EXHIBIT 10.53
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
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This Amendment is made as of February 12, 1996 ("Amendment") to supplement and
amend that certain Purchase and Sale Agreement dated as of August 7, 1995 and
all documents related thereto (collectively, the "Sale Agreement") between
▇▇▇▇▇▇ FINANCIAL, INC., a Delaware corporation ("▇▇▇▇▇▇") and BANKVEST CAPITAL
CORP., a Massachusetts corporation ("BankVest"). Any capitalized terms used
herein and which are defined in the Sale Agreement shall have the meaning set
forth in the Sale Agreement. Where a textual passage is amended in part only,
new language may be shown double underlined, deleted language may be shown in
=================
*strikeout* and ... (an ellipsis) may be used for language that is unmodified.
Such double underlining, strike out and ellipses as used herein are for
convenience only to illustrate changes from the Sale Agreement, and are not part
of the Sale Agreement as amended.
PRELIMINARY STATEMENT
---------------------
A. Pursuant to the Sale Agreement, BankVest has assigned to ▇▇▇▇▇▇
BankVest's right, title and interest in and to various Contracts and Payments
thereunder, and assigned to ▇▇▇▇▇▇ all of BankVest's right, title and interest
in and to, or grated to ▇▇▇▇▇▇ a security interest in the Equipment covered by
such Contracts;
B. BankVest desires to increase the available aggregate Repurchase Price
with respect to all Contracts to $7,500,000 (the "Increased Facility"), with
availability to be shared between the Sale Agreement and that certain Loan and
Security Agreement dated as of August 7, 1995 by and between ▇▇▇▇▇▇ and BankVest
("Loan Agreement"). ▇▇▇▇▇▇ is willing to comply with BankVest's request, subject
to the terms and conditions set forth below.
NOW, THEREFORE, it is hereby agreed as follows:
1. AMENDMENT OF DEFINITIONS; ADDITIONAL DEFINITIONS.
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1.1 New definitions, Loan and Security Agreement, Lockbox Compliance
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Ratio and Lockbox Compliance Ratio Covenant shall be added as follows:
----- ---------------------------------
"Loan and Security Agreement or Loan Agreement: that certain
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Loan and Security Agreement dated as of August 7, 1995 between
BankVest and ▇▇▇▇▇▇, as amended from time to time."
"Lockbox Compliance Ratio shall have the meaning set forth in
------------------------
Exhibit H -- Lockbox Compliance Certificate."
"Lockbox Compliance Ratio Covenant: a requirement that the
---------------------------------
Lockbox Compliance Ratio, as set forth in the most recently due
Lockbox Compliance Certificate, expressed as a percentage, be equal
to or greater than eighty percent (80%)."
1.2 The definition of Acquisition Cost shall be amended to read as
----------------
follows:
"Acquisition Cost: all costs and expenses incurred by BankVest in
----------------
connection with the acquisition of any Eligible Equipment, including,
without limitation, sales or use taxes, freight or installation
costs, and license fees, but excluding any down payments or deposits
===========
(including security deposits) made by Lessee."
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1.3 The definition of Collection Agent shall be amended to read as
----------------
follows:
"Collection Agent: XEROX ADMINISTRATIVE SERVICES, PARISH
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FINANCIAL SERVICING CO., L.P., or any successor entity jointly
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approved by ▇▇▇▇▇▇ and BankVest which is authorized to service,
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administer and collect remittances due from Lessees under Facility
Contracts."
1.4 The definition of Lockbox Agreement shall be amended to read as
-----------------
follows:
"Lockbox Agreement: the agreement among BankVest, Collection
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Agent and ▇▇▇▇▇▇, substantially in the form attached hereto as
Exhibit E and subject to ▇▇▇▇▇▇'▇ approval, which shall set forth the
================================
terms, conditions and provisions of the Lockbox."
2. PURCHASE PRICE. The last sentence of Section 2 shall be amended to read
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as follows:
"Notwithstanding anything contained herein to the contrary, (i)
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▇▇▇▇▇▇ shall not be obligated to purchase any Contracts if at the time of
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purchase, or as a result of such purchase, BankVest is or would be in
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violation of the Lockbox Compliance Ratio Covenant, and (ii) at no time
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shall the aggregate Repurchase Price with respect to all Contracts exceed
the sum of *Three Million Dollars ($3,000,000)* Seven Million Five
==================
Hundred Thousand Dollars ($7,500,000) less all amounts outstanding under
========================================================================
the Loan Agreement."
====================
3. FINANCIAL STATEMENTS AND OTHER REPORTS. Section 6(a) shall be amended to
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read as follows:
"(a) maintain full and complete books of account and other records
reflecting the results of BankVest's operations, all in accordance with
GAAP, and shall furnish or cause to be furnished to ▇▇▇▇▇▇ within:
(i) 120 days after the end of each year, the audited financial
statements for such year for BankVest certified (without
qualification as to the opinion or scope of examination) by a firm of
independent certified public accountants selected by BankVest and
satisfactory to ▇▇▇▇▇▇;
(ii) Semi-annually, within 30 days of period end, computer
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diskettes/tapes containing all backup data regarding BankVest's
===============================================================
portfolio, in format acceptable to ▇▇▇▇▇▇;
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(iii) 30 days after the end of each quarter, (I) a true and
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correct copy of the Lockbox statements for the preceding quarter,
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(II) the completed Lockbox Compliance Certificate for the preceding
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quarter, in the form attached hereto as Exhibit O, (III) computer
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diskettes/tapes containing all backup data regarding Facility
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Contracts and Facility Equipment, in format acceptable to Lender; and
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(IV) reports setting forth leasing, remarketing activities and
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insurance settlements with respect to all Facility Equipment;
(iv) 60 days after the end of each quarter, quarterly financial
statements of BankVest;
(v) 30 days after the end of each month: reports setting forth
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(I) any change in the identity or location of all Facility Equipment
and (II) all cash applications pertaining to the Facility Contracts,
and (III) amounts received and receivable due under each Facility
Contract, including the amounts overdue and the period for which such
amounts are overdue,
(vi) 10 days after receipt thereof by BankVest, copies of all
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End-User financial statements required to be delivered to BankVest
pursuant to the applicable Contract.
All of the items described in clauses (ii) *and (iii)* through (v)
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of this Section shall be certified by an authorized officer of BankVest."
4. ADDITIONAL EVENTS OF DEFAULT. The following shall be added as additional
----------------------------
Events of Default at the end of the first sentence of section Section 12(a)
thereunder:
", (iv) if XEROX ADMINISTRATIVE SERVICES or PARISH FINANCIAL
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SERVICING CORP., L.P. shall give notice that it intends to terminate the
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Lockbox Agreement, and within the foregoing notice period, no substitute
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Collection Agent shall have executed a Lockbox Agreement in form and
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substance acceptable to ▇▇▇▇▇▇, or (v) if BankVest shall have failed to
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comply with the Lockbox Compliance Ratio Covenant and such failure is not
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cured within sixty (60) days' notice from ▇▇▇▇▇▇ to BankVest."
============================================================
5. FORM OF LOCKBOX COMPLIANCE CERTIFICATE/EXHIBIT H. An Exhibit H -- Form
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of Lockbox Compliance Certificate shall be added in the form attached to this
Amendment as Exhibit H.
6. INCREASED IN AGGREGATE PURCHASE PRICE. Subject to the satisfaction of
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the terms and conditions of this Amendment, the maximum available Repurchase
Price under the Sale Agreement shall be increased from $3,000,000.00 to
$7,500,000.00, less any amounts outstanding under the Loan Agreement.
7. CONDITIONS OF INCREASE. The obligation of ▇▇▇▇▇▇ to increase the
-----------------------
available Repurchase Price under the Sale Agreement shall be subject to the
satisfaction of all of the following conditions in a manner, form and substance
satisfactory to ▇▇▇▇▇▇:
7.1 Representations and Warranties. The representations and warranties
------------------------------
set forth in this Amendment and the Sale Agreement, where applicable, shall
be true and correct as of February 12, 1996 and as of the date this Amendment
is executed by BankVest.
7.2 Delivery of Documents. The following shall have been delivered to
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▇▇▇▇▇▇, each duly authorized and executed:
(a) a certificate of incumbency of BankVest in the form of Exhibit 1
attached hereto, and a Unanimous Consent in the form of Exhibit 2
attached hereto;
(b) a current certificate of good standing in the states in which
BankVest is qualified or authorized to do business;
(c) certified copies of any amendments to the articles of
incorporation and by-laws of BankVest since the date such materials were
last furnished to ▇▇▇▇▇▇; and
(d) such other documents, certificates, consents and waivers as
▇▇▇▇▇▇ may request.
7.3 Closing Certificate. BankVest shall deliver to ▇▇▇▇▇▇ a closing
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certificate in the form of Exhibit 4 attached hereto, signed by the
President, Vice President, Secretary or Treasurer of BankVest.
7.4 Material Adverse Changes. No event shall have occurred which has a
------------------------
material adverse effect on (i) the financial condition, property, business,
operations, prospects or profits of BankVest or the ability of BankVest to
perform its obligations hereunder or under the Sale Agreement or (ii) the
projections for financial performance of BankVest as set forth in any
document or paper furnished to ▇▇▇▇▇▇ by BankVest or its representatives.
8. REPRESENTATIONS AND WARRANTIES. BankVest represents and warrants to
------------------------------
▇▇▇▇▇▇ that all representations and warranties set forth in the Sale Agreement,
as modified by this Amendment as applicable, are true, complete and accurate in
all respects as of the date hereof.
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9. SURVIVAL OF ORIGINAL AGREEMENT. Except as amended hereby, the Sale
------------------------------
Agreement shall remain in full force and effect, and BankVest shall continue to
be subject to the security interests and liens granted thereunder.
10. SUCCESSORS AND ASSIGNS. The terms hereof shall inure to the benefit of
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and be binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns.
11. COUNTERPARTS. This Amendment shall not be effective unless and until it
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has been executed by all parties hereto. This Amendment may be executed in
multiple counterparts, and signatures by facsimile shall be deemed acceptable.
SIGNATURE BLOCK ON THE FOLLOWING PAGE
IN WITNESS WHEREOF, the parties have executed this Amendment as of February
12, 1996.
BANKVEST CAPITAL CORP. ▇▇▇▇▇▇ FINANCIAL, INC.
By: ________________________________ By: _______________________________
Title: _____________________________ Title: ____________________________
Attest:
____________________________________
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EXHIBIT H
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Form of Lockbox Compliance Certificate
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LOCKBOX COMPLIANCE CERTIFICATE FOR THE QUARTER ENDED _______________
(A): TOTAL DOLLAR AMOUNT OF ALL CHECKS RECEIVED IN OUR LOCKBOX ON LOANS/LEASES
ASSIGNED TO ▇▇▇▇▇▇ FINANCIAL, INC. ____________________./1/
(B): TOTAL DOLLAR AMOUNT OF ALL PAYMENTS RECEIVED ON LOANS/LEASES ASSIGNED TO
▇▇▇▇▇▇ FINANCIAL, INC. _________________________________.
LOCKBOX COMPLIANCE RATIO (A DIVIDED BY B) ____________________.
______________________________________
/1/ Note: This amount should only include checks forwarded directly by
the Lessee to the Lockbox. It should not include checks forwarded to BankVest
and subsequently forwarded to the Lockbox.
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EXHIBIT 1
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FORM OF INCUMBENCY CERTIFICATE
OF
BankVest Capital Corp.
----------------------
The undersigned, being the duly elected ________________________ of BANKVEST
CAPITAL CORP., a corporation formed pursuant to the laws of the State of
Massachusetts (the "Company"), does hereby certify that the following persons
currently are serving in the Company in the capacities set forth opposite each
such name and that set forth opposite each such name is a true and correct
specimen of the signature of such person:
Name Title Signature
------ ----- ---------
_______________ ________________ ___________________
_______________ ________________ ___________________
_______________ ________________ ___________________
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the __
day of February, 1996.
BANKVEST CAPITAL CORP.
By: _______________________
Title: ______________________
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EXHIBIT 2
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FORM OF UNANIMOUS CONSENT OF THE BOARD OF DIRECTORS
AND SHAREHOLDERS OF BANKVEST CAPITAL CORP.
We, the undersigned, being all of the Shareholders and all of the members of
the Board of Directors of BankVest Capital Corp., a Massachusetts corporation
(the "Company"), hereby do consent to the adoption of, and hereby do adopt, the
following resolutions:
WHEREAS, the Company and ▇▇▇▇▇▇ Financial, Inc., a Delaware corporation
("▇▇▇▇▇▇") entered into a Sale Agreement dated as of August 7, 1995 ("Sale
Agreement"), pursuant to which BankVest has assigned to ▇▇▇▇▇▇ BankVest's right,
title and interest in and to various Contracts and Payments thereunder, and
assigned to ▇▇▇▇▇▇ all of BankVest's right, title and interest in and to, or
grated to ▇▇▇▇▇▇ a security interest in the Equipment covered by such Contracts;
WHEREAS, there has been presented and reviewed by the President, Vice
President, Secretary or Treasurer of the Company (i) a proposed form of an
Amendment to Sale Agreement ("Amendment") to be executed by and between ▇▇▇▇▇▇
and the Company and (ii) proposed forms of certain other documents to be
executed in connection with the consummation of the transactions contemplated by
the Amendment (the "Related Amendment Agreements"). The Sale Agreement, the
Amendment and the Related Amendment Agreements shall hereinafter collectively be
referred to as the "Sale Agreement". All other capitalized terms used herein
which are not otherwise defined herein and which are defined in the Sale
Agreement shall have the meaning set forth in the Sale Agreement;
WHEREAS, pursuant to the terms of the Amendment, ▇▇▇▇▇▇ proposed to increase
the amount of the available Repurchase Price for Contracts to $7,500,000 (the
"Increased Facility"), less any amounts outstanding under that certain Loan and
Security Agreement dated as of August 7, 1995, as amended from time to time;
WHEREAS, as a condition precedent to the Increased Facility, ▇▇▇▇▇▇ requires,
inter alia, the execution and delivery by the Company of the Amendment and the
other Related Amendment Agreements to which the Company is to be a party; and
WHEREAS, the Board of Directors of the Company and the Shareholders of the
Company deem it to be in the best interest of the Company to obtain the
Increased Facility, and to execute and deliver the Amendment and all other
Related Amendment Agreements to which the Company is to be a party, and to
effect the transactions contemplated therein;
NOW, THEREFORE, it is hereby resolved that the Company be and it hereby is
authorized to execute and deliver to ▇▇▇▇▇▇ the Amendment and each of the
Related Amendment Agreements to which the Company is to be a party; and
FURTHER RESOLVED, the President, Vice President, Secretary or Treasurer of
the Company, be and they hereby are authorized and directed, in the name and on
behalf of the Company to execute and deliver the Amendment, each of the Related
Amendment Agreements to which the Company is a party, and all other documents,
instruments, agreements and statements, which may be necessary to effectuate the
transactions contemplated hereby and thereby, all of which shall be in the forms
previously reviewed by the undersigned, or with such changes as the officer(s)
executing the same shall approve, and the execution and delivery thereof by such
officer(s) shall constitute the approval of the terms thereof;
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FURTHER RESOLVED, that the President, Vice President, Secretary or Treasurer
of the Company, be and they hereby are authorized and directed, in the name and
on behalf of the Company, to do and perform any and all other acts and to
execute and deliver any and all other documents, instruments and certificates,
which may be necessary, appropriate or desirable in order to consummate the
transactions contemplated hereby.
FURTHER RESOLVED, that these resolutions may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which,
when taken together, shall be deemed to be one and the same instrument.
Dated: __________________________
DIRECTORS:
_______________________________
_______________________________
_______________________________
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EXHIBIT 4
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BANKVEST CAPITAL CORP.
FORM OF CLOSING CERTIFICATE
---------------------------
▇▇▇▇▇▇ Financial, Inc.
One TransAm Plaza Drive -- Suite ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Pursuant to that certain Sale Agreement dated as of August 7, 1995 by and
between BANKVEST CAPITAL CORP., a Massachusetts corporation ("BankVest"), and
▇▇▇▇▇▇ FINANCIAL, INC., a Delaware corporation ("▇▇▇▇▇▇"), as amended by the
Amendment to Sale Agreement ("Amendment") dated as of February 12, 1996;
(collectively, "Sale Agreement"), and as an inducement to and part of the
consideration for the Increased Facility (as defined in the Sale Agreement), the
undersigned hereby warrants and represents to you that:
1. All representations and warranties made by the undersigned in the Sale
Agreement and the related documents are true and correct in all material
respects as of the date hereof.
2. No Event of Default exists (as such term is defined in the Sale
Agreement).
DATED as of February ________________, 1996.
BANKVEST CAPITAL CORP. Attest:
By:______________________________ ______________________
Its: ____________________________
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INCUMBENCY CERTIFICATE OF BankVest Capital Corp.
------------------------------------------------
The undersigned, being the duly elected ________________________ of BANKVEST
CAPITAL CORP., a corporation formed pursuant to the laws of the State of
Massachusetts (the "Company"), does hereby certify that the following persons
currently are serving in the Company in the capacities set forth opposite each
such name and that set forth opposite each such name is a true and correct
specimen of the signature of such person:
Name Title Signature
---- ----- ---------
_______________ _______________ _________________
_______________ _______________ _________________
_______________ _______________ _________________
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the day
of June, 1995.
BANKVEST CAPITAL CORP.
By: _______________________
Title: ____________________
CLOSING CERTIFICATE
-------------------
▇▇▇▇▇▇ Financial, Inc.
One TransAm Plaza Drive -- Suite ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Pursuant to that certainSale Agreement dated as of August 7, 1995 by and between
BANKVEST CAPITAL CORP., a Massachusetts corporation ("BankVest"), and ▇▇▇▇▇▇
FINANCIAL, INC., a Delaware corporation ("▇▇▇▇▇▇"), as amended by the Amendment
to Sale Agreement ("Amendment") dated as of February 12, 1996; (collectively,
"Sale Agreement"), and as an inducement to and part of the consideration for the
Increased Facility (as defined in the Sale Agreement), the undersigned hereby
warrants and represents to you that:
1. All representations and warranties made by the undersigned in the Sale
Agreement and the related documents are true and correct in all material
respects as of the date hereof.
2. No Event of Default exists (as such term is defined in the Sale
Agreement).
DATED as of December __________, 1995.
BANKVEST CAPITAL CORP. Attest:
By:______________________________ ______________________
Its: ____________________________
UNANIMOUS CONSENT OF THE BOARD OF DIRECTORS
AND SHAREHOLDERS OF BANKVEST CAPITAL CORP.
_________________________________________________________________________
We, the undersigned, being all of the Shareholders and all of the members of
the Board of Directors of BankVest Capital Corp., a Massachusetts corporation
(the "Company"), hereby do consent to the adoption of, and hereby do adopt, the
following resolutions:
WHEREAS, the Company and ▇▇▇▇▇▇ Financial, Inc., a Delaware corporation
("▇▇▇▇▇▇") entered into a Sale Agreement dated as of August 7, 1995 ("Sale
Agreement"), pursuant to which BankVest has assigned to ▇▇▇▇▇▇ BankVest's right,
title and interest in and to various Contracts and Payments thereunder, and
assigned to ▇▇▇▇▇▇ all of BankVest's right, title and interest in and to, or
grated to ▇▇▇▇▇▇ a security interest in the Equipment covered by such Contracts;
WHEREAS, there has been presented and reviewed by the President, Vice
President, Secretary or Treasurer of the Company (i) a proposed form of an
Amendment to Sale Agreement ("Amendment") to be executed by and between ▇▇▇▇▇▇
and the Company and (ii) proposed forms of certain other documents to be
executed in connection with the consummation of the transactions contemplated by
the Amendment (the "Related Amendment Agreements"). The Sale Agreement, the
Amendment and the Related Amendment Agreements shall hereinafter collectively be
referred to as the "Sale Agreement". All other capitalized terms used herein
which are not otherwise defined herein and which are defined in the Sale
Agreement shall have the meaning set forth in the Sale Agreement;
WHEREAS, pursuant to the terms of the Amendment, ▇▇▇▇▇▇ proposed to increase
the amount of the available Repurchase Price for Contracts to $7,500,000 (the
"Increased Facility"), less any amounts outstanding under that certain Loan and
Security Agreement dated as of August 7, 1995, as amended from time to time;
WHEREAS, as a condition precedent to the Increased Facility, ▇▇▇▇▇▇ requires,
inter alia, the execution and delivery by the Company of the Amendment and the
other Related Amendment Agreements to which the Company is to be a party; and
WHEREAS, the Board of Directors of the Company and the Shareholders of the
Company deem it to be in the best interest of the Company to obtain the
Increased Facility, and to execute and deliver the Amendment and all other
Related Amendment Agreements to which the Company is to be a party, and to
effect the transactions contemplated therein;
NOW, THEREFORE, it is hereby resolved that the Company be and it hereby is
authorized to execute and deliver to ▇▇▇▇▇▇ the Amendment and each of the
Related Amendment Agreements to which the Company is to be a party; and
FURTHER RESOLVED, the President, Vice President, Secretary or Treasurer of
the Company, be and they hereby are authorized and directed, in the name and on
behalf of the Company to execute and deliver the Amendment, each of the Related
Amendment Agreements to which the Company is a party, and all other documents,
instruments, agreements and statements, which may be necessary to effectuate the
transactions contemplated hereby and thereby, all of which shall be in the forms
previously reviewed by the undersigned, or with such changes as the officer(s)
executing the same shall approve, and the execution and delivery thereof by such
officer(s) shall constitute the approval of the terms thereof;
FURTHER RESOLVED, that the President, Vice President, Secretary or Treasurer
of the Company, be and they hereby are authorized and directed, in the name and
on behalf of the Company, to do and perform any
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and all other acts and to execute and deliver any and all other documents,
instruments and certificates, which may be necessary, appropriate or desirable
in order to consummate the transactions contemplated hereby.
FURTHER RESOLVED, that these resolutions may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which,
when taken together, shall be deemed to be one and the same instrument.
Dated: ________________________
DIRECTORS:
_______________________________
_______________________________
_______________________________
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