EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, made this 14th day of May, 2007 by and between Chula
Vista Cable Ltd., a Partnership dba Chula Vista Cable ("Chula" or the "Seller");
the General Partners of Chula, (each a "Partner" and together, the "Partners");
and NexHorizon Communications, Inc., a Delaware Corporation or one of its
wholly-owned subsidiaries ("Buyer"), its successors and assigns.
RECITALS
WHEREAS, Seller owns and operates a business, including without
limitation, plant, equipment and infrastructure, engaged in providing for cable
television and internet services in and around California (the "Business").
WHEREAS, Buyer desires to purchase from Seller, and Seller desire to
sell to Buyer, on the terms and conditions hereinafter set forth, substantially
all of the assets of Seller used in the operation of the Business, except the
Excluded Assets (as defined in Section 1.3).
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth and each act done pursuant hereto, the parties hereto,
intending to be legally bound, do represent, warrant, covenant and agree as
follows:
1. PURCHASE AND SALE OF ASSETS.
1.1 Transfer of Assets.
On the Consummation Date, as defined in Section 2.1, Seller
shall sell, convey, transfer and assign to Buyer, and Buyer shall purchase from
Seller, all of the assets of Seller of every kind and character, real, personal,
tangible, intangible or mixed, used by, or held for use by, Seller in connection
with the operation of, Business in existence and all conduit both installed and
in inventory (the "Assets to be Acquired"), which shall include, but not be
limited to, the following:
(a) All items of tangible personal property owned or leased and used by
Seller in connection with the operation of Business, including all equipment
associated with receiving and distributing signals at the head-end site, and all
other antennas and down leads and all electronic equipment, head-end amplifiers
and associated equipment, line amplifiers, aerial and underground trunk and
feeder line cable, conduit, distribution plant, programming signal decoders for
each satellite service which scrambles its signal, converters, housedrops,
installed subscriber devices, utility poles, local origination equipment, test
equipment, machinery, spare equipment and parts inventory, housedrop equipment
inventory, system design and engineering maps and drawings, supplies, vehicles
and trailers (to be transferred under fee title and not under lease),
furnishings and other personal property of any nature, and all leasehold and
rights-of-way in real property, buildings and improvements and
construction-in-progress, towers, fixtures, poles, vaults and pedestals and all
assets of Seller relating to the competitive access or alternate access business
or other internet or telecommunications business used in connection with
Business.
(b) All of the rights of Seller to, in and under any and all (i)
subscription contracts with subscribers for Broadband service; except as
provided in Section 1.3, all instruments and agreements for the purchase, sale
or other receipt or distribution of programming, news, data and microwave relay
signals; and (ii) all of the Franchises (as herein defined) and any franchise
applications; (iii) all of the Pole Attachment Agreements (as herein defined)
and all retransmission consent agreements; all variances, easements,
right-of-way agreements, licenses, registrations, copyright notices, signal
registration and other statements, construction and other permits, leases,
including leases of all head-end sites, and all other contracts or agreements
relating to Business (i), (ii) and (iii) collectively, the "Assumed Contracts").
(c) All refundable deposits from subscribers for converters, encoders,
decoders and any related equipment, all prepaid service charges and any prepaid
income items; options, claims, contract rights and trade secrets; all goodwill;
all subscriber accounts receivable for all periods subsequent to Consummation;
subscriber lists and subscription contracts of Business; and except as provided
in Section 1.3, all records which relate specifically to the operation of the
Business (including, subscriber records, accounts receivable records, and any
documents necessary to support a required regulatory filing).
(d) Accounts Receivable, which shall be subject to the adjustment set forth
in Section 2.6.
1.2 Assumed and Excluded Liabilities.
On the Consummation Date, the Seller shall pay off, in full,
all liabilities of the business up to and including the Consummation Date. The
Buyer shall assume, by instruments of assumption reasonably satisfactory to
counsel for Seller, and discharge at the Consummation or as they become due and
payable, the following liabilities and obligations of Seller and no others (the
"Assumed Liabilities"):
(a) All obligations of the Seller arising after the Consummation Date under
the Assumed Contracts and any other agreements, consents, permits and other
instruments relating to the Business and in existence on the Consummation Date
and entered into in the ordinary course of business to the extent included in
the Assets to be Acquired; and
(b) All liabilities and obligations arising out of events occurring after
the Consummation Date related to Buyer's ownership of the Assets to be Acquired
or its conduct of Business or operation of Business.
1.3 Excluded Assets.
Notwithstanding the foregoing, it is specifically agreed that
the following assets are excluded from the Assets to be Acquired (collectively,
the "Excluded Assets"), as specifically enumerated and set forth on Schedule 1.3
hereto:
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(a) cash on hand or in the bank or other cash accounts of Seller
including without limitation, any and all letters of credit or other
similar items and any cash surrender value in regard thereto, and any
stocks, bonds, certificates of deposit and similar investments;
(b) all documents relating to the legal existence of the Seller;
(c) the life insurance policies on certain employees if applic-
able;
(d) any 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 Consummation Date;
(e) any books and records that Seller is required by law to
retain and any correspondence, memoranda, books of account, tax returns
related to personal property and the like related to Business, and all
other books, records, and documents relating to internal company
matters and financial relationships with Seller's lenders or
affiliates; provided, however, that notwithstanding the foregoing
provisions of this clause (e), Buyer shall be provided with all books,
records and documents, or copies thereof, as may be necessary or
warranted to conduct the Business;
(f) any and all assets of Seller unrelated to the Business;
(g) any contracts, agreements or other arrangements between
Seller and any affiliate of Seller.
2. CLOSING AND CONSUMMATION DATES; PURCHASE PRICE, PAYMENT AND ADJUSTMENTS.
2.1 Closing; Consummation, Date and Location.
Unless otherwise mutually agreed to by the parties, the Closing of the
transaction shall take place on May ___, 2007, at 10:00 a.m., local time, at the
offices of Seller's legal council. The Closing shall complete the transaction
and will be held in escrow pending completion of a final audit.
With the completion of an audit, on the first day of the month following
audit completion, the transfer and delivery of the Assets to be Acquired to
Buyer and the receipt of the consideration therefore by Seller shall constitute
the "Consummation" of the transaction (the "Consummation Date").
The effective date of the sale of Business shall be at the Consummation
Date and all prorations and allocations provided for hereunder shall be made as
of the close of business on the Consummation Date, except as otherwise agreed in
writing by the parties. Notwithstanding the foregoing, this Agreement may be
terminated pursuant to Section 11 hereof if the Consummation has not occurred by
a mutually agreeable date (the "Termination Date").
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2.2 Purchase Price.
Buyershall acquire and accept the Assets and Subscribers to
be Acquired from Seller and shall pay to Seller the
aggregate amount of $4,250,000.00. The Purchase Price
will be paid as follows:
1) $850,000 in cash to be paid to the Seller at Consum-
mation;
2) $2,125,000 worth of Buyer's common stock
representing _______ of the Buyer Shares, valued at
$_____ per share (share price determined average
Consummation "ask" price 5 business days prior to
Consummation); Relevant thereto, Buyer hereby agrees
and acknowledges that it shall provide Sellers with
"piggyback" registration rights to the Buyer Shares
referenced herein in order to register said shares
under the Securities Act of 1933, as amended, with the
US Securities and Exchange Commission, which rights are
more fully described in that certain Registration
Rights Agreement by and between the parties hereto, a
copy of which is attached hereto and incorporated
herein as Exhibit "A." Further, Sellers agree to
execute and deliver to the Buyer that certain "Leakout
Agreement" relevant to the Buyer Shares, a copy of
which is attached hereto and incorporated herein as
Exhibit B;" In addition, the Buyer agrees to provide
"Floor Protection" of the shares the Seller acquires as
part of this transaction as long as the balloon note is
still in place. The protection, better described in
Exhibit C, defines that if the Seller actually sells
stock in a major market at a price lower than the
original stock price identified at Consummation, the
Buyer will replace the actual loss either in cash or
common shares at the Buyer's option.
3) Seller agrees to carry an 18 month balloon note in
the amount of $1,275,000 at an interest rate of 6% per
annum. The interest due will be paid quarterly within
10 business days after the close of the quarter.
4) Up to one year after the Consummation, if the Buyer
identifies any additional unpaid liabilities that are
then confirmed with the Seller that were due up to the
consummation date, the Buyer will reduce the Balloon
Note by the amount of the liability identified. It is
the Seller's intent to fully pay all outstanding
liabilities at the point of consummation.
5) From the Consummation date and as long as the Buyer
still owns the high speed internet network, as long as
the Seller still resides within the physical abilities
of the network, the Buyer will provide high speed
internet service to the Seller at no charge.
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2.3 Payment of the Purchase Price.
On the Consummation Date, Buyer will pay an aggregate amount equal to
the Purchase Price, as adjusted at Consummation pursuant to the provisions of
Section 2.6.
2.4 Escrow Amount.
Upon execution of this Agreement, Buyer will deposit $100,000
in the form of the Buyer's common stock with the same rights and privileges and
conditions in Section 2.a.2 above as a good faith deposit into an escrow account
reasonably acceptable to both parties, to be released to Seller upon the
Consummation Date or upon Buyer's failure to close as set for in ss. 11.2. At
consummation the five day closing "ask" price will be calculated net of deposit
shares previously issued. In the event of Seller's failure to close under ss.
11.3 or a mutual termination under ss. 11.1, the Deposit shall be returned to
Buyer. At Consummation such deposit shares shall be credited to the Purchase
Price against the common stock portion of the consideration all calculated at
the five day Closing "ask" stock price. Seller will be responsible for payment
of any escrow fees.
Consummation shall occur on the next first of the month after
audit completion. If the Buyer is unable to close at the consummation date, an
additional $50,000 good faith deposit and a 30 day extension shall occur in the
form of the Buyer's common stock with the same rights and privileges and
conditions in Section 2.a.2 above shall be placed into the escrow account
mentioned above.
2.5 Allocation of Purchase Price.
The Purchase Price shall be allocated among the Assets to be
acquired as set forth on Schedule 2.6. Buyer and Seller agree to take no
position inconsistent with such allocation and to file all returns and reports
in respect of the transactions herein contemplated, including all federal, state
and local tax returns, on the basis of such allocation.
2.6 Adjustments to the Purchase Price; Prorations.
(i) The Seller shall pay for all liabilities up to the Consumma
-tion Date. The payment of the Purchase Price shall be fixed. Outside
of the Seller paying all liabilities up to the Consummation date there
will be no adjustments to the purchase price.
(ii) A final reconciliation of the Sellers accounts receivable
will be made 180 days after the Consummation date. Any liabilities that
are received after the Consummation date but are for services provided
before the Consummation date will be netted against the accounts
receivable outstanding at the Consummation date. After 180 days, if
there is any cash left from the accounts receivable balance a final
check will be sent to the Seller. If there is an amount owed to the
Buyer it will be netted back against the outstanding Note Due to the
Seller.
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3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
Seller and the Partners, jointly and severally, represent and
warrant to Buyer that the following statements and representations are true and
correct as of the date hereof and will also be true and correct on the
Consummation Date to the best of the Seller's knowledge. For purposes of this
Agreement, a "Material Adverse Effect" means a material adverse effect (whether
or not covered by insurance) on the assets, liabilities, business, operations,
condition (financial or otherwise), or results of operations of the Business
taken as a whole.
3.1 Company Standing.
Seller is duly organized, validly existing and in good
standing under the laws of the State of its formation. Seller has all of the
requisite power and authority to own or lease all of its material assets, to own
and operate the Business and the assets owned and operated by Seller, to carry
on its business as now conducted, to enter into this Agreement and to perform
the terms of this Agreement. Seller is duly qualified or licensed to do business
and in good standing in each jurisdiction in which the nature of its business or
the character of the properties and assets which it owns or leases makes such
qualifications or licensing necessary.
3.2 Authorization.
(a) Seller has taken all necessary action to authorize and
approve this Agreement and the Seller Transaction Documents (as defined in
Section 3.2(b) below), the consummation of the transactions contemplated hereby
and thereby and the performance by Seller of all the terms and conditions hereof
and thereof to be performed by Seller. The execution and delivery of this
Agreement and of the Seller Transaction Documents by Seller, the consummation of
the transactions contemplated hereby and thereby and fulfillment of and
compliance with the terms and provisions hereof and thereof do not and will not:
(i) violate any provision of any judicial or administrative order, award,
judgment or decree applicable to Seller or the Assets to be Acquired, or any of
them; (ii) conflict with or violate any of the provisions of the Articles of
Organization or Operating Agreement of Seller; or (iii) conflict with, result in
a breach of or constitute a default under any agreement or instrument to which
any Seller is a party or by which any Seller or any of its assets is bound,
subject to obtaining required consents from, or giving notices to, third
parties. Schedule 3.2 sets forth the name of any governmental authority or other
third party from whom consent must be obtained or to whom notice must be given
in order for Seller to validly and lawfully perform its obligations hereunder
and under the Seller Transaction Documents.
(b) This Agreement has been, and each and every other agreement,
instrument, certificate or other document to which Seller is a party that is to
be executed, delivered and performed by Seller pursuant hereto (collectively,
"Seller Transaction Documents"), when executed and delivered by Seller, will
have been, duly authorized, executed and delivered by Seller and constitute, or,
when executed and delivered by Seller will constitute, legal, valid and binding
obligations of Seller, enforceable against it in accordance with their terms,
except as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditor's rights generally or by general principles of equity.
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3.3 Financial Information.
True, complete and correct copies of Seller's audited
financial statements, by the Consummation Date, prepared according to generally
accepted accounting principles ("GAAP"), for the years ended December 31, 2006,
2005 and 2004, and Seller's unaudited financial statements for management use
(not in accordance with GAAP), for the current year (2007) for all months up to
and including at Consummation, are attached as Schedule 3.3(a) (the "Financial
Statements"). The Financial Statements in all material respects present all of
the cash flows, income, expenses (excluding non-cash flow items), and operations
of Seller and Business at the respective dates thereof and the operations of
Business as of such dates.
3.4 Title to Assets.
Except as set forth on Schedule 3.4 attached hereto,
including, without limitation, any and all such items as set forth in clauses
(i) and (iii) of this Section 3.4, Seller has good title to all of the Assets to
be Acquired, free and clear of all mortgages, liens, pledges, security
interests, liens, restrictions, encumbrances or other charges of any nature
whatsoever (collectively, "Liens"), except for (i) Liens for taxes that are not
yet due and payable or that are being contested in good faith by appropriate
proceedings and for which adequate reserves have been established by Seller;
(ii) as to leased assets, interests of the lessors thereof and Liens affecting
the interests of the lessors thereof; and (iii) as to any parcel of real
property, building restrictions, deed restrictions, rights of subsurface and
mineral owners, and other Liens that are reflected in the public record and that
do not, individually or in the aggregate, have a material adverse affect on the
merchantability of title thereto or the use thereof (collectively, "Permitted
Liens"). The Assets to be Acquired, whether owned or leased, constitute all of
the assets used in connection with Business as presently conducted, except for
the any such assets as comprise part of the Excluded Assets.
3.5 Business.
Seller has not itself, nor have any of Seller's officers,
directors, affiliates, agents or employees (except to the extent that payment
was made for Broadband services received by them at their own dwelling), paid
any of Seller's accounts receivable from subscribers.
(a) Except as set forth on Schedule 3.5,
(i) Seller has complied with all notification and reporting
provisions and all other provisions of the rules and regulations
of the Federal Communications Commission ("FCC") applicable to
the Business; the Business has been and are being operated in
compliance with the Communications Act of 1934, as amended,
including the amendments effected by the Cable Communications
Policy Act of 1984 (the "1984 Act"), the Cable Television
Consumer Protection and Competition Act of 1992 (the "1992 Act"),
the provisions of the Telecommunications Act of 1996 (the "1996
Act") and the Copyright Act of 1976, as amended (the "Copyright
Act"), and with all Rules and Regulations of the FCC and the U.S.
Copyright Office, except in each case where the failure to so
comply would not reasonably be expected to have a Material
Adverse Effect. Without limiting the generality of the foregoing,
except in each case where the failure to so comply would not
reasonably be expected to have a Material Adverse Effect, each of
the communities served by the Business has been registered with
the FCC; all of the semi-annual and annual performance tests on
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the Business described in Section 76.601 of the FCC Rules and
Regulations have been made by Seller; the Business currently
meets the technical standards set forth in the FCC Rules and
Regulations, including the leakage limits contained in Section
76.605(a)(11); and Seller has delivered to Buyer a copy of the
most recent FCC Forms 320 filed with the FCC (Basic Signal
Leakage Performance Report) for the Business. The Business is
being operated in compliance with the provisions of Sections
76.610 through 76.619 of the FCC Rules and Regulations (midband
and superband signal carriage), appropriate authorization from
the FCC has been obtained for the use of all aeronautical
frequencies in use in the Business; the Business is presently
being operated in compliance with such authorization; Seller has
provided privacy notices to subscribers of the Business in
accordance with the requirements of Section 631(a)(1) of the 1984
Act; and the Business is in compliance with the requirements of
Sections 76.92 (Network Non-Duplication Protection) and 76.151
(Syndicated Program Exclusivity) of the FCC Rules and
Regulations, except in each case where the failure to so comply
would not reasonably be expected to have a Material Adverse
Effect.
(ii) As of the date hereof, the monthly rates charged by
Seller for each service provided by Seller to subscribers of the
Business are set forth on Schedule 3.5. Such rates were
calculated in good faith in accordance with the FCC Rules and
Regulations to comply with any applicable FCC Rules and
Regulations as of the date hereof and will continue to be in
compliance with the applicable FCC Rules and Regulations through
the Consummation Date. Seller has not received any notice that it
has any obligation or liability to refund any portion of the
revenue received by it from the subscribers of the Business.
(iii) There is no legal action or governmental proceeding
pending or, to Seller's knowledge, any investigation or
proceeding threatened (nor any basis therefore of which it is
aware) for the purpose of modifying, revoking, terminating,
suspending, canceling or reforming any of Seller's FCC licenses
or other FCC authorizations or permits, or which might have an
adverse effect upon, or cause disruption to, the operation of the
Business.
(iv) The Business is currently operated and maintained in
accordance with the National Electrical Safety Code in all
material respects and the terms and conditions of all pole
attachment agreements between Seller and any public utility,
municipality or other authority that has granted such
authorization.
(v) Seller holds all FCC licenses, permits and
authorizations necessary or used in connection with the operation
of the Business. Each such FCC license, permit and authorization
is listed on Schedule 3.5. As of the Consummation Date, Seller
will have obtained all required FCC consents to the assignment of
all such FCC licenses to Buyer.
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(vi) All broadcast television signals carried by the
Business are being carried in accordance with the requirements of
the Communications Act of 1934, as amended, and FCC regulations
promulgated thereunder.
(c) Appropriate registration of the Business has been made
with the United States Copyright Office, and the Business is in compliance with
respect to all notices, filings and payments of copyright fees required by
Section 111 of the Copyright Act and the United States Copyright Office
regulations. Seller has not received any notices from the United States
Copyright Office or any other person or entity either questioning any copyright
filing or payment or the failure to make any copyright filing or payment, or
threatening to bring suit for copyright infringement, which have not been
settled and resolved.
(d) The Business is being operated in compliance in all
material respects with the Rules and Regulations of the Federal Aviation
Administration ("FAA"). Schedule 3.5 lists all of the existing towers of the
Business. Except as shown on Schedule 3.5, Seller does not lease space on such
towers to any third party.
(e) Except as set forth in Schedule 3.5, and except for claims
arising in the ordinary course of business, none of which, individually or in
the aggregate will have a Material Adverse Effect, there are no claims pending
or, to Seller's knowledge, threatened against Seller with respect to the
operation of the Business.
(f) Except as set forth on Schedule 3.5, there are no
unfulfilled promises or commitments for capital improvements, which Seller has
made in connection with the Business. There are no obligations or liabilities to
subscribers or to other users of Seller's Broadband services which are material
to Business of the Business, except: (i) with respect to deposits made by such
subscribers or such other users; and (ii) the obligation to supply services to
subscribers in the ordinary course of business, pursuant to the Franchises. No
default exists in respect of any provisions of any Franchise governing relations
with subscribers or other users of Seller's Broadband services, and no notice of
any such default has been received by Seller. To Seller's knowledge, no
complaints have been made by subscribers or other users of Seller's Broadband
services that, individually or in the aggregate, could have an adverse effect
upon the Assets to be Acquired or the financial condition or operation of the
Business.
(g) The Business is in compliance in all material respects
with engineering standards generally accepted in the Broadband industry.
(h) Except as set forth on Schedule 3.5, there is no free
service liability to subscribers existing with respect to the Business. Except
with respect to deposits for converters, encoders, decoders and related
equipment, and any other prepaid income item that Buyer is to receive a credit
for pursuant to Section 2.6, Seller has no obligation or liability for the
refund of monies to its subscribers.
3.6 Franchises.
(a) Listed and identified on Schedule 3.6 attached hereto are all of
the existing governmental authorizations, and pending renewal proposals of such
authorizations, for construction, upgrade, maintenance and operation of the
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Business (individually, a "Franchise" and collectively, the "Franchises")
presently held by Seller, and the political entity or authority which has
granted each Franchise. All governmental authorizations necessary or required
for the construction, maintenance and operation of the Business have been
obtained by Seller, and are listed and identified in Schedule 3.6. Each of the
Franchises expires on the dates set forth on Schedule 3.6 attached hereto.
Except as set forth on Schedule 3.6, none of the political entities or
authorities that have granted a Franchise are regulating the Broadband rates
charged by Seller pursuant to the 1992 Act and the FCC Rules and Regulations.
(b) Except as set forth on Schedule 3.6,
(i) The Franchises are validly existing, legally
enforceable obligations of Seller and are validly existing, legally
enforceable obligations of the other parties thereto, in accordance
with their terms.
(ii) Seller is validly and lawfully operating the
Business under the provisions of the Franchises and applicable law.
(iii) Seller has complied with all of the terms and
conditions of the Franchises and has not done or performed any act
which would invalidate or impair in any material respect its rights
under, or give to the granting authority the right to terminate, the
Franchises.
(iv) There is no pending assertion or claim that
operations pursuant to any Franchise have been improperly conducted or
maintained, any facts or circumstances that could reasonably be
expected to give rise to any such assertion or claim.
3.7 Pole Attachment Agreements. Schedule 3.7 lists each of the
agreements, ordinances, resolutions, licenses or permits granting or relating to
each pole attachment agreement or similar authorization (individually, a "Pole
Attachment Agreement" and collectively, the "Pole Attachment Agreements"). All
of the Pole Attachment Agreements are validly existing, legally enforceable
obligations of the parties thereto in accordance with their terms, and Seller is
validly and lawfully operating the Business under the Pole Attachment Agreements
and has Broadband pole attachment rights under each Pole Attachment Agreement.
Seller has complied in all material respects with all of the terms and
conditions of the Pole Attachment Agreements to which it is a party, and has not
done or performed any act which would invalidate or impair its rights under the
Pole Attachment Agreements. There is no pending assertion or claim against
Seller that operations pursuant to any Pole Attachment Agreement have been
improperly conducted or maintained. There have been no audits or investigations
conducted by any of the parties to the Pole Attachment Agreements during the one
year preceding the date of this Agreement
3.8 Head-End Sites and Office Locations.
(a) All of the real property owned and utilized by Seller is
described on Schedule 3.8 attached hereto. Except as otherwise described on
Schedule 3.8, Seller has good title in fee simple to all such real property,
free and clear of all mortgages, claims, security interests, liens or
encumbrances of any kind, except for minor exceptions to title which do not
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affect the use of, or merchantability of title to, the property in the Business.
A copy of the deeds pursuant to which Seller acquired such real property will be
made available by Seller to Buyer.
(b) All leases and written rights of way used in the Business
are listed on Schedule 3.8 (the "Leases and Rights of Way"). Except as set forth
on Schedule 3.8, Seller has a valid and subsisting lease for and leasehold
interest in and right of way to all of the real property not owned by Seller and
used as head-end sites or office locations for the Business. In addition, except
as set forth on Schedule 3.8 or where the failure to do so would not have a
Material Adverse Effect, Seller has a valid and subsisting right-of-way
agreement, whether public or private, for all of the real property by its
Broadband plant. Except as disclosed on Schedule 3.8 attached hereto all Leases
and Rights of Way are fully assignable by Seller. Seller has duly complied in
all material respects with all of the terms and conditions of such Leases and
Rights of Way and has not done or performed or failed to perform any act which
would impair in any material respect its rights under such Leases or Rights of
Way.
3.9 Other Material Contracts and Leases.
Schedule 3.9 sets forth each contract, agreement, lease,
permit, license, fiber lease, microwave agreement or commitment, including pole
line agreements, whether written or oral, affecting or relating to the Business
and requiring payments by or to Seller in the aggregate of $5,000 or more during
the current term thereof other than the Excluded Assets, the Franchises, the
Pole Attachment Agreements, the Leases and the Rights of Way as set forth on
Schedule 3.9 (the "Agreements"). Each of the Agreements is in full force and
effect in accordance with its terms. Without limiting the foregoing, the
Business and all equipment and real property used in connection therewith are
now being utilized, operated and maintained in conformity in all material
respects with the provisions of the Agreements, and in material compliance with
all other applicable laws and regulations (including zoning regulations) and the
orders, rules and regulations of the FCC and of any government or governmental
agency or authority having jurisdiction with respect thereto. Seller has not in
any manner failed to so utilize, operate and maintain the Business in a manner
which could now or hereafter result in cancellation or termination of, or
liability for damages under, the Agreements, nor is Seller in default in any
material respect. Seller is not in default in the performance of one or more of
its obligations pursuant to the Agreements.
3.10 Agreements with Employees.
(a) Except as set forth on Schedule 3.10, Seller is not a
party to any employment agreement, written or oral, with respect to any employee
of the Business which cannot be terminated at will by Seller, and, except for
standard medical and dental insurance, and except as set forth on Schedule 3.10,
Seller has not had and currently does not have any pension or profit sharing or
other employee benefit plan for employees of the Business. True, correct and
complete copies of all agreements and plans listed on Schedule 3.10 are
available for review and will be delivered by Seller to Buyer upon Buyer's
request.
(b) The titles and rates of compensation of all of the employ-
ees of the Business have been made available to Buyer.
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3.11 Litigation or Judgments.
Except as set forth on Schedule 3.11, there is no litigation,
at law or in equity, or any proceedings before any commission, agency or other
governmental authority, pending or, to Seller's knowledge, threatened against
Seller or the Business, and, to Seller's knowledge, no facts or circumstances
exist which could reasonably be expected to give rise to any such litigation or
proceedings.
3.12 Tax Returns and Payments.
Seller has timely and properly filed or caused to be filed all
tax returns which it is or has been required to file on or prior to the date
hereof by any jurisdiction to which it is or has been subject, all such tax
returns were true, correct and complete in all material respects at the time of
filing. All income, unemployment, social security, franchise, property and other
taxes levied, assessed or imposed upon Seller or the Business by the United
States, or any state, or governmental sub-division of either, to the extent due
and payable, have been paid to date, and no liability exists for deficiencies,
except for any such taxes that are being contested in good faith. Except as set
forth on Schedule 3.12 attached hereto, there are no tax audits pending nor any
outstanding agreements or waivers extending the statutory period of limitations
applicable to any federal, state or local income tax return of Seller for any
period. To Seller's knowledge, no tax deficiencies have been determined, nor
proposed tax assessments charged, against Seller (nor, Seller's knowledge, is
there any reasonable basis therefore). Seller has made or caused to be made all
withholdings of taxes required to be made, and such withholdings have either
been paid to the appropriate governmental agency or set aside in appropriate
accounts for such purpose.
3.13 Compliance with Laws.
Seller, to its knowledge, is in material compliance with all applicable
federal, state and local laws, rules, regulations, orders, writs, injunctions,
ordinances or decrees of any governing authority, federal, state or local court,
or of any municipal or governmental department, commission, board, bureau,
agency or municipality having jurisdiction over it or the Business.
3.14 Condition of Assets to be Acquired and Insurance.
The Assets to be Acquired are in good working condition, reasonable
wear and tear excepted. The Assets to be Acquired include a normal spare parts
inventory. The Assets to be Acquired are and have been insured, and all such
insurance policies are in full force and effect, are on an "occurrence" basis,
and are in terms and scope and amounts which are customary in accordance with
industry standards for Broadband systems of comparable size, all as set forth on
Schedule 3.14 hereto. Seller has not received any notice of cancellation with
respect thereto. During the past one year, no application by Seller for
insurance with respect to the Assets to be Acquired has been denied for any
reason.
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3.15 Patents, Trademarks and Copyrights.
Seller does not possess any patent, patent right, or
copyright, nor is it a party to any license or royalty agreement with respect to
any patent, or copyright, except for licenses and consents respecting program
material and obligations under the Copyright Act applicable to Broadband systems
generally, which licenses are all of the intellectual property rights (other
than Excluded Assets) necessary to conduct business of the Business. Seller
possesses the Trademarks as set forth in Section 1.3, free and clear of any
liens, adverse claims or encumbrances which would prevent the Buyer's use
thereof as set forth in Section 1.3.
3.16 Labor Relations.
The employees of Seller are not parties to any collective
bargaining agreement. This Agreement and the transactions contemplated hereunder
shall not obligate Buyer to recognize any union or to assume any collective
bargaining agreement that applies to Seller's employees. There currently are
not, nor in the past five (5) years have there been, any grievances, unfair
labor practice claims, disputes or controversies with any union, or threats of
strikes, work stoppages or any pending demands for collective bargaining by any
union. Seller has received no notice of any grievances, unfair labor practice
claims, disputes or controversies with any other organization of Seller's
employees, or threats of strikes, work stoppages or any pending demands for
collective bargaining by any such organization. Seller has less than 50
employees.
3.17 Right of First Refusal.
No person or entity has any option, warrant or right of first
refusal to purchase either the Business (or any part thereof) or any of the
Assets to be Acquired.
3.18 Environmental Matters.
Seller has been and is in compliance with all applicable
federal, state and local laws, regulations and ordinances relating to protection
of human health and safety and the environment ("Environmental Laws"), including
those related to hazardous substances, wastes, discharges, emissions, disposals,
dumping, burial or other forms of disposal. There are no current or pending
claims, administrative proceedings, judgments, declarations or orders relating
to violations of Environmental Laws or to the presence of Hazardous Substances
(as defined by the Environmental Laws) on, in or under the owned or leased real
property of Seller. No hazardous waste in quantities that violate any
Environmental Laws has been dumped, buried, discharged or disposed of on, in or
under the owned or leased real property of Seller by Seller or by any other
person or entity. Neither Seller nor any third party has installed or placed on,
under or in the owned real property or the leased real property constituting a
part of the Assets to be Acquired: (i) any treatment, storage, recycling or
disposal facility for any hazardous waste as that term is defined under 40 CFR
Part 261 or any state equivalent; (ii) any underground storage tanks, in use or
abandoned; or (iii) any polychlorinated biphenyls (PCBs) in any hydraulic oils,
transformers, capacitors or other electrical equipment.
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3.19 Bulk Sales Compliance and Transfer Taxes.
The sale and transfer of the Assets to be Acquired pursuant to
this Agreement will not result in or be subject to: (a) any law pertaining to
bulk sales or transfers which make such sales or transfers ineffective as to
creditors of Seller; or (b) the imposition of any liability upon Buyer for
appraisal rights or other liability owing to Seller.
3.20 Disclosure.
No representation and warranty by Buyer in this Agreement or
any Schedule hereto contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact required to be stated
therein or necessary to make the statements contained therein not misleading.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER.
Buyer represents and warrants to Seller that the following
representations and warranties are true and correct as of the date hereof and
will also be true and correct on the Consummation Date:
4.1 Status, Power and Authority.
Buyer is a Delaware corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and has the power and authority to own and lease its properties and to conduct
its business as currently conducted and to acquire the Assets to be Acquired.
4.2 Authorization of Agreement.
(a) Buyer has taken all necessary action to authorize and
approve this Agreement and the Buyer Transaction Documents (as defined in this
Section 4.2(a)), the consummation of the transactions contemplated hereby and
thereby and the performance by Buyer of all of the terms and conditions hereof
and thereof on the part of Buyer to be performed. The execution and delivery by
Buyer of this Agreement and each and every other agreement, instrument,
certificate or document to which Buyer is a party that is to be executed,
delivered and performed by Buyer pursuant thereto (collectively, "Buyer
Transaction Documents"), and the consummation of the transactions contemplated
hereby and thereby, do not and will not: (i) violate any provisions of any
judicial or administrative order, award, judgment or decree applicable to Buyer,
or (ii) conflict with any of the provisions of the charter documents of Buyer,
or (iii) conflict with, result in a breach of or constitute a default under any
material agreement or instrument to which Buyer is a party or by which it is
bound.
(b) This Agreement and the Buyer Transaction Documents, when
executed and delivered by Buyer, will have been duly authorized, executed and
delivered by Buyer, and this Agreement constitutes, and the Buyer Transaction
Documents, when executed and delivered by Buyer, will constitute, legal, valid
and binding obligations of Buyer, enforceable against Buyer in accordance with
their respective terms.
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4.3 Litigation.
There is no litigation, at law or in equity, or any
proceedings before any commission or other governmental authority, pending or,
to the knowledge of Buyer, threatened against Buyer that could reasonably be
expected to impair the ability of Buyer to consummate the transactions
contemplated by this Agreement.
4.4 Disclosure.
No representation and warranty by Buyer in this Agreement or
any Schedule hereto contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact required to be stated
therein or necessary to make the statements contained therein not misleading.
4.5 Qualifications and Financing.
Buyer has the requisite qualifications to be the transferee of
the Governmental Licenses and the owner and operator of the Assets and the
Systems. Buyer has sufficient cash reserves, or commitments from reputable
financial institutions to obtain funds necessary to enable Buyer to perform
this Agreement in accordance with its terms and has provided Seller evidence
of Buyer's financial capability, which is true and correct according to the
terms thereof.
5. CONDUCT OF BUSINESS OF BUSINESS PENDING CLOSING, CONSUMMATION AND
ADDITIONAL COVENANTS.
Seller and Buyer covenant and agree that from the date hereof to and
including the Consummation Date:
5.1 Maintenance of Business.
(a) Seller shall continue to operate and maintain the Business
and the Assets to be Acquired (including the maintaining of an adequate level of
inventory of spare equipment and parts), and shall keep all of its business
books, records and files, all in the ordinary course of business in accordance
with past practices consistently applied. Seller shall not sell, transfer or
assign any assets of the Business except in the ordinary course of business and
for full and fair value.
(b) Seller shall not permit the creation of any lien, charge
or encumbrance on any of its assets that would survive the Consummation other
than Permitted Liens. Seller shall not initiate or otherwise cause any other
person to initiate any action to amend or cancel, nor permit any other person to
take any action to amend or cancel, nor permit any other person to take any
action to amend or cancel, any of the Franchises, the Pole Attachment Agreements
or the Agreements without the prior written consent of Buyer, except that,
without such consent, Seller may conclude pending Franchise renewals on terms
substantially similar to pending renewal proposals.
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(c) Promptly after becoming aware thereof, Seller shall notify
Buyer of any action taken or proposed to be taken by a person other than Seller
to amend or cancel any of the Franchises, the Pole Attachment Agreements or the
Agreements. Seller shall not enter into any contract or commitment of any kind
relating to the Business for which Buyer will have any liability after the
Consummation which is not in the ordinary course of business in accordance with
past practices without the prior written consent of Buyer.
(d) Seller shall not permit any of its partners, officers,
directors, shareholders, agents, employees or affiliates to pay any of Seller's
accounts receivable from subscribers outstanding on the date hereof.
Notwithstanding the foregoing, such persons shall be permitted to make payment
for Broadband services received by them at their own dwellings.
(e) Without the prior written consent of Buyer, which consent
shall not be unreasonably withheld, delayed or conditioned, Seller shall not,
except as otherwise required by law (including the requirement to comply with
must-carry requests): (i) change the channel lineup of the Business; (ii) add
additional channels to the Business, except for channels added at the request of
a franchising authority as part of the process of renewing a Franchise (in which
event, Seller shall give Buyer written notice of the addition of such channels);
(iii) change its subscriber rates (provided, however, that if Seller is required
to change its subscriber rates pursuant to a regulatory order, Seller may do so
without the consent of Buyer upon 30 days' prior written notice); or (iv)
conduct any extraordinary or unusual marketing or collection programs,
including, without limitation, any amnesty programs, or any extraordinary
collection practices which might adversely affect customer relationships.
(f) Seller shall comply with all laws, rules and regulations
of federal, state, city and local governments. Seller shall not violate the
terms of any lease or contract connected with the operation of the Business or
with the utilization of the Assets to be Acquired. Seller shall not grant any
increase in the rate of wages, salaries, bonuses or other remuneration of any
employee except as may be consistent with past business practices and not in
excess of five percent (5%) in the aggregate for such employee.
5.2 Insurance.
Seller shall maintain in full force and effect until
Consummation all existing insurance policies or comparable replacements to cover
and protect the Assets to be Acquired against damage or destruction.
5.3 Organization.
Seller shall use its best efforts consistent with sound
business judgment to preserve intact its present business and organization, to
retain the services of its present employees, to preserve its relationships with
subscribers, suppliers and others having business relationships with it and to
maintain the goodwill enjoyed within the municipalities serviced by the
Business.
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5.4 Access for Investigation.
Upon reasonable advance notice, Seller shall afford Buyer and
its representatives reasonable access during normal business hours to the
properties, plant and equipment and to the books and records of Seller in order
that Buyer shall have full opportunity to investigate Business affairs of
Seller.
5.5 Consummation of Agreement.
Seller and Buyer each shall use commercially reasonable
efforts to perform and fulfill all obligations and conditions on their
respective parts to be performed and fulfilled under this Agreement, to the end
that the transactions contemplated by this Agreement shall be fully carried out.
5.6 Cooperation.
Seller and Buyer shall cooperate with each other, to the
extent not inconsistent with their respective obligations hereunder, in
apprising the municipalities serviced by the Business and the utility companies
which have issued the Pole Attachment Agreements of the sale of the Business to
Buyer in such manner as to preserve the goodwill of such municipalities and
utility companies. Buyer and Seller agree to file FCC Form 394's with respect to
the Franchises when consent to assignment is required within ten (10) days
following the date hereof.
5.7 FCC Approval.
Seller shall make application to the FCC for the consent and
approval of the FCC to the transfer of the ownership and operation of any FCC
licenses of the Business from Seller to Buyer, if required.
5.8 Certificates.
On or before the Consummation Date, Seller shall deliver to
Buyer a Certificate of Good Standing issued by the Secretary of State in the
state of Seller's formation as to Seller's good standing in such state and a
Certificate of Good Standing from each jurisdiction in which Seller is qualified
or licensed to do business.
5.9 Third-Party Consents.
Seller shall make such applications to the Franchise
authorities and other third parties identified on Schedule 3.2 whose consent or
approval is required for the consummation of the transactions contemplated
hereby, and shall otherwise use its best efforts to obtain such consents and
approvals prior to the Consummation. Buyer shall use its best efforts to assist
Seller and shall take such actions as may reasonably be necessary in obtaining
such consents and approvals and shall cooperate with Seller in the preparation,
filing and prosecution of such applications. The parties agree to use best
efforts to obtain such consents and approvals in writing and in form and
substance reasonably acceptable to Buyer. Seller shall not agree to any
materially adverse change in any Franchise as a condition to obtaining any
consent or approval necessary for the transfer of such Franchise unless Buyer
shall otherwise consent in writing. Buyer agrees that it shall not seek
amendments or modifications to Franchises or agreements. Buyer shall furnish
17
Seller with copies of such documents and information with respect to Buyer,
including financial information and information relating to cable and other
operations of Buyer and its affiliated or related companies, as Seller may
reasonably request in connection with obtaining any of such consents or
approvals or as may be reasonably requested by any Franchise authority or other
third party in connection with obtaining any consent or approval. Seller's
obligations hereunder with respect to obtaining any consent or approval shall be
satisfied if Buyer has executed a new franchise or contract with the respective
Franchise authority or other third party or if such Franchise authority or other
third party has indicated in writing that it is willing to execute a new
franchise or contract with Buyer.
5.10 FCC and Other Regulatory Compliance.
Seller shall consult with Buyer prior to implementing any
subscriber rate changes relating to the implementation of any FCC regulations,
except as otherwise provided in Section 5.1 hereof. On the Consummation Date,
the Business shall be in material compliance with all requirements of the FCC
rules and regulations.
5.11 Approval of Lessors.
Seller shall use its best efforts to obtain the consent of
each lessor of real property relating to the Business listed on Schedule 3.2 as
being required to consent to the assignment to Buyer of any lease.
5.12 Employees.
Seller shall terminate all of its employees as of the end of
business on the Consummation Date. Seller shall remain solely responsible for
any termination benefits to which any of the employees is entitled by reason of
such termination whether or not such person is subsequently employed by Buyer.
Buyer shall have no obligation to offer employment to any of the employees of
Seller. Buyer shall notify Seller at least fifteen (15) business days prior to
the Consummation Date of those employees to whom Buyer intends to offer
employment. Seller shall refrain from making any statements or communications to
its employees regarding subsequent employment by Buyer or Buyer's employment
policies without Buyer's prior written consent.
5.13 Non-Compete
In consideration for the payment of $_______, (which amount is included
in the purchase price referenced in Section 2.2, above), the receipt of which is
hereby acknowledged by Members (which amount is included in the purchase price
referenced in Section 2.2, above), for a period of three (3) years from the
Consummation Date hereof, neither the Seller nor the Members Partners shall,
without the prior written consent of the Buyer:
(a) offer competitive video and data services within the
communities and geographic areas served by the Acquired System and within all
areas which are within the state of California of such communities and
geographic areas (whether as an employee, agent, servant, owner, partner,
consultant, independent contractor, representative, stockholder or in any other
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capacity whatsoever), nor shall they: (i) conduct any business with any customer
of the Buyer on behalf of any entity or person other than the Buyer if such
business is competitive with the products or services offered by the Buyer, or
(ii) perform any work competitive in any way with the products or services
offered or planned to be brought to market by the Buyer, on behalf of any entity
or person other than the Buyer; providing, however, that the foregoing
provisions of this Section 5.13 shall not apply to any existing Broadband
systems presently owned and operated by Seller, any of the Partners or their
affiliates within the present geographic area or areas served by any such
systems; and
(b) entice, solicit or encourage any employee of the Buyer to
leave the employ of the Buyer or any independent contractor to sever its
engagement with the Buyer; and
(c) directly or indirectly, entice, solicit or encourage any
customer or prospective customer of the Buyer to cease doing business with the
Buyer, or reduce its relationship with the Buyer or refrain from establishing or
expanding a relationship with the Buyer.
5.14 Management Agreement.
Simultaneous to the closing of this document, the Owner shall execute a
Management Agreement with the Buyer. The Buyer will name Xxxxxx X. Xxxxxx, Xx.
as the Manager. In management of the Business Xx. Xxxxxx and all other personnel
that may be involved with the business shall work in a competent and
professional manner at all times.
6. CONDITIONS TO CONSUMMATION - BUYER.
6.1 Conditions to Obligations of Buyer.
The obligations of Buyer to consummate the purchase of the
Assets to be Acquired at Consummation shall be subject to the satisfaction of
the following conditions precedent, except to the extent waived by Buyer in
writing:
(a) All of the representations and warranties of the Seller,
to the best of Seller's knowledge, contained in this Agreement shall be true and
correct in all material respects at and as of the Consummation Date as though
such representations and warranties were made at and as of such time (except for
individual representations or warranties that expressly provide therein that
they are made at and as of a certain date), and Seller shall have performed and
be in compliance in all material respects with all of the covenants, agreements,
terms and provisions set forth herein on its part to be observed or performed.
(b) The consents required from all governmental agencies and entities and other
third parties (including the Buyers financial sources) to Buyer's acquisition of
the Business identified on Schedule 3.2 shall have been granted or obtained.
(c) On the Consummation Date, no suit or action or other
proceeding shall be pending or threatened before any court or other governmental
19
agency against Seller or Buyer in which the consummation of the transactions
contemplated by this Agreement are sought to be enjoined.
(d) Franchise Consents. Buyer shall have received evidence
that all of the necessary Consents relating to the Systems' franchises have been
obtained or given (or deemed to have been given in accordance with Section 617
of the Communications Act (47 U.S.C. Section 537)) and are in full force and
effect. This Consummation condition shall be deemed satisfied when (i) the
number of Equivalent Subscribers in franchising areas where the consent of the
franchising authority is not required to transfer the applicable franchise plus
(ii) the number of Equivalent Subscribers in franchising areas where the local
franchising authorities have consented to the transfer of the applicable
franchises equals or is greater than 97% of the number of Equivalent Subscribers
served by the Systems.
(e) Seller shall have delivered to Buyer:
(i) the Good Standing Certificates described in
Section 5.8;
(ii) one or more Officer Certificates, dated as of
the Consummation Date, in form and substance
reasonably satisfactory to Buyer, certifying:
(A) that the conditions set forth in each of
the provisions of Section 6.1(a), (b) and (c) of this
Agreement have been satisfied in full;
(B) that the resolutions of the Seller's (a
copy of which shall be attached to the Certificate)
authorizing the execution, delivery and performance
of the Seller Transaction Documents and the sale of
the Assets to be Acquired and the transactions
contemplated hereby have been approved and adopted;
(C) the Certificate of Formation of Seller
(a copy of which shall be attached to the Certifi-
cate), certified by the Secretary of State of the
state of formation;
(D) a Certificate of Good Standing of Seller
(a copy of which shall be attached to the Certificate
and which shall not be dated more than thirty (30)
days prior to Consummation) issued by the Secretary
of state of formation, and from the states in which
Seller is required to be qualified; and
(E) a certificate of incumbency executed by
the secretary and each of the officers of Seller
executing this Agreement and the documents delivered
hereunder.
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(iii) at least two (2) weeks prior to the
Consummation Date, lien searches dated not more than thirty
(30) days prior to the Consummation Date showing all UCC-1
financing statements filed with any filing offices wherein
Seller is named a debtor, all federal, state or local tax
liens filed against the Seller, all recorded mortgages naming
any Seller as a mortgagor, all unsatisfied judgments naming
any Seller as a judgment debtor and all pending litigation in
which any Seller is a defendant, all of which shall be
released or terminated prior to or at the Consummation. The
expense of lien searches shall be shared by Buyer and Seller.
(iv) the matters described in Section 8 hereof or any
documents or other items required to be delivered hereunder to
Buyer at or prior to Consummation shall have been delivered.
7. CONDITIONS TO CONSUMMATION - SELLER.
7.1 Conditions to Obligations of Seller.
The obligations of the Seller to consummate the sale of the
Assets to be Acquired at Consummation shall be subject to the satisfaction of
the following conditions precedent, except to the extent waived by Seller in
writing:
(a) All of the representations and warranties of Buyer
contained in this Agreement shall be true and correct in all material respects
at and as of the Consummation Date as though such representations and warranties
were made at and as of such time (except for individual representations and
warranties that expressly provide therein that they are made at and as of a
certain date), and Buyer shall have performed and be in compliance in all
material respects with all of the covenants, agreements, terms and provisions
set forth herein on its part to be observed and performed.
(b) On the Consummation Date, no suit or action or other
proceeding shall be pending or threatened before any court or other governmental
agency against Seller or Buyer in which the consummation of the transactions
contemplated by this Agreement are sought to be enjoined.
(c) Buyer shall have delivered to Seller:
(i) One or more Officer Certificates, dated as of the
Consummation Date, in form and substance reasonably
satisfactory to Seller, certifying:
(A) to the effect that the conditions set
forth in Section 7.1(a) and (b) of this Agree-
ment have been satisfied in full;
(B) that the [resolutions of the Buyer's
board of directors] (a copy of which shall be
attached to the Certificate) authorizing the
execution, delivery and performance of the Buyer
Transaction Documents and the purchase of the Assets
to be Acquired and the transactions contemplated
hereby have been approved and adopted;
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(C) a Certificate of Good Standing of Buyer
(a copy of which shall be attached to the Certificate
and which shall not be dated more than thirty (30)
days prior to Consummation); and
(D) a certificate of incumbency executed by
the secretary and each of the officers of Buyer
executing this Agreement and the documents delivered
hereunder.
(ii) the Purchase Price, as adjusted in accordance
with Section 2.6;
(iii) assumption documents in form and substance
reasonably satisfactory to Seller pursuant to which Buyer
shall have assumed the Assumed Liabilities.
8. ACTION TO BE TAKEN AT AND AFTER CONSUMMATION.
8.1 Action to be Taken at and after Consummation.
(a) At Consummation, Seller shall deliver to Buyer:
(i) Such bills of sale, endorsements, assignments,
special warranty deeds and other good and sufficient
instruments of transfer and conveyance as shall be reasonably
deemed necessary by Buyer to vest in or confirm to Buyer good
title to all of the assets and properties constituting the
Assets to be Acquired free and clear of any Liens except for
Permitted Liens;
(ii) A complete itemized list of all of Seller's
subscriber accounts receivable relating to the Business as of
a date no later than 10 days prior to the Consummation Date,
showing sums due and their respective aging for the period
ending on the Consummation Date;
(iii) Actual possession and operating control of the
Business;
(iv) The documents and instruments required to be
delivered by Seller to Buyer pursuant to the terms of Section
6; and
(v) All of the consents and approvals indicated on
Schedule 3.2 as being required for the Consummation.
(b) At Consummation, Buyer shall deliver to Seller:
(i) The Purchase Price, as adjusted in accordance
with Section 2.6; and
(ii) The documents and instruments required to be
delivered by Buyer to Seller pursuant to the terms of Section
7.
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(c) After Consummation, Seller shall deliver to Buyer, as
received from time to time:
(i) any cash or other property that it may receive in
respect to subscriber accounts receivable received after the
Consummation Date relating to Business and operations of the
Business arising prior to or subsequent to the Consummation
Date;
(ii) any Assets to be Acquired not effectively
transferred to Buyer at the Consummation; and
(iii) from time to time at the request of Buyer and
without further consideration, such further instruments of
conveyance, transfer and assignment as Buyer may reasonably
request in order to convey more effectively the transfer to
Buyer of any of the Assets to be Acquired, and Seller shall
assist Buyer in the reduction to possession of any such
assets, possession of which was not delivered to Buyer at
Consummation. Buyer shall be responsible for the preparation
of the entire documents incidental to such conveyance,
transfer and reduction to possession.
9. DAMAGE TO PROPERTY AND RISK OF LOSS.
(a) The risk of any loss or damage to the Assets to be
Acquired and the Business resulting from fire, theft or any other casualty (but
excluding any loss or damage attributable to reasonable wear and tear)
("Damage") shall be borne by Seller at all times prior to the Consummation. In
the event that any such Damage shall be sufficiently substantial so as to
preclude and prevent resumption of normal operations of all or any portion of
the Business within Sixty (60) days from the occurrence of the event resulting
in such loss or damage, Seller shall immediately notify Buyer in writing of its
inability to resume normal operations or to replace or restore the lost or
damaged property, and Buyer, at any time within ten (10) days after receipt of
such notice, may elect either (a) to waive such defect and proceed toward
consummation of the transaction in accordance with the terms of this Agreement,
or (b) to terminate this Agreement. If Buyer elects to terminate this Agreement
pursuant to this Section, the parties hereto shall stand fully released and
discharged of any and all obligations hereunder, and the Deposit shall be
returned to Buyer.
(b) If Buyer shall elect to consummate this transaction
notwithstanding such Damage and does so, or in the event of damage to the
Business which is not material damage to the Business, there shall be no
diminution of the Purchase Price, and all insurance proceeds (other than for
bodily injury or for damage to property other than the Assets to be Acquired or
for business interruption prior to the Consummation Date) payable as a result of
the occurrence of the event resulting in the Damage shall be delivered to Buyer,
or the rights thereto shall be assigned to Buyer if not yet paid over to Seller,
and Seller shall pay to Buyer the amount of any deductible associated with the
insurance claim.
(c) Notwithstanding the provisions of this Section 9, in the
event of Damage to the Business which is not material damage (i.e., less than
$10,000) to the Business, Seller shall have the full responsibility for the
23
completion of all necessary repair and/or restoration work with respect to such
damage, whether or not such work is capable of being completed prior to the
Consummation Date, and shall promptly and with due diligence, in a prudent and
workmanlike manner, proceed with such work, time being of the essence.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
10.1 Survival of Representations and Warranties.
All representations, warranties, covenants, stipulations,
certifications, indemnities and agreements contained herein or in any document
delivered pursuant hereto shall survive the consummation of the transactions
provided for in this Agreement (except for the following representations and
warranties which will expire at consummation; 3.3, 3.5, 3.6, 3.7, 3.8 and 3.14);
provided that the representations and warranties contained in this Agreement
shall expire and be extinguished eighteen (18) months after the Consummation
Date, except for representations and warranties relating to tax matters, which
shall survive until the expiration of the statute of limitations with respect to
liabilities related thereto, and Buyer's and Seller's rights to make claims
based thereon shall likewise expire and be extinguished on such dates.
10.2 Indemnification.
(a) Seller and the Partners, jointly and severally, shall
defend, indemnify and hold Buyer harmless from and against any and all claims,
liabilities, damages, losses, deficiencies and expenses (including reasonable
attorneys' fees and expenses and costs of suit, including, but not limited to,
travel expenses and discovery costs for such matters as transcripts,
photocopying, subpoenas and telecopies) (individually, a "Loss" and
collectively, "Losses") arising out of or relating to (i) any and all breaches
of representations and warranties, and out of any and all breaches of covenants,
agreements and certifications made by or on behalf of Seller in this Agreement
or in any document delivered hereunder, (ii) any failure to comply with any
applicable bulk transfer acts, or (iii) any and all liabilities and obligations
of Seller (except for the Assumed Liabilities). Buyer shall not be entitled to
be indemnified by Seller for any Losses under this Section 10.2(a) (other than
Losses relating to tax matters) arising out of any single claim or aggregate
claims until the total amount of all such Losses suffered or paid by Buyer
exceeds $50,000. Buyer shall then be entitled to be indemnified for all such
Losses under this Section 10.2(a) arising out a single claim or aggregate claims
up to an aggregate indemnification of $1,000,000 ("Seller's Cap"). All claims
due by Owner will be paid in the same proportion of the Purchase price (50% in
stock, 20% in cash and 30% in Note, if note is paid off then 50% stock and 50%
in cash).
(b) Buyer shall defend, indemnify and hold Seller and the
Partners harmless from and against any and all Losses arising out of or relating
to (i) any and all breaches of representations, and out of any and all breaches
of covenants, warranties, stipulations, agreements and certifications made by or
on behalf of Buyer in this Agreement or in any document delivered by Buyer
hereunder; (ii) the Assumed Liabilities; and (iii) all debts, liabilities or
claims owing by or against Buyer subsequent to the Consummation Date or arising
out of Business activities of Buyer subsequent thereto. Seller shall not be
entitled to be indemnified by Buyer for any Losses under this Section 10.2(b)
arising out of any single claim or aggregate claims until the total amount of
all such Losses suffered or paid by Seller exceeds $50,000. Seller shall then be
24
entitled to be indemnified for all such Losses under this Section 10.2(b)
arising out a single claim or aggregate claims up to an aggregate
indemnification of $1,000,000 ("Buyer's Cap").
10.3 Indemnification with Respect to Third-Party Claims.
(a) Definitions. As used herein, a "Third-Party Claim" means a
Loss or potential Loss for which indemnification is claimed by Buyer or Seller
(the "Indemnitee") under the provisions of this Article 10 and which is
consequent to a claim against the Indemnitee by a person, corporation,
association, partnership or other business organization, or an individual, or a
government, any political subdivision thereof or a governmental agency by
commencement against the Indemnitee of a legal action or proceeding or receipt
by the Indemnitee of an assertion of a claim for which indemnification is
provided pursuant to this Article 10 by Buyer or Seller, as the case may be (the
"Indemnitor").
(b) Notice of Claim. The Indemnitee will give notice of a
Third-Party Claim to the Indemnitor, together with, if such Third-Party Claim is
subject to arbitration pursuant to Section 14 hereof, demand for arbitration,
stating the nature thereof and enclosing copies of any complaint, summons,
written assertion of such Third-Party Claim or similar document. No claim for
indemnification on account of a Third-Party Claim shall be made and no
indemnification therefor shall be available under this Article 10 until the
Indemnitee shall have given initial written notice of its claim to the
Indemnitor.
(c) Retention of Counsel by the Indemnitor. Except as
hereinafter provided (including, but not limited to, Section 10.3(d)(ii)
hereof), the Indemnitor shall engage counsel to defend a Third-Party Claim, and
shall provide notice to the Indemnitee not later than 15 business days following
delivery by the Indemnitee to the Indemnitor of a notice of a Third-Party Claim,
such notice to include an acknowledgment by the Indemnitor that it will be
liable in full to the Indemnitee for any Losses in connection with such
Third-Party Claim. The Indemnitee will fully cooperate with such counsel. The
Indemnitor will cause such counsel to consult with the Indemnitee as appropriate
as to the defense of such claim, and the Indemnitee may, at its own expense,
participate in such defense, assistance or enforcement, but the Indemnitor shall
control such defense, assistance or enforcement. The Indemnitor will cause such
counsel engaged by the Indemnitor to keep the Indemnitee informed at all times
of the status of such defense, assistance or enforcement.
(d) Employment of Counsel by the Indemnitee.
(i) Notwithstanding the provisions of Section
10.3(c), the Indemnitee shall have the right to engage counsel
and to control the defense of a Third-Party Claim if the
Indemnitor shall not have notified the Indemnitee of its
appointment of counsel and control of the defense of a
Third-Party Claim pursuant to Section 10.3(c) within the time
period therein provided.
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(ii) Notwithstanding the engagement of counsel by the
Indemnitor, the Indemnitee shall have the right, at its own
expense, to engage counsel to participate jointly with the
Indemnitor in, and to control jointly with the Indemnitor, the
defense of a Third-Party Claim if (x) the Third-Party Claim
involves remedies other than monetary damages and such
remedies, in the Indemnitee's reasonable judgment, could have
an effect on the conduct of the Indemnitee's business, or (y)
the Third-Party Claim relates to acts, omissions, conditions,
events or other matters occurring after the Consummation Date
as well as to acts, omissions, conditions, events or other
matters occurring prior to the Consummation Date, or (z) the
claims involve monetary damages which could exceed Seller's
Cap or the Buyer's Cap.
(iii) If the Indemnitee chooses to exercise its right
to appoint counsel under this Section 10.3(d), the Indemnitee
shall deliver notice thereof to the Indemnitor setting forth
in reasonable detail why it believes that it has such right
and the name of the counsel it proposes to employ. The
Indemnitee may deliver such notice at any time that the
conditions to the exercise of such right appear to be
fulfilled, it being recognized that in the course of
litigation, the scope of litigation and the amount at stake
may change. The Indemnitee shall thereupon have the right to
appoint such counsel.
(iv) The reasonable fees and expenses of counsel and
any accountants, experts or consultants engaged by the
Indemnitee in accordance with the provisions of Section
10.3(d)(i) in connection with defending a Third-Party Claim
shall be paid by the Indemnitor in accordance with the
provisions of this Article 10. If the Indemnitee's employment
of counsel is for a Third-Party Claim of the type described in
subdivision (ii)(y) or (ii)(z) of this Section 10.3(d), then
subject to the provisions of Section 10.3(e), the amount of
fees and expenses so payable by the Indemnitor shall be that
fraction of the aggregate of such fees and expenses, the
numerator of which is the portion of the amount of any
judgment on, or settlement of, such Third-Party Claim for
which the Indemnitee is indemnified pursuant to this Article
10 and the denominator of which is the total amount of such
judgment or settlement, but provided further, if such defense
of a Third-Party Claim is successful (in the sense that as a
consequence thereof, there is no Loss (other than such fees
and expenses) for which the Indemnitee is indemnified pursuant
to this Article 10), the Indemnitee and the Indemnitor will
attempt in good faith to reach an agreement on the amount of
such fees and expenses so payable by the Indemnitor.
(e) Settlement of Third-Party Claims.
(i) The Indemnitor may settle any Third-Party Claim
solely involving monetary damages only if the amount of such
settlement is to be paid entirely by the Indemnitor pursuant
to this Article 10.
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(ii) The Indemnitor will not enter into a settlement
of a Third-Party Claim which involves a non-monetary remedy or
which will not be paid entirely by the Indemnitor pursuant to
this Article 10 without the written consent of the Indemnitee
(which consent shall not be unreasonably withheld, delayed or
conditioned).
(iii) Indemnitee will not enter into a settlement of
a Third-Party Claim without the written consent of the Indemni
-tor, which consent shall not be unreasonably withheld, under
the circumstances described in subdivision (i) of Section
10.3(d), if the Indemnitor has accepted all or any portion of
the liability for such Third-Party Claim. Otherwise, the
Indemnitee shall be free to compromise, defend and settle
Third-Party Claims without prejudice to any of its rights
hereunder or under applicable law and without prejudice to its
right to assert a claim that such claim is not valid.
(iv) As to any Third-Party Claim of the type describ-
ed in subsection (ii)(y) or subsection (ii)(z) of Section
10.3(d), the Indemnitee and the Indemnitor shall consult as to
any proposed settlement. If the Indemnitee notifies the
Indemnitor that it wishes to accept a proposed settlement and
the Indemnitor is unwilling to do so, if the amount for which
the Third-Party Claim is ultimately resolved is greater than
the amount for which the Indemnitee desired to settle, then
(x) the Indemnitee shall be liable only for the amount, if
any, which it would have paid had the Third-Party Claim been
settled as proposed by the Indemnitee, and (y) all reasonable
attorneys' fees and expenses and costs of suit incurred by the
Indemnitee subsequent to the time of the proposed settlement
shall be paid or reimbursed by the Indemnitor.
(v) In determining whether to accept or reject any
settlement proposal, each party shall act in good faith and
with due regard for the reasonable commercial and financial
interests of the other.
(f) Claims as to Which Indemnification is Partially Payable.
Notwithstanding the foregoing, in the event of any settlement of, or
final judgment with respect to, a Third-Party Claim which relates to
acts, omissions, conditions, events or other matters occurring both
before and after the Consummation Date, the Indemnitee and the
Indemnitor shall negotiate in good faith as to the portion of such
Third-Party Claim as to which such indemnification is payable.
(g) Cooperation, etc. The Indemnitee and the Indemnitor shall
cooperate with one another in good faith in connection with the
defense, compromise or settlement of any claim or action. Without
limiting the generality of the foregoing, the party controlling the
defense or settlement of any matter shall take steps reasonably
designed to ensure that the other party and its counsel are informed at
all times of the status of such matter. Neither party shall dispose of,
compromise or settle any claim or action in a manner that is not
reasonable under the circumstances and in good faith. The Indemnitor
and Indemnitee shall enter into such confidentiality and other
27
non-disclosure agreements as the Indemnitee or Indemnitor, as the case
may be, shall reasonably request in order to protect trade secrets and
other confidential or proprietary information of the Indemnitee or
Indemnitor, as the case may be.
11. TERMINATION.
11.1 Termination by Mutual Agreement.
This Agreement may be terminated prior to Consummation (i) by
mutual agreement of Seller and Buyer or (ii) by Buyer in the event of a
substantial loss under Section 9 and or cancellation of the Buyers financial
sources. In such event, this Agreement shall terminate and neither Buyer nor
Seller shall have any further obligation or liability to the other hereunder,
except that Sections 15, 16.5, 16.6 and 16.7 of the Agreement shall survive and
continue in full force and effect notwithstanding such termination.
11.2 Buyer's Default.
In the event that the transactions contemplated by this
Agreement are not consummated on the Consummation Date (if and as extended) due
to Buyer's failure or refusal to close, and all of the conditions specified in
Section 7 (other than deliveries to be made at the Consummation) shall have been
satisfied or tendered, this Agreement shall be automatically terminated, and
Seller shall be entitled to the Deposit.
11.3 Seller's Default.
In the event that the transactions contemplated by this
Agreement are not consummated on the Consummation Date (if and as extended) due
to Seller's failure or refusal to close, and all of the conditions specified in
Section 7 (other than deliveries to be made at the Consummation) shall have been
satisfied or tendered, this Agreement shall be automatically terminated, and
Buyer shall be entitled the Deposit back and to pursue any and all of its
equitable and legal causes of action against Seller.
11.4 Termination by Buyer or Seller.
This Agreement may be terminated by Buyer or Seller at any
time after the Termination Date in the event that any condition to the
terminating party's obligations set forth in Sections 6 or 7 hereof (other than
deliveries to be made at the Consummation) has not been (i) satisfied or
tendered by the party owing performance or (ii) waived by the terminating party
(provided that the failure of such condition is not due to the breach of the
terminating party), and upon such termination, neither Buyer nor Seller shall
have any further obligation or liability to the other hereunder, except that
Sections 15, 16.5, 16.6 and 16.7 of this Agreement shall survive and continue in
full force and effect notwithstanding such termination.
12. NOTICE.
All notices and other communications hereunder shall be in writing and
delivered by one of the following methods of delivery: (i) personally, (ii) by
registered or certified mail, return receipt requested, postage prepaid, (iii)
28
by overnight courier, or (iv) by legible facsimile transmission, in all cases
addressed as follows:
To Buyer:
NexHorizon Communications, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, CEO
With a copy to:
Xxxxxxx Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
To Seller:
CHULA VISTA CABLE, LTD.
000 X Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
With a copy to:
Xxxxx Xxxxxxxx & Xxxx
Attorney at Law
Attn: Xxxxxxx X. Xxxxx
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
or to such address as such party may indicate by a notice delivered to the other
parties hereto. Notice shall be deemed received the same day (when delivered
personally), five (5) days after mailing (when sent by registered or certified
mail) or the next business day (when sent by facsimile transmission or when
delivered by overnight courier). Any party to this Agreement may change its
address to which all communications and notices may be sent hereunder by
addressing notices of such change in the manner provided.
13. BROKERAGE COMMISSION.
Buyer and Seller each represent and warrant that all negotiations
relative to this Agreement and the transactions contemplated hereby have been
carried on by each directly with the other without intervention of any person.
Each party to this Agreement indemnifies the other and holds it harmless against
29
and in respect of any claim against the other for brokerage or other commissions
relative to this Agreement and the transactions contemplated hereby by the
indemnifying party's employees, agents or consultants.
14. LAWS GOVERNING.
The construction, interpretation and enforcement of this Agreement and
the rights of the parties hereunder shall be governed by the laws of the State
of California without regard to any jurisdiction's conflicts of law provisions.
15. MISCELLANEOUS.
15.1 Counterparts; Telecopy.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which when taken together
shall constitute one and the same instrument. Delivery of executed signature
pages hereof by facsimile transmission shall constitute effective and binding
execution and delivery hereof.
15.2 Assignment.
This Agreement may not be assigned by any party hereto without
the prior written consent of the other parties; provided, however, that Buyer
may assign this Agreement to one or more of the subsidiaries or affiliates of
Buyer, without the prior written consent of Seller, provided Buyer remains
primarily liable to fully perform the terms of this Agreement; provided, further
that such assignment does not cause any consent or approval required to be
obtained hereunder to be withheld, delayed or otherwise conditioned.
15.3 Entire Agreement.
This Agreement is an integrated document, contains the entire
agreement between the parties, wholly cancels, terminates and supersedes any and
all previous and/or contemporaneous oral agreements, negotiations, commitments
and writings between the parties hereto with respect to such subject matter. No
change, modification, termination, notice of termination, discharge or
abandonment of this Agreement or any of the provisions hereof, nor any
representation, promise or condition relating to this Agreement, shall be
binding upon the parties hereto unless made in writing and signed by the parties
hereto, except that termination or notices of termination which may be effected
pursuant to the terms of this Agreement by either party to the Agreement shall
be binding if made in writing and signed by the applicable party.
15.4 Interpretation.
Article titles and headings to Sections herein are inserted
for convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of any of the provisions of this Agreement.
All references to Sections, subsections, Schedules or Exhibits contained in this
Agreement are references to the Sections and subsections of this Agreement and
30
the Schedules or Exhibits described on the list immediately following the
signature page hereto and attached hereto. All references to the word
"including" shall have the meaning represented by the phrase "including without
limitation."
15.5 Expenses.
Each of Seller and Buyer shall pay its own attorneys,
accountants, advisors, investment bankers, brokers and other expenses in
connection with the transaction contemplated hereby, except that the Buyer will
pay all costs related to the audits required to consummate this transaction in
accordance with federal regulations and the Buyer's financial sources. In the
event this transaction does not close the Buyer agrees to provide the audit as
consideration to the Seller for future use as total and final settlement of any
and all future claims.
15.6 Confidentiality.
Any and all information obtained by Buyer from Seller in
connection with the transactions contemplated by this Agreement which is
confidential in nature (collectively, the "Evaluation Material") shall be kept
strictly confidential by Buyer prior to the Consummation Date; provided,
however, that any Evaluation Material may be disclosed to agents, employees,
officers, directors, investors, advisors and other representatives of Buyer who
need to know such Evaluation Material (it being agreed that such representative
shall be informed by Buyer of the confidential nature of such Evaluation
Material and shall be directed to deal with such Evaluation Material
confidentially) and, further, may be disclosed to the extent required by law,
including applicable securities laws, or by written or oral question or request
for information or documents in legal proceedings, interrogatories, subpoenas,
civil investigative demands or similar processes. For purposes of this
Agreement, the term "Evaluation Material" does not include information which (i)
becomes generally available to the public other than as a result of disclosure
by Buyer or any Buyer representative in violation of the terms hereof, (ii) was
available on a non-confidential basis prior to disclosure to Buyer by Seller or
any of its directors, officers, employees, agents or representatives, or (iii)
becomes available to Buyer on a non-confidential basis from a source (other than
Seller or any of its directors, officers, employees, agents or representatives)
which is not bound by a confidentiality agreement with Seller.
The above provisions shall apply likewise to the Seller with
respect to any such information provided by the Buyer to the Seller.
15.7 Public Announcements.
Neither Buyer nor Seller shall, without the approval of the
other party (which may not be unreasonably withheld), make any press release or
other public announcement concerning the transactions contemplated by this
Agreement, except as and to the extent that such party shall be so obligated by
law (including any legal obligation imposed on Buyer in connection with its
status as a publicly-held corporation), in which case the other party shall be
advised and Buyer and Seller shall use its reasonable efforts to cause a
mutually agreeable release or announcement to be issued.
31
15.8 Waivers.
Any term or provision of this Agreement may be waived, or the
time for its performance may be extended, by the party or parties entitled to
the benefit thereof, but any such waiver must be in writing and must comply with
the notice provisions contained in Section 13. The failure of any party hereto
to enforce at any time any provision of this Agreement shall not be construed to
be a waiver of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any party thereafter to enforce
each and every such provision. No waiver of any breach of this Agreement shall
be held to constitute a waiver of any other or subsequent breach.
15.9 Partial Invalidity.
Wherever possible, each provision hereof shall be interpreted
in such a manner as to be effective and valid under applicable law, but in case
any one or more of the provisions contained herein shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provisions had never been contained herein, unless the deletion of
such provision or provisions would result in such a material change as to cause
the completion of the transactions contemplated hereby to be unreasonable.
15.10 Incorporation by Reference.
Any and all Schedules, Exhibits or Recitals referred to herein
or attached hereto are incorporated herein by reference thereto as though fully
set forth at the point referred to in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized corporate officers on the day and year first above
written.
NEXHORIZON COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------
Xxxxxx X. Xxxxxx, Xx., CEO
CABLE VISTA CABLE, LTD. dba Chula Vista Cable
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Xxxxxxx Xxxxxxx, General Partner
32
EXHIBITS
Schedule 1.3 Excluded Assets
Schedule 2.6 Purchase Price Allocation
Schedule 3.4 Title to Assets
Schedule 3.5 Subscribers Exclusion List
Schedule 3.6 Franchise Agreements
Schedule 3.7 Pole Attachment Agreements
Schedule 3.8 Real Property
Schedule 3.8a Leases and Rights of Way
Schedule 3.9 Other Material Contracts and Leases
Schedule 3.10 Litigation or Judgements
Schedule 3.11 Tax Returns and Payments
Schedule 3.12 Condition of Assets to be Acquired and Insurance
33
