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EXHIBIT 10.12(b)
FIRST AMENDMENT
TO
AGREEMENT
This FIRST AMENDMENT TO AGREEMENT (this "Amendment") is made as of
February 11, 1997 by and among DTS Management, LLC, a Georgia limited liability
company formerly known as Columbia DBS Management, LLC ("Columbia"), Digital
Television Services of Vermont, LLC, a Georgia limited liability company
("Purchaser") and Northeast DBS Enterprises, L.P., a Vermont limited partnership
("Seller").
RECITALS
Columbia and Seller entered into an Agreement dated as of November 13,
1996 (as amended, the "Asset Purchase Agreement"). Capitalized terms used herein
which are not otherwise defined shall have the meanings set forth in the Asset
Purchase Agreement. Purchaser and Seller have determined that it is in their
mutual best interest to amend the Asset Purchase Agreement pursuant to Section
12 thereof.
TERMS OF AMENDMENT
Columbia, Purchaser and Seller agree as follows:
1. ASSIGNMENT. Columbia hereby assigns, transfers and coveys to
Purchaser all right, title and interest in and to the Asset Purchase Agreement,
and Purchaser hereby assumes and agrees to perform and discharge all liabilities
and obligations of Columbia under the Asset Purchase Agreement, including
without limitation, the obligation to pay to Seller the Purchase Price. Seller
hereby consents to the assignment of the Asset Purchase Agreement to Purchaser.
2. AMENDMENT TO SECTION 8. Section 8 shall be deleted in its entirety
and the following new Section 8 shall be inserted in lieu thereof:
"8. Xxxxxx Xxxxx and Xxxxxxx Xxxxx shall enter into noncompetition
agreements substantially in the form attached hereto as Schedule 8; provided,
however, that in the event Purchaser and Xxxxxx Xxxxx are unable to reach a
mutually agreeable arrangement with respect to the employment or consulting
relationship with Purchaser after the Closing, the territory with respect to
Xxxxx'x noncompetition agreement shall be limited to the territory covered by
the NRTC Agreements."
3. AMENDMENT TO SECTION 12. Section 12 shall be deleted in its entirety
and the following new Section 12 shall be inserted in lieu thereof:
"12. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
12.1. REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser to
enter into this Asset Purchase Agreement and to consummate the transactions
contemplated hereby, Seller hereby represents and warrants to Purchaser as
follows:
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(a) ORGANIZATION. Seller is a limited partnership duly
organized, validly existing and in good standing under the laws of the
State of Vermont, with all requisite power and authority to own and
operate the National Rural Telecommunications Cooperative's System No.
1005 for the exclusive distribution in certain areas in the State of
Vermont of DBS Services offered by DirecTv (the "Business") as it is
now conducted and to own the Assets in the places where the Business is
now conducted and where the Assets are now owned or operated.
(b) AUTHORITY.
(i) Seller has full power and authority to execute,
deliver and perform this Asset Purchase Agreement and all agreements
and transactions contemplated hereby. The execution, delivery and
performance of this Asset Purchase Agreement and all transactions
contemplated hereby have been duly authorized by Seller and, except for
the consent of the NRTC, DirecTv and the other Persons set forth on
Schedule 12.1(b) hereof, no other action or proceeding on the part of
any other party is necessary to authorize this Asset Purchase Agreement
or to consummate the transactions contemplated hereby. This Asset
Purchase Agreement has been duly and validly executed and delivered by
Seller and constitutes, and each of the other agreements to be executed
by Seller pursuant to the terms hereof will constitute upon execution
and delivery, a legal, valid and binding obligation of Seller
enforceable in accordance with its terms.
(ii) Except for the NRTC, DirecTv and the other
Persons set forth on Schedule 12.1(b) hereof, the execution, delivery
and performance of this Asset Purchase Agreement or any document
related hereto by Seller and the consummation by Seller of all of the
transactions contemplated hereby or thereby will not (with or without
the giving of notice or the lapse of time or both) (i) violate or
require any consent or approval under any applicable provision of any
judgement, order, writ, injunction, decree, rule, regulation or law;
(ii) require any consent under, conflict with, result in termination
of, accelerate the performance required by, result in a breach of,
constitute a default under or otherwise violate the terms of any
agreements, instruments or other obligations to which Seller is a party
or by which Seller or any of the Assets may be bound or affected; (iii)
require any consent or approval by, notice to or registration with any
governmental authority or any other Person; (iv) conflict with or
violate any provision of Seller's certificate of limited partnership;
or (v) result in the creation of a Lien upon any of the Assets
howsoever arising.
(c) TITLE TO THE ASSETS.
(i) Seller has good and marketable title to all of
the Assets, free and clear of all Liens except those Liens disclosed on
Schedule 12.1(c) hereof.
(ii) Immediately following the Closing, Purchaser
shall have sufficient title in and to the Assets to operate and conduct
the business of Seller in the same fashion as Seller was conducting the
business in the ordinary course prior to the Closing.
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(d) CONDITION OF FIXED ASSETS. Set forth on Schedule 12.1(d)
are all of the equipment and other tangible assets, including, without
limitation, any MTE terminals and demonstration units owned by Seller
and used or useable in connection with the Business (the "Fixed
Assets"). The Fixed Assets are in good operating condition, in a state
of good maintenance and repair, and are adequate and suitable for the
purposes which are presently being used. All appropriate repair and
maintenance of the Fixed Assets has been performed on a current basis
and in accordance with generally accepted industry standards. Except as
set forth on Schedule 12.1(d) attached hereto, none of the Fixed Assets
are in need of any repairs which are outside the ordinary course of
maintenance and repairs routinely performed by Seller in the past, and
no currently needed repairs with respect to the Fixed Assets are
reasonably likely to cost in excess of Five Thousand Dollars ($5,000),
singularly, or Twenty-Five Thousand Dollars ($25,000), in the
aggregate.
(e) NRTC MEMBERSHIP; DBS DISTRIBUTION RIGHTS.
(i) Attached hereto as Schedule 12.1(e) are true and
complete copies of each of the NRTC Agreements, together with all
amendments, schedules and exhibits thereto, and a true and complete
list of all other contracts, agreements, commitments and instruments
relating to the Business and to which Seller is a party or by which
Seller is bound (the "Other Agreements").
(ii) To the best of its knowledge, Seller has paid
all sums to NRTC or DirecTv, as appropriate, required under the NRTC
Agreements such that Seller is entitled to the marketing and sales
revenues as provided therein.
(iii) Seller is in full compliance in all material
respects with any and all membership, affiliation, licensing or other
requirements or arrangements as may have been established by NRTC or
DirecTv pursuant to the NRTC Agreements, or otherwise.
(iv) Seller is not in breach of the NRTC Agreements
or the Other Agreements, nor has Seller failed to perform any material
obligation under the NRTC Agreements or the Other Agreements. Seller
has not received notice of any such breach or non-performance at any
time of the NRTC Agreements or the Other Agreements. To the best of
Seller's knowledge, no other party to any of the NRTC Agreements or the
Other Agreements is in default thereunder or has failed to perform any
material obligation thereunder.
(f) INVENTORY. The inventory shall be usable in the ordinary
course of business and shall comply in all respects with industry
standards of quality and marketability. The inventory included on the
Closing Date Balance Sheet shall not include any items below standard
quality, obsolete or sub-prime. Such inventory shall consist solely of
(i) undamaged, original units in original, sealed cartons, and (ii)
reconditioned units in saleable condition; provided such reconditioned
units in the aggregate do not exceed more than Twelve Thousand Dollars
($12,000) (valued at
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such inventory's original cost). Seller owns all of the inventory free
and clear of any and all Liens and has full power and authority to
transfer the inventory to Purchaser.
(g) ACCOUNTS RECEIVABLE. The accounts receivable to be
included on the Closing Date Balance Sheet represent arms' length
transactions with subscribers made in the ordinary course of business
and none of such accounts receivable shall be subject to any
counterclaim or setoff.
(h) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth
in Schedule 12.1(h) hereof and other than changes or events reflected
on the interim financial statements delivered by Seller to Purchaser or
which have affected the DBS industry in general, since December 31,
1995 there has not been:
(i) any change in the position, financial or
otherwise, assets, liabilities, earnings, book value, Business,
operations or prospects of Seller which is materially adverse,
singularly or in the aggregate;
(ii) any obligation or liability incurred by Seller
(whether absolute, accrued, contingent or otherwise and whether due or
to become due) relating to the Business other than obligations or
liabilities incurred in the ordinary course of business and consistent
with past practices;
(iii) any termination or waiver of any rights of
Seller of material value to the Business or to Seller;
(iv) any damage, destruction or loss, whether or not
covered by insurance, adversely affecting the Business or the Assets;
(v) the adoption of any statute, rule, regulation or
order which adversely affects the Business or the Assets;
(vi) any sale, transfer or other disposition of any
of the Assets to any party, except for dispositions of surplus or used
equipment or other dispositions in the ordinary course of business; or
(vii) any agreement to do any of the foregoing.
(i) LICENSES AND PERMITS. Schedule 12.1(i) hereof is a list of
all federal, state, local and foreign permits, certificates, licenses,
approvals and other authorizations necessary in the conduct of the
Business. All such licenses and permits of Seller are in full force and
effect, and no violations are or have been recorded in respect thereof,
and no proceeding is pending or threatened to revoke or limit any
thereof. Seller and its conduct of the Business is in compliance with
all applicable laws, statutes, ordinances, rules, regulations and
orders of any federal, foreign, state or local government and any other
government department or agency, and is in compliance with judgment,
decision, decree or order of any court or governmental agency,
department or authority, except where the failure to so comply would
not have
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a material adverse effect on the financial condition, Business, assets,
results of operations or prospects of Seller.
(j) TAX MATTERS.
(i) Seller has timely filed all federal, state, local
and foreign tax returns and tax reports required to be filed with
respect to the Business with the appropriate governmental agency in all
jurisdictions in which such returns and reports are required to be
filed. All such returns and reports are true, correct and complete, and
all amounts shown as owing on them have been paid, including all
interest, penalties, deficiencies and assessments heretofore levied or
assessed against Seller. Seller has duly withheld, collected and timely
paid over, or holds for such payment, to the proper governmental
authorities all taxes required to be withheld or collected by it. There
is no agreement for extension of time of assessment or payment of any
taxes of Seller. No waiver of any statute of limitations has been
executed by Seller for any tax year which remains open or unsettled. To
the best knowledge, information and belief of Seller, there is no
examination or audit pending by the Internal Revenue Service or by any
state or local taxing authority with respect to the tax matters of
Seller. There is no liability for taxes or any tax deficiency or the
existence of any basis from which liability for taxes or tax
deficiency, including interest and penalties, might be asserted against
Seller for any period in excess of the applicable reserve for taxes, if
any, and Seller has no knowledge of any such liability or deficiency or
the existence of any basis therefor.
(ii) All federal, state, local and foreign income,
profits, franchise, sales, use, occupation, property, excise and other
taxes (including interest and penalties), if any, payable by Seller or
relating to or chargeable against the Assets or chargeable against
Seller's revenue or income have been fully paid or are not past due and
are fully disclosed and accrued on the books and records of Seller and
the proper amount of reserves exist for the payment thereof.
(k) DISCLOSURES. No representation or warranty made by Seller
in this Asset Purchase Agreement, and no statement made in any
Schedule, exhibit, certificate or other writing delivered or to be
delivered pursuant hereto contains or will contain any untrue statement
of a material fact, or omits or will omit any statement of a material
fact necessary to make the statements contained herein or therein not
misleading.
(l) LITIGATION. Except as set forth on Schedule 12.1(l), there
are no actions, suits, proceedings, orders, investigations or claims
pending or, to the best of Seller's knowledge, any threats against or
affecting Seller, the Assets or its Business, at law or in equity,
before any court, arbitration panel, tribunal or governmental
department, commission, board, bureau, agency or instrumentality.
12.2. REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce Seller to
enter into this Asset Purchase Agreement and to consummate the transactions
contemplated hereby, Purchaser hereby represents and warrants to Seller as
follows:
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(a) ORGANIZATION. Purchaser is a limited partnership duly
organized, validly existing and in good standing under the laws of the
State of Georgia, with all requisite power to own and operate its
business as it is now conducted.
(b) AUTHORITY.
(i) Purchaser has full power and authority to
execute, deliver, and perform this Asset Purchase Agreement. The
execution, delivery and performance of this Asset Purchase Agreement
and all transactions contemplated hereby have been duly authorized by
Purchaser and no other action or proceeding on the part of any other
party is necessary to authorize this Asset Purchase Agreement or to
consummate the transactions contemplated hereby. This Asset Purchase
Agreement has been duly and validly executed and delivered by
Purchaser, and constitutes, and each of the other agreements to be
executed pursuant to the terms hereof upon execution and delivery will
constitute, a legal, valid and binding obligation of Purchaser,
enforceable in accordance with its terms.
(ii) Except for the NRTC, DirecTv and the other
Persons set forth on Schedule 12.2(b) attached hereto, the execution,
delivery and performance of this Asset Purchase Agreement or any other
document related hereto by Purchaser and the consummation by Purchaser
of all of the transactions contemplated hereby or thereby will not
(with or without the giving of notice or the lapse of time or both) (i)
violate or require any consent or approval under any applicable
provision of any judgment, order, writ, injunction, decree, rule,
regulation or law; (ii) require any consent under, conflict with,
result in the termination of, accelerate the performance required by,
result in the breach of, constitute a default under or otherwise
violate the terms of any agreements, instruments or other obligations
to which Purchaser is a party; (iii) require any consent or approval
by, notice to or registration with any governmental authority or any
other Person; or (iv) violate any provision of Purchaser's certificate
of limited partnership or limited partnership agreement.
(c) DISCLOSURES. No representation or warranty made by
Purchaser in this Asset Purchase Agreement, and no statement made in
any Schedule exhibit, certificate or other writing delivered or to be
delivered pursuant hereto contains or will contain any untrue statement
of a material fact, or omits or will omit any statement of a material
fact necessary to make the statements contained herein or therein not
misleading.
12.3. NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as
otherwise specifically provided herein, each and every representation and
warranty contained in this Asset Purchase Agreement shall expire with, and be
terminated and extinguished by the Closing or the termination of this Asset
Purchase Agreement pursuant to Section 14 hereof, and thereafter, except and to
the extent otherwise specifically provided herein, neither Purchaser, Seller or
any partner or representative thereof shall be under any liability whatsoever
with respect to any such representation and warranty. The representations and
warranties hereunder shall not be affected or diminished by any investigation at
any time by or on behalf of the party for whose benefit such representations and
warranties were made.
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All statements contained herein or in any Schedule, exhibit, certificate, list
or other document delivered pursuant hereto shall be deemed to be
representations and warranties.
12.4. INDEMNIFICATION OF PURCHASER. Subject to the limitations
hereinafter set forth, Seller and its representatives, successors, heirs and
assigns shall indemnify, reimburse and hold Purchaser and each of its partners,
subsidiaries, affiliates, successors, assigns and agents harmless from, against,
for and in respect of any and all damages, losses, settlement payments,
obligations, liabilities, claims, demands, actions or causes of action,
judgments, encumbrances, costs and expenses (including reasonable attorneys'
fees) (collectively, the "Indemnifiable Damages") relating to, resulting from or
arising out of (i) any misrepresentation, untruth, inaccuracy, breach or
nonfulfillment of any representation, warranty, agreement or covenant of Seller
contained in or made in connection with this Asset Purchase Agreement or in any
Schedule, exhibit, certificate or other document delivered pursuant hereto, (ii)
the failure of Seller to pay, perform or discharge promptly when due any of its
obligations, liabilities and debts except as provided under this Asset Purchase
Agreement, (iii) any liability or obligation relating to the operation of the
Business prior to the Closing Date which is not specifically assumed by
Purchaser pursuant to this Asset Purchase Agreement, (iv) any breach or default
prior to the Closing Date by Seller under any of the NRTC Agreements or the
Other Agreements, (v) any state or local sales, use, excise, personal property
or similar tax liability (including penalties and interest) of Seller, and (vi)
any other liabilities, obligations or claims, whether absolute or contingent,
known or unknown, matured or unmatured and not expressly assumed by Purchaser
hereunder.
12.5. INDEMNIFICATION OF SELLER. Subject the limitations hereinafter
set forth, Purchaser shall indemnify, reimburse and hold Seller and its
shareholders, subsidiaries, affiliates, officers and directors harmless from,
against, for and in respect of any and all Indemnifiable Damages relating to,
resulting from or arising out of (i) any misrepresentation, untruth, inaccuracy,
breach or nonfulfillment of any representation, warranty, agreement or covenant
of Purchaser contained in or made in connection with this Asset Purchase
Agreement or in any Schedule, exhibit, certificate or other document delivered
pursuant hereto, (ii) the failure of Purchaser to pay, perform or discharge
promptly when due the Balance Sheet Liabilities, (iii) the assertion against
Seller of any liability or obligation relating to Purchaser's operation of the
Business after the Closing Date, and (iv) any breach or default after the
Closing Date by Purchaser under the NRTC Agreements and the Other Agreements.
12.6. EXPIRATION OF INDEMNIFICATION OBLIGATIONS. The indemnification
obligations of Seller under Section 12.4 and Purchaser under Section 12.5 above
shall expire and terminate on the first (1st) anniversary of the Closing (the
"Survival Termination Date"), unless, prior to such termination, the party
entitled to indemnification hereunder (the "Indemnified Party") shall have
provided written notice to the other party hereto obligated to provide
indemnification pursuant to Sections 12.4 or 12.5 herein (the "Indemnifying
Party") of an assertion by the Indemnified Party of a right to indemnification
under Sections 12.4 or 12.5 (the "Indemnification Claim").
12.7. CEILING OF INDEMNIFICATION. Seller shall not have any liability
under Section 12.4 hereof for Indemnifiable Damages attributable to Seller in
excess of Five Million Dollars ($5,000,000).
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12.8. RIGHT TO CONTEST.
(a) If the Indemnified Party receives notice or has knowledge
of any claim for which it believes the Indemnifying Party is obligated
to provide indemnification, the Indemnified Party shall provide the
Indemnifying Party with an Indemnification Claim within twenty (20)
days of its receipt of same, but in no event later than ten (10) days
prior to the date a responsive pleading with respect to such
Indemnification Claim is due. The Indemnification Claim shall set forth
a brief description of the facts giving rise to such a claim and the
amount (or reasonable estimate) of the Indemnifiable Damages suffered
or which may be suffered by the Indemnified Party. The Indemnified
Party shall, at the expense of the Indemnifying Party, provide all
information regarding the contest or defense of the claim and cooperate
fully with the Indemnifying Party in the conduct of any such contest or
defense. Before being required to make any payment pursuant to Sections
12.4 or 12.5 herein, the Indemnifying Party may, at its own expense,
elect to undertake and control the defense of, and take all necessary
steps properly to contest any claim in respect thereof involving third
parties or to prosecute such claim to conclusion or settlement
satisfactory to the Indemnified Party; provided, however, the
Indemnifying Party shall have no obligation or liability under Sections
12.4 or 12.5 hereof for Indemnifiable Damages with respect to any
Indemnification Claim in excess of any written settlement offer with
respect to such Indemnification Claim which the Indemnified Party did
not accept. If the Indemnifying Party makes the foregoing election,
then the Indemnified Party shall have the right to participate, at its
own expense, in all proceedings but shall not admit any liability,
settle, compromise, pay or discharge the claim without the prior
written consent of the Indemnifying Party. If the Indemnifying Party
does not make such election, it shall be obligated to pay the costs of
defending or prosecuting such claim and shall be bound by whatever
result is obtained by the Indemnified Party respecting such claim.
(b) Except as otherwise specifically provided herein, the
remedies provided in Section 12.4 and 12.5 shall be cumulative and
shall not preclude assertion by any party of any other rights or the
seeking of any other remedies (including specific performance of this
Asset Purchase Agreement) against any other party hereto.
12.9. DISTRIBUTION RESERVE. Seller acknowledges and agrees that
distributions to its partners which would render Seller unable to satisfy
Indemnification Claims hereunder will constitute wrongful distributions pursuant
to Section 1407 of the Vermont Limited Partnership Act. Accordingly, Seller
agrees to (i) make no distributions of the Purchase Price unless and until
Seller receives recontribution agreements from its partners in an aggregate
amount equal to at least $5,000,000 (inclusive of the $1,000,000 held pursuant
to the Escrow Agreement) enforceable by Purchaser to the extent Purchaser is
entitled to indemnification under Section 12.4 hereof, and (ii) deposit into
escrow $1,000,000 to be held through the Survival Termination Date by Union Bank
of California, N.A.(the "Escrow Agent") pursuant to the terms and provisions of
the Escrow Agreement attached hereto as Schedule 12.9.
12.10. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given, upon
personal delivery, upon
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receipted delivery by overnight courier, charges prepaid or charged to the
sender's account if delivery is confirmed by the delivery service, upon receipt
of a confirmed transmission if by facsimile transmission, or three (3) days
after mailing if mailed by certified or registered mail, postage prepaid, return
receipt requested, as follows (or at such other address for a party as shall be
specified by like notice; provided that notice of a change of address shall be
effective only upon receipt thereof):
To Purchaser: Digital Television Services of
Vermont, LP
Building C-200
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
with a copy to: C. Xxxx Xxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P.
NationsBank Corporate Center, Suite 3350
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
To Seller: Northeast DBS Enterprises, L.P.
X.X. Xxx 00
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
with a copy to: Xxxx Xxxxxxxxxx, Esq.
Xxxxx Xxxxx & Xxxxx
000 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000"
4. AMENDMENT TO SECTION 13(b). Section 13(b) shall be deleted in its
entirety and the following new Section 13(b) shall be inserted in lieu thereof:
"(b) the parties shall have received the approval of NRTC and DirecTv
(and, if required, Xxxx Xxxxx Xxxxxx approval),"
5. MODIFICATION. Except as modified hereby, the terms and conditions of
the Asset Purchase Agreement shall remain in full force and effect.
6. GOVERNING LAW. This Amendment shall be governed by and interpreted,
construed and enforced in accordance with the laws of the State of Delaware,
without regard to the choice of law provisions thereof.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
COLUMBIA:
DTS Management, LLC
By:
---------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Its: President and Manager
PURCHASER:
Digital Television Services of Vermont, LLC
By: DTS Management, LLC
Its: Manager
By:
---------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Its: President and Manager
SELLER:
Northeast DBS Enterprises, L.P.
By:
---------------------------------
Its: General Partner
---------------------------------
Xxxxxxx X. Xxxxx, solely with respect to
Section 8 hereof
---------------------------------
Xxxxxx Xxxxx, solely with respect to
Section 8 hereof
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SCHEDULE 12.1(l)
LITIGATION
1. On 1/28/97, Mountain Cable Company d/b/a Adelphia Communications
commenced an action in Rutland Superior Court against Seller, alleging
that Seller improperly used and interfered with Adelphia's cable system
equipment in providing service to 2 multi- unit condominium projects in
Sherburne, Vermont, formerly served by Adelphia. The action seeks
injunctive relief, preventing Seller from using or interfering with
Adelphia's cable system equipment, and also seeks monetary damages for
damage caused to Adelphia's cable equipment and an interruption of
service to Adelphia's customers, during Seller's installation. Seller
has consented to a preliminary injunction, dated January 31, 1997 by
which Seller agrees not to use or interfere with Adelphia's cable
system equipment. Seller denies that it has caused damage to any of
Adelphia's cable system equipment or has caused any material
interruption of service to Adelphia's customers. Seller will vigorously
defend any claim for damages by Adelphia.
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