EXHIBIT 2.1
XXXXXXX COUNTY SYSTEM
---------------------
PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT is made as of the 29th day of June, 1998,
by and between CABLE TV FUND 14-A, LTD., a Colorado limited partnership
("Seller"), and XXXXX COMMUNICATIONS OF MARYLAND, INC., a Colorado corporation
("Buyer").
RECITALS
--------
A. Seller owns and operates a cable television system serving portions of
Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxx and St. Mary's counties, all in the State of
Maryland (the "System").
B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the System upon the terms and conditions set forth in this Agreement.
AGREEMENT
---------
In consideration of the mutual promises contained in this Agreement and 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 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 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;
2
provided however, that Seller shall not transfer to Buyer the licenses and
-------- -------
agreements for which the consent of a third party is required to transfer (the
"Additional Agreements") until Seller has obtained the approval of the parties
granting the Additional Agreements to such transfer, whereupon such Additional
Agreements shall be deemed to be included in the assets to be transferred to
Buyer pursuant to this Agreement.
(b) The following properties and assets relating to the System and its
business operations shall be retained by Seller and shall not be sold, assigned
or transferred to Buyer;
(i) cash or cash equivalents on hand or in banks;
(ii) insurance policies and rights and claims thereunder;
(iii) all claims, rights and interest in and to any refunds for
Federal, state or local income or other taxes or fees of any nature whatsoever
for periods prior to the Closing Date, including without limitation, fees paid
to the United States Copyright Office; and
(iv) assets disposed of in the normal course of business or with the
written consent of Buyer between the date hereof and the Closing Date.
3. Purchase Price. Subject to the adjustments to be made in accordance
--------------
with Paragraph 4 hereof, the total purchase price for the Assets shall be Thirty
Nine Million Three Hundred Eighty Eight Thousand Six Hundred Sixty Seven Dollars
($39,388,667) (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 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
3
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 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; provided, however, that Buyer shall not assume the
-------- -------
Additional Agreements until Seller has obtained the approval of the parties
granting the Additional Agreements to Seller's transfer of the Additional
Agreements to Buyer, whereupon the Additional Agreements shall be deemed to be
included in the assets to be assumed by Buyer hereunder. Buyer hereby agrees to
indemnify and to hold harmless from and against any and all damages, costs,
claims and expenses (the "Indemnifiable Claims") arising by reason of the
ownership, operation or control of the System after Closing Date; provided,
--------
however, that Buyer shall not indemnify and hold harmless Seller from any
-------
Indemnifiable Claims arising under Additional Agreements as a result of actions
relating to any period before Seller has obtained the approval of the parties
granting the Additional Agreements to Seller's transfer of the Additional
Agreements to Buyer. 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 Indemnifiable Claims to the extent they arise (a) 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)
4
hereof, (b) out of any debt, liability or obligation arising
under the Additional Agreements arising as a result of actions relating to any
period before Seller has obtained the approval of the parties granting the
Additional Agreements to Seller's transfer of the Additional Agreements to
Buyer, and (c) any debt, liability or obligation of Seller not expressly assumed
hereunder, whenever arising.
6. Seller's Representations. Seller hereby represents, warrants,
------------------------
covenants and agrees, that:
(a) Seller is a limited partnership duly organized and validly existing
under the laws of the State of Colorado. Seller has all requisite partnership
power and authority to own and operate its properties and to carry on its
business as now and where being conducted.
(b) All necessary consents and approvals have been obtained by Seller
for the execution and delivery of this Agreement. The execution and delivery of
this Agreement by Seller has been duly and validly authorized and approved by
all necessary action of Seller. This Agreement is a valid and binding obligation
of Seller, enforceable against it in accordance with its terms.
(c) Subject to the receipt of any required consents, Seller has full
legal power, right and authority to sell and convey to Buyer legal and
beneficial title to the Assets and Seller's sale to Buyer shall transfer good
and marketable title thereto, free and clear of all security interests, liens,
pledges, charges and encumbrances of every kind.
(d) The execution, delivery and performance of this Agreement by Seller
will not violate any 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 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:
5
(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.
8. Conditions Precedent to Seller's Obligation. The obligations of Seller
-------------------------------------------
under this Agreement with respect to the purchase and sale of the Assets shall
be subject to the fulfillment on or prior to the Closing Date of each of the
following conditions:
(a) The statutory waiting period applicable to this Agreement and the
transactions contemplated hereby under the HSR Act, shall have been terminated
or shall have expired.
(b) The holders of a majority of the limited partnership interests of
Seller shall have approved the transaction contemplated by this Agreement.
(c) Buyer shall have delivered the Purchase Price to Seller in
accordance with Paragraph 3 hereof.
9. Closing. The closing hereunder (the "Closing") shall be held in the
-------
offices of Seller, 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 00000, on such
date or dates as the parties hereto shall mutually agree (the "Closing Date").
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 will
---------
be solely responsible for, and pay in full, any and all brokerage or
6
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.
-------------
(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.
(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.
7
IN WITNESS WHEREOF the parties have executed this Agreement as of the day
and year first above written.
SELLER:
------
CABLE TV FUND 14-A, LTD.,
a Colorado limited partnership
By: Xxxxx Intercable, Inc., a Colorado
corporation, as its general partner
By: /s/ Xxxxx X. Xxxxx
-------------------
Title: Chairman of the Board and Chief
-------------------------------
Executive Officer
-----------------
BUYER:
-----
XXXXX COMMUNICATIONS OF MARYLAND, INC.,
a Colorado corporation
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------
Title: /s/ Vice President and Secretary
--------------------------------
(36353)
8
