FIRST AMENDMENT TO THE
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (ELECTRONICS)
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED ASSET
PURCHASE AGREEMENT (ELECTRONICS) (this "Amendment"), is dated as of April 24,
2002, by and between General Electric Capital Corporation, a Delaware
corporation ("Purchaser"), and Comdisco, Inc., a Delaware corporation
("Seller"):
RECITALS
WHEREAS, the parties hereto have entered into that certain
Amended and Restated Asset Purchase Agreement (Electronics), dated as of April
10, 2002 but effective as of January 23, 2002 (the "Asset Purchase Agreement");
and
WHEREAS, the parties hereto desire to amend the Asset Purchase
Agreement;
NOW, THEREFORE, in consideration of the premises and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, and of the mutual covenants and agreements set
forth in the Asset Purchase Agreement, the parties intending to be legally bound
hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the respective meanings assigned to such terms in the Asset Purchase
Agreement.
2. Amendment to the Asset Purchase Agreement.
(a) The definition of "Adjustment Factor" in the Asset Purchase Agreement
is hereby amended and restated in its entirety as follows:
"Adjustment Factor" shall mean an amount equal to
the sum of (i) all of the obligations of Seller or
any of its Affiliates under the agreements set forth
on Schedule 1.1R as of the Cut-Off Date, which
amount for the purpose of calculating the Estimated
Payment shall be deemed to be equal to $10,162,525
and (ii) $2,342,836.
(b) The definition of "Assumed Liabilities" in the Asset Purchase Agreement is
hereby amended by deleting the word "and" at the end of clause (vi) thereof and
adding the following language after clause (vii) thereof:
; and (viii) any obligations required to be paid or
performed from and after the Closing Date with
respect to the Portfolio Property subject to any
Solectron Excluded Contract which Portfolio Property
has been effectively transferred and assigned to
Purchaser or a Purchaser Affiliate pursuant to the
terms hereof, except obligations arising out of a
breach by any member of the Seller Group thereunder
or with respect thereto.
(c) The definition of "Closing" in the Asset Purchase Agreement is hereby
amended by adding the following sentence at the end thereof:
For the avoidance of doubt, Seller, for itself and on
behalf of each other member of the Seller Group, and
Purchaser, for itself and on behalf of each Purchaser
Affiliate, hereby agree that the initial Closing Date
shall be deemed to be April 24, 2002 for all purposes
of this Agreement and each of the other agreements,
instruments and documents delivered pursuant hereto.
(d) The following definition is hereby inserted into Section 1.1 in its
proper alphabetical order:
"Conduit Financing Contracts" shall mean each
Financing Contract listed on the June Portfolio Tape
for the Electronics Segment that is conveyed by
Seller as of the initial Closing Date and is subject
to an Encumbrance arising out of either (i) the Loan
and Servicing Agreement, dated as of April 1, 2000,
among CDO Capital, L.L.C., CDO RM, Inc., Seller and
Three Rivers Funding Corporation, as amended,
supplemented or otherwise modified, or (ii) the Loan
and Servicing Agreement, dated as of July 1995, among
CDO Capital L.L.C., CDO RM, Inc., Seller and Thames
Asset Global Securitization No.1, Inc., as amended,
supplemented or otherwise modified (collectively, the
"Conduit Facilities"), all of which are set forth on
Schedule 1.1W hereto.
(e) The definition of "Cut-Off Date Schedule of Assets Acquired and Liabilities
Assumed" in the Asset Purchase Agreement is hereby amended by deleting the words
"and the Adjustment Factor" in the third line thereof and inserting the words ",
the Adjustment Factor and the Solectron Adjustment Factor" in place thereof.
(f) The definition of "Electronics Rental Payments" in the Asset Purchase
Agreement is hereby amended by deleting the words "and (vi)" in the fourth line
thereof and inserting the phrase ", (vi), (xii) and (xiii) and Section
2.1(f)(i)" in place thereof.
(g) The definition of "Estimated Payment" in the Asset Purchase Agreement is
hereby amended by inserting the words "and the Solectron Adjustment Factor"
after the words "Adjustment Factor".
(h) The definition of "Excluded Assets" in the Asset Purchase Agreement is
hereby amended by deleting the word "and" at the end of clause (xiv) thereof and
adding the following language after clause (xv) thereof:
and (xvi) any Conduit Financing Contract (including,
without limitation, any Portfolio Property subject
thereto) if Seller has not complied with its
obligations under Section 5.15 hereof with respect to
such Financing Contract, and Purchaser has notified
Seller of such noncompliance prior to the expiration
of twenty (20) Business Days after the initial
Closing Date.
(i) Clause (iii) of the definition of "Portfolio Property" in the Asset
Purchase Agreement is hereby amended and restated as follows:
(iii) Property subject to the Excluded Financing
Contracts or the Solectron Excluded Contracts.
(j) The definition of "Purchased Financing Contracts" in the Asset Purchase
Agreement is hereby amended by amending and restating clause (M) thereof as
follows:
(M) that is an Excluded Financing Contract; provided,
however, that in the event any Obligor exercises its
right to extend the term of any Excluded Financing
Contract under applicable law, then on the Title
Date, such Excluded Financing Contract shall be
deemed to be a Purchased Financing Contract and a
Purchased Asset;
(k) The definition of "Purchased Financing Contracts" in the Asset Purchase
Agreement is hereby further amended by deleting the word "or" at the end of
clause (L) thereof and adding the following language after clause (M) thereof:
; (N) that is a Financing Contract set forth on
Schedule 1.1S; or (O) that is a Solectron Excluded
Contract.
(l) The following definitions are hereby inserted into Section 1.1 in their
proper alphabetical order:
"Solectron Adjustment Factor" shall mean an amount
equal to the sum of (i) all of the obligations of
Seller or any of its Affiliates under the agreements
set forth on Schedule 1.1T as of the Cut-Off Date,
which amount for the purpose of calculating the
Estimated Payment shall be deemed to equal to
$1,766,051 and (ii) $4,713,230.
"Solectron Excluded Contracts" shall mean the
Financing Contracts listed on Schedule 1.1U.
(m) The definition of "Special Adjustments" in the Asset Purchase Agreement is
hereby amended by deleting the word "and" at the end of clause (iv), inserting
"," in lieu thereof and inserting the following language after clause (v):
and (vi) add a reserve for credit losses on the
Adjusted Cut-Off Date Schedule of Assets Acquired and
Liabilities Assumed in an amount equal to 2% of the
aggregate Net Book Value of the Purchased Financing
Contracts.
(n) The definition of "Title Date" in the Asset Purchase Agreement is
hereby amended and restated in its entirety as follows:
"Title Date" means with respect to any
Portfolio Property, (i) in the event any Obligor
exercises any purchase option to acquire such
Portfolio Property under any Excluded Financing
Contract, the date which is one Business Day prior
to the day on which an Obligor or its designee
acquires title to such Portfolio Property, (ii) in
the event any Obligor exercises its right to extend
the terms of any Excluded Financing Contract under
applicable Romanian law, the date which is one
Business Day prior to the commencement of such
extension period and (iii) in all other cases, the
date on which such Portfolio Property is located at
a location designated by the Purchaser Affiliate to
which such Portfolio Property is to be transferred
and assigned.
(o) Section 2.1(a) is hereby amended by adding the words "together with the
assets described in Section 2.1(f)," in the seventh line thereof after the words
"Sections 5.1(j) and 6.2(c)," and before the words "the `Purchased Assets'):"
(p) Section 2.1(a)(xi) is hereby further amended and restated in its
entirety as follows:
(xi) [Intentionally Omitted];
(q) Section 2.1(a) is hereby further amended by deleting "." at the end of
clause (xii), inserting the words "; and" in lieu thereof and adding the
following language after clause (xii) thereof:
(xiii) the Portfolio Property related to the
Solectron Excluded Contracts, subject to the rights
of any Obligor under the Solectron Excluded
Contracts; provided, however, that in the event any
Obligor thereunder exercise its purchase option, if
any, with respect to such Portfolio Property in
accordance with the terms of the applicable Solectron
Excluded Contracts, the proceeds of such exercise of
such purchase option.
(r) Section 2.1(f)(i) is hereby amended and restated in its entirety as
follows:
(f)(i) Notwithstanding the foregoing, at the Closing,
Seller shall and shall cause each Assigning
Subsidiary, as applicable, to sell, assign, transfer
and convey to Purchaser or any Purchaser Affiliate
(A) a right to purchase, as of the Title Date, good,
valid and marketable title (free and clear of all
Encumbrances other than Permitted Encumbrances) to
the Portfolio Property which is currently subject to
the Excluded Financing Contracts, subject to the
purchase option of the applicable Obligors with
respect to such Portfolio Property pursuant to the
terms of such Excluded Financing Contracts; (B) in
the event an Obligor exercises any purchase option to
acquire any Portfolio Property under any Excluded
Financing Contract, all of Transferor's right, title
and interest in and to all of the proceeds of the
exercise of such purchase option (free and clear of
all Encumbrances) and (C) in the event any Obligor
exercises its right to extend the term of any
Excluded Financing Contract under applicable law, all
of Transferor's right, title and interest in and to
such Excluded Financing Contract, including, without
limitation, any and all rental payments to be made
pursuant to such Excluded Financing Contract as a
result of such extension (free and clear of all
Encumbrances).
(s) Section 2.1 (f)(ii) is hereby amended by replacing the reference to "Section
2.1(a)(xi)" in the second line thereof with a reference to "Section 2.1(f)(i)".
(t) Section 2.1 is hereby further amended by adding the following language
at the end thereof:
(g) Notwithstanding anything to the contrary set
forth in this Section 2.1, in the event that any of
the Purchased Financing Contracts listed on Schedule
1.1V shall be included as part of a Closing, such
Purchased Financing Contracts shall be transferred
and assigned in accordance with a conveyance
instrument substantially similar to the other
conveyance instruments delivered pursuant to this
Agreement, revised to reflect local law requirements
and including provisions that would provide the
applicable Purchaser Affiliate with a one hundred
percent (100%) participation interest in any such
Purchased Financing Contract until such time as such
Purchaser Affiliate has obtained all licenses and
permits necessary for it to take title to, and a full
assignment of, such Purchased Financing Contracts.
(u) Section 2.2 is hereby amended and restated in its entirety as follows:
The Purchase Price. The aggregate purchase price to
be paid by Purchaser and Purchaser Affiliates
(provided that Purchaser shall not be relieved of its
obligation to pay the Purchase Price hereunder to the
extent any Purchaser Affiliate fails to pay its
allocable portion of the Purchase Price pursuant to
this Agreement) for the Purchased Assets (the
"Purchase Price") shall be an amount equal to, in the
case of clauses (a)(i) and (b) below, as reflected on
the Adjusted Cut-Off Date Schedule of Assets Acquired
and Liabilities Assumed, the sum of (a)(i) (A) 69% of
the Net Book Value of the Purchased Financing
Contracts, (B) 67% of the Net Book Value of all
Purchased Assets (other than the Purchased Financing
Contracts and the Purchased Assets described in
Sections 2.1(f)(i), 2.1(a)(xi) and 2.1(a)(xiii)),
including, without limitation, assets related to the
Purchased Financing Contracts that would be reflected
on a balance sheet of Seller prepared in accordance
with the Accounting Principles as "deferred
maintenance costs," "prepaid sales taxes" and any
other account to which payments owned by an Obligor
under a Purchased Financing Contract are associated,
(ii) with respect to the Purchased Assets described
in Section 2.1(a)(v), $200,000, (iii) with respect to
the Purchased Assets described in Section 2.1(f)(i),
$2,342,836, and (iv) with respect to the Purchased
Assets described in Section 2.1(a)(xiii), $4,713,230
minus (b)(i) 100% of the Assumed Liabilities, (ii)
100% of the Adjustment Factor and (iii) 100% of the
Solectron Adjustment Factor. In addition to the
Purchase Price at the initial Closing, Purchaser and
Purchaser Affiliates shall pay to Seller and
Assigning Subsidiaries a single additional payment in
the aggregate amount of $10,000,000 (the "Two Closing
Premium").
(v) Section 2.6 is hereby amended by inserting "(a)" at the beginning thereof
and by adding the following three new paragraphs at the end thereof:
(b) Seller and Purchaser agree that notwithstanding
the terms of Section 2.3(a), Purchaser is authorized
to withhold an additional $2.4 million from the
Initial Payment made at the initial Closing in
respect of the Taxes that were required to be
estimated and put into escrow pursuant to subsection
(a) hereof ("Escrowed Taxes"). Seller and Purchaser
shall seek to negotiate an escrow agreement mutually
agreeable to themselves and an escrow agent or other
mutually agreeable arrangement no later than ten (10)
Business Days after the initial Closing Date, and
such $2.4 million shall be deposited with the escrow
agent or subjected to such arrangement. On or prior
to the Second Closing, Seller and Purchaser shall
agree on the amount of Escrowed Taxes attributable to
the Purchased Assets acquired at the Second Closing,
and such amount shall be deposited with the escrow
agent or subjected to such other arrangement as may
be agreed by Purchaser and Seller.
(c) Prior to the deposit of the Escrowed Taxes into
an escrow or similar arrangement, Purchaser shall
credit Seller with interest on the amount of the
Escrowed Taxes at the Settlement Rate as in effect on
the initial Closing Date, for the period from the
Closing Date to, but not including, the date the
Escrowed Taxes are so deposited (together with such
interest as referred to above, calculated on the
basis of the actual number of days elapsed in a year
of 365 or 366 days, as the case may be).
(d) Seller and Purchaser agree that the terms of the
escrow agreement or other arrangement shall provide:
(i) that Comdisco has the right to commence a process
to seek a ruling request from the appropriate
California taxing authority at any time prior to 45
days following the Second Closing in respect of the
sales tax liability of Seller in California arising
out of the transactions contemplated by this
Agreement; (ii) that during the pendency of this
45-day period and until Seller shall have exhausted
its right to appeal or seek further judicial action
to the next higher judicial or administrative level
with respect to the subject of such ruling request,
Purchaser shall not make any payment in respect of
such sales tax or take any other action with respect
to the Escrowed Taxes or the Purchased Assets that is
inconsistent with Seller's right to have its
California sales tax liability determined in
accordance with the ruling request process initiated
by Seller; and (iii) any earnings on amounts placed
into an escrow or similar arrangement shall accrue to
the benefit of Seller.
(w) Section 2.7 is hereby amended by deleting clauses (c) and (d) thereof
and inserting the following in place thereof:
(c) the aggregate of the related Residual with
respect to each Purchased Financing Contract,
Excluded Financing Contract and Selection Excluded
Contract, as set forth in this Agreement; plus
(d) the Net Book Value of the agreements listed on
Schedule 1.1Q.
(x) Section 5.4(a) is hereby amended by adding the following language at
the end of clause (iii) thereof:
; or (iv) any failure to perform duly and punctually any
covenant, agreement or undertaking on the part of Seller or
any Assigning Subsidiary contained in any Seller Related
Document (without duplication as to matters indemnified
pursuant to Section 5.4(d), Section 5.4(e) and Section 5.4(g))
(y) Section 5.15 is hereby amended and restated as follows:
5.15 Lien Release and Evidence of Discharge.
No later than fifteen (15) Business Days after the
initial Closing Date, Seller shall deliver to
Purchaser evidence, in a form that would be
reasonably and customarily accepted by a prudent
purchaser, that any Encumbrances on the Conduit
Financing Contracts or the Portfolio Property subject
thereto that result from such Financing Contracts
being subject to the Conduit Facilities have been
released and discharged.
(z) Schedule 1.1S in the form of Annex A hereto is hereby inserted after
Schedule 1.1R to the Asset Purchase Agreement.
(aa) Schedule 1.1T in the form of Annex B hereto is hereby inserted after
Schedule 1.1S to the Asset Purchase Agreement.
(bb) Schedule 1.1U in the form of Annex C hereto is hereby inserted after
Schedule 1.1T to the Asset Purchase Agreement.
(cc) Schedule 1.1V in the form of Annex D hereto is hereby inserted after
Schedule 1.1U to the Asset Purchase Agreement.
(dd) Schedule 1.1W in the form of Annex E hereto is hereby inserted after
Schedule 1.1V to the Asset Purchase Agreement.
3. Ratification of the Asset Purchase Agreement. The Asset Purchase
Agreement, as amended by this Amendment, is hereby ratified and confirmed in al
respects.
4. Effect on the Asset Purchase Agreement.
(a) On and after the date hereof, each reference in the Asset Purchase Agreement
to "this Agreement", "herein", "hereof", "hereunder" or words of similar import
shall mean and be a reference to the Asset Purchase Agreement as amended hereby.
(b) Except as specifically amended above in connection herewith, the Asset
Purchase Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
5. Governing Law. This Amendment and the legal relations between the
parties hereto arising thereunder shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without regard to the
principles regarding the choice of law.
6. Headings. The descriptive headings of the several Sections of this
Amendment are inserted for convenience only and do not constitute a part of this
Amendment.
7. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement, and shall become effective when such counterparts have been signed by
each party hereto and delivered to the other party hereto.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed on its behalf by its officers or representatives
thereunto duly authorized, as of the date first above written.
GENERAL ELECTRIC
CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxx
----------------------
Name: Xxxxxx Xxxxx
--------------------
Title: Attorney-In-Fact
--------------------
COMDISCO, INC.
By: /s/ Xxxxxx E.T. Xxxxxx
-----------------------
Name: Xxxxxx E. T. Xxxxxx
---------------------
Title: Senior Vice President,
Secretary and Chief Legal Officer
Annex A
Schedule 1.1S
Brazilian Notional Lease and Malaysian Excluded Leases
Brazil 12SL40788EG Solectron Corp (Inception Date 1/1/00)
Malaysia 12SL40481EG Solectron Corp (Inception Date 6/1/98)
Malaysia 12SL40380EG Solectron Corp (Inception Date 1/1/98)
Annex B
Schedule 1.1T
Solectron Adjustment Factor Leases
Annex C
Schedule 1.1U
Solectron Excluded Contracts
Annex D
Schedule 1.1V
Italian Leases
Annex E
Schedule 1.1W
Conduit Financing Contracts
