EXHIBIT 10.57
FIRST AMENDMENT TO
SALE OF CHATTEL PAPER
AND SECURITY AGREEMENT
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This First Amendment to Sale of Chattel Paper and Security Agreement
(hereinafter referred to as the "First Amendment") is made as of the 1st day of
June, 1997, by and among Summit Leasing Corporation, a New Jersey corporation
("Summit"), formerly known as UJB Leasing Corporation ("UJB"), having an office
located at 750 Walnut Avenue, Cranford, New Jersey 07016 and BankVest Capital
Corp., a Massachusetts corporation ("Seller"), with its principal place of
business at 114 Turnpike Road, Westborough, Massachusetts 01581.
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. Seller and Summit desire to 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
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and 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. Estoppel with Regard to Present Portfolio Balance and Charges:
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Seller acknowledges and agrees that, as of the date of this Agreement: (i) the
unpaid lease stream relating to the Paper purchased by Summit remaining in
Summit's portfolio is: $2,021,142.21; (ii) the aggregate Purchase Price paid by
Summit to Seller pursuant to the Agreement for all Paper purchased by Summit
remaining in Summit's portfolio is $2,471,865.71; and (iii) the amount of the
Charges made against the Ultimate Net Loss is $0.
4. 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.
5. Representations, Warranties and Covenants: Seller hereby
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represents, warrants and covenants as follows:
A. Seller has disclosed its current financial condition and circumstances
to Summit. Any and all substantial and/or material adverse changes in
its financial condition and circumstances which shall occur after the
date of the disclosure of its financial condition shall be immediately
brought to the attention of Summit by Seller and Summit shall be
promptly notified in writing of same by Seller.
B. To the best of Seller' knowledge, information and reasonable belief,
its execution, delivery and performance in accordance with the terms
of this First Amendment does not violate any applicable law, rule,
regulation or order of any governmental authority or in any way
conflict with or result in a breach of any of the terms, conditions or
provisions of any other agreement or instrument to which it may be
bound.
C. The financial disclosures made by Seller accurately and fairly present
its financial condition and circumstances as of the date of this First
Amendment and there have been no further substantial and/or material
adverse changes in its financial condition and circumstances as of the
date of this First Amendment.
D. There are no actions, suits or proceedings pending (nor to Seller'
knowledge, any actions, suits or proceedings threatened, nor is there
any basis therefor), against or in any way relating adversely to it or
its properties in any court or before any arbitrator of any kind or
before any governmental or non-governmental body which, if adversely
determined, would singly or in the aggregate have a material adverse
affect on its financial condition.
6. Modification Pertaining to the Sale Documents: From and after
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the effective date of this First Amendment, the Sale Documents are hereby
modified to provide that all references to "UJB Leasing Corporation" or to
"UJB," or words of similar meaning shall be deemed to refer to Summit Leasing
Corporation.
7. Modification to the Agreement. From and after the date of this
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First Amendment, the Agreement is hereby modified in the following respects:
A. Recital B is deleted in its entirety and replaced with the following:
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Seller desires to sell and Summit desires to purchase, from time to
time, on the terms and conditions set forth herein, equipment lease
paper, for an aggregate, purchase price not to exceed SEVEN MILLION
FIVE HUNDRED THOUSAND DOLLARS ($7,500,000.00).
B. The following section is added to Article I:
1.11A. "Funding Cap' shall mean (a) from and after March 28, 1996
through March 27, 1997, the sum of TWO MILLION FIVE HUNDRED DOLLARS
($2,500,000); and (b) from and after June 1, 1997 through March 27,
1998, the sum of SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS
("7,500,000").
C. Section 1.15 is deleted and replaced with the following:
1.15 "Purchase Expiration Date" shall mean March 28, 1998.
D. 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, 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.
E. 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.
8. Documentation to be Furnished to Summit. Summit's Agreement to
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enter into this First Amendment is contingent upon Summit's receipt, review and
acceptance, prior to the execution and delivery of this First Amendment, of the
following documentation:
A. UCC-1 Financing Statements searches in the appropriate filing
offices regarding Seller;
B. Upper court judgment and lien searches regarding Seller.
C. Federal tax lien and state tax lien searches regarding Seller.
D. A good standing certificate with regard to Seller from its state
of formation and all states where it is authorized to do business.
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E. Franchise tax searches regarding the Seller from its state of
formation and all states where it is authorized to do business.
F. Such other searches as required by Summit or Summit's counsel to
insure Summit's first lien position and perfected security interest in
and to the Collateral shall be continued unaffected.
9. 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.
10. 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 First
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.
11. Reinstatement of Obligations: The Sale Documents, including this
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First 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.
12. 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
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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 First Amendment.
13. Governing Law: This First 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.
14. Relief from Bankruptcy Stay: In the event that Seller shall:
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(i) file with any bankruptcy court of competent jurisdiction or be the subject
of any petition under Title 11 of the U.S. Bankruptcy Code, as amended
("Bankruptcy Code"), (ii) be the subject of any order for relief issued under
the Bankruptcy Code, (iii) file or be the subject of any petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future Federal or state act
or law relating to bankruptcy, insolvency, or other relief for debtors, (iv)
have sought or consented to or acquiesced in the appointment of any trus-
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tee, receiver, conservator, or liquidator, or (v) be the subject of any order,
judgment, or decree entered by any court of competent jurisdiction approving a
petition filed against such party for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any
present or future Federal or state act or law relating to bankruptcy,
insolvency, or relief for debtors, Summit shall thereupon be entitled and Seller
each irrevocably consents to immediate and unconditional relief from any
automatic stay imposed by Section 362 of the Bankruptcy Code, or otherwise, on
or against the exercise of the rights and remedies otherwise available to Summit
as provided for herein, in the Sale Documents and as otherwise provided by law,
and Seller hereby irrevocably waives any right to object to such relief and will
not contest any motion by Summit seeking relief from the automatic stay.
15. Binding Effect: This First 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 First Amendment is not assignable by Seller.
16. 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 First 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 First 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 First Amendment.
17. 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 First Amendment
and that it has executed and delivered this First 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 First 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 First Amendment.
18. Severability: In the event that any portion of this First
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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 First Amendment and all such remaining terms and conditions of this First
Amendment are to continue in full force and effect.
19. Continued Effectiveness of Sale Documents: Except as
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specifically 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.
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It is the intention of the parties hereto that this First 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 First
Amendment or caused this First 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:________________________________________
DOROTHY C. VINE, Secretary/Clerk PAUL S. GLASS, President
WITNESS/ATTEST: SUMMIT LEASING CORPORATION
(formerly known as UJB Leasing Corporation)
_________________________________ By:________________________________________
PETER C. PLATT, President
Chief Executive Officer
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