EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, made as of the 10th day of April, 2002, is by and
among Charter Communications Entertainment I, LLC, a Delaware limited liability
company ("Buyer"), and Enstar Income Program II-1, L.P., a Georgia limited
partnership, ("Seller").
W I T N E S S E T H:
WHEREAS, Seller owns and operates cable television Systems (as
hereinafter defined) serving areas in and around Taylorville, Illinois
("Systems"), and propose to convey them to Buyer, as more particularly described
in Schedule 1.1 hereto;
WHEREAS, Seller has agreed to sell to Buyer, and Buyer has agreed to
purchase, substantially all of Seller's respective assets comprising or used or
usable in connection with its operation of its Systems, upon the terms and
conditions set forth herein; and
NOW, THEREFORE, in consideration of the representations and
warranties and the mutual covenants and agreements herein contained, and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Seller and Buyer do hereby agree as follows:
1. Definitions.
Terms Defined in this Section. In addition to the terms defined
elsewhere in this Agreement, the following terms shall have the following
meanings when used herein with initial capital:
"Agreements" means this Agreement and all related written
agreements, instruments, affidavits, certificates and other documents, that are
executed and delivered by Buyer or Seller pursuant to this Agreement or in
connection with Buyer's purchase of the Assets or any other transactions
contemplated by the Agreements, regardless of whether such instruments,
affidavits, certificates and other documents are expressly referred to in this
Agreement.
"Basic Cable Service" means the tier of cable television service
that includes the retransmission of local broadcast signals.
"Contracts" means, with respect to the Assets or operation of the
Systems means: any contract for the purchase, sale or lease of real property or
any option to purchase or sell real property; any installment sale agreement or
liability; any multiple dwelling unit or bulk service agreement, pole attachment
agreement; railway or utility agreement; retransmission consent agreement; must
carry notice or agreement; written agreement with subscribers for cable
television service or written hotel and motel agreement, except for such
agreements as have been entered into in the ordinary course of business; any
other contract, agreement, commitment, understanding or instrument that is
material to Seller, the Systems or the Assets.
"Enstar" means Enstar Communications Corporation, a Georgia
corporation.
"Expanded Basic Service" means the tier of cable television service
offered separately from Basic Cable Service and for a charge in addition to that
charged for Basic Cable Service, and that
can only be purchased by subscribers that also receive Basic Cable Service, but
not including any a la carte programming tier or other programming offered on a
per channel or per program basis.
"Governmental Authorizations" means, collectively, all franchises
and other authorizations, agreements, licenses and permits for and with respect
to the construction and operation of any of the Systems obtained from any
governmental authority, including any agency, board, bureau, court commission,
department or administration of the United States government, any state
government or any local governmental body.
"Limited Partner" means each of the limited partners of Seller.
"Limited Partner Consents" means the written consents of the Limited
Partners of Seller that are necessary for the consummation of the transactions
contemplated by this Agreement by Seller in accordance with the terms hereof,
which shall be in form and substance satisfactory to Buyer.
"Material Adverse Effect" means a material adverse effect on any of
the business, financial condition, results of operations, assets or liabilities
of Seller or the Systems, taken as a whole.
"Material Consents" means the Required Consents designated as
Material Consents in Schedule 8.3.
"Minimum Subscriber Number" means Six Thousand Five Hundred
Thirteen (6,513).
"Outside Closing Date" means December 31, 2002.
"Permitted Encumbrances" means the following: (i) statutory
landlord's liens and liens for current taxes, assessments and governmental
charges not yet due and payable (or being contested in good faith); (ii) zoning
laws and ordinances and similar legal requirements; (iii) rights reserved to any
governmental authority to regulate the affected property; and (iv) as to
interests in real property, any easements, rights-of-way, servitudes, permits,
restrictions and minor imperfections or irregularities in title that are
reflected in the public records and that do not individually or in the aggregate
materially interfere with the right or ability to own, use, lease or operate the
Real Property as presently utilized.
"Person" means any natural person, corporation, partnership, trust,
unincorporated organization, association, limited liability company,
Governmental Authority or other entity.
"Required Consents" means any consent of any governmental authority
or other Person under any Governmental Authorization, contract or other
instrument which is necessary as a condition to its transfer or assignment or as
a condition to the consummation of the transaction contemplated by the
Agreements as indicated by an asterisk or other annotation on the Schedules.
"Subscriber" means an active customer of one of the Systems who
subscribes for Basic Cable Service in a single household (excluding "second
connections", as such term is commonly understood in the cable television
industry, and any account duplication), commercial establishment or in a
multi-unit dwelling (including motels and hotels), and has paid the applicable
full non-discounted rate for at least one month's Basic Cable Service (including
deposit and installation charges consistent with Seller's applicable past
practice); provided, however, that the number of customers in a multi-unit
dwelling or commercial establishment that obtains service on a "bulk-rate" basis
shall be determined on a System-by-System basis by dividing the gross bulk-rate
revenue for Basic Cable Service and Expanded Basic Service (but not revenues
from tier or premium services, installation or converter rental)
2
attributable to such multi-unit dwelling or commercial establishment in each
System by the subscription rate for individual households within such System for
the higher level of Basic Cable Service and Expanded Basic Service offered by
such System. For purposes of this definition, an "active customer" shall mean
any customer: (i) who has not given or been given notice of termination and who,
consistent with Seller's policies, should not have been given notice of
termination; provided, that the number of subscribers referred to in this clause
(i) shall be net of the number of prospective subscribers whose connection to a
System is pending; (ii) who has become a subscriber only pursuant to customary
marketing promotions conducted in the ordinary course of business consistent
with past practices, excluding any customers who became subscribers as a result
of any such promotions conducted within the preceding thirty (30) days; and
(iii) whose account does not have an outstanding balance (other than an amount
of $5.00 or less) more than 60 days past due (with an account being past due one
day after the first day of the period to which the applicable billing relates).
"Transferable Franchise Area" means any franchise area with respect
to which (A) any Required Consent necessary under a franchise in connection with
the consummation of the transactions contemplated by this Agreement shall have
been obtained or shall have been deemed obtained by operation of law, or (B) no
Required Consent is necessary under a franchise in connection with the
consummation of the transactions contemplated by this Agreement.
"Voting Period" means the period during which the Limited Partners
of Seller are entitled to vote to approve or disapprove the transactions
contemplated by this Agreement.
"WARN Act" means the Worker Adjustment Retraining and
Notification Act.
2. Sale of Assets; Assumption of Certain Liabilities.
2.1 Sales of Assets.
(a) Subject to the terms, provisions and conditions contained in
this Agreement, and on the basis of the representations and warranties herein
set forth, on the Closing Date in accordance with Schedule 1.1, Seller agrees to
sell, assign, transfer, convey and deliver to Buyer, and Buyer agrees to
purchase and acquire from Seller, all right, title and interest of Seller in the
Assets (as defined herein), free and clear of all encumbrances other than
Permitted Encumbrances. The "Assets" shall mean all of the assets (tangible and
intangible, real and personal), owned, leased or otherwise held by Seller and
used or usable in connection with the operation of the Systems; provided, that
the Assets shall not include any of the "Excluded Assets," as defined in Section
2.1(b) and assets disposed of by Seller between the date hereof and the Closing
Date on an arms' length basis in the ordinary course of business. Except as
expressly set forth in this Agreement, the Assets will be conveyed to Buyer on
an "AS IS, WHERE IS" basis without representations or warranties of any kind or
manner whatsoever. As more particularly identified on Schedule 2.1(a)(i) and
2.1(a)(iii), the Assets shall include, without limitation, the following:
(i) all of Seller's rights under the Contracts and
Governmental Authorizations relating to operation of the Systems, and all
intangibles relating to operation of the Systems, including, but not limited to,
all claims and goodwill, if any, with respect to the operation of the Systems as
listed on Schedule 2.1(a)(i);
(ii) all tangible personalty, electronic devices, trunk and
distribution cable, amplifiers, power supplies, conduit, vaults and pedestals,
grounding and pole hardware, subscriber devices, "headend" equipment,
facilities, vehicles, inventories, supplies and other personal property used or
usable in the operation of the Systems;
3
(iii) all realty, towers, fixtures, easements, leasehold and
other interests in real property with respect to operation of the Systems as
listed on Schedule 2.1(a)(iii);
(iv) all accounts receivable of Seller relating to its
operation of the Systems; and
(v) all business records location at the premises of the
Systems, or located elsewhere but necessary and customary to the management and
operation of the Systems.
(b) Notwithstanding the foregoing, the Assets shall not include, and
Buyer shall not acquire any interest in or to, any of the following (the
"Excluded Assets"):
(i) programming and retransmission consent agreements;
(ii) insurance policies of Seller and rights and claims
thereunder;
(iii) bonds, letters of credit, surety instruments and other
similar items of Seller;
(iv) cash and cash equivalents and notes receivable of Seller;
(v) Seller's trademarks, trade names, service marks, service
names, logos and similar proprietary rights;
(vi) Seller's minute books and other books and records related
to internal matters, corporate matters and financial relationships with Seller's
lenders and affiliates;
(vii) installment sale and other agreements under which Buyer
would be obligated to pay the deferred purchase price of property, except any
such agreements that are listed in Schedule 2.1(a)(i) and except any such
agreements permitted to be entered into by Seller hereunder;
(viii) all rights to tax refunds and refunds of fees of any
nature, in either case relating to the period prior to the Closing Date; and
(ix) software licenses obtained by Seller pursuant to master
software licenses.
2.2 Assumed Liabilities. Subject to the terms, provisions and conditions
contained in this Agreement, and on the basis of the representations and
warranties herein set forth on the Closing Date, Buyer agrees to pay, discharge
and perform the following to the extent related to the Assets received by Buyer
(the "Assumed Liabilities"):
(i) liabilities and obligations under any Contracts,
Governmental Authorizations, and other instruments included within the Assets
and accruing and relating to the period from and after the Closing Date;
(ii) liabilities and obligations of Seller to the extent there
is a reduction in the Purchase Price with respect thereto; and
(iii) liabilities and obligations arising out of Buyer's
ownership or operation of the Systems from and after the Closing Date, except to
the extent that any such liability or obligation relates to any of the Excluded
Assets.
4
All other obligations and liabilities of Seller, including (a) obligations with
respect to the Excluded Assets, (b) any obligations under the Contracts assumed
by Buyer relating to the time period prior to or on the Closing Date and (c) any
claims or pending litigation or proceedings relating to the operation of the
Systems prior to or on the Closing Date shall remain the obligations and
liabilities of Seller.
3. Closing.
3.1 Purchase Price. The aggregate purchase price payable for the Assets
shall be Fourteen Million Seven Hundred Six Thousand Seven Hundred Forty-Four
Dollars ($14,706,744), subject to Sections 9.1 and 11.1, and as adjusted at the
Closing pursuant to Section 3.3(a) (the "Purchase Price"), and as further
adjusted post-Closing pursuant to Section 3.3(b).
3.2 Manner and Time of Closing and Payment. The closing of the
transactions contemplated herein (the "Closing") shall take place at 9:00 a.m.
at the offices of Charter Communications Inc. 12405 Powerscourt Drive, St.
Louis, MO 63131, or at such other time and location mutually determined by
Seller and Buyer, on the last Business Day of the calendar month that is at
least five (5) Business Days after the satisfaction or waiver of all conditions
set forth in Sections 7.3, 7.4, 8.3, 8.4 and 8.6 hereof. The Closing shall be
effective as of 11:59 p.m. St. Louis time on the date the Closing actually
occurs ("Closing Date"). At Closing, Buyer shall deliver to Seller, the Purchase
Price, in immediately available funds by wire, inter-bank or intra-bank transfer
to Seller in accordance with Seller's written instructions.
3.3 Adjustment of Purchase Price.
(a) The Purchase Price payable to Seller shall be subject to
adjustment, to reflect, in accordance with generally accepted accounting
principles, the principle that all revenues and refunds, and all costs, expenses
and liabilities, attributable to the operation of Seller's Systems for any
period prior to such time on the Closing Date are for the account of Seller, and
all revenues and refunds, and all costs, expenses and liabilities (other than
liabilities and obligations under contracts or other obligations of Seller that
Buyer does not assume) attributable to the operation of Seller's Systems from
and after such time on the Closing Date are for the account of Buyer. The
adjustments to be made to the Purchase Price payable to Seller pursuant to this
Section 3.3(a) shall consist of the following:
(i) an increase in the Purchase Price by an amount equal to the
sum of:
(A) all prepaid items relating to the ownership or operation
of the Assets or the Systems and for which Buyer will receive a benefit after
the Closing, which prepaid items shall be prorated between Seller and Buyer as
of the Closing Date on the basis of the period covered by the respective
prepayment, and shall be deemed to include, without limitation, all such prepaid
items attributable to: real and personal property taxes and assessments levied
against the Assets; real and personal property rentals; pole rentals; and power
and utility charges;
(B) the sum of 99% of the book value of all subscriber
accounts receivable that are outstanding as of the Closing Date and no part of
which other than $5.00 is more than sixty (60) days past due (with an account
being past due one day after the first day of the period to which the applicable
billing relates); plus 95% of the book value of all advertising and other
accounts receivable that are outstanding as of the Closing Date and no part of
which other than $5.00 is more than ninety (90) days from the invoice date; and
(ii) a decrease in the Purchase Price by an amount equal to the sum
of:
5
(A) the amount of all subscriber prepayments, credit balances
and deposits held by Seller as of the Closing Date with respect to Seller's
Systems;
(B) all accrued and unpaid expenses relating to the ownership
or operation of Seller's Assets and Systems, including accrued and unpaid
franchise fees (which accrued and unpaid expenses shall be prorated between
Seller and Buyer as of the Closing Date on the basis of the period to which the
respective expense relates, and shall be deemed to include, without limitation,
accrued and unpaid expenses of the kind itemized in Section 3.3(a)(i)(A) above);
(C) in the event that the number of Subscribers on the Closing
Date for any of Seller's Systems is less than the Minimum Subscriber Number, the
product of (i) $2,258.00 and (ii) the number of Subscribers by which the number
of Subscribers served by Seller is less than the Minimum Subscriber Number as of
the Closing Date;
(D) with respect to any Retained Franchises (and the Retained
Assets with respect thereto), shall be the product of (i) the number of
Subscribers covered by such Retained Franchise as of the Closing Date, based on
the Pre-Closing Certificate, as it may be modified to reflect the resolution of
any pre-Closing disputes with respect thereto, and (ii) the Subscriber
Adjustment Amount applicable to the Seller of such Retained Franchise and
Assets.
(E) with respect to employees of Seller hired by Buyer,
accrued obligations for vacation and sick days, subject to Section 6.4(c); and
Seller shall deliver to Buyer a certificate signed by Seller (the "Pre-Closing
Certificate"), which shall specify Seller's good faith best estimate of the
adjustments to the Purchase Price payable to Seller required under this Section
3.3(a), calculated as of the Closing Date. Within 90 days after the Closing
Date, Buyer shall deliver to Seller a certificate signed by Buyer (the
"Post-Closing Certificate"), which shall set forth Buyer's final adjustments to
the Purchase Price payable to Seller to be made as of the Closing Date pursuant
to this Section 3.3(a), together with such documentation as may be necessary to
support Buyer's determination thereof; and, thereafter, Buyer shall provide
Seller with such other documentation relating to the Post-Closing Certificate as
Seller may reasonably request. If Seller wishes to dispute the final adjustments
to the Purchase Price to be made as of the Closing Date pursuant to this Section
3.3(a), as reflected in the Post-Closing Certificate, Seller shall, within
thirty (30) days after its receipt of the Post-Closing Certificate, serve the
Buyer with a written description of the disputed items together with such
documentation as Buyer may reasonably request. If Seller notifies Buyer of its
acceptance of the amounts set forth in the Post-Closing Certificate, or if
Seller fails to deliver its report of any proposed adjustments within the thirty
(30)-day period specified in the preceding sentence, the amounts set forth in
the Post-Closing Certificate for Seller shall be conclusive, final and binding
on Buyer and Seller as of the last day of such thirty (30) - day period. If
Buyer and Seller cannot resolve any dispute within thirty (30) days after
Buyer's receipt of Seller's written objection, Buyer and Seller, shall, within
the ten (10) days following expiration of such thirty (30) - day period, appoint
KPMG or such other independent public accounting firm of national reputation as
is agreed upon by the parties to resolve the dispute, provided such firm is not
the auditor for either Buyer or Seller. The cost of retaining such firm shall be
borne one-half by Buyer and one-half by Seller. Such firm shall report its
determination in writing to the Buyer and Seller, and such determination shall
be conclusive and binding on Buyer and Seller and shall not be subject to
further dispute or review.
(b) If, as a result of any resolution reached by Buyer and Seller,
or any determination made by an accounting firm, in either case pursuant to
Section 3.3(b), Buyer is finally determined to owe any amount to Seller, or
Seller is finally determined to owe any amount to Buyer, the obligor shall pay
6
such amount to the other party hereto within three (3) Business Days of such
determination. Notwithstanding the foregoing, Buyer shall pay to Seller or
Seller shall pay to the Buyer, as the case may be, the amount due such other
party with respect to any item that is not in dispute within three (3) Business
Days of the date on which a dispute no longer exists in immediately available
funds to an account or accounts specified in writing by the obligee.
3.4 Instrument of Assignment and Assumption. At the Closing, Buyer and
Seller will execute and deliver a Bill of Sale and Assignment and Assumption
Agreement, as appropriate in the form of Exhibit A (the "Bill of Sale and
Assignment and Assumption Agreements").
3.5 Purchase Price Allocation. Buyer and Seller will use good faith
efforts to agree on the allocation, for tax reporting purposes, of the Purchase
Price payable to Seller among the Assets being conveyed by Seller and shall file
the form required to be filed under Section 1060 of the Internal Revenue Code
consistent with such allocation.
4. Representations and Warranties of Seller.
Seller hereby represents and warrants to Buyer that the following
statements are true and correct, solely with respect to itself and the Assets
and Systems being conveyed by it pursuant to this Agreement.
4.1 Organization, Qualification and Power.
(a) Seller is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Georgia, with full power and
authority to own, lease or license its properties and assets and to carry on the
business in which it is engaged in the manner in which such business is now
carried on. Seller is duly qualified as a foreign partnership authorized to do
business in the State of Illinois and is in good standing with the State of
Illinois.
(b) Enstar is a corporation, duly incorporated, validly existing and
in good standing under the laws of the State of Georgia, with full power and
authority to carry on the business in which it is engaged in the manner in which
such business is now carried on. Enstar is the sole general partner of Seller.
Enstar is duly qualified as a foreign corporation authorized to do business in
the State of Illinois and is in good standing with the State of Illinois.
4.2 Capacity; Due Authorization; Enforceability. Subject to obtaining
the Limited Partner Consents, all requisite limited partnership action required
to be taken by Seller for the execution, delivery and performance by Seller of
the Agreements to which it is a party have been duly taken. Seller has the full
legal capacity and legal right, power and authority to enter into the Agreements
and to consummate the transactions contemplated thereby. Enstar has the full
legal capacity and legal right, power and authority to execute the Agreements to
which Seller is a party on behalf of Seller. Subject to obtaining the Limited
Partner Consents, this Agreement has been duly executed and delivered by Seller,
and the Agreements to which Seller is a party, upon execution and delivery, will
be a legal, valid and binding obligation of Seller, enforceable in accordance
with its respective terms, except in each case to the extent that such
enforcement may be subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws of general application affecting the rights and
remedies of creditors or secured parties, and that the availability of equitable
remedies including specific performance and injunctive relief may be subject to
equitable defenses and the discretion of the court before which any proceeding
therefor may be brought.
7
4.3 Absence of Conflicting Agreements.
(a) The execution and delivery of the Agreements to which Seller is
a party and the consummation of the transactions contemplated thereby (provided
that all of the Required Consents and the Limited Partner Consents are obtained
and the applicable waiting period(s) under the HSR Act shall have expired or
been terminated) will not (a) violate Seller's certificate of formation or
limited partnership agreement; (b) violate any legal requirement applicable to
Seller, the Assets or the Systems; (c) conflict with or result in any breach of
or default under any contract, note, mortgage or agreement to which Seller is a
party or by which Seller is bound.
4.4 Litigation. There is no claim, legal action, arbitration or other
legal, governmental, administrative or tax proceeding, or any order, complaint,
decree or judgment pending, or, to Seller's knowledge, threatened, that would
prevent, limit, delay or otherwise interfere with Seller's ability to consummate
the transactions contemplated by this Agreement in accordance with the terms
hereof.
4.5 Broker; Brokers' Fees. Except for Daniels & Associates, Inc., which
has been retained by and whose fee shall be paid by Seller, neither Seller nor
any Person acting on its behalf has dealt with any broker or finder in
connection with the transactions contemplated by this Agreement or incurred any
liability for any finders' or brokers' fees or commissions in connection with
the transactions contemplated by this Agreement. Seller agrees to indemnify and
hold harmless Buyer against any fee, commission, loss or expense arising out of
any claim by any other broker or finder employed or alleged to have been
employed by them.
5. Representations and Warranties of Buyer.
Buyer hereby represents and warrants to Seller that the following
statements are true and correct, solely with respect to itself and the Assets
and Systems being conveyed to it pursuant to this Agreement.
5.1 Organization, Qualification and Power. Buyer is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware, with full power and authority to own, lease or license
its properties and assets and to carry on the business in which it is engaged in
the manner in which such business is now carried on. On the Closing Date, Buyer
will be duly qualified to do business in all jurisdictions where the ownership
and operation of the Assets and Systems requires such qualification.
5.2 Capacity; Due Authorization; Enforceability. All requisite limited
liability company action required to be taken by Buyer for the execution,
delivery and performance by Buyer of the Agreements to which Buyer is a party
have been duly performed. Buyer has the full legal capacity and legal right,
power and authority to enter into the Agreements and to consummate the
transactions contemplated thereby. This Agreement has been duly executed and
delivered by Buyer and is, and the Agreements to which Buyer is a party, upon
execution and delivery, will be, a legal, valid and binding obligation of Buyer,
enforceable in accordance with its respective terms, except in each case to the
extent that such enforcement may be subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws of general application
affecting the rights and remedies of creditors or secured parties, and that the
availability of equitable remedies including specific performance and injunctive
relief may be subject to equitable defenses and the discretion of the court
before which any proceeding therefor may be brought.
5.3 Absence of Conflicting Agreements. The execution and delivery of the
Agreements to which Buyer is a party and the consummation of the transactions
contemplated hereby and thereby
8
(provided all of the Required Consents are obtained and the applicable waiting
period(s) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, (the "HSR Act") shall have expired or been terminated) will not (a)
violate Buyer's certificate of formation or operating agreement; (b) violate any
legal requirement applicable to Buyer, the Assets on the Systems; (c) conflict
with or result in a breach of or default under any contract, note, mortgage or
agreement to which Buyer is a party or by which Buyer is bound.
5.4 Litigation. There is no claim, legal action, arbitration or other
legal, governmental, administrative or tax proceeding, or any order, complaint,
decree or judgment pending, or, to Buyer's knowledge, threatened, that would
prevent, limit, delay or otherwise interfere with Buyer's ability to consummate
the transactions contemplated by this Agreement in accordance with the terms
hereof.
5.5 Brokers. Neither Buyer nor any Person acting on its behalf has dealt
with any broker or finder in connection with the transactions contemplated by
this Agreement or incurred any liability for any finders' or brokers' fees or
commissions in connection with the transactions contemplated by this Agreement.
6. Covenants of Seller and Buyer.
6.1 Continuity and Maintenance of Operations. Except as the designated
Buyer may otherwise agree in writing, until the Closing Seller shall operate its
respective Systems in the ordinary course of business consistent with past
practices and shall maintain and repair the Assets in the ordinary course of
business and make capital expenditures consistent with its year 2002 budgets,
and at Closing, Assets shall be in substantially the same condition at Closing,
ordinary wear and tear excepted.
6.2 Notification.
(a) Each party shall promptly notify the other of any action, suit,
proceeding or investigation that is instituted or threatened against such party
to restrain, prohibit or otherwise challenge the legality or propriety of any
transaction contemplated by this Agreement.
(b) If Buyer or Seller acquires actual knowledge before the Closing
Date that a material breach of any of Seller's or Buyer's (as the case may be)
representations or warranties has occurred, the party acquiring such actual
knowledge shall provide prompt written notice to Buyer or Seller (as the case
may be) describing such breach. Notwithstanding the foregoing, no notice or
information delivered by or to any party shall affect the other party's right to
rely on any representation or warranty made by such party or relieve such party
of any obligations under this Agreement as the result of a breach of any of its
representations and warranties.
6.3 [Omitted]
6.4 Employees; Employee Benefits.
(a) Subject to the following sentence, effective as of and
contingent upon the Closing, Buyer shall make offers of employment to those of
Seller's employees who render services to the Systems as Buyer shall determine,
in its sole and absolute discretion. Prior to Closing Seller shall, with respect
to its employees, take all actions reasonably necessary to comply with the WARN
Act, if applicable, and any applicable comparable state laws. Seller shall pay
when required all compensation and shall provide all benefits to its respective
employees as are required, and, except as set forth in
9
Section 6.4(b) Seller shall retain liability for all obligations and liabilities
owed to its respective employees that relate to periods prior to the Closing
Date.
(b) Seller shall have full responsibility and liability for offering
and providing "continuation coverage" to any "covered employee" who is an
employee, and to any "qualified beneficiary" of such employee, and who is
covered by a "group health plan" sponsored or contributed to by Seller to the
extent that such continuation coverage is required to be provided by Seller
under Internal Revenue Code ("IRC") Section 4980B, and the regulations
promulgated thereunder, as a result of a "qualifying event" experienced by such
covered employee or qualified beneficiary with respect to or in connection with
the transactions contemplated by this Agreement. "Continuation coverage,"
"covered employee," "qualified beneficiary," "qualifying event" and "group
health plan" all shall have the meanings given such terms under Section 4980B of
the IRC and Section 601 et seq. of ERISA.
(c) Seller shall provide to Buyer a list of the accrued vacation and
sick leave of each of its employees to whom Buyer has indicated it intends to
offer employment. Each such employee shall be credited under Buyer's vacation
and sick leave policy with the full amount of vacation leave accrued by such
employee but unused as of the Closing Date under the vacation policies of
Seller.
6.5 Required Consents.
(a) Following the execution hereof, until the Closing Date, Seller
shall use commercially reasonable efforts, and Buyer shall cooperate in good
faith with Seller, to obtain all Required Consents. Seller and Buyer shall
prepare and file, or cause to be prepared and filed, within fifteen (15) days
after the date hereof (subject to extension for a period of up to an additional
ten (10) days, if reasonably necessary for a party to complete its application),
all applications (including Federal Communications Commission ("FCC") Forms 394
or other appropriate forms, to the extent Seller determines they are necessary
or appropriate) required to be filed with the FCC and any other Governmental
Authority that are necessary for the assignment to Buyer, in connection with the
consummation of the transactions contemplated by this Agreement, of the
Governmental Authorizations. The parties shall also make appropriate requests,
as soon as practicable after the date hereof, for any Required Consent required
under any Contract. Nothing in this section shall require the expenditure or
payment of any funds (other than in respect of normal and usual attorneys' fees,
filing fees or other normal costs of doing business) or the giving of any other
consideration by Buyer or Seller, provided that Seller shall be liable for all
obligations or liabilities under each Governmental Authorization or Contract
during the period prior to the Closing Date.
6.6 Use of Transferor's Name. For a period of 180 days after the Closing
Date, Buyer may continue (but only to the extent reasonably necessary) to
operate the Systems using the name "Enstar" and all derivations and
abbreviations of such name and related trade names and marks in use in the
Systems on the Closing Date, such use to be in a manner consistent with the way
in which Seller has used the marks. Within 180 days after the Closing Date,
Buyer will discontinue using and will dispose of all items of stationery,
business cards and literature bearing such name or marks. Notwithstanding the
foregoing, Buyer will not be required to remove or discontinue using any such
name or mark that is affixed to converters or other items in or to be used in
customer homes or properties, or as are used in similar fashion making such
removal or discontinuation impracticable for Buyer.
6.7 Tax Matters. All transfer, documentary, sales, use, stamp,
registration and other Taxes and fees (including any penalties and interest),
incurred in connection with the transactions consummated pursuant to this
Agreement with respect to the Assets conveyed by Seller shall be shared equally
by Buyer and Seller. Buyer and Seller will cooperate in all reasonable respects
to prepare and file all
10
necessary federal, state and local tax returns, tax information returns, reports
and estimates and other documentation with respect to all such transfer,
documentary, sales, use, stamp, registration and other Taxes and fees.
6.8 Further Assurances; Satisfaction of Covenants. Seller and Buyer each
shall execute such documents and other papers and take or cause to be taken such
further action as may be reasonably required to carry out the provisions hereof
and to consummate and make effective the transactions contemplated hereby.
Seller and Buyer shall each use commercially reasonable efforts to satisfy each
of its covenants and obligations under this Agreement and to satisfy each
condition to Closing it is required to satisfy hereunder.
6.9 Limited Partner Consents. As soon as reasonably practicable
following the execution hereof, Seller and its general partner shall, if
required to do so under applicable Legal Requirements, file with the Securities
and Exchange Commission ("SEC") proposed proxy materials relating to Seller's
and its general partner's solicitation of the Limited Partner Consents. Seller
and its general partner shall use reasonable efforts (i) to have such proxy
materials cleared by the SEC (if applicable) so as to enable it to disseminate
definitive proxy materials to Seller's Limited Partners, (ii) to disseminate
such materials, upon receipt of SEC clearance (if applicable), to its Limited
Partners and (iii) thereafter to obtain the Limited Partner Consents. Seller
shall give Buyer prompt notice when the Limited Partner Consents have been
obtained and when any material development has occurred that causes substantial
doubt as to whether the Limited Partner Consents will be obtained.
6.10 Acquisition Proposals. If, prior to obtaining all the Limited
Partner Consents, Seller or any Person acting on behalf of Seller receives a
solicitation from a third party regarding an Acquisition Proposal (as defined
herein), which Acquisition Proposal Seller intends to submit to its Limited
Partners for their approval, Seller shall, within five (5) Business Days
following receipt of such solicitation, notify Buyer in writing of the price and
other material terms of such Acquisition Proposal, and Buyer shall be entitled,
within five (5) Business Days following receipt of such notification, to submit
an Acquisition Proposal in response to the third party's Acquisition Proposal (a
"Buyer Acquisition Proposal"), which Buyer Acquisition Proposal shall contain
all the terms and conditions of this Agreement other than the Purchase Price.
For purposes hereof, an "Acquisition Proposal" means any bona fide proposed (i)
asset acquisition or exchange or similar transaction providing for any third
party's acquisition of any of the Assets or Systems or (ii) acquisition of
partnership interests of Seller, merger, consolidation, exchange of partnership
or other equity interests or similar transaction that would result in the
acquisition by any third party of a percentage of such partnership interests in
Seller sufficient to give such third party voting control over Seller.
6.11 Bulk Sales Buyer waives compliance with provisions of the Uniform
Commercial Code relating to bulk transfers and similar laws in connection with
the sale of Assets, subject to the Indemnification provisions of Section 10.
7. Conditions Precedent To Buyer's Obligations.
The obligations of Buyer to purchase and accept assignment, transfer and
delivery of the Assets to be sold, assigned, transferred and delivered to Buyer
hereby are subject to the satisfaction or waiver, at or prior to the Closing
Date (as provided herein), of the following conditions:
7.1 Representations and Warranties of Seller. The representations and
warranties of Seller set forth in Section 4, shall be true and correct in all
material respects at and as of the time of the Closing as though made at and as
of that time.
11
7.2 Covenants. Seller shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to be
performed or complied with by it prior to or at the Closing.
7.3 Transferable Franchise Areas; Material Consents. (i) The Franchise
Areas covering at least ninety percent 90% of Subscribers shall have become
Transferable Franchise Areas; (ii) subject to clause (i), the Material Consents
(other than those that pertain solely to non-Transferable Franchise Areas or
Retained Assets) shall have been obtained (other than those that pertain solely
to non-Transferable Franchise Areas) or waived;
7.4 Hart-Scott-Rodino Act. All necessary pre-merger notification filings
required under the HSR Act shall have been made with the Federal Trade
Commission and the United States Department of Justice and the prescribed
waiting period(s) (and any extensions thereof) will have expired or been
terminated.
7.5 Governmental or Legal Action. No action, suit, or proceeding shall
be pending or threatened by any governmental authority or other person and no
law, rule or regulation or similar requirement shall have been enacted,
promulgated or issued or deemed applicable to any of the transaction
contemplated by this Agreement by any governmental authority or other person
that would (a) prohibit Buyer's ownership or operation of all or a material
portion of any System or the Assets; (b) enjoin, prevent, or make illegal the
consummation of the transactions contemplated by this Agreement; or (c)
challenge, set aside or modify any authorization of the transactions provided
for herein or any approvals, consents, waivers or authorizations made or
described hereunder.
7.6 Delivery of Certificates and Documents. Seller shall have furnished
to Buyer the following:
(a) a certificate of the Secretary or Assistant Secretary of Seller
or, if applicable, Seller's ultimate corporate general partner, as to (i) all
actions taken by and on behalf of Seller and its partners to authorize the
execution, delivery and performance of the Agreements and (ii) the incumbency of
officers signing the Agreement on behalf of Seller;
(b) a certificate of good standing of Seller that is a limited
partnership from the Secretary of State of its state of formation and a
certificate of foreign qualification from the state of Illinois;
(c) a certificate of an executive officer of Enstar, certifying on
behalf of Seller that the conditions set forth in Sections 7.1 and 7.2 have been
met;
(d) the Bill of Sale and Assignment and Assumption Agreements, duly
executed by Seller;
(e) a deed, in form and substance reasonably satisfactory to Seller
and Buyer, conveying title to each parcel of real property owned by Seller to
Buyer;
(f) copies of all Material Consents obtained on or prior to Closing;
and
(g) other documents as are reasonably necessary to transfer title to
the Assets to Buyer.
12
(h) information necessary for sales tax documents
7.7 Limited Partner Consents. The Limited Partner Consents shall have
been obtained.
7.8 Discharge of Liens Seller shall have secured the termination
discharge and release of all encumbrances of any nature, other than Permitted
Encumbrances, on the Assets.
7.9 Opinion of Seller's Counsel. Purchaser shall have received the
opinions of counsel for Seller reasonably required by Buyer.
7.10 No Default Under Documents. As of the closing date, Seller shall
not be in material violation or default under any statute, rule, regulation,
agreement, or other document to which Seller is a party or by which Seller is
bound in a manner which would materially adversely affect the operation of the
System, nor shall Seller have knowledge of any condition or event which, with
notice or lapse of time or both, would constitute such a violation or default.
8. Conditions Precedent to Seller's Obligations.
The obligations of Seller to sell, assign, transfer and deliver the Assets
to Buyer hereunder are subject to the satisfaction or waiver at or prior to the
Closing Date (as provided herein) of the following conditions:
8.1 Representations and Warranties of Buyer. The representations and
warranties of Buyer set forth in Section 5, shall be true and correct in all
respects at and as of the time of the Closing as though made at and as of that
time.
8.2 Covenants. Buyer shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by it prior to or at the Closing.
8.3 Transferable Franchise Areas; Material Consents. (i) The Franchise
Areas covering at least ninety percent 90% of Subscribers shall have become
Transferable Franchise Areas; and (ii) subject to clause (i), the Material
Consents issued by governmental authorities (other than those that pertain
solely to non-Transferable Franchise Areas or Retained Assets) shall have been
obtained.
8.4 Hart-Scott-Rodino Act. All necessary pre-merger notification filings
required under the HSR Act will have been made with the Federal Trade Commission
and the United States Department of Justice, and the prescribed waiting
period(s) (and any extensions thereof) will have expired or been terminated.
8.5 Judgment. There shall not be in effect on the date on which the
Closing is to occur any judgment, decree, order or other prohibition having the
force of law that would prevent or make unlawful the Closing; provided that
Seller shall have used commercially reasonable efforts to prevent the entry of
any such judgment, decree, order or other legal prohibition and to appeal as
expeditiously as possible any such judgment, decree, order or other legal
prohibition that may be entered.
8.6 Limited Partner Consents. The Limited Partner Consents shall
have been obtained.
8.7 Delivery of Certificates and Documents. Buyer shall have
furnished to Seller the following:
13
(a) a certificate of the Secretary or Assistant Secretary of Buyer
as to (i) resolutions of Buyer authorizing the execution, delivery and
performance of the Agreements; and (ii) the incumbency of officers signing the
Agreements on behalf of Buyer;
(b) a certificate of legal existence and good standing of Buyer from
the Secretary of State of Buyer's state of organization and a certificate of
foreign qualification of Buyer in the state of Illinois;
(c) a certificate of an executive officer of Buyer certifying that
the conditions set forth in Sections 8.1 and 8.2 have been met;
(d) the Bill of Sale and Assignment and Assumption Agreements, duly
executed by Buyer;
(e) information necessary for sales tax documents
8.8 Payment for Assets. Buyer shall have delivered the Purchase
Price as provided in Section 3.2.
8.9 Governmental or Legal Action. No action, suit, or proceeding
shall be pending or threatened by any Governmental Authority or other person and
no law, rule or regulation or similar requirement shall have been enacted,
promulgated or issued or deemed applicable to any of the transaction
contemplated by this Agreement by any governmental authority or other person
that would (a) prohibit Seller's right to dispose of all or a material portion
of any System or the Assets; (b) enjoin, prevent, or make illegal the
consummation of the transactions contemplated by this Agreement; or (c)
challenge , set aside or modify any authorization of the transactions provided
for herein or any approvals, consents, waivers or authorizations made or
described hereunder.
9. Retained Franchises and Assets.
9.1 Non-Transferable Franchise Areas. In the event that on the
Closing Date any franchise area is not a Transferable Franchise Area, then the
Franchise covering such Franchise Area ("Retained Franchise") and any other
Assets used solely in connection with Seller's operations within such Franchise
Area ("Retained Assets") shall be excluded from the Assets conveyed on the
Closing Date, and the provisions of this Section 9 shall apply.
9.2 Retained Franchise Consents. From and after the Closing Date the
Seller(s) owning any Retained Franchises or Retained Assets shall continue to
use commercially reasonable efforts to obtain the Required Consent with respect
to any Retained Franchise ("Retained Franchise Consent").
9.3 Subsequent Closings. Subject to Section 9.4, at such time as the
Franchise Area covered by any Retained Franchise shall become a Transferable
Franchise Area, Buyer and Seller shall conduct a closing (each, a "Subsequent
Closing") at which Seller shall assign, transfer, convey and deliver to Buyer,
and Buyer shall acquire from Seller, the Retained Franchise covering such
Franchise Area and any Retained Assets with respect thereto. Each Subsequent
Closing shall take place on a Business Day on which the relevant parties shall
agree and that is not less than five (5) nor more than ten (10) business days
from the date on which Buyer receives notice that the Retained Franchise Consent
is obtained or the relevant Franchise Area has otherwise become a Transferable
Franchise Area. At such Subsequent Closing, (i) Buyer shall deliver to Seller,
the Franchise Purchase Price with respect to such Retained Franchise and any
such Retained Assets; and (ii) Buyer or Seller, as the case may be, shall
deliver the
14
instruments described in Sections 7.6(d), (f), (g) and (h) and 8.7(d) with
respect to such Retained Franchise and Retained Assets.
9.4 Final Closing. If, on the date that is one (1) year from the date of
the Closing Date, any Franchise Area shall not have become a Transferable
Franchise Area, Buyer and the Seller with respect thereto shall nevertheless
conduct a final Closing with respect to the Retained Franchise and Retained
Assets relating to any such Franchise Area ("Final Closing"), at which Seller
shall assign, transfer, convey and deliver to Buyer, and Buyer shall acquire
from Seller, such Retained Franchise and Retained Assets. Such Final Closing
shall occur on such one year anniversary date or, if such date is not a business
day, on the next business day. At such Final Closing, Buyer or Seller, as the
case may be, shall deliver the instruments described in Sections 7.6(d), (f),
(g) and (h) and 8.7(d) with respect to such Retained Franchise and Retained
Assets.
10. Indemnification.
10.1 Indemnification.
(a) Subject to the provisions of this section, Buyer agrees to
indemnify and hold harmless Seller and its partners, after the Closing, from and
against any and all claims, damages, losses and expenses (including reasonable
legal fees and expenses) to the extent such claims are based upon, arise out of
or are related to the assertion of any claim or legal action against Seller by
any Person or governmental authority based upon, arising out of or relating to
the ownership or operation of the Assets occurring, arising or accruing after
the Closing Date
(b) Subject to the provisions of this section, Seller agrees to
indemnify and hold harmless Buyer, its shareholders, directors, members,
officers, and controlling persons, after the Closing, from and against any and
all claims, damages, losses and expenses (including reasonable legal, accounting
and experts' fees and other fees and expenses incurred in the investigation or
defense of any of the following, and any interest and penalties) which any such
person may incur or suffer, as a result of arising in connection with or
relating to any and all claims of third parties (including the claims of any
Limited Partners of Seller or Seller's general partner) to the extent such
claims are based upon, arise out of or relate to (i) any liability of Seller
arising or accruing on or prior to, or existing on, the Closing Date, except any
such liability for which an adjustment to the Purchase Price is made pursuant to
Section 3.3(a)(ii); or (ii) any obligation or liability of Seller not assumed by
Buyer pursuant to the terms of this Agreement; or (iii) the authority of Seller
to enter into and consummate the transactions contemplated hereby.
(c) Subject to the provisions of this section, Buyer agrees to
indemnify and hold harmless Seller and its partners, after the Closing, from and
against any and all claims, damages, losses and expenses (including reasonable
legal fees and expenses) to the extent such claims are based upon the authority
of Buyer to enter into and consummate the transactions contemplated hereby.
10.2 Assertion of Claims.
(a) If Buyer, on the one hand, or Seller, on the other hand believes
that it has a claim for indemnification, it shall notify the other (the
particular Seller, in the case of a claim against a particular Seller) promptly
in writing describing such claim with reasonable particularity and containing a
reference to the provisions of this Agreement under which such claim has arisen.
15
(b) Neither this Section 10 nor any other provision of this
Agreement is intended to confer any third party beneficiary rights, including
but not limited to any extension of any statute of limitations pertaining to
suits, actions or proceedings brought by third parties.
10.3 Notice of and Right to Defend Third Party Claims. Promptly upon
receipt of notice of any claim or the commencement of any suit, action or
proceeding by a third party in respect of which indemnification may be sought on
account of an indemnity agreement contained in Section 10.1, the party seeking
indemnification (the "Indemnitee") shall give notice in writing to the party
from whom indemnification is sought (the "Indemnitor"). The omission by such
Indemnitee to so notify promptly such Indemnitor of any such claim or action
shall not relieve such Indemnitor from any liability which it may have to such
Indemnitee in connection therewith. In case any claim shall be asserted or suit,
action or proceeding commenced against an Indemnitee, the Indemnitor will be
entitled to participate therein, and, to the extent that it may wish, subject to
Indemnitor's written confirmation of its indemnity obligations hereunder with
respect to such claim, to assume the defense or conduct the settlement thereof.
Anything herein to the contrary notwithstanding, Indemnitor shall not be
entitled to settle any such suit, action or proceeding without Indemnitee's
consent, which consent shall be not unreasonably withheld. After notice from the
Indemnitor to the Indemnitee of its election so to assume the defense, conduct
or settlement thereof (along with its written confirmation of its indemnity
obligations), the Indemnitor will not be liable to the Indemnitee for any legal
or other expenses subsequently incurred by the Indemnitee in connection with the
defense, conduct or settlement thereof following such notice. The Indemnitee
will reasonably cooperate with the Indemnitor in connection with any such claim
assumed by the Indemnitor to make available to the Indemnitor all Persons and
all pertinent information under the Indemnitee's control.
11. Termination.
11.1 Termination. This Agreement may be terminated prior to the Closing
only in accordance with the following:
(a) At any time by mutual consent of the Seller and Buyer;
(b) By either Seller or Buyer if the Closing hereunder has not taken
place on or before the Outside Closing Date other than by reason of a breach or
default of any of the covenants or agreements contained in this Agreement by the
party seeking to terminate; provided, that, either party may, at its sole
option, extend such date for an additional three (3) months if as of such date
the conditions to Closing set forth in Sections 7.3 and 8.3 shall have not been
satisfied; or
(c) By either Seller or Buyer, at any time, if the other party is in
material breach or material default of its covenants and agreements under this
Agreement and the party in breach or default does not cure such breach or
default within thirty (30) days after written notice thereof is delivered to the
non-terminating party, provided that the terminating party is not also in
material breach or material default hereunder;
(d) By either Seller or Buyer, if the representations and warranties
of the other party are not true and correct in all respects (or, with respect to
representations and warranties made as of a specific date, are not true and
correct in all respects as of such date), and such failure is not cured by the
Outside Closing Date, provided that all of the representations and warranties of
the terminating party are true and correct in all respects; provided, that for
purposes of this Section 11.1(d), the representations and warranties of a party
shall be deemed true and correct in all respects to the extent that the
aggregate effect
16
of the inaccuracies in such representations and warranties as of the applicable
times does not constitute a Material Adverse Effect;
(e) By Buyer in the event that any of the following shall occur: (i)
as of the date that is one hundred twenty (120) days following the date hereof,
the Limited Partners holding forty percent (40%) or more of the Interests of
Seller shall have affirmatively disapproved the transactions contemplated by
this Agreement (unless the Limited Partners holding fifty percent (50%) or more
of the Interests of Seller shall have approved the transactions contemplated
hereby); (ii) as of any date, the Limited Partners holding fifty percent (50%)
or more of the Interests of Seller shall have affirmatively disapproved the
transactions contemplated by this Agreement or approved any Acquisition
Proposal; or (iii) as of the termination of the Voting Period, the Limited
Partner Consents of Seller shall not have been obtained; provided, however, that
for purposes of clauses (i) and (ii) the percentage of Interests disapproving
the transactions contemplated by this Agreement or approving an Acquisition
Proposal shall not include any disapprovals or approvals (as the case may be)
that shall have been rescinded, revoked or otherwise withdrawn as of the date of
such termination;
11.2 Breakup Fee; Acquisition Proposals.
(a) Seller shall pay to Buyer a Breakup Fee (as defined herein), in
accordance with the terms of this Section 11.2, in the event that (i) this
Agreement is terminated by Buyer pursuant to Section 11.1(e), (ii) as of the
date of such termination Seller's Limited Partners shall have given their
consent to an Acquisition Proposal submitted by a third party; and (iii) Buyer
shall have performed and complied in all material respects with all covenants
and agreements required to be performed or complied with by it under this
Agreement during the period prior to the first to occur of (x) the date on which
Seller's Limited Partners shall have either disapproved the transactions
contemplated by this Agreement or given their consent to an Acquisition Proposal
submitted by a third party, or (y) the first-occurring date of termination of
the Voting Period of Seller during which the Limited Partner Consents for Seller
shall not have been obtained. Seller shall pay the Breakup Fee to Buyer by wire
transfer of immediately available funds or by certified check (in accordance
with Buyer's written instructions) within five (5) Business Days following the
date of termination pursuant to Section 11.1(e). For purposes hereof, the
"Breakup Fee" means $357,142.
(b) In the event that the Closing does not occur and this Agreement
is terminated solely as a result of the failure to satisfy the conditions to
Closing set forth in Sections 7.7 and 8.6, and within six (6) months following
the termination of the applicable Voting Period, Seller receives an Acquisition
Proposal from a third party, which Acquisition Proposal Seller intends to submit
to its Limited Partners for their approval, Seller shall notify Buyer in writing
of the price and other material terms of such Acquisition Proposal, and Buyer
shall be entitled, within five (5) Business Days of such notification, to submit
a Buyer Acquisition Proposal.
11.3 Reimbursement of Expenses. In the event that (i) this Agreement is
terminated by Buyer pursuant to Section 11.1(e), (ii) as of the date of such
termination Seller's Limited Partners shall not have given their consent to an
Acquisition Proposal submitted by a third party; and (iii) Buyer shall have
performed and complied in all material respects with all covenants and
agreements required to be performed or complied with by it under this Agreement
during the period prior to the first to occur of (x) the date on which any
Seller's Limited Partners shall have disapproved the transactions contemplated
by this Agreement, or (y) the first-occurring date of termination of the Voting
Period of Seller Partner during which the Limited Partner Consents for Seller
shall not have been obtained, Seller will reimburse Buyer for Buyer's actual
out-of-pocket costs and expenses incurred in connection with the negotiation and
performance of this Agreement.
17
11.4 Surviving Obligations. In the event of termination of this Agreement
by either Buyer or Seller pursuant to this Section 11, prompt written notice
thereof shall be given to the other party or parties; and this Agreement shall
terminate without further action by any of the parties hereto, and all
obligations of the parties hereunder with respect to which this Agreement is
terminated shall terminate, except for the obligations set forth in Sections
11.2, 11.3, 11.5, 12 and 21.
11.5 Attorney's Fees. Notwithstanding any provision in this Agreement
that may limit or qualify a party's remedies, in the event of a default by any
party that results in a lawsuit or other proceeding for any remedy available
under this Agreement, the prevailing party shall be entitled to reimbursement
from the defaulting party of its reasonable legal fees and expenses.
12. Expenses.
Except as otherwise provided in this Agreement, each party shall pay its
own expenses incurred in connection with the authorization, preparation,
execution and performance of this Agreement, including all fees and expenses of
counsel, accountants, agents and other representatives.
13. Entire Agreement.
Buyer and Seller agree that this Agreement, including the Schedules and
all Exhibits hereto and any other written document or instrument delivered in
connection herewith, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior understandings and
agreements with respect thereto.
14. Parties Obligated and Benefited.
Subject to the limitations set forth below, this Agreement will be binding
upon the parties and their respective assigns and successors in interest and
will inure solely to the benefit of the parties and their respective assigns and
successors in interest, and no other Person will be entitled to any of the
benefits conferred by this Agreement. Without the prior written consent of the
other parties, no party will assign any of its rights under this Agreement or
delegate any of its duties under this Agreement. Notwithstanding the foregoing,
Buyer shall have the right, without Seller's prior consent, to assign this
Agreement, in whole or in part to any Affiliate of Buyer, provided such
assignment is not reasonably expected to cause a delay of the consummation of
the transactions contemplated by this Agreement, and that in the event of any
such assignment Buyer shall remain liable for payment of the full Purchase Price
as provided in this Agreement.
15. Notices.
All notices, requests, consents, and other communications under this
Agreement shall be in writing and shall be delivered in person or mailed by
first-class certified or registered mail, return receipt requested, postage
prepaid, by reputable overnight mail or courier or by telecopier, in either
case, with receipt confirmed, addressed as follows:
18
If to Seller: Enstar Communications Corporation
12405 Powerscourt Drive
St. Louis, MO 63131
Telephone: (314) 965-0555
Telecopy: (314) 965-0571
Attention: Ralph G. Kelly, Senior Vice President - Treasurer
With a copy to: Brown Raysman Millstein Felder and Steiner LLP
900 Third Avenue
New York, NY 10022
Telephone: (212) 895-2000
Telecopy: (212) 895-2900
Attention: Stanley E. Bloch, Esq.
and
If to Buyer: Charter Communications
12405 Powerscourt Dr.
St. Louis, Missouri 63131
Telephone: (314) 965-0555
Telecopy: (314) 965-6492
Attention: David Busker
With a copy to: Marcy Lifton, Esq.
12405 Powerscourt Drive
St. Louis, MO 63131
Telephone: (314) 543-2414
Telecopy: (314) 965-6640
or at such other address or addresses as may have been furnished in writing by
any party to the others in accordance with the provisions of this Section 15.
Notices and other communications provided in accordance with this Section 15
shall be deemed delivered upon receipt. The furnishing of any notice or
communication required hereunder may be waived in writing by the party entitled
to receive such notice. Failure or delay in delivering copies of any notice to
persons designated above to receive copies shall in no way adversely affect the
effectiveness of such notice or communication.
16. Amendments and Waivers.
Except as otherwise expressly set forth in this Agreement, any term of
this Agreement may be amended and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of Seller and
Buyer. Any amendment or waiver effected in accordance with this Section 16 shall
be binding upon each party. No waivers of or exceptions to any term, condition
or provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
19
17. Severability.
If any provision of this Agreement shall be held or deemed to be, or shall
in fact be, invalid, inoperative or unenforceable because of the conflict of
such provision with any constitution or statute or rule of public policy or for
any other reason, such circumstance shall not have the effect of rendering any
other provision or provisions herein contained invalid, inoperative or
unenforceable, but this Agreement shall be reformed and construed as if such
invalid, inoperative or unenforceable provision had never been contained herein
and such provision reformed so that it would be valid, operative and enforceable
to the maximum extent permitted. In addition, nothing in this contract shall be
construed as imposing joint and several liability upon the respective entities
comprising Buyer.
18. Section Headings and Terms.
The section headings in this Agreement are for convenience and reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument, and shall become effective when counterparts which together
contain the signatures of each party hereto shall have been delivered to Seller
and Buyer.
20. Governing Law; Consent in Jurisdiction.
This Agreement shall be governed by and construed and enforced in
accordance with the law (without giving effect to the law governing the
principles of conflicts of law) of the State of New York.
21. Specific Performance.
The parties hereto acknowledge that money damages are not an adequate
remedy for violations of this Agreement and that any party may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
or injunctive or other relief (without the posting of any bond or other
security) as such court may deem just and proper in order to enforce this
Agreement or prevent any violation hereof by any of the parties hereto and, to
the extent permitted by applicable Legal Requirements, each party hereof waives
any objection to the imposition of such relief. Any such specific or equitable
relief granted shall not be exclusive and an Indemnitee shall also be entitled
to seek money damages.
20
IN WITNESS WHEREOF, the parties have executed this Asset Purchase
Agreement as of the date and year first above written.
BUYER:
CHARTER COMMUNICATIONS ENTERTAINMENT I, LLC
By: /s/Curtis S. Shaw
---------------------------------------------
Name: Curtis S. Shaw
Title: Senior Vice President
SELLER:
ENSTAR INCOME PROGRAM II-1, L.P.
By: Enstar Communications Corporation,
---------------------------------------------
its General Partner
By: /s/Ralph G. Kelly
---------------------------------------------
Name: Ralph G. Kelly
Title: Senior Vice President
EXECUTION VERSION
ASSET PURCHASE AGREEMENT
BY AND AMONG
ENSTAR INCOME PROGRAM II-1, L.P.,
AS SELLER,
AND
CHARTER COMMUNICATIONS ENTERTAINMENT I, LLC,
AS BUYER
Dated as of April 10, 2002
LIST OF EXHIBITS AND SCHEDULES
Exhibits
A Form of Bill of Sale and Assignment and Assumption Agreement
Schedules
1.1 Allocation of Purchase Price and Indemnity Fund;
Minimum Subscriber Numbers & Adjustment Amounts
2.1(a)(i) Contracts and Governmental Authorizations
2.1(a)(iii) Real Property Interests
8.3 Material Consents