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EXHIBIT 10.9(b)
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") is
made as of November 4, 1996 by and among Digital Television Services of South
Carolina I, LP, a Georgia limited partnership ("Purchaser"), Pee Xxx Xxxxxxxxxx,
Inc., a South Carolina corporation ("Electricom") and Pee Dee Electric
Cooperative, Inc., a South Carolina cooperative association ("Pee Dee") (Pee Dee
and Electricom are hereinafter collectively referred to as "Sellers").
RECITALS
Purchaser and Sellers entered into an Asset Purchase Agreement dated as
of October 5, 1996 (the "Agreement"). Capitalized terms used herein which are
not otherwise defined shall have the meaning set forth in the Agreement.
Purchaser and Sellers have determined that it is in their mutual best interest
to amend the Agreement in accordance with Section 11.8 thereof.
TERMS OF AMENDMENT
Purchaser and Sellers agree as follows:
1. AMENDMENT TO SECTION 4.3(a). Section 4.3(a) shall be deleted in its
entirety and the following new Section 4.3(a) shall be inserted in lieu thereof:
"(a) The Closing Payment shall be (i) increased by (a) the parties'
good faith estimate of the Current Assets of Sellers, (b) $233.75 for each new
Subscriber acquired by Sellers during the period from November 1, 1996 through
the Closing Date and (c) $51,150 in connection with the obligations of Sellers
to NRTC pursuant to the 1995 Memorandum and (ii) decreased by the parties' good
faith estimate of the Current Liabilities of Sellers as of the Closing Date (the
"Closing Adjustment"), which adjustment shall be subject to final adjustment as
provided for in paragraph (c) below. The Closing Adjustment shall not reflect
any deduction for the Bad Debt Reserve, as defined below."
2. AMENDMENT TO SECTION 7.4. Section 7.4 shall be deleted in its
entirety and the following new Section 7.4 shall be inserted in lieu thereof:
"7.4. CONSENT OF NRTC, DIRECTV AND OTHERS. Sellers and Purchaser shall
join in and deliver the requests for the consent of the NRTC and DirecTv to the
transfer of the NRTC Agreements, and such other requests for consent that
Purchaser reasonably determines may be necessary or appropriate to consummate
the transactions contemplated hereby, and they will each diligently take all
steps necessary or desirable to obtain such consents. The failure of either of
the parties to timely file or diligently seek the consents, or to cooperate
fully with the other party with respect thereto, shall be deemed a material
breach of this Agreement."
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3. AMENDMENT TO SECTION 8.7. Section 8.7 shall be deleted in its
entirety and the following new Section 8.7 shall be inserted in lieu thereof:
"8.7. SETTLEMENT OF 1995 MEMORANDUM DISPUTE. All disputes between
Sellers and NRTC with respect to the 1995 Memorandum shall have been resolved to
the reasonable satisfaction of Purchaser."
4. AMENDMENT TO SECTION 11.13.
(i) Section 11.13(a) shall be deleted in its entirety and the following
new Section 11.13(a) shall be inserted in lieu thereof:
"(a) Notwithstanding any other provision herein contained to the
contrary, this Agreement may be terminated at any time prior to the Closing Date
by (i) the mutual written consent of Sellers, (ii) either party upon written
notice to the other party if the Closing has not occurred on or before the
Termination Date, (iii) Sellers if the covenants and conditions set forth in
Articles VII and IX required to be complied with or performed by Purchaser have
not been complied with or performed by Purchaser and such noncompliance and
nonperformance shall not have been cured or eliminated (or by its nature cannot
be cured or eliminated) by Purchaser on or before the sixtieth (60th) day
following written notice thereof from Sellers; provided that Sellers have not
defaulted in any material respect with respect to any of its obligations
hereunder, or (iv) Purchaser if the covenants and conditions set forth in
Articles VII and VIII required to be complied with and performed by Sellers have
not been complied with or performed by Sellers and such noncompliance and
nonperformance shall not have been cured or eliminated (or by its nature cannot
be cured or eliminated) by Sellers on or before the sixtieth (60th) day
following written notice thereof from Purchaser; provided that Purchaser shall
not have defaulted in any material respect with respect to any of its
obligations hereunder."
(ii) Section 11.13(e) shall be deleted in its entirety.
5. AMENDMENT OF SCHEDULE 4.2(e). Schedule 4.2(e) shall be deleted in
its entirety and the Schedule 4.2(e) attached hereto shall be inserted in lieu
thereof.
6. MODIFICATION. Except as modified hereby, the terms and conditions of
the Agreement shall remain in full force and effect.
7. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of South Carolina, without regard to the
choice of law provisions thereof.
8. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one in the same Amendment.
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IN WITNESS WHEREOF, Purchaser and Sellers have executed this Amendment
as of this date first set forth above.
PURCHASER:
Digital Television Services of South Carolina I, LP
By: Columbia DBS Management, LLC
Its: General Partner
By:
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Xxxxxxx X. Xxxxxxxx, Xx., President
and Manager
SELLERS:
ELECTRICOM:
Pee Xxx Xxxxxxxxxx, Inc.
By:
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Xxxxxx X. Xxxxxxxx, Xx., President
PEE DEE:
Pee Dee Electric Cooperative, Inc.
By:
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Xxxxxx X. Xxxxxxxx, Xx., Executive Vice
President and General Manager
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