Exhibit 10.15
AGREEMENT OF AMENDMENT
This Agreement of Amendment (this "Amendment") is made as of December 9, 1997,
by and between Viisage Technology, Inc. ("Viisage") and Sanwa Business Credit
Corporation ("SBCC").
Introduction. Viisage and SBCC are parties to a Purchase Agreement, dated as
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of September 12, 1996 (the "Agreement"), pursuant to which SBCC purchases from
Viisage certain Systems and related Payments and Assigned Rights. The parties
wish to modify and clarify provisions of the Agreement that pertain to advances
provided by SBCC prior to the completion of System installation, so that the
same will be treated as debt until completion of installation. THEREFORE, the
parties mutually agree as follows:
1. Capitalized terms defined in the Agreement and used in this Amendment,
unless separately defined herein, will have the defined meanings set forth in
the Agreement, as amended hereby.
2. All references in Section 2 of the Agreement to "interim purchase price
payments", "interim conditional payments" and "interim payments" are amended to
read "interim advances", and all references in Section 2 of the Agreement to
"final payment" or "final purchase price payment" are amended to read "final
advance".
3. Section 2(a)(ii) and 2(a)(iii) of the Agreement each is amended by adding
the following text at the end thereof (in the case of Section 2(a)(ii), before
", and"): ", provided that for Systems which have not been fully developed or
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installed and for which interim advances are to be made under Section 2(d), the
foregoing condition need be satisfied only at the time the final advance is
made."
4. Section 2(d) of the Agreement is amended as follows:
4.1 The following text is added to the end of Section 2(d)(iv), after the
word "SBCC": ", provided that until final advance, said assignment shall be a
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collateral assignment, only, granting a security interest in favor of SBCC to
secure repayment of interim advances made by SBCC hereunder (and upon SBCC's
final advance for such System, said assignment automatically shall cease to be
conditional, and title automatically shall pass to and vest in SBCC without
requiring any further action on the part of any party);".
4.2 The following text is added to the end of Section 2(d)(vi), after the
word "System": "and conveyance to SBCC of title to the System and related
Payments, Assigned Rights and Customer Guaranties, and proceeds thereof;".
4.3 The following paragraph is added to the end of Section 2(d):
"Despite anything to the contrary in this Agreement or any Assignment, the
parties agree that any Assignment that is made with respect to a System which
has not been fully developed or installed, and for which interim advances are to
be made under Section 2(d), shall be deemed to grant and convey only a
collateral assignment to and security interest in favor of SBCC, to secure
Viisage's repayment of all existing and future interim advances that SBCC makes
with respect to such System under Section 2(d), together with interest thereon,
until such time when the final advance shall have been made for such System (or
said advances shall have been repaid, together with interest thereon) as
contemplated under Section 2(d), and upon the making of such final advance, said
Assignment automatically (and without any further action on the part of any
party) shall cease to be conditional and shall become fully effective to
transfer to SBCC the System and the other property, rights and interests set
forth therein."
5. Section 2(e) is amended and restated in its entirety to read as follows:
"Closing Out of Interim Advances. If, on or before the date for final advance
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under Section 2(d)(iii) above, (i) all of the conditions described under Section
2(d) with respect to the transaction have been and continue to be satisfied, and
(ii) all acceptances and conditions required to cause the Contract and the
Payments provided thereunder to be become unconditional, fully satisfied
obligations of the Customer have been satisfied, then SBCC will remit the final
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advance to Viisage, and all advances and unpaid interest accrued thereon
automatically shall be credited against the Purchase Price otherwise payable by
SBCC to Viisage for such System, the Assignment will become unconditionally
effective and title to the System, and related Payments, Assigned Rights and
Customer Guaranties, and proceeds thereof, automatically and without further
action on the part of either party shall vest in SBCC. If any of the conditions
specified under Section 2(d) are not satisfied on the scheduled date for an
interim advance or cease to be fully satisfied after an interim advance has been
paid, or any of the conditions specified in the preceding sentence are not
satisfied as of the date for final advance, then SBCC's remaining obligation to
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purchase the System, Payments and Assigned Rights shall become void and of no
further effect, and Viisage will immediately make payment to SBCC of the amount
of any interim advances made by SBCC, plus interest thereon from the date of the
advance to the date of payment at a rate equal to the Prime Rate, and upon
SBCC's receipt of such payment, the security interests arising under and any
other remaining provisions of the Assignment will be canceled and of no further
effect."
6. Sections 9(a), (b) and (c) of the Agreement are amended and restated in
their entirety as follows:
"(a) Ineligible Systems, Payments or Contracts. If any of the conditions
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specified in Section 4 shall not be or shall cease to be true, correct or
satisfied, SBCC may request or demand that Viisage repurchase the related or
affected System and Payments (or as the case may require, repay any interim
advances made with respect to the related or affected System and Payments). If
any such condition remains untrue, incorrect or unsatisfied for sixty (60) days
after SBCC's written request or demand, then Viisage will immediately after
expiration of the sixty (60) day period, repurchase the System and Payments for
cash for a price equal to the then applicable Termination Amount of the related
System (or repay the interim advances, plus interest thereon from the date of
the advance to the date of payment at a rate equal to the Prime Rate).
"(b) Repurchase of All Systems and Payments. Upon any breach of Viisage's
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duties or agreements in this Agreement (other than any duty set forth in Section
5(d) or 5(e)) and the continuation of such breach for sixty (60) days after
written notice from SBCC, or upon a breach of any duty set forth in Section 5(d)
or 5(e), Viisage will immediately repurchase all Systems and Payments (and as
the case may require, repay any interim advances made with respect to the
related or affected System and Payments) for cash for a price equal to the total
of then applicable Termination Amounts of all such Systems (or repay the interim
advances, plus interest thereon from the date of the advances to the date of
payment at a rate equal to the Prime Rate).
"(c) Per-Use Payment Shortfall. If the Payments actually due under any Per-
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Use Contract over any three (3) consecutive-month period are less in the
aggregate than the total of Remittance Amounts for such period and no Credit
Default exists (other than a Credit Default existing solely because the Customer
has failed or refused to make payments, and not in connection with any other
Credit Default), and upon SBCC's written request to do so, Viisage will
repurchase the related System and Payments for cash (or as the case may require,
repay any interim advances made with respect to the related or affected System
and
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Payments) for a price equal to the then applicable Termination Amount (or repay
the interim advances, plus interest thereon from the date of the advance to the
date of payment at a rate equal to the Prime Rate)."
7. Exhibit A to the Agreement, which sets forth the form of Xxxx of Sale and
Assignment to be used under the Agreement, is amended by adding to the end of
the second "[optional]" paragraph on page 3 thereof, the following: "Despite
anything to the contrary in this Assignment, this Assignment shall be deemed to
grant and convey a collateral assignment and security interest in favor SBCC, to
secure Viisage's repayment of all existing and future interim advances, together
with interest thereon, under Section 2(d) of the Agreement, until such time when
the final advance shall have been made for the System as contemplated under
Section 2(e) of the Agreement. Upon the making of such final advance, this
Assignment automatically (and without any further action on the part of any
party) shall cease to be conditional and shall become fully effective to
transfer to SBCC the System and the other property, rights and interests set
forth herein."
8. The Purchase Agreement remains in full force and effect as amended
hereby.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be signed
by its duly authorized representative, under seal, as of the date first set
forth above.
Sanwa Business Credit Corporation Viisage Technology, Inc.
By: Xxxxxxx Xxxxxxxx By: Xxxxxxx X. Xxxxxxxx
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Title: Vice-President Title: Chief Financial Officer
and Treasurer
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