EXHIBIT 10.2
December 23, 1997
Midcom Communications Inc.
Cel-Tech International Corp.
PacNet Inc.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Re: Amended and Restated Asset Purchase Agreement --
Amendments Made December 19, 1997 in Open Court
Gentlemen:
This letter will confirm our agreement that in Bankruptcy
Court on December 19, 1997, the following sections of the Amended and Restated
Asset Purchase Agreement, dated as of December 17, 1997, were amended to read as
follows:
Section 1.2:
(m) The stock of Ad Val, Inc. and its wholly-owned
subsidiary, Ad Val Data, Inc., and all assets owned by, used in or relating to
the business of these two companies.
Section 7.2 Assumption of Contracts. No later than two (2) Business
Days prior to the Closing, the Purchaser shall notify the Sellers in writing as
to any Assumed Contracts that were listed in Section 1.1(l) of the Company
Disclosure Letter as of the date hereof that the Purchaser does not desire to
assume at Closing, which Contracts shall be deleted from Section 1.1(l) of the
Company Disclosure Letter. At Closing, the Sellers shall deliver an updated
Company Disclosure Letter pursuant to Section 2.2 hereof that shall reflect such
changes to the Assumed Contracts to be assumed by the Purchaser hereunder at
Closing and add such excluded Contracts to Section 1.2(c) of the Company
Disclosure Letter.
Section 9.4 Termination by WinStar. This Agreement may be terminated at
any time on or prior to the Closing Date by action of the Board of Directors of
WinStar if (a) a condition precedent to the obligations of the Purchaser and
WinStar hereunder to be fulfilled by the Sellers has not been fulfilled by the
time stated herein for such condition to be fulfilled or, if no such time is
stated, by January 31, 1998; (b) there has been a material breach of any of the
representations, warranties, covenants or agreements set forth in this Agreement
on the part of the Sellers, which breach is not curable or, if curable, is not
cured within ten (10) days after written notice of such breach is given by the
Purchaser to the Sellers; (c) the Board of Directors of the Company has
withdrawn, modified, or changed in a manner adverse to the Purchaser its
approval or rec ommendation of this Agreement in order, or the Sellers otherwise
determine, to approve and permit the Company to execute a definitive agreement
relating to an Overbid; (d) since the date hereof, there have been one or more
events causing a Company Material Adverse Effect; (e) the Closing
Midcom Communications, Inc.
Cel-Tech International Corp.
PacNet Inc.
December 23, 1997
Page 2
does not occur by January 31, 1998, except if such failure is caused by
Purchaser's actions or inactions in breach of its obligations under this
Agreement; or (f) the 363 Order and the 365 Order have not been entered by the
Bankruptcy Court by January 31, 1998.
Section 9.7(b)(ii)
(A) The termination of this Agreement
pursuant to Section 9.3(c) or (d) or Section 9.4
(except for Section 9.4(d) or (e) or solely because
of the non-fulfillment of any of the conditions
specified in Section 8.3(c), (e), (g), (i), (j), (k)
or (l) which non-fulfillment is not caused by any act
or omission of Sellers); or
Section 10.2 Notices. All notices, claims, demands, and other
communications hereunder shall be in writing and shall be deemed given upon (a)
facsimile transmission, (b) confirmed delivery by a standard overnight carrier
or when delivered by hand, or (c) the expiration of five (5) Business Days after
the day when mailed by registered or certified mail (postage prepaid, return
receipt requested), addressed to the respective parties at the following
addresses (or such other address for a party as shall be specified by like
notice):
(a) If to the Purchaser or WinStar, to
WinStar Communications, Inc.
000 Xxxx Xxxxxx -- Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopier: 000-000-0000
with copies to
Xxxxxxxx Mollen & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Telecopier: 000-000-0000
(b) If to the Sellers, to
Midcom Communications Inc.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Midcom Communications Inc.
Cel-Tech International Corp.
PacNet Inc.
December 23, 1997
Page 2-A
with copies to
Midcom Communications Inc.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Telecopier: (000) 000-0000
and
Xxxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
and
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
THE NEXT PAGE IS PAGE 3
Midcom Communications Inc.
Cel-Tech International Corp.
PacNet Inc.
December 23, 1997
Page 3
Please countersign a copy of this letter to confirm your
agreement to the foregoing and return it to the undersigned.
Very truly yours,
WINSTAR MIDCOM ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
WINSTAR COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
AGREED:
MIDCOM COMMUNICATIONS INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President & General Counsel
CEL-TECH INTERNATIONAL CORP.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President & General Counsel
PACNET INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President & General Counsel
