FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "First Amendment")
is made effective as of this ______ day of August, 2001, by and between Omniplex
Communications Group, LLC, a Texas limited liability company ("Seller"), as
seller, and CCC Globalcom Corporation, a Nevada corporation, and its permitted
assigns ("Buyer"), as buyer.
WITNESSETH:
WHEREAS, Seller and Buyer are parties to that certain Asset Purchase
Agreement dated effective as of July 13, 2001 (the "Purchase Agreement").
WHEREAS, all initially-capitalized terms not otherwise defined herein shall
have the meanings set forth in the Purchase Agreement unless the context clearly
indicates otherwise.
WHEREAS, Seller and Buyer desire to modify the Purchase Agreement as
provided below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
1. Assignment of Purchase Agreement to Ciera Network Systems, Inc. Buyer
does hereby TRANSFER, ASSIGN AND CONVEY to Ciera Network Systems, Inc., a Texas
corporation ("Ciera"), all Buyer's rights, titles, and interests under the
Purchase Agreement. By its execution hereof, Ciera accepts the Purchase
Agreement and agrees to assume and be bound by the obligations of Buyer under
the Purchase Agreement. All references to Buyer under the Purchase Agreement
shall hereafter refer to Ciera.
2. Amendments.
(a) The following definitions shall be added to Article 1 of the Purchase
Agreement:
"'Customer Base' means any and all customer accounts to which Seller
provides any telecommunications services as of the Closing Date."
"'Remaining Contract Rights' shall mean all contract rights of Seller in
the Customer Base (including, without limitation, all written or oral letters of
agency relating to the customers in the Customer Base) other than the Revenue
Rights."
"'Revenue Rights' means the Buyer's right from and after the Closing Date
to xxxx, collect, and retain as its sole property all revenues due from the
Customer Base for telecommunications services provided to the Customer Base from
and after the Closing Date."
(b) The definition of "Assumed Liabilities" contained in Article 1 of the
Purchase Agreement is hereby amended by deleting clause (ii) and (iii) of that
definition and inserting in lieu thereof the following clauses (ii) and (iii):
"(ii)all liabilities and obligations for unpaid, post-petition sales
and federal excise taxes including, without limitation, any
Universal Service Fees related to the Business, to the extent
such taxes or fees relate to unbilled receivables, or billed but
uncollected receivables, as of the Closing Date, (iii) an amount
payable to RFC Capital Corporation (hereinafter, the "RFC Assumed
Indebtedness"), equal to the lesser of (a) $8,125,000 of the debt
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owed by Seller to RFC Capital Corporation, or (b) the amount of
(1) the actual indebtedness owed by the Seller to RFC Capital
Corporation as of the Closing Date, excluding all legal fees and
expenses incurred by RFC Capital Corporation in connection with
the Bankruptcy Case, plus (2) $125,000."
(c) Section 2.1(a)(v) of the Purchase Agreement is hereby deleted in its
entirety and in lieu thereof the following is inserted as new Section 2.1(a)(v):
"(v) All customers lists, Revenue Rights, and, subject to the Services
Agreement (defined in Section 8.4 of this Agreement), the right
to acquire with respect to each customer of Seller, at no
additional cost to Buyer, any or all of the Remaining Contract
Rights. Buyer shall from time to time obtain the actual transfer
of such Remaining Contract Rights from Seller to Buyer
immediately upon Buyer giving Seller notice that Buyer has (i)
satisfied such regulatory requirements as Buyer deems necessary,
in its sole discretion, to permit the transfer of such Remaining
Contract Rights to Buyer, and (ii) to the extent Buyer, in its
sole discretion, believes re-provisioning appropriate, re-
provisioned the customer or customers to which such Remaining
Contract Rights relate. The Revenue Rights shall be subject to
the terms of the financing arrangement agreed to by Buyer and RFC
Capital Corporation related to the Acquisition."
(d) Section 2.1(a)(xiv) of the Purchase Agreement is hereby deleted in its
entirety and in lieu thereof the following is inserted as new Section
2.1(a)(xiv):
"(xiv) All cash (other than cash funded by RFC Capital Corporation in
accordance with the Post-Petition Credit Facility between RFC
Capital Corporation and the Seller pursuant to a budget approved
by RFC Capital Corporation), any rights of Seller to receive
refunds of cash from any party, bank accounts, deposit accounts,
negotiable instruments, or any kind, wherever located; and"
(e) Section 2.2(c) of the Purchase Agreement is hereby deleted in its
entirety and in lieu thereof the following is inserted as new Section 2.2(c):
"(c) With respect to the allowed secured claim of RFC Capital
Corporation, which shall constitute a part of the Purchase Price,
the Seller shall prior to the Closing Date (i) request that the
Bankruptcy Court establish such allowed secured claim by Final
Order of the Court, or (ii) along with RFC Capital Corporation,
execute a stipulation or certification agreeing to the amount of
such allowed secured claim. However, regardless of the actual
allowed amount of RFC Capital Corporation's secured claim, in no
event shall the portion of the Purchase Price related to such
allowed secured claim exceed the amount of the RFC Assumed
Indebtedness set forth in Article 1."
(f) Section 2.3(a) of the Purchase Agreement is hereby deleted in its
entirety and in lieu thereof the following is inserted as new Section 2.3(a):
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"(a) In consideration for the sale and transfer of the Purchased
Assets and the assignment of Seller's rights under the Assumed
Contracts, Buyer shall (i) assume the Assumed Liabilities and the
obligations of the Seller under the Assumed Contracts, and (ii)
assume the allowed secured claim of RFC Capital Corporation in an
amount agreed to by Buyer and RFC Capital Corporation not to
exceed the amount of the RFC Assumed Indebtedness set forth in
Article 1, on terms satisfactory to Buyer, in its sole discretion
(collectively, the "Purchase Price")."
(g) The first sentence of Section 2.3(b) of the Purchase Agreement is
hereby deleted in its entirety and shall be replaced by the following:
"The Purchase Price shall be adjusted for the Prorated Items as
specified below."
(h) Section 5.4 of the Purchase Agreement is hereby deleted in its entirety
and in lieu thereof the following is inserted as new Section 5.4:
"Section 5.4Submission for Court Approval. Buyer and Seller
hereby acknowledge that Seller is currently a debtor in
possession in the Bankruptcy Case. Seller shall, within three (3)
Business Days from the date of execution of this Agreement, file
a motion with the Bankruptcy Court pursuant to Federal Rule of
Bankruptcy Procedure 9013 and Sections 363 and 365 of the
Bankruptcy Code (the "Sale Motion") seeking, inter alia, (i)
approval of this Agreement and entry of an order approving the
sale of the Purchased Assets to Buyer, free and clear of all
Liens, claims, interests and encumbrances pursuant to Section 363
of the Bankruptcy Court, and (ii) assumption and assignment of
the Assumed Contracts and establishing the amount of the Cure
Amounts related thereto under Section 365 of the Bankruptcy Code.
Buyer and Seller shall use their best efforts to obtain
Bankruptcy Court approval of the Sale Motion as soon as
practicable; provided, however, if a Final Order* of the
Bankruptcy Court is not obtained on or before September 3, 2001,
or such other date as may be agreed to by Buyer and Seller, Buyer
may terminate the Acquisition. The Auction, as provided in the
Procedures Order, shall occur on or before August 23, 2001, or
such other date as may be agreed to by Buyer and Seller. This
Agreement shall be subject to entry of a Final Order of the
Bankruptcy Court (the "Sale Order") approving the (i) the Sale
Motion, (ii) this Agreement, (iii) the sale of the Purchased
Assets to Buyer free and clear of all Liens, except the liens of
RFC Capital Corporation to the extent securing the payment of the
RFC Assumed Indebtedness, and (iv) the assumption and assignment
of the Assumed Contracts (with all Cure Amounts to be paid in
accordance with Section 2.2(b) above prior to Closing). As a
condition to Buyer's obligation to consummate the Acquisition,
the Bankruptcy Court shall have entered a Final Sale Order in a
form and substance acceptable to Buyer as to which no appeals or
motions for rehearing are pending and as to which no stay is
issued and the time for filing same has expired; provided,
however, that if an appeal or motion for rehearing is pending,
Buyer may waive the requirement for a Final Sale Order and close
the Acquisition provided there is no stay of the effects of such
Final Sale Order. The Final Sale Order shall specifically
determine that the Buyer is acting in good faith, and entitled to
the protections of Section 363(m) of the Bankruptcy Code. Unless
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*For purposes of this Agreement, "Final Order" shall mean any order or judgment
of the Bankruptcy Court which has not been reversed, stayed, modified, or
amended and is not subject to appeal or rehearing and as to which the time to
appeal or seek review, rehearing, revision, or relief shall have expired, or
which may be enforced in accordance with the Bankruptcy Code or the Bankruptcy
Rules in the event no motion for stay pending appeal is granted or bond is
approved and filed where a notice of appeal has been filed.
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waived by Buyer or denied by the Bankruptcy Court, the Final Sale
Order shall also contain a provision that makes it effective
immediately, and shall not be subject to any stay under Rules
6004(g) and 6006(d) of the Federal Rules of Bankruptcy
Procedure."
(i) Section 6.1(b) of the Purchase Agreement is hereby deleted in its
entirety and in lieu thereof the following is inserted as new Section 6.1(b):
"(b) The Bankruptcy Court shall have entered the Sale Order in
accordance with the terms of this Agreement on or before August
23, 2001."
(j) Section 6.2(g) of the Purchase Agreement is hereby deleted in its
entirety and in lieu thereof the following is inserted as new Section 6.2(g):
"(g) The Bankruptcy Court shall have entered an order
establishing the amount of the allowed secured claim of RFC
Capital Corporation or the Seller and RFC Capital Corporation
shall have executed and filed with the Bankruptcy Court a
stipulation or certification agreeing to the amount of such
allowed secured claim for purposes of determining the Purchase
Price, in accordance with and subject to the terms of this
Agreement."
(k) The following new Section 6.2(l) shall be added to the end of Section
6.2 of the Purchase Agreement:
"(l) Seller shall have executed the Services Agreement (defined
in Section 8.4 of this Agreement)."
(l) Section 7.1(b) of the Purchase Agreement is hereby deleted in its
entirety and in lieu thereof the following is inserted as new Section 7.1(b):
"(b) Either Seller or Buyer if the Closing shall not have
occurred on or before September 3, 2001 (unless the failure to
consummate the Closing by such date shall be due to the failure
of the party seeking to terminate this Agreement to have
fulfilled any of its obligations under this Agreement)."
(m) Section 7.1(e) of the Purchase Agreement is hereby deleted in its
entirety and in lieu thereof the following is inserted as new Section 7.1(e):
"(e) By Buyer if any condition to the obligation of Buyer set
forth in Section 6.1 or 6.2 has not been satisfied on or before
the date specified in such condition, or if no such date is
specified, September 3, 2001, unless the failure of such
condition to be satisfied is due to a breach by Buyer of its
obligations hereunder."
(n) The last sentence in Section 8.2 of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following sentence:
"Further, Seller agrees, to the extent that any Permits used by
Seller in connection with the Business are not assignable, then
Seller shall take such action as may be reasonably necessary to
provide Buyer with the use, enjoyment and benefit of Seller's
interest in such Permits until December 31, 2001; provided, that
Buyer agrees to indemnify and hold harmless the Seller from any
and all taxes and other liabilities arising out of Buyer's use or
enjoyment of such Permits after the Closing."
(o) The first sentence in Section 8.3 of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following sentence:
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"Buyer may, but shall not be required to, offer employment to or
employ any employees or officers of Seller as Buyer shall
determine in its sole discretion on such terms and conditions as
Buyer shall determine in its sole discretion; provided however,
Buyer agrees to provide Seller, prior to Closing, a list of the
employees of Seller that Buyer intends to extend offers of
employment."
(p) The following new Section 8.4 shall be added to the end of Article 8 of
the Purchase Agreement:
"Section 8.4Transition Period. In consideration of the payment of
the Purchase Price to Seller hereunder, and for purposes of
permitting Buyer the opportunity to re-provision the customers of
Seller following the Closing, Buyer and Seller shall execute at
Closing a Services Agreement (the "Services Agreement") in the
form attached hereto as Exhibit G. Buyer shall in no way be
liable for any costs, expenses, fees, taxes or any other amounts
incurred or accruing under any Vendor Contract or Tariff prior to
the Closing."
3. No Other Amendments. Except as expressly modified hereby, the Purchase
Agreement shall remain unmodified and in full force and effect.
4. Governing Law. This First Amendment shall be governed and construed in
accordance with the laws of the State of Texas and applicable federal law,
without regard to any applicable principles of conflicts of law.
5. Parties in Interest. This First Amendment shall be binding upon and
inure solely to the benefit of the parties hereto their successors and permitted
assigns, including, without limitation, any trustee, successor trustee or other
responsible person appointed or elected with respect to any Bankruptcy Estate
under any chapter of the Bankruptcy Code, and nothing in this First Amendment,
express or implied, is intended to or shall confer upon any other person or
persons any rights, benefits or remedies of any nature whatsoever under or by
reason of this First Amendment.
6. Counterparts. This First Amendment may be executed in two or more
counterparts, all of which shall be considered one and the same agreement.
IN WITNESS WHEREOF, Buyer and Seller have executed this First Amendment as
of the day and year first above written.
BUYER:
CCC GLOBALCOM CORPORATION,
a Nevada corporation
By:
---------------------------------
Xxxx Xxxxxx, President
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SELLER:
OMNIPLEX COMMUNICATIONS GROUP, LLC,
a Texas limited liability company
By:
---------------------------------
Name:
-------------------------------
Title:
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CIERA:
CIERA NETWORK SYSTEMS, INC.,
a Texas corporation
By:
---------------------------------
Name:
-------------------------------
Title:
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