Exhibit 10.2
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1 (this "Amendment") to Asset Purchase Agreement (as defined
below), dated as of November 27, 2002, by and among COUNSEL SPRINGWELL
COMMUNICATIONS LLC, a Delaware limited liability company ("Counsel LLC"),
WORLDXCHANGE CORP., a Delaware corporation ("WorldxChange"), COUNSEL
CORPORATION, an Ontario corporation ("Counsel Corp."), and RSL COM U.S.A., INC.,
a Delaware corporation ("Seller").
RECITALS
WHEREAS, Counsel LLC and Seller are parties to that certain Asset Purchase
Agreement, dated March 25, 2002 (the "Asset Purchase Agreement"), whereby Seller
agreed to sell, and Counsel LLC agreed to purchase and assume from Seller, the
Assets and Assumed Liabilities relating to the Business ("Asset Purchase"), in
accordance with sections 105(a), 363(b) and 365 and other applicable provisions
of the Bankruptcy Code and pursuant to an order of the Bankruptcy Court dated
May 23, 2003 (the "Sale Order");
WHEREAS, pursuant to Section 12.4 (Assignment) of the Asset Purchase Agreement,
Counsel LLC assigned (the "Assignment") its rights and obligations under the
Asset Purchase Agreement to WorldxChange with effect as of the date the motion
for the Sale Order was filed (the "Assignment Date"), and WorldxChange has
accepted such Assignment; provided, that, notwithstanding the Assignment,
Counsel LLC remains jointly and severally liable with such WorldxChange for
Counsel LLC's obligations under the Asset Purchase Agreement;
WHEREAS, the Counsel Entities have agreed to certain undertakings with respect
to payment of the Purchase Price;
WHEREAS, the parties to the Asset Purchase Agreement have agreed to certain
amendments thereto, such agreement to be evidenced by this Amendment;
WHEREAS, this Amendment is "Amendment No. 1" to the Asset Purchase Agreement;
and
WHEREAS, this Amendment shall be subject to an order of the Bankruptcy Court, in
accordance with Sections 105(a), 363(b) and 365 and other applicable provisions
of the Bankruptcy Code, as provided in an order substantially in the form
attached hereto as Exhibit E, authorizing the Seller to enter into this
Amendment and to consummate the transactions contemplated hereby (the
"Restructured Sale Approval Order");
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby mutually acknowledged, the parties hereto agree as follows:
1.
DEFINITIONS; INTERPRETATION.
CAPITALIZED TERMS USED HEREIN AND
NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN
THE ASSET PURCHASE AGREEMENT.
THE TERM "AMENDMENT," AS USED HEREIN, SHALL
INCLUDE THE EXHIBITS ATTACHED HERETO.
TERMS HEREIN
WHICH ARE CAPITALIZED AND ITALICIZED SHALL BE UNDERSTOOD TO REFER TO SECTIONS
AND EXHIBITS, AS THE CASE MAY BE, OF THE ASSET PURCHASE AGREEMENT.
2.
EXHIBITS AND SCHEDULES.
THE FORM OF MANAGEMENT AGREEMENT, FORM
OF NOTE, SIDE LETTER AGREEMENT AND FORM OF SUBORDINATION AGREEMENT ATTACHED
HERETO AS EXHIBITS A, B, C AND D, SHALL BE ADDED TO THE ASSET PURCHASE AGREEMENT
AS EXHIBITS E, F, G AND H, RESPECTIVELY.
3.
AMENDMENTS TO CERTAIN SECTIONS OF THE ASSET PURCHASE AGREEMENT.
THE ASSET PURCHASE AGREEMENT SHALL BE AMENDED AS FOLLOWS, SUCH AMENDMENTS TO
TAKE EFFECT, UNLESS OTHERWISE SPECIFIED IN THIS AMENDMENT,
ON THE DATE HEREOF:
(A)
DEFINED