EXHIBIT 2.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT to the Asset Purchase Agreement ("Amendment"), is
dated as of the day of October, 1996, and entered into among GENERAL
COMMUNICATION, INC., an Alaska corporation (herein, together with its
wholly-owned subsidiaries, its successors and assigns, "GCI"), ALASKAN CABLE
NETWORK/FAIRBANKS, INC., an Alaska corporation ("ACNFI"), ALASKAN CABLE
NETWORK/JUNEAU, INC., an Alaska corporation ("ACNJ"), ALASKA CABLE
NETWORK/KETCHIKAN-SITKA, INC., an Alaska corporation ("ACNKS") (ACNI, ACNJ and
ACNKS, collectively "Companies" or individually "Company").
W I T N E S S E T H:
WHEREAS, the Companies and GCI entered into an Asset Purchase
Agreement, dated as of April 15, 1996 (as amended, restated or otherwise
modified from time to time, the "Agreement");
WHEREAS, Schedules 3 and 4 erroneously list the union and programming
contracts as liabilities for GCI's assumption, which contracts GCI shall not be
assuming pursuant to the consummation on the Agreement to the Closing Date;
WHEREAS, Section 4.2 erroneously lists the retransmission consent
agreements as an Excluded Asset, but which agreements GCI shall be assuming
under the Agreement on the Closing Date;
WHEREAS, Section 4.1 erroneously omits certain contracts and leases
which GCI will be assuming under the Agreement on the Closing Date, which
contracts and leases were inadvertently omitted from Schedule 2;
WHEREAS, GCI and the Companies desire to amend Section 10.6 of the
Agreement in the manner set forth herein;
WHEREAS, GCI and the Companies have agreed to modify the Agreement upon
the terms and conditions set forth below to reflect the parties' intent;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
Companies and GCI agree as follows:
SECTION 1. Definitions. Unless specifically defined or redefined below,
capitalized terms used herein shall have the meanings ascribed thereto in the
Agreement.
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SECTION 2. Non-Assumption of Union and Programming Contracts.
The Companies and GCI agree that GCI shall not assume
the Union Contracts or the Programming Contracts listed on Schedule 3 to the
Agreement. The Companies agree to delete the Union Contracts from Schedule 4 as
a Required Consent. GCI shall have no obligation under the Agreement to assume
or otherwise abide by the Union Contracts, nor any obligation to hire any of the
Companies' employees.
SECTION 3. Updated Schedule 2.
The Companies and GCI hereby agree that Schedule 2 to
the Agreement is amended to add the following items:
(1) Dark Fiber Lease Agreement between Alaska
Cable Network and Alascom;
(2) Memorandum of Agreement between Mt.
Edgecumbe School and McCaw
CableVision/Sitka;
(3) Fiber Optic Link Purchase Order between
University of Alaska and Alaska Cable
Network;
(4) Joint Use Agreement between McCaw
Communications of Juneau and Juneau Douglas
Telephone Company;
(5) Smith Broadcasting Group of Alaska, L.P.
lease;
(6) Retransmission Agreements:
a. King Broadcasting Company (KING-TV)
(Ketchikan and Sitka);
b. Smith Broadcasting Group Alaska,
Inc. (KATN and KJUD) (Ketchikan and
Sitka);
c. Northern Television, Inc. (KTVF);
d. Netlink USA;
e. Fox Television Stations, Inc.;
f. KSCT-TV;
g. Smith Broadcasting Group of Alaska,
Inc. (KATN);
h. Smith Broadcasting Group of Alaska,
Inc. (KJUD);
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i. KTNL-TV; and
j. 25 The Ketchikan Channel.
SECTION 4. Restatement of Section 4 of the Agreement. The Companies and GCI
hereby agree that Section 4 of the Agreement is hereby amended and restated in
its entirety as follows:
SECTION 4. Assumed Liabilities and Excluded Assets.
4.1 Assignment and Assumption. The Companies
will assign, and Buyer will assume and perform, the Assumed
Liabilities, which are defined as: (a) Companies' obligations to
subscribers of the Business for (i) subscriber deposits held by
Companies as of the Closing Date and which are refundable, (ii)
subscriber advance payments held by Companies as of the Closing Date
for services to be rendered by a System after the Closing Date and
(iii) the delivery of cable television service to subscribers of the
Business after the Closing Date; and (b) obligations accruing and
relating to periods after the Closing Date under all of the contracts,
leases, permits and other agreements listed on Schedule 2, including
without limitation, all Franchise Agreements, Leases, Pole Attachment
Agreements, Easements, Service Agreements, Retransmission Agreements
and Governmental Permits listed on Schedule 2 and the APUC Certificates
listed on Schedule 3 (collectively referred to as the "Assumed
Agreements and Permits"). Buyer will not assume or have any
responsibility for any liabilities or obligations of Companies other
than the Assumed Liabilities. In no event will Buyer assume or have any
responsibility for any liabilities or obligations associated with the
Excluded Assets.
4.2 Excluded Assets. The Excluded Assets,
which will be retained by Companies, will consist of the following: (a)
insurance policies and rights and claims thereunder (except as
otherwise provided in Section 6.21); (b) bonds, letters of credit,
surety instruments and other similar items; (c) cash and cash
equivalents; (d) Companies' trademarks, trade names, service marks,
service names, logos and similar proprietary rights (subject to Buyer's
rights under Section 6.26); (e) Companies' rights under any agreement
governing or evidencing an obligation of Companies for borrowed money;
(f) Companies' rights under any contract, license, authorization,
agreement or commitment other than those creating or evidencing Assumed
Liabilities; (g) the assets described on Schedule 10, and (h) the
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Union Contracts and Program Contracts listed on Schedule 3.
SECTION 5. Assignment and Assumption Agreement; Nondisturbance Agreement.
(a) It is the intention and agreement of the
Companies and GCI that at Closing, the Companies will assign to GCI all of their
rights under all of the Assumed Agreements and Permits referred to in Section
4.1 of the Agreement and GCI will assume all of the Companies' duties and
obligations under all of the Assumed Agreements and Permits arising from and
after the date of Closing. With respect to those Assumed Agreements and Permits
for which consents to transfer or assignment have been received as of the date
of this Amendment, the assignment by the Companies to GCI and the assumption by
GCI of the duties and obligations of the Companies thereunder shall be effected
by the execution and delivery at Closing of the Assignment of Company Contracts
and Assignment of Leases referred to in Section 8.3 and 8.4 of the Agreement.
With respect to those Assumed Agreements and Permits referred to in Section 4.1
of the Agreement for which a consent to assignment or transfer has not been
received as of the date of this Amendment (collectively referred to as the
"Other Assumed Agreements and Permits"), the assignment by the Companies to GCI
and the assumption by GCI of the duties and obligations of the Companies
thereunder shall be effected by the execution and delivery at Closing of an
assignment and assumption agreement in the form of Exhibit "A" annexed hereto
("Assignment and Assumption Agreement"). This Assignment and Assumption
Agreement shall be in lieu of the Assignment of Company Contracts and Assignment
of Leases referred to in Section 8.3 and 8.4 of the Agreement with respect to
the Other Assumed Agreements and Permits.
(b) Section 8.6 of the Agreement is hereby deleted in
its entirety.
SECTION 6. Amendment to Section 10.6. The Companies and GCI hereby agree that
Section 10.6 of the Agreement is hereby amended and restated in its entirety as
follows:
10.6 Cash Flow. As of the Closing Date,
Companies' twelve (12) month trailing Operating Cash Flow shall be no
less than Seven Million Three Hundred Thousand Dollars ($7,300,000).
SECTION 7. Entire Agreement; Ratification. The Agreement represents the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreement of the parties. Except as modified
or supplemented hereby, the Agreement and all other documents are agreements
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executed in connection therewith shall continue in full force and effect.
SECTION 8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 9. Governing Law. This Amendment shall be construed in accordance with
the internal laws (and not the law of conflicts) of the State of Alaska, but
giving effect to federal laws.
IN WITNESS WHEREOF, this Amendment to Agreement is executed as of the
date first set forth above.
ALASKAN CABLE NETWORK/FAIRBANKS, INC.
By: /s/
Jack Kent Cooke
Title: Chairman of the Board
ALASKAN CABLE NETWORK/JUNEAU, INC.
By: /s/
Jack Kent Cooke
Title: Chairman of the Board
ALASKAN CABLE NETWORK/KETCHIKAN- SITKA,
INC.
By: /s/
Jack Kent Cooke
Title: Chairman of the Board
GENERAL COMMUNICATION, INC.
By: /s/
John M. Lowber
Title: Senior Vice President
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