EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT is made as of the 28th day of
February, 1997, by and between XXXXX INTERCABLE INVESTORS, L.P., a Colorado
limited partnership ("Seller"), and XXXXX INTERCABLE, INC., a Colorado
corporation ("Buyer").
RECITALS
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A. Seller owns and operates a cable television system in and
around the municipalities of Independence, Missouri and Olathe, Kansas (the
"System").
B. Seller desires to sell to Buyer, and Buyer desires to
purchase from Seller, the System upon the terms and conditions set forth in this
Agreement.
AGREEMENT
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In consideration of the mutual promises contained in this Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale. Subject to the terms and conditions set
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forth in this Agreement, Seller hereby agrees to sell, convey, assign, transfer
and deliver to Buyer, and Buyer hereby agrees to purchase from Seller, on the
Closing Date (as defined in Paragraph 9 hereof), all of Seller's right, title
and interest in and to the System and the Assets (as defined in Paragraph 2
hereof) then being transferred and sold pursuant hereto, free and clear of all
security interests, liens, pledges, charges and encumbrances.
2. Assets. (a) The assets to be conveyed to Buyer hereunder
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shall consist of all of the assets and properties of Seller, whether real,
personal, tangible or intangible, of whatever description and wherever located,
now owned or used by Seller solely in connection with Seller's ownership or
operation of the System, except those items excluded pursuant to subparagraph
2(b) hereof, but including all additions made to the Closing Date, to the end
that all of Seller's assets owned on the Closing Date which are used or owned
solely in connection with Seller's ownership or operation of the System shall
pass to Buyer. Such assets (collectively, the "Assets") shall include, without
limitation:
(i) all of Seller's towers, tower equipment, antennas,
aboveground and underground cable, distribution systems, headend amplifiers,
line amplifiers, earth satellite receive stations and related equipment,
microwave equipment, testing equipment, motor vehicles, office equipment,
furniture and fixtures, supplies, inventory and other physical assets owned or
used by Seller solely in connection with Seller's ownership or operation of the
System;
(ii) the franchises, leases, agreements, permits, consents, licenses
and other contracts, pole line or joint pole agreements, underground conduit
agreements, agreements for the reception or transmission of signals by
microwave, easements, rights-of-way and construction permits, if any, and any
other obligations and agreements between Seller and suppliers and customers,
which are owned or used by Seller solely in connection with Seller's ownership
and operation of the System;
(iii) the real property owned and used solely in connection
with the System;
(iv) all accounts receivable of Seller arising in connection
with the System;
(v) all engineering records, files, data, drawings, blueprints,
schematics, maps, reports, lists and plans and processes owned or developed by
or for Seller and intended for use in connection with the System;
(vi) all promotional graphics, original art work, mats, plates,
negatives and other advertising, or related materials developed by or for Seller
and intended for use in connection with the System;
(vii) all of Seller's correspondence files, lists, records
and reports concerning customers and prospective customers of the Systems,
concerning television stations whose transmissions are or may be carried as part
of the Systems and concerning all dealings with federal, state, and local
regulatory agencies, including all reports filed by or on behalf of Seller with
the Federal Communications Commission (the "FCC") in connection with the System
and any Statements of Account of the System filed by or on behalf of Seller with
the united States Copyright Office in connection with the System
(b) business operations shall be retained by Seller and shall not be
sold, assigned or transferred to Buyer;
(i) cash or cash equivalents on hand or in banks;
(ii) insurance policies and rights and claims thereunder;
(iii) all claims, rights and interest in and to any refunds
for Federal, state or local income or other taxes or fees of any nature
whatsoever for periods prior to the Closing Date, including without limitation,
fees paid to the United States Copyright Office; and
(iv) assets disposed of in the normal course of business or
with the written consent of Buyer between the date hereof and the Closing Date.
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3. Purchase Price. Subject to the adjustments to be made in
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accordance with Paragraph 4 hereof, the total purchase price for the Assets
shall be One Hundred Seventy-One Million Two Hundred Thirteen Thousand Six
Hundred Sixty Seven Dollars ($171,213,667.00) (the "Purchase Price"), which
Purchase Price represents the average of three separate independent appraisals
of the System. The Purchase Price shall by payable to Seller at Closing in
cash, by cashier's check or by wire transfer of Federal funds to a bank or banks
designated by Seller.
4. Adjustments. All adjustments provided for herein with
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respect to this transaction shall increase or decrease the Purchase Price, as
appropriate, and shall be made as of the close of business (5:01 p.m., local
time) on the Closing Date.
(a) Rent, pole rents, franchise fees, taxes, power and utility
fees and deposits, insurance premiums, licenses, customer prepayments and
deposits, and other prepayments and amounts due shall be prorated and debited or
credited to Seller or Buyer, as applicable. For purposes of adjustments made
under this Paragraph 4(a), the subscriber accounts receivable which are due and
payable for and with respect to the month in which the Closing takes place shall
be prorated as of the Closing Date.
(b) The Purchase Price shall be reduced by any accounts payable,
accrued expenses and vehicle lease obligations for which Seller would otherwise
be liable hereunder, but for which the obligation for payment is assumed by
Buyer.
(c) Seller and Buyer shall jointly determine the adjustments
required by this Paragraph 4 at the Closing. The net amount to which Buyer or
Seller, as the case may be, is entitled pursuant hereto shall be thereupon paid
by Buyer or Seller, as the case may be, by an adjustment to the Purchase Price.
All adjustments made at Closing shall be tentative and shall be subject to final
adjustment within 90 days after Closing.
5. Assumption of Liabilities. Buyer shall agree to assume and
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discharge all debts, liabilities and obligations of Seller arising with respect
to periods subsequent to the Closing Date under any franchise, license, permit,
lease, instrument or agreement transferred to Buyer hereunder and, with respect
to periods prior to and including the Closing Date, to assume and discharge all
obligations of Seller to the extent that the Purchase Price is reduced pursuant
to Paragraph 4(b) hereof. Buyer hereby agrees to indemnify and to hold harmless
from and against any and all damages, costs, claims and expenses arising by
reason of the ownership, operation or control of the System after Closing Date.
Anything herein to the contrary notwithstanding, there is hereby excluded from
the assumed obligations, and Seller hereby agrees to retain and discharge, and
to indemnify and hold Buyer harmless from and against, any and all damages,
costs, claims and expenses to the extent they arise out of any debt, liability
or obligation arising with respect to periods prior to the Closing Date for
which no reduction of the Purchase Price has been made pursuant to Paragraph
4(b) hereof, and any debt, liability or obligation of Seller not expressly
assumed hereunder, whenever arising.
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6. Seller's Representations. Seller hereby represents, warrants,
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covenants and agrees, that:
(a) Seller is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Colorado. Seller has all
requisite partnership power and authority to own and operate its properties and
to carry on its business as now and where being conducted.
(b) All necessary consents and approvals have been obtained by Seller
for the execution and delivery of this Agreement. The execution and delivery of
this Agreement by Seller has been duly and validly authorized and approved by
all necessary action of Seller. This Agreement is a valid and binding
obligation of Seller, enforceable against it in accordance with its terms.
(c) Subject to the receipt of any required consents, Seller has full
legal power, right and authority to sell and convey to Buyer legal and
beneficial title to the Assets and Seller's sale to Buyer shall transfer good
and marketable title thereto, free and clear of all security interests, liens,
pledges, charges and encumbrances of every kind.
(d) The execution, delivery and performance of this Agreement by
Seller will not violate any provisions of law and will not, with or without the
giving of notice or the passage of time, conflict with or result in any breach
of any of the terms or conditions of, or constitute a default under, any
mortgage, agreement or other instrument to which Seller is a party or by which
Seller, the Assets or the System are bound. The execution, delivery and
performance of this Agreement will not result in the creation of any security
interest, lien, pledge, charge or encumbrance upon the Assets or the Systems.
7. Conditions Precedent to Buyer's Obligations. The obligations
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of Buyer under this Agreement with respect to the purchase and sale
of the Assets shall be subject to the fulfillment on or prior to the Closing
Date of each of the following conditions:
(a) All of the representations and warranties by Seller contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing Date. Seller shall have complied with and performed all of the
agreements, covenants and conditions required by this Agreement to be performed
or complied with by it on or prior to the Closing Date.
(b) Seller shall have delivered to Buyer such instruments, consents
and approvals of third parties as are necessary to transfer the Assets to Buyer
pursuant to this Agreement.
(c) The statutory waiting period applicable to this Agreement and the
transactions contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), shall have been terminated
or shall have expired.
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8. Conditions Precedent to Seller's Obligation. The obligations
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of Seller under this Agreement with respect to the purchase and sale
of the Assets shall be subject to the fulfillment on or prior to the Closing
Date of each of the following conditions:
(a) The statutory waiting period applicable to this Agreement and the
transactions contemplated hereby under the HSR Act, shall have been terminated
or shall have expired.
(b) Buyer shall have delivered the Purchase Price to Seller in
accordance with Paragraph 3 hereof.
9. Closing. The closing hereunder (the "Closing") shall be held
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in the offices of Seller, 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx,
00000, on such date or dates as the parties hereto shall mutually agree. At the
Closing, all cash, checks, notes, deeds, bills of sale, certificates of title,
assignments and other instruments and documents referred to or contemplated by
this Agreement shall be exchanged by the parties hereto.
10. Brokerage. Seller represents and warrants to Buyer that Seller
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will be solely responsible for, and pay in full, any and all brokerage or
finder's fees or agent's commissions or other like payment owing in connection
with Seller's use of any broker, finder or agent in connection with this
Agreement or the transactions contemplated hereby. Buyer represents and
warrants to Seller that Buyer will be solely responsible for, and pay in full,
any and all brokerage or finder's fees or agent's commission or other like
payment owing in connection with Buyer's use of any broker, finder or agent in
connection with this Agreement or the transaction contemplated hereby. Each
party hereto agrees to indemnify and hold the other party hereto harmless
against and in respect of any breach by it of the provision of this Paragraph
10.
11. Miscellaneous.
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(a) Buyer shall have the right, upon notice to Seller, to assign prior
to the Closing Date, in whole or in part, its rights and obligations hereunder
to any affiliate of Buyer, including any public limited partnership or
partnerships of which Buyer or any affiliate of Buyer is a general partner or
any joint venture or general partnership of which Buyer, or any affiliate of
Buyer, or any of such public limited partnership or partnerships is a
constituent partner, or to any subsidiary of Buyer or other entity controlled
by, controlling or under common control with Buyer, or, subject to Seller's
consent, to any other entity.
(b) From time to time after the Closing Date, Seller shall, if
requested by Buyer, make, execute and deliver to Buyer such additional
assignments, bills of sale, deeds and other instruments of transfer, as may be
necessary or proper to transfer to Buyer all of Seller's right, title and
interest in and to the assets covered by this Agreement. Such efforts and
assistance shall be without cost to Buyer.
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(c) This Agreement embodies the entire understanding and agreement
among the parties concerning the subject matter hereof and supersedes any and
all prior negotiations, understandings or agreements in regard thereto. This
Agreement shall be interpreted, governed and construed in accordance with the
laws of the State of Colorado. This Agreement may not be modified or amended
except by an agreement in writing executed by both Buyer and Seller.
(d) Any sales, use, transfer or documentary taxes imposed in
connection with the sale and deliver of the Assets and the rights acquired by
Buyer under this Agreement shall be paid by Buyer.
IN WITNESS WHEREOF the parties have executed this Agreement as of
the day and year first above written.
SELLER:
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XXXXX INTERCABLE INVESTORS, L.P.,
a Colorado limited partnership
By: Xxxxx Intercable, Inc., a
Colorado corporation,
as its general partner
By: /s/ Xxxxxxxxx Xxxxxx
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Title: Vice President
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BUYER:
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XXXXX INTERCABLE, INC.,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxx
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Title:Group Vice President/Finance
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(27218)
