AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
Exhibit 10.18
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT (this “Amendment”) is made as of August 22, 2011 and effective as of July 28, 2011, by and between Spirit Finance Corporation, a Maryland corporation (“Buyer”), and Spirit Finance Capital Management, LLC, a Delaware limited liability company (“Seller”), and this Amendment amends that certain Asset Purchase Agreement, dated as of June 30, 2011, by and between Buyer and Seller (the “Asset Purchase Agreement”). Capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Asset Purchase Agreement.
WHEREAS, pursuant to Section 2.08 of the Asset Purchase Agreement, Buyer and Seller may update the Purchased Assets identified in Section 2.02 and listed in the schedules related thereto by amending such schedules;
WHEREAS, in furtherance of the prorations contemplated by Section 2.08 of the Asset Purchase Agreement, Buyer and Seller desire to amend and restate schedules 2.04(a) and 2.06 to the Asset Purchase Agreement; and
WHEREAS, Buyer and Seller have determined that Seller must pay Buyer the net amount of $13,865.36 in exchange for Buyer’s assumption of $26,309.43 of additional Assumed Liabilities net of the receipt by Buyer of $12,444.07 of additional Purchased Assets in accordance Section 2.08 of the Asset Purchase Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendments.
(a) Schedules 2.02(a)(iii), 2.02(a)(v), 2.04(a) and 2.06 to the Asset Purchase Agreement are hereby removed and replaced in their entirety by the corresponding schedules attached hereto as Exhibit A.
(b) The third recital and Section 2.05 of the Asset Purchase Agreement are hereby amended to replace “$604,159.50” with “$616,603.57”.
(c) The fourth recital and Section 2.07 of the Asset Purchase Agreement are hereby amended to replace “$581,551.95” with “$607,861.38”.
2. Payment. Seller shall pay to Buyer the net amount of $13,865.36 in accordance with the payment instructions set forth on schedule 2.05 to the Asset Purchase Agreement in full and complete satisfaction of the Assumption Price (as amended and increased by the terms of this Amendment).
3. Effectiveness and Ratification. Except as specifically provided for in this Amendment, the terms of the Asset Purchase Agreement are hereby ratified and confirmed and remain in full force and effect.
4. Effect of Amendment. Whenever the Asset Purchase Agreement or any of the schedules thereto are referred to in the Asset Purchase Agreement or in any other agreements,
documents or instruments, such reference shall be deemed to be to the Asset Purchase Agreement and the schedules thereto as amended by this Amendment.
5. Descriptive Headings. The descriptive headings of this Amendment are inserted for convenience only and do not constitute a part of this Amendment.
6. Counterparts. This Amendment may be executed in separate counterparts (including by means of telecopied signature pages), each of which shall be an original and all of which taken together shall constitute one and the same agreement.
7. Governing Law. All questions concerning the construction, validity and interpretation of this Amendment shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
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2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.1 to Asset Purchase Agreement as of the date first written above.
| SPIRIT FINANCE CAPTIAL MANAGEMENT, LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Chief Financial Officer | |
| SPRINT FINANCE CORPORATION | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
Signature Page to Amendment No. 1 to Asset Purchase Agreement
EXHIBIT A
Schedules
See attached.
Exhibit to Amendment No. 1 to Asset Purchase Agreement
SCHEDULE 2.02(a)(iii)
PERSONAL PROPERTY OF SELLER, OFFICE EQUIPMENT AND SIMILAR
PERSONAL PROPERTY RELATING TO THE BUSINESS OWNED BY SELLER AND
LOCATED AT THE LEASED PREMISES
| System ID |
System Description | |
| INT-550.2255 |
3 Inter-Tel Axxess DKSC station cards | |
| OE-010903-2 |
granite conference table / 10 chairs | |
| OE-011607-03 |
Filing System (2-drawer and shelves) | |
| OE-011607-04 |
Magna - Office 210 (desk hutch bookcase) | |
| OE-011607-05 |
Magna - Office 211 (desk hutch bookcase) | |
| OE-011607-06 |
Office Star Space Chairs (24) | |
| OE-011607-07 |
Magna - Cubicles (6 single cubes) | |
| OE-011607-08 |
Magna - Cubicles (16 double cubes) | |
| OE-011607-09 |
Filing System (fireproof 4 towers) | |
| OE-012506 |
4 Filing Cabinets | |
| OE-033105 |
Server rack system | |
| OE-042004 |
Freedom Executive Chair | |
| OE-050108 |
4 Xxxxxx chairs and fabric | |
| OE-050109 |
Server racks | |
| OE-050208 |
2 Bookcases in suite 250 | |
| OE-060106-1 |
2 Xxxxxx Chairs | |
| OE-060106-2 |
14 Xxxxxx Chairs (4 Espresso/10 Paisley) | |
| OE-060106-3 |
Raleigh Court Double Pedestal Desk | |
| OE-060106-4 |
2 Raleigh Court 42” Round Tables | |
| OE-060106-5 |
7 Wood Back Chairs with Fabric Seats | |
| OE-060106-6 |
9 Fabric Barrel Chairs | |
| OE-060106-7 |
Additional Costs | |
| OE-060106-8 |
2 Xxxxxx Chairs | |
| OE-060106-9 |
14 Xxxxxx Chairs | |
| OE-063006 |
9 Executive Mesh Chairs | |
| OE-071503 |
Server rack system | |
| OE-071805-1 |
Filing Cabinet | |
| OE-071805-2 |
Filing Cabinet | |
| OE-072905 |
Phone Cabinet | |
| OE-080204-1 |
Taylor Caster Chairs (18) | |
| OE-080204-10 |
Café Parfait Furniture | |
| OE-080204-11 |
Wing chairs (22) | |
| OE-080204-14 |
Credenza - Office 210 | |
| OE-080204-15 |
Credenza - Office 211 | |
| OE-080204-16 |
Credenza - Office 212 | |
| OE-080204-17 |
Desk - Office 212 | |
| OE-080204-18 |
Conference Table - Office 212 | |
| OE-080204-19 |
Credenza - Office 213 | |
| OE-080204-2 |
Taylor Caster Chairs (8) | |
| OE-080204-20 |
Desk - Office 213 | |
| OE-080204-21 |
Conference Table - Office 213 | |
| OE-080204-22 |
Credenza - Office 214 | |
| OE-080204-23 |
Desk - Office 214 | |
| OE-080204-24 |
Conference Table - Office 214 | |
| OE-080204-25 |
Credenza - Office 218 | |
| OE-080204-26 |
Desk - Office 218 |
SCHEDULE 2.02(a)(iii) (CONTINUED)
PERSONAL PROPERTY OF SELLER, OFFICE EQUIPMENT AND SIMILAR PERSONAL
PROPERTY RELATING TO THE BUSINESS OWNED BY SELLER AND LOCATED AT THE
LEASED PREMISES
| System ID |
System Description | |
| OE-080204-27 |
Desk - Office 218 | |
| OE-080204-28 |
Credenza - Office 219 | |
| OE-080204-29 |
Desk – Office 219 | |
| OE-080204-3 |
Taylor Caster Chairs (8) | |
| OE-080204-30 |
Desk - Office 219 | |
| OE-080204-31 |
Desk - Office 221 | |
| OE-080204-32 |
Credenza - Office 221 | |
| OE-080204-33 |
Desk - Office 222 | |
| OE-080204-34 |
Credenza - Office 222 | |
| OE-080204-35 |
Desk - Office 224 | |
| OE-080204-36 |
Credenza - Office 224 | |
| OE-080204-37 |
Desk - Office 225 | |
| OE-080204-38 |
Credenza - Office 225 | |
| OE-080204-39 |
Credenza - Office 226 | |
| OE-080204-4 |
Black Star Exec Chairs (30) | |
| OE-080204-42 |
File Room Revolving Cabinets | |
| OE-080204-43 |
Trans-West Phone System | |
| OE-080204-5 |
Modular Magna - Area 215 | |
| OE-080204-6 |
Modular Magna - Area 223 | |
| OE-080204-7 |
Modular Magna - Area 216 | |
| OE-080204-9 |
Trinity Conf Chairs (20) | |
| OE-080207-1 |
Lateral File - Office 204 | |
| OE-080207-2 |
Conference Table - 4 piece | |
| OE-080207-3 |
Desk - Office 204 | |
| OE-080207-4 |
Bookcase - Office 202 | |
| OE-080207-5 |
Bookcases - Office 202 | |
| OE-080207-6 |
Metal Bookcases - Corporate Records | |
| OE-080207-7 |
Metal Bookcases - Corporate Records | |
| OE-080207-8 |
Leather Mid Back Chairs (18) | |
| OE-081307 |
Ultra High Back Office Chair | |
| OE-082108 |
Credenza Stack Unit (2 pc) | |
| OE-082405 |
Trans-West Phone System Upgrade | |
| OE-091007-1 |
Desk & Credenza – JB Office | |
| OE-091007-2 |
Bookcases (3) - JB Office | |
| OE-091007-3 |
Conference Table - JB Office | |
| OE-091007-4 |
Conference Table - SW Office | |
| OE-091007-5 |
Bookcase - NE Office | |
| OE-091007-7 |
Bookcase - NW Office | |
| OE-091007-8 |
Credenza - NW Office | |
| OE-091007-10 |
Ultra High Back Office Chair | |
| OE-120105-03 |
Modular Magna (10) | |
| OE-120105-04 |
Black Star Executive Chairs (13) | |
| OE-120105-05 |
Room A (Desk, Credenza, Hutch) (1) | |
| OE-120105-06 |
Room B (Desk, Credenza, Hutch) (4) | |
| OE-120107 |
2007 Consulting fee / fabric Costs - D&M | |
| OE-123009 |
White board and cabinet | |
| TI-080204-2 |
Sign - 14631 N. Scottsdale |
SCHEDULE 2.02(a)(v)
CONTRACTS
| • | Employment Letter Agreement between Spirit Finance Capital Management, LLC and Xxxxx X. Xxxxxxx effective as of January 12, 2011 |
| • | Marakesh Consulting, LLC Professional Services Contract effective as of September 25, 2009 |
| • | Pitney Xxxxx Global Financial Services LLC Postage Equipment Lease effective as of November 27, 2010 |
SCHEDULE 2.04(a)
ASSUMED LIABILITIES
| Pre-tax medical reimbursement withholding |
$ | 10,374.35 | ||
| Pre-tax dependent care reimbursement withholding |
$ | 1,585.54 | ||
| Vendor accruals |
$ | 83,865.65 | ||
| Accrued incentive compensation |
$ | 434,024.98 | ||
| Accrued vacation |
$ | 78,010.86 | ||
|
|
|
|||
| Total |
$ | 607,861.38 |
SCHEDULE 2.06
ALLOCATION OF THE PURCHASE PRICE AMONG THE ASSETS
| Class I |
$ | 0.00 | ||
| Class II |
$ | 0.00 | ||
| Class III |
$ | 358,795.36 | ||
| Class IV |
$ | 0.00 | ||
| Class V |
$ | 257,808.21 | ||
| Class VI |
$ | 0.00 | ||
| Class VII |
$ | 0.00 | ||
|
|
|
|||
| Total |
$ | 616,603.57 |
