EXHIBIT 10.05
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this "Agreement"), made as of
this 31st day of August, 1998 by and among SYRACUSE HILTON HEAD HOLDINGS, L.P.,
a Delaware limited partnership ("SHHH"), ADELPHIA COMMUNICATIONS CORPORATION, a
Delaware corporation ("Adelphia") and SHHH ACQUISITION CORP., a Delaware
corporation ("ACC Subsidiary").
WITNESSETH:
WHEREAS, Adelphia is the Class B Limited Partner in SHHH under
that certain Amended and Restated Partnership Agreement of SHHH dated as of
December 31, 1991, as amended (the "Partnership Agreement");
WHEREAS, TCID-SVHH, Inc., a Delaware corporation
("TCID-SVHH"), is the Class A Limited Partner in SHHH under the Partnership
Agreement;
WHEREAS, ACC Subsidiary has agreed to merge with and into
TCID-SVHH (the "Merger") pursuant to that Agreement and Plan of Merger by and
among TCID-SVHH, ACC Subsidiary, TCI Development Corporation and Adelphia dated
as of August 31, 1998 (the "Merger Agreement");
WHEREAS, TCID-SVHH will be the surviving entity in the Merger
and references herein to ACC Subsidiary herein shall also refer to TCID-SVHH
after completion of the Merger;
WHEREAS, upon completion of the Merger, ACC Subsidiary will be
the Class A Limited Partner in SHHH under the Partnership Agreement;
WHEREAS, upon completion of the Merger, Adelphia intends to
transfer and assign its Class B Limited Partner Interest in SHHH to ACC
Subsidiary; and
WHEREAS, Adelphia and ACC Subsidiary desire that SHHH
distribute and transfer to ACC Subsidiary the Limited Partner interest in SVHH
Cable Acquisition, L.P. (the "SVHH Limited Partner Interest") under that certain
Third Amended and Restated Limited Partnership Agreement dated as of December
31, 1991, as amended (the "SVHH Partnership Agreement") that is currently held
by Hilton Head Communications, L.P., a Delaware limited partnership ("HHC"), in
exchange for ACC Subsidiary's surrender and release to, and the redemption and
cancellation by, SHHH of the Class A and Class B Limited Partner Interests in
SHHH (the "SHHH Limited Partner Interests").
NOW, THEREFORE, in consideration of the foregoing and of the
mutual representations, warranties, covenants and promises contained herein, and
intending to be legally
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bound hereby, the parties hereto represent, warrant, covenant and agree as
follows:
ARTICLE I
DISTRIBUTION AND TRANSFER OF SVHH LIMITED PARTNER
INTEREST 1.1 Transfer of SVHH Limited Partner Interest.
(a) At the Closing (as defined below), SHHH
shall distribute, convey, transfer and assign to ACC Subsidiary and ACC
Subsidiary shall accept and acquire from SHHH, the SVHH Limited Partner Interest
free and clear of any and all liens, encumbrances, pledges, charges or
restrictions of any nature except for restrictions arising under the SVHH
Partnership Agreement.
(b) At the Closing, SHHH shall deliver to ACC
Subsidiary such assignments and other good and sufficient instruments of
transfer and conveyance as shall be reasonably deemed necessary or appropriate
by ACC Subsidiary to vest in or confirm to ACC Subsidiary good and valid title
to the SVHH Limited Partner Interest.
1.2 Transfer Taxes.
SHHH shall pay all stamp, sales, income, realty
transfer or other taxes, federal, state or local, imposed on SHHH, and ACC
Subsidiary shall pay all such taxes imposed on ACC Subsidiary, in respect of any
and all transfers pursuant to the terms of this Agreement, notwithstanding the
fact that one party may act as agent for the other party in the collection and
remittance of any such taxes.
1.3 Effect of Transfer.
The parties hereto acknowledge and agree that they
shall, for accounting purposes only, treat the transfer and distribution of the
SVHH Limited Partner Interest hereunder as effective July 1, 1998.
ARTICLE II
REDEMPTION AND ADJUSTMENT
2.1 Redemption.
At the Closing, as consideration for the
distribution, assignment and transfer of the SVHH Limited Partner Interest, ACC
Subsidiary shall withdraw as a Limited Partner and remit and assign to SHHH for
redemption and cancellation, all of ACC Subsidiary's right, title and interest
as a Class A and Class B Limited Partner of SHHH, and SHHH hereby shall receive,
accept and so cancel the SHHH Limited Partner Interests.
2.2 Adjustment.
At the Closing, all of the interests of the remaining
partners immediately after the Closing shall be adjusted to reflect the
redemption and cancellation of the SHHH Limited Partner Interests.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SHHH
SHHH represents and warrants to ACC Subsidiary that the
following statements are true and correct as of the date hereof and will also be
true and correct on the Closing Date (as hereinafter defined) as follows:
3.1 Organization.
SHHH is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of Delaware
with full partnership power and authority to engage in its business and
operations, to continue such business and operations as conducted at present, to
enter into this Agreement and perform the terms of this Agreement. SHHH is duly
qualified to conduct business and is in good standing in those jurisdictions
where the conduct of its business or the nature of its assets makes such
qualification necessary.
3.2 Authorization of Agreement.
SHHH and all of its partners (other than TCID-SVHH,
Inc.) have taken all necessary action to authorize and approve this Agreement,
the consummation of the transactions contemplated hereby and the performance by
SHHH of all of the terms and conditions hereof on its part to be performed. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the fulfillment and compliance with the terms and
conditions hereof do not and will not: (a) violate any provisions of any
judicial or administrative order, award, judgment or decree applicable to SHHH;
(b) conflict with, result in a breach of or constitute a default under the
Partnership Agreement or Certificate of SHHH or any other agreement or
instrument to which SHHH is a party or by which SHHH is bound; (c) create or
impose any lien, charge, encumbrance, or restriction upon the SVHH Limited
Partner Interest or the Systems (as hereinafter defined) in contravention of any
agreement or instrument to which SHHH is a party or by which SHHH is bound; and
(d) create a right in any person to accelerate payment of the principal of any
indebtedness due from SHHH nor increase the amount of any interest over that
therefore payable in respect thereof. This Agreement has been duly authorized,
executed and delivered by SHHH and constitutes a legal, valid and binding
obligation of SHHH. All of the approvals and consents required for SHHH to
consummate the transactions contemplated hereby have been obtained except for
(i) any filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, (ii) the consent of the Class A Limited Partner which shall be
obtained upon completion of the Merger, (iii) any consent or approval under that
certain Credit Agreement dated December 27, 1994, among HHC as borrower, the
Lenders from time to time parties thereto, Canadian Imperial Bank of Commerce,
acting through its New York agency ("CIBC-NYA") and The Toronto-Dominion Bank
("TD") as Managing Agents, CIBC-NYA, as Documentation Agent, TD, as Syndication
Agent, First Union National Bank of North Carolina and Societe Generale, as
Agents, Credit Lyonnais, as Co-Agent and CIBC-NYA, as Administrative gent (as
the same may be hereafter supplemented, replaced, modified or amended from time
to time (the "HHC Credit Agreement").
3.3 Title to SVHH Limited Partner Interest.
SHHH will have on the Closing Date good and valid title to the SVHH Limited
Partner Interest, and SHHH has full power, authority and the absolute right to
transfer the SVHH Limited Partner Interest free and clear of any and all liens,
charges, pledges, encumbrances or restrictions of any nature except for
restrictions arising under the XXXX Xxxxxxxxxxx Xxxxxxxxx. Xxx
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XXXX Limited Partner Interest represents the only limited partner interest in
SVHH and SVHH Holdings, Inc. holds the only general partner interest in SVHH.
3.4 Litigation.
There is no litigation, at law or in equity, nor any
proceedings before any commission or other governmental authority, pending, or
to the best of SHHH's knowledge, threatened against SHHH which would prevent or
restrict SHHH's right or ability to consummate the transfer of the SVHH Limited
Partner Interest or the other transactions as contemplated herein.
3.5 SVHH Systems.
At the Closing Date, SVHH will own good and
marketable title to the cable televisions systems operating in Virginia and
North Carolina (the "Systems"). As of June 30, 1998, the Systems had 32,290
Equivalent Basic Subscribers and, as of the Closing Date, there shall not be
less than 32,290 Equivalent Basic Subscribers. The term "Equivalent Basic
Subscribers" shall mean the number obtained by adding (i) the number of first
outlet residential subscribers for basic CATV service of Systems who have made
at least one monthly payment for service at the normal monthly rate for basic
service, to (ii) the result obtained by dividing the aggregate of the gross
monthly billing from bulk subscribers who have made at least one monthly payment
for service at the normal monthly rate by $11.95.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ACC
SUBSIDIARY ACC Subsidiary represents and warrants to SHHH that
the following statements are
true and correct as of the date hereof and will also be true and correct, as of
the Closing Date, as follows:
4.1 Organization.
ACC Subsidiary is a corporation, duly organized,
validly existing and in good standing under the laws of the State of Delaware
with full corporate power and authority to engage in its business and
operations, to continue such business and operations as conducted at present, to
enter into this Agreement and perform the terms of this Agreement. ACC
Subsidiary is duly qualified to conduct business and is in good standing in
those jurisdictions where the conduct of its business or the nature of its
assets makes such qualification necessary.
4.2 Authorization of Agreement.
ACC Subsidiary has taken all necessary action to
authorize and approve this Agreement, the consummation of the transactions
contemplated hereby and the performance by ACC Subsidiary of all of the terms
and conditions hereof on its part to be performed. The execution and delivery of
this Agreement, the consummation of the transactions contemplated hereby and the
fulfillment and compliance with the terms and conditions hereof do not and will
not: (a) violate any provisions of any judicial or administrative order, award,
judgment or decree applicable to ACC Subsidiary, or (b) conflict with, result in
a breach of or constitute a default under the Articles of Incorporation or
Bylaws of ACC Subsidiary or any other agreement or instrument to which ACC
Subsidiary is a party or by which it is bound, (c) create or impose any lien,
charge, encumbrance, or restriction upon the SHHH Limited Partner Interests in
contravention of any agreement or instrument to which ACC Subsidiary is a party
or by which ACC Subsidiary is bound; and (d) create a right in
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any person to accelerate payment of the principal of any indebtedness due from
ACC Subsidiary nor increase the amount of any interest over that theretofore
payable in respect thereof. This Agreement has been duly authorized, executed
and delivered by ACC Subsidiary and constitutes a legal, valid and binding
obligation of ACC Subsidiary. All of the approvals and consents required for ACC
Subsidiary to consummate the transaction contemplated hereby have been obtained.
4.3 Title to Interests.
ACC Subsidiary will have on the Closing Date good and
valid title to the SHHH Limited Partner Interests, and ACC Subsidiary has full
power, authority and the absolute right to transfer the SHHH Limited Partner
Interests free and clear of any and all liens, charges, pledges, encumbrances or
restrictions of any nature except for restrictions arising under the SHHH
Partnership Agreement.
4.4 Litigation.
There is no litigation, at law or in equity, or any
proceedings before any commission or other governmental authority, pending or,
to the best knowledge of ACC Subsidiary, threatened against ACC Subsidiary which
would prevent or restrict ACC Subsidiary's right or ability to consummate the
transfer and redemption of ACC Subsidiary's Limited Partner interests in SHHH or
the other transactions contemplated herein.
ARTICLE V
CONDUCT OF BUSINESS PENDING CLOSING; HSR ACT FILING
5.1 Maintenance of Business.
SHHH covenants and agrees with Adelphia and ACC
Subsidiary that from the date hereof to and including the Closing Date it shall
cause SVHH to continue to operate the Systems, maintain the assets and
properties of the Systems and to keep all of its business books, records and
files, all in the ordinary course of business in accordance with past practices
consistently applied. SHHH shall not permit SVHH to sell, transfer or assign any
assets except in the ordinary course of business and for full and fair value and
except for the distribution of the Hilton Head, South Carolina cable television
system to HHC.
5.2 Consummation of Agreement.
Each of SHHH and Adelphia and ACC Subsidiary shall
use its commercially reasonable efforts to perform and fulfill all obligations
and conditions on its part to be performed and fulfilled under this Agreement,
to the end that the transactions contemplated by this Agreement shall be fully
carried out.
5.3 HSR Act Filing.
The parties shall cooperate with each other to file a
notification and report form with the Pre-Merger Notification Office of the
Federal Trade Commission and with the Antitrust Division of the Department of
Justice pursuant to the Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act of 1976,
as amended, and the rules and regulations thereunder (collectively, the "HSR
Act"). The costs of such filing will be paid equally by SHHH and ACC Subsidiary.
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5.4 Transfers Prior to Closing.
Prior to the Closing Date, (i) SVHH shall transfer
and distribute the Hilton Head, South Carolina cable television system assets to
Hilton Head Communications, L.P.; and (ii) Hilton Head Communications, L.P.
shall transfer and distribute the SVHH Limited Partner Interest to SHHH.
ARTICLE VI
CONDITIONS TO CLOSING - ADELPHIA AND ACC SUBSIDIARY
6.1 Conditions to Obligations of Adelphia and ACC Subsidiary.
The obligations of Adelphia and ACC Subsidiary to consummate
the transfer and redemption of the SHHH Partnership Interests at Closing shall
be subject to the satisfaction of the following conditions precedent, except to
the extent waived by Adelphia and ACC Subsidiary in writing:
(a) All of the representations and warranties of
SHHH contained in this Agreement shall be true and correct in all material
respects at and as of the Closing Date as though such representations and
warranties were made at and as of such time; SHHH shall have performed and be in
compliance in all material respects with all of the covenants, agreements, terms
and provisions set forth herein on its part to be observed or performed, and no
event which would constitute a breach of the terms of this Agreement on the part
of SHHH shall have occurred and be continuing at the Closing Date.
(b) SHHH shall have executed and delivered to
Adelphia and ACC Subsidiary on the Closing Date a Certificate, dated that date,
in form and substance reasonably satisfactory to Adelphia and ACC Subsidiary to
the effect that the conditions set forth in each of the provisions of Section
6.1(a) of this Agreement have been satisfied in full.
(c) All documents and other items required to be
delivered hereunder to Adelphia and ACC Subsidiary at or prior to Closing shall
have been delivered or shall be tendered at the Closing.
(d) On the Closing Date, no suit, action or
other proceeding shall be pending or threatened before any court or other
governmental agency against SHHH or Adelphia or ACC Subsidiary in which the
consummation of the transactions contemplated by this Agreement are sought to be
enjoined.
(e) All notification and report forms required
to be filed on behalf of the parties to this Agreement with the FTC and the DOJ
under the HSR Act and rules thereunder shall have been filed, and the waiting
period required to expire under the HSR Act and rules thereunder, including any
extension thereof, shall have expired or early termination of the waiting period
shall have been granted.
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(f) The Merger shall have been completed in
accordance with the Merger Agreement.
(g) Adelphia or its designee shall have acquired
all of the outstanding capital stock of SVHH Holdings, Inc.
(h) SVHH shall have distributed the Hilton Head,
South Carolina cable television system assets to HHC.
(i) The consents and approvals set forth in
Section 3.2 hereof shall have been obtained.
(j) Adelphia and ACC Subsidiary shall have
received a fairness opinion from Xxxxxxx & Associates, Inc. as to the
transactions contemplated hereby which shall be acceptable to Adelphia and ACC
Subsidiary.
ARTICLE VII
CONDITIONS TO CLOSING - SHHH
7.1 Conditions to Obligations of SHHH.
The obligations of SHHH to consummate the transfer of the SVHH
Partnership Interest at Closing shall be subject to the satisfaction of the
following conditions precedent, except to the extent waived by Adelphia and ACC
Subsidiary in writing:
(a) All of the representations and warranties of
ACC Subsidiary contained in this Agreement shall be true and correct in all
material respects at and as of the Closing Date as though such representations
and warranties were made at and as of such time, and ACC Subsidiary shall be in
compliance in all material respects with all of the covenants, agreements, terms
and provisions set forth herein on its part to be observed and performed, and no
event which would constitute a breach of the terms of this Agreement on the part
of ACC Subsidiary shall have occurred and be continuing at the Closing Date.
(b) ACC Subsidiary shall have executed and
delivered to SHHH on the Closing Date a Certificate, dated that date, in form
and substance reasonably satisfactory to SHHH to the effect that the conditions
set forth in each of the provisions of Section 7.1(a) of this Agreement have
been satisfied in full.
(c) On the Closing Date, no suit, action or
other proceeding shall be pending or threatened before any court or other
governmental agency against SHHH or Adelphia or ACC Subsidiary in which the
consummation of the transactions contemplated by this Agreement are sought to be
enjoined.
(d) All notification and report forms required
to be filed on behalf of the parties to this Agreement with the FTC and the DOJ
under the HSR Act and rules thereunder shall have been filed, and the waiting
period required to expire under the HSR Act and rules
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thereunder, including any extension thereof, shall have expired or early
termination of the waiting period shall have been granted.
(e) The Merger shall have been completed in
accordance with the Merger Agreement.
(f) SVHH shall have distributed the Hilton Head,
South Carolina cable television system assets to HHC.
(g) The consents and approvals set forth in
Section 3.2 hereof shall have been obtained.
ARTICLE VIII
CLOSING
8.1 Date and Location.
The consummation of the transfer of the SVHH Limited
Partner Interest and the transfer and redemption of SHHH Limited Partner
Interests shall constitute the "Closing". Unless otherwise mutually agreed to by
the parties, the Closing shall take place at 10:00 a.m., local time, at the
offices of Xxxxxxxx Xxxxxxxxx Professional Corporation, 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxxxx, XX 00000. The parties agree to close the transactions
contemplated by this Agreement within five (5) days after all of the conditions
to Closing have been satisfied or waived, whichever shall later occur, which
specified date and time shall constitute the "Closing Date". The effective date
of the withdrawal of ACC Subsidiary and redemption and cancellation of the SHHH
Limited Partner Interests, and the distribution of the SVHH Limited Partner
Interest shall be at the close of business on the Closing Date. Notwithstanding
the foregoing, this Agreement may be terminated pursuant to Section 9.4 hereof
if the Closing has not occurred by December 31, 1998.
8.2 Actions to be taken by SHHH at Closing.
At Closing, SHHH shall take all actions required to
be taken hereunder and SHHH shall deliver to ACC Subsidiary:
(a) such assignments and other good and
sufficient instruments of transfer and conveyance as shall be reasonably deemed
necessary or appropriate by ACC Subsidiary to vest in or confirm to ACC
Subsidiary good and valid title to the SVHH Limited Partner Interest;
(b) all of the approvals and consents required
hereunder of all necessary parties and governmental authorities to the
distribution, transfer and assignment of the SVHH Limited Partner Interest, the
withdrawal of ACC Subsidiary and redemption by SHHH, and the consummation of the
transactions contemplated hereunder; and
(c) such other documents and certificates as
required to be delivered hereunder.
8.3 Actions to be taken by ACC Subsidiary at Closing.
At Closing, ACC Subsidiary shall take all actions
required to be taken hereunder and shall deliver, or cause to be delivered, to
SHHH:
(a) all of the approvals and consents required
hereunder of all necessary parties and governmental authorities to the transfer
and assignment of the SHHH Limited Partner
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Interests, the withdrawal of ACC Subsidiary and redemption by SHHH of the SHHH
Limited Partner Interests, and the consummation of the transactions contemplated
hereunder; and
(b) such documents and certificates required to
be delivered hereunder or reasonably deemed necessary or appropriate by SHHH.
8.4 Net Liabilities of SVHH.
SHHH hereby represents, warrants and covenants to ACC
Subsidiary that on the Closing Date the Net Liabilities of SVHH (as defined
below) will be equal to $14,845,000. The term "Net Liabilities of SVHH" shall
mean the number equal to (x) the sum of the total liabilities of SVHH (as
defined and determined in accordance with GAAP) on the Closing Date less (y) the
sum of the current assets of SVHH (as defined and determined in accordance with
GAAP, except that inventory shall not be included as a current asset) on the
Closing Date.
On or before 90 days after the Closing Date, SHHH
shall deliver to ACC Subsidiary a final calculation of the Net Liabilities of
SVHH calculated as of the Closing Date (the "Final Calculation"), together with
such supporting documentation as ACC Subsidiary may reasonably request. Should
ACC Subsidiary dispute SHHH's Final Calculation, ACC Subsidiary shall promptly,
but in no event later than 60 days after receipt of the Final Calculation (the
"Grace Period"), deliver to SHHH written notice describing in reasonable detail
the dispute, together with ACC Subsidiary's determination as to the Final
Calculation in reasonable detail. If the dispute is not resolved by the parties
within 20 days from the date of receipt by SHHH of written notice from ACC
Subsidiary, the parties agree to engage promptly the Pittsburgh, Pennsylvania
office of Price Waterhouse or, if unavailable, another "big five" accounting
firm mutually acceptable to ACC Subsidiary and SHHH (the "Independent
Accountant"), to resolve the dispute within 30 days after such engagement. The
Independent Accountant's determination shall be final and binding on the
parties. All fees and costs of the Independent Accountant shall be borne pro
rata by SHHH and ACC Subsidiary in proportion to the difference between the
Independent Accountant's determination of the Net Liabilities of SVHH on the
Closing Date and each of SHHH's and ACC Subsidiary's determination of the Net
Liabilities of SVHH on the Closing Date. ACC Subsidiary shall not dispute SHHH's
Final Calculation unless SHHH's computation of the Net Liabilities of SVHH on
the Closing Date differs from ACC Subsidiary's computation by more than
$1,000.00. If ACC Subsidiary fails to notify SHHH prior to the expiration of the
Grace Period that it disputes SHHH's Final Calculation, SHHH's Final Calculation
shall be deemed to be accepted by ACC Subsidiary and shall be final and binding
on the parties.
Upon the final and binding determination of the Net
Liabilities of SVHH on the Closing Date, (i) if the Net Liabilities of SVHH on
the Closing Date are less than $14,845,000, SHHH and ACC Subsidiary shall cause
SVHH to assume additional liabilities in an amount equal to such difference and
(ii) if the Net Liabilities of SVHH on the Closing Date are greater than
$14,845,000, SHHH and ACC Subsidiary shall cause SHHH to assume liabilities of
SVHH in an amount equal to such difference.
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ARTICLE IX
TERMINATION
9.1 Termination by Mutual Agreement.
This Agreement may be terminated prior to Closing by
mutual written agreement of Adelphia and ACC Subsidiary and SHHH. In such event,
this Agreement shall terminate and neither Adelphia and ACC Subsidiary nor SHHH
shall have any further obligation or liability to the other hereunder, except
that Section 13.6 of the Agreement shall survive and continue in full force and
effect notwithstanding such termination.
9.2 Adelphia's and ACC Subsidiary's Default.
In the event that the transactions contemplated by
this Agreement are not consummated on the Closing Date (if and as extended) due
to Adelphia's or ACC Subsidiary's failure or refusal to close, and all of the
conditions specified in Article VI shall have been satisfied, SHHH shall be
entitled to pursue any and all of its equitable and legal causes of action
against Adelphia and ACC Subsidiary.
9.3 SHHH's Default.
In the event that the transactions contemplated by
this Agreement are not consummated on the Closing Date (if and as extended) due
to SHHH's failure or refusal to close and all of the conditions specified in
Article VII shall have been satisfied, Adelphia and ACC Subsidiary shall be
entitled to pursue any and all of its equitable and legal causes of action
against SHHH.
9.4 Termination by Adelphia and ACC Subsidiary or SHHH.
This Agreement may be terminated by Adelphia and ACC
Subsidiary or SHHH at any time after December 31, 1998 (the "Termination Date")
in the event that any condition set forth in Articles VI or VII hereof has not
been satisfied or tendered by the party owing performance or waived by the party
for whose benefit the condition is intended, and upon such termination, and
unless due to a default under Section 9.2 or 9.3, neither Adelphia or ACC
Subsidiary nor SHHH shall have any further obligation or liability to the other
hereunder, except that Section 13.6 of this Agreement shall survive and continue
in full force and effect notwithstanding such termination.
ARTICLE X
NOTICE
10.1 Addresses for Notice.
All notices and other communications hereunder shall
be in writing and deemed to have been duly given if: (a) mailed, first class,
registered or certified mail, return receipt requested, postage prepaid; (b)
delivered by courier or overnight courier providing written evidence of receipt
for hand delivery; or (c) transmitted via telecopy:
To SHHH:
Syracuse Hilton Head Holdings, L.P.
Xxxx xx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Fax: 000-000-0000
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With a copy to:
Xxxxx Xxxxxx, Esquire
Main at Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax: 000-000-0000
To Adelphia and ACC Subsidiary:
Adelphia Communications Corporation
Main at Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Fax: 000-000-0000
With copies to:
Xxxxx Xxxxxx, Esquire
Main at Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax: 000-000-0000
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and
Xxxxx X. Xxxxxx, Esquire
Xxxxxxxx Ingersoll Professional Corporation
000 Xxxxx Xxxxxx
One Oxford Centre, 20th Floor
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Any party to this Agreement may change the address of the
party to which all communications and notices may be sent hereunder by
addressing notices of such change in the manner provided.
10.2 Effectiveness of Notice.
Notice shall be deemed received the same day (when
delivered personally), three (3) days after mailing (when sent by registered or
certified mail), and the next business day (when sent by facsimile transmission
or when delivered by overnight courier. Any party to this Agreement may change
the address of the party to which all communications and notices may be sent
hereunder by addressing notices of such change in the manner provided.
ARTICLE XI
ARBITRATION
Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in the
Commonwealth of Pennsylvania, in accordance with articles of the American
Arbitration Association for Commercial Arbitration, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
therefor.
ARTICLE XII
LAWS GOVERNING
The construction and interpretation of this Agreement and the
rights of the parties shall be governed by the laws of the Commonwealth of
Pennsylvania, without regard to its conflicts of laws provisions.
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ARTICLE XIII
MISCELLANEOUS
13.1 Survival of Representations and Warranties.
SHHH and ACC Subsidiary acknowledge that the
representations, warranties, covenants and agreements of SHHH and ACC Subsidiary
contained in this Agreement form an integral part of the consideration given to
ACC Subsidiary and to SHHH, without which ACC Subsidiary would be unwilling to
accept and receive the distribution, assignment and conveyance of the SVHH
Limited Partner Interest, and SHHH would be unwilling to distribute, assign and
transfer, the SVHH Limited Partner Interest. Notwithstanding any investigation
and review made by SHHH or ACC Subsidiary pursuant to this Agreement, SHHH and
ACC Subsidiary agree that all of the representations, warranties, covenants and
agreements of SHHH and ACC Subsidiary contained in this Agreement or in any
exhibit, statement, report, certificate or other document or instrument required
to be delivered pursuant to this Agreement shall survive the making of this
Agreement, any investigation or review made by or on behalf of the parties
hereto and the Closing hereunder; provided that the representations and
warranties contained in this Agreement shall expire and be extinguished one year
after the Closing Date except for representations and warranties relating to
title and ownership, which shall survive forever.
13.2 Counterparts.
This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
13.3 Assignment.
This Agreement may not be assigned by any party
hereto without the prior written consent of the other parties; provided,
however, that ACC Subsidiary may assign this Agreement to one of its
subsidiaries or other affiliates.
13.4 Entire Agreement.
This Agreement is an integrated document, contains
the entire agreement between the parties, wholly cancels, terminates and
supersedes any and all previous and/or contemporaneous oral agreements,
negotiations, commitments and writings between the parties hereto with respect
to such subject matter. No change, modification, extension, termination, notice
of termination, discharge, abandonment or waiver of this Agreement or any of the
provisions hereof, nor any representation, promise or condition relating to this
Agreement, shall be binding upon the parties hereto unless made in writing and
signed by the parties hereto.
13.5 Captions.
The captions of Sections hereof are for convenience
only and shall not control or affect the meaning or construction of any of the
provisions of this Agreement.
13.6 Expenses.
Except as otherwise expressly provided herein, SHHH
and ACC Subsidiary each will pay all costs and expenses, including any and all
legal and accounting fees, of its performance and compliance with all agreements
and conditions contained herein on its part to be performed or complied with.
13.7 Further Assurances.
The parties agree to execute, acknowledge, deliver
and file, or cause to be executed, acknowledged, delivered and filed, all
further instruments, agreements or documents as may be necessary to consummate
the transactions provided for in this Agreement and to do all further acts
necessary to carry out the purpose and intent of this Agreement.
13.8 No Waiver.
No term or condition of this Agreement shall be
deemed to have been waived,
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nor shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with the waiver or
estoppel. No written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each waiver shall operate only as to the
specific term or condition waived and shall not constitute a waiver of the term
or condition for the future or as to any act other than that specifically
waived. The waiver by any party of any other party's breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach, and the failure of any party to exercise any right or remedy shall not
operate or be construed as a waiver or bar to the exercise of such right or
remedy upon the occurrence of any subsequent breach. No delay on the part of a
party in exercising a right, power or privilege hereunder shall operate as a
waiver thereof. No waiver on the part of a party of a right, power or privilege,
or a single or partial exercise of a right, power or privilege, shall preclude
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies of this Agreement are cumulative and are not exclusive
of the rights or remedies that a party may otherwise have at law or in equity.
13.9 Severability.
If any one or more of the provisions of this
Agreement is held invalid, illegal or unenforceable, the remaining provisions of
this Agreement shall be unimpaired, and the invalid, illegal or unenforceable
provision shall be replaced by a mutually acceptable valid, legal and
enforceable provision which comes closest to the intent of the parties.
13.10 Binding Effect.
This Agreement shall be for the benefit of, and shall
be binding upon, the parties and their respective heirs, personal
representatives, executors, legal representatives, successors and permitted
assigns.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized corporate officers on the day
and year first above written.
SYRACUSE HILTON HEAD HOLDINGS, L.P.
By: Xxxxx Holdings, L.P., General Partner
By: Eleni Acquisition, Inc.
By: /s/ Xxxxxxx X. Xxxxx
Title: Executive Vice President
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Title: Executive Vice President
SHHH ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Title:Executive Vice President
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ACKNOWLEDGMENT
The undersigned hereby acknowledge that certain actions are required to
be taken pursuant to Section 5.4 of the foregoing Agreement and hereby agree to
take such actions in order to effectuate the terms and provisions of such
Section 5.4.
HILTON HEAD COMMUNICATIONS, L.P.
By: NCAA Holdings, Inc., General Partner
By: /s/ Xxxxxxx X. Xxxxx
Title: Executive Vice President
SVHH CABLE ACQUISITION, L.P.
By: SVHH Holdings, Inc., General Partner
By: /s/ Xxxxxxx X. Xxxxx
Title: Executive Vice President
