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EXHIBIT 10.9(c)
SECOND AMENDMENT
TO
ASSET PURCHASE AGREEMENT
This SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT (this
"Amendment") is made as of November 25, 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, as amended as of November 4, 1996 (as amended, 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 4.2. Section 4.2 shall be deleted in its
entirety and the following new Section 4.2 shall be inserted in lieu thereof:
"4.2. PAYMENT OF PURCHASE PRICE. On the Closing Date, Purchaser shall
pay the Purchase Price to Sellers as follows:
(a) The sum of One Million Three Hundred Forty-Five Thousand
Dollars ($1,345,000), subject to adjustment as provided for in Section 4.3(a)
hereof, by certified or cashier's check, or by wire transfer of immediately
available funds to an account or accounts designed in writing by Sellers.
(b) The sum of Seven Million Nine Hundred Fifty-Five Thousand
Dollars ($7,955,000) by the delivery of a Promissory Note substantially in the
form attached hereto as Schedule 4.2(c) (the "Note"), less any adjustments and
reductions as provided in Section 4.3 herein. The Note will be secured by a
letter of credit pursuant to the Security Agreement substantially in the form
attached hereto as Schedule 4.2(d) (the "Security Agreement")."
2. AMENDMENT TO SECTION 9.6. Section 9.6 shall be deleted in its
entirety and the following new Section 9.6 shall be inserted in lieu thereof:
"9.6. PURCHASER'S CLOSING DELIVERIES. Purchaser shall have delivered to
Sellers the following at Closing:
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(a) the Closing Payment;
(b) the Note and the Security Agreement duly executed by
Purchaser;
(c) the letter of credit contemplated by the Security
Agreement;
(d) a certified copy of Resolutions of the general partner of
Purchaser authorizing the execution, delivery and performance of this Agreement;
(e) a certificate signed by Purchaser's general partner, dated
the Closing Date, to the effect that the conditions set forth in this Article IX
have been satisfied;
(f) an opinion of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P.,
counsel to Purchaser, in form and substance reasonably acceptable to Sellers;
(g) a certificate signed by Purchaser's general partner, dated
the Closing Date, regarding the transfer of each of the Seller's accounts at
Huntington Bank;
(h) the Management Agreement executed by Purchaser; and
(i) such other documents and instruments as may be reasonably
requested and satisfactory to Sellers and its counsel in connection with
Purchaser's satisfaction of each of its obligations hereunder."
3. AMENDMENT OF SCHEDULE 4.2(c). Schedule 4.2(c) shall be deleted in
its entirety and the Schedule 4.2(c) attached hereto shall be inserted in lieu
thereof.
4. AMENDMENT OF SCHEDULE 4.2(d). Schedule 4.2(d) shall be deleted in
its entirety and the Schedule 4.2(d) attached hereto shall be inserted in lieu
thereof.
5. MODIFICATION. Except as modified hereby, the terms and conditions of
the Agreement shall remain in full force and effect.
6. 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.
7. 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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