1
EXHIBIT 10.4(b)
FIRST AMENDMENT OF ASSET PURCHASE AGREEMENT
This First Amendment of Asset Purchase Agreement (this "Amendment") is
made as of April 1, 1996, between Columbia San Xxxx Obispo DBS, L.P., a
Delaware limited partnership ("Buyer") and Pacific Coast DBS, Inc., a
California corporation ("Seller").
RECITALS
A. Buyer and Seller entered into an Asset Purchase Agreement on March
19, 1996, at San Luis Obispo, California ("the Original Agreement"). A copy of
the Original Agreement is attached to this Amendment as Exhibit "A".
B. Since the date of the Original Agreement, the parties have
confirmed that the reference to the Buyer under the Original Agreement as
Columbia DBS San Xxxx Obispo, L.P. was incorrect, in that the actual name of
Buyer is Columbia San Xxxx Obispo DBS, L.P.
C. Since the date of the Original Agreement, the parties have further
acknowledged that the expenses and prepayments in connection with the assets to
be prorated between Buyer and Seller should be prorated as of 12:01 a.m. on
April 1, 1996, which is the Closing Date for the transaction, so that Paragraph
2.2(b) of the Agreement will require modification.
NOW THEREFORE, in consideration of the mutual obligations in this
Amendment, and for other good consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement agree as follows:
1. All reference to Columbia DBS San Xxxx Obispo, L.P., as Buyer in
the Original Agreement and any exhibits or schedules thereto shall be amended
to read Columbia San Xxxx Obispo DBS, L.P.
2. Paragraph 2.2(b) is hereby amended to read as follows:
"(b) Pro Rations. All expenses and prepayments in connection
with the assets shall be prorated among Buyer and Seller as of 12:01
a.m. on the Closing Date, and the net amount thereof shall be paid to
Seller or Buyer, as appropriate. Such prorations shall include, without
limitation, all Customer programming prepayments, rental payments,
business and license fees (but only for Licenses transferred hereunder)
and utility expenses. Seller shall be responsible for all expenses
arising out of contracts, agreements and commitments of the Business
(other than the NRTC/Member Agreement, DirecTv Agreement and the Other
Assumed Contracts, performance of which shall be prorated pursuant to
Section 2.1 hereof) for all periods prior to the Closing Date. Buyer
shall in no event be responsible for any amounts associated with the
Excluded Assets. Expenses, costs and liabilities incurred shall be
allocated to the time of occurrence of such programs and announcements
without regard to the date of payment therefor. All prorations shall,
to the extent feasible, be determined and paid on the Closing Date,
with a final settlement and payment thereof to be made as part of the
Final Consideration Adjustment
2
pursuant to Section 2.4. If any dispute arises under this Agreement
regarding amounts determined in accordance with this Section, it shall
be referred to an Independent Accountant. The determination made by the
Independent Accountant shall be conclusive and binding on each party
and the fees of the Independent Accountant shall be divided equally
between Buyer and Seller."
3. This Amendment shall be effective as of April 1, 1996, subject to
each party's full and complete compliance with the conditions of Closing
contained in the Original Agreement, and the acquisition documents.
4. All provisions of the Original Agreement, except as modified by
this Amendment, shall remain in full force and effect and are reaffirmed.
IN WITNESS WHEREOF, Seller and Buyer have caused this First Amendment
of Asset Purchase Agreement to be executed by their respective duly authorized
officers and/or general partners as of the date first above written.
SELLER: BUYER:
PACIFIC COAST DBS, INC. COLUMBIA SAN XXXX OBISPO DBS, L.P.
By: /s/ By: COLUMBIA SAN XXXX OBISPO DBS, L.P.
------------------------- Its: General Partner
Name:
-------------------------
Title: By: /s/
------------------------- -----------------------------
Name:
-----------------------------
Title:
-----------------------------
2
