1
EXHIBIT 10.6
FIRST AMENDMENT
TO
ASSET PURCHASE AND SALE AGREEMENT
This First Amendment ("Amendment") is made as of December 31, 1997, and is
by and among NORTHLAND CABLE TELEVISION, INC., a Washington corporation ("NCTV")
NORTHLAND CABLE PROPERTIES SIX LIMITED PARTNERSHIP, a Washington limited
partnership ("NCP-Six"), INTERMEDIA PARTNERS OF CAROLINA, L.P., a California
limited partnership, and ROBIN CABLE SYSTEMS, L.P., a California limited
partnership (collectively, "Sellers").
RECITALS
A. NCTV and Sellers entered into that certain Asset Purchase and Sale
Agreement dated as of August 27, 1997 (the "Agreement"), pursuant to NCTV and
its permitted assigns desire to purchase, and Sellers desire to sell and convey,
substantially all of the assets of Sellers used or useful in connection with
certain cable television systems, all as more particularly described in the
Agreement.
B. Pursuant to Section 12.2 of the Agreement, NCTV assigned to NCP-Six
in accordance with that certain Assignment and Assumption of Asset Purchase and
Sale Agreement dated as of October 27, 1997 all of its rights pursuant to the
Agreement relating to the cable systems serving (i) City of Bennettsville, the
City of McColl, the Town of Clio, the Town of Tarum, and nearby unincorporated
areas of Marlboro County; (ii) the City of Barnwell, the Town of Blackville,
the Town of Elko, the Town of Williston, the Town of Snelling and nearby
unincorporated areas of Barnwell County; (iii) the City of Bamberg, the City of
Denmark, and nearby unincorporated areas of Bamberg County; and (iv) the Town
of Allendale, the Town of Fairfax, and nearby unincorporated areas of Allendale
County (collectively, the "Bennettsville/Barnwell/Bamberg/Allendale Area
Systems"), all in the State of South Carolina.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS
For the purposes of this Amendment, capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the
Agreement, unless the context clearly requires otherwise.
SECTION 2. NCP-SIX ASSIGNMENT AND ASSUMPTIONS
Sellers hereby acknowledge the assignment by NCTV to NCP-Six of all of its
rights and obligations pursuant to the Agreement relating to the
Bennettsville/Barnwell/Bamberg/Allendale
Page 1
2
Area Systems. NCP-Six hereby acknowledges the assumption of its obligations as
Buyer under the Agreement relating to the Bennettsville/Barnwell/Bamberg/
Allendale Area Systems. A copy of the Assignment and Assumption of Asset
Purchase and Sale Agrement, dated as of October 27, 1997, is attached hereto as
Exhibit N.
SECTION 3. CLOSING DATE AND ADJUSTMENT TIME
Notwithstanding the second sentence of Section 2.6 of the Agreement, NCTV,
NCP-Six and Sellers hereby agree the Closing Date shall be January 2, 1998 and
that Closing shall take place no earlier than noon Seattle time on such day.
Notwithstanding the first sentence of Section 2.3(d) of the Agreement, NCTV,
NCP-Six and Sellers hereby agree the Adjustment Time shall be 12:01 am on
January 1, 1998.
SECTION 4. POLE ATTACHMENT VIOLATIONS
Sellers hereby acknowledge that South Carolina Gas & Electric Company has
given its consent to the assignment to NCTV and NCP-Six of those certain pole
attachment agreements, provided that certain existing pole attachment violations
be corrected within five years of Closing. Sellers acknowledge and agree that
by proceeding to Closing, neither NCTV nor NCP-Six has waived or relinquished
any right to claim that Sellers have breached their representations in Section
3.6(b) or any other section of the Agreement or to make a claim for
Indemnifiable Damages under Section 10.1(a) of the Agreement.
SECTION 5. SALUDA ENVIRONMENTAL MATTERS
Sellers hereby acknowledge receipt of that certain Phase II Environmental
Site Assessment dated December 23, 1997 by Consultech Engineering, Inc.
covering the headend and office site real property located in Saluda, South
Carolina, a copy of which is attached hereto as Exhibit O. Sellers acknowledge
and agree that by proceeding to Closing, neither NCTV nor NCP-Six has waived or
relinquished any right to claim that Sellers have breached their
representations in Section 3.14(a) or any other section of the Agreement or to
make a claim for Indemnifiable Damages under Section 10.1(a) of the Agreement.
SECTION 6. AMENDMENT TO SCHEDULES
Pursuant to Section 12.6 of the Agreement, the following Schedules (each
dated December 30, 1997 for reference purposes) attached to this Amendment
hereby amend and replace the Schedules originally attached to the Agreement:
Schedule 1.5 -- Assumed Contracts
Schedule 3.12 -- Contracts and Instruments
Schedule 3.18 -- Litigation
Page 2
3
SECTION 7. REAL ESTATE LIENS
Pursuant to Section 3.8 of the Agreement, Sellers are obligated to
deliver title to the Real Property free and clear of all Liens, except for the
Permitted Liens. Sellers acknowledged receipt of those certain Title Insurance
Commitments from First American Title Insurance Company, in which certain
non-material exceptions to title are identified with respect to certain
properties to be purchased by NCTV and NCP-Six. Sellers, NCTV and NCP-Six hereby
agree to use their commercially reasonable efforts to remove such non-material
title exceptions within 30 days after the Closing Date.
SECTION 8. BAMBERG TOWER
Sellers acknowledge the tower located at the Bamberg headend site is not
in compliance with certain FCC rules and regulations. Sellers have agreed to
reduce the Purchase Price by the amount of $10,000 to compensate NCP-Six for
the cost of bringing such tower into compliance.
SECTION 9. PROGRAMMING AGREEMENT
Pursuant to Section 6.6 of the Agreement, NCTV and NCP-Six hereby agree
to pay Sellers $40,622 at Closing to terminate Sellers' programming agreement
for the TV Land programming such that Buyers shall have no obligation with
respect to continued carriage of the TV Land programming.
SECTION 10. MICROWAVE EQUIPMENT
Sellers hereby agree to reduce the Purchase Price by the amount of
$10,000 to reflect the value of the microwave equipment identified on Schedule
10 to this Amendment, which equipment will be retained by Sellers and not
conveyed to NCTV or NCP-Six at Closing.
SECTION 11. FULL FORCE AND EFFECT
Except as expressly set forth in this Amendment, the Agreement shall
remain in full force and effect, enforceable in accordance with its terms.
NCTV: NORTHLAND CABLE TELEVISION, INC.
By: /s/ JAMES A. PENNEY
----------------------------
James A. Penney, Vice President
Page 3
4
NCP-SIX: NORTHLAND CABLE PROPERTIES SIX
LIMITED PARTNERSHIP
By: Northland Communications Corporation,
Managing General Partner
By: /s/ JAMES A. PENNEY
-----------------------------------
James A. Penney, Vice President
SELLER: INTERMEDIA PARTNERS OF CAROLINA, L.P.
By: InterMedia Partners, a California Limited partnership
Its General Partner
By: InterMedia Capital Management I, LLC,
Its General Partner
By: InterMedia Management, Inc.,
Its Managing Member
By: /s/ RODNEY M. ROYSE
-----------------------------------
Rodney M. Royse, Vice President
SELLER: ROBIN CABLE SYSTEMS, L.P.
By MITGO CORP., Its general partner
By: /s/ RODNEY M. ROYSE
-----------------------------------
Rodney M. Royse
Attorney-in-Fact
Page 4