EXHIBIT 2.4
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (the "FIRST
AMENDMENT") is made as of this 4th day of March, 1998, by and among Source One
Wireless I, L.L.C., a Delaware limited liability company (the "FORMER SELLER"),
Source One Wireless, L.L.C., a Delaware limited liability company (the "PARENT")
and Community Redevelopment Corporation, a Florida Corporation (the
"PURCHASER"). All terms not otherwise defined herein shall have the meanings
ascribed to them in the Agreement (as defined below).
RECITALS
A. Except for the Parent, the parties to this First Amendment entered
into that certain Asset Purchase Agreement, dated as of the 19th day of January,
1998 (the "AGREEMENT").
B. Parent is the controlling Member of the Former Seller.
C. The parties to the Agreement now wish to amend the Agreement to,
among other things, include the Parent as a party to the Agreement and to
provide for the contribution of all of the Membership Interests in the Former
Seller to Buyer rather than the sale of all of the substantially all of the
assets of the Former Seller.
D. The parties also wish to amend the Agreement to extend the Closing
Date.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals, which are
hereby incorporated herein, and the mutual promises herein contained, the
parties hereby agree as follows:
1. The Agreement is amended to substitute the Parent as the "Seller" in
place of the Former Seller, with the Former Seller being discharged and
relieved of all obligations and liabilities attendant and appurtenant
to the Former Seller's prior status as "Seller" under the Agreement.
2. The Parent agrees to be bound by the terms of the Agreement, as though
the Parent had entered into the Agreement as the "Seller" on January
19, 1998, and discharge all duties and obligations that the Agreement
imposes upon the Seller.
3. The Parent specifically affirms all representations and warranties made
or given by the Former Seller as to the Former Seller in the Agreement.
4. The Former Seller agrees that it shall be jointly and severally liable
with the Parent for any and all obligations imposed on the Seller in
the Agreement.
5. Exhibit A hereto sets forth the name of each Member of the Former
Seller and the percentage Membership Interest held by such Member.
6. Section 2.1 of the Agreement is hereby deleted and the following is
substituted therefor:
2.1 Sale of Membership Interests. On the basis of the
representations and warranties and subject to the terms and conditions
set forth in this Agreement, Parent agrees to sell, transfer, assign,
convey and deliver all of its Membership Interest in Source One and to
cause each of the other Members to sell, transfer, assign, convey and
deliver all of such Member's Membership Interest in Source One to
Purchaser (the Membership Interests are referred to herein as the
"PURCHASED ASSETS") and Purchaser agrees to purchase, accept and
acquire the Purchased Assets, free and clear of all Liens (except
permitted encumbrances). The Parties hereto intend that the
transactions contemplated herein shall qualify as a tax-free transfer
to a controlled corporation pursuant to Internal Revenue Code ss. 351.
7. The first paragraph of Section 3.1 of the Agreement is hereby deleted
and the following provision is substituted therefor:
3.1 Retained Liabilities. Parent agrees to assume, pay and
perform the following obligations, liabilities and indebtedness of
Source One as at the Effective Time (the "RETAINED LIABILITIES"):
(i) Any and all income taxes attributable to Source
One for any and all periods prior to the Effective Time;
(ii) Any and all obligations of Source One incurred
in connection with this transaction, and all fees to
attorneys, investment bankers, accountants or others for
services rendered or expenses incurred on behalf of Source
One;
(iii) Any and all of Source One's broker's or
finder's fees, commissions or like payments arising out of or
based upon any act or admission of Seller, including, without
limitation, any fee due to Strategica Capital Corp.;
(iv) All losses existing as of or prior to the
Effective Time of any kind whatsoever, including, without
limitation, court costs and attorneys fees covering, incurred
or sustained as a direct or indirect result of the presence on
or under, or the release, escape, seepage, leakage, discharge,
or migration at or from, any of the Leased Real Property of
any hazardous materials or non-hazardous materials, waste or
substance, waste or substance and whether asserted under or
rising under any applicable law or regulation relating to
pollution, the environment, human safety and health,
transportation or the production, storage, labeling or
disposition of hazardous materials;
(v) Any and all indebtedness amd obligations of
Source One to Parent as at the Effective Time or arising
thereafter, except approximately $11.6 million dollars to
repaid in connection with the Step Rate Subordinated Notes of
parent.
8. Section 4.2 is hereby amended by deleting the term "Seller" and
substituting therefor the terms "Parent and the other Members of Source
One".
9. Article X is hereby amended by renumbering Section 10.12 as Section
10.13 and inserting the following as Section 10.12.
10.12 $1.2 Million Note. Source One's $1.2 Million Note to
Purchaser shall be converted to a capital contribution by Purchaser in
Source One.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the date written above.
PARENT:
SOURCE ONE WIRELESS, L.L.C.
By: /s/ Dov Trop
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Its: President
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THE FORMER SELLER:
SOURCE ONE WIRELESS I, L.L.C.
By: /s/ Dov Trop
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Its: President
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PURCHASER:
COMMUNITY REDEVELOPMENT CORPORATION.
By: Xxxxx Xxxxx
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Its: President
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