Exhibit 99.2
First Amendment to
Asset Purchase Agreement
This First Amendment to Asset Purchase Agreement (this "Amendment") is
entered into as of February 26, 1999, by and among XXXXX CABLE INCOME FUND 1-B/C
VENTURE, a Colorado partnership (Federal Tax I.D. No. 00-0000000), with offices
at 0000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("Seller"); XXXXX
INTERCABLE, INC., a Colorado corporation ("JIC"); and FALCON COMMUNITY VENTURES
I LIMITED PARTNERSHIP, a California limited partnership, with offices at 00000
Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("Buyer").
Recitals
A. Seller, JIC and Buyer are parties to that certain Asset Purchase
Agreement, entered into as of September 9, 1998 (the "Purchase Agreement"),
pursuant to which Seller, among other things, agreed to sell, and Buyer agreed
to purchase, the Assets.
B. The parties desire to amend the Purchase Agreement to provide for a
change in the manner of determining the adjustment, if any, to the Purchase
Price based on the number of subscribers served by the System at Closing.
C. Capitalized terms not otherwise defined in this Amendment shall have
the meanings given in the Purchase Agreement.
Agreements
Now, therefore, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby amend the
Purchase Agreement and agree as follows:
1. Amendment to Section 4.1. The first two sentences of the last full
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paragraph of Section 4.1 of the Purchase Agreement are deleted in their entirety
and replaced with the following:
Within ninety (90) days after the Closing Date, Seller shall deliver
to Buyer a report (the "Final Settlement Statement"), similarly
certified by Seller, showing in detail the final determination of all
adjustments which were not calculated as of the Closing Date,
containing any corrections to the Initial Settlement Statement and
including any credits based on the post-Closing subscriber
determination described below, together with any documents
substantiating the adjustments proposed in the Final Settlement
Statement. In computing the amount of the final adjustments to the
Purchase Price set forth in the Final Settlement Statement: (i) the
Final Settlement Statement shall reflect a credit to Seller in an
amount equal to $1,507.00 for each Provisional Subscriber (as defined
in Section 4.3.1 hereof) who satisfies the definition of Basic
Subscriber on the 60th day immediately following the Closing Date, and
$1,448.00 for each Senior Provisional Subscriber (as defined in
Section 4.3.1 hereof) who satisfies the definition of Basic Subscriber
on the 60th day immediately following the Closing Date (provided that
the payment requirement of such definition shall be deemed satisfied
by payment of the applicable senior discounted rate); and (ii) the
Final Settlement Statement shall reflect a credit to Buyer in an
amount equal to $1,507.00 for each Second Look Subscriber (as defined
in Section 4.3.2 hereof) who does not satisfy the definition of Basic
Subscriber on the 60th day immediately following the Closing Date, and
$1,448.00 for each Senior Second Look Subscriber (as defined in
Section 4.3.2 hereof) who does not satisfy the definition of Basic
Subscriber on the 60th day immediately following the Closing Date
(provided that the payment requirement of such definition shall be
evaluated based on payment of the applicable senior discounted rate).
For purposes of the immediately preceding sentence only, all
references to "the Closing Date" contained in the first sentence of
Section 4.2 hereof shall be deemed modified to read "the 60th day
immediately following the Closing Date". Notwithstanding the
foregoing, in the event the credit determined pursuant to clause (i)
of this paragraph exceeds the credit determined pursuant to clause
(ii) of this paragraph, such credits shall be netted together, and the
adjustment to the Purchase Price arising from the aggregate of such
credits shall be equal to the lesser of (a) such net amount or (b) the
aggregate adjustment to the Purchase Price pursuant to Section 4.1.4
hereof. Buyer will provide Seller with reasonable access to and
copies of all records which Buyer has in its possession and which are
necessary for Seller to prepare the Final Settlement Statement.
2. New Section 4.3. A new Section 4.3 is added to the Purchase Agreement
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as follows:
4.3 Additional Subscriber Definitions.
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4.3.1 The term "Provisional Subscriber" shall mean a subscriber of
the System at Closing who would be a Basic Subscriber except that such
subscriber has not been a subscriber of the System for at least one
(1) month prior to the Closing Date and has not paid the full non-
discounted rate for at least one (1) month of service for all
subscribed to services. The term "Senior Provisional Subscriber"
shall mean a subscriber of the System at Closing who qualifies for and
receives the System's senior discounted rate and would be included in
the formula for equivalent Basic Subscribers pursuant to Section 4.2
except that such subscriber has not been a subscriber of the System
for at least one (1) month prior to the Closing Date and has not paid
for (at the applicable senior rate) at least one (1) month of service
for all subscribed to services.
4.3.2 The term "Second Look Subscriber" shall mean a subscriber of
the System who meets the definition of a Basic Subscriber on the
Closing Date and who first received basic cable service from the
System during the period beginning three months and ending more than
one month immediately preceding the Closing Date. The term "Senior
Second Look Subscriber" shall mean a subscriber of the System who
qualified for and receives the System's senior discounted rate, was
included in the formula for equivalent Basic Subscribers pursuant to
Section 4.2 on the Closing Date, and first received basic cable
service from the System during the period beginning three months and
ending more than one month immediately preceding the Closing Date.
3. New Section 8.14. A new Section 8.14 is added to the Purchase
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Agreement as follows:
8.14 Post-Closing Operation of the System. For the period ending 60
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days following the Closing Date, Buyer shall not (i) increase the
rates charged for any programming or other services provided by the
System; (ii) reduce, modify or discontinue any senior discount offered
by the System; (iii) except as the result of (a) the discontinuance of
any programming service, (b) the expiration or termination of Buyer's
rights under an affiliation agreement for the carriage of any
programming service, or (c) any other reason beyond Buyer's control,
delete any programming service or reconfigure any tier of service
offered by the System;
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(iv) change the collection or disconnection policies (or
implementation thereof) of the System; or (v) announce or give notice
of its intention to do any of the foregoing.
4. Section 16.1. The date "June 30, 1999" appearing in Section 16.1 is
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deleted and the date "September 30, 1999" is inserted in its place.
5. Section 17.2. The date "April 30, 1999" appearing in Section 17.2 is
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deleted and the date "July 31, 1999" is inserted in its place.
6. No Other Amendments. Except as modified in this Amendment, the
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Purchase Agreement is unmodified and remains in full force and effect.
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The parties hereto have executed this Amendment effective as of the date
first written above.
SELLER:
XXXXX CABLE INCOME FUND 1-B/C
VENTURE, a Colorado partnership
By: Xxxxx Cable Income Fund 1-B, Ltd.
Xxxxx Cable Income Fund 1-C, Ltd.
its general partners
By: Xxxxx Intercable, Inc.
their general partner
By: /s/ Xxxxxxxxx Xxxxxx
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Name: Xxxxxxxxx Xxxxxx
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Title: Vice President
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XXXXX INTERCABLE, INC.,
a Colorado corporation
By: /s/ Xxxxxxxxx Xxxxxx
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Name: Xxxxxxxxx Xxxxxx
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Title: Vice President
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BUYER:
FALCON COMMUNITY VENTURES I
LIMITED PARTNERSHIP,
a California limited partnership
By: Falcon Community Investors, L.P.,
a California limited partnership,
its managing general partner
By: Falcon Holding Group, Inc.,
a California corporation,
its managing general partner
By:
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Xxxxxxx X. Xxxxxxxxxx,
Executive Vice President
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