Exhibit (ii)
AMENDMENT TO
STOCK PURCHASE AGREEMENT
AMENDMENT TO STOCK PURCHASE AGREEMENT dated as of October 12,
1998 (the "Purchase Agreement") (this "Amendment"), among PITNEY BOWES CREDIT
CORPORATION, a Delaware corporation ("PBCC"), WATERVIEW RESOLUTION CORP., a
Massachusetts corporation formerly known as Colonial Pacific Leasing Corporation
(the "Seller"), CPLC II INC., a Delaware corporation ("CPLC"), and GENERAL
ELECTRIC CAPITAL CORPORATION, a New York corporation ("Buyer").
RECITALS
WHEREAS, PBCC, the Seller, CPLC and Buyer have agreed, upon
the terms and conditions specified herein, to amend certain provisions of the
Purchase Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
parties hereto agree as follows:
SECTION 1. Defined Terms and Interpretation. (a) The
capitalized terms used herein which are defined in the Purchase Agreement, shall
have the respective meanings assigned to them in the Purchase Agreement except
as otherwise provided herein or unless the context otherwise requires.
(b) Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) No provision in this Amendment shall be interpreted or
construed against any Person because that Person or its legal representative
drafted such provision.
SECTION 2. Amendments to the Purchase Agreement. The Purchase
Agreement is, effective as of October 30, 1998, amended as follows:
(a) Section 1.8 of the Purchase Agreement is amended (i) to insert a
new clause (vi) which shall read as follows:
"and (vi) all liabilities and obligations arising out of,
based on or relating to any actions taken by CPLC after the
Closing in connection with any reorganization by CPLC after
the Closing of the vendor services unit of CPLC and the
reassignment, termination or discharge of CPLC Employees who,
prior to the Closing, performed services in connection with
that unit."
and (ii) by replacing the word "and" that precedes clause (v) with a comma.
(b) Section 1.35 of the Purchase Agreement is amended to
replace the final phrase in the definition of "Credit Enhancement", "with
respect to any Transferred Financing Contract, Program Agreement or Funded
Backlog" with the phrase "with respect to any Financing Contract, Program
Agreement or Backlog";
(c) Subsection 1.51(x) of the Purchase Agreement is amended by
replacing the period at the end of such subsection with a semicolon;
(d) Subsection 4.1(j)(ii) of the Purchase Agreement is amended
and restated in its entirety to read as follows:
"(ii) Schedule 4.1(j)(ii) attached hereto separately
sets forth all "employee pension plans", as defined in Section
3(2) of ERISA, subject to Title IV of ERISA or Section 412 of
the Code, to which the Seller, CPLC or any trades or
businesses (whether or not incorporated) which are or have
ever been under common control, or which are or have ever been
treated as a single employer, with the Seller or CPLC under
Section 414(b), (c), (m) or (o) of the Code (an "ERISA
Affiliate") contributed or has ever been obligated to
contribute thereunder at any time during the six (6) years
ending on the Closing Date, except that with respect to
Seller, during the period beginning with the acquisition of
Seller by PBCC or its affiliates and ending on the Closing
Date (the "Title IV Plans") and, as of the most recent plan
valuation date, the "accumulated benefit obligations", and the
"projected benefit obligations" of each Title IV Plan that is
currently sponsored by the Seller or any ERISA Affiliate using
the actuarial assumptions used by each such plan's actuary for
FAS 87 purposes, together with the fair market value of the
assets of each such Plan. None of the Title IV Plans is a
multiemployer plan, as defined in Section 3(37) of ERISA, or
is or has been subject to Sections 4063 or 4064 of ERISA.";
(e) Subsection 4.1(j)(vii) of the Purchase Agreement is
amended and restated in its entirety to read as follows:
"(vii) Except for payments to J. Byrum, T. Lewison,
T. Mahaffey, J. Manthe, I. Dixon, J. Adler, P. Pazourek and T.
Mulvaney under retention agreements which are the sole
responsibility of PBCC, neither the execution and delivery of
this Agreement nor the consummation of the transactions
contemplated hereby will result in any compensation payment in
excess of $10,000 becoming due to any employee (current,
former or retired) of the Seller as a result of the execution
and delivery of this Agreement or the consummation of the
transactions contemplated hereby other than benefit payments
under the Plans made in the ordinary course."
(f) Subsection 4.1(w) of the Purchase Agreement is amended and
restated in its entirety to read as follows:
"(w) Intentionally Omitted";
(g) Subsection 4.2(i) of the Purchase Agreement is amended by
adding a comma followed by the word "and" after the words "Benefit Plan" in the
second line thereof.
(h) Subsection 5.6(c) is hereby amended to insert the phrase
"; provided, however, that for purposes of clause (y) of this
sentence, CPLC may, after the Closing, reorganize the vendor
services unit of CPLC and reassign, terminate or discharge not
more than three CPLC Employees who, prior to the Closing,
performed services in connection with that unit"
at the end of the last sentence of subsection 5.6(c).
(i) Subsection 5.15(i) of the Purchase Agreement is amended and
restated in its entirety to read as follows:
"For all income tax purposes, the Buyer and the
Seller agree to treat the transactions contemplated herein
consistent with the treatment described in Revenue Ruling
70-140 and to allocate the Purchase Price (and assumed
liabilities) in accordance with Section 5.3(b) hereof.";
(j) Annex A to the Purchase Agreement is hereby supplemented to
reflect the matters set forth on Exhibit A hereto;
(k) Schedule 3.2(c) of the Purchase Agreement is hereby
deleted and replaced in its entirety by Exhibit B hereto;
(l) Schedule 4.1(e) of the Purchase Agreement is hereby
deleted and replaced in its entirety by Exhibit C hereto;
(m) Schedule 4.1(j)(ii) of the Purchase Agreement is hereby
deleted and replaced in its entirety by Exhibit D hereto; and
(n) Schedule 4.2(e) of the Purchase Agreement is hereby
deleted and replaced in its entirety by Exhibit E hereto.
SECTION 3. Representations and Warranties True. Each party
hereto represents and warrants to the other parties hereto that the
representations and warranties set forth in the Purchase Agreement are true and
correct in all material respects on the date hereof as though made on and as of
such date (unless any such representation or warranty expressly relates to an
earlier date).
SECTION 4. Reference to this Amendment and Effect on Purchase
Agreement and any Seller Related Documents. From and after the date hereof, (a)
each reference in the Purchase Agreement to "this Agreement," "hereunder,"
"herein" or words of like import shall mean and be a reference to the Purchase
Agreement, as affected and amended hereby and (b) each reference in any Seller
Related Documents or any Buyer Related Documents to the "Stock Purchase
Agreement," the "Purchase Agreement," "thereunder," "therein" or words of like
import shall mean and be a reference to the Purchase Agreement, as amended and
affected hereby.
(b) The Purchase Agreement, as affected and amended hereby,
shall remain in full force and effect and the Purchase Agreement is hereby
ratified and confirmed in all respects.
SECTION 5. Governing Law; Binding Effect. In all respects,
including all matters of construction, validity and performance, this Amendment
shall be governed by, and construed and enforced in accordance with, the
internal laws of the State of New York (without regard to conflict of law
provisions) and any applicable laws of the United States of America, and shall
be binding upon the parties hereto and their respective successors and permitted
assigns.
SECTION 6. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the date first written above.
WATERVIEW RESOLUTION CORP.
(f.k.a. Colonial Pacific Leasing Corporation)
By:
------------------------
Name:
Title:
PITNEY BOWES CREDIT CORPORATION
By:
------------------------
Name:
Title:
CPLC II INC.
By:
------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
------------------------
Name:
Title:
Exhibit A
Exhibit B
See Schedule 3.2(c) of the Purchase Agreement.
Exhibit C
See Schedule 4.1(e) of the Purchase Agreement.
Exhibit D
See Schedule 4.1(j)(ii) of the Purchase Agreement.
Exhibit E
See Schedule 4.2(e) of the Purchase Agreement.