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Exhibit (2)-2
EXECUTION COPY
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement ("Amendment")
is made as of September 27, 1996, by and between Tele-Communications, Inc., a
Delaware corporation ("Buyer"), and Xxxxxx-Xxxxxx Cablevision, Inc., a Florida
corporation ("KRC"), KRC-SNJ, Inc., a Delaware corporation ("KRC-SNJ"),
KRC-NJFT, Inc., a Delaware corporation ("KRC-NJFT") and Xxxxxx-Xxxxxx Investment
Company, a Delaware corporation ("KRIC") (with KRC, KRC-SNJ, KRC-NJFT and KRIC
referred to collectively as "Seller").
RECITALS
Buyer and Seller entered into an Asset Purchase Agreement as
of March 18, 1996 (the "Agreement"). The parties wish to amend the Agreement as
set forth in this Amendment. All capitalized terms used but not defined in this
Amendment will have the meanings set forth for such terms in the Agreement.
AMENDMENT
For valuable consideration the parties agree as follows:
1. A new SECTION 2.2.8 is added to the Agreement which will
read in its entirety as follows:
2.2.8 If Buyer selects the option referred to in
SECTION 2.2.2 and provides irrevocable notice of such
selection to Seller not later than October 31, 1996, then the
following provisions will apply:
(a) Buyer will no longer have the right to select the
option referred to in SECTION 2.2.1.
(b) Buyer will have the right to cause InterMedia
Partners VI, L.P. ("IP") to be the purchaser of a portion (to
be identified not less than three Business Days prior to
Closing) of the TKR Cable Interest from Seller at Closing
(such TKR Cable Interest purchased by IP being referred to as
the "IP Portion").
(c) Buyer will have the right to cause TKR Cable to
borrow funds and use such funds either (i) to redeem the
balance of the TKR Cable Interest from Seller or (ii) to lend
the proceeds of such borrowing to TCI Atlantic, Inc. to be
used to purchase the balance of the TKR Cable Interest from
Seller (in either case, after taking into account the sale of
the IP Portion by Seller to IP and any other redemption of the
TKR Cable Interest permitted by this Agreement) at Closing
(such TKR Cable Interest redeemed or purchased by TCI
Atlantic, Inc. being referred to as the "Other Portion").
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(d) Buyer will have the right to decrease, by not
more than $20 million, the amount of consideration payable in
the form of shares of Buyer's Series A Common Stock in
accordance with SECTION 2.2.2(B), and increase the
consideration payable in accordance with SECTION 2.2.2(A) by
the same amount as the SECTION 2.2.2(B) consideration
decrease.
(e) All references in this Agreement to the
assignment by Seller of the TKR Cable Interest to Buyer and
the assumption by Buyer of related Assumed Liabilities will be
revised as appropriate to reflect the transactions referenced
in this SECTION 2.2.8, as applicable (in a manner that does
not adversely affect Seller), and KRC will, and Buyer will
cause IP to (with respect to the IP Portion) and the parties
will cause TKR Cable, or Buyer will cause TCI Atlantic, Inc.,
as applicable, to (with respect to the Other Portion), execute
and deliver a separate Assignment, Assumption and Xxxx of Sale
in substantially the form attached as EXHIBIT A at Closing
with respect to each of the IP Portion and the Other Portion,
as applicable. Any Assumed Liabilities or other obligations of
Buyer under this Agreement with respect to the TKR Cable
Interest (including any such obligations pursuant to Section
10.3) that are not assumed by IP, TCI Atlantic, Inc. or TKR
Cable, respectively, pursuant to such Assignment, Assumption
and Xxxx of Sale documents delivered at Closing will remain
the obligations of Buyer.
(f) In addition to the other conditions to Buyer's
obligations to consummate the transactions contemplated by
this Agreement to take place at the Closing described in
SECTIONS 8.1 and 8.2, Buyer's obligations to consummate the
Closing will also be subject to the satisfaction, or waiver by
Buyer to the extent permitted by applicable Legal
Requirements, at or prior to the Closing Date, of the Closing
conditions described in SECTIONS 8.2.4, 8.2.5 and 8.2.6 with
respect to the transactions described in this SECTION 2.2.8,
and any related amendment and restatement of the partnership
agreement of TKR Cable (substantially similar to the draft
provided to Seller) to become effective upon Closing (as well
as with respect to the transactions contemplated by this
Agreement without taking this Section into account).
(g) Seller's representations, warranties, covenants,
agreements and indemnifications under this Agreement, to the
extent related to the IP Portion or the Other Portion, will
continue to be for Buyer's benefit.
(h) Buyer will cause all revisions to existing
applications (or new applications) for Required Consents from
applicable Governmental Authorities, which Buyer in good faith
believes are necessary with respect to the transactions
contemplated by this SECTION 2.2.8, to be filed or made as
soon as practicable after October 1, 1996 (and for purposes of
this covenant, Buyer will be deemed to be acting in good faith
in relying on advice of counsel as to the necessity of such
revisions or applications).
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2. SECTION 2.3.2 of the Agreement is amended to read
in its entirety as follows:
2.3.2 The Base Purchase Price will be: (i) decreased
by $850,000 plus, to the extent determined prior to the
Closing Date, the amount of the Allocable Fixed Kentucky
Property Tax Amount and (ii) increased by the amount, if any,
equal to $66,207 per day from October 1, 1996 to the Closing
Date.
3. The third sentence of SECTION 2.3.3(C) is amended to
substitute the words "November 15, 1996" for the words "the determination of the
Final Purchase Price."
4. The last two sentences of SECTION 2.3.4(A) of the Agreement
are amended to substitute the words "applied to" for the words "subtracted from"
in each place those words appear.
5. The first sentence of SECTION 2.3.4(C) of the Agreement is
amended by deletion of the parenthetical phrase.
6. The first sentence of SECTION 2.4 of the Agreement is
amended to read in its entirety as follows:
The consideration payable by Buyer to Seller and KRI under
this Agreement will be allocated as follows: (a) $71,257,892
will be allocated to the purchase of the KR Note; (b) $40
million will be allocated to the Noncompetition Agreement; and
(c) $4.7 million will be allocated to the KRC/CCC Interest,
$37.3 million will be allocated to the TKR Partners Interest,
$799,000 will be allocated to the NJFT Interest, $7,692,000
will be allocated to the subsidiaries owned by TKR Cable and
the balance will be allocated to the assets owned directly by
TKR Cable rather than any of its subsidiaries (the "TKR Cable
Direct Assets").
7. SECTION 6.14 of the Agreement is deleted and replaced with
the words "intentionally omitted" (to avoid renumbering of other Sections).
8. SECTION 9.1(B) of the Agreement is amended by changing the
date specified from "December 31, 1996" to "March 31, 1997".
9. SECTION 11.1 of the Agreement is amended by the addition of
the following sentence at the end of the existing text:
Except as permitted by SECTION 2.2.8, prior to Closing,
without the prior written consent of Seller, Buyer will not
assign any of its rights under this Agreement or delegate any
of its duties under this Agreement if such assignment or
delegation would cause a delay in Closing from the date it
would otherwise occur without such assignment and delegation.
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10. For purposes of Section 2.3.3 of the Agreement, the
parties agree that the Aggregate Allocable Cash Flow, before taking into account
any adjustment that may be applicable pursuant to the third sentence of Section
2.3.3(c), is $22,828,400.
11. THIS AMENDMENT AND THE RIGHTS OF THE PARTIES UNDER IT WILL
BE GOVERNED BY AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAWS RULES OF DELAWARE.
12. This Amendment may be executed in counterparts, each of
which will be deemed an original.
13. Except as amended by this Amendment, all terms and
provisions of the Agreement will remain unchanged and in full force.
14. Any term or provision of this Amendment which is invalid
or unenforceable will be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining rights
of the Person intended to be benefitted by such provision or any other
provisions of this Amendment.
15. This Amendment has been negotiated by Buyer and Seller and
their respective legal counsel, and legal or equitable principles that might
require the construction of this Amendment or any provision of this Amendment
against the party drafting this Amendment will not apply in any construction or
interpretation of this Amendment.
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The parties have executed this First Amendment to Asset
Purchase Agreement as of the day and year first above written.
SELLER:
Xxxxxx-Xxxxxx Cablevision, Inc. KRC-NJFT, Inc.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
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Title: Director Title: Director
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KRC-SNJ, Inc. Xxxxxx-Xxxxxx Investment Company
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
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Title: Director Title: Director
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BUYER:
Tele-Communications, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Executive Vice President/General Counsel & Secretary
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