EXHIBIT 10.42
================================================================================
AMENDED AND RESTATED
MASTER SALE OF
CHATTEL PAPER AND SECURITY AGREEMENT
DATED AS OF MARCH 19, 1996
BY AND AMONG
EUROPEAN AMERICAN BANK
AS BUYER
AND
BANKVEST CAPITAL CORP.
LEASEVEST CAPITAL CORP.
AS SELLERS
================================================================================
AMENDED AND RESTATED MASTER SALE OF CHATTEL PAPER AND SECURITY AGREEMENT
dated as of March 19, 1996, among EUROPEAN AMERICAN BANK ("Buyer"), with an
address at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and BANKVEST CAPITAL CORP.
("BankVest"), and LEASEVEST CAPITAL CORP., jointly and severally, (each a
"Seller" and collectively, the "Seller"), each a Massachusetts corporation, with
its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
RECITALS
--------
A. Pursuant to a Master Sale of Chattel Paper and Security Agreement dated
as of May 9, 1995, between Buyer and Seller (the "Original Agreement") the
Seller sold and the Buyer purchased certain equipment lease Paper.
B. The Original Agreement provided that the aggregate purchase price for
the Paper was not to exceed $5 million.
C. Seller desires to sell and Buyer desires to purchase, from time to time
on the terms and conditions set forth herein, additional equipment lease paper
for an aggregate purchase price not to exceed $10,000,000. (which amount shall
include the aggregate purchase price of the Paper purchased pursuant to the
Original Agreement) and Seller and Buyer desire to amend and restate, in its
entirety, the Original Agreement.
Accordingly, Seller and Buyer hereby agree as follows:
1. DEFINITIONS.
-----------
The following terms, and all other capitalized terms when used in this
Agreement shall have the meanings assigned to them herein unless the context
otherwise requires:
"Agreement" shall mean this Amended and Restated Master Sale of Chattel
Paper and Security Agreement, as the same may be further modified, amended or
restated from time to time in the manner provided herein.
"Assignment" shall mean the instrument entitled "Sale and Assignment of
Chattel Paper" evidencing the sale, assignment and transfer of an item of Paper
by Seller to Buyer, incorporating the terms of this Agreement, substantially in
the form of Exhibit "A" annexed hereto.
"Debtor" shall mean the obligor under an item of Paper, and its successors
and assigns.
"Debtor Obligations" shall mean (a) the unpaid balance of monies due or to
become due under an item of Paper, including all extensions or modifications
thereof, and (b) all other obligations of a Debtor pursuant to such Paper.
"Equipment" shall mean all of the machinery, equipment, motor vehicles,
furniture and fixtures identified and described in an item of Paper, together
with all parts, attachments, accessions, accessories and additions that at the
time of the delivery of an Assignment or thereafter is affixed or related
thereto, and all substitutions and replacements thereof, wherever located.
"Guarantor" shall mean any person or entity guaranteeing any of the Debtor
Obligations.
"Paper" shall refer to any equipment lease, installment sale contract or
other chattel paper sold, assigned and transferred by Seller to Buyer pursuant
to an Assignment between Seller or another party, and a Debtor, including any
schedules, amendments or addenda thereto, and all purchase options, renewal
options, guaranties, security agreements, pledge agreements and other
agreements, documents and instruments relating thereto.
"Pledgor" shall mean any person or entity pledging any collateral as
security for any of the Debtor Obligations.
"Property" shall have the meaning assigned to such term in Section 3
hereof.
"Repurchase Price" shall have the meaning assigned to such term in Section
8(a) hereof.
"Seller's Obligations" shall mean all obligations of Seller and all
extensions and renewals thereof, of every nature owed at any time to Buyer,
whether now existing or hereafter incurred, direct or contingent, pursuant to
the terms of this Agreement or any Assignment including, but not limited to, the
Repurchase Price owed with respect to any item of Paper.
"UCC" shall mean the Uniform Commercial Code.
2. SALE OF PAPER.
-------------
(a) Subject to the terms and conditions set forth in this Agreement,
Seller hereby agrees to sell and Buyer hereby agrees to purchase from time to
time during the period commencing May 9, 1995 and ending on February 28, 1997
(the "Commitment Expiration Date"), Paper which satisfies the requirements of
Section 4(b) hereof for an aggregate purchase price not to exceed
2
$10,000,000 (which amount shall include the aggregate purchase price of Paper
purchased pursuant to the Original Agreement) (the "Commitment"). Each transfer
of an item of Paper shall be evidenced by and described in an Assignment signed
by Seller specifying the amount, terms of payment, the Equipment covered by such
Paper, all security deposits and related agreements, guaranties, instruments and
agreements. Seller shall not in any Assignment or otherwise delegate any of its
obligations under such Paper, to Buyer. Rates quoted by Buyer to Seller with
respect to an item of Paper proposed to be sold hereunder shall be valid for a
period of sixty (60) days from the date of such quote, and if such Paper is not
sold to Buyer in accordance with the terms hereof within such period, the Buyer
reserves the right to withdraw such offer without notice. The rate shall be such
rate as quoted by Buyer from time to time in its sole and absolute discretion.
(b) Prior to and as a condition precedent to the execution hereof by
Buyer, Seller shall deliver to Buyer in form and substance satisfactory to
Buyer, the following:
(i) a certificate, substantially in the form of Exhibit B
annexed hereto, of the Corporate Secretary of Seller relating to the
incumbency and signatures of the officers authorized to execute this
Agreement and certifying the resolutions of Seller's Board of Directors
authorizing Seller to enter into and be bound by this Agreement and the
transactions contemplated hereby; and
(ii) a written opinion of Seller's legal counsel, in form and
substance acceptable to Buyer.
(c) Prior to and as a condition precedent to the purchase of each
item of Paper hereunder, Seller shall deliver, in form and substance
satisfactory to Buyer, the following:
(i) the duly executed, complete and sole original counterpart
number 1 of the Paper, marked "Original";
(ii) a Delivery and Acceptance Certificate for the related
Equipment, in form and substance satisfactory to Buyer, executed by the
Debtor;
(iii) an Assignment, substantially in the form of Exhibit A,
completed and duly executed by Seller;
(iv) fully executed UCC financing statements on form UCC-1 as
required by Buyer for filing by Buyer against Seller and the Debtor;
3
(v) original bills of sale or other proofs of ownership of
the Equipment acceptable to Buyer, together with proof of payment in full;
(vi) original vehicle title, where applicable, naming Buyer as
primary lienholder; and
(vii) such other documents as Buyer may reasonably request,
including, but not limited to, landlord/mortgagee waivers.
(d) Notwithstanding anything contained herein to the contrary, Buyer
shall not be obligated to purchase any Paper in respect of a Debtor previously
approved if (i) the provisions contained in the submitted equipment lease,
installment sale contract or other chattel paper deviate in any respect from the
terms on which Buyer based its credit approval, (ii) there shall have been a
material adverse change in the financial condition or operations of the Seller
or the proposed Debtor, (iii) there shall be any claim, action, litigation or
proceeding pending or threatened against Seller or the proposed Debtor that, if
adversely determined, could cause a material adverse change in the financial
condition or operations of Seller or the proposed Debtor, or (iv) the date of
the original credit approval is more than sixty (60) days prior to the date of
delivery of the documents specified in Section 2(c) hereof, and the Debtor's
credit is not reapproved.
3. SECURITY INTEREST.
-----------------
As security for the prompt payment in full to Buyer of Seller's Obligations
and all Debtor Obligations with respect to each item of Paper, Seller grants
and/or assigns and conveys to Buyer continuing purchase money security interest
(which upon the filing of executed financing statements the jurisdiction in
which the property is located will constitute a first priority perfected
security interest) in the following (herein collectively referred to as the
"Property"): (a) the Equipment covered by such Paper and all proceeds and
products thereof in any form whatsoever including (without limitation) accounts,
chattel paper, instruments, general intangibles, insurance proceeds and any
claims against third parties for loss of or damage to the Equipment, and (b) all
books, records, ledger cards and other property and general intangibles at any
time evidencing or relating to the Paper and the Equipment.
4. REPRESENTATIONS AND WARRANTIES OF SELLER.
----------------------------------------
Seller hereby represents and warrants to Buyer (which representations shall
survive the execution, delivery and
4
performance of this Agreement), as of this date of this Agreement and as of the
date of the delivery of each Assignment with respect to such Assignment, the
Paper transferred thereby, the Debtor under such Paper and the Equipment, that:
(a) Seller is a corporation duly organized and in good standing under
the laws of the state of its incorporation and is duly qualified or licensed to
do business as a foreign corporation, in good standing, in each other state
wherein the conduct of its business or the ownership of its property would
require such qualification or licensing or whether failure to be so qualified
would have an adverse effect on the enforceability of Seller's rights under any
item of Paper or its interests in any Equipment. Seller maintains its chief
executive office and principal place of business at the address set forth above
and shall not change such location except upon thirty (30) days prior written
notice to Buyer. Seller has the corporate power, authority and legal right to
enter into, and has taken all action necessary to authorize the execution,
delivery and performance of this Agreement, the Paper, the Assignment and all
other documents and instruments otherwise required or contemplated hereunder and
thereunder, any and all of which do not and shall not contravene the provisions
of Seller's Certificate or Articles of Incorporation, By-Laws, or any agreement
or instrument to which it is a party or by which it or its property is bound,
and shall not cause or result in any violation, breach or default of, or
accelerate any payment under, any such agreement or instrument. This Agreement
and the Assignment are the legal, valid and binding obligations of Seller, each
enforceable against Seller in accordance with the terms thereof. Seller is the
sole and absolute owner of the Paper and the Equipment (or, with regard to the
Equipment, has a first priority purchase money security interest in therein),
and has the absolute right to sell and assign the Paper and to grant or assign
and convey to Buyer a first priority purchase money security interest in the
Property, free of any claim, lien, encumbrance or security interest of any
nature, except for the interest of the Debtor, and except that Seller's interest
in any software is limited to a non-exclusive license therein. Seller has not
prepaid, released, sold, assigned nor encumbered the Paper or any of the
Equipment to or in favor of any party nor done any act to impair the validity or
enforceability of the Paper or assignability of the Equipment. There is no
consent, approval or authorization of, or filing or recording with, any
governmental body or agency or of any company or person required to be obtained
or made in connection with the execution, delivery and performance by Seller of
this Agreement, the Assignment, the Paper or any other document or instrument
required or contemplated hereunder, except as contemplated by Section 4(c)
hereof. There is no claim, action, litigation or proceeding before any court,
governmental body or agency pending
5
or threatened against Seller or, to the knowledge of Seller, pending or
threatened against the Debtor, any Guarantor, any Pledgor, the Paper or the
Equipment, except as disclosed in writing to Buyer prior to the sale and
delivery of the Paper to Buyer.
(b) The Paper and all purchase options, renewal options, guaranties,
security agreements, pledge agreements and other related agreements, documents
and instruments will each have been described in the Assignment and delivered to
Buyer, and, together with all signatures appearing thereon, are: genuine, in
all respects what they purport to be, in full force and effect, and valid,
legally binding agreements of and enforceable against the Debtor and the
Guarantor and any Pledgor, as the case may be, in accordance with the provisions
thereof. Seller has no adverse credit information about the Debtor or any
Guarantor or any Pledgor which has not been disclosed to and approved by Buyer
in writing, and has furnished to Buyer all credit information received by Seller
with respect thereto. The Debtor has taken all necessary corporate or other
action and obtained all necessary permits and authorization and made all filing
and recordings with respect to its execution and delivery of the Paper and its
performance thereof. The Paper is an absolute and unconditional obligation of
the Debtor, and the Debtor does not have any right of offset, defense, claim or
counterclaim of any kind with respect to the payment of any of the Debtor
Obligations under the Paper, is current on all payments (within 60 days of the
last scheduled payment date) and taxes owed thereunder and is not contesting any
of the provisions thereof. All representations in the Paper made by Seller were
true and correct when made. No default, and no event that, but for the passage
of time or the giving of notice or both, would constitute a default, and is
continuing under the provisions of the Paper by either Seller or the Debtor. All
sums of money previously paid by the Debtor as advance rentals or deposits of
security, in whatever form, have been fully disclosed to Buyer. Seller has
delivered to Buyer the sole executed original counterpart of the Paper, and such
agreement constitutes the entire agreement of the parties thereto with respect
to the Equipment and has not been modified, cancelled or waived in any respect,
and there are no other agreements or documents relating to the Paper or the
Equipment. Seller has caused all other executed copies of the Paper (including,
without limitation, any executed counterpart(s) in the possession of the Debtor)
to bear the legend: "Duplicate Copy", "Second Copy", "Lessee Copy" or language
of similar import.
(c) Unless otherwise disclosed to and approved by Buyer in writing
prior to the delivery of the Assignment, the Equipment is new, has been
delivered to and has been unconditionally accepted by the Debtor without dispute
or claim,
6
and is located at the address(es) specified in the Paper. The Equipment is, and
shall remain, personal property regardless of its attachment to real property in
any manner, and is in good working order. Seller has properly made or caused to
be made all required governmental and administrative filings and recordings, if
any, and has obtained unconditionally all permits and approvals (including
patent licenses, if any) necessary to protect the interest of Seller as owner of
the Equipment, and has or shall, if required by Buyer under Section 2(c)(ix)
hereof, promptly, at its sole cost and expense, obtain and deliver to Buyer
waivers, executed by the landlord and/or the mortgagee(s) of the real property
where the Equipment is located, of any claim or right to lien, levy or distrain
for rent against the Equipment and of any claim of an interest in the Equipment,
as fixtures or otherwise, duly executed in form and substance acceptable to
Buyer and in recordable form in accordance with the laws of the state where such
real property is located. Buyer's security interest in the Equipment is, or will
constitute, upon the filing or recording of the UCC financing statements
delivered by Seller to Buyer together with each Assignment, a valid, enforceable
and perfected first priority purchase money security interest in the Equipment
pursuant to the laws of the jurisdiction(s) where the Equipment is located;
provided, however, with respect to Equipment with an original value of $10,000
or less no UCC financing statement has been filed. If a Certificate of Title is
required by law with respect to the Equipment, Seller has obtained such
Certificate and shall cause any notation thereon to be made in a timely manner
to perfect Buyer's first priority security interest in the Equipment. Seller has
duly filed UCC financing statements which, if Seller's interest in the Equipment
were deemed to be a security interest, would perfect a first priority security
interest of Seller in the Equipment in the jurisdiction where the Equipment is
located. Acknowledgment copies of these UCC financing statements, together with
acknowledgment copies of UCC financing statements duly filed to protect Buyer's
interest in the Paper, have been delivered to Buyer with the Assignment, or will
be so delivered promptly upon receipt of such copies from the applicable filing
office; provided, however, with respect to Equipment with an original value of
$10,000 or less no UCC financing statement has been filed.
(d) Seller has delivered to Buyer all material written information in
its possession with respect to the Paper, the Debtor, any Guarantor or Pledgor
and the Equipment. All statements, documents, instruments, information,
representations and warranties made or furnished by Seller to Buyer relating to
the business and financial affairs of Seller, this Agreement, the Assignment,
the Paper, the Debtor, any Guarantor or Pledgor and the Equipment are in all
material respects true and complete, and Seller knows of no fact which, if known
to Buyer, would affect
7
Buyer's reliance on any of the foregoing.
(e) At the time an Assignment is delivered to Buyer, the Equipment is
fully insured against loss, fire, theft, damage or destruction from any cause
whatever in an amount not less than the total rent under the Paper or the full
replacement cost of the Equipment without provision for depreciation, whichever
is greater, and the Debtor maintains additional insurance against injury, loss
or damage to persons or property arising out of the use or operation of the
Equipment as is customarily maintained by owners of like property, all with
companies satisfactory to Buyer.
5. CERTAIN COVENANTS OF SELLER.
---------------------------
Seller hereby covenants and agrees that so long as Seller's Obligations or
any Debtor Obligations with respect to any item of Paper remain unpaid, it
shall:
(a) perform and observe all of the warranties, duties and
obligations, if any required of it under each item of Paper and nothing
contained herein or in any other document nor any action taken shall be deemed
to relieve Seller from, or cause Buyer to assume, or be liable for, the
performance or observance of any of such warranties, duties or obligations;
(b) immediately upon obtaining knowledge thereof, notify buyer in
writing of each default, or any circumstances which might lead to a default
pursuant to the provisions of any time of Paper, or the damage, destruction,
loss or theft of, or any dispute or claim with respect to, the Equipment;
(c) execute and deliver to Buyer, at Seller's sole cost and expense,
such security agreements, UCC financing statements, amendments and other
documents or instruments, in form and substance satisfactory to Buyer, as Buyer
may request, from time to time, to evidence, perfect, maintain and enforce
Buyer's rights in each item of Paper and security interest in the related
Property; Buyer may, where permitted by law, file such UCC financing statement
without the signature of Seller appearing thereon;
(d) keep proper books and records with respect to each item of Paper
and the Equipment covered thereby; upon reasonable advance notice from Buyer,
Seller shall permit Buyer to inspect and make copies of all such books and
records of account financial condition as Buyer may reasonably request;
(e) not modify, accept any payment from any Debtor under, or make any
payment on behalf of or to any Debtor for the
8
purpose or with the result, whether or not intended, of concealing or preventing
an event of default under, any item of Paper, and Seller agrees that if any such
payment is received by it, such payment shall be held in trust for the sole
benefit of Buyer and shall promptly be remitted by Seller to Buyer;
(f) not discontinue or change, or dispose of all or a substantial
part of, its business or assets, nor sell, assign, transfer, dispose of, or
grant or suffer to exist any security interest lien, encumbrance or other
interest of any kind with respect to any item of Paper or any Equipment, or move
or permit the removal of the Equipment leased covered thereby from the
address(es) specified in the Paper;
(g) shall furnish Buyer within 120 days after the close of each
fiscal year copies of its financial statements containing balance sheets as of
the end of such fiscal year, statements of income, retained earnings and cash
flow for such fiscal year, in each case prepared in accordance with generally
accepted accounting principles consistently applied and certified by a
recognized firm of certified public accountants acceptable to Buyer as fairly
presenting Seller's financial condition; upon request, Seller shall deliver to
Buyer, (i) within 60 days after the close of each fiscal quarter of Seller's
business, Seller's quarterly financial report prepared in accordance with
generally accepted accounting principles consistently applied and certified by
Seller's chief financial officer as fairly presenting Seller's financial
condition, and (ii) such other information concerning Seller's financial
condition and operations as Buyer may reasonably request from time to time;
(h) shall, if any forms of Paper, delivery and acceptance receipts,
resolutions, guaranties and other documents are furnished to Seller by Buyer,
use such forms only in conjunction with transactions that Seller sells to Buyer
hereunder, and Seller shall not disclose, distribute or otherwise disseminate
any such form to any third party (other than the Debtor) or claim a proprietary
interest in any such form or in any other document delivered to Buyer by Seller,
shall not constitute a defense against or waiver of Seller's breach of any
representation, warranty or covenant in this Agreement or in any Assignment.
Buyer's knowledge of any breach by Seller of any representation, warranty or
covenant contained in this Agreement or in any Assignment, or Buyer's failure to
disclose its knowledge of such breach to Seller, at the time of the purchase of
any item of Paper or at any time thereafter, shall neither impair Buyer's
ability to fully enforce, nor constitute a defense against or waiver of, any of
Seller's Obligations, unless Buyer shall have executed an express written waiver
or such breach; and
9
(i) immediately notify Buyer of the assertion of any claim or the
threat or institution of any litigation that, if adversely determined, would
have a material adverse effect on any item of Paper or the Equipment covered
thereby, or on the assets, prospects, business or condition (financial or
otherwise) of Seller.
6. TAXES.
-----
Seller shall be liable for, and shall duly pay and discharge, all taxes,
assessments and penalties (including interest) imposed upon all transactions
under this Agreement, all Assignments, all paper and all Equipment, including
(without limitation all taxes, assessments and penalties that Buyer may be
required to withhold or pay for any reason with respect to any of the foregoing,
other than taxes on or measured by Buyer's net income. Seller hereby
indemnifies and holds Buyer harmless from and against all such taxes,
assessments and penalties paid (including interest) by, charged to or asserted
against Buyer. Notwithstanding the foregoing, Seller shall not be liable for
and does not indemnify Buyer from any penalties or interest resulting from
Buyer's gross negligence or willful misconduct.
7. SERVICING, POWER OF ATTORNEY.
----------------------------
So long as no Event of Default shall have occurred, Seller shall be
responsible, at its expense, for all billing, collecting and servicing with
respect to the Paper. In performing such servicing, Seller shall use the degree
of skill and attention used by servicers servicing similar portfolios of Paper,
and in any event, not less than the degree of skill and attention used by the
Seller prior to the sale of the Paper to Buyer. Seller may retain Xerox, Inc.
("Xerox") to service all or a portion of the Paper; provided, however, prior to
any servicing by Xerox, Buyer shall have received a letter from Xerox, in form
and substance satisfactory to Buyer, to the effect that upon an Event of Default
and termination by Buyer of Seller's servicing of the Paper hereunder, Xerox
shall continue to service the Paper on terms to be set forth in an agreement
between Xerox and Buyer which terms shall be substantially similar to the terms
on which Xerox is currently servicing Paper for Seller.
(a) In performing its duties under this Section 7, Seller shall be an
independent contractor of the Buyer and shall not be an agent of Buyer. This
Agreement shall not be construed to create a partnership or joint venture
between the parties.
(b) Until termination of the servicing hereunder, Seller shall give
representatives of Buyer access, at Seller's premises,
10
during normal business hours and on reasonable advance notice to the records of
Seller relating the Paper and shall, upon reasonable advance notice, make a
available to representatives of Buyer at Seller's premises employees of Seller
who are familiar with the Paper and Seller's servicing procedures relating to
the Paper.
(c) Seller shall not amend or modify any term of any Paper without the
prior written consent of Buyer.
(d) Seller shall keep and maintain, or cause its agents to keep and
maintain, complete and accurate records of all funds collected and paid during
the servicing hereunder relating to the Paper, and shall, or cause its agents
to, remit funds on demand to Buyer from time to time.
(e) All funds collected by Seller in respect of the Paper and the
Equipment less an amount equal to Seller's Spread (as defined below) shall be
remitted to Buyer by wire transfer of immediately available funds to an account
designated by Buyer within five (5) business days of the end of each calendar
month commencing the calendar month ending May, 1995. "Seller's Spread" shall
mean an amount equal to the positive difference between the total payments
received by Buyer with respect to each item of Paper at the rate specified in
the Paper less the total payments at the rate in effect in accordance with
Section 2 hereof with respect to each item of Paper. A schedule of such amounts
with respect to the initial purchase of Paper hereunder is set forth on Schedule
A. Within ten days of the end of each calendar month, Seller shall deliver, or
shall cause Xerox to deliver, to Buyer an receivables aging report in form and
substance satisfactory to Buyer with respect to collections during the
immediately preceding month together with such other servicing reports
reasonably requested by Buyer. Other than with respect to payment of the
Seller's Spread hereunder, Buyer shall have no obligations to pay Seller or
reimburse Seller with respect to any cost or expenses incurred by Seller or its
agents in connection with the servicing contemplated hereunder.
(f) On the date hereof, and from time to time, upon the purchase of Paper
hereunder, Seller shall deposit into a interest bearing account at Buyer in the
name of Buyer an amount equal to one months' scheduled collections of the Paper.
The amounts in such account shall secure the Sellers' joint and several
obligations hereunder, subject to Section 11 hereof. Buyer, from time to time,
in its sole and absolute discretion may release funds in the account to Seller.
Buyer shall have the right to apply, from time to time, amounts in the account
to payment of Seller's obligations to Buyer under this Agreement.
11
(g) Seller will indemnify, defend and hold Buyer harmless against and from
any and all losses, damages, costs, expenses, reasonable attorneys fees' or
other liabilities, arising out of or resulting from the failure of Seller or its
agents to service the Paper in accordance with this Section 7.
(h) Buyer upon not less than thirty days' prior notice to the Seller (or
one days' prior notice in the event any proceeding or action referred to in
Section 12(ii) or 12(iii) shall have occurred) shall have the right to
terminate Seller's servicing hereunder for cause or no cause. In the event of
termination, Seller agrees to cooperate with Buyer in order to ensure an orderly
transfer of servicing to Buyer or its designee.
(i) Effective upon the date of termination of the servicing pursuant to
the Servicing Agreement, Buyer shall have the sole and exclusive right to
collect and enforce payment of all Debtor Obligations with respect to, and
enforce all of the rights and remedies provided for in, each item of Paper.
Seller hereby constitutes and appoints Buyer, its officers, employees and any of
their designees, as its attorney-in-fact, to exercise in a lawful manner at any
time any or all of the following powers which, being coupled with an interest,
shall be irrevocable until Debtor Obligations with respect to each item of Paper
have been paid in full: (i) to demand, collect, receive, receipt, endorse,
assign, deliver, accept, give acquittances for and deposit in the name of Buyer
or Seller, any and all monies, checks, remittances and other instruments and
documents relating to each item of Paper and Equipment; (ii) to notify the
Debtor under each item of Paper of the assignment of the respective Paper and
Buyer's interest, including its security interest in the Equipment; (iii) to
notify each Debtor to make payments under its Paper directly to Buyer; (iv) to
take or bring in the name of Buyer or Seller, all steps, actions, suits or
proceedings, or to file any claim or to make any settlement, compromise or
discharge, or to extend the times of any payments, release any party or
substitute another as Debtor, deemed by Buyer necessary or desirable to enforce
its rights in any item of Paper, or to effect collection of the Debtor
Obligations or to protect, preserve, maintain or enforce Buyer's security
interest in the Property; (v) to maintain, repair, protect or preserve the
Equipment; and (vi) to execute and file in Seller's name and on its behalf any
Paper, UCC financing statements, assignments, continuations or amendments
thereto with respect to Buyer's interest in any Paper and security interest in
any of the Property. Seller hereby releases Buyer, its officers, directors,
shareholders, employees and designees from any liability arising from any act or
acts hereunder or in furtherance hereof, whether of omission or commission and
whether based upon any error of judgment or mistake of law or fact.
12
8. REPURCHASE OF PAPER.
-------------------
(a) In the event that (i) Seller defaults in the performance of any
of its obligations under any item of Paper, this Agreement or any agreement or
document or instrument related thereto, or (ii) any warranty or representation
made by Seller herein or in any Assignment in respect of any item of Paper, the
Debtor thereunder, any Guarantor or Pledgor or the Equipment shall be incorrect
or (iii) as to any item of Paper, the Debtor thereunder shall have defaulted in
the payment of its obligations and such default shall have continued unremedied
by such Debtor for ninety-one days or more, then Seller agrees to pay to Buyer
on demand, at Buyer's option, the sum of: (i) the then unpaid balance of rental
payment accruing under each item of Paper to which such default or breach
pertains, each discounted using the simple interest method at the rate
applicable to the Assignment by which such Paper was sold by Seller to Buyer,
plus all reasonable costs and expenses incurred by Buyer relating to each such
paper and the Equipment covered thereby, including (without limitation) the
costs and expenses for the maintenance, repair, protection and preservation of
the Equipment and all reasonable attorneys' fees and expenses in connection with
defending or enforcing Buyer's rights and remedies under this Agreement, such
Paper and the Equipment leased thereunder or otherwise, plus (ii) all advance
rentals and other fees paid to Seller with respect to each such Paper, plus
(iii) interest at the rate of eighteen percent(18%) per annum on the amount
determined under Section 8(a)(i) and (ii) hereof from the date of demand until
the date paid in full, or the highest rate of interest permitted by applicable
law, whichever is less (such sum hereinafter being referred to collectively, as
the "REPURCHASE PRICE").
----------------
(b) If, with the consent of Buyer and Seller, a Debtor exercises an
option to prepay its obligations under an item of Paper or to purchase the
Equipment for an amount that is less than the Repurchase Price for such Paper at
the time of exercise of such option, then Seller agrees to pay Buyer on demand
the difference between such amount paid and the Repurchase Price for such Paper.
(c) Notwithstanding anything to the contrary contained herein or in
any other document, if any event of default shall occur under any item of Paper
for any reason whatsoever during a period of time commencing with the date of
Buyer's purchase of such Paper up to and including a date three (3) months
subsequent thereto, and such event of default shall continue unremedied for a
period of fifteen (15) days ("DEFAULTED PAPER"), Seller agrees, upon receipt of
---------------
written notice from Buyer, to either (i) repurchase such Defaulted Paper at the
Repurchase Price within
13
fifteen (15) days of receipt by Seller of such notice, or (ii) at Buyer's
option, assign to Buyer (in accordance with the terms of this Agreement) such
substitute Paper as shall be reasonably acceptable to Buyer in exchange for such
Defaulted Paper.
(d) Upon payment to Buyer of the Repurchase Price with respect to an
item of Paper in accordance with Section 8(a) hereof and provided Seller has not
breached and is not otherwise in default under any provision of this Agreement
or any Assignment, Buyer shall terminate its interests including its security
interest in the related Property and shall assign to Seller all of Buyer's
right, title and interest in the Paper without recourse, representation or
warranty, express or implied.
(e) In the event that, upon the payment of all amounts to be paid to
Buyer under an item of Paper, Buyer is unable to locate Seller (for the purpose
of re-assigning the Paper to Seller) by sending a notice to Seller at its
address for notices set forth in this Agreement, Seller hereby irrevocably
authorizes and appoints Buyer (in Seller's name or Buyer's name, or both, as
Buyer shall in its sole discretion determine) Seller's true and lawful attorney-
in-fact to deliver to the Debtor under such Paper (a) a ▇▇▇▇ of sale for the
Equipment covered by such Paper, whether or not such Debtor has an option to
purchase the Equipment and for such consideration (or for no consideration) and
on such other terms as Buyer shall in Buyer's discretion determine (any
consideration received to be retained by Buyer), and (b) a UCC termination
statement terminating the filing of any UCC financing statement filed by Seller
with respect to the Equipment. The foregoing powers are coupled with an
interest and shall not be affected by Seller's dissolution, reorganization or
any merger.
9. INDEMNIFICATION.
---------------
(a) Seller hereby indemnifies and holds Buyer harmless against any
claim, suit, action, proceeding (formal or informal), investigation, judgment,
loss and legal and other expenses as and when incurred by Buyer arising out of
or based upon (i) the breach by Seller of any representation, warranty, covenant
or other agreement contained in this Agreement or in any Assignment, including
(without limitation) any failure to pay any sales, use or similar tax with
respect to any item of paper or the Equipment covered thereby, (ii) any loss or
damage to property, persons, services or equipment resulting from or in
connection with the use of any equipment, (iii) any default by Seller under any
item of Paper or in the performance of any of its obligations thereunder.
(b) If Seller fails to perform hereunder or under any Assignment or
item of Paper, then in addition to any other right,
14
Buyer may have, Buyer may in its discretion, but need not perform thereunder on
Seller's behalf, and in that event, Seller shall pay buyer, on demand, all costs
and expenses incurred by Buyer with interest at the rate of 18% per annum or the
highest rate permissible under applicable law, whichever is less.
10. DEFAULTS AND REMEDIES.
---------------------
(a) In the event (each, with respect to any Seller, a "Default"):
(i) Seller shall fail to repurchase and pay the Repurchase
Price for any item of Paper from Buyer, when and as provided in
Section 8(a) hereof; or
(ii) Seller defaults in any other payment obligations, or in the
performance or observance of any other covenant, agreement, warranty,
representation, or provision contained in this Agreement, or any other
agreement with Buyer, and such default shall have continued for a
period of thirty (30) days after notice thereof to Seller from Buyer
or, if the default is curable but cannot, in Buyer's judgment, be
cured within such 30-day period, then, within an additional thirty
(30) days, if Seller commences promptly to cure such Default and
pursue their best efforts to diligently cure the same; or
(iii) Seller defaults in the payment of any indebtedness of
Seller in the principal amount of $250,000 or more or any interest
thereon or under any agreement or instrument under or pursuant to
which any such indebtedness may have been issued, created, assumed, or
guaranteed by Seller and such default shall continue for more than the
period of grace, if any, therein specified, or any such indebtedness
shall be declared due and payable; or
(iv) Seller shall: (a) cease to do business as a going concern;
(b) admit in writing its inability to pay its debts generally as they
become due; (c) make an assignment for the benefit of its creditors;
or (d) commence a proceeding for the appointment of a receiver,
trustee, liquidator or conservator of itself or of the whole or any
substantial part of its property; or
(v) a complaint or petition or answer seeking liquidation,
reorganization or arrangement or any
15
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
is filed by Seller or against Seller and not dismissed within sixty
(60) days of the filing thereof, or a court of competent jurisdiction
shall enter an order, judgment or decree appointing a receiver,
trustee, liquidator or conservator (or shall otherwise assume custody
or control) of Seller or of the whole or any substantial part of its
assets;
then, if such Default shall be continuing, Seller shall, immediately upon
Buyer's demand, purchase any or all of the Paper sold to Buyer hereunder for the
Repurchase Price therefor. If Seller fails to purchase such Paper immediately
upon Buyer's demand, Buyer shall have the following rights and remedies (to the
extent permitted by law) in addition to all of the rights and remedies of a
secured party under the UCC of the applicable jurisdiction and other applicable
law, and the right to commence an action or proceeding against Seller for the
payment of the Repurchase Price of such Paper and all other amounts due under
this Agreement, all such rights and remedies being cumulative, not exclusive and
enforceable alternatively, successively or concurrently:
(i) to prosecute any action, suit or proceeding to protect and
enforce any or all of the rights of Buyer pursuant to the provisions of
this Agreement, whether for the specific performance of any covenant or
other provision contained herein or in any document or instrument delivered
in connection with or pursuant to the provisions of this Agreement, or to
enforce the payment of such Repurchase Price;
(ii) with or without judicial process or the aid and assistance
of others, to enter upon any premises under the control of Seller in which
the Equipment covered by any item of Paper may be located and, without
resistance or interference by Seller, take possession of the Equipment;
and/or dispose of any of the Equipment on the premises; and/or require
Seller to assemble and make available to Buyer at the expense of Seller,
any of the Equipment at any place and time designated by Buyer which is
reasonably convenient to both parties; and/or sell, re-sell, lease, assign
and deliver, grant option for or otherwise dispose of any of the Equipment
in its then condition or following any commercially reasonable
preparation or processing, at one or more public or private sales, upon at
least fifteen (15) days' notice to Seller (which notice Seller acknowledges
is reasonable), upon any
16
commercially reasonable terms at the place(s) and times(s) and to the
person(s) as Buyer deems best; Buyer may buy any of the Equipment at any
public sale and, if any of the Equipment is of a type customarily sold in a
recognized market or is of the type which is the subject of widely
distributed standard price quotations, Buyer may buy the Equipment at
private sale, free of any equity of Seller, which Seller hereby waives; and
(iii) Buyer may apply the cash proceeds actually received from
any sale or other disposition of the Equipment leased under any item of
Paper to the expenses of retaking, holding, storing, preparing for sale,
selling, leasing and the like, to attorneys' fees and all legal, travel and
other expenses which may be incurred by Buyer in attempting to collect such
Repurchase Price or enforce this Agreement or in the prosecution or defense
of any action or proceedings related to this Agreement and then to such
Repurchase Price and Seller shall remain liable for and will pay Buyer on
demand any deficiency.
(b) In the event the Debtor under any Item of Paper fails to pay any
of the Debtor Obligations with respect to the Paper when due and payable
pursuant to the provisions of the Paper, or any other event of default shall
occur under the Paper, Buyer shall have (in addition to all of its rights and
remedies against the Debtor) all of the rights and remedies of a secured party
pursuant to the UCC and other applicable law in respect of the Equipment,
whether the security interest in such Equipment is created pursuant to the
provision of this Agreement or the Paper, and the provisions of Section
10(a)(ii) hereof shall also apply to the exercise of such rights and remedies,
except that the enforcement of such provisions shall be at the expense of the
Debtor.
11. ULTIMATE NET LOSS.
-----------------
(a) Except as otherwise provided in Section 11(g) below and so long
as no Default shall have occurred and be continuing hereunder, the Ultimate Net
Loss of Sellers arising out of their joint and several obligation to repurchase
any Paper under this Agreement shall not exceed (i) $500,000, with respect to
the aggregate Paper purchased by Buyer during the period commencing May 9, 1995
and ending February 29, 1996 and (ii) $750,000 with respect to the aggregate
Paper purchased by Buyer during the period commencing March 1, 1996 and ending
February 28, 1997 and $750,000 during each one year period thereafter during
17
the term of this Agreement; provided, however, with respect to clause (i), in
the event the consolidated net worth of BankVest, as indicated on a balance
sheet of Bank Vest prepared on a review basis (or audited) in accordance with
generally accepted accounting principles, consistently applied, by Coopers &
▇▇▇▇▇▇▇, exceeds $3,000,000 then effective as of the date of such balance sheet
the amount $750,000 shall be reduced to $500,000.
(b) "Ultimate Net Loss", as used herein, shall mean with respect to
Paper repurchased by Seller hereunder the sum of:
(i) all payments made by Seller to Buyer upon its repurchase of
such Paper; PROVIDED, HOWEVER, (x) payments made by Seller due to a
-----------------
repurchase of an item of Paper pursuant to Section 8(a), Section 8(b) or by
reason of any breach by Seller of any representation or warranty shall be
excluded and (y) a substitution of an item of such Paper shall not be
deemed a payment; plus
(ii) the reasonable out-of-pocket expenses, including, without
limitation, refurbishing costs and costs of transportation incurred by
Seller in connection with any recoveries made in the liquidation by it of
such Paper and the Equipment covered thereby; MINUS
-----
(iii) the total amount realized by Seller from all sources upon
the liquidation of such Paper and the Equipment covered thereby (including
any resale of Equipment as to which Seller or any affiliate of Seller has
acquired title in default proceedings under the Paper or in satisfaction of
the Debtor's obligations thereunder) repurchased by Seller from Buyer,
including, without limitation, recoveries from any party liable on such
Paper and from the sale, lease, or other disposition of Equipment under
such Paper.
(c) Seller agrees to take all necessary and the appropriate action to
recover the Repurchase Price from all parties liable on Paper repurchased by it
pursuant to Section 8 of this Agreement and from the Equipment covered thereby.
Without limiting the foregoing, the Seller will refurbish the Equipment, sell
the same on a priority basis vis-a-vis other Equipment, and use its best efforts
to obtain the highest price possible. In computing the Ultimate Net Loss
incurred by Seller, if the Paper was repurchased pursuant to Section 8 of this
Agreement:
(i) there shall not be included as a "loss"
---
18
in such computation any portion of the amount paid to Buyer in the
repurchase of any item of Paper, unless and until Seller shall have made a
bona fide sale of the Equipment covered by such Paper and shall have used
its best efforts to recover any amounts owing thereon from all parties
liable therefor;
(ii) it shall be deemed that no "loss" has been incurred by
Seller on any such item of repurchased Paper, if Seller fails, within 180
days after the date on which its repurchase of any such item of Paper shall
have been demanded by Buyer, to both establish its net loss with respect
thereto and to notify Buyer in writing of such net loss; provided, however,
such 180 day period shall be extended to 240 days if Seller demonstrates
that it was diligently pursuing during such 180 day period and is
continuing to diligently pursue, its remedies with respect to such Paper
including sale of the Equipment and/or obtaining insurance proceeds with
respect thereto.
(iii) it shall be deemed that no "loss" has been incurred by
Seller if (i) a UCC financing statement was not filed with respect to
Equipment which is the subject of the repurchased Paper if such failure to
file is a proximate cause of the loss or (ii) insurance in an amount equal
to at least the full amount of the loss was not obtained or maintained with
respect to the Equipment which is the subject of the repurchased Paper.
(d) Seller shall continue to fulfill its obligations under Section 8
hereof with respect to all Paper purchased hereunder until Seller has incurred
the Ultimate Net Loss, determined as set forth in clause (a) above. Thereafter,
except as otherwise herein provided, Seller shall not be required to make any
payments to Buyer with respect to the Paper purchased hereunder which is subject
to such Ultimate Net Loss provisions.
(e) Seller shall keep separate records with respect to Paper
purchased by Buyer of all amounts realized by it from the liquidation of Paper
repurchased pursuant to Section 8 of this Agreement, including all amounts
realized from the Equipment covered by such Paper. Upon request, Seller will
furnish a written report to Buyer, within thirty (30) days of any such request,
showing the amount of out-of-pocket expenses incurred in connection with any
recoveries made by Seller in the liquidation of such Paper and the amounts
realized by Seller from all sources upon the liquidation of such Paper. Buyer
shall have the right, upon prior written notice, to audit and make copies of the
records
19
of Seller with respect to such out-of-pocket expenses incurred, recoveries made
and amounts realized in respect of such Paper.
(f) If and when Seller shall have incurred 50% of the Ultimate Net
Loss with respect to any period described in clause (a)(i) or (a)(ii) of Section
11 it shall not thereafter, without the prior written consent of Buyer:
(i) sell any Equipment covered by Paper repurchased by Seller for
a price less than the Repurchase Price of such Paper; or
(ii) compromise of settle the amount owing on any repurchased
Paper for an amount less than the Repurchase Price of such Paper.
If Buyer fails to so consent within five (5) days after its receipt of a
written request from Seller to:
i) the sale of Equipment covered by such Paper at an offered
price less than the amount of the applicable Repurchase Price; or
ii) accept an offer from the Debtor under such Paper to pay, in
compromise or settlement, an amount less than such Repurchase Price (each
such offer being herein referred to as "CLOSE-OUT OFFER");
---------------
thereafter, either Buyer or Seller (with prior written consent of Buyer)
within ninety (90) days after such written request, are unable to sell such
Equipment for a price, or obtain a settlement or compromise from Debtor in
an amount, at least equal to such Close-Out Offer, Buyer shall pay to
Seller for such Equipment and for all of Seller's right, title and interest
in the related Paper, an amount equal to such Close-Out Offer. The payment
by Buyer to Seller of such Close-Out Offer shall be deemed to be a recovery
by Seller under clause (iii) of Section 11(b) hereof.
(g) Notwithstanding anything in the foregoing that may be to the
contrary, the provisions of this Section 11 for an Ultimate Net Loss by Seller
shall in no way impair, limit, or otherwise affect Seller's liability to Buyer
for:
(i) any Paper Seller is required to repurchase from Buyer
pursuant to Section 8(a) or 8(b) or by reason of any breach by Seller of
any representation or warranty (other than a warranty of payment) in
respect of said Paper under any assignment
20
or endorsement thereof or under this Agreement or any other agreement as to
such Paper;
(ii) any Paper which Seller is required to repurchase from Buyer
pursuant to Section 8 hereof by reason of the occurrence of a Default by
Seller;
(iii) any Paper which Seller shall have purchased from Buyer
without any prior request or demand by Buyer for such repurchase;
(iv) any Paper which Seller is required to repurchase pursuant
to Section 10(a) hereof; and
(v) any Paper which Seller shall have failed to repurchase in
accordance with Section 8(c) hereof.
(h) In no event shall Buyer be required to take any action to
preserve, collect, enforce, defend or protect its rights in any Paper or to
maintain, repair, license, register, insure or take any other action with
respect to the Equipment.
12. TERMINATION OF COMMITMENT.
--------------------------
Buyer may terminate its commitment to purchase Paper on the terms and
conditions set forth hereunder prior to the Commitment Expiration Date if a
Default shall have occurred and be continuing or ▇▇▇▇ ▇▇▇▇ ceases to be the
President and Chief Executive Officer of Seller or otherwise ceases to be
actively involved in the management of the Seller. Any termination of the
Commitment shall not effect or modify Seller's obligations in respect of Paper
purchased by Buyer pursuant to this Agreement, or otherwise affect or modify
Seller's obligations hereunder.
13. MISCELLANEOUS.
-------------
(a) The obligation of each Seller hereunder is the independent and
several obligation of each Seller and with respect to "Paper" originated by such
Seller and may be enforced against such Seller, whether or not enforcement of
any right or remedy hereunder has been sought against the other Seller; provided
however, each Seller acknowledges and agrees that the obligations are joint and
several.
(b) Except as specifically provided herein, Seller waives presentment
for payment, demand, protest, notice of dishonor of any item of Paper and any
instrument included in or evidencing such Paper, and any and all other notices
or demands whatsoever, Buyer shall not be required to take any particular
21
action to preserve, collect, enforce, defend or protect its rights in such Paper
or related Property or to maintain, repair, license, register or insure the
Equipment leased thereunder. No provision hereof and no right or remedy of Buyer
may be waived by Buyer, and no provision hereof may be amended, except in
writing, and any such waiver of a right or remedy on one occasion shall not be
construed as a waiver of such right or remedy on future occasions.
(c) All notices provided for in this Agreement and each Assignment
shall be in writing and shall be deemed given when mailed if sent by registered
or certified mail, return, receipt requested, to Seller or Buyer at their
respective addresses set forth above, or when actually received if given in any
other manner. Any changes in such addresses shall be by similar notice as
provided for herein.
(d) Seller, at its sole cost and expense, will at all times hereafter:
(i) execute such UCC financing statements and other instruments and perform such
other acts as Buyer may request to establish and maintain the security interests
herein granted and the priority and continued perfection thereof; (ii) obtain
and promptly furnish to Buyer evidence of all such government approvals as may
be required to enable Seller to comply with its obligations under this
Agreement; (iii) not change the location of its principal place of business or
chief executive offices unless at least thirty (30) days' prior written notice
of such change shall have been given to Buyer; and (iv) execute and deliver all
such other instruments and perform all such other acts as Buyer may reasonably
request to carry out the transactions contemplated by this Agreement.
(e) This Agreement and any Assignment shall be binding upon and shall
inure to the benefit of Seller and Buyer and their respective successors and
assigns, and shall not be deemed for the benefit of any third party; PROVIDED,
--------
HOWEVER, that Seller shall not assert any defense, offset, claim or counterclaim
-------
against any assignee of Buyer that may be asserted against Buyer, and Seller
shall not assign any of its rights or obligations hereunder without the prior
written consent of Buyer.
(F) THIS AGREEMENT AND EACH ASSIGNMENT SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW. SELLER HEREBY IRREVOCABLY CONSENTS
TO THE JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF NEW YORK AND ANY
FEDERAL COURT LOCATED IN THE STATE IN CONNECTION WITH ANY ACTION OR PROCEEDING
ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, ANY ASSIGNMENT, ANY ITEM OF
PAPER OR ANY AGREEMENT RELATED THERETO, OR ANY RELATED PROPERTY AND SELLER
AGREES THAT
22
SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE GIVEN BY MAIL TO
SELLERS ADDRESS SHOWN ABOVE. SELLER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY
AND RIGHTS TO INTERPOSE COUNTERCLAIMS IN THE EVENT OF ANY LITIGATION WITH
RESPECT
23
TO THIS AGREEMENT, ANY ASSIGNMENT, ANY ITEM OF PAPER OR RELATED AGREEMENT, OR
ANY PROPERTY.
IN WITNESS WHEREOF, Buyer and Seller have caused this Agreement to be duly
executed and delivered as of the date first shown above.
Buyer: Seller:
EUROPEAN AMERICAN BANK BANKVEST CAPITAL CORP.
By:_____________________ By:______________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇
Title: Senior Vice President Title: President
LEASEVEST CAPITAL CORP.
By:___________________
Name: ▇▇▇▇ ▇▇▇▇
Title: President
24
EXHIBIT "A"
MASTER LEASE ASSIGNMENT
FOR VALUE RECEIVED, [_______________________] ("Seller"), hereby
sells, assigns, and transfers to EUROPEAN AMERICAN BANK ("Buyer"), all of the
Seller's right, title and interest in and to, the equipment leases, retail
installment contracts or other chattel paper identified on Schedule A attached
hereto and made a part hereof (the "Paper"), together with all of Seller's
right, title and interest all monies due or to become due to or on behalf of
Seller thereunder, and all of the purchase options, renewal options, guaranties,
security agreements, pledge agreements and other agreements, letters of credit,
recourse agreements, documents and instruments relating to the Paper.
Seller hereby constitutes and appoints the Buyer, its successors and
assigns, as Seller's true and lawful attorney and attorneys-in-fact, with full
power of substitution, in Seller's name and stead, but on behalf and for the
benefit of the Buyer, its successors and assigns to demand and receive any and
all of the Paper, and to give receipts and releases for an in respect of the
same, and any part thereof, to execute, endorse and deliver in Seller's name
place and stead, all instruments necessary to transfer legal and beneficial
title to Buyer of all the Paper and to execute, acknowledge and deliver such
other instruments in writing of whatever kind and nature, and to do all acts and
things as may be necessary or appropriate to vest in Buyer the rights and
benefits with respect to the Paper and acquired under the Amended and Restated
Master Sale of Chattel Paper and Security Agreement by and among Buyer and
Seller, including, without limitation, endorsing the name of Seller upon any
document or instrument (including, without limitation, UCC financing statements)
evidencing or relating to the Paper or any lien with respect to the Paper, and
upon any checks, notes, acceptances, money orders, drafts or any other payment
relating to or constituting proceeds of any of the foregoing. Seller hereby
declares that the foregoing powers are coupled with an interest and are and
shall be irrevocable by Seller or by its dissolution or in any manner or for any
reason whatsoever.
IN WITNESS WHEREOF, the Seller has executed this assignment this 19th
day of March, 1996.
[___________________]
By:_________________
25
Title: President
Acknowledged:
EUROPEAN AMERICAN BANK
By: _______________________
Title: Senior Vice President
26
EXHIBIT B
CERTIFICATE OF AUTHORITY OF SELLER
The undersigned hereby certifies to European American Bank ("EAB")
---
that the following resolutions were duly adopted by the Board of Directors of
_______________________________________, a corporation existing under the laws
of Massachusetts (the "CORPORATION"), [by unanimous written consent dated at
-----------
which meeting a quorum was present and acting throughout], that the same have
not been modified or rescinded and are not in conflict with any provision of the
Certificate of Incorporation, By-Laws or any agreement of the Corporation:
"RESOLVED, that this Corporation is authorized and empowered (a) to
sell and assign to European American Bank ("EAB") from time to time
---
such existing and future equipment leases, installment sales contracts
and/or other chattel paper (collectively, "PAPER") between this
-----
Corporation (or other parties) and various debtors, to be unsecured or
to be secured by equipment and/or other collateral, and/or (b) to sell
to EAB from time to time the equipment covered by Paper, and/or (c) to
borrow money from EAB from time to time, with such borrowing to be
unsecured or to be secured by Paper, equipment and/or other collateral
(including, without limitation, in each case, the sale of Paper and/or
other property now or hereafter owned by this Corporation, the
borrowing of funds and the granting of security interests in property
of every description belonging to this Corporation), all such
transactions to be on such terms and conditions as may be mutually
agreed from time to time between this Corporation and EAB, and each
and any officer of this Corporation is authorized,in the name and on
behalf of this Corporation, to execute and deliver to EAB a Master
Sale of Chattel Paper and Security Agreement, a Sale and Assignment,
one or more Loan Receipts, and/or such other promissory notes, chattel
mortgages, security agreements, financing statements, bills of sale
and/or other agreements, instruments and documents
27
in connection with such transactions and all supplements,
amendments, modifications and restatements thereto,
containing such terms and conditions as may be approved by
the officer executing such document, such officer's
execution thereof to be deemed conclusive evidence of such
approval and of such officer's authority to do so, and it
is further
RESOLVED, that each and any officer of this Corporation is
authorized, in the name and on behalf of this Corporation,
to execute and deliver to EAB such other documents and take
such other actions as such officer may deem necessary or
advisable to effectuate and perform the transactions
contemplated by the foregoing resolution, and the Secretary
or any Assignment Secretary of this Corporation is
authorized to certify a copy of these resolutions to
Lessor."
The undersigned further certifies that (a) annexed hereto as Exhibits
"A" and "B", respectively, are true, correct and complete copies of the
Certificate of Incorporation and By-Laws of the Corporation, as amended to date,
and (b) set forth below are the names and genuine signatures of certain officers
of the Corporation each of whom is duly elected, qualified and currently holds
the respective office(s) appearing beside such name:
OFFICE NAME SIGNATURE
------ ---- ---------
President ▇▇▇▇ ▇▇▇▇ ____________________
Signed and sealed this ____ day of March, 1996.
(Corporate Seal) ___________________________________
(Secretary)
The undersigned, the President of the Corporation, hereby certifies to
EAB that the above is the signature of _____________, the duly elected,
qualified and currently serving Secretary of the Corporation.
___________________________
28
▇▇▇▇ ▇▇▇▇
29
