PARTNERSHIP INTERESTS REDEMPTION AGREEMENT
by and among
U.S. CABLE TELEVISION GROUP, L.P.
and
U.S. CABLE PARTNERS
POMPADUR TRUST NO. 1
THE RULE TRUST DATED JUNE 11, 1987
XXXXXX X. XXXXX
I. XXXXXX XXXXXXXX
GENERAL ELECTRIC CAPITAL CORPORATION
_____________________
Dated as of March 18, 1996
_____________________
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Certain Definitions.. . . . . . . . . . . . . . . . . . . . . . 3
1.2 Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II
ASSIGNMENT AND REDEMPTION OF INTERESTS
2.1 Assignment and Redemption; Acquired Interests . . . . . . . . . 6
2.2 Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . 7
2.3 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.4 Deliveries by the Limited Partnership . . . . . . . . . . . . . 8
2.5 Deliveries by Transferors . . . . . . . . . . . . . . . . . . . 8
2.6 Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.7 Release of GE Capital . . . . . . . . . . . . . . . . . . . . . 8
2.8 Agreement With Respect To Section 13.10 Option. . . . . . . . . 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE LIMITED PARTNERSHIP
3.1 Status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.2 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.3 Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . 10
3.4 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . 10
3.5 Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.6 Lawsuits, Claims. . . . . . . . . . . . . . . . . . . . . . . . 11
3.7 Consents and Approvals. . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TRANSFERORS
4.1 Status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.2 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.3 Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . 12
4.4 Governing Documents of Transferor . . . . . . . . . . . . . . . 13
4.5 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . 13
4.6 Consents and Approvals. . . . . . . . . . . . . . . . . . . . . 14
4.7 Title to Interests. . . . . . . . . . . . . . . . . . . . . . . 14
4.8 Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . 15
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ARTICLE V
COVENANTS
5.1 Consents and Approvals. . . . . . . . . . . . . . . . . . . . . 15
5.2 Reasonable Efforts. . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Notices of Certain Events . . . . . . . . . . . . . . . . . . . 15
5.4 Access to Books and Records . . . . . . . . . . . . . . . . . . 17
5.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.6 Income Tax Reporting. . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions to the Obligations of the Parties. . . . . . . . . . 25
6.2 Conditions to the Obligations of the Limited Partnership. . . . 27
6.3 Conditions to the Obligations of Transferor . . . . . . . . . . 29
ARTICLE VII
SURVIVAL . . . . . . . . . . . . . . . . 32
ARTICLE VIII
TERMINATION
8.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE IX
MISCELLANEOUS
9.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.2 Amendment; Waiver . . . . . . . . . . . . . . . . . . . . . . . 36
9.3 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.4 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . 37
9.5 Parties in Interest . . . . . . . . . . . . . . . . . . . . . . 37
9.6 Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . 37
9.7 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.9 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.10 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.11 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . 38
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9.12 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . 38
9.13 Consent to Redemption . . . . . . . . . . . . . . . . . . . . . 39
9.14 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . 39
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Annex I Pompadur Letter Agreement
Annex II USCP Letter Agreement
SCHEDULES
Schedule 3.6 Lawsuits; Claims
Schedule 3.7 Consents and Approvals
Schedule 4.3 Noncontravention
Schedule 4.6 Consents and Approvals
Schedule 4.7 Redemption Agreement
Schedule 5.6 Form of Balance Sheet
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PARTNERSHIP INTERESTS REDEMPTION AGREEMENT
This PARTNERSHIP INTERESTS REDEMPTION AGREEMENT is made as of
March 18, 1996 by and among U.S. Cable Television Group, L.P., a limited
partnership organized under the laws of Delaware (the "LIMITED PARTNERSHIP"),
and U.S. CABLE PARTNERS, a partnership organized under the laws of New York
("USCP"), POMPADUR TRUST NO. 1, a trust organized under the laws of Connecticut
("PT1"), THE RULE TRUST DATED JUNE 11, 1987, a trust organized under the laws of
California ("RULE TRUST"), XXXXXX X. XXXXX ("EHS"), I. XXXXXX XXXXXXXX ("IMP"),
and GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation ("GE CAPITAL")
(each of USCP, PT1, RULE TRUST, EHS, IMP as partners of the Limited Partnership
and GE Capital a "TRANSFEROR" and collectively, the "TRANSFERORS").
W I T N E S S E T H:
WHEREAS, each of PT1, RULE TRUST, EHS, IMP and GE Capital are limited
partners (the "LIMITED PARTNERS") in the Limited Partnership;
WHEREAS, USCP is a general partner in the Limited Partnership;
WHEREAS, the Limited Partnership is engaged in the business of owning
and operating cable television systems (such owned and operated systems
hereinafter referred to collectively as the "SYSTEM"); and
WHEREAS, each Transferor desires to transfer to the Limited
Partnership, and the Limited Partnership desires to redeem, all of such
Transferor's right, title and interest in and to the limited and general
partnership
interests in the Limited Partnership owned by such Transferor (hereinafter
referred to as the "INTERESTS"), all as more fully set forth herein, on the
terms and subject to the conditions set forth herein; and
WHEREAS, Cablevision Systems Corporation, a Delaware corporation
("CSC"), is the manager of the Systems under a Management Agreement (the
"MANAGEMENT AGREEMENT"), dated as of December 31, 1992, by and among the Limited
Partnership, CSC and the Subsidiaries of the Limited Partnership listed on the
signature pages thereof;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings set forth or as referenced below:
"AFFILIATES" mean, with respect to any Person, any Persons directly or
indirectly controlling, controlled by, or under common control with, such other
Person; PROVIDED, however, that no Transferor shall be deemed to be an Affiliate
of the Limited Partnership or its Subsidiaries.
"AGREEMENT" means this Partnership Interests Redemption Agreement, as
the same may be amended or supplemented from time to time in accordance with the
terms hereof.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banks in New York City are authorized or obligated by law or executive
order to close.
"CLOSING" means the closing of the transactions contemplated by this
Agreement.
"CLOSING DATE" has the meaning set forth in Section 2.3 hereof.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CSC" has the meaning set forth in the recitals to this Agreement.
"EHS" has the meaning set forth in the preamble of this Agreement.
"ENCUMBRANCES" means liens, charges, encumbrances, security interests,
options, restrictions or any other claims or third party rights.
"EXCHANGE AGREEMENT" means the Exchange Agreement, dated as of
December 31, 1992, among V Cable, Inc., V Cable GP, Inc., the Limited
Partnership and GE Capital.
"EXCHANGE TERMINATION AGREEMENT" means the agreement dated as of the
date hereof, among the Limited
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Partnership, GE Capital, V Cable GP, Inc. and V Cable, Inc., terminating the
Exchange Agreement.
"GE CAPITAL" has the meaning set forth in the preamble to this
Agreement.
"GOVERNMENTAL AUTHORIZATIONS" means all franchises, licenses, permits,
certificates and other authorizations and approvals required under applicable
law, ordinance or regulation of any governmental authority, Federal, state or
local.
"H-S-R ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"IMP" has the meaning set forth in the preamble to this Agreement.
"INTERESTS" shall have the meaning set forth in the recitals of this
Agreement.
"LIMITED PARTNERS" has the meaning set forth in the recitals of this
Agreement.
"LIMITED PARTNERSHIP AGREEMENT" means the Amended and Restated
Agreement of Limited Partnership of the Limited Partnership, dated as of
December 31, 1992 as amended through the date hereof.
"MANAGEMENT AGREEMENT" has the meaning set forth in the recitals of
this Agreement as amended through the date hereof.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
assets, financial condition or results of operations of the Limited Partnership
or the System.
"MPA AGREEMENT" means the Management Performance Adjustment and
Interborrower Agreement, dated as of December 31, 1992, among V Cable, Inc., V
Cable GP, Inc., VC Holding, Inc., the V Cable, Inc. and VC Holding, Inc.
subsidiaries listed therein, the Limited Partnership and GE Capital.
"MPA TERMINATION AGREEMENT" means the agreement dated as of the date
hereof, terminating the MPA Agreement.
"PT1" has the meaning set forth in the preamble to this Agreement.
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"PERSON" means an individual, a corporation, a partnership, an
association, a trust or other entity or organization.
"POMPADUR LETTER AGREEMENT" means the letter agreement, dated as of
December 31, 1992, by and among the Limited Partnership, IMP, USCP, PT1, Rule
Trust, EHS and GE Capital annexed hereto as Annex I.
"REDEMPTION PRICE" has the meaning set forth in Section 2.2 hereof.
"REQUIRED APPROVALS" has the meaning set forth in Section 4.6 hereof.
"RULE TRUST" has the meaning set forth in the preamble to this
Agreement.
"STOCK PURCHASE AGREEMENT" means the Preferred Stock Purchase
Agreement dated as of February 2, 1996, between CSC and GE Capital as from time
to time amended, supplemented or otherwise modified.
"SYSTEM" has the meaning set forth in the recitals of this Agreement.
"TAXES" means all Federal, state, local or foreign income, gross
receipts, windfall profits, severance, property, production, sales, use,
license, excise, franchise, employment, withholding or similar taxes, real and
personal property taxes, transfer taxes, gains taxes, mortgage recording taxes,
transportation taxes or gross operating taxes, together with any interest,
additions or penalties with respect thereto and any interest in respect of such
additions or penalties.
"TRANSFEROR" has the meaning set forth in the preamble this Agreement.
"USC LOAN DOCUMENTS" has the meaning set forth in each of the Senior
and Junior Loan Agreements, each dated as of December 31, 1992, between the
Limited Partnership, GE Capital and the lenders named in each Agreement.
"USC JUNIOR LOAN AGREEMENT" means the Junior Loan Agreement, dated as
of December 31, 1992 between the Limited Partnership, GE Capital and the lenders
named therein.
"USC SENIOR LOAN AGREEMENT" means the Amended and Restated Senior Loan
Agreement, dated as of the date hereof
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between the Limited Partnership, GE Capital and the lenders named therein.
"USCP" has the meaning set forth in the recitals of this Agreement.
"USCP LETTER AGREEMENT" means the letter agreement, dated as of
December 31, 1992 between GE Capital and USCP annexed hereto as Annex II.
"V CABLE LOAN AGREEMENT" means the Loan Agreement dated as of December
31, 1992, among V Cable, Inc. ("V CABLE"), GE Capital and the lenders named
therein, as amended through the date hereof.
"VC HOLDING LOAN AGREEMENT" means the Amended and Restated Loan
Agreement dated as of the date hereof, among VC Holding, Inc. ("VC HOLDING"), GE
Capital and the lenders named therein.
1.2 CERTAIN TERMS. (i) The words "HEREOF", "HEREIN" and "HEREUNDER"
and words of similar import, when used in this Agreement, refer to this
Agreement as a whole and not to any particular provision of this Agreement
unless otherwise specifically stated to the contrary.
(ii) The terms defined in the singular have a comparable meaning when
used in the plural, and vice versa.
ARTICLE II
ASSIGNMENT AND REDEMPTION OF INTERESTS
2.1 ASSIGNMENT AND REDEMPTION; ACQUIRED INTERESTS. On the terms and
subject to the conditions set forth herein, and in reliance on the
representations, warranties, covenants and agreements of such Transferor
contained herein, at the Closing, upon payment of the Redemption Price (a) each
Transferor (severally and not jointly) shall and shall be deemed to have hereby
conveyed, transferred, assigned and delivered to the Limited Partnership, and
the Limited Partnership shall be deemed to have hereby redeemed all of such
Transferor's right, title and interest in and to the Interests, free of all
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Encumbrances as of the Closing Date, and (b) each Transferor (severally and not
jointly) (i) acknowledges that by its execution of this Agreement, and the
transfer of all of his right, title and interest to the Interests as of the
Closing, such Transferor, except as set forth in Section 5.4 and 5.6 hereof or
otherwise with respect to its rights as a former partner, will no longer have
rights in relation to the Partnership or under the Limited Partnership Agreement
and (ii) agrees to make the deliveries required of it under Section 2.5 hereof.
The Limited Partnership shall not assume any liabilities for Taxes, if any,
which may be imposed on any Transferor in connection with the transactions
contemplated by this Agreement, including without limitation any transfer taxes,
recapture of depreciation deductions or investment tax credits or any taxes
imposed by any taxing authority in lieu of income taxes.
2.2 REDEMPTION PRICE. On the terms and subject to the conditions set
forth herein, the Limited Partnership agrees to pay an amount in cash to each
Transferor at the Closing as follows:
USCP $ 160,000
PT1 $ 400,000
RULE TRUST $1,890,000
EHS $ 60,000
IMP $1,490,000
GE Capital $ 10,000
The sum of such amounts being hereinafter referred to as the "REDEMPTION PRICE".
2.3 CLOSING. The Closing shall take place at the offices of Weil,
Gotshal & Xxxxxx at 10:00 a.m., New York time, on the fifth Business Day
following the date on which all the conditions set forth in Article VI hereof,
other than those conditions which by their terms are to be satisfied as of
Closing, have been satisfied or waived, or at
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such other time and place as the parties hereto may mutually agree. The date on
which the Closing occurs is called the "CLOSING DATE".
2.4 DELIVERIES BY THE LIMITED PARTNERSHIP. At the Closing, the
Limited Partnership shall deliver the following to each Transferor: (i) such
Transferor's portion of the Redemption Price, as set forth in Section 2.2, in
immediately available funds by wire transfer and (ii) the opinions, certificates
and other documents to be delivered pursuant to Section 6.3 hereof.
2.5 DELIVERIES BY TRANSFERORS. At the Closing, each Transferor,
severally and not jointly, shall deliver to the Limited Partnership the
following:
(a) such other documents or instruments, in form and substance
reasonably acceptable to the Limited Partnership, as may be necessary to
consummate the transactions contemplated hereby and to comply with the terms
hereof; and
(b) the opinions, certificates, and other documents to be delivered
by such Transferor pursuant to Section 6.2 hereof.
2.6 RELEASE. The Partnership agrees that from and after the Closing
Date each Transferor shall be released from all of its liabilities under the
Limited Partnership Agreement.
2.7 RELEASE OF GE CAPITAL. USCP, with respect to the USCP Letter
Agreement, and each of IMP, USCP, PT1, Rule Trust and EHS, with respect to the
Pompadur Letter Agreement, hereby agree that, from and after the Closing Date,
GE Capital shall be released from any and all obligations to such party under
the USCP Letter Agreement and the Pompadur Letter Agreement to the extent, and
only to the extent, that GE Capital would have been released from
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any and all such obligations had GE Capital purchased such Transferor's interest
in the Limited Partnership pursuant to Section 13.10 of the Limited Partnership
Agreement.
2.8 AGREEMENT WITH RESPECT TO SECTION 13.10 OPTION. GE Capital
hereby agrees that (i) from and after the date hereof, so long as this Agreement
has not been terminated in accordance with Section 8 hereof, GE Capital will
not exercise, assign, transfer, or otherwise dispose of (including the naming of
any person as its designee under) the option or any interest in (including any
lien on or security interest in) the option granted to it pursuant to Section
13.10 of the Limited Partnership Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE LIMITED PARTNERSHIP
The Limited Partnership represents and warrants to each Transferor as
follows:
3.1 STATUS. The Limited Partnership is a limited partnership duly
organized and validly existing under the laws of the State of Delaware, and is
duly qualified to do business in each jurisdiction in which such qualification
is required by applicable law.
3.2 AUTHORIZATION. The Limited Partnership has full power and
authority to execute and deliver this Agreement, and to perform its obligations
hereunder. The execution, delivery and performance by the Limited Partnership
of this Agreement have been duly and validly authorized by all necessary action,
and no additional authorization or consent is required in connection with the
execution, delivery and performance by the Limited Partnership of this
Agreement.
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3.3 NONCONTRAVENTION. The execution, delivery and performance by the
Limited Partnership of this Agreement, and the consummation of the transactions
contemplated hereby, does not and will not (i) violate any provision of the
Limited Partnership Agreement, (ii) except as set forth on Schedule 3.7 hereto,
conflict with, or result in a breach of, or constitute a default under, or
result in the termination, cancellation or acceleration (whether after the
filing of notice or lapse of time or both) of any right or obligation of the
Limited Partnership under, or to a loss of any benefit to which the Limited
Partnership is entitled under, any agreement, franchise, license, permit,
instrument or undertaking to which the Limited Partnership is a party or by
which it is bound or to which any of its assets are subject, including any
Governmental Authorization, or result in the creation of any Encumbrance upon
any of said assets, other than in each case under this clause (ii) any
violation, conflict, breach, default, termination, cancellation or acceleration,
loss or Encumbrance, that could not reasonably be expected to impair or delay
the Limited Partnership's ability to perform its obligations hereunder or
(iii) violate or result in a breach of or constitute a default under any
judgment, order, injunction, decree, law, rule, regulation or other restriction
of any court or governmental authority to which the Limited Partnership is
subject, including any Governmental Authorization, other than in each case under
this clause (iii), any violation, conflict, breach, default, termination,
cancellation, acceleration, loss or Encumbrance that could not reasonably be
expected to impair or delay the Limited Partnership's ability to perform its
obligations hereunder.
3.4 BINDING EFFECT. This Agreement constitutes a valid and legally
binding obligation of the Limited Partnership enforceable in accordance with its
terms, subject to
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the availability of the discretionary remedy of specific performance and to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights.
3.5 FINDER'S FEES. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission from the Limited
Partnership in connection with the transactions contemplated by this Agreement.
3.6 LAWSUITS, CLAIMS. Except as set forth in Schedule 3.6 hereto,
there is no civil, criminal or administrative action, suit, demand, claim,
hearing, proceeding or investigation pending or, to the knowledge of the Limited
Partnership, threatened against the Limited Partnership which could not
reasonably be expected to adversely affect the ability of the Limited
Partnership to consummate the Closing. The Limited Partnership is not subject
to any order, writ, judgment, award, injunction or decree of any court or
governmental or regulatory authority of competent jurisdiction or any arbitrator
or arbitrators which could not reasonably be expected to adversely affect the
ability of the Limited Partnership to consummate the Closing.
3.7 CONSENTS AND APPROVALS. Except for any filings under the H-S-R
Act and as specifically set forth in Schedule 3.7 hereto, no consent, approval,
permit, license, waiver or other authorization or approval is required to be
obtained by the Limited Partnership from, and no notice or filing is required to
be given by the Limited Partnership to or made by the Limited Partnership with,
any Federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Limited
Partnership of this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TRANSFERORS
Each Transferor, with respect only to such Transferor, represents and
warrants to the Limited Partnership severally and not jointly as follows:
4.1 STATUS. With respect to a Transferor that is not a natural
Person, such Transferor is duly organized and validly existing under the laws of
the state of its organization, and is duly qualified to do business in each
jurisdiction in which such qualification is required by applicable law except
where the failure to be so qualified would not adversely affect the ability of
such Transferor to complete the transactions contemplated hereby.
4.2 AUTHORIZATION. (i) With respect to any Transferor that is not a
natural person, such Transferor has full power and authority to execute and
deliver this Agreement, and to perform its obligations hereunder and no
additional authorization or consent is required in connection with the
execution, delivery and performance by such Transferor of this Agreement. (ii)
With respect to any Transferor that is a natural person, such Transferor has the
legal capacity and authority to enter into this Agreement and to perform its
obligations hereunder and no additional authorization or consent is required in
connection with the execution, delivery and performance by such Transferor of
this Agreement.
4.3 NONCONTRAVENTION. Except as set forth in Schedule 4.3 hereto,
the execution, delivery and performance by such Transferor of this Agreement,
and the consummation of the transactions contemplated hereby, does not and will
not (i) violate, in the case of any Transferor that is not a natural Person, any
organizational documents of such
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Transferor, (ii) conflict with, or result in a breach of, or constitute a
default under, or result in the termination, cancellation or acceleration
(whether after the filing of notice or lapse of time or both) of any right or
obligation of such Transferor under, or to a loss of any benefit to which such
Transferor is entitled under, any agreement, franchise, license, permit,
instrument or undertaking to which such Transferor is a party or by which it is
bound or to which any of its assets are subject, including any Governmental
Authorization, or result in the creation of any Encumbrance upon any of said
assets, other than in each case under this clause (ii) any violation, conflict,
breach, default, termination, cancellation or acceleration, loss or Encumbrance,
that will not impair or delay such Transferor's ability to perform its
obligations hereunder or (iii) violate or result in a breach of or constitute a
default under any judgment, order, injunction, decree, law, rule, regulation or
other restriction of any court or governmental authority to which such
Transferor is subject, including any Governmental Authorization other than in
each case under this clause (iii), any violation, conflict, breach, default,
termination, cancellation, acceleration, loss or Encumbrance that would not
impair or delay any such Transferor's ability to perform its obligations
hereunder.
4.4 GOVERNING DOCUMENTS OF TRANSFEROR. Such Transferor (other than
GE Capital) has heretofore delivered to the Limited Partnership true and
complete copies of its organizational documents, if any, each as in full force
and effect on the date hereof.
4.5 BINDING EFFECT. This Agreement constitutes a valid and legally
binding obligation of such Transferor enforceable against such Transferor in
accordance with its terms, subject to the availability of the discretionary
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remedy of specific performance and to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights.
4.6 CONSENTS AND APPROVALS. Except (i) any filings under the H-S-R
Act, (ii) any consent, approval, permit, license, waiver or other authorization
required as a result of the particular nature of the business or assets of the
Limited Partnership and (iii) as specifically set forth in Schedule 4.6 hereto,
no consent, approval, permit, license, waiver or other authorization or approval
is required to be obtained by such Transferor from, and no notice or filing is
required to be given by such Transferor to or made by such Transferor with, any
Federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by such Transferor of
this Agreement, and the consummation by such Transferor of the transactions
contemplated hereby (together with the consents, approvals, permits, licenses,
waivers, authorizations, notices and filings referred to in Section 3.7 hereof,
the "REQUIRED APPROVALS").
4.7 TITLE TO INTERESTS. Such Transferor has good and valid title to
the Interests held by such Transferor as set forth in Schedule 4.7 hereto and is
conveying the Interests held by such Transferor free and clear of any
Encumbrances (other than liens securing indebtedness under the USC Senior Loan
Agreement which GE Capital agrees shall be released upon the occurrence of the
condition set forth in Section 6.1(e)) and to the best of such Transferor's
knowledge, except as previously disclosed (but subsequent to the date of the
Stock Purchase Agreement) to V Cable GP, Inc. and V Cable, Inc. in writing, no
other interests in the Partnership other than as set forth on Schedule 4.7 are
in existence.
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4.8 FINDER'S FEES. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission from such
Transferor in connection with the transactions contemplated by this Agreement.
ARTICLE V
COVENANTS
5.1 CONSENTS AND APPROVALS. The parties hereto agree to cooperate
with each other to secure as promptly as practicable all Required Approvals.
All costs of obtaining the Required Approvals shall be borne by the Limited
Partnership. The Limited Partnership shall file within sixty (60) days of the
date hereof the Notification Form under the H-S-R Act with respect to the
transactions contemplated hereby. Each Transferor agrees to cooperate with the
Limited Partnership in the preparation and filing of such Notification Form.
5.2 REASONABLE EFFORTS. Each party hereto shall take all reasonable
steps to fulfill the conditions precedent to such party's obligations and to
each other party's obligations hereunder to the extent applicable to such party.
5.3 NOTICES OF CERTAIN EVENTS. (i) During the period beginning on
the date hereof and ending on the Closing Date, each Transferor shall promptly
notify the Limited Partnership, V Cable and V Cable GP, Inc. and each other
Transferor of:
(a) any notice or other communication received by such
Transferor from any Person alleging that the consent of such person is
or may be required in connection with the transactions contemplated by
this Agreement (other than notice in respect of a consent disclosed in
any Schedule hereto);
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(b) any notice or other communication received by such
Transferor from any governmental authority in connection with the
transactions contemplated by this Agreement;
(c) any actions, suits, demands, claims, hearings,
investigations or proceedings pending or, to the knowledge of such
Transferor, threatened against such Transferor insofar as they relate
to the transactions contemplated by this Agreement; and
(d) any fact or circumstance known to such Transferor which
would prevent such Transferor from meeting the conditions set forth in
Section 6.1 hereof;
PROVIDED, HOWEVER, that no such notification shall in any way limit the
representations and warranties set forth in this Agreement.
(ii) During the period beginning on the date hereof and ending on the
Closing Date, the Limited Partnership, V Cable and V Cable GP, Inc. shall
promptly notify each Transferor of:
(a) any notice or other communication received by the
Limited Partnership from any Person alleging that the consent of such
person is or may be required in connection with the transactions
contemplated by this Agreement (other than notice in respect of a
consent disclosed in any Schedule hereto);
(b) any notice or other communication received by the
Limited Partnership from any governmental authority in connection with
the transactions contemplated by this Agreement;
(c) any actions, suits, demands, claims, hearings,
investigations or proceedings pending or, to the knowledge of the
Limited Partnership, threatened against the Limited Partnership
insofar as they relate to the transactions contemplated by this
Agreement; and
(d) any fact or circumstance known to the Limited
Partnership which would prevent the
-16-
Limited Partnership from meeting the conditions set forth in Section 6.2
hereof;
PROVIDED, HOWEVER, that no such notification shall in any way limit the
representations and warranties set forth in this Agreement.
5.4 ACCESS TO BOOKS AND RECORDS. The Limited Partnership agrees to
provide each Transferor, his or its accountants, counsel and other
representatives, during normal business hours and upon reasonable notice, for a
period of ten years after the Closing Date, reasonable access to, and to copy at
such Transferor's expense, the books, records, income tax returns, contracts and
other underlying data and documentation relating to the Limited Partnership and
to make available to such Transferor personnel of the Limited Partnership in
such Transferor's review thereof for the purpose of enabling such Transferor
(i) to determine and calculate any tax liabilities in connection with the
Interests or (ii) to defend or prosecute any actual or threatened litigation
arising out of or relating to such Transferor's Interest. A Transferor may, by
written notice, extend such ten-year period for another ten years if reasonably
necessary to protect the Transferor's rights under clauses (i) and (ii) in the
preceding sentence. The Limited Partnership agrees that, for such ten-year
period (or as extended), it will preserve and keep intact all such books and
records. Except as required by law, with respect to any such access, each
Transferor agrees to treat all information regarding the Limited Partnership and
the Interests as confidential, preserve the confidentiality thereof and not
duplicate or use such information, except in connection with determining and
calculating any tax liabilities or in defending or prosecuting any action
arising out of or relating to such Transferor's Interest and such Transferor
will, except as required by law, use all
-17-
reasonable efforts to maintain such confidentiality, including, without
limitation, instructing its employees and agents who have had access to such
information, unless such information is now, or is hereafter disclosed, through
no act or omission of such party, in any manner making it available to the
general public. The Limited Partnership and each Transferor agrees that GE
Capital shall continue to have the benefits of Sections 12.3 and 12.4.3 of the
Limited Partnership Agreement for so long and only for so long as is necessary
to resolve with the Internal Revenue Service or any state or local tax authority
all matters regarding the taxation of the Limited Partnership during those tax
years that any Transferor was a partner of the Limited Partnership. Nothing in
this Section 5.4 shall limit GE Capital's rights or reduce CSC's obligations
under Section 5.6(h).
5.5 TAXES. Each Transferor agrees that Taxes imposed upon a
Transferor arising from or incident to the transfer of such Transferor's
Interests shall be paid by such Transferor.
5.6 INCOME TAX REPORTING. (i) The parties agree that they will each
report the transactions provided for in this Agreement for income tax purposes
in accordance with the following agreements:
(a) REDEMPTION TRANSACTION. The parties hereto agree that the
redemption of the Interest of each Transferor will be treated, for income
tax purposes, as a complete liquidation of such Transferor's interest in
the Limited Partnership. In connection therewith, GE Capital agrees that
it will report for federal income tax purposes gain or income of at least
$134,000,000, or $132,000,000 if the Limited Partnership's 1992 Federal
income tax return is not amended. Moreover, the parties recognize that
Section
-18-
751(b) of the Code may apply to the transaction provided for in this
Agreement, and, accordingly, agree that (i) the value of the Limited
Partnership's assets (other than the Government Authorizations and the
Limited Partnership's goodwill) is equal to such assets' adjusted basis for
federal income tax purposes; and (ii) any excess of the amount received by
a Transferor over its adjusted basis, for federal income tax purposes, in
its Interest is attributable to the excess of the value of the Limited
Partnership's Government Authorizations and goodwill over their respective
adjusted basis.
(b) CLOSING OF BOOKS. The parties agree that for purposes of
reporting each Transferor's share of the Limited Partnership's income or
loss (and items thereof) for the taxable year in which the Closing occurs,
the Limited Partnership shall close its books as of the day before the
Closing Date. The Transferors will be allocated their respective share of
the Limited Partnership's income or loss for the portion of the taxable
year ending on the day before the Closing Date in accordance with such
closing of the books; PROVIDED, HOWEVER, that for this purpose such income
or loss shall include (x) any item of income or loss recognized or realized
by the Limited Partnership in connection with the transactions provided for
in this Agreement (I.E., the redemption of the Interests of the
Transferors) other than income or loss recognized by the Limited
Partnership pursuant to Section 751 of the Code (provided, however, that
this clause (x) shall not apply to any Transferor other than GE Capital)
and (y) any income or gain recognized by the Limited Partnership in
connection with the contribution or termination of the Junior Subordinated
Loan Agreement,
-19-
dated as of December 31, 1992, between the Limited Partnership and GE
Capital shall be specially allocated to GE Capital. Except as provided in
the preceding sentence, the Limited Partnership (and the partners thereof
other than the Transferors) will be allocated all items of income or loss
of the Limited Partnership for all periods beginning on the Closing Date.
The parties understand that the transactions provided by this Agreement
(I.E., the redemption of the Interests of the Transferors) will not result
in the recognition of any income or loss by the Limited Partnership (other
than income or loss recognized by the Limited Partnership pursuant to
Section 751 of the Code) and agree that the income tax return for the
Limited Partnership for the period including the closing of the
transactions provided for in this Agreement will be filed in a manner
consistent with the understanding.
(ii) GE Capital represents that the gain or income to be recognized
by GE Capital for federal income tax purposes as a result of the redemption of
its interest in the Limited Partnership pursuant to this Agreement (the
"GE Capital Gain") will not be less than $134,000,000, or $132,000,000 if the
Limited Partnership's 1992 Federal income tax return is not amended.
(a) In the event of a breach of the representation contained in
Section 5.6(ii) or the second sentence of Section 5.6(i)(a), GE Capital
shall be liable for and indemnify CSC for the amount of any "Tax Damages"
(as defined below), incurred by CSC resulting therefrom. CSC agrees that
(i) the sole and exclusive remedy for any breach of the representation
contained in Section 5.6(ii) or the second sentence of Section 5.6(i)(a)
shall be to seek Tax Damages and (ii) the liability of GE Capital for any
such breach shall not
-20-
exceed the amount of Tax Damages determined pursuant to this Section
5.6(ii).
(b) A breach shall be considered to occur only if (i) GE Capital
fails to report, for federal income tax purposes, a GE Capital Gain of at
least $134,000,000, or $132,000,000 if the Limited Partnership's 1992
Federal income tax return is not amended, or (ii) there is a
"determination" as such term is defined in Section 1313(a) of the Code with
respect to GE Capital, or the Limited Partnership or the Limited
Partnership or GE Capital executes an Internal Revenue Service Form 870AD,
which, in either case, reduces the amount of the GE Capital Gain.
(c) No breach shall be considered to have occurred to the
extent the decrease in the amount of GE Capital Gain is attributable to any
adjustment made to the federal income tax returns of the Limited
Partnership which is attributable to any item of income, gain, loss or
deduction arising from the ordinary operation of the Limited Partnership's
business for 1992 and to any other item of income, gain, loss or deduction
attributable to any year ending after 1992.
(d) The amount of any breach shall be reduced by the following
items; and no breach will be considered to have occurred if the amount of
these items exceeds the amount of the decrease in the GE Capital Gain:
(v) the amount of income or gain, up to $4,000,000,
recognized for Federal income tax purposes by the Transferors (other
than GE Capital) as a result of the redemption of Interests provided
for by this Agreement (and increased above $4,000,000, but in no event
increased more than $2,000,000, to the extent the Limited Partnership
-21-
actually receives an increase in the basis of its assets of more than
$4,000,000 as a consequence of the redemption of the Interests of such
Transferors);
(w) The aggregate amount of all net operating loss carry
forwards of the consolidated group of corporations of which ECC
Holdings, Inc. ("ECC") is the common parent, generated during taxable
years ending after 1991;
(x) The amount of all net operating loss carryforwards of
ECC actually used, to the extent such amount exceeds the amount
described in (w) above.
(y) The aggregate amount of any tax basis in assets either
used to reduce gain or increase loss realized upon the sale of ECC
assets to a third party or which increases the depreciation,
amortization or other deductions available to ECC or CSC; provided
that the amount thereof shall not be taken into account if already
taken into account pursuant to clauses (w), (x) or (z) of this
subsection (d).
(z) The amount of any adjustment to items of income, gain,
deduction or loss reflected on the Limited Partnership's federal
income tax returns for all taxable years that results in an increase
in the GE Capital Gain.
(e) "Tax Damages" shall mean the excess, if any, of the
aggregate amount of Adjusted Taxes over the aggregate amount of Projected
Taxes, as such terms are defined below. Adjusted Taxes and Projected Taxes
shall be calculated for each taxable year from and after the year in which
a reduction in the GE Capital Gain occurs and results in a breach under
this
-22-
Section 5.6 until the year in which no deductions or tax basis step up
resulting from the transaction contemplated in this Agreement may be
claimed by the CSC Group (as defined below) or are included in the
carryover effects of a "net operating loss" by the CSC Group. GE Capital
will pay to CSC the amount of Tax Damages determined hereunder for the
first taxable in which there are Tax Damages. For each subsequent taxable
year, GE Capital and CSC shall make payments to one another to the extent
required such that CSC shall have received, in the aggregate, the net
amount of Tax Damages then determined to be owing to CSC through such
subsequent taxable year.
(f) "Projected Taxes" shall mean the federal income tax
liability of the consolidated group of corporations of which CSC is the
common Parent (the "CSC Group"), as shown on the CSC Group's tax returns,
as amended, except that such tax liability shall be recomputed using the
following assumptions:
(y) All federal income tax returns of the Limited
Partnership are true and correct as filed or, where applicable, as
amended as of the date hereof.
(z) CSC had purchased the assets of the Limited Partnership
and ECC on the Closing Date for an amount equal to the amount of
outstanding debt owed to GE Capital on such date. The allocation of
such purchase price shall be as set forth on the tax basis balance
sheet as agreed upon and attached hereto in the form of Schedule 5.6.
No account shall be taken of any loss which might be available in
connection with the liquidation of ECC. For purposes of this
determination, the outstanding amount of GE Capital debt will be
-23-
considered to be the amount of the debt due under the USC Senior Loan
Agreement (excluding, however, the Zero Coupon Loan and that portion
of the Series B Term Loan required to be assumed by V Cable pursuant
to the terms of the MPA Agreement). All capitalized terms in the
preceding sentence not otherwise defined herein shall have the meaning
assigned to them in the USC Senior Loan Agreement. GE Capital and CSC
agree that the tax basis balance sheet will reflect as an asset
"goodwill" which is neither amortizable nor depreciable and that in
the computation of Adjusted Taxes such asset shall be assumed to be
neither amortizable nor depreciable.
(g) "Adjusted Taxes" shall mean, in the event of a breach of the
representation contained in Section 5.6(ii) or the second sentence of
5.6(i), the federal income tax liability of the CSC Group as shown on its
federal income tax returns, as amended, taking into account the amount of
the reduction in the GE Capital Gain that gives rise to the breach of such
representation, provided that Adjusted Taxes shall not exceed the actual
tax liability of the CSC Group for each taxable year after a reduction in
the GE Capital Gain.
(h) In the event of any claim for damages, CSC shall provide to
GE Capital reasonable access to CSC's tax returns and any workpapers
establishing the existence of Tax Damages. In the event of any audit or
other administrative or judicial proceeding that could result in the
adjustment of items of income, gain, deduction or loss that causes a
reduction of the GE Capital Gain pursuant to which GE Capital would be
obligated to indemnify CSC hereunder, CSC shall provide
-24-
GE Capital with notice of such proceeding and GE Capital shall participate
in the negotiation, settlement and pursuit of litigation, and GE Capital
shall control all decisions regarding the settlement, resolution or
concession of such proceedings with the reasonable consent of CSC. GE
Capital shall be entitled to reimbursement, with interest, of any funds
paid by GE Capital as Tax Damages, in the event that Tax Damages is later
reduced as a result of any administrative or judicial proceeding.
(i) GE Capital will promptly inform the Limited Partnership and
CSC of the amount of the GE Capital Gain actually reported on its Federal
income tax return for the period in which the redemption contemplated by
this Agreement occurs.
(j) The parties hereto shall cooperate with each other in
connection with the application of this Section 5.6.
(k) On or prior to the Closing Date, each Transferor other than
GE Capital shall advise the Partnership and GE Capital in writing of the
amount of estimated net gain that will be reported by such Transferor
resulting from the redemption pursuant hereto. In making such
determination, such Transferor shall assume it was allocated no gain or
loss for the 1996 year.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 CONDITIONS TO THE OBLIGATIONS OF THE PARTIES. The obligations of
the parties hereto to effect the Closing
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are subject to the satisfaction, except as otherwise indicated, prior to the
Closing of the following conditions:
(a) H-S-R. Any required filings shall have been made and any
required waiting period under the H-S-R Act applicable to the transactions
contemplated hereby shall have expired or been earlier terminated.
(b) NO INJUNCTIONS. No court or governmental authority of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, or non-appealable judgment, decree, injunction or
other order which is in effect on the Closing Date and prohibits the
consummation of the Closing.
(c) CONSENTS AND APPROVALS. The Limited Partnership shall have
certified to such Transferor that all Required Approvals shall have been
obtained and are in full force and effect, free of material burdensome
conditions or restrictions.
(d) SIMULTANEOUS CLOSING. The closing of each redemption hereunder
is expressly conditioned on the simultaneous closing of each other redemption
hereunder and no such transaction shall close unless all such transactions
close, unless otherwise agreed to in writing by the Limited Partnership and each
Transferor whose transaction is to close; provided, however, that so long as
that portion of the Redemption Price to be paid to any Transferor is not
affected, such agreement may be signed by GE Capital and IMP (on behalf of each
Transferor other than GE Capital).
(e) SENIOR LOAN REPAYMENT. All principal, interest and other
obligations under the USC Senior Loan Agreement shall be repaid prior to or
simultaneously with the Closing.
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The foregoing conditions set forth in this Section 6.1 may be waived
by IMP on behalf of itself and each other Transferor other than GE Capital, but
may not be waived on behalf of GE Capital without GE Capital's consent.
6.2 CONDITIONS TO THE OBLIGATIONS OF THE LIMITED PARTNERSHIP. The
obligation of the Limited Partnership to effect the Closing is subject to the
satisfaction (or waiver) prior to the Closing, of the following conditions,
except for those conditions which must by their terms be true as of the Closing,
in which case the Limited Partnership's obligation is subject to such conditions
being true as of the Closing:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Transferor contained herein shall have been true and correct
in all material respects when made and shall be true and correct in all material
respects as of the Closing, as if made as of the Closing, and the Limited
Partnership shall have received a certificate from each Transferor to such
effect dated the Closing Date and duly executed by such Transferor, together
with such backup documentation as the Limited Partnership may reasonably
request.
(b) COVENANTS. The covenants and agreements of each Transferor to be
performed on or prior to the Closing shall have been duly performed in all
material respects, and the Limited Partnership shall have received a certificate
to such effect dated the Closing Date from each Transferor and duly executed by
such Transferor, together with such backup documentation as the Limited
Partnership may reasonably request.
(c) LEGAL OPINIONS. On or prior to the Closing, the Limited
Partnership shall have received from each
-27-
Transferor an opinion of counsel reasonably satisfactory to the Limited
Partnership, dated as of the date hereof, substantially to the effect that
(provided that such counsel need express no opinion with respect to
Section 5.6(b)):
(i) With respect to a Transferor that is not a natural
Person, such Transferor is duly organized and validly existing under
the laws of the state of its organization;
(ii) With respect to any Transferor that is not a natural
Person, such Transferor has full corporation, partnership or trust
power and authority to execute and deliver this Agreement, and to
perform its obligations hereunder;
(iii) Except as set forth in Schedule 4.3 hereto, the
execution, delivery and performance by such Transferor of this
Agreement, and the consummation of the transactions contemplated
hereby, do not and will not (i) violate, in the case of any Transferor
that is not a natural Person, any organizational documents of such
Transferor, (ii) conflict with, or result in a breach of, or
constitute a default under, any agreement to which such Transferor is
a party or by which it is bound or to which any of its assets are
subject, in each case known to such counsel other than in each case
under this clause (ii) any violation, conflict, breach, or default
that will not impair or delay such Transferor's ability to perform its
obligations hereunder or (iii) violate any New York, [law of
jurisdiction of organization] or federal law, rule or regulation or
any judgment, order, injunction, decree, or other restriction of any
court or governmental authority to which such Transferor is subject
known to such counsel, other than in each case under this clause
(iii), any violation, conflict, breach, default, termination,
cancellation, acceleration, or loss that would not impair or delay,
any such Transferor's ability to perform its obligations hereunder;
provided, that, such counsel need express no opinion with respect to
any (i) consents or approvals and authorizations that may be required
pursuant to any media license or any laws, rules or regulations of the
United States or any state thereof or locality therein relating
particularly to the construction, ownership, operation, promotion,
-28-
extension or other exploitation of any type of communication, broadcasting
or transmission system, including without limitation, any cable television
system, (ii) any violation that may result from the nature of the business
or assets of the Limited Partnership, (iii) fraudulent transfer laws, and
(iv) bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights; and
(iv) Such Transferor has duly executed and delivered this
Agreement and this Agreement constitutes a valid and legally binding
obligation of such Transferor enforceable against such Transferor in
accordance with its terms, subject to the availability of the
discretionary remedy of specific performance and to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights.
(d) LITIGATION. No litigation, investigation or other proceeding
shall have been commenced or threatened which questions the validity or legality
of any of the transactions contemplated hereby.
(e) NO MATERIAL ADVERSE CHANGE. There shall not have occurred prior
to the Closing any change, or any development involving a prospective change, in
or affecting the assets, financial condition or results of operation of the
System or the Limited Partnership that has had or could reasonably be expected
to have a Material Adverse Effect.
(f) UCC REPORT. On the Closing Date, there shall have been delivered
by each Transferor, a report, dated as of the most recent practicable date,
showing an absence of Uniform Commercial Code filings with respect to such
Transferor's Interest.
6.3 CONDITIONS TO THE OBLIGATIONS OF TRANSFEROR. The obligation of
each Transferor, only with respect to such Transferor, to effect the Closing is
subject to the satisfaction (or waiver by such Transferor or by IMP on behalf of
-29-
any such Transferor other than GE Capital) prior to the Closing of the following
conditions, except for those conditions which must by their terms be true as of
the Closing, in which case such Transferor's obligation is subject to such
conditions being true as of the Closing:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Limited Partnership and, with respect to the obligation of GE
Capital to effect the Closing, each other Transferor contained herein shall have
been true and correct in all material respects when made and shall be true and
correct in all material respects as of the Closing, as if made as of the
Closing, and such Transferor shall have received a certificate to such effect
dated the Closing Date and executed by an officer of the Limited Partnership.
(b) COVENANTS. The covenants and agreements of the Limited
Partnership and, with respect to the obligation of GE Capital to effect the
Closing, each other Transferor to be performed on or prior to the Closing shall
have been duly performed in all material respects, and such Transferor shall
have received a certificate to such effect dated the Closing Date and executed
by an officer of the Limited Partnership.
(c) LEGAL OPINIONS. (i) Such Transferor shall have received the
opinion of Xxxxxxxx & Xxxxxxxx or other counsel reasonably satisfactory to a
majority of the Transferors, dated as of the Closing Date, addressed to such
Transferor, substantially to the effect that (provided that such counsel need
express no opinion with respect to Section 5.6(b)):
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(A) The Limited Partnership has been duly organized and is
an existing limited partnership in good standing under the laws of the
State of Delaware;
(B) The Limited Partnership has all necessary partnership
power and authority to execute and deliver this Agreement, and to
perform its obligations hereunder;
(C) This Agreement has been duly authorized, executed and
delivered by the Limited Partnership and constitutes a valid and
legally binding obligation of the Limited Partnership enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles affecting creditors' rights; and
(D) The execution, delivery and performance by the Limited
Partnership of this Agreement and the consummation of the transactions
contemplated hereby will not violate any New York, Delaware corporate
or Federal law or regulation, in each case applicable to the Limited
Partnership; provided, that, such counsel need express no opinion with
respect to filings under the H-S-R Act or to (i) any consents,
approvals or authorizations (including those set forth in Schedule 3.7
to this Agreement) that may be required pursuant to any media license
or any laws, rules or regulations of the United States or any state
thereof or locality therein relating particularly to the construction,
ownership, operation, promotion, extension or other exploitation of
any type of communication, broadcasting or transmission system,
including without limitation, any cable television system, (ii) any
violation that may result from the nature of the business or assets of
the Limited Partnership, (iii) fraudulent transfer laws, and (iv)
bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights.
(ii) Such Transferor shall have received the opinion of Xxxxxx X.
Xxxxx, Esq., Executive Vice President, General Counsel and Secretary of CSC,
dated as of the
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Closing Date, addressed to such Transferor, substantially to the effect that:
(A) The Limited Partnership is duly qualified to do
business in each jurisdiction in which it owns or leases property, or
in which the conduct of its business requires it to so qualify, except
where the failure to do so would not have a material adverse effect on
the business, of the Limited Partnership.
(B) The execution, delivery and performance by the Limited
Partnership of this Agreement and the consummation of the transactions
contemplated hereby (i) will not violate any statute or rule or
regulation or any order known to such counsel of any court or
governmental instrumentality binding upon the Limited Partnership,
(ii) will not conflict with or result in a breach of termination of,
or constitute a default under any indenture, mortgage, deed of trust,
lease, agreement or other instrument known to such counsel to which
the Limited Partnership may be a party or by which any of its
properties may be bound, and (iii) except as set forth in Schedule 3.7
to this Agreement and except for filings under the H-S-R Act, do not
require the consent, authorization or approval or other action or
filing with any federal governmental body, agency or authority.
ARTICLE VII
SURVIVAL
Except for those representations, warranties and covenants set forth
in Sections 2.6, 2.7, 4.7, 5.4, 5.5, 5.6 and 9.12, the representations,
warranties and covenants contained in this Agreement shall not survive the
Closing. The representations, warranties and covenants set forth in
Sections 2.6, 2.7, 5.4, 5.5, 5.6(i) and 9.12 shall survive only until the
expiration of the applicable statute of limitations and the representations,
warranties and obligations of the parties set forth in Sections 4.7 and 5.6(ii)
shall survive indefinitely.
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ARTICLE VIII
TERMINATION
8.1 TERMINATION. This Agreement may be terminated at any time prior
to the Closing:
(a) by agreement of the Limited Partnership, IMP on behalf of each
other Transferor (other than GE Capital) and GE Capital;
(b) by either the Limited Partnership or any Transferor if there
shall be in effect on the Closing Date any law or regulation that prohibits the
consummation of the Closing or if consummation on the Closing Date of the
Closing would violate any non-appealable final order, decree or judgment of any
court or governmental body having competent jurisdiction; or
(c) by the Limited Partnership, GE Capital or IMP in the event the
Closing Date shall not have occurred on or prior to March 18, 1997.
8.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement in accordance with Section 8.1 hereof, this Agreement shall thereafter
become void and have no effect, and no party hereto shall have any liability to
the other party hereto or their respective Affiliates, trustees, directors,
officers or employees, except for the obligations of the parties hereto
contained in this Section 8.2 and in Section 9.6 hereof, and except that nothing
herein will relieve any party from liability for any breach of this Agreement
prior to such termination.
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ARTICLE IX
MISCELLANEOUS
9.1 NOTICES. All notices or other communications hereunder shall be
deemed to have been duly given and made if in writing and if served by personal
delivery upon the party for whom it is intended, if delivered by registered or
certified mail, return receipt requested, or by a national courier service, or
if sent by telecopier, PROVIDED that the telecopy is promptly confirmed by
telephone confirmation thereof, to the person at the address set forth below, or
such other address as may be designated in writing hereafter, in the same
manner, by such person:
To the Limited Partnership:
U.S. Cablevision Television Group, L.P.
c/o CABLEVISION SYSTEMS CORPORATION
Xxx Xxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: General Counsel
With copies to:
1) XXXXXXXX & XXXXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxx
Xxxxxxxx X. Xxxxxxx
2) GENERAL ELECTRIC CAPITAL
CORPORATION
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxx
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3) WEIL, GOTSHAL & XXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Chiritie
To Transferors:
If to USCP: U.S. Cable Partners
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: I. Xxxxxx Xxxxxxxx
With a copy to: Proskauer Xxxx
Xxxxx & Xxxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxxxxx X. Xxxxxx
If to PT1: POMPADUR TRUST NO. 1
00 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx XX 00000
Attn: I. Xxxxxx Xxxxxxxx
With a copy to: Proskauer Xxxx
Xxxxx & Xxxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxxxxx X. Xxxxxx
If to RULE TRUST: THE RULE TRUST
Attn: x/x Xxxxx, Xxxx, Xxxxx,
Xxxxxxxx & Cohanne
00000 Xxxxx Xxxxxx
Xxxx. Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx
00000
Telecopy:
Attention: Xxxx
Xxxx, Esq.
-35-
If to EHS: Xxxxxx X. Xxxxx
Attn: c/o Commonwealth
Partners
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
If to IMP: I. Xxxxxx Xxxxxxxx
00 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
With a copy to: Proskauer Xxxx
Xxxxx & Xxxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxxxxx X. Xxxxxx
If to GE
Capital: GENERAL ELECTRIC CAPITAL
CORPORATION
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxx
With a copy to:
WEIL, GOTSHAL & XXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
9.2 AMENDMENT; WAIVER. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Limited Partnership and each
Transferor, or in the case of a waiver, by the party against whom the waiver is
to be effective; PROVIDED, HOWEVER, that for any amendment or waiver that does
not affect that
-36-
portion of the Redemption Price to be paid to any Transferor, such amendment or
waiver may be signed by IMP on behalf of each other Transferor (other than GE
Capital) and by GE Capital. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
9.3 ASSIGNMENT. No party to this Agreement may assign any of it
rights or obligations under this Agreement without the prior written consent of
the other parties hereto.
9.4 ENTIRE AGREEMENT. This Agreement (including all Schedules and
Annexes hereto) contains the entire agreement between the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters.
9.5 PARTIES IN INTEREST. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
permitted assigns. Except as provided in the Section 9.6, nothing in this
Agreement, express or implied, is intended to confer upon any person other than
the Limited Partnership, each Transferor, or their successors or permitted
assigns, any rights or remedies under or by reason of this Agreement.
9.6 THIRD PARTY BENEFICIARY. Each of the parties hereto acknowledge
and agree that they intend Cablevision Systems Corporation and its subsidiaries
to be a third party beneficiary of the agreements contained herein and that
-37-
Cablevision Systems Corporation shall be entitled to enforce the provisions of
this Agreement to the same extent as if it were a party hereto.
9.7 EXPENSES. Except as otherwise provided in this Agreement or the
Stock Purchase Agreement, each of the parties hereto shall bear its own expenses
incurred in connection with this Agreement and with the performance of its
obligations hereunder.
9.8 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
9.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
9.10 HEADINGS. The heading references herein and the table of
contents hereto are for convenience purposes only, do not constitute a part of
this Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
9.11 SEVERABILITY. The unenforceability or invalidity of any
paragraph or subparagraph of this Agreement shall not affect the enforceability
or validity of the balance of this Agreement.
9.12 FURTHER ASSURANCES. Each Transferor, on the one hand, and the
Limited Partnership, on the other, agree, at any time and from time to time
after the Closing, upon the request of the Limited Partnership, at the cost and
expense of the Limited Partnership, to do, execute, acknowledge and deliver, or
to cause to be done, executed, acknowledged and delivered, all such further
acts, deeds, assignments, transfers, conveyances, powers of attorney and
-38-
assurances as may be required for the better assigning, transferring, conveying,
and confirming to the Limited Partnership, or to its successors and assigns, or
for the aiding, assisting, collecting and reducing to possession of, any or all
of the Interests. Notwithstanding anything to the contrary contained herein and
in recognition of the nature of this Agreement, the parties hereto agree that
the Limited Partnership is not assuming any liabilities, contingent or
otherwise, of such Transferor.
9.13 CONSENT TO REDEMPTION. By his execution hereof, each party
hereto expressly consents to the execution of this Agreement by the Limited
Partnership and each other party hereto and to the consummation of the
transaction contemplated hereby for all purposes for which such consent may be
necessary or desirable.
9.14 EFFECTIVENESS. Notwithstanding anything herein to the contrary,
GE Capital shall have no obligations or liability hereunder unless and until the
Prepayment Transactions shall have occurred under the Second Amended and
Restated Agreement of Limited Partnership of the Limited Partnership dated as of
the date hereof.
-39-
IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the date first written above.
U.S. CABLE TELEVISION GROUP, L.P.
V CABLE GP, INC.
By: /s/ Xxxxx X'Xxxxx
------------------
Name: Xxxxx X'Xxxxx
Title: Senior Vice President,
Finance and Treasurer
U.S. CABLE PARTNERS
By: IMP CABLE MANAGEMENT, INC.,
a general partner
By: /s/ I. Xxxxxx Xxxxxxxx
----------------------
Name: I. Xxxxxx Xxxxxxxx
Title: President
GOLDEN HOLDINGS INC.,
a general partner
By: /s/ I. Xxxxxx Xxxxxxxx
----------------------
Name: I. Xxxxxx Xxxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxx, Xx.
------------------------
Xxxxxx X. Xxxxx, Xx.
/s/ I. Xxxxxx Xxxxxxxx
----------------------
I. Xxxxxx Xxxxxxxx
-00-
XXXXXXXX XXXXX XX. 0
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Xxxxxx Xxxxxxxx, Trustee
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx, Trustee
By:
------------------------
Xxxx Xxxxxxxx, Trustee
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE RULE TRUST DATED
JUNE 11, 1987
By: /s/ Xxxxx X. Rule
-----------------
Xxxxx X. Rule, Trustee
V CABLE, INC.
By: /s/ Xxxxx X'Xxxxx
------------------
Name: Xxxxx X'Xxxxx
Title:
-41-
SCHEDULE 3.6
LAWSUITS; CLAIMS
[NONE]
-42-
SCHEDULE 4.3
Noncontravention
[NONE]
-43-
SCHEDULE 3.7
SCHEDULE 4.6
CONSENTS AND APPROVALS
FRANCHISE CONSENTS
A. KENTUCKY REGION
10-31-95
SUBSCRIBERS
-----------
1. Crittenden, KY 212
2. Xxxxxxx, KY 345
3. Xxxxxx, KY 1,092
4. Salem, KY 212
5. Smithton, IL 414
---
TOTAL KENTUCKY 2,275
B. MISSOURI REGION
10-31-95
SUBSCRIBERS
-----------
1. Excelsior Springs, MO 2,809
2. Marshfield, MO 745
3. Rogersville, MO 178
4. Seymour, MO 241
5. Willard, MO 422
6. Cameron, MO 1,518
-----
TOTAL MISSOURI 5,914
C. NORTH CAROLINA REGION
10-31-95
SUBSCRIBERS
-----------
1. Xxxx County, NC 1,674
2. Chowan County, NC 633
3. Edenton, NC 1,829
4. Hertford, NC 722
5. Perquimans County, NC 714
6. Washington County, NC 689
7. Jefferson, NC 560
8. Xxxxxxxxx County, NC* 15,035
-44-
9. Hendersonville, NC* 2,333
10. Xxxxxx Xxxx, XX* 000
11. West Jefferson, NC* 589
------
TOTAL NORTH CAROLINA 25,707
D. FLORIDA REGION
10-31-95
SUBSCRIBERS
-----------
1. Mobile, AL (city) 221
2. Santa Xxxx County, FL 9,592
3. Xxxxxxx Air Force Base, FL 1,025
4. Xxxxxxx Naval Station, FL 234
5. Brewton, AL* 2,157
6. Xxxxxx County, AL* 65
7. Evergreen, AL* 1,203
8. Havana, FL* 601
9. Jackson, AL* 1,752
10. Monroe County, AL* 172
11. Pensacola NAS, FL* 719
12. Thomasville, AL* 1,578
13. York County, AL 886
------
TOTAL FLORIDA 19,952
E. ALABAMA REGION*
1. Louisville, MS 2,443
---------------------------------------------------------------
---------------------------------------------------------------
TOTAL SUBSCRIBERS 56,240
---------------------------------------------------------------
---------------------------------------------------------------
--------------------
* Approval necessary in connection with an Essex roll-up.
-45-
SCHEDULE 4.7
REDEMPTION AGREEMENT
SCHEDULE A
U.S. CABLE TELEVISION GROUP, L.P.
Names of Partners, Type of Partner,
Percentage Interest and Class of Partnership Interest
Type of Partner Initial
(i.e., general or Percentage Class of
Partner limited) Interest Interests
------- ----------------- ---------- ---------
V Cable GP, Inc. Class I General 1% Class I General
c/o Cablevision Partner, a general Partnership
Systems Corporation partner Interest
Xxx Xxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx
00000
Attention: General
Counsel
Telecopy: (516)
496-1780
V Cable, Inc. Class I Limited 19% Class I Limited
c/o Cablevision Systems Partner, a limited Partnership
Corporation partner Interest
Xxx Xxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx
00000
Attention: General
Counsel
Telecopy: (516)
496-1780
U.S. Cable Partners Class II General 1% Class II General
000 Xxxx Xxxxxx Partner, a general Partnership
New York, partner Xxxxxxxx
Xxx Xxxx 00000
Attention: I. Xxxxxx
Xxxxxxxx
Telecopy: (212)
980-8374
I. Xxxxxx Xxxxxxxx Class II Limited 2.71586% Class II Limited
00 Xxxxxxxx Xxxx Xxxx Partner, a limited Partnership
Greenwich partner Xxxxxxxx
XX 00000
Telecopy: (203)
622-4876
-46-
Type of Partner Initial
(i.e., general or Percentage Class of
Partner limited) Interest Interests
------- ----------------- ---------- ---------
The Rule Trust dated Class II Limited 3.44556% Class II Limited
June 11, 1987 Partner, a limited Partnership
x/x Xxxxx, Xxxx, Xxxxx, partner Interest
Xxxxxxxx & Cohanne
00000 Xxxxx Xxxxxx
Xxxx. Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx
00000
Telecopy:
Attention: Xxxx
Xxxx, Esq.
Pompadur Trust No. 1 Class II Limited 0.72898% Class II Limited
00 Xxxxxxxx Xxxx Xxxx Partner, a limited Partnership
Greenwich CT partner Interest
06831
Attention: I. Xxxxxx
Xxxxxxxx
Telecopy: (203)
622-4876
Xxxxxx X. Xxxxx, Xx. Class II Limited 0.10960% Class II Limited
c/o Commonwealth Partner, a limited Partnership
Partners partner Interest
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy:
General Electric Class III Limited 0% Class III Limited
Capital Corporation Partner, a limited Partnership
000 Xxxx Xxxxx Xxxx partner Interest
Xxxxxxxx, Xxxxxxxxxxx
00000
Attention: Region
Operations Manager
and Xxxx Xxxxxx
Telecopy: (203)
357-4025 and (203)
357-3047, respectively
-47-
Type of Partner Initial
(i.e., general or Percentage Class of
Partner limited) Interest Interests
------- ----------------- ---------- ---------
General Electric Class IV Limited 72% Class IV Limited
Capital Corporation Partner, a limited Partnership
000 Xxxx Xxxxx Xxxx partner Interest
Xxxxxxxx Xxxxxxxxxxx
00000
Attention: Region
Operations Manager and
Xxxx Xxxxxx
Telecopy: (203)
357-4025 and (203)
357-3047, respectively
General Electric Class V Limited 0% Class V Limited
Capital Corporation Partner, a limited Partnership
000 Xxxx Xxxxx Xxxx partner Interest
Xxxxxxxx Xxxxxxxxxxx
00000
Attention: Region
Operations Manager and
Xxxx Xxxxxx
Telecopy: (203)
357-4025 and (203)
357-3047, respectively
V Cable, Inc. Class VI Limited 0% Class VI Limited
c/o Cablevision Partner, a limited Partnership
Systems Corporation partner Interest
Xxx Xxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx
00000
Attention: General
Counsel
Telecopy: (516)
496-1780
-48-
