EXHIBIT 10.58
SECOND AMENDMENT TO
SALE OF CHATTEL PAPER
AND SECURITY AGREEMENT
This Second Amendment to Sale of Chattel Paper and Security Agreement
(hereinafter referred to as the "Second Amendment") is made as of the ____ day
of ________________, 1998, by and among Summit Leasing Corporation, a New Jersey
corporation ("Summit"), formerly known as UJB Leasing Corporation ("UJB"),
having an office located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and
BankVest Capital Corp., a Massachusetts corporation ("Seller"), with its
principal place of business at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx
00000.
RECITALS:
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A. On or about March 28, 1996, UJB and Seller entered into that
certain Sale of Chattel Paper and Security Agreement relating to the sale by
Seller and the purchase by UJB of certain equipment lease paper (the
"Agreement").
B. Summit and Seller modified the terms and conditions of the
Agreement, as evidenced by that certain First Amendment to Sale of Chattel Paper
and Security Agreement ("First Amendment") dated as of June 1, 1997. The First
Amendment and the Agreement are hereinafter collectively referred to as the
"Agreement" where the context and circumstances so require.
C. Seller and Summit desire to further modify the terms and
conditions of the Agreement for the purposes set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements
and covenants hereinafter set forth, the parties hereto agree as follows:
1. Definitions: Unless otherwise defined herein, all capitalized and
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defined terms used herein shall have the same meaning set forth in the
Agreement.
2. Recitals: The recitals set forth above are hereby incorporated
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herein as if set forth at length. Seller and Summit each acknowledge and confirm
that all of the aforesaid recitals are true, accurate and correct in all
respects.
3. Continued Validity of Sale Documents: Seller hereby acknowledges,
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ratifies, confirms and affirms: (i) the extent and validity of the Sale
Documents; (ii) that said Sale Documents are and remain valid, enforceable in
accordance with their respective terms and are and remain in full force and
effect as of the date hereof; (iii) that the Sale Documents are not subject to
any real or personal defenses whatsoever; (iv) that pursuant to the security
interests granted to Summit in accordance with the Sale Documents, the Sale
Documents constitute a
continuing valid first perfected lien upon the Collateral, which security
interest secures the payment and performance of the obligations due and owing
under the Sale Documents. Seller warrants and represents that all
representations contained in the Sale Documents are true and complete as of the
date hereof, no warranty therein contained has been breached as of the date
hereof and it is in full compliance with all of the terms and conditions thereof
and has performed all obligations on its part to be performed therein.
4. Modification to the Agreement. From and after the date of this
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Second Amendment, the Agreement is hereby modified in the following respects:
A. Section 1.15 is deleted and replaced with the following:
1.15 "Purchase Expiration Date" shall mean March 28, 1999.
B. Section 1.20 is deleted and replaced with the following:
1.20 "Sale Documents" shall mean the Term Sheet, this Agreement, as
modified by the First Amendment and the Second Amendment, the
Financing Statements, the Incumbency Certificate, the Corporate
Resolutions, the Estoppel Certificate, the Opinion Letter and all
documents of every kind and nature submitted and/or executed in
connection with this Agreement whether executed contemporaneously
herewith or at any other time, together with all amendments,
substitutions, supplements, replacements or modifications to any or
all of them.
C. The first sentence of Section 2.1 is deleted and replaced with the
following:
Subject to the terms and conditions set forth herein and the Funding
Cap, Seller agrees to offer to sell to Summit, Items of Paper from and
after the date hereof until the Purchase Expiration Date.
D. The following sections are added to the Agreement:
14.9. With respect to the Items of Paper identified on Schedule 14.9
hereof (the "Schedule 14.9 Items of Paper"), provided no Event of
Default shall have occurred or be continuing, Seller's obligations to
repurchase any Schedule 14.9 Items of Paper pursuant to Section 11.2
above shall not exceed 50 percent of the aggregate Purchase Price paid
by Summit to Seller hereunder for said Schedule 14.9 Items of Paper
(the "Schedule 14.9 Ultimate Net Loss"). The Schedule 14.9 Ultimate
Net Loss shall not be included as a component or part of the Ultimate
Net Loss referred to in Section 14.1 above. The Schedule 14.9 Ultimate
Net Loss shall decrease only as, when, and if a Schedule 14.9 Item of
Paper is repurchased by Seller pursuant to Section 11.2 above; the
amount of any such decrease in the Schedule 14.9 Ultimate Net Loss
shall be equal to the Purchase Price of that particular Schedule 14.9
Item of Paper so repurchased. The provisions of Sections 14.2, 14.3,
14.4, 14.5, 14.6 and 14.8 above shall, where the context and
circumstances so require, apply to the
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Schedule 14.9 Ultimate Net Loss and, in that regard, the phrase
"Ultimate Net Loss" shall include the Schedule 14.9 Ultimate Net Loss.
At each anniversary date of this Agreement, so long as Seller's
Obligations and/or Debtor's Obligations remain outstanding, the
charges made against the Schedule 14.9 Ultimate Net Loss for the prior
twelve-month period shall be reduced to zero ($0) and Seller shall
continue to fulfill its obligations under Section XI with respect to
all Schedule 14.9 Items of Paper purchased hereunder, as though no
Charges were previously made against the Schedule 14.9 Ultimate Net
Loss. In the event that the Charges during a particular twelve-month
period equal the Schedule 14.9 Ultimate Net Loss, which is subject to
change as herein provided, and provided no Event of Default has
occurred or is continuing, Seller shall not be required to make any
payment to Summit with respect to the Schedule 14.9 Items of Paper
purchased hereunder pursuant to Section 11.2 above for the balance of
that twelve-month (12) period, except as otherwise provided herein.
Schedule 14.9 may be hereinafter supplemented or amended by the
parties hereto. If the parties decide to supplement or amend said
Schedule, a new Schedule shall be prepared, dated, initialed by the
parties and appended to the Agreement, thereby superseding the prior
Schedule.
14.10 With respect to the Items of Paper identified on Schedule 14.10
hereof (the "Schedule 14.10 Items of Paper"), Seller shall be required
to repurchase the Schedule 14.10 Items of Paper for the Repurchase
Price or replace the Schedule 14.10 Items of Paper, at Summit's sole
discretion and option pursuant to Section 11.2 hereof. It is in the
intention of the parties hereto that: (i) Seller shall be on FULL
RECOURSE for the Schedule 14.10 Items of Paper; (ii) Seller's
repurchase or replacement of any Schedule 14.10 Item of Paper shall
not be limited or restricted in any manner; (iii) Seller's repurchase
of a Schedule 14.10 Item of Paper pursuant to Section 11.2 hereof
shall not be included as a component or part of the Ultimate Net Loss
or the Schedule 14.9 Ultimate Net Loss or otherwise factored in the
computation of the Ultimate Net Loss or the Schedule 14.9 Ultimate Net
Loss; (iv) the Ultimate Net Loss and the Schedule 14.9 Ultimate Net
Loss shall not apply to any Schedule 14.10 Item of Paper repurchased
by Seller pursuant to Section 11.2 above; and (v) the Repurchase Price
due and/or paid on account of the Schedule 14.10 Item of Paper shall
not be or constitute a Charge against the Ultimate Net Loss or the
Schedule 14.9 Ultimate Net Loss. Schedule 14.10 may be hereinafter
supplemented or amended by the parties hereto. If the parties decide
to supplement or amend said Schedule, a new Schedule shall be
prepared, dated, initialed by the parties and appended to the
Agreement, thereby superseding the prior Schedule.
5. Documentation to be Furnished to Summit. Summit's agreement to
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enter into this Second Amendment is contingent upon Summit's receipt, review and
acceptance, prior to the execution and delivery of this Second Amendment, of
authorizing resolutions and/or certificates on behalf of Seller authorizing
Seller to enter into this Second Amendment and to perform in accordance with the
terms and conditions of the Agreement.
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6. Further Assurances: Seller hereby agrees that it shall execute
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and/or deliver to Summit any documents, information or agreements as may be
reasonably requested by Summit at any time so long as any sums due or
obligations under the Sale Documents remain unpaid or unperformed.
7. Release and Discharge of Summit: Seller hereby releases and
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discharges Summit of and from all claims, causes of action, demands, damages or
suits, at law and in equity, which it may, as of the date of this Second
Amendment, have or claim to have against Summit relating to, arising out of or
resulting from its relationship with Summit or with respect to the obligations
due to Summit as evidenced by the Sale Documents or the Collateral.
8. Reinstatement of Obligations: The Sale Documents, including this
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Second Amendment, and Seller' liabilities thereunder shall continue to be
effective or be reinstated, as the case may be, if at any time any payment or
other value received by Summit, from any source, or any part thereof, of any of
the sums due under the Sale Documents are rescinded or might otherwise be
restored or returned by Summit by reason of: (i) any judgment, decree or order
of any court or administrative body having competent jurisdiction; (ii) any
settlement or compromise of any such claim; or (iii) otherwise, all as through
such payment had not been made and received by Summit, notwithstanding any
termination of all or any of the Sale Documents or payment in full of the
obligations due to Summit as evidenced by the Sale Documents.
9. Application of N.J.S.A. 25:1-5: Seller acknowledges the amendment
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to N.J.S.A. 25:1-5, which precludes enforcement, inter alia, of any oral
promises relating to extensions of credit, and agrees, without regard to whether
such amendment is prospective or retroactive in application, that its provisions
are fully applicable to this Second Amendment.
10. Governing Law: This Second Amendment shall be governed by and
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construed in accordance with the laws of the State of New Jersey, without regard
to the principles of conflicts of laws.
11. Binding Effect: This Second Amendment is binding upon, inures to
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the benefit of and is enforceable by the personal representatives, successors
and assigns of the parties. This Second Amendment is not assignable by Seller.
12. Non-Waiver: No failure or delay on the part of Summit, or its
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successors and assigns, in the exercise of any right, power or privilege
pursuant to the Sale Documents (including this Second Amendment) is to be
construed to be or operate as a waiver. Partial exercise of any right, power or
privilege by Summit is not to preclude any further right, power or privilege,
nor be deemed a waiver. Any waiver or modification of this Second Amendment or
any other document, instrument or agreement executed by Seller is to be in
writing signed by Seller and Summit. Summit may, in its sole discretion,
release, impair or surrender all or any of the interest granted hereunder or
under any other agreement executed by Seller without waiving, exhausting or
impairing any of Summit's rights and remedies available pursuant to the Sale
Documents or under this Second Amendment.
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13. Representation by Counsel; Drafting of Agreement: Seller
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acknowledges that it has had the opportunity to consult independent counsel of
its own selection in connection with the matters covered by this Second
Amendment and that it has executed and delivered this Second Amendment (and any
other documents referred to herein or in connection herewith) with the benefit
of counsel and of its own free will and volition. Seller also acknowledges and
agrees that the terms of this Second Amendment have been negotiated in good
faith by the parties and that said terms shall be construed in a neutral fashion
and without regard to the draftsmanship of this Second Amendment.
14. Severability: In the event that any portion of this Second
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Amendment is deemed unenforceable by a court of competent jurisdiction, such
provision declared to be unenforceable is to be deemed to have been omitted from
this Second Amendment and all such remaining terms and conditions of this Second
Amendment are to continue in full force and effect.
15. Continued Effectiveness of Sale Documents: Except as specifically
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modified herein, all of the other terms and conditions of the Sale Documents
shall remain in full force and effect and the parties hereto expressly confirm
and ratify all of their respective liabilities, obligations, duties and
responsibilities under and pursuant to said Sale Documents, as modified. It is
the intention of the parties hereto that this Second Amendment shall not
constitute a novation and shall in no way adversely affect or impair the lien
priority referred to herein.
IN WITNESS WHEREOF, the parties have executed and delivered this
Second Amendment or caused this Second Amendment to be duly executed and
delivered by their proper and duly authorized officers or representatives as of
the day and year first above written.
ATTEST: BANKVEST CAPITAL CORP.
_________________________________ By:_____________________________
XXXXXXX X. XXXX, Secretary/Clerk _____________, President
WITNESS/ATTEST: SUMMIT LEASING CORPORATION
(formerly known as UJB Leasing
Corporation)
_________________________________ By:_____________________________
XXXXX X. XXXXX, President
Chief Executive Officer
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SCHEDULE 14.9
ITEMS OF PAPER
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1. Lease Number 46682-1, evidenced by the Lease Agreement entered into by
Artistic Images, Inc., as Lessee and BankVest Capital Corp., as Lessor,
accepted by BankVest Capital Corp. on March 23, 1998 and all related
documents.
2. Lease Number 10287-1, evidenced by the Lease Agreement entered into by
Xxxxxx & Associates, Inc. d/b/a Productions Unlimited, Inc., as Lessee and
BankVest Capital Corp., as Lessor, accepted by BankVest Capital Corp. on
_______________ and all related documents.
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SCHEDULE 14.10
ITEMS OF PAPER
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1. Lease Number 33551, evidenced by the Lease Agreement entered into by The
Mail House, Inc., as Lessee and BankVest Capital Corp., as Lessor, accepted
by BankVest Capital Corp. on ______________ and all related documents.
2. Lease Number 46412-1, evidenced by the Lease Agreement entered into by DAS
Devices, Inc., as Lessee and BankVest Capital Corp., as Lessor, accepted by
BankVest Capital Corp. on March 27, 1998 and all related documents.
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