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Ord. No. 14-99-1688ORDINANCE NO. 14 -99 -1688 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO FRANCHISES; APPROVING TRANSFER OF FRANCHISE FROM CABLE SATELLITE OF SOUTH MIAMI, INC. TO CHARTER COMMUNICATIONS, LLC; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE DATE. WHEREAS, the Mayor and City Commission of the City of South Miami approved ordinance no. 15 -95 -1588, granting Cable Satellite of South Miami, Inc. renewal of a non - exclusive cable television license and granting a non - exclusive license and priority service area, ending July 30, 2005; and, WHEREAS, Cable Satellite of South Miami, Inc. entered into a purchase and sale agreement with Vista Broadband Communications, LLC, a Delaware limited liability company, to acquire substantially all of Cable Satellite's property, including the licenses approved by ordinance no. 15 -95 -1588, and Vista assigned its rights to Charter Communications, LLC, and Charter Communications, Inc., (collectively referred to as the transferee); and, WHEREAS, Cable Satellite and the transferee request consent to transfer the franchisee in accordance with applicable legal requirements; and, WHEREAS, art. VI, §5 of the city charter and ordinance no. 13 -95 -1586, providing cable television regulations, require the franchisee to obtain approval by the city commission for a transfer of a franchise upon complying with the requirements identified in sec. 8 -15 of the ordinance and upon consideration of the legal, financial, technical and character qualifications of the transferee to operate the system; and, WHEREAS, the Mayor and City Commission desire to authorize the transfer of the franchise. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. Upon review of the application for transfer, the Mayor and City Commission have determined that Charter Communications, LLC, and Charter Communications, Inc. possess the legal, financial, technical and character qualifications to operate the system and, accordingly, consent to the transfer of the franchise in accordance with the requirements of ordinance no. 13 -95 -1586. Any further transfer of an interest in the franchise must be accomplished in compliance with the requirements of sec. 8 -15 of ordinance no. 13 -95 -1586. Additions shown by underlinin¢ and deletions shown by oaerstr Section 2. The Mayor and City Commission confirm that the franchise was properly granted, is currently in full force and effect, and, the city has no knowledge of any material breach by the franchisee of the terms and conditions of the franchise. Section 3. If any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this ordinance. Section 4. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are repealed. Section 5. This ordinance is approved with the specific assurance that the franchisee shall continue to provide cable broadcast to the City. Section 6. This ordinance shall take effect immediately upon the occurrence of both the approval of this ordinance and the closing of the transfer, referred to in the contract documents as the "Closing Date." PASSED AND ADOPTED this 3rd day of August , 1999. ATTEST: di� CITY CLERK READ AND APPROVED AS TO FORM CITY ATTORNEY APPROVED: MAYO1 I"Reading— 7/27/99 2 "d Reading— 8/3/99 COMMISSION VOTE: 5 -0 Mayor Robaina: Yea Vice Mayor Oliveros: Yea Commissioner Feliu: Yea Commissioner Bethel: Yea Commissioner Russell: Yea Additions shown by underbnine and deletions shown by evemtriMng, CITY OF SOUTH MIAMI QINTER- OFFICE MEMORANDUM To: Mayor and City Commission Date: August 3, 1999 From: Charles D. Scurr fa� City Manager REQUEST: Agenda Item # Re: Comm. Mtg. 11/03/98 Second Reading Cable Franchise Transfer AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO FRANCHISES; APPROVING TRANSFER OF FRANCHISE FROM CABLE SATELLITE OF SOUTH MIAMI, INC. TO CHARTER COMMUNICATIONS, LLC; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE DATE. BACKGROUND & ANALYSIS Charter Communications, LLC ( "Charter ") has entered into a contract to purchase the Cable Satellite CATV franchise in the City of South Miami. Charter is majority owned by Microsoft co- founder Paul Allen. Mr. Allen and Charter have stated that they are committed to superior customer service and fulfillment of the "wired world" strategy. That strategy is marked by the combination of compelling content, personal computing and high bandwidth data channels. With this strategy Charter believes it is uniquely positioned to deliver video as well as advanced data and transactional services to the community. City Ordinance 5 -99 -1679 specifies the requirements and procedures for the transfer of the CATV franchise. The City Attorney and City Administration have reviewed the Charter application and have recommend that Charter has the legal, financial, technical and character qualifications necessary to operate the system and accordingly recommend that the Commission consent to the transfer. We have had discussions with key representatives from Charter and they have assured us that they wish to be good partners with the City. They have agreed to include a specific assurance in the ordinance regarding the continuation of cable broadcast services. They have requested more general language than was contained in the earlier ordinance. RECOMMENDATION The purchase of the Cable Satellite franchise by Charter appears to be very beneficial for the City. Charter is an emerging major player in the CATV and Internet markets and they appear to be committed to major improvements in the technology available in South Miami. Approval is recommended. MIAMI DAILY BUSINESS REVIEW Published Daily except Saturday, Sunday and Legal Holidays Miami, Dade County, Florida. STATE OF FLORIDA COUNTY OF DADE: Before the undersigned authority personally appeared Sookle Williams, who on oath says that she Is the Vice President of Legal Advertising of the Miami Daily Business Review fikie Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Dade County, Florida; that the attached copy of advertisement, being a Legal Advertisement of Notice in the matter of CITY OF SOUTH MIAMI PUBLIC HEARING — 8/3/99 AN ORDINANCE RELATING TO FRANCHISES In the .. .........x..xxxxxx ... Court, waTuT bllsie ins�t�nayspeperl�lUTle4iiiI 1999 ANiant further says that the sold Miami Daily Business Review Is a newspaper published at Miami In said Dade County, Florida, and that the said newspaper has heretofore been continuously published In said Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mall matter at the post olflce In Miami In said Dade County, Florida, for a period of one nett preceding the that publication of the attached sop of dvertlsemenb and afflent further says that she has nN er aid nor promised any penon, Ilan or corporation an rile unl, reDele, eommisslon or refund for the purpose of sc ng This vertlsemenl for publleellon In the seltl na per. 20 SwQm T and subscribed before me f ig u y y ...... day of ......................... A.D. 19...... (SEAL) M rjy PU OFFICIAL NOTARY SE AL Sookle Williams pare mat! known 9Qe�rrICHERYL H HARMER * 'Tar •I » Comm I6510N NUMaEn a ' c CC545384 MY 9l�OF FlO APR E 72000 S ° -CITY OF SOUTH MIAMI - NOTICE OF PUBLIC HEARING NOTICE IS HEREBY given that the City' Commission of the City of South Miami, Florida will conduct a Public Hearing during its regular City Commission meeting Tuesday, August 3, 1999 beginning at 7:30 p.m., in the City Commission Chambers, 6130 Sunset Drive., to consider the following described item(s): -- - AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO " FRANCHISES; APPROVING TRANSFER OF FRANCHISE FROM CABLE SATELLITE OF -SOUTH MIAMI, INC. TO CHARTER COMMUNICATIONS, LLC, PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE DATE. - a.. .: - ....... Said ordinance can be Inspected In the City Clerk's Office, Monday - Fridayduringregularofficehours. Inquiries conceming this item should be directed to the Planning Department at: 663 -6327. =�VW3 z:_1- :?' ^,:4:.n .- - ALL interested parties aFeriiivited to attend and will be heard ?_ Roneaa Taylor, CMC City Clerk City of South Miami f Pursuant to Florida Statutes 286.0105, the City hereby advises the public that if a person decides to appeal any decision made by this Board, Agency or Commission with respect to any matter considered ' at its meeting or hearing, he or she will need a record of the proceed- ings, and that for such purpose, affected person may need to ensure - that a verbatim record of the proceedings is made which record in. cludes the testimony and evidence, upon which the appeal is to be 7/13 -20 99-3-071337M OCHARTER May 19, 1999 Mr. Charles Scurr, City Manager City of South Miami 6130 Sunset Drive S. Miami, FL 33143 Re: Transfer of Cable Television Franchise, FCC Form 394 Dear Mr. Scurr. Charter Communications, LLC ( "CC -LLC ") has entered into a contract to purchase an interest in those assets which comprise the franchise to operate a CATV system within the City of South Miami. At this time, we respectfully request your consent to an assignment of the cable franchise from Cable Satellite of South Miami, Inc. to Charter Communications, LLC. Enclosed please find a completed FCC Form 394 - Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise, along with a model transfer ordinance and all required exhibits and documentation. Charter Communications, A Wired World Company, ( "Charter') now majority owned by Microsoft co- founder, Paul Allen, is dedicated to superior customer service and the fulfillment of the "wired world" strategy. That strategy is marked by the combination of compelling content, personal computing and high bandwidth data channels. With this strategy, Charter believes it is uniquely positioned to deliver video, as well as, advanced data and transactional services to the consumers in your community. This FCC Form 394 is being submitted pursuant to 47 C.F.R. §76.502. Further, FCC regulations also provide the standard of review upon which the franchising authority is to judge the request for assignment. In considering this application, it is important to understand that the standard of review for a franchise transfer is different from the standards used to renew a franchise. The substantive issues to be reviewed in the transfer process involve only whether or not the transferee possesses the legal, technical and financial qualifications to operate the franchise. Additionally, while the renewal process may take up to 36 months, the request for transfer is deemed granted if not acted upon within 120 days of its submission. Although the franchising authority may make request(s) for additional information, these requests would not toll the 120 day period. It is our desire to work closely with the City of South Miami to expedite the assignment and are available to discuss Charters qualifications and the specifics of the transaction. We look forward to continuing to serve the cable needs of the City of South Miami and we believe that Cable Satellite of South Miami, Inc. and Charter Communications, LLC have provided you sufficient information to enable you to make a speedy determination on this application for assignment. We envision that the process can easily be completed within the allotted time frame. If you have any questions concerning the proposed transfer, please feel free to contact either the undersigned or M. Celeste Vossmeyer, Vice President - Government Relations at 314 - 543 -2410. Very truly yours, CHARTEgCGMMUNICATIONS, LLC I By: Trudi McCollum Foushee TMF:smf Vice President and Senior Counsel Attachment cc: M. Celeste Vossmeyer 2444 Powerscoun Drive • Suite 100 St. Louis, Missouri 63131 -3660 • (3' 4) 965 -0555 • Fax (314) 965 -6640 • Internet http: /lwww.charteroom.corr TABLE OF CONTENTS SECTION 1 - FCC FORM 394 APPLICATION TAB INTRODUCTION FCC Form 394 A Statement Regarding Completeness B Statement Regarding C Disclosure Charter Communications Contact Persons D Statement Regarding Limited Liability Corporation E ................................ Corporate Tree F Form of Transfer Resolution G H SECTION 2 - LEGAL QUALIFICATIONS Organizational Structure Charter Communications, LLC I SECTION 3 - FINANCIAL QUALIFICATION FCC Form 394 - Request for Confidential Treatment ............................. Financial Statement K L SECTION 4 - TECHNICAL QUALIFICATIONQ The Management Group Corporate Biographies M Franchise Demographics Overview N Quality of Service Provided 0 EEO Policy P Culture Statement Q Safety Policy R S SECTION 5 — PURCHASE AND SALE AGREEMENT *Confidential Document - Under Seal j.\ISMiaml\394transter�CON-reNTS.doc SECTION 1 FCC FORM 394 APPLICATION FOR FRANCHISE AUTHORITY CONSENT TO ASSIGNMENT OR TRANSFER OF CONTROL OF CABLE TELEVISION FRANCHISE ioLkll �oM ear 1 *="jMr A WIRCp WpRIO COMPANY INTRODUCTION Charter Communications, Inc. ( "Charter'), a Wired World Company, was founded in 1993 and has achieved customer growth that is twice the industry average. Headquartered in St. Louis, the company has ranked as the eighth fastest growing company in the country by Inc. Magazine for its 1998 Inc. 500 list. Charter was acquired by investor and Microsoft co- founder Paul G. Allen in late 1998 and has combined with Marcus Cable. Charter is the nation's seventh largest cable operator. Charter Communications, LLC ( "CC -LLC ") is an indirect, wholly -owned subsidiary of Charter. Charter acts as manager for CC -LLC. The Purchase and Sale Agreement attached hereto was executed by and between Cable Satellite of South Miami, Inc. ( "Cable Satellite ") and Vista Broadband Communications, LLC ( "Vista "). Subsequent to execution of the Purchase Agreement ( "Purchase Agreement "), Vista entered into an Assignment and Assumption Agreement with Charter whereby Charter would acquire the assets of Cable Satellite. All pertinent documentation is provided herewith. j:1S Miami �394tra n sfe n1 N TRO D U CTIO N. d oc Federal Communications Commission Washington, D.C. 20554 FCC 394 APPLICATION FOR FRANCHISE AUTHORITY CONSENT TO ASSIGNMENT OR TRANSFER OF CONTROL OF CABLE TELEVISION FRANCHISE Approved by OMB 3060-0573 FOR FRANCHISE AUTHORITY USE ONLY SECTION I. GENERAL INFORMATION DATE 1. Community Unit Identification Number: May 17 1999 FL0529 2. Application for: ❑ Assignment of Franchise ❑ Transfer of Control 3. Franchising authority: City of South Miami 4. Identify community where the system is /franchise that the subject of the assignment or transfer of control is located: South Miami, FL 5. Date system was acquired or (for system's constructed by the transferor /assignor) the date on which service was provided to the first subscriber in the franchise area: 1982 6. Proposed effective date of closing of the transaction assigning or transferring ownership of the system to transferee /assignee: AS soon as practicable Attach as an Exhibit a schedule of any and all additional information or material filed with this application that is identified in the franchise as required to be provided to the franchising authority when requesting its approval of the type of transaction that is the subject of this application. PART I - TRANSFEROR/ASSIGNOR 1. Indicate the name. mailing address. and telephone number of th t f Exhibit No. See Tab C e rans 6mudssignor. Legal name of Transferor /Assignor (if individual, list last name rirst) Cable Satellite of South Miami, Inc. Assumed name used for doing business (if any) Mailing street address or P.O. Box 10711 SW 216" Street, Suite A -100 City State ZIP Code Telephone No (include area code) Miami I FL 33170 2.(a) Attach as an Exhibit a copy of the contract or agreement that provides for the assignment or transfer of control (including any exhibits or schedules thereto necessary in order to understand the terms thereof). If there is only an oral agreement, reduce the terms to writing and attach. (Confidential trade, business, pricing, or marketing information, or other information not otherwise publicly available, may be redacted.) (b) Does the contract submitted in response to (a) above embody the full and complete agreement between the transferor /assignor and transferee /assignee? If No, explain in an Exhibit. j'\ Intermedia 394transfer 394APP.doc Page 1 M o. 5 ❑ Yes 0 No Exhibit No. See Tab D September 1996 PART If - TRANSFEREE/ASSIGNEE (a) Indicate the name, mailing address. and telephone number of the transferee /assionee -egal name of TiansfereerAssignee (if individual, list last name first) name Charter Communications Mailing street address or P.O. Box 12444 Powerscourt Drive, Ste. 400 City State ZIP Code Telephone No. (include area code) St. Louis Missouri 63131 -3660 314 - 965 -0555 to or contact person (list last name See Tab E or company name (if any) tg street address or P.O. Box (C) Attach as an Exhibit the name, mailing address, and telephone number of each additional person who should be Contacted, if any. the (d) Indicate the address where the system's records will be maintained. Street address 12444 Powerscourt Drive, Ste 100 city St. Louis MO Slate ZIP Code 63131 2. indicate on an attached Exhibit any plans to Change the current terms and conditions of service and operations of the system as a consequence of the transaction for which approval is sought. 1:\ Intermedia \394transfer\394APP. doc Page 2 area code) Tb Exhibit Exhibit No. N/A SECTION 11. TRANSFEREE'S /ASSIGNEE'S LEGAL QUALIFICATIONS Transferee /Assignee is: ICorporation Limited Partnership ❑ General Partnership ❑ Individual ❑Other - Describe in an exhibit X of Exhibit No. See Tab F List the transfereelassignee, and, if the transferee /assignee is not a natural person, each of Its officers, directors, stockholders beneficially holding more than 5% of the outstanding voting shares, general partners, and limited partners holding an equity Interest of more than 5 %. Use only one column for each individual or entity. Attach additional pages if necessary. (Read carefully - the lettered Items below refer to corresponding lines in the following table.) (a) Name, residence, occupation or principal business, and principal place of business. (If other than an individual, also show name, address and citizenship of natural person authorized to vote the voting securities of the applicant that it holds.) List the applicant first, officers next, then directors and, thereafter, remaining stockholders and/or partners. (b) Citizenship. (c) Relationship to the transferee /assignee (e.g., officer, director, etc.) (d) Number of shares or nature of partnership interest (e) Number of votes. (f) Percentage of votes. See Tab G j:\ Intermedia \394transfer \394APP.doc Page 3 3. If the applicant is a corporation or a limited partnership, is the transferee /assignee formed under the laws of, or duly qualified to transact business in, the State or other jurisdiction in which the system operates? If the answer is No, explain in an Exhibit. 4. Has the transferee /assignee had any interest in or in connection with an application which has been dismissed or denied by any franchise authority? If the answer is Yes, describe circumstances in an Exhibit S. Has an adverse finding been made or an adverse final action been taken by any court or administrative body with respect to the transferee /assignee in a civil, criminal or administrative proceeding, brought under the provisions of any law or regulation related to the following: any felony; revocation, suspension or involuntary transfer of any authority (including cable franchises) to provide video programming services; mass media related antitrust or unfair competition; fraudulent statements to another governmental unit; or employment discrimination? If the answer is Yes, attach as an Exhibit a full description of the persons and matter(s) involved, including an identification of any court or administrative body and any proceeding (by dates and file numbers, if applicable), and the disposition of such proceeding. 6. Are there any documents, instruments, contracts or understandings relating to ownership or future ownership rights with respect to any attributable interest as described in Question 2 (Including, but not limited to, non -voting stock interests, beneficial stock ownership interests, options, warrants, debentures)? If Yes, provide particulars in an Exhibit Do documents, instruments, agreements or understandings for the pledge of stock of the transfereelassignee, as security for loans or contractual performance, provide that: (a) voting rights will remain with the applicant, even in the event of default on the obligation; (b) in the event of default there will be either a private or public sale of the stock; and (c) prior to the exercise of any ownership rights by a purchaser at a sale described in (b), any prior consent of the FCC and/or of the franchising authority, if required pursuant to federal, state or local law or pursuant to the terms of the franchise agreement will be obtained? If No, attach as an Exhibit a full explanation. SECTION III - TRANSFEREE'S /ASSIGNEE'S FINANCIAL QUALIFICATIONS The transferee /assignee certifies that it has sufficient net liquid assets on hand or available from committed resources to consummate the transaction and operate the facilities for three months. 2. Attach as an Exhibit the most recent financial statements, prepared in accordance with generally accepted accounting principles, including a balance sheet and income statement for at least one full year, for the transferee /assignee or parent entity that has been prepared in the ordinary course of business, if any such financial statements are routinely prepared. Such statements, If not otherwise publicly available, may be marked CONFIDENTIAL and will be maintained as confidential by the franchise authority and its agents to the extent permissible under local law. j:\ Intennedia \394transfeA394APP.d0c Page 4 0 Yes ❑ No M No.§2 © Yes ❑ No Exhibit No. See Tab H ❑ Yes © No Exhibit No. N/A ❑ Yes © No Exhibit No. N/A ❑ Yes 0 No Exhibit No. See Tab I ® Yes ❑ No Exhibit No. See §3 SECTION IV - TRANSFEREE'S /ASSIGNEE'S TECHNICAL QUALIFICATIONS Set forth in an Exhibit a narrative account of the transferee's /assignee's technical qualifications, experience and expertise igarding cable television systems, including, but not limited to, summary information about appropriate management arsonnel that will be involved in the system's management and operations. The transferee /assignee may, but need not, list a representative sample of cable systems currently or formerly owned or operated. Exhibit No. SECTION V - CERTIFICATIONS See §4 PART 1 - Transferor /Assignor All the statements made in the application and attached Exhibits are considered material representations, and all the Exhibits are a material part here and are incorporated herein as if set out in full in the application. I CERTIFY that the statements in this application are true, complete Signature and correct to the best of my knowledge and belief and are made in good faith. WILLFUL FALSE STATEMENTS MADE ON THIS FORM ARE Date PUNISHABLE BY FINE AND /OR IMPRISONMENT. U.S. CODE, TITLE y 17, 1999 18, SECTION 1001. Print full name By: Rick Hensley Vice President Finance Check appropriate classification: ❑ Individual ❑ General Partner © Officer ❑ Other. Explain: (indicate Title) PART II - Transferee /Assignee .I the statements made in the application and attached Exhibits are considered material representations, and all the Exhibits are a material part here( and are incorporated herein as if set out in full in the application. The transferee /assignee certified that he /she: (a) Has a current copy of the FCC's Rules governing cable television systems. (b) Has a current copy of the franchise that is the subject of this application, and of any applicable state laws or local ordinances and relate( regulations. (c) Will use its best efforts to comply with the terms of the franchise and applicable state laws or local ordinances and related regulations, and tc effect changes, as promptly as practicable, in the operation of the system, if any changes are necessary to cure any violations thereof or default: thereunder presently in effect or ongoing. ••••• I — m mrs application are true, complete and correct to the best of my knowledge and belief and are made in good faith. PUNISHABLE BY FINE AND /OR IMPRISONMENT. U.S. CODE, TITLE 18, SECTION 1001. ❑ Individual ❑ General Partner 17, run name By: Trudi McCollum Foushee Vice President and Senior Counsel 0 Officer ❑ Other. Explain: (Indicate Title) j: UntermeolaQ94transfert.394APP . doc Page 5 September 1996 i6pr Cf�er C O M M U N I C A r A WIRED WORLM CiOMP4N, STATEMENT REGARDING COMPLETENESS All additional information of a material nature required to be filed with an application for franchise authority consent to assignment or transfer of control of the franchise, if any, is attached hereto and listed on the table of contents page. In all instances, the transferee will assume all current obligations of the existing franchise and continue to provide the level of service provided for therein. Further, neither the services currently provided nor the service area currently served by the franchisee will be changed or altered in any significant manner by this transaction. j:\SMiami\394transier\completeness.doC CHART oR A Wired World COM132ny- STATEMENT REGARDING DISCLOSURES The Purchase and Sale Agreement submitted as Section 5 to this application has been redacted. Confidential trade, business, pricing and /or marketing information not generally available and not necessary in order to understand the terms of this transaction have, pursuant to FCC rules and regulations, been omitted. jASMiamn394tra nsfertd isclosure. do COM�N�AT�O��Y� A WIRE' W-PL. COMPANY CONTACT PERSONS Eastern Division Melvin Bryant, Eastern Division - Vice President Operations William Barbour, Regional Operations Manager 883 N.E. Main Street Simpsonville, South Carolina 29681 864 - 967 -2730 Facsimile: 864 - 963 -2389 j:\SMiamj\394transfer\Contact.doc r Cftar #esr C O M M U N 84=^-r I O N S A W...0 WORLD COMP4NY STATEMENT REGARDING LIMITED LIABILITY COMPANY Charter Communications, LLC is organized as a limited liability company under the Delaware Limited Liability Company Act. A limited liability company is a distinct form of business entity formed under state law. It resembles a state -law corporation in that the owners of the limited liability company are shielded from personal liability for the debts, liabilities and obligations of the company in excess of the owner's investment in the company. Under Internal Revende Service regulations, a limited liability company may qualify for Federal tax treatment as a partnership. • Jurisdiction in which formed • Date of formation: • Registered agent: j: \S M iam iQ94tra n sfe r \LLCstatem e n t. a oc Delaware Formed November 22, 1993 as Charter Communications, L.P.; converted to limited liability company on December 21, 1998 The Corporate Trust Company Corporate /Trust Center 209 Orange Street Wilmington �N �Z 0 �Q �2 W W Ho w c v °' a-Ei U a a- LL OU U N C O U w 0 C! m m J ,N d c rn •N N Q) ID Gv N N O) F- om 0 L c — 0 0 U a) CO N 0 a U d t m M E N_ N r m Q oo E °o U 0 LU (D L U J C - o ion ion "O' LO in U n J N C 8 C y (U O Cn !A d ? O .L c N v c O d "V Q > Q L V N W O M W o0 aNl C cam- C, t° C 0EQZc.0 z00 7m V S O Ux E E N �� O 0 O U O �- O N O C o 0 3mn Y 3 m3 co EcQS O o O o` 3 (U 0 y N m c.��o� Aoa)Z =v�Z - o of o U �Q;a-m3�m�O�inoONin Q o o a¢ o a : U Z Z N a ca O c O ° U ° W J O 2 0 loo in U') U m o '0) ' w o ui o d Cl) m ` ma) m o o o p� ZZ O c E m oM a o E a5 w N a> 1 E c 0 0 o 15 (U N °i A d M U E cQs U) wdy o oo0c -' a)o Vw o� o� > A_> J y c m E�p ° c v N (� M C v 3 � w L 'T o E o N O O a° c °a -0 Z CD o atS o0 a O cc w U on o U LO a o d (D C :? U (0 N Q cl) W a !� J U O d N 4) O Q Zrn V J o f °Ea o� V (� Eo EJC>= a5 o0 ° E c 00 U c >Ea d 3� miq� d c aria U �aoEi oao �N� a o° J .N J d O> N° J and N ca) V o IEO 2`v J' �?� v°oo E O o -ga v1 Z vo2P nON�U) m 000 a 0- U Z Z Z O H N 'a oo E o0 Q Ci J V � L z ° U mm> a N � a) Ag V c aEd omL) 'oc(o E c° c y « N U vO E a W U A Y 0 m 0 c _o 0 a . a..N J 3 a� R o v o m c U C.i a) al Q J R N N Q O m rn Co U a 0 a Z Z Z 0 a U d t m M E N_ N CONSENT AND APPROVAL OF LOCAL FRANCHISING AUTHORITY TO TRANSFER OF CONTROL OF CAN FRANCHISE WHEREAS THE [LOCAL FRANCHISE AUTHORITY] ( "GRANTOR ") granted to Cable Satellite of South Miami, Inc. ( "Grantee "), a franchise as set forth in Ordinance /Resolution No. dated , 19_, to own and operated a cable television system in [LFA] the ("Franchise"); WHEREAS, on April 22, 1999, Cable Satellite of South Miami, Inc. entered into a Purchase and Sale Agreement (the "Agreement ") with Vista Broadband Communications, LLC ( "Vista "); WHEREAS, the Agreement provides for the sale of the assets of Grantee which comprise this franchise; WHEREAS, Vista has assigned all right title and interest in the Agreement to Charter Communications, LLC ( "Transferee "); WHEREAS, Grantee filed an FCC Form 394 Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise with Grantor on or about May 20, 1999; WHEREAS, Grantor has duly conducted a thorough review and investigation into the legal, technical and financial qualifications of Applicant and Transferee to own and operate the cable television system in light,of the above - referenced FCC Form 394; and WHEREAS, all written comments and staff reports have been received, and made a part of the record; and WHEREAS, following review and investigation, the Grantor has concluded that the Transferee has established that it meets the legal, technical and financial criteria to operate the cable television system and has satisfied all criteria set forth in and /or under all applicable local, state and federal laws, rules and regulations, including FCC Form 394. NOW, THEREFORE, BE ITS RESOLVED, that in consideration of the foregoing and the promises set forth herein, the Grantor consents to the transactions contemplated by the Agreement and further resolves as follows: jASMiamAResolution. aoc I. Grantor consents to the transfer of control of the cable system serving Grantor effective upon the closing of the transactions contemplated by the Agreement; 2. Grantor confirms that (a) the Franchise is valid and outstanding and in full force and effect; (b) there have been no amendments or modifications to the Franchise, except as set forth herein; (c) Grantee is materially in compliance with the provisions of the Franchise; and (d) there are no defaults under the Franchise, or events which, with the giving of notice or passage of time or both, could constitute events of default thereunder. 3. Transferee may (a) assign or transfer its assets, including the Franchise provided however, that such assignment or transfer is to a parent or subsidiary of Transferee or another entity under direct or indirect control of Paul Allen; (b) restructure debt or change the ownership interests among existing equity participants in Transferee, and /or its affiliates; (c) pledge or grant a security interest to any lender(s) of Transferee's assets, including but not limited to the Franchise, or of interests in Transferee, for purposes of securing an indebtedness, without obtaining prior consent of Grantor; (d) sell capital stock of Transferee, or any of Transferee's affiliate companies, in a transaction commonly known as an "initial public offering" provided that: Transferee represents in writing to Grantor that such transaction will have no foreseeable effect on the agreement between Grantee and Transferee relating to the management and operation of the cable system in the franchise service area. 4. This Resolution shall take effect immediately. ADOPTED AND APPROVED THIS _day of 1999 CITY /COUNTY/TOWN of [NAME] By: Name: Title: ATTEST: City/County/Town Clerk j: \SM iaMARes o I u (ion. doc SECTION 2 LEGAL QUALIFICATIONS CHARTER COMMUNICATIONS PROFORMA Charter Communications, Inc. ( "Charter'or "CCI") IW% Manager Charter Communications Holdings. LLC ( "CharterComm Holdings ") Charter Communications Operating, LLC Charter Communications, LLC CCC -LLC' PnntW: 5/10/9911: J] AM ja Mb W)MCSanxLS wl1 State of Delaware Office of the Secretary of State PAGE 2 I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY_.THAT THE--ATTACHED IS A TRUE AND CORRECT COPY OF THE "CERTIFICATE OF FORMATION OF "CHARTER COMMUNICATIONS:f LLC" FILED.IN"THIS OFFICE ON THE THE TWENTY —FIRST DAY OF- DECEMBER, A.D. 1998, AT 4:03 O'CLOCK P.M. _ C'9a Edward J. Freel, Secretary of State AUTHENTICATION: 2360460 6100V 9478521 DATE: 981494113 12 -21 -98 STATE OF DELAWARE ,SECRETARY OF STATE DIVISION OF CORPORATIONS FILE.) 04:03 PM 2212111998 981494113 - 2360460 CERTIFICATE OF FOR1ViATION of CHARTER COMMUNICATIONS, LLC The undersigned, as an authorized person, is duly executing and filing the following Certificate of Formation for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 De1.C' § 18- 101, et. Seq.) (the "Act's: ARTICLE I The name of the limited liability company is Charter Communications, LLC (the "Company "). ARTICLE II The address of the Company's registered office and the name and the address of its registered agent for service of process are as follows: CotpAmerica, Inc. 30 Old Rudnick Lane Dover, Delaware 19901 M54.o1 03 IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of December 21, 1998. By: CCP One, Inc. Its Authorized Person By —�—L Name: CURTIS S. SHAW TIL1G: SENIOR V.P. & SECRETARY 96084.01 03 _ 7 _ State ' Delaware Office of the Secretary of State PAGE 1 I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THAT THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERT: LIMITED PARTNERSHIP'TO A "CHARTER COMMUNICATIONS, COMMUNICATIONS, L.P. "" TO :F.ICATE— OF__CONVERSION OF A DELAWARE DELAWARE - :-LIMITED LIABILITY COMPANY OF L P ";'CHANGING ITS NAME -FROM "CHARTER "CHARTER COMMUNICATIONS, LLC" FILED IN THIS OFFICE ON THE TWENTY —FIRST DAY OF DECEMBER, A.D. 1998, AT 4:03 O'CLOCK P.M. ��i4C�4 i(y: \ \\ Edward j. Preel, Secretary of State 2360460 8100V �a,E_ " 9478521 e AUTHENTICATION: 981494113 12 -21 -98 DATE: STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 04:03 PM 1212111998 494113 - 2360460 CERTIFICATE OF CONVERSION TO LIMITED LIABILITY COMPANY of CHARTER COMMUNICATIONS, L.P. The undersigned, as an authorized person, is duly executing and filing the following Certificate of Conversion to Limited Liability Company for the purpose of converting a limited partnership to a limited liability company (the "Conversion "), pursuant to Section 18 -214 of the Delaware Limited Liability Company Act (the "Act's: ARTICLE I The name of the limited partnership prior to the Conversion is Charter Communications, L.P., which was formed as a Delaware limited partnership on November 22, 1993. ARTICLE 11 The name of the limited liability company as set forth in its Certificate of Formation is Charter Communications, LLC 96619.01 02 IN WITNESS WHEREOF, the undersigned has executed this Certificate of Conversion as of December 21, 1998, By: CCP One, Inc. Its Authorized BY Name: CURTIS S. SHAW Title: SENIOR V.P. & SECRETARY 96669.01 02 -2- SECTION 3 FINANCIAL QUALIFICATIONS I N7 Charter COMMUNICATIONS® A WIRED WORLD COMPANY Memorandum TO: Franchise Authority FROM: Trudi McCollum Foushee, Vice President Charter Communications, LLC DATE: May 19, 1999 SUBJECT: FCC Form 394 - Request for Confidential Treatment In an effort to make this application as complete as possible, we are including certain highly sensitive and confidential trade, business and financial data. We respectfully ask that you help maintain its confidentiality. Therefore, we are seeking the maximum possible protection for certain highly sensitive business trade and financial information being submitted under seal herewith. If, for any reason the form of the current request does not comport with your state or local standards or you are unable to accord these documents confidential treatment, we ask that you return the sealed documents. We will take your retention of these documents as your agreement to treat them as confidential. Please note that we do not consent to disclosure of any information for which confidentiality is claimed to any person other than those public employees (including consultants and other agents) who have a specific need to review it in connection with the franchise transfer application. The information is submitted on the explicit understanding that we (1) do not relinquish its privacy interests and its proprietary interests in such material and (2) are relying on the franchising authority to protect the confidentiality of such information to the maximum extent possible under the law. We are also requesting that the franchising authority commit to protecting the confidentiality of the financial information in the following specific ways: • By committing to restrict dissemination of the information to those public employees who have a need to review it. • By committing to protect the information from public disclosure to the maximum extent possible under the law. • By committing to inform us immediately if a request for public disclosure is received, to allow us at least five business days to review the request and attempt to negotiate a mutually agreeable disclosure arrangement with the requester or to seek judicial review. • By supporting us in any legal action, Charter may take (a) to oppose an injunction requiring disclosure or (b) to seek an injunction forbidding disclosure of the information. REQUEST FOR CONFIDENTIAL TREATMENT DOCUMENT UNDER SEAL' TAB -L Charter Communications Holdings, LLC Financial Statement 'Confidential Document - Under Seal j:\ISMiamt\394transfer\CONTENTS.doc SECTION 4 TECHNICAL QUALIFICATIONS ��rter io_ L", COMMUC NICATIONS A WIRED WORLD COMP^N, CHARTER COMMUNICATIONS, INC. The management team of Charter communications, Inc. ( "Charter") has built Charter into one of the most highly respected Multiple Systems Operators ( "MSO's ") in the United States. The team's collective experience in the cable and telecommunications industry, their receptivity to new ideas, creative thinking and willingness to change, as well as their financial acumen, has proven a successful combination. Charter has recognized the importance of rebuilding and reinforcing infrastructure and invested heavily in strengthening its core business and upgrading plant in its service areas. New video services, new modems and high speed services are being introduced to consumers and schools. By operating with an intrepreneurial spirit, the management team at Charter set themselves apart with solid commitments not only to technology, but to serving our customers, investing in education and showing a strong interest in our communities. Charter's management team saw to it that millions of dollars were invested in construction of its cable plant fiber optics infrastructure. More than $200 million was spent in 1998. In 1997, Charter introduced Charter Pipeline TM, high speed Internet service to customers in California. The company was the first MSO to commercially launch WorldGateTM universal Internet access and e-mail service over cable television in St. Louis, Missouri in the spring of 1998. The Management Group has developed a simple but effective management philosophy: to acquire and operate cable systems which it believes have a significant potential for growth. Growth is expressed in terms of subscribers, financial performance, improved customer service and technological sophistication. The Company's strategy is to target cable systems in close geographical proximity to maximize marketing and operational efficiency and minimize supervisory costs. This clustering structure also contributes to improved employee morale and greater responsiveness to the communities served by Charter's cable systems. Activities in these geographic clusters are overseen by a Senior Vice President to whom broad operational authority has been delegated. Senior Vice Presidents are in daily contact with system managers, and together these individuals have significant decision- making capability. The Company believes best results are achieved when operating decisions are made as close to the customer as possible. The cable systems are geographically clustered and are divided into five regions. The clustering contributes to operational and marketing efficiencies as well as improved employee morale and greater responsiveness to communities served by Charter. Overseeing the regions are senior vice presidents to whom broad operational authority is delegated. Senior vice presidents are in regular contact with system managers, and together, they have significant decision - making authority. Charter believes that the best results are achieved when operating decisions are made as close to the customer as possible. Charter ranks at the top of the cable industry in all key performance standards and has achieved customer growth that is twice the industry average. In five years, Charter acquired 22 cable systems and successfully assimilated employees into Charter's culture to provide service that exceeds the customers' expectations. Charter has been honored many times for its fast growth and management received the 1997 Ernst & Young Entrepreneur of the Year award in the category of Communications /Entertainment. Charter provides more than 2,800 public and private schools in the communities we serve with fee monthly service as part of the Cable in the Classroom program. Charter committed to equip one site in every consenting elementary and secondary school passed in its service area with Charter PipelineTM and WorldGateTM service. Charter's commitment to its communities means hundreds of thousands of dollars in support each year for national charities and local civic and charitable organizations. Charter maintains a. special focus on our communities' future leaders — the children — recognizing that television plays an enormous role in influencing the lives and dreams of young people. J:\SMiamiVnanagement.doc A WIRED WOglp COMRq NY Jerald L. Kent President & Chief Executive Officer Charter Communications, Inc. Jerald L. Kent is a co- founder, President and Chief Executive Officer of Charter Communications, Inc. and a Managing Partner of Charter Communications Group. Prior to founding Charter, Mr. Kent was an executive officer of Cencom Cable Associates, Inc. He is charged with running the day -to -day activities of the company by directing the operations, MIS, accounting, acquisition and finance activities of Charter. His accomplishments include the engineering of nearly $3 billion of acquisitions during Charter's five year history. Currently Charter serves more than 1.2 million customers. Mr. Kent served as Executive Vice President and Chief Financial Officer of Cencom Cable Associates, Inc., and was responsible for locating, acquiring and financing cable television properties, in addition to overseeing the accounting, finance, management information systems and investor relations departments of the company. Mr. Kent was also responsible for Cencom's California operations. He served Cencom Cable Associates, Inc. as Senior Vice President of Finance from May 1987, Senior Vice President of Acquisitions and Finance from July 1988, and Senior Vice President and Chief Financial Officer from January 1989, and Executive Vice President and Chief Financial Officer in March 1990. He joined Cencom Cable Associates, Inc. in 1983 as Senior Vice President of Corporate Development, to lead the company's acquisition program. During his tenure, Cencom Cable Associates, Inc. grew to a company providing service to over 550,000 subscribers. In connection therewith, he directed acquisitions and related'financings totaling over $1 billion. During this time, Cencom was included among Inc. Magazine's list of 500 fastest growing private companies in the United States. From 1979 to 1983, Mr. Kent served with Arthur Andersen & Co., certified public accountants, where he attained the position of tax manager. His duties included consulting on the analysis and structuring of limited partnerships with a major emphasis in serving the media industry. In particular, Mr. Kent developed an expertise in structuring partnership and joint venture agreements. His clients included Telcom Engineering, Inc., T.C. Industries, Inc. and Cencom Cable Associates, Inc. Mr. Kent, a certified public accountant, received his undergraduate and MBA degrees with honors from Washington University, St. Louis, MO. He serves on the 0SMiaMQ10s.d0C iit-F' Garter CM M U NJ CATIONS' A WIRED WORI0 COMpq N, Board of Directors of Charter Communications. Inc., CCA Acquisition Corp., CCT Holdings Corp. and CCA Holdings Corp. He served on the board of CableMaxx, Inc. Mr. Kent was honored in the St. Louis Business Journal's 40 Under 40 edition as one of the St. Louis area's outstanding business leaders under the age of 40. He and Charter co- founders Barry Babcock and Howard Wood were honored as 1997 Regional Entrepreneurs of the Year in Telecommunications and Entertainment. Mr. Kent is a member of the Young Presidents Organizations. He serves on the board of directors of The Magic House, and is chairman of the finance committee of Incarnate Word Church. He serves on the Alumni Association Executive Committee at Washington University. j: \SMiami\Bios.doc io_ rw� COMUNAT�p-S�� A WIRED WORLD COMPMNV Barry L. Babcock Chairman of the Board Charter Communications Barry Babcock began his career in the cable industry more than twenty years ago. He is a co- founder and Chairman of the Board Charter Communications, Inc., headquartered in St. Louis, Missouri. Prior to founding Charter, Mr. Babcock was associated with Cencom Cable Associates, Inc. Mr. Babcock was among the founders of Cencom Cable Associates in 1982, serving as Executive Vice President and Chief Operating Officer. He managed the company's in -house legal work, contracts, governmental relations and business matters in the decade from its inception to its sale to Crown Media in 1992. Mr. Babcock joined the cable industry in 1979 when he became Vice President of Telcom Engineering, Inc. of St. Louis, directing Telcom's cable television governmental consulting activities and preparing franchise agreements for numerous municipalities. Prior to that, Mr. Babcock served as Assistant Municipal Counselor in Oklahoma City, Oklahoma. Throughout his career in the cable television industry, Mr. Babcock has been involved in leadership roles with national telecommunications organizations. He is currently Chairman of the Board of Directors of the Cable Telecommunications Association (CATA). He serves on the board of directors of the National Cable Television Association (NCTA), C -SPAN and is a member of the board of directors of the Cable Advertising Bureau (CAB) and Cable in the Classroom. Mr. Babcock and Charter co- founders Jerald Kent and Howard Wood were honored as 1997 Regional Entrepreneurs of the Year in Telecommunications and Entertainment. He is active in many civic endeavors in the St. Louis metropolitan area as a member of the Board of Directors of the Missouri Historical Society and the St. Louis Civic Entrepreneurs Organization. He also serves on the boards of directors of Mercantile Bank -St. Louis and Charter Communications, Inc and various affiliates. He is a frequent speaker on topics related to the cable industry. Mr. Babcock, an attorney, received his undergraduate and Juris Doctorate degrees from the University of Oklahoma. He served four years as a line officer in the United States Navy. j:1SMiam10i0S.doc iivE�o Cf�r #er cam M UN ICATION -- A WIRE. W..,. COMPq NY Kent D. Kalkwarf Senior Vice President & Chief Financial Officer Charter Communications Mr. Kalkwarf joined Charter Communications, Inc. in July 1995 as Vice President, Finance & Acquisitions and was promoted to Senior Vice President of Mergers & Acquisitions in 1996. He was named Senior Vice President & Chief Financial Officer in 1997. He has been instrumental in Charter's acquisition of more than 1.2 million customers. Prior to joining Charter, Mr. Kalkwarf was a senior tax manager for Arthur Andersen, certified public accountants. With Arthur Andersen, Mr. Kalkwarf was primarily involved in the consumer products and telecommunications service lines. Throughout his career, his duties included extensive experience in the mergers and acquisitions area. Mr. Kalkwarf has experience in the formation of partnerships, both in the cable and real estate industries. Mr. Kalkwarf also headed the international tax practice for Arthur Andersen in St. Louis, Missouri where he was involved with international acquisitions and divestitures, along with significant foreign tax credit planning. Mr. Kalkwarf, a certified public accountant, received his undergraduate degree, with honors, from Illinois Wesleyan University. jASMiami\Bios.doc i0ZI, �oM4= "RkI #er A WIRED WOg IO COMPq NY Curtis S. Shaw Senior Vice President, General Counsel & Secretary Charter Communications Curtis S. Shaw joined the Company in February 1997 as Senior Vice President, General Counsel and Secretary, and is responsible for all legal aspects of Charter's business, including major transactions and the duties of the corporate secretary. Prior to joining Charter, Mr. Shaw served as corporate Counsel to NYNEX since 1988. From 1983 until 1988 Mr. Shaw served as Associate General Counsel for Occidental Chemical Corporation, and, from 1986 until 1988, also as Vice President and General Counsel of its largest operating division. Mr. Shaw has 24 years of experience as a corporate lawyer, specializing in mergers and acquisitions, joint ventures, public offerings, financings, and federal securities and antitrust law. Mr. Shaw received a BA with honors from Trinity College and a JD from Columbia University School of Law. PSMiam,010S.doc Crer iivZl' COMMUNICATaION S� A WIRED WORLD COMPq NY David G. Barford Senior Vice President, Operations Urban Regions Charter Communications David Barford is Senior Vice President - Operations, Urban Regions for Charter Communications. Mr. Barford is the senior operating officer for Charter's systems in California and St. Louis overseeing all facets of operations in those cities. He has been with the company since July 1995. Prior to joining Charter, Mr. Barford served in several senior marketing and operation roles at Comcast Cablevision for eight years. His last position at Comcast was Vice President of Operations in the International Division in Mexico, South America, and new Business Development in Europe. During his eighteen year career in the cable industry, Mr. Barford has been involved in leadership roles with various telecommunications organizations. He has served as board member and president of the Southern California Cable & Telecommunications Association and board member of the Southern California Cable Television Marketing Council. Mr. Barford is a graduate of California State University, Fullerton, where he earned his B.A. in Communications. He also holds an MBA from National University. j9SM1ami \Bi0s.doc i4v Cre�r *er COMMU N 1CAT 101 A WIRED WORLD COMPANY Mary Pat Blake Senior Vice President Marketing Charter Communications Mary Pat Blake joined Charter Communications as Senior Vice President of Marketing in August 1995. Prior to joining Charter, Ms. Blake created and operated, then sold Dakota Coffee & Bakery Company. She was president of Blake & Associates, a marketing consulting firm. Her 20 years' experience includes senior management positions in marketing, sales, finance, systems and general management with companies such as General Mills, Pepsico (Taco Bell), Brown Group, and the West Coast Group, strategic marketing consultants. Ms. Blake earned a B.S. degree in Business Administration from the University of Minnesota, an M.B.A. from Harvard Business School and earned election to Phi Beta Kappa. iASMiamABios.doc iiVL11, Cha rier COMM U N 1 CATIONS' A WIRED WORLD COMPANY Ralph G. Kelly Senior Vice President, Treasurer Charter Communications Ralph Kelly joined Charter Communications, Inc. in March 1993 as Vice President, Finance, a position he held until April 1994 when he became Chief Financial Officer of CableMaxx, Inc., a wireless cable television operator. Mr. Kelly returned to Charter as Senior Vice President, Treasurer. His present responsibilities include cash management financial reporting. He also assists with Charter's finance and acquisition efforts. Ralph Kelly has worked in the cable industry since 1984 when he joined Cencom Cable Associates, Inc., as Controller. As Controller, Mr. Kelly was responsible for all aspects of accounting and financial reporting for the cable company. Later he served Cencom as Treasurer and was responsible for cash management, loan compliance, budget administration, supervision of internal audit and filing SEC reports. Mr. Kelly also assisted with projects relating to government relations, franchise renewals, acquisitions and equity repurchases. He has served on the accounting Committee of the Board of Directors for National Cable Television Association. He is a certified public accountant. Mr. Kelly was in the audit division of Arthur Andersen & Co. from 1979 until 1984. His clients included privately held businesses, telephone clients and extractive industries. Mr. Kelly received his undergraduate degree in accounting from the University of Missouri - Columbia and his MBA degree from Saint Louis University. is \SMiami\Bios.doc ��V-r C Q f%fv 11Aci r t e sr A WIRED WORLD COMPNN, David L. McCall Senior Vice President Operations Eastern Division David L. McCall joined Charter in January 1994 as Southeastern Regional Operations Manager. He has primary responsibility for all of Charter's cable systems operations in that portion of the United States. Prior to joining Charter, Mr. McCall was employed by Crown Cable and its predecessor, Cencom Cable Associates, Inc. from 1983 to 1993. As Regional Manager, his responsibilities included supervising all aspects of operations for systems located in North Carolina, South Carolina and Georgia, consisting of more than 142,000 subscribers. From 1977 to 1982, Mr. McCall was System Manager of Coaxial Cable Developers (DBA Teleview Cablevision) in Simpsonville, SC and prior to that he was Line Foreman with Burnup and Sims, Inc. from 1974 to 1977. Mr. McCall has served on the Board of Directors for the South Carolina Cable Television Association for the past 10 years. j1SMiami \Bios.doc r�ar!9 !a*er A WIRED WORLD COMPANY John C. Pietri Senior Vice President, Engineering Charter Communications John C. Pietri joined Charter Communications in November 1998 as Senior Vice President, Engineering. Mr. Pietri has more than 22 years' experience in the cable industry. Throughout his career he has held a variety of technical management positions. Prior to joining Charter, Mr. Pietri was with Marcus Cable in Dallas, TX for eight years, most recently as Senior Vice President and Chief Technical Officer. He was responsible for the technical operations and standards for all of the company's cable systems including; new construction and rebuild /upgrade projects; routine maintenance and installation practices; capital control, purchasing; and regulatory compliance and reporting. Prior to Marcus, he served as Regional Technical Operations Manager for WestMarc Communications headquartered in Denver, CO. He was responsible for managing technical operations, budgeting and purchasing for the company's cable systems in Minnesota, Iowa, North Dakota, and South Dakota. WestMarc served 550,000 customers. Before that, Mr. Pietri served as Operations Manager with Minnesota Utility Contracting. Mr. Pietri is a member of Society of Cable Television Engineers (SCTE) and Cable Television Association for Marketers (CTAM). He has served on the National Cable and Telecommunicantions Association committee far the past two years. Mr. Pietri received his Bachelor of Arts degree in philosophy and mathematics from the University of Wisconsin - Oshkosh. is \SMiami\Bios.doc Charier COM M U N 1 CATI ONS- A WIRED WORLD COMPMNV Trudi McCollum Foushee Vice President and Senior Counsel Charter Communications Trudi M. Foushee has been practicing law in the telecommunications industry for the past ten years. As a partner with Green and Foushee of St. Louis and Washington, D.C., Ms. Foushee served as consultant and regulatory legal advisor to Charter Communications before joining the company in 1996. From 1993 to 1995, Ms. Foushee served as Vice President - Law and Regulatory Affairs for Crown Media, Inc., Dallas, Texas, a division of Hallmark Cards, Inc. Ms. - Foushee was responsible for company compliance with the Consumer Protection & Competition Act of 1992 which entailed a massive overhaul of all aspects of the cable business. Ms. Foushee served as lead in -house counsel for Crown Media following the acquisition and consolidation of Crown Media and Cencom Cable Associates corporate headquarters in St. Louis, MO to Crown's headquarters in Dallas, Texas from October 1992 to May 1993. She served as Counsel and Assistant Secretary to Cencom Cable Associates, Inc. of St. Louis, Missouri from May 1990 to September 1992 providing legal support for human resources, operations, government relations, accounting, customer service and engineering for the INC 500 company. Ms. Foushee was an attorney with Union Electric Company of St. Louis, Missouri from 1987 until 1990. She was a Litigation Associate with Danna, Soraghan, Stockenberg & Shaw of St. Louis from 1986 to 1987 and an Associate with Miller, Loewinger & Associates Chartered of Washington, b.C. from 1982 until 1985. Ms. Foushee is a graduate of Georgetown University Law Center. She received her B.S. in Political Science cum laude from North Carolina Central University. She is admitted to practice in the District of Columbia, the State of Missouri, U.S. Supreme Court and the U.S. District Court, 8th Circuit. j: \SMismi\Bios.doc i* RIO Cftarter CaMM U N ICATICNS- A WIRED WORLD COMPANY M. Celeste Vossmeyer Vice President, Government Relations Charter Communications M. Celeste Vossmeyer joined Charter Communications in 1995 as Legal Counsel. She was promoted to Vice President and Senior Counsel in January 1997 and to Vice President- Government Relations in October 1998. As Vice President - Government Relations, Ms. Vossmeyer is responsible for local, state and federal issues affecting operations and the cable industry generally. Prior to joining Charter, Ms. Vossmeyer practiced law with Peper, Martin, Jensen, - Maichel and Hetlege for six years. She specialized in corporate and municipal law. From 1986 to 1989 she worked as a political consultant specializing in issues related to municipal and state government regulation. Her clients included developers, small business owners, and the St. Louis Homebuilders Association. From 1983 to 1986 she worked as a legislative representative for the St. Louis Homebuilders Association. Ms. Vossmeyer takes an active role in the community and is a member of the St. Louis University Law School Dean's Advisory Committee, a precinct captain for the 28`h Ward of the City of St. Louis, and serves on a number of nonprofit boards, including as legal counsel for the St. Louis Art Museum. Ms. Vossmeyer earned her A.B. (with honors) in political science from Washington University and JD from Saint Louis University. jaSMiamABios.doc 4C �ivr C D M U N3'1AKrt�� A WIRED WpRLD Ca,pMN, FRANCHISE DEMOGRAPHICS OVERVIEW CHARTER COMMUNICATIONS, INC. Charter Communications, Inc. owns, operates and /or manages cable systems in 18 states with a total of over 1600 franchise agreements. These franchise areas represent diverse demographics. However, the bulk of our franchises group together to form 13 key clusters. • St. Louis County, Missouri /Illinois • Los Angeles /Long Beach, California • Ft. Worth, Texas Metroplex • Wisconsin • Greenville- Spartanburg, South Carolina • Buncombe County, North Carolina Connecticut/Massachusetts • Atlanta, Georgia suburban area • Northern North Carolina • Huntsville, Alabama • New Orleans, Louisiana suburban area Making up these clusters are several different franchise areas that range from small towns and villages with just a few hundred customers, large bedroom communities such as Clarksville, Tennessee and Coweta County, Georgia with between 10,000- 25,000 customers to large urban areas such as Long Beach, California with over 65,000 customers. Outside of the clusters, Charter has franchise agreements that serve three military bases, Fort Gordon, Ft. Riley and Ft. Carson and that serve rural areas in parts of the country such as northern Missouri and southern Tennessee. j: \SM iam i \394t ra n sfe r\Ove wiew.tloc 7ispr Cfar #ear COMM U N 140 — NSA A WIRED WORLD GOMPMNY QUALITY OF SERVICE PROVIDED Charter Communications, Inc. ( "Charter ") and its affiliated entities continually seeks to improve their understanding of, and relationship with, their customers. Management believes this focus will, over time, increase both subscriber penetration and per subscriber revenue. The emphasis on customer satisfaction is evident in Charter's customer service pollicies, marketing and programming and technological plans. Charter seeks to provide a high level of customer service by employing a well- trained staff of customer service representatives and experienced field technicians. Management believes that the level of customer service provided by Charter to subscribers gained through acquisitions is generally better than that provided by previous owners. Charter's programming packages offer different pricing options, including special value packages and add -on services. From a technological standpoint, Charter focuses on its customers through its emphasis on service reliability, improved picture quality and expanded channel capacity. Charter is also working to develop a database that will assist management with its evaluation of the potential demand by existing and prospective customers for home entertainment, educational services and data transmission. Charter is dedicated to providing superior customer service to customers. As part of this effort, Charter emphasizes improving system reliability, which includes enhancing technology of the systems, increasing the level of engineering resources and providing the highest level of customer service. j: \S M !am i \394 t ra n s fe r\Q u a I i ty. d o c ior 4CorV!q",arter A WIRIO WORLD COMPq NY EQUAL EMPLOYMENT OPPORTUNITY PROGRAM It is the Company's policy that equal opportunity in employment shall be afforded to all qualified persons and that there shall be no discrimination against any person in any aspect of employment because of sex, race, color, religion, national origin or age. To this end, the Company has established and will maintain and carry out a positive continuing aspect of cable system employment policy and practice. Administration of the Program The General Manager of the system has responsibility for administration of the Company's Program, including hiring, training and promotion activities. His actions are subject to continuing review and supervision by the Vice President of Human Resources. Recruiting Prominently posted at our business office is a notice informing employees and applicants for employment of their equal employment opportunity rights and their right to notify the Federal Communications Commission, the Equal Employment Opportunity Commission or other appropriate agency if they believe they have been the victims of discrimination. Where appropriate, this notice is also posted at other work locations and in other appropriate languages. All employment application forms utilized by the Company contain a notice, in bold type, informing prospective employees that discrimination because of sex, race, color, religion, national origin or age is prohibited and 'that they may notify the Federal Communications Commission, the Equal Employment Opportunity Commission or other appropriate agencies if they believe they have been the victims of discrimination. All advertisements for employees state that the Company is an equal opportunity employer. Where available, advertisements are placed in media having significant circulation among minority -group people in the area. When employment referral agencies and other recruitment sources are utilized to fill job openings, they are advised that the Company is an equal opportunity employer and that qualified minority and female applicants will be actively considered for employment. Efforts are made by the company to recruit at schools and colleges with significant minority -group enrollments and to contact minority and human relations organizations, leaders and spokespersons for referral of qualified minority or female applicants. Selection and Hiring Minority and women applicants for jobs are to be given equal consideration and there is to be no discrimination in hiring on the basis of sex, race, color, religion, national origin or age. Efforts are made to identify lower paid employees with interest and potential for higher paid positions and to assist them to qualify for such positions. Placement Promotion and Other Conditions of Employment All employees are treated without discrimination with respect to all terms, conditions and privileges of employment. As part of our equal employment opportunities program, all employees are afforded: (a) equal consideration for promotion to higher positions for which they are - qualified; (b) equal opportunity for counseling and on- the -job training leading to higher positions; (c) equal pay and benefits to that received by other employees with equivalent qualification and experience who perform equal work at the cable system; (d) equal opportunity for all qualified employees to participate in overtime work; and (e) equal access to all company facilities and benefits. No demotions, layoffs or terminations are based on an employee's sex, race, color, religion, national origin or age. Opportunity for overtime work is offered on a nondiscriminatory basis. Rates of pay and fringe benefits are periodically reviewed for inequities. Use of Minority and Female -Owned Businesses It is the Company's policy to encourage minority and female entrepreneurs to conduct business with all parts of its operation. For this purpose, the Company maintains community contacts and encourages present employees to refer minority and female - owned businesses that wish to do business with the system. -2- j: \SM iam i \3941 ransfernE EO P _ d oc i4spr CfaK*4M r C O M M U N I CATION 5� A W-REO WO.IO COMPMNV Integrity Integrity is our guiding principle. We stand behind what we say we will do for our customers, our investors and our people. We meet the world head -on as upright and sincere business people. Creativity Creativity and independent thinking are the entrepreneurial way. Embracing change and opportunity is what brought Charter to this point. Take personal responsibility for searching out a better way, for achieving higher quality. Let solutions start with you. Keep reaching, stretching to outdo yesterday. Receptivity to new ideas means totally eradicating philosophies such as: "That's not the way we do it around here." And "That's the way we've always done it." Work Hard, Play Hard The men and women of Charter are by nature competitive, hard - working people. We set high standards for ourselves, and our work. Set the same high standards for the time spent with family. Families come first. Keep quality time with family a priority. Customer Service Continually ask our customers what they want and how we are doing. We must know our customers intimately; so well that we can anticipate their needs, their likes and dislikes. A strong relationship with our customers guarantees their satisfaction and keeps our company profitable. Search out ways to exceed our customers' expectations. If we don't meet their needs, someone else will. Positive Attitude Charter is a place for "Can -Do" men and women. A positive attitude empowers us. A negative attitude drains precious energy and destroys self - confidence. There is no room for negativism at Charter. Adopt a positive attitude as a lifestyle. Take Pride What we do affects who we are. Each of us brings special talents and areas of expertise to Charter. Charter's values grow out of each individual's values. The company's results are merely the accumulation of our singular results. You make a difference. Take time to feel good about what you do. j9SMiami \Cu1wm.doc �o COM4 NfA�:t @r A WIRES WORLD COMPANY Knowledge and Skills It doesn't take long for skills and knowledge to become outdated in a fast - changing world. We must constantly retool ourselves, become perpetual students. Delve deeper. Keep learning. Share your knowledge.; Charter believes training our people is the key to successful careers. Corporate Citizenship Get involved. Being a good corporate citizen means we don't just stand on the sidelines and observe. Being a valued member of a community means giving something back to it. No matter how big Charter becomes, we must always be a "hometown" company, helping our neighbors. Care About Others Strong teams are built on personal relationships and genuine caring for each other. Ask co- workers how they are doing and listen to what they say. Clear communication and a sense of teamwork is critical in a competitive environment. Our commitment to our culture is our charter for success. jASMi=i \Cu1wm.doc �oM mft.arter A WIRED WORLD COmpq N, SAFETY POLICY It is the policy of Charter Communications to provide safe working conditions for all its employees and to provide protection for the general public. The company recognizes that the safety of all company employees, subscribers and the public is definitely the responsibility of the company, its management, supervisors and employees. Regardless of the degree of responsibility charged to management and supervisors for safety, every employee must recognize that the safety program must have the united and unqualified support and effort of every individual to insure that safe practices are not only established, but maintained and followed at all times. The basis of the safety policy of Charter Communications is to take the permanent and continuing position that no job being performed is so important and no service too urgent that time cannot be taken by all concerned to perform the job in the right way, the efficient way — the safe way. Charter Communication's safety manual elaborates on this policy and gives specific safety rules, practices and procedures to be followed, as well as record keeping requirement. One manual is to be kept in each system's office and each outside employee is to keep a manual in their vehicle. j: \S Miami\394 tra nsfe r\Sa fety, doc SECTION 5 PURCHASE AND SALE AGREEMENT Execution Cog) PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT is made this 22nd day of April, 1999 by and between Cable Satellite of South Miami, Inc., a Florida corporation ("Seller" and Vista Broadband Communications, LLC, a Delaware limited liability company ( "Buyer "). WITNESSETH: WHEREAS, Seller is the owner of franchises and licenses (the "Fran_ cam) to operate the cable television system or systems serving The City of South Miami, the Village of Pinecrest and portions of Miami -Dade County, Florida (the "Svstem "); WHEREAS, Seller wishes to sell, and Buyer wishes to buy, substantially all of the property, business and assets of Seller used in connection with the System on the terms and conditions set forth herein; and NOW, THEREFORE, in consideration of the mutual set forth, the parties hereto agree as follows: covenants and agreements hereinafter Article 1. Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, Seller shall sell, convey, transfer, assign and deliver to Buyer at the Closing (as hereinafter defined) and Buyer will purchase from Seller free and clear of all liens, claims, mortgages, security interests, charges and encumbrances the following assets of Seller (collectively, the "Purchased Assete): All of the properties used or held for use by Seller in connection with the ownership or operation of the System of every kind, nature or description whether personal, real or mixed, tangible or intangible and wherever located; rovided however, that the purchased Assets shall not include cash, cash equivalents and bank deposits; prom—amming agreements; insurance policies and rights and claims thereunder, all bonds (including, without limitation, construction and performance bonds), letters of credit or surety instruments and other similar items and any cash surrender value in regard thereto, stocks, bonds, certificates of deposits and similar investments; any claims, rights and interest in and to any refunds of federal, state, or local franchise, income or other taxes or fees (including, without limitation, copyright fees) for periods prior to the Closing Date; all trademarks, trade names, service names, copyrights, service marks, logos and similar proprietary rights used in the System; any assets or properties owned by Seller that are not used in or held for use in connection with the System; the account books of original entry, general ledgers and financial records used in connection with the System; Seller's corporate assets and books and records and other agreements and documents which do not relate to the operation of the System but only to matters among Seller's shareholders and/or their affiliates, provided, however, that Seller shall permit Buyer to have access thereto to the extent necessary and in the Vista. CSSM Purchase AV t t 11464057.5 manner contemplated by this Agreement; or the corporate minutes, records and tax returns previously paid by Seller and any other assets listed on Schedule (a) hereto (collectively, the "Excluded Assets "), which shall remain the property of Seller. Without limiting the generality of the foregoing, the Purchased Assets shall include all of the headend and master antenna facilities, real estate, distribution plant and equipment operating facilities, pole attachment agreements, easements, rights -of -way, permits, licenses and real and personal property leases, maintenance and repair of t presently existing inventory of spare and replacement parts utilized for the day - today he System, signal decoders, conveners, subscriber lists, subscriber accounts receivable, prepaid income items and refundable deposits from subscribers relating to Seller's operation of the System, including without limitation all items listed and described on Schedules 01(b) hereof. Article 2. Purchase Price and Payment. Section 2.01. Purchase Price. (a) Amount. The purchase price for the Purchased Assets (the "Base Purchase Price ") shall be $16,900,000 payable as set forth in Section 2.02. Such amount shall be adjusted, if necessary, as provided in Subsections 2.01(b), (c) and (d). The Base Purchase Price as adjusted is referred to herein as the "Purchase Price ". (b) Adjustment to Purchase Price for Receivables etc. As of the Closing Date, Seller and Buyer shall agree on the value of accounts receivable, deposits, prepaid taxes and other prepaid expenses of Seller purchased by Buyer (the "Adjustment Assets ") and the amount of current liabilities and prepaid income of Seller, subscriber deposits held by Seller and other accrued liabilities of Seller assumed by Buyer (the "Adjustment Liabilities "). At a minimum, Buyer will purchase all of the accounts receivable from Seller at the following prices, expressed as a percentage of the face value of such receivables: (i) 100% for accounts receivable aged less than 31 days as of the Closing Date; (ii) 90% for accounts receivable aged less than 61 days but more than 30 days as of the Closing Date; and (iii) 0% for accounts receivable aged more than 61 days as of the Closing Date. If the amount of Adjustment Assets exceeds the amount of Adjustment Liabilities, the Base Purchase Price shall be increased by the difference. If the amount of Adjustment Liabilities exceeds the amount of Adjustment Assets, the Base Purchase Price shall be reduced by the difference. (c) Adiustment to Purchase Price Regarding Number of Subscribers. (i) At the Closing, the number of Basic Subscribers of the System as of the Closing shall be determined and certified to Buyer by Seller. As of the Closing, if the number of Basic Subscribers is less than Nine Thousand One Hundred Fifty (9,150), the Purchase Price shall be reduced by an amount equal to $1,858 for each such Basic Subscriber less than Nine Thousand One Hundred Fifty (9,150). No additional consideration shall be paid by Buver in the event the actual number of Basic Subscribers exceeds Nine Thousand One Hundred Fifty (9,150). visa -CSSM Purcha Aige t NW57.5 2 (ii) For the purposes of this Agreement, the number of 'Basic Subscribers" means the sum of (A) the number of single household or commercial current, first outlet subscribers to basic service of the Systems who: (1) are paying no less than the standard rate per month as set forth in Schedule 4.23(a) for such service (subject to adjustments for senior citizens as set forth in Schedule 4.23(a)); (2) are not more than sixty (60) days past due, calculated from the first applicable billing date (which Seller represents and warrants to be the first day of each month); (3) are not entitled to any discount, rebate or other form of price concession or reduction (other than discounts to senior citizens as set forth in Schedule e 4 23(a) ) with respect to cable services; (4) have made payment to Seller for Seller's full cable television installation fee, if applicable, if they became subscribers after the date of this Agreement; (5) have paid Seller in response to a statement received by mail at least one (1) full monthly payment for basic cable television services in accordance with Seller's regular monthly billing cycle at or above Seller's standard basic rate (subject to adjustments for senior citizens as set forth in Schedule q 23(al), (B) the quotient obtained by dividing: the aggregate of the gross monthly billings for basic service for the subject month (excluding income from installation, connection, relocation and disconnection fees) of the System to bulk accounts by the full monthly rate for basic subscriber service to the System, and (C) the quotient obtained by dividing: the sum of revenue from all single household or commercial current, first outlet subscribers to basic service of the Systems who are paying less than the standard rate per month for such service by the full monthly rate for basic subscriber service to the System. (iii) For purposes hereof with respect to all accounts receivable and the computation of the number of Basic Subscribers, (A) Seller and Buyer shall credit only actual customer payments received from customers in good faith and shall treat all payments received, unless otherwise specifically contested, as applicable to the earliest period for which any account is due and payable from the patty malting the payment, (B) any Basic Subscriber added after the date of this Agreement must pay installation fees, if applicable, but present Basic Subscribers need not have paid such fees, and may have paid for only television services. (d) Adiustments to Purchase Price for MDU Aareements. Adjustments to the Base Purchase Price with respect to the MDU Agreements (as defined-below in Section 6.07) will be calculated as follows: (t) The Base Purchase Price shall be decreased dollar for dollar by the amount that the Future MDU payments (as defined in Section 6.07) exceeds $250,000, as adjusted pursuant to Subsection (iii) below (as adjusted, the "Advance Threshold "); (ii) The Base Purchase price will be increased dollar for dollar by the amount of the Advance MDU Payments (as defined in Section 6.07) up to a maximum upward adjustment of $250,000; (iii) The Advance Threshold will decrease dollar for dollar with each increase to the Base Purchase Price pursuant to Subsection (ii) above; Viva. CSSM P=ha Agrm mt 1'464057.5 3 (iv) Notwithstanding the foregoing, in no event shall Buyer be responsible under this Section 2.01(d) for adjustments to the Base Purchase Price or payments to Seller or any third party which exceed $250,000. (e) P aration of Pre- Closing Estimated Purchase Price Certificate. At least four (4) days before the Closing Date. Seller will famish to Buyer a certificate (the "Estimated Purchase Price Certificate ") in the form of Exhibit 1.05 hereto, setting forth (i) estimated adjustments to the Base Purchase Price as contemplated by Sections 2.01(b), (c) and (d), and (ii) the estimated resulting Purchase Price. (f) Post- Closing Adiustments. If some or all of the adjustments to the Base Purchase Price cannot reasonably be determined on the Closing Date, such adjustments will be made within 120 days thereafter and, if agreement cannot be reached as to such adjustment within _ the 120 day period, at the request of either party the matter will be submitted to two accountants, one selected by the Buyer and one selected by the Seller, for resolution in accordance with generally accepted accounting principles and with this Subsection. If such accountants cannot agree on any adjustment, the matter shall be referred for final and binding determination to a third accounting firm (which shall be a so- called 'Big- Five" accounting firm) selected by such accountants. Section 2.02. Pa ent. The Purchase Price shall be paid as follows: (a) Execution of Agreement. Upon the execution of this Agreement, $850,000 (the "D osit ") shall be delivered by Buyer to the Escrow Agent, to be held in accordance with the terms of Article 12; and (b) Closine. At the Closing, Buver shall pay to Seller an amount equal to the Purchase Price less the amount of the Deposit, by one or more bank or cashier's checks or by wire transfer of immediately available funds. After the Closing, the Deposit shall then be referred to as the "Holdback ". (c) At such time as the final Purchase Price is finally determined in accordance with and pursuant to Section 2.01(f) above, either (i) Buyer shall pay Seller an aggregate amount equal to the final Purchase Price less the amount paid at Closing under Section 2.02 or (ii) Seller shall pay Buyer an aggregate amount equal to the excess of the amount paid at Closing under Section 2.02 over the final Purchase Price. Section 2.03. Assam ption of Liabilities. At the Closing, Buyer shall assume and agree to pay when due, perform and discharge in accordance with the terms thereof, and indemnify and hold Seller harmless from all liabilities and obligations of Seller arising from and after the Closing, that are reflected in Schedule 2.03 hereof (the "Assumed Liabilities "). Except with respect to the Assumed Liabilities, it is agreed that Buyer shall not assume and shall not in any way be responsible for, any of the debts, liabilities or obligations of Seller. Without limiting the generality of the foregoing, Buyer shall have no liability for the following which shall not be Viso. CSSM Pwdu AFm t 1%464057.5 4 included in Assumed Liabilities: (a) the outstanding amount of all principal, interest, fees and expenses in respect of borrowed money, canital leases and installment purchases, (b) obligations relating to taxes, including but not limited to, taxes owed by Seller associated with the Closing, (c) liabilities to any officer or director of Seller, or any relative or affiliate of such person, or (d) obligations with respect to any pension, profit sharing, retirement, employee benefit or similar plan, benefit or arrangement. Article 3. Allocation of Purchase Price. The total amount of the Purchase Price, including the liabilities assumed by Buyer Pursuant to Section 2.03, shall be allocated among the Purchased Assets on the following basis: Asset Allocation Trunk & Distribution System $2,100,000 Conveners 1,000,000 Head End Equipment 510,000 Trucks & Autos 50,000 Furniture & Fixtures 10,000 Inventory 50,000 Land (Head End Site)* 100,000* Covenant Not to Compete 10,000 Franchise Rights and Agreements 13 170000 Total Purchase Price 17,000,000 *See Section 7.016) regarding transfer of the land It is agreed by and between the parties that such allocation to each item of the Purchased Assets as set forth herein was arrived at by arm's - length negotiation and in the judgment of the parties properly reflects the fair market value of the Purchased Assets transferred pursuant to this Agreement. It is agreed that the allocation set forth above will be binding on both parties for Federal and state income tax purposes in connection with the purchase and sale of the Purchased Assets, and will be consistently reflected by the parties in their tax returns. Article 4. Representations and Warranties of Seller. Seller represents and warrants to Buyer that each of the statements contained in this Article 4 (including the Schedules hereto) is true and correct as of the date hereof and will be true and correct at and as of the Closing (except where another date or period of time is expressly mentioned herein): Section 4.01. Organization, Power and Standine. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida with all requisite Via .CS&'MP=hMA9a t 1464057.5 5 power and authority to own its properties and engage in the business in which it is currently engaged, including owning and operating the System (the 'Business "). Section 4.02. Subsidiaries and Interest in Other Entities. Seller has no subsidiaries and does not, directly or indirectly, own or have the right to acquire any equity interest in any other corporation, partnership, joint venture or other business organization involved in the cable television or any related business. Seller has not, other than in the ordinary and usual course of business, made any material investment in, loan to, or material advance of cash or other extension of credit to, any company, entity or individual (other than employees of Seller). Section 4.03. Qualification in Foreim Jurisdictions. Seller's qualification to do business in any jurisdiction other than Florida is not required in order to operate the System. Section 4.04. Power and Authority Relative to Sale of Purchased Assets, Seller has full corporate power and authority and has taken all required action necessary to permit it to execute and deliver this Agreement and to perform all of the obligations contained herein (including the assignment, transfer and conveyance of all of the Purchased Assets), and, subject to obtaining the consents specified on Schedule 4.14 to execute, deliver and perform all of the obligations contained in all other instruments or agreements required hereby or incident or collateral hereto, and none of such actions conflicts with or violates any provision of law or of the Certificate of Incorporation or By -laws of the Seller or violates or constitutes a default under or will result in any breach of any agreement, indenture, deed of trust, mortgage, instrument, lease, order, judgment, writ, injunction, decree, license, permit, rule, or regulation of any court or governmental or regulatory body applicable to the Seller or by which Seller or its assets may be bound, or will result in the imposition of any lien, encumbrance, charge or claim upon any of the Purchased Assets. Section 4.05. Valid and Binding Obligation. This Agreement constitutes, and each other instrument or agreement to be executed and delivered by Seller in accordance herewith will constitute, the valid and legally binding obligation of Seller enforceable against Seller in accordance with their respective terms, subject to applicable bankruptcy, insolvency and other general laws affecting the rights and remedies of creditors and except that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. Section 4.06. Financial Statements. Schedule 4.06 hereto includes an unaudited statement of operations of the Business for the year ended December 31. 1998 (the "Financial Statement "). Such Financial Statement is complete and accurate and fairly present the financial condition of the Business at the dates indicated and the results of its operations for the periods indicated and were prepared in accordance with the books and records of Seller and in conformity with generally accepted accounting principles consistently applied. Section 4.07. Conduct of Business, of Material Adverse Changes. Except as set forth in Schedule 4.07 since the December 31, 1998, Seller has conducted its business only in Viso - CSSM P=hM Agrecne,t 11464057.5 6 the usual and ordinary course, and there has been (i) no sale, transfer or other disposition of any of its material assets (other than the Excluded Assets); (ii) no encumbrances placed upon its assets (other than the Excluded Assets); (iii) no increase in commission rates payable by Seller to any person selling cable services for the Business; (iv) no other event or condition which materially and adversely affects or which may materially and adversely affect the business, condition (financial or otherwise), prospects, assets or liabilities of Seller; and (v) except as set forth in Schedule 4.07 no special marketing program or special inducement to existing or prospective Subscribers, including but not limited to free installation, free services, premiums or gifts. Section 4.08. Status of Purchased Assets• Assets Complete. Seller is the sole owner of the Purchased Assets and has and will convey to Buyer at the Closing good and marketable title and all proprietary rights and interests in and to the Purchased Assets, free and clear of any and all mortgages, pledges, liens, security interests, encumbrances or other restrictions, including claims for Federal, state or local sales, use, income, property or other taxes. Seller may pay and discharge any liens and encumbrances not provided for out of monies paid by Buyer at the Closing. The Purchased Assets include all assets currently used in the Business or necessary for the operation of the Business (including reasonable levels of inventory) and subscriber accounts receivable paid in the ordinary course of business. The Purchased Assets include all assets and properties necessary or desirable to operate the System, and all such assets and properties are in good working order and repair. Section 4.09. Real Property. (a) Schedule 4.09 hereto sets forth a list and description of (i) all real property being transferred to Buyer (the "Owned Real Property ") and (ii) each lease, easement, right -of -way, agreement or arrangement under which Seller is a holder, lessee or other user of any real property (the "Leased Real Property "). (b) Seller does not own any real property used in connection with the System (see Section 7.010) regarding sale of head -end real estate property from Land and Property Management Corp. to Buyer). (c) At the Closing, Seller shall terminate its leasehold interest with Land and Property Management Corp. with respect to the head -end real estate property. (d) Seller enjoys peaceful and undisturbed possession under all such easements, rights -of -way, agreements and arrangements, and Seller has no knowledge of any circumstance that would hinder its right to quiet enjoyment of such property for the full term of each such easement, right -of -way, agreement or arrangement. All of such leases, easements, rights -of -way, agreements and arrangements are valid, subsisting and in full force and effect. (e) Except as set forth in Schedule 4.09 the leasehold or other interest of Seller in such real property is not subject or subordinate to any security interest, lien or mortgage except with respect to liens for taxes not yet due and payable. The use of Seller's premises by Seller Vm -CSSM Puchm AVro mt 1 ,' `461057.5 and the occupancy and operation thereof by Seller are in compliance with all applicable Federal, state and local laws, ordinances and regulations, including without limitation Federal and state safety, health, environmental protection and hazardous waste laws, regulations, standards and ordinances. Such real property, whether leased or otherwise held, includes all real property necessary or advisable for the operation of the System. Section 4.10. Tax Returns and Payments: Federal Taxpayer Identification Number. Seller has correctly prepared and filed when due all tax returns required by law to be filed and has paid when due all taxes, assessments and other governmental charges levied upon any of its properties, assets or income, other than those not yet delinquent. Seller has not executed any waiver that would have the effect of extending any applicable statute of limitations in respect of any of its tax liabilities. The charges, accruals and reserves on the books of Seller in respect of taxes for all fiscal periods are adequate and there is no unpaid assessment or any basis for the assessment of any material amount of additional taxes for any fiscal period. Neither the Internal Revenue - Service nor any other taxing authority is now asserting or threatening to assert against Seller any deficiency or claim for additional taxes or interest thereon or penalties in connection therewith. Seller's federal taxpayer identification number is 59- 2775496. Section 4.11. Litigation. Except as set forth on Schedule 4.11, there is no litigation, proceeding or investigation pending or threatened (or any basis therefor) against Seller or affecting any of its properties, rights or assets or against any officer or employee which relates to the affairs of Seller or the right of any officer or employee to participate in the business of Seller or which might result in any material adverse change in the business or condition (financial or otherwise) of Seller or which relates to the Purchased Assets or the transactions contemplated by this Agreement, in any court or before any authority or governmental entity, including without limitation actions, proceedings or investigations with respect to any alleged violation by Seller of any law, statute, ordinance, regulation, order, policy or guideline of any governmental entity. Section 4.12. Information Relating to Material Contracts and Commitments. Schedule 4.12 is a complete and accurate list and compilation of all of the following whether written or unwritten: (a) contracts with respect to which Seller has any liability or obligation involving more than $10,000, contingent or otherwise, or which place any material limitation on the method of conducting or scope of the business of Seller (other than items listed on Schedules 4.09 4.18, 4.19 or 4_20); (b) contracts with officers or directors of Seller or the spouses or relatives thereof; (c) contracts between Seller or any officer, director or employee of Seller and any other person or entity which contracts purport to restrict the business activities of Seller or use of information in its businesses; Viso- CSSMPur h=Aq==t 1\464057.5 8 (d) pole attachment agreements; (e) retransmission consent agreements and must -carry elections; (f) bulk and commercial agreements; (g) MDU Agreements; (h) material contracts required for the continued conduct of the Business; and (i) any other material contracts, leases of personal property, instruments, commitments, plans or arrangements (other than items listed on Schedules 4.09 4.18, 4.19 or 4.20). - All the foregoing, together with any other contracts, leases or other agreements referred to herein or in any Schedule hereto, are collectively referred to herein as "Material Contracts ". Seller has furnished to Buyer true and correct copies of all Material Contracts as currently in effect, and will fiu-nish any further information that Buyer may reasonably request in connection therewith. Neither Seller nor any third parry is in default under any material provision of any Material Contract. Each Material Contract is valid, binding and in full force and effect, and to Seller's knowledge there is no event which has occurred or exists, which constitutes or which, with notice, the happening of any event and/or the passage of time, would constitute a material default or breach under any such contract by Seller, or to Seller's knowledge, any other party thereto, or would cause the acceleration of any obligation of any party thereto or give rise to any right of termination or cancellation thereof. Seller has no reasonable basis to believe that the parties to any Material Contract will not fulfill their obligations thereunder in all material respects. Section 4.13. Compliance with Law. Seller is not in material violation of any Federal, state or local statute, ordinance, judgment, decree, order or governmental rule, regulation, policy or guideline applicable to Seller in a manner which could materially and adversely affect its condition (financial or otherwise) with respect to the Purchased Assets or the transactions contemplated by this Agreement. Section 4.14. Required Consents. Except for the consents specified on Schedule 4.14 no consent, order, approval, authorization, declaration or filing, including, without limitation, any consent, approval or authorization of or declaration or filing with any governmental authority, is required on the part of Seller for or in connection with the execution and delivery of this Agreement and/or the sale of the Purchased Assets pursuant hereto. Seller has no knowledge of any facts relating to Seller which could reasonably be expected to form the basis for: (i) a denial of the assignment or transfer of any required consent or approval (or the reissuance thereof, as Vim • CSSM P=hn Age t 9 h4W5zs applicable) necessary for the operation of the System, or (ii) the rejection of Buyer to perform in the stead of Seller as obligor in respect of any of the Assumed Liabilities . Section 4.15. Insurance. Seller is insured under the insurance policies listed in Schedule 4.15, all of which are valid and in full force. Except as otherwise indicated on Schedule 4.15, all liability insurance policies are on an "occurrence" basis. All premiums due to date under such policies have been paid, and no default exists thereunder. The insurance listed in Schedule 4.15 is in amounts adequate to cover losses on physical assets, and in amounts sufficient to avoid the operation of any coinsurance provision. Section 4.16. Collectibility of Accounts Receivable. All of the accounts receivable of Seller as of the Closing which are included in the calculation of Adjustment Assets under Section 2.01(b) hereof will be valid and enforceable claims, and arose out of bona fide transactions in the ordinary course. _ Section 4.17. Transactions with Interested Persons. No officer, director or supervisory employee, nor any of their respective spouses or children, owns directly or indirectly any material interest in, or serves as an officer or director of, any customer, competitor or supplier of Seller; rovid however, that ownership of a less than 1% interest in a publicly held corporation shall not be deemed to be a material interest from the purposes of this Section. Section 4.18. Franchises. Licenses and Permits. Schedule 4.18 hereto sets forth (a) a complete and accurate list of all Franchises, licenses, permits, consents, approvals, authorizations, qualifications, and orders of governmental authorities held by Seller, which are in effect and which in any way relate to the Business (collectively, the "Authorizations "); (b) all fees and other amounts payable to any municipality or other franchising authority by Seller under the Franchises, in connection with the operation of the System; and (c) the expiration date of all Franchises, licenses and permits. The Authorizations constitute all Franchises, licenses, permits, consents, approvals and authorizations from the Federal Communications Commission ( "FCC "), the Federal Aviation Administration ( "FAA "), the State of Florida, municipalities and other governmental authorities required for the operation of the System and the conduct of the Business relating thereto, and, to Seller's knowledge, no suspension or cancellation of any Authorization is threatened. All of the Authorizations are in full force and effect and valid and enforceable in accordance with their terms. Each Authorization was properly granted, is in accordance with all state and local laws, and there exists no fact or circumstance which constitutes, or with the passage of time or the giving of notice or both would constitute, a default under any Authorization or permit any municipality or other authority to cancel or terminate any Authorization. Seller has made application for renewal under all applicable laws, including Federal, state and local law, for all Franchises which have remaining terms of less than three (3) years and a valid request for renewal has been timely filed under Section 626(a) of the Communications Act with the proper franchising authority with respect to each Franchise that has expired, or will expire within thirty months after the date of this Agreement. Seller provides service under the Authorizations in accordance with all Federal, state and local laws. v;u,.CSSMPwchaz Agf a t 10 I� "57.5 Section 4.19. Emnlovees and Compensation. (a) Seller is in material compliance with all applicable Federal, state and local laws and regulations respecting employment and employment practices, and terms and conditions of employment and wages and hours; none of Seller's employees are represented by any union; and there is no labor strike, dispute, slowdown, stoppage, organizational effort, dispute or proceeding by or with any employee or former employee of Seller or any labor union pending or threatened against Seller. (b) There are no employment or consulting contracts or arrangements (other than those terminable at will) with any employees or consultants of or associated with Seller other than as described on Schedule 4.19. Schedule 4.19 also sets forth a true and complete list of all employees of and consultants to Seller showing date of hire, hourly rate or salary or other basis of compensation, each bonus and increase granted since January 1, 1998, and job function of _ salaried employees. Section 4.20. ERISA and Emnlovee Benefits. (a) Schedule 4.20 hereto sets forth all material employee benefit plans, agreements and arrangements of any type (including, but not limited to, plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ( "ERISA ")) maintained by Seller for the benefit of employees of Seller, or with respect to which Seller has a material liability (including, but not limited to, liabilities arising from affiliation under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code ") or Section 4001 of ERISA) (the 'Benefit Plans "). (b) With respect to each Benefit Plan, Seller has made available to Buyer true and complete copies of: (i) any and all plan texts and agreements; (ii) any and all summary plan descriptions and material modifications thereto; (iii) the two most recent annual reports, if applicable; (iv) the most recent annual and periodic accounting of plan assets, if applicable; and (v) the most recent determination letter received from the Internal Revenue Service (the "Service "), if applicable. (c) With respect to each Benefit Plan: (i) such plan has been administered and enforced in accordance with its terms and all applicable laws in all material respects; (ii) no breach of fiduciary duty has occurred with respect to which Seller, any subsidiary or any Benefit Plan may be liable or otherwise damaged in any material respect; (iii) no material disputes are pending or threatened; and (iv) no "prohibited transaction" (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has occurred with respect to which Seller, any subsidiary or any Benefit Plan may be liable or otherwise damaged in any material respect. (d) No Benefit Plan is subject to Title IV of ERISA. vin,.CSSMPuNu ngrw 11 i\464oszs Section 4.21. Compliance of Systems. There are not more than 155 miles in the System of fully constructed distribution plant which are served by the existing headend of the System. The System performs at least to the minimum standards required by the rules and regulations of the FCC. The System was constructed and installed, and is currently operated and maintained, in accordance with the terms and conditions of the Authorizations and engineering and other standards generally accepted in the cable television industry. All poles to which Seller has attached distribution plant of the System are properly permitted and Seller has duly complied in all material respects with the terms and conditions of its pole attachment agreements. No pending pole "change outs" or other work to be done and/or expense will be incurred by Buyer with respect to pole attachments. The number of channels currently provided and the number of channels the System is capable of providing, and the MHz which the System can transmit and which meet FCC requirements are listed on Schedule 4.21. Section 4.22. Cable Compliance. (a) No Violation of FCC Requirements. The System is in material compliance with the Communications Act of 1934, as amended, including the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection Act of 1992 (collectively, the "Communications Act "), and with the Franchises. Seller has submitted to the FCC all filings, including, but not limited to, cable television registration statements, current annual reports, and aeronautical frequency usage notices, that are required under the rules and regulations of the FCC and has provided to Buyer all material notices to subscribers required under the Communications Act and the FCC's rules and regulations, including privacy, equipment compatibility, and complaint resolution notices; the operation of the System has been and is in material compliance with the rules and regulations of the FCC, and any other applicable rules and regulations, including, but not limited to, rules and regulations of the FAA. Seller is, and since January 1, 1992 has been, with respect to the System, certified as in compliance with the FCC's equal employment opportunity rules. The System is in material compliance with all signal leakage and proof -of- performance criteria prescribed by the FCC. The System is in material compliance with the must -carry and retransmission consent provisions of the Communications Act and the FCC rules, regulations and policies promulgated thereunder. Except asset. forth in Schedule 4.11, no broadcast television station has been denied a request for carriage or channel placement on the System. Seller has supplied Buyer with technical information relating to those aspects of the System over which the FAA may have jurisdiction. The System is a "Small System" as defined by the Rules and Regulations of Part 76.901(c) of Title 47 of the Code of Federal Regulations (CFR) promulgated by the FCC. (b) Copyright. Seller has deposited with the United States Copyright Office (the " Copyright Office ") all statements of account and other documents and instruments, and paid all royalties, supplemental royalties, fees and other sums to the Copyright Office required under the Copyright Act of 1976, as amended (the "Copyright Act "), and the rules, regulations and policies of the Copyright Office promulgated thereunder, with respect to the business and operations of the System as are required to obtain, hold and maintain the compulsory license for cable television systems prescribed in Section 111 of the Copyright Act. To Seller's knowledge, there Vian. CSSM Puchm Aqe t 12 I\A6A057.5 is no inquiry, claim, action or demand pending before the Copyright Office or from any other party that questions the copyright filings or payments made by Seller with respect to the System. (c) No Undue Influence. Seller has not engaged in, and has no knowledge of any other person who has engaged in, any impropriety, undue influence or unlawful activity on behalf of Seller, in connection with obtaining any of the Franchises or approval for the transfer thereof. (d) No Violation of Legal Requirements. The operation of the System as currently conducted does not violate or infringe in any material respect any applicable statute, ordinance, code or other law, rule, regulation, order, technical or other standard, requirement or procedure enacted, adopted, promulgated or applied by any governmental authority, including any applicable order, decree or judgment that may have been handed down, adopted or imposed by any governmental authority. Seller is permitted under all applicable Franchises, Licenses and FCC rules, regulations and orders to distribute the transmissions of video programming or other information that Seller makes available to subscribers of the System and to utilize all carrier frequencies generated by the operations of the System, and is licensed in all material respects to operate all the facilities required by law to be licensed. (e) Television Stations. Seller has included in Schedule 4.22: (i) a list of television stations whose area of dominant influence extends to all, or any portion of, the geographic areas presently served by the System or to which Seller is entitled to extend services under the Franchises which are not carried on the System and those stations from whom retransmission consents have not been obtained; and (ii) a list of local commercial television and noncommercial television broadcast station which Seller and/or its predecessors notified, and each such station which Seller and/or its predecessors was legally entitled to notify that such station did not legally qualify for mandatory carriage under the FCC's "must carry" rules due to signal level, copyright or other legal exemptions, and specifying for each such station the reason why such station was not entitled to mandatory carriage. (f) Overbuild. Other than as set forth in Schedule 4.22, as of the date hereof, to Seller's knowledge, there is (i) no franchise or other application pending with local franchising authorities which relate to the operation of a cable television system within the geographic areas comprising the Franchises, (ii) no party providing cable television service within the geographic areas comprising the Franchises under a franchise granted by any local franchising authority, and (iii) no party providing cable television service within the geographic areas comprising the Franchises who has obtained a franchise which permits the construction, operation and maintenance of a cable television system within the geographic areas comprising the Franchises or any part thereof. To Seller's knowledge, except and only to the extent set forth in Schedule 422 within the past five years no operator of a cable television system other than Seller has built, updated or otherwise constructed or operated any part of any cable television system within the Franchise areas served by the System operated by Seller. Vim - cssn+e=hmAgr nt 13 1\464057.5 Section 4.23. Subscribers. Subscription Service and Certain Additional Information. (a) Subscription Information. Schedule 4.23(a) sets forth separately for each area covered by a Franchise, (i) the types of subscription services (basic, pay and all other) offered by the System; (ii) the rates, charges and deposits (including all periodic rates, installation, reconnection and other charges) which Seller is currently charging or requiring for such service in the System, and all changes in rates since January 1, 1993, including, without limitation, a description of basic and operational or tier services available; (iii) the number of Basic Subscribers to the System; (iv) the number of pay service units purchased by subscribers to the System; (v) the number of housing units passed by the System, (vi) the number of housing units in the areas covered by the Franchises; (vii) the number of miles of activated plant contained in the System; (viii) a list of all FCC restricted frequencies used by the System; (ix) any planned rate increases, or channel additions or reconfigurations; (x) each must -carry election or retransmission consent agreement pursuant to which any broadcast station is carried by the System; (xi) a list of the stations and signals carried by the System and the channel position of such signal and station; (xii) the number of attachments on poles owned by utilities and other pole lessons; (xiii) number of converters in service and associated rates; (xiv) all programming and channels offered in the System; (xv) all significant acquisitions of subscribers from bulk sellers since January 1, 1993 and (xvi) all discounts of every kind (whether or not standard or offered in the ordinary course of business) from the standard rates and. charges for the Franchises as of the date of this Agreement, including each courtesy and discount account existing as of the date of this Agreement and reasons for such discounts. (b) FCC Matters. Schedule 4.23(b) contains a true and complete list of each community to which the System provides cable television service registered with the FCC and its corresponding FCC community unit identification number. Except as specified on Schedule 4.23 Seller has not received notice from any community or other political subdivision served by the System that it has become certified by the FCC for the purpose of regulating the System's basic rates, nor to Seller's knowledge has any person or entity filed a complaint with the FCC, which has not been dismissed, with respect to the programming service rates of the System. (c) Commitments. Except as set forth on Schedule 4.23(c), there are no unfulfilled binding commitments for capital improvements that Seller is obligated to make in connection with the System. There are no obligations or liabilities to subscribers or to other users of Seller's services that are material to the business of the System, except: (i) with respect to deposits made by such subscribers or such other users that are to be adjusted pursuant to Section 2.01(c) and (ii) the obligation to supply services to subscribers of the System in the ordinary course of business. Except as set forth on Schedule 4.23(c). Seller has no free service liability with respect to any subscribers of the Systems. (d) Customers. The System has at least 23,390 Homes Passed. For purposes of the foregoing, "Homes Passed" means each single family residence or dwelling unit within a residential building containing multiple dwelling units that is located within 150 feet of the activated trunk or feeder cable of the System. visa. CSSM Pwchm Afire t 14 IwbW57.5 Section 4.24. Intellectual Property. Seller has no (a) trademarks, service marks, trade names and copyrights for which registrations have been issued to Seller or applications for registrations have been made by Seller, (b) patents and applications therefor owned by Seller, (c) registered, assumed or fictitious names under which Seller is doing business and (d) licenses, agreements or other arrangements under which Seller has the right to use any trademark, service mark, trade name, copyright or patent, other than such as are included in programming agreements. No proceedings have been instituted or are pending or, to the knowledge of Seller, are threatened which challenge the validity of the ownership or use by Seller of any trademarks, trade names, copyrights or patents in the Business. Seller has not licensed anyone to use any trademarks, trade names, copyrights, patents or any other technical know -how or other proprietary rights of Seller, and Seller has no knowledge of the infringement by any person of any trademarks or trade names or copyrights or patents owned or used by it. Seller owns, or has the perpetual, royalty-free right to use, all trademarks, service marks, trade names, copyrights, patents, inventions, processes and other proprietary rights or confidential information used in the _ operation of the Business and has not received any notice of conflict with the asserted rights of others. Section 4.25. Brokers. Seller has retained Daniels and Associates (the 'Broker ") to act as a broker on its behalf in connection with this Agreement and the transactions contemplated hereby. All obligations or liabilities for the Broker's fee or commission or other like payment in connection with this Agreement or the transactions contemplated hereby will be home solely by Seller. Seller agrees to indemnify and hold Buyer harmless against any claim of any person for a broker's or finder's fee or similar compensation relating to this Agreement or the transactions contemplated hereby based on an asserted agreement with such party. Except as aforesaid, Seller has not dealt with any broker, finder or similar agent with respect to this Agreement or the transactions contemplated hereby. Section 4.26. No Undisclosed Liabilities. Seller is not subject to any liability, whether absolute, contingent, accrued or otherwise which were incurred by Seller after December 31, 1998. Section 4.27. Compliance with Environmental Laws. Except as set forth on Schedule (a) Without inquiries as to periods of time prior to Seller's ownership of, or commencement of any leasehold interest in, any particular asset, all of the current operations of the Business are in compliance with all Environmental Laws (as hereinafter defined), except where any failure to comply would not have a material adverse effect on the operation of the Business, taken as a whole. Seller has obtained all permits, licenses and authorizations required under applicable Environmental Laws, and the operation of the Business is in compliance with the terms and conditions of any required permits, licenses and authorizations, in each case except where any failure would not have a material adverse effect on the operation of the Business, taken as a whole. Vista - CSSM P rchm Ag�t 1 S 1` W57.5 (b) The operation of the Business does not involve the use, handling, manufacture, treatment, processing, storage, generation, release, discharge dumping or disposal of any Hazardous Substances (as hereinafter defined), except in compliance in all material respects with all applicable Environmental Laws, in each case except where any failure to comply would not have a material adverse effect on the operation of the Business, taken as a whole. (c) There is no pending or, to the knowledge of Seller, threatened Environmental Claim (as hereinafter defined) against Seller which relates to the operation of the Business. (d) There has been no release by Seller of any Hazardous Substances at, on or under any property owned or leased by it which would have a material adverse effect on the operation of the Business, taken as a whole. As used herein, the following terms shall have the meanings indicated below: _ "Environmental Laws" shall mean all federal, state and local statutes, regulations, rules, codes and ordinances relating to pollution, Hazardous Substances or the discharge of materials into the Environment. "Environment" shall mean soil, surface waters, groundwaters, land, surface or subsurface strata and ambient air. "Hazardous Substances" shall mean any substance which is a "hazardous substance ", "hazardous waste ", "toxic substance ", "toxic waste ", "pollutant ", "contaminant" or words of similar import under any Environmental Law, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 et se g.), the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), and the Clean Air Act (42 U.S.C. §7401 et sea.), and including without limitation, which contains polychlorinated biphenyl or gasoline, diesel fuel or other petroleum hydrocarbons or volatile organic compounds. "Environmental Claim" shall mean any litigation, claim, proceeding, order, directive, summons, complaint or citation, from any governmental authority or any third person relating to Environmental Laws or Hazardous Substances. Section 4.28. Year 2000. Seller has (i) initiated a review and assessment of all areas within the Business that would reasonably be expected to be adversely affected by the "Year 2000 Problem" (that is, the risk that computer applications used by Seller may be unable to recognize and perform properly date - sensitive functions involving certain dates prior to and any date after December 31, 1999), (ii) developed a plan for addressing the Year 2000 Problem on a timely basis, and (iii) to date, implemented that new plan. Section 4.29. Disclosure. Neither the representations and warranties of Seller contained in this Azreement nor the financial or other information included in the schedules hereto, nor any V'=-CSSM P=hM Ag�t 16 1`,61057.5 other document, certificate or written statement furnished to Buyer by Seller or, to the extent it supplied the underlying information, furnished to Buver by the Broker in connection herewith, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein complete and not misleading as of the dates thereof in light of the circumstances in which they were made. Article 5. Renresentations and Warranties of Buyer. Buyer hereby represents and warrants to Seller that each of the statements contained in this Article 5 is true and correct as of the date hereof and will be true and correct at and as of the Closing. Section 5.01. Organization. Power and Standing. Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware with all requisite power and authority to own its properties and to carry on its business as such business is now conducted and presently proposed to be conducted. Buyer, or.any affiliate to - which it assigns its rights and obligations hereunder, is now or will be at the Closing qualified to do business as a foreign corporation in the State of Florida. Section 5.02. Power and Authority Relative to Transaction. Buyer has full power and authority and has taken all required action necessary to permit it to execute and deliver and to carry out the terms of this Agreement and all other documents or instruments required hereby and none of such actions will violate any provision of law or of the Certificate of Formation, as amended, or operating agreement of Buyer or will result in any breach of any agreement, mortgage, instrument, order or judgment to which Buyer is a party or by which its assets may be bound. Section 5.03. Valid and Binding Obligation. This Agreement constitutes, and each other instrument or agreement to be executed and delivered by Buyer in accordance herewith will constitute the valid and legally binding obligation of Buyer, enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency and other general laws affecting the rights and remedies of creditors and except that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. Section 5.04. Required Consents. Except for consents required in connection with the transfer of the Franchises or FCC Licenses relating to the System from the Seller to Buyer, no consent, order, approval, authorization, declaration or filing, including, without limitation, any consent, approval or authorization of or declaration or filing with any governmental authority, is required on the part of Buyer for or in connection with the execution and delivery of this Agreement. Section 5.05. Brokers. Buyer has not dealt with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement. Buyer agrees to indemnify and hold Seller harmless against any claim of any person for a broker's or finder's fee or similar Visa.CSSMP=hm AVr a 17 IW6a057.5 compensation relating to this Agreement or the transactions contemplated hereby based on an asserted agreement with such party. Article 6. Covenants of Parties. Section 6.01. Access to Information. Seller shall permit Buver and its counsel, accountants and other representatives full access, upon reasonable notice, at reasonable times during normal business hours and in a manner which will not materially disrupt the business or personnel of Seller, throughout the period prior to the Closing, to all of the properties, books, contracts, commitments, records and personnel of Seller and shall furnish Buyer during such period all such information concerning the business affairs of Seller as Buyer or its counsel, accountants and other representatives may reasonably request. No investigation or findings of Buyer shall, however, affect the representations and warranties of Seller hereunder. Section 6.02. Conduct of Business. Between the date of this Agreement and the Closing, unless Buyer shall otherwise consent: (a) Required .Actions. Seller will do the following: (i) maintain its corporate existence; (ii) conduct its business only in the ordinary course; (iii) preserve its business organizations intact, retain its permits, licenses, and the Authorizations, and preserve the existing contracts and goodwill of its subscribers, suppliers and others having business relations with it; (iv) maintain at all times all insurance of the kinds, in the amounts and with the insurers as is presently in effect or equivalent insurance; (v) keep in working condition and good order and repair all of the equipment, fixtures and other properties of Seller, normal wear and tear excepted; (vi) maintain its books, accounts and records in its usual, regular and ordinary manner and post all entries therein promptly in compliance with accepted practice and all applicable laws; (vii) pay and discharge when due all taxes, assessments and governmental charges imposed upon it or any of its properties, or upon the income or profit therefrom except to the extent that Seller may be contesting the same in good faith and by appropriate proceedings and appropriate reserves have been established therefor; Viso • CSSM PachM AUC=Mt 18 1%4WS7.5 (viii) operate in such a manner as to assure that the representations and warranties of Seller set forth in this Agreement will be true and correct as of the Closing Date; and (ix) meet its obligations under all material contracts, agreements, instruments and arrangements necessary or useful in connection with the Business. (b) Prohibited Actions. Seller will not do any of the following: (i) materially change its method of management or operations; (ii) terminate the services of any present employee, consultant or agent except for good cause shown; (iii) amend its Certificate of Incorporation or By -laws in a manner which could materially and adversely affect its properties, operations, condition or prospects, or the transactions contemplated herein; (iv) acquire or dispose of any properties or assets exceeding a value of $25,000; (v) subject any of its properties or assets to any mortgage, pledge, security interest or lien; (vi) modify, amend, cancel or terminate any existing agreement material to the Business; (vii) other than in the ordinary course of business and consistent with past practice increase the compensation paid or payable to any officer, director, employee, agent, representative or consultant of Seller or pay or agree to pay any bonus payment (other than bonus payments to which Seller is committed and which have been disclosed to Buyer); (viii) issue any press release or otherwise make any public statements with respect to this Agreement and the transactions contemplated hereby; (ix) take any other action which would materially adversely affect or detract from the value of the System or the Purchased Assets; (x) directly or indirectly offer, solicit offers for or take any other action, or permit holders of its securities to do any of the foregoing, with a view to the sale of all or any substantial part of the Purchased Assets or the securities of Seller; Vim -CSSM P=h% Agramt 19 CAW57.5 (xi) except as set forth in Schedule 4.07 engage in any special marketing program or offer any unusual or special inducements to existing or prospective Subscribers, including but not limited to free installation, free services, premiums or gifts; (xii) pay itself, directly or indirectly, or permit any of its officers, directors, agents, employees or affiliates to pay any of the Seller's accounts receivable from subscribers outstanding on the date hereof, or to reduce any such accounts receivable except as is consistent with Seller's past practice; and (xiii) except as set forth in Schedule 4.07 waive any installation fees or provide other inducements to acquire subscribers. Section 6.03. Consents and Approvals. (a) Seller and Buyer shall cooperate and use their best efforts to obtain all - governmental and regulatory approvals and actions necessary to consummate the transactions contemplated hereby which are required to be obtained by applicable law or regulations or otherwise. (b) If applicable, Buyer and Seller, as soon as practicable, but not later than 30 days, following the execution and delivery of this Agreement, shall file the required notification (the "HSR Report") with the Federal Trade Commission ( "FTC") and the Antitrust Division of the Department of Justice (the "Antitrust Division ") under the Hart- Scott- Rodino Anti-Trust Improvements Act of 1976, as amended (the "HSR Act "). Buyer and Seller shall comply fully with all applicable notification, reporting and other requirements of the HSR Act, and any similar requirements of any other jurisdiction. Seller and Buyer shall cooperate to prevent inconsistencies between their respective filings (including exchanging drafts thereof) and shall famish to each other such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or submissions under the HSR Act. Seller and Buyer shall coordinate the filing of the HSR Reports so as to present both HSR Reports to the FTC and the Antitrust Division at the time selected by the mutual agreement of Seller and Buyer. Seller and Buyer shall use commercially reasonable efforts to respond as promptly as reasonably practicable to any inquiries received from the FTC and sthe s Antitrust to all inquiries information or documentation and to respond as promptly Y practicable and requests received from any other Governmental Authority in connection with antitrust matters. Seller and Buyer shall use their respective commercially reasonable efforts to overcome any objections which may be raised by the FTC, the Antitrust Division or any other Governmental Authority having jurisdiction over antitrust matters. In the event that the consummation of the transactions contemplated hereby is challenged by the FTC or the Antitrust Division or any other Governmental Authority having jurisdiction over antitrust matters by an action to stay or enjoin such consummation, then Seller and Buyer (each, a "Side ") shall use their respective commercially reasonable efforts and shall cooperate with each other, as reasonably requested, but not beyond the Closing Date, to contest such action until such Side does not reasonably believe that there are reasonable grounds to contest such action, at which time such Side shall have the right to terminate VL.ft. cssm ?=h— AW�I 20 1\4W5zs this Agreement unless the other of such Sides, at its sole cost and expense, elects to contest such action, in which case the noncontesting Side shall cooperate with the contesting Side and assist the contesting Side, as reasonably requested, to contest such action until such time as any party terminates this Agreement under this Section or Section 13. In the event that such a stay or injunction is granted (preliminary or otherwise), then either Seller or Buyer may terminate this Agreement by prompt written notice to the other. If any other form of equitable relief affecting any parry is granted to the FTC, the Antitrust Division or other Governmental Authority having jurisdiction over antitrust matters, then such parry may terminate this Agreement by prompt written notice to the other party. Upon any termination pursuant to this Section 6.03(b) other than as a result of a breach of this Agreement, neither party shall have any further obligation or liability to the other party under this Agreement. To effectuate the intent of the foregoing provisions of this Section 6.03(b), the parties agree to exchange requested or required information in making the filings and in complying as above provided, and the parties agree to take all necessary steps to preserve the confidentiality of the information set forth in any filings including, without limitation, limiting - disclosure of exchaneed information to counsel for the nondisclosine parry. All actions required by Buyer and Seller under this Section 6.03(b) shall be at their own respective expenses, except that Buyer and Seller each shall pay one -half of the filing fee with respect to such HSR Act filing. (c) Seller will use reasonable best efforts to comply with this Section 6.03; provided, however, that "reasonable best efforts" for this purpose shall not require Seller to undertake extraordinary or unreasonable measures to obtain such approvals and consents, including without limitation, the initiation or prosecution of legal proceedings or the payment of fees or expenses in excess of customary filing and processing fees. Nothing herein shall require Buyer or Seller to agree to make any extraordinary payments or incur any additional extraordinary obligation as a condition to obtaining any such extension or approval for transfer. Section 6.04. Seller Confidentiality. Pending the Closing or any termination of this Agreement, Seller shall hold in confidence all knowledge and information of a secret or confidential nature with respect to Buyer and its affiliates, and Seller shall not, directly or indirectly, disclose, publish or make use of the same without the express written consent of Buyer. Notwithstanding the foregoing, the restriction on disclosure and use of such confidential or proprietary information shall not apply to information which (a) is lawfully and independently obtained by Seller from a third party without restriction as to disclosure or use by Seller or is disclosed or used by Seller only to the extent permitted by restrictions imposed by such third party, (b) was known by Seller prior to its disclosure by Buyer, (c) is in the public domain or enters into the public domain through no fault of Seller, or (d) is independently developed by Seller without reference to information provided by Buyer. If the Closing occurs, Seller shall hold in confidence all knowledge and information of a secret or confidential nature with respect to the Business and Seller shall not, directly or indirectly, disclose, publish or make use of the same without the express written consent of Buyer, except to the extent that such information shall have entered the public domain other than by breach of this Agreement by Seller, and except as necessary to file tax returns or other required reports with governmental agencies or as otherwise required by law. Vim. CSSM Pvchm Avm 21 IW64057.5 Section 6.05. Noncompetition. Seller covenants that it and any and all affiliates of Seller will not, directly or indirectly, for a period of five years after the Closing Date: (a) engage, or assist any other person or entity to engage, in the business of owning, operating or advising a cable television system in the municipalities now served by the System (the "Competitive Business "); or (b) seek to acquire or acquire an interest in any business (whether through stock or asset acquisition or otherwise, other than an acquisition of not more than 5% of the voting securities) which is engaged in some or all of the Competitive Business and that competes with the Business; or (c) solicit or endeavor to entice away from Buyer, any person who is, or was during the one year period prior to the Closing Date, employed by or associated with Seller or Buyer in the Business. Section 6.06. Iniunctive Relief; Limitation on Scone. Seller acknowledges that any breach or threatened breach of the provisions of Sections 6.04 or 6.05 of this Agreement may cause irreparable injury to Buyer for which an adequate monetary remedy, does not exist. _ Accordingly, in the event of any such breach or threatened breach, Buyer shall be entitled, in addition to the exercise of other remedies, to seek and (subject to court approval) obtain injunctive relief, without necessity of posting a bond, restraining Seller from committing such breach or threatened breach. Section 6.07. Multiple Dwelline Unit Agreements. (a) MDU Agreement Terms. Prior to the Closing, Seller shall negotiate and use its best efforts to obtain agreements for all multiple dwelling units ( "MDUs ") in the Franchise areas that have 150 units or greater and for at least 80% of those MDUs that have greater than fifty (50) units but less that 150 units. Each such agreement, as applicable, shall be in substantially the form set forth in Exhibit 6.07(a) and at a minimum meet the following criteria (such newly obtained qualifying agreements referred to collectively as the "MDU Agreements "): (i) have a term of at least ten years; (ii) if the applicable MDU is in area for which Seller has and is transferring to Buyer an exclusive Franchise, the related MDU Agreement shall provide for Seller's (and its successor's) exclusive cable television service rights; (iii) if the applicable MDU is in an area for which Seller has and is transferring to Buyer a non - exclusive Franchise, the related MDU Agreement shall provide for Seller's (and its successor's) non - exclusive cable television access rights; and (iv) if any MDU Agreement includes provisions for revenue sharing, the aggregate present value of such future payments under all of the MDU Agreements ( "Future MDU Payments ") for a period of five years from the Closing Date, based on the current revenue per Subscriber, shall not exceed 5250,000 except to the extent the Base Purchase Price is adjusted in accordance with Section 2.01(d) for such amounts by which the Future MDU Payments exceed $250,000. For purposes of this Agreement, present Vise- CSSMP=hsxAgrt mt 22 1`464057.5 value means the annual stream of such future payments discounted at an annual rate of 5%. (b) Advance MDU Payments. With Buyer's consent, Seller may agree to and make up front, one time advance payments (in the aggregate, the "Advance MDU Payments ") for such MDU Agreements; provided that the Base Purchase Price will be adjusted for such payments in accordance with Section 2.01(d). (c) MDU Agreements. Qualifying MDU Agreements as of the date of this Agreement are set forth on Schedule 6.07(c). After the date of this Agreement, Seller and Buyer will communicate periodically and, as new MDU Agreements are obtained, the parties shall amend Schedule 6.07(c) to reflect such new MDU Agreements. All MDU Agreements listed on Schedule 6.07(c) will be used to adjust the Base Purchase Price in accordance with Section 2.01(d). - Section 6.08. Representations and Warranties. Until the Closing Date, Buyer will not take any action that would cause any of the representations and warranties made by it in this Agreement not to be true and correct in all material respects on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date. Section 6.09. Efforts. Seller and Buyer will use all reasonable efforts to cause the conditions specified in Sections 7.01 and 7.02, respectively, to be satisfied as soon as practicable. Section 6.10. Buyer Confidentiality. If this Agreement is terminated, Buyer will cause to be delivered to Seller all documents, work papers and other material (and all copies thereof) obtained by Buyer from Seller, whether so obtained before or after the execution hereof, and Buyer will not use or disclose any information so obtained. Pending the Closing or any such termination, all such information will be kept confidential. Notwithstanding the foregoing, the restriction on disclosure and use of such confidential or proprietary information shall not apply to information which (a) is lawfully and independently obtained by Buyer from a third party without restriction as to disclosure or use by Buyer or is disclosed or used by Buyer only to the extent permitted by restrictions imposed by such third parry, (b) was known by Buyer prior to its disclosure by Seller, (c) is in the public domain or enters into the public domain through no fault of Buyer, or (d) is independently developed by Buyer without reference to information provided by Seller. Article 7. Conditions to Closing. Section 7.01. Conditions Precedent to Buyer's Obligations. The obligation of Buyer to consummate the transaction contemplated by this Agreement is expressly subject to the fulfillment or express written waiver of the following conditions on or prior to the Closing Date: vim. CSSM?=ha Agra=t 23 N64057.5 (a) Representations and Warranties True: Obligations Performed. Each of the representations and warranties contained in Article 4 shall be true and correct in all material respects at and as of the Closing; Seller shall have performed, on or before the date of the Closing, all obligations under this Agreement which by the terms hereof are to be performed by Seller on or before the date of the Closing; and Buyer shall have received a certificate signed by an officer of Seller to such effect, in such person's capacity of an officer of Seller. (b) Required Consents. All consents and waivers, including the consents required from all governmental agencies to Buyer's acquisition and operation of the System, in form and substance reasonably satisfactory to Buyer and its counsel, necessary to consummate the transactions contemplated hereby and for the transfer of the Purchased Assets shall have been obtained by Seller. Without limiting the generality of the foregoing, the Authorizations shall have been assigned to Buyer on terms which are not less favorable to Buyer than those currently enjoyed by Seller, as determined in Buyer's sole discretion. (c) Delivery of Other Instruments. Seller shall have delivered such other certificates, consents, instruments or agreements as are reasonably requested by Buyer or its counsel. (d) HSR Act. The waiting period under the HSR Act applicable to the transactions contemplated by this Agreement shall have expired or been terminated. (e) Legal Opinions from Counsel for Seller. Buyer shall have received the written opinion of Solove & Solove, P.A., counsel for the Seller, dated the Closing Date, in the form of Exhibit 7.01(e). (f) Compliance with Cumulative Leakage Index Reouirements. As of the Closing, the System will be in compliance with the Cumulative Leakage Index (CLI) requirements of the FCC and in particular shall have achieved a passing result under FCC Rule 76.611 as of the last reporting period prior to Closing. Seller shall have provided Buyer with such CLI measurements for the System, including underlying data, and shall have permitted Buyer to perform such tests and measurements as may be required to evidence such compliance to'the reasonable satisfaction of Buyer. (g) MDU Agreements. Seller shall have complied with the provisions set forth in Section 6.07 hereof. (h) Legal Opinion from Communications Counsel for Seller. Buyer shall have received the written opinion of James E. Meyers, Esq., communications counsel to Seller, dated the Closing Date, in the form of Exhibit 7.01(h) hereto. (i) Sublease. Seller shall have executed the Sublease on terms reasonably satisfactory to Buyer. Vista. CSSN Duch= AFe t .� 4 IW64017.1 (j) Purchase and Sale Agreement by an d between Buver and Land and Property Management Coro. Buyer shall have received an executed Purchase and Sale Agreement (the "Purchase and Sale Agreement "), a copy of which is made a part hereof as Exhibit 7.01(i), and all other documents required in connection therewith, in a form and substance reasonably acceptable to Buyer, and all covenants, agreements and conditions to the closing of the transactions contemplated by the Purchase and Sale Agreement shall have been fully performed and satisfied. The closing under the Purchase and Sale Agreement shall have occurred contemporaneously with the Closing. (k) Escrow Agreement. Seller, Buyer and the Escrow Agent shall have executed the Escrow Agreement. Section 7.02. Conditions Precedent to Seller's Obligations. The obligation of Seller to consummate the transactions contemplated by this Agreement is subject to the fulfillment of the - following conditions on or prior to the Closing Date: (a) Representations and Warranties True: Obligations Performed. Each of the representations of Buyer contained in Article 5 shall be true and correct in all material respects at and as of the Closing. Buyer shall have performed, on or before the date of Closing, all obligations under this Agreement which by the terms hereof are to be performed by Buyer on or before the date of Closing; and Seller shall have received a certificate signed by an officer of Buyer to such effect. (b) Legal Opinion from Counsel for Buyer. Seller shall have received the written opinion of Choate, Hall & Stewart, counsel for the Buyer, dated the Closing Date, in form of Exhibit 7.02(b) hereto. (c) Required Consents. All consents and waivers required to permit the valid consummation by Buyer of the transactions contemplated by this Agreement shall have been obtained. (d) HSR Act. The waiting period under the HSR Act applicable to the transactions contemplated by this Agreement shall have expired or been terminated. (e) Escrow Agreement. Seller, Buyer and the Escrow Agent shall have executed the Escrow Agreement. Article 8. Closing. Section 8.01. Date and Place of Closing. The consummation of the transactions contemplated hereby (the "Closing ") shall be held at 10:00 a.m. (Eastern Standard Time) at such place as the parties may agree, on the earlier to occur of (i) ten (10) days after satisfaction or waiver of the conditions to the Closing set forth in Sections 7.01 and 7.02 hereof and (ii) August 31, 1999 (the "Closing Date "), unless this Agreement is otherwise terminated pursuant to Section wm. cssat P„mnx AFB 25 IA64057.5 13.01 hereof; provided, however, that if the conditions set forth in Sections 7.01(d) and 7.02(d) are not satisfied, the Closing Date shall be extended until the conditions thereof are met or this Agreement is terminated pursuant to Section 6.03(b). Section 8.02. Deliveries at Closing by Seller. At the Closing, provided Buyer has fully performed its obligations hereunder, Seller shall deliver or cause to be delivered to Buyer the following: (a) bills of sale, assignments and other instruments of transfer for the Purchased Assets, in form and substance reasonably satisfactory to Buyer and its counsel and sufficient to convey to Buyer all of Seller's rights, title and interest in and to the Purchased Assets, including, where necessary, consents to assignment or transfer by interested third parties; (b) certified copies of resolutions duly adopted by the Board of Directors and shareholders of Seller approving and authorizing the transactions provided for in this Agreement, the execution hereof and the performance of all acts required herein, accompanied by an appropriate certificate of incumbency; and (c) full possession and enjoyment of all the Purchased Assets, including, without limitation: (i) copies of any and all books, papers, ledgers, documents and records relating to the Purchased Assets or to the Seller's services and products, documents evidencing all contract rights, licenses and subscriber contracts which may be reasonably requested by Buyer; and (ii) any and all consents of any person or entity, whether or not a party to this Agreement, which are necessary to effectuate the transfer of Purchased Assets. Section 8.03. Deliveries at Closing by Buyer. At the Closing, provided Seller has fully performed all of its obligations hereunder, to and at the Closing, Buyer shall deliver or cause to be delivered to Seller the following: (a) payment of the Purchase Price as provided in Section 2.02; (b) an assumption of such liabilities and obligations of Seller as are to be assumed by Buyer as provided in Section 2.03; and (c) certified copies of all actions duly adopted by Buyer approving and authorizing the transactions provided for in this Agreement, the execution hereof and the performance of all acts required herein, accompanied by an appropriate certificate of incumbency. Article 9. Post - Closing Matters. vim • CSSM P=hM Age t 26 1`464057.5 Section 9.01. Books and Records. After the Closing, Buyer's and Seller's duly authorized representatives shall be entitled at all reasonable times to have access to and to make copies of all such books and records relating to the operations which are the subject of this Agreement as are reasonably required to prepare the respective tax returns. If requested by Buyer prior to Closing or within twenty-four (24) months thereafter, Seller will provide to Buyer copies of Seller's financial statements for the three years prior to Closing and Seller will assist Buyer's auditors in their review of such financial statements. Section 9.02. Further Assurances. Following the Closing, Seller will execute and deliver to Buyer such documents and take such other actions as Buyer may reasonably request in order to consummate more effectively the transactions contemplated hereby and to vest in Buyer good, valid and marketable title to the Purchased Assets being transferred hereunder. Section 9.03. Use of Names. The parties agree that Buyer shall have the right to use the _ names under which System currently operates (including the name of the Seller) for a period of one year after the Closing in connection with its operation of the System. Section 9.04. Endorsement of Checks, Etc. Seller hereby authorizes Buyer to endorse Seller's names on and collect for Buyer's account any checks received in payment of any accounts receivable after the Closing or relating to the Purchased Assets, including, without limitation, subscriber accounts receivable, and refunds of prepaid expenses. In the event payments for any such amounts are received by Seller, it will promptly turn the same over to Buyer. Section 9.05. Use of Taning Studio. Seller and/or Seller's lessees may continue to occupy and use the taping studio located in the head end building, as currently used as of March 31, 1999, without payment of rent, until the first to occur of (i) the expiration of five years from the date of this Agreement, or (ii) a date not exceeding nine (9) months after the date on which Seller or its affiliates sell their cable system interests in Japan. Seller will notify Buyer of any sale of such cable systems upon such sale. Section 9.06. Sublease of Business Office. For a reasonable period after the Closing, Buyer may occupy and use Seller's administrative office on a non - exclusive basis, that Seller currently uses for operating the Business, subject to a sublease (the "Sublease'). The duration and other terms of the Sublease governing this sublease arrangement will be determined in good faith by the parties prior to Closing. Article 10. Transfer of Purchased Assets. Section 10.01. Transfer Sales, Use Taxes, Etc. The cost of any sales, transfer and use taxes imposed under the laws of any state or political subdivision thereof, which arise out of the transfers contemplated by this Agreement shall be paid by Seller except as otherwise specifically stated in this Agreement. Viso. CSSM F=ha Agreement 27 1%4WS7.5 Article 11. Survival of Representations: Indemnification. Section 11.01. Survival. Seller and Buyer agree that the covenants, representations and warranties contained in this Agreement shall survive the Closing and any investigation by Buyer. No action for a breach of the representations and warranties or any and all instruments executed and delivered in connection herewith shall be brought more than one (1) year from the Closing Date except for (a) claims arising out of representations and warranties contained in Sections 4.08, 4.09, 4.10, 4.20 and 4.27 which may be brought until the applicable statutes of limitations relating thereto shall have run, and (b) claims of which Seller has been notified with reasonable specificity by Buyer within such one year period. Section 11.02. Indemnification of Buyer. Seller agrees to indemnify Buyer and hold it harmless against and in respect of any and all payments, damages, claims, demands, losses, _ expenses, costs, obligations and liabilities, including reasonable attorneys' fees (collectively, the "Losses ") (a) which arise or result from or are related to any breach or failure of Seller to perform any of its representations and warranties, commitments, obligations, covenants or conditions hereunder or under any certificate executed pursuant hereto; (b) which result from the failure of Seller to discharge any of its liabilities, other than the Assumed Liabilities; (c) which relate to the Purchased Assets and the Business other than the Assumed Liabilities and/or (d) which result from any actions of Seller, its employees or agents taken prior to the Closing Date or the operations of the System prior to the Closing Date other than the Assumed Liabilities. Section 11.03. Indemnification of Seller. Buyer agrees to indemnify Seller and hold it harmless against and in respect of any and all damages, claims, losses, expenses, costs, obligations and liabilities (including reasonable attorneys' fees) (collectively, the "Seller's Losses ") (a) which result from the failure of Buyer to discharge the Assumed Liabilities; or (b) which result from any actions of Buyer, its employees or agents taken after the Closing Date. Section 11.04. Procedure for Indemnification. Any party making a claim for indemnification hereunder shall notify the indemnifying party of the claim in writing, describing the claim, the amount thereof, and the basis therefor. The party from whom indemnification is sought shall respond to each such claim within 30 days of receipt of such notice. Failure to so respond within such time period shall constitute an admission of liability for the claim or claims to which the notice related. No action shall be taken pursuant to the provisions of this Agreement or otherwise by the party seeking indemnification until the later of (a) the expiration of the 30 -day response period (unless reasonably necessary to protect the rights of the parry seeking indemnification) or (b) 30 days following the termination of the 30 -day response period if a response received within such 30 -day period by the party seeking indemnification requested an opportunity to cure the matter giving rise to indemnification (and, in such event, the amount of such claim for indemnification shall be reduced to the extent so cured within such 30 -day cure period). If such demand is based on a claim by a third party, the indemnifying party shall have the right to assume the entire control of the defense, compromise or settlement thereof, including at its own expense, employment of counsel satisfactory to the indemnified party, and, in Vim.CSSMP=hMAglee t 28 i`464057.5 connection therewith, the parry claiming indemnification shall cooperate fully to make available to the defending party all pertinent information under its control. No claim for indemnification resulting from the breach or falsity or any of the representations or warranties set forth herein or in any certificate or other instrument delivered pursuant hereto shall be made after a date on which the claim period for such representation, warranty or agreement shall have expired under the provisions of Section 11.01 hereof. Article 12. Escrow Provisions. Section 12.01. Appointment of Escrow Agent. The parties hereby designate SunTrust Bank, ivEami, N.A. to act as "Escrow Agent" hereunder. The parties and the Escrow Agent shall be bound by the provisions of the Escrow Agreement (the "Escrow Agreement's to be executed concurrently herewith. Section 12.02. The Deposit and Holdback. Upon the execution of this Agreement and the Escrow Agreement, Buyer has delivered to the Escrow Agent the Deposit as provided in Article 2, and the Escrow Agent has acknowledged receipt thereof. The Escrow Agent shall hold the Deposit (which is referred to as the Holdback upon the Closing) and the Holdback in an interest - bearing account as provided in the Escrow Agreement. Section 12.03. Disposition of Deposit and Holdback. (a) Disposition of Deposit in the Event the Closing does not Occur. (i) Delivery to Seller. In the event that this Agreement is properly terminated by Seller pursuant to clause (c) of Article 13, the parties shall so jointly notify the Escrow Agent and then the Escrow Agent shall deliver the Deposit, including any interest thereon, to Seller, and Buyer shall have no further liabilities or obligations to Seller hereunder or with respect to the transactions contemplated hereby. (ii) Delivery to Buyer. In the event that this Agreement is terminated in any manner other than as specified in subparagraph (i) above, the parties shall so jointly notify the Escrow Agent and the Escrow Agent shall deliver the Deposit, including any interest thereon, to Buyer. (iii) Payment as Liquidated Damages. The parties expressly acknowledge that the sums referred to above in subparagraph (i) to be paid over to Seller are agreed upon as liquidated damages and not as a penalty and that such sums have been computed and estimated as a reasonable forecast of probable actual loss to Seller because of difficulty of estimating with exactness the damages which would actually result. (b) Disposition of Holdback in the Event the Closing Occurs. In the event the Closing takes place as contemplated hereunder, the Holdback, and all interest earned thereon, shall be retained in an interest bearing account by the Escrow Agent for a period of one year (or Vim•CSSMPurChMAFw t 29 I`A64057.5 longer as hereinafter provided) after Closing (the "Escrow Period ") as security for the representations and warranties of Seller contained in this Agreement. (i) Breach by Seller. In the event that during the Escrow Period Buyer determines that it is entitled to indemnification pursuant to Article 11, Buyer will give written notice to the Escrow Agent and Seller stating in detail the basis for such indemnification claim. If within thirty (30) days thereafter Seller has not given notice to Buyer and the Escrow Agent objecting to such claim, the Escrow Agent shall deliver to Buyer the amount specified in Buyer's original notice (or the portion thereof not objected to by Seller). In the event that Seller delivers written objection to the payment of such claim, the Escrow Agent shall hold the relevant portion of the Holdback until such time as it receives (i) joint written instructions from Buyer and Seller as to the disposition of such amount or (ii) a court order or judgment directing such payment. (ii) Disposition After Escrow Period. Immediately after the later to occur of (A) the termination of the Escrow Period, (B) the resolution of any dispute pursuant to Section 12.04(e), and (C) the termination of any notice periods specified in subsection (i) above and any period thereafter prior to the resolution of any disagreement between the parties pursuant thereto, the Escrow Agent shall pay the balance, if any, of the Holdback and interest earned thereon to the party entitled thereto pursuant to subparagraph (i) above or Section 12.04(d) or (e) below, as appropriate, and shall pay any remaining balance to the Seller, and the escrow shall terminate. Article 13. Termination. Section 13.01. This Agreement and the transactions contemplated hereby may be terminated at any time prior to the Closing: (a) by mutual written consent of Seller and Buyer; (b) by Buyer, if Seller shall have breached or failed to perform in any material respect any of its obligations, covenants or agreements under this Agreement, or if any of the representations and warranties of Seller set forth in this Agreement shall not be true in any material respect, and such breach, failure or misrepresentation is not cured to Buyer's reasonable satisfaction within 10 days after Buyer gives Seller written notice identifying such breach, failure or misrepresentation; (c) by Seller, if Buyer shall have breached or failed to perform in any material respect any of its obligations, covenants or agreements under this Agreement, or any of the representations and warranties of Buyer set forth in this Agreement shall not be true in any material respect, and such breach, failure or misrepresentation is not cured to Seller's reasonable satisfaction within 10 days after Seller gives Buyer written notice identifying such breach, failure or misrepresentation; Viso. CSSM Purchase Aq} t 30 14t64057.5 (d) by Buyer, if the conditions set forth in Section 7.01 become incapable of satisfaction; (e) by Seller, if the conditions set forth in Section 7.02 become incapable of satisfaction; or (f) by Seller or by Buyer if the Closing shall not have occurred on or before August 31, 1999, or such other date, if any, as Seller and Buyer may agree in writing; except that this Agreement may not be terminated under this Section by any party that is in material breach of any representation or warranty or in violation of any covenant or agreement contained herein. Section 13.02. Effect of Termination. (a) If this Agreement is terminated (i) under Section 13.01(a) herein or (ii) under Sections 13.01(d) or 13.01(e) herein at a time when no parry is in material breach of a representation or warranty or in violation of a covenant or agreement contained herein, all further obligations of Seller to Buyer, and of Buyer to Seller, will terminate without further liability of Seller or Buyer. (b) If this Agreement is terminated under Section 13.01(b), (c), (d), (e) or (f) herein at a time when one or more parties is in material breach of a representation or warranty or in violation of a covenant or agreement contained in this Agreement, the liabilities and obligations of the party not in material breach or violation of this Agreement shall terminate, and the party which is in breach or violation of this Agreement shall remain liable for such breaches and violations, and nothing shall be deemed to restrict the remedies available against such party or parties. (c) The obligations of Buyer under Section 6.04 shall survive the termination of this Agreement. Article 14. Miscellaneous. Section 14.01. Notices. Any notices or other communications required or permitted to be given hereunder shall be sufficiently given if delivered in person or mailed by registered or certified mail, return receipt requested, or sent by nationally recognized overnight delivery service, addressed as follows: To the Seller: Cable Satellite of South Miami, Inc. 10711 SW 216th Street, Suite A -100 Miami, FL 33170 Vim • CSSM Puchme Age =t 31 11AW57.5 Fax: (305) 252 -9097 Attention: Charles C. Hermanowski, President with a copy to: Robert A. Solove, Esq. Solove & Solove, P.A. 9500 South Dadeland Boulevard Suite 450 Miami, FL 33156 Fax: (305) 670 -0599 To the Buyer: Vista Broadband Communications, LLC 3773 S. Cobb Drive Smyrna, GA 30080 Attention: Neil R. McHugh, Manager Fax: (770) 333 -3430 with copies to: John Hunt Boston Ventures Management, Inc. One Federal Street - 23rd Floor Boston, MA 02110 -2003 Fax: (617) 350 -1574 and Stephen M. L. Cohen, Esq. Choate, Hall & Stewart Exchange Place 53 State Street Boston, Massachusetts 02109 Fax: (617) 248 -4000 Section 14.02. No Waiver. No failure to exercise and no delay in exercising, on the part of Buyer or Seller, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights provided are cumulative and not exclusive of any rights provided by law. visa•C$SMPumhm Age t 32 i W57.s Section 14.03. Amendments and Waivers. This Agreement may be modified or amended only by a writing signed by each parry hereto. No waiver of any term or provision hereof shall be effective unless in writing signed by the party waiving such term or provision. Section 14.04. Construction. This Agreement, and the agreements and instruments contemplated hereby, shall be governed by and construed in accordance with the laws of the State of Florida without regard to the conflict of law provisions. The descriptive headings of the several Articles and Sections hereof are for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. Section 14.05. Binding Effect and Benefits; Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, successors and assigns. Upon prior notice to Seller, Buyer shall have the right to assign its rights and obligations hereunder to an affiliate of Buyer or to any person or entity acquiring all or any _ material portion of the assets or securities of Buyer, in which case such affiliate or successor shall be substituted for Buyer under this Agreement in all respects and the provisions of this Agreement shall be deemed to be modified to reflect such assignment. Buyer may also collaterally assign its rights hereunder to its lender or lenders. Section 14.06. Prior Agreements. This writing embodies the entire agreement and understanding between the parties with respect to this transaction and supersedes all prior discussions, understandings and agreements concerning the matters covered hereby. Section 14.07. Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. Section 14.08. Further .Assurances. Following the Closing, Seller will execute and deliver to Buyer such documents and take such other actions as Buyer may reasonably request in order to consummate the transactions contemplated hereby. Section 14.09. Late Payments. If either party fails to pay the other any amounts when due under this Agreement (excluding the Purchase Price but including post - Closing adjustments and indemnification payments), the amounts due will bear interest from the due date to the date of payment at the annual rate publicly announced from time to time by Bank of New York as its prime rate (the "Prime Rate ") plus 3 %, adjusted as and when changes in the Prime Rate are made. Section 14.10. Severability. Any term or provision of this Agreement which is invalid or unenforceable will be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining rights of the person intended to be benefitted by such provision or any other provisions of this Agreement; provided however that the economic and legal substance of the transactions contemplated by this Agreement is not Vim - CSSMP=hA Aqa t 33 1\464057.5 affected in any manner that is materially adverse to any party affected by such invalidity or unenforceability. Section 14.11. Specific Performance. Seller acknowledges that money damages would not be a sufficient remedy for any breach by it of this Agreement and agrees that Buyer shall be entitled to specific performance and injunctive relief as remedies for any such breach in addition to any other remedies or indemnification contained herein.. Section 14.12. Schedule and Exhibits. Seller is delivering to Buyer concurrent with the execution and delivery of this Agreement the following Schedules referred to in this Agreement: Schedule Description 1.01(a) Excluded Assets ....................................... 1.01(b) Purchased Assets ...................................... 2.03 Assumed Liabilities .................................... 4.06 Financial Statement ..................................... 4.07 Material Adverse Changes ................................ 4.09 Real Property .......... ............................... 4.11 Litigation ............ ............................... 4.12 Material Contracts and Commitments ........................ 4.14 Required Consents ..................................... 4.15 Insurance ............ .......... ...................... 4.18 Franchises, Licenses and Permits ........................... 4.19 Employees and Compensation ............................. 4.20 ERISA and Employee Benefits ............................. 4.21 Compliance of Systems .................................. 4.22 Television Stations; Overbuild ............................. 4.23(a) Subscription Information ................................. 4.23(b) FCC Matters ......................................... 4.23(c) Commitments ......................................... Vista- CSSMP=he Agt mt 34 1`A6Q57.5 Schedule Description 4.27 Environmental Laws Compliance ........................... 6.07(c) MDU Agreements ..................................... The following Exhibits to this Agreement are referred to in and foam a part of this Agreement: Exhibit Description 1.05 Estimated Purchase Price Certificate ................. 6.07(a) MDU Agreement Model ......................... 7.01(e) Legal Opinions from Counsel for Seller ............... 7.01(h) Legal Opinion from Communications Counsel to Seller .... 7.016) Purchase and Sale Agreement ...................... 7.02(b) Legal Opinion from Counsel for Buyer ............... Section 10.13. Definitions. The following terms, as used in this Agreement, have the meanings given to them in the section or place indicated: vin,.cs3MP=ha Ages t 35 IW6Q57.5 Section Adjustment Liabilities .......................... 2.01 Adjustment Assets ............................ 2.01 Advance MDU Payments ........................ 6.07 Antitrust Division ............................. 6.03(b) Assumed Liabilities ........................... 2.03 Authorizations ............................... 4.18 Base Purchase Price ........................... 2.01 Basic Subscribers ............................. 2.01 Benefit Plans . ............................... 4.20 vin,.cs3MP=ha Ages t 35 IW6Q57.5 VLft.CSSMF=t"AWE 36 1\464057.5 Section Broker.................................... 4.25 Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01 Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble Closing Date ................................ 8.01 Closing .................................... 8.01 Code..................................... 4.20 Communications Act ........................... 4.22 Competitive Business .......................... 6.05 Copyright Office ............................. 4.22 Copyright Act ............................... 4.22 Deposit.................................... 2.02 Environment ................................ 4.27 Environmental Claim .......................... 4.27 Environmental Laws ........................... 4.27 ERISA.................................... 4.20 Escrow Period ............................... 12.03 Escrow Agent ................................ 12.01 Estimated Purchase Price Certificate .............. 2.01 Excluded Assets .............................. Article 1 FAA...................................... 4.18 FCC...................................... 4.18 Financial Statement ............................ 4.06 Franchises ................................... Recitals FTC..................................... 6.03(b) Future NMU Payments ......................... 6.07 Hazardous Substances .......................... 4.27 Holdback .................................. 2.02 VLft.CSSMF=t"AWE 36 1\464057.5 visa• Cssn+ a,rd" Agm t 37 MW57.s Section Homes Passed ............................... 4.23 HSR Act .... ............................... 6.03(b) HSR Report .. ............................... 6.03(b) Leased Real Property .......................... 4.09 Losses..... ............................... 11.02 Material Contracts ............................ 4.12 MDU Agreements ............................ 6.07 MDUs..... ............................... 6,07 Owned Real Property .......................... 4.09 Prime Rate .. ............................... 14.09 Purchase Price ............................... 2.01 Purchase and Sale Agreement ..................... 7.01 Purchased Assets ............................. Article 1 Seller ...... ............................... Preamble Seller's Losses ............................... 11.03 Service..... ............................... 4.20 Sublease ...... ............................... 9.06 System ..... ............................... Recitals visa• Cssn+ a,rd" Agm t 37 MW57.s APR.zz.1999 iz�e Shf(gIR CABLE & VISTA 248-4000 AYK.'!L 1999 10:LIRM CnVHIC nnt6 a Q i�nnn EXECUTED as a sealed ia==ent as Of the date 5ret above written. pno,s?-� PP.3/1e VISTA BROADBAND COMIDWMCA.TIONS, LLC By: Neil R McHugh, Manager CASLB SATFLm OF SOUTH MIAMI, INC. w.- asMpm*A Age 38• r46M a APR- 22-M 9(THO) ll;l9 RPR -22 -99 11:06 an ern• ?:• 19991 f fill 1 10 AM 11, 1944 11.14AM SOME i IMPE P 1. cnsu. t$N I nt." i n SULM t S ult ?A CHOAIE HAIL & MOO 24tl•4000 (FA�130§ 610 0599 P, 005 mum 610 U01 NU. U1SB0 r, PMCUT£D as a sealed but =em as of tho datt first above wtittt8. VISTA 9AOADBAND COMMUNICATIONS, LLC By Nail R Melluab, Mantaot CABLE SATELLITE OF SOUTH MIAM, INC. Byl Chu as C. HeRetettowalei Prmldent 0