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EXHIBIT 2.5
AMENDMENT NUMBER TWO
TO THE
PURCHASE AGREEMENT
Amendment Number Two (the "Amendment") to the Purchase
Agreement, dated as of August 13, 1997, as amended by Amendment Number One to
the Purchase Agreement (as so amended, the "Agreement"), among OpTel, Inc.,
Phonoscope, Ltd., Phonoscope Management L.C., Xxx Xxxx, Xxxxx Xxxx and the Xxx
Xxxx Family Trust. Capitalized terms used without definition herein shall have
the meanings provided in the Agreement.
1. Section 6.16 of the Agreement is hereby amended by
deleting the last four sentences of that section.
2. Article 9 of the Agreement is hereby amended by the
addition of the following in clause (vi)(b) of the definition of Purchased
Assets:
(such fibers to include, but not be limited to, fibers used in
the Business located in sheathes and conduit owned by the
Sellers on the Closing Date running under, along or over
highways)
3. Section 1(b) of Exhibit G to the Agreement is hereby
amended by the insertion of the following after the term "Category III Segment"
in the first sentence thereof:
(including, but not limited to, fibers used in the Business
located in sheathes and conduit owned by the Sellers on the
Closing Date running under, along or over highways)
4. Section 2(b) of Exhibit G to the Agreement is hereby
amended by the addition of the following at the end of such section:
Notwithstanding anything in this Agreement to the contrary, until the
close of business on the date that the Temporary Head End meets the
specifications set forth on Exhibit II (the "Cut Over Time"), the
Buyer shall provide Phonoscope with signal feed from the head end
purchased from Phonoscope on the date hereof. Prior to the Cut Over
Time, the Buyer and Phonoscope shall cooperate in good faith to test
the Temporary Head End and to assure an orderly cut-over of signal to
the Temporary Head End on or prior to the Cut Over Time. Phonoscope
shall pay all programming fees associated with such signal feed and
shall pay and discharge all Losses and Expenses associated with
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Phonoscope's use of such signal feed. Phonoscope shall be
responsible, in all respects, for all transport and delivery of signal
from the head end.
5. Section 1.3(d) of the Agreement is hereby amended by
deleting the words "At the Closing" in the beginning of the second sentence
thereof and replacing them with "On or prior to the third Business Day
following the Closing".
6. Section 1.3(a) of the Agreement is hereby amended by
adding the following to the end of the third sentence thereof:
provided, however, that the parties hereto agree that the amount of
ARs and amounts collected or billed prior to the Closing in respect of
services to be performed after the Closing (the "DR's") on the Closing
Statement shall represent the Seller's best good faith estimate
thereof and that notwithstanding the acceptance thereof by Buyer for
use at the Closing, Buyer, pursuant to Section 1.4, may challenge such
amount. From and after the Closing, the Sellers shall deliver to
Buyer, as promptly as practicable after request therefor by Buyer, all
back-up information and documentation reasonably requested by Buyer
for Buyer to evaluate the amount of the ARs and DRs set forth on the
Closing Statement.
7. On or prior to 90 days after the Closing Date, the
Sellers, at their sole cost, expense and risk, shall cause the Greenspoint hub
to be moved from its location on the date hereof to the utility public right of
way that is as close as practicable to such location. The Sellers shall
coordinate with Buyer and use their best efforts to avoid or limit any
interruptions in Buyer's services and use of such hub during the movement of
such hub and shall assure that such hub, in its new location, will provide
services to Buyer at least to the same extent and quality (and at no greater
cost to Buyer) as the Greenspoint hub is providing on the date hereof.
Following the movement of the Greenspoint hub to its new location, the Sellers
shall take all action necessary to provide Buyer with access to such location
and hub at such times and in such manner as Buyer requests in order to operate
and maintain its business following the Closing.
8. From and after the Closing until the first anniversary
of the Closing Date, Buyer shall act as the billing and installation agent for
Phonoscope, acting under the Phonoscope name, for the provision of high speed
internet service to Phonoscope's internet customers existing on the date
hereof, in the manner provided on the date hereof (the "Phonoscope Internet
Business"). Phonoscope shall not (i) add any customers (other than as may be
required under the terms of any right of
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entry agreement assigned to Buyer on the date hereof) to the Phonoscope Internet
Business and (ii) actively market the Phonoscope Internet Business. Buyer shall
xxxx and collect all hook-up/installation and other access fees relating to the
Phonoscope Internet Business and remit all of such fees (less $25.00 of each
hook-up/installation fee) to Phonoscope. All modems shall be provided by
Phonoscope at its sole cost and expense. All services other than billing and
installation relating to the Phonoscope Internet Business shall be performed by
Phonoscope. Phonoscope shall maintain customer service for the Phonoscope
Internet Business to at least the same standards as provided on the date hereof
at its sole cost and expense. Without limiting anything in the Agreement,
Phonoscope shall indemnify, defend and hold harmless Buyer, its affiliates, and
their respective directors, officers, employees and advisors from and against
all Losses and Expenses arising from or relating to Buyer and its affiliates
relating to the Phonoscope Internet Business. At any time prior to the first
anniversary of the Closing Date, at Buyer's request, Phonoscope shall transfer
to Buyer, for no additional consideration, all of its right, title and interest
in and to the Phonoscope Internet Business.
9. Without limiting any rights or obligations under the
Agreement, from and after the Closing, the Sellers shall take all action
necessary with the cooperation and assistance of Buyer to cause, as promptly as
practicable after the Closing, (a) the termination of the existing cable
television franchises, without liability to Buyer or any of the Companies, held
by the Sellers or any of the Companies from each of the municipalities of Bunker
Hill Village, Xxxxxx Lake Village, Hunter's Creek Village and Spring Valley, (b)
the grant by the municipalities of Bunker Hill Village and Hunter's Creek
Village of rights of passage for Buyer or its designee permitting the continued
placement of cable, fiber and other transmission facilities (and the
transmission of signal) through such municipalities to customers outside of such
municipalities on terms and conditions reasonably satisfactory to Buyer, and (c)
Buyer to receive all required and necessary consents of railroads for Buyer and
the Companies to continue the placement of cable (and the transmission of
signal) over the Conveyed Network. The Sellers shall hold Buyer and the
Companies harmless from and against all Losses incurred by any of them arising
from or relating to the failure to have caused the matters described in clauses
(a), (b) and (c) to have occurred at the Closing. Without limitation, Buyer's
waiver of any condition to the Closing under the Agreement shall not constitute
a waiver by Buyer of any other rights that it may have under the Agreement.
10. This Amendment shall not constitute a waiver or
amendment of any other provision of the Agreement not referred to herein.
Except as amended hereby, the provisions of the
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Agreement are and shall remain in full force and effect.
11. This Amendment may be executed in counterparts, and
all such counterparts taken together shall be deemed to constitute one and the
same instrument.
12. This Amendment shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Texas.
[Intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed on this 27th day of October, 1997.
OPTEL, INC.
By:
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Name:
Title:
PHONOSCOPE, LTD.
By:
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Name:
Title:
PHONOSCOPE MANAGEMENT L.C.
By:
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Name:
Title:
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Xxx Xxxx
XXX XXXX FAMILY TRUST
By:
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Xxx Xxxx
Sole Trustee
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Xxxxx Xxxx
COMMUNICATIONS EQUITY ASSOCIATES
By:
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Name:
Title:
