EXHIBIT 2.2
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (the "FIRST
AMENDMENT") is made as of this 10th day of November, 1997, by and among Cellular
Communications Corp., an Illinois corporation ("CCC"), Areawide Cellular Inc.,
an Illinois corporation ("AREAWIDE"), Area Plus Paging, Inc., an Illinois
corporation ("AREA PLUS"), and Acel, Inc., an Illinois corporation ("ACEL"),
(CCC, Areawide, Area Plus and Acel individually, a "SELLER", and collectively,
the "SELLERS"), each of Xxxxx Xxxxxx ("XXXXXX") and Xxxxx X. Xxxxx ("XXXXX")
(Xxxxxx and Xxxxx individually, a "SHAREHOLDER", and collectively,
"SHAREHOLDERS"), and Source One Wireless, L.L.C., a limited liability company
formed under the laws of Delaware (the "FORMER BUYER"), Source One Wireless,
Inc., an Illinois corporation (the "PARENT"), and Source One Wireless I, L.L.C.,
a limited liability company formed under the laws of Delaware (the "NEW BUYER").
All terms not otherwise defined herein shall have the meanings ascribed to them
in the Agreement (as defined below).
RECITALS
A. Except for Acel and the New Buyer, the parties to this First
Amendment entered into that certain Asset Purchase Agreement, dated as of the
30th day of September, 1997 (the "AGREEMENT").
B. The parties to the Agreement now wish to amend the Agreement to,
among other things, include Acel and the New Buyer as parties to the Agreement.
C. Acel is owned entirely by the Shareholders and will derive
substantial benefit from being added to the Agreement.
D. The New Buyer is an affiliate of Parent and the Former Buyer and
will derive substantial benefit from being added to the Agreement.
E. Acel currently holds rights as tenant to certain leasehold interests
related to the Business which are to be transferred as part of the Agreement.
F. The parties also wish to amend the Agreement to ratify the extension
of the Closing Date, amend certain terms and conditions with respect to Purchase
Price adjustments, and to add certain provisions related to procuring consents
to transferring leasehold interests.
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:
8. As of the date hereof, Sellers have advised Former Buyer, New Buyer and
Parent that: (i) Sellers are currently prepared to fully perform the
obligations and duties of Sellers under the Agreement, and Former
Buyer, New Buyer and Parent are aware of no facts contrary to such
statement, and (ii) Sellers are ready, willing and able to make all
deliveries
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required of Sellers for the Closing. Sellers have agreed to extend the
Closing Date on the terms and conditions set forth in the First
Amendment. Sellers and each of Former Buyer, New Buyer and Parent
acknowledge and agree that each shall remain obligated to fulfill their
respective obligations and the terms of the Agreement, as amended, at
Closing.
1. The Agreement is amended to include Acel as a "Seller".
2. Acel agrees to be bound by the terms of the Agreement, as though Acel
had entered into the Agreement as a Seller on September 30, 1997, and
discharge all duties and obligations that the Agreement imposes upon
Sellers.
3. Acel specifically affirms all representations and warranties made or
given by Sellers in the Agreement, including, without limitation, the
representations and warranties contained in Article 3 of the Agreement.
4. The Agreement is amended to substitute the New Buyer as the "Buyer" in
place of the Former Buyer, with the Former Buyer being discharged and
relieved of all obligations and liabilities attendant and appurtenant
to the Former Buyer's prior status as "Buyer" under the Agreement.
5. The New Buyer agrees to be bound by the terms of the Agreement, as
though the New Buyer had entered into the Agreement as the "Buyer" on
September 30, 1997, and discharge all duties and obligations that the
Agreement imposes upon the Buyer.
6. The New Buyer specifically affirms all representations and warranties
made or given by the Former Buyer in the Agreement, including, without
limitation, the representations and warranties contained in Article 4
of the Agreement.
7. The Parent expressly recognizes its liability for any and all
obligations imposed on the New Buyer in the Agreement.
8. The Former Buyer agrees that it shall be jointly and severally liable
with the Parent for any and all obligations imposed on the Parent in
the Agreement.
9. Section 1.1(b) of the Agreement shall be amended to include the
following additional provision, which is to be added at the end of the
existing 1.1(b) provisions:
"provided that, notwithstanding the foregoing or anything stated in this
Agreement to the contrary, (i) to the extent that any leasehold interest listed
on Exhibit 1.1(b)A for which assignment to Buyer is provided for herein is not
assignable without the consent of another party, this Agreement shall not
constitute an assignment or an attempted assignment thereof if such assignment
or attempted assignment would constitute a breach of such a leasehold interest,
(ii) Sellers and Shareholders agree to use their reasonable best efforts to
obtain the consent of such other party to the assignment of any such leasehold
interest to Buyer in all cases in which such consent is or may be required for
such assignment, and (iii) if any such consent shall not be obtained prior to
Closing, Shareholders and Sellers agree to cooperate with Buyer, at no expense
to Shareholders or Sellers, in Buyer's efforts to obtain such consent." The
previous sentence notwithstanding, Sellers affirm that as of the date hereof
Sellers have not procured consents from
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the trustees for the applicable land trusts for the properties located at 0000
Xxxxxxxxx Xxxx in Schaumburg, 000 X. Xxxxx 00 in Bartlett, 0000 Xxxxx Xxxxxxx
Xxxxxx in Chicago, and 000 X. XxXxxxxx Xxxx in Frankfort and Sellers shall use
their best efforts at their sole expense to promptly procure such consents and
Sellers and/or Shareholders shall, jointly and severally, indemnify New Buyer,
Former Buyer and Parent from any and all liability arising from the failure of
the Sellers to procure such consents.
10. Section 1.4 of the Agreement shall be replaced with the following:
Xxxxxxx Money Escrow. Concurrently with the execution of this Agreement, the
Buyer has deposited into an interest bearing escrow account with First American
Title and Trust ("ESCROW AGENT"), the sum of One Hundred Thousand Dollars
($100,000.00) as xxxxxxx money. The Buyer has elected to deposit with the Escrow
Agent an additional Four Hundred Thousand Dollars ($400,000.00) as xxxxxxx
money, which will have the effect of extending the Closing Date to no later than
5:00 p.m. Chicago time, December 1, 1997. On November 12, 1997, all amounts held
in escrow will be released to the Sellers and such amount shall be applied to
the Purchase Price. In the event this Agreement is terminated prior to Closing
for any reason other than Buyer's breach of this Agreement or the surviving
provisions contained in that letter of intent between the parties hereto dated
July 18, 1997, as amended (a "BUYER BREACH"), the xxxxxxx money amount paid to
the Sellers will immediately be refunded to the Buyer by the Sellers, together
with all interest accrued thereon. In the event of a Buyer Breach, Sellers shall
retain such xxxxxxx money amounts and shall be entitled to enforce its rights in
accordance with Section 5.7.
11. Subsections 2.2(d). 2.2(e) and 2.2(f) shall be added to Section 2.2 of
the Agreement as follows:
(d) Sellers acknowledge that they will not provide by the Closing a consent
to assignment of the lease for that certain property located at 0000
Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, the landlord of which is
identified in Schedule 5.3(c) as the Weedstreet II Limited Partnership
lessor, and Sellers affirm that if such consent is not obtained within
ninety (90) days of Closing the Purchase Price shall be adjusted
pursuant to the formula stipulated in Schedule 5.3(c);
(e) If Buyer has not paid to Sellers the balance of the Purchase Price on
or before 5:00 p.m., Chicago time, November 17, 1997, the Purchase
Price shall be increased by One Hundred Twenty Five Thousand Dollars
($125,000), subject to the Purchase Price Adjustments in subsection (c)
above. If Buyer has not paid to Sellers the balance of the Purchase
Price on or before 5:00 p.m., Chicago time, November 24, 1997, the
Purchase Price shall be increased by an additional One Hundred Twenty
Five Thousand Dollars ($125,000), subject to the Purchase Price
Adjustments in subsection (c) above.
(f) Buyer shall give notice to Sellers as promptly as practicable of the
time and manner of Buyer's remission of the balance of the Purchase
Price.
12. Section 2.3(a) shall delete "held by the Escrow Agent (which shall be
disbursed to Sellers by the Escrow Agent at the Closing)".
13. The first sentence of Section 5.1 of the of the Agreement shall be
amended as follows:
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The consummation of the purchase and sale of the Purchased Assets and the
related transactions and deliveries herein provided for ("CLOSING") shall begin
November 13, 1997, and continue thereafter until the earlier of (i) the payment
of the Purchase Price as adjusted hereunder or (ii) 5:00 pm Chicago time,
December 1, 1997 ("CLOSING DATE"), at the offices of Buyer's attorneys, Xxxxxxxx
& Xxxxxx, Ltd., located at 00 Xxxxx Xxxxxx Xxxxx, 00xx xxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other time or place as the parties mutually agree.
14. Section 9.6 of the Agreement shall be replaced as follows:
Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same Agreement. It is the intent and desire of the parties that the
full exchange of signatures by facsimile for all documents required hereunder
shall bind the parties for all purposes hereunder. The validity of any document
signed by facsimile and delivered hereunder shall not be affected in the event
that the delivery of such document occurs after the officers or agents whose
signatures appear on such document, or any of them, are no longer serving as
officers or agents by reason of death or for any other cause. The parties
further intend that such facsimile signatures shall be a legal writing for all
purposes hereunder.
15. Except as expressly provided herein, nothing in this First Amendment
shall be deemed to waive or modify any of the provisions of the
Agreement. In the event of any conflict between the Agreement and this
First Amendment, the document later in time shall prevail.
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the date written above.
THE SELLERS:
CELLULAR COMMUNICATIONS CORP.
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: President
AREAWIDE CELLULAR INC.
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: President
AREA PLUS PAGING INC.
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: President
ACEL, INC.
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: President
THE SHAREHOLDERS:
/s/ Xxx Xxxxxx
----------
Xxx Xxxxxx
/s/ Xxxxx Xxxxx
-----------
Xxxxx Xxxxx
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THE FORMER BUYER:
SOURCE ONE WIRELESS, L.L.C.
By: /s/ Dov Trop
------------
Name: Dov Trop
Title: President
THE PARENT:
SOURCE ONE WIRELESS, INC.
By: /s/ Dov Trop
------------
Name: Dov Trop
Title: President
THE NEW BUYER:
SOURCE ONE WIRELESS I, L.L.C.
By: /s/ Dov Trop
------------
Name: Dov Trop
Title: President
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