Exhibit 2.4.1
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
AND WAIVER
THIS AMENDMENT NO. 1 AND WAIVER (this "Amendment"), dated as of July
17, 2002, to the Asset Purchase Agreement, dated as of May 31, 2002 (the
"Original Asset Purchase Agreement"), among Intermedia Communications Inc., a
Delaware corporation ("Intermedia"), Shared Technologies Xxxxxxxxx, Inc., a
Delaware corporation and a wholly owned subsidiary of Intermedia ("STFI"),
Shared Technologies Xxxxxxxxx Telecom, Inc., a Delaware corporation and a
wholly owned subsidiary of STFI ("STFI Sub"), MCI WorldCom Communications,
Inc., a Delaware corporation ("WorldCom Sub"), WorldCom, Inc., a Georgia
corporation ("WorldCom", and collectively with Intermedia, STFI, STFI Sub and
WorldCom Sub, the "Sellers"), and Cypress Communications, Inc., a Delaware
corporation ("Purchaser").
BACKGROUND
A. The parties hereto are parties to the Original Asset Purchase
Agreement.
B. The parties desire to amend the Original Asset Purchase
Agreement, in accordance with the requirements of Section 7.03 thereof, and
upon the terms and conditions and in the manner set forth below.
C. Purchaser desires to waive certain breaches of
representations, warranties, covenants and closing conditions, in accordance
with the requirements of Sections 6.05 and 7.03 of the Original Asset Purchase
Agreement, upon the terms and conditions and in the manner set forth below.
TERMS
In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. AMENDMENT TO SECTION 1.01. Section 1.01 of the Original Asset
Purchase Agreement is hereby amended to read, in its entirety, as follows:
Purchase and Sale.
On the terms and subject to the conditions of this Agreement, at the
Closing, Sellers shall sell, assign, transfer, convey and deliver to
Purchaser, and Purchaser shall purchase from Sellers all the right,
title and interest as of the Closing of Sellers in, to and under the
Acquired Assets, in exchange for (a) an aggregate purchase price equal
to $29,000,000 (the "Purchase Price"), payable as set forth in Section
2.02(b), and (b) the assumption of the Assumed Liabilities. The
purchase and sale of the Acquired Assets and the assumption of the
Assumed Liabilities is referred to in this Agreement as the
"Acquisition".
2. AMENDMENT TO SECTIONS 1.02(A) (XVII), (XVIII) AND (XIX).
(a) Sections 1.02(a)(xvii), (xviii) and (xix) of the
Original Asset Purchase Agreement are hereby amended to read, in their
entirety, as follows:
(xvii) all partnership interests or any other equity
interest in any corporation, company, limited liability company,
partnership, joint venture, trust or other business association
("Investments") listed in Schedule 1.02(a)(xvii), and all other
Investments that are primarily used or primarily held for use in, or
that arise primarily out of, the operation or conduct of the Business;
(xviii) all goodwill generated by or associated with the
Business; and
(xix) all rights and interest of Sellers in an to that
certain SunTrust Lockbox Agreement, dated April 29, 1999 (the "Lockbox
Agreement"), by and between Intermedia, STFI and SunTrust Bank, which
Lockbox Agreement shall be assigned to, and assumed by, Purchaser
pursuant to an agreement by and between Intermedia, STFI, Purchaser
and SunTrust Bank, which agreement shall be in a form mutually
agreeable by the parties thereto (the "Lockbox Transfer Agreement").
3. AMENDMENT TO SECTION 1.02(B)(IV). Section 1.02(b)(iv) of the
Original Asset Purchase Agreement is hereby amended to read, in its entirety,
as follows:
(iv) all rights of Sellers under this Agreement, and the Omnibus
Agreement, and the other agreements and instruments executed and
delivered in connection with this Agreement (the "Ancillary
Agreements");
4. AMENDMENT TO SECTION 1.03(A). Section 1.03(a) of the Original
Asset Purchase Agreement is hereby amended to read, in its entirety, as
follows:
Assumption of Certain Liabilities.
(a) Upon the terms and subject to the conditions of this
Agreement, Purchaser shall assume, effective as of the Closing, and
from and after the Closing Purchaser shall pay, perform and discharge
when due, all the following liabilities, obligations and commitments
of Sellers (the "Assumed Liabilities"), other than any Excluded
Liabilities:
(i) all liabilities, obligations and
commitments of Sellers under the Assigned Contracts, arising
exclusively out of the operation or conduct of the Business
following the Closing;
(ii) all accounts payable arising exclusively
out of the operation or conduct of the Business following the
Closing (other than as expressly set forth in clause (iv) of
this Section 1.03(a));
(iii) all off-balance sheet liabilities listed on
Schedule 1.03(a)(iii);
(iv) an amount equal to $2,000,000, which
represents estimated accrued but unpaid network services
expense incurred in the operation or conduct of the Business
prior to the Closing to be payable as invoiced to Purchaser,
within thirty (30) days of the date of invoice; and
(v) all other liabilities, obligations and
commitments relating to or arising primarily out of the
operation or conduct of the Business arising after the
Closing Date, whether express, implied, liquidated, absolute,
accrued, contingent or otherwise, known or unknown, and based
upon, arising out of or resulting from any fact,
circumstance, occurrence, condition, act or omission existing
or occurring after the Closing Date, but not relating to or
arising out of any fact, circumstance, occurrence, condition,
act or omission existing on or occurring prior to the Closing
Date.
5. AMENDMENT TO SECTION 1.03(B)(VI). Section 1.03(b)(vi) of the
Original Asset Purchase Agreement is hereby amended to read, in its entirety,
as follows:
(vi) other than as expressly set forth in Section 1.03(a)(iv), any
account payable or accrued expense of Sellers that relates to, or that
arises out of events occurring on or before the Closing Date and any
indebtedness for borrowed money or guarantees thereof;
6. AMENDMENT TO SECTION 1.04. Section 1.04 of the Original Asset
Purchase Agreement is hereby deleted in its entirety, and in lieu thereof the
phrase "[Intentionally Omitted.]" is inserted in its stead.
7. AMENDMENT TO SECTION 2.02. Section 2.02 of the Original Asset
Purchase Agreement is hereby amended to read, in its entirety, as follows: At
the Closing:
(a) Sellers shall deliver to Purchaser (i) such
appropriately executed deeds (in recordable form), bills of sale,
assignments and other instruments of transfer relating to the Acquired
Assets in form and substance reasonably satisfactory to Purchaser and
its counsel, (ii) in lieu of (1) the Transition Services Agreement, in
draft form attached hereto as Exhibit 2.02(a)(i) (the "Transition
Services Agreement"), (2) the Wholesale Services Agreement, in draft
form attached hereto as Exhibit 2.02(a)(ii) (the "Wholesale Services
Agreement"), (3) a United States Internet Colocation Services
Agreement in draft form attached hereto as Exhibit 2.02(a)(iii) (the
"Internet Colocation Services Agreement"), (4) a Network Colocation
Services Agreement, among one or more affiliates of WorldCom and
Purchaser in draft form attached hereto as Exhibit 2.02(a)(iv) (the
"Network Colocation Services Agreement"), (5) a Building Rights
Agreement in draft form attached hereto as Exhibit 2.02(a)(v) (the
"Building Rights Agreement"), (6) a Management Agreement in draft form
attached hereto as Exhibit 2.02(a)(vi) (the "Management Agreement";
together with the Transition Services Agreement, the Wholesale
Services Agreement, the Internet Colocation Services Agreement, the
Network Colocation Services Agreement, the Building Rights Agreement,
the "Former Ancillary Agreements"),
executed counterparts of an Omnibus Post-Closing Services Agreement
dated as of the Closing Date (the "Omnibus Agreement"), among Sellers,
certain of their affiliates and Purchaser, in form and substance
mutually acceptable to the parties, which the parties hereto
acknowledge and agree shall (1) incorporate into a single operative
agreement, among other things, the matters currently addressed in the
above-enumerated stand-alone drafts of the Former Ancillary
Agreements, the substance of which, with such modifications as to
which the respective parties shall agree, shall be incorporated into
the Omnibus Agreement as separate schedules thereto, and (2) supersede
and replace such Former Ancillary Agreements, and any reference to any
such Former Ancillary Agreement in this Agreement (either individually
or in the aggregate) shall for all purposes of this Agreement be
deemed to be a reference to the Omnibus Agreement or the applicable
schedule thereto, as appropriate, (iii) each of the Consents obtained
on or prior to the Closing Date, and (iv) such other documents as
Purchaser or its counsel may reasonably request to demonstrate
satisfaction of the conditions and compliance with the covenants set
forth in this Agreement; and
(b) Purchaser shall deliver to Sellers (i) payment, by
wire transfer to a bank account designated in writing by Sellers,
immediately available funds in an amount equal to the Purchase Price
less the amount of the directed payments identified in clauses (ii),
(iii) and (iv) hereof, (ii) payment on behalf of Sellers, by wire
transfer to a bank account designated in writing to Purchaser,
immediately available funds in an amount equal to any costs or fees
required to fully and finally satisfy the representation of Sellers in
Section 3.16, (iii) payment on behalf of Sellers, by wire transfer to
a bank account designated in writing to Purchaser, immediately
available funds in an amount equal to any costs or fees required to
fully and finally satisfy all amounts owed to Xxxx Xxxxxxx LLP,
counsel to the Sellers, and (iv) payment on behalf of Sellers, by wire
transfer to a bank account designated in writing to Purchaser,
immediately available funds in an amount equal to any costs or fees
required to fully and finally satisfy all amounts owed to Xxxxxxx
Berlin Shereff Xxxxxxxx, LLP, counsel to the Sellers, which payment,
together with the payments set forth in clauses (i),(ii) and (iii)
hereof shall satisfy the obligation of Purchaser with regard to the
payment of the Purchase Price, (v) such appropriately executed
assumption agreements and other instruments of assumption providing
for the assumption of the Assumed Liabilities in form and substance
reasonably satisfactory to Sellers and their counsel, (vi) executed
counterparts of the Omnibus Agreement, and (vii) such other documents
as Sellers or their counsel may reasonably request to demonstrate
satisfaction of the conditions and compliance with the covenants set
forth in this Agreement.
8. AMENDMENT TO SECTION 2.04(B). Section 2.04(b) of the Original
Asset Purchase Agreement is hereby amended to read, in its entirety, as
follows:
(b) For a period of time up until 150 days after the
Closing Date, each party agrees to use all commercially reasonable
efforts to obtain the consents and waivers referred to in this Section
2.04 hereof and to obtain any other consents and waivers required
under any applicable agreement with a third party in
connection with the assignment, conveyance, settlement, delivery and
transfer of the Acquired Assets; provided, however, that neither the
existence of any contractual provision in any such agreement which
requires consent or waiver, nor the actions of any of the parties
hereto in seeking any such consent or waiver, shall be construed in
any manner to limit the binding and final nature of the transfers made
by Sellers to the Purchaser at the Closing; provided, further, that no
party shall be required to pay or commit to pay any amounts to (or
incur any obligation in favor of), any person from whom such consent
may be required, if such amount or obligation is not commercially
reasonable, as determined by such party in its reasonable discretion;
and provided, further, that Sellers shall not be required to pay or
commit to pay any amount to any person from whom consent to assign,
convey, settle, deliver or transfer the Building Access Agreements may
be required.
9. AMENDMENT TO SECTION 3.16. Section 3.16 of the Original Asset
Purchase Agreement is hereby amended to read, in its entirety, as follows:
Brokers or Finders.
Except for the fees and expenses of The Breckenridge Group, Inc.,
which will be paid by the Sellers pursuant to Section 2.02(b)(ii)
hereof, the Sellers have no liability to any agent, broker, investment
banker or other firm or person for any broker's or finder's fee or any
other commission or similar fee in connection with any of the
transactions contemplated by this Agreement for which the Purchaser
could become liable or obligated.
10. AMENDMENT TO SECTION 3.20. Section 3.20 of the Original Asset
Purchase Agreement is hereby amended to read, in its entirety, as follows:
Employees.
Schedule 3.20 sets forth each employee of Sellers whose
employment is primarily related to the operation of the Business (each
a "Covered Employee") as well as a copy of the most recent payroll for
each Covered Employee. In addition, Sellers shall deliver to Purchaser
within three (3) business days after the Closing Date, with respect to
each employee on Purchaser's list of not less than 265 Covered
Employees delivered to Sellers pursuant to Section 5.08(a), a listing
of the amount of any severance benefits to which each such employee
would be entitled if terminated by Sellers immediately prior to the
Closing Date. There are no employee unions (nor any other similar
labor or employee organizations) under local statutes, custom or
practice with respect to any employee of Sellers whose employment is
primarily related to the operation of the Business. No Seller has
experienced any attempt by organized labor or its representatives to
make Sellers conform to demands of organized labor relating to any
employee of Sellers whose employment is primarily related to the
operation of the Business. With respect to the Business, there is no
labor strike or labor disturbance pending or, to the Knowledge of
Sellers, threatened against any Seller nor is any grievance currently
being asserted, and no Seller has experienced a work stoppage or other
labor difficulty, and is not and has not
engaged in any unfair labor practice. From and after the Closing,
Sellers shall remain exclusively liable for the payment to its
employees of all salaries, wages and benefits, including severance
benefits, under claims incurred but not paid as of and through the
Closing Date.
11. AMENDMENT TO SECTION 4.05. Section 4.05 of the Original Asset
Purchase Agreement is hereby amended to read, in its entirety, as follows:
Availability of Funds.
Exhibit 4.05 attached hereto sets forth complete and correct copies of
a commitment letter from LaSalle Bank for debt financing to enable
Purchaser to pay the Purchase Price (the "Financing Commitment"). As
of the date of this Agreement, the Financing Commitment has not been
withdrawn or terminated. The Financing Commitment, together with
equity funds that Purchaser can obtain without the prior consent,
approval or other discretionary action of, any third party, constitute
all of the financing required to be provided by Purchaser for the
consummation of the transactions contemplated by this Agreement.
12. AMENDMENT TO SECTION 5.06(A). Section 5.06(a) of the Original
Asset Purchase Agreement is hereby amended to read, in its entirety, as
follows:
(a) Except as set forth in Sections 2.04(b) and 9.03 and
Article 8, all costs and expenses incurred in connection with this
Agreement and the Ancillary Agreements and the transactions
contemplated hereby and thereby shall be paid by the party incurring
such expense, including all costs and expenses incurred pursuant to
Section 5.05.
13. AMENDMENT TO SECTION 5.07. Section 5.07 of the Original Asset
Purchase Agreement is hereby amended to read, in its entirety, as follows:
Collection of Receivables.
From and after the Closing, Purchaser shall have the sole
right and authority to collect for its own account all Receivables and
other related items that are included in the Acquired Assets and to
endorse with the names of Sellers, any checks or drafts received with
respect to any Receivables or such other related items. Sellers shall
hold in trust for the sole benefit of, and promptly deliver to,
Purchaser any cash or other property received directly or indirectly
by any of them with respect to the Receivables and such other related
items, including any amounts payable as interest, in kind to the
extent practicable and otherwise in accordance with applicable
provisions of the Omnibus Agreement.
14. AMENDMENT TO SECTION 5.08(A). Section 5.08(a) of the Original
Asset Purchase Agreement is hereby amended to read, in its entirety, as
follows:
(a) No later than June 18, 2002, or such later date as
the Sellers and Purchaser mutually agree, the Purchaser shall deliver
to Sellers a list of the names of not less than 265 Covered Employees
which Purchaser intends to employ in connection with the Business
after the Closing Date. The Purchaser will notify each such employee
no later
than three (3) Business Days after the Closing Date of the terms and
conditions of such employee's position with Purchaser and be of
responsibility substantially similar to his or her position
immediately before the Closing Date and at substantially similar base
pay as that identified on Schedule 3.20 and include a statement
reasonably satisfactory to Sellers and Purchaser concerning the
transition of such employee's transfer of employment providing that,
if accepted, such offer of employment shall commence immediately upon
the occurrence of the Closing Date so as to avoid any "gap" between
employment of such individual by Sellers immediately prior to the
Closing and by and Purchaser, immediately following the Closing. All
Covered Employees to whom such notices are delivered and who actually
continue in such position with the Purchaser after the Closing Date
shall hereinafter be referred to as the "Retained Employees." The form
of the foregoing described notices shall be provided in advance to
counsel for Sellers, with a period for review and comment which is
reasonable under the circumstances. The Purchaser will not have any
liability whatsoever with respect to any current or former employee of
the Sellers in the Business who are not Retained Employees.
15. AMENDMENT TO SECTION 5.16. Section 5.16 of the Original Asset
Purchase Agreement is hereby amended to read, in its entirety, as follows:
Management Agreement.
The parties acknowledge that the Purchaser is required to
obtain the Consents of the FCC and various PUCs in order to directly
provide certain regulated telecommunications services to customers
whose contracts with Sellers will be transferred to Purchase at the
Closing. Purchaser acknowledges that it has made all necessary filings
and applications with the FCC and various PUCs in order to obtain the
necessary Consents. On the Closing Date, the parties shall enter into
the Omnibus Agreement, with effective provisions regarding the matters
addressed in Exhibit 2.02(a)(v), which shall govern the relationship
between the parties with respect to the provision of such regulated
telecommunications services on an interim basis and the parties shall
continue to cooperate, using commercially reasonable efforts, to
expeditiously obtain any and all outstanding PUC or FCC consents.
16. AMENDMENT TO SECTIONS 6.01(D), (E), (F), (G), (H), (I) AND
(J).
(a) Section 6.01(d) of the Original Asset Purchase
Agreement is hereby deleted in its entirety, and in lieu thereof the phrase
"[Intentionally Omitted.]" is inserted in its stead.
(b) Section 6.01(e) of the Original Asset Purchase
Agreement is hereby is hereby amended to read, in its entirety, as follows:
Purchaser, WorldCom and the required affiliates of WorldCom shall have
entered into the Omnibus Agreement;
(c) Sections 6.01(f), (g), (h), (i) and (j) of the
Original Asset Purchase Agreement are each hereby deleted in their entirety.
17. AMENDMENT TO SECTION 9.10. Section 9.10 of the Original Asset
Purchase Agreement is hereby amended to read, in its entirety, as follows:
Dispute Settlement.
If a claim or dispute between the parties arises in connection with
this Agreement, the parties will attempt in good faith to resolve
through negotiation such claim or dispute. If the parties cannot
mutually resolve such matter within 20 business days of the initial
notice of such dispute, the parties agree that such claim or dispute
shall be settled by arbitration in Washington, DC, in accordance with
the then-current rules of the alternative dispute resolutions firm
JAMS or its successor, or if no successor exists then in accordance
with the then-current commercial arbitration rules of the American
Arbitration Association. The arbitrator(s) shall be experienced in
conducting arbitrations in the U.S. communications industry, selected
mutually by Sellers, on the one hand, and Purchaser, on the other
hand. The cost of the arbitration, including the fees and expenses of
the arbitrator(s), shall be shared equally by the parties unless the
award provides otherwise. Judgment upon the award rendered by the
arbitrator(s) may be entered into any court of competent jurisdiction,
and shall be fully enforceable and only appealable in accordance with
the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq. The parties
agree that, except as required by applicable law or regulation, the
existence, outcome, and contents of any arbitration proceeding shall
be kept confidential and that the arbitrator(s) shall be required to
adhere to the same obligation of confidentiality. The parties also
acknowledge, however, that in the event that any of the parties hereto
becomes the debtor in a case under Chapter 11 of Title 11, United
States Code (respectively, a "Bankruptcy Case" and the "Bankruptcy
Code"), the provisions hereof regarding Dispute Resolution will or may
be subject to applicable provisions of the Bankruptcy Code and related
procedural rules, and the parties therefore agree, in the event of a
Bankruptcy Case by any of the parties hereto, to use their collective
commercially reasonable efforts to achieve the goal of resolving
disputes in accordance with the provisions hereof to the extent
permitted by the Court having jurisdiction of such a Bankruptcy Case,
and that any failure to follow the dispute resolution procedures
herein, or the equivalent dispute resolution procedure under any
Ancillary Agreement, which results from such a Bankruptcy Case shall
not be a default hereunder or under any equivalent provision in any of
the Ancillary Agreements.
18. AMENDMENT TO SCHEDULE OF DEFINED TERMS.
(a) The Schedule of Defined Terms set forth in the
Original Asset Purchase Agreement is hereby amended to delete the following
defined terms therein and the corresponding Section reference thereof: Closing
Date Consideration; Closing Statement; Customer Revenue Amount; Independent
Accounting Firm; Revenue Adjustment Amount; Telecommunications Revenue; Working
Capital; Working Capital Assets; Working Capital Liabilities; Working Capital
Adjustment Amount; and Working Capital Revenue Adjustment.
(b) The Schedule of Defined Terms set forth in the
Original Asset Purchase Agreement is hereby further amended by inserting in the
correct alphabetical order therein a reference to "Omnibus Agreement - Section
2.02(a)."
19. DELETION OF EXHIBIT 1.04(C). Exhibit 1.04(c) of the Original
Asset Purchase Agreement is hereby deleted in its entirety and no longer
considered a part of the Original Asset Purchase Agreement.
20. AMENDMENT TO LIST OF SCHEDULES, EXHIBITS AND ANNEXES. The
list of Schedules, Exhibits and Annexes set forth in the Original Asset
Purchase Agreement is hereby amended to delete the reference to "Exhibit
1.04(c) - Form Closing Statement."
21. WAIVERS. Sellers acknowledge, and have informed Purchaser of,
the occurrence of the following events (collectively, the "Restatement
Events"):
(a) On June 25, 2002, WorldCom announced that it intended to
restate its financial statements for 2001 and the first quarter of 2002. As a
result of an internal audit of WorldCom's capital expenditure accounting, it
was determined that certain transfers from line cost expenses to capital
accounts during this period were not made in accordance with generally accepted
accounting principles (GAAP). The amount of these transfers was $3.055 billion
for 2001 and $797 million for first quarter 2002. Without these transfers,
WorldCom's reported EBITDA would be reduced to $6.339 billion for 2001 and
$1.368 billion for first quarter 2002, and the company would have reported a
net loss for 2001 and for the first quarter of 2002.
(b) As a result of the June 25 announcement, Proceedings were
commenced against WorldCom by various Governmental Agencies, including the
Securities and Exchange Commission, the Federal Communications Commission, the
United States Congress and various private parties.
(c) On July 1, 2002, WorldCom announced that, as expected, it had
received a notice of termination of its $1.5 billion accounts receivable
securitization program. WorldCom company now cannot sell any new accounts
receivable into the program, and collections on accounts receivable in the
program will be used to pay down the approximately $1.2 billion outstanding
under the program.
(d) On July 1, 2002, WorldCom announced that the lenders under
its $2.65 billion and $1.6 billion senior unsecured credit facilities have
notified WorldCom that events of default had occurred and that they have
reserved their rights and remedies under the facilities. These events permit
lenders holding 51 percent of the loans under the $2.65 billion facility to
vote to accelerate the date for repayment of the loans, which would then become
immediately due and payable if the lenders chose to do so.
(e) On July 1, 2002, WorldCom announced that it received notice
from Nasdaq stating that WorldCom had failed to comply with certain filing and
fee requirements for continued listing set forth in Marketplace Rules
4310(c)(13) and 4310(c)(14) and that its securities are, therefore, subject to
delisting from The Nasdaq National Market. The notice said that Nasdaq's
securities would be delisted at the opening of business on July 5, 2002, but
WorldCom has since requested a hearing, in accordance with Nasdaq rules, and as
a result, its securities continue to trade on The Nasdaq National Market.
(f) On July 11, 2002, WorldCom announced that it would not pay
the dividend of $0.60 per share of MCI group common stock that was scheduled to
be paid on July 15, 2002.
(g) On July 12, 2002, WorldCom announced that at the request of
the Securities and Exchange Commission, the United States District Court of the
Southern District of New York has entered an order staying for seven business
days the previously announced conversion of each outstanding share of MCI Group
Common Stock into 1.3594 shares of WorldCom Group Common Stock.
(h) On July 12, 2002, a group of banks filed a lawsuit in a New
York court against WorldCom, Inc., and other parties, seeking, among other
things, a court order to immediately freeze approximately $2.65 billion of
WorldCom assets. A hearing on the matter has been scheduled for Tuesday, July
16, 2002.
(i) As a result of the Restatement Events, WorldCom has
acknowledged that it is considering commencing a Chapter 11 bankruptcy
proceeding.
Purchaser hereby agrees, based on the Restatement Events as informed
by Sellers to Purchase, to waive only the following described possible breaches
of representations and warranties and possible failures to perform or to
satisfy covenants and closing conditions, as a result of the Restatement
Events:
(a) possible Sellers' breaches of Sellers' representations
contained in Section 3.17 and in the first sentence of Section 3.12;
(b) possible Sellers' failure to satisfy the covenant contained
in Section 5.01(b); and
(c) possible Sellers' failure to satisfy the closing conditions
contained in Section 6.02 solely as a result of the possible breaches of
Sellers' representations contained in Section 3.17 and in the first sentence of
Section 3.12.
Purchaser hereby acknowledges and agrees that the waivers described
above shall have the effects set forth in Section 6.05 of the Asset Purchase
Agreement.
Purchaser acknowledges and agrees that nothing in this Amendment shall
be construed as an admission by any Seller of any breach of any representation,
warranty, or covenant in the Original Asset Purchase Agreement, as amended by
this Amendment, or any other liability, fault, or wrongdoing on its part or on
the part of any of its predecessors, successors, assigns, agents,
representatives, parents, subsidiaries, affiliates, officers, directors or
employees.
Sellers acknowledge and agree that the waivers set forth herein shall
be limited precisely as written and relate solely to (a) possible Sellers'
breaches of Sellers' representations contained in Section 3.17 and in the first
sentence of Section 3.12, (b) possible Sellers' failure to satisfy Seller's
covenant contained in Section 5.01(b) and (c) possible Sellers' failure to
satisfy the closing conditions contained in Section 6.02 solely as a result of
possible Sellers' breaches of its representations contained in Section 3.17 and
in the first sentence of Section 3.12. Sellers further acknowledge and agree
that nothing in this Amendment shall be deemed to (x) constitute a waiver of
compliance by Purchaser with respect to any other representation, warranty,
covenant or agreement of Sellers under the Asset Purchase Agreement or any
Ancillary Agreement, (y) constitute a waiver of compliance by Purchaser with
respect to any other term, provision or condition of the Asset Purchase
Agreement or any Ancillary Agreement (whether in connection with this waiver or
otherwise), or (z) prejudice any right or remedy that Purchaser may now have
(except to the extent such right or remedy was based upon defaults that will
not exist after giving effect to this waiver) or may have in the future under
or in connection with the Asset Purchase Agreement or any Ancillary Agreement.
22. MISCELLANEOUS.
(a) Headings. The headings preceding the text of the
sections and subsections of this Amendment are for convenience of reference
only and shall not constitute a part of this Amendment, nor shall they affect
its meaning, construction or effect.
(b) Counterparts. This Amendment may be executed in
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 instrument.
(c) Governing Law. This Amendment shall be governed by
and construed in accordance with the internal law of the State of New York,
applicable to agreements made and to be performed entirely within such State,
without giving effect to principles of conflicts of law.
(d) Incorporation of Amendment. On and after the date
hereof each reference in the Original Asset Purchase Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import shall be a
reference to the Original Asset Purchase Agreement as amended hereby.
(e) Continued Effectiveness of Original Asset Purchase
Agreement. Except as specifically amended above, all terms of the Original
Asset Purchase Agreement shall remain unchanged and in full force and effect.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first written above.
INTERMEDIA COMMUNICATIONS, INC.,
By:
----------------------------------------
Name:
Title:
SHARED TECHNOLOGIES XXXXXXXXX, INC.,
By:
----------------------------------------
Name:
Title:
SHARED TECHNOLOGIES XXXXXXXXX TELECOM, INC.,
By:
----------------------------------------
Name:
Title:
MCI WORLDCOM COMMUNICATIONS, INC.
By:
----------------------------------------
Name:
Title:
WORLDCOM, INC.
By:
----------------------------------------
Name:
Title:
CYPRESS COMMUNICATIONS, INC.,
By:
----------------------------------------
Name:
Title:
