-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HS/2Ai5FBlyRZWnpIdqk8lTPUUednRHmT/Z4kp5XVBni1w+HO7NMcitFmuANpsb8 9EkcOZK66L2fDza/M432QQ== 0000950135-00-001799.txt : 20000331 0000950135-00-001799.hdr.sgml : 20000331 ACCESSION NUMBER: 0000950135-00-001799 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19991231 FILED AS OF DATE: 20000330 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MICROFINANCIAL INC CENTRAL INDEX KEY: 0000827230 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS BUSINESS CREDIT INSTITUTION [6159] IRS NUMBER: 042962824 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-14771 FILM NUMBER: 584908 BUSINESS ADDRESS: STREET 1: 950 WINTER STREET CITY: WALTHAM STATE: MA ZIP: 02154 BUSINESS PHONE: 7818900177 MAIL ADDRESS: STREET 1: 950 WINTER STREET CITY: WALTHAM STATE: MA ZIP: 02154 FORMER COMPANY: FORMER CONFORMED NAME: BOYLE LEASING TECHNOLOGIES INC DATE OF NAME CHANGE: 19980605 10-K 1 MICROFINANCIAL INCORPORATED 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For The Fiscal Year Ended December 31, 1999 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Commission File No. MICROFINANCIAL INCORPORATED (Exact name of Registrant as Specified in its Charter) Massachusetts 04-2962824 (State or other jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 950 Winter Street, Waltham, MA 02451 (Address of Principal Executive Offices) (zip code) Registrant's Telephone Number, Including Area Code: (781) 890-0177 SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: Title of each class Name of each exchange on which registered Common Shares, $0.01 par value per share New York Stock Exchange SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: None (Title of Class) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. [X] Yes [ ] No Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ] The aggregate market value of the voting stock held by non-affiliates of the registrant, computed by reference to the closing price of such stock as of March 22, 2000, was approximately $67,478,834. As of March 22, 2000, 12,683,126 shares of the registrant's common stock were outstanding. DOCUMENTS INCORPORATED BY REFERENCE Proxy Statement for the 2000 Special Meeting in lieu of the Annual Meeting of Stockholders (to be filed with the Securities and Exchange Commission on or before April 29, 2000) is incorporated by reference in Part III hereof. 2
TABLE OF CONTENTS DESCRIPTION PAGE NUMBER ----------- ----------- PART I ..........................................................................................1 Item 1. Business..................................................................................1 Item 2. Properties................................................................................7 Item 3. Legal Proceedings.........................................................................7 Item 4. Submission of Matters to a Vote of Security Holders......................................10 PART II .........................................................................................11 Item 5. Market for Registrant's Common Equity and Related Stockholder Matters....................11 Item 6. Selected Financial Data..................................................................13 Item 7. Management's Discussion and Analysis of Financial Condition and Results Of Operations................................................................15 Item 7a. Quantitative and Qualitative Disclosures about Market Risk...............................23 Item 8. Financial Statements and Supplementary Data Including Selected Quarterly Financial Data (Unaudited)............................................24 Item 9. Changes In and Disagreements with Accountants on Accounting and Financial Disclosure......................................................24 PART III .........................................................................................25 Item 10. Directors and Executive Officers of the Registrant.......................................25 Item 11. Executive Compensation...................................................................25 Item 12. Security Ownership of Certain Beneficial Owners and Management...........................25 Item 13. Certain Relationships and Related Transactions...........................................25 PART IV .........................................................................................26 Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.........................26 SIGNATURES .........................................................................................29
3 PART I ITEM 1. BUSINESS GENERAL MicroFinancial Incorporated ("MicroFinancial" or the "Company") was formed as a Massachusetts corporation on January 27, 1987. The Company, which operates primarily through its wholly-owned subsidiary, Leasecomm Corporation, is a specialized commercial finance company that leases and rents "microticket" equipment and provides other financing services in amounts generally ranging from $900 to $2,500, with an average amount financed of approximately $1,500 and an average lease term of 44 months. Leasecomm Corporation started originating leases in January 1986. The Company has used proprietary software in developing a sophisticated, risk-adjusted pricing model and automating its credit approval and collection systems, including a fully automated Internet-based application, credit scoring and approval process. The Company targets owner-operated or other small commercial enterprises, with little business credit history and limited or poor personal credit history at the owner level. The Company provides financing to these lessees who may have few other sources of credit. The Company primarily leases and rents low-priced commercial equipment with limited residual value which is used by these lessees in their daily operations. The Company does not market its services directly to lessees, but sources leasing transactions through a nationwide network of over 1,200 independent sales organizations and other dealer-based origination networks ("Dealers"). The majority of the Company's leases are currently for authorization systems for point-of-sale card-based payments by, for example, debit, credit and charge cards ("POS authorization systems"). POS authorization systems require the use of a POS terminal capable of reading a cardholder's account information from the card's magnetic stripe and combining this information with the amount of the sale entered via a POS terminal keypad or POS software used on a personal computer to process a sale. The terminal electronically transmits this information over a communications network to a computer data center and then displays the returned authorization or verification response on the POS terminal. The Company continues to develop other product lines, including leasing other commercial products and acquiring payment streams from service contracts. LEASING, SERVICING AND FINANCING PROGRAMS The Company originates leases for products that typically have limited distribution channels and high selling costs. The Company facilitates sales of such products by making them available to Dealers' customers for a small monthly lease payment rather than a high initial purchase price. The Company primarily leases and rents low-priced commercial equipment with limited residual value to small merchants. The Company purchases or originates monthly payment streams without regard to the residual value of the leased product. The majority of the Company's leases are currently for POS authorization systems, however, the Company also leases a wide variety of other equipment including advertising and display equipment, coffee machines, paging systems, water coolers and restaurant equipment. In addition, the 4 Company also acquires service contracts and contracts in certain other financing markets. The Company opportunistically seeks to enter various other financing markets. The Company's residential financings include acquiring service contracts from Dealers that provide security monitoring services and various other types of residential finance products. The Company originates and services leases, contracts and loans in all 50 states of the United States and its territories. As of December 31, 1999, leases in California, Florida, Texas, Massachusetts and New York accounted for approximately 45% of the Company's portfolio, with only California accounting for more than 10% of the total portfolio, at approximately 15%. None of the remaining states accounting for more than 4% of such total. TERMS OF EQUIPMENT LEASES Substantially all equipment leases originated or acquired by the Company are non-cancelable. In a typical lease transaction, the Company originates leases referred to it by the Dealer and buys the underlying equipment from the referring Dealer upon funding of an approved application. Leases are structured with limited recourse to the Dealer, with risk of loss in the event of default by the lessee residing with the Company in most cases. The Company performs all processing, billing and collection functions under its leases. During the term of a typical lease, the Company is scheduled to receive payments sufficient, in the aggregate, to cover the Company's borrowing costs and the costs of the underlying equipment, and to provide the Company with an appropriate profit. Throughout the term of the lease, the Company charges late fees, prepayment penalties, loss and damage waiver fees and other service fees, when applicable, which enhance the profitability of the lease. The initial non-cancelable term of the lease is equal to or less than the equipment's estimated economic life. Initial terms of the leases in the Company's portfolio generally range from 12 to 48 months, with an average initial term of 44 months as of December 31, 1999. The terms and conditions of all of the Company's leases are substantially similar. In most cases, the contracts require lessees to: (i) maintain, service and operate the equipment in accordance with the manufacturer's and government-mandated procedures; (ii) insure the equipment against property and casualty loss; (iii) pay all taxes associated with the equipment; and (iv) make all scheduled contract payments regardless of the performance of the equipment. The Company's standard lease forms provide that in the event of a default by the lessee, the Company can require payment of liquidated damages and can seize and remove the equipment for subsequent sale, refinancing or other disposal at its discretion. Any additions, modifications or upgrades to the equipment, regardless of the source of payment, are automatically incorporated into and deemed a part of the equipment financed. The Company seeks to protect itself from credit exposure relating to poor quality Dealers by entering into limited recourse agreements with its Dealers, under which the Dealer agrees to reimburse the Company for payment of defaulted amounts under certain circumstances, primarily defaults within the first month following origination and upon evidence of Dealer errors or misrepresentations in originating a lease or contract. In case of Dealer error or misrepresentation, the Company will charge-back the Dealer for both the lessee's delinquent amounts and attorney and court fees. -2- 5 RESIDUAL INTERESTS IN UNDERLYING EQUIPMENT The Company typically owns a residual interest in the equipment covered by a lease. At the end of the lease term, the lease typically converts into a month-to-month rental contract. If the lease does not convert, the lessee either buys the equipment at a price quoted by the Company or returns the equipment. If the equipment is returned, the Company may place the equipment into its used equipment rental and leasing program. The Company may also sell the used equipment through equipment brokers and remarketers in order to maximize the net proceeds from such sale. SERVICE CONTRACTS In a typical transaction for the acquisition of service contracts, a homeowner will purchase a security system and simultaneously sign a contract with the Dealer for the monitoring of that system for a monthly fee. The Dealer will then sell the right to payment under that contract to the Company for a multiple of the monthly payments. The Company performs all processing, billing and collection functions under these contracts. DEALERS The Company provides financing to obligors under microticket leases, contracts and loans through its Dealers. Since the Company relies primarily on its network of Dealers for its origination volume, the Company considers them its customers. The Company had over 1,240 different Dealers originating 79,720 Company leases, contracts and loans in 1999. One dealer accounted for approximately 10.7%, 11.6% and 14.7% of all dealer funding during the year ended December 31, 1997, 1998 and 1999, respectively. Another dealer accounted for approximately 2.6%, 3.5% and 10.1% of all dealer funding during the year ended December 31, 1997, 1998 and 1999, respectively. No other dealer accounted for more than 10% of the Company's funding volume during the years ended December 31, 1997, 1998, or 1999. The Company does not sign exclusive agreements with its Dealers. Dealers interact with merchants directly and typically market not only POS authorization systems but also financing through the Company and ancillary POS processing services. USE OF TECHNOLOGY The Company's business is operationally intensive, due in part to the small average amount financed. Accordingly, technology and automated processes are critical in keeping servicing costs to a minimum while providing quality customer service. The Company has developed LeasecommDirect(TM), an Internet-based application processing, credit approval and Dealer information tool. Using LeasecommDirect(TM), a Dealer can input an application directly to the Company via the Internet and obtain almost instantaneous approval automatically over the Internet through the Company's computer system, all without any contact with any employee of the Company. The Company also offers Instalease(R), a program that allows a Dealer to submit applications by telephone, telecopy or e-mail to a Company representative, receive approval, and complete a sale from a -3- 6 lessee's location. By assisting the Dealers in providing timely, convenient and competitive financing for their equipment or service contracts and offering Dealers a variety of value-added services, the Company simultaneously promotes equipment and service contract sales and the utilization of the Company as the finance provider, thus differentiating the Company from its competitors. The Company has used its proprietary software to develop a multi-dimensional credit scoring model which generates pricing of its leases, contracts and loans commensurate with the risk assumed. This software does not produce a binary "yes or no" decision, but rather determines the price at which the lease, contract or loan can be profitably underwritten. The Company uses credit scoring in most, but not all, of its extension of credit. UNDERWRITING The nature of the Company's business requires two levels of review, the first focused on the ultimate end-user of the equipment or service and the second focused on the Dealer. The approval process begins with the submission by telephone, facsimile or electronic transmission of a credit application by the Dealer. Upon submission, the Company, either manually or through LeasecommDirect(TM) over the Internet, conducts its own independent credit investigation of the lessee through its own proprietary data base and recognized commercial credit reporting agencies such as Dun & Bradstreet, TRW, Equifax and TransUnion. The Company's software evaluates this information on a two-dimensional scale, examining both credit depth (how much information exists on an applicant) and credit quality (past payment history). The Company is thus able to analyze both the quality and amount of credit history available with respect to both obligors and Dealers and to assess the credit risk. The Company uses this information to underwrite a broad range of credit risks and provide financing in situations where its competitors may be unwilling to provide such financing. The credit scoring model is complex and automatically adjusts for different transactions. In situations where the amount financed is over $3,000, the Company may go beyond its own data base and recognized commercial credit reporting agencies and obtain information from less readily available sources such as banks. In certain instances, the Company will require the lessee to provide verification of employment and salary. The second aspect of the credit decision involves an assessment of the originating Dealer. Dealers undergo both an initial screening process and ongoing evaluation, including an examination of Dealer portfolio performance, lessee complaints, cases of fraud or misrepresentation, aging studies, number of applications and conversion rates for applications. This ongoing assessment enables the Company to manage its Dealer relationships, including ending relationships with poor-performing Dealers. Upon credit approval, the Company requires receipt of signed lease documentation on the Company's standard or other pre-approved lease form before funding. Once the equipment is shipped and installed, the Dealer invoices the Company, and thereafter the Company verifies that the lessee has received and accepted the equipment. Upon the lessee authorizing payment to the Dealer, the lease is forwarded to the Company's funding and documentation department for funding, transaction accounting and billing procedures. -4- 7 BULK AND PORTFOLIO ACQUISITIONS In addition to originating leases through its Dealer relationships, the Company from time to time has purchased lease portfolios from Dealers. The Company purchases leases from Dealers on an ongoing basis in packages ranging from $20,000 to $200,000. While certain of these leases initially do not meet the Company's underwriting standards, the Company will often purchase the leases once the lessee demonstrates a payment history. The Company will only acquire these smaller lease portfolios in situations where the company selling the portfolio will continue to act as a Dealer following the acquisition. The Company also completed the acquisition of four large POS authorization system lease and rental portfolios, two in 1996, one in 1998 and one in 1999. The first acquisition, completed in May 1996, consisted of over 8,000 rental contracts with total fundings of $1.9 million. The second acquisition was for approximately 8,200 leases in December 1996 with fundings of $7.9 million. In the third acquisition, the Company acquired 4,841 rental contracts in July 1998 with fundings of $2.8 million. The fourth acquisition, completed in September of 1999, consisted of 2,148 leases with fundings of $3.2 million. SERVICING AND COLLECTIONS The Company performs all servicing functions on its leases, contracts and loans, including its securitized leases, through its automated servicing and collection system. Servicing responsibilities generally include billing, processing payments, remitting payments to Dealers and investors in the Company's securitization programs (the "Securitizations"), preparing investor reports, paying taxes and insurance and performing collection and liquidation functions. The Company differentiates itself from its competitors in the way in which it pursues delinquent accounts that it believes its competitors would not pursue due to the costs of collection. The Company's automated lease administration system handles application tracking, invoicing, payment processing, automated collection queuing, portfolio evaluation and report writing. The system is linked with bank accounts for payment processing and provides for direct withdrawal of lease, contract and loan payments. The Company monitors delinquent accounts using its automated collection process. The Company uses several computerized processes in its collection efforts, including the generation of daily priority call lists and scrolling for daily delinquent account servicing, generation and mailing of delinquency letters, routing of incoming calls to appropriate employees with instant computerized access to account details, generation of delinquent account lists eligible for litigation, generation of pleadings and litigation monitoring. Collection efforts commence immediately, with repeated reminder letters and telephone calls upon payments becoming 10 days past due, with a lawsuit generally filed if an account is more than 85 days past due. The Company's collection efforts include one or more of the following: sending collection letters, making collection calls, reporting delinquent accounts to credit reporting agencies and litigating delinquent accounts where necessary and obtaining and enforcing judgments. COMPETITION The microticket leasing and financing industry is highly competitive. The Company competes for customers with a number of national, regional and local banks and finance companies. The Company's competitors also include equipment manufacturers that lease or finance the sale of their own products. While the market for microticket financing has traditionally been fragmented, the Company could also be -5- 8 faced with competition from small or large-ticket leasing companies that could use their expertise in those markets to enter and compete in the microticket financing market. The Company's competitors include larger, more established companies, some of which may possess substantially greater financial, marketing and operational resources than the Company, including a lower cost of funds and access to capital markets and to other funding sources which may be unavailable to the Company. EMPLOYEES As of December 31, 1999, the Company had 319 full-time employees, of which 54 were engaged in the credit activities and Dealer service, 169 were engaged in servicing and collection activities, 15 were engaged in marketing activities, and 81 were engaged in general administrative activities. Management believes that its relationship with its employees is good. No employees of the Company are members of a collective bargaining unit in connection with their employment by the Company. EXECUTIVE OFFICERS OF THE REGISTRANT
NAME AGE POSITION - ---- --- -------- Peter R. Bleyleben....................... 46 President, Chief Executive Officer and Director Richard F. Latour........................ 46 Executive Vice President, Chief Operating Officer, Chief Financial Officer, Treasurer, Clerk and Secretary John Miller.............................. 42 Senior Vice President, Sales and Marketing John Plumlee............................. 48 Vice President, MIS Carol A. Salvo........................... 33 Vice President, Legal
Set forth below is a brief description of the business experience of the executive officers of the Company. Peter R. Bleyleben has served as President, Chief Executive Officer and Director of the Company or its predecessor since June 1987. Before joining the Company, Dr. Bleyleben was Vice President and Director of the Boston Consulting Group, Inc. ("BCG") in Boston. During his more than eight years with BCG, Dr. Bleyleben focused his professional strategic consulting practice on the financial services and telecommunications industries. Dr. Bleyleben is also a Director of UpToDate in Medicine, Inc. He earned an M.B.A. with distinction and honors from the Harvard Business School, an M.B.A. and a Ph.D. in Business Administration and Economics, respectively, from the Vienna Business School in Vienna, Austria and a B.S. in Computer Science from the Vienna Institute of Technology. Richard F. Latour has served as Executive Vice President, Chief Operating Officer, Chief Financial Officer, Treasurer, Clerk and Secretary of the Company since 1995. From 1986 to 1995, Mr. Latour was Vice President of Finance and Chief Financial Officer of the Company. Prior to joining the Company, Mr. Latour was Vice President, Finance for TRAK, Incorporated, an international manufacturer and distributor of consumer products, where he was responsible for all financial and related administrative functions. John Miller has served as Senior Vice President, Sales and Marketing since April of 1999. Prior to joining the Company Mr. Miller served as Vice President, National and New York Yellow Pages Sales -6- 9 from April 1998 to March 1999 and as Vice President Strategy, Planning and Business Development, Information Services Group from August 1997 to March 1998, each for Bell Atlantic. Prior to that time, Mr. Miller served in various marketing and strategic planning positions for Nynex. John Plumlee has served as Vice President, MIS, of the Company since 1990. Prior to joining the Company, Mr. Plumlee was Vice President of M.M.C., Inc., a firm focusing on the delivery of software services to local governments. Carol A. Salvo has served as Vice President, Legal, of the Company since 1996. From 1992 to 1995, Ms. Salvo served as Litigation Supervisor of the Company. From 1995 to 1996, Ms. Salvo served as Director of Legal Collection Services of the Company. Prior to joining the Company, Ms. Salvo was a junior accountant with InfoPlus Inc. ITEM 2. PROPERTIES The Company's corporate headquarters are located in leased space of 21,656 square feet at 950 Winter Street, Waltham, Massachusetts 02451. The lease for this space expires on July 31, 2004. The Company also leases 2,933 square feet of office space for its West Coast office in Newark, California under a lease which expires on August 31, 2001. The Company also leases 44,659 square feet of office space in Woburn, Massachusetts under a lease which expires on December 14, 2003. The Company's collection, credit, marketing, computer operations and other administrative functions are located in the Woburn location. ITEM 3. LEGAL PROCEEDINGS Management believes, after consultation with counsel, that the allegations against the Company included in the lawsuits described below are without merit, and the Company is vigorously defending each of the allegations. The Company also is subject to claims and suits arising in the ordinary course of business. At this time, it is not possible to estimate the ultimate loss or gain, if any, related to these lawsuits, nor if any such loss will have a material adverse effect on the Company's results of operations or financial position. I. On August 24, 1999, a purported class action lawsuit was filed in Middlesex Superior Court for The Commonwealth of Massachusetts against the Company and its wholly-owned subsidiary Leasecomm Corporation ("Leasecomm"). The complaint has been amended four times, most recently by the Fourth Amended Complaint and Jury Claim filed on or about November 4, 1999 (as amended, the "Clark Complaint"). The purported class consists of individuals and businesses that have been sued by Leasecomm in a Massachusetts court for allegedly breaching Leasecomm's Non Cancellable Equipment Lease Agreement or Non Cancellable Lease Agreement (the "Lease Agreements") containing a forum selection clause. The forum selection clause is an agreement between the parties to the Lease Agreements to submit to the jurisdiction of the courts of The Commonwealth of Massachusetts for the bringing of any suit or other proceeding. The purported class would be limited to individuals and businesses that: have no place of business or residence in New England; have been sued in a Massachusetts court for breach of the Lease -7- 10 Agreements; had no more than three employees as of the date of the Lease Agreement; had been in existence for no more than three years as of the date of the Lease Agreement; and had entered into Lease Agreements with scheduled monthly lease payments which aggregated to less than $5,000. The Clark Complaint alleges that enforcement of the forum selection clause is not fair or reasonable because, among other things, litigation in Massachusetts is prohibitively costly and time consuming for purported class members, purported class members have no choice but to enter into the Lease Agreement because of Leasecomm's greater bargaining power, and purported class members allegedly have valid defenses to the claims asserted against them by Leasecomm. The Plaintiffs seek: a declaration that the forum selection clause is not fair or reasonable as to purported class members and that the Massachusetts courts lack personal jurisdiction over purported class members; dismissal without prejudice of all cases pending in Massachusetts against purported class members; a permanent injunction preventing Leasecomm and its affiliates from bringing suit in Massachusetts against purported class members; a permanent injunction preventing Leasecomm or its affiliates from entering into Lease Agreements containing the forum selection clause; unspecified monetary damages against Leasecomm and the Company in favor of purported class members equal to double or treble the moneys collected in connection with lawsuits filed against purported class members in Massachusetts courts, together with attorneys' fees and costs. The parties have filed various motions with the Court, which will be heard by the Court within the next several months. Since this matter is in an early stage, there can be no assurance as to its eventual outcome. However, the forum selection clause at issue in this litigation has been enforced in other cases. II. On June 3, 1999 a purported class action lawsuit was filed in Middlesex Superior Court in The Commonwealth of Massachusetts against Leasecomm. The complaint was amended on or about July 26, 1999 (as amended, the "McKenzie-Pollock Complaint"). On September 3, 1999 Leasecomm removed the action to the United States District Court for the District of Massachusetts. The purported class consists of individuals who entered into a Lease Agreement with Leasecomm between June 4, 1993 and the date of the McKenzie-Pollock Complaint. Plaintiffs allege: that Leasecomm causes individuals to enter into non-cancellable, long-term leases when there is no reasonable expectation that most of the individuals would need or use the equipment for the duration of the lease term; that Leasecomm conceals or misrepresents the nature of the terms of its Lease Agreements; that the Lease Agreements are non-negotiable adhesion contracts which are oppressive and unfair; that the cost of acquiring the equipment through Leasecomm is often double or triple the retail cost of the equipment; that Leasecomm violates state usury laws; that Leasecomm engages in unfair debt collection practices; that Leasecomm brings lawsuits against purported class members in Massachusetts even though it has no jurisdiction over them in Massachusetts courts; that Leasecomm fails to make proper service and then files pleadings which state that proper service was made, thereby obtaining default judgments against certain members of the purported class; that Leasecomm conspired with its salespersons to cause members of the purported class to enter into unconscionable leases by concealing and misrepresenting their terms; that Leasecomm failed to comply with the Truth in Lending Act and the -8- 11 Massachusetts Consumer Credit Cost Disclosure Act; and that Leasecomm has engaged in unfair trade practices in violation of the Massachusetts consumer protection statute. Plaintiffs and the members of the purported class seek: unspecified damages for monetary losses allegedly sustained by them as a result of this conduct by Leasecomm and reimbursement of costs and attorneys' fees; treble damages and other punitive damages; rescission of the Lease Agreements, or a declaration that they are void, and return of all moneys paid to Leasecomm; and damages for unjust enrichment. The parties have filed various motions with the Court. In December 1999, the Court granted Leasecomm's motion to dismiss in part, and ordered that the federal Truth in Lending and Fair Debt Collection Practices claims be dismissed. The Court then ordered the remaining claims to be remanded to the Middlesex Superior Court for further proceedings, including decisions on the balance of Leasecomm's motion to dismiss, since all federal claims in the case had been dismissed. Leasecomm subsequently filed a renewed motion to dismiss in the Superior Court, again asserting that the remaining non-federal claims are legally insufficient and should have been presented in earlier court proceedings, which will be heard by the Court within the next several months. Since this matter is in an early stage, there can be no assurance as to its eventual outcome. III. On October 25, 1999, a purported class action lawsuit was filed in Middlesex Superior Court in The Commonwealth of Massachusetts against Leasecomm (the "Lamar Complaint"). The purported class consists of all individuals and businesses who, on or after September 28, 1996, signed a Leasecomm agreement which states that it is "non-cancelable" and/or contains certain standard provisions relating to delivery and acceptance of the leased equipment and warranties and servicing for the equipment. The Plaintiffs contend that these particular lease terms are contrary to Article 2A of the Uniform Commercial Code as adopted in Massachusetts and that Leasecomm's use of these terms constitutes an unfair and deceptive trade practice under Chapter 93A of the Massachusetts General Laws. The Plaintiffs seek a declaration that the lease terms in question are unfair and deceptive and that Leasecomm's use of those terms is unfair and deceptive. The Plaintiffs also seek a Court order requiring Leasecomm to notify all purported class members of the Court's ruling in the case; to stop using the lease terms or similar lease terms which allegedly misstate lessees' rights under Massachusetts law; to refrain from enforcing those lease terms against any of the purported class members; to refrain from providing or communicating incorrect information regarding lessees' rights under Massachusetts law; and to include in every lease agreement language which conspicuously describes the rights of lessees under Massachusetts law. Finally, the Plaintiffs seek reimbursement of their costs and attorneys' fees. The parties have filed various motions with the Court, which will be heard by the Court over the next several months. Since this matter is in an early stage, there can be no assurance as to its eventual outcome. IV. On January 20, 2000, the Company filed suit against Sentinel Insurance Company Limited ("Sentinel"), in the United States District Court for the District of Massachusetts (the "Sentinel Complaint"). On August 18, 1999, Sentinel had issued a Business Performance Insurance Policy (the -9- 12 "Policy") to the Company as collateral for a Twelve Million Dollar ($12,000,000) loan (the "Loan") that the Company had made to Premier Holidays International, Inc. ("Premier"). The Loan was personally guaranteed by Premier's President, Daniel DelPiano ("DelPiano"). Pursuant to the terms of the Policy, Sentinel was obligated to make payment to the Company for any and all amounts payable under the terms of the Loan, in the event a default by Premier occurred. After Premier and DelPiano defaulted on their repayment obligations, the Company made demand on Sentinel for payment under the Policy. The Company filed the Sentinel Complaint after Sentinel refused to make payment to the Company under the Policy. On February 3, 2000, the Company amended its Complaint to assert claims against Premier and DelPiano arising out of their failure to make payments required under the Loan and the personal guaranty. On March 1, 2000, the Company filed a motion for summary judgment on its claims against Sentinel, seeking judgment in the amount of approximately $13.0 million, plus post-judgment interest and attorneys' fees. Subsequently, on January 26, 2000, Premier and DelPiano filed suit against the Company, its wholly-owned subsidiary, Leasecomm Corporation, and Sentinel in the Superior Court of Fulton County, Georgia (the "Premier Complaint"). Premier and DelPiano allege that, notwithstanding the plain wording of both the Loan and the Policy, Premier agreed to borrow the full amount of the Loan only upon alleged representations by the Company that it would loan Premier an additional Forty-Five Million Dollars ($45,000,000). The documents evidencing the Loan, and the documents evidencing the Policy, refer only to the amount of the Loan ($12,000,000), and not to any greater amount. Premier alleges that, as a result, it has suffered actual and consequential damages in the amount of Seven Hundred Sixty-Nine Million Three Hundred Fifty Thousand Dollars ($769,350,000) plus interest, costs, and attorneys' fees. Premier also seeks punitive damages in the amount of Five Hundred Million Dollars ($500,000,000). Premier also seeks injunctive relief barring the Company and Leasecomm from making demand on or commencing court action to collect on the Policy. On February 22, 2000, Leasecomm removed this case to federal court for the Northern District of Georgia. The parties have filed various motions with the Court, which will be heard over the next several months. Among the Company's and Leasecomm's motions, are motions to dismiss the Premier Complaint, or, alternatively, to transfer this case to federal court in Massachusetts; and, a motion for preliminary injunction regarding the Sentinel Complaint, seeking an order requiring Sentinel, Premier and Del Piano to turn over to the Company any collateral in their possession or to which the Company and Leasecomm may be entitled as a result of both Premier's and Sentinel's defaults under the Loan and the Policy, respectively. Since this matter is in an early stage, there can be no assurance as to its eventual outcome. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS No matters were submitted to a vote of the security holders of the Company during the fourth quarter of its fiscal year ended December 31, 1999. -10- 13 PART II ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS (a) Market Information The Company's common stock, par value $0.01 per share (the "Common Stock"), is listed on the New York Stock Exchange under the symbol "MFI." The Common Stock was listed on the New York Stock Exchange beginning February 5, 1999. Accordingly, the high and low sales price for the Common Stock on such exchange for each full quarter in the Company's fiscal year ending December 31, 1998 is not available. By quarter 1999 ------------------------------------------ SECOND THIRD FOURTH QUARTER QUARTER QUARTER ------- ------- ------- Stock Price High..................... 19.8125 14.7500 13.6250 Low...................... 9.0000 9.7500 10.0000 (b) Holders At March 22, 2000, there were approximately 64 stockholders of record of the Common Stock. (c) Dividends The Company paid the following quarterly cash dividends on the Common Stock. The amounts indicated give effect to the 2-for-1 stock split of the Common Stock effected on February 10, 1999. Year ended Year ended December 31, 1998 December 31, 1999 ----------------- ----------------- First Quarter................. $0.030 $0.035 Second Quarter................ $0.035 $0.040 Third Quarter................. $0.035 $0.040 Fourth Quarter................ $0.035 $0.040 The Company currently intends to pay dividends in the future. Provisions in certain of the Company's credit facilities and agreements governing its subordinated debt contain, and the terms of any indebtedness issued by the Company in the future are likely to contain, certain restrictions on the payment of dividends on the Common Stock. The decision as to the amount and timing of future dividends paid by the Company, if any, will be made at the discretion of the Company's Board of Directors in light of the financial condition, capital requirements, earnings and prospects of the Company and any restrictions under the Company's credit facilities or subordinated debt agreements, as well as other factors the Board of -11- 14 Directors may deem relevant, and there can be no assurance as to the amount and timing of payment of future dividends. (d) Recent Sales of Unregistered Securities Not applicable (e) Use of Proceeds from Registered Securities Not applicable -12- 15 ITEM 6. SELECTED FINANCIAL DATA The following table sets forth selected consolidated financial and operating data for the Company and its subsidiaries for the periods and at the dates indicated. The selected financial data were derived from the financial statements and accounting records of the Company. The data presented below should be read in conjunction with the consolidated financial statements, related notes and other financial information included herein.
YEARS ENDED DECEMBER 31, --------------------------------------------------------------------- 1995 1996 1997 1998 1999 --------- ------- ------- ------- ----------- (Dollars in thousands except per share data) Income Statement Data: Revenues Income on financing leases and loans $27,011 $38,654 $45,634 $47,341 $55,545 Income on service contracts (1) .... -- 6 501 2,565 6,349 Rental income ...................... 3,688 8,250 10,809 16,118 21,582 Fee income (2) ..................... 5,446 8,675 11,236 10,476 14,985 ------- ------- ------- ------- ------- Total revenues ..................... 36,145 55,585 68,180 76,500 98,461 ------- ------- ------- ------- ------- Expenses: Selling, general and administrative 8,485 14,073 17,252 20,061 24,416 Provision for credit losses ........ 13,388 19,822 (3) 21,713 (3) 19,075 37,836 (3) Depreciation and amortization ...... 1,503 2,981 3,787 5,076 7,597 Interest ........................... 8,560 10,163 11,890 12,154 10,375 ------- ------- ------- ------- ------- Total expenses ..................... 31,936 47,039 54,642 56,366 80,224 ------- ------- ------- ------- ------- Income before provision for income taxes ....................... 4,209 8,546 13,538 20,134 18,237 Net income .............................. 2,524 5,080 7,652 11,924 10,728 ======= ======= ======= ======= ======= Net income per common share Basic (4) .......................... $ 0.34 $ 0.52 $ 0.78 $ 1.21 $ 0.84 Diluted (5) ........................ 0.27 0.52 0.76 1.19 0.83 Dividends per common share .............. 0.06 0.10 0.12 0.14 0.16
DECEMBER 31, -------------------------------------------------------------------------- 1995 1996 1997 1998 1999 ---------- ---------- ---------- ---------- ---------- (Dollars in thousands) Balance Sheet Data: Gross investment in leases and loans (6) $ 189,698 $ 247,633 $ 258,230 $ 280,875 $ 362,721 Unearned Income ........................ (60,265) (76,951) (73,060) (74,520) (100,815) Allowance for credit losses ............ (15,952) (23,826) (26,319) (24,850) (41,719) Investment in service contracts (1) .... -- -- 2,145 8,920 14,250 Total Assets ...................... 126,479 170,192 179,701 210,254 265,856 Notes Payable .......................... 94,900 116,202 116,830 130,421 144,871 Subordinated notes payable ............. 13,170 27,006 26,382 24,421 9,238 Total liabilities ................. 118,568 158,013 160,935 180,771 187,018 Total stockholders' equity ........ 7,911 12,179 18,766 29,483 78,838
-13- 16
DECEMBER 31, ------------------------------------------------------------------------------ 1995 1996 1997 1998 1999 ---------- ---------- --------- ---------- ---------- (Dollars in thousands, except statistical data) Other Data: Operating Data: Total leases and loans originated (7) .. $ 134,546 $ 143,200 $ 129,064 $ 153,819 $ 223,446 Total service contracts acquired (8) ... 3,635 2,431 2,972 8,080 9,105 Dealer fundings (9) .................... $ 76,502 $ 73,659 $ 77,590 $ 105,200 137,300 Average yield on leases and loans (10) . 30.7% 32.4% 33.9% 35.2% 36.8% Cash flows from (used in): Operating activities ................... $ 41,959 60,104 77,393 95,973 114,723 Investing activities ................... (76,353) (86,682) (80,127) (108,111) (147,587) Financing activities ................... 36,155 33,711 (1,789) 9,703 37,109 --------- --------- --------- --------- --------- Total .................................. 1,761 7,133 (4,523) (2,435) 4,245 Selected Ratios: Return on average assets ............... 2.40% 3.42% 4.37% 6.12% 4.51% Return on average stockholders' equity .............................. 36.95 50.57 49.46 49.43 19.81 Operating margin (11) .................. 48.68 51.04 51.70 51.25 56.95 Credit Quality Statistics: Net charge-offs ........................ $ 5,428 $ 11,948 (12) $ 19,220 (12) $ 20,544 $ 20,968 Net charge-offs as a percentage of average gross investment (13) ....... 3.56% 5.46%(12) 7.57%(12) 7.47% 6.29% Provision for credit losses as a percentage of average gross investment (14) ..................... 8.78 9.07 8.55 6.93 11.35 Allowance for credit losses as a percentage of gross investment (15) . 8.41 9.62 10.14 8.58 11.07
- -------------- (1) The Company began acquiring fixed-term service contracts in 1995. Until December 1996, the Company treated these fixed-term contracts as leases for accounting purposes. Accordingly, income from these service contracts is included in income on financing leases and loans for all periods prior to December 1996 and investments in service contracts were recorded as receivables due in installments on the balance sheet at December 31, 1996. Beginning in December 1996, the Company began acquiring month-to-month service contracts, the income from which is included as a separate category in the Consolidated Statements of Operations and the investment in which are recorded separately on the balance sheet. (2) Includes loss and damage waiver fees and service fees. (3) The provision for 1996 includes $5.0 million resulting from a reduction in the time period for charging off the Company's receivables from 360 to 240 days. The write-off period was changed back to 360 days in January 1998. The provision for 1997 includes a one-time write-off of securitized receivables of $9.5 million and $5.1 million in write-offs of satellite television equipment receivables. The provision for 1999 includes a special provision of $12.7 million for a loan made to one company, collateralized by approximately 3,500 microticket consumer contracts and guaranteed by, among other security, an insurance performance bond. MicroFinancial is currently involved in litigation with the company and the insurance company. (4) Net income per common share (basic) is calculated based on weighted average common shares outstanding of 7,352,189, 9,682,851, 9,793,140, 9,859,127 and 12,795,809 for the years ended December 31, 1995, 1996, 1997, 1998, and 1999 respectively. -14- 17 (5) Net income per common share (diluted) is calculated based on weighted average common shares outstanding on a diluted basis of 9,448,206, 9,770,613, 9,925,329, 10,031,975 and 12,904,231 for the years ended December 31, 1995, 1996, 1997, 1998 and 1999, respectively. (6) Consists of receivables due in installments, estimated residual value, and loans receivable. (7) Represents the amount paid to Dealers upon funding of leases and loans plus the associated unearned income. (8) Represents the amount paid to Dealers upon the acquisition of service contracts, including both non-cancelable service contracts and month-to-month service contracts. (9) Represents the amount paid to Dealers upon funding of leases, contracts and loans. (10) Represents the aggregate of the implied interest rate on each lease and loan originated during the period weighted by the amount funded at origination for each such lease and loan. (11) Represents income before provision for income taxes and provision for credit losses as a percentage of total revenues. (12) Charge-offs in 1996 and 1997 were higher due to write-offs related to satellite television equipment lease receivables and due to a change in the write-off period from 360 to 240 days in the third quarter of 1996. The write-off period was changed back to 360 days in January 1998. (13) Represents net charge-offs as a percentage of average gross investment in leases and loans and investment in service contracts. (14) Represents provision for credit losses as a percentage of average gross investment in leases and loans and investment in service contracts. (15) Represents allowance for credit losses as a percentage of gross investment in leases and loans and investment in service contracts. ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion includes forward-looking statements (as such term is defined in the Private Securities Litigation Reform Act of 1995). When used in this discussion, the words "believes," "anticipates," "expects" and similar expressions are intended to identify forward-looking statements. Such forward-looking statements involve known and unknown risks, uncertainties and other important factors that could cause the actual results, performance or achievements of the Company, or industry results, to differ materially from any future results, performance or achievements expressed or implied by such forward-looking statements. Such risks, uncertainties and other important factors include, among others: the Company's dependence on POS authorization systems and expansion into new markets; the Company's significant capital requirements; the risks of defaults on the Company's leases; adverse consequences associated with the Company's collection policy; risks associated with economic downturns; the effect on the Company's portfolio of higher interest rates, intense competition; increased governmental regulation of the rates and methods used by the Company in financing and collecting its leases and loans; risks associated with acquiring other portfolios and companies; dependence on key personnel; and other factors many of which are beyond the Company's control. The Company expressly disclaims any obligation or undertaking to disseminate any updates or revisions to any forward-looking statement contained herein to reflect any change in the Company's expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based. In light of these risks and uncertainties, there can be no assurance that the forward-looking information contained herein will in fact transpire. -15- 18 OVERVIEW The Company is a specialized commercial finance company that provides "microticket" equipment leasing and other financing services in amounts generally ranging from $900 to $2,500, with an average amount financed of approximately $1,500. The Company primarily leases POS authorization systems and other small business equipment to small commercial enterprises. For years ended December 31, 1998 and 1999, the Company had fundings to Dealers upon origination of leases, contracts and loans ("Dealer Fundings") of $105.2 million and $137.3 million, respectively, and revenues of $76.5 million and $98.5 million, respectively. The Company derives the majority of its revenues from leases originated and held by the Company, payments on service contracts, rental payments from lessees who continue to rent the equipment beyond the original lease term, and fee income. The Company funds the majority of leases, contracts and loans through its revolving credit and term loan facilities (the "Credit Facilities") and on-balance sheet Securitizations, and to a lesser extent, its subordinated debt program ("Subordinated Debt") and internally generated funds. In a typical lease transaction, the Company originates leases through its network of independent Dealers. Upon approval of a lease application by the Company and verification that the lessee has both received the equipment and signed the lease, the Company pays the Dealer the cost of the equipment plus the Dealer's profit margin. In a typical transaction for the acquisition of service contracts, a homeowner purchases a security system and simultaneously signs a contract with the Dealer for the monitoring of that system for a monthly fee. Upon credit approval of the monitoring application and verification with the homeowner that the system is installed, the Company purchases from the Dealer the right to the payment stream under that monitoring contract at a negotiated multiple of the monthly payments. Substantially all leases originated or acquired by the Company are non-cancelable. During the term of the lease, the Company is scheduled to receive payments sufficient, in the aggregate, to cover the Company's borrowing costs and the costs of the underlying equipment, and to provide the Company with an appropriate profit. The Company enhances the profitability of its leases, contracts and loans by charging late fees, prepayment penalties, loss and damage waiver fees and other service fees, when applicable. The initial non-cancelable term of the lease is equal to or less than, the equipment's estimated economic life, and often provides the Company with additional revenues based on the residual value of the equipment financed at the end of the initial term of the lease. Initial terms of the leases in the Company's portfolio generally range from 12 to 48 months, with an average initial term of 44 months as of December 31, 1999. Substantially all service and rental contracts are month-to-month contracts with an expected term of seven years for service contracts and 15 months for rental contracts. CERTAIN ACCOUNTING CONSIDERATIONS The Company's lease contracts are accounted for as financing leases. At origination, the Company records the gross lease receivable, the estimated residual value of the leased equipment, initial direct costs incurred and the unearned lease income. Unearned lease income is the amount by which the gross lease receivable plus the estimated residual value exceeds the cost of the equipment. Unearned lease income and -16- 19 initial direct costs incurred are amortized over the related lease term using the interest method. Amortization of unearned lease income and initial direct costs is suspended if, in the opinion of management, full payment of the contractual amount due under the lease agreement is doubtful. In conjunction with the origination of leases, the Company may retain a residual interest in the underlying equipment upon termination of the lease. The value of such interests is estimated at inception of the lease and evaluated periodically for impairment. Other revenues such as loss and damage waiver fees, service fees relating to the leases, contracts and loans and rental revenues are recognized as they are earned. The Company's investments in cancelable service contracts are recorded at cost and amortized over the expected life of the service period. Income on service contracts from monthly billings is recognized as the related services are provided. The Company periodically evaluates whether events or circumstances have occurred that may affect the estimated useful life or recoverability of the investment in service contracts. Rental equipment is recorded at estimated residual value and depreciated using the straight-line method over a period of twelve months. Loans are reported at their outstanding principal balance. Interest income on loans is recognized as it is earned. The Company maintains an allowance for credit losses on its investment in leases, service contracts and loans at an amount that it believes is sufficient to provide adequate protection against losses in its portfolio. The allowance is determined principally on the basis of the historical loss experience of the Company and the level of recourse provided by such lease, service contract or loan, if any, and reflects management's judgment of additional loss potential considering future economic conditions and the nature and characteristics of the underlying lease portfolio. The Company determines the necessary periodic provision for credit losses taking into account actual and expected losses in the portfolio as a whole and the relationship of the allowance to the net investment in leases, service contracts and loans. Such provisions generally represent a percentage of funded amounts of leases, contracts and loans. The resulting charge is included in the provision for credit losses. Leases, service contracts, and loans are charged against the allowance for credit losses and are put on non-accrual when they are deemed to be uncollectable. Generally, the Company deems leases, service contracts and loans to be uncollectable when one of the following occur: (i) the obligor files for bankruptcy; (ii) the obligor dies and the equipment is returned; or (iii) when an account has become 360 days delinquent. The typical monthly payment under the Company's leases is between $30 and $50 per month. As a result of these small monthly payments, the Company's experience is that lessees will pay past due amounts later in the process because of the small amount necessary to bring an account current (at 360 days past due, a lessee will only owe lease payments of between $360 and $600). The Company has developed and regularly updates proprietary credit scoring systems designed to improve its risk based pricing. The Company uses credit scoring in most, but not all, of its extensions of credit. In addition, the Company aggressively employs collection procedures and a legal process to resolve any credit problems. -17- 20 RESULTS OF OPERATIONS Year Ended December 31, 1999 Compared to Year Ended December 31, 1998 Total revenues for the year ended December 31, 1999 were $98.5 million, an increase of $22 million, or 28.8%, from the year ended December 31, 1998, due primarily to increases of $9.2 million, or 49.5%, in rental and service contract income; $8.2 million, or 17.3%, in income on financing leases and loans and $4.3 million, or 85% in service fee income over such amounts in the previous year's period. The increase in rental and service contract income came from an increase in the number of lessees that have continued renting the equipment beyond the original lease term and the increase in the number of service contracts in the Company's portfolio. The increase in income on financing leases and loans arose from the continued growth in the Company's lease portfolio. Selling, general and administrative expenses increased $4.4 million, or 21.7%, for the year ended December 31, 1999 as compared to the year ended December 31, 1998. The increase was primarily attributable to an increase in personnel, resulting in a 22.4% increase in employee-related expenses, as the number of employees needed to maintain and manage the Company's growing portfolio and the general expansion of the Company's operations grew. Management expects that salaries and employee-related expenses, marketing expenses and other selling, general and administrative expenses will continue to increase as the portfolio grows because of the requirements of maintaining the Company's microticket portfolio and the Company's focus on collections. The Company's provision for credit losses, including a special provision of $12.7 million, increased $18.8 million from the year ended December 31, 1998 to $37.8 million for the year ended December 31, 1999. Excluding the special provision, the Company's provision for credit losses increased $6.1 million from the year ended December 31, 1998 to $25.1 million for the year ended December 31, 1999. This increase is primarily the result of the Company's policy of providing a provision for credit losses based in part upon the level of dealer fundings and revenue recognized in any period. Dealer fundings increased $32.1 million or 30.5% and total revenues increased by $22 million or 28.8% for the year ended December 31, 1999 as compared to the year ended December 31, 1998. The provision for 1999 includes a special provision of $12.7 million for a loan made to one company, collateralized by approximately 3,500 microticket consumer contracts and guaranteed by, among other security, an insurance performance bond. The Company is currently involved in litigation with the company and the insurance company, see "Legal Proceedings". Depreciation and amortization expense increased by $2.5 million or 50%, due to an increase in the number of lessees that have continued renting the equipment beyond the original lease term and the amortization of the investment associated with service contracts. Interest expense decreased by $1.8 million, or 15%, from $12.2 million for the year ended December 31, 1998 to $10.4 million for the year ended December 31, 1999. This decrease resulted from a decrease in the average outstanding balance of the Company's Credit Facilities. As a result of the foregoing, prior to the special provision, the Company's net income increased by $6.3 million, or 52.9%, from $11.9 million for the year ended December 31, 1998 to $18.2 million for the year -18- 21 ended December 31, 1999. After the special provision, the Company's net income for the year ended December 31, 1999 was $10.7 million, a decrease of 10%. Dealer Fundings were $137.3 million during the year ended December 31, 1999, an increase of $32.1 million, or 30.5%, compared to the year ended December 31, 1998. This increase primarily resulted from continued growth in leases of equipment other than POS authorization systems and acquisitions of service contracts. Receivable due in installments, estimated residual values, loans receivable and investment in service contracts also increased from $289.7 million for the year ended December 31, 1998 to $377 million for the year ended December 31, 1999, representing an increase of $87.3 million, or 30.1%. Net cash provided by operating activities increased by $18.8 million to $114.7 million during the year ended December 31, 1999, or 19.6%, from the year ended December 31, 1998 because of the increase in the size of the Company's overall portfolio as well as the Company's continued emphasis on collections. Unearned income increased $26.3 million, or 35.3%, from $74.5 million at December 31, 1998 to $100.8 million at December 31, 1999. This increase was due to the increased number of leases originated during 1999. Year Ended December 31, 1998 Compared to Year Ended December 31, 1997 Total revenues for the year ended December 31, 1998 were $76.5 million, an increase of $8.3 million, or 12.2%, from the year ended December 31, 1997, due primarily to increases of $7.4 million, or 65.5%, in rental and service contract income and $1.7 million, or 3.7%, in income on financing leases and loans over such amounts in the previous year's period. The increase in rental and service contract income came from an increase in the number of lessees that have continued renting the equipment beyond the original lease term and the increase in the number of service contracts in the Company's portfolio. The increase in income on financing leases and loans arose from the continued growth in the Company's lease and loan portfolio. Selling, general and administrative expenses increased $2.8 million, or 16.2%, for the year ended December 31, 1998 as compared to the year ended December 31, 1997. The increase was primarily attributable to an increase in personnel, resulting in a 19.8% increase in employee-related expenses, as the number of employees needed to maintain and manage the Company's growing portfolio and the general expansion of the Company's operations grew. Management expects that salaries and employee-related expenses, marketing expenses and other selling, general and administrative expenses will continue to increase as the portfolio grows because of the requirements of maintaining the Company's microticket portfolio and the Company's focus on collections. The Company's provision for credit losses decreased $2.6 million from the year ended December 31, 1997 to $19.1 million for the year ended December 31, 1998. This decrease resulted from an increase in recoveries and the Company's estimate of future losses. Depreciation and amortization expense increased by $1.3 million or 34%, due to the increased number of rental contracts and the amortization of the investment associated with service contracts. Interest expense increased by $264,000, or 2.2%, from $11.9 million for the year ended December 31, 1997 to $12.2 million for the year ended December 31, 1998. This increase resulted from an increase in the average outstanding balance of the Company's Credit Facilities. -19- 22 As a result of the foregoing, the Company's net income increased by $4.3 million, or 55.8%, from $7.7 million for the year ended December 31, 1997 to $11.9 million for the year ended December 31, 1998. Dealer Fundings were $105.2 million during the year ended December 31, 1998, an increase of $27.6 million, or 35.6%, compared to the year ended December 31, 1997. This increase primarily resulted from continued growth in leases of equipment other than POS authorization systems, acquisitions of service contracts and loans to commercial businesses. Receivable due in installments, estimated residual values, loans receivable and investment in service contracts also increased from $260 million for the year ended December 31, 1997 to $288.7 million for the year ended December 31, 1998, representing an increase of $28.7 million, or 11%. Net cash provided by operating activities increased by $18.6 million to $96 million during the year ended December 31, 1998, or 24%, from the year ended December 31, 1997 because of the increase in the size of the Company's overall portfolio as well as the Company's continued emphasis on collections. Unearned income increased $1.4 million, or 1.9%, from $73.1 million at December 31, 1997 to $74.5 million at December 31, 1998. This increase was due to the increased number of leases originated during 1998. Year Ended December 31, 1997 Compared to Year Ended December 31, 1996. Total revenues for the year ended December 31, 1997 were $68.2 million, an increase of $12.6 million, or 22.7%, from the year ended December 31, 1996, due to increases of $7.0 million, or 18.1%, in income on financing leases and loans, $2.6 million, or 31.0%, in rental income and $2.6 million, or 29.5%, in fee income. The increase in income on leases and loans was primarily the result of the continued growth in the Company's lease portfolio. The increase in rental income is due to the increased number of lessees who continued to rent the equipment beyond the original lease term. The increase in fee income was a result of the increase in the overall portfolio serviced by the Company. The Company completed two portfolio acquisitions, one in May 1996 for $1.9 million of rental contracts and a second in December 1996 for $7.9 million of leases. The income attributable to these acquired leases and rental contracts represented approximately $2.2 million, or 4.7%, of total income on leases and loans and rental income for 1996 and approximately $4.4 million, or 7.8%, of total income on leases and loans and rental income for 1997. Selling, general and administrative expenses increased $3.2 million, or 22.6%, for the year ended December 31, 1997 as compared to the year ended December 31, 1996. Such increase was primarily attributable to a 20% increase in the number of employees needed to maintain and manage the Company's increased portfolio, the general expansion of the Company's operations and the more competitive employment environment. The Company's provision for credit losses increased by $1.9 million, or 9.5%, from $19.8 million in 1996 to $21.7 million in 1997. The higher provision was due to a one-time write-off of securitized receivables of $9.5 million, $5.1 million in one-time write-offs of satellite television equipment receivables and growth in the overall size of the Company's portfolio. The Company's 1997 provision reflected a cumulative write-off of non-accruing fully reserved receivables in the Company's securitized portfolio. The Company wrote off the $5.1 million in satellite television equipment receivables in 1997 sooner than its -20- 23 normal 360-day policy because it was the Company's experience that certain characteristics of consumer receivables which were different from commercial receivables would render such receivables uncollectable under the Company's normal collection procedures. Depreciation and amortization expense increased by $806,000, or 27.0%, from 1996 to 1997 due to the increased number of rental contracts and the amortization of the investment costs associated with service contracts. Interest expense increased by $1.7 million, from $10.2 million for the year ended December 31, 1996 to $11.9 million in 1997. This increase was primarily due to an increase in the average outstanding balances of the Company's Credit Facilities and Subordinated Debt. As a result of these factors, net income increased by $2.6 million, or 50.6%, from $5.1 million in the year ended December 31, 1996 to $7.7 million in the year ended December 31, 1997. Dealer Fundings were $77.6 million for the fiscal year ended December 31, 1997, an increase of $3.9 million, or 5.3%, compared to $73.7 million for the fiscal year ended December 31, 1996. The Company decided in July 1996 to scale back its Dealer Fundings of consumer satellite television equipment leases, funding to Dealers only $0.8 million of such leases in 1997 compared to $4.7 million in 1996. Excluding this factor, the Company had an increase in Dealer Fundings of $7.8 million, or 11.3%, over 1996. This increase primarily resulted from continued growth in leases of equipment other than POS authorization systems, acquisitions of service contracts and loans to commercial businesses. Gross investment in leases and loans also increased from $247.6 million in 1996 to $258.2 million at December 31, 1997, representing an increase of $10.6 million, or 4.3%. Net cash provided by operating activities increased by $17.3 million to $77.4 million during the year ended December 31, 1997, or 28.8%, from the year ended December 31, 1996 because of the increase in the size of the Company's overall portfolio as well as the Company's continued emphasis on collections. Unearned income decreased $3.9 million, or 5.1%, from $77.0 million at December 31, 1996 to $73.1 million at December 31, 1997. This decrease resulted primarily from increased acquisitions of service contracts and originations of loans which are accounted for on a cost basis and as a result do not have any unearned income associated with them, as well as one-time write-offs in 1997 of approximately $5.0 million in consumer satellite television equipment lease receivables and $9.5 million of securitized receivables and the corresponding unearned income associated with those leases. LIQUIDITY AND CAPITAL RESOURCES General The Company's lease and finance business is capital-intensive and requires access to substantial short-term and long-term credit to fund new leases, contracts and loans. Since inception, the Company has funded its operations primarily through borrowings under its Credit Facilities, its on-balance sheet Securitizations, and an initial public offering completed in February of 1999. The Company has also funded its operations through the issuance of Subordinated Debt; however no new Subordinated Debt was issued in 1999. The Company will continue to require significant additional capital to maintain and expand its -21- 24 volume of leases, contracts and loans funded, as well as to fund any future acquisitions of leasing companies or portfolios. The Company's uses of cash include the origination and acquisition of leases, contracts and loans, payment of interest expenses, repayment of borrowings under its Credit Facilities, Subordinated Debt and Securitizations, payment of selling, general and administrative expenses, income taxes and capital expenditures. The Company utilizes its Credit Facilities to fund the origination and acquisition of leases that satisfy the eligibility requirements established pursuant to each facility. On December 21, 1999, the Company entered into a new $150 million Credit Facility, expiring on September 30, 2001, with seven banks. At December 31, 1999, the Company had approximately $108.8 million outstanding under the facility. The Company also may use its Subordinated Debt program as a source of funding for potential acquisitions of portfolios and leases which otherwise are not eligible for funding under the Credit Facilities and for potential portfolio purchases. To date, cash flow from its portfolio and other fees have been sufficient to repay amounts borrowed under the Credit Facilities and Subordinated Debt. The Company believes that cash flow from its operations and amounts available under its Credit Facilities will be sufficient to fund the Company's operations for the foreseeable future. Although the Company is not currently involved in negotiations and has no current commitments or agreements with respect to any acquisitions, to the extent that the Company successfully consummates acquisitions, it may be necessary to finance such acquisitions through the issuance of additional debt or equity securities, the incurrence of indebtedness or a combination of both. Recently Issued Accounting Pronouncements See Note B of the notes to the consolidated financial statements included herein for a discussion of the impact of recently issued accounting pronouncements. Year 2000 Many computer programs and microprocessors were designed and developed without consideration of the impact of the transition to the year 2000. As a result, these programs and microprocessors may not be able to differentiate between the year "1900" and "2000"; the year 2000 may be recognized as the two-digit number "00". If not corrected, this could have caused difficulties in obtaining accurate system data and support. The Company has designed and purchased numerous computer systems since its inception. The Company's owned software and hardware is substantially Year 2000 compliant. The costs associated with such compliance were not material to the Company's liquidity or results of operations. Further, the Company's critical third party software was generally Year 2000 compliant, with minor issues, and was capable of functioning after December 31, 1999. -22- 25 AVAILABILITY OF INFORMATION THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH OF ITS STOCKHOLDERS UPON THE WRITTEN REQUEST OF SUCH PERSON, A COPY OF THE COMPANY'S ANNUAL REPORT ON FORM 10K FOR ITS FISCAL YEAR ENDED DECEMBER 31, 1999, INCLUDING THE FINANCIAL STATEMENTS AND THE FINANCIAL STATEMENT SCHEDULES, REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. REQUESTS FOR SUCH DOCUMENT SHOULD BE DIRECTED TO RICHARD F. LATOUR, CLERK OF MICROFINANCIAL INCORPORATED, AT 950 WINTER STREET, WALTHAM, MASSACHUSETTS 02451. ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Market-Rate-Sensitive Instruments and Risk Management The following discussion about the Company's risk management activities includes "forward-looking statements" that involve risk and uncertainties. Actual results could differ materially from those projected in the forward-looking statements. This analysis presents the hypothetical loss in earnings, cash flows, or fair value of the financial instrument and derivative instruments held by the Company at December 31, 1999, that are sensitive to changes in interest rates. The Company uses interest-rate swaps to manage the primary market exposures associated with underlying liabilities and anticipated transactions. The Company uses these instruments to reduce risk by creating offsetting market exposures. The instruments held by the Company are not held for trading purposes. In the normal course of operations, the Company also faces risks that are either nonfinancial or nonquantifiable. Such risks principally include country risk, credit risk, and legal risk, and are not represented in the analysis that follows. Interest Rate Risk Management This analysis presents the hypothetical loss in earnings of the financial instruments and derivative instruments held by the Company at December 31, 1999 that are sensitive to changes in interest rates. The Company enters into interest rate swaps to reduce exposure to interest-rate risk connected to existing liabilities. The Company does not hold or issue derivative financial instruments for trading purposes. Because the Company's net-earnings exposure under the combined debt and interest-rate swap was to 90-day Eurodollar, the hypothetical loss was modeled by calculating the 10 percent adverse change in 90-day Eurodollar and then multiplying it by the face amount of the debt (which equaled the face amount of the interest rate swap). The implicit yield to the Company on all of its leases, contracts and loans is on a fixed interest rate basis due to the leases, contracts and loans having scheduled payments that are fixed at the time of origination of the lease. When the Company originates or acquires leases, contracts and loans it bases its pricing in part on the "spread" it expects to achieve between the implicit yield rate to the Company on each -23- 26 lease and the effective interest cost it will pay when it finances such leases, contracts and loans through its Credit Facilities. Increases in interest rates during the term of each lease, contract or loan could narrow or eliminate the spread, or result in a negative spread. The Company has adopted a policy designed to protect itself against interest rate volatility during the term of each lease, contract or loan. Given the relatively short average life of the Company's leases, contracts and loans, the Company's goal is to maintain a blend of fixed and variable interest rate obligations. As of December 31, 1999, the Company's outstanding fixed rate indebtedness, including indebtedness outstanding under the Company's Securitizations and indebtedness subject to the swap described below, represented 36.5% of the Company's outstanding indebtedness. In July 1997, the Company entered into an interest rate swap arrangement with one of its banks. This arrangement, which expires in July 2000, has a notional amount of $17.5 million which represented 33.4% of the Company's fixed rate indebtedness outstanding at December 31, 1999. The interest rate associated with the swap is capped at 6.6%. During the term of the swap, the Company has agreed to match the swap amount with 90-day Eurodollar loans. If at any time the 90-day Eurodollar rate exceeds the swap cap of 6.6%, the bank would pay the Company the difference. Through December 31, 1999, the Company had entered into Eurodollar loans with interest rates ranging from 7.8125% to 8.00%. This arrangement effectively changes the Company's floating interest rate exposure on the $17.5 million notional amount to a fixed rate of 8.35%. The aggregate hypothetical loss in earnings on an annual basis on all financial instruments and derivative instruments that would have resulted from a hypothetical increase of 10 percent in 90-day Eurodollar, sustained for one month, is estimated to be $12,175. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA INCLUDING SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED) Included in Exhibit 99 incorporated by reference herein. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE Not applicable. -24- 27 PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT The sections "Election of Directors", "Certain Information regarding the MicroFinancial Board" and "Section 16(a) Beneficial Ownership Reporting Compliance" included in the Company's proxy statement for its 2000 Special Meeting in lieu of Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 29, 2000 are hereby incorporated by reference. ITEM 11. EXECUTIVE COMPENSATION The sections "Compensation of Executive Officers" and "Certain Information regarding the MicroFinancial Board" included in the Company's proxy statement for its 2000 Special Meeting in lieu of Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 29, 2000 are hereby incorporated by reference. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The section "Security Ownership of Certain Beneficial Owners and Management" included in the Company's proxy statement for its 2000 Special Meeting in lieu of Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 29, 2000 is hereby incorporated by reference. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS The section "Other Information Relating to Directors, Nominees and Executive Officers" included in the Company's proxy statement for its 2000 Special Meeting in lieu of Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 29, 2000 is hereby incorporated by reference. -25- 28 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K (a) (1) Financial Statements Included in Exhibit 99 incorporated by reference herein. (2) None. (3) Exhibits Index EXHIBIT NUMBER DESCRIPTION - ------- ----------- 3.1 Restated Articles of Organization, as amended. (1). 3.2 Bylaws. (1). 10.7 Office Lease Agreement by and between AJ Partners Limited Partnership and Leasecomm Corporation dated July 12, 1993 for facilities in Newark, California. (1). 10.8 Office Lease Agreement by and between MicroFinancial Incorporated and Desmond Taljaard and Howard Friedman, Trustees of London and Leeds Bay Colony I Realty Trust, dated April 14, 1994 for facilities in Waltham, Massachusetts. (1). 10.9** 1987 Stock Option Plan. (1). 10.10** Forms of Grant under 1987 Stock Option Plan. (1). 10.12** 1998 Equity Incentive Plan. (3). 10.13** Employment Agreement between the Company and Peter R. Bleyleben. (3). 10.14** Employment Agreement between the Company and Richard F. Latour. (3). 10.15 Standard Terms and Condition of Indenture dated as of November 1, 1994 governing the BLT Finance Corp. III 6.03% Lease-Backed Notes, Series 1998-A (the "1998-A Notes"), the BLT Finance Corp. III 6.42% Lease-Backed Notes, Series 1997-A (the "1997-A Notes") and the BLT Finance Corp. III 6.69% Lease-Backed Notes, Series 1996-A (the "1996-A Notes"). (2). 10.16 Second Amended and Restated Specific Terms and Conditions of Indenture dated as of October 1, 1998, governing the 1996-A Notes, the 1997-A Notes and the 1998-A Notes. (3). 10.17 Supplement to Indenture dated May 1, 1996 governing the 1996-A Notes. (2). -26- 29 10.18 Supplement to Indenture dated August 1, 1997 governing the 1997-A Notes. (2). 10.19 Supplement to Indenture dated as of October 1, 1998 governing the 1998-A Notes. (3). 10.20 Specimen 1997-A Note. (2). 10.21 Specimen 1996-A Note. (2). 10.22 Specimen 1998-A Note. (3). 10.23 Standard Terms and Conditions of Servicing governing the 1996-A Notes, the 1997-A Notes and the 1998-A Notes. (2). 10.24 Specific Terms and Conditions of Servicing governing the 1996-A Notes, the 1997-A Notes and the 1998-A Notes. (2). 10.25 Commercial Lease, dated November 3, 1998, between Cummings Properties Management, Inc. and MicroFinancial Incorporated. (3). 10.26 Amendment to Lease #1, dated November 3, 1998, between Cummings Properties Management, Inc. and MicroFinancial Incorporated. (3). 10.28 Employment Agreement between the Company and John Plumlee. (3). 10.29 Employment Agreement between the Company and Carol Salvo. (3). 10.33* Third Amended and Restated Revolving Credit Agreement, dated December 21, 1999, among Leasecomm Corporation, the lenders parties thereto and BankBoston, N.A., as agent. 10.34* Fifth Amendment to Office Lease Agreement by and between MicroFinancial Incorporated and Leasecomm Corporation and Bay Colony Corporate Center LLC, dated June 29, 1999 for facilities in Waltham, Massachusetts. 21.1 Subsidiaries of Registrant. (1). 23.1* Consent of PricewaterhouseCoopers LLP 27* Financial Data Schedule. 99* Consolidated Financial Statements and Notes to Consolidated Financial Statements - ----------------------------------- * Filed herewith. -27- 30 ** Management contract or compensatory plan or arrangement required to be filed as an exhibit pursuant to Item 14(c) of this Report. (1) Incorporated by reference to the Exhibit with the same exhibit number in the Registrant's Registration Statement on Form S-1 (Registration Statement No. 333-56639) filed with the Securities and Exchange Commission on June 9, 1998. (2) Incorporated by reference to the Exhibit with the same exhibit number in the Registrant's Amendment No. 1 to Registration Statement on Form S-1 (Registration Statement No. 333-56639) filed with the Securities and Exchange Commission on August 3, 1998. (3) Incorporated by reference to the Exhibit with the same exhibit number in the Registrant's Amendment No. 2 to Registration Statement on Form S-1 (Registration Statement No. 333-56639) filed with the Securities and Exchange Commission on January 11, 1999. (4) Incorporated by reference to the Exhibit with the same exhibit number in the Registrant's Amendment No. 3 to Registration Statement on Form S-1 (Registration Statement No. 333-56639) filed with the Securities and Exchange Commission on February 4, 1999. (b) No reports have been filed on Form 8-K. (c) See (a)(3) above. (d) None. -28- 31 SIGNATURES Pursuant to the requirements of Section 13 of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. MICROFINANCIAL INCORPORATED. By: /s/ Peter R. Bleyleben ---------------------------- Peter R. Bleyleben President, Chief Executive Officer and Director Date: March 30, 2000 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - --------- ----- ---- /s/ Peter R. Bleyleben President, Chief Executive Officer March 30, 2000 - ------------------------------------------ and Director Peter R. Bleyleben /s/ Richard F. Latour Executive Vice President, Chief March 30, 2000 - ------------------------------------------ Operating Officer, Chief Financial Richard F. Latour Officer, Treasurer, Clerk and Secretary /s/ Brian E. Boyle Director March 30, 2000 - ------------------------------------------ Brian E. Boyle /s/ Torrence C. Harder Director March 30, 2000 - ------------------------------------------ Torrence C. Harder /s/ Jeffrey P. Parker Director March 30, 2000 - ------------------------------------------ Jeffrey P. Parker /s/ Alan J. Zakon Director March 30, 2000 - ------------------------------------------ Alan J. Zakon
-29- EX-10.33 2 THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREE. 1 THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT AMONG THE LENDERS PARTY HERETO BANKBOSTON, N.A., AS AGENT AND LEASECOMM CORPORATION Dated: December 21, 1999 2 Table of Contents
Page ---- SECTION I DEFINITIONS.........................................................1 1.1 Definitions......................................................1 1.2 Rules of Interpretation.........................................17 SECTION II DESCRIPTION OF CREDIT.............................................18 2.1 Revolving Credit Loans..........................................18 2.2 Swing Line Advances.............................................19 2.3 The Notes.......................................................19 2.4 Notice and Manner of Borrowing or Conversion of Loans...........20 2.5 Funding of Loans................................................21 2.6 Interest Rates and Payments of Interest.........................22 2.7 Fees............................................................23 2.8 Payments and Prepayments of the Loans; Conversion Term Loan.....24 2.9 Method of Payment and Allocation of Payments....................25 2.10 Indemnity......................................................26 2.11 Computation of Interest and Fees...............................26 2.12 Changed Circumstances; Illegality..............................26 2.13 Increased Costs................................................27 2.14 Capital Requirements...........................................28 SECTION III CONDITIONS OF LOANS..............................................28 3.1 Conditions Precedent to Initial Loans...........................28 3.2 Conditions Precedent to all Loans...............................30 SECTION IV REPRESENTATIONS AND WARRANTIES....................................30 4.1 Organization; Qualification; Business...........................30 4.2 Corporate Authority.............................................31 4.3 Valid Obligations...............................................31 4.4 Consents or Approvals...........................................31 4.5 Title to Properties; Absence of Encumbrances....................31 4.6 Financial Statements............................................32 4.7 Changes.........................................................32 4.8 Solvency........................................................32 4.9 Defaults........................................................32 4.10 Taxes..........................................................32 4.11 Litigation.....................................................32 4.12 Subsidiaries...................................................32 4.13 Investment Company Act.........................................33 4.14 Compliance.....................................................33 4.15 ERISA..........................................................33 4.16 Environmental Matters..........................................33 4.17 Restrictions on the Borrower...................................34
3 Table of Contents (continued)
Page ---- 4.18 Labor Relations................................................34 4.19 Margin Rules...................................................35 4.20 Disclosure.....................................................35 4.21 Year 2000 Compliance...........................................35 SECTION V AFFIRMATIVE COVENANTS..............................................35 5.1 Financial Statements............................................35 5.2 Conduct of Business.............................................36 5.3 Maintenance and Insurance.......................................37 5.4 Taxes...........................................................37 5.5 Inspection......................................................37 5.6 Maintenance of Books and Records................................38 5.7 Use of Proceeds.................................................38 5.8 Further Assurances..............................................38 5.9 Notification Requirements.......................................38 5.10 ERISA Reports..................................................39 5.11 Environmental Compliance.......................................39 SECTION VI FINANCIAL COVENANTS...............................................40 6.1 Debt to Worth Ratio.............................................40 6.2 Consolidated Tangible Net Worth.................................40 6.3 Bad Debt Allowance..............................................40 6.4 Fixed Charge Ratio..............................................40 SECTION VII NEGATIVE COVENANTS...............................................40 7.1 Indebtedness....................................................40 7.2 Contingent Liabilities..........................................41 7.3 Encumbrances....................................................41 7.4 Merger; Consolidation; Sale or Lease of Assets..................42 7.5 Subsidiary Stock................................................42 7.6 Restricted Payments.............................................43 7.7 Payments on Subordinated Debt...................................43 7.8 Investments; Purchases of Assets................................43 7.9 ERISA Compliance................................................44 7.10 Transactions with Affiliates...................................45 7.11 Fiscal Year....................................................45 7.12 Underwriting Procedures........................................45 SECTION VIII DEFAULTS........................................................45 8.1 Events of Default...............................................45 8.2 Remedies........................................................47
-ii- 4 Table of Contents (continued)
Page ---- SECTION IX ASSIGNMENT; PARTICIPATION.........................................48 9.1 Assignment......................................................48 9.2 Participations..................................................49 SECTION X THE AGENT..........................................................49 10.1 Appointment of Agent; Powers and Immunities....................49 10.2 Actions by Agent...............................................50 10.3 Indemnification................................................51 10.4 Reimbursement. ................................................51 10.5 Non-Reliance on Agent and Other Lenders........................52 10.6 Resignation or Removal of Agent................................52 SECTION XI MISCELLANEOUS.....................................................52 11.1 Notices........................................................52 11.2 Expenses.......................................................53 11.3 Indemnification................................................54 11.4 Survival of Covenants, Etc. ...................................54 11.5 Set-Off........................................................54 11.6 No Waivers.....................................................55 11.7 Amendments, Waivers, Etc. .....................................55 11.8 Binding Effect of Agreement....................................55 11.9 Captions; Counterparts.........................................56 11.10 Entire Agreement, Etc. .......................................56 11.11 Waiver of Jury Trial..........................................56 11.12 Governing Law.................................................56 11.13 Severability..................................................57 11.14 Confidentiality...............................................57
SCHEDULE 1 - Commitments of the Lenders EXHIBITS EXHIBIT A Form of Revolving Credit Note EXHIBIT B Form of Notice of Borrowing or Conversion EXHIBIT C Disclosure EXHIBIT D Form of Report of Chief Financial Officer EXHIBIT E Assignment and Joinder Agreement EXHIBIT F-1 Form of Dealer Agreement EXHIBIT F-2 Form of Security Monitoring Agreement -iii- 5 THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT THIS THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of December 21, 1999 by and among LEASECOMM CORPORATION, a Massachusetts corporation having its chief executive office at 950 Winter Street, Waltham, Massachusetts 02451 (the "Borrower"); BANKBOSTON, N.A., a national bank having its head office at 100 Federal Street, Boston, Massachusetts 02110 (together with its successors, "BKB"); the other financial institutions from time to time party hereto (together with BKB, the "Lenders"); and BANKBOSTON, N.A., as agent for the Lenders (in such capacity, the "Agent"). WHEREAS, the Borrower, the Agent and certain of the Lenders are parties to a Second Amended and Restated Revolving Credit Agreement dated as of January 27, 1999 (the "Existing Agreement"). WHEREAS, certain financial institutions wish to become parties to the Existing Agreement, as amended and restated hereby. WHEREAS, the parties hereto wish to amend the Existing Agreement and to restate the Existing Agreement as so amended. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree that the Existing Agreement is hereby amended and restated in its entirety to read as follows: SECTION I DEFINITIONS 1.1 Definitions. All capitalized terms used in this Agreement or in the Notes or in any certificate, report or other document made or delivered pursuant to this Agreement (unless otherwise defined therein) shall have the meanings assigned to them below: Adjusted Cost. The Original Cost less any dealer reserve, hold backs and discounts to the Borrower, sales taxes, insurance, shipping, delivery, handling and other similar charges applicable to any Equipment or Security Monitoring Agreement. Affected Loans. See Section 2.12(a). Affiliate. With reference to any Person, (including an individual, a corporation, a partnership, a trust and a governmental agency or instrumentality), (i) any director, officer or employee of that Person, (ii) any other person controlling, controlled by or under direct or indirect common control of that person, (iii) any other Person directly or indirectly holding 5% or more of any class of the capital stock or other equity interests (including options, warrants, convertible securities and similar rights) of that Person and (iv) any other Person 5% or more of 6 any class of whose capital stock or other equity interests (including options, warrants, convertible securities and similar rights) is held directly or indirectly by that Person. For purposes of Sections 4.15, 5.10 and 7.9 hereof, "Affiliate" shall mean, within the meaning of Section 414(b), (c), (m) or (o) of the Code (i) any member of a controlled group of corporations which includes the Borrower, (ii) any trade or business, whether or not incorporated, under common control with the Borrower, (iii) any member of an affiliated service group which includes the Borrower, and (iv) any member of a group treated as a single employer by regulation. Agent. See Preamble. Agreement. This Third Amended and Restated Revolving Credit Agreement, including the Exhibits and Schedules hereto, as the same may be supplemented or amended from time to time. Assignee. See Section 9.1. Base Rate. The greater of (i) the rate of interest announced from time to time by the Agent at its head office as its Base Rate, and (ii) the Federal Funds Effective Rate plus 1/2 of 1% per annum (rounded, if necessary, to the nearest 1/8 of 1%). Base Rate Loan. Any Loan bearing interest determined with reference to the Base Rate. Borrower. See Preamble. Borrower's Accountants. PricewaterhouseCoopers LLC or such other independent certified public accountants as are selected by the Borrower and reasonably acceptable to the Agent. Borrowing Base. As at the date of any determination thereof, an amount equal to the sum of: (a) in the case of Eligible Leases which are Finance Leases (other than Eligible Security Monitoring Agreements) or in the case of Eligible Installment Sales Contracts, the lesser of (x) 100% of the Adjusted Cost of the Eligible Equipment subject to such Eligible Leases or Eligible Installment Sales Contracts, or (y) 75% of the aggregate amount of all Eligible Lease Receivables relating to all such Eligible Leases or Eligible Installment Sales Contracts, discounted to present value by a percentage equal to the Discount Rate (which calculation shall not take into account rental payments due or payable under such Eligible Leases or Eligible Installment Sales Contracts beyond 60 months after the commencement date of such Eligible Leases or Eligible Installment Sales Contracts); plus (b) in the case of Eligible Leases which are Operating Leases (other than Rental Contracts or Eligible Security Monitoring Agreements), the lesser of (x) 75% of the aggregate Net Book Value of the Eligible Equipment subject to such Operating Leases or (y) 75% of the aggregate amount of all Eligible Lease Receivables relating to all such Eligible Leases, discounted to present value by a percentage equal to the Discount Rate (which calculation shall -2- 7 not take into account rental payments due or payable under such Eligible Leases beyond 60 months after the commencement date of such Eligible Leases); plus (c) in the case of Eligible Rental Contracts (other than Eligible Security Monitoring Agreements), an amount equal to 75% of the aggregate Net Book Value of all Eligible Equipment subject to such Eligible Rental Contracts, provided that the portion of the Borrowing Base determined pursuant to this subparagraph (c) shall not exceed 15% of the Total Commitment; plus (d) in the case of Eligible Security Monitoring Agreements, an amount equal to 75% of the Adjusted Cost of the security system and/or monitoring services subject to such Agreement, provided that solely for purposes of the foregoing calculation the Adjusted Cost shall not, unless otherwise approved by the Agent, exceed 35 times the so-called "recurring monthly revenues" from any such Agreement; plus (e) in the case of Eligible Installment Finance Contracts, an amount equal to 75% of the aggregate amount of all Eligible Lease Receivables relating to all such Eligible Installment Finance Contracts, discounted to present value by a percentage equal to the Discount Rate (which calculation shall not take into account payments due or payable under such Eligible Installment Finance Contracts beyond 60 months after the commencement date of such Eligible Installment Finance Contracts); minus (f) Borrowing Base Reserves, if any, at the date of determination of the Borrowing Base; provided, however, that notwithstanding the foregoing, there shall be excluded from the Borrowing Base (x) any Lease or Eligible Installment Finance Contract to the extent that the Receivables due pursuant to such Lease or Eligible Installment Finance Contract, when added to the Receivables due pursuant to all other Leases and Eligible Installment Finance Contracts with lessees and account debtors in the same state would exceed 20% of Gross Lease Installments, and (y) any Lease or Eligible Installment Finance Contract to the extent that the Receivables due pursuant to such Lease or Eligible Installment Finance Contract, when added to all other Receivables due from the same account debtor, would exceed the lesser of (i) $3,500,000, or (ii) five percent (5%) of the Commitments at such time. For purposes hereof, determination of the calculation shall be made on a lease by lease and contract by contract basis but the Borrowing Base shall include the aggregate of all such calculations. Borrowing Base Maturity Date. September 30, 2001. Borrowing Base Report. A report of a Borrowing Computation in form satisfactory to the Agent and signed by any Responsible Officer. Borrowing Base Reserves. At the time of any determination of the Borrowing Base, such reserves as the Agent may from time to time determine to establish, in the exercise of its reasonable credit judgment based upon its review of the financial information delivered pursuant to Section 5.1, the results of inspection and reviews of books and records as contemplated by Section 5.5 and other information concerning the business, operations and prospects of the Borrower. Borrowing Computation. See Section 2.4(c). -3- 8 Business Day. (i) For all purposes other than as covered by clause (ii) below, any day other than a Saturday, Sunday or legal holiday on which banks in Boston, Massachusetts are open for the conduct of a substantial part of their commercial banking business; and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day that is a Business Day described in clause (i) and that is also a day for trading by and between banks in U.S. Dollar deposits in the interbank Eurodollar market. Capital Expenditures. For any period, the aggregate amount of all payments made by any Person directly or indirectly for the purpose of acquiring, constructing or maintaining fixed assets, real property or equipment which, in accordance with GAAP, would be added as a debit to the fixed asset account of such Person, including, without limitation, Capitalized Lease Obligations, but excluding therefrom the purchase of Equipment as inventory for the purpose of being leased under an Operating Lease. Capitalized Lease Obligations. As to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property which obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP, consistently applied. Closing Date. The first date on which the conditions set forth in Sections 3.1 and 3.2 have been satisfied and any Loans are to be made hereunder. Code. The Internal Revenue Code of 1986 and the rules and regulations thereunder, collectively, as the same may from time to time be supplemented or amended and remain in effect. Collateral. All of the property, rights and interests of the Borrower and its Subsidiaries that are or are intended to be subject to the security interests and liens created by the Security Documents. Commitment. With respect to any Lender, the maximum dollar amount which such Lender has agreed to loan to the Borrower upon the terms and subject to the conditions of this Agreement, initially as set forth on Schedule 1 attached hereto, as such Lender's Commitment may be modified from time to time as provided in this Agreement, including termination or reduction of such Commitment in accordance with Sections 2.1 and 8.2 hereof. Schedule 1 shall be amended from time to time to reflect any changes in the Commitments of the Lenders. Commitment Fee. See Section 2.7(a). Consolidated Earnings. For any fiscal period, an amount equal to Consolidated Net Income for such period, plus the following to the extent deducted in computing such Consolidated Net Income: (a) all provisions on the consolidated statement of operations of the Parent and its Subsidiaries for any federal, state or other taxes; (b) interest on Indebtedness (including payments on Capitalized Lease Obligations in the nature of interest); and (c) any extraordinary non-cash loss; all as determined in accordance with GAAP. -4- 9 Consolidated Indebtedness. The consolidated Indebtedness (excluding Subordinated Debt but including Non-Recourse Indebtedness) of the Parent and its Subsidiaries, including the Borrower, determined in accordance with GAAP. Consolidated Net Income (Deficit). With respect to any period, the consolidated net income (or deficit) of the Parent and its Subsidiaries, including the Borrower, for such period, as determined in accordance with GAAP; provided, however, that Consolidated Net Income shall not include: (i) any gain or loss arising from any write-up of assets and (ii) any extraordinary or nonrecurring gains. Consolidated Tangible Capital Funds. The sum, with respect to the Parent and its Subsidiaries, including the Borrower, on a consolidated basis, of (a) the capital stock, (b) additional paid-in capital, (c) retained earnings and (d) Subordinated Debt less (x) net organizational costs and net good will, (y) treasury stock and (z) 25% of Debt Issue Costs. Consolidated Tangible Net Worth. The sum, with respect to the Parent and its Subsidiaries, including the Borrower, on a consolidated basis, of (a) capital stock, (b) additional paid-in capital and (c) retained earnings, less the sum of (x) net organizational costs and net good will, (y) treasury stock and (z) 25% of Debt Issue Costs. Consumer Finance Lease. A Finance Lease between the Borrower, as lessor, and a lessee who is an individual and who takes under the Lease primarily for personal, family or household purposes. Conversion Term Loan. See Section 2.8(a). Conversion Term Loan Maturity Date. If the Revolving Credit Loans are converted into the Conversion Term Loan, as provided in Section 2.8(a), the date which is the third anniversary of the Borrowing Base Maturity Date. Dealer. A Person who (i) is domiciled in the United States of America, (ii) is not the subject of and has not taken any action described in subsections (f) and (g) of Section 8.1 and (iii) is engaged in the business of selling, servicing and installing security/alarm monitoring and related equipment in the United States of America. Dealer Agreement. An agreement between the Borrower and a Dealer, substantially in the form of Exhibit F-1 hereto, setting forth the rights and obligations of each with respect to a Security Monitoring Agreement or other agreement that has been assigned by such Dealer to the Borrower and which has not been modified, amended, restated or otherwise rewritten in any material respect more than two times. Debt Issue Costs. Those amounts characterized as "debt issue costs" in accordance with GAAP on the Initial Financial Statements or the most recent financial statements delivered pursuant to Section 5.1(a) or (b) hereof. Default. An Event of Default or event or condition that, but for the requirement that time elapse or notice be given, or both, would constitute an Event of Default. -5- 10 Derivative Exposure. The aggregate potential exposure of a Lender under all outstanding Eligible Interest Rate Contracts, as determined by such Lender in its reasonable discretion. Such Lender shall determine its potential exposure under each Eligible Interest Rate Contract and notify the Agent and the Borrower of such determination at the time the Borrower enters into such Eligible Interest Rate Contract and such determination shall not be changed so long as such Eligible Interest Rate Contract remains in effect. Discount Rate. The Base Rate, which rate shall change contemporaneously with any change in the Base Rate. Drawdown Date. The Business Day on which any Loan is made or is to be made. Eligible Equipment. Equipment: (a) To which the Borrower has good and marketable title; (b) Which is not subject to any Encumbrance other than that in favor of the Agent for the benefit of the Lenders and in which (other than with respect to security systems subject to a Security Monitoring Agreement) the Agent has a duly perfected first priority security interest under the UCC or other similar law if (x) required under the Security Documents, or (y) required by the Agent by written notice to the Borrower in the case of any Equipment with an Original Cost of more than $35,000; (c) Which is to be used primarily for personal, family or household purposes or in the ordinary course of business by the Borrower's lessees; (d) Which is subject to an Eligible Lease or Eligible Rental Contract; and (e) Which is insured by either the Borrower in accordance with current practice or the lessee thereof in accordance with industry standards. Eligible Installment Sales Contract. Any installment sales contract, purchase money security agreement or other similar chattel paper (including any and all schedules, supplements and amendments thereto and modifications thereof) entered into by the Borrower or its predecessor in interest as seller and a third party as buyer in connection with a sale of Equipment. Eligible Installment Finance Contract. An Installment Finance Contract: (a) which is in full force and effect; (b) the creditor under which is the Borrower; (c) to which the Borrower has good and marketable title, and which is assignable by the Borrower; -6- 11 (d) which is non-cancelable and provides that the third party obligor's obligations thereunder are absolute and unconditional, and not subject to defense, deduction, setoff or claim and as to which no defenses, setoffs, claims or counterclaims exist or have been asserted; (e) which is not subject to any Encumbrance other than that in favor of the Agent for the benefit of the Lenders and in which the Agent has a duly perfected first priority security interest under the UCC; (f) the third party obligor under which (i) is domiciled in the United States of America, (ii) is not the subject of and has not taken any action described in subsections (f) and (g) of Section 8.1 and (iii) is not otherwise been determined by the Agent to be unacceptable; (g) which is in a form approved by the Agent; (h) under which no payment is more than 90 days past due; (i) under which no default has occurred other than to the extent permissible under clause (h) immediately above; and (j) which has not been modified, amended, restated or otherwise rewritten more than two times. Eligible Interest Rate Contracts. Interest rate swap agreements, interest rate collar agreements, options on any of the foregoing and any other agreements or arrangements designed to provide protection against fluctuations in interest rates, in each case purchased by the Borrower from a Lender with respect to Loans and approved by the Agent. Eligible Lease. A Lease: (a) Which is in full force and effect; (b) The lessor under which is the Borrower; (c) Which is assignable by the lessor thereunder; (d) Which is non-cancelable and provides that the lessee's obligations thereunder are absolute and unconditional, and not subject to defense, deduction, set-off or claim and as to which no defenses, set-offs, claims or counterclaims exist or have been asserted; (e) Which is not subject to any Encumbrance other than that in favor of the Agent for the benefit of the Lenders and in which the Agent has a duly perfected first priority security interest under the UCC; (f) Which is a Finance Lease or Operating Lease; -7- 12 (g) The lessee under which (i) is domiciled in the United States of America, (ii) is not the subject of and has not taken any action described in subsections (f) and (g) of Section 8.1 and (iii) has not otherwise been determined by the Agent to be unacceptable; (h) Which is in a form approved by the Agent; (i) Under which no payment is more than 90 days past due; (j) Under which no default has occurred other than to the extent permissible under clause (i) immediately above; (k) Which covers Eligible Equipment; (l) Which, if an Operating Lease, has a present value of all Fixed Rentals thereunder as of the date such Operating Lease is to be included in the Borrowing Base of at least 70% of the Original Cost of the Equipment leased thereunder; or which is an Eligible Security Monitoring Agreement; and (m) which has not been modified, amended, restated or otherwise rewritten with respect to terms of payment or in any other material respect more than two times. Eligible Lease Receivables. As at the date of determination thereof, Receivables then due and unpaid with respect to an Eligible Lease, an Eligible Installment Sales Contract or an Eligible Installment Finance Contract. Eligible Rental Contract. A Rental Contract: (a) Which is in full force and effect; (b) The lessor under which is the Borrower; (c) Which is assignable by the lessor thereunder; (d) Which provides that the lessee's obligations thereunder are absolute and unconditional, and not subject to defense, deduction, set-off or claim and as to which no defenses, set-offs, claims or counterclaims exist or have been asserted; (e) Which is not subject to any Encumbrance other than that in favor of the Agent for the benefit of the Lenders and in which the Agent has a duly perfected first priority security interest under the UCC; (f) The lessee under which (i) is domiciled in the United States of America, (ii) is not the subject of and has not taken any action described in subsections (f) and (g) of Section 8.1 and (iii) has not otherwise been determined by the Agent to be unacceptable; (g) Which is in a form approved by the Agent; -8- 13 (h) Under which no payment is more than 90 days past due; (i) Under which no default has occurred other than to the extent permissible under clause (h) immediately above; (j) Which covers Eligible Equipment; and (k) Which has not been modified, amended, restated or otherwise rewritten with respect to terms of payment or in any other material respect more than two times. Eligible Security Monitoring Agreement. A Security 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 Encumbrance 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 Encumbrance 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. Encumbrances. See Section 7.3. Environmental Laws. Any and all applicable federal, state and local environmental, health or safety statutes, laws, regulations, rules and ordinances (whether now existing or hereafter enacted or promulgated), of all governmental agencies, bureaus or departments to the extent the foregoing may now or hereafter have jurisdiction over the Borrower or any of its Subsidiaries and all applicable judicial and administrative and regulatory decrees, judgments and orders, including common law rulings and determinations, relating to injury to, or the protection -9- 14 of, real or personal property or human health or the environment, including, without limitation, all requirements pertaining to reporting, licensing, permitting, investigation, remediation and removal of emissions, discharges, releases or threatened releases of Hazardous Materials into the environment or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of such Hazardous Materials. Equipment. Tangible equipment having an Original Cost not exceeding $75,000 and reasonably acceptable to the Agent, whether now or hereafter owned and leased to third party users by the Borrower; provided, however, that in no event shall Equipment include (i) stand-alone software, (ii) fixtures (other than electronic signs or security systems subject to a Security Monitoring Agreement), or (iii) any equipment (other than electronic signs or security systems subject to a Security Monitoring Agreement) custom designed for any Person. ERISA. The Employee Retirement Income Security Act of 1974 and the rules and regulations thereunder, collectively, as the same may from time to time be supplemented or amended and remain in effect. Eurodollar Loan. Any Loan bearing interest at a rate determined with reference to the Eurodollar Rate. Eurodollar Rate. With respect to any Eurodollar Loan for any Interest Period, the rate of interest determined by the Agent to be the prevailing rate per annum at which deposits in U.S. Dollars are offered to the Agent by first-class banks in the interbank Eurodollar market in which it regularly participates on or about 12:00 noon (Boston time) two Business Days before the first day of such Interest Period in an amount approximately equal to the principal amount of the Eurodollar Loan to which such Interest Period is to apply for a period of time approximately equal to such Interest Period. Eurodollar Reserve Percentage. For any Interest Period, the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves), expressed as a decimal, established by the Board of Governors of the Federal Reserve System and any other banking authority, domestic or foreign, to which any Lender is subject with respect to "Eurocurrency Liabilities" (as defined in regulations issued from time to time by such Board of Governors). The Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in any such reserve percentage. Event of Default. Any event described in Section 8.1. Existing Agreement. See Preamble. Federal Funds Effective Rate. For any day, a fluctuating interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent. -10- 15 Finance Lease. A Lease characterized as a "finance lease" in accordance with GAAP. Fixed Charge Ratio. The ratio of Consolidated Earnings for any fiscal quarter to Fixed Charges payable during such quarter. Fixed Charges. On a consolidated basis for the Parent and its Subsidiaries, including the Borrower, all payments of interest on all Indebtedness (including all payments on capitalized lease obligations in the nature of interest). Fixed Rentals. The periodic rental payments under a Lease, the amounts of which are fixed and do not vary from time to time based on usage, cash flow or any other factor. Fleet Facility. That certain revolving credit facility established pursuant to that certain Loan Agreement dated as of July 29, 1993, as amended and restated as of July 28, 1995 and as subsequently amended through the date hereof, by and among the Borrower, Fleet Bank, N.A. (successor by merger to NatWest Bank, N.A.) and the other banks named therein. GAAP. Generally accepted accounting principles, consistently applied. Gross Lease Installments. The aggregate Receivables due to the Borrower from all leases of equipment. Guarantees. As applied to the Parent and its Subsidiaries, all guarantees, endorsements or other contingent or surety obligations with respect to obligations of others whether or not reflected on the consolidated balance sheet of the Borrower and their Subsidiaries, including any obligation to furnish funds, directly or indirectly (whether by virtue of partnership arrangements, by agreement to keep-well or otherwise), through the purchase of goods, supplies or services, or by way of stock purchase, capital contribution, advance or loan, or to enter into a contract for any of the foregoing, for the purpose of payment of obligations of any other Person. Hazardous Material. Any substance (i) the presence of which requires or may hereafter require notification, investigation or remediation under any Environmental Law; (ii) which is or becomes defined as a "hazardous waste", "hazardous material" or "hazardous substance" or "pollutant" or "contaminant" under any present or future Environmental Law or amendments thereto including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) and any applicable local statutes and the regulations promulgated thereunder; (iii) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and which is or becomes regulated pursuant to any Environmental Law by any governmental authority, agency, department, commission, board, agency or instrumentality of the United States, any state of the United States, or any political subdivision thereof to the extent any of the foregoing has or had jurisdiction over the Borrower; or (iv) without limitation, which contains gasoline, diesel fuel or other petroleum products, asbestos or polychlorinated biphenyls ("PCB's"). Indebtedness. As applied to any Person, all (i) liabilities or obligations, direct and contingent, which in accordance with GAAP would be included in determining total liabilities as shown on the liability side of a balance sheet of such Person at the date as of which Indebtedness is to be determined, including, without limitation, lease obligations required to be shown as a -11- 16 liability on the balance sheet of the lessee in accordance with generally accepted accounting principles; (ii) liabilities or obligations of others for which such Person is directly or indirectly liable, by way of guaranty (whether by direct guaranty, suretyship, discount, endorsement, take-or-pay agreement, agreement to purchase or advance or keep in funds or other agreement having the effect of a guaranty) or otherwise; (iii) liabilities or obligations secured by liens on any assets of such person, whether or not such liabilities or obligations shall have been assumed by it; and (iv) non-cancelable liabilities under all Operating Leases. Initial Financial Statements. See Section 4.6. Installment Finance Contract. Any agreement (including any and all schedules, supplements and amendments thereto and modifications thereof) entered into by the Borrower or its predecessor in interest as a service provider and a third party as buyer in connection with the rendering of services to such third party. Interest Expense. For any period, the consolidated interest expense (including imputed interest on capitalized lease obligations) and amortized debt discount on Indebtedness of the Parent and its Subsidiaries for such period. Interest Period. With respect to (a) each Eurodollar Loan, the period commencing on the date of the making or continuation of or conversion to such Eurodollar Loan and ending one (1), two (2), three (3), six (6) or, subject to the consent of all Lenders, twelve (12) months thereafter, as the Borrower may elect in the applicable Notice of Borrowing or Conversion, and (b) each Money Market Loan, the period commencing on the date of the making such Money Market Loan and ending not more than seven (7) days thereafter, as the Borrower may elect (subject to availability) in the applicable Notice of Borrowing or Conversion; provided that: (i) any Interest Period (other than an Interest Period determined pursuant to clause (iii) below) that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day, except that with respect to any Interest Period for a Eurodollar Loan, if such Business Day falls in the next calendar month, such Interest Period shall end on the immediately preceding Business Day; (ii) any Interest Period for a Eurodollar Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (iii) below, end on the last Business Day of a calendar month; (iii) any Interest Period with respect to a Revolving Credit Loan that would otherwise end after the Borrowing Base Maturity Date shall end on the Borrowing Base Maturity Date; (iv) any Interest Period with respect to a Conversion Term Loan that would otherwise end after the Conversion Term Loan Maturity Date shall end on the Conversion Term Loan Maturity Date; and (v) notwithstanding clauses (iii) and (iv) above, no Interest Period for a Eurodollar Loan shall have a duration of less than one month, and if any Interest Period -12- 17 applicable to a Eurodollar Loan would be for a shorter period, such Interest Period shall not be available hereunder. Investment. As applied to the Borrower and its Subsidiaries, the purchase or acquisition of any share of capital stock, partnership interest, evidence of indebtedness or other equity security of any other Person (including any Subsidiary), any loan, advance or extension of credit (excluding Accounts Receivable arising in the ordinary course of business) to, or contribution to the capital of, any other Person (including any Subsidiary), any real estate held for sale or investment, any securities or commodities futures contracts held, any other investment in any other Person (including any other Borrower or any Subsidiary), and the making of any commitment or acquisition of any option to make an Investment. Lease. Any lease agreement, installment sales contract or other agreement (including any and all schedules, supplements and amendments thereon and modifications thereof) entered into by the Borrower as lessor or seller with respect to Equipment. Lender. BKB, the other financial institutions listed on Schedule 1 attached hereto and each other Person that may after the date hereof become a party to this Agreement as a "Lender" hereunder. Loan Documents. This Agreement, the Notes, the Security Documents and the Parent Guarantee, together with any agreements, instruments or documents executed and delivered pursuant to or in connection with any of the foregoing. Loans. The Loans made or to be made by the Lenders to the Borrower pursuant to Section II of this Agreement, including Revolving Credit Loans, Swing Line Advances and the Conversion Term Loan. Majority Lenders. As of any date, the holders of sixty percent (60%) of the Total Commitment. Money Market Loan. Subject to availability, any Swing Line Advance bearing interest at a rate determined with reference to the Money Market Rate. Money Market Rate. With respect to any Swing Line Advance, subject to availability, the interest rate per annum determined by BKB in its sole and absolute discretion plus 2.00%. Net Book Value. At a particular date, as to any Eligible Equipment, the Original Cost of such Eligible Equipment less aggregate depreciation thereon calculated from the date of acquisition thereof in accordance with the Borrower's standard accounting and depreciation practices using the straight line method over the estimated life of such Eligible Equipment, with salvage value determined by the Borrower in accordance with such practices. Non-Recourse Indebtedness. Indebtedness of the Borrower or the Parent, as the case may be, for which the remedy for nonpayment or non-performance of any obligation or any default in respect thereof is strictly and absolutely limited to any collateral securing such Indebtedness and in respect of which neither the Borrower nor the Parent is subject to any personal liability. -13- 18 Note Record. Any internal record, including a computer record, maintained by any Lender with respect to any Loan. Notes. The Revolving Credit Notes. Notice of Borrowing or Conversion. The notice, substantially in the form of Exhibit B hereto, to be given by the Borrower to the Agent to request a Loan or to convert an outstanding Loan of one Type into a Loan of another Type, in accordance with Section 2.4. Obligations. Any and all obligations of the Borrower to the Agent and the Lenders of every kind and description pursuant to or in connection with the Loan Documents (including, without limitation, in connection with Revolving Credit Loans and the Conversion Term Loan) and Eligible Interest Rate Contracts, direct or indirect, absolute or contingent, primary or secondary, due or to become due, now existing or hereafter arising, regardless of how they arise or by what agreement or instrument, if any, and including obligations to perform acts and refrain from taking action as well as obligations to pay money. Operating Lease. A Lease characterized as an "operating lease" in accordance with GAAP. Original Cost. The Borrower's purchase price for (i) any Equipment as invoiced by the supplier thereof or (ii) any Security Monitoring Agreement or for the security system and/or monitoring services subject thereto. Parent. MicroFinancial Incorporated (f/k/a Boyle Leasing Technologies, Inc.), a Massachusetts corporation, and the sole stockholder of the Borrower. Parent Guarantee. The Third Amended and Restated Guaranty made by the Parent in favor of the Agent for the benefit of the Lenders, dated the Closing Date and guaranteeing all Obligations. Participant. See Section 9.2. PBGC. The Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA. Pension Plan. Any Plan which is an "employee pension benefit plan" (as defined in ERISA). Permitted Acquisitions. See Section 7.8. Permitted Encumbrances. See Section 7.3. Person. Any individual, corporation, partnership, trust, unincorporated association, business or other legal entity, any government or governmental agency or political subdivision thereof, a court, and any other legal entity, whether acting in an individual, fiduciary or other capacity. -14- 19 Plan. Any "employee pension benefit plan" or "employee welfare benefit plan" (each as defined in ERISA) maintained by Borrower or Subsidiary. Prohibited Transaction. Any "prohibited transaction" as defined in ERISA and the Code. Qualified Investments. As applied to the Borrower and its Subsidiaries, investments in (i) notes, bonds or other obligations of the United States of America or any agency thereof that as to principal and interest constitute direct obligations of or are guaranteed by the United States of America; (ii) certificates of deposit, demand deposit accounts or other deposit instruments or accounts maintained in the ordinary course of business with banks or trust companies organized under the laws of the United States or any state thereof that have capital and surplus of at least $100,000,000, (iii) commercial paper that is rated not less than prime-one or A-1 or their equivalents by Moody's Investors Service, Inc. or Standard & Poor's Corporation, respectively, or their successors, (iv) any repurchase agreement secured by any one or more of the foregoing, and (v) advances to employees for business related expenses to be incurred in the ordinary course of business and consistent with past practices in an amount not to exceed $500,000 in the aggregate outstanding at any one time, provided that no advances to any single employee shall exceed $100,000 in the aggregate. Receivables. Any of the Borrower's accounts, accounts receivable, notes, bills, drafts, acceptances, instruments, documents, chattel paper and other debts, obligations and liabilities in whatever form owing to the Borrower from any Person for goods sold or leased or for services rendered by the Borrower or its predecessor in interest, or however otherwise established or created, all guaranties and security therefor, any right, title and interest of the Borrower in the goods or services which gave rise thereto, including rights to reclamation and stoppage in transit and any rights of an unpaid seller of goods or services; whether any of the foregoing be now existing or hereafter arising, now or hereafter received by or owing or belonging to the Borrower. Rental Contract. An Operating Lease which is month-to-month and which is cancelable. Responsible Officer. The chief financial officer of the Borrower and any other officer of the Borrower designated by the chief financial officer to sign Borrowing Base Reports and Notices of Borrowing or Conversion. Restricted Payment. Any dividend, distribution, loan, advance, guaranty, extension of credit or other payment, whether in cash or property to or for the benefit of any Person who holds an equity interest in the Borrower or any of its Subsidiaries, whether or not such interest is evidenced by a security, and any purchase, redemption, retirement or other acquisition for value of any capital stock of the Borrower or any of its Subsidiaries, whether now or hereafter outstanding, or of any options, warrants or similar rights to purchase such capital stock or any security convertible into or exchangeable for such capital stock. Revolving Credit Assignment of Leases. A third amended and restated assignment of leases, dated the Closing Date, by the Borrower in favor of the Agent for the benefit of the Lenders, as amended, supplemented and in effect from time to time, and any supplement thereto -15- 20 in the form of Exhibit A to the Revolving Credit Assignment of Leases as executed and delivered by the Borrower and the Agent from time to time. Revolving Credit Loan. See Section 2.1(a) hereof. Revolving Credit Notes. See Section 2.3(a). Security Agreement. A third amended and restated security agreement, dated the Closing Date, between the Borrower and the Agent, as amended, supplemented and in effect from time to time, and any supplement thereto in the form of Exhibit A to the Security Agreement as executed and delivered by the Borrower and the Agent from time to time. Security Documents. The Revolving Credit Assignment of Leases, the Security Agreement and any additional documents evidencing or perfecting the Agent's lien on the Collateral. Security Monitoring Agreement. An agreement between a Dealer and a customer, substantially in the form of Exhibit F-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. Subordinated Debt. Indebtedness of the Parent or any of its Subsidiaries, including the Borrower, which is expressly subordinated and made junior to the payment and performance in full of the Obligations and the Guaranteed Obligations (as defined in the Parent Guaranty) on terms and conditions satisfactory to the Agent and the Majority Lenders. Subsidiary. Any corporation, association, joint stock company, business trust or other similar organization of which 50% or more of the ordinary voting power for the election of a majority of the members of the board of directors or other governing body of such entity is held or controlled by the Parent, the Borrower or a Subsidiary of the Parent or Borrower; or any other such organization the management of which is directly or indirectly controlled by the Parent, the Borrower or a Subsidiary of the Parent or Borrower through the exercise of voting power or otherwise; or any joint venture, whether incorporated or not, in which the Parent or Borrower has a 50% ownership interest. Swing Line Advances. See Section 2.2. Total Commitment. The sum of the Commitments of the Lenders as in effect from time to time, which as of the Closing Date shall be $150,000,000, and which may be any lesser amount, including zero, resulting from a termination or reduction of such amount in accordance with Sections 2.1 and 8.2 hereof. Total Outstandings. At any time, the aggregate outstanding principal balance of the Loans at the time. -16- 21 Type. A Base Rate Loan, a Eurodollar Loan or a Money Market Loan. UCC. The Uniform Commercial Code as enacted in any state of the United States or in the District of Columbia or the United States Virgin Islands insofar as any such statute, as in effect from time to time, may be relevant to the creation, perfection, continuation and enforcement of Encumbrances on Collateral. Year 2000 Compliant. With respect to any Person, all software, embedded microchips and other processing capabilities and equipment utilized by and material to the business operations or financial condition of such Person that are able to interpret and manipulate data involving all calendar dates correctly and without causing any abnormal ending scenario, including, without limitation, in the case of dates or time periods occurring or ending after December 31, 1999, the ability to function at least as effectively as in the case of time periods occurring or ending prior to January 1, 2000. 1.2 Rules of Interpretation. (a) All terms of an accounting character used herein but not defined herein shall have the meanings assigned thereto by GAAP applied on a consistent basis. All calculations for the purposes of Section VI hereof shall be made in accordance with GAAP. (b) A reference to any document or agreement shall include such document or agreement as amended, modified or supplemented and in effect from time to time in accordance with its terms and the terms of this Agreement. (c) The singular includes the plural and the plural includes the singular. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. (d) A reference to any Person includes its permitted successors and permitted assigns. (e) The words "include", "includes" and "including" are not limiting. (f) The words "herein", "hereof", "hereunder" and words of like import shall refer to this Agreement as a whole and not to any particular section or subdivision of this Agreement. (g) All terms not specifically defined herein or by GAAP, which terms are defined in the Uniform Commercial Code as in effect in the Commonwealth of Massachusetts, have the meanings assigned to them in such Uniform Commercial Code. -17- 22 SECTION II DESCRIPTION OF CREDIT 2.1 Revolving Credit Loans. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in reliance upon the representations, warranties and covenants of the Borrower herein, each of the Lenders agrees, severally and not jointly, to make revolving credit loans (the "Revolving Credit Loans") to the Borrower at the Borrower's request from time to time from and after the Closing Date and prior to the Borrowing Base Maturity Date, provided that the Total Outstandings (after giving effect to all requested Revolving Credit Loans and Swing Line Advances) shall not at any time exceed the lesser of (i) the Borrowing Base and (ii) the Total Commitment, and provided, further that the sum of the aggregate principal amount of outstanding Revolving Credit Loans made by each Lender shall not at any time (after giving effect to all requested Revolving Credit Loans and Swing Line Advances) exceed such Lender's Commitment, and provided, further, that the sum of the aggregate principal amount of outstanding Revolving Credit Loans based on Eligible Leases having original terms of more than 60 months shall not at any time (after giving effect to all requested Revolving Credit Loans) exceed 10% of the aggregate principal amount of all outstanding Revolving Credit Loans. Subject to the terms and conditions of this Agreement, the Borrower may borrow, repay and prepay amounts, up to the limits imposed by this Section 2.1, from time to time between the Closing Date and the Borrowing Base Maturity Date upon request given to the Agent pursuant to Section 2.4. Each request for a Revolving Credit Loan hereunder shall constitute a representation and warranty by the Borrower that the conditions set forth in Section 3.1, in the case of the initial Revolving Credit Loans to be made on the Closing Date, and Section 3.2 in the case of all other Revolving Credit Loans, have been satisfied as of the date of such request. (b) No Eurodollar Loan shall be requested or made for less than $500,000 in principal amount and in integral multiples of $100,000 in excess of such minimum amount. No more than 8 Eurodollar Loans may be outstanding at any time. (c) Upon the terms and subject to the conditions of this Agreement, the Borrower may convert all or any part (in integral multiples of $500,000) of any outstanding Loan into a Loan of another Type on any Business Day (which, in the case of a conversion of an outstanding Eurodollar Loan shall be the last day of the Interest Period applicable to such Eurodollar Loan), provided, however that only Swing Line Advances may be made as or converted into Money Market Loans. The Borrower shall give the Agent prior notice of each such conversion (which notice shall be effective upon receipt) in accordance with Section 2.4. (d) All Commitments shall automatically terminate at 2:30 p.m. Boston time on the Borrowing Base Maturity Date. Subject to the provisions of Section 2.8 regarding mandatory payments, the Borrower shall have the right at any time and from time to time upon five (5) Business Days' prior written notice to the Agent to reduce by $5,000,000, and in integral multiples of $1,000,000 if in excess thereof, the Total Commitment or to terminate entirely the Lenders' Commitments to make Revolving Credit Loans hereunder, whereupon the Commitments of the Lenders shall be reduced pro rata in accordance with their respective -18- 23 Commitments by the aggregate amount specified in such notice or shall, as the case may be, be terminated entirely. No such reduction or termination of any Commitment may be reinstated. 2.2 Swing Line Advances. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in reliance upon the representations, warranties and covenants of the Borrower herein, BKB may, in its sole discretion, make short term advances ("Swing Line Advances") to the Borrower from time to time from and after the Closing Date and prior to the Borrowing Base Maturity Date, provided that the Total Outstandings (after giving effect to all requested Revolving Credit Loans and Swing Line Advances) shall not at any time exceed the lesser of (i) the Borrowing Base and (ii) the Total Commitment, provided, further that the aggregate outstanding principal amount of Swing Line Advances shall not exceed $5,000,000, and provided, further that the aggregate principal amount of Revolving Credit Loans and Swing Line Advances made by BKB shall not at any time exceed BKB's Commitment. Each Swing Line Advance shall be due and payable on such Business Day (not more than seven (7) days after the making thereof) as the Borrower shall specify in the Notice of Borrowing or Conversion requesting such Swing Line Advance. Each request for a Swing Line Advance hereunder shall constitute a representation and warranty by the Borrowers that the conditions set forth in Section 3.1, in the case of any Swing Line Advance to be made on the Closing Date, and Section 3.2 in the case of all other Swing Line Advances, have been satisfied as of the date of such request. (b) Each Swing Line Advance shall be either a Base Rate Loan or, subject to availability, a Money Market Loan; no Swing Line Advance shall be a Eurodollar Loan. No Swing Line Advance shall be requested or made for less than $100,000 in principal amount. (c) Subject to the limitations set forth above, Swing Line Advances of one Type may be converted into a Loan of another Type in accordance with Section 2.4. No Revolving Credit Loan may be converted into a Swing Line Advance. 2.3 The Notes. The Revolving Credit Loans shall be evidenced by separate promissory notes for each Lender, each such note to be in substantially the form of Exhibit A hereto, dated as of the Closing Date and completed with appropriate insertions (each such note being referred to herein as a "Revolving Credit Note" and collectively as the "Revolving Credit Notes"). One Revolving Credit Note shall be payable to the order of each Lender in a principal amount equal to such Lender's highest possible Commitment. The Borrower irrevocably authorizes each of the Lenders to make or cause to be made, at or about the time of the Drawdown Date of any Revolving Credit Loan or at the time of receipt of any payment of principal on the Revolving Credit Notes, an appropriate notation on its Note Record reflecting the making of such Revolving Credit Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Revolving Credit Loans set forth on the Note Records shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lenders, but the failure to record, or any error in so recording, any such amount on any Lender's Note Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under any Revolving Credit Note to make payments of principal of or interest on any Revolving Credit Note when due. -19- 24 2.4 Notice and Manner of Borrowing or Conversion of Loans. (a) Whenever the Borrower desires to obtain or continue a Loan hereunder or convert an outstanding Loan of one Type into a Loan of another Type, the Borrower shall give the Agent a written Notice of Borrowing or Conversion (or a telephonic notice promptly confirmed by a written Notice of Borrowing or Conversion), which Notice shall be irrevocable and which must be received no later than 2:00 p.m. Boston time (i) one Business Day before the day on which the requested Loan is to be made or continued as or converted to a Base Rate Loan, (ii) three Business Days before the day on which the requested Loan is to be made or continued as or converted to a Eurodollar Loan, and (iii) the same Business Day on which a requested Swing Line Advance is to be made. Such Notice shall specify (A) the effective date and amount of each such Loan or portion thereof requested to be made, continued or converted, subject to the limitations set forth in this Agreement, (B) the interest rate option requested to be applicable thereto, (C) the duration of the applicable Interest Period, if any (subject to the provisions of the definition of the term "Interest Period") and (D) in the case of a requested Swing Line Advance, the maturity date thereof (which maturity date shall be a Business Day no later than seven (7) days after the date such Swing Line Advance is requested to be made). If such Notice fails to specify the interest rate option to be applicable to the requested Loan, then the Borrower shall be deemed to have requested a Base Rate Loan. If such written confirmation of any telephonic notification differs in any material respect from the action taken by the Agent, the records of the Agent shall control absent manifest error, and shall be accompanied by a Borrowing Base Report. If the Agent receives a Notice of Borrowing or Conversion after the time specified in subsection (a) above, such Notice shall not be effective. (b) Subject to the provisions of the definition of the term "Interest Period" herein, the duration of each Interest Period for a Eurodollar Loan shall be as specified in the applicable Notice of Borrowing or Conversion. If no Interest Period is specified in a Notice of Borrowing or Conversion with respect to a requested Eurodollar Loan or Money Market Loan, then the Borrower shall be deemed to have selected an Interest Period of one month's duration for a requested Eurodollar Loan or one day's duration for a Money Market Loan. If the Agent does not receive an effective Notice of Borrowing or Conversion with respect to an outstanding Eurodollar Loan, or if, when such Notice must be given prior to the end of the Interest Period applicable to such outstanding Loan, the Borrower shall have failed to satisfy any of the conditions hereof, the Borrower shall be deemed to have elected to convert such outstanding Eurodollar Loan in whole into a Base Rate Loan on the last day of the then current Interest Period with respect thereto. (c) Each Notice of Borrowing or Conversion requesting borrowing of a Revolving Credit Loan shall be accompanied by a Borrowing Base Report containing a computation by the Borrower in form satisfactory to the Agent (hereinafter referred to as a "Borrowing Computation") certified by a Responsible Officer, setting forth (i) a complete description of the Equipment to be acquired or financed with respect to which such Revolving Credit Loan has been requested, (ii) the Original Cost and Adjusted Cost of such Equipment, (iii) a complete description of the Leases covering such Equipment, (iv) the name of the lessees under such Leases, (v) a statement that such Equipment and Leases, subject to the acceptance by the Agent of such Equipment or the applicable lessee, satisfy the conditions to qualify as Eligible Equipment Leases or Eligible Rental Contracts, respectively, and (vi) such other information -20- 25 with respect to such Equipment and Leases as is requested by the Agent in the Borrowing Computation or otherwise. Within two Business Days after receipt of such information in the form indicated above, the Agent shall notify the Borrower if any of such Equipment or lessees are unacceptable to the Agent. In the event the Agent does not so notify the Borrower, the Agent shall be deemed to have accepted such Equipment and lessees. The acceptance or deemed acceptance of any lessee under any Lease at any one time by the Agent shall not operate as an acceptance of such lessee at any future time. 2.5 Funding of Loans. (a) Pro Rata Funding. All Loans (other than Swingline Advances) shall be made by the Lenders pro rata in accordance with their respective Commitments, provided, however that the failure of any Lender to make any Loan shall not relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender). (b) Notice. The Agent shall promptly notify the Lenders of each Notice of Borrowing or Conversion received pursuant to Section 2.4 (other than a Notice requesting a Swing Line Advance) and of each Lender's portion of the requested Loan. Not later than 1:00 p.m. (Boston time) on the proposed Drawdown Date of such Loan, each Lender will make available to the Agent, at its head office, in immediately available funds, the amount of such Lender's pro rata share of the amount of such requested Loan. Upon receipt by the Agent of such amount, and upon receipt of the documents required by Section 3 and the satisfaction of the other conditions set forth therein (to the extent applicable) the Agent may first pay to BKB on behalf of the Borrower, out of such funds, an amount equal to the aggregate principal balance of any outstanding Swing Line Advances, and then shall make available to the Borrower the balance of such Loan. The failure or refusal of any Lender to make available to the Agent at the aforesaid time and place on any Drawdown Date the amount of its pro rata share of any requested Loans shall not relieve any other Lender from its several obligation hereunder to make available to the Agent the amount of such other Lender's pro rata share of any requested Loans. (c) Advance by Agent. The Agent may, unless notified to the contrary by any Lender prior to a Drawdown Date, assume that each Lender has made available to the Agent on such Drawdown Date the amount of such Lender's pro rata share of the Loans to be made on such Drawdown Date, and the Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Borrower a corresponding amount. If any Lender makes available to the Agent such amount on a date after such Drawdown Date, such Lender shall pay to the Agent on demand an amount equal to the product of (i) the average, computed for the period referred to in clause (iii) below, of the weighted average interest rate paid by the Agent for federal funds acquired by the Agent during each day included in such period, times (ii) the amount of such Lender's pro rata share of any such Loans times (iii) a fraction, the numerator of which is the number of days that elapse from and including such Drawdown Date to the date on which the amount of such Lender's pro rata share of such Loans shall become immediately available to the Agent, and the denominator of which is 365. A statement of the Agent submitted to such Lender with respect to any amounts owing under this paragraph shall be prima facie evidence of the amount due and owing to the Agent by such Lender. If the amount of such -21- 26 Lender's pro rata share of such Loans is not made available to the Agent by such Lender within three (3) Business Days following such Drawdown Date, the Agent shall be entitled to recover such amount from the Borrower on demand, with interest thereon at the rate per annum applicable to the Revolving Credit Loans made on such Drawdown Date. (d) Swing Line Advances. Upon the satisfaction of the conditions set forth in Section 3, to the extent applicable, BKB will make available to the Borrower the amount of any Swing Line Advance that BKB determines, in its sole discretion, to make. If any Swing Line Advance is not repaid when due, upon written demand by BKB given to the Agent and each other Lender, each other Lender shall purchase from BKB, and BKB shall sell and assign to each such Lender, such other Lender's pro rata share (based on its Commitment) of such unpaid Swing Line Advance as of the date of such advance, by making available to the Agent, at its head office, in immediately available funds, an amount equal to the pro rata portion of outstanding principal amount of such Swing Line Advance to be purchased by such other Lender. The Borrower hereby agrees to each such sale and assignment. Each such Lender agrees to make such purchase of its share of the unpaid Swing Line Advance on (i) the Business Day on which such demand is made by BKB, provided that notice of such demand is given not later than 12:00 noon (Boston time) on such Business Day, or (ii) the first Business Day next succeeding such demand if notice of such demand is given after such time. Upon any such assignment, BKB represents and warrants to each such other Lender that BKB is the legal and beneficial owner of the interest in such Swing Line Advance being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance. If any such other Lender makes available to the Agent such amount on a date after the date such interest is to be assigned to it, such Lender shall pay to BKB on demand an amount equal to the product of (i) the average, computed for the period referred to in clause (iii) below, of the weighted average interest rate paid by BKB for federal funds acquired by BKB during each day included in such period, times (ii) the amount to have been paid by such Lender on such purchase date, times (iii) a fraction, the numerator of which is the number of days that elapse from and including the date scheduled for such purchase to the date on which the amount of such Lender's Commitment Percentage of such unpaid Swing Line Advance shall become immediately available to the Agent, and the denominator of which is 365. A statement of the Agent submitted to such Lender with respect to any amounts owing under this paragraph shall be prima facie evidence of the amount due and owing to BKB by such Lender, absent manifest error. When such Lender shall pay such amount to the Agent for the account of BKB, such amount so paid in respect of principal shall constitute a Revolving Credit Loan which is a Base Rate Loan made by such Lender on such date for purposes of this Agreement. 2.6 Interest Rates and Payments of Interest. (a) Base Rate Loans. Each Base Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Base Rate, which rate shall change contemporaneously with any change in the Base Rate. Such interest shall be payable monthly in arrears on the first Business Day of each month, commencing January 3, 2000, and when such Loan is due (whether at maturity, by reason of acceleration or otherwise). (b) Eurodollar Loans. Each Eurodollar Loan shall bear interest on the outstanding principal amount thereof, for each Interest Period applicable thereto, at a rate per -22- 27 annum equal to the Eurodollar Rate plus 1.75%. Such interest shall be payable for such Interest Period on the last day thereof and, if such Interest Period is longer than three months, at intervals of three months after the first day thereof. (c) Money Market Loans. Each Money Market Loan shall bear interest on the outstanding principal amount thereof at the Money Market Rate. Interest on each Money Market Loan shall be payable at the end of the Interest Period applicable thereto. (d) Conversion Term Loan. Any Conversion Term Loan shall bear interest on the outstanding principal amount thereof at the following rates: (x) to the extent such Loan is a Base Rate Loan, at a rate per annum equal to the Base Rate, plus .50% and (y) to the extent such Loan is a Eurodollar Loan, at a rate per annum equal to the Eurodollar Rate, plus 2.50%. (e) Default Interest. If a material Event of Default shall occur, then at the option of the Agent the unpaid balance of Loans shall bear interest, to the extent permitted by law, compounded daily at an interest rate equal to 2% per annum above the interest rate applicable to each such Loan in effect on the day such Event of Default occurs, until such Event of Default is cured or waived. (f) Additional Interest. So long as any Lender shall be required under regulations of the Board of Governors of the Federal Reserve System (or any other banking authority, domestic or foreign, to which such Lender is subject) to maintain reserves with respect to liabilities or assets consisting of or including "Eurocurrency Liabilities" (as defined in regulations issued from time to time by such Board of Governors), the Borrower shall pay to the Agent for the account of each such Lender additional interest on the unpaid principal amount of each Eurodollar Loan made by such Lender from the date of such Loan until such principal amount is paid in full, at an interest rate per annum equal at all times to the remainder (rounded, if necessary, to the nearest 1/8 of 1%) obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such Eurodollar Loan from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Reserve Percentage of such Lender for such Interest Period. Such additional interest shall be determined by such Lender and notified to the Borrower through the Agent, and shall be payable on each date on which interest is payable on such Eurodollar Loan. 2.7 Fees. (a) The Borrower shall pay to the Agent for the benefit of the Lenders a commitment fee (the "Commitment Fee"), computed on a daily basis and payable quarterly in arrears on the first Business Day of each calendar quarter, equal to 0.275% per annum of the excess of (i) the Total Commitment at the time over (ii) the Total Outstandings from time to time, provided, however that for purposes of the foregoing, Total Outstandings shall not include outstanding Swing Line Advances. (b) Without limiting any of the Lenders' other rights hereunder or by law, if any Loan or any portion thereof or any interest thereon is not paid within fifteen (15) days after its due date, the Borrower shall pay to the Agent for the benefit of the Lenders on demand a late payment charge equal to 5% of the amount of the total payment due. -23- 28 (c) The Borrower shall pay to the Lenders such other standard charges imposed by the Lenders on the Borrower as are customarily imposed by the Lenders in the ordinary course of business on borrowers generally (e.g., charges for returned checks, cashier's checks, wire transfers, letters of credit, foreign exchange transactions, and other operational services). (d) The Borrower shall pay to the Agent, solely for the account of the Agent, such other fees as the Borrower and the Agent shall agree. (e) The Borrower authorizes the Agent and the Lenders to charge to their Note Records or to any deposit account which the Borrower may maintain with any of them the interest, fees, charges, taxes and expenses provided for in this Agreement, the other Loan Documents or any other document executed or delivered in connection herewith or therewith. 2.8 Payments and Prepayments of the Loans; Conversion Term Loan. (a) On the Borrowing Base Maturity Date, if the Lenders shall not have offered to extend such date and if no Default shall have occurred and be continuing, then at the option of the Borrower the unpaid principal balance of the Revolving Credit Loans shall be converted into a term loan (the "Conversion Term Loan") which shall be payable in thirty six (36) equal consecutive monthly installments on the first Business Day of each calendar month, commencing with the first day of the month following the Borrowing Base Maturity Date, with the unpaid principal balance of the Conversion Term Loan, together with all unpaid interest thereon and all fees and other amounts due with respect thereto, due and payable in full on the Conversion Term Loan Maturity Date. If the Lenders shall have offered to extend the Borrowing Base Maturity Date but the Borrower shall not have agreed to such extension or if any Default shall have occurred and be continuing on such date, then notwithstanding the existence of any Eurodollar or Money Market Loan and notwithstanding any other provision of the Loan Documents, the Borrower shall pay in full on such date the unpaid principal balance of the Revolving Credit Loans, together with all unpaid interest thereon and all fees and other amounts due with respect thereto. (b) Eurodollar Loans may be paid, without premium or penalty, on the last day of any Interest Period applicable thereto, upon three Business Days' notice. Money Market Loans may be paid, without premium or penalty, on the last day of any Interest Period applicable thereto, and Base Rate Loans may be prepaid at any time, without premium or penalty, upon one Business Day's notice. Upon the written request of the Borrower in conjunction with any such prepayment of a Revolving Credit Loan, the Agent shall, simultaneously with receipt of such prepayment, release the Eligible Equipment, Eligible Leases and Eligible Rental Contracts to which such prepaid Loan relates from the Agent's Encumbrance on such items of Collateral granted to the Agent pursuant to the Security Documents, provided that (i) no Default shall have occurred and be continuing, (ii) the Agent shall have received from the Borrower a Borrowing Base Report demonstrating that upon such release the Borrower shall be in compliance with the terms of Section 2.1 hereof, and (iii) the Agent shall have received a certification from a Responsible Officer certifying that no Default has occurred and is continuing, that the Borrower has complied with the provisions of Section 7.4 hereof and Section 2(b)(ii) of the Security -24- 29 Agreement and that upon such release and after giving effect thereto the Borrower shall be in compliance with Section 2.1 hereof and no Default shall have occurred and be continuing. (c) If at any time the Total Outstandings exceed the lesser of (i) the Borrowing Base and (ii) the Total Commitment, then the Borrower shall immediately pay the amount of any such excess to the Agent for application to the Loans. 2.9 Method of Payment and Allocation of Payments. (a) All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without set-off or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein unless the Borrower is compelled by law to make such deduction or withholding. If any such obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to each Lender such additional amount in Dollars as shall be necessary to enable such Lender to receive the same net amount which such Lender would have received on such due date had no such obligation been imposed upon the Borrower. The Borrower will deliver promptly to each Lender certificates or other valid vouchers or other evidence of payment reasonably satisfactory to the Agent for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. The Lenders may, and the Borrower hereby authorizes the Lenders to, debit the amount of any payment not made by such time to the demand deposit accounts of the Borrower with the Lenders or to their Note Records. (b) All payments of principal of and interest in respect of Revolving Credit Loans, the Conversion Term Loan and the Commitment Fee shall be made to the Agent, for the benefit of the Lenders, pro rata in accordance with their respective Commitments, and payments of any other amounts due hereunder shall be made to the Agent to be allocated among the Agent and the Lenders as their respective interests appear. All such payments shall be made at the Agent's head office or at such other location that the Agent may from time to time designate, in each case in immediately available funds. (c) If the Commitments shall have been terminated or the Obligations shall have been declared immediately due and payable pursuant to Section 8.2, all funds received from or on behalf of the Borrower (including as proceeds of Collateral) by any Lender in respect of Obligations (except funds received by any Lender as a result of a purchase of a participant interest pursuant to Section 2.9(d) below) shall be remitted to the Agent, and all such funds, together with all other funds received by the Agent from or on behalf of the Borrower (including proceeds of Collateral) in respect of Obligations, shall be applied by the Agent in the following manner and order: (i) first, to reimburse the Agent and the Lenders, in that order, for any amounts payable pursuant to Sections 11.2 and 11.3 hereof; (ii) second, to the payment of the Commitment Fee and any other fees payable hereunder; (iii) third, to the payment of interest due on the Revolving Credit Loans and the Conversion Term Loan; (iv) fourth, to the payment of the outstanding principal balance of any Swing Line Advances; (v) fifth, to the payment of the outstanding principal balance of the Revolving Credit Loans and the Conversion Term Loan; (vi) -25- 30 sixth, to the payment of any other Obligations payable by the Borrower; and (vii) any remaining funds shall be paid to whoever shall be entitled thereto or as a court of competent jurisdiction shall direct. (d) Each of the Lenders and the Agent hereby agrees that if it should receive any amount (whether by voluntary payment, by realization upon security, by the exercise of the right of set-off or banker's lien, by counterclaim or cross action, by the enforcement of any right under the Loan Documents, or otherwise) in respect of principal of, or interest on, the Revolving Credit Loans or the Conversion Term Loan or any fees which are to be shared pro rata among the Lenders, which, as compared to the amounts theretofore received by the other Lenders with respect to such principal, interest or fees, is in excess of such Lender's pro rata share of such principal, interest or fees, such Lender shall share such excess, less the costs and expenses (including, reasonable attorneys' fees and disbursements) incurred by such Lender in connection with such realization, exercise, claim or action, pro rata with all other Lenders in proportion to their respective Commitments, and such sharing shall be deemed a purchase (without recourse) by such sharing party of participant interests in the Loans or such fees, as the case may be, owed to the recipients of such shared payments to the extent of such shared payments; provided, however, that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. 2.10 Indemnity. If the Borrower for any reason (including, without limitation, pursuant to Sections 2.8(b), 2.12 and 8.2 hereof) makes any payment of principal with respect to any Eurodollar Loan or Money Market Loan on any day other than the last day of an Interest Period applicable to such Loan, or fails to borrow or continue or convert to a Eurodollar Loan or Money Market Loan, as the case may be, after giving a Notice of Borrowing or Conversion thereof pursuant to Section 2.4, or fails to prepay a Eurodollar Loan after having given notice thereof, the Borrower shall pay to the Agent for the benefit of the Lenders any amount required to compensate the Lenders for any additional losses, costs or expenses which they may reasonably incur as a result of such payment or failure, including, without limitation, any loss (including loss of anticipated profits), costs or expense incurred by reason of the liquidation or re-employment of deposits or other funds required by the Lenders to fund or maintain such Loan. The Borrower shall pay such amount upon presentation by the Agent of a statement setting forth the amount and the Agent's (or the affected Lenders') calculation thereof pursuant hereto, which statement shall be deemed true and correct absent manifest error. 2.11 Computation of Interest and Fees. Interest and all fees payable hereunder shall be computed daily on the basis of a year of 360 days and paid for the actual number of days for which due. If the due date for any payment of principal is extended by operation of law, interest shall be payable for such extended time. If any payment required by this Agreement becomes due on a day that is not a Business Day such payment may be made on the next succeeding Business Day (subject to clause (i) of the definition of the term "Interest Rate Period"), and such extension shall be included in computing interest in connection with such payment. 2.12 Changed Circumstances; Illegality. (a) Notwithstanding any other provision of this Agreement, in the event that: -26- 31 (i) on any date on which the Eurodollar Rate would otherwise be set the Agent shall have determined in good faith (which determination shall be final and conclusive) that adequate and fair means do not exist for ascertaining the Eurodollar Rate, or (ii) at any time the Agent or any Lender shall have determined in good faith (which determination shall be final and conclusive and, if made by any Lender, shall have been communicated to the Agent in writing) that: (A) the making or continuation of or conversion of any Loan to a Eurodollar Loan has been made impracticable or unlawful by (1) the occurrence of a contingency that materially and adversely affects the interbank Eurodollar market or (2) compliance by the Agent or such Lender in good faith with any applicable law or governmental regulation, guideline or order or interpretation or change thereof by any governmental authority charged with the interpretation or administration thereof or with any request or directive of any such governmental authority (whether or not having the force of law); or (B) the Eurodollar Rate shall no longer represent the effective cost to the Agent or such Lender for U.S. dollar deposits in the interbank market for deposits in which it regularly participates; then, and in any such event, the Agent shall forthwith so notify the Borrower thereof. Until the Agent notifies the Borrower that the circumstances giving rise to such notice no longer apply, the obligation of the Lenders to allow selection by the Borrower of the Type of Loan affected by the contingencies described in this Section (herein called "Affected Loans") shall be suspended. If, at the time the Agent so notifies the Borrower, the Borrower has previously given the Agent a Notice of Borrowing or Conversion with respect to one or more Affected Loans but such Loans have not yet gone into effect, such notification shall be deemed to be a request for Base Rate Loans. (b) In the event of a determination of illegality pursuant to subsection (a)(ii)(A) above, the Borrower shall, with respect to the outstanding Affected Loans, prepay the same, together with interest thereon and any amounts required to be paid pursuant to Section 2.10, on such date as shall be specified in such notice (which shall not be earlier than the date such notice is given) and may, subject to the conditions of this Agreement, borrow a Loan of another Type in accordance with Section 2.1 hereof by giving a Notice of Borrowing or Conversion pursuant to Section 2.4 hereof. 2.13 Increased Costs. In case any change in law, regulation, treaty or official directive or the interpretation or application thereof by any court or by any governmental authority charged with the administration thereof or the compliance with any guideline or request of any central bank or other governmental authority (whether or not having the force of law): (i) subjects any Lender to any tax with respect to payments of principal or interest or any other amounts payable hereunder by the Borrower or otherwise with respect to the transactions contemplated hereby (except for taxes on the overall net income of such Lender imposed by the United States of America or any political subdivision thereof), or -27- 32 (ii) imposes, modifies or deems applicable any deposit insurance, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of, or loans by, any Lender (other than such requirements as are already included in the determination of the Eurodollar Rate), or (iii) imposes upon any Lender any other condition with respect to its obligations or performance under this Agreement, and the result of any of the foregoing is to increase the cost to the Lender, reduce the income receivable by such Lender or impose any expense upon such Lender with respect to any Loans or its obligations under this Agreement, such Lender shall notify the Borrower and the Agent thereof. The Borrower agrees to pay to such Lender the amount of such increase in cost, reduction in income or additional expense as and when such cost, reduction or expense is incurred or determined, upon presentation by such Lender of a statement in the amount and setting forth in reasonable detail such Lender's calculation thereof and the assumptions upon which such calculation was based, which statement shall be deemed true and correct absent manifest error. 2.14 Capital Requirements. If after the date hereof any Lender reasonably determines that (i) the adoption of or change in any law, rule, regulation or guideline regarding capital requirements for banks or bank holding companies, or any change in the interpretation or application thereof by any governmental authority charged with the administration thereof, or (ii) compliance by such Lender or its parent bank holding company with any guideline, request or directive of any such entity regarding capital adequacy (whether or not having the force of law), has the effect of reducing the return on such Lender's or such holding company's capital as a consequence of such Lender's commitment to make Loans hereunder to a level below that which such Lender or such holding company could have achieved but for such adoption, change or compliance (taking into consideration such Lender's or such holding company's then existing policies with respect to capital adequacy and assuming the full utilization of such entity's capital) by any amount deemed by such Lender to be material, then such Lender shall notify the Borrower thereof. The Borrower agrees to pay to such Lender the amount of such reduction of capital as and when such reduction is determined, payable within 30 days after presentation by such Lender of a statement in the amount and setting forth in reasonable detail such Lender's calculation thereof and the assumptions upon which such calculation was based (which statement shall be deemed true and correct absent manifest error) unless within such 30 day period the Borrower shall have prepaid in full all obligations to such Lender, in which event no amount shall be payable to such Lender under this Section. In determining such amount, such Lender may use any reasonable averaging and attribution methods. SECTION III CONDITIONS OF LOANS 3.1 Conditions Precedent to Initial Loans. The obligation of the Lenders to make any additional Revolving Credit Loans is subject to the satisfaction, on or prior to the Closing Date, of the following conditions: -28- 33 (a) The Agent shall have received the following agreements, documents, certificates and opinions in form and substance satisfactory to the Agent and duly executed and delivered by the parties thereto: (i) This Agreement; (ii) The Revolving Credit Notes; (iii) The Security Documents; (iv) The Parent Guarantee; (v) Such agreements and documents as the Agent shall require in connection with the termination of the Fleet Facility in accordance with Section 3.1(b); (vi) UCC-1 Financing Statements, UCC-3 Financing Statement Amendments and UCC-3 Financing Statement Assignments; (vii) Borrowing Base Report as of a date within five (5) Business Days of the Closing Date; (viii) Notice of Borrowing or Conversion as of the Closing Date; (ix) A certificate of the Clerk or an Assistant Clerk of the Borrower with respect to resolutions of the Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers, and certifying that neither the Articles of Organization nor the Bylaws of the Borrower has been amended since the date the same were delivered to BKB pursuant to the Existing Credit Agreement; (x) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state; (xi) An opinion addressed to the Lenders from Edwards & Angell, counsel to the Borrower; and (xii) Such other documents, instruments, opinions and certificates and completion of such other matters, as the Agent may reasonably deem necessary or appropriate. (b) The Indebtedness outstanding under the Fleet Facility shall have been paid in full with proceeds of Revolving Credit Loans, all rights to the collateral for the Fleet Facility shall have been assigned to the Agent and all agreements and instruments evidencing the Fleet Facility (including, without limitation, the Intercreditor Agreement referred to therein) shall be terminated. -29- 34 3.2 Conditions Precedent to all Loans. The obligation of the Lenders to make any Loan, including the initial Loans, or continue or convert Loans of one Type to Loans of another Type is further subject to the following conditions: (a) timely receipt by the Agent of the Notice of Borrowing or Conversion and a Borrowing Base Report with respect to any Loan; (b) the representations and warranties contained in Section IV shall be true and accurate in all material respects on and as of the date of such Notice of Borrowing or Conversion and on the effective date of the making, continuation or conversion of each Loan as though made at and as of each such date (except to the extent that such representations and warranties expressly relate to an earlier date); (c) no Default shall have occurred and be continuing, or would result from the making of such requested Loan; (d) the resolutions referred to in Section 3.1 shall remain in full force and effect; and (e) no change shall have occurred in any law or regulation or interpretation thereof that, in the opinion of counsel for any Lender, would make it illegal or against the policy of any governmental agency or authority for such Lender to make Loans hereunder. The making, continuation or conversion of each Loan shall be deemed to be a representation and warranty by the Borrower on the date of the making, continuation or conversion of such Loan as to the accuracy of the facts referred to in subsection (b) of this Section 3.2 and of the satisfaction of all of the conditions set forth in this Section 3.2. SECTION IV REPRESENTATIONS AND WARRANTIES In order to induce the Agent and the Lenders to enter into this Agreement and to make Loans hereunder, the Borrower represents and warrants to the Agent and the Lenders that except as set forth on Exhibit C attached hereto: 4.1 Organization; Qualification; Business. (a) Each of the Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, (ii) has all requisite corporate power to own its property and conduct its business as now conducted and as presently contemplated and (iii) is duly qualified and in good standing as a foreign corporation and is duly authorized to do business in each jurisdiction (all of which are listed on Exhibit C attached hereto) where the nature of its properties or business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, financial condition, assets or properties of the Borrower or of the Borrower and its Subsidiaries taken as a whole. -30- 35 (b) Since the date of the Initial Financial Statements, the Borrower has continued to engage in substantially the same business as that in which it was then engaged and is engaged in no unrelated business. 4.2 Corporate Authority. The execution, delivery and performance of the Loan Documents and the transactions contemplated hereby are within the corporate power and authority of the Borrower and have been authorized by all necessary corporate proceedings, and do not and will not (a) contravene any provision of the charter documents or by-laws of the Borrower or any law, rule or regulation applicable to the Borrower, (b) contravene any provision of, or constitute an event of default or event that, but for the requirement that time elapse or notice be given, or both, would constitute an event of default under, any other agreement, instrument, order or undertaking binding on the Borrower, or (c) result in or require the imposition of any Encumbrance on any of the properties, assets or rights of the Borrower, except in favor of the Agent and the Lenders. 4.3 Valid Obligations. The Loan Documents and all of their respective terms and provisions are the legal, valid and binding obligations of the Borrower, enforceable in accordance with their respective terms except as limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors' rights generally, and except as the remedy of specific performance or of injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought. The Security Documents have effectively created in favor of the Agent and the Lenders legal, valid and enforceable security interests in the Collateral and such security interests are fully perfected first priority security interests. 4.4 Consents or Approvals. The execution, delivery and performance of the Loan Documents and the transactions contemplated herein do not require any approval or consent of, or filing or registration with, any governmental or other agency or authority, or any other Person, except under or as contemplated by the Security Documents. 4.5 Title to Properties; Absence of Encumbrances. Each of the Borrower and its Subsidiaries has good and marketable title to all of the properties, assets and rights of every name and nature now purported to be owned by it, including, without limitation, such properties, assets and rights as are reflected in the Initial Financial Statements (except such properties, assets or rights as have been disposed of in the ordinary course of business since the date thereof), free from all Encumbrances except Permitted Encumbrances, and, except as so disclosed, free from all defects of title that might materially adversely affect such properties, assets or rights, taken as a whole. All real property owned or leased by the Borrower is described in Exhibit C hereto. 4.6 Financial Statements. The Borrower has furnished to the Lenders the Parent's consolidated and consolidating balance sheets as of December 31, 1998 and its consolidated and consolidating statements of income, changes in stockholders' equity and cash flow for the fiscal year then ended and related footnotes, audited and certified by the Borrower's Accountants. The Borrower has also furnished to the Lenders the Parent's unaudited consolidated balance sheet as of September 30, 1999 and consolidated statement of income for the nine months ended September 30, 1999 (the "Initial Financial Statements") in each case certified by the principal financial officer of the Borrower, subject to normal, recurring year-end adjustments that shall not -31- 36 in the aggregate be material in amount. All such financial statements were prepared in accordance with GAAP applied on a consistent basis throughout the periods specified and present fairly the financial position of the Parent and its Subsidiaries as of such dates and the results of the operations of the Parent and its Subsidiaries for such periods. At the date hereof, the Borrower has no Indebtedness or other material liabilities, debts or obligations, whether accrued, absolute, contingent or otherwise, and whether due or to become due, including, but not limited to, liabilities or obligations on account of taxes or other governmental charges, that are not set forth on the Initial Financial Statements or on Exhibit C hereto. 4.7 Changes. Since the date of the Initial Financial Statements, there have been no changes in the assets, liabilities, financial condition, business or prospects of the Parent or any of its Subsidiaries other than changes in the ordinary course of business, the effect of which has not, in the aggregate, been materially adverse to the Parent and its Subsidiaries taken as a whole. 4.8 Solvency. The Borrower has and, after giving effect to the Loans, will have, assets (both tangible and intangible) having a fair saleable value in excess of the amount required to pay the probable liability on its then-existing debts (whether matured or unmatured, liquidated or unliquidated, fixed or contingent); the Borrower has and will have access to adequate capital for the conduct of its business and the discharge of its debts incurred in connection therewith as such debts mature; the Borrower was not insolvent immediately prior to the making of the Loans and immediately after giving effect thereto, the Borrower will not be insolvent. 4.9 Defaults. As of the date of this Agreement, no Default exists. 4.10 Taxes. The Borrower and each Subsidiary has filed all federal, state and other tax returns required to be filed, and all taxes, assessments and other governmental charges due from the Borrower and each Subsidiary have been fully paid, except for such taxes, assessments or charges that are being contested in good faith by appropriate proceedings and with respect to which (a) adequate reserves have been established and are being maintained in accordance with GAAP and (b) no lien has been filed to secure such taxes, assessments or charges. All such contests at the date hereof are described on Exhibit C hereto. The Borrower and its Subsidiaries have not executed any waiver that would have the effect of extending the applicable statute of limitations in respect of tax liabilities. The federal and state income tax returns of the Borrower and each Subsidiary have not been audited or otherwise examined by any federal or state taxing authority. The Borrower and each Subsidiary have established on their books reserves adequate for the payment of all federal, state and other tax liabilities. 4.11 Litigation. There is no litigation, arbitration, proceeding or investigation pending, or, to the knowledge of the Borrower's or any Subsidiary's officers, threatened, against the Borrower or any Subsidiary that, if adversely determined, may reasonably be expected to result in a material judgment not fully covered by insurance, may reasonably be expected to result in a forfeiture of all or any substantial part of the property of the Borrower or their Subsidiaries, or may reasonably be expected to have a material adverse effect on the assets, business or prospects of the Borrower and its Subsidiaries taken as a whole. 4.12 Subsidiaries. As of the date of this Agreement, all the Subsidiaries of the Borrower are listed on Exhibit C hereto. The Borrower or a Subsidiary of the Borrower is the owner, free -32- 37 and clear of all liens and encumbrances, of all of the issued and outstanding stock of each Subsidiary. All shares of such stock have been validly issued and are fully paid and nonassessable, and no rights to subscribe to any additional shares have been granted, and no options, warrants or similar rights are outstanding. 4.13 Investment Company Act. Neither the Borrower nor any of its Subsidiaries is subject to regulation under the Investment Company Act of 1940, as amended. 4.14 Compliance. The Borrower has all necessary permits, approvals, authorizations, consents, licenses, franchises, registrations and other rights and privileges (including patents, trademarks, trade names and copyrights) to allow it to own and operate its business without any violation of law or the rights of others except to the extent that any such violation would not have a material adverse effect on the business, financial condition or operation of the Borrower and its Subsidiaries taken as a whole; and the Borrower and each Subsidiary are duly authorized, qualified and licensed under and in compliance with all applicable laws, regulations, authorizations and orders of public authorities, including, without limitation, Environmental Laws, except to the extent that any such failure to be so authorized, qualified, licensed or in compliance would not have a material adverse effect on the business, financial condition or operation of the Borrower and its Subsidiaries taken as a whole. The Borrower and each Subsidiary have performed all obligations required to be performed by it under, and is not in default under or in violation of, its Certificate of Incorporation or By-Laws, or any agreement, lease, mortgage, note, bond, indenture, license or other instrument or undertaking to which it is a party or by which any of it or any of its properties are bound, except for violations none of which, either individually or in the aggregate, would have any material adverse effect on the business, condition (financial or otherwise) or assets of the Borrower and its Subsidiaries taken as a whole. 4.15 ERISA. The Borrower and each of its Affiliates are in compliance in all material respects with ERISA and the provisions of the Code applicable to the Plans; neither the Borrower nor any of its Affiliates have engaged in a Prohibited Transaction which would subject the Borrower, any of its Affiliates or any Plan to a material tax or penalty imposed on a Prohibited Transaction; no Plan has incurred any "accumulated funding deficiency" (as defined in ERISA); except as set forth in the Initial Financial Statements, the aggregate fair market value of all assets of the Plans which are single-employer plans is at least equal to the aggregate present value of all accrued benefits under such Plans, both as determined in the most recent actuarial reports for such Plans using the actuarial assumptions used for funding purposes therein; neither the Borrower nor any of its Affiliates has incurred any liability to the Pension Benefit Guaranty Corporation over and above premiums required by law; and neither the Borrower nor any of its Affiliates has terminated any Plan in a manner which could result in the imposition of a lien on the property of the Borrower or any of its Affiliates. 4.16 Environmental Matters. (a) The Borrower and each of its Subsidiaries have obtained all permits, licenses and other authorizations which are required under all Environmental Laws, except to the extent failure to have any such permit, license or authorization would not have a material adverse effect on the business, financial condition or operations of the Borrower or any of its -33- 38 Subsidiaries. The Borrower and each of its Subsidiaries are in compliance with the terms and conditions of all such permits, licenses and authorizations, and are also in compliance with all applicable orders, decrees, judgments and injunctions, issued, entered, promulgated or approved under any Environmental Law, except to the extent failure to comply would not have a material adverse effect on the business, financial condition or operations of the Borrower and its Subsidiaries. (b) No written notice, notification, demand, request for information, citation, summons or order has been issued, no complaint has been filed, no penalty has been assessed and no investigation or review is pending or, to the best of the Borrower's knowledge, threatened by any governmental or other entity with respect to any alleged failure by the Borrower or any of its Subsidiaries to have any permit, license or authorization required in connection with the conduct of its business or to comply with any Environmental Laws. (c) To the best of the Borrower's knowledge no material oral or written notification of a release of a Hazardous Material has been filed by or on behalf of the Borrower or any of its Subsidiaries and no property now or previously owned, leased or used by the Borrower or any of its Subsidiaries is listed or proposed for listing on the National Priorities List under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or on any similar state list of sites requiring investigation or clean-up. (d) There are no liens or Encumbrances arising under or pursuant to any Environmental Laws on any of the real property or properties owned, leased or used by the Borrower or any of its Subsidiaries and no governmental actions have been taken or, to the best of the Borrower's knowledge, are in process which could subject any of such properties to such liens or Encumbrances or, as a result of which the Borrower or any of its Subsidiaries would be required to place any notice or restriction relating to the presence of Hazardous Materials at any property owned by it in any deed to such property. 4.17 Restrictions on the Borrower. The Borrower is not party to or bound by any contract, agreement or instrument, nor subject to any charter or other corporate restriction which will, under current or foreseeable conditions, materially and adversely affect the business, property, assets, operations or conditions, financial or otherwise of the Borrower or any of its Subsidiaries. 4.18 Labor Relations. There is (i) no unfair labor practice complaint pending against the Borrower or any of its Subsidiaries or, to the best knowledge of the Borrower, threatened, before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against the Borrower or any of its Subsidiaries or, to the best knowledge of the Borrower, threatened, except for such complaints, grievances and arbitration proceedings which, if adversely decided, would not have a material and adverse effect on the condition (financial or otherwise), properties, business or results of operations of the Borrower or any of its Subsidiaries, (ii) no strike, labor dispute, slowdown or stoppage pending against the Borrower or any of its Subsidiaries or, to the best knowledge of the Borrower, threatened against the Borrower or any of its Subsidiaries, except for any such labor action as would not have a material and adverse effect on the condition (financial or otherwise), properties, business or results of operations of the Borrower or any of its Subsidiaries and (iii) to -34- 39 the best knowledge of the Borrower, no union representation question existing with respect to the employees of the Borrower or any of its Subsidiaries and, to the best knowledge of the Borrower, no union organizing activities are taking place, except for any such question or activities as would not have a material and adverse effect on the condition (financial or otherwise), properties, business or results of operations the Borrower or any of its Subsidiaries. 4.19 Margin Rules. The Borrower does not own or have any present intention of purchasing or carrying, and no portion of any Loan shall be used for purchasing or carrying, any "margin security" or "margin stock" as such terms are used in Regulations G, U or X of the Board of Governor's of the Federal Reserve System. 4.20 Disclosure. No representation or warranty made by the Borrower in any Loan Document and no document or information furnished to the Lenders by or on behalf of or at the request of the Borrower in connection with any of the transactions contemplated by the Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained therein not misleading in light of the circumstances in which they are made. 4.21 Year 2000 Compliance. The Borrower and its Subsidiaries are Year 2000 Compliant. The Borrower and its Subsidiaries have made written inquiry of their key suppliers and vendors as to whether such persons are or will be Year 2000 Compliant in all material respects. For purposes hereof, "key suppliers and vendors" refers to those suppliers and vendors of the Borrower and its Subsidiaries whose business failure or significant disruption would, with reasonable probability, result in a material adverse change in the business, properties or financial condition of the Borrower and its Subsidiaries taken as a whole. SECTION V AFFIRMATIVE COVENANTS So long as the Lenders have any obligation to lend hereunder or any Loan or other Obligation remains outstanding, the Borrower covenants as follows: 5.1 Financial Statements. The Borrower shall furnish to the Lenders: (a) as soon as available to the Borrower, but in any event within 90 days after the end of each of fiscal year, the Parent's consolidated and consolidating balance sheets as of the end of, and related consolidated and consolidating statements of income and retained earnings and consolidated statement of cash flow for, such year, audited and certified by the Borrower's Accountants in the case of such consolidated statements, and certified by the chief financial officer of the Borrower in the case of such consolidating statements; and, concurrently with such financial statements, a copy of the Borrower's Accountants management report and a written statement by the Borrower's Accountants that, in the making of the audit necessary for their report and opinion upon such financial statements they have obtained no knowledge of any Default or, if in the opinion of such accountants any such Default exists, they shall disclose in such written statement the nature and status thereof; -35- 40 (b) as soon as available to the Borrower, but in any event within 45 days after the end of each quarter, the Parent's consolidated balance sheet as of the end of, and related consolidated statements of income, retained earnings and cash flow for, the quarter then ended and portion of the year then ended, certified by a Responsible Officer of the Borrower, subject to normal, recurring year-end adjustments that shall not in the aggregate be material in amount; (c) as soon as available, but in any event within 15 days after the end of each month, a Borrowing Base Report, together with such other information regarding Eligible Lease Receivables as the Agent may require; (d) as soon as available, but in any event within 30 days after the first day of each fiscal year, the Parent's and the Borrower's projections for such fiscal year, prepared on a monthly basis and including consolidated and consolidating balance sheets and statements of income, retained earnings and cash flows; (e) concurrently with the delivery of each financial statement pursuant to subsections (a) and (b) of this Section 5.1, a report in substantially the form of Exhibit D hereto signed on behalf of the Borrower by a Responsible Officer; (f) promptly after the receipt thereof by the Parent or the Borrower, copies of any reports (including any so-called management letters) submitted to the Parent or the Borrower by independent public accountants in connection with any annual or interim review of the accounts of the Parent or the Borrower made by such accountants; (g) promptly after the same are delivered to its stockholders or the Securities and Exchange Commission, copies of all proxy statements, financial statements and reports as the Parent or the Borrower shall send to its stockholders or as the Parent or the Borrower may file with the Securities and Exchange Commission or any governmental authority at any time having jurisdiction over the Parent or the Borrower or their Subsidiaries; (h) at least 30 days prior to the date any amendments or modifications are made to the agreements and other instruments evidencing Indebtedness for borrowed money of the Borrower (other than Obligations) which is not Subordinated Debt, notification setting forth in detail the proposed amendments or modifications; (i) promptly after the date on which the aggregate amount of Receivables due from any individual account debtor exceeds the lesser of (i) three percent (3%) of the of the Total Commitment at such time or (ii) $2,100,000, a detailed breakdown of the obligations due from such account debtor in form satisfactory to the Agent; and (j) from time to time, such other financial data and information about the Parent, the Borrower or their Subsidiaries (including, without limitation, a report in substantially the form of Exhibit D hereto) as the Agent or the Lenders may reasonably request. 5.2 Conduct of Business. The Borrower and each of its Subsidiaries shall: (a) duly observe and comply in all material respects with all applicable laws, regulations, decrees, orders, judgments and valid requirements of any governmental authorities -36- 41 relative to its corporate existence, rights and franchises, to the conduct of its business and to its property and assets (including without limitation all Environmental Laws and ERISA), and shall maintain and keep in full force and effect and comply with all licenses and permits necessary in any material respect to the proper conduct of its business; (b) maintain its corporate existence and remain or engage substantially in the same business as that in which it is now engaged and in no unrelated business. 5.3 Maintenance and Insurance. The Borrower shall maintain its properties in good repair, working order and condition as required for the normal conduct of its business. The Borrower shall maintain, or cause its lessees to maintain, with responsible insurance companies such insurance on such of its properties, in such amounts and against such risks as are customarily maintained by similar businesses; provided, that the Borrower may continue to self-insure Equipment in the manner in which it is currently conducting its business until the Agent notifies the Borrower otherwise; and provided, further, that the Borrower shall (x) not materially change the manner in which it self-insures Equipment without the prior written consent of the Agent; (y) file with the Agent upon the request of the Agent a detailed list of the insurance then in effect, stating, as applicable, the names of the insurance companies, the amounts and rates of the insurance, dates of expiration thereof and the properties and risks covered thereby; and (z) within 45 days after notice in writing from the Agent, obtain such additional insurance as the Agent may reasonably request. 5.4 Taxes. The Borrower shall pay or cause to be paid all taxes, assessments or governmental charges on or against it or any of its Subsidiaries or its or their properties on or prior to the time when they become due; except for any tax, assessment or charge that is being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been established and are being maintained in accordance with GAAP if no Encumbrance shall have been filed to secure such tax, assessment or charge. 5.5 Inspection. The Borrower shall permit the Agent, any Lender and their designees, at any reasonable time and at reasonable intervals of time, and upon reasonable notice (or if a Default shall have occurred and is continuing, at any time and without prior notice), to (i) visit and inspect the properties of the Borrower and its Subsidiaries, (ii) examine and make copies of and take abstracts from the books and records of the Borrower and its Subsidiaries, and (iii) discuss the affairs, finances and accounts of the Borrower and its Subsidiaries with their appropriate officers and (following the occurrence and during the continuance of a Default hereunder) accountants, all at the reasonable expense of the Borrower. Without limiting the generality of the foregoing, the Borrower will permit periodic reviews (as determined by the Agent) of the books and records of the Borrower and its Subsidiaries to be carried out by the Agent's commercial finance examiners, provided that in the absence of a Default or unless requested or required by regulatory authorities or by official policy of any Lender, such reviews shall not be conducted more than once per year; and the Agent may, in its sole discretion, in lieu of such reviews by its own commercial finance examiners accept reports of examinations of such books and records performed by commercial finance examiners acting on behalf of other lenders to the Borrower to minimize examination expense. The Borrower shall also permit the Agent to arrange for verification of Eligible Lease Receivables, under reasonable procedures, directly with any account debtors or by other methods. -37- 42 5.6 Maintenance of Books and Records. The Borrower and each of its Subsidiaries shall keep adequate books and records of account, in which true and complete entries will be made reflecting all of its business and financial transactions, and such entries will be made in accordance with GAAP consistently applied and applicable law. 5.7 Use of Proceeds. (a) The Borrower will use the proceeds of Loans solely to finance or refinance Receivables arising from Eligible Leases and Eligible Rental Contracts, refinance existing Indebtedness of the Borrower (including the repayment of all Indebtedness under the Fleet Facility), for the working capital needs of the Borrower, to finance Permitted Acquisitions and for ongoing general corporate purposes. (b) No portion of any Loan shall be used for the "purpose of purchasing or carrying" any "margin stock" or "margin security" as such terms are used in Regulations G, U and X of the Board of Governors of the Federal Reserve System, or otherwise in violation of such regulations. 5.8 Further Assurances. At any time and from time to time the Borrower shall, and shall cause each of its Subsidiaries to, execute and deliver such further instruments and take such further action as may reasonably be requested by the Agent to effect the purposes of the Loan Documents. 5.9 Notification Requirements. The Borrower shall furnish to the Agent: (a) immediately upon becoming aware of the existence of any condition or event that constitutes a Default, written notice thereof specifying the nature and duration thereof and the action being or proposed to be taken with respect thereto; (b) promptly upon becoming aware of any material litigation seeking damages in excess of $250,000 or of any investigative proceedings by a governmental agency or authority commenced or threatened against the Borrower or any of its Subsidiaries of which they have notice, the outcome of which would or might have a materially adverse effect on the assets, business or prospects of the Borrower alone or the Borrower and its Subsidiaries on a consolidated basis, written notice thereof and the action being or proposed to be taken with respect thereto; (c) promptly upon becoming aware of any investigative proceedings by a governmental agency or authority commenced or threatened against the Borrower or any of its Subsidiaries regarding any potential violation of Environmental Laws or any spill, release, discharge or disposal of any Hazardous Material and promptly after receipt of any notice of the type referred to in Section 4.16, written notice thereof (together with a copy of any such notice) and the action being or proposed to be taken with respect thereto; and (d) promptly after any occurrence or after becoming aware of any condition affecting the Borrower or any Subsidiary which might constitute a material adverse change in or which might have a material adverse effect on the business, properties or condition (financial or -38- 43 otherwise) of the Borrower alone or the Borrower and its Subsidiaries, taken as a whole, written notice thereof. 5.10 ERISA Reports. With respect to any Plan, the Borrower shall, or shall cause its Affiliates to, furnish to the Agent promptly (i) written notice of the occurrence of a "reportable event" (as defined in Section 4043 of ERISA), excluding any such event notice of which has been waived by regulation, (ii) a copy of any request for a waiver of the funding standards or an extension of the amortization periods required under Section 412 of the Code and Section 302 of ERISA, (iii) a copy of any notice of intent to terminate any Pension Plan, (iv) notice that the Borrower or any Affiliate will or may incur any liability to or on account of a Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA, and (v) a copy of the annual report of each Pension Plan (Form 5500 or comparable form) required to be filed with the Internal Revenue Service and/or the Department of Labor. Any notice to be provided to the Agent under this Section shall include a certificate of the chief financial officer of the Borrower setting forth details as to such occurrence and the action, if any, which the Borrower or the Affiliate is required or proposes to take, together with any notices required or proposed to be filed with or by the Borrower, any Affiliate, the PBGC, the Internal Revenue Service, the trustee or the plan administrator with respect thereto. Promptly after the adoption of any Pension Plan, the Borrower shall notify the Agent of such adoption. 5.11 Environmental Compliance. (a) The Borrower and its Subsidiaries will comply in all material respects with all applicable Environmental Laws in all jurisdictions in which any of them operates now or in the future, and the Borrower and its Subsidiaries will comply in all material respects with all such Environmental Laws that may in the future be applicable to the Borrower's or any Subsidiary's business, properties and assets. (b) If the Borrower or any Subsidiary shall (i) receive notice that any material violation of any Environmental Law may have been committed or is about to be committed by the Borrower or any Subsidiary, (ii) receive notice that any administrative or judicial complaint or order has been filed or is about to be filed against the Borrower or any Subsidiary alleging a material violation of any Environmental Law requiring the Borrower or any Subsidiary to take any action in connection with the release of Hazardous Materials into the environment or (iii) receive any notice from a federal, state or local government agency or private party alleging that the Borrower or any Subsidiary may be liable or responsible for any material amount of costs associated with a response to or cleanup of a release of Hazardous Materials into the environment or any damages caused thereby, the Borrower or such Subsidiary shall provide the Agent with a copy of such notice within five (5) days after the Borrower or such Subsidiary's receipt thereof. Within fifteen (15) days after the Borrower or any Subsidiary has learned of the enactment or promulgation of any Environmental Law which may result in any material adverse change in the condition, financial or otherwise, of the Borrower or any Subsidiary, the Borrower or such Subsidiary shall provide the Agent with notice thereof. -39- 44 SECTION VI FINANCIAL COVENANTS So long as any Loan or other Obligation remains outstanding or the Lenders have any obligation to make any Loan hereunder, the Borrower covenants as follows: 6.1 Debt to Worth Ratio. The ratio of Consolidated Indebtedness to Consolidated Tangible Capital Funds shall not exceed five (5) to one (1) at any time; provided, however that in the event the Borrower shall amend Section 5.10 (a)(4)(i) of the Note Agreement dated as of July 1, 1994 with respect to the Parent's 12% Senior Subordinated Notes solely to increase the percentage set forth therein to 650% or greater, then the ratio in this Section 6.1 shall, effective as of the date of such amendment, but provided no Default or Event of Default shall have occurred and be continuing, increase to six and one-half (6.5) to one (1). 6.2 Consolidated Tangible Net Worth. The Borrower shall at all times maintain a Consolidated Tangible Net Worth of not less than the sum of (i) $70,000,000 and (ii) 50% of the aggregate amount of Consolidated Net Income of the Parent and its Subsidiaries, including the Borrower, for each of the fiscal quarters ending after September 30, 1999 but without deducting therefrom any amount of Consolidated Net Deficit for any of such fiscal quarters; 6.3 Bad Debt Allowance. The Borrower shall at all times maintain a balance sheet allowance for bad debt of the Parent and its Subsidiaries, including the Borrower, of at least 7% of Gross Lease Installments. 6.4 Fixed Charge Ratio. The Borrower shall have as of the end of each fiscal quarter a Fixed Charge Ratio of the Parent and its Subsidiaries, including the Borrower, of not less than 1.25 to 1.00. SECTION VII NEGATIVE COVENANTS So long as any Loan or other Obligation remains outstanding or the Lenders have any obligation to make any Loan hereunder, the Borrower covenants as follows: 7.1 Indebtedness. Neither the Borrower nor any of its Subsidiaries shall create, incur, assume, guarantee or be or remain liable with respect to any Indebtedness other than the following: (a) Obligations; (b) Indebtedness existing as of the date of this Agreement and disclosed on Exhibit C hereto and renewals and refinancings thereof, but not any increase in the principal amounts thereof; (c) Indebtedness for taxes, assessments or governmental charges to the extent that payment therefor shall at the time not be required to be made in accordance with Section 5.4; -40- 45 (d) current liabilities on open account for the purchase price of services, materials and supplies incurred by the Borrower in the ordinary course of business (not as a result of borrowing), so long as all of such open account Indebtedness shall be promptly paid and discharged when due or in conformity with customary trade terms and practices, except for any such open account Indebtedness which is being contested in good faith by the Borrower, as to which adequate reserves required by GAAP have been established and are being maintained and as to which no Encumbrance has been placed on any property of the Borrower or any of its Subsidiaries; (e) Guarantees permitted under Section 7.2 hereof; (f) Subordinated Debt; (g) Indebtedness of a Subsidiary of the Borrower secured by Leases, Equipment and Receivables relating to such Leases and Equipment, none of which constitutes any part of the Collateral; and (h) Indebtedness in connection with Permitted Acquisitions to the extent permitted by Section 7.8(f)(iii). 7.2 Contingent Liabilities. Neither the Borrower nor any of its Subsidiaries shall create, incur, assume, guarantee or be or remain liable with respect to any Guarantees other than (i) Guarantees existing on the date of this Agreement and disclosed on Exhibit C hereto, and (ii) Guarantees resulting from the endorsement of negotiable instruments for deposit or collection in the ordinary course of business. 7.3 Encumbrances. Neither the Borrower nor any of its Subsidiaries shall create, incur, assume or suffer to exist any mortgage, pledge, security interest, lien or other charge or encumbrance, including the lien or retained security title of a conditional vendor upon or with respect to any of its property or assets ("Encumbrances"), or assign or otherwise convey any right to receive income, including the sale or discount of accounts receivable with or without recourse, except the following ("Permitted Encumbrances"): (a) Encumbrances in favor of the Agent or any of the Lenders to secure Obligations; (b) Encumbrances existing as of the date of this Agreement and disclosed in Exhibit C hereto; (c) liens for taxes, fees, assessments and other governmental charges to the extent that payment of the same may be postponed or is not required in accordance with the provisions of Section 5.4; (d) landlords' and lessors' liens in respect of rent not in default or liens in respect of pledges or deposits under workmen's compensation, unemployment insurance, social security laws, or similar legislation (other than ERISA) or in connection with appeal and similar bonds incidental to litigation; mechanics', warehouseman's, laborers' and materialmen's and similar liens, if the obligations secured by such liens are not then delinquent; liens securing the -41- 46 performance of bids, tenders, contracts (other than for the payment of money); and liens securing statutory obligations or surety, indemnity, performance, or other similar bonds incidental to the conduct of the Borrower's or a Subsidiary's business in the ordinary course and that do not in the aggregate materially detract from the value of its property or materially impair the use thereof in the operation of its business; (e) judgment liens securing judgments that (i) are not fully covered by insurance, and (ii) shall not have been in existence for a period longer than 10 days after the creation thereof or, if a stay of execution shall have been obtained, for a period longer than 10 days after the expiration of such stay; (f) rights of lessors under capital leases; (g) easements, rights of way, restrictions and other similar charges or Encumbrances relating to real property and not interfering in a material way with the ordinary conduct of the Borrower' business; (h) any Encumbrance on any Eligible Lease, Eligible Rental Contract and Eligible Equipment created by the sale, transfer, assignment or disposition of such Eligible Lease, Eligible Rental Contract or Eligible Equipment in compliance with Section 7.4(ii) hereof; (i) liens constituting a renewal, extension or replacement of any Permitted Encumbrance; and (j) Encumbrances granted with respect to any Indebtedness permitted under Section 7.1(g), provided that no such Encumbrance attaches to any part of the Collateral. 7.4 Merger; Consolidation; Sale or Lease of Assets. Without the prior written consent of the Agent, neither the Borrower nor any of its Subsidiaries shall liquidate, merge or consolidate into or with any other person or entity, or sell, lease or otherwise dispose of any assets or properties, other than (i) the disposition of scrap, waste and obsolete or unusable items and Qualified Investments, in each case in the ordinary course of business; (ii) the sale, transfer, assignment or disposition of any Eligible Leases, Eligible Rental Contracts and Eligible Equipment, provided that the net proceeds thereof are sufficient to prepay and are applied simultaneously to prepay any related Revolving Credit Loan or Conversion Term Loan in accordance with Section 2.9 hereof; and (iii) Permitted Acquisitions. 7.5 Subsidiary Stock. The Borrower shall not permit any of its Subsidiaries to issue any additional shares of its capital stock or other equity securities, any options therefor or any securities convertible thereto other than to the Borrower. Neither the Borrower nor any of its Subsidiaries shall sell, transfer or otherwise dispose of any of the capital stock or other equity securities of a Subsidiary, except to the Borrower or any of its wholly-owned Subsidiaries. -42- 47 7.6 Restricted Payments. Neither the Borrower nor any of its Subsidiaries shall pay, make, declare or authorize any Restricted Payment other than: (a) compensation paid to employees, officers and directors in the ordinary course of business and consistent with prudent business practices; (b) dividends payable solely in common stock; (c) dividends paid by any Subsidiary to the Borrower; (d) cash dividends paid by the Borrower to the Parent not to exceed, in the aggregate in any fiscal year, an amount equal to fifty percent (50%) of Consolidated Net Income for the immediately preceding fiscal year, provided that both at the time such cash dividend is declared or paid, and after giving effect to the payment thereof, no Default shall have occurred and be continuing. 7.7 Payments on Subordinated Debt. The Borrower shall not make any payment or prepayment of principal of or interest on or any other payment in respect of Subordinated Debt, except (i) regularly scheduled payments of principal and interest thereon at the rates and times specified in the instruments evidencing the Subordinated Debt as delivered to the Agent along with the agreements pursuant to which such Indebtedness is subordinated to the Obligations (but not any amendments thereof without the consent of the Majority Lenders) and (ii) prepayments of principal of, and accrued and unpaid interest on, any Subordinated Debt, provided that the aggregate principal amount of all Subordinated Debt so prepaid by the Borrower during any fiscal year of the Borrower may not exceed $100,000; provided that in the case of both clause (i) and clause (ii), both immediately prior to making any such payment and after giving effect thereto there shall not have occurred and be continuing any Default. 7.8 Investments; Purchases of Assets. Neither the Borrower nor any of its Subsidiaries shall make or maintain any Investments or purchase or otherwise acquire any material amount of assets other than: (a) Investments existing on the date hereof in Subsidiaries; (b) Qualified Investments; (c) Capital Expenditures; (d) purchases of Equipment, Installment Finance Contracts, Leases, Security Monitoring Agreements and inventory in the ordinary course of business; (e) normal trade credit extended in the ordinary course of business and consistent with prudent business practice; (f) the purchase of all or substantially all of the assets or outstanding equity securities of any other Person and the merger or consolidation of any other Person with or into the Borrower or a Subsidiary of the Borrower, in each case if all of the following conditions are satisfied (a "Permitted Acquisition"): -43- 48 (i) if the proposed transaction involves a merger or consolidation, at the completion of such merger or consolidation the surviving party shall be the Borrower or a wholly-owned Subsidiary of the Borrower; (ii) the total consideration (excluding assumed Indebtedness) paid by the Borrower (x) in connection with any single Permitted Acquisition shall not exceed $10,000,000 and (y) in connection with all Permitted Acquisitions during any fiscal year shall not exceed $20,000,000 in the aggregate; (iii) the total Indebtedness (other than Subordinated Debt) assumed or incurred by the Borrower in connection with all Permitted Acquisitions (including any Indebtedness to which any Permitted Acquisition is subject) during any fiscal year shall not exceed $30,000,000 in the aggregate unless the Majority Lenders otherwise approve; (iv) the assets, business or Person acquired in any Permitted Acquisition must be in the same or a substantially similar line of business as that of the Borrower; (v) both immediately before and immediately after the consummation of any Permitted Acquisition no Default shall have occurred and be continuing; and (vi) immediately after consummation of each Permitted Acquisition, the Borrowing Base shall exceed Total Outstandings by at least $7,000,000; and (g) Investments in outstanding equity securities of any other Person, provided that (i) the total consideration paid by the Borrower in connection with all such Investments during any fiscal year shall not exceed $5,000,000 in the aggregate, (ii) after giving effect to any such Investment, the Borrower and/or its Subsidiaries and Affiliates would not have a majority or controlling interest in such Person, and (iii) both immediately before and immediately after giving effect to any such Investment, no Default shall have occurred and be continuing. 7.9 ERISA Compliance. Neither the Borrower nor any of its Affiliates nor any Plan shall (i) engage in any Prohibited Transaction which would have a material adverse effect on the business, financial condition or operations of the Borrower and its Subsidiaries taken as a whole, (ii) incur any "accumulated funding deficiency" (as defined in Section 412(a) of the Code and Section 302 of ERISA) whether or not waived which would have a material adverse effect on the business, financial condition or operations of the Borrower and its Subsidiaries taken as a whole, (iii) fail to satisfy any additional funding requirements set forth in Section 412 of the Code and Section 302 of ERISA which ,would have a material adverse effect on the business, financial condition or operations of the Borrower and its Subsidiaries taken as a whole, or (iv) terminate any Pension Plan in a manner which could result in the imposition of a lien on any property of the Borrower or any of its Subsidiaries. Each Plan shall comply in all material respects with ERISA, except to the extent failure to comply in any instance would not have a material adverse effect on the business, financial condition or operations of the Borrower and its Subsidiaries taken as a whole. 7.10 Transactions with Affiliates. The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into any purchase, sale, lease or other transaction with any Affiliate except (i) transactions in the ordinary course of business on terms that are no -44- 49 less favorable to the Borrower than those which might be obtained at the time in a comparable arm's-length transaction with any Person who is not an Affiliate and (ii) employment contracts with senior management of the Borrower entered into in the ordinary course of business and consistent with prudent business practices. Notwithstanding the foregoing, the Borrower will not, and will not permit any Subsidiary to, directly or indirectly, pay any management, consulting, overhead, indemnity, guarantee or other similar fee or charge to any Affiliate. 7.11 Fiscal Year. The Borrower and its Subsidiaries shall not change their fiscal years without the prior written consent of the Agent. 7.12 Underwriting Procedures. The Borrower shall not make any material change in its underwriting and credit approval procedures without the prior written consent of the Majority Lenders. SECTION VIII DEFAULTS 8.1 Events of Default. There shall be an Event of Default hereunder if any of the following events occurs: (a) the Borrower shall fail to pay any principal of any Loan, or any interest, fees or other amounts owing under any Loan Document or in respect of any Obligation when the same shall become due and payable, whether at maturity or at any accelerated date of maturity or at any other date fixed for payment; (b) the Borrower shall fail to perform or comply with any term, covenant or agreement applicable to it contained in Sections 5.1, 5.2(b), 5.5, 5.6, 5.7, 5.9, 5.11, 6 and 7 of this Agreement; or (c) the Borrower shall fail to perform any term, covenant or agreement (other than as specified in subsections 8.1(a) or (b) hereof) contained in this Agreement or any other Loan Document and such default shall continue for 30 days; or (d) any representation or warranty of the Borrower made in this Agreement or any other Loan Document or in any certificate delivered hereunder or thereunder shall prove to have been false in any material respect upon the date when made deemed to have been made; or (e) the Borrower, the Parent or any of their Subsidiaries shall fail to pay when due (after any applicable period of grace) any amount payable under any Indebtedness exceeding $100,000 in principal amount or under any agreement for the use of real or personal property requiring aggregate payments in excess of $100,000 in any twelve month period, or fail to observe or perform any term, covenant or agreement evidencing or securing such Indebtedness or relating to such agreement for the use of real or personal property; or (f) the Borrower, the Parent or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or similar official of itself or of all or a substantial part of its property, (ii) be generally -45- 50 not paying its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the United States Bankruptcy Code (as now or hereafter in effect), (v) take any action or commence any case or proceeding under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, or any other law providing for the relief of debtors, (vi) fail to contest in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law, (vii) take any action under the laws of its jurisdiction of incorporation or organization similar to any of the foregoing, or (viii) take any corporate action for the purpose of effecting any of the foregoing; or (g) a proceeding or case shall be commenced against the Borrower, the Parent or any of its Subsidiaries, without the application or consent of the Borrower, the Parent or such Subsidiary in any court or competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it, under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of 30 days; or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code, against the Borrower, the Parent or such Subsidiary; or action under the laws of the jurisdiction of incorporation or organization of the Borrower, the Parent or any of its Subsidiaries similar to any of the foregoing shall be taken with respect to the Borrower, the Parent or such Subsidiary and shall continue unstayed and in effect for a period of 30 days; or (h) a judgment or order for the payment of money shall be entered against the Borrower or any of its Subsidiaries by any court, or a warrant of attachment or execution or similar process shall be issued or levied against property of the Borrower or such Subsidiary, that in the aggregate exceeds $500,000 in value, the payment of which is not fully covered by insurance in excess of any deductibles not exceeding $500,000 in the aggregate, and such judgment, order, warrant or process shall continue undischarged or unstayed for 30 days; or (i) the Borrower or any Affiliate shall fail to pay when due any material amount that they shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA, unless such liability is being contested in good faith by appropriate proceedings, the Borrower or the Affiliate, as the case may be, has established and is maintaining adequate reserves in accordance with GAAP and no lien shall have been filed to secure such liability; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or (j) any of the Loan Documents shall be cancelled, terminated, revoked or rescinded otherwise then in accordance with the express terms thereof or with the express prior written agreement, consent or approval of the Lenders, or any action at law or in equity or other legal proceeding to cancel, revoke or rescind any Loan Document shall be commenced by or on behalf of the Borrower, or any court or other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall issue a judgment, order, decree -46- 51 or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or (k) the occurrence of any material change in the condition or affairs (financial or otherwise) of the Borrower or any of its Subsidiaries or of any endorser, guarantor or surety for any Obligation which causes the Lenders to deem themselves insecure; or (l) any failure of Peter R. von Bleyleben to be at all times the duly elected and acting chief executive officer of the Borrower or the imposition of any material restriction on his right to exercise the powers and authority of such office and to manage the business of the Borrower in a manner consistent with past practices, unless, in the event of his ceasing to act as such chief executive officer, a replacement reasonably acceptable to the Agent is appointed within 60 days of such cessation; or (m) any failure of Richard F. Latour to be at all times the duly elected and acting chief operating officer and chief financial officer of the Borrower or the imposition of any material restriction on his right to exercise the powers and authority of such office and to manage the financial affairs of the Borrower in a manner consistent with past practices, unless, in the event of his ceasing to act as such chief financial officer, a replacement reasonably acceptable to the Agent is appointed within 60 days of such cessation; or (n) more than one-third of the members of the Board of Directors of the Parent or of the Borrower at the beginning of any year fail to remain in office throughout such year, unless such former members of the Board of Directors are replaced with Persons reasonably acceptable to the Agent within 60 days. 8.2 Remedies. Upon the occurrence of an Event of Default described in subsections 8.1(f) and (g), immediately and automatically, and upon the occurrence of any other Event of Default, at any time thereafter while such Event of Default is continuing, at the option of the Agent or the Majority Lenders and upon the Agent's declaration: (a) the obligation of the Lenders to make any further Loans shall terminate; (b) the unpaid principal amount of the Loans together with accrued interest and all other Obligations shall become immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; and (c) the Agent and the Lenders may exercise any and all rights they have under this Agreement, the other Loan Documents or at law or in equity, and proceed to protect and enforce their respective rights by any action at law or in equity or by any other appropriate proceeding. No remedy conferred upon the Agent and the Lenders in the Loan Documents is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be an addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or by any other provision of law. Without limiting the generality of the foregoing or of any of the terms and provisions of any of the Security Documents, (i) if and when the Agent exercises remedies under the Security Documents with respect to the Collateral, the Agent -47- 52 may, in its sole discretion, determine which items and types of Collateral to dispose of and in what order and may dispose of Collateral in any order the Agent shall select in its sole discretion, and the Borrower consents to the foregoing and waives all rights of marshalling with respect to all Collateral. SECTION IX ASSIGNMENT; PARTICIPATION 9.1 Assignment. (a) Each Lender shall have the right to assign at any time any portion of its Commitment hereunder and its interests in the risk relating to the Revolving Credit Loans or the Conversion Term Loan in an amount equal to or greater than $5,000,000 to other Lenders or to banks or financial institutions approved by the Agent (such approval not to be unreasonably withheld or delayed) (each an "Assignee"), provided that any Lender which proposes to assign less than its Total Commitment must retain a Commitment of at least $5,000,000, and provided, further, that if no Default or Event of Default shall have occurred and be continuing, each such Assignee which is not a Lender, an Affiliate of a Lender or a Federal Reserve Bank shall be subject to prior approval by the Borrower (such approval not to be unreasonably withheld or delayed). Each such Assignee shall execute and deliver to the Agent and the Borrower a counterpart joinder in the form of Exhibit E hereto and shall pay to the Agent, solely for the account of the Agent, an assignment fee of $3,500. Upon the execution and delivery of such counterpart joinder, (a) such Assignee shall, on the date and to the extent provided in such counterpart joinder, become a "Lender" party to this Agreement and the other Loan Documents for all purposes of this Agreement and such other Loan Documents and shall have all rights and obligations of a "Lender" with a Commitment as set forth in such counterpart joinder, and the transferor Lender shall, on the date and to the extent provided in such counterpart joinder, be released from its obligations hereunder and under the other Loan Documents to a corresponding extent (and, in the case of an assignment covering all of the remaining portion of an assigning Lender's rights and obligations under this Agreement, such transferor shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 11.3 and to any fees accrued for its account hereunder and not yet paid); (b) the assigning Lender, if it holds any Revolving Credit Notes, shall promptly surrender such Revolving Credit Notes to the Agent for cancellation and delivery to the Borrower, provided that if the assigning Lender has retained any Commitment, the Borrower shall execute and deliver to the Agent for delivery to such assigning Lender a new Revolving Credit Note in the amount of the assigning Lender's retained Commitment; (c) the Borrower shall issue to such Assignee a Revolving Credit Note in the amount of such Assignee's Commitment dated the Closing Date or such other date as may be specified by such Assignee and otherwise completed in substantially the form of Exhibit A; (d) this Agreement shall be deemed appropriately amended to reflect (i) the status of such Assignee as a party hereto and (ii) the status and rights of the Lenders hereunder; and (e) the Borrower shall take such action as the Agent may reasonably request to perfect any security interests or mortgages in favor of the Lenders, including any Assignee which becomes a party to this Agreement. -48- 53 (b) If the Assignee, or any Participant pursuant to Section 9.2 hereof, is organized under the laws of a jurisdiction other than the United States or any state thereof, such Assignee shall execute and deliver to the Borrower, simultaneously with or prior to such Assignee's execution and delivery of the counterpart joinder described above in Section 9.1(a), and such Participant shall execute and deliver to the Lender granting the participation, a United States Internal Revenue Service Form 4224 or Form 1001 (or any successor form), appropriately completed, wherein such Assignee or Participant claims entitlement to complete exemption from United States Federal Withholding Tax on all interest payments hereunder and all fees payable pursuant to any of the Loan Documents. The Borrower shall not be required to pay any increased amount to any Assignee or other Lender on account of taxes to the extent such taxes would not have been payable if the Assignee or Participant had furnished one of the Forms referenced in this Section 9.1(b) unless the failure to furnish such a Form results from (i) a condition or event affecting the Borrower or an act or failure to act of the Borrower or (ii) the adoption of or change in any law, rule, regulation or guideline affecting such Assignee or Participant occurring (x) after the date on which any such Assignee executes and delivers the counterpart joinder, or (y) after the date such Assignee shall otherwise comply with the provisions of Section 9.1(a), or (z) after the date a Participant is granted its participation. 9.2 Participations. Each Lender shall have the right to grant participations to one or more banks or other financial institutions (each a "Participant") in all or any part of any Loans owing to such Lender and the Note held by such Lender. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents, provided that the documents evidencing any such participation may provide that, except with the consent of such Participant, such Lender will not consent to (a) the reduction in or forgiveness of the stated principal of or rate of interest on or commitment fee with respect to the portion of any Loan subject to such participation, (b) the extension or postponement of any stated date fixed for payment of principal or interest or commitment fee with respect to the portion of any Loan subject to such participation, (c) the waiver or reduction of any right to indemnification of such Lender hereunder, or (d) except as otherwise permitted hereunder, the release of any Collateral. Notwithstanding the foregoing, no participation shall operate to increase the Total Commitment hereunder or otherwise alter the substantive terms of this Agreement. In the event of any such sale by a Lender of participating interests to a Participant, such Lender's obligations under this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of such Note for all purposes under this Agreement and the Borrower and Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. SECTION X THE AGENT 10.1 Appointment of Agent; Powers and Immunities. (a) Each Lender hereby irrevocably appoints and authorizes the Agent to act as its agent hereunder and under the other Loan Documents and to execute such Loan Documents (other than this Agreement) and all other instruments relating thereto. Each Lender -49- 54 irrevocably authorizes the Agent to take such action on behalf of each of the Lenders and to exercise all such powers as are expressly delegated to the Agent hereunder and in the other Loan Documents and all related documents, together with such other powers as are reasonably incidental thereto. The obligations of the Agent hereunder are only those expressly set forth herein. The Agent shall not have any duties or responsibilities or any fiduciary relationship with any Lender except those expressly set forth in this Agreement. (b) Neither the Agent nor any of its directors, officers, employees or agents shall be responsible for any action taken or omitted to be taken by any of them hereunder or in connection herewith, except for their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, neither the Agent nor any of its Affiliates shall be responsible to the Lenders for or have any duty to ascertain, inquire into or verify: (i) any recitals, statements, representations or warranties made by the Borrower or any of its Subsidiaries or any other Person whether contained herein or otherwise; (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the other Loan Documents or any other document referred to or provided for herein or therein; (iii) any failure by the Borrower or any of its Subsidiaries or any other Person to perform its obligations under any of the Loan Documents; (iv) the satisfaction of any conditions specified in Section III hereof, other than receipt of the documents, certificates and opinions specified in Section 3.1 hereof; (v) the existence, value, collectibility or adequacy of the Collateral or any part thereof or the validity, effectiveness, perfection or relative priority of the liens and security interests of the Lenders therein; or (vi) the filing, recording, refiling, continuing or re-recording of any financing statement or other document or instrument evidencing or relating to the security interests or liens of the Lenders in the Collateral. (c) The Agent may employ agents, attorneys and other experts, shall not be responsible to any Lender for the negligence or misconduct of any such agents, attorneys or experts selected by it with reasonable care and shall not be liable to any Lender for any action taken, omitted to be taken or suffered in good faith by it in accordance with the advice of such agents, attorneys and other experts. BKB, in its separate capacity as a Lender shall have the same rights and powers under the Loan Documents as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and BKB and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower as if it were not the Agent. 10.2 Actions by Agent. (a) The Agent shall be fully justified in failing or refusing to take any action under this Agreement as it reasonably deems appropriate unless it shall first have received such advice or concurrence of the Lenders and shall be indemnified to its reasonable satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any of the Loan Documents in accordance with a request of the Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon the Lenders and all future holders of the Notes. -50- 55 (b) Whether or not an Event of Default shall have occurred, the Agent may from time to time exercise such rights of the Agent and the Lenders under the Loan Documents as it determines may be necessary or desirable to protect the Collateral and the interests of the Agent and the Lenders therein and under such Loan Documents. In addition, the Agent may, without the consent of the Lenders, release Collateral valued by the Agent, in its sole discretion, of not more than $1,000,000 in any fiscal year. (c) Neither the Agent nor any of its directors, officers, employees or agents shall incur any liability by acting in reliance on any notice, consent, certificate, statement or other writing (which may be a bank wire, telex, facsimile or similar writing) reasonably believed by any of them to be genuine or to be signed by the proper party or parties. 10.3 Indemnification. Without limiting the obligations of the Borrower hereunder or under any other Loan Document, the Lenders agree to indemnify the Agent ratably in accordance with their respective Commitments, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of this Agreement or any other Loan Document or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof or of any such other documents; provided, that no Lender shall be liable for any of the foregoing to the extent they result from the gross negligence or willful misconduct of the Agent. 10.4 Reimbursement. Without limiting the provisions of Section 10.3, the Lenders and the Agent hereby agree that the Agent shall not be obliged to make available to any Person any sum which the Agent is expecting to receive for the account of that Person until the Agent has determined that it has received that sum. The Agent may, however, disburse funds prior to determining that the sums which the Agent expects to receive have been finally and unconditionally paid to the Agent if the Agent wishes to do so. If and to the extent that the Agent does disburse funds and it later becomes apparent that the Agent did not then receive a payment in an amount equal to the sum paid out, then any Person to whom the Agent made the funds available shall, on demand from the Agent refund to the Agent the sum paid to that Person. If the Agent in good faith reasonably concludes that the distribution of any amount received by it in such capacity hereunder or under the other Loan Documents might involve it in liability, it may refrain from making distribution until its right to make distribution shall have been adjudicated by a court of competent jurisdiction. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in such manner and to such Persons as shall be determined by such court. 10.5 Non-Reliance on Agent and Other Lenders. Each Lender represents that it has, independently and without reliance on the Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of the financial condition and affairs of the Borrower and decision to enter into this Agreement and the other Loan Documents and agrees that it will, independently and without reliance upon the Agent or any other Lender, and based on such documents and information as it shall deem appropriate at -51- 56 the time, continue to make its own appraisals and decision in taking or not taking action under this Agreement or any other Loan Document. The Agent shall not be required to keep informed as to the performance or observance by the Borrower of this Agreement, the other Loan Documents or any other document referred to or provided for herein or therein or by any other Person of any other agreement or to make inquiry of, or to inspect the properties or books of, any Person. Except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Agent hereunder, the Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning any Person which may come into the possession of the Agent or any of its affiliates. Each Lender shall have access to all documents relating to the Agent's performance of its duties hereunder at such Lender's request. Unless any Lender shall promptly object to any action taken by the Agent hereunder (other than actions to which the provisions of Section 11.7(b) are applicable and other than actions which constitute gross negligence or willful misconduct by the Agent), such Lender shall conclusively be presumed to have approved the same. 10.6 Resignation or Removal of Agent. The Agent may resign at any time by giving 30 days prior written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Lenders shall have the right to appoint a successor Agent which, provided that no Default or Event of Default has occurred and is continuing, shall be reasonably acceptable to the Borrower and shall be a financial institution having a combined capital and surplus in excess of $150,000,000. If no successor Agent shall have been so appointed by the Lenders and shall have accepted such appointment within 30 days after the retiring Agent's giving of notice of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which, provided that no Default or Event of Default has occurred and is continuing, shall be reasonably acceptable to the Borrower and shall be a financial institution having a combined capital and surplus in excess of $150,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After any retiring Agent's resignation, the provisions of this Agreement shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. SECTION XI MISCELLANEOUS 11.1 Notices. Unless otherwise specified herein, all notices hereunder to any party hereto shall be in writing and shall be deemed to have been given when delivered by hand, or when sent by electronic facsimile transmission or by telex, answer back received, or on the first Business Day after delivery to any overnight delivery service, freight pre-paid, or three days after being sent by certified or registered mail, return receipt requested, postage pre-paid, and addressed to such party at its address indicated below: -52- 57 If to the Borrower, at Leasecomm Corporation 950 Winter Street Waltham, Massachusetts 02451 Attention: President and Chief Financial Officer with a copy to: Gerald P. Hendrick, Esq. Edwards & Angell 101 Federal Street Boston, MA 02110 Facsimile: (617) 439-4170 If to Agent or BKB, at 100 Federal Street Boston, Massachusetts 02110 Attention: Jeffrey G. Millman, Vice President, or Division Executive (New England Corporate Banking) Facsimile: (617) 434-1226 with a copy to: William A. Levine, Esq. Sullivan & Worcester LLP One Post Office Square Boston, MA 02109 Facsimile: (617) 338-2880 if to any other Lender, to its address set forth on Schedule 1 attached hereto; or at any other address specified by such party in writing. 11.2 Expenses. Whether or not the transactions contemplated herein shall be consummated, the Borrower hereby promises to reimburse the Agent and the Lenders for all reasonable out-of-pocket fees and disbursements (including all reasonable attorneys' fees and collateral evaluation costs) incurred or expended in connection with the preparation, filing or recording, or interpretation of this Agreement and the other Loan Documents, or any amendment, modification, approval, consent or waiver hereof or thereof, or with the enforcement of any Obligations or the satisfaction of any indebtedness of the Borrower hereunder or thereunder, or in connection with any litigation, proceeding or dispute in any way related to the credit hereunder. The Borrower will pay any taxes (including any interest and penalties in respect thereof) other than the Lenders' federal and state income taxes, payable on or with respect to the transactions contemplated by the Loan Documents (the Borrower hereby agreeing to indemnify the Agent and the Lenders with respect thereto). -53- 58 11.3 Indemnification. The Borrower agrees to indemnify and hold harmless the Agent and the Lenders, as well as their respective shareholders, directors, agents, officers, subsidiaries and affiliates, from and against all damages, losses, settlement payments, obligations, liabilities, claims, suits, penalties, assessments, citations, directives, demands, judgments, actions or causes of action, whether statutorily created or under the common law, and reasonable costs and expenses incurred, suffered, sustained or required to be paid by an indemnified party by reason of or resulting from the transactions contemplated hereby, except any of the foregoing which result from the gross negligence or willful misconduct of the indemnified party. In any investigation, proceeding or litigation, or the preparation therefor, the Lenders shall select their own counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses of such counsel. In the event of the commencement of any such proceeding or litigation, the Borrower shall be entitled to participate in such proceeding or litigation with counsel of its choice at its own expense, provided that such counsel shall be reasonably satisfactory to the Agent. The covenants of this Section 11.3 shall survive payment or satisfaction of payment of all amounts owing with respect to the Notes or any other Loan Document. 11.4 Survival of Covenants, Etc. Unless otherwise stated herein, all covenants, agreements, representations and warranties made herein, in the other Loan Documents or in any documents or other papers delivered by or on behalf of the Borrower pursuant hereto shall be deemed to have been relied upon by the Agent and the Lenders, notwithstanding any investigation heretofore or hereafter made by any of them, and shall survive the making by the Lenders of the Loans as herein contemplated, and shall continue in full force and effect so long as any amount due under any Loan Document remains outstanding and unpaid or any Lender has any obligation to make any Loans hereunder. All statements contained in any certificate or other paper delivered by or on behalf of the Borrower pursuant hereto or in connection with the transactions contemplated hereby shall constitute representations and warranties by the Borrower hereunder. 11.5 Set-Off. Regardless of the adequacy of any Collateral or other means of obtaining repayment of the Obligations, any deposits, balances or other sums credited by or due from the head office of any Lender or any of its branch offices to the Borrower may, at any time and from time to time after the occurrence of an Event of Default hereunder, without notice to the Borrower or compliance with any other condition precedent now or hereafter imposed by statute, rule of law, or otherwise (all of which are hereby expressly waived) be set off, appropriated, and applied by such Lender against any and all Obligations of the Borrower to such Lender or any of its affiliates in such manner as the head office of such Lender or any of its branch offices in its sole discretion may determine, and the Borrower hereby grants each such Lender a continuing security interest in such deposits, balances or other sums for the payment and performance of all such Obligations. 11.6 No Waivers. No failure or delay by the Agent or any Lender in exercising any right, power or privilege hereunder or under the Notes or under any other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No waiver shall extend to or affect any Obligation not expressly waived or impair any right consequent thereon. No course of dealing or omission on the part of the Agent or the Lenders in exercising any right -54- 59 shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances. The rights and remedies herein and in the Notes and the other Loan Documents are cumulative and not exclusive of any rights or remedies otherwise provided by agreement or law. 11.7 Amendments, Waivers, Etc. (a) Neither this Agreement nor the Revolving Credit Notes nor any other Loan Documents nor any provision hereof or thereof may be amended, waived, discharged or terminated except by a written instrument signed by the Agent on behalf of the Lenders or, as the case may be, by the Lenders or the Majority Lenders, and, in the case of amendments, by the Borrower. (b) Except where this Agreement or any of the other Loan Documents authorizes or permits the Agent to act alone and except as otherwise expressly provided in this Section 11.7(b), any action to be taken (including the giving of notice) by the Lenders may be taken, and any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given, and any term of this Agreement, any other Loan Document or any other instrument, document or agreement related to this Agreement or such other Loan Documents or mentioned therein may be amended, and the performance or observance by any of the Borrower or any other Person of any of the terms thereof and any Default or Event of Default (as defined in any of the above-referenced documents or instruments) may be waived (either generally or in a particular instance and either retroactively or prospectively), in each case only with the written consent of the Majority Lenders; provided, however, that no such consent or amendment which affects the rights, duties or liabilities of the Agent shall be effective without the written consent of the Agent. Notwithstanding the foregoing, no amendment, waiver or consent shall do any of the following unless in writing and signed by ALL of the Lenders: (i) increase the Total Commitment (or subject the Lenders to any additional obligations) (ii) reduce the principal of or interest on any of the Revolving Credit Notes (including, without limitation, interest on overdue amounts) or any fees payable hereunder, (iii) postpone any date (including the Borrowing Base Maturity Date) fixed for any payment in respect of principal of or interest (including, without limitation, interest on overdue amounts) on the Revolving Credit Notes, or any fees payable hereunder, (iv) change the definition of "Majority Lenders" or the number of Lenders which shall be required for the Lenders or any of them to take any action under the Loan Documents; (v) change the definition of "Borrowing Base" set forth in Section 1.1, amend Section 2.1(a) or waive the limitations set forth in Section 2.1(a); (vi) amend this Section 11.7(b); (vii) change the Commitment of any Lender, except as permitted under Section IX hereof; (viii) except as permitted by Section 10.2(b) hereunder, release any Collateral; or (ix) amend Sections 2.6 or 2.7 hereof. 11.8 Binding Effect of Agreement. This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and their respective successors and assigns; provided that the Borrower may not assign or transfer its rights or obligations hereunder. 11.9 Captions; Counterparts. The captions in this Agreement are for convenience of reference only and shall not define or limit the provisions hereof. This Agreement and any -55- 60 amendment hereof may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, but all of which together shall constitute one instrument. In proving this Agreement it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought. 11.10 Entire Agreement, Etc. The Loan Documents and any other documents executed in connection herewith or therewith express the entire understanding of the parties with respect to the transactions contemplated hereby. 11.11 Waiver of Jury Trial. EACH OF THE BORROWER THE LENDERS HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH OF THE BORROWER AND THE LENDERS HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE LENDERS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDERS WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (b) ACKNOWLEDGES THAT THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH EACH IS A PARTY BECAUSE OF, AMONG OTHER THINGS, THE BORROWER'S WAIVERS AND CERTIFICATIONS CONTAINED HEREIN. 11.12 Governing Law. THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER CONSENTS TO THE JURISDICTION OF ANY OF THE FEDERAL OR STATE COURTS LOCATED IN THE COMMONWEALTH OF MASSACHUSETTS IN CONNECTION WITH ANY SUIT TO ENFORCE THE RIGHTS OF THE LENDERS UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION BROUGHT IN THE COURTS REFERRED TO IN THE PRECEDING SENTENCE AND IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH ACTION THAT SUCH ACTION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. 11.13 Severability. The provisions of this Agreement are severable and if any one clause or provision hereof shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, -56- 61 in such jurisdiction, and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision of this Agreement in any jurisdiction. 11.14 Confidentiality. The Agent and the Lenders shall hold all confidential information delivered by the Borrower to the Agent or any Lender pursuant to this Agreement relating to the Borrower or its business in accordance with such entity's customary procedures for handling confidential information of this nature and in accordance with safe and sound business practices and in any event may make disclosure to such of its respective Affiliates, officers, directors, employees, agents and representatives as need to know such information in connection with the Loans. If the Agent or any Lender is otherwise a creditor of Borrower, the Agent or such Lender, as the case may be, may use the information in connection with its other credits. The Agent or any Lender may also make disclosure reasonably required by any bona fide Participant, potential Assignee or potential Participant (each, a "Transferee"), or as required or requested by any governmental authority or representative thereof, or pursuant to legal process, or to its accountants, lawyers and other advisors, and shall require any Transferee to agree, in a writing to which the Borrower shall be the third party beneficiary, to hold all such information as confidential to the extent required by the first sentence of this Section 11.14. [Remainder of Page Intentionally Blank] -57- 62 IN WITNESS WHEREOF, the undersigned have duly executed this Third Amended and Restated Revolving Credit Agreement under seal as of the date first set above. LEASECOMM CORPORATION By: /s/ Richard F. LaTour Richard F. LaTour Chief Financial Officer BANKBOSTON, N.A., individually and as Agent By: /s/ Jeffrey G. Millman Jeffrey G. Millman Vice President UNION BANK OF CALIFORNIA, N.A. By: Title: EUROPEAN AMERICAN BANK By: Title: NATIONAL CITY BANK By: Title: CITIZENS BANK OF MASSACHUSETTS By: Title: 63 IN WITNESS WHEREOF, the undersigned have duly executed this Third Amended and Restated Revolving Credit Agreement under seal as of the date first set above. LEASECOMM CORPORATION By: ---------------------------------------------- Richard F. LaTour Chief Financial Officer BANKBOSTON, N.A., individually and as Agent By: ---------------------------------------------- Jeffrey G. Millman Vice President UNION BANK OF CALIFORNIA, N.A. By: /s/ Alison A. Mason ---------------------------------------------- Title: Alison A. Mason Vice President EUROPEAN AMERICAN BANK By: ---------------------------------------------- Title: NATIONAL CITY BANK By: ---------------------------------------------- Title: CITIZENS BANK OF MASSACHUSETTS By: ---------------------------------------------- Title: 64 IN WITNESS WHEREOF, the undersigned have duly executed this Third Amended and Restated Revolving Credit Agreement under seal as of the date first set above. LEASECOMM CORPORATION By: ---------------------------------------------- Richard F. LaTour Chief Financial Officer BANKBOSTON, N.A., individually and as Agent By: ---------------------------------------------- Jeffrey G. Millman Vice President UNION BANK OF CALIFORNIA, N.A. By: ---------------------------------------------- Title: EUROPEAN AMERICAN BANK By: /s/ (Illegible) ---------------------------------------------- Title: Vice President NATIONAL CITY BANK By: ---------------------------------------------- Title: CITIZENS BANK OF MASSACHUSETTS By: ---------------------------------------------- Title: 65 IN WITNESS WHEREOF, the undersigned have duly executed this Third Amended and Restated Revolving Credit Agreement under seal as of the date first set above. LEASECOMM CORPORATION By: ---------------------------------------------- Richard F. LaTour Chief Financial Officer BANKBOSTON, N.A., individually and as Agent By: ---------------------------------------------- Jeffrey G. Millman Vice President UNION BANK OF CALIFORNIA, N.A. By: ---------------------------------------------- Title: EUROPEAN AMERICAN BANK By: ---------------------------------------------- Title: NATIONAL CITY BANK By: /s/ (Illegible) ---------------------------------------------- Title: Vice President CITIZENS BANK OF MASSACHUSETTS By: ---------------------------------------------- Title: 66 IN WITNESS WHEREOF, the undersigned have duly executed this Third Amended and Restated Revolving Credit Agreement under seal as of the date first set above. LEASECOMM CORPORATION By: ---------------------------------------------- Richard F. LaTour Chief Financial Officer BANKBOSTON, N.A., individually and as Agent By: ---------------------------------------------- Jeffrey G. Millman Vice President UNION BANK OF CALIFORNIA, N.A. By: ---------------------------------------------- Title: EUROPEAN AMERICAN BANK By: ---------------------------------------------- Title: NATIONAL CITY BANK By: ---------------------------------------------- Title: CITIZENS BANK OF MASSACHUSETTS By: /s/ [ILLEGIBLE] ---------------------------------------------- Title: Asst. Vice President 67 KEY BANK By: /s/ [ILLEGIBLE] ---------------------------------------------- Title: Vice President FIRSTAR BANK By: ---------------------------------------------- Title: 68 KEY BANK By: Title: FIRSTAR BANK By: /s/ Jon B. Beggs Title: Jon B. Beggs, Vice President 69 SCHEDULE 1 Commitments of the Lenders Lender Commitment ------ ---------- BankBoston, N.A. $ 35,000,000 Union Bank of California, N.A. $ 10,000,000 350 California Street, 6th Floor San Francisco, CA 94104 Attention: Ms. Alison Mason, Vice President Telephone: (415) 705-7452 Facsimile: (415) 705-7566 European American Bank $ 10,000,000 400 Oak Street Garden City, NY 11530 Attention: Mr. Christopher Czaja, Vice President Telephone: (516) 357-1191 Facsimile: (516) 357-1784 National City Bank $ 20,000,000 1345 Chestnut Street, 18th Floor Philadelphia, PA 19107 Attention: Theresa Smith, Vice President Telephone: (267) 256-4084 Facsimile: (267) 256-4001 Citizens Bank of Massachusetts $ 20,000,000 100 Summer Street Boston, MA 02110 Attention: Mr. Christopher E. DelSignore, Vice President Telephone: (617) 422-8261 Facsimile: (617) 422-8533 Key Bank $ 25,000,000 One Canal Plaza Portland, ME 04101 Attention: Mr. Victor Levesque, Relationship Manager Telephone: (207) 847-7065 70 Firstar Bank $ 30,000,000 777 East Wisconsin Avenue Milwaukee, WI 53202 Attention: Mr. Jon Beggs, Vice President Telephone: (414) 765-4411 Facsimile: (414) 765-6236 $150,000,000 ============ 71 EXHIBIT A Revolving Credit Note $_______________ December 21, 1999 FOR VALUE RECEIVED, the undersigned (the "Borrower") absolutely and unconditionally promises to pay to the order of [LENDER]("Payee") at the head office of BankBoston, N.A., as Agent, at 100 Federal Street, Boston, Massachusetts 02110; (a) on the Borrowing Base Maturity Date (as defined in the Revolving Credit Agreement referred to below), the principal amount of ____________________ ($___________) or, if less, the aggregate unpaid principal amount of Revolving Credit Loans advanced by the Payee to the Borrower pursuant to the Third Amended and Restated Revolving Credit Agreement dated as of December 21, 1999, as amended or supplemented from time to time (the "Revolving Credit Agreement"), by and among the Borrower, the Agent and the Lenders; provided, however that if the Lenders shall not have offered to extend the Borrowing Base Maturity Date and if no material Default shall have occurred and be continuing on the Borrowing Base Maturity Date, then at the option of the Borrower the unpaid principal balance of the Revolving Credit Loans shall be payable in thirty six (36) equal consecutive monthly installments on the first day of each month, commencing on the first day of the month following the Borrowing Base Maturity Date, with the unpaid principal balance of the Conversion Term Loan, together with all unpaid interest thereon and all fees and other amounts due with respect thereto, due and payable in full on the Conversion Term Loan Maturity Date; and (b) interest on the principal balance hereof from time to time outstanding from the date hereof through and including the date on which such principal amount is paid in full, at the times and at the rates provided in the Revolving Credit Agreement. This Revolving Credit Note evidences borrowings under, is subject to the terms and conditions of and has been issued by the Borrower in accordance with the terms of the Revolving Credit Agreement and is one of the Revolving Credit Notes referred to therein. The Payee and any holder hereof is entitled to the benefits and subject to the conditions of the Revolving Credit Agreement and may enforce the agreements of the Borrower contained therein, and any holder hereof may exercise the respective remedies provided for thereby or otherwise available in respect thereof, all in accordance with the respective terms thereof. This Revolving Credit Note is secured by the Security Documents described in the Revolving Credit Agreement. [TO BE INCLUDED IN BKB'S NOTE]. This Revolving Credit Note amends, restates and supersedes that certain Amended and Restated Revolving Credit Note dated January 27, 1999, as amended, made by the Borrower, payable to the order of Payee, in the original principal face amount of $___________ (the "Old Note"). Borrower confirms that the indebtedness A-1 72 outstanding under and evidenced by the Old Note has not been repaid, satisfied or discharged, but for all purposes has been amended and extended as provided herein and that the indebtedness evidenced by this Revolving Credit Note constitutes, in part, the same indebtedness that was outstanding under the Old Note prior to such amendment and extension. All capitalized terms used in this Revolving Credit Note and not otherwise defined herein shall have the same meanings herein as in the Revolving Credit Agreement. The Borrower has the right in certain circumstances and the obligation under certain other circumstances to repay or prepay the whole or part of the principal of this Revolving Credit Note on the terms and conditions specified in the Revolving Credit Agreement. If any Default shall occur, the entire unpaid principal amount of this Revolving Credit Note and all of the unpaid interest accrued thereon may become or be declared due and payable in the manner and with the effect provided in the Revolving Credit Agreement. The Borrower and every endorser and guarantor of this Revolving Credit Note or the obligation represented hereby waive presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Revolving Credit Note, assent to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral and to the addition or release of any other party or Person primarily or secondarily liable. This Revolving Credit Note shall be deemed to take effect as a sealed instrument under the laws of The Commonwealth of Massachusetts and for all purposes shall be construed in accordance with such laws (without regard to conflicts of laws rules). IN WITNESS WHEREOF, the Borrower has caused this Revolving Credit Note to be signed under seal by its duly authorized officer as of the day and year first above written. LEASECOMM CORPORATION By:___________________________ Title: A-2 73 EXHIBIT B BankBoston, N.A., as Agent 100 Federal Street Boston, MA 02110 Re: Third Amended and Restated Revolving Credit Agreement Dated as of December 21, 1999 (the "Agreement") Ladies and Gentlemen: Pursuant to Section 2.4 of the Agreement the undersigned hereby confirms its request made on ____________ for a [Base Rate] [Eurodollar] [Money Market] Loan in the amount of $ on __________________. [The Interest Period applicable to said Loan will be [one][two][three][six][twelve] months.]* [Said Loan represents a conversion of the [Base Rate] [Eurodollar] Loan in the same amount made on ________.** The representations and warranties contained or referred to in Section IV of the Agreement are true and accurate on and as of the effective date of the Loan as though made at and as of such date (except to the extent that such representations and warranties expressly relate to an earlier date); and no Default has occurred and is continuing or will result from the Loan. LEASECOMM CORPORATION By:______________________ Title: ___________________ Date * To be inserted in any request for a Eurodollar Loan. **To be inserted in any request for a conversion. 74 EXHIBIT C DISCLOSURE MICROFINANCIAL INCORPORATED LEGAL PROCEEDINGS Management believes, after consultation with counsel, that the allegations against the Company included in the lawsuits described below are without merit, and the Company is vigorously defending each of the allegations. The Company also is subject to claims and suits arising in the ordinary course of business. At this time, it is not possible to estimate the ultimate loss or gain, if any, related to these lawsuits, nor if any such loss will have a material adverse effect on the Company's results of operations or financial position. I. On August 24, 1999, a purported class action lawsuit was filed in Middlesex Superior Court for The Commonwealth of Massachusetts against the Company and its wholly-owned subsidiary Leasecomm Corporation ("Leasecomm"). The complaint has been amended four times, most recently by the Fourth Amended Complaint and Jury Claim filed on or about November 4,1999 (as amended, the "Clark Complaint"). The purported class consists of individuals and businesses that have been sued by Leasecomm in a Massachusetts court for allegedly breaching Leasecomm's Non Cancellable Equipment Lease Agreement or Non Cancellable Lease Agreement (the "Lease Agreements") containing a particular forum selection clause. The forum selection clause is an agreement between the parties to the Lease Agreements to submit to the jurisdiction of the courts of The Commonwealth of Massachusetts for the bringing of any suit or other proceeding. The purported class would be limited to individuals and businesses that: have no place of business or residence in New England; have been sued in a Massachusetts court for breach of the Lease Agreements; had no more than three employees as of the date of the Lease Agreement; had been in existence for no more than three years as of the date of the Lease Agreement; and had entered into Lease Agreements with scheduled monthly lease payments which aggregated to less than $5,000. The Clark Complaint alleges that enforcement of the forum selection clause is not fair or reasonable because, among other things, litigation in Massachusetts is prohibitively costly and time consuming for purported class members, purported class members have no choice but to enter into the Lease Agreement because of Leasecomm's greater bargaining power, and purported class members allegedly have valid defenses to the claims asserted against them by Leasecomm. The Plaintiffs seek: a declaration that the forum selection clause is not fair or reasonable as to purported class members and that the Massachusetts courts lack personal jurisdiction over purported class members; dismissal without prejudice of all cases pending in Massachusetts against purported class members; a C-1 75 permanent injunction preventing Leasecomm and its affiliates from bringing suit in Massachusetts against purported class members; a permanent injunction preventing Leasecomm or its affiliates from entering into Lease Agreements containing the forum selection clause; unspecified monetary damages against Leasecomm and the Company in favor of purported class members equal to double or treble the moneys collected in connection with lawsuits filed against purported class members in Massachusetts courts, together with attorneys' fees and costs. The matter is in its earliest stage and there can be no assurance as to its eventual outcome. However, on three prior occasions Massachusetts' intermediate appellate courts have enforced this forum selection clause. II. On June 3, 1999 a purported class action lawsuit was filed in Middlesex Superior Court in The Commonwealth of Massachusetts against Leasecomm. The complaint was amended on or about July 26, 1999 (as amended, the "McKenzie-Pollock Complaint"). On September 3, 1999 Leasecomm removed the action to the United States District Court for the District of Massachusetts. The purported class consists of individuals who entered into a Lease Agreement with Leasecomm between June 4, 1993 and the date of the McKenzie-Pollock Complaint. Plaintiffs allege: that Leasecomm causes individuals to enter into non-cancellable, long-term leases when there is no reasonable expectation that most of the individuals would need or use the equipment for the duration of the lease term; that Leasecomm conceals or misrepresents the nature of the terms of its Lease Agreements; that the Lease Agreements are non-negotiable adhesion contracts which are oppressive and unfair; that the cost of acquiring the equipment through Leasecomm is often double or triple the retail cost of the equipment; that Leasecomm violates state usury laws; that Leasecomm engages in unfair debt collection practices; that Leasecomm brings lawsuits against purported class members in Massachusetts even though it has no jurisdiction over them in Massachusetts courts; that Leasecomm fails to make proper service and then files pleadings which state that proper service was made, thereby obtaining default judgments against certain members of the purported class; that Leasecomm conspired with its salespersons to cause members of the purported class to enter into unconscionable leases by concealing and misrepresenting their terms; that Leasecomm failed to comply with the Truth in Lending Act and the Massachusetts Consumer Credit Cost Disclosure Act; and that Leasecomm has engaged in unfair trade practices in violation of the Massachusetts consumer protection statute. Plaintiffs and the members of the purported class seek: unspecified damages for monetary losses allegedly sustained by them as a result of this conduct by Leasecomm and reimbursement of costs and attorneys' fees; treble damages and other punitive damages; rescission of the Lease Agreements, or a declaration that they are void, and return of all moneys paid to Leasecomm; and damages for unjust enrichment. C-2 76 Leasecomm filed a motion to dismiss the McKenzie-Pollock Complaint in its entirety on September 21, 1999, on the grounds that the plaintiffs' allegations are legally insufficient and, in any event, should have been raised in court proceedings which predate the commencement of this action. In response, on or about November 10, 1999, plaintiffs filed a Motion to Dismiss Federal Claims and to Remand to State Court. By this motion, plaintiffs (1) agree that their Truth in Lending Act, Massachusetts Consumer Credit Cost Disclosure Act, and Fair Debt Collection Practices Act claims should be dismissed because the Leasecomm leases are not consumer transactions, and (2) seek to have the federal court not decide the remaining grounds of Leasecomm's Motion to Dismiss and transfer the case to the Middlesex Superior Court. Plaintiffs' motion and Leasecomm's Motion to Dismiss are both pending, with responses to be filed. C-3 77 EXHIBIT D LEASECOMM CORPORATION REPORT OF RESPONSIBLE OFFICER LEASECOMM CORPORATION (the "Borrower") HEREBY CERTIFIES that: This Report is furnished pursuant to Section 5.1(e) of the Third Amended and Restated Revolving Credit Agreement dated as of December 21, 1999 (the "Agreement"). Unless otherwise defined herein, the terms used in this Report have the meanings given to them in the Agreement. As required by Section 5.1(a) and (b) of the Agreement, consolidated and consolidating financial statements of the Parent and its Subsidiaries for the [year/month] ended ________________ (the "Financial Statements") prepared in accordance with GAAP consistently applied accompany this Report. The Financial Statements present fairly the consolidated financial position of the Parent and its Subsidiaries as at the date thereof and the consolidated results of operations of the Parent and its Subsidiaries for the period covered thereby (subject only to normal recurring year-end adjustments). The figures set forth in Schedule A hereto for determining compliance with the financial covenants contained in the Agreement are true and complete as of the date hereof. The activities of the Borrower and its Subsidiaries during the period covered by the Financial Statements have been reviewed by the undersigned Responsible Officer or by employees or agents under his immediate supervision. Based on such review, to the best knowledge and belief of the undersigned Responsible Officer, and as of the date of this Report, no Default has occurred.* WITNESS my hand this _____ day of _____________. LEASECOMM CORPORATION By:___________________________ Title: - ------------- * If a Default has occurred, this paragraph is to be modified with an appropriate statement as to the nature thereof, the period of existence thereof and what action the Borrower has taken, is taking, or proposes to take with respect thereto. 78 EXHIBIT E ASSIGNMENT AND JOINDER AGREEMENT Dated _________________________ Reference is made to the Third Amended and Restated Revolving Credit Agreement dated as of December 21, 1999 (the "Revolving Credit Agreement") between Leasecomm Corporation (the "Borrower"), the Lenders (as defined in the Revolving Credit Agreement) and BankBoston, N.A., as Agent. Terms defined in the Revolving Credit Agreement are used herein with the same meanings. _____________________________________ (the "Assignor") and __________________________________________ (the "Assignee") agree as follows: 1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, a ____% interest in and to all of the Assignor's rights and obligations under the Revolving Credit Agreement as of the Effective Date (as defined below). As a result of such assignment, the Commitment of the Assignor shall be $______ and the Commitment of the Assignee shall be $________. Concurrently herewith, the Assignee is remitting to the Assignor, in federal funds, the amount of its participation in each such outstanding Loan. 2. The Assignor (i) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Revolving Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Revolving Credit Agreement or any other instrument or document furnished pursuant thereto, other than that the Assignor is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim, and (ii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observation by the Borrower of any of its obligations under the Revolving Credit Agreement or any other instrument or document furnished pursuant thereto. 3. The Assignee (i) confirms that it has received a copy of the Revolving Credit Agreement, together with copies of such financial statements and other documents and information as it has deemed necessary to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Agent, the Assignor or any other Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Revolving Credit Agreement; (iii) appoints and authorizes the Agent to take such action as Agent on its behalf and to exercise such powers under the Revolving Credit Agreement as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Revolving Credit Agreement are required to be performed by it. E-1 79 4. The Effective Date of this Agreement shall be ____________________ (the "Effective Date"). 5. From and after the Effective Date, (i) the Assignee shall be a party to the Revolving Credit Agreement and, to the extent rights and obligations have been transferred to it by this Agreement, shall have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent its rights and obligations have been transferred to the Assignee by this Agreement, relinquish its rights and be released from its obligations under the Revolving Credit Agreement. If the Assignor is holding any Revolving Credit Note, the Assignor shall, promptly after the Effective Date, surrender such Revolving Credit Note to the Agent and the Agent shall cause the Borrower to issue new Revolving Credit Notes in accordance with Section 9.1 of the Revolving Credit Agreement. 6. From and after the Effective Date, the Agent shall hold in trust all payments it receives in respect of the interest assigned hereby and shall promptly remit such payments to the Assignee. 7. This Assignment and Joinder Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts (without regard to conflicts of laws rules). [NAME OF ASSIGNOR] By:___________________________ Title: [NAME OF ASSIGNEE] By:___________________________ Title: E-2 80 EXHIBIT F-1 FORM OF DEALER AGREEMENT (see attached copy) 81 DEALER AGREEMENT This Dealer Agreement entered into this ______ day of _____ 1995, by and between Leasecomm Corporation, Inc., 950 Winter Street, Waltham, MA 02154, 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. Dealers'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. (b) Bill 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. 950 Winter Street Waltham, MA 02154 Tel 1-800-515-LEASE Fax (617) 672-6879 [LEASECOMM LOGO] -1- 82 (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 runaway 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 affected 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 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. -2- 83 (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. (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. -3- 84 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 in accordance with the terms of this Agreement and within the guidelines of the Dealer's rate program, other than as provided for in Section 2c. 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 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 agrees 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. -4- 85 12. ENTIRE AGREEMENT. This Agreement sets forth 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: _____________________________ DEALRAGR.DOC -5- 8/1/95 86 EXHIBIT F-2 FORM OF SECURITY MONITORING AGREEMENT (see attached copy) EX-10.34 3 FIFTH AMENDMENT TO OFFICE LEASE AGREEMENT-6/29/99 1 EXHIBIT 10.34 FIFTH AMENDMENT TO LEASE ------------------------ (Deletion of Portion of Premises) THIS FIFTH AMENDMENT TO LEASE ("Amendment") is executed as of June ___, 1999, between BAY COLONY CORPORATE CENTER LLC, a Delaware limited liability company ("Landlord"), and LEASECOMM CORPORATION, a Massachusetts corporation, and MICROFINANCIAL, INC., a Massachusetts corporation (collectively "Tenant"), jointly and severally. RECITALS -------- A. Reference is made to that certain lease between Desmond Taljaard and Howard Friedman, Trustees of London & Leeds NDAI Bay Colony II Realty Trust ("Original Landlord"), as landlord, and LeaseComm Corporation and Boyle Leasing Technologies, Inc., a Massachusetts corporation ("Boyle Leasing"), jointly and severally (collectively, "Original Tenant"), as tenant, dated April 14, 1994, pursuant to which Original Tenant leased from Original Landlord certain premises on the fourth (4th) floor of the building located at 950 Winter Street, Waltham, Massachusetts (the "Building"). The lease was amended by (i) an Amendment to Lease between Original Landlord and Original Tenant, dated as of November 1984, pursuant to which certain additional premises on the fourth (4th) floor of the Building were added to the premises under the lease, (ii) that certain Second Amendment to Lease between Original Landlord and Original Tenant, dated as of February 28, 1995, pursuant to which, among other matters, the rent payable with respect to the additional fourth (4th) floor premises was increased and the effective date for the increase in Basic Rent was postponed, (iii) that certain Third Amendment to Lease between Original Tenant and Shorenstein Management, Inc., as Trustee for SRI Two Realty Trust ("SMI") (as successor in interest to Original Landlord), dated as of April 17, 1996, pursuant to which certain additional premises on the second (2nd) floor of the Building were added to the premises under the lease (the "2nd Floor Premises"), and (iv) that certain Fourth Amendment to Lease between Landlord and Tenant, dated as of June 14, 1999 (the "Fourth Amendment"), pursuant to which, among other things, the lease term was extended for the portion of the fourth (4th) floor premises (the "4th Floor Premises"). The lease, as so amended, is referred to herein as the "Lease." Capitalized terms not otherwise defined herein shall have the meanings given them in the Lease. B. The Lease term is currently scheduled to expire on July 31, 1999, with respect to the 2nd Floor Premises, and on July 31, 2004, with respect to the 4th Floor Premises. Landlord and Tenant presently desire to amend the Lease to accelerate the date on which the Lease will terminate with respect to the 2nd Floor Premises, upon and subject to the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as follows: 1. EARLY DELETION OF 2ND FLOOR PREMISES. The Term of the Lease with respect to the 2nd Floor Premises shall expire on June 16, 1999, instead of July 31, 1999. Accordingly, Paragraph 1.b. and Paragraph 2 of the Fourth Amendment are hereby deleted and replaced with the following: b. PREMISES REDUCED FOR EXTENDED TERM. The Term of the Lease with respect to that portion of the Premises located on the second (2nd) floor of the Building (referred to herein as the "2nd Floor Premises") shall expire on June 16, 1999. Accordingly, effective as of June 17, 1999, (i) the term "Premises" and the term "Leased Premises" shall refer only to the 4th Floor Premises, (ii) the terms "Size of Space" and "Tenant's Rentable Area" shall mean 21,656 rentable square feet, and (iii) Tenant's Tax and Operating Percentage, as set forth in Article I of the Lease, shall be 7.886%. 1 2 2. RENT. a. BASE RENT. Commencing on June 17, 1999, the Basic Rent described in Article I and Section 3.1 of the Lease shall be the respective sums set forth as follows: Period Basic Rent ------ ---------- Rent June 17, 1999, through July 31, 2001. $55,944.67 per month August 1, 2001, through July 31, 2002. $57,749.33 per month August 1, 2002, through July 31, 2004. $59,554.00 per month b. REAL ESTATE TAXES AND OPERATING EXPENSES. Effective as of August 1, 1999, the Operating Expense Base described in Article I and Section 6.1 of the Lease shall be the Operating Expenses incurred on account of calendar year 1999, and the Tax Base described in Article I and Section 5.1 of the Lease shall be the Taxes incurred on account of the fiscal tax year ending June 30, 2000. Notwithstanding the provisions of Sections 5.1 and 6.2 of the Lease to the contrary, Tenant's Tax Excess and Tenant's Operating Expense Excess shall not be payable with respect to the period commencing on August 1, 1999, and ending on July 31, 2000. c. ELECTRICAL CHARGE. Effective as of June 17, 1999, the Tenant's Electrical Charge described in Article I and Section 3.1 of the Lease shall be the sum of One Thousand Seven Hundred Fourteen and 96/100 Dollars ($1,714.42) per month (which is $0.95 per rentable square foot per annum). 2. TERMINATION FEE. In consideration for the early termination of the Lease with respect to the 2nd Floor Premises, Tenant shall pay Landlord the amount of Twenty-Three Thousand Two Hundred Seven and 16/100 Dollars ($23,207.16) as a termination fee, which amount shall be deemed rent payable under the Lease and shall be payable no later than July 1, 1999. 3. AUTHORITY. If Tenant is a corporation, partnership, trust, association or other entity, Tenant and each person executing this Amendment on behalf of Tenant hereby covenants and warrants that (a) Tenant is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (b) Tenant has and is duly qualified to do business in the state in which the Real Property is located, (c) Tenant has full corporate, partnership, trust, association or other appropriate power and authority to enter into this Amendment and to perform all Tenant's obligations under the Lease, as amended by this Amendment, and (d) each person (and all of the persons if more than one signs) signing this Amendment on behalf of Tenant is duly and validly authorized to do so. 4. REAL ESTATE BROKERS. Tenant represents and warrants that it has negotiated this Amendment directly with Shorenstein Management, Inc. and has not authorized or employed, or acted by implication to authorize or to employ, any other real estate broker or salesman to act for Tenant in connection with this Amendment other than Fallon, Hines & O'Connor. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees and costs incurred in defending against the same, arising out of a breach or failure of the foregoing warranty and representation. 5. NO OFFER. Submission of this instrument for examination and signature by Tenant does not constitute an offer to lease or to amend the Lease, or an reservation of or option for lease or to amend the Lease, and is not effective as a lease amendment or otherwise until execution and delivery by both Landlord and Tenant. 2 3 6. LEASE IN FULL FORCE AND EFFECT. Except as provided above, the Lease is unmodified hereby and remains in full force and effect. IN WITNESS WHEREOF, the parties have executed this document as of the date and year first above written. Landlord: Tenant: BAY COLONY CORPORATE CENTER LLC, LEASECOMM CORPORATION, a a Delaware limited liability company Massachusetts corporation By: Shorenstein Realty Investors Two, L.P., a California limited partnership, Member By SRI Investors Two, L.P., a By: _____________________________ California limited partnership, General Partner Name:____________________________ By Shorenstein Management, Inc., Title:___________________________ a California corporation, General Partner By_______________________ MICROFINANCIAL, INC., a Douglas W. Shorenstein Massachusetts corporation President By:______________________________ Name:____________________________ Title:___________________________ 3 EX-23.1 4 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statements of MicroFinancial Incorporated on Form S-8 (File No. 333-75801 and File No. 333-77211) of our report dated February 21, 2000, on our audits of the consolidated financial statements of MicroFinancial Incorporated as of December 31, 1998 and 1999, and for the years ended December 31, 1997, 1998, and 1999, which report is included in this Annual Report on Form 10-K. PRICEWATERHOUSECOOPERS LLP Boston, Massachusetts March 30, 2000 EX-27 5 FINANCIAL DATA SCHEDULE
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE DECEMBER 31, 1999 AUDITED CONSOLIDATED FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 0000827230 MICROFINANCIAL INCORPORATED 1 U.S. DOLLARS 12-MOS DEC-31-1999 JAN-01-1999 DEC-31-1999 1 11,062 0 267,906 41,719 0 0 15,917 7,713 265,856 0 154,109 0 0 133 79,219 265,856 0 98,461 0 24,416 0 37,836 10,375 18,237 7,509 0 0 0 0 10,728 0.84 0.83
EX-99 6 FINANCIAL STATEMENTS 1 Exhibit 99 MICROFINANCIAL INCORPORATED INDEX TO CONSOLIDATED FINANCIAL STATEMENTS Report of Independent Accountants F-2 Financial Statements: Consolidated Balance Sheets as of December 31, 1998 and 1999 F-3 Consolidated Statements of Operations for the years ended December 31, 1997, 1998 and 1999 F-4 Consolidated Statements of Stockholders' Equity for the years ended December 31, 1997, 1998 and 1999 F-5 Consolidated Statements of Cash Flows for the years ended December 31, 1997, 1998 and 1999 F-6 Notes to Consolidated Financial Statements F-8
F-1 2 REPORT OF INDEPENDENT ACCOUNTANTS To the Board of Directors and Stockholders of MicroFinancial Incorporated: In our opinion, the accompanying consolidated balance sheets and the related statements of income, stockholders' equity and cash flows present fairly, in all material respects, the financial position of MicroFinancial Incorporated (the "Company") at December 31, 1998 and 1999, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 1999 in conformity with accounting principles generally accepted in the United States. These financial statements are the responsibility of the Company's management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with auditing standards generally accepted in the United States, which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for the opinion expressed above. PRICEWATERHOUSECOOPERS LLP Boston, Massachusetts February 21, 2000 F-2 3 MICROFINANCIAL INCORPORATED CONSOLIDATED BALANCE SHEETS (in thousands) DECEMBER 31, ----------------------------- 1998 1999 --------- --------- ASSETS Net investments in leases and loans: Receivables due in installments $251,060 $321,578 Estimated residual value 17,562 21,070 Initial direct costs 4,260 8,164 Loans receivable 12,253 20,073 Less: Advance lease payments and deposits (1,081) (2,164) Unearned income (74,520) (100,815) Allowance for credit losses (24,850) (41,719) ---------------------------- Net investment in leases and loans $184,684 $226,187 Investments in service contracts 8,920 14,250 Cash and cash equivalents 6,817 11,062 Property and equipment, net 6,747 7,713 Other assets 3,086 6,644 ---------------------------- Total assets $210,254 $265,856 ============================ LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY Notes payable $130,421 $144,871 Subordinated notes payable 24,421 9,238 Capitalized lease obligations 774 1,244 Accounts payable 149 339 Dividends payable 346 514 Other liabilities 5,481 4,748 Income taxes payable 625 3,544 Deferred income taxes payable 18,554 22,520 ---------------------------- Total liabilities 180,771 187,018 ============================ Commitments and contingencies -- -- Redeemable convertible preferred stock (liquidation preference $12 and $0, at December 31, 1998 and 1999, respectively) -- -- Stockholders' equity: Common Stock 99 133 Additional paid-in capital 1,816 47,920 Retained earnings 27,956 36,656 Treasury stock, at cost (138) (5,777) Notes receivable from officers and employees (250) (94) ---------------------------- Total stockholders' equity 29,483 78,838 ---------------------------- Total liabilities and stockholder's equity $210,254 $265,856 ============================ The accompanying notes are an integral part of the consolidated financial statements F-3 4 MICROFINANCIAL INCORPORATED CONSOLIDATED STATEMENTS OF OPERATIONS (in thousands, except per share data) FOR THE YEARS ENDED DECEMBER 31, --------------------------------- 1997 1998 1999 ------- ------- ------- Revenues: Income on financing leases and loans $45,634 $47,341 $55,545 Income on service contracts 501 2,565 6,349 Rental income 10,809 16,118 21,582 Loss and damage waiver fees 5,448 5,441 5,660 Service fees 5,788 5,035 9,325 --------------------------------- Total revenues 68,180 75,500 98,461 --------------------------------- Expenses: Selling general and administrative 17,252 20,061 24,416 Provision for credit losses 21,713 19,075 37,836 Depreciation and amortization 3,787 5,076 7,597 Interest 11,890 12,154 10,375 --------------------------------- Total expenses 54,642 53,366 80,224 --------------------------------- Income before provision for income taxes 13,538 20,134 18,237 Provision for income taxes 5,886 8,210 7,509 --------------------------------- Net Income $ 7,652 $11,924 $10,728 ================================= Net Income per common share - basic $ 0.78 $ 1.21 $ 0.84 ================================= Net Income pre common share - diluted $ 0.76 $ 1.19 $ 0.83 ================================= Dividends per common share $ 0.115 $ 0.135 $ 0.155 ================================= The accompanying notes are an integral part of the consolidated financial statements F-4 5 MICROFINANCIAL INCORPORATED CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY for the years ended December 31, 1997, 1998, and 1999 (in thousands, except share data)
NOTES COMMON STOCK ADDITIONAL TREASURY STOCK RECEIVABLE TOTAL -------------------- PAID-IN RETAINED ---------------- FROM STOCKHOLDERS' SHARES AMOUNT CAPITAL EARNINGS SHARES AMOUNT OFFICERS EQUITY ----------------------------------------------------------------------------------------- Balance at December 31, 1996 9,683,340 $97 $ 1,442 $10,841 156,940 $ (100) $(101) $12,179 Exercise of stock options 120,910 1 162 163 Common stock dividends (1,127) (1,127) Purchase of treasury stock (5,250) 5,250 (38) (38) Notes receivable from officers and employees (63) (63) Net income 7,652 7,652 ----------------------------------------------------------------------------------------- Balance at December 31, 1997 9,799,000 98 1,604 17,366 162,190 (138) (154) 18,766 Exercise of stock options 114,166 1 212 213 Common stock dividends (1,334) (1,334) Conversion of preferred stock to common stock 19,600 Notes receivable from officers and employees (86) (86) Net income 11,924 11,924 ----------------------------------------------------------------------------------------- Balance at December 31, 1998 9,932,766 99 1,816 27,956 162,190 (138) (250) 29,483 Initial public offering 3,400,000 34 46,082 46,116 Exercise of stock options 14,960 22 22 Common stock dividends (2,028) (2,028) Treasury stock repurchased 505,600 (5,639) (5,639) Notes receivable from officers and employees 156 156 Net income 10,728 10,728 ----------------------------------------------------------------------------------------- Balance at December 31, 1999 13,347,726 133 $47,920 $36,656 667,790 $(5,777) $ (94) $78,838 =========================================================================================
The accompanying notes are an integral part of the consolidated financial statements F-5 6 MICROFINANCIAL INCORPORATED CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands)
MICROFINANCIAL INCORPORATED FOR THE YEAR ENDED DECEMBER 31, -------------------------------------- 1997 1998 1999 ---------- ---------- ---------- Cash flows from operating activities: Cash received from customers $ 118,444 $ 139,215 $ 157,264 Cash paid to suppliers and employees (29,113) (31,993) (35,244) Interest paid (12,334) (11,648) (10,740) Interest received 396 399 3,443 -------------------------------------- Net cash provided by operating activities 77,393 95,973 114,723 -------------------------------------- Cash flows from investing activities: Investment in lease contracts (71,943) (83,786) (116,808) Investment in direct costs (2,354) (4,070) (8,295) Investment in service contracts (2,972) (8,080) (9,105) Investment in loans receivable (2,538) (11,683) (11,857) Investment in fixed assets (288) (459) (1,319) Issuance of notes from officers and employees (150) (145) (2) Repayment of notes from officers 87 59 158 Investment in notes receivable (160) (228) (613) Repayment of notes receivable 191 281 254 -------------------------------------- Net cash used in investing activities (80,127) (108,111) (147,587) -------------------------------------- Cash flows from financing activities: Proceeds from secured debt 56,639 96,817 121,680 Repayment of secured debt (56,194) (83,135) (108,003) Proceeds from refinancing of secured debt 203,580 343,499 460,381 Prepayment of secured debt (203,580) (343,499) (460,381) Proceeds from short term demand notes payable 497 280 890 Repayment of short term demand notes payable (315) (369) (117) Proceeds from issuance of subordinated debt 2,123 1,200 0 Repayment of subordinated debt (2,891) (3,261) (15,247) Proceeds from sale of common stock 0 0 46,116 Proceeds from exercise of common stock options 162 162 22 Repayment of capital leases (697) (709) (733) Purchase of treasury stock (38) 0 (5,639) Payment of dividends (1,075) (1,282) (1,860) -------------------------------------- Net cash provided by (used in) financing activities (1,789) 9,703 37,109 -------------------------------------- Net increase (decrease) in cash and cash equivalents: (4,523) (2,435) 4,245 Cash and cash equivalents, beginning of period: 13,775 9,252 6,817 -------------------------------------- Cash and cash equivalents, end of period: $ 9,252 $ 6,817 $ 11,062 ======================================
(continued on following page) The accompanying notes are an integral part of the consolidated financial statements. F-6 7 MICROFINANCIAL INCORPORATED CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands) (Continued)
FOR THE YEAR ENDED DECEMBER 31, ---------------------------------- 1997 1998 1999 ------- ------- --------- Reconciliation of net income to net cash provided by operating activities: Net Income $ 7,652 $11,924 $ 10,728 Adjustments to reconcile net income to cash provided by operating activities Depreciation and amortization 3,787 5,076 7,597 Provision for credit losses 21,713 19,075 37,836 Recovery of equipment cost and residual value, net of revenue recognized Income 41,334 51,271 52,029 Increase (decrease) in current taxes (1,266) 1,285 2,919 Increase in deferred income taxes 4,897 7,585 3,966 Change in assets and liabilities: Decrease (increase) in other assets (173) (809) 232 (Decrease) increase in accounts payable 65 60 190 Increase (decrease) in accrued liabilities (616) 506 (774) ---------------------------------- Net cash provided by operating activities $77,393 $95,973 $114,723 ================================= Cash paid for income taxes $ 2,254 $146 $ 1,339 ================================= Supplemental disclosure of noncash activities: Property acquired under capital leases $ 246 $ 412 $ 1,203 Accrual of common stock dividends $ 294 $ 346 $ 514
The accompanying notes are an integral part of the consolidated financial statements. F-7 8 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) A. Nature of Business MicroFinancial Incorporated (the "Company") which operates primarily through its wholly-owned subsidiary, Leasecomm Corporation, is a specialized commercial finance company that leases and rents "microticket" equipment and provides other financing services in amounts generally ranging from $900 to $2,500, with an average amount financed of approximately $1,500 and an average lease term of 44 months. The Company does not market its services directly to lessees but sources leasing transactions through a network of independent sales organizations and other dealer-based origination networks nationwide. The Company funds its operations primarily through borrowings under its credit facilities and securitizations. In July 1998, the Company changed its name from Boyle Leasing Technologies, Inc. to MicroFinancial Incorporated. In December 1992, May 1993 and November 1994, Leasecomm Corporation created wholly owned subsidiaries, BLT Finance Corporation I ("BLT I"), BLT Finance Corporation II ("BLT II") and BLT Finance Corporation III ("BLT III"), respectively, which are special purpose corporations for the securitization and financing of lease receivables. While the Company generally does not sell its interests in leases, service contracts or loans to third parties after origination, the Company does, from time to time, contribute certain leases to special purpose corporations for purposes of obtaining financing in connection with its lease receivables. As these transfers do not result in a change in control over the lease receivables, sale treatment and related gain recognition under SFAS No. 125 does not occur. Accordingly, the lease receivable and related liability remain on the balance sheet. During 1997 and 1996, the credit facilities related to the securitization on BLT I and BLT II were paid off, respectively. Both of these subsidiaries were dissolved on December 31, 1997. B. Summary of Significant Accounting Policies Basis of Presentation The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All significant intercompany accounts and transactions have been eliminated in consolidation. Stock Splits On June 16, 1997, the Company's Board of Directors authorized a ten-for-one stock split. This resulted in the issuance of 4,432,824 additional shares of common stock. On June 12, 1998, the Company's Board of Directors authorized a two-for-one stock split to be effective with the Company's initial public offering. The two-for-one stock split resulted in the issuance of 5,047,478 F-8 9 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) additional shares of common stock, including the automatic conversion of 9,800 shares of preferred stock to 19,600 shares of common stock. All share and per share amounts have been restated to reflect these stock splits. Use of Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amount of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amount of revenues and expenses during the reported period. Actual results could differ from those estimates. Cash and Cash Equivalents The Company considers all highly liquid instruments purchased with initial maturities of less than three months to be cash equivalents. Cash equivalents consist principally of overnight investments. Leases and Loans The Company's lease contracts are accounted for as financing leases. At origination, the Company records the gross lease receivable, the estimated residual value of the leased equipment, initial direct costs incurred and the unearned lease income. Residual value is estimated to be 5% of the gross lease receivable. Unearned lease income is the amount by which the gross lease receivable plus the estimated residual value exceeds the cost of the equipment. Unearned lease income and initial direct costs incurred are amortized over the related lease term using the interest method which results in a level rate of return on the net investment in leases. Unamortized unearned lease income and initial direct costs are written off if, in the opinion of management, the lease agreement is determined to be impaired. It is management's opinion given the nature of its business and the large number of small balance lease receivables that a lease is impaired when one of the following occurs: (i) the obligor files for bankruptcy; (ii) the obligor dies and the equipment is returned; or (iii) when an account has become 360 days past due. It is also management's policy to maintain an allowance for credit losses that will be sufficient to provide adequate protection against losses in its portfolio. Management regularly reviews the collectibility of its lease receivables based upon all of its communications with the individual lessees through its extensive collection efforts and through further review of the creditworthiness of the lessee. In conjunction with the origination of leases, the Company may retain a residual interest in the underlying equipment upon termination of the lease. The value of such interests is estimated at inception of the lease and evaluated periodically for impairment. An impairment is recognized when expected cash flows to be realized subsequent to the end of the lease are expected to be less than F-9 10 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) the residual value recorded. Other revenues such as loss and damage waiver and service fees relating to the leases, contracts and loans and rental revenues are recognized as they are earned. Loans are reported at their outstanding principal balance. Interest income on loans is recognized as it is earned. Allowance for Credit Losses The Company maintains an allowance for credit losses on its investment in leases, service contracts and loans at an amount that it believes is sufficient to provide adequate protection against losses in its portfolio. The allowance is determined principally on the basis of the historical loss experience of the Company and the level of recourse provided by such lease, service contract or loan, if any, and reflects management's judgment of additional loss potential considering future economic conditions and the nature and characteristics of the underlying lease portfolio. The Company determines the necessary periodic provision for credit losses taking into account actual and expected losses in the portfolio as a whole and the relationship of the allowance to the net investment in leases, service contracts and loans. Investment in Service Contracts The Company's investments in cancelable service contracts are recorded at cost and amortized over the expected life of the service period, which is seven years. Income on service contracts is recognized monthly as the related services are provided. The Company periodically evaluates whether events or circumstances have occurred that may affect the estimated useful life or recoverability of the investment in service contracts. Property and Equipment Rental equipment is recorded at estimated residual value and depreciated using the straight-line method over a period of twelve months. Office furniture, equipment and capital leases are recorded at cost and depreciated using the straight-line method over a period of three to five years. Leasehold improvements are amortized over the shorter of the life of the lease or the asset. Upon retirement or other disposition, the cost and related accumulated depreciation of the assets are removed from the accounts and the resulting gain or loss is reflected in income. Fair Value of Financial Instruments For financial instruments including cash and cash equivalents, net investment in leases and loans, accounts payable, and other liabilities, it is assumed that the carrying amount approximates fair value due to their short maturity. F-10 11 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) Interest-Rate Hedging Agreements The Company enters into interest-rate hedging agreements to hedge against potential increases in interest rates on the Company's outstanding borrowings. The Company's policy is to accrue amounts receivable or payable under such agreements as reductions or increases in interest expense, respectively. Debt Issue Costs Debt issuance costs incurred in securing credit facility financing are capitalized and subsequently amortized over the term of the credit facility. Income Taxes Deferred income taxes are determined under the liability method. Differences between the financial statement and tax bases of assets and liabilities are measured using the currently enacted tax rates expected to be in effect when these differences reverse. Deferred tax expense is the result of changes in the liability for deferred taxes. The principal differences between assets and liabilities for financial statement and tax return purposes are the treatment of leased assets, accumulated depreciation and provisions for doubtful accounts. The deferred tax liability is reduced by loss carryforwards and alternative minimum tax credits available to reduce future income taxes. New Accounting Pronouncements In March 1998, the American Institute of Certified Public Accountants issued Statement of Position 98-1, "Internal Use Software," ("SOP 98-1") which provides guidance on the accounting for the costs of software developed or obtained for internal use. SOP 98-1 is effective for fiscal years beginning after December 15, 1998. The implementation of SOP 98-1 did not have a material impact on its financial position or results of operations. In June 1998, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 133, "Accounting for Derivative Instruments and Hedging Activities" ("SFAS No. 133"). SFAS No. 133 establishes accounting and reporting standards for derivative instruments and requires that entities recognize all derivatives as either assets or liabilities in the balance sheet and measure those instruments at fair value. SFAS No. 133 is effective for companies with fiscal years beginning after June 15, 1999 and the Company will adopt its provisions in 2000. The Company does not expect the statement to have a material impact on its financial position or results of operations. Reclassification of Prior Year Balances Certain reclassifications have been made to prior years' consolidated financial statements to conform to the current presentation. F-11 12 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) Net Income Per Common Share The Company has adopted Statement of Financial Accounting Standard No. 128, "Earnings Per Share," ("SFAS No. 128") which specifies the computation, presentation and disclosure requirements for net income per common share. Basic net income per common share is computed based on the weighted average number of common shares outstanding during the period, adjusted for a 10-to-1 stock split effected in 1997 and a 2-to-1 stock split which became effective with the Company's initial public offering on February 5, 1999, each as described in Note H. Dilutive net income per common share gives effect to all dilutive potential common shares outstanding during the period. Under SFAS No. 128, the computation of diluted earnings per share does not assume the issuance of common shares that have an antidilutive effect on net income per common share.
FOR THE YEAR ENDED DECEMBER 31, 1997 1998 1999 -------------------------------------------- Net income $ 7,652 $ 11,924 $ 10,728 -------------------------------------------- Shares used in computation: Weighted average common shares outstanding used in computation of net income per common share 9,793,140 9,859,127 12,795,809 Dilutive effect of redeemable convertible preferred stock 19,600 19,600 -- Dilutive effect of common stock options 112,589 153,248 108,422 -------------------------------------------- Shares used in computation of net income per common share - assuming dilution 9,925,329 10,031,975 12,904,231 ============================================ Net income per common share $ 0.78 $ 1.21 $ 0.84 ============================================ Net income per common share - assuming dilution $ 0.76 $ 1.19 $ 0.83 ============================================
F-12 13 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) C. Net Investment in Leases and Loans At December 31, 1999, future minimum payments on the Company's lease receivables are as follows: FOR THE YEAR ENDED DECEMBER 31, - ------------------ 2000.................... $ 143,735 2001.................... 94,639 2002.................... 61,593 2003.................... 21,372 2004.................... 239 ----------------- Total................... $ 321,578 ================= At December 31, 1999, the weighted average remaining life of leases in the Company's lease portfolio is approximately 29 months and the implicit rate of interest is approximately 37%. The Company's business is characterized by a high incidence of delinquencies which in turn may lead to significant levels of defaults. The Company evaluates the collectibility of leases originated and loans based on the level of recourse provided, if any, delinquency statistics, historical loss experience, current economic conditions and other relevant factors. The Company provides an allowance for credit losses for leases which are considered impaired. The Company takes charge-offs against its receivables when such receivables are 360 days past due. Cumulative net charge-offs after recoveries from the Company's inception to December 31, 1999 have totaled 8.1% of total cumulative receivables plus total billed fees over such period. The following table sets forth the Company's allowance for credit losses as of December 31, 1996, 1997, 1998 and 1999 and the related provisions, charge-offs and recoveries for the years ended December 31, 1997, 1998 and 1999. F-13 14 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) Balance at December 31, 1996....................... $23,826 Provision for credit losses........................ 21,713 Charge-offs........................................ 24,290 Recoveries......................................... 5,070 ------ Charge-offs, net of recoveries.................... 19,220 ------- Balance at December 31, 1997....................... $26,319 Provision for credit losses........................ 19,075 Charge-offs........................................ 28,750 Recoveries......................................... 8,206 ------ Charge-offs, net of recoveries.................... 20,544 ------- Balance at December 31, 1998....................... $24,850 Provision for credit losses........................ 37,836 Charge-offs........................................ 35,957 Recoveries......................................... 14,990 ------ Charge-offs, net of recoveries.................... 20,967 ------- Balance at December 31, 1999....................... $41,719 ======= In conjunction with the origination of leases, the Company may retain a residual interest in the underlying equipment upon termination of the lease. The value of such interests is estimated at inception of the lease and evaluated periodically for impairment. The following table sets forth the Company's estimated residual value as of December 31, 1996, 1997, 1998 and 1999 and changes in the Company's estimated residual value as a result of new originations, and lease terminations for the years ended December 31, 1997, 1998 and 1999. Balance of Estimated Residual Value at December 31, 1996........ $14,702 New Originations................................................ 6,056 Lease Terminations.............................................. (3,974) Balance of Estimated Residual Value at December 31, 1997........ $16,784 New Originations................................................ 6,424 Lease Terminations.............................................. (5,646) Balance of Estimated Residual Value at December 31, 1998........ $17,562 New Originations................................................ 9,753 Lease Terminations.............................................. (6,245) Balance of Estimated Residual Value at December 31, 1999........ $21,070 New originations represent the residual value added to the Company's estimated residual value upon origination of new leases. Lease terminations represent the residual value deducted from the F-14 15 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) company's estimated residual value upon the termination of a lease (i) that is bought out during or at the end of the lease term; (ii) upon expiration of the original lease term when the lease converts to an extended rental contract and (iii) that has been charged off by the Company. D. Property and Equipment At December 31, 1998 and 1999, property and equipment consisted of the following: December 31, -------------------- 1998 1999 ------- ------- Rental Equipment ............................. $ 9,676 $10,652 Computer Equipment ........................... 2,821 3,834 Office Equipment ............................. 968 1,137 Leasehold improvements ....................... 218 294 -------------------- 13,683 15,917 Less accumulated depreciation and amortization 6,936 8,204 ==================== Total ........................................ $ 6,747 $ 7,713 ==================== Depreciation and amortization expense totaled $3,787,000, $5,076,000 and $7,597,000 for the years ended December 31, 1997, 1998 and 1999, respectively. At December 31, 1998 and 1999, computer equipment includes $2,141,000 and $2,055,000 respectively, under capital leases. Accumulated amortization related to capital leases amounted to $1,393,000 and $831,000, in 1998 and 1999, respectively. E. Notes Payable Notes Payable On December 21, 1999, the Company entered into a revolving line of credit and term loan facility with a group of financial institutions whereby it may borrow a maximum of $150,000,000 based upon qualified lease receivables. This agreement replaced the two revolving credit agreements in place at December 31, 1998. Outstanding borrowings with respect to the revolving line of credit bear interest based either at Prime for Prime Rate loans or the prevailing rate per annum as offered in the interbank Eurodollar market (Eurodollar) plus 1.75% for Eurodollar Loans. If the Eurodollar loans are not renewed upon their maturity they automatically convert into prime rate loans. The prime rates at December 31, 1997, 1998 and 1999 were 8.50%, 7.75%, and 8.50% respectively. The 90-day Eurodollar rate at December 31, 1999 was 5.9375%. F-15 16 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) At December 31, 1999, the Company had borrowings outstanding under this agreement with the following terms: TYPE RATE AMOUNT - ---- ------- -------- Prime .................................................. 8.5000% $ 14,330 Eurodollar ............................................. 7.9375% 17,500 Eurodollar ............................................. 7.8125% 12,000 Eurodollar ............................................. 8.0000% 65,000 -------- Total Outstanding $108,830 ======== At December 31, 1998, the Company had no borrowings outstanding under this agreement. Outstanding borrowings are collateralized by leases and service contracts pledged specifically to the financial institutions. All balances under the revolving line of credit will be automatically converted to a term loan on September 30, 2001 provided the line of credit is not renewed and no event of default exists at that date. All converted term loans are repayable over 36 monthly installments. The most restrictive covenants of the agreement have minimum net worth and income requirements. In 1998 the Company had a revolving line of credit and term loan facility with a group of financial institutions whereby it could borrow a maximum of $105,000,000 based upon qualified lease receivables. Outstanding borrowings with respect to the revolving line of credit bore interest based either at Prime for Prime Rate loans or London Interbank Offered Rate (LIBOR) plus 1.85% for LIBOR Loans. The 90-day LIBOR at December 31, 1997 and 1998 were 5.91% and 5.2806%, respectively. All outstanding amounts under this facility were repaid on December 21, 1999. F-16 17 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) At December 31, 1998, the Company had borrowings outstanding under the agreement with the following terms: TYPE RATE AMOUNT - ---- ------- -------- Prime .................................................. 7.7500% $ 572 LIBOR .................................................. 7.4068% 15,000 LIBOR .................................................. 7.3939% 20,000 Fixed .................................................. 7.7500% 3,709 ------- Total Outstanding $39,281 ======= In 1998, the Company had an additional revolving credit agreement and term loan with a group of financial institutions whereby it could borrow up to a maximum of $35,000,000 based on eligible lease receivables. Outstanding borrowings with respect to the revolving line of credit bore interest based either at prime for prime rate loans or LIBOR plus 1.85% for LIBOR Loans. If the LIBOR loans were not renewed upon their maturity then they automatically converted into prime rate loans. All outstanding amounts under this facility were repaid on December 21, 1999. At December 31, 1998, the Company had borrowings outstanding under the agreement with the following terms: TYPE RATE AMOUNT - ---- ------- -------- Prime ..................................................... 7.7500% $ 5,943 LIBOR ..................................................... 7.1938% 10,001 LIBOR ..................................................... 7.4103% 7,499 ------- Total Outstanding $23,443 ======= Outstanding borrowings were collateralized by leases and service contracts pledged specifically to the financial institutions. The line of credit was amended and restated in January 1999, and then replaced by the revolving credit loan entered into on December 21, 1999. F-17 18 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) BLT III has three series of notes, the 1996-A Notes, the 1997-A Notes and the 1998-A Notes. In May 1996, BLT III issued the 1996-A Notes in aggregate principal amount of $23,406,563. In August 1997, BLT III issued the 1997-A Notes in aggregate principal amount of $44,763,000 and in November 1998, BLT III issued the 1998-A Notes in aggregate principal amount of $40,769,000. All outstanding amounts under the 1996-A Notes were repaid on October 18, 1999. Outstanding borrowings are collateralized by a specific pool of lease receivables. At December 31, 1999, BLT III had borrowings outstanding under the three series of notes with the following terms: NOTES SERIES EXPIRATION RATE AMOUNT ------------ ---------- ------- ------- 1997-A Notes................ 1/16/2000 6.4200% $ 9,498 1998-A Notes................ 5/17/2004 6.0300% 25,473 ======= Total $34,971 ======= At December 31, 1998, BLT III had borrowings outstanding under the three series of notes with the following terms: NOTES SERIES EXPIRATION RATE AMOUNT ------------ ---------- ------- ------- 1996-A Notes................ 5/16/2000 6.6900% $ 4,752 1997-A Notes................ 1/16/2000 6.4200% 23,944 1998-A Notes................ 5/17/2004 6.0300% 38,703 ======= Total $67,399 ======= At December 31, 1998 and 1999, the Company also had other notes payable which totaled $298,000 and $1,070,000, respectively. The notes are due on demand and bear interest at a rate of prime less 1.00%. Other notes payable include amounts due to stockholders of the Company at December 31, 1998 and 1999 of $248,000 and $1,040,000, respectively. Interest paid to Stockholders under such notes was not material for the years ended December 31, 1997, 1998 and 1999. Subordinated Notes Payable At December 31, 1998 and 1999, the Company also had senior subordinated and subordinated debt outstanding amounting to $24,421,000 and $9,238,000 net of unamortized discounts of $113,000 and $49,000, respectively. This debt is subordinated in the rights to the Company's assets to notes payable to the primary lenders as described above. Outstanding borrowings bear interest ranging from 8.5% to 14% for fixed rate financing and prime plus 3% to 4% for variable F-18 19 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) rate financing. These notes have maturity dates ranging from January 2000 to October 2003. The Company has three senior subordinated notes. The first was issued in August 1994 at 12% to a financial institution with an aggregate principal amount of $7,500,000. Cash proceeds from this note were $6,743,108, net of a discount of $756,892 which is being amortized over the life of the note. This senior note requires annual payments of $1,500,000 commencing on July 15, 1997 until the note matures in July 2001. The second senior subordinated note was issued in October 1996 at 12.25% to a financial institution with an aggregate principal amount of $5,000,000. This senior note requires monthly payments of (i) $125,000 for the period November 1, 1998 through October 1, 2000 and (ii) $166,667 for the period November 1, 2000 until the note matures in October 1, 2001. In April 1999, this note was amended to require monthly payments of $250,000 for the period May 1, 1999 until the note matures on September 1, 2000. The third senior subordinated note was issued in October 1996 at 12.60% to a financial institution with an aggregate principal amount of $5,000,000. This senior note requires quarterly payments of $250,000 commencing on March 15, 1999 until the note matures in October 2003. The most restrictive covenants of the senior subordinated note agreements have minimum net worth and interest coverage ratio requirements and restrictions on payment of dividends. At December 31, 1999 subordinated notes payable include $102,000 due to stockholders. Interest paid to stockholders under such notes, at rates ranging between 8% and 14%, amounted to $472,000, $488,000 and $104,000 for the years ended December 31, 1997, 1998 and 1999, respectively. Repayment Schedule At December 31, 1999, the repayment schedule for outstanding notes and subordinated notes is as follows: FOR THE YEAR ENDED DECEMBER 31, - ------------------ 2000 ........................................... $ 27,266 2001 ........................................... 15,970 2002 ........................................... 1,057 2003 ........................................... 1,035 --------- 45,328 Outstanding balance of revolving credit facility 108,830 Unamortized discount on senior subordinated debt (49) Total .......................................... $ 154,109 ========= It is estimated that the carrying amounts of the Company's borrowings under its variable rate revolving credit agreements approximate their fair value. The fair value of the Company's short-term and long-term fixed rate borrowings is estimated using discounted cash flow analysis, based on the Company's current incremental borrowing rates for similar types of borrowing arrangements. At December 31, 1998 and 1999, the aggregate carrying value of the Company's fixed rate borrowings was approximately $95,500,000 and $103,786,000, respectively, with an estimated fair value of approximately $96,000,000 and $105,082,000, respectively. F-19 20 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) F. Redeemable Preferred Stock: At December 1998 and 1999, the Company had authorized 5,000,000 shares of preferred stock ("preferred stock") with a par value of $0.01 of which zero shares were issued and outstanding. At December 31, 1998, the Company had authorized 9,800 shares of the Series C Convertible Preferred Stock with a par value of $1.00 of which all were issued and outstanding. Upon completion of the Company's initial public offering on February 5, 1999, the 9,800 Series C preferred shares were automatically converted to 19,600 common shares. G. Stockholders' Equity: Common Stock The Company had 25,000,000 authorized shares of common stock with a par value of $.01 per share of which 9,932,766 and 13,347,726 shares (giving effect to the two stock splits referred to above) were issued and outstanding at December 31, 1998 and 1999, respectively. Treasury Stock The Company had 142,590 and 667,790 shares of common stock in treasury at December 31, 1998 and 1999, respectively, and 9,800 shares of preferred stock in treasury at December 31, 1998. Upon completion of the Company's initial public offering on February 5, 1999, the 9,800 Series C preferred shares in treasury were automatically converted to 19,600 common shares. Stock Options In 1987, the Company adopted its 1987 Stock Option Plan (the "Plan") which provided for the issuance of qualified or nonqualified options to purchase shares of the Company's common stock. In 1997, the Company's Board of Directors approved an amendment to the plan, as a result of the June 16, 1997 stock split. Pursuant to this amendment, the aggregate number of shares issued could not exceed 1,220,000 and the exercise price of any outstanding options issued pursuant to the Plan would be reduced by a factor of ten and the number of outstanding options issued pursuant to the Plan would be increased by a factor of ten. The Company adopted the 1998 Equity Incentive Plan (the "1998 Plan") on July 9, 1998. The 1998 Plan permits the Compensation Committee of the Company's Board of Directors to make various long-term incentive awards, generally equity-based, to eligible persons. The Company reserved 2,000,000 shares of its common stock for issuance pursuant to the 1998 Plan. Qualified stock options, which are intended to qualify as "incentive stock options" under the Internal Revenue Code, may be issued to employees at an exercise price per share not less than the fair value of the common stock at the date granted as determined by the Board of Directors. Nonqualified stock options may be issued to officers, employees and directors of the Company as well as consultants and agents of the Company at an exercise price per share not F-20 21 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) less than fifty percent of the fair value of the common stock at the date of grant as determined by the Board. The vesting periods and expiration dates of the grants are determined by the Board of Directors. The option period may not exceed ten years. The following summarizes the stock option activity:
WEIGHTED AVERAGE SHARES PRICE PER SHARE EXERCISE PRICE ------------------------------------- --------------- Outstanding at December 31, 1996 381,660 $ 0.6375 to $ 1.95 $ 1.705 Exercised (120,910) $ 0.6375 to $ 1.95 $ 0.975 Canceled (9,750) $1.95 $ 1.950 Outstanding at December 31, 1997 251,000 $ 0.6375 to $ 1.95 $ 1.870 Exercised (114,166) $ 0.6375 to $ 1.95 $ 1.859 Canceled (16,454) $1.95 $ 1.950 Outstanding at December 31, 1998 120,380 $ 0.6375 to $ 1.95 $ 1.866 Exercised (14,960) $ 0.6375 to $ 1.95 $ 1.531 Canceled (58,500) $ 1.95 to $12.313 $10.807 Granted 890,000 $12.063 to $13.544 $12.447 Outstanding at December 31, 1999 936,920 $ 0.6375 to $13.544 $11.357
The options vest over five years and are exercisable only after they become fully vested. At December 31, 1998 and 1999, 6,682 and 47,920, respectively of the outstanding options were fully vested. At December 31, 1998 and 1999, 139,980 and 936,920 shares, respectively of common stock were reserved for conversion of redeemable convertible preferred stock and common stock option exercises. F-21 22 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) Information relating to stock options at December 31, 1999, summarized by exercise price is as follows:
OUTSTANDING EXERCISABLE - ---------------------------------------------------- ----------------------------- WEIGHTED WEIGHTED AVERAGE AVERAGE EXERCISE PRICE SHARES LIFE (YEARS) EXERCISE PRICE SHARES - ---------------------------------------------------- ----------------------------- $ 0.6375 2,920 2.25 $ 0.6375 920 $ 1.9500 94,000 3.00 $ 1.95 47,000 $ 12.3130 709,391 6.25 $ 12.3130 0 $ 13.5440 40,609 6.25 $ 13.5440 0 $ 13.1250 80,000 6.30 $ 13.1250 0 $ 12.0630 10,000 6.70 $ 12.0630 0 ------- ------ $0.6375 to $13.544 936,920 5.92 $ 1.925 47,920 ======= ======
All stock options issued to employees have an exercise price not less than the fair market value of the Company's common stock on the date of grant. In accordance with accounting for such options utilizing the intrinsic value method there is no related compensation expense recorded in the Company's financial statements. The Company follows the disclosure requirements of Statement of Financial Accounting Standards No. 123, "Accounting for Stock Based Compensation" (SFAS No. 123"). SFAS No. 123 requires that compensation under a fair value method be determined using a Black-Scholes option-pricing model and disclosed in a pro forma effect on earnings and earnings per share. Had compensation cost for stock based compensation been determined based on the fair value at the grant dates consistent with the method of SFAS No. 123, the Company's pro forma net income applicable to common stock for the years ended December 31, 1997, 1998 and 1999 would have been $7,644,000, $11,918,000, and $9,812,000 respectively. Pro forma net income per common share for the year ended December 31, 1999, would have been $0.76 rather than $0.83 as reported. The fair value of option grants is estimated on the date of grant utilizing the Black-Scholes option-pricing model with the following weighted average assumptions. For grants in 1995: an expected life of the options of seven years, a risk-free interest rate of approximately 5.5%, a dividend yield of 4%, and no volatility. For grants in 1999: an expected life of the options of seven years, a risk-free interest rate of approximately 6.5%, a dividend yield of 1.25%, and volatility of 48.68%. The weighted average fair value at date of grant for options granted during 1995 approximated $.27 per option and the weighted average fair value at date of grant for options granted during 1999 approximated $6.46 per option. There were no options granted in 1996, 1997 or 1998. F-22 23 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) H. Income Taxes The provision for income taxes consists of the following: FOR THE YEARS ENDED DECEMBER 31, ---------------------------------- 1997 1998 1999 Current: Federal $ 898 $ 500 $3,467 State 91 125 77 ---------------------------------- 989 625 3,544 ---------------------------------- Deferred: Federal 3,703 6,447 2,310 State 1,194 1,138 1,655 ---------------------------------- 4,897 7,585 3,965 ---------------------------------- Total $5,886 $8,210 $7,509 ================================== At December 31, 1998 and 1999, the components of the net deferred tax liability were as follows: 1998 1999 ------------------------ Investment in leases, other than allowance $ 35,257 $ 89,031 Allowance for credit losses (986) (11,289) Debt issue costs 391 209 Depreciation (11,887) (55,122) Alternative minimum tax (4,483) (6,530) Loss carryforwards (8,151) 0 Deferred receivables 8,413 6,221 ======================== Total $ 18,554 $ 22,520 ======================== F-23 24 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) The following is a reconciliation between the effective income tax rate and the applicable statutory federal income tax rate: FOR THE YEARS ENDED DECEMBER 31, -------------------------------- 1997 1998 1999 Federal statutory rate 34.0% 35.0% 35.0% State income taxes, net of federal benefit 6.7% 5.7% 5.8% Nondeductible expenses and other 2.8% 0.1% 0.4% -------------------------------- Effective income tax rate 43.5% 40.8% 41.2% ================================ At December 31, 1998, the Company had loss carryforwards of approximately $19,800,000 which were utilized in 1999. I. Commitments and Contingencies Operating and Capital Leases The Company's lease for its facility in Waltham, Massachusetts expires in 2004. This lease contains one five-year renewal option with escalation clauses for increases in the lessor's operating costs. The Company's lease for its facilities in Newark California expires in 2001. The Company's lease for its facilities in Woburn, Massachusetts expires in 2003. The Company also has entered into various operating lease agreements ranging from three to four years for additional office equipment. At December 31, 1999, the future minimum lease payments under noncancelable operating leases with remaining terms in excess of one year are as follows: FOR THE YEAR ENDED DECEMBER 31, ------------------ 2000 .................. $1,457 2001 .................. 1,443 2002 .................. 1,387 2003 .................. 1,343 ------ Total ................. $5,630 ====== Rental expense under operating leases totaled $991,000, $1,131,000, and $1,567,000 for the years ended December 31, 1997, 1998 and 1999, respectively. F-24 25 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) The Company has entered into various capital lease agreements ranging from three to four years for office equipment, computer equipment and telecommunication systems. At December 31, 1999 future minimum lease payments under capital leases were as follows: FOR THE YEAR ENDED DECEMBER 31, ------------------ 2000 ............................. $ 567 2001 ............................. 446 2002 ............................. 297 2003 ............................. 96 ------- Total minimum lease payments ..... 1,406 Less amounts representing interest (162) ------- Total ............................ $ 1,244 ======= Legal Matters Management believes, after consultation with counsel, that the allegations against the Company included in the lawsuits described below are without merit, and the Company is vigorously defending each of the allegations. The Company also is subject to claims and suits arising in the ordinary course of business. At this time, it is not possible to estimate the ultimate loss or gain, if any, related to these lawsuits, nor if any such loss will have a material adverse effect on the Company's results of operations or financial position. I. On August 24, 1999, a purported class action lawsuit was filed in Middlesex Superior Court for The Commonwealth of Massachusetts against the Company and its wholly-owned subsidiary Leasecomm Corporation ("Leasecomm"). The complaint has been amended four times, most recently by the Fourth Amended Complaint and Jury Claim filed on or about November 4, 1999 (as amended, the "Clark Complaint"). The purported class consists of individuals and businesses that have been sued by Leasecomm in a Massachusetts court for allegedly breaching Leasecomm's Non Cancellable Equipment Lease Agreement or Non Cancellable Lease Agreement (the "Lease Agreements") containing a forum selection clause. The forum selection clause is an agreement between the parties to the Lease Agreements to submit to the jurisdiction of the courts of The Commonwealth of Massachusetts for the bringing of any suit or other proceeding. The purported class would be limited to individuals and businesses that: have no place of business or residence in New England; have been sued in a Massachusetts court for breach of the Lease Agreements; had no more than three employees as of the date of the Lease Agreement; had been in existence for no more than three years as of the date of the Lease Agreement; and had entered into Lease Agreements with scheduled monthly lease payments which aggregated to less than $5,000. F-25 26 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) The Clark Complaint alleges that enforcement of the forum selection clause is not fair or reasonable because, among other things, litigation in Massachusetts is prohibitively costly and time consuming for purported class members, purported class members have no choice but to enter into the Lease Agreement because of Leasecomm's greater bargaining power, and purported class members allegedly have valid defenses to the claims asserted against them by Leasecomm. The Plaintiffs seek: a declaration that the forum selection clause is not fair or reasonable as to purported class members and that the Massachusetts courts lack personal jurisdiction over purported class members; dismissal without prejudice of all cases pending in Massachusetts against purported class members; a permanent injunction preventing Leasecomm and its affiliates from bringing suit in Massachusetts against purported class members; a permanent injunction preventing Leasecomm or its affiliates from entering into Lease Agreements containing the forum selection clause; unspecified monetary damages against Leasecomm and the Company in favor of purported class members equal to double or treble the moneys collected in connection with lawsuits filed against purported class members in Massachusetts courts, together with attorneys' fees and costs. The parties have filed various motions with the Court, which will be heard by the Court within the next several months. Since this matter is in an early stage, there can be no assurance as to its eventual outcome. However, the forum selection clause at issue in this litigation has been enforced in other cases. II. On June 3, 1999 a purported class action lawsuit was filed in Middlesex Superior Court in The Commonwealth of Massachusetts against Leasecomm. The complaint was amended on or about July 26, 1999 (as amended, the "McKenzie-Pollock Complaint"). On September 3, 1999 Leasecomm removed the action to the United States District Court for the District of Massachusetts. The purported class consists of individuals who entered into a Lease Agreement with Leasecomm between June 4, 1993 and the date of the McKenzie-Pollock Complaint. Plaintiffs allege: that Leasecomm causes individuals to enter into non-cancellable, long-term leases when there is no reasonable expectation that most of the individuals would need or use the equipment for the duration of the lease term; that Leasecomm conceals or misrepresents the nature of the terms of its Lease Agreements; that the Lease Agreements are non-negotiable adhesion contracts which are oppressive and unfair; that the cost of acquiring the equipment through Leasecomm is often double or triple the retail cost of the equipment; that Leasecomm violates state usury laws; that Leasecomm engages in unfair debt collection practices; that Leasecomm brings lawsuits against purported class members in Massachusetts even though it has no jurisdiction over them in Massachusetts courts; that Leasecomm fails to make proper service and then files pleadings which state that proper service was made, thereby obtaining default judgments against certain members of the purported class; that Leasecomm conspired with its salespersons to cause members of the purported class to enter into unconscionable leases by concealing and misrepresenting their terms; that Leasecomm failed to comply with the Truth in Lending Act and the Massachusetts F-26 27 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) Consumer Credit Cost Disclosure Act; and that Leasecomm has engaged in unfair trade practices in violation of the Massachusetts consumer protection statute. Plaintiffs and the members of the purported class seek: unspecified damages for monetary losses allegedly sustained by them as a result of this conduct by Leasecomm and reimbursement of costs and attorneys' fees; treble damages and other punitive damages; rescission of the Lease Agreements, or a declaration that they are void, and return of all moneys paid to Leasecomm; and damages for unjust enrichment. The parties have filed various motions with the Court. In December, 1999, the Court granted Leasecomm's motion to dismiss in part, and ordered that the federal Truth in Lending and Fair Debt Collection Practices claims be dismissed. The Court then ordered the remaining claims to be remanded to the Middlesex Superior Court for further proceedings, including decisions on the balance of Leasecomm's motion to dismiss, since all federal claims in the case had been dismissed. Leasecomm subsequently filed a renewed motion to dismiss in the Superior Court, again asserting that the remaining non-federal claims are legally insufficient and should have been presented in earlier court proceedings, which will be heard by the Court within the next several months. Since this matter is in an early stage, there can be no assurance as to its eventual outcome. III.On October 25, 1999, a purported class action lawsuit was filed in Middlesex Superior Court in The Commonwealth of Massachusetts against Leasecomm (the "Lamar Complaint"). The purported class consists of all individuals and businesses who, on or after September 28, 1996, signed a Leasecomm agreement which states that it is "non-cancelable" and/or contains certain standard provisions relating to delivery and acceptance of the leased equipment and warranties and servicing for the equipment. The Plaintiffs contend that these particular lease terms are contrary to Article 2A of the Uniform Commercial Code as adopted in Massachusetts and that Leasecomm's use of these terms constitutes an unfair and deceptive trade practice under Chapter 93A of the Massachusetts General Laws. The Plaintiffs seek a declaration that the lease terms in question are unfair and deceptive and that Leasecomm's use of those terms is unfair and deceptive. The Plaintiffs also seek a Court order requiring Leasecomm to notify all purported class members of the Court's ruling in the case; to stop using the lease terms or similar lease terms which allegedly misstate lessees' rights under Massachusetts law; to refrain from enforcing those lease terms against any of the purported class members; to refrain from providing or communicating incorrect information regarding lessees' rights under Massachusetts law; and to include in every lease agreement language which conspicuously describes the rights of lessees under Massachusetts law. Finally, the Plaintiffs seek reimbursement of their costs and attorneys' fees. The parties have filed various motions with the Court, which will be heard by the Court over the next several months. Since this matter is in an early stage, there can be no assurance as to its eventual outcome. F-27 28 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) IV. On January 20, 2000, the Company filed suit against Sentinel Insurance Company Limited ("Sentinel"), in the United States District Court for the District of Massachusetts (the "Sentinel Complaint"). On August 18, 1999, Sentinel had issued a Business Performance Insurance Policy (the "Policy") to the Company as collateral for a Twelve Million Dollar ($12,000,000) loan (the "Loan") that the Company had made to Premier Holidays International, Inc. ("Premier"). The Loan was personally guaranteed by Premier's President, Daniel DelPiano ("DelPiano"). Pursuant to the terms of the Policy, Sentinel was obligated to make payment to the Company for any and all amounts payable under the terms of the Loan, in the event a default by Premier occurred. After Premier and DelPiano defaulted on their repayment obligations, the Company made demand on Sentinel for payment under the Policy. The Company filed the Sentinel Complaint after Sentinel refused to make payment to the Company under the Policy. On February 3, 2000, the Company amended its Complaint to assert claims against Premier and DelPiano arising out of their failure to make payments required under the Loan and the personal guaranty. On March 1, 2000, the Company filed a motion for summary judgment on its claims against Sentinel, seeking judgment in the amount of approximately $13.0 million, plus post-judgment interest and attorneys' fees. Subsequently, on January 26, 2000, Premier and DelPiano filed suit against the Company, its wholly-owned subsidiary, Leasecomm Corporation, and Sentinel in the Superior Court of Fulton County, Georgia (the "Premier Complaint"). Premier and DelPiano allege that, notwithstanding the plain wording of both the Loan and the Policy, Premier agreed to borrow the full amount of the Loan only upon alleged representations by the Company that it would loan Premier an additional Forty-Five Million Dollars ($45,000,000). The documents evidencing the Loan, and the documents evidencing the Policy, refer only to the amount of the Loan ($12,000,000), and not to any greater amount. Premier alleges that, as a result, it has suffered actual and consequential damages in the amount of Seven Hundred Sixty-Nine Million Three Hundred Fifty Thousand Dollars ($769,350,000) plus interest, costs, and attorneys' fees. Premier also seeks punitive damages in the amount of Five Hundred Million Dollars ($500,000,000). Premier also seeks injunctive relief barring the Company and Leasecomm from making demand on or commencing court action to collect on the Policy. On February 22, 2000, Leasecomm removed this case to federal court for the Northern District of Georgia. The parties have filed various motions with the Court, which will be heard over the next several months. Among the Company's and Leasecomm's motions, are motions to dismiss the Premier Complaint, or, alternatively, to transfer this case to federal court in Massachusetts; and, a motion for preliminary injunction regarding the Sentinel Complaint, seeking an order requiring Sentinel, Premier and Del Piano to turn over to the Company any collateral in their possession or to which the Company and Leasecomm may be entitled as a result of both Premier's and Sentinel's defaults under the Loan and the Policy, respectively. Since this matter is in an early stage, there can be no assurance as to its eventual outcome. F-28 29 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) J. Employee Benefit Plan: The Company has a defined contribution plan under Section 401 (k) of the Internal Revenue Code to provide retirement and profit sharing benefits covering substantially all full-time employees. Employees are eligible to contribute up to 15% of their gross salary. The Company will contribute $.50 for every $1.00 contributed by an employee up to 3% of the employee's salary. Vesting in the Company contributions is over a five-year period based upon 20% per year. The Company's contributions to the defined contribution plan were $106,000, $134,000, and $102,000 for the years ended December 31, 1997, 1998 and 1999, respectively. K. Interest Rate Swap The Company is exposed to market risks brought on by changes in interest rates. Derivative financial instruments are used by the Company to reduce those risks, as explained in this note. (a) Notional amounts and credit exposures of derivatives The notional amount of derivatives, as summarized in section (b) below, do not represent amounts that are exchanged by the parties, and thus are not a measure of the Company's exposure. The amounts exchanged are calculated on the basis of the notional or contract amounts, as well as on other terms of the interest rate swap derivatives, and the volatility of these rates and prices. The Company would be exposed to credit-related losses in the event of nonperformance by the counter-parties that issued the financial instruments. The Company does not expect the counterparty to interest rate swaps to fail to meet their obligations, given its high credit rating. The credit exposure of derivative contracts is represented by the positive fair value of contracts at the reporting date, reduced by the effects of the master netting agreement. The Company does not give or receive collateral on its interest rate swaps due to its own credit rating and that of its counterparty. (b) Interest Rate Risk Management Interest rate swap contracts involve the exchange by the Company with another party of their respective commitments to pay or receive interest, e.g., and exchange of floating rate payments for fixed rate payments with respect to a notional amount of principal. The Company has entered into this contract to reduce the impact of changes in interest rates on its floating rate debt. The Company has entered into this interest rate swap agreement only on a net basis, which means that the two payment streams are netted out, with the Company receiving or paying, as the case may be, only the net amount of the two payments. Interest rate swaps do not involve the delivery of securities, other underlying assets or principal. Accordingly, the risk of loss with respect to interest rate swaps is limited to the net amount of payments that the Company is contractually F-29 30 MICROFINANCIAL INCORPORATED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (tables in thousands, except per share data) entitled to receive, if any. Interest rate swaps entered into by the Company may not be readily marketable. At December 31, 1999, the Company had outstanding, one interest rate swap agreement with one of its banks, having a total notional principal amount of $17,500,000. The agreement effectively changes the Company's interest rate exposure on $17,500,000 of its floating rate $150,000,000 revolving line of credit due September 30, 2001 to a fixed 8.35%. The interest rate swap matures on July 10, 2000. The interest differential paid or received on the swap agreement is recognized as an adjustment to interest expense. Interest expense related to the swap was $78,000, $177,000, and $215,000 for the years ended December 31, 1997, 1998 and 1999, respectively. At December 31, 1999, the fair market value of this interest rate swap, which represents the amount the Company would receive or pay to terminate the agreement, is a net payable of $59,000, based on dealer quotes. The market risk exposure from the interest rate swap is assessed in light of the underlying interest rate exposures. Credit risk exposure from the swap is minimized as the agreement is with a major financial institution. L. Concentration of Credit Risk The Company's financial instruments that are exposed to concentrations of credit risk consist primarily of lease and loan receivables and cash and cash equivalent balances. To reduce the risk to the Company, credit policies are in place for approving leases and loans, and lease pools are monitored by management. In addition, the cash and cash equivalents are maintained with several high quality financial institutions. One dealer accounted for approximately 10.7%, 11.6% and 14.7% of all originations during the year ended December 31, 1997, 1998 and 1999, respectively. Another dealer accounted for approximately 2.6%, 3.5% and 10.1% of all originations during the year ended December 31, 1997, 1998 and 1999, respectively. No other dealer accounted for more than 10% of the Company's origination volume during the years ended December 31, 1997, 1998, or 1999. The Company originates and services leases, contracts and loans in all 50 states of the United States and its territories. As of December 31, 1999, leases in California, Florida, Texas, Massachusetts and New York accounted for approximately 45% of the Company's portfolio, with only California accounting for more than 10% of the total portfolio, at approximately 15%. None of the remaining states accounting for more than 4% of such total. M. Subsequent Events (Unaudited) On February 14, 2000, the Company's board of directors authorized the Company to purchase $5,000,000 of MicroFinancial common stock. This is in addition to the 1,000,000 shares the board F-30 31 of directors authorized the Company to buy back in 1999. As of March 22, 2000, the company has bought back a total of 664,600 shares at a cost of approximately $7.2 million. On March 21, 2000 the Company closed a $50.0 million on balance sheet securitization. The securitization is insured by AMBAC and was rated AAA by Standard & Poors and Aaa by Moody's Investors Service. The proceeds from the securitization were used to pay down the Company's credit facility so that as of March 22, 2000 has an outstanding principal balance of $82.5 million. N. Selected Quarterly Data (Unaudited) The following is a summary of the unaudited quarterly results of operations of the Company for 1998 and 1999.
1998 1999 ---------------------------------------- ----------------------------------------- FIRST SECOND THIRD FOURTH FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER ------- ------- ------- ------- ------- ------- ------- ------- Revenues: Income on leases and loans $11,510 $11,836 $11,939 $12,056 $12,377 $13,661 $14,232 $ 15,275 Income on service contracts rental and fees 6,578 6,624 7,345 8,612 10,078 10,050 10,591 12,197 ------- ------- ------- ------- ------- ------- ------- -------- Total revenues 18,088 18,460 19,284 20,668 22,455 23,711 24,823 27,472 ------- ------- ------- ------- ------- ------- ------- -------- Expenses: Selling general and administrative 4,281 5,062 4,940 5,778 6,004 5,708 6,232 6,472 Provision for credit losses 4,575 3,698 4,294 6,508 5,399 6,064 5,888 20,485 Depreciation and amortization 1,177 1,274 1,416 1,209 1,687 1,767 2,038 2,105 Interest 2,820 3,133 3,247 2,954 2,620 2,366 2,602 2,787 ------- ------- ------- ------- ------- ------- ------- -------- Total expenses 12,853 13,167 13,897 16,449 15,710 15,905 16,760 31,849 ------- ------- ------- ------- ------- ------- ------- -------- Income before provision for income taxes 5,235 5,293 5,387 4,219 6,745 7,806 8,063 (4,377) ------- ------- ------- ------- ------- ------- ------- -------- Net Income $ 3,111 $ 3,134 $ 3,215 $ 2,464 $ 3,969 $ 4,543 $ 4,741 $ (2,525) ------- ------- ------- ------- ------- ------- ------- -------- Net Income per common share - basic 0.32 0.32 0.32 0.25 0.33 0.34 0.36 (0.20) Net Income per common share - diluted 0.31 0.31 0.32 0.25 0.33 0.34 0.36 (0.20) Dividends per common share 0.030 0.035 0.035 0.035 0.035 0.040 0.040 0.040
During the fourth quarter of 1999, the Company recorded a special provision of $12.7 million for a loan made to one company, collateralized by approximately 3,500 micro-ticket consumer contracts and guaranteed by, among other security, an insurance performance bond. The Company is currently involved in litigation with the company and the insurance company, see "Legal Proceedings". F-31 -----END PRIVACY-ENHANCED MESSAGE-----