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Title: |
Asset Purchase Agreement |
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Date: |
2002 |
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Preview shows 16KB of 147KB total |
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$52 |
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ID: |
#1290673 |
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
TCI CABLE PARTNERS OF ST. LOUIS, L.P.
AND
NORTHLAND CABLE TELEVISION, INC.
DATED AS OF
OCTOBER 25, 2001
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1. DEFINITIONS. 1
1.1. Defined Terms. 1
1.2. Other Definitions. 6
1.3. Usage. 7
2. SALE OF ASSETS. 8
2.1. Purchase and Sale of Assets. 8
3. CONSIDERATION. 8
3.1. Purchase Price. 8
3.2. Adjustments to Purchase Price. 8
3.3. Determination of Adjustments. 9
3.4. Allocation of Consideration. 10
4. ASSUMED LIABILITIES AND EXCLUDED ASSETS. 10
4.1. Assignment and Assumption. 10
4.2. Excluded Assets. 11
5. REPRESENTATIONS AND WARRANTIES OF SELLER. 11
5.1. Organization and Qualification. 11
5.2. Authority and Validity. 12
5.3. No Breach or Violation. 12
5.4. Assets. 12
5.5. Governmental Permits. 13
5.6. Seller Contracts. 13
5.7. Real Property. 13
5.8. Environmental Matters. 14
5.9. Compliance with Law. 15
5.10. Patents, Trademarks and Copyrights. 16
5.11. Financial Statements. 16
5.12. Legal Proceedings. 17
5.13. Tax Returns; Other Reports. 17
5.14. Employment Matters. 17
5.15. Systems Information. 18
5.16. Finders and Brokers. 19
5.17. Bonds. 19
5.18. Disclosure. 19
6. BUYER'S REPRESENTATIONS AND WARRANTIES. 20
6.1. Organization and Qualification. 20
6.2. Authority and Validity. 20
6.3. No Breach or Violation. 20
6.4. Financial Capability of Buyer. 21
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
6.5. Finders and Brokers. 21
7. ADDITIONAL COVENANTS. 21
7.1. Access to Premises and Records. 21
7.2. Continuity and Maintenance of Operations; Financial Statements. 21
7.3. Employee Matters. 23
7.4. Leased Equipment. 28
7.5. Required Consents, Estoppel Certificates, Nondisturbance
Agreements and Franchise Renewals. 28
7.6. MDU Agreements. 29
7.7. Title Commitments and Surveys. 29
7.8. HSR Notification. 30
7.9. No Shopping. 30
7.10. Notification of Certain Matters. 30
7.11. Risk of Loss; Condemnation. 31
7.12. Lien and Judgment Searches. 31
7.13. Transfer Taxes. 32
7.14. Distant Broadcast Signals. 32
7.15. Letter to Programmers. 32
7.16. Updated Schedules. 32
7.17. Use of Seller's Name. 32
7.18. Subscriber Billing Services. 33
7.19. Certain Notices. 33
7.20. Satisfaction of Conditions. 33
7.21. Confidentiality. 33
7.22 Covenant Not to Compete 33
7.23 Retention of Books and Records 34
8. CLOSING. 35
9. CONDITIONS TO CLOSING. 35
9.1. Conditions to the Obligations of Buyer and Seller. 36
9.2. Conditions to the Obligations of Buyer. 38
9.3. Conditions to Obligations of Seller. 38
9.4. Waiver of Conditions. 38
10. TERMINATION. 38
10.1. Events of Termination. 39
10.2. Liabilities in Event of Termination. 39
10.3. Procedure Upon Termination. 39
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION. 39
11.1. Survival of Representations and Warranties. 39
11.2. Indemnification by Seller. 40
11.3. Indemnification by Buyer. 40
11.4. Limitations on Indemnity. 40
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
11.5. Third Party Claims. 41
11.6. Payments for Indemnification Amounts. 42
12. MISCELLANEOUS. 42
12.1. Parties Obligated and Benefited. 42
12.2. Notices. 43
12.3. Attorneys' Fees. 43
12.4. Right to Specific Performance. 44
12.5. Waiver. 44
12.6. Captions. 44
12.7. Choice of Law. 44
12.8. Rights Cumulative. 44
12.9. Further Actions. 44
12.10. Time. 44
12.11. Late Payments. 44
12.12. Counterparts. 45
12.13. Entire Agreement. 45
12.14. Severability. 45
12.15. Construction. 45
12.16. Expenses. 45
</TABLE>
iii
<PAGE>
EXHIBITS:
Exhibit A -- Bill of Sale and Assignment and Assumption Agreement
Exhibit B -- Forms of Nondisturbance and Attornment Agreement
Exhibit C -- Form of Lease Assignment
Exhibit D -- Form of MDU Agreement
Exhibit E -- Letter to Programmers
Exhibit F -- FIRPTA Certificate
SCHEDULES:
Schedule 1 -- Systems
Schedule 2 -- Governmental Permits
Schedule 3 -- Systems Contracts
Schedule 4 -- Required Consents
Schedule 5 -- Equipment
Schedule 6 -- Real Property
Schedule 7 -- Encumbrances
Schedule 8 -- Compliance with Legal Requirements
Schedule 9 -- Towers
Schedule 10 -- Litigation
Schedule 11 -- Tax Matters
Schedule 12 -- Employees
Schedule 13 -- Excluded Assets
Schedule 14 -- Systems Information
Schedule 15 -- System Rate Cards and Channel Lineups
Schedule 16 -- Bonds
iv
<PAGE>
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made as of the 25th day of
October, 2001, by and between TCI Cable Partners of St. Louis, L.P., a Colorado
limited partnership ("Buyer"), and Northland Cable Television, Inc, a Washington
corporation ("Seller").
RECITALS
Seller is engaged in the business of providing cable television service to
subscribers in and around Bainbridge Island, Washington. Buyer desires to
purchase and Seller desires to sell substantially all of the assets of Seller
used or useful in connection with that business.
AGREEMENT
In consideration of the above recitals and the mutual agreements stated in
this Agreement, the parties agree as follows:
1. DEFINITIONS.
1.1. Defined Terms. In addition to terms defined elsewhere in this
Agreement, the following capitalized terms, when used in this Agreement, will
have the meanings set forth below:
1.1.1. Affiliate. With respect to any Person, any other Person controlling,
controlled by or under common control with such Person, with "control" for such
purpose meaning the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities or voting interests, by contract or
otherwise.
1.1.2. Assets. All properties, privileges, rights, interests and claims,
real and personal, tangible and intangible, of every type and description that
are owned, leased, held, used or useful in the Business in which Seller has any
right, title or interest or in which Seller acquires any right, title or
interest on or before the Closing Date, including Governmental Permits,
Intangibles, Seller Contracts, Equipment, Books and Records, Real Property and
1
<PAGE>
deposits relating to the Business that are held by third parties for the account
of Seller or for security for Seller's performance of its obligations, but
excluding any Excluded Assets.
1.1.3. Basic Services. The lowest tier of service offered to
subscribers of a System.
1.1.4. Basic Subscribers. Any private residential customer account
that is billed by individual unit and pays the standard monthly rate (without
discount) for Basic Service.
1.1.5. Books and Records. All engineering records, files, data,
drawings, blueprints, schematics, reports, lists, plans and processes and all
other files of correspondence, lists, records and reports to the extent
concerning Seller's Business, including subscribers and prospective subscribers
of the System, signal and program carriage and dealings with Governmental
Authorities with respect to the System, including all reports filed with respect
to the System by or on behalf of Seller or any of its Affiliates with the FCC
and statements of account filed with respect to the System by or on behalf of
Seller or any of its Affiliates with the U.S. Copyright Office, but excluding
all documents, reports and records relating to the employees of the System.
Reference to any Books and Records will be deemed to refer to the Books and
Records included among the Assets.
1.1.6. Business. The cable television business conducted by Seller on
the date of this Agreement through one or more Systems in the Service Areas.
1.1.7. Business Day. Any day other than Saturday, Sunday or a day on
which banking institutions in Denver, Colorado or New York, New York are
required or authorized to be closed.
1.1.8. Closing. The consummation of the transactions contemplated by
this Agreement, as described in Section 8.
1.1.9. Closing Date. The date upon which Closing occurs.
1.1.10. Closing Time. 12:01 a.m., local time on the Closing Date.
1.1.11. Encumbrance. Any mortgage, lien, security interest, security
agreement, conditional sale or other title retention agreement, limitation,
pledge, option, charge, assessment, restrictive agreement, restriction,
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