EXHIBIT 10.9
FIRST AMENDMENT TO
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ASSET PURCHASE AGREEMENT
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THIS FIRST AMENDMENT ("Amendment") is made and entered into this 10th day
of February, 1997 by and between MERIDIAN SALES AND SERVICES COMPANY, a
California corporation ("Meridian") and AMERICAN TOWER SYSTEMS, INC., a Delaware
corporation ("ATS"), with reference to the following facts:
Meridian and ATS are parties to a certain Asset Purchase Agreement dated
February 5, 1997 (the "Agreement") relating to the sale by Meridian to ATS of
substantially all the assets of Meridian. The parties desire to amend the
Agreement in the manner set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by each party hereto, the parties hereby
agree as follows:
1. Section 8.2(e) of the Agreement is hereby amended by replacing the
final period (after the words "Funds so available") with a semicolon and adding
the following:
"and (iii) all Loss and Expense incurred or suffered by any of them by
reason of, or arising out of, ATS's failure, after the Closing Date, to
continue the employment of any person who was employed by Meridian (other
than X.X. Xxxxxxxx and Xxxxxxx Xxxxxxxx) as of the Closing Date, for
substantially the same level of compensation as is set forth with respect
to such employee on Schedule 3.15 of the Meridian Disclosure Schedule and
with such additional benefits as are no less favorable than those
applicable to ATS's similarly situated employees. For purposes of this
paragraph, ATS shall not be deemed to have failed to continue any such
employment if the employee (A) is unwilling to accept employment on such
terms or (B) is terminated for gross negligence, or for wilful misconduct
in the conduct of ATS's affairs, or for failure or refusal to perform or
observe such employee's duties and obligations following reasonable notice
and an opportunity to cure, or because of disability (provided such
termination is in compliance with Applicable Law and ATS's own employment
policies), theft of ATS property or conviction or pleading nolo contendere
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to a felony or other serious crime."
2. The last sentence of the first paragraph of Section 3.5(a) of the
Agreement is hereby amended to read as follows: "Except as otherwise set forth
in Section 3.5(a) of the Meridian Disclosure Schedule: (i) all of such Leases
are, to Meridian's knowledge, valid and subsisting and in full force and effect
and (ii) neither Meridian nor, to Meridian's knowledge, any other party thereto,
is in Material default in the performance, observance or fulfillment of any
obligation, covenant or condition contained in any such Lease."
3. Section 3.6 of the Agreement is hereby amended by adding the following
sentence thereto: "All warranties and representations set forth in this Section
3.6 are subject to such exceptions as are set forth in Section 3.6 of the
Meridian Disclosure Schedule, to the extent such warranties or representations
are not already expressly so qualified herein."
4. Section 3.7(b) of the Agreement is hereby amended by adding the
following sentence thereto: "The warranties and representations set forth in
this Section 3.7(b) are subject to such exceptions as are set forth in Section
3.7(b) of the Meridian Disclosure Schedule, to the extent such warranties or
representations are not already expressly so qualified herein."
5. Section 3.16 of the Agreement is hereby amended by adding the
following sentence thereto: "The warranties and representations set forth in
this Section 3.16 are subject to such exceptions as are set forth in Section
3.16 of the Meridian Disclosure Schedule, to the extent such warranties or
representations are not already expressly so qualified herein."
6. Except to the extent set forth to the contrary in this Amendment, all
provisions of the Agreement remain in full force and effect.
7. This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but such counterparts together constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the day and year first above written.
"Meridian" "ATS"
MERIDIAN SALES AND SERVICES AMERICAN TOWER SYSTEMS, INC.
COMPANY
By: By:
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X.X. Xxxxxxxx, President
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