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AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment (this "Amendment") to the Stock Purchase Agreement dated
May 17, 2000 (the "Agreement") among European American Bank and AEL Leasing Co.,
Inc. ("Purchasers") and RESOURCE America, Inc. and FLI Holdings, Inc.
("Sellers") for the sale of the outstanding capital stock of Fidelity Leasing,
Inc. (the "Company") is made between the Purchasers and the Sellers as of August
1, 2000.
WHEREAS, pursuant to Section 14.07 of the Agreement, Purchasers wish to
waive certain obligations of Sellers under the Agreement and Sellers wish to
waive certain obligations of Purchasers under the Agreement and; pursuant to
Section 14.08 of the Agreement the Purchasers and the Sellers wish to amend the
Agreement as set out hereto.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth herein and intending to be legally
bound hereby, the parties hereto hereby agrees as follows:
(1) Definitions. Capitalized terms used and not otherwise defined
herein shall have the respective meanings assigned to such terms in the
Agreement unless otherwise stated.
(2) Waiver by Purchasers. Purchasers hereby waive the requirement set
forth in Section 4.01(a), 5.02 and 5.06 of the Agreement that Sellers obtain the
consents set forth as items 1, 2, 4, 8, 9, 16 and 17 in Section 2.06 of the
Disclosure Schedule (collectively, the "Third Party Consent") and acknowledge
and agree that they are responsible for any breaches or defaults under the
agreements described by those items as a result of the failure of Sellers to
obtain the Third Party Consent. Further, Purchasers hereby waive the requirement
set forth in Section 4.01(a), 5.02 and 5.05 that Sellers obtain the consent or
approval of the Governmental or Regulatory Authorities set forth in Section 2.07
of the Disclosure Schedule to consummate the transactions contemplated by the
Agreement (the "Waived Approvals").
(3) Waiver by Sellers. Sellers hereby waive the requirement set forth
in Section 4.14 and 6.02 of the Agreement that Purchasers secure, prior to or at
the Closing, the release of the guaranties set forth as items 1, 3, 4, 6 and 7
in Section 4.14 of the Disclosure Schedule (collectively, the "Guaranties").
(4) Reduction of the Purchase Price. The aggregate purchase price for
the Shares set out in Section 1.02 of the Agreement shall be reduced to
$63,100,000.00 (the "Purchase Price").
(5) Amendment to Section 1.03(i) of the Agreement. Section 1.03(i) of
the Agreement is hereby amended and restated as follows.
An amount in cash equal to $53,100,000 less the principal amount of the
Note referred to in clause (iii) below by wire transfer of immediately
available funds to such U.S. dollar account as Sellers may direct by
writ notice to Purchasers, such written notice to be provided at least
two (2) Business Days before the Closing Date;
(6) Amendment to Section 11.02(a) of the Agreement. Section 11.02(a) of
the Agreement is hereby amended and restated as follows:
Purchasers agree to indemnify each Seller and its officers, directors,
employees, agents and Affiliates in respect of, and hold each of them
harmless from and against, any and all Losses suffered, incurred or
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sustained by any of them or to which any of them becomes subject,
resulting from, arising out of or relating to (i) any misrepresentation
breach of warranty or non-fulfillment of or failure to perform any
covenant or agreement on the party of Purchasers contained in this
Agreement (determined in all cases as if the terms "material" or
"materially" were not included therein) (ii) the failure of Sellers to
obtain the Third Party Consent and (iii) the Guaranties.
(7) Assignment of Canadian Subsidiaries The Purchasers hereby assign
their right to acquire the shares (the "Canada Shares") of Fidelity Leasing
Canada Inc. ("Fidelity Canada") to ABN AMRO Bank Canada ("ABN AMRO"). ABN AMRO
is required to obtain the consent of the Superintendent of Financial
Institutions pursuant to Section 494(4) of the Bank Act (the "Consent") to
permit it to acquire the shares of Fidelity Canada. The Sellers are required to
obtain a Section 116 Certificate (the "Tax Consent") to permit them to transfer
the Canada Shares of Fidelity Canada to ABN AMRO. Purchasers and Sellers agree
to use their commercially reasonable best efforts to obtain the Consent and the
Tax Consent, respectively, as soon as possible. Purchasers shall reimburse
Sellers for all reasonable costs and expenses not to exceed $10,000.00 dollars
incurred by them in obtaining the Tax Consent. Neither the Consent nor the Tax
Consent can be obtained by the closing date under the Agreement which will be
August 1, 2000 (the "Closing").
Prior to Closing, the Company will transfer the Canada Shares to
Fidelity Leasing Holdings, Inc. ("Holdings") and immediately prior to such
transfer the Company will pay U.S.$300,000 to Fidelity Canada for newly issued
common shares of Fidelity Cananda. Fidelity Canada will use the cash from this
stock issuance to repay a portion of its intercompany debt to the Company.
At Closing, Holdings will transfer the Canada Shares to the Escrow
Agent who will hold them under the terms of the Escrow Agreement pending the
obtaining of the Consent and the Tax Consent. When the Consent and the Tax
Consent are obtained the Canada Shares shall forthwith be released by the Escrow
Agent on behalf of the Sellers to ABN AMRO for consideration of $1.
During the period from Closing to the transfer of Fidelity Canada to
ABN AMRO (the "Transitional Period") the Purchasers agree to procure that ABN
AMRO will provide to the Sellers the services necessary for the management
control and operations of Fidelity Canada and its subsidiaries and during the
Transitional Period to operate Fidelity Canada and its subsidiaries in the
ordinary course of business and for the avoidance of doubt from Closing the
Purchasers will be responsible for the funding of Fidelity Canada and its
subsidiaries. Purchasers agree to indemnify Seller and its officers, directors,
employees, agents and Affiliates in respect of, and hold each of them harmless
from and against, any and all losses suffered, incurred or sustained by any of
them or to which any of them becomes subject, resulting from, arising out of or
relating to actions taken by ABN AMRO in the course of operating Fidelity Canada
and its subsidiaries during the Transitional Period, except for any losses
suffered or incurred in respect of performing the obligations under the
Agreement.
(8) Amendment to Section 11.01(a) of the Agreement. Section 11.01(a) of
the Agreement is hereby amended by the addition of the following:
(vii) any of the payments set out in Schedule 11.01(a) which are not
received by the Company by August 1, 2003.
(9) Amendment to Schedules. Schedule 11.01(a) shall be added to the
Agreement.
(10) Amendment to Section 8.04 of the Agreement Section 8.04 of the
Agreement is hereby amended and restated as follows:
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Any refunds received by Purchasers, the Company, any of its
Subsidiaries or their successors of Taxes of the Company or its
Subsidiaries relating to taxable periods or portions thereof ending on
or before the Closing Date (except for the tax refunds included in the
Note) shall be for the account of Sellers, and Purchasers shall pay
over to Sellers any such refund received by Purchasers, the Company,
any of its Subsidiaries or their successors within five (5) business
days of receipt. Purchasers shall, if Sellers so request and at
Sellers' expense, cause the relevant entity to file for and obtain any
refunds to which Sellers are entitled under this Section 8.04.
Purchasers shall permit Sellers to control (at Sellers' expense) the
prosecution of any such refund claimed, and shall cause the relevant
entity to authorize by appropriate power-of-attorney such persons as
Sellers shall designate to represent such entity with respect to such
refund claimed.
(11) Deduction for Payments to Employees. All payments made to
employees of the Company on or before the Closing Date, including all amounts
paid by Sellers pursuant to the contracts described in Section 5.11 of the
Agreement and described as the "Initial Bonus" as defined in those contracts,
shall be deducted by Sellers (or the Company) on their tax returns for the
period including the Closing Date and shall not be deducted by the Purchasers
(or by the Company for any period after the Closing Date).
(12) Survival. The covenants and agreements of Sellers and Purchasers
contained in this Amendments shall survive the Closing.
(13) Effect on the Agreement. Except as set forth herein, all terms and
provisions of the Agreement shall remain in full force and effect in accordance
with the terms thereof.
(14) Counterparts. This Amendment may be executed in two or more
counterparty, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have cause this Amendment to be
executed and delivered by their duly authorized representatives as of the date
first written above.
EUROPEAN AMERICAN BANK
By: _________________________
Name:
Title:
AEL LEASING CO., INC.
By: _________________________
Name:
Title:
RESOURCE AMERICA, INC.
By: _________________________
Name:
Title:
FLI HOLDINGS, INC.
By: _________________________
Name:
Title:
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Schedule 11.01(a)
Payment due from SPC I TRUST $575,205.22
Payment due from various vendors $215,457.71
as a result of overpayment
