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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, made as of the 29th day of August, 2001, is by
and among Charter Communications Entertainment I, LLC, Interlink Communications
Partners, LLC and Rifkin Acquisitions Partners, LLC each a Delaware limited
liability company (collectively "Buyers," and each individually, a "Buyer"), and
Enstar Income Program II-1, L.P., a Georgia limited partnership, Enstar Income
Program II-2, L.P., a Georgia limited partnership, Enstar Income Program IV-3,
L.P., a Georgia limited partnership, Enstar Income/Growth Program Six-A, L.P., a
Georgia limited partnership, Enstar IV/PBD Systems Venture, a Georgia general
partnership and Enstar Cable of Macoupin County, a Georgia general partnership
(collectively, "Sellers," and each individually, a "Seller").
W I T N E S S E T H:
WHEREAS, Sellers own and operate cable television Systems (as
hereinafter defined) serving areas in and around Taylorville, Hillsboro, Flora,
Macoupin, Shelbyville and Mt. Carmel, Illinois ("Systems"), and propose to
convey them to Buyers, as more particularly described in Schedule 1.1 hereto;
WHEREAS, Sellers have agreed to sell to Buyer, and Buyer has
agreed to purchase, substantially all of Sellers' respective assets comprising
or used or usable in connection with their operation of their respective
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, Sellers and Buyers 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 Sellers 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.
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"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.
"General Partner" means each general partner of each of the
General Partnerships.
"General Partner Consents" means the written consents of the
General Partners that are necessary for the consummation of the transactions
contemplated by this Agreement by each of the General Partnerships in accordance
with the terms hereof, which shall be in form and substance satisfactory to such
General Partnership.
"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 each
Limited Partnership and each of the limited partners in each General Partner.
"Limited Partner Consents" means the written consents of the
Limited Partners of each Seller that is a Limited Partnership, or in the case of
a Seller that is a General Partnership, the General Partner thereof, that are
necessary for the consummation of the transactions contemplated by this
Agreement by such Seller in accordance with the terms hereof, which shall be in
form and substance satisfactory to such Seller.
"Limited Partnership" means each of the Sellers that is
identified in the preamble hereto as a limited partnership.
"Material Adverse Effect" means a material adverse effect on
any of the business, financial condition, results of operations, assets or
liabilities of any Seller or the Systems, taken as a whole.
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"Material Consents" means the Required Consents designated as
Material Consents in Schedule 8.3.
"Minimum Subscriber Number" means, with respect to a System,
the Minimum Subscriber Number with respect to such System set forth in Schedule
1.1.
"Outside Closing Date" means February 28, 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 the applicable 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) 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 the applicable 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
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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 any Seller are entitled to vote to approve or disapprove the
transactions contemplated by this Agreement with respect to such Seller.
"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, each Seller
agrees to sell, assign, transfer, convey and deliver to the designated Buyer,
and each Buyer agrees to purchase and acquire from the designated Seller, all
right, title and interest of such 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 such 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 Sellers 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 Sellers' 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;
(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);
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(iv) all accounts receivable of Sellers relating to
their 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 Sellers and rights and claims
thereunder;
(iii) bonds, letters of credit, surety instruments and
other similar items of Sellers;
(iv) cash and cash equivalents and notes receivable of
Sellers;
(v) Sellers' trademarks, trade names, service marks,
service names, logos and similar proprietary rights;
(vi) Sellers' minute books and other books and records
related to internal matters, corporate matters and financial relationships with
Sellers' 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 Sellers 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 Sellers 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 Sellers to the
extent there is a reduction in the Purchase Price with respect thereto; and
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(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.
All other obligations and liabilities of Sellers, 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 Sellers.
3. Closing.
3.1 Purchase Price. The aggregate purchase price payable for the
Assets shall be Sixty-Three Million Dollars ($63,000,000), 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). The Purchase Price shall be allocated among the Sellers as set forth in
Schedule 1.1.
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
Sellers 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 Sellers, the
Purchase Price, in immediately available funds by wire, inter-bank or intra-bank
transfer to Sellers in accordance with Sellers' written instructions.
3.3 Adjustment of Purchase Price.
(a) The Purchase Price payable to each 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 such Seller's Systems for any
period prior to such time on the Closing Date are for the account of the
applicable Seller, and all revenues and refunds, and all costs, expenses and
liabilities (other than liabilities and obligations under contracts or other
obligations of such Seller that Buyer does not assume) attributable to the
operation of such 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 each 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 the
applicable 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,
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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:
(A) the amount of all subscriber prepayments, credit
balances and deposits held by Seller as of the Closing Date with respect to such
Seller's Systems;
(B) all accrued and unpaid expenses relating to the
ownership or operation of such Seller's Assets and Systems, including accrued
and unpaid franchise fees (which accrued and unpaid expenses shall be prorated
between such 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 such Seller's Systems is less than the Minimum
Subscriber Number for such System, the product of (i) $2,258.00 and (ii) the
number of Subscribers by which the number of Subscribers served by a 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 Sellers hired by
Buyers, accrued obligations for vacation and sick days, subject to Section
6.4(c); and
Sellers shall deliver to Buyer a certificate signed by Sellers (the "Pre-Closing
Certificate"), which shall specify each Seller's good faith best estimate of the
adjustments to the Purchase Price payable to such Seller required under this
Section 3.3(a), calculated as of the Closing Date. Within 90 days after the
Closing Date, each Buyer shall deliver to Sellers a certificate signed by such
Buyer (the "Post-Closing Certificate"), which shall set forth such Buyer's final
adjustments to the Purchase Price payable to each 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 such Buyer's determination thereof; and,
thereafter, such Buyer shall provide each Seller with such other documentation
relating to the Post-Closing Certificate as such Seller may reasonably request.
If
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a 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, such Seller shall, within thirty (30) days after its
receipt of the Post-Closing Certificate, serve the applicable Buyer with a
written description of the disputed items together with such documentation as
such Buyer may reasonably request. If any Seller notifies a Buyer of its
acceptance of the amounts set forth in the Post-Closing Certificate, or if a
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 such Seller shall be conclusive, final and
binding on such Buyer and such Seller as of the last day of such thirty (30)-day
period. If a Buyer and any Seller cannot resolve any dispute within thirty (30)
days after a Buyer's receipt of such Seller's written objection, such Buyer and
such 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 the applicable Seller.
The cost of retaining such firm shall be borne one-half by Buyer and one-half by
such Seller. Such firm shall report its determination in writing to the
applicable Buyer and Seller, and such determination shall be conclusive and
binding on such Buyer and Seller and shall not be subject to further dispute or
review.
(b) If, as a result of any resolution reached by any
Buyer and Seller, or any determination made by an accounting firm, in either
case pursuant to Section 3.3(b), a Buyer is finally determined to owe any amount
to any Seller, or any Seller is finally determined to owe any amount to a Buyer,
the obligor shall pay such amount to the other party hereto within three (3)
Business Days of such determination. Notwithstanding the foregoing, a Buyer
shall pay to the applicable Seller or such Seller shall pay to the applicable
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, each
Buyer and each 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. Each Buyer and each Seller will use
good faith efforts to agree on the allocation, for tax reporting purposes, of
the Purchase Price payable to such Seller among the Assets being conveyed by
such 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 Sellers.
Each Seller hereby represents and warrants to Buyers 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.
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(a) Each Seller is a limited partnership or general
partnership (as indicated in the preamble hereto) 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. Each 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 each Limited Partnership and of each of the General Partners. 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 and the General Partner Consents, all
requisite limited partnership or general partnership action, as the case may be,
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 or, if Seller is a
General Partnership, on behalf of each General Partner thereof. Subject to
obtaining the Limited Partner Consents and the General 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.
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 and
General Partner Consents are obtained and the applicable waiting period(s) under
the HSR Act shall have expired or been terminated) will not (a) violate (i)
Seller's certificate of formation or limited partnership agreement, if Seller is
a Limited Partnership, or (ii) Seller's general partnership agreement, if Seller
is a General Partnership; (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
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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 Sellers, neither
Sellers 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. Sellers agree 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 Buyers.
Each Buyer hereby represents and warrants to Sellers 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. Each 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 (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
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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 Sellers and Buyer.
6.1 Continuity and Maintenance of Operations. Except as the
designated Buyer may otherwise agree in writing, until the Closing each 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 2001 and 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 any Seller acquires actual knowledge before
the Closing Date that a material breach of any of Sellers' 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 the
applicable 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 Regulatory Filings. As soon as may be reasonably practicable,
Buyer and Sellers shall make such filings as are required by the pre-merger
notification rules issued under the HSR Act. Buyer and the applicable Sellers
shall share equally all filing fees associated with each HSR filing required in
connection with this Agreement. Each Party shall use reasonable efforts to
obtain the earliest termination or waiver of the HSR Act waiting period.
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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
Sellers' employees who render services to the Systems as Buyer shall determine,
in its sole and absolute discretion. Prior to Closing each 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. Each
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 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) Each 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 such Seller to
the extent that such continuation coverage is required to be provided by such
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) Each 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
Sellers.
6.5 Required Consents.
(a) Following the execution hereof, until the Closing Date,
each Seller shall use commercially reasonable efforts, and Buyer shall cooperate
in good faith with Sellers, to obtain all Required Consents. Each 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 such 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 Sellers, provided
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that Sellers 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 Sellers have 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 any Seller shall be shared
equally by Buyer and such Seller. Buyer and Sellers will cooperate in all
reasonable respects to prepare and file all 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. Sellers 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. Sellers 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, the Limited Partnerships and the
General Partners shall, if required to do so under applicable Legal
Requirements, file with the Securities and Exchange Commission ("SEC") proposed
proxy materials relating to the Limited Partnerships' and the General Partners'
solicitation of the Limited Partner Consents. Each Limited Partnership and
General Partner shall use reasonable efforts (i) to have such proxy materials
cleared by the (if applicable) so as to enable it to disseminate definitive
proxy materials to its respective Limited Partners, (ii) to disseminate such
materials, upon receipt of SEC clearance (if applicable), to its respective
Limited Partners and (iii) thereafter to obtain the Limited Partner Consents.
Sellers 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, any Seller or any Person acting on behalf of any Seller
receives a solicitation from a third party regarding an Acquisition Proposal (as
defined herein), which Acquisition Proposal such Seller intends to submit to its
respective Limited Partners (or the Limited Partners of its General
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Partner, as the case may be) for their approval, such 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 Sellers or General Partner, 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 any Seller sufficient to give such
third party voting control over the applicable 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 Sellers. The representations
and warranties of Sellers 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.
7.2 Covenants. Each 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
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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. Sellers shall have
furnished to Buyer the following:
(a) a certificate of the Secretary or Assistant Secretary of
each Seller or, if applicable, such 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 such Seller;
(b) in the case of each Seller that is a Limited Partnership,
a certificate of good standing of such 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 Sellers 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 Sellers;
(e) a deed, in form and substance reasonably satisfactory to
the applicable Seller and Buyer, conveying title to each parcel of real property
owned by such 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.
7.7 General and Limited Partner Consents. The General Partner
Consents and 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.
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8. Conditions Precedent to Sellers' Obligations.
The obligations of Sellers 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
Sellers 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 General and Limited Partner Consents. The General Partner
Consents and the Limited Partner Consents shall have been obtained.
8.7 Delivery of Certificates and Documents. Buyer shall have
furnished to Sellers the following:
(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;
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(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;
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 any 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 the applicable Seller shall conduct a closing (each, a
"Subsequent Closing") at which such Seller shall assign, transfer, convey and
deliver to Buyer, and Buyer shall acquire from such 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 the applicable Seller, the Franchise Purchase Price with
respect to such Retained Franchise and any such Retained Assets; and (ii) Buyer
or the applicable 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.
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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
such Seller shall assign, transfer, convey and deliver to Buyer, and Buyer shall
acquire from such 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
the applicable 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, each Buyer
agrees to indemnify and hold harmless each Seller, its shareholders, directors,
members and 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 such 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, each Seller
agrees to indemnify and hold harmless each 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 such 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 such
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, each Buyer
agrees to indemnify and hold harmless each Seller, its shareholders, directors,
members and 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.
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(a) If Buyer, on the one hand, or any 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.
(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 Sellers and Buyer;
(b) By either Sellers 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
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(c) By either Sellers 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 Sellers 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 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 any Limited Partnership or any General Partner, as the case may be,
shall have affirmatively disapproved the transactions contemplated by this
Agreement (unless the Limited Partners holding fifty percent (50%) or more of
the Interests of such Limited Partnership or General Partner 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 any Limited Partnership
or General Partner, as the case may be, 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 applicable to any
Limited Partnership or General Partner, the Limited Partner Consents of such
Limited Partnership or General Partner 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) Each 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 any Limited Partnership's or General Partner'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 any Limited Partnership's or General Partner'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 any Limited Partnership or General Partner during which the Limited
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Partner Consents for such Limited Partnership or General Partner shall not have
been obtained. Sellers 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"
with respect to any Seller means a pro rata portion of the aggregate amount of
$1,500,000, which shall be determined by allocating the amount of $1,500,000
among Sellers based on the allocation of the aggregate Purchase Price among
Sellers.
(b) In the event that the Closing does not occur and this
Agreement is terminated with respect to a Seller solely as a result of the
failure to satisfy the conditions to Closing set forth in Sections 7.9 and 8.6
with respect to such Seller, and within six (6) months following the termination
of the applicable Voting Period, such Seller receives an Acquisition Proposal
from a third party, which Acquisition Proposal such Seller intends to submit to
its or its General Partner's respective Limited Partners, as the case may be,
for their approval, such 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 no Limited Partnership's or General Partner'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 any Limited Partnership's or General Partner'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 any
Limited Partnership or General Partner during which the Limited Partner Consents
for such Seller shall not have been obtained, such Seller(s) or General
Partner(s) for which the Limited Partner Consents shall not have been obtained
will reimburse Buyer for Buyer's actual out-of-pocket costs and expenses
incurred in connection with the negotiation and performance of this Agreement.
11.4 Surviving Obligations. In the event of termination of this
Agreement by either Buyer or Sellers 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.
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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 Sellers 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 Sellers' 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:
If to any 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
22
23
With a copy to: Baer Marks & Upham LLP
805 Third Avenue
New York, NY 10022
Telephone: (212) 702-5700
Telecopy: (212) 702-5941
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 Sellers 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.
23
24
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.
24
25
IN WITNESS WHEREOF, the parties have executed this Asset Purchase
Agreement as of the date and year first above written.
BUYERS:
CHARTER COMMUNICATIONS
ENTERTAINMENT I, LLC
By:
---------------------------------------------------
Name: Curtis S. Shaw
Title: Senior Vice President
INTERLINK COMMUNICATIONS PARTNERS,
LLC
By:
---------------------------------------------------
Name: Curtis S. Shaw
Title: Senior Vice President
RIFKIN ACQUISITION PARTNERS, LLC
By:
---------------------------------------------------
Name: Curtis S. Shaw
Title: Senior Vice President
SELLERS:
ENSTAR INCOME PROGRAM II-1, L.P.
By: Enstar Communications Corporation,
its General Partner
By:
------------------------------------------
Name: Ralph G. Kelly
Title: Senior Vice President
ENSTAR INCOME PROGRAM II-2, L.P.
By: Enstar Communications Corporation,
its General Partner
By:
------------------------------------------
Name: Ralph G. Kelly
Title: Senior Vice President
26
ENSTAR INCOME PROGRAM IV-3, L.P.
By: Enstar Communications Corporation,
its General Partner
By:
------------------------------------------
Name: Ralph G. Kelly
Title: Senior Vice President
27
ENSTAR INCOME/GROWTH PROGRAM
SIX-A, L.P.
By: Enstar Communications Corporation,
its General Partner
By:
------------------------------------------
Name: Ralph G. Kelly
Title: Senior Vice President
ENSTAR CABLE OF MACOUPIN COUNTY
By: Enstar Income Program IV-I, L.P.,
General Partner
By: Enstar Communications Corporation,
its General Partner
By:
---------------------------------
Name: Ralph G. Kelly
Title: Senior Vice President
ENSTAR IV/PBD-SYSTEMS VENTURES
By: Enstar Communications Corporation,
its General Partner
By:
---------------------------------
Name: Ralph G. Kelly
Title: Senior Vice President
28
EXECUTION VERSION
ASSET PURCHASE AGREEMENT
BY AND AMONG
ENSTAR INCOME PROGRAM II-1, L.P.,
ENSTAR INCOME PROGRAM II-2, L.P.,
ENSTAR INCOME PROGRAM IV-3, L.P.,
ENSTAR INCOME/GROWTH PROGRAM SIX-A, L.P.,
ENSTAR CABLE OF MACOUPIN COUNTY, AND
ENSTAR IV/PBD SYSTEMS VENTURE
AS SELLERS,
AND
CHARTER COMMUNICATIONS ENTERTAINMENT I, LLC,
INTERLINK COMMUNICATIONS PARTNERS, LLC
RIFKIN ACQUISITION PARTNERS, LLC
AS BUYER
Dated as of August 29, 2001
29
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
30
SCHEDULE 1.1
ALLOCATION OF PURCHASE PRICE AND INDEMNITY FUND;
MINIMUM SUBSCRIBER NUMBERS & ADJUSTMENT AMOUNTS
MINIMUM SUBSCRIBER
SELLER OR PURCHASE INDEMNITY SUBSCRIBER ADJUSTMENT
GROUP LOCATION PRICE PERCENT FUND NUMBER AMOUNT BUYER*
- --------------- -------- ----- ------- ---- ------ ------ ------
Enstar Six-A Flora, IL $12,674,516 21.7% $ 663,726 5613 $2,258 RAP
Enstar Mt. Carmel, $ 5,080,645 8.1% $ 254,032 2250 $2,258 ICP
IV/PBD IL
Enstar II-2 Hillsboro, $13,541,613 21.5% $ 677,081 5997 $2,258 CCE-1
IL
Enstar Cable Macoupin, $ 9,359,677 14.9% $ 467,984 4145 $2,258 CCE-1
of Macoupin IL
County
Enstar IV-3 Shelbyville, $ 7,636,774 12.1% $ 381,839 3382 $2,258 CCE-1
IL
Enstar II-1 Taylorville, $14,706,774 23.3% $ 735,339 6513 $2,258 CCE-1
IL
------
TOTAL $63,000,000 100.0% 3,150,000 27,900 $2,258
======
*RAP - Rifkin Acquisition Partners, LLC
ICP - Interlink Communications Partners, LLC
CCE-1 - Charter Communications Entertainment I, LLC
31
SCHEDULE 2.1(A)(I)
CONTRACTS AND GOVERNMENTAL AUTHORIZATIONS
GOVERNMENTAL AUTHORIZATIONS
ENSTAR INCOME PROGRAM II-1, L.P.
TAYLORVILLE, IL
Christian County (Taylorville)
Franchise Term: 15 years
Expiration Date: 6/12/12
Consent Required: Yes
East Gillespie (Village of)
Franchise Term: 15 years
Expiration Date: 7/05/08
Consent Required: Requires 30 days' notice to franchising authority; consent not
required provided franchising authority is provided reasonable showing that
buyer has technical and financial qualifications to operate system, and buyer
agrees to comply with material terms of franchise.
Gillespie (City of)
Franchise Term: 15 years
Expiration Date: 12/12/09
Consent Required: Yes
Litchfield (City of)
Franchise Term: 10 years (5 year extension)
Expiration Date: 2/10/10
Consent Required: Yes
Owaneco (Village of)
Franchise Term: 15 years
Expiration Date: 4/10/04
Consent Required: No; requires buyer to file instrument notifying Village of
transfer and agreeing to perform all conditions of franchise.
Taylorville (City of)
Franchise Term: None stated in Franchise Agreement
Expiration Date: 12/31/01
Consent Required: Yes
Tower Licenses:
Taylorville
99-AGL-2515-OE (FAA)
32
Litchfield
99-AGL02516-OE (FAA)
1008892 (FCC)
Business Radio License:
Taylorville
WSO338
Consent Required: Yes
ENSTAR INCOME PROGRAM II-2, L.P.
HILLSBORO, IL
Christian County (Hillsboro)
Franchise Term: 15 years
Expiration Date: 6/12/12
Consent Required: Yes
Coalton (City of)
Franchise Term: 15 years (15 year extension)
Expiration Date: 3/21/99
Consent Required: Yes
Hillsboro (City of)
Franchise Term: 15 years
Expiration Date: 3/27/99
Consent Required: Yes
Jerseyville (City of)
Franchise Term: 7.5 years (7.5 year extension)
Expiration Date: 3/30/09
Consent Required: Yes
Nokomis (City of)
Franchise Term: 15 years
Expiration Date: 6/24/00
Consent Required: Yes
Pana (City of)
Franchise Term: 15 years
Expiration Date: 4/07/08
Consent Required: Yes
Schram City (City of)
Franchise Term: 25 years (extendable for successive 15 year term)
Expiration Date: 2/4/05
Consent Required: Yes
33
Taylor Springs (Village of)
Franchise Term: 25 years (25 year extension)
Expiration Date: 6/20/03
Consent Required: Yes
Witt (City of)
Franchise Term: 8 years
Expiration Date: 12/16/01
Consent Required: Requires 30 days' notice to franchising authority; consent not
required provided franchising authority is provided reasonable showing that
buyer has technical and financial qualifications to operate system, and buyer
agrees to comply with material terms of franchise.
Tower Licenses:
Hillsboro
99-AGL-2511-OE (FAA)
Nokomis
99-AGL-2502-OE (FAA)
1200926 (FCC)
Jerseyville
99-AGL-2517-OE (FAA)
Pana
99-AGL-2510-OE (FAA)
1205586 (FCC)
ENSTAR INCOME PROGRAM IV-3, L.P.
SHELBYVILLE, IL
Fairfield (City of)
Franchise Term: 20 years
Expiration Date: 5/31/00
Consent Required: Yes
Geff (Village of)
Franchise Term: 15 years
Expiration Date: 4/03/04
Consent Required: No; requires buyer to file instrument notifying Village of
transfer and agreeing to perform all conditions of franchise.
Shelby County
Franchise Term: 15 years
Expiration Date: 2/11/01
Consent Required: Yes
34
Shelbyville (City of)
Franchise Term: 10 years
Expiration Date: 10/03/04
Consent Required: Yes
Tower Licenses:
Shelbyville
99-AGL-2503-OE (FAA)
Fairfield
99-AGL-2507-OE (FAA)
ENSTAR INCOME/GROWTH PROGRAM SIX-A, L.P.
FLORA, IL
Cisne (Village of)
Franchise Term: 10 years
Expiration Date: 12/12/04
Consent Required: Requires 30 days' notice to franchising authority; consent not
required provided franchising authority is provided reasonable showing that
buyer has technical and financial qualifications to operate system, and buyer
agrees to comply with material terms of franchise.
Farmersville (Village of)
Franchise Term: 15 years (10 year extension)
Expiration Date: 10/05/96
Consent Required: Yes
Flora (City of)
Franchise Term: 15 years
Expiration Date: 9/19/93
Consent Required: Yes
Junction City (Village of)
Franchise Term: 15 years (extension indefinite)
Expiration Date: 8/9/97
Consent Required: Yes
Noble (Village of)
Franchise Term: 15 years (extension indefinite)
Expiration Date: 11/24/98
Consent Required: Yes
Odin (Village of)
Franchise Term: 15 years
Expiration Date: 3/12/95
Consent Required: Yes
35
Raymond (Village of)
Franchise Term: 10 years
Expiration Date: 8/02/09
Consent Required: Yes
Salem (City of)
Franchise Term: 7 years (3 year extension)
Expiration Date: 6/15/05
Consent Required: Yes
Sandoval (Village of)
Franchise Term: 15 years
Expiration Date: 11/07/09
Consent Required: Yes
Xenia (Village of)
Franchise Term: 15 years
Expiration Date: 6/15/97
Consent Required: Yes
Tower Licenses:
Cisne
99-AGL-2518-OE (FAA)
Farmersville
99-AGL-2513-OE (FAA)
Flora
1203253 (FCC)
99-AGL-2519-OE (FAA)
Noble
99-AGL-2505-OE (FAA)
Raymond
99-AGL-2514-OE (FAA)
Salem
99-AGL-2509-OE (FAA)
1201983 (FCC)
Xenia
99-AGL-2504-OE (FAA)
36
Business Radio Licenses:
Salem
KM6774
KWA782
WDM723
KM6774
Consent Required: Yes (all)
ENSTAR IV/PBD SYSTEMS VENTURE
MT. CARMEL, IL
Mt. Carmel (City of)
Franchise Term: month-to-month
Expiration Date: 12/31/93
Consent Required: Yes
Tower Licenses:
99-AGL-2508-OE (FAA)
1204247 (FCC)
ENSTAR CABLE OF MACOUPIN COUNTY
MACOUPIN, IL
Auburn (City of)
Franchise Term: None stated in franchise agreement
Expiration Date: 12/31/04
Consent Required: Yes
Carlinville (City of)
Franchise Term: 7 years (5 yr ext.)
Expiration Date: 12/21/05
Consent Required: Yes
Girard (City of)
Franchise Term: 15 years
Expiration Date: 12/01/97
Consent Required: Yes
Nillwood (Village of)
Franchise Term: 15 years
Expiration Date: 5/08/04
Consent Required: No; buyer to file instrument notifying Village of transfer and
agreeing to perform all conditions of franchise.
37
Sunset Lakes (Community of)
Franchise Term: 15 years
Expiration Date: 12/31/03
Consent Required: No
Thayer (City of)
Franchise Term: 15 years
Expiration Date: 12/08/95
Consent Required: No (notice required)
Virden (City of)
Franchise Term: 15 years (7 yr. ext.)
Expiration Date: 1/03/98
Consent Required: No; requires 30 days' written notice to City and requires
buyer to file instrument reciting fact of the sale, accepting terms of franchise
and agreeing to perform all conditions thereof.
Tower Licenses:
Virden
99-AGL-2512-OE (FAA)
1200832 (FCC)
Carlinville
99-AGL-2506-OE (FAA)
Radio Licenses:
Virden
WNMX376
Consent Required: Yes
CONTRACTS/AGREEMENTS
ENSTAR INCOME PROGRAM II-1, L.P.
TAYLORVILLE, IL
Retransmission Consent Agreements:
KSDK (NBC) Multi*
WRSP (FOX Multi*
WAND (ABC) Multi*
WICS (NBC) Multi*
WCIA (CBS) Multi*
*Multi = agreement covers multiple entities and systems.
38
Railway Crossing Agreement:
Railway Crossing Agreement with Chicago & Illinois Midland Railway Co. dated
February 28, 1986. Location: Between Laneyville and Taylorville, IL. Consent
required: Yes
Railway Crossing Agreement with Chicago & Illinois Midland Railway Co. dated
February 28, 1986. Location: City of Taylorville, IL, Crossing #1. Consent
required: Yes
Railway Crossing Agreement with Chicago & Illinois Midland Railway Co. dated
February 28, 1986 Location: City of Taylorville, IL Crossing #2. Consent
required: Yes
Pole Attachment Agreements:
1. Pole License Agreement between Enstar Income Program II-1, L.P. and
Illinois Power Co. dated September 24, 1993 (Litchfield) Consent
required: Yes
2. Pole License Agreement between Enstar Income Program II, 1, L.P. and
with Illinois Power Co. dated September 24, 1993 (Gillespie) Consent
required: Yes
3. Pole Lease Agreement with Central Illinois Public Service Co. dated
November 14, 1984 (Langleyville, IL) Consent required: Yes
4. Pole Lease Agreement with Central Illinois Public Service Co. dated
July 24, 1981 (Taylorville) Consent required: Yes
5. License Agreement between Enstar Income Program II-1, L.P. and Illinois
Consolidated Telephone Co. dated September 14, 1981 (Litchfield and
Taylorville)
6. Pole Attachment Agreement between Enstar Income Program II, 1, L.P. and
GTE North Inc. dated January 1, 1992 (Gillespie) Consent required: Yes
Pole Attachment/Conduit Agreement dated January 1, 1992
7. Agreement for Joint Use of Poles for Television Antenna Service
Attachments between Enstar Income Program II-2, L.P. and Rural Electric
Convenience Cooperative Co. dated June 11, 2001 (Christian County,
Village of East Gillespie, City of Gillespie, Litchfield, Owaneco, City
of Taylorville) Consent required: Yes
39
ENSTAR INCOME PROGRAM II-2, L.P.
HILLSBORO, IL
Retransmission Consent Agreements:
KSDK (NBC) Multi*
KTVI (FOX) Multi*
WICS (NBC) Multi*
WAND (ABC) Multi*
*Multi = agreement covers multiple entities and systems.
Pole Attachment Agreements:
1. Pole License Agreement between Enstar Income Program II-2, L.P. and
Illinois Power Co. dated September 24, 1993 (Hillsboro, Schram City,
Witt Taylor Springs and vicinity) Consent required: Yes
2. IL CATV Pole Lease Agreement between Enstar Income Program II-2, L.P.
and GTE North Inc. dated January 1, 1992 (Jerseyville) Consent
required: Yes
3. Pole Lease Agreement between Enstar Income Program II-2, L.P. and
Central Illinois Public Service Co. dated January 7, 1991 (Pana, IL)
Consent required: Yes
4. Pole Lease Agreement between Falcon Cablevision, a California Limited
Partnership and Central Illinois Public Service Co. dated December 28,
1991 (Jerseyville, IL) Consent required: Yes
5. Master Pole Agreement between Enstar Income Program II-2, L.P. and
Illinois Consolidated Telephone Co. dated September 9, 1981 (Coalton,
Hillsboro, Nokomis, Pana, Schram City, Taylor Springs, and Witt, IL;
Christian County) Consent required: Yes
6. Pole Lease Agreement between Enstar Income Program II-2, L.P. and
Central Illinois Public Service Co. dated August 22, 1984 (Jerseyville,
IL) Consent required: Yes
7. Pole Lease Agreement between Falcon Cablevision, a California Limited
Partnership and Central Illinois Public Service Co. dated October 4,
1984 (Coalton, IL) Consent required: Yes
8. Pole Lease Agreement between Enstar Income Program II-2, L.P. and
Central Illinois Public Service Co. dated March 27, 1981 (Nokomis, IL)
Consent required: Yes
40
ENSTAR INCOME PROGRAM IV-3, L.P.
SHELBYVILLE, IL
Retransmission Consent Agreements:
KSDK (NBC) Multi*
WAND (ABC) Multi*
WCIA (CBS) Multi*
WICS (CBS) Multi*
WRSP (FOX) Multi*
Railway Crossing Agreement:
Railway Crossing Agreement with S.I.R.S., Inc. dated January 25, 1996. Location:
Shelbyville, IL. Consent Required: No
License Agreement between Falcon Cable Corporation and SIRS, Inc. dated March 8,
2001 Location: City of Shelbyville, IL consent required: No
*Multi = agreement covers multiple entities and systems
Pole Attachment Agreements:
1. Pole License Agreement between Enstar Income Program VI-3, L.P. and
Shelby Electric Cooperative dated October 15, 1990 (Circle Park
Subdivision) Consent required: Yes
2. Pole License Agreement between Enstar Income Program VI-3, L.P. and
Shelby Electric Cooperative dated June 2, 1998 (Shelbyville, IL to
Taylorville, IL) Consent required: Yes
3. Illinois CATV Pole Lease Agreement between Enstar Income Program VI-3,
L.P. and GTE North Inc. dated January 1, 1992 (Fairfield, IL) Consent
required: Yes
4. Pole License Agreement between Enstar Income Program VI-3, L.P. and
Wayne White Counties Electric Cooperative dated November 4, 1986
(Consent required: Yes
5. Pole License Agreement between Enstar Income Program VI-4, L.P. as
successor in interest to Shelbyville Cable TV and Shelby Electric
Cooperative dated May 27, 1986 (Shelbyville) Consent required: Yes
6. Pole Lease Agreement between Enstar Income Program VI-3, L.P. and
Central Illinois Public Service Co. dated October 19, 1978
(Shelbyville) Consent required: Yes
41
ENSTAR INCOME/GROWTH PROGRAM SIX-A, L.P.
FLORA, IL
Retransmission Consent Agreements:
KFVS (CBS) Multi*
KPLR (WBN)
KSDK (NBC) Multi*
WEHT (ABC) Multi*
WFIE (NBC)
WTWV (FOX)
*Multi = agreement covers multiple entities and systems
Railway Crossing Agreement:
Wireline Crossing Agreement between CSX Transportation, Inc. and Enstar Cable
Corporation (Salem, Milepost 268) dated June 5, 1991
Pole Attachment Agreements:
1. Pole Lease Agreement between Enstar Income/Growth Program Six-A, L.P.
and Central Illinois Public Service Co. dated June 22, 1990
(Farmersville, IL and vicinity) Consent required: Yes
2. Pole Lease Agreement between Enstar Income/Growth Program Six-A, L.P.
and Central Illinois Public Service Co. dated June 22, 1990
(Farmersville, IL and vicinity) Consent required: Yes
3. Illinois CATV Pole Lease Agreement between Enstar Income/Growth Program
Six-A, L.P. and GTE North, Inc. dated January 1, 1992 (Flora) Consent
required: Yes
4. License Agreement between Enstar Income/Growth Program Six-A, L.P. and
Illinois Bell Telephone Co. dated February 2, 1982 (Salem and Junction
City, IL) Consent required: Yes
5. License Agreement between Enstar Income/Growth Program Six-A, L.P. and
Illinois Consolidated Telephone Co. dated October 23,1989 (Farmersville
and Raymond, IL) Consent required: Yes
6. Pole License Agreement between Enstar Income/Growth Program Six-A, L.P.
and Illinois Power Co. dated September 24, 1993 (Raymond and vicinity)
Consent required: Yes
42
7. Oral Contract between Enstar Income/Growth Program Six-A, L.P. as
successor in interest to Flora Cable TV Co. and Flora, Illinois,
receipt dated February 17, 1988 consent required: No
8. Pole Attachment Agreement between Enstar Income/Growth Program Six-A,
L.P. and Tri-County Electric Cooperative, Inc. dated May 4, 1989
(Salem, IL and vicinity) Consent required: Yes
9. Pole License Agreement between Enstar Cable Corporation and Odin
Telephone Co. dated January 1, 1990 (Odin and vicinity) Consent
required: Yes
10. Pole Attachment Agreement between Enstar Income Growth Program, L.P.
and Illinois Power Co. dated October 27, 1993 (Junction City, Odin,
Sandoval, Salem and vicinity) Consent required: Yes
ENSTAR IV/PBD SYSTEMS VENTURE
MT. CARMEL, IL
Retransmission Consent Agreements:
WEHT (ABC) Multi*
WEVV (CBS)
WFIE (NBC)
WTVW (FOX)
*Multi = agreement covers multiple entities and systems.
Pole Attachment Agreements:
1. CATV Pole Lease and Service Agreement between Enstar Communications
Corporation and Mt. Carmel Public Utility Co. dated May 28, 1974 (Mt.
Carmel, IL) Consent required: Yes
2. CATV Pole Lease Agreement between Enstar IV/PBD Systems Venture and GTE
North Inc. dated January 1, 1992 (the service areas of the Licensor
within the State of Illinois) Consent required: Yes
ENSTAR CABLE OF MACOUPIN COUNTY
MACOUPIN, IL
Retransmission Consent Agreements:
KTVI (FOX) Multi*
KSDK (NBC) Multi*
KDNL (ABC)
43
WCFN (CBS)
WHSL (HSN)
WICS (NBC)
*Multi = agreement covers multiple entities and systems.
Easements:
1. Community of Sunset Lakes, Macoupin County, Illinois Easement Agreement
with Sunset Lakes Association dated February 22, 1988. Consent
Required: Yes
Pole Attachment Agreements:
1. Pole Attachment Agreement between Enstar Cable of Macoupin county and
Central Illinois Public Service Co. dated June 21, 1982 (Thayer)
Consent required: No [missing contract]
2. Pole Attachment Agreement between Enstar Cable of Macoupin County and
Central Illinois Public Service Co. undated (Girard, IL) Consent
required: No [missing contract]
3. Pole Attachment Agreement between Enstar Cable of Macoupin County and
Central Illinois Public Service Co. undated (Virden, IL) Consent
required: No [missing contract]
4. Agreement for Joint Use of Electric System Poles between Enstar Cable
of Macoupin County as successor in interest to Macoupin County
Cablevision and M.J.M. Electric Cooperative, Inc. dated December 27,
1979 (Carlinville Township Area of Macoupin County) Consent required:
Yes
5. Pole License Agreement between Enstar Cable of Macoupin County and
Illinois Power Co. dated December 12, 1993 (Carlinville) Consent
required: Yes
6. CATV Pole Lease Agreement between Enstar Cable of Macoupin County and
GTE North Inc. dated December 17, 1990 (the service area of the
Licensor within the State of Illinois) Consent required: Yes
7. Pole Attachment Agreement between Enstar Communications Corporation and
Central Illinois Public Service Co. dated June 21, 1982 (Auburn, IL)
Consent required: No [missing contract]
8. Agreement for Joint Use of Poles for TV Antenna Service Attachments
between Enstar Communications Corporation and Rural Electric
Convenience Cooperative Co. dated November 23, 1987 (Sangamon County in
and adjacent to the villages of Thayer and Auburn and North Macoupin
County and Sunset Lake area) Consent required: Yes
44
SCHEDULE 2.1(A)(III)
REAL PROPERTY INTERESTS
ENSTAR INCOME PROGRAM II-1, L.P.
REAL PROPERTY OWNED
Nothing to Disclose
REAL PROPERTY LEASED
TAYLORVILLE, IL
1. 11 Clearing Avenue, Taylorville, IL Lease between Enstar Income/Growth
Program Six-A, L.P. and Robert W. and Sharyl A. Craggs dated October 1,
1992 (Office/warehouse) Consent required: Yes
ENSTAR INCOME PROGRAM II-2, L.P.
REAL PROPERTY OWNED
Nothing to Disclose
REAL PROPERTY LEASED
HILLSBORO, IL
1. Jersey Township, Jersey County, Illinois (Commencing at a steel shaft
driven in the Northeast corner of the South Half (s 1/2) of the
Southwest Quarter (SW !/4) of Section Fifteen (15), Township Eight (8)
North, Range Eleven (11) West of the Third Principal Meridian, thence
West along the South side of County Road 13983. Feet, thence South
216.7 feet to a point hereinafter referred to as the point of
beginning, thence West 250 feet thence South 250 feet thence East 250
feet thence North to the point of beginning and containing an area of
1/5 acres more or less) Lease between Enstar Income program II-2, L.P.
and Cletus and Karen Chappell dated April 12 1996 (Tower) Consent
required:
2. The Northeast Quarter (NE 1/4) of Section Three (3) excepting the part
thereof deeded for cemetery purposes being in Township Eight (8) North,
Range Four (4) West of the Third Principal Meridian Lease Agreement
between Enstar Income Program II-2, L.P. and Pete and Amy Cervi dated
January 1, 1994 (Headend) Consent required:
3. Township of Nokomis, Montgomery County, Illinois Agreement between
Enstar Income Program II,-2, L.P. as successor in interest to Cable TV
Fund VIII-C and Winifred H. Johnson dated November 1973 (Tower) Consent
required: No
45
ENSTAR INCOME PROGRAM IV-3, L.P.
REAL PROPERTY OWNED
Nothing to Disclose
REAL PROPERTY LEASED
SHELBYVILLE, IL
1. 205 South First Avenue, Fairfield, IL Lease between Enstar Cable
Corporation and BBR Investments dated July 1, 1993 (Office/Warehouse)
Consent required: Yes
2. Part of the Southwest Quarter (SW-1/4) of the Southwest Quarter
(SW-1/4) of Section Eight (8), Township Eleven (11) North, Range Four
(4) East of the Third Principal Meridian, Shelby County, IL Lease
between Enstar Communications Corporation and the City of Shelbyville
dated July 15, 1993 (Tower) Consent required: No
3. A part of Nine hundred (900) feet east and west by eight hundred ((800)
feet north and south out of the extreme Northwest corner of the
Southwest Quarter (SW 1/4) of the Northeast Quarter (NE 1/4) of Section
Thirty-one (31), Township One (1) South, Range Eight (8) East of the
Third Principal Meridian, Wayne County, IL Lease between Enstar Income
Program VI-3, L.P. as successor in interest to Fairfield Cable T.V.,
Inc. and Delbert and JoAnne Ellis dated August 16, 1984 (Tower) Consent
required: No
ENSTAR INCOME/GROWTH PROGRAM SIX-A, L.P.
REAL PROPERTY OWNED
FLORA, IL
1. A part of the northwest quarter of the southwest quarter of Section 7,
Township 10 North, Ranges 4 West of the Third Principal Meridian,
Montgomery County, IL (Headend)
REAL PROPERTY LEASED
FLORA, IL
1. A portion of the Southeast Quarter (SE 1/4) of the Southwest Quarter
(SW 1/4) of Section Three (3), Township Two (2) North, Range Five (5)
East of the Third Principal Meridian, in Clay County, IL Lease between
Enstar Income Growth Program Six-A, L.P. and the City of Xenia dated
July 1, 1983 (Headend) Consent required: Yes
46
2. A tract of land being a part of the North 1/2 of Section 16, Township 3
North, Range 9 East of the 3rd Principal Meridian, Richland County, IL
Lease between Enstar Income Growth Program Six-A, L.P. and the Village
of Noble dated June 1, 1983 (Headend) Consent required: Yes
3. A parcel of land lying in the northeast Quarter of the Northwest
Quarter of Section 34, Township 3 North, Range 6 East of the Third
Principal Meridian, Clay County, IL Lease Agreement between Enstar
Income/Growth Program Six-A, L.P. and Douglas L. Phillips Inter Vivos
Trust; Douglas L. Phillips, Trustee dated January 1, 1995 (Tower)
Consent required: Yes
4. Beginning at the Northeast corner of the Southeast Quarter (SE 1/4) of
the Northwest Quarter (NW 1/4) Section Twenty-one (21) Township One (1)
North, Range Seven (7) East of the Third Principal Meridian running
thence forty (40) rods, thence South Eight (8) rods, thence Ease forty
(4) rods, thence North eight (8) rods, to the place of beginning. Lease
between Enstar Income/Growth Program Six-A, L.P. and the Village of
Cisne, IL dated July 1, 1983 (Tower) Consent required: Yes
5. 208 South Walnut, Sale, IL Lease between Enstar Cable Corporation and
Douglas L. Phillips Inter Vivos Trust; Douglas L. Phillips, Trustee
dated July 1, 1994 (Office) Consent required: Yes
6. 112 and 114 East North Avenue, Flora, IL Lease between Enstar Cable
Corporation and Douglas L. Phillips Inter Vivos Trust, Douglas L.
Phillips, Trustee dated July 1, 1994 (Office) Consent required: Yes
7. A part of the East Half (E 1/2) of the Southeast Quarter (SE 1/4) of
Section 12, Town 2 North, Range 2 East of the Third P.M., Sale, IL
Lease between Enstar Income/Growth Program Six-A, L.P as successor in
interest to Salem T.V. & Cable Co., Inc. and Doy Meader dated December
31, 1983 (Tower) Consent required: No
REAL PROPERTY LEASED TO OTHERS
1. Sandoval, IL Tower Lease for Antenna Site between Enstar Income/Growth
Program Six-A, L.P. as successor in interest to Flora Cable TV and
McKeever Communications, Inc. dated March 8, 1988 (Tower space) Consent
required: No
2. Flora, IL Tower Lease between Enstar Income/Growth Program Six-A, L.P.
as successor in interest to Flora Cable TV, Inc. and Smith Operating
Company, Inc. dated February 20, 1982 (Tower space) consent required:
No
3. Flora, IL Tower - Radio Tower Lease Agreement between Enstar
Income/Growth Program Six-A, L.P. as successor in interest to Flora
Cable TV Company and Halliburton Services, A Division of Halliburton
Company dated June 13, 1983 (Tower space) Consent required: No
4. Salem, IL Tower Amended Lease between Enstar Income/Growth Program
Six-A, L.P. as successor in interest to Salem Cable TV Company and
Motorola Inc. dated January 19, 1988 (Tower space) Consent required: No
47
ENSTAR IV/PBD SYSTEMS VENTURE
REAL PROPERTY OWNED
Nothing to Disclose
REAL PROPERTY LEASED
MT. CARMEL, IL
1. Office #1, 214 Walnut Street, Mt. Carmel, IL Rental Agreement (month-to
month tenancy) between Enstar Cable and Thompson & Pettyjohn dated
April 1, 1990 (Office) Consent required: Yes
2. Poplar Street, Mt. Carmel, IL Surface Lease for Cable Television Tower
and Building between Enstar Communications Corporation and Christian
Louis Tennes, Iris Patricia Tennes dated January 4, 1975 (Tower)
Consent required: No; Notice required: Yes
ENSTAR CABLE OF MACOUPIN COUNTY
REAL PROPERTY OWNED
Nothing to Disclose
REAL PROPERTY LEASED
MACOUPIN, IL
1. Parcel of property consisting of approximately two an done-half (2.5)
acres located three hundred twenty nine (329) feet south from the
northwest corner of the Northwest Quarter (NW 1/4) of the Southeast
Quarter (SE 1/4) of Section Twenty (20) in Township Twelve (12) Range
Six (6) West of the Third Principal Meridian, situated in the County of
Macoupin and State of Illinois Lease Agreement between Enstar Cable of
Macoupin County and New Testament Lighthouse dated June 1, 1994 (Tower)
Consent required: Yes
2. Parcel of property consisting of approximately two and one-half(2.5)
acres on the South boundary of the Northeast Quarter (NE 1/4) of
Section Twenty (20) in Township Ten (10) Range Seven (7) West of the
Third Principal Meridian, situated in the County of Macoupin and State
of Illinois Lease Agreement between Enstar Cable of Macoupin County and
John Schein and Norma Schein dated July 1, 1994 (Headend) Consent
required: Yes [The lease is currently being renegotiated--updates to
come]
48
SCHEDULE 2.1(B)
EXCLUDED ASSETS - ALL SELLERS
Notwithstanding anything to the contrary in this Agreement, the
following assets are expressly excluded from this sale, are not to be purchased
or assumed by Purchaser, and do not constitute part of the Assets:
(a) All rights to tax refunds or fees of any nature, in either case
relating to the period prior to the Closing Date;
(b) Agreements for management services, consulting services and the like
with affiliate companies currently affecting the Systems;
(c) Any and all software licenses, other than licenses for operating system
software.
49
SCHEDULE 8.3
REQUIRED CONSENTS - ALL SELLERS
Material Consents: The Material Consents shall consist of the Franchises.
Franchises Requiring Consent
ENSTAR INCOME PROGRAM II-1, L.P.
TAYLORVILLE, IL
Christian County (Taylorville)
East Gillespie (Village of) (Notice required)
Gillespie (City of)
Litchfield (City of)
Owaneco (Village of) (Notice required)
Taylorville (City of)
ENSTAR INCOME PROGRAM II-2, L.P.
HILLSBORO, IL
Christian County (Hillsboro)
Coalton (City of)
Hillsboro (City of)
Jerseyville (City of)
Nokomis (City of)
Pana (City of)
Schram City (City of)
Taylor Springs (Village of)
Witt (City of) (Notice required)
ENSTAR INCOME PROGRAM IV-3, L.P.
SHELBYVILLE, IL
Fairfield (City of)
Geff (Village of) (Notice required)
Shelby County
Shelbyville (City of)
ENSTAR INCOME/GROWTH PROGRAM SIX-A, L.P.
FLORA, IL
50
Cisne (Village of) (Notice required)
Farmersville (Village of)
Flora (City of)
Junction City (Village of)
Noble (Village of)
Odin (Village of)
Raymond (Village of)
Salem (City of)
Sandoval (Village of)
Xenia (Village of)
ENSTAR IV/PBD SYSTEMS VENTURE
MT. CARMEL, IL
Mt. Carmel (City of)
ENSTAR CABLE OF MACOUPIN COUNTY
MACOUPIN, IL
Auburn (City of)
Carlinville (City of)
Girard (City of)
Nillwood (Village of) (Notice required)
Thayer (City of) (Notice required)
Virden (City of) (Notice required)