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EXHIBIT 10.59
AGREEMENT OF PURCHASE AND SALE OF
PARTNERSHIP INTERESTS
AGREEMENT OF PURCHASE AND SALE OF PARTNERSHIP INTERESTS, dated
as of January 31, 1996, among Halcyon Communications, Inc., an Oklahoma
corporation ("HCI"), American Televenture of Minersville, Inc., a Colorado
corporation ("ATM"), TCI Cablevision of Nevada, Inc., a Nevada corporation
("TCINV"), TCI Cablevision of Utah, Inc., an Oklahoma corporation ("TCIU"),
TEMPO Cable, Inc., a Utah corporation ("Tempo") ("TCINV, with ATM, TCIU and
Tempo sometimes hereinafter being collectively referred to as "Sellers" or
individually as a "Seller"), and Xxxxxx Communications Associates, L.L.C., a
Colorado limited liability company ("Buyer").
Halcyon Communications Limited Partnership is a limited
partnership organized and existing under the laws of the State of Oklahoma (the
"Partnership"). The general partners of the Partnership are ATM and HCI, and
the limited partners of the Partnership are TCINV, TCIU and Tempo.
Buyer desires to acquire from each Seller a portion of such
Seller's partnership interest in the Partnership and an option to acquire the
balance of such partnership interest of such Seller, and each of the Sellers
(severally and not jointly) have agreed to sell such portion of such
partnership interest and to grant such option to Buyer on the terms and subject
to the conditions set forth herein.
Therefore, for and in consideration of the mutual promises,
upon the terms and subject to the conditions set forth herein and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged by each party, the parties hereto agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS
In addition to the terms defined elsewhere herein, as used
herein the following terms shall have the following respective meanings:
"Agreement" means this Agreement, including any Exhibits and Schedules
attached hereto.
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"Business Day" means a day of the year on which banks are not required
or authorized to close in the State of Colorado.
"Closing" means the consummation of the transactions contemplated
hereby.
"Partners" means the Sellers and HCI, in their capacities as partners
of the Partnership.
"Partnership Agreement" means the Amended and Restated Limited
Partnership Agreement, dated as of June 22, 1994, of the Partnership, as the
same may have been amended or modified through and including the date hereof.
"Partnership Interest" means, as to any partner of the Partnership,
the entire partnership interest of such partner in the Partnership, including
such partner's (i) right to a share of the income, gain, losses and deductions
of and distributions made by the Partnership, (ii) right to a share of
Partnership assets, (iii) rights with respect to initial and additional capital
contributions made to the Partnership by such partner, including such partner's
rights with respect to allocations of income, gain losses and deductions of and
distributions made by the Partnership which are based upon or determined by
reference to such capital contributions, (iv) rights with respect to the
management of the business and affairs of the Partnership, (v) voting, consent
and approval rights, (vi) rights to unpaid interest under Section 12.6 of the
Partnership Agreement, whether accrued as of or accruing on or after the date
hereof, (vii) rights with respect to such partner's Capital Account (as defined
in the Partnership Agreement), (viii) rights, if any, under Sections 16, 17 and
18 of the Partnership Agreement, (ix) any and all other rights, interests and
benefits to which such partner is or may become entitled by reason of its
status as a partner of the Partnership, and (x) all liabilities and obligations
of such partner by reason of its status as a partner of the Partnership, in
each case as provided in the Partnership Agreement or the partnership laws of
the state of the Partnership's organization.
"Person" means any individual, corporation, partnership, trust,
unincorporated association or other entity.
"Purchased Interest" means, with respect to any Seller, one-third of
such Seller's Partnership Interest.
"Related Instruments" means any and all agreements, instruments and
documents executed and delivered or required to be executed and delivered
pursuant to the terms of this Agreement or in connection with the transactions
contemplated hereby, including all Option Agreements executed and delivered
pursuant to Section 2.02 hereof
"WestMarc" means WestMarc Communications, Inc., a Nevada corporation.
"WestMarc Preferred Stock" means the 12% Series C Cumulative
Compounding Preferred Stock, par value $0.01 per share, of WestMarc.
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The definitions in this Article I and elsewhere in this
Agreement shall apply equally, to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The words "herein", "hereof" and "hereunder" and words of
similar import refer to this Agreement in its entirety and not to any part
hereof unless the context shall otherwise require. All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Unless the context shall otherwise
require, any references to any agreement or other instrument or statute or
regulation are to it as amended and supplemented from time to time (and, in the
case of a statute or regulation, to any corresponding provisions of successor
statutes or regulations). Any reference in this Agreement to a "day" or number
of "days" (without the explicit qualification of "Business") shall be
interpreted as a reference to a calendar day or number of calendar days. If any
action or notice is to be taken or given on or by a particular calendar day,
and such calendar day is not a Business Day, then such action or notice shall
be deferred until, or may be taken or given on, the next Business Day.
Article II.
THE CLOSING
Section 2.01. The Closing. The Closing is taking place at
10:00 A.M., local time, on the date hereof (the "Closing Date") at the offices
of Tele-Communications, Inc., Terrace Tower II, 0000 XXX Xxxxxxx, Xxxxxxxxx,
Xxxxxxxx.
Section 2.02. Sale and Purchase of the Purchased Interests,
Grant of Options. On the terms and subject to the conditions set forth in this
Agreement, at the Closing each Seller shall sell, convey, and assign to Buyer,
and Buyer shall purchase from such Seller, for the consideration specified
below in this Section, all of such Seller's right, title and interest in and to
such Seller's Purchased Interest. The consideration payable by Buyer to a
Seller in exchange for such Seller's Purchased Interest shall be the number of
whole or fractional shares of WestMarc Preferred Stock set forth opposite such
Seller's name on Schedule I hereto, together with the right to receive all
unpaid dividends or other distributions payable with respect to such shares.
Such sale, conveyance, assignment and purchase shall be effected by (i) the
delivery to such Seller by Buyer at the Closing of (A) the stock certificate or
certificates representing the number of shares of WestMarc Preferred Stock to
which such Seller is entitled as set forth in Schedule I hereto, duly endorsed
in blank and otherwise in proper form for transfer and with all necessary
documentary or transfer tax stamps affixed thereto and (B) such other documents
or instruments which may be necessary, or which such Seller reasonably may
request, in order to effectively vest in such Seller good and marketable title
to such shares and the right to receive such unpaid dividends or other
distributions, (ii) the execution and delivery by Buyer and such Seller of a
duly completed and executed Assignment and Assumption Agreement substantially
in the form of Exhibit A hereto and (iii) the execution and delivery by such
Seller or Buyer of
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such other documents or instruments which may be necessary, or which the other
such party may reasonably request, in connection with the transactions
contemplated hereby. At the Closing, each Seller also is granting to Buyer an
option (each, an "Option" and collectively the "Options") on the part of Buyer
to purchase the remaining Partnership Interest of such Seller for the
consideration and on the terms and subject to the conditions set forth in the
form of Option Agreement attached hereto as Exhibit B (the "Option Form").
Section 2.03. Amendment to Partnership Agreement. Each Partner
agrees that it shall, at the Closing, execute and deliver the Consent and First
Amendment in the form of Exhibit C hereto and such other documents as may be
reasonably requested by Buyer in connection with the consummation of the
transactions contemplated hereby. Buyer and each Partner further agrees that,
unless otherwise requested by Buyer, any Partnership Interest purchased by
Buyer pursuant to this Agreement or upon exercise of any Option which is a
general partner's interest shall be converted into a limited partner's
interest.
Article III.
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of Each Seller.
Each of the Sellers, severally and not jointly, represents and warrants to
Buyer as follows:
(a) Such Seller is duly organized, validly existing and
in good standing as a corporation under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own, hold
and operate its properties and assets, and to carry on its business as
presently conducted. Such Seller has all requisite corporate power and
authority to enter into this Agreement and each Related Instrument to which it
is or shall become a party and perform its obligations hereunder and
thereunder.
(b) The execution, delivery and performance by such
Seller of this Agreement and such Related Instruments and the consummation of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of such Seller.
(c) This Agreement has been, and each such Related
Instrument, when executed and delivered, shall be, duly executed and delivered
by such Seller and constitutes (or, in the case of such Related Instruments,
when executed and delivered will constitute) a valid and binding obligation of
such Seller, enforceable in accordance with its terms, except insofar as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or by principles governing the availability of equitable remedies.
(d) To the best knowledge of such Seller, the Partnership
is (i) duly organized and validly existing as a limited partnership under the
laws of the State of Oklahoma; (ii) has all
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requisite partnership power and authority to own, hold and operate its
properties and assets, and to carry on its business as presently conducted; and
(iii) treated as a "partnership" under the Code for federal income tax
purposes.
(e) At the Closing, such Seller will transfer to Buyer
such Seller's Purchased Interest, free and clear of any lien, pledge, security
interest, claim, or charge or other encumbrance or any restriction on transfer
voluntarily created by Seller, other than as expressly set forth in the
Partnership's Partnership Agreement or existing or arising under applicable law
and other than the possible lien of taxes not yet due and payable and minor
imperfections in title and encumbrances and other minor matters, if any, which
singly or in the aggregate are not substantial in an amount, do not materially
detract from the value of such Purchased Interest.
Section 3.02. Representations and Warranties of Buyer. Buyer
represents and warrants to each Seller as follows:
(a) Buyer is duly organized, validly existing and in good
standing as a limited liability company under the laws of the State of Colorado
and has all requisite power and authority as a limited liability company to
own, hold and operate its properties and assets, and to carry on its business
as presently conducted. Buyer has all requisite power and authority as a
limited liability company to enter into this Agreement and each Related
Instrument to which it is or shall become a party and perform its obligations
hereunder and thereunder.
(b) The execution, delivery and performance by Buyer of
this Agreement and such Related Instruments and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of Buyer.
(c) This Agreement has been, and each such Related
Instrument, when executed and delivered, shall be, duly executed and delivered
by Buyer and constitutes (or, in the case of such Related Instruments, when
executed and delivered will constitute) a valid and binding obligation of
Buyer, enforceable in accordance with its terms, except insofar as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or by principles governing the availability of equitable remedies.
(d) Buyer understands that the Purchased Interests, the
Options and the interests in the Partnership subject to the Options (the
"Option Interests") have not been registered under the Securities Act of 1933,
as amended (the "Act"), nor qualified under any state securities law, and that,
if and to the extent that any thereof constitute securities subject to the Act
or any applicable state securities law, they are being offered and sold
pursuant to exemptions from such registration and qualification based in part
upon the representations of Buyer contained herein.
(e) Buyer is familiar with the business and operations of
the Partnership and has been given the opportunity to obtain from the
Partnership all information that it has requested regarding its current
operations, business plans and prospects.
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(f) Buyer has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of
the investment contemplated by this Agreement and Buyer is able to bear the
economic risk of such investment.
(g) Buyer understands that, if and to the extent that the
Purchased Interests, the Options and the Option Interests constitute securities
subject to the Act or any applicable state securities law, Buyer must bear the
economic risk of its investment therein indefinitely unless the same are
registered or qualified pursuant to the Act or such state securities law or an
exemption from such registration or qualification is available, and that the
Partnership has no obligation to effect any such registration or qualification.
Buyer further understands that there is no assurance that any such exemption
from registration or qualification will be available. or, if available, that
such exemption will allow Buyer to dispose of or otherwise transfer any or all
of the Purchased Interests, Options or Option Interests in the amounts, in the
manner or at the times Buyer might propose. Buyer further understands that the
Partnership Agreement contains significant restrictions on transfers of
interests in the Partnership.
(h) Buyer is acquiring the Purchased Interests and the
Options (and will acquire the Option Interests subject to any Options which
Buyer may elect to exercise) solely for its own account for investment and not
with a view toward the resale, transfer, or distribution thereof, nor with any
present intention of transferring any thereof or any interest therein in any
transaction which would constitute a "distribution" within the meaning of the
Securities Act. No other person has any right with respect to or interest in
the Purchased Interests, the Options or the Option Interests to be acquired by
Buyer, nor has Buyer agreed to give any person any such interest or right in
the future.
(i) At the Closing, Buyer will transfer to each Seller
the shares of WestMarc Preferred Stock to which such Seller is entitled under
Section 2.02, free and clear of any lien, pledge, security interest, claim, or
charge or other encumbrance or any restriction on transfer voluntarily created
by Buyer, other than any such restrictions as may be expressly set forth in the
resolution of the Board of Directors of WestMarc designating and establishing
the WestMarc Preferred Stock and in the certificate of incorporation and
by-laws of WestMarc or as may exist or arise under applicable federal and state
securities laws.
ARTICLE IV.
MISCELLANEOUS
Section 4.01. Survival of Representations, Warranties and
Covenants. The respective representations, warranties, agreements and
covenants of the parties contained in this Agreement will survive and continue
in full force and effect after the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
Section 4.02. Notices. All notices and other communications
required or permitted by this Agreement shall be in writing and given (i) if to
the Partnership, at the address
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of its principal executive offices or at such other address as the Partnership
may designate in a written notice to the other parties and (ii) if to any other
party, to such party at its address as it appears on the records of the
Partnership or to such other address as such party may designate in a written
notice to each other party. All notices and other communications required or
permitted by this Agreement shall be deemed to have been duly given if
personally delivered to the intended recipient at the proper address determined
pursuant to this Section 4.02 or sent to such recipient at such address by
registered or certified mail, return receipt requested, Express Mail, Federal
Express or similar overnight delivery service for next Business Day delivery or
by telegram, telex or facsimile transmission and will be deemed given, unless
earlier received: (1) if sent by certified or registered mail, return receipt
requested, five calendar days after being deposited in the United States mail,
postage prepaid; (2) if sent by Express Mail, Federal Express or similar
overnight delivery service for next Business Day delivery, the next Business
Day after being entrusted to such service, with delivery charges prepaid or
charged to the sender's accounts; (3) if sent by telegram or telex or facsimile
transmission, on the date sent and (4) if delivered by hand, on the date of
delivery.
Section 4.03. Expenses. Whether or not the transactions
contemplated hereby are consummated, each of the parties shall bear the fees
and expenses relating to its compliance with the various provisions of this
Agreement and the Related Instruments, and each of the parties agrees to pay
all of its own expenses (including, without limitation, all legal and
accounting fees) incurred in connection with this Agreement and the Related
Instruments, the transactions contemplated hereby and thereby, the negotiations
leading to the same and the preparation made for carrying the same into effect.
Section 4.04. Headings. The headings of the Articles,
Sections and other subdivisions of this Agreement are for convenience of
reference only and shall not modify, define or limit any of the terms or
provisions of this Agreement.
Section 4.05. Governing Law. This Agreement shall be construed
in accordance with, and governed by, the internal laws of the State of Colorado
without regard to principles of conflict of laws, except to the extent that the
laws of the jurisdiction of organization of the Partnership shall be
mandatorily applicable.
Section 4.06. Severability. If any provision of this Agreement
shall be held to be illegal, invalid or unenforceable, that provision will be
enforced to the maximum extent permissible so as to effect the intent of the
parties and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. If necessary
to effect the intent of the parties hereto, the parties hereto will negotiate
in good faith to amend this Agreement to replace the unenforceable language
with enforceable language which as closely as possible reflects such intent.
Section 4.07. Amendments. This Agreement may be modified or
amended only by a written amendment signed by Persons authorized to so bind
each party hereto.
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Section 4.08. Entire Agreement. The provisions of this
Agreement and the Related Instruments collectively set forth the entire
agreement and understanding between the parties hereto as to the subject matter
hereof and thereof and merge and supersede all prior discussions, agreements
and understandings, oral or written, of any and every nature among them with
respect to such subject matter. Except as and to the extent set forth in this
Agreement or a Related Instrument, no party makes any representation, warranty,
covenant or agreement whatsoever and each party disclaims all liability and
responsibility for any representation, warranty, covenant, agreement or
statement made or information communicated (orally or in writing) by any other
Person. Buyer expressly agrees and acknowledges that, in purchasing the
Purchased Interests and the Options and in making decisions regarding whether
or not to exercise the Options. Buyer (i) is not and will not be relying on the
representations and warranties of any Seller or any other Person, (ii) has made
and will make its own inquiry and investigation into, and based thereon, has
formed an independent judgment concerning, the Partnership and the business
conducted by it, (iii) has been furnished or given adequate access to such
information as it has requested concerning the Partnership and the business
conducted by it and (iv) will not assert any claim against any Seller or any
Seller's affiliates, directors, officers, employees, agents, stockholders,
advisors, counsel or representatives, nor will seek to hold any of such other
Persons liable for any inaccuracies, misstatements or omissions with respect to
information concerning the Partnership and the business conducted by it,
provided that the foregoing shall not in any manner be construed or deemed to
limit the ability of Buyer to make any claim it may otherwise have arising out
of the breach of any express representation or warranty of any Seller contained
in this Agreement or any Related Instrument.
Section 4.09. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors,
heirs, executors, legal representatives and permitted assigns; provided,
however, that, except as otherwise specifically permitted or contemplated by
this Agreement, neither this Agreement nor any of the rights, interests or
obligations of any party hereunder shall be assigned or delegated without the
prior written consent of all the parties.
Section 4.10. Further Assurances. Upon reasonable request from
time to time, each party hereto shall execute and deliver all documents and
instruments and do all other acts that may be reasonably necessary or desirable
to carry out the intent and purposes of this Agreement and give effect to the
exercise by a party of its rights hereunder.
Section 4.11. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more counterparts shall have
been signed by each party hereto and
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delivered to the other party hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
HALCYON COMMUNICATIONS, INC. AMERICAN TELEVENTURE OF
MINERSVILLE, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXX
---------------------------- -----------------------------
Name: XXXXXX X. XXXXX Name: XXXXXXX X. XXXXX
Title: PRESIDENT Title:
TCI CABLEVISION OF NEVADA. INC. TCI CABLEVISION OF UTAH, INC.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXX
---------------------------- -----------------------------
Name: XXXXXXX X. XXXXX Name: XXXXXXX X. XXXXX
Title: Title:
TEMPO CABLE, INC. XXXXXX COMMUNICATIONS
ASSOCIATES, L.L.C.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX 2-12-96
---------------------------- -----------------------------
Name: XXXXXXX X. XXXXX Xxxxx X. Xxxxxx, Member
Title:
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SCHEDULE I
Number of Shares of WestMarc
Name of Seller Preferred Stock
-------------- -----------------------------
American Televenture of Minersville, Inc. 0.5224
TCI Cablevision of Nevada, Inc. 2.8911
TCI Cablevision of Utah, Inc. 4.3557
TEMPO Cable, Inc. 14.5562
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EXHIBIT A
ASSIGNMENT AND
ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made
as of January 31, 1996 between [insert name of Seller], a __________________
corporation ("Assignor"), and XXXXXX COMMUNICATIONS ASSOCIATES, L.L.C., a
Colorado limited liability company ("Assignee").
WITNESSETH
WHEREAS, Assignor owns a partnership interest in HALCYON
COMMUNICATIONS LIMITED PARTNERSHIP, an Oklahoma limited partnership (the
"Partnership");
WHEREAS, Assignor, the other partners of the Partnership and
Assignee have entered into an Agreement of Purchase and Sale of Partnership
Interests dated as of the date hereof (the "Purchase Agreement") providing for
the sale by Assignor of a portion of Assignor's partnership interest in the
Partnership (such portion of such interest is defined in the Purchase Agreement
as, and shall be referred to hereinafter as, the Assignor's "Purchased
Interest") and the assumption by Assignee of all liabilities and obligations of
Assignor by virtue thereof, and
"WHEREAS, the execution and delivery of this Agreement for the
purpose of effecting such sale and such assumption has been authorized in all
respects as required by law;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the consideration specified in the Purchase
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Assignment of Transferred Interests. Assignor by this
instrument does convey, sell, transfer, assign and deliver the Assignor's
Purchased Interest to Assignee, without any representation or warranty of any
nature whatsoever, except as may be expressly set forth in the Purchase
Agreement.
2. Assumption of Obligations with Respect to Transferred
Interests. Assignee hereby assumes, and agrees to indemnify Assignor for and
hold Assignor harmless from and against, all liabilities and obligations of any
nature whatsoever existing or arising under the Partnership's limited
partnership agreement or applicable law by virtue of the ownership of the
Assignor's Purchased Interest, whether accrued or unaccrued, known or unknown,
disclosed or undisclosed and whether now existing or hereafter arising.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized signatories in their
respective names, all as of the day and year first above written.
ASSIGNOR:
[Insert name of Seller]
ATTEST: By:
------------------------------
------------------------------ Name:
----------------------------
Title:
---------------------------
ASSIGNEE:
XXXXXX COMMUNICATIONS ASSOCIATES, L.L.C.
ATTEST: By:
------------------------------
------------------------------ Xxxxx X. Xxxxxx, Member
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EXHIBIT B
OPTION AGREEMENT
Option Agreement, dated as of January 31, 1996, between Xxxxxx
Communications Associates, L.L.C., a Colorado limited liability company
("Purchaser"), and [insert Seller's name], a _______________ corporation
("Seller").
Seller is a partner of Halcyon Communications Limited Partnership, a
limited partnership organized and existing under the laws of the State of
Oklahoma (the "Partnership"). Pursuant to a certain Agreement of Purchase and
Sale of Partnership Interests, dated as of the date hereof, among Seller, the
other partners of the Partnership and Purchaser (as the same may be amended
from time to time in accordance with its terms, the "Purchase Agreement"), on
the date hereof Purchaser is purchasing from Seller and certain other partners
of the Partnership a portion of their respective partnership interests in the
Partnership. Purchaser desires to acquire from Seller an option to purchase the
balance of the partnership interest in the Partnership that Seller will
continue to own immediately after giving effect to such purchases, and Seller
has agreed to grant such an option to Purchaser on the terms and subject to the
conditions set forth herein.
Therefore, in consideration of the payment of $100 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Option. Seller hereby grants to Purchaser an irrevocable
option (the "Option") to purchase all, but not less than all of the Option
Interest (as hereinafter defined). The exercise price of the Option (the
"Exercise Price") shall be an amount in cash equal to $ , without
interest. The Exercise Price will be payable by Purchaser at the Closing (as
hereinafter defined) by wire transfer or by certified or bank check in
immediately available funds.
2. Exercise Period, Exercise of the Option.
(a) The Option may be exercised, in whole but not in part, at any
time during the period (the "Exercise Period") commencing on the date hereof
and ending at 12:01 A.M., Denver, Colorado time, on the tenth anniversary of
the date hereof (the "Scheduled Expiration Date").
(b) Purchaser may exercise the Option by delivering written notice
thereof (an "Exercise Notice") to Seller at any time prior to the expiration of
the Exercise Period. Subject to paragraph 3 hereof, and unless the parties
otherwise agree, the closing of the sale of the Option Interest (the
"Closing") shall occur on the tenth Business Day (as hereinafter defined)
following delivery of the Exercise Notice. The date the Closing occurs is
hereinafter referred to as the "Closing Date". At the Closing, Seller shall,
against receipt of the Exercise Price as provided in paragraph 1 hereof, convey
and deliver the Option Interest to Purchaser by the delivery to Purchaser by
such Seller of a duly completed and
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executed instrument of assignment reasonably satisfactory to both parties and
such other documents or instruments which may be necessary, or which Purchaser
may reasonably request, in order to effectively vest in Purchaser beneficial
ownership of the Option Interest.
(c) Prior to the sale of the Option Interest to Purchaser pursuant
to this Agreement, Seller shall, subject only to the express provisions of
paragraph 5(a) of this Agreement, retain all rights as the holder of the Option
Interest, including all voting and consent rights as a partner of the
Partnership, and may exercise or refrain from exercising such rights as Seller
may determine in its sole discretion, even if the result is a diminution in the
value of the Option Interest and this Option to Purchaser.
3. Conditions to Closing. The Closing of the purchase of the
Option Interest pursuant to the exercise of the Option shall be subject to the
satisfaction of all of the following conditions:
(a) Each of the representations of Purchaser made in this
Agreement, in the Purchase Agreement and in each Related Instrument
(as defined in the Purchase Agreement) shall be true and correct in
all material respects at and as of the time of the Closing and
Purchaser shall have performed in all material respects each and every
covenant of Purchaser contained in this Agreement, in the Purchase
Agreement and in each Related Instrument required to be performed by
the time of or at the Closing. If requested by Seller, Purchaser shall
execute a certificate by which Purchaser confirms the satisfaction of
the foregoing condition.
(b) No order, preliminary or permanent injunction,
temporary restraining order, stay, judgment, decree or other order of
any court or governmental or regulatory body preventing the sale of
the Option Interest by the Seller or the consummation of the other
transactions contemplated hereby.
(c) All consents, orders and approvals of any
governmental authority, any partner or partners of the Partnership and
of any other third party that either Purchaser or Seller reasonably
deems necessary or advisable shall have been obtained and shall be in
full force and effect and any waiting period under applicable law
shall have expired. Without limiting the generality of the foregoing,
all such consents and approvals necessary to permit the withdrawal of
Seller from the Partnership without further obligation or liability as
a partner thereof shall have been obtained and shall be in full force
and effect.
(d) Purchaser shall, by written instrument in form and
substance reasonably satisfactory to Seller, assume and agree to
indemnify Seller for all obligations and liabilities of Seller under
the Partnership Agreement with respect to the Option Interest of every
kind or nature, whether accrued or unaccrued, asserted or unasserted,
known or unknown, disclosed or undisclosed, absolute or contingent,
arising by law, contract or otherwise and including any liability or
obligation arising
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out of any event, fact or circumstance existing or occurring as of or
prior to the date hereof that, with the passage of time or the giving
of notice, or otherwise, which constitutes a breach or violation of or
default under any contract or law binding upon or applicable to the
Partnership.
(e) If required by Seller, Purchaser will be obligated to
buy from Seller at the Closing, all evidences of indebtedness of the
Partnership held directly or indirectly by Seller or any subsidiary of
Seller, and the purchase price for such evidences of indebtedness
shall be the outstanding principal amount thereof at the time of the
Closing plus accrued and unpaid interest thereon which, unless
otherwise agreed by Seller and Purchaser, shall be paid in cash.
(f) Purchaser and Seller shall each execute and deliver
such other instruments as either party or the Partnership reasonably
deems necessary or appropriate to effect, and as a condition to, the
exercise of the Option, including amendments to the Partnership
Agreement or any other instrument filed with any governmental agency
or official.
(g) Purchaser shall have exercised all options to acquire
partnership interests in the Partnership granted by other partners of
the Partnership pursuant to the Purchase Agreement simultaneously with
the exercise of this Option, and the closings of the sale of all such
partnership interests pursuant to the exercise of all such other
options shall occur simultaneously with the Closing under this Option
Agreement.
(h) Purchaser shall have exercised all options to acquire
partnership interests in Halcyon Communications Partners, an Oklahoma
general partnership ("HCP"), granted to Purchaser by partners of HCP
who are affiliates of Seller simultaneously with the exercise of this
Option, and the closings of the sale of all such partnership interests
pursuant to the exercise of all such other options shall occur
simultaneously with the Closing under this Option Agreement.
(i) If the exercise of the Option requires any consent,
approval, waiver, or authorization of any government department,
board, bureau, commission, agency or instrumentality or the expiration
of any waiting period imposed by applicable law, then the date fixed
for the Closing pursuant to paragraph 2(b) hereof shall be extended
for the period of time during which efforts to obtain each such
consent, approval, waiver, or authorization and the termination of
each such waiting period at the earliest reasonably practicable time
are diligently being made; provided, however, that, unless Seller and
Purchaser otherwise agree, the extension of such Closing date pursuant
to this paragraph may not exceed 180 days. Seller and Purchaser will,
and will use their commercially reasonable efforts to cause the
Partnership to, reasonably cooperate with each other in obtaining any
such consent, approval, waiver, or authorization and in obtaining the
termination of any such waiting period at the earliest practicable
time.
-3-
16
(j) If, in the opinion of legal counsel to Purchaser, the
immediate proposed transfer of the entire Option Interest would result
in the termination of the Partnership within the meaning of Section
708 of the Internal Revenue Code of 1986, as amended (or any successor
provision of law), but an immediate transfer of less than all of the
Option Interest would not have such a result, Purchaser shall be
entitled to elect, in its sole discretion, to either (i) exercise the
Option in full notwithstanding such termination or (ii) to (A) require
Seller to immediately transfer only that portion of the Option
Interest as may, in the opinion of such counsel, be transferred
without causing such a result and (B) extend the Exercise Period of
the Option with respect to the balance of the Option Interest until
the later of the Scheduled Expiration Date or the last day of the
period of thirteen months after the date of the closing of the
transfer referred to in subclause (ii)(A) of this sentence, in which
event, unless otherwise agreed by Seller and Purchaser, the Exercise
Price shall be allocated proportionately between the portion of the
Option Interest immediately transferred and the remainder of the
Option Interest as to which the Exercise Period of the Option shall
have been so extended.
4. Distributions After Exercise. Distributions declared or made
on or prior to the effective date of the exercise of the Option with respect to
the Option Interest shall be made to Seller, regardless of when such
distributions accrued on the books of the Partnership or the date fixed for
payment thereof.
5. Certain Covenants of Seller. Seller hereby covenants and
agrees with Purchaser as follows:
(a) During the Exercise Period, Seller shall not sell or
otherwise transfer or dispose of the Option Interest or any part
thereof or interest therein, other than a sale or transfer as to which
Seller gives Purchaser at least 14 days prior written notice and in
which the transferee agrees, pursuant to an instrument in form and
substance reasonably satisfactory to Purchaser, to be bound by the
terms of this Option Agreement with respect to such transferred
interest to the same extent as the transferor was so bound with
respect to such transferred interest.
(b) Upon the Closing, Seller shall convey to Purchaser
legal title to, and beneficial ownership of, the Option Interest, free
and clear of any lien, pledge, security interest, claim, or charge or
other encumbrance and free of any restriction on transfer voluntarily
created by Seller, other than as expressly set forth in the
Partnership Agreement or existing or arising under applicable law and
other than the possible lien of taxes not yet due and payable and
minor imperfections in title and encumbrances and other minor matters,
if any, which singly or in the aggregate are not substantial in an
amount, do not materially detract from the value of the Option
Interest.
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17
6. Binding Effect; Assignment. Subject to the following provision
of this paragraph 6, this Option Agreement shall inure to the benefit of, and
be binding upon, the parties and their respective successors, heirs, legal
representatives and permitted assignees. Except as otherwise expressly provided
herein, this Option Agreement shall not be assigned by either party hereto
without the prior written consent of the other party. Purchaser may assign this
Option Agreement, in whole or in part, to any FCA Permitted Transferee (as
defined in the Partnership Agreement).
7. Notices. All notices and other communications required or
permitted by this Agreement shall be in writing and addressed to the intended
recipient at such person's address specified under its or his signature below
or at such other address as such person may designate in a written notice to
the other party hereto. All notices and other communications required or
permitted by this Agreement shall be deemed to have been duly given if
personally delivered to the intended recipient at the proper address determined
pursuant to this paragraph 7 or sent to such recipient at such address by
registered or certified mail, return receipt requested, Express Mail, Federal
Express or similar overnight delivery service for next Business Day delivery or
by telegram, telex or facsimile transmission and will be deemed given, unless
earlier received; (1) if sent by certified or registered mail, return receipt
requested, five calendar days after being deposited in the United States mail,
postage prepaid; (2) if sent by Express Mail, Federal Express or similar
overnight delivery service for next Business Day delivery, the next Business
Day after being entrusted to such service, with delivery charges prepaid or
charged to the sender's account; (3) if sent by telegram or telex or facsimile
transmission, on the date sent and (4) if delivered by hand, on the date of
delivery.
8. Definitions. As used in this Agreement, the following terms
have the meanings indicated:
"Agreement" or "Option Agreement" means this Option Agreement,
as the same may be amended from time to time in accordance with its terms.
"Business Day" means a day of the year on which banks are not
required or authorized to close in the State of Colorado.
"Option Interest" means the entire partnership interest of
Seller as a partner of the Partnership, including such partner's (i) right to a
share of the income, gain, losses and deductions of and distributions by the
Partnership, (ii) right to a share of Partnership assets, (iii) rights with
respect to initial and additional capital contributions made to the Partnership
by such partner, including such partner's rights with respect to allocations of
income, gain losses and deductions of and distributions made by the Partnership
which are based upon or determined by reference to such capital contributions,
(iv) rights with respect to the management of the business and affairs of the
Partnership, (v) voting, consent and approval rights, (vi) rights to unpaid
interest under Section 12.6 of the Partnership Agreement, whether accrued as of
or accruing on or after the date hereof, (vii) rights with
-5-
18
respect to such partner's Capital Account (as defined in the Partnership
Agreement), (viii) rights, if any, under Sections 16, 17 and 18 of the
Partnership Agreement, (ix) any and all other rights, interests and benefits to
which such partner is or may become entitled by reason of its status as a
partner of the Partnership, and (x) all liabilities and obligations of such
partner by reason of its status as a partner of the Partnership, in each case
as provided in the Partnership Agreement or the partnership laws of the state
of the Partnership's organization.
"Partnership Agreement" means the Amended and Restated Limited
Partnership Agreement, dated as of June 22, 1994, of the Partnership, as the
same heretofore may have been or hereafter may be amended or modified in
accordance with its terms.
9. Terms Generally; Certain Rules of Construction. The
definitions in paragraph 8 and elsewhere in this Option Agreement shall apply
equally to both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The words
"herein", "hereof" and "hereunder" and words of similar import refer to this
Option Agreement in its entirety and not to any part hereof unless the context
shall otherwise require. All references herein to paragraphs shall be deemed
references to paragraphs of this Option Agreement unless the context shall
otherwise require. Any reference in this Agreement to a "day" or number of
"days" (without the explicit qualification of "Business") shall be interpreted
as a reference to a calendar day or number of calendar days. If any action or
notice is to be taken or given on or by a particular calendar day, and such
calendar day is not a Business Day, then such action or notice shall be
deferred until, or may be taken or given on, the next Business Day.
10. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of Colorado without
regard to principles of conflict of laws, except to the extent that the laws of
the jurisdiction of organization of the Partnership shall be mandatorily
applicable.
11. Headings. The headings contained in this Option Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Option Agreement.
12. Waivers; Amendment. Any term or provision of this Option
Agreement may be waived at any time by an instrument in writing signed by the
party which is entitled to the benefit thereof. This Option Agreement may be
amended or supplemented at any time only by an instrument in writing signed by
the parties hereto.
-6-
19
13. Counterparts. This Option Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same agreement.
14. Expenses. Each party hereto will pay its own expenses in
connection with the negotiation and execution of this Option Agreement and the
consummation of the transactions contemplated hereby, including all fees and
disbursements of its legal counsel.
15. Further Actions After the Closing. If, subsequent to the
Closing, further documents are reasonably requested in order to carry out the
provisions and purposes of this Option Agreement, the parties hereto shall
execute and deliver such further documents.
16. Severability. In the event that any part or parts of this
Option Agreement shall be held to be unenforceable to its or their full extent,
then it is the intention of the parties hereto that such part or parts shall be
enforced to the full extent permitted under the laws, and in any event, that
all other parts of this Option Agreement shall remain valid and fully
enforceable as if the unenforceable part or parts had never been a part hereof.
17. Entire Agreement. The provisions of this Agreement, the
Purchase Agreement and the Related Instruments collectively set forth the
entire agreement and understanding between the parties hereto as to the subject
matter hereof and thereof and merge and supersede all prior discussions,
agreements and understandings, oral or written, of any and every nature between
them with respect to such subject matter. Except as and to the extent set forth
in this Agreement, the Purchase Agreement or a Related Instrument, neither
party makes any representation, warranty, covenant or agreement whatsoever and
each party disclaims all liability and responsibility for any representation,
warranty, covenant, agreement or statement made or information communicated
(orally or in writing) by any other Person. Purchaser expressly agrees and
acknowledges that, in purchasing this Option and making decisions regarding
whether or not to exercise this Option, Purchaser (i) is not and will not be
relying on the representations and warranties of Seller or any other Person,
(ii) has made and will make its own inquiry and investigation into, and based
thereon, has formed an independent judgment concerning, the Partnership and the
business conducted by it, (iii) has been furnished or given adequate access to
such information as it has requested concerning the Partnership and the
business conducted by it and (iv) will not assert any claim against Seller or
any of its affiliates, directors, officers, employees, agents, stockholders,
advisors, counsel or representatives, nor will seek to hold any of such other
Persons liable for any inaccuracies, misstatements or omissions with respect to
information concerning the Partnership and the business conducted by it,
provided that the foregoing shall not in any manner be construed or deemed to
limit the ability of Purchaser to make any claim it may otherwise have arising
out of the breach of any express representation or warranty of Seller contained
in this Agreement, the Purchase Agreement or any Related Instrument.
-7-
20
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
[Insert name of Seller]
By:
------------------------------
Name:
Title:
Terrace Tower II
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
XXXXXX COMMUNICATIONS
ASSOCIATES, L.L.C.
By:
------------------------------
Xxxxx X. Xxxxxx, Member
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
-8-
21
EXHIBIT C
CONSENT AND FIRST AMENDMENT OF AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP FOR HALCYON COMMUNICATIONS LIMITED PARTNERSHIP
THIS CONSENT AND FIRST AMENDMENT, dated as of January 31,
1996, is made and entered into by and among the undersigned parties.
Halcyon Communications Limited Partnership, an Oklahoma
limited partnership (the "Partnership"), was formed under the Oklahoma Revised
Limited Partnership Act pursuant to a Limited Partnership Agreement dated as of
January 1, 1994 (the "Original Agreement") among Halcyon Communications, Inc.,
an Oklahoma corporation ("HCI"), TCI Cablevision of Nevada, Inc., a Nevada
corporation ("TCINV"), TCI Cablevision of Utah, Inc., a Utah corporation
("TCIU"), TEMPO Cable, Inc., an Oklahoma corporation ("Tempo"), American
Televenture of Minersville, Inc., a Colorado corporation ("ATM"), and pursuant
to a Certificate of Limited Partnership filed with the Oklahoma Secretary of
State on January 6, 1994. The Original Agreement was thereafter amended and
restated by an Amended and Restated Limited Partnership Agreement dated as of
June 22, 1994 (the "Restated Partnership Agreement"), among the parties to the
Original Agreement.
The undersigned parties desire to (i) consent to the
assignment to Xxxxxx Communications Associates, L.L.C., a Colorado limited
liability company, ("FCA") by each of TCINV, TCIU and Tempo of one-third of
their respective limited partnership interests in the Partnership, (ii) consent
to the assignment by ATM to FCA of one-third of ATM's general partnership
interest in the Partnership and the conversion of such assigned interest into a
limited partnership interest, (iii) consent to the grant to FCA by TCINV, TCIU,
Tempo and ATM of options to acquire the entire balances of their respective
partnership interests in the Partnership and any future exercise of such
options and (iv) consent to the admission of FCA to the Partnership as a
limited partner. The undersigned parties also desire to amend the Restated
Partnership Agreement in certain respects.
Therefore, for and in consideration of the premises and for
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged by each party, the parties hereto agree as follows:
1. Certain Consents and Agreements; Section 754 Election.
(a) HCI, ATM, TCINV, TCIU and Tempo, in their capacities
as, and constituting all of, the partners of the Partnership hereby (i) consent
to (A) the sale to FCA, pursuant to the Agreement of Purchase and Sale of
Partnership Interests, dated as of the date hereof, among the parties hereto
(the "Purchase Agreement"), of the Purchased Interest (as defined in the
Purchase Agreement) of each of ATM, TCINV, TCIU and Tempo, (B) the grant to FCA
by each of ATM, TCFNV, TCIU and Tempo of options to acquire the entire balances
of their respective partnership interests in the Partnership pursuant to
separate Option Agreements, each substantially in the form of Exhibit B to the
Purchase Agreement
22
(collectively, the "Option Agreements"), (C) the conversion of the Purchased
Interest of ATM from a general partnership interest into a limited partnership
interest in the Partnership, (D) the admission of FCA, as the holder of the
Purchased Interests of TCINV, TCIU and Tempo and the converted Purchased
Interest of ATM, to the Partnership as a limited partner effective as of the
date hereof and (E) any future exercise by FCA (or any of its permitted
assignees) of its option and rights under each of the Option Agreements
pursuant to the terms thereof and, upon such exercise, the transfer of the
partnership interests and consummation of the other transactions contemplated
thereby (including, without limitation, the withdrawal contemplated by the last
sentence of paragraph 3(c) of each such Option Agreement); and (ii) agrees that
the Partnership shall file, in a timely manner for the tax year of the
Partnership in which the sale referred to in subclause (i)(A) of this sentence
occurs, an election, pursuant to Section 754 of the Internal Revenue Code of
1986, as amended (the "Code") and applicable Treasury Regulations, to have the
Partnership's assets adjusted as provided in Section 743 of the Code, and if
requested by FCA (or any of its permitted assignees) upon any purchase of any
additional partnership interest or interests in the Partnership in connection
with the exercise of any option under any of the Option Agreements, also shall
make such election in a timely manner for the tax year of the Partnership in
which such exercise occurs. FCA hereby agrees to be admitted to the Partnership
as a Limited Partner and, as such, to be bound by the provisions of the
Restated Partnership Agreement, as amended hereby.
(b) Without in any way limiting the generality of the
definitions of the terms "Partnership Interest" and "Purchased Interest" in the
Purchase Agreement or the definition of "Option Interest" in any of the Option
Agreements, the parties acknowledge, confirm and agree that (i) for purposes of
Section 12.6 of the Restated Partnership Agreement and any other provision of
the Restated Partnership Agreement pursuant to which the rights of a partner of
the Partnership are based upon or determined by reference to such partner's
initial or additional Capital Contributions (as defined in the Restated
Partnership Agreement) as of any time of determination, FCA shall be deemed to
have made (in addition to any Capital Contributions actually made by it) a pro
rata portion of all Capital Contributions made by ATM, TCINV, TCIU or Tempo
prior to the date hereof, with such portion being equal to the aggregate
percentage of the Partnership Interest of ATM, TCINV, TCIU or Tempo (as the case
may be) which FCA shall have acquired, at or before such time, pursuant to the
Purchase Agreement or the applicable Option Agreement; and (ii) as of the date
hereof, automatically by virtue of the sale of the Purchased Interests to FCA,
all rights of ATM under or by virtue of the Amended and Restated Management
Agreement, dated as of June 22, 1994, between the Partnership and HCI, as
"Manager," as heretofore amended (the "Management Agreement") shall be rights
of each of ATM and FCA; provided, however, that in the event of the removal of
Manager pursuant to Section 5.2 by the mutual consent of ATM and FCA, then,
subject to the last sentence of Section 5.2 of the Management Agreement, ATM
shall serve as manager and the Managing Partner of the Partnership unless ATM
and FCA agree to select a new manager or new Managing Partner.
2. Amendments to Restated Partnership Agreement. The
undersigned parties hereby agree that, effective as of the date hereof, the
Restated Partnership Agreement is
2
23
hereby amended as follows:
(a) Section 1.3 of the Restated Partnership Agreement is
amended to read in its entirety as follows:
"1.3 TCI Cablevision of Nevada, Inc., a
Nevada corporation, TCI Cablevision of Utah, Inc., a
Utah corporation, TEMPO Cable, Inc., an Oklahoma
corporation, and Xxxxxx Communications Associates,
L.L.C., a Colorado limited liability company, are
sometimes hereinafter referred to as TCI/Nevada,
TCI/Utah, TEMPO and FCA, respectively."
(b) Section 2.3 of the Partnership Agreement is amended
to read in its entirety as follows:
"2.3 'Affiliate,' when used with respect to a
specified Person, means any other Person that
directly, indirectly or through one or more
intermediaries Controls, is Controlled by or is under
Common Control with such Person. For purposes of the
foregoing, 'Control,' as to any Person, means the
possession, directly or indirectly, of the power to
direct or cause the direction of the management and
policies of such Person (whether through ownership of
securities, partnership interests or other ownership
interests, by contract, by partnership or involvement
in the board of directors, management committee or
other management structure of such Person, or
otherwise). The terms 'Controlled,' 'Controlling' and
similar variations shall have correlative meanings."
(c) The defined term "Initial Limited Partners" set forth
in Section 2.18 of the Restated Partnership Agreement is amended to read in its
entirety as follows:
"2.18 'Initial Limited Partners' means
TCI/Nevada, TCI/Utah and TEMPO."
(d) The defined term "Limited Partner" set forth in
Section 2.19 of the Restated Partnership Agreement is amended to read in its
entirety as follows:
"2.19 'Limited Partner' means each Initial
Limited Partner, FCA and each other Person, if any,
who is admitted as a successor or additional limited
partner of the Partnership in accordance with this
Agreement, in each case unless and until such Person
ceases to be a limited partner of the Partnership in
accordance with this Agreement."
(e) Section 21 of the Restated Partnership Agreement is
amended to read in its entirety as follows:
3
24
"Section 21. Assignability of Partnership Interests;
Admission of Additional Partners.
"21.1 No Partner shall mortgage, pledge,
hypothecate, transfer, sell, assign or otherwise
dispose of all or any part of its interest in the
Partnership, whether voluntarily, by operation of law
or otherwise, or any right, title or interest in or
to such interest without obtaining the prior written
consent of the other Partners, except as provided for
in this Agreement. Notwithstanding the foregoing, ATM
or any Limited Partner shall have the right, in its
sole discretion, to transfer all or any part of its
interest in the Partnership to (i)
Tele-Communications, Inc., a Delaware corporation, or
any Affiliate thereof or (ii) FCA or any FCA
Permitted Transferee (as hereinafter defined). For
purposes of this Agreement, the term 'FCA Permitted
Transferee' shall mean (i) any Affiliate of Xxxxx X.
Xxxxxx, currently a resident of Littleton, Colorado
('Xxxxxx'), (ii) any member of Xxxxxx'x immediate
family (i.e., wife, parents, children, including
those adopted before the age of 18, grandchildren,
brothers, sisters, and the spouses or children of the
foregoing), (iii) any custodian under the Uniform
Gifts to Minors Act or similar fiduciary for the
exclusive benefit of Xxxxxx'x children during their
lives, (iv) in the event of Xxxxxx'x adjudication of
incompetency, his legal representatives, (v) in the
event of Xxxxxx'x death, his executors or the
administrators of his estate and his heirs who are
members of his immediate family, and (v) any trust
described in Section 664 of the Code of which Xxxxxx
or one or more members of his immediate family (and
no other persons) are income beneficiaries. Subject
to the last sentence of this Section 21.1, in the
event of a permitted transfer of any interest in the
Partnership, the transferee (other than, with respect
to clauses (i) of this sentence below, a transferee
who was already a partner prior to the permitted
transfer) shall, by written instrument in form and
substance reasonably satisfactory to the
non-transferring Partners (i) agree to become a
Partner of the same class as the transferor and
accept and adopt the terms and provisions of this
Agreement and (ii) assume the obligations of the
transferor Partner under this Agreement with respect
to the transferred partnership interest. If required
by the nontransferring Partners, the transferee shall
deliver to the Partnership an opinion, reasonably
satisfactory in form and substance to the
nontransferring Partners, of counsel reasonably
satisfactory to the nontransferring Partners to the
effect that the transfer is in compliance with
applicable state and Federal securities laws. Upon
completion of any permitted transfer in accordance
with the foregoing, the transferee (if not already a
Partner) shall be admitted as a substituted Partner
in the place and stead of the transferor Partner with
respect to the transferred partnership interest
(subject to the last sentence of this Section 21.1),
without any further action, and if such transfer is
of the
4
25
entire partnership interest of the transferor
Partner, such transferor Partners shall be deemed to
have withdrawn from the Partnership without further
action. If the partnership interest transferred in a
permitted transfer is a general partnership interest,
the transferred interest shall be converted into a
limited partnership interest if and to the extent
requested by the transferor Partner and the
transferee.
"21.2 Except for the transferee of a
partnership interest permitted by and in accordance
with Section 21.1, no Person shall be admitted as a
general or limited partner of the Partnership without
the prior written consent of all the Partners."
(f) Section 24.1 of the Restated Partnership Agreement is
amended by (i) deleting the word "or" at the end of subsection 24.1.2, (ii)
redesignating subsection 24.1.3 thereof as subsection 24.1.4, and (iii) adding,
immediately after subsection 24.1.2, a new subsection 24.1.3 which shall read
in its entirety as follows:
"24.1.3 The sale of all or substantially
all of the Partnership Assets; or"
(g) Clause (i) of the last sentence of Section 24.2 is
amended to read in its entirety as follows:
"(i) is an Affiliate of Tele-
Communications, Inc., a Delaware corporation ("TCI")
or is an Affiliate of Xxxxx X. Xxxxxx,"
(h) Section 25.4 of the Restated Partnership Agreement is
amended by substituting the word "Person" for the word "entity" appearing
therein and by adding at the end of clause (ii) thereof the following:
"or (iii) FCA or an FCA Permitted Transferee."
(i) Subsection 25.5.2 of the Restated Partnership
Agreement is amended to read in its entirety as follows:
"25.5.2 If to ATM or any Limited Partner
other than FCA, to such Person at:
Terrace Tower 11
0000 XXX Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: General Counsel"
(j) Section 25.5 of the Restated Partnership Agreement is
further amended by adding a new subsection 25.5.3 which shall read in its
entirety as follows:
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26
"25.5.3 If to FCA, to it at:
0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000"
3. Reaffirmation. The undersigned parties hereby
acknowledge that each of the Restated Partnership Agreement and the Management
Agreement, in each case as amended, modified or supplemented hereby, remains in
full force and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned parties have duly executed
and delivered this Consent and First Amendment as of the date first above
written.
GENERAL PARTNERS:
HALCYON COMMUNICATIONS, INC. AMERICAN TELEVENTURE OF
MINERSVILLE, INC.
By: /s/ XXXXXX X. XXXXX By:
---------------------------- -----------------------------
Name: XXXXXX X. XXXXX Name:
----------------------- ------------------------
Title: PRESIDENT Title:
---------------------- -----------------------
EXISTING LIMITED PARTNERS:
TCI CABLEVISION OF NEVADA, INC. TCI CABLEVISION OF UTAH, INC.
By: By:
---------------------------- -----------------------------
Name: Name:
----------------------- ------------------------
Title: Title:
---------------------- -----------------------
TEMPO CABLE, INC. NEW LIMITED PARTNER:
XXXXXX COMMUNICATIONS
ASSOCIATES, L.L.C.
By: By: /s/ XXXXX X. XXXXXX
---------------------------- -----------------------------
Name: Xxxxx X. Xxxxxx, Member
----------------------- 2-12-96
Title:
----------------------
6
