit") $__________
(22) The available Loan Amount for Operating
Leases other than Eligible Security Equipment
Lease and/or Monitoring Agreements is equal
to the excess of a: $_______
(a) the Sublimit over (b) the sum of the
amounts set forth in Line 11, Line 13, and
Line 20: b: $_______ $__________
(23) The aggregate amount of loans outstanding
which are secured by Eligible Security
Equipment Lease and/or Monitoring Agreements: $__________
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(24) The available Loan Amount for Eligible
Security Equipment Lease and/or
Monitoring Agreements is equal to the a: $_______
excess of (a) 25% of the Commitment
Outstanding over (b) the sum
of the amounts set forth in Line 18
and Line 23: b: $_______ $__________
(25) Aggregate Loan Amount Availability (the
sum of Line 19, Line 22, and Line 24): $__________
(26) Aggregate Loan Amount Requested: $__________
(27) Total Committed Amount: $__________
(28) Aggregate Balance of Loans Outstanding as
of the date of this Borrowing Computation: $__________
(29) Proposed Aggregate Amount Outstanding:
(The sum of Line 26 and Line 28) $__________
(30) Unused Portion of the Commitment: $__________
(Line 27 less Line 29). The unused portion of the
commitment must be greater than or equal to zero at
all times.
IN WITNESS WHEREOF, I have executed this Borrowing Computation this ______ day
of ____________, 199__.
__________________________________
Name:
Title:
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EXHIBIT H
LEASECOMM CORPORATION
BORROWING BASE REPORT
Borrowing Base Report dated as of _____________, ___, 199__:
Annual Discount Rate: %
FIXED RATE PACKAGES ONLY
-------------------------------------------------------------------------------------------
REMAINING ESTIMATED ACQUISITION TOTAL
LEASE 75% RESIDUAL COST NET PACKAGE FUNDED PACKAGE
SUM RECEIVABLE NPV OF NPV VALUE HOLDBACKS NO. AMOUNT DATE
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
TOTAL:
-------------------------------------------------------------------------------------------
_______________________
Fixed Rate Loan Balance
Over(Under) Collateralized: ____________________
Annual Discount Rate: _____%
VARIABLE RATE PACKAGES ONLY
I. ELIGIBLE LEASES OTHER THAN OPERATING LEASES AND SECURITY EQUIPMENT LEASE
AND/OR MONITORING AGREEMENTS:
---------------------------------------------------------------------------------------------
LESSER OF:
REMAINING ESTIMATED ACQUISITION 75% OF NPV OR
LEASE 75% RESIDUAL COST NET ACQ. COST LESS PACKAGE PACKAGE
SUM RECEIVABLE NPV OF NPV VALUE HOLDBACKS HOLDBACKS NO. DATE
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
TOTAL:
---------------------------------------------------------------------------------------------
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--------------------------
Variable Rate Loan Balance
Over(Under) Collateralized: ______________________
II. ELIGIBLE OPERATING LEASES OTHER THAN RENTAL CONTRACTS AND SECURITY
EQUIPMENT LEASE AND/OR MONITORING AGREEMENTS:
-------------------------------------------------------------------------------------------------
60% OF LESSER OF:
REMAINING ESTIMATED NET BOOK NET BOOK 75% OF NPV OR
LEASE 75% RESIDUAL VALUE OF VALUE OR 60% OF NET PACKAGE PACKAGE
SUM RECEIVABLE NPV OF NPV VALUE EQUIPMENT BOOK VALUE NO. DATE
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
TOTAL:
-------------------------------------------------------------------------------------------------
__________________________
Variable Rate Loan Balance
Over(Under) Collateralized: __________________________
III. ELIGIBLE RENTAL CONTRACTS OTHER THAN SECURITY EQUIPMENT LEASE AND/OR
MONITORING AGREEMENTS:
-----------------------------------------------------------------------------------
NET BOOK VALUE ESTIMATED
SUM OF EQUIPMENT 50% OF NBV RESIDUAL VALUE PACKAGE NO. PACKAGE DATE
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
TOTAL:
-----------------------------------------------------------------------------------
__________________________
Variable Rate Loan Balance
Over(Under) Collateralized: __________________________
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IV. ELIGIBLE SECURITY EQUIPMENT LEASE AND/OR MONITORING AGREEMENTS:
--------------------------------------------------------------------------------------------
LESSER OF:
REMAINING ESTIMATED ACQUISITION 75% OF NPV OR
LEASE 75% RESIDUAL COST NET ACQ. COST LESS PACKAGE PACKAGE
SUM RECEIVABLE NPV OF NPV VALUE HOLDBACKS HOLDBACKS NO. DATE
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
TOTAL:
--------------------------------------------------------------------------------------------
__________________________
Variable Rate Loan Balance
Over(Under) Collateralized: __________________________
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Dated as of ____________, 199__
LEASECOMM CORPORATION
BORROWING BASE CERTIFICATE
This Borrowing Base Certificate is delivered to the Agent pursuant to Section
5.10 of the Loan Agreement, dated as of July 29, 1993, as amended and restated
by the Amended and Restated Loan Agreement (the "Agreement") dated as of
___________, and as further amended from time to time thereafter, among the
Borrower, NatWest Bank N.A., Fleet Bank of Massachusetts, N.A., Sanwa Business
Credit Corporation, CoreStates Bank, N.A., PNC Bank N.A., and Commerzbank AG,
New York Branch, as Lenders, and NatWest Bank N.A., as Agent. This Certificate
relates to the above stated Fiscal Month as of the last calendar day of such
Fiscal Month and is signed by an authorized signatory.
The undersigned certifies on behalf of the Borrower that:
The Borrower is now in compliance with all provisions, covenants, warranties,
and representations made by the Borrower in the Agreement and the other Loan
Documents; there does not exist as of this date an Event of Default or Potential
Default; and each of the leases or contracts included in the Borrowing Base
Certificate meets the eligibility criteria as applicable for inclusion herein.
(1) The Revolving Credit/Term Loan Commitment: $___________________
(2) Aggregate Amount of Loans Outstanding: $___________________
(3) 5% of the aggregate Commitment outstanding: $___________________
(4) 25% of the aggregate Commitment outstanding: $___________________
FIXED RATE PACKAGES:
(5) ELIGIBLE LEASES:
The aggregate dollar amount of 75% of the Net
Present Value of the Eligible Lease Receivables: $___________________
(6) Aggregate Fixed Rate Loan Balance Outstanding: $___________________
(7) Net Collateral Position (Over/(Under) $___________________
collateralized): (Line 5 minus Line 6)
VARIABLE RATE PACKAGES:
(8) ELIGIBLE LEASES OTHER THAN OPERATING LEASES AND ELIGIBLE SECURITY
EQUIPMENT LEASE AND/OR MONITORING AGREEMENTS:
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The aggregate dollar amount of the lesser of 75%
of the Net Present Value of the Eligible Lease
Receivables OR the Acquisition Cost of the
Eligible Equipment Less Holdbacks: $___________________
(9) ELIGIBLE OPERATING LEASES OTHER THAN ELIGIBLE RENTAL CONTRACTS AND
ELIGIBLE SECURITY EQUIPMENT LEASE AND/OR MONITORING AGREEMENTS:
The aggregate dollar amount of the lesser of 75%
of the Net Present Value of the Eligible Lease
Receivables or 60% of the Net Book Value of the
Eligible Equipment: $___________________
(10) ELIGIBLE RENTAL CONTRACTS OTHER THAN ELIGIBLE SECURITY
EQUIPMENT LEASE AND/OR MONITORING AGREEMENTS: The
aggregate dollar amount of 50% of the Net Book Value
of the Eligible Equipment: $___________________
(11) The Aggregate dollar amount of Eligible Operating
Leases and Eligible Rental Contracts (the sum of
Line 9 and Line 10): $___________________
(12) Additional Availability under Sublimit: the
excess of: (a) 5% of the Aggregate Commitment
Outstanding (Line 3) over (b) Aggregate
Contracts and Leases under the Sublimit (Line 11): $___________________
(13) If number calculated in Line 12 is negative,
then insert that negative number in Line 13,
otherwise insert -0-: $___________________
(14) ELIGIBLE SECURITY EQUIPMENT LEASE AND/OR MONITORING
AGREEMENTS:
The aggregate dollar amount of the lesser of 75%
of the Net Present Value of the Eligible Lease
Receivables OR the Acquisition Cost of the
Eligible Equipment Less Holdbacks: $___________________
(15) Additional Availability: the excess of: (a) 25%
of the Aggregate Commitment Outstanding (Line 4)
over (b) Aggregate Lease and/or Monitoring
Agreements (Line 14): $___________________
(16) If number calculated in Line 15 is negative,
then insert that negative number in Line 16,
otherwise insert -0-: $___________________
(17) Aggregate Variable Rate Package Borrowing Base:
(the sum of Line 8, Line 11, Line 13, Line 14,
and Line 16) $___________________
(18) Aggregate Variable Rate Loan Balance
Outstanding: $___________________
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(19) Net Collateral Position (Over/(Under)
collateralized): (Line 17 minus Line 18) $___________________
(20) Aggregate Net Collateral Position (sum of
Line 7 and Line 19): $___________________
If the calculation in Line 20 results in an overall negative collateral
position:
(21) Amount of paydown to be applied to Variable Rate
Loan or Fixed Rate Loan: $___________________
(21a) Aggregate Borrowing Base amount of Additional
Leases and Security Equipment Leases and/or
Monitoring Agreements forwarded to the Agent on
behalf of the Lenders: $___________________
The sum of Line 21 and Line 21a must be equal to or exceed the amount calculated
in Line 20.
IN WITNESS WHEREOF, I have executed this Borrowing Computation this _________
day of _______, 199___.
___________________________________
Name:
Title:
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EXHIBIT J-1
DEALER AGREEMENT
This Dealer Agreement entered into this _______ day of ___________ 1995, by and
between Leasecomm Corporation, Inc., 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, a
Massachusetts corporation hereinafter referred to as "Leasecomm" and
________________________________________ of _______________________ hereinafter
referred to as "Dealer".
LEASECOMM is a provider of finance leasing for alarm equipment and monitoring
services. DEALER is in the business of selling, servicing and installing
security/alarm monitoring and related equipment and may also provide security
equipment monitoring services to customers if agreed to by Leasecomm. SECURITY
EQUIPMENT LEASE AND MONITORING SERVICE ("Customer Agreement") as used in this
Agreement shall mean any equipment, monitoring or related services. For the
purposes of this Dealer Agreement, the term "FUNDING PACKAGE" shall include all
of the following:
1. Dealer's Security Equipment Lease and Monitoring Agreement
(original)
2. Dealer's Installation Certificate
3. Copy of Customer's Right of Rescission
4. Copy of Customer's signed Disclosure Statement
5. Assignment Form (original)
6. Dealer invoice
WHEREAS Dealer desires to assign its Customer Agreements to Leasecomm and;
WHEREAS in consideration for the assignment by Dealer, Leasecomm is willing to
pay the Dealer fees as defined in the Dealer's lease program formulated by
Leasecomm.
NOW, THEREFORE, in consideration of the premises and the covenants and
conditions contained herein the parties agree as follows:
1. GENERAL OBLIGATIONS OF LEASECOMM. Leasecomm shall provide the following
services to Dealer:
(a) Purchase monitoring service contracts for customers submitted by the
Dealer and approved by Leasecomm. Approval shall be evidenced by Leasecomm
issuing a customer authorization number. Leasecomm reserves the right to refuse
any potential customer which the Dealer submits. Customer authorization numbers
will automatically expire if Dealer or customer have not met Leasecomm's funding
requirements (a complete, approved Funding Package and proper customer
verification by Leasecomm), within 30 days from the date of issuance of the
authorization number by Leasecomm.
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(b) Xxxx and collect monthly fees from customers as agreed in their Customer
Agreement.
(c) Pay Dealer fees as defined in the Dealer's lease program formulated by
Leasecomm.
(d) Collect all applicable taxes from customer and pay appropriate tax
authorities from funds collected from customers on a timely basis.
(e) On behalf of the Dealer, establish a direct financial relationship with
a mutually agreed upon monitoring service (Central Station) to provide alarm
monitoring services for customers who have submitted an approved Customer
Agreement to Leasecomm. If customer stops paying Leasecomm according to the
terms of the Customer Agreement or violates any material covenant of the
Customer Agreement during such initial term, Leasecomm may cause monitoring
services to be discontinued to the customer in default by notifying the Central
Station of the customer's default. Such defaulting customers will fall under the
terms and conditions of Sections 2, 3 and 4 of this agreement.
2. GENERAL OBLIGATIONS OF DEALER. Dealer shall provide the following
services to Leasecomm:
(a) Submit for approval to Leasecomm, Customer Agreements signed by
potential customers on current authorized documents as issued by and/or
approved by Leasecomm. Approved customers shall comprise the submitting
Dealer's Customer Base. Dealer shall be responsible for his Customer
Base as provided herein.
(b) Coordinate, and perform or cause to be performed the proper installation
of security monitoring equipment at approved customer locations.
Installation shall be in accordance with industry standards and in
compliance with all federal, state, municipal and local laws, rules and
regulations and shall not be deemed complete until equipment is in
satisfactory working order.
(c) Perform or cause to be performed all maintenance and service on the
installed equipment as requested by customer to ensure the proper
working order of the equipment. Dealer will use their best efforts to
provide such service to the customer within three (3) business days of
receiving notice of an equipment problem. On an emergency basis such as
runway alarms, etc., Dealer shall use their best efforts to provide
service to the customer within 6 hours of receiving notice of an
equipment problem.
(d) Notify Leasecomm of any material event that has elected or may
imminently affect the customer equipment or monitoring service in any
way.
(e) In the event of a customer default (for the purpose of this Agreement,
the customer shall be deemed in default if the customer is past due 60
days on any of the first four statements -or- if the Customer violates
any material covenant of the agreement, and/or if the Customer's first
authorized ACH debit is declined by the bank. Leasecomm will
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either charge back or offset against future funding to the Dealer the
original funded amount any time after 10 days after the default date.
3. DEALER COVENANTS, REPRESENTATIONS & WARRANTIES. Dealer covenants,
represents and warrants to Leasecomm with regard to each approved Customer
Agreement submitted under this Agreement that:
(a) A current and authorized Customer Agreement is being used, that the
Customer Agreement has been completed with the knowledge and consent of
the Customer, that the Customer Agreement information is accurate, that
the Customer Agreement has been duly executed by the Customer, and that
the Customer information is accurately conveyed to Leasecomm.
(b) The Service sold to the customer is fully and correctly described in the
Customer Agreement and that the Dealer has made no representations,
expressed or implied, whatsoever to the customer which are not included
in the Customer Agreement and that the Dealer has not agreed to, any
modification of the terms of the Customer Agreement, unless such changes
have been agreed to in advance by all parties. Any such changes shall be
in writing.
(c) The equipment is installed and that all work necessary in connection
with such installation has been performed.
(d) The Dealer has not sold, assigned, transferred, mortgaged, pledged or
granted a security interest in the monitoring agreement to anyone other
than Leasecomm. Dealer ensures that Leasecomm shall at all times retain
good and marketable title to the monitoring agreement free and clear of
any and all liens, charges, encumbrances, mortgages, pledges, security
interests and claims of any kind, until all payments have been received
for the initial term of the Customer Agreement and the contract has been
assigned to the Dealer.
(e) The Dealer will have no right or authority to accept collections for
monthly monitoring payments from customers under any Customer Agreement
or to modify the terms of the Customer Agreement without Leasecomm's
prior written consent. Any monthly payment Dealer receives from a
customer, in relation to the Customer Agreement, shall be received in
trust for Leasecomm's benefit and will be promptly remitted to Leasecomm
in the same form as received. Under no circumstances is the Dealer to
cash or deposit checks payable to Leasecomm. Leasecomm may endorse
Dealer's name on any drafts, checks, money orders, or other forms of
payment made by the customer with respect to monthly fees under the
Customer Agreement.
(f) The Dealer is engaged principally in the sale of goods and services to
the general public and is licensed and in good standing as required by
law. Such good standing shall be maintained during the term of this
Agreement.
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(g) The Dealer shall at all times conduct its business in compliance with
all applicable laws, rules and regulations.
(h) When all payments due under the initial term of any Customer Agreement
have been paid in full, Dealer may, by notice to Leasecomm, request that
Leasecomm assign all of its rights, title, and interest in the Customer
Agreement to the Dealer. Leasecomm shall then cease all functions and
relinquish all obligations with respect to such Customer and such
Customer Agreement. Dealer shall, thereafter, assume all obligations and
provide all such functions directly to the customer. Both parties agree
to take such actions as are reasonably requested to carry out the
provisions hereof. For each Customer Agreement that defaults prior to
Leasecomm having received payments from the customer equal to, or
greater than, the original dollar amount paid by Leasecomm to the Dealer
for that Customer Agreement, Leasecomm reserves the right to retain
ownership of one Customer Agreement which has paid its full contractual
obligation for the initial term from the Dealer's portfolio. In these
instances, Leasecomm will assign the original, defaulted Customer
Agreement back to the Dealer.
Dealer understands and acknowledges that each of the above covenants,
representations and warranties is material to Dealer's Customer Agreement. Any
breach of covenant, representation or warranty shall constitute a Dealer
default.
4. DEALER FEES. Leasecomm shall pay the Dealer fees in accordance with the
following terms and conditions:
(a) Dealer shall be paid for all Customer Agreements as approved by
Leasecomm accordance with the terms of this Agreement and within the
guidelines of the Dealer's rate program, other than as provided for in
Section 2e.
5. TERMINATION. Either party may terminate this Agreement at anytime after
thirty (30) days written notice to the other. Such termination will in no way
affect the obligations of either party with respect to transactions already
consummated.
6. WAIVER. Dealer's compensation, under this agreement, shall be in
accordance with the terms and conditions stated herein. The Dealer waives any
claims for consequential and/or punitive damages.
7. INDEMNIFICATION. Dealer agrees to indemnify and hold Leasecomm harmless
from all losses, damages, liabilities and expenses (including reasonable
attorney's fees and court costs) which may result from any claim or action
against Leasecomm by any customer arising out of any action or omission by the
Dealer in connection with the Customer Agreement and installed equipment, any
representation or warranty made by the Dealer to the customer, or any other
claim arising out of the Dealer's conduct in promoting or administering the
Service.
8. RELATIONSHIP OF PARTIES. This Agreement does not make either party the
agent, legal representative, employee, partner, franchisee or joint venture of
the other for any
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any purpose whatsoever, nor does it grant either party any authority to assume
or to create any obligation on behalf of or in the name of the other. Dealer
shall conduct his business as an independent contractor, and all persons
employed in the conduct of such business shall be Dealer's employees or agents.
9. GOVERNING LAW. This Agreement shall be considered to be MASSACHUSETTS
contract and shall be deemed to have been made in Middlesex County,
Massachusetts, regardless of the order in which the signatures of the parties
shall be affixed thereto, and shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the law, and in
the courts, of the Commonwealth of Massachusetts. The undersigned hereby
consents and submits to the jurisdiction of the courts of the Commonwealth of
Massachusetts for the purpose of any suit, action or other proceeding arising
out of the undersigned's obligation thereunder, and expressly waives any
objection to venue in any such courts.
10. NOTICES. Any modification to this Agreement shall be signed by the party
giving such notice and sent to the parties at the address set forth in the first
paragraph of this Agreement, or to such other address as either party may
establish. By executing this document each of the parties hereto is warranting
and representing that they have read the Agreement and understand each of the
terms and conditions contained herein. Each of the parties further warrants and
covenants that it agreess and is satisfied with the terms and conditions and is
signing this Agreement at his free act and deed and not under any coercion.
11. WAIVER. The failure of either party at any time to exercise any of its
rights under this Agreement shall not be deemed a waiver of such rights, nor
shall such failure in any way prevent such party from subsequently asserting or
exercising such rights.
12. ENTIRE AGREEMENT. This Agreement sets or the entire agreement of
Leasecomm and the Dealer as to the subject matter, both written and verbal as of
the date listed below. If any provision of this Agreement is held invalid or
unenforceable under the laws of the United States or of any state, county or
political subdivision thereof, such holding shall not invalidate any of the
other provisions of the Agreement. If any provision of this Agreement is
prohibited by any law, it shall be void but only where and to the minimum extent
necessary for compliance with such law. Any changes or amendments to this
Agreement shall be in writing, signed by authorized representatives of each
party.
In witness whereof, the parties hereto have caused this Agreement to be executed
by their authorized representatives as of the date first written above.
Leasecomm Corporation Dealer
By: ___________________________ By: ___________________________
Title: ________________________ Title: ________________________
Date: _________________________ Date: _________________________
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