FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (this "Amendment") is
made effective as of this ______ day of March, 2001, by and between Equalnet
Communications Corp., a Texas corporation ("ENET"), Equalnet Corporation, a
Delaware corporation ("ENC"), and USC Telecom, Inc., a Delaware corporation
("USC"; ENET, ENC and USC are sometimes referred to collectively as the
"Sellers"), as sellers, and CCC Globalcom Corp., Inc., a Nevada corporation, and
its permitted assigns (collectively, the "Buyer"), as buyer.
WITNESSETH:
WHEREAS, Sellers and Buyer are parties to that certain Asset Purchase
Agreement dated effective as of February 21, 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, Sellers 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. Purchased Assets.
(a) Clause (xvi) of Section 2.1(a) of the Purchase Agreement is hereby
deleted and the following is hereby added in lieu thereof:
(xvi) [Intentionally omitted.]
(b) Buyer and Sellers hereby acknowledge and agree that Section 2.1(a) of
the Purchase Agreement is hereby amended to delete the word "and" at the end of
clause (xvii), and by adding the following new clauses (xviii) and (xix)
immediately following clause (xvii):
"(xviii) To the extent assignable, all of Sellers' rights as
lessee under leases of any and all furniture, fixtures,
equipment or other personal property
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rented or leased from Wells Fargo Equipment Finance, Inc., as
assignee and successor to Norwest Equipment Finance, Inc.;"
"(xix) All of Seller's rights as lessee to return of a lease
deposit made by Sellers to Caroline Partners, Ltd. in
connection with their leasing of office space, the amount of
such deposit being $35,000, plus interest accrued thereon;
and"
Because of the addition of the preceding new clauses, existing clause (xviii)
under Section 2.1(a) of the Purchase Agreement is renumbered to become new
clause (xx).
(c) A new Schedule 2.1(a)(xviii) is hereby added to the Purchase
Agreement, such Schedule to be in the form attached hereto and identified as
Schedule 2.1(a)(xviii) (Leased office equipment and furniture).
2. Assumed Contracts.
(a) Buyer and Sellers hereby acknowledge and agree that Schedule 1 to the
Purchase Agreement is hereby amended to delete the contract referenced as item 4
on Schedule 1, being Southwestern Bell Telephone ( network services) Dallas,
Texas, and that any executory contract between Sellers and such contract party
will not be an Assumed Contract or an Assumed Liability.
(b) Buyer and Sellers hereby acknowledge and agree that Schedule 1 to the
Purchase Agreement is hereby amended to delete the contract referenced as item 9
on Schedule 1, being SMS/800, 1721 South Sykes Street, Bismark, ND 58504, and
that any lease or executory contract between Sellers and such contract party
will not be an Assumed Contract or an Assumed Liability.
(c) Buyer and Sellers hereby acknowledge and agree that Schedule 1 to the
Purchase Agreement is hereby amended to change certain cure amounts set forth on
Schedule 1 to the cure amounts set forth below:
Contract Party Cure Amount
Wells Fargo (financing of furniture) $48,782.85
Caroline Partners, Ltd. (office rent) $21,777.73
3. RFC Assumed Indebtedness.
(a) The definition of "Assumed Liabilities" contained in Article 1 of the
Purchase Agreement is hereby amended by deleting clause (a) of that definition
and inserting in lieu thereof the following new clause (a):
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"(a) $7,500,000 of the debt owed by Sellers to RFC Capital Corp,".
(b) 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 claim of RFC Capital Corp., which shall
constitute a part of the Purchase Price, the Sellers shall request
that the Bankruptcy Court enter an order fixing the amount of the
claim of RFC Capital Corp. for purposes of this Agreement. This
relief shall be requested in the Sale Motion. The Sale Motion shall
seek approval of the Buyer's assumption of the claim of RFC Capital
Corp. pursuant to this Agreement but only in an amount not exceed
the lesser of (i) $7,500,000 less any payments or credits made after
such determination, and (ii) the amount of the actual indebtedness
owed by Sellers to RFC Capital Corp. as of the Closing Date,
excluding, however, in both calculations, all legal fees and
expenses incurred by RFC Capital Corp. in connection with the
Bankruptcy Cases. In connection with the Acquisition, RFC Capital
Corp. shall, on or before the Closing Date, re-convey all of its
rights, claims, and interests in any account or other rights
purchased from the Sellers, which accounts and rights shall be sold,
transferred and conveyed to Buyer as part of the Purchased Assets,
subject only to any liens held by RFC Capital Corp. securing the RFC
Assumed Indebtedness. Nothing in this Agreement shall be deemed to
prejudice the claims lodged by the plaintiffs in Joint Committee of
Unsecured Creditors and Unsecured Creditors Trust v. RFC Capital
Corporation, f/k/a Receivables Funding Corporation (Adversary
Proceeding Number 00-3797 in the Bankruptcy Cases)."
(c) Section 6.2(g) of the Purchase Agreement (relating to Bankruptcy Court
approval of the claim of RFC Capital Corp.) is hereby deleted in its entirety.
4. Excluded Assets.
The following items are added to Schedule 2 (List of Certain Excluded
Assets) to the Purchase Agreement:
"10. All claims lodged by the plaintiffs in Joint Committee of Unsecured
Creditors and Unsecured Creditors Trust v. RFC Capital Corporation, f/k/a
Receivables Funding Corporation (Adversary Proceeding Number 00-3797 in the
Bankruptcy Cases)."
"11. All claims for refunds of taxes."
"12. All claims of any of the Sellers that arose before the Closing Date against
officers and directors of any Seller or against any former officers and
directors of any Seller."
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"13. All policies of insurance covering acts and omissions before the Closing
Date of persons acting as officers or directors of any Seller, all rights
under such insurance policies and all proceeds from any such policies."
"14. All causes of action upon which the Unsecured Creditors' Trust in EqualNet
Corp.'s prior bankruptcy has a first priority lien."
5. Business Records.
Section 5.5 of the Purchase Agreement is hereby deleted in its entirety and
in lieu thereof the following new Section 5.5 is added:
"Section 5.5 Business Records. Buyer shall have the right to
receive all Records related to the Purchased Assets. Buyer shall
retain all such Records and shall not destroy any Records until the
Bankruptcy Cases are closed or unless approved by order of the
Bankruptcy Court. From and after the Closing, Buyer shall permit the
following persons and entities to have access to, and make copies
of, any or all of the Records from time to time, during regular
business hours upon reasonable prior written notice to Buyer and
provided further that such access shall not unreasonably interfere
with Buyer's business operations: (i) any Seller; (ii) the Unsecured
Creditors' Trust in the Bankruptcy Cases; and (iii) the Unsecured
Creditors' Committee in the Bankruptcy Cases. Buyer acknowledges
that Seller's records may be incomplete and that Sellers make no
representations or warranties of any kind regarding the content of
any Records.
6. Submission for Court Approval.
The second sentence of Section 5.4 of the Purchase Agreement is hereby
amended by adding the word "and" immediately prior to clause (ii), and by
deleting clause (iv).
7. No Other Amendments.
Except as expressly modified hereby, the Purchase Agreement shall remain
unmodified and in full force and effect.
8. 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.
9. 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.
10. Counterparts.
This First Amendment may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
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IN WITNESS WHEREOF, Buyer and Sellers have executed this First Amendment
as of the day and year first above written.
BUYER:
CCC GLOBALCOM CORP., INC.,
a Nevada corporation
By:________________________________
Paul Licata, President
SELLERS:
EQUALNET COMMUNICATIONS CORP.,
a Texas corporation
By:________________________________
Mitchell H. Bodian, President
EQUALNET CORPORATION., a Delaware
corporation
By:_________________________________
Mitchell H. Bodian, President
USC TELECOM, INC., a Delaware corporation
By:__________________________________
Mitchell H. Bodian, President
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