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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of the 5th day of
September, 1995, by and between Cable TV Joint Fund 11, a Colorado partnership
("Seller"), and Jones Intercable, Inc., a Colorado corporation ("Buyer").
RECITALS
A. Seller owns and operates a cable television system in
Manitowoc, Wisconsin (the "System").
B. Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, the System upon the terms and conditions set forth in this
Agreement.
AGREEMENT
In consideration of the mutual promises contained in this Agreement
and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale. Subject to the terms and conditions set
forth in this Agreement, Seller shall sell, convey, assign, transfer and
deliver to Buyer, and Buyer shall purchase from Seller, on the Closing Date (as
defined in Paragraph 9 hereof), all of Seller's interest in the System and the
Assets (as defined in Paragraph 2 hereof) then being transferred and sold
pursuant hereto, free and clear of all security interests, liens, pledges,
charges and encumbrances.
2. Assets.
(a) The assets to be conveyed to Buyer hereunder shall
consist of all of the assets and properties of Seller, whether real, personal,
tangible or intangible, of whatever description and wherever located, now owned
or used by Seller solely in connection with Seller's ownership or operation of
the System, including all additions made between the date hereof and the
Closing Date, to the
Exhibit 2.1
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end that all of Seller's assets owned on the Closing Date which are used or
owned solely in connection with Seller's ownership or operation of the System
shall be sold and transferred to Buyer (collectively, the "Assets"). The
Assets shall include, without limitation:
(i) all of Seller's towers, tower equipment,
antennas, aboveground and underground cable,
distribution systems, headend amplifiers, line
amplifiers, earth satellite receive stations and
related equipment, microwave equipment, testing
equipment, motor vehicles, office equipment,
furniture and fixtures, supplies, inventory and other
physical assets owned or used by Seller solely in
connection with Seller's ownership or operation of
the System;
(ii) the franchises, leases, agreements, permits,
consents, licenses and other contracts, pole line or
joint pole agreements, underground conduit
agreements, agreements for the reception or
transmission of signals by microwave, easements,
rights-of-way and construction permits, if any, and
any other obligations and agreements between Seller
and suppliers and customers, which are owned or used
by Seller solely in connection with Seller's
ownership and operation of the System, substantially
all of which are listed on Exhibit A attached hereto;
(iii) the real property owned and used solely in
connection with the System;
(iv) all accounts receivable of Seller arising in
connection with the System;
(v) all engineering records, files, data,
drawings, blueprints, schematics, maps, reports,
lists and plans and processes owned or developed by
or for Seller and intended for use solely in
connection with the System;
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(vi) all promotional graphics, original art work,
mats, plates, negatives and other advertising or
related materials developed by or for Seller and
intended for use solely in connection with the
System; and
(vii) all of Seller's correspondence files, lists,
records and reports concerning customers and
prospective customers of the System, concerning
television stations whose transmissions are or may be
carried as a part of the System and concerning all
dealings with Federal, state, and local regulatory
agencies relating to the ownership or operation of
the System, including all reports filed by or on
behalf of Seller with the Federal Communications
Commission (the "FCC") in connection with the System
and any Statements of Account of the System filed by
or on behalf of Seller with the United States
Copyright Office in connection with the System.
(b) The following properties and assets relating to the
System and its business operations shall be retained by Seller and shall not be
sold, assigned or transferred to Buyer:
(i) cash or cash equivalents on hand or in banks;
(ii) insurance policies and rights and claims
thereunder;
(iii) all claims, rights and interest in and to any
refunds for federal, state or local income or other
taxes or fees of any nature whatsoever for periods
prior to the Closing Date, including without
limitation, fees paid to the United States Copyright
Office; and
(iv) assets disposed of in the normal course of
business or with the written consent of Buyer between
the date hereof and the Closing Date.
3. Purchase Price. Subject to the adjustments to be made in
accordance with Paragraph 4 hereof, the total purchase price for the Assets
shall
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be $15,735,667 (the "Purchase Price"), which Purchase Price represents the
average of three independent appraisals of the System. The Purchase Price
shall be payable to Seller at Closing in cash, by cashier's check or by wire
transfer of federal funds to a bank or banks designated by Seller.
4. Adjustments. All adjustments provided for herein with respect
to this transaction shall increase or decrease the Purchase Price, as
appropriate, and shall be made as of the close of business (5:00 p.m., Denver
time) on the Closing Date (the "Adjustment Time").
(a) Rent, pole rents, franchise fees, taxes, power and
utility fees and deposits, insurance premiums, licenses, customer prepayments
and deposits, and other prepayments and amounts due shall be prorated and
debited or credited to Seller or Buyer, as applicable. With respect to
subscriber accounts receivable, Seller shall be entitled to an amount equal to
the sum of (i) 90% of the face amount of all accounts receivable that are
current or 30 days or less past due as of the Adjustment Time, plus (ii) 80% of
the face amount of all accounts receivable that are between 31 days and 60 days
past due as of the Adjustment Time. For purposes of making "past due"
calculations, the monthly billing statements of Seller shall be deemed to be
due and payable on the first day of the month during which the service to which
such billing statements relate is provided.
(b) The Purchase Price shall be reduced by any accounts
payable, accrued expenses and vehicle lease obligations for which Seller would
otherwise be liable hereunder, but for which the obligation for payment is
assumed by Buyer.
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(c) Seller and Buyer shall jointly determine the
adjustments required by this Paragraph 4 at the Closing. The net amount to
which Buyer or Seller, as the case may be, is entitled pursuant hereto shall be
thereupon paid by Buyer or Seller, as the case may be, by an adjustment to the
Purchase Price. All adjustments made at Closing shall be tentative and shall
be subject to final adjustment within 90 days after Closing.
5. Assumption of Liabilities. Buyer shall assume and discharge
(i) all debts, liabilities and obligations of Seller arising with respect to
periods subsequent to the Closing Date under any franchise, license, permit,
lease, instrument or agreement transferred to Buyer hereunder, and (ii) with
respect to periods prior to and including the Closing Date, all obligations of
Seller to the extent that the Purchase Price is reduced pursuant to Paragraph
4(b) hereof to reflect Buyer's assumption of such obligations. Buyer shall
indemnify and hold harmless Seller from and against any and all damages, costs,
claims and expenses ("Claims") arising by reason of the ownership, operation or
control of the System after the Closing Date. Anything herein to the contrary
notwithstanding, there is hereby excluded from the Assumed Obligations, and
Seller shall retain and discharge, and indemnify and hold Buyer harmless from
and against, any and all Claims to the extent they arise from (a) any debt,
liability or obligation arising with respect to periods prior to the Closing
Date for which no reduction of the Purchase Price has been made pursuant to
Paragraph 4(b) hereof, or (b) any debt, liability or obligation of Seller not
expressly assumed hereunder, whenever arising.
6. Seller's Representations. Seller hereby represents and
warrants to Buyer that:
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(a) Seller is a general partnership duly organized and
validly existing under the laws of the State of Colorado. Seller has all
requisite partnership power and authority to own and operate its properties and
to carry on its business as now and where being conducted.
(b) All necessary consents and approvals have been
obtained by Seller for the execution and delivery of this Agreement. The
execution and delivery of this Agreement by Seller has been duly and validly
authorized and approved by all necessary action of Seller. This Agreement is a
valid and binding obligation of Seller, enforceable against it in accordance
with its terms.
(c) Subject to the receipt of any required consents,
Seller has full legal power, right and authority to sell and convey to Buyer
legal and beneficial title to the Assets, and Seller's sale to Buyer shall
transfer good and marketable title thereto, free and clear of all security
interests, liens, pledges, charges and encumbrances of every kind.
(d) The execution, delivery and performance of this
Agreement by Seller will not violate any provision of law and will not, with or
without the giving of notice or the passage of time, conflict with or result in
any breach of any of the terms or conditions of, or constitute a default under,
any mortgage, agreement or other instrument to which Seller is a party or by
which Seller, the Assets or the System are bound. The execution, delivery and
performance of this Agreement by Seller will not result in the creation of any
security interest, lien, pledge, charge or encumbrance upon the Assets or the
System.
7. Conditions Precedent to Buyer's Obligations. The obligations
of Buyer under this Agreement with respect to the purchase and sale of the
Assets
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shall be subject to the fulfillment on or prior to the Closing Date of each of
the following conditions:
(a) All of the representations and warranties by Seller
contained in this Agreement shall be true and correct in all material respects
at and as of the Closing Date. Seller shall have complied with and performed
all of the agreements, covenants and conditions required by this Agreement to
be performed or complied with by it on or prior to the Closing Date.
(b) Seller shall have delivered to Buyer such
instruments, consents and approvals of third parties as are necessary to
transfer the Assets to Buyer pursuant to this Agreement.
(c) The statutory waiting period applicable to this
Agreement and the transactions contemplated hereby under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), shall have been
terminated or shall have expired.
8. Conditions Precedent to Seller's Obligations. The obligations
of Seller under this Agreement with respect to the purchase and sale of the
Assets shall be subject to the fulfillment on or prior to the Closing Date of
each of the following conditions:
(a) The statutory waiting period applicable to this
Agreement and the transactions contemplated hereby under the HSR Act shall have
been terminated or shall have expired.
(b) Buyer shall have delivered the Purchase Price to
Seller in accordance with Paragraph 3 hereof.
9. Closing. The closing hereunder (the "Closing") shall be held
in the offices of Seller, 9697 East Mineral Avenue, Englewood, Colorado 80112,
on
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such date or dates as the parties hereto shall mutually agree (the "Closing
Date"), but in no event after September 30, 1996. At the Closing, all cash,
checks, notes, deeds, bills of sale, certificates of title, assignments and
assumptions and other instruments and documents referred to or contemplated by
this Agreement shall be exchanged by the parties hereto.
10. Brokerage. Seller represents and warrants to Buyer that
Seller will be solely responsible for, and pay in full, any and all brokerage
or finder's fees or agent's commissions or other like payment owing in
connection with Seller's use of any broker, finder or agent in connection with
this Agreement or the transactions contemplated hereby. Buyer represents and
warrants to Seller that Buyer will be solely responsible for, and pay in full,
any and all brokerage or finder's fees or agent's commissions or other like
payment owing in connection with Buyer's use of any broker, finder or agent in
connection with this Agreement or the transactions contemplated hereby. Each
party hereto shall indemnify and hold the other party hereto harmless against
and in respect of any breach by it of the provisions of this Paragraph 10.
11. Miscellaneous.
(a) Buyer shall have the right, upon notice to Seller, to
assign prior to the Closing Date, in whole or in part, its rights and
obligations hereunder to any affiliate of Buyer, including, without limitation,
to any subsidiary of Buyer or other entity controlled by, controlling or under
common control with Buyer, or, subject to Seller's consent, to any other
entity.
(b) From time to time after the Closing Date, Seller
shall, if requested by Buyer, make, execute and deliver to Buyer such
additional assignments, bills of sale, deeds and other instruments of transfer,
as may be
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necessary or proper to transfer to Buyer all of Seller's right, title and
interest in and to the Assets covered by this Agreement. Such efforts and
assistance shall be without cost to Buyer.
(c) This Agreement embodies the entire understanding and
agreement among the parties concerning the subject matter hereof and supersedes
any and all prior negotiations, understandings or agreements in regard thereto.
This Agreement shall be interpreted, governed and construed in accordance with
the laws of the State of Colorado. This Agreement may not be modified or
amended except by an agreement in writing executed by both Buyer and Seller.
(d) Any sales, use, transfer or documentary taxes imposed
in connection with the sale and delivery of the Assets and the rights acquired
by Buyer under this Agreement shall be paid by Buyer.
[EXECUTION PAGE FOLLOWS]
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IN WITNESS WHEREOF the parties have executed this Agreement as of the
day and year first above written.
CABLE TV JOINT FUND 11,
a Colorado general partnership
By: Cable TV Fund 11-A, Ltd.,
a Colorado limited partnership
By: Cable TV Fund 11-B, Ltd.,
a Colorado limited partnership
By: Cable TV Fund 11-C, Ltd.,
a Colorado limited partnership
By: Cable TV Fund 11-D, Ltd.,
a Colorado limited partnership
By: Jones Intercable, Inc.,
their General Partner
By: /s/ James B. O'Brien
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Title: President
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JONES INTERCABLE, INC.,
a Colorado corporation
By: /s/ James B. O'Brien
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Title: President
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