EXHIBIT 11
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment")
dated as of September 20, 1996 by and among BA LEASING & CAPITAL CORPORATION, a
California corporation ("Buyer"), USL CAPITAL CORPORATION, a Delaware
corporation ("USL Capital"), and FORD MOTOR CREDIT COMPANY, a Delaware
corporation ("Ford Credit").
W I T N E S S E T H
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WHEREAS, Buyer, USL Capital and Ford Credit are party to that certain
Asset Purchase Agreement dated as of August 5, 1996 (the "Agreement";
capitalized terms used but not defined herein being used herein as therein
defined); and
WHEREAS, Buyer and Sellers desire to amend the Agreement on the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein and intending to be legally bound, Buyer and USL Capital and
Ford Credit do hereby agree as follows:
1. Amendments.
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(a) Section 1.1(c) of the Agreement is hereby amended to read in its
entirety as follows:
"[Reserved.]"
(b) Clause (v) of the defined term "Purchased Assets" set forth in
Section 1.2 of the Agreement is hereby amended to read in its entirety as
follows:
"(v) the personal computers, printers and calculators owned by
USL Capital and used exclusively by the Transferred Employees;"
(c) The defined term "Reserves Adjustment Amount" set forth in Section
1.2 of the Agreement is hereby amended to read in its entirety as follows:
""Reserves Adjustment Amount" means, for any Transaction at any
date, the product of (i) $8,000,000 (i.e., $13,300,000 in reserves, minus
related deferred tax assets of $5,300,000) and (ii) a fraction the
numerator of which is the Base Price for such Transaction at such date
(increased, with respect to any Affordable Housing Transaction, by the
amount of capital contributions with respect thereto that are
assumed to be made following the Closing in the calculation of the Base
Price therefor) and the denominator of which is $1,784,890,198. If,
following the later of the last Closing held hereunder and the last
"Closing" under the Concurrent Asset Purchase Agreement, Sellers and the
Selling Subsidiaries shall have sold to Buyer assets having, together with
those assets sold by USL Capital to SPLC pursuant to the Concurrent Asset
Purchase Agreement, an aggregate price as shown on the September 1
Statement of Aggregate Net Present Value hereunder and thereunder (as it
shall be amended from time to time to reflect the addition of any new
assets or transactions in which a Seller has acquired an interest in
accordance with the provisions of Section 6.2 and the provisions of Section
6.2 of the Concurrent Asset Purchase Agreement) in excess of
$1,784,890,198, Buyer shall pay to Seller the amount by which the Closing
Date Aggregate Adjusted Cash Price for each Closing Date was higher than it
would have been had the denominator in the fraction specified in the
preceding sentence at such Closing Dates been $1,784,890,198 plus the
additional aggregate price as shown on the September 1 Statement of
Aggregate Net Present Value hereunder and thereunder for such additional
assets, together with interest thereon from the pertinent Closing Dates at
the Agreed Rate. For all purposes of this definition, references to the
transfer of Purchased Assets from either Seller to Buyer shall be deemed to
also refer to and include transfers of "Purchased Assets" (as defined in
the Concurrent Asset Purchase Agreement) from USL Capital to SPLC and
references to the September 1 Statement of Aggregate Net Present Value
shall be deemed to also refer to and include the "September 1 Statement of
Aggregate Net Present Value" as defined in the Concurrent Asset Purchase
Agreement."
(d) Section 7.3(i) of the Agreement is hereby amended to read in its
entirety as follows:
"(i) At the Initial Closing, Buyer shall pay to USL Capital the
sum of $251,000 (the "Severance Costs Payment") to defray the allocated
severance costs of USL Capital's Central Services employees who are
partially, but not primarily, allocated to the Business."
(e) The first sentence of Section 13.8 of the Agreement is hereby
amended to read in its entirety as follows:
"Sellers shall indemnify and hold harmless Buyer and the Subsidiaries from
all sales or use, transfer, documentary, registration or other similar
Taxes imposed on or in connection with the purchase, sale or transfer of
the Purchased Assets to, and the assumption
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of the Assumed Liabilities by, Buyer pursuant to this Agreement (including,
but not limited to, any such Taxes resulting from the Section 338 Election)
and any such Taxes imposed on the transfers of the Separate Pool Assets
from a Seller to Buyer, thereafter from Buyer to SPLC and thereafter from
SPLC to DFO Partnership."
2. Tax Certificates. Buyer has executed and delivered and Holdings
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and DFO Partnership shall execute and deliver certain interstate commerce,
resale exemption and sales tax exemption certificates (the "Tax Certificates")
with respect to the Contemplated Transactions under the Agreement and the
Commitment Agreement. All such Tax Certificates have been and shall be executed
and delivered in good faith, and the factual statements made therein by or on
behalf of the Persons executing the same are and shall be true and correct (it
being understood and agreed that none of such Persons shall be deemed to have
made any representation or warranty with respect to the availability of any Tax
exemption as a result of the delivery of the Tax Certificates). Sellers
acknowledge that, notwithstanding the execution and delivery of the Tax
Certificates, Sellers' obligations under Section 13.8 of the Agreement shall
remain unmodified and shall include Taxes that may be imposed in connection with
the delivery of the Tax Certificates.
3. Comair Guaranty. As of the date hereof, none of Buyer or any of
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its Affiliates has been substituted for USL Capital, and USL Capital has not
been released from liability in respect of, the Guaranty Agreement listed as
Item 1 on Schedule 7.2 of the Agreement. Buyer acknowledges that,
notwithstanding the occurrence of the Initial Closing (or any Subsequent
Closing), Buyer's obligations under Section 7.2(b) of the Agreement remain
unmodified, and Buyer agrees to continue to use all reasonable efforts to effect
such substitution and release.
4. Closing Date Notice. Buyer and Sellers agree that Sellers'
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Closing Date Notice with respect to any Subsequent Closing to be held on or
prior to September 30, 1996 may be delivered later than five business days prior
to such Subsequent Closing but not later than three business days prior to such
Subsequent Closing, and that Buyer's Statement of Closing Date Aggregate Net
Present Value with respect to any such Subsequent Closing may be delivered later
than three business days prior to such Subsequent Closing but not later than one
business day prior to such Subsequent Closing.
5. General. This Amendment shall be governed by and construed in
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accordance with the Laws of the State of California applicable to contracts made
and performed in such State and without regard to conflicts of law doctrines.
This Amendment may be executed in one or more counterparts and by different
parties in separate counterparts. All of such counterparts shall constitute one
and the same agreement and shall become effective
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unless otherwise provided therein when one or more counterparts have been signed
by each party and delivered to the other parties. Except as expressly amended,
modified or supplemented hereby, the Agreement shall remain in full force and
effect in accordance with its terms.
IN WITNESS WHEREOF, each of Buyer and each Seller has caused this
Amendment to be executed by its duly authorized representative as of the date
first above written.
BA LEASING & CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
USL CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chairman and Chief
Executive Officer
FORD MOTOR CREDIT COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
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