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AMENDMENT NO. 1
to
ASSET PURCHASE AGREEMENT
Dated as of May 5, 1998
among
ANACOMP, INC.,
FIRST FINANCIAL MANAGEMENT CORPORATION
and
FIRST DATA CORPORATION
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AMENDMENT NO. 1 TO ASSET
PURCHASE AGREEMENT
THIS AMENDMENT NO. 1, dated as of June 18, 1998 (this "Amendment"), to
Asset Purchase Agreement dated as of May 5, 1998 among Anacomp, Inc.
("Buyer"), First Financial Management Corporation ("FFMC") and First Data
Corporation ("FDC" and, together with FFMC, "Sellers").
WITNESSETH:
WHEREAS, Buyer and Sellers have agreed that, notwithstanding the
provisions of the Asset Purchase Agreement, the calculation of Closing Net
Working Capital in the middle of a month is impractical; and
WHEREAS, in order to determine Closing Net Working Capital at the end of a
month and to set forth certain other mutual agreements with respect to the
Asset Purchase Agreement, the parties desire to enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In this Amendment, unless the context shall otherwise
require, a term defined in the Asset Purchase Agreement has the same meaning
when used in this Amendment and a term defined anywhere in this Amendment has
the same meaning throughout.
In addition, Section 1.1 of the Asset Purchase Agreement shall be amended
by deleting the definition of "Closing Net Working Capital" set forth therein
in its entirety and substituting in lieu thereof:
`"Closing Net Working Capital" means the Net Working Capital of the
Division as of the close of business on May 31, 1998, as determined in
accordance with Section 3.2.'
1.2 Interpretation. Each definition in this Amendment includes the
singular and the plural, and reference to the neuter gender includes the
masculine and feminine where appropriate. References to any statute or
regulation means such statute or regulation as amended at the time and
include any successor legislation or regulations. The heading to the
Articles and Sections are for convenience of reference and shall not affect
the meaning or interpretation of this Amendment. Except as otherwise stated,
reference to Articles, Sections and Schedules mean the Articles, Sections and
Schedules of this Amendment.
ARTICLE II
PURCHASE AND SALE
2.1. Purchased Assets.
(a) Section 2.1(a) of the Asset Purchase Agreement shall be deleted in
its entirety and the following shall be substituted in lieu thereof:
"(a) All of the assets reflected on the Interim Balance
Sheet, except for cash held by the Division prior to June 1,
1998, except for cash held by the Division on or after June 1,
1998 in the amount of $366,781 and except for those assets
disposed of or converted into cash after the Interim Balance
Sheet Date in the ordinary course of Business and in accordance
with this Agreement;"
(b) A new clause (q) shall be added to Section 2.1 of the
Asset Purchase Agreement to read as follows:
"(q) All cash, bank deposits and cash equivalents in the
accounts set forth in Schedule 2.1 to Amendment No. 1 to this
Agreement."
2.2. Excluded Assets. Section 2.2(a) of the Asset Purchase
Agreement shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
"(a) All cash, bank deposits and cash equivalents held by
the Division prior to June 1, 1998 and cash held by the
Division on or after June 1, 1998 in the amount of $366,781;"
2.3. Assumed Liabilities. Section 2.3(a) of the Asset Purchase
Agreement shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
"(a) All liabilities reflected in the calculation of
Closing Net Working Capital and all liabilities of the type
reflected in such calculation which have been incurred on or
after June 1, 1998 (or would have been accrued in such
calculation as of the Closing Date);"
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2.4. Adjustment Procedure. Section 3.2(c)(i) of the Asset Purchase
Agreement shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
"(i) Within sixty (60) calendar days after the Closing Date,
Sellers Shall cause the Atlanta office of Ernst & Young LLP, on
their behalf, to prepare and deliver to Buyer an unaudited
consolidated balance sheet of the Division, dated as of May 31,
1998 (the "Closing Balance Sheet"), which shall include a
calculation of the Closing Net Working Capital and shall certify
that the Closing Balance Sheet has been prepared in accordance with
the Agreed Accounting Principles and otherwise on a basis
consistent with the Working Capital Model."
2.5. Liability for Taxes. Clause (I) of Section 8.2.1(a) shall be
deleted in its entirety and the following shall be substituted in lieu thereof:
"(I) any Tax liability or reserve taken into account in the
calculation of the Closing Net Working Capital as provided in
Section 3.2 and any Tax liability or reserve of the type reflected
in such calculation which has been incurred on or after June 1,
1998 (or would have been reserved for in such calculation as of the
Closing Date),"
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1. Counterparts. This Amendment may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
3.2. Entire Agreement. With respect to the subject matter hereof, this
Amendment shall supersede anything to the contrary contained in the Asset
Purchase Agreement.
3.3. Partial Invalidity. Wherever possible, each provision hereof shall
be interpreted in such manner as to be effective and valid under applicable
law, but in case any one or more of the provisions contained herein shall,
for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without
invalidating the remainder of such invalid, illegal or
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unenforceable provision or provisions or any other provisions hereof, unless
such a construction would be unreasonable.
3.4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW
PROVISIONS) OF THE STATE OF NEW YORK.
3.5. Waiver. Any term or provision of this Amendment may be waived, or
the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for the purposes of this Amendment if, as to any
party, it is authorized in writing by an authorized representative of such
party. The failure of any party hereto to enforce at any time any provision
of this Amendment shall not be construed to be a waiver of such provision,
nor in any way to affect the validity of this Amendment or any part hereof or
the right of any party thereafter to enforce each and every such provision.
No waiver of any breach of this Amendment shall be held to constitute a
waiver of any other or subsequent breach.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the
date first above written.
ANACOMP, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
FIRST FINANCIAL MANAGEMENT
CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
FIRST DATA CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
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