-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JI8DVs6n/irlC5WybCFNSl8/RVK3U4y9EaQBquebx1hLIR1BRfxzbWmmrJE1EraS mV198Fmkb2iRIgk8C0EQfg== 0000927356-98-001231.txt : 19980807 0000927356-98-001231.hdr.sgml : 19980807 ACCESSION NUMBER: 0000927356-98-001231 CONFORMED SUBMISSION TYPE: PREM14A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19980806 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: IDS JONES GROWTH PARTNERS 87-A LTD/CO/ CENTRAL INDEX KEY: 0000857488 STANDARD INDUSTRIAL CLASSIFICATION: 4841 IRS NUMBER: 841060544 STATE OF INCORPORATION: CO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: PREM14A SEC ACT: SEC FILE NUMBER: 000-16183 FILM NUMBER: 98678753 BUSINESS ADDRESS: STREET 1: 9697 EAST MINERAL AVE STREET 2: P O BOX 3309 CITY: ENGLEWOOD STATE: CO ZIP: 80155-3309 BUSINESS PHONE: 3037923111 MAIL ADDRESS: STREET 1: C/O JONES INTERCABLE INC STREET 2: 9697 E MINERAL AVE PO BOX 3309 CITY: ENGLEWOOD STATE: CO ZIP: 80155-3309 PREM14A 1 PRELIMINARY FILING OF IDS/JGP 87-A, LTD. SCHEDULE 14A INFORMATION PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934 Filed by the Registrant [X] Filed by a Party other than the Registrant [_] Check the appropriate box: [X] Preliminary Proxy Statement [_] Definitive Proxy Statement [_] Definitive Additional Materials [_] Soliciting Material Pursuant to (S)240.14a-11(c) or (S)240.14a-12 IDS/JONES GROWTH PARTNERS 87-A, LTD. ----------------------------------------------------- (Name of Registrant as Specified In Its Charter) N/A ----------------------------------------------------- (Name of Person(s) Filing Proxy Statement, if other than the Registrant) Payment of Filing Fee (Check the appropriate box): [_] No fee required. [X] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. (1) Title of each class of securities to which transaction applies: Limited Partnership Interests (2) Aggregate number of securities to which transaction applies: 19,785 (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined): Pursuant to Rule 0-11(c)(2), the transaction valuation is based upon the $40,000,000 sales price that is to be paid to IDS/Jones Growth Partners 87-A, Ltd. in connection with the transaction that is the subject of the proxy solicitation. (4) Proposed maximum aggregate value of the transaction: $40,000,000 (5) Total fee paid: $8,000 [_] Fee paid previously with preliminary materials. [_] Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. (1) Amount Previously Paid: (2) Form, Schedule or Registration Statement No.: (3) Filing Party: (4) Date Filed: Notes: [LOGO OF JONES INTERCABLE, INC.] 9697 EAST MINERAL AVENUE ENGLEWOOD, COLORADO 80112 NOTICE OF VOTE OF THE LIMITED PARTNERS OF IDS/JONES GROWTH PARTNERS 87-A, LTD. To the Limited Partners of IDS/Jones Growth Partners 87-A, Ltd.: A special vote of the limited partners of IDS/Jones Growth Partners 87-A, Ltd. (the "Partnership") is being conducted through the mails on behalf of the Partnership by Jones Cable Corporation, the managing general partner of the Partnership, for the purpose of obtaining limited partner approval of the sale, to Comcast Corporation or one of its affiliates, of the Partnership's cable television system serving the community of Roseville and certain portions of unincorporated Placer County, all in the State of California (the "Roseville System"), for $40,000,000 in cash, subject to customary working capital closing adjustments that may have the effect of increasing or decreasing the sales price by a non-material amount. Information relating to this matter is set forth in the accompanying Proxy Statement. If the limited partners approve the proposed sale of the Roseville System and if the transaction is closed, the Partnership will repay all of its indebtedness, which totaled $10,067,259 at March 31, 1998 (including $10,000,000 borrowed under its credit facility, $47,055 in advances from the managing general partner and capital lease obligations of $20,204), leaving the Partnership with no debt outstanding, pay brokerage fees to affiliates of the general partners totaling $1,000,000, representing 2.5 percent of the sales price, for acting as brokers and financial advisors in this transaction, settle working capital adjustments and then the approximate $29,410,720 of net sale proceeds will be distributed to the Partnership's partners of record as of the closing date. Because the distribution to be made on the sale of the Roseville System together with the April 1996 distribution from the sale of the Partnership's cable television system serving the communities in and around Carmel, Indiana will exceed 125 percent of the amounts originally contributed to the Partnership by the limited partners, the general partners will receive general partner distributions on the sale of the Roseville System. Based upon financial information as of March 31, 1998, the limited partners, as a group, will receive $27,384,446, the managing general partner will receive $1,013,137 and IDS Cable Corporation, the supervising general partner, will receive $1,013,137 of the net proceeds from the sale of the Roseville System. This distribution will give the Partnership's limited partners an approximate return of $167 for each $250 limited partnership interest, or $668 for each $1,000 invested in the Partnership. Distributions will be net of California non-resident withholding tax, if applicable, and distribution checks will be issued to limited partners' account registration or payment instruction of record. Once the distribution of the net proceeds from the sale of the Roseville System has been made, limited partners will have received a total of $350 for each $250 limited partnership interest, or $1,400 for each $1,000 invested in the Partnership, taking into account the prior distribution to limited partners made in April 1996. Only limited partners of record at the close of business on August 20, 1998 are entitled to notice of, and to participate in, this vote of limited partners. It is very important that all limited partners participate in the voting. The Partnership's ability to complete the transaction discussed in the Proxy Statement and the Partnership's ability to make a distribution to its partners of the net proceeds of the sale of the Partnership's Roseville System are dependent upon the approval of the transaction by the holders of a majority of the Partnership's limited partnership interests. The proposal that is the subject of this proxy solicitation will be adopted only if approved by the holders of a majority of the limited partnership interests. Each limited partnership interest entitles the holder thereof to one vote on the proposal. Because the Partnership's limited partnership agreement (the "Partnership Agreement") requires that the proposal to sell the Roseville System be approved by the holders of a majority of the limited partnership interests, abstentions and non-votes will be treated as votes against the proposal. A properly executed consent returned to the managing general partner on which a limited partner does not mark a vote will be counted as a vote for the proposed sale of the Roseville System. Because limited partners do not have dissenters' or appraisal rights in connection with the proposed sale of the Roseville System, if the holders of a majority of the limited partnership interests approve the proposal, all limited partners will receive a distribution of the net sale proceeds in accordance with the procedures prescribed by the Partnership Agreement regardless of how or whether they vote on the proposal. Jones Cable Corporation, as managing general partner of the Partnership, urges you to sign and return the enclosed proxy as promptly as possible. The proxy should be returned in the enclosed envelope. JONES CABLE CORPORATION Managing General Partner [SIGNATURE OF ELIZABETH M. STEELE] Elizabeth M. Steele Secretary Dated: August 31, 1998 [LOGO OF JONES INTERCABLE, INC.] 9697 EAST MINERAL AVENUE ENGLEWOOD, COLORADO 80112 PROXY STATEMENT VOTE OF THE LIMITED PARTNERS OF IDS/JONES GROWTH PARTNERS 87-A, LTD. This Proxy Statement is being furnished in connection with the solicitation of the written consents of the limited partners of IDS/Jones Growth Partners 87-A, Ltd. (the "Partnership") by Jones Cable Corporation, the managing general partner of the Partnership (the "Managing General Partner"), on behalf of the Partnership, for the purpose of obtaining limited partner approval of the sale of the Partnership's cable television system serving the community of Roseville and certain portions of unincorporated Placer County, all in the State of California (the "Roseville System") for $40,000,000 in cash, subject to normal working capital closing adjustments, to Comcast Corporation or one of its affiliates ("Comcast"). The Partnership's supervising general partner is IDS Cable Corporation (the "Supervising General Partner") and the Managing General Partner and the Supervising General Partner are referred to in this Proxy Statement collectively as the "General Partners." Comcast is not an affiliate of the Partnership or of either of the General Partners as such term is defined in the Partnership's limited partnership agreement (the "Partnership Agreement"). See "Certain Information About the Partnership, the General Partners and the Purchaser of the System" for information about Comcast's intention to acquire an ownership interest in the parent of the Managing General Partner. Proxies in the form enclosed, properly executed and duly returned, will be voted in accordance with the instructions thereon. Limited partners are urged to sign and return the enclosed proxy as promptly as possible. Proxies cannot be revoked except by delivery of a proxy dated as of a later date. Officers and other employees of the Managing General Partner may solicit proxies by mail, by fax, by telephone or by personal interview. The deadline for the receipt of proxy votes is September 30, 1998, unless extended, but the vote of the Partnership's limited partners will be deemed to be concluded on the date, at least 20 business days from the date the proxy materials are sent to limited partners, that the Managing General Partner, on behalf of the Partnership, is in receipt of proxies executed by the holders of a majority of the limited partnership interests either consenting to or disapproving of the proposed transaction. The Managing General Partner may extend the deadline for receipt of proxy votes if a majority of the limited partners fail to express an opinion on the transaction by September 30, 1998. If the Managing General Partner extends the deadline for receipt of proxy votes, the limited partners will be informed by mail of the reason for the extension and the new deadline. The cost of the proxy solicitation will be paid by the Partnership. The Partnership has only one class of limited partners and no limited partner has a right of priority over any other limited partner. The participation of the limited partners is divided into limited partnership interests and each limited partner owns one limited partnership interest for each $250 of capital contributed to the Partnership. As of July 31, 1998, the Partnership had 164,178 limited partnership interests outstanding, held by approximately 6,347 persons. There is no established trading market for such interests. To the best of the Managing General Partner's knowledge, no person or group of persons beneficially own more than five percent of the limited partnership interests. The Managing General Partner owns 200 limited partnership interests and the Supervising General Partner owns 100 limited partnership interests. In addition, IDS Management Corporation, an affiliate of the Supervising General Partner, owns 768 limited partnership interests. These limited partnership interests owned by the General Partners and IDS Management Corporation will be voted in favor of the sale of the Roseville System to Comcast .The officers and directors of the General Partners do not own any limited partnership interests. Only limited partners of record at the close of business on August 20, 1998 will be entitled to notice of, and to participate in, the vote. Upon the consummation of the proposed sale of the Roseville System, the Partnership will repay all of its indebtedness, which totaled approximately $10,067,259 at March 31, 1998 (including $10,000,000 borrowed under its credit facility, $47,055 in advances from the Managing General Partner and capital lease obligations of $20,204), pay brokerage fees to The Jones Group, Ltd., an affiliate of the Managing General Partner, and to IDS Management Corporation, an affiliate of the Supervising General Partner, totaling $1,000,000, representing 2.5 percent of the sale price, for acting as brokers and financial advisors in this transaction and settle working capital adjustments, and then the Partnership will distribute the approximate $29,410,720 of net sale proceeds to its partners of record as of the closing date. Because the distribution to be made on the sale of the Roseville System together with the April 1996 distribution from the sale of the Partnership's cable television system serving the communities in and around Carmel, Indiana (the "Carmel System") will exceed 125 percent of the amounts originally contributed to the Partnership by the limited partners, the General Partners will receive general partner distributions on the sale of the Roseville System. Based upon pro forma financial information as of March 31, 1998, as a result of the Roseville System's sale, the limited partners of the Partnership, as a group, will receive $27,384,446, the Managing General Partner will receive $1,013,137 and the Supervising General Partner will receive $1,013,137 of the net proceeds from the sale of the Roseville System. Limited partners will receive $167 for each $250 limited partnership interest, or $668 for each $1,000 invested in the Partnership, from the net proceeds of the Roseville System's sale. Distributions will be net of California non-resident withholding tax, if applicable, and distribution checks will be issued to limited partners' account registration or payment instruction of record. Limited partners should note that there are certain federal and state income tax consequences of the proposed transaction. See "Federal and State Income Tax Consequences." Once the net proceeds from the sale of the Roseville System have been distributed to the partners, the limited partners will have received a total of $350 for each $250 limited partnership interest, or $1,400 for each $1,000 invested in the Partnership, taking into account the prior distribution to limited partners made in April 1996. As of the date of this Proxy Statement, the Partnership's only asset is the Roseville System. After the sale of the Roseville System, the Partnership will be liquidated and dissolved. The Partnership will cease to be a public entity subject to the informational reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), when the Partnership is liquidated and dissolved, most likely in the first quarter of 1999. The proposal that is the subject of this proxy solicitation will be adopted only if approved by the holders of a majority of the limited partnership interests. Each limited partnership interest entitles the holder thereof to one vote on the proposal. Because the Partnership Agreement requires that the proposal to sell the Roseville System be approved by the holders of a majority of the limited partnership interests, abstentions and non-votes will be treated as votes against the proposal. A properly executed consent returned to the Managing General Partner on which a limited partner does not mark a vote will be counted as a vote for the proposed sale of the Roseville System. Because limited partners do not have dissenters' or appraisal rights in connection with the proposed sale of the Roseville System, if the holders of a majority of the limited partnership interests approve the proposal, all limited partners will receive a distribution of the net sale proceeds in accordance with the procedures prescribed by the Partnership Agreement regardless of how or whether they vote on the proposal. 2 The Board of Directors of the Managing General Partner approved the proposed sale of the Roseville System and the Supervising General Partner has given its consent to the proposed sale of the Roseville System. The General Partners therefore recommend approval of the transaction by the holders of the Partnership's limited partnership interests. The approximate date on which this Proxy Statement and Form of Proxy are being sent to limited partners is August 31, 1998. PARTNERSHIP INFORMATION THE PARTNERSHIP'S INVESTMENT OBJECTIVES The Partnership was formed to acquire, develop, operate and, ultimately, sell cable television systems. The primary objectives of the Partnership have been to obtain capital appreciation in the value of the Partnership's cable television properties; to obtain equity build-up through debt reduction; and to generate tax losses that could be utilized to offset passive income. It was contemplated from the outset of the Partnership's existence that capital appreciation in Partnership cable television properties would be converted to cash by a sale of such properties at such time as the General Partners determined that the Partnership's investment objectives had substantially been achieved and after a holding period of five to seven years. The Partnership was formed in September 1987 as a Colorado limited partnership in connection with a public offering of its limited partnership interests. Sales of limited partnership interests in the Partnership closed on January 9, 1989. The Partnership raised gross offering proceeds of $41,039,500. Since its formation, the Partnership has engaged primarily in the ownership and operation of the Carmel System and the Roseville System. The Carmel System was sold in February 1996 to an affiliate of the Managing General Partner for a sales price of $44,235,333, which price represented the average of three separate, independent appraisals of the fair market value of the Carmel System. A portion of the sale proceeds, $14,235,333, was used to reduce Partnership debt, and the remainder of the sale proceeds, $30,000,000, was distributed to the limited partners of the Partnership in April 1996. The distribution of the net proceeds from the sale of the Carmel System resulted in the Partnership's limited partners receiving a return of $183 for each $250 limited partnership interest, or $731 for each $1,000 invested in the Partnership. No vote of the limited partners of the Partnership was required in connection with the sale of the Carmel System because the assets of the Carmel System did not constitute all or substantially all of the Partnership's assets. The Supervising General Partner consented to the timing of the sale of the Carmel System and participated in the selection of the firms that conducted the appraisals of the Carmel System. Because the distribution made to the limited partners of the Partnership from the net proceeds of the sale of the Carmel System did not total the amounts originally contributed to the Partnership by the limited partners, the General Partners did not receive any general partner distributions on the sale of the Carmel System. Because the distribution to be made on the sale of the Roseville System together with the prior distribution made by the Partnership from the net proceeds of the sale of the Carmel System will exceed 125 percent of the amounts originally contributed to the Partnership by the limited partners, the General Partners will receive general partner distributions totaling $2,026,274 from the Roseville System's net sale proceeds. Based upon disclosures made to prospective investors about the Partnership's investment objectives in the IDS/Jones Growth Partners Limited Partnership Program Prospectus and in the accompanying sales brochure, investors in the Partnership reasonably could have anticipated that the Partnership's investment objectives would be achieved and its assets liquidated after a holding period of approximately five to seven years. Due to the uncertain and adverse regulatory environment that developed in the early 1990s for the cable television industry, the resulting decline in the prices for cable television systems and the subsequent inactivity in the cable television system marketplace, the Managing General Partner determined that it would be prudent to delay the sale of the Roseville System until market conditions improved. 3 The Managing General Partner, through The Jones Group, Ltd., began marketing the Roseville System in 1996. The Partnership entered into an asset purchase agreement in October 1996 pursuant to which it agreed to sell the Roseville System to an affiliate of Roseville, California's local telephone company. The proposed sales price at that time was $30,900,000, with possible upward adjustments. Although that transaction was approved by the holders of a majority of the limited partnership interests in the Partnership, one of the material closing conditions to that transaction was never satisfied. Because the prospective purchaser was affiliated with the company that provides telephone services in the geographical area in which the Roseville System provides cable television services, a waiver from the Federal Communications Commission (the "FCC") of Section 652 of the Telecommunications Act of 1996, which prohibits the acquisition by a telephone company and its affiliates of cable systems in the telephone company's service area, was necessary to permit the prospective purchaser to consummate its acquisition of the Roseville System. The prospective purchaser, with the support and assistance of the Managing General Partner, actively sought this waiver from the FCC, but the FCC failed to grant the request for the waiver. As a result of the FCC's failure to grant the request for the waiver, the asset purchase agreement between the Partnership and that prospective purchaser expired and was not renewed in February 1998, and the Managing General Partner, through The Jones Group, Ltd., again marketed the Roseville System for sale. As a result of all of the foregoing factors, the Roseville System has been held by the Partnership for more than ten years. The purpose of the sale of the Roseville System, from the Partnership's perspective, is to attain the Partnership's primary investment objective with respect to the Roseville System, i.e., to convert the Partnership's capital appreciation in the Roseville System to cash. The sale proceeds will be used to repay all outstanding indebtedness of the Partnership and pay certain fees and expenses of the transaction, including brokerage fees of 2.5 percent of the sales price, or $1,000,000, to affiliates of the General Partners and settle working capital adjustments, and the remaining sale proceeds will be distributed to the partners of the Partnership in accordance with the distribution procedures established by the Partnership Agreement. The sale of the Roseville System is thus the necessary final step in the Partnership's accomplishment of its investment objectives with respect to the Roseville System. All distributions of the Partnership from the proceeds of the sales of cable television systems are to be distributed 100 percent to the limited partners until the limited partners receive amounts equal to 125 percent of their initial capital contributions, and thereafter all such distributions are to be shared 75 percent to the limited partners and 25 percent to the General Partners. With the distributions to be made on the sale of the Roseville System, the limited partners of the Partnership will have received distributions in excess of 125 percent of their initial capital contributions counting the distributions made from both the Carmel System's sale proceeds and the Roseville System's sale proceeds, and thus the sharing arrangement between the limited partners and the General Partners will be triggered upon the distribution of the net proceeds from the Roseville System's sale. Based upon financial information as of March 31, 1998, the limited partners, as a group, will receive $27,384,446, the Managing General Partner will receive $1,013,137 and the Supervising General Partner will receive $1,013,137 of the Roseville System's net sale proceeds. This distribution will provide the Partnership's limited partners with an approximate return of $167 for each $250 limited partnership interest, or $668 for each $1,000 invested in the Partnership. Taking into account the distributions to limited partners from the net proceeds of the sale of the Carmel System and from the net proceeds of the sale of the Roseville System, the limited partners of the Partnership will have received a total return of $350 for each $250 limited partnership interest, or $1,400 for each $1,000 invested in the Partnership by the time of the Partnership's liquidation and dissolution. VOTING PROVISION OF THE PARTNERSHIP AGREEMENT Section 2.2(k) of the Partnership Agreement provides that the sale of all or substantially all of the Partnership's assets is subject to the approval of the holders of a majority of the Partnership's limited partnership interests. Because the Roseville System represents all of the Partnership's remaining assets, the proposed sale of the Roseville System to Comcast is being submitted for limited partner approval. 4 PROPOSED SALE OF ASSETS GENERAL Pursuant to the terms and conditions of an Asset Purchase Agreement dated as of July 21, 1998 (the "Asset Purchase Agreement") by and between the Partnership and Comcast, the Partnership has agreed to sell the Roseville System to Comcast for a sales price of $40,000,000, subject to customary working capital closing adjustments. Comcast is a Pennsylvania corporation headquartered at 1500 Market Street, Philadelphia, Pennsylvania 19102. Comcast is not an affiliate of the Partnership or of either of the General Partners as such term is defined in the Partnership Agreement. See "Certain Information About the Partnership, the General Partners and the Purchaser of the System" for information about Comcast's intention to acquire an ownership interest in the parent of the Managing General Partner. The Partnership has been informed that Comcast intends to finance its acquisition of the Roseville System through cash on hand and borrowings. THE CLOSING The closing of the sale will occur on the last day of the month immediately following the tenth day after the date on which all of the closing conditions set forth in the Asset Purchase Agreement have been satisfied. It is anticipated that the closing will occur during the fourth quarter of 1998. Because the closing is conditioned upon, among other things, the approval of the limited partners of the Partnership and the receipt of material third party consents necessary for the transfer of the Roseville System to Comcast, there can be no assurance that the proposed sale will occur. The Asset Purchase Agreement may be terminated by either the Partnership or Comcast if the closing is not consummated on or before December 31, 1998. See "Proposed Sale of Assets, Conditions to Closing" for a description of the material consents necessary for the transfer of the Roseville System to Comcast. THE ROSEVILLE SYSTEM The assets to be acquired by Comcast consist primarily of the tangible and intangible assets of the Roseville System. The Roseville System was purchased by the Partnership in April 1988 for an aggregate purchase price of $20,363,000. At the date of acquisition in April 1988, the Roseville System served approximately 7,600 basic subscribers using cable plant passing approximately 13,000 homes. As of December 31, 1997, the Roseville System served approximately 19,190 basic subscribers using cable plant passing approximately 24,100 homes. Comcast will purchase all of the tangible assets of the Roseville System that are leased or owned by the Partnership and used in the operation of the system, including the system's real estate, vehicles, headend equipment, underground and aboveground cable distribution systems, towers, earth satellite receive stations and furniture and fixtures. Comcast also will acquire certain of the intangible assets of the system, including all of the franchises, leases, agreements, permits, licenses and other contracts and contract rights necessary for the operation of the system. Also included in the sale are the subscriber accounts receivable of the system and all of the system's records, files, schematics, maps, reports, promotional graphics, marketing materials and reports filed with federal, state and local regulatory agencies. The foregoing notwithstanding, certain of the Roseville System's assets will be retained by the Partnership, including cash or cash equivalents on hand and in banks, insurance policies, and any federal, state or local income or other tax refunds to which the Partnership may be entitled. SALES PRICE Subject to the closing adjustments described below, the sales price for the Roseville System is $40,000,000. The Asset Purchase Agreement provides for closing adjustments that may increase or reduce the sales price by a non- material amount. In the event that the Roseville System's current assets as of the closing date are in excess of the Roseville System's current liabilities as of closing date that Comcast has agreed to assume, the sales price will be increased by such excess amount. In the event that the Roseville System's current assets as of the closing date are less 5 than the Roseville System's current liabilities as of the closing date that Comcast has agreed to assume, the purchase price will be decreased by such amount. These closing adjustments, which are not expected to be material, reflect the principle that all liabilities, expenses and income of the Roseville System prior to the closing date belong to the Partnership and all liabilities, expenses and income attributable to the Roseville System after the closing date are for the account of Comcast. The sales price will be reduced by, at Comcast's option, either (a) an amount equal to the product of $2,000 multiplied by the number, if any, by which the number of basic equivalent subscribers to the Roseville System as of the closing date is less than 20,000 or (b) the amount by which the revenue attributable to basic, tier and premium video services in the three-month period immediately preceding the closing date is less than $1,815,600, if any, multiplied by 22.031 (the "subscriber/revenue adjustment"). The Partnership would have no obligation to close the sale of the Roseville System if the subscriber/revenue adjustment exceeds $2,000,000; provided, however, that in the event that the subscriber/revenue adjustment exceeds the amount of $2,000,000 and Comcast agrees to limit the amount of the actual subscriber/revenue adjustment to $2,000,000, then this condition to closing shall be deemed waived by the Partnership. Because the Managing General Partner expects that the Roseville System will have more than 20,000 basic equivalent subscribers and revenue attributable to basic, tier and premium video services in excess of $1,815,600 in the three-month period immediately preceding the closing date, the Managing General Partner anticipates that any closing adjustments relating to the number of the system's basic subscribers and/or revenue will not reduce the sales price by a material amount. Please see the Notes to Unaudited Pro Forma Financial Statements for a detailed accounting of the Managing General Partner's current best estimate of the anticipated closing adjustments. CONDITIONS TO THE CLOSING The obligations of both the Partnership and Comcast to consummate the closing are subject to the satisfaction or waiver of the following conditions: (a) any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") relating to the transactions contemplated by the Asset Purchase Agreement shall have expired or been terminated; (b) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the closing; (c) the Partnership and Comcast shall have received all required consents in connection with the Roseville System's material contracts (excluding pole attachment agreements) and all approvals of governmental franchising authorities to the transfer of the Roseville System's cable television franchises from the Partnership to Comcast, and no such required consent or franchise approval shall have been revoked; and (d) the holders of the limited partnership interests of the Partnership shall have voted to approve the Partnership's sale of the Roseville System to Comcast. The obligation of Comcast to consummate the closing is subject to the satisfaction or waiver of the following further conditions: (a) the Partnership shall have performed in all material respects all of its obligations required under the Asset Purchase Agreement to be performed by it on or prior to the closing date, the representations and warranties of the Partnership contained in the Asset Purchase Agreement and in any certificate or other writing delivered by the Partnership pursuant thereto shall have been true as of the date of the Asset Purchase Agreement and shall be true at and as of the closing date in all material respects except for changes permitted or contemplated by the Asset Purchase Agreement, and Comcast shall have received a certificate signed by an appropriate executive officer of the General Partner to the foregoing effect; (b) Comcast shall have received an opinion of the General Partner's Vice President and General Counsel, dated the closing date, in form and substance reasonably satisfactory to Comcast; (c) Comcast shall have received an opinion of the Partnership's FCC counsel, dated the closing date, in form and substance reasonably satisfactory to Comcast; (d) the Roseville System shall have as of the closing date at least (i) 19,000 basic equivalent subscribers, (ii) 24,523 homes passed and (iii) revenue attributable to basic, tier and premium video services in the three-month period immediately preceding the closing date of at least $1,724,819; (e) there shall have been no material adverse change in the business, assets, condition (financial or otherwise) or results of operations of the Roseville System; (f) Comcast shall have entered into, or received a valid assignment of, a retransmission 6 consent agreement with each broadcaster whose signal is carried on the Roseville System at the closing on terms and conditions reasonably acceptable to Comcast (excluding broadcasters that made the "must carry" election); (g) Comcast shall have conducted an environmental assessment of the Roseville System's real estate, which assessment shall be satisfactory to Comcast in its reasonable discretion; (h) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall restrain, prohibit or otherwise interfere with the effective operation or enjoyment by Comcast of all or any material portion of the Roseville System; (i) no proceeding challenging the Asset Purchase Agreement or the transactions contemplated thereby or seeking to prohibit or materially delay the closing shall have been instituted by any person; (j) the Partnership shall have obtained a franchise renewal agreement with each of the city and county franchising authorities on terms and conditions reasonably satisfactory to Comcast; (k) Comcast shall have received evidence satisfactory to it that the Partnership's credit facility has been repaid and that the security interest of the Partnership's banks in the Roseville System have been terminated; (l) Comcast shall have entered into license agreements for pole attachments with each of the parties to the Roseville System's license agreements for pole attachments or provided for or made alternative arrangements reasonably acceptable to Comcast for use of such pole attachments without violation of any legal requirement; (m) certain contracts related to the Roseville System between third parties and affiliates of the Managing General Partner shall have been transferred to Comcast; and (n) the Partnership shall have provided Comcast with written evidence, reasonably satisfactory to Comcast, that the Partnership has made a certain $5,000 payment required by one of its franchises for cablecasting. The obligation of the Partnership to consummate the closing is subject to the satisfaction or waiver of the following further conditions: (a) Comcast shall have performed in all material respects all of its obligations under the Asset Purchase Agreement required to be performed by it at or prior to the closing date, the representations and warranties of Comcast contained in the Asset Purchase Agreement and in any certificate or other writing delivered by Comcast pursuant thereto shall have been true as of the date of the Asset Purchase Agreement and shall be true at and as of the closing date in all material respects, and the Partnership shall have received a certificate signed by an appropriate executive officer of Comcast to the foregoing effect; (b) the subscriber/revenue adjustment to the sales price shall not exceed the amount of $2,000,000; provided, however, that in the event that the subscriber/revenue adjustment to the sales price would exceed such amount but Comcast agrees to limit the amount of the subscriber/revenue adjustment to the sales price to an amount equal to $2,000,000, then this condition shall be deemed waived by the Partnership; (c) the Partnership shall have received an opinion of the Deputy General Counsel of Comcast, dated the closing date, in form and substance reasonably satisfactory to the Partnership; and (d) no proceeding challenging the Asset Purchase Agreement or the transactions contemplated thereby or seeking to prohibit or materially delay the closing shall have been instituted by any person. BREAK-UP FEE PAYABLE TO COMCAST In order to induce Comcast to enter into the Asset Purchase Agreement, the Partnership has agreed that if (i) the Managing General Partner fails to vote in favor of or fails to recommend to the limited partners of the Partnership that they vote in favor of the sale of the Roseville System to Comcast and the limited partners of the Partnership fail to approve the sale of the Roseville System to Comcast, or (ii) the limited partners of the Partnership fail to approve the sale of the Roseville System to Comcast because of a superior proposal for the Roseville System received by the Partnership after the date of the Asset Purchase Agreement and prior to the vote of the limited partners of the Partnership or any transaction having a similar effect, the Partnership will pay to Comcast a break-up fee in an amount equal to the greater of five percent of the $40,000,000 sales price or five percent of the sales price to be received by the Partnership from the party making the superior proposal. For this purpose, the term "superior proposal" means any bona fide, written, unsolicited offer or proposal relating to a merger or other business combination involving the Partnership or the acquisition in any manner of any significant equity interest in, or a substantial portion of the assets of, the Partnership. Limited partners are informed that as of the date of this Proxy Statement, the Partnership has received no superior proposal for the Roseville System and the Managing General Partner currently does not expect that the Partnership will receive a superior proposal for the Roseville System. 7 GUARANTEE AND COVENANTS TO COMCAST In order to induce Comcast to enter into the Asset Purchase Agreement, the Managing General Partner's parent, Jones Intercable, Inc., has executed and delivered to Comcast a guarantee by which Jones Intercable, Inc. has guaranteed all of the liabilities and obligations of the Partnership to Comcast under the Asset Purchase Agreement. Comcast informed Jones Intercable, Inc. that it would be unwilling to enter into the Asset Purchase Agreement without having received Jones Intercable, Inc.'s guarantee. Jones Intercable, Inc. received no payment from the Partnership in return for giving this guarantee. The parties have agreed that none of the Partnership, the Managing General Partner or Jones Intercable, Inc., nor any of their respective affiliates, nor any of their respective officers, directors, representatives or agents shall, directly or indirectly, encourage, solicit, initiate or participate in any way in discussions or negotiations with or provide any confidential information to, any entity concerning any merger of or business combination with or involving the Partnership, the sale of any of the Partnership's assets, other than in the ordinary course of business, consistent with past practice, including without limitation, the Roseville System, the sale of the partnership interests of the Partnership or similar transactions involving the Partnership. The parties have agreed, however, that nothing contained in the Asset Purchase Agreement shall prohibit the Partnership, the Managing General Partner or Jones Intercable, Inc. from responding to any unsolicited proposal or inquiry solely by advising the person making such proposal or inquiry of the terms of the Asset Purchase Agreement. The Managing General Partner agreed with Comcast that the Managing General Partner would prepare and, as soon as practicable, and in any event within 30 days after the date of the Asset Purchase Agreement, file with the Securities and Exchange Commission (the "SEC") a preliminary proxy statement comprising preliminary proxy materials of the Partnership under the Exchange Act with respect to the transactions contemplated by the Asset Purchase Agreement, and would thereafter use its best efforts to respond to any comments of the SEC with respect thereto and to cause a definitive proxy statement and proxy to be mailed to the limited partners of the Partnership as promptly as practicable. The Managing General Partner is obligated to notify Comcast promptly of the receipt of any comments from the SEC or its staff or any other governmental official and of any request by the SEC or its staff or any other governmental official for amendments or supplements to the preliminary proxy statement or for additional information. The Managing General Partner also agreed with Comcast that this Proxy Statement would include the affirmative recommendation of the Managing General Partner that the limited partners of the Partnership approve the transactions contemplated by the Asset Purchase Agreement, and it does so. The Managing General Partner also agreed with Comcast that it would take all action necessary, in accordance with applicable law and the Partnership Agreement, to conduct a vote of the limited partners of the Partnership as promptly as practicable to consider the approval of the Asset Purchase Agreement and the transactions contemplated thereby, and it has done so. The Managing General Partner also agreed with Comcast that, subject to compliance with applicable law, it would use commercially reasonable efforts to solicit from the limited partners of the Partnership proxies in favor of approval of the transactions contemplated by the Asset Purchase Agreement and to take all other commercially reasonable action necessary to secure the vote of the limited partners required to effect the transactions contemplated by the Asset Purchase Agreement, and it intends to do so. The Managing General Partner also agreed with Comcast that it would vote its limited partnership interests in favor of the sale of the Roseville System to Comcast pursuant to the terms and conditions of the Asset Purchase Agreement, and it intends to do so. Each of the Partnership, the Managing General Partner and Jones Intercable, Inc. have agreed with Comcast that for a period of three years from the closing date neither they nor any person in which they have an economic interest will directly or indirectly engage in or be financially interested in or otherwise connected with any business competitive with the Roseville System. This restrictive covenant will not prohibit the Partnership, the Managing General Partner or Jones Intercable, Inc. or any person in which any of the foregoing have an economic interest from, among other things, acquiring an equity interest in 10 percent or less in any company in competition with the Roseville System if such investment constitutes a passive investment and none of the 8 entities giving the noncompetition covenant shall play a role in the managing or operation of such company. The parties have agreed that Comcast shall be entitled to injunctive relief requiring specific performance of this covenant not to compete. BROKERAGE FEE As permitted by Section 2.2(n)(i) of the Partnership Agreement, which provides for the payment by the Partnership of brokerage fees to The Jones Group, Ltd. and IDS Management Corporation, affiliates of the General Partners, in an amount not to exceed a total of 2.5 percent of the sales price of a cable television system sold by the Partnership to an unaffiliated party, the Partnership will pay The Jones Group, Ltd. and IDS Management Corporation aggregate fees of $1,000,000 upon the completion of the sale of the Roseville System to Comcast as compensation to such firms for acting as the Partnership's brokers and financial advisors in connection with the sale of the Roseville System to Comcast. The $1,000,000 in fees represents 2.5 percent of the $40,000,000 sales price and will be shared equally by such firms. REASONS FOR THE TIMING OF THE SALE The decision to proceed with the sale of the Roseville System was based upon the Managing General Partner's determination that the Partnership has achieved its investment objectives with respect to the Roseville System. The Roseville System has appreciated in value during the holding period. Following the sale of the Partnership's Carmel System, the Managing General Partner, through The Jones Group, Ltd., an affiliate of the Managing General Partner, marketed the Roseville System for sale in 1996. The Jones Group, Ltd. received offers for the Roseville System from three unaffiliated companies, including Comcast and an affiliate of the local Roseville telephone company. Each of the original bids were rejected as too low and new offers were solicited. Because the Roseville telephone company affiliate submitted a higher bid in the second round of bidding and offered to include a purchase price upward adjustment in the purchase agreement, a feature not offered by the other bidders, its offer was accepted and a definitive asset purchase agreement was negotiated at arm's-length between the Managing General Partner, representing the Partnership, and the Roseville telephone company affiliate over a period of several months and the definitive asset purchase agreement was executed on October 14, 1996. The proposed sales price at that time was $30,900,000. Although that transaction was approved by the holders of a majority of the limited partnership interests in the Partnership, one of the material closing conditions to that transaction was never satisfied. Because the prospective purchaser was affiliated with the company that provides telephone services in the geographical areas in which the Roseville System provides cable television services, a waiver from the Federal Communications Commission (the "FCC") of Section 652 of the Telecommunications Act of 1996, which prohibits the acquisition by a telephone company and its affiliates of cable systems in the telephone company's service area, was necessary to permit the prospective purchaser to consummate its acquisition of the Roseville System. The prospective purchaser with the support and assistance of the Managing General Partner, actively sought this waiver from the FCC, but the FCC failed to grant the request for the waiver. As a result of the FCC's failure to grant the request for the waiver, the asset purchase agreement between the Partnership and that prospective purchaser expired and was not renewed in February 1998, and the Managing General Partner, through The Jones Group, Ltd., again marketed the Roseville System for sale. Officers of The Jones Group, Ltd. contacted Comcast, one of the bidders for the Roseville System in 1996, to determine whether Comcast would be interested in bidding for the Roseville System again. Comcast indicated that it wished to make an offer for the Roseville System and informed the Managing General Partner it would pay a premium for the Roseville System if The Jones Group, Ltd. would refrain from putting the system out for general bidding. Management of the Managing General Partner and officers of The Jones Group, Ltd. concluded that Comcast's offer should be accepted in light of the following factors: Comcast's good reputation as a cable system operator would facilitate the transfer of the Roseville System's cable franchises to Comcast as buyer, Comcast's willingness to commit to a rebuild of the Roseville System would make less difficult the renewal of the Roseville System's cable franchises that are scheduled to expire in 1999 and 2000, Comcast's strong financial 9 position removed any uncertainty about its ability to close its purchase of the Roseville System, Comcast was willing to close the transaction regardless of the threat of competition from the local telephone company affiliate that had failed to acquire the Roseville System and the $40,000,000 sales price, which equates to a sales price equal to 11.95 times the Roseville Systems' 1997 cash flow and a price of $2,000 per basic equivalent subscriber. The Partnership has a finite legal existence of 17 years, almost 11 of which have passed. It was not intended or expected, however, that the Partnership would hold its cable systems for 17 years. Although it was not possible at the outset of the Partnership to determine precisely how quickly the investment objectives with respect to any particular system would be achieved, investors were informed that past experience with prior partnerships had shown that five to seven years was the average length of time from the acquisition of a cable system to its sale. Investors in the Partnership also were able to examine the track record of prior partnerships because such track record was set forth in the prospectus delivered in connection with the Partnership's initial public offering. At the time of the formation of the Partnership, the track record showed that prior partnerships had rarely held their cable systems for any longer than six years. When investing in the Partnership, by virtue of the provisions of the Partnership Agreement, the limited partners vested in the Managing General Partner the right and the responsibility to determine when the Partnership's investment objectives had been achieved. The Roseville System was acquired because, in the opinion of the Managing General Partner at the time of the Roseville System's acquisition, it had the potential for capital appreciation within a reasonable period of time. It is the Managing General Partner's opinion that during the 10 years that the Roseville System has been held by the Partnership, the Partnership's investment objectives with respect to the Roseville System have been achieved. The Managing General Partner used no specific benchmarks or measurement tools in determining that the Partnership's investment objectives have been achieved. The Managing General Partner conducted a very subjective evaluation of a variety of factors including the length of the holding period, the prospects for future growth as compared to the potential risks, the cash on cash return to investors, the after-tax internal rate of return to limited partners and the amount of gain to be recognized on the sale of assets. The Managing General Partner generally considered the benefits to the limited partners that might be derived by holding the Roseville System for an additional period of time. The Managing General Partner assumed that the Roseville System probably would continue to appreciate in value and that as a result the Roseville System might be able to be sold for a greater sales price in the future. The Managing General Partner weighed these assumptions against the potential risks to investors from a longer holding period, i.e., the risks that regulatory, technology and/or competitive developments could cause the Roseville System to decline in value, which would result in a lesser sales price in the future. A longer holding period would expose investors to the risk that competition from direct broadcast satellite companies, telephone companies and/or neighboring cable companies could diminish the number of subscribers to the Roseville System's basic and premium services, thereby decreasing the value of the Roseville System. A longer holding period also would expose investors to the risk that changes in the regulations promulgated by the governmental agencies that oversee cable operations could make cable systems a less desirable investment, thereby decreasing the value of the Roseville System. Weighing all of these factors, the Managing General Partner concluded that now rather than later was the time to sell the Roseville System. RECOMMENDATION OF THE MANAGING GENERAL PARTNER AND FAIRNESS OF THE PROPOSED SALE OF ASSETS The Managing General Partner believes that the proposed sale of the Roseville System and the distribution of the net proceeds therefrom are fair to all partners of the Partnership, and it recommends that the limited partners approve the transaction. In determining the fairness of the proposed transaction, the Managing General Partner considered each of the following factors, all of which had a positive effect on their fairness determination: (i) The limited partnership interests are at present illiquid and the cash to be distributed to limited partners as a result of the proposed sale of the Roseville System will provide limited partners with liquidity and with the means to realize the appreciation in the value of the Roseville System; 10 (ii) The purchase price represents the fair market value of the Roseville System because the purchase price was determined in an arm's-length negotiation between the Managing General Partner, representing the Partnership, and Comcast; (iii) The Partnership has held the Roseville System for 10 years, a holding period beyond that originally anticipated; (iv) The conditions and prospects of the cable television industry in which the Partnership is engaged, including the developing threat of competition from DBS services and telephone companies, and the working capital and other financial needs of the Partnership if it were to continue to operate and upgrade the Roseville System, which will need to be rebuilt as a condition to the renewal of the system's cable franchises; and (v) The terms and conditions of the Asset Purchase Agreement by and between the Partnership and Comcast, including the fact that the sales price will be paid in cash and the fact that Comcast's obligation to close is not contingent upon its ability to obtain financing. The Managing General Partner reviewed the terms of the Asset Purchase Agreement and the sales price and, based on its general knowledge of cable television system transactions undertaken by cable television companies, concluded that the sales price and other transaction terms were fair and were within industry norms for comparable transactions. CONSENT OF THE SUPERVISING GENERAL PARTNER Pursuant to Section 2.3(c)(ii) of the Partnership Agreement, the Partnership could not proceed with the sale of the Roseville System unless the Supervising General Partner consents to the transaction. After an independent review of all of the terms and conditions of the proposed sale of the Roseville System to Comcast, the Supervising General Partner consented to the transaction in July 1998. CERTAIN EFFECTS OF THE SALE Upon the consummation of the proposed sale of the Roseville System, the proceeds of the sale will be used to repay all indebtedness of the Partnership (including $10,000,000 borrowed under its credit facility, $47,055 in advances from the Managing General Partner and capital lease obligations of $20,204), pay brokerage fees to The Jones Group, Ltd., an affiliate of the Managing General Partner, and to IDS Management Corporation, an affiliate of the Supervising General Partner, totaling $1,000,000, representing 2.5 percent of the sales price, for acting as brokers and financial advisors in this transaction and settle working capital adjustments, and then the Partnership will distribute the approximate $29,410,720 net sale proceeds to the partners of record as of the closing date pursuant to the terms of the Partnership Agreement. Because the distribution to be made on the sale of the Roseville System together with the April 1996 distribution from the sale of the Carmel System will exceed 125 percent of the amounts originally contributed to the Partnership by the limited partners,the General Partners will receive general partner distributions on the sale of the Roseville System. Based upon the pro forma financial information as of March 31, 1998, as a result of this distribution, the limited partners of the Partnership, as a group, will receive $27,384,446, the Managing General Partner will receive $1,013,137 and the Supervising General Partner will receive $1,013,137 of the net proceeds from the sale of the Roseville System. The limited partners will be subject to federal and state income tax on the income resulting from the sale of the Roseville System. See the detailed information below under the caption "Federal and State Income Tax Consequences." After the sale of the Roseville System and the distribution of the net proceeds therefrom, the Partnership will be liquidated and dissolved, most likely in the first quarter of 1999. Neither Colorado law nor the Partnership Agreement afford dissenters' or appraisal rights to limited partners in connection with the proposed sale of the Roseville System. If the proposed transaction is approved by the holders of a majority of limited partnership interests, all limited partners will receive a distribution in accordance with the procedures prescribed by the Partnership Agreement regardless of how or whether they vote on the proposal. It is anticipated that if the 11 proposed transaction is not consummated, the Managing General Partner's current management team will continue to manage the Roseville System on behalf of the Partnership until such time as the Roseville System can be sold. All distributions of the Partnership from the proceeds of the sale of the Roseville System will be made to the Partnership's limited partners of record as of the closing date of the sale of the Roseville System. Because transferees of limited partnership interests following the closing date of the sale of the Roseville System would not be entitled to any distributions from the Partnership, a transfer of limited partnership interests following the closing date of the sale of the Roseville System would have no economic value. The Managing General Partner therefore has determined that, pursuant to the authority granted to it by Section 3.5 of the Partnership Agreement, it will not approve any transfers of limited partnership interests following the closing of the sale of the Roseville System. Sales of limited partnership interests pursuant to limited tender offers, in the secondary market or otherwise will not be possible following the closing of the sale of the Roseville System. FEDERAL AND STATE INCOME TAX CONSEQUENCES The purpose of the following discussion of the income tax consequences of the proposed transaction is to inform the limited partners of the Partnership of the federal income tax consequences to the Partnership and to its partners arising from the proposed sale of the Roseville System. The tax information included herein was prepared by the tax department of the Managing General Partner. The tax information is taken from tax data compiled by the Managing General Partner in its role as the Partnership's tax administrator and is not based upon the advice or formal opinion of counsel. The tax discussion that follows is merely intended to inform the limited partners of factual information and should not be considered tax advice. PARTNERSHIP ALLOCATION OF GAIN FROM SALE Section 5.4 of the Partnership Agreement specifies that Partnership distributions of cable television system net sale proceeds shall be allocated 100 percent to limited partners until they have received a return in an amount equal to 125 percent of their initial capital contributions and thereafter such distributions are to be made 75 percent to the limited partners and 25 percent to the General Partners. The net cash proceeds from the Roseville System's sale, together with prior cash distributions, will allow the limited partners to receive an amount in excess of 125 percent of the initial limited partner capital contributions. Accordingly, a portion of the cash distributions will be specially allocated 75 percent to the limited partners and 25 percent to the General Partners. The allocation of gain from the sale of the Roseville System will follow the allocation provisions of Section 5.3 of the Partnership Agreement. The allocation of gain will be 100 percent to the limited partners to the extent of 125 percent of their initial capital contributions and thereafter 75 percent to the limited partners and 25 percent to the General Partners. This allocation follows the underlying economic gain of the partners and hence satisfies the "substantial economic effect" test enacted in Internal Revenue Code ("IRC") Section 704(b) regarding special partnership allocations. Application of the allocation provisions of Section 5.3 ensures that the limited partners' net sum of allocable partnership loss and income during the Partnership's life will equal the net economic gain or loss realized from their investment in the Partnership. The estimated allocable limited partner income from the Roseville System sale reported below incorporates the application of the special partnership allocation rules of Section 5.3. PROJECTED 1998 TAX RESULTS By the expected date of the proposed system sale in 1998, most of the limited partners will have received certain tax benefits from their investment in the Partnership. Assuming maximum federal income tax rates and no other sources of passive income, original limited partners of the Partnership will have received $558,560 in tax benefits from Partnership losses ($14 per $1,000 invested). Tax benefits derived from allocable Partnership losses have been limited due to the passive loss limitation rules enacted in 1986. 12 The 1998 sale of the Roseville System will result in a gain for federal income tax purposes. The amount of this gain allocated to limited partners will be approximately $29,542,801. The Managing General Partner estimates that $25,347,681 ($618 per $1,000 invested) of this gain will be treated as ordinary income. This amount of ordinary income results from the recapture of depreciation on business assets under IRC Section 1245. The Managing General Partner estimates that the remainder of the gain, $4,195,120 ($102 per $1,000 invested), will be treated as long term capital gain under IRC Section 1231. Some of this allocable gain may be offset by passive loss carryforwards of the limited partners, which is discussed in more detail below. APPLICATION OF PASSIVE LOSS CARRYFORWARDS The Tax Reform Act of 1986 enacted a limitation on a limited partner's ability to currently deduct allocable partnership losses, which were deemed to be passive losses. The law phased in the disallowance of passive loss deductions until 1991, when no passive losses were allowable except to the extent of passive income or a disposition of the passive activity. The proper application of these loss limitation rules will have resulted in the existence of passive loss carryforwards for the Partnership's limited partners. These potential passive loss carryforwards can be deducted in the current year to offset the allocable Partnership gains from the sale of the Roseville System. The Managing General Partner estimates that the Partnership has generated potential passive loss carryforwards of $5,751,841 ($140 per $1,000 invested) that may be available for offset against 1998 income. The carryforward amount is calculated by applying the passive loss limitations to historical partnership losses and assuming that the limited partners of the Partnership would not have utilized prior year limited passive losses on account of other sources of passive income. The 1996 sale of the Partnership's Carmel, Indiana system effectively utilized a significant portion of the Partnership-generated passive loss carryforwards. The availability of remaining loss carryforwards depends on the particular tax history of each limited partner. Partners that have utilized some or all of prior Partnership losses limited by the passive loss rules will have deductible passive losses that vary accordingly. SYNDICATION COSTS Syndication costs represent the sales commissions paid by limited partners on their purchase of their limited partnership interests and allocable costs associated in forming the Partnership. These costs were capitalized on the Partnership's books and are reflected in the limited partners' capital account balance. Upon liquidation of the Partnership, the syndication costs cannot be deducted by the Partnership. However, these costs can be deducted by the limited partners as a long term capital loss under IRC Section 731. Limited partners will have an ending capital balance on their final Form 1065, Schedule K-1 which represents their allocable syndication costs. The Partnership has syndication costs of $4,760,362 ($116 per $1,000 invested) that will be deductible by limited partners in the final year of the Partnership, which is anticipated to be 1999. Assuming the 31 percent rate applies to ordinary income and the 20 percent rate applies to long term capital gain income, a limited partner will be subject to federal taxes of $144 per $1,000 invested in the Partnership. This tax amount assumes deduction of passive loss carryforwards and syndication costs as discussed above. SECONDARY MARKET PURCHASERS Limited partners that have recently acquired their partnership interests in the limited partnership secondary market or through tender offers will have allocable income from the Roseville System sale in the amounts reported above. Because the Partnership does not have an IRC Section 754 election in effect, the purchase of a limited partnership interest in the Partnership places the new investor in the same position as the limited partner from whom the interest was purchased. Newer investors in the Partnership will not have their net tax basis in their partnership interests reflected on their annual Schedule K-1. Such limited partners must track their tax basis by adjusting their original cost by allocable income or loss and partnership distributions. Their adjusted tax basis will be deductible as a long term capital loss under IRC Section 731 in a manner similar to the Partnership syndication costs discussed above. 13 TAX WITHHOLDING ON SALE PROCEEDS The sale of the Roseville System will require limited partner reporting to the State of California. The Managing General Partner is required by California state law to withhold 7 percent of each U.S. nonresident partner's cash distribution from California sources. The Managing General Partner is required to withhold 9.3 percent of each foreign nonresident partner's cash distribution. This withholding requirement does not apply to tax exempt entities such as trusts and IRAs. California nonresident limited partners are required to file California nonresident state tax returns to compute the appropriate state tax liability. Documentation of withheld taxes will be reported on state specified forms to limited partners in January 1999. Detailed California reporting instructions and blank forms will be provided to limited partners in their annual tax reporting package, which will be mailed to limited partners in March 1999. FEDERAL REPORTING BY TAX EXEMPT ENTITIES The 1998 Roseville System sale will generate Unrelated Business Taxable Income (UBTI) to tax exempt entities, which will require the filing of Form 990-T. Although many trust administrators complete the required tax returns, responsibility for completion of the Form 990-T ultimately rests with the beneficiaries of trusts, IRAs and other tax exempt entities. Because this is an area in which there is a variance of policy among trust administrators, each limited partner who is a beneficiary is advised to confirm with his or her trust administrator how this filing requirement will be fulfilled. The Managing General Partner has learned that some trust administrators will file a Form 990-T without consideration of prior year loss carryforwards. If your plan administrator employs this methodology, your tax exempt plan will be subject to significant tax liabilities that would not be incurred if prior year losses were reported. Each limited partner who is a beneficiary of a tax exempt entity is advised to inquire about the reporting methodology employed by his or her trust administrator if the trust administrator is filing the Form 990-T for 1998. 14 CERTAIN INFORMATION ABOUT THE PARTNERSHIP, THE GENERAL PARTNERS AND THE PURCHASER OF THE SYSTEM The principal executive offices of the Partnership and the Managing General Partner are located at 9697 East Mineral Avenue, Englewood, Colorado 80112, and their telephone number is (303) 792-3111. The principal executive offices of the Supervising General Partner are located at IDS Tower 10, 733 Marquette Avenue, Minneapolis, Minnesota 55402, and its telephone number is (612) 671- 2927. The principal executive offices of Comcast are located at 1500 Market Street, Philadelphia, Pennsylvania 19102. The parent of the Managing General Partner is Jones Intercable, Inc. ("Intercable"). Both Intercable and Comcast are among the nation's largest cable television system operators. Intercable was formed by Glenn R. Jones, who serves as Intercable's chairman and chief executive officer. Through his ownership of a majority of Intercable's supervoting Common Stock, Mr. Jones is entitled to elect a majority of the members of Intercable's Board of Directors and he otherwise controls the company. Intercable's current other major shareholder is BCI Telecom Holding Inc. ("BTH"), an affiliate of Bell Canada and a subsidiary of BCE Inc., Canada's largest telecommunications company. BTH owns approximately 36 percent of Intercable's Class A Common Stock. Through rights granted to it under a shareholders agreement, BTH has the ability to nominate several persons to Intercable's Board of Directors. In addition, BTH holds an option to purchase Mr. Jones' supervoting shares. BTH recently announced its intention to sell approximately half of its shares of Intercable's Class A Common Stock, representing approximately an 18 percent interest in Intercable, to Comcast. BTH also announced its intention to grant to Comcast the right to acquire all of Mr. Jones' supervoting shares from BTH if and when BTH exercises its option to purchase Mr. Jones' supervoting shares. Except in limited circumstances, such option will only be exerciseable during the 12-month period following December 20, 2001. BTH would also sell to Comcast at the time that the option is exercised the remaining 18 percent interest that it would then hold in Intercable. The proposed transaction between BTH and Comcast has not yet been consummated. If and when the initial closing occurs, each of BTH and Comcast will own approximately 18 percent of Intercable's Class A Common Stock. And, ultimately, Comcast may acquire a controlling interest in Intercable. Such a change in control of Intercable, if it occurs, is not expected to occur until after the closing of the Partnership's sale of the Roseville System to Comcast. The Managing General Partner believes that the announced transaction between BTH and Comcast involving the equity ownership of Intercable in no way compromises the arm's- length nature of the Partnership's proposed sale of the Roseville System to Comcast. The limited partnership interests of the Partnership are registered pursuant to Section 12(g) of the Exchange Act. As such, the Partnership currently is subject to the informational reporting requirements of the Exchange Act and, in accordance therewith, is obligated to file periodic reports, proxy statements and other information with the Securities and Exchange Commission relating to its business, financial condition and other matters. Reports and other information filed by the Partnership can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the following regional offices of the Commission: 7 World Trade Center, Suite 1300, New York, New York 10048 and Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. The SEC also maintains a World Wide Website on the Internet that contains reports, proxy statements and other information of registrants (including the Partnership) that file electronically with the SEC at http://www.sec.gov. After the net proceeds from the sale of the Roseville System finally are distributed to the Partnership's limited partners of record as of the closing date of the sale of the Roseville System, the Partnership will be liquidated and dissolved. The Partnership's registration and reporting requirements under the Exchange Act will be terminated upon the dissolution of the Partnership, most likely in the first quarter of 1999. 15 USE OF PROCEEDS FROM THE ROSEVILLE SYSTEM'S SALE The following is a brief summary of the Partnership's estimated use of the proceeds from the sale of the Roseville System. All of the following selected financial information is based upon amounts as of March 31, 1998 and certain estimates of liabilities at closing. Final results may differ from these estimates. A more detailed discussion of the financial consequences of the sale of the system is set forth below under the caption "Unaudited Pro Forma Financial Information." All limited partners are encouraged to review carefully the unaudited pro forma financial statements and notes thereto. If the holders of a majority of limited partnership interests of the Partnership approve the proposed sale of the Roseville System and the transaction is closed, the Partnership will pay all of its indebtedness, and then the Partnership will distribute the net sale proceeds pursuant to the terms of the Partnership Agreement. The estimated uses of the sale proceeds are as follows: Contract Sales Price of the Roseville System.................... $ 40,000,000 Add: Cash on Hand.............................................. 493,384 Less: Estimated Net Closing Adjustments......................... (15,405) Repayment of Debt......................................... (10,067,259) Brokerage Fees............................................ (1,000,000) ------------ Cash Available for Distribution by the Partnership.... $ 29,410,720 ============
Based on financial information available at March 31, 1998, the following table presents the estimated results of the Partnership when it has completed the sale of the Roseville System: Dollar Amount Raised............................................ $41,044,500 Number of Cable Television Systems Purchased.................... Two Date of Closing of Offering..................................... January 1989
Tax and Distribution Data per $1,000 of Limited Partnership Capital: Federal Income Tax Results Ordinary Income (Loss) --from operations............................................. $ (807) --from recapture.............................................. $1,207 Capital Gain (Loss)........................................... $ -0- Cash Distributions to Investors Source (on GAAP basis) --investment income........................................... $ 400 --return of capital........................................... $1,000 Source (on cash basis) --sales....................................................... $1,400
16 UNAUDITED PRO FORMA FINANCIAL INFORMATION OF IDS/JONES GROWTH PARTNERS 87-A, LTD. The following unaudited pro forma balance sheet assumes that as of March 31, 1998, the Partnership had sold the Roseville System for $40,000,000. The funds available to the Partnership, adjusting for the estimated net closing adjustments of the Roseville System, are expected to total approximately $39,984,595. Such funds will be used to repay all indebtedness of the Partnership (including $10,000,000 borrowed under its credit facility, $47,055 in advances from Managing General Partner and capital lease obligations of $20,204), pay brokerage fees to The Jones Group, Ltd., an affiliate of the Managing General Partner, and to IDS Management Corporation, an affiliate of the Supervising General Partner, totaling $1,000,000, representing 2.5 percent of the sales price, for acting as brokers and financial advisors in this transaction and settle working capital adjustments, and the balance will be distributed to the partners of the Partnership of record as of the closing date pursuant to the terms of the Partnership Agreement. Because the distribution to be made on the sale of the Roseville System together with the April 1996 distribution from the sale of the Carmel System will exceed 125 percent of the amounts originally contributed to the Partnership by the limited partners, the General Partners will receive general partner distributions on the sale of the Roseville System. The unaudited pro forma balance sheet should be read in conjunction with the appropriate notes to the unaudited pro forma balance sheet. ALL OF THE FOLLOWING UNAUDITED PRO FORMA FINANCIAL INFORMATION IS BASED UPON AMOUNTS AS OF MARCH 31, 1998 AND CERTAIN ESTIMATES OF LIABILITIES AT CLOSING. FINAL RESULTS MAY DIFFER FROM SUCH INFORMATION. 17 IDS/JONES GROWTH PARTNERS 87-A, LTD. UNAUDITED PRO FORMA BALANCE SHEET MARCH 31, 1998
PRO FORMA PRO FORMA AS REPORTED ADJUSTMENTS BALANCE ----------- ------------ ----------- ASSETS Cash and Cash Equivalents............... $ 493,384 $ 28,917,336 $29,410,720 Trade Receivables, net.................. 219,108 (219,108) -- Investment in Cable Television Properties: Property, plant and equipment, net.... 9,140,681 (9,140,681) -- Franchise costs and other intangibles, net.................................. 2,521,797 (2,521,797) -- ----------- ------------ ----------- Total investment in cable television properties......................... 11,662,478 (11,662,478) -- Deposits, Prepaid Expenses and Deferred Charges................................ 178,046 (178,046) -- ----------- ------------ ----------- Total Assets............................ $12,553,016 $ 16,857,704 $29,410,720 =========== ============ =========== LIABILITIES AND PARTNERS' CAPITAL Liabilities: Debt.................................. $10,020,204 $(10,020,204) $ -- Advances from Managing General Partner.............................. 47,055 (47,055) -- Trade accounts payable and accrued liabilities.......................... 373,573 (373,573) -- Subscriber prepayments................ 38,986 (38,986) -- Accrued distribution to limited partners............................. -- 27,384,446 27,384,446 Accrued distribution to General Partners............................. -- 2,026,274 2,026,274 ----------- ------------ ----------- Total Liabilities................... 10,479,818 18,930,902 29,410,720 ----------- ------------ ----------- Partners' Capital: Managing General Partner.............. (3,617) 3,617 -- Supervising General Partner........... (3,617) 3,617 -- Limited Partners...................... 2,080,432 (2,080,432) -- ----------- ------------ ----------- Total Partners' Capital............. 2,073,198 (2,073,198) -- ----------- ------------ ----------- Total Liabilities and Partners' Capital.............................. $12,553,016 $ 16,857,704 $29,410,720 =========== ============ ===========
The accompanying notes to unaudited pro forma financial statements are an integral part of this unaudited balance sheet. 18 IDS/JONES GROWTH PARTNERS 87-A, LTD. UNAUDITED PRO FORMA STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1997
PRO FORMA PRO FORMA AS REPORTED ADJUSTMENTS BALANCE ----------- ----------- --------- REVENUES.................................... $7,840,578 $(7,840,578) $ -- COSTS AND EXPENSES: Operating expenses........................ 4,633,573 (4,633,573) -- Management fees and allocated overhead from the General Partners..................... 931,938 (931,938) -- Depreciation and Amortization............. 1,589,820 (1,589,820) -- ---------- ----------- ------ OPERATING INCOME............................ 685,247 (685,247) -- ---------- ----------- ------ OTHER INCOME (EXPENSE): Interest expense.......................... (702,281) 702,281 -- Other, net................................ (461,290) 461,290 -- ---------- ----------- ------ Total other income (expense), net....... (1,163,571) 1,163,571 -- ---------- ----------- ------ NET LOSS.................................... $ (478,324) $ 478,324 $ -- ========== =========== ====== NET LOSS PER LIMITED PARTNERSHIP INTEREST... $ (2.88) $ -- ========== ======
The accompanying notes to unaudited pro forma financial statements are an integral part of this unaudited statement. 19 IDS/JONES GROWTH PARTNERS 87-A, LTD. UNAUDITED PRO FORMA STATEMENT OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 1998
PRO FORMA PRO FORMA AS REPORTED ADJUSTMENTS BALANCE ----------- ----------- --------- REVENUES.................................... $2,031,874 $(2,031,874) $ -- COSTS AND EXPENSES: Operating expenses........................ 1,188,584 (1,188,584) -- Management fees and allocated overhead from the General Partners..................... 232,323 (232,323) -- Depreciation and amortization............. 336,198 (336,198) -- ---------- ----------- ------ OPERATING INCOME............................ 274,769 (274,769) -- ---------- ----------- ------ OTHER INCOME (EXPENSE): Interest expense.......................... (176,735) 176,735 -- Other, net................................ (7,513) 7,513 -- ---------- ----------- ------ Total other income (expense), net....... (184,248) 184,248 -- ---------- ----------- ------ NET INCOME.................................. $ 90,521 $ (90,521) $ -- ========== =========== ====== NET INCOME PER LIMITED PARTNERSHIP INTEREST................................... $ .55 $ -- ========== ======
The accompanying notes to unaudited pro forma financial statements are an integral part of this unaudited statement. 20 IDS/JONES GROWTH PARTNERS 87-A, LTD. NOTES TO UNAUDITED PRO FORMA FINANCIAL STATEMENTS 1) The following calculations present the sale of the Roseville System and the resulting estimated proceeds expected to be received by the Partnership. 2) The unaudited pro forma balance sheet assumes that the Partnership had sold the Roseville System for $40,000,000 as of March 31, 1998. The unaudited pro forma statements of operations assume that the Partnership had sold the Roseville System for $40,000,000 as of January 1, 1997. 3) The estimated gain recognized from the sale of the Roseville System and corresponding estimated distribution to limited partners as of March 31, 1998 has been computed as follows: GAIN ON SALE OF ASSETS: Contract sales price............................................. $ 40,000,000 Less: Net book value of investment in cable television properties at March 31, 1998.......................................... (11,662,478) Brokerage fees............................................. (1,000,000) ------------ Gain on sale of assets........................................... $ 27,337,522 ============ DISTRIBUTION TO PARTNERS: Contract sales price............................................. $ 40,000,000 Working Capital Adjustment: Add: Trade receivables, net..................................... 219,108 Prepaid expenses........................................... 178,046 Less: Accrued liabilities........................................ (373,573) Subscriber prepayments..................................... (38,986) ------------ Adjusted cash received........................................... 39,984,595 Less: Outstanding debt to third parties.......................... (10,020,204) Outstanding advances from the Managing General Partner..... (47,055) Brokerage fee to The Jones Group, Ltd...................... (500,000) Brokerage fee to IDS Management Corporation................ (500,000) Add: Cash on hand............................................... 493,384 ------------ Cash available for distribution in 1998.......................... $ 29,410,720 ============ Limited partners' share.......................................... $ 27,384,446 ============ Managing General Partner's share................................. $ 1,013,137 ============ Supervising General Partner's share.............................. $ 1,013,137 ============
21 AVAILABLE INFORMATION The Partnership's Annual Report on Form 10-K for the fiscal year ended December 31, 1997 and the Partnership's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1998 are being mailed to the limited partners of the Partnership together with this Proxy Statement. INCORPORATION BY REFERENCE The Partnership's Annual Report on Form 10-K for the fiscal year ended December 31, 1997 and the Partnership's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1998 are incorporated by reference in their entirety in this proxy statement. 22 [LOGO OF JONES INTERCABLE, INC.] 9697 EAST MINERAL AVENUE ENGLEWOOD, COLORADO 80112 PROXY THIS PROXY IS SOLICITED ON BEHALF OF THE PARTNERSHIP BY THE MANAGING GENERAL PARTNER The undersigned Limited Partner of IDS/Jones Growth Partners 87-A, Ltd., a Colorado limited partnership, hereby votes on the sale of the Partnership's Roseville, California cable television system to Comcast Corporation or one of its affiliates for a sales price of $40,000,000 in cash, subject to normal closing adjustments, pursuant to the terms and conditions of that certain Asset Purchase Agreement dated as of July 21, 1998, as follows: [_] CONSENTS [_] WITHHOLDS CONSENT [_] ABSTAINS (You must sign on the reverse side of this proxy card for your vote to count.) THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED LIMITED PARTNER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR THE PROPOSED SALE TRANSACTION. PLEASE SIGN EXACTLY AS NAME APPEARS. DATED: _____________________, 1998 __________________________________ Beneficial Owner Signature (Investor) __________________________________ Authorized Trustee/Custodian Signature PLEASE SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE. [LOGO OF JONES INTERCABLE, INC.] 9697 EAST MINERAL AVENUE ENGLEWOOD, COLORADO 80112 PROXY THIS PROXY IS SOLICITED ON BEHALF OF THE PARTNERSHIP BY THE MANAGING GENERAL PARTNER The undersigned Limited Partner of IDS/Jones Growth Partners 87-A, Ltd., a Colorado limited partnership, hereby votes on the sale of the Partnership's Roseville, California cable television system to Comcast Corporation or one of its affiliates for a sales price of $40,000,000 in cash, subject to normal closing adjustments, pursuant to the terms and conditions of that certain Asset Purchase Agreement dated as of July 21, 1998, as follows: [_] CONSENTS [_] WITHHOLDS CONSENT [_] ABSTAINS (You must sign on the reverse side of this proxy card for your vote to count.) THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED LIMITED PARTNER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR THE PROPOSED SALE TRANSACTION. All owners must sign exactly as name(s) appear on label. When limited partnership inter- ests are held by more than one person, all owners must sign. When signing as attorney, as ex- ecutor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign in full corporation name by authorized officer. If a partner- ship, please sign in partnership name by authorized person. DATED: _____________________, 1998 __________________________________ Signature--Investor 1 __________________________________ Signature--Investor 2 __________________________________ Signature--Investor 3 PLEASE SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE. EX-99.1 2 ASSET PURCHASE AGREEMENT DATED JULY 21, 1998 EXHIBIT 99.1 ASSET PURCHASE AGREEMENT dated as of July 21, 1998 among COMCAST CORPORATION, IDS/JONES GROWTH PARTNERS 87-A, LTD., JONES CABLE CORPORATION, JONES INTERCABLE, INC. and JONES INTERNATIONAL, LTD. TABLE OF CONTENTS
Page ---- ARTICLE 1 DEFINITIONS Section 1.1. Definitions................................. 1 ARTICLE 2 PURCHASE AND SALE Section 2.1. Purchase and Sale........................... 9 Section 2.2. Excluded Assets............................. 11 Section 2.3. Assumption of Liabilities................... 12 Section 2.4. Excluded Liabilities........................ 12 Section 2.5. Purchase Price.............................. 13 Section 2.6. Closing..................................... 15 Section 2.7. Allocation of Purchase Price................ 16 ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER AND JCC Section 3.1. Existence and Power; Affiliates............. 16 Section 3.2. Authorization............................... 16 Section 3.3. Governmental Authorization.................. 16 Section 3.4. Non-Contravention........................... 17 Section 3.5. Required Consents; Franchise Approvals...... 17 Section 3.6. Financial Statements........................ 17 Section 3.7. Absence of Certain Changes.................. 17 Section 3.8. Properties.................................. 19 Section 3.9. Sufficiency of and Title to the Assets...... 20 Section 3.10. No Undisclosed Liabilities.................. 20 Section 3.11. Litigation.................................. 21 Section 3.12. Material Contracts.......................... 21 Section 3.13. Affiliates.................................. 22 Section 3.14. Insurance Coverage.......................... 22 Section 3.15. Compliance.................................. 23 Section 3.16. Receivables................................. 23 Section 3.17. Intellectual Property....................... 23 Section 3.18. Finders' Fees............................... 23 Section 3.19. Environmental Compliance.................... 24 Section 3.20. Authorizations and CATV Instruments......... 24 Section 3.21. Technical Compliance........................ 25 Section 3.22. Additional FCC Matters...................... 26 Section 3.23. Federal Aviation Authority.................. 26 Section 3.24. Subscriber and Revenue Data................. 26 Section 3.25. Legality of Signal Carriage................. 27 Section 3.26. Certain System Information.................. 28
i Section 3.27. No Impediments to Business.................. 28 Section 3.28. Full Disclosure............................. 29 ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF JONES Section 4.1. Organization and Existence.................. 29 Section 4.2. Corporate Authorization..................... 29 Section 4.3. Governmental Authorization.................. 29 Section 4.4. Non-Contravention........................... 29 Section 4.5. Litigation.................................. 29 Section 4.6. Full Disclosure............................. 30 ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF JCC Section 5.1. Organization and Existence.................. 30 Section 5.2. Corporate Authorization..................... 30 Section 5.3. Governmental Authorization.................. 30 Section 5.4. Non-Contravention........................... 30 Section 5.5. Litigation.................................. 30 Section 5.6. Full Disclosure............................. 30 ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BUYER Section 6.1. Organization and Existence.................. 31 Section 6.2. Corporate Authorization..................... 31 Section 6.3. Governmental Authorization.................. 31 Section 6.4. Non-Contravention........................... 31 Section 6.5. Finders' Fees............................... 31 Section 6.6. Litigation.................................. 31 Section 6.7. Full Disclosure............................. 31 ARTICLE 7 COVENANTS OF SELLER, JCC, JONES AND JONES INTERCABLE Section 7.1. Conduct of the Business..................... 32 Section 7.2. Access to Information....................... 35 Section 7.3. Notices of Certain Events................... 35 Section 7.4. Noncompetition.............................. 35 Section 7.5. Use of Seller's Name........................ 36 Section 7.6. Capital Leases.............................. 37 Section 7.7. Consents; Estoppel Certificates............. 37 Section 7.8. Agreement to Consult........................ 37 Section 7.9 Transitional Billing Services............... 37
ii Section 7.10. No Solicitation............................. 37 Section 7.11. SEC Filings................................. 38 Section 7.12. JCC Recommendation.......................... 39 Section 7.13. Vote of Partners of Seller.................. 39 Section 7.14. Schedules................................... 39 Section 7.15. Fees for Environmental Assessment........... 39 Section 7.16. City of Roseville Franchise................. 39 Section 7.17. Termination of Revolving Credit and Term Loan Agreement and Security Interests....... 40 Section 7.18. Waiver of JCC Right of First Refusal........ 40 Section 7.19. Stoddard/Pacific #2 Agreement............... 40 Section 7.20. Pole Attachment Agreements.................. 40 Section 7.21. Assignment by Jones Intercable.............. 40 Section 7.22. Maidu Center Payment........................ 40 Section 7.23. Easement.................................... 41 ARTICLE 8 COVENANTS OF BOTH PARTIES Section 8.1. Best Efforts; Further Assurances............ 41 Section 8.2. Certain Filings............................. 41 Section 8.3. Public Announcements........................ 42 ARTICLE 9 TAX MATTERS Section 9.1. Tax Definitions............................. 42 Section 9.2. Tax Representations......................... 43 Section 9.3. Tax Cooperation and Other Tax Matters....... 43 ARTICLE 10 EMPLOYEE BENEFITS Section 10.1. Employee Benefits Definitions............... 45 Section 10.2. Employee Benefits Representations........... 45 Section 10.3. Employees and Offers of Employment.......... 47 Section 10.4. Seller's Employee Benefit Plans............. 48 Section 10.5. No Third Party Beneficiaries................ 49 ARTICLE 11 CONDITIONS TO CLOSING Section 11.1. Conditions to the Obligations of Each Party. 50 Section 11.2. Conditions to Obligation of Buyer........... 50 Section 11.3. Conditions to Obligation of Seller.......... 52
iii ARTICLE 12 SURVIVAL; INDEMNIFICATION Section 12.1. Survival.................................... 53 Section 12.2. Indemnification............................. 53 Section 12.3. Conduct of Indemnification Proceedings...... 53 Section 12.4 Establishment of Losses..................... 54 Section 12.5 Payment of Losses........................... 55 Section 12.6 Limitation on Indemnity Claims.............. 55 ARTICLE 13 TERMINATION Section 13.1. Termination................................. 55 Section 13.2. Effect of Termination....................... 56 Section 13.3. Break-Up Fee................................ 56 ARTICLE 14 MISCELLANEOUS Section 14.1. Notices..................................... 56 Section 14.2. Amendments and Waivers...................... 57 Section 14.3. Expenses.................................... 57 Section 14.4. Successors and Assigns...................... 57 Section 14.5. Governing Law............................... 58 Section 14.6. Specific Performance; Remedies Cumulative... 58 Section 14.7. Counterparts; Effectiveness................. 58 Section 14.8. Entire Agreement; Third Party Beneficiaries. 58 Section 14.9. Captions.................................... 58
Exhibit A -- Guarantee Exhibit B -- Form of Assumption and Assignment Agreement Exhibit C -- Form of Bill of Sale iv
SCHEDULES --------- Schedule 2.2 Programming Agreements and Retransmission Consent Agreements to be Assumed; Excluded Assets Schedule 2.5(b)(iv) Estimated Purchase Price Adjustments Schedule 2.5(b)(v) Final Purchase Price Adjustments Schedule 3.1 Affiliates of Seller Schedule 3.5(a) Required Consents Schedule 3.5(b) Franchise Approvals Schedule 3.7 Absence of Certain Changes Schedule 3.8(a) Real Property Schedule 3.8(b) Personal Property Schedule 3.8(d Liens Schedule 3.10 Undisclosed Liabilities Schedule 3.11 Litigation Schedule 3.12(a) Material Contracts and Purchase Orders Schedule 3.12(c) Bulk Billed Agreements Schedule 3.13 Affiliates Schedule 3.15 Compliance Schedule 3.14 Insurance Coverage Schedule 3.16 Accounts Receivable Aging Schedule 3.18 Finders' Fees Schedule 3.19 Environmental Compliance Schedule 3.20 Authorizations and CATV Instruments Schedule 3.22 Additional FCC Matters Schedule 3.24(a) Subscriber Information and Revenue Data Schedule 3.24(e) System Rates Schedule 3.24(f) FCC Notices to Subscribers Schedule 3.25 Legality of Signal Carriage Schedule 3.26 Certain System Information
v Schedule 3.27 Impediments to Business Schedule 9.2 State Tax Returns Schedule 10.2(c) Employment, Severance and Similar Agreements and Policies Schedule 10.2(f) Transferred Employees - Retirement and Severance Benefits Schedule 10.2(g) Compliance with ERISA
vi ASSET PURCHASE AGREEMENT AGREEMENT dated as of July ___, 1998 among Comcast Corporation, a Pennsylvania corporation ("BUYER"), IDS/Jones Growth Partners 87-A, Ltd., a Colorado limited partnership ("SELLER") and for purposes of Articles 3 and 5 and Sections 7.4, 7.9, 7.10, 7.11, 7.12 and 7.13 hereof, Jones Cable Corporation, a Colorado corporation ("JCC") and for purposes of Article 4 and Sections 7.4 and 7.10 hereof, Jones International, Ltd., a Colorado corporation ("JONES") and for purposes of Sections 7.4, 7.10, 7.18 and 7.21 hereof, Jones Intercable, Inc., a Colorado corporation ("JONES INTERCABLE"). W I T N E S S E T H : WHEREAS, Seller owns and operates the cable television business in and around the Franchise Areas (as defined below) (the "SYSTEM"); WHEREAS, JCC controls Seller and desires to enter into this Agreement to induce Buyer to acquire the System as provided herein; WHEREAS, Seller desires to sell, and Buyer desires to purchase, on the terms and subject to the conditions contained in this Agreement, substantially all of the assets, rights, privileges, interests, business and properties owned, leased, used, useful or held for the use by Seller in connection with the System; WHEREAS, JCC is a wholly owned subsidiary of Jones Intercable, and Jones Intercable has determined that it is in its best interest to guarantee certain obligations of Seller as provided herein and has executed and delivered to Buyer that certain Guaranty of even date herewith and attached hereto as Exhibit A. NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements herein contained, and intending to be legally bound, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS Section 1.1. DEFINITIONS. (a) The following terms, as used herein, have ----------- the following meanings: "AFFILIATE" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person, with "control" for such purpose meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or voting interests, by contract or otherwise. "AUTHORIZATIONS" means all Federal Authorizations and all Other Authorizations. "BASIC SUBSCRIBER" means as of any date and for each Franchise Area served by the System, without duplication, the aggregate of all of the following that are receiving Limited Basic Service provided by the System: (a) private residential customer accounts that are billed by individual unit (regardless of whether such accounts are in single family homes or in individually billed units in apartment houses and other multi-unit buildings) (excluding "second connects" or "additional outlets," as such terms are commonly understood in the CATV industry), each of which shall be counted as one Basic Subscriber, and (b) all commercial, bulk-billed and other accounts not billed by individual unit, such as hotels, motels, apartment houses and multi-family homes, provided that the number of "Basic Subscribers" serviced by each such account shall be deemed to be an amount equal to the quotient of (x) the aggregate monthly revenue received from the provision of Limited Basic Service or Tier One Service from such accounts, in each case for the last calendar month (or, if applicable, the last billing period) preceding the date of determination, divided by (y) the Monthly Predominant Rate. Notwithstanding the foregoing, the term "Basic Subscriber" shall not include any subscriber, whether a private residential, commercial or bulk-billed subscriber, who: (1) with respect to a private residential subscriber, is receiving the Limited Basic Service or Tier One Service at less than the standard rate for the applicable service as set forth on Schedule 3.24(e) (as such Schedule is updated ---------------- as of the Closing Date), and with respect to commercial or bulk-billed subscribers, is receiving the Limited Basic Service or Tier One Service at less than the rates set forth in the applicable agreement to provide service to a commercial subscriber or the applicable bulk-billed agreement, as appropriate; (2) has not been receiving such service for at least sixty (60) consecutive days immediately prior to the date of determination; (3) has not paid for at least two (2) months' consecutive service at standard rates as set forth on Schedule 3.24(e) for the period immediately ---------------- preceding the date of determination (together with subscribers described in the immediately preceding clause (2), "PROVISIONAL SUBSCRIBERS"); (4) is more than sixty (60) days delinquent from the date of billing on any amount due to Seller (provided that a subscriber's account shall not be considered delinquent as a result of unpaid amounts not exceeding $6.00); or (5) is pending disconnection from the service provided by the System for any reason. "BUSINESS DAY" means any day other than a Saturday, Sunday or holiday on which federal banks are or may elect to be closed. -2- "CABLE ACT" means Title VI of the Communications Act of 1934, as amended, including without limitation, by the Cable Communication Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, and the rules and regulations promulgated thereunder. "CABLE ACT NOTICES" means all written notices, written requests, written inquiries or other written communications from the FCC or any Franchising Authority relating to or requesting information from the System or requesting that the System take certain actions, in accordance with the Cable Act. "CABLE ACT ORDERS" means all written orders, written decisions, written actions, written determinations or other written pronouncements of the FCC or any Franchising Authority specifically with respect to the System, issued in accordance with the Cable Act. "CABLE ACT PETITIONS" means all petitions, motions, oppositions, notices of appeal, applications or similar instruments filed or submitted by or to the FCC or any Franchising Authority with respect to the System, in accordance with the Cable Act. "CABLE SERVICE" means (i) the one-way transmission to subscribers of video programming or other programming service and (ii) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. "CATV INSTRUMENTS" means the instruments granting the Authorizations. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time and any rules or regulations promulgated thereunder. "CLOSING DATE" means the date of the Closing. "COPYRIGHT ACT" means the Copyright Act of 1976, as amended. "COURTESY SUBSCRIBER" means any Person (whether receiving service at a residential, commercial or other location) receiving any service (other than promotional services in the ordinary course of business) from the System for free. "CURRENT ASSETS" means (a) ninety-five percent (95%) of the face amount of all accounts receivable included in the Assets (other than accounts receivable related to advertising sales) that are 30 days or less past due from the date of billing, (b) ninety percent (90%) of the face amount of all accounts receivable included in the Assets (other than accounts receivable related to advertising sales) that are between 31 and 60 days past due from the date of billing; provided however, that, any such accounts receivable shall be excluded from clause (a) and (b) above if (x) any portion of such accounts receivable is, on the Closing Date, 61 days or more past due from the date of invoice (provided, that late fees shall not be counted in determining whether an account -3- receivable is 61 days or more past due, and provided, further that any such late fees shall not be included in Current Assets) or (y) such accounts receivable relate to Basic Subscribers whose accounts are inactive or whose service is pending disconnection for nonpayment on the Closing Date), (c) ninety-five percent (95%) of the face amount of all accounts receivable included in the Assets that are related to advertising sales and that are 60 days or less past due from the date of billing, (d) ninety percent (90%) of the face amount of all accounts receivable included in the Assets that are related to advertising sales and that are between 61 and 90 days past due from the date of billing, (e) seventy-five percent (75%) of the face amount of all accounts receivable included in the Assets that are related to advertising sales and that are between 91 and 120 days past due from the date of billing; provided, however, that any such accounts receivable shall be excluded from clause (c), (d) and (e) above if any portion of such accounts receivable is, on the Closing Date, 121 days or more past due from the date of invoice (provided that late fees shall not be counted in determining whether an account receivable is 121 days or more past due, and provided further, that any such late fees shall not be included in Current Assets), (f) the amount of all prepaid expenses on the Closing Date that directly relate to the System to the extent the benefit of such prepaid expenses can be realized by Buyer within twelve months after the Closing Date, and (g) any other current asset of Seller as defined by GAAP (excluding any cash, cash equivalents, marketable securities and supplies and inventory) directly related to the System that shall directly benefit the Buyer within 12 months after the Closing Date, other than (i) intercompany allocations and other payments of overhead charges; (ii) prepaid taxes based in whole or in part on the income of Seller or its Affiliates or the transactions contemplated by this Agreement; (iii) prepaid wages, salaries, payroll taxes and expenses, benefits, perquisites and other compensation related expenses other than for a Transferred Employee for which Seller is not otherwise obligated to make such payments under the terms of Article 10 of this Agreement; (iv) prepaid expenses relating to supplies and inventory; and (v) prepaid insurance expenses. "ENVIRONMENTAL LAWS" means (i) any and all federal, state and local statutes, laws, judicial decisions, regulations, ordinances, rules, codes and other governmental restrictions and (ii) all judgments, orders, decrees, injunctions, permits, licenses and agreements relating to the Assets or the System, in each case relating to the environment, the effect of the environment on human health or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic, radioactive or hazardous substances or wastes into the environment, including without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic, radioactive or hazardous substances or wastes or the clean-up or other remediation thereof. "ENVIRONMENTAL LIABILITIES" means any and all liabilities arising in connection with or in any way relating to the System, the Assets or activities or operations occurring or conducted at any of the Real Property (including, without limitation, offsite disposal), whether vested or unvested, contingent or fixed, actual or potential, known or unknown, which (i) arise under or relate to Environmental Laws (including, without limitation, any matter disclosed or required to be disclosed in Schedule 3.19) and (ii) relate to actions occurring ------------- or conditions existing on or prior to the Closing Date. -4- "ENVIRONMENTAL PERMITS" means all permits, licenses, authorizations, certificates and approvals of governmental authorities relating to or required by Environmental Laws and necessary or proper for the System as currently conducted. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "FAA" means the Federal Aviation Administration. "FCC" means the Federal Communications Commission. "FEDERAL AUTHORIZATIONS" means all licenses, permits, certificates, consents, clearances and other similar rights and approvals relating to the System issued by or obtained from any branch of the Federal government, including but not limited to, the FCC or the Copyright Office. "FRANCHISE AREAS" mean those geographical areas set forth on Schedule -------- 3.20 in which Seller is authorized under one or more Authorizations to provide - - ---- Cable Service to subscribers. "FRANCHISING AUTHORITY" means each governmental unit listed on Schedule -------- 3.20 which has granted Seller an Authorization. - - ---- "GAAP" means generally accepted accounting principles consistently applied as in effect from time to time in the United States of America. "GOVERNMENTAL AUTHORITY" means (i) the United States of America, (ii) any state, commonwealth, territory or possession of the United States of America and any political subdivision thereof (including counties, municipalities and the like) and (iii) any agency, authority or instrumentality of any of the foregoing, including any court, tribunal department, bureau, commission or board. "HAZARDOUS SUBSTANCES" means any pollutant, toxic, radioactive, corrosive or otherwise hazardous substance, including petroleum, its derivatives, by- products and other hydrocarbons, or any substance having any constituent elements displaying any of the foregoing characteristics, regulated by or which may form the basis for liability under Environmental Laws or that is regulated or labeled as such pursuant to any Environmental Law. "HOMES PASSED" means residential dwelling units, multiple dwelling buildings, residential hotels and other commercial locations (including each unit in a multiple dwelling building or complex, as one Home Passed and counting each commercial location, including without limitation, hotels and motels, as one Home Passed) to which Cable Service may be provided at a distance no greater than approximately 200 feet from the System's -5- existing distribution cable, and residential dwelling units, multiple dwelling buildings, residential hotels and other commercial locations which are at a distance greater than approximately 200 feet from the System's existing distribution cable but which are premises of subscribers; provided that Homes -------- Passed shall not include unoccupied residential lots. "HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "INTERIM BALANCE SHEET" means the balance sheet of Seller as of March 31, 1998, delivered to Buyer pursuant to Section 3.6. "LEGAL REQUIREMENT" means any statute, ordinance, code, law, rule, regulation, order or other requirement, standard or procedure enacted, adopted or applied by any Governmental Authority, including judicial decisions applying common law or interpreting any other Legal Requirement. "LIEN" means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, legal or equitable claim of a third party, or other encumbrance of any kind or defect in title in respect of such property or asset. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any property or asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such property or asset. "LIMITED BASIC SERVICE" means any service tier which includes the retransmission of local television broadcast signals, as defined in 47 U.S.C. Section 522(3), plus any other programming currently offered by the System on the lowest tier offered by the System (i.e. the tier to which all subscribers are required to subscribe). "MATERIAL ADVERSE EFFECT" means a material adverse effect on the business, assets, condition (financial or otherwise), results of operations or prospects of the System taken as a whole. "MONTHLY PREDOMINANT RATE" means the sum of the standard retail rates charged to non-discounted subscribers receiving Limited Basic Service and Tier One Service as of the date of determination. The Monthly Predominant Rate as of the date of this Agreement is an amount equal to $27.25. "MULTI-CHANNEL VIDEO SERVICE" means (i) the distribution by a single provider to end users of two or more channels of video programming, by any means, including but not limited to cable television, direct broadcast satellite, master antenna television system, satellite master antenna television system and multi-channel microwave distribution system; or (ii) providing facilities for the distribution of such video programming. "NET LIABILITIES" means the amount by which the Total Liabilities with respect to the System, as of the Closing Date, are in excess of or are less than, as the case may be, the Current Assets as of the Closing Date. -6- "OTHER AUTHORIZATIONS" means all approvals, authorizations, consents, easements (whether or not of record), franchises, leases, licenses, qualifications, registrations and other similar rights relating to the System obtained from any Governmental Authority, other than Federal Authorizations. "PERMITTED LIENS" means any (i) Lien for current taxes and other governmental charges and assessments which are not yet due and payable, (ii) zoning law or ordinance or any similar Legal Requirement, (iii) right reserved to any Governmental Authority to regulate affected property, (iv) in the case of Leased Real Property, the rights of any lessor and any Lien granted by any lessor, and (v) immaterial mechanics, materialmen's and similar liens, which do not individually or in the aggregate adversely affect the value of any Real Property or interfere with the right or ability to own, use, dispose of or operate any of the Assets. "PERSON" means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization, including any Governmental Authority. "PREMIUM PAY SERVICE" means any pay-per-channel, including but not limited to, any one or more of HBO, Showtime, STARZ!, The Movie Channel, Disney, Encore and Cinemax programming, provided that any pay-per-view programming is excluded from the definition of Premium Pay Service. "PROCEEDING" means any investigation, proceeding or other process by the FCC or any other Governmental Authority that relates in whole or in part to rates charged to subscribers. "REGULATED ACTIVITY" means any generation, treatment, storage, recycling, transportation or Release of any Hazardous Substance. "RELEASE" means any discharge, emission or release, including a Release as defined in CERCLA at 42 U.S.C. (S) 9601(22). The term "Released" has a corresponding meaning. "SEC" means the Securities and Exchange Commission. "SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "TIER ONE SERVICE" means those programming services set forth on Schedule -------- 3.24(e). - - ------- -7- "TOTAL LIABILITIES" means all subscriber deposits and advance payments existing on the Closing Date and related to the System (including any interest required to be paid thereon), any customary payments related to the System required to be made by the Buyer after the Closing relating to the period on or prior to Closing (including without limitation, property taxes, pole rental, copyright fees, accrued vacation time for Transferred Employees, rent, utilities, etc.), which payments benefit Seller, and any other liabilities or obligations of Seller related to the System which Buyer agrees to assume pursuant to this Agreement. "TOTAL REVENUE FROM ALL SUBSCRIBERS" means all revenue (excluding any revenue associated with franchise fees separately itemized on a subscriber's bill, late fees and any other fees that are passed through to the subscriber) billed by Seller to each of the subscribers of the System for the provision of Limited Basic Service, Tier I Service and Premium Pay Service, for the three month period immediately preceding the Closing Date. (b) Each of the following terms is defined in the Section set forth opposite such term:
Term Section ---- ------- 626 Request 3.20 Active Employee 10.3 Additional Basic Subscribers 2.5 Assets 2.1 Assumed Liabilities 2.3 Bank Loan Documents 7.17 Basket Amount 12.6 Break-Up Fee 13.3 Buyer's List 10.3 City 7.1 Closing 2.6 Code 9.1 Colorado National Bank 7.17 Contracts 2.1 Cost of Service Election 7.1 County 7.1 Employee Plans 10.1 Environmental Assessment 11.2 ERISA 10.1 ERISA Affiliate 10.1 Excluded Assets 2.2 Excluded Liabilities 2.4 Franchise Approvals 3.5 HSR Filing 8.2 Indemnified Party 12.3 Indemnifying Party 12.3 Jones Intercable Assets 7.21
-8- Leased Real Property 3.8 Loss 12.2 Maidu Center Payment 7.22 Material Contracts 3.12 Multiemployer Plan 10.1 Owned Real Property 3.8 PG&E 7.20 PG&E Acknowledgment 7.20 Personal Property 2.1 Post-Closing Tax Period 9.1 Pre-Closing Tax Period 9.1 Preliminary Proxy Statement 7.11 Prime Rate 2.5 Promotions 7.1 Proxy Statement 7.11 Purchase Price 2.5 Real Property 2.1 Required Consent 3.5 Roseville Telephone Company Acknowledgment 7.20 Stoddard 7.19 Subscriber/Revenue Adjustment 2.5 Superior Proposal 7.10 System recitals Tax 9.1 Transferred Employees 10.3 Transitional Billing Services 7.9
(c) Unless otherwise specified herein, all accounting terms used herein shall be interpreted, and all accounting determinations hereunder shall be made, in accordance with GAAP. ARTICLE 2 PURCHASE AND SALE SECTION 2.1. PURCHASE AND SALE. Except as otherwise provided below, ----------------- upon the terms and subject to the conditions of this Agreement, Buyer agrees to purchase from Seller and Seller agrees to sell, transfer, assign and deliver, or cause to be sold, transferred, assigned and delivered, to Buyer at Closing, free and clear of all Liens other than Permitted Liens, all of the right, title and interest in, to and under the assets, properties and business, of every kind and description, wherever located, real, personal or mixed, tangible or intangible, owned, held or used in the conduct of the System as the same shall exist on the Closing Date, including without limitation, all assets shown on the Interim Balance Sheet, other than current assets disposed of in the ordinary course of business (all assets, rights, properties and claims acquired by Buyer pursuant to this Agreement are collectively referred to as the "ASSETS"), and including, without limitation, all right, title and interest in, to and under: -9- (a) All Authorizations; (b) All interests in real property, including without limitation, all appurtenances, towers and fixtures located thereon, rights-of-way, easements and other real property interests owned or leased by Seller (collectively, the "REAL PROPERTY"); (c) All tangible personal property, including, without limitation, all electronic devices, towers, satellite dishes, antenna, downleads, trunk and distribution pedestals, grounding and pole hardware, cable system plant, machinery, installed subscribers' devices (including, without limitation, drop lines, converters, and encoders, transformers and fittings), headends, origination, transmission and distribution systems and equipment, maps, internal wiring, hardware, tools, inventory, spare parts, motor vehicles, supplies, test and closed circuit devices, earth stations and microwave equipment and systems and furniture, furnishings and office equipment used in the System (collectively the "PERSONAL PROPERTY"); (d) All claims and rights of every kind arising out of or related to all contracts, leases of real and personal property (both as lessor and lessee), agreements, non-governmental licenses, orders for service to be provided by the System and understandings in connection with the System and to which Seller or any Affiliate of Seller is a party and which relate to the System, including without limitation, all pole attachment and conduit agreements, wire crossing agreements, subscriber agreements, retransmission consent agreements and other agreements, written or oral, to which Seller or any Affiliate of Seller is a party and which relate to the System, except for those agreements that are Excluded Assets pursuant to Section 2.2 below (collectively, the "CONTRACTS"); (e) All business records of Seller regardless of the medium of storage relating to the System, including without limitation, all schematics, blueprints, working drawings, engineering data, engineering drawings, reports, design information, specifications, maintenance manuals, test procedures, current customer and subscriber lists, maps, reports, plans, projections, statistics, promotional graphics, original art work, mats, plates, negatives, advertising, marketing or related materials, files, manuals and records, lists of all pending subscriber hook-ups, disconnect and repair orders and supply orders, and all other technical, accounting and financial information concerning the System; (f) All deposits with respect to the Authorizations or with respect to any bonding or surety arrangements; (g) All rights, claims and causes of action against third parties, including without limitation, any rights, claims and causes of action arising under warranties from vendors and other third parties; (h) All accounts receivable, notes receivable and prepaid expenses, as well as insurance and indemnity claims with respect to the Assets; -10- (i) All goodwill associated with the System and the Assets; and (j) All other assets of whatever nature and wherever located, and owned, used or held for use by the Seller or any Affiliate of Seller in connection with the System. Provided that, notwithstanding the foregoing, the Assets shall not include any Excluded Assets. SECTION 2.2. EXCLUDED ASSETS. The following assets and properties of --------------- Seller (the "EXCLUDED ASSETS") shall be excluded from the Assets: (a) all cash and cash equivalents on hand and in banks (other than any deposits referred to in Section 2.1(f)); (b) all programming contracts (including but not limited to, the Great American Country Affiliation Agreement, dated January 1, 1996 and the Amended and Restated Mind Extension University Affiliate Agreement, dated December 28, 1993) and retransmission consent agreements, other than any such agreements listed on Schedule 2.2; ------------ (c) any books and records that Seller is required by law to retain, and Seller's corporate books and records; (d) all insurance policies, intercompany receivables with respect to any Affiliate of Seller, letters of credit or similar items and any cash surrender value in regard thereto; (e) any claims, rights and interests in and to any refunds of federal, state or local franchise, income or other taxes or fees for periods prior to the Closing Date; (f) Employee Plans; (g) subscriber billing services agreements and related leased equipment; (h) that certain 1993 Dodge Intrepid used by the System's General Manager; (i) all trade marks, service marks, copyrights and trade names and all rights associated therewith owned or used by Seller (subject to Buyer's rights under Section 7.5); (j) any Assets sold or otherwise disposed of in the ordinary course of business and not in violation of any provisions of this Agreement during the period from the date hereof until the Closing Date; (k) the Advertising Sales Agreement, dated as of April 1, 1994, by and between Seller and Bruich & Associates; -11- (l) the Advertising Sales Agreement, dated as of April 1, 1998, by and between Seller and Bruich & Associates; (m) Agreement, dated July 7, 1997, by and between Seller and Flight Trac, Inc.; (n) Publications Order Agreement Customized Pay-Per-View Billstuffer, dated May 15, 1995, by and between Seller and CableView Publications; (o) Converter Metering Agreement, dated January 30, 1992, by and between Seller and Nielsen Media Research; (p) Agreement, dated December 1, 1990, by and between Seller and American Society of Composers, Authors and Publishers; (q) Subscriber Agreement, dated January 1, 1996, by and among Jones Intercable, Seller and Audiocom; (r) Agreement, dated March 1, 1991, by and between Seller and BMI; and (s) Amended and Restated Jones Infomercial Networks, Inc. Affiliate Agreement, effective as of August 1, 1994. SECTION 2.3. ASSUMPTION OF LIABILITIES. Upon the terms and subject to ------------------------- the conditions of this Agreement, Buyer agrees, effective at the time of Closing, to assume the following liabilities (the "ASSUMED LIABILITIES"): (a) the obligations of Seller for subscriber deposits and subscriber advance payments and any other obligations or liabilities set forth on Schedule 2.5(b)(v), to the extent such obligations or liabilities are related ------------------ to the System and have been included as an adjustment to the Purchase Price in accordance with the provisions of Section 2.5; and (b) all obligations of Seller arising under all Contracts, not excluded pursuant to Section 2.2, with respect to the period of time after the Closing Date (other than liabilities or obligations attributable to any failure by Seller to comply with the terms thereof). Section 2.4. EXCLUDED LIABILITIES. Buyer is assuming only the Assumed -------------------- Liabilities and is not assuming any other liability or obligation of Seller (or any predecessor owner of all or part of its business and assets) of whatever nature, whether presently in existence or arising hereafter, known or unknown, contingent or otherwise. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of Seller or such predecessor, as applicable (all such liabilities and obligations not being assumed being herein referred to as the "EXCLUDED LIABILITIES"). The Excluded Liabilities shall include, but not be limited to the following: -12- (a) any liabilities or obligations for Taxes or any audits related thereto (including, without limitation, sales and payroll taxes) arising from or relating to (i) the Excluded Assets or any business of Seller, and (ii) the Assets or the operation of the System attributable to or incurred in the Pre-Closing Tax Period; (b) any liabilities or obligations relating to employee benefits or compensation arrangements existing on or prior to the Closing Date (except for accrued vacation time for Transferred Employees), including, without limitation, any liability or obligation arising from or relating to (i) "sticking bonuses" or similar payments to induce Seller's employees to remain in Seller's employ prior to Closing, (ii) severance payments, or earned or accrued vacation for Seller's employees that are not Transferred Employees, (iii) earned or accrued sick leave, (iv) short-term or long-term disability benefits or (v) any liabilities or obligations under any of Seller's employee benefit agreements, plans or other arrangements; (c) any Environmental Liability; (d) any liability or obligation relating to an Excluded Asset; (e) any liability or obligation arising from any litigation, action, suit, proceeding or investigation, actual or threatened, relating to any act or omission occurring on or prior to the Closing Date; (f) any liability or obligation relating to the System attributable to or incurred during the period prior to the Closing, other than the Assumed Liabilities; (g) any liability resulting from any refund order, including without limitation, FCC Order, DA 98-389 (March 2, 1998), relating to any period prior to Closing; and (h) any liabilities or obligations as to which Seller or any other Person might assert that Buyer has transferee liability, other than the Assumed Liabilities. SECTION 2.5. PURCHASE PRICE. (a) In consideration of the sale and -------------- transfer by Seller to Buyer of the Assets, Buyer shall, at the Closing, pay to Seller an amount equal to Forty Million Dollars ($40,000,000), subject to adjustment as provided in subsection (b) below (the "PURCHASE PRICE"). The Purchase Price shall, subject to adjustment as provided in subsection (b) below, be paid by wire transfer to an account of Seller with a bank in the United States designated by Seller, by notice to Buyer, not later than two business days prior to the date such payment is due (or if not so designated, then by certified or official bank check payable to the order of Seller). (b) At the Closing, the Purchase Price shall be adjusted as follows: -13- (i) In the event the Seller's Current Assets as of the Closing Date are in excess of the Seller's Total Liabilities as of the Closing Date, the Purchase Price shall be increased by an amount equal to the Net Liabilities. (ii) In the event the Seller's Current Assets as of the Closing Date are less than the Seller's Total Liabilities as of the Closing Date, the Purchase Price shall be decreased by an amount equal to the Net Liabilities. (iii) The Purchase Price shall be decreased by, at Buyer's sole discretion, either (A) $2,000 multiplied by the amount, if any, by which the number of Basic Subscribers on the Closing Date is less than 20,000 or (B) (x) the amount by which the Total Revenue From All Subscribers is less than $1,815,600, if any, multiplied by (y) 22.031 (the "SUBSCRIBER/REVENUE ADJUSTMENT"). (iv) The amount of the net adjustment to the Purchase Price hereunder shall be estimated by Seller (after consultation with Buyer), which shall prepare Schedule 2.5(b)(iv), to be delivered at least ten (10) ------------------- days prior to the Closing Date, containing the estimated Purchase Price adjustment indicating in detail the basis for its estimate. If the adjustment to the Purchase Price provides for a net increase in the Purchase Price, Buyer shall pay such net increase on the Closing Date. If the adjustment to the Purchase Price provides for a net decrease in the Purchase Price, Buyer shall reduce accordingly the amount of the Purchase Price. (v) (A) The amount of the final adjustment to the Purchase Price hereunder, if any, shall initially be determined by Buyer, which shall prepare Schedule 2.5(b)(v), to be delivered within ninety (90) days after ------------------ the Closing Date, containing the final Purchase Price adjustment and setting forth in detail the calculation of such adjustment. Seller may designate, at its sole expense, any qualified agent or certified public accountant to review Buyer's work in preparing Schedule 2.5(b)(v). ------------------ (B) In computing the amount of the final adjustment to the Purchase Price, in the event Buyer elects to adjust the Purchase Price in accordance with Section 2.5(b)(iii)(A), all Provisional Subscribers as of the Closing Date that satisfy the definition of a Basic Subscriber as of the 60th day immediately following the Closing Date shall be referred to herein as "ADDITIONAL BASIC SUBSCRIBERS". To the extent that the Purchase Price was reduced on the Closing Date in accordance with Section 2.5(b)(iii)(A), the final adjustment to the Purchase Price shall reflect a credit to the Seller in an amount equal to $2,000 for each Additional Basic Subscriber; provided however, that in no event shall such credit exceed the amount of the adjustment to the Purchase Price calculated in accordance with Section 2.5(b)(iii)(A). (C) Except for any item which is disputed in accordance with subsection (vi) below, any adjusting payment required by Schedule 2.5(b)(v) ------------------ shall be made within fifteen (15) days after the submission thereof to Seller. -14- (vi) In the event Seller provides written notice to Buyer within ten (10) days after submission of Schedule 2.5(b)(v) that it disagrees with the ------------------ final adjustment to the Purchase Price set forth therein, Buyer and Seller shall have an additional thirty (30) days to mutually resolve the disagreement. If a mutually satisfactory conclusion is not reached within said thirty (30) day period, each of Buyer and Seller, respectively, at its own cost, shall engage an independent accounting firm of national reputation to provide an independent determination with respect to the final adjustment to the Purchase Price set forth on Schedule 2.5(b)(v) -------- --------- within thirty (30) days after the initial thirty (30) day period. In the event that such firms disagree with respect to such final adjustment, such firms shall select a third independent accounting firm of national reputation, and such third firm shall provide an independent determination with respect to such final adjustment within thirty (30) days after such firm is retained, and the determination of such third independent accounting firm shall be deemed to be the final adjustment to the Purchase Price. Buyer and Seller shall share equally in the cost of such third independent accounting firm. (vii) Any amount due to Seller or Buyer, as the case may be, as a result of the final Purchase Price adjustment shall bear interest from the Closing Date to the date of payment of the amount due at a rate equal to the rate announced from time to time by Buyer's principal lender as its prime rate (and the rate hereunder shall change each time such prime rate changes) (the "PRIME RATE"). (viii) Any payment pursuant to this Section 2.5(b) shall be made by wire transfer of immediately available funds to such account of Seller or Buyer as may be designated by Seller or Buyer (as applicable). SECTION 2.6. CLOSING. Subject to the provisions of Section 2.6(b), the ------- closing (the "CLOSING") of the purchase and sale of the Assets and the assumption of the Assumed Liabilities hereunder shall take place at the offices of Buyer in Philadelphia, Pennsylvania on the last day of the month immediately following the tenth day after the date on which all conditions to Closing have been satisfied, or on such date as Buyer and Seller may otherwise mutually agree. At the Closing: (a) Buyer shall deliver to Seller the Purchase Price, adjusted in accordance with Section 2.5(b); (b) Seller shall enter into an Assignment and Assumption Agreement with Buyer substantially in the form attached hereto as Exhibit B, and Seller shall deliver to Buyer such warranty deeds, a Bill of Sale in the form attached hereto as Exhibit C, endorsements, consents, assignments and other good and sufficient instruments of conveyance and assignment as Buyer shall deem reasonably necessary or appropriate to vest in Buyer all right, title and interest in, to and under the Assets, subject only to Permitted Liens and Assumed Liabilities; and -15- (c) Seller shall deliver all such further documents, instruments and agreements as may be reasonably requested by Buyer or its counsel, in order to more effectively transfer title to the Assets to Buyer, or to effectuate and carry out any provision of this Agreement. SECTION 2.7. ALLOCATION OF PURCHASE PRICE. The Purchase Price and ---------------------------- Assumed Liabilities shall be allocated among the Assets and the covenant not to compete described in Section 7.4 hereof in accordance with the decision of an appraisal firm to be mutually agreed upon by Buyer and Seller, as promptly as possible following the Closing Date. The cost of such appraisal shall be shared equally by Seller and Buyer. Buyer and Seller shall each file Tax returns consistent with such allocation. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER AND JCC Each of Seller and JCC represents and warrants to Buyer as of the date hereof and as of the Closing Date that: SECTION 3.1. EXISTENCE AND POWER; AFFILIATES. Seller is a limited ------------------------------- partnership, validly existing and in good standing under the laws of the State of Colorado, and has all partnership powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted. Seller is duly qualified to do business and is in good standing in each jurisdiction where such qualification is necessary. Seller has requisite partnership power and authority to own, lease and use the Assets and to conduct the System's business as currently conducted. Seller is not a participant in any joint venture or partnership with any other Person. Seller does not own any equity interest in any other entity. Seller has heretofore delivered to Buyer true and complete copies of the partnership agreement of Seller as currently in effect. Seller has no Affiliates other than as set forth on Schedule 3.1 that have any direct or indirect interest in either the Assets ------------ or the System. SECTION 3.2. AUTHORIZATION. The execution, delivery and performance by ------------- Seller of this Agreement are within Seller's powers and, subject to receipt of the approval of the limited partners of Seller, have been duly authorized by all necessary action on the part of Seller and its partners. This Agreement has been duly and validly executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable against Seller in accordance with its terms. SECTION 3.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and -------------------------- performance by Seller of this Agreement require no action by or in respect of, or filing with, any Governmental Authority other than (a) for filings required under the Exchange Act, (b) compliance with any applicable requirements of the HSR Act, and (c) as described in Section 3.5. -16- SECTION 3.4. NON-CONTRAVENTION. The execution, delivery and performance ----------------- by Seller of this Agreement do not and will not (a) violate or conflict with the partnership agreement of Seller, (b) assuming compliance with the matters referred to in Section 3.3, violate or conflict with any applicable Legal Requirement applicable to Seller; (c) assuming the obtaining of all Required Consents and Franchise Approvals, violate or conflict with, result in a breach of, or constitute a default under or give rise to any right of termination, cancellation, modification or acceleration of any right or obligation of Seller or to a loss of any benefit relating to the System to which Seller is entitled under any provision of any agreement, contract or other instrument (including without limitation any Authorization) binding upon Seller or by which any of the Assets is or may be bound or (d) result in the creation or imposition of any Lien on any Asset. SECTION 3.5. REQUIRED CONSENTS; FRANCHISE APPROVALS. (a) Schedule -------------------------------------- -------- 3.5(a) sets forth all franchises, licenses, authorizations, notices, approvals - - ------ and consents required pursuant to the Contracts or otherwise for (i) Seller to transfer the Assets to Buyer free and clear of all Liens other than Permitted Liens, and for (ii) Buyer to assume the Assets, assume and perform the Contracts and the Authorizations and operate the System, except for Franchise Approvals (each such consent, a "REQUIRED CONSENT" and together the "REQUIRED CONSENTS"). IDS Cable Corporation, a general partner of Seller, has previously given its irrevocable consent to the consummation of the transactions contemplated by this Agreement. (b) Schedule 3.5(b) sets forth all franchises, licenses, authorizations, --------------- approvals and consents (each, a "FRANCHISE APPROVAL" and together the "FRANCHISE APPROVALS") required pursuant to the Authorizations or by any Governmental Authority for (i) Seller to transfer the Assets and the System to Buyer free and clear of all Liens other than Permitted Liens, (ii) Buyer to conduct the business of the System and to own, lease, use and operate the Assets and (iii) Buyer to assume the CATV Instruments. SECTION 3.6. FINANCIAL STATEMENTS. The (a) audited financial statements -------------------- of Seller for the year ended December 31, 1997, and (b) Interim Balance Sheet and the related statements of income and cash flows of Seller for the three month period ended March 31, 1998, are complete, true and accurate in all material respects and fairly present, in accordance with GAAP, the financial position of the Seller as of the dates thereof, and the results of its operations and changes in financial position for the periods then ended (subject to normal year-end adjustments, none of which will be material, in the case of the unaudited interim financial statements). SECTION 3.7. ABSENCE OF CERTAIN CHANGES. Except as set forth on -------------------------- Schedule 3.7, since December 31, 1997, the business of the System has been - - ------------ conducted in the ordinary course consistent with past practice, and there has not been: (a) any material adverse change in the business, assets, condition (financial or otherwise), or results of operations of the System, including without limitation, as to the System's rate regulation position (provided that, certification of a local franchising authority shall not, by itself, constitute a material adverse change -17- in the business, assets, condition (financial or otherwise) or results of operation of the System), other than (i) a change arising out of general economic conditions in the United States, (ii) any change affecting the United States cable industry as a whole, including any change arising from legislation, litigation, rulemaking or regulation, any of which affects the United States cable industry as a whole or (iii) competition caused by or arising from any Multi-Channel Video Service providers who are currently competing with, have the legal authorization, pursuant to a franchise or license, to compete with, or have announced their intention to compete with the Seller, and which are set forth on Schedule 3.27; ------------- (b) any incurrence, assumption or guarantee by Seller of any indebtedness for borrowed money with respect to the System other than in the ordinary course of business and in amounts and on terms consistent with past practice, but in any event not exceeding $5,000; (c) any creation or other incurrence of any Lien on any Asset, other than Permitted Liens and Liens which will be removed on or before the Closing Date; (d) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting any Asset which has not been repaired or replaced to Buyer's satisfication and which, individually or in the aggregate, has resulted in a Material Adverse Effect; (e) any contract, agreement, commitment or arrangement between Seller and any party, other than in the ordinary course of business involving an obligation or liability of Seller in an amount equal to or exceeding $5,000; (f) any modification, amendment, cancellation, termination (or receipt of notice of termination), forfeiture, failure to renew or encumbrance in any manner (other than in the ordinary course of business consistent with past practice or as is contemplated by this Agreement) of any of the Authorizations or Contracts; (g) any sale, assignment, lease or other transfer or disposition of any of the Assets, other than in the ordinary course of business consistent with past practice; (h) any transaction or commitment made by Seller relating to the System or any Asset (including the acquisition of any assets) or any relinquishment by Seller of any Contract or other right, in either case, other than transactions and commitments in the ordinary course of business consistent with past practice and those contemplated by this Agreement; (i) any change in any method of accounting or accounting practice by Seller with respect to the business of the System except for any such change after the date hereof required by reason of a concurrent change in GAAP or any change in any of the assumptions underlying, or methods of calculating any bad debt, contingency or other reserve; (j) any change in compensation or other benefits payable to any such employee of the System (whether or not pursuant to any severance or retirement -18- plans or policies), other than in the ordinary course of business consistent with past practice; (k) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the System, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (l) any change in any of Seller's subscriber policies (including without limitation, subscriber acquisition and retention and disconnect policies), billing rates or procedures related to the System, including its billing/subscriber report systems (including, without limitation, any decrease or increase in the Monthly Predominant Rate) or any material reduction of the services provided to subscribers by the System; or (m) any promotions, pricing discounts or other sales or marketing incentives (whether relating to pricing or otherwise) made available to subscribers or prospective subscribers for Cable Service. SECTION 3.8. PROPERTIES. (a) Schedule 3.8(a) describes all of the Real ---------- --------------- Property, which Seller owns (the "OWNED REAL PROPERTY"), leases or subleases (the "LEASED REAL PROPERTY"), and which is used in connection with the System, any surveys with respect thereto, and any Liens thereon, specifying in the case of the Leased Real Property, the name of the lessor or sublessor, the lease term and basic annual rent. (b) Schedule 3.8(b) describes all Personal Property with a book or fair --------------- market value in excess of $1,000 which Seller owns, leases or subleases, and any Liens thereon, specifying in the case of leases or subleases, the name of the lessor or sublessor, the lease term and basic annual rent. (c) (i) Seller has good and marketable, indefeasible, fee simple title to, or in the case of leased Assets, has valid leasehold interests in, all Assets. (ii) The Real Property includes all real property as is used or held for use in connection with the conduct of the business and operations of the System. (iii) Subject to ordinary wear and tear, the buildings, structures and equipment included in the Assets have no defects and are in good operating condition and repair, and have been maintained and are suitable for their present uses and, in the case of buildings and other structures (including without limitation, the roofs thereof), are structurally sound. (iv) The buildings and structures included in the Assets currently have access to (1) public roads or valid perpetual easements over private streets or private property for such ingress to and egress from all such plants, buildings and structures and (2) water supply, storm and sanitary sewer facilities, telephone, gas and electrical connections, fire protection, drainage and other public utilities, as are necessary and appropriate for the conduct of the System. -19- (v) None of the material structures on the Real Property encroaches upon real property of another Person, and no structure of any other Person encroaches upon any Real Property. (vi) All Real Property is available for immediate use in the conduct of the System. (vii) The Owned Real Property and the Leased Real Property comply in all material respects with all applicable building or zoning codes and the regulations of any Governmental Authority having jurisdiction. (viii) No condemnation of any of the Owned Real Property has occurred, is pending, or to the knowledge of Seller, is threatened. (ix) To the Seller's knowledge, no condemnation of any of the Leased Real Property has occurred or is threatened. (d) Except as disclosed on Schedule 3.8(d), no Asset is subject to any --------------- Lien, except Permitted Liens. SECTION 3.9. SUFFICIENCY OF AND TITLE TO THE ASSETS. (a) The -------------------------------------- Assets constitute all of the assets or property used or held for use in connection with the operation of the System, except the Excluded Assets. (b) Upon consummation of the transactions contemplated hereby, Buyer will have acquired good and marketable title in and to, or a valid leasehold interest in, each of the Assets, free and clear of all Liens, except for Permitted Liens. (c) The System constitutes a fully operational cable television system with all material assets, properties, licenses, permits, consents, certificates, operating rights, leases, easements, licenses, rights-of-way, agreements, commitments and arrangements and all Authorizations and franchises necessary to operate in accordance with Legal Requirements and maintain the same. SECTION 3.10. NO UNDISCLOSED LIABILITIES. There are no liabilities -------------------------- of the Seller related to the System of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, and to the Seller's knowledge after due investigation, there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a liability, other than liabilities set forth on Schedule 3.10 and on the Interim ------------- Balance Sheet; and current liabilities, within the meaning of GAAP, entered into in the ordinary course of business which, individually and in the aggregate, are not material to the Business. -20- SECTION 3.11. LITIGATION. Except as set forth on Schedule 3.11, ---------- ------------- there is no action, suit, investigation or proceeding pending against, or to the knowledge of Seller, threatened against or affecting Seller, the System or any Asset before any arbitrator or any Governmental Authority. To Seller's knowledge, there are no facts which could reasonably serve as the basis for any material claim, action, suit or proceeding. No pending claim, if determined or resolved adversely, would have a Material Adverse Effect or could terminate or adversely change the terms and conditions of the System's rights with respect to (a) pole attachment rights or rents, (b) subscriber rates or tariffs, (c) the rearrangement, relocation or removal of cable, amplifiers, towers or other property (including easements, rights of access and other such rights), (d) carriage of signals presently carried on the System (except for notices to blackout programming pursuant to FCC rules and regulations) or (e) the right to operate the System pursuant to the Authorizations. There is no claim, action, suit or proceeding pending against, or to Seller's knowledge, threatened against Seller or any of its Affiliates, which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated hereby. SECTION 3.12 MATERIAL CONTRACTS. (a) Schedule 3.12(a) sets forth, ------------------ ---------------- with respect to the System, a true and complete list of: (i) all leases of Real Property (both as lessor and lessee); (ii) all leases of Personal Property (both as lessor and lessee); (iii) all agreements to provide service to multiple dwelling units (including any such agreements which are pending execution), whether on a bulk or direct bill basis; (iv) all agreements with or for the benefit of any partner, officer or Affiliate of Seller or any partner or officer of any such Affiliate; (v) all pole attachment and conduit use agreements; (vi) all agreements between Seller and those broadcast stations with "must carry" rights who have received carriage and all retransmission consent agreements; (vii) all agreements between Seller and any Governmental Authority, other than Authorizations, including rate regulation agreements and other agreements containing provisions that prohibit or restrict regulation by any Governmental Authority; (viii) any partnership or joint venture contracts or arrangements or any other agreements involving a sharing of revenues or profits to which Seller is a party or by which it is bound or which affects or relates to the Assets; (ix) any contracts or agreements for the sale of any of the Assets or the grant of any rights to purchase any of the Assets; (x) any agreement that limits the freedom of Seller or any of its officers or employees to compete in any line of business or with any Person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Asset or which would so limit the freedom of Buyer after the Closing Date; (xi) each note, guarantee or letter of credit entered into or issued or to be issued, contingently or otherwise, by or for the benefit of Seller, and all loan, security and other agreements relating thereto; (xii) each Lien (other than Permitted Liens) relating to or affecting any of the Assets; and (xiii) all other Contracts included in the Assets which: (1) involve an annual payment in excess of Five Thousand Dollars ($5,000); (2) could involve total payments by Seller in excess of Ten Thousand Dollars ($10,000); (3) do not terminate by their terms or are not cancelable by Seller without penalty on no more than sixty (60) days, prior notice; or (4) are otherwise material to the operation of the System (all such items under subsections (i) - (xiii) are collectively referred to as the "MATERIAL CONTRACTS"). Schedule 3.12(a) also sets forth a true and complete list of all of ---------------- the System's outstanding purchase orders for an amount in excess of $5,000 pending on the date -21- hereof. The aggregate amount of all unscheduled purchase orders does not exceed $10,000. True and correct copies of the Material Contracts (other than the Bank Loan Documents) and such scheduled purchase orders have been delivered or made available to Buyer. (b) Each Contract disclosed in any Schedule to this Agreement or required to be disclosed pursuant to this Agreement is a valid and binding agreement of Seller and each other party thereto and is in full force and effect, and neither Seller, nor to the knowledge of Seller, any other party thereto, is in default or breach under the terms of any such Contract, nor, to the knowledge of Seller, has any event or circumstance occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. Seller has no knowledge of any intention by any party to terminate or amend any Contract or to refuse to renew the same upon expiration of its term. (c) Schedule 3.12(c) sets forth for each bulk-billed agreement ---------------- applicable to the System, as of the date of this Agreement, the names of the parties thereto, the number of units served, the services provided (i.e. Limited Basic Service, Tier One Service, HBO, Cinemax and other Premium Pay Services), the current rate for Limited Basic Service, Tier One Service and Premium Pay Service, the date of execution, the date of termination and whether consent is required to transfer such agreement to Buyer. SECTION 3.13. AFFILIATES. Except as set forth on Schedule 3.13, none ---------- ------------- of Seller's partners, employees, officers or Affiliates has any interest in any of the Assets and neither Seller nor any of such Persons has any stock or other ownership interest in any other Person which is a supplier to the System or which provides Multi-Channel Video Service in any community contiguous with the communities served by the System. For purposes of this Section, ownership of not more than 10% of the common or preferred stock of any publicly held company whose stock is listed on any recognized stock exchange or traded over-the- counter shall not be deemed an ownership interest. SECTION 3.14. INSURANCE COVERAGE. Seller has furnished to Buyer a ------------------ list of all insurance policies and fidelity bonds relating to the Assets and the System and its employees, agents and contractors which are currently in force. There is no claim by Seller pending under any of such policies or bonds as to which coverage has been questioned, denied or disputed by the underwriters of such policies or bonds or in respect of which such underwriters have reserved their rights. All premiums payable under all such policies and bonds have been timely paid and Seller has otherwise complied fully with the terms and conditions of all such policies and bonds. Such policies and bonds are of the type and in amounts customarily carried by persons conducting business similar to the business of the System. Except as disclosed in Schedule 3.14, after the ------------- Closing Seller shall continue to have coverage under such policies and bonds, or equivalent policies and bonds, with respect to events occurring prior to Closing. -22- SECTION 3.15. COMPLIANCE. Except as set forth on Schedule 3.15, ---------- ------------- Seller is in compliance in all material respects with (i) all Legal Requirements of all Governmental Authorities having jurisdiction over the Assets, the System or Seller and (ii) the terms and provisions of all Contracts and Authorizations. Seller has received no notice claiming a violation by Seller or the System of any Legal Requirement applicable to the Assets or the System and to Seller's knowledge, there is no basis for any claim that such a violation exists. Neither Seller nor any officer, partner, agent, employee or representative of Seller, nor, to the knowledge of Seller, any of Seller's predecessors in title to any portion of the System, or any other Person, has violated any Legal Requirement in connection with procuring, obtaining, or maintaining any Authorization in any respect so as to adversely affect the business of the System. SECTION 3.16. RECEIVABLES. All accounts receivable, notes receivable ----------- and other receivables included in the Assets were created in the ordinary course of business consistent with past practice and are and, on the Closing Date, will be, valid and genuine. The aging schedule of the accounts receivable of the System, attached hereto as Schedule 3.16, was prepared in accordance with GAAP ------------- and is true and correct as of the date of such Schedule. SECTION 3.17. INTELLECTUAL PROPERTY. (a) Seller has not during the --------------------- three years preceding the date of this Agreement been a defendant in any action, suit, investigation or proceeding relating to, or otherwise been notified of, any alleged claim or infringement of any patents, trademarks, service marks or copyrights, and Seller has no knowledge of any other claim or infringement by Seller. (b) During the three-year period preceding the date the most recent copyright reports were due, Seller has timely and accurately filed all required copyright reports, notices, statements, supplemental statements, and amendments and made all payments required in connection therewith, with the United States Copyright Office, and will promptly deliver to Buyer copies thereof, as well as correspondence with any Governmental Authorities relating thereto. Seller and the System are in compliance with the Copyright Act. Seller and the System are entitled to hold and do now hold the compulsory copyright license described in Section 111 of the Copyright Act, which compulsory copyright license is in full force and effect and has not been revoked, canceled, encumbered or adversely affected in any manner. Seller is aware of no facts and has not received any notice or other communication asserting that the System is not in compliance with the Copyright Act. SECTION 3.18 FINDERS' FEES. Except as set forth on Schedule 3.18, ------------- ------------- there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of Seller or any of its Affiliates who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement. Any finders' fee paid to any person or entity set forth on Schedule 3.18 shall be paid by Seller. ------------- -23- SECTION 3.19. ENVIRONMENTAL COMPLIANCE. (a) Except as disclosed on ------------------------ Schedule 3.19, the Seller is, to its knowledge, in compliance in all material - - ------------- respects with all Environmental Laws and the System is and has been operated by Seller, and to Seller's knowledge, all other Persons, in material compliance with all Environmental Laws. Except as disclosed on Schedule 3.19: ------------- (i) in connection with or relating to the Assets or the System, no notice, notification, demand, request for information, citation, summons or order has been received, no complaint has been served, no penalty has been assessed and no investigation or review is pending or, to Seller's knowledge, threatened by any governmental or other entity with respect to any (A) alleged violation of any Environmental Law, (B) alleged failure to have any Environmental Permit, (C) Regulated Activity or (D) Release of Hazardous Substances; (ii) neither Seller, nor to Seller's knowledge, any other Person, has engaged in any Regulated Activity at, on or in connection with any Asset or any Real Property; (iii) neither Seller, nor to Seller's knowledge, any other Person, has Released any Hazardous Substance (and no oral or written notification of such Release has been made or filed) on or under any Real Property; (iv) there are no Liens under Environmental Laws on any of the Owned Real Property or the Assets and, to Seller's knowledge, no government actions have been taken or, to Seller's knowledge, are in process which could subject any of such Owned Real Property or Assets to such Liens. No notices or restrictions relating to Hazardous Substances have been or are required to be placed in any deed to any Owned Real Property; and (v) there are no Environmental Permits that are nontransferable or require consent, notification or other action to remain in full force and effect following the consummation of the transactions contemplated hereby. (b) There has been no written environmental study, audit, test, review or other analysis conducted of which Seller has knowledge in relation to any Asset or Real Property which has not been delivered to Buyer at least five days prior to the date hereof. SECTION 3.20. AUTHORIZATIONS AND CATV INSTRUMENTS. (a) Each ----------------------------------- Authorization and CATV Instrument is valid, is in full force and effect, is not in default and is in accordance with all applicable Legal Requirements (including without limitation, FCC rules and regulations) and Seller is in compliance therewith in all material respects. The System is serving only those Franchise Areas and other areas set forth on Schedule 3.20. Except as set forth ------------- in Schedule 3.20, Seller has not made any commitments to any Governmental ------------- Authority that are not fully reflected in the Authorizations or CATV Instruments. Except as set forth on Schedule 3.20, there are ------------- -24- no proposed increases in the fees and charges payable by Seller under any provisions of the Authorizations or CATV Instruments or any other proposed modifications to any of the Authorizations or CATV Instruments. Schedule 3.20 ------------- sets forth a true and complete list, including expiration dates, of each Franchising Authority and all currently outstanding Authorizations and CATV Instruments issued to Seller by the FCC with respect to Federal Authorizations and each other Governmental Authority with respect to Other Authorizations, including without limitation, all current licenses, franchises, ordinances, permits, compliance certificates, any pending license or franchise application and those Federal Authorizations relating to Business Radio Services and CARS, and for the System's earth stations. All filings, reports and notices required to be given or filed with the FCC and the Governmental Authorities granting any license or Authorization in connection with the System, the operation of the System and the carriage of all signals carried with respect thereto have been duly given or filed, and all such notices and reports are accurate and complete in all material respects. Seller has provided to Buyer true and complete copies of all documents listed on Schedule 3.20, as well as all material correspondence ------------- with any Governmental Authorities related thereto. The Authorizations and/or CATV Instruments enable Seller to operate the System in accordance with all Legal Requirements in the entire areas purportedly covered by the Authorizations and/or CATV Instruments with respect to the System, whether or not Seller is currently operating in any such area. To Seller's knowledge, after due inquiry, there is no fact or matter that could constitute a basis for revocation, suspension, termination or denial of the granting of a new Authorization upon the expiration thereof, or diminishment or elimination of any rights under any Authorization or CATV Instrument and no legal action, proceeding or investigation is pending or, to the knowledge of Seller, threatened that could result in any of the foregoing. No conditions or restrictions, except as stated in the Authorizations or CATV Instruments, apply to the Authorizations or CATV Instruments, other than such as may exist by virtue of any act of Congress or the various Governmental Authorities or by regulations of any Federal regulatory agency. (b) Except as set forth on Schedule 3.20, for any Authorization which has ------------- an unexpired term of less than three (3) years from the date hereof, a request for renewal thereof has been filed under Section 626(a) of the Cable Communication Policy Act of 1984, as amended (a "626 REQUEST"), with the proper Governmental Authority, within thirty (30) to thirty-six (36) months prior to the expiration date thereof, copies of which have been provided to Buyer. SECTION 3.21. TECHNICAL COMPLIANCE. All aeronautical frequencies in use -------------------- in the System have been properly registered with the FCC, and on the Closing Date only aeronautical frequencies eligible under Part 76.612 of Title 47 of the Code of Federal Regulations shall be in use. The System provides reception on the channels set forth on the Information Sheet in compliance with the technical guidelines set forth in Part 76, Subpart K of Title 47 of the Code of Federal Regulations, and any additional standard for signal quality as set forth in the Authorizations, the CATV Instruments and/or any other applicable Legal Requirement. The System meets all Legal Requirements concerning signal leakage, including without limitation, all signal leakage criteria prescribed by the FCC, including without limitation, the signal leakage performance criteria specified in Part 76.611 of Title 47 of the Code of Federal Regulations. The System materially complies with all applicable grounding and -25- bonding requirements. SECTION 3.22. ADDITIONAL FCC MATTERS. (a) Seller has provided all ---------------------- notices to subscribers and maintained all public files as required by FCC rules and regulations. Seller has submitted all required equal employment opportunity reports to the FCC, and the System has received equal employment opportunity certification from the FCC for each year except as set forth on Schedule 3.22. ------------- Seller is operating only those radio facilities for which appropriate Authorizations have been obtained and are in effect, and Seller is meeting the conditions of such Authorizations. Except as set forth on Schedule 3.22, as of ------------- the date of this Agreement, the rates charged to customers of the System are not subject to regulation by any Governmental Authority, including the local Franchising Authority and/or the FCC. To the knowledge of Seller, the rates charged by the System are allowable under the rules and regulations promulgated by the FCC under the Cable Act as of the date of this Agreement and for the twelve month period prior to the date of this Agreement, and any authoritative interpretation thereof, whether or not such rates were subject to regulation by any Governmental Authority. Except as set forth on Schedule 3.22, as of the date ------------- of this Agreement, Seller has not filed any reports or forms with respect to the rates of the System pursuant to the Cable Act. Seller has delivered to Buyer a true and correct copy of an actual bill sent to a subscriber which provides an itemization of all charges. (b) Seller has provided syndicated exclusivity and network nonduplication protection to stations that have requested such protection, and has followed all FCC procedures, including but not limited to, those procedures applicable to origination cablecasting, equal time and personal attack obligations, obscenity, sponsorship identifications, sponsorship lists, and commercial leased access as specified by FCC rules and regulations. (c) Seller is aware of no facts and Seller has received no notice or other communication from any Person indicating or alleging that Seller is not in compliance in any material respect with all requirements of (i) the FCC rules and regulations or the Cable Act, (ii) any Authorization, or that any Authorization has been revoked, suspended, has expired, or is otherwise not in full force and effect or (iii) any other applicable Legal Requirement. SECTION 3.23. FEDERAL AVIATION ADMINISTRATION. Seller has obtained all ------------------------------- necessary FAA approvals and waivers with respect to the System's towers. All existing towers of the System are obstruction marked and lighted, to the extent required by FAA rules and regulations, and otherwise comply with the rules and regulations of the FAA. To the extent required by the rules and regulations of the FAA, Seller has provided proper notice to the FAA prior to the construction or alteration of radio towers used in the operation of the System. SECTION 3.24. SUBSCRIBER AND REVENUE DATA. --------------------------- (a) Schedule 3.24(a) sets forth a true and complete list as of March 31, ---------------- 1998 of the number of: (i) Basic Subscribers; (ii) Courtesy Subscribers; (iii) miles of underground and aerial plant; (iv) Homes Passed; and (v) Total Revenue From All Subscribers. -26- (b) Seller has provided Buyer with a true and correct detailed breakdown for the year ended December 31, 1997 and for each calendar month for the three (3) month period ended March 31, 1998, of the source of System (i) expenses and (ii) revenues (Limited Basic Service, Tier One Service, Premium Pay Service, additional outlet, converters (remote) rental, late and other fees, installation, advertising, shopping, guide, etc.). (c) Seller has provided Buyer with a true and complete copy of the System's subscriber reports for each calendar month for the twelve months ended December 31, 1997 and for each calendar month for the three (3) month period ended March 31, 1998. (d) Using its billing service, the System bills subscribers monthly in advance prior to the first day of each subscriber billing cycle for services to be received during such billing cycle. (e) Schedule 3.24(e) sets forth true and correct copies, as of the date ---------------- of this Agreement, of the rate schedules (excluding periodic promotional activities in the normal course of business consistent with past practice or the availability of a promotional opportunity from a Premium Pay Service provider) for individual subscribers for the System, identifying the rates charged to each type of subscriber for Limited Basic Service, Tier One Service and Premium Pay Service, and all equipment and other charges. Schedule 3.24(e) also sets forth ---------------- the rates charged by the System for Leased Access Programming. (f) Schedule 3.24(f) sets forth true and correct copies of all privacy ---------------- notices required by the FCC to be delivered by the System to any of its subscribers since January 1, 1995 and true and correct copies of all notices and other written correspondence, other than privacy notices, required by the FCC to be delivered by the System to any of its subscribers since January 1, 1996. SECTION 3.25. LEGALITY OF SIGNAL CARRIAGE. Schedule 3.25 sets forth a --------------------------- ------------- true and complete list of all stations or signals carried or proposed to be carried on the System, describes whether each station or signal is acquired by microwave, satellite earth station or off-air reception or is locally originated, identifies the channel on which the station is carried, identifies which stations or signals are automated or alpha-numeric, identifies whether the stations or signals are included in the Limited Basic Service or Tier One Service, identifies which if any of such stations or signals are carried part- time and describes the classification of each station or signal for copyright purposes. The System is duly authorized to carry all stations or signals being carried and is presently carrying all stations or signals required to be carried and all signals are being carried in accordance with all rules and regulations of the FCC and the United States Copyright Office. Timely notice was given in accordance with the Cable Act and FCC rules and regulations to each commercial and non-commercial station carried by the System who have "must carry" rights. There are no broadcast stations that are entitled to carriage under the FCC "must carry" rules which are not carried by the System, except as separately listed on Schedule 3.25, which list specifies the exemption which provides the ------------- basis for not carrying each such station. Schedule 3.25 also ------------- -27- indicates, as to each broadcast station that is entitled to carriage on the System under FCC rules, whether the station has elected mandatory carriage or retransmission consent, the date of such station's notice and whether such station is considered a "low powered television station". As to each such station which requested retransmission consent, a list of all correspondence in connection with such negotiations that is in Seller's possession is set forth in Schedule 3.25. A copy of each retransmission consent agreement entered into by - - ------------- Seller, and of all written notices and correspondences sent or received by Seller in connection with such mandatory carriage and retransmission consent matters, has been provided to Buyer, and Seller has included in Schedule 3.25 a ------------- description of each such retransmission consent agreement which is not written. No notices or demands have otherwise been received by Seller challenging the right of the System to carry any television or broadcast channel or radio broadcast channel or other programming, or asserting an obligation of the System to carry any television or radio broadcast channel or other programming not carried by the System. SECTION 3.26. CERTAIN SYSTEM INFORMATION. -------------------------- (a) Schedule 3.26 sets forth for the System a true and correct ------------- description of: (i) the approximate miles of underground cable system plant; (ii) the approximate miles of aerial cable system plant; (iii) the channel capacity; (iv) the number of addressable and non-addressable converters in inventory; (v) the number of addressable and non-addressable converters in the field; and (vi) the community identification numbers for the System. (b) The System and the geographic areas in which Seller is entitled to extend cable communications services under the Authorizations are not in areas of "effective competition" as such term is defined in the Cable Act. Neither the FCC nor any other Governmental Authority has concluded, and Seller has not taken the position, that the System or the Authorizations are "small systems" as contemplated by the Cable Act. (c) A true and correct copy of an "as built" map of the System has been provided or made available to Buyer. The System has been designed, constructed, operated and maintained in all material respects in compliance with all applicable regulatory codes, Authorizations and FCC and FAA rules and regulations, and all equipment operates in all material respects within the manufacturers' specifications, the System has been designed and constructed to deliver a video and associated audio signal on each channel meeting the technical standards for quality contained in the Authorizations and FCC rules and regulations, and all aeronautical frequencies used in the operation of the System are authorized for the entire service radii of the System, which radii encompass all areas served by the System. The System is in compliance with Rule 76.610 of the FCC. Section 3.27. NO IMPEDIMENTS TO BUSINESS. Except as disclosed in -------------------------- Schedule 3.27, to Seller's knowledge after reasonable investigation, there is no - - ------------- Multi-Channel Video Service in the communities or geographic areas served by the System and Seller knows of no plans of any Person for the establishment of any such television signal delivery system in the communities or geographic areas served by the System. Except as disclosed in Schedule 3.27, no franchise to ------------- permit any Multi-Channel Video -28- Service to be provided has been granted by a Governmental Authority in the communities or geographic areas served by the System to any Person other than Seller, and to Seller's knowledge, no application for any Multi-Channel Video Service is pending. SECTION 3.28 FULL DISCLOSURE. The statements made by each of Seller, --------------- JCC and Jones in this Agreement do not include or contain any untrue statement of a fact, and do not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF JONES SECTION 4.1. ORGANIZATION AND EXISTENCE. Jones is a corporation duly -------------------------- incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted. SECTION 4.2. CORPORATE AUTHORIZATION. The execution, delivery and ----------------------- performance by Jones of this Agreement are within the corporate powers of Jones and have been duly authorized by all necessary corporate action on the part of Jones. This Agreement constitutes the valid and binding agreement of Jones, enforceable against it in accordance with its terms. SECTION 4.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and -------------------------- performance by Jones of this Agreement require no action by or in respect of, or filing with, any Governmental Authority other than (i) compliance with any applicable requirements of the HSR Act (ii) the filing of FCC Form 394 in connection with the transfer of the Authorizations. SECTION 4.4. NON-CONTRAVENTION. The execution, delivery and performance ----------------- by Jones of this Agreement do not and will not (i) violate the certificate or articles of incorporation or bylaws of Jones, (ii) assuming compliance with the matters referred to in Section 4.3, violate any applicable Legal Requirement or (iii) violate any material agreement to which Jones is a party.. SECTION 4.5. LITIGATION. There is no action, suit, investigation or ---------- proceeding pending against, or to the knowledge of Jones, threatened against or affecting, Jones before any arbitrator or any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated hereby. -29- SECTION 4.6 FULL DISCLOSURE. The statements made by Jones in this --------------- Agreement do not include or contain any untrue statement of a fact, and do not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF JCC SECTION 5.1. ORGANIZATION AND EXISTENCE. JCC is a corporation duly -------------------------- incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted. SECTION 5.2. CORPORATE AUTHORIZATION. The execution, delivery and ----------------------- performance by JCC of this Agreement are within the corporate powers of JCC and have been duly authorized by all necessary corporate action on the part of JCC. This Agreement constitutes the valid and binding agreement of JCC, enforceable against it in accordance with its terms. SECTION 5.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and -------------------------- performance by JCC of this Agreement require no action by or in respect of, or filing with, any Governmental Authority other than (i) compliance with any applicable requirements of the HSR Act and (ii) the filing of FCC Form 394 in connection with the transfer of the Authorizations. SECTION 5.4. NON-CONTRAVENTION. The execution, delivery and performance ----------------- by JCC of this Agreement do not and will not (i) violate the certificate or articles of incorporation or bylaws of JCC, (ii) violate any covenants contained in any loan documents or debt instruments of JCC or any of its subsidiaries, (iii) violate any material agreement to which JCC is a party or (iv) assuming compliance with the matters referred to in Section 5.3, violate any applicable Legal Requirement. SECTION 5.5. LITIGATION. There is no suit, investigation or proceeding pending against, or to the knowledge of JCC, threatened against or affecting, JCC before any arbitrator or any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated hereby. SECTION 5.6 FULL DISCLOSURE. The statements made by JCC in this --------------- Agreement do not include or contain any untrue statement of a fact, and do not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. -30- ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BUYER Buyer represents and warrants to Seller as of the date hereof and as of the Closing Date that: SECTION 6.1. ORGANIZATION AND EXISTENCE. Buyer is a corporation duly -------------------------- incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted. SECTION 6.2. CORPORATE AUTHORIZATION. The execution, delivery and ----------------------- performance by Buyer of this Agreement are within the corporate powers of Buyer and have been duly authorized by all necessary corporate action on the part of Buyer. This Agreement constitutes a valid and binding agreement of Buyer, enforceable against it in accordance with its terms. SECTION 6.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and -------------------------- performance by Buyer of this Agreement require no action by or in respect of, or filing with, any Governmental Authority other than (i) compliance with any applicable requirements of the HSR Act and (ii) the filing of FCC Form 394 in connection with the transfer of the Authorizations. SECTION 6.4. NON-CONTRAVENTION. The execution, delivery and performance ----------------- by Buyer of this Agreement do not and will not (i) violate the certificate of incorporation or bylaws of Buyer, (ii) violate any material agreement to which Buyer is a party or (iii) assuming compliance with the matters referred to in Section 6.3, violate any applicable Legal Requirement. SECTION 6.5. FINDERS' FEES. There is no investment banker, broker, ------------- finder or other intermediary which has been retained by or is authorized to act on behalf of Buyer or any of its Affiliates who might be entitled to any fee or commission from Seller or any of its Affiliates upon consummation of the transactions contemplated by this Agreement. SECTION 6.6. LITIGATION. There is no action, suit, investigation or ---------- proceeding pending against, or to the knowledge of Buyer threatened against or affecting, Buyer before any arbitrator or any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated hereby. SECTION 6.7 FULL DISCLOSURE. The statements made by Buyer in this --------------- Agreement do not include or contain any untrue statement of a fact, and do not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. -31- ARTICLE 7 COVENANTS OF SELLER, JCC, JONES AND JONES INTERCABLE SECTION 7.1. CONDUCT OF THE BUSINESS. From the date hereof until the ----------------------- Closing Date, Seller and JCC, as applicable, shall conduct the business of the System solely in the ordinary course consistent with past practice (including without limitation, with respect to subscriber acquisition and retention and disconnect policies) and use reasonable efforts to preserve intact the business organizations and relationships with third parties and to keep available the services of the present employees of the System. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, with respect to the System, Seller shall: (a) deliver to Buyer, promptly after such statements become available to Seller, correct and complete copies of unaudited monthly balance sheets, income statements and operating reports for the System for each month between the date of this Agreement and the Closing Date and copies of all filings made by Seller with the SEC between the date of this Agreement and the Closing Date; (b) not amend its partnership agreement; (c) not issue, sell, deliver or agree to issue, sell or deliver (whether through the issuance or granting of options, commitments, subscriptions, rights to purchase or otherwise) any partnership interests; (d) not acquire, sell, lease or dispose of any assets material to the System, other than sales of inventory or equipment in the ordinary course of business consistent with past practice and the disposition of damaged or defective equipment or material in the normal course of business; (e) not mortgage, pledge or subject to any Lien, any of the Assets, except Liens in place as of the date of this Agreement; (f) not increase the amount of any compensation payable to any individual employee of Seller, unless such increase is limited to customary annual merit increases not exceeding 7% of such employees previous base salary, and not increase the amount of compensation payable to any employee of Seller, if such increase would be inconsistent with past practices or would cause the aggregate cash compensation payable to all employees to exceed by more than four percent (4%) the cash compensation payable by Seller on an annualized basis as of March 31, 1998 (provided that this Section 7.1(f) shall not apply with respect to any "sticking bonuses" paid by Seller to Seller's employees prior to Closing. The amount of the sticking bonuses or the formula for the determination of such sticking bonuses have been disclosed by Seller to Buyer prior to execution of this Agreement. (g) not declare, set aside or pay any distribution (whether in cash, partnership interests or property or any combination thereof) in respect of its partnership interests, or redeem or otherwise acquire any of its partnership interests; -32- (h) promptly notify Buyer if Seller shall learn of any event or circumstance which may make or cause any representation or warranty given by it to be or become untrue at or prior to Closing; (i) not reveal, orally or in writing, to any party, other than Buyer and its authorized agents, any of the business procedures and practices followed by the System in the conduct of its business or any technology used in the processing, evaluation or distribution of any of its products or services; (j) maintain in full force and effect insurance coverage and fidelity bonds substantially equivalent to that listed on Schedule 3.14; ------------- (k) continue to maintain all of the business records of the System in accordance with its past practice; (l) pay all debts, liabilities and obligations of or relating to the System as they become due, except for such debts or obligations which are contested by Seller in good faith; (m) maintain Seller's partnership existence and not merge or consolidate with any other Person; (n) comply, in all material respects, with all applicable Legal Requirements (including, without limitation, regulations of Governmental Authorities and ordinances relating to the System) and all Contracts; (o) comply with, and use best efforts to maintain in full force and effect, all Authorizations; (p) maintain its facilities and assets in good working condition, reasonable wear and tear excepted, and maintain commercially reasonable inventory levels consistent with past practice, which shall include sufficient quantities of amplifiers, line extenders, installation materials and converters to operate and maintain the System in the ordinary course consistent with past practice; (q) not delete, substitute or add any programming service on the System or enter into or amend any contract, agreement, commitment, license or understanding therefor or change the channel alignment, retier or repackage the cable television programming without Buyer's consent; (r) not take any rate increases or make any election with respect to any cost of service proceeding conducted in accordance with Section 76.922 of Title 47 of the Code of Federal Regulations or any similar proceeding (a "COST OF SERVICE ELECTION"), without Buyer's prior written consent; (s) replace subscriber drops that do not comply with the current provisions of the National Electrical Safety Code in the ordinary course consistent with past practice; -33- (t) continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement; (u) continue to give all customary notices to subscribers in the ordinary course of business consistent with past practices; (v) not enter into any retransmission consent or similar agreements or amend any existing retransmission consent or similar agreements without the prior written consent of Buyer; (w) make capital expenditures in the ordinary course of business consistent with past practice; (x) except as set forth in Schedule 3.7, not borrow any money and not ------------ incur, guarantee or become subject to, or agree to incur, guarantee or become subject to, any obligation or liability of another Person; (y) use its reasonable efforts to retain the services of all of its employees between the date hereof and the Closing Date; (z) use commercially reasonable efforts to obtain franchise renewal agreements with the City of Roseville (the "CITY") and unincorporated Placer County (the "COUNTY"), on terms and conditions satisfactory to Buyer. (aa) provide Buyer with a copy of all copyright returns to be filed by Seller in connection with the System at least ten (10) days prior to filing such returns; (bb) not engage in any promotions, pricing discounts or other sales or marketing incentives (whether relating to pricing or otherwise) (collectively, "PROMOTIONS") or make such Promotions available to subscribers or prospective subscribers for Cable Service; and (cc) timely file all required 626 Requests with the proper Governmental Authority in respect of any Authorizations expiring within 36 months after Closing; provided, however, that Seller shall consult with Buyer prior to the filing of any 626 Request and shall provide to Buyer a true, correct and complete copy of any such 626 Request as filed promptly upon such filing. Seller shall pursue all 626 Requests in consultation with Buyer. Seller shall not (i) take or agree or commit to take any action that would make any representation or warranty of Seller hereunder inaccurate in any respect at, or as of any time prior to, the Closing Date or (ii) omit or agree or commit to omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any respect at any such time. -34- SECTION 7.2. ACCESS TO INFORMATION. From the date hereof until the --------------------- Closing Date, Seller (a) shall give Buyer, its counsel, financial advisors, auditors and other authorized representatives full access to the offices, properties, books and records of Seller relating to the Assets and the System, (b) shall furnish to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Assets or System as such Persons may reasonably request and (c) shall instruct the employees, counsel and financial advisors of Seller to cooperate with Buyer in its investigation of the System; provided that -------- no investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller hereunder. Any investigation pursuant to this Section shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the System. SECTION 7.3. NOTICES OF CERTAIN EVENTS. Seller shall promptly notify ------------------------- Buyer of: (a) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; (b) any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement or relating in any way to an alleged violation of any Legal Requirement applicable to the System; (c) any action, suit, claim, investigation or proceeding, commenced or, to its knowledge threatened against, relating to or involving or otherwise affecting Seller or the System that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 3.11 or that relates to the consummation of the transactions contemplated by this Agreement; (d) the filing of any additional FCC Forms 328 (for certification) or FCC Forms 329 (for rate complaints) with respect to the System, and any notice of a change in status of any of the FCC certifications filed with respect to the System or a change in the status of any complaint with respect to the cable communications service rates charged to subscribers; and (e) any Cable Act Petitions, Cable Act Orders and Cable Act Notices filed or received by Seller. SECTION 7.4. NONCOMPETITION. (a) Each of Seller, JCC, Jones and Jones -------------- Intercable agree that for a period of three years from the Closing Date, neither they nor any Person in which they have an economic interest, shall: (i) directly or indirectly engage in or be financially interested in or otherwise connected with any business, except as set forth in subparagraphs (A), (B) and (C) below, competitive with the multichannel video delivery business in -35- any area served by the System or any area in which Buyer or any of its Affiliates conducts business and which is contiguous to any area served by the System. This restrictive covenant shall not prohibit Seller, JCC, Jones or Jones Intercable or any Person in which any of the foregoing have an economic interest from (A) engaging in any programming service, including without limitation, Knowledge TV, Great American Country, Product Information Network, Jones Radio Networks, Jones Internet Channel, Superaudio and AD/FX; (B) engaging in a national direct broadcast satellite service in any area outside of the area served by the System or (C) acquiring an equity interest of 10% or less in any company; provided that such investment shall be a passive investment, and none of Seller, JCC, Jones or Jones Intercable, or any entity in which any of the foregoing have an economic interest, shall play a role in the management or operation of such company. (ii) solicit the performance of services by, any Transferred Employee or any employee of the System to whom Buyer has made an offer of employment. (b) If any provision contained in this Section shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section, but this Section shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the parties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by applicable law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but instead such provision shall be construed to the fullest extent so that such provision would be valid or enforceable under applicable law, and it is the parties' mutual intent that a court of competent jurisdiction shall construe and interpret or reform this Section to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as shall be valid and enforceable under such applicable law. Each of Seller, JCC, Jones and Jones Intercable acknowledge that Buyer would be irreparably harmed by any breach of this Section and that there would be no adequate remedy at law or in damages to compensate Buyer for any such breach. Each of Seller, JCC, Jones and Jones Intercable agree that Buyer shall be entitled to injunctive relief requiring specific performance by Seller, JCC, Jones and Jones Intercable of this Section, and Seller, JCC, Jones and Jones Intercable each consent to the entry thereof. SECTION 7.5. USE OF SELLER'S NAME. For a period up to 90 days after the -------------------- Closing Date, Buyer may continue to operate the System using Seller's d/b/a names and its corporate name and all derivations and abbreviations of such names and related marks, in order to effectively transfer title to all Assets and the System to Buyer. Within 90 days after the Closing Date, Buyer shall discontinue using and shall dispose of all items of stationery, business cards and literature bearing such names or marks. Notwithstanding the foregoing, Buyer will not be required to remove or discontinue using any such name or mark that is affixed to converters or other items in or to be used in subscribers' homes or properties, or as are used in a similar fashion making such removal or discontinuation impracticable for Buyer. -36- SECTION 7.6. CAPITAL LEASES. Seller shall pay the remaining balance of -------------- any capital lease, if any, for any Personal Property and deliver the title to such Personal Property free and clear of all Liens to the Buyer at the Closing. SECTION 7.7. CONSENTS; ESTOPPEL CERTIFICATES. Seller shall use ------------------------------- commercially reasonable efforts to obtain, as soon as possible and at its expense, all the Required Consents and Franchise Approvals, in form and substance reasonably satisfactory to Buyer. Seller shall notify Buyer in advance of and give Buyer an opportunity to participate in all material contacts with, and provide copies of all correspondence to or from, any Franchising Authorities in connection with the Authorizations or other matters. Buyer shall cooperate with Seller to obtain all Required Consents and Franchise Approvals, but Buyer shall not be required to agree to any changes in, or the imposition of any condition to the transfer to Buyer of, any Contract or Authorization as a condition to obtaining any Required Consent or Franchise Approval. Seller also shall use reasonable efforts to obtain, at its expense, such estoppel certificates or similar documents from lessors and other Persons who are parties to Contracts as Buyer may reasonably request. SECTION 7.8. AGREEMENT TO CONSULT. For the six month period immediately -------------------- following the Closing Date, upon the request of Buyer, Seller shall, and shall use reasonable efforts to cause such of its employees, agents or representatives as Buyer may reasonably request from time to time, without payment of additional consideration, to consult with or advise Buyer or any of its Affiliates with respect to the operation of the System, in order to effect a smooth transition of ownership of the System. SECTION 7.9. TRANSITIONAL BILLING SERVICES. JCC shall provide to ----------------------------- Buyer, upon written request and at the cost of Buyer, subscriber billing services ("TRANSITIONAL BILLINGS SERVICES") in connection with the System for a period of up to 90 days following Closing to allow for conversion of existing billing arrangements. Buyer shall notify Seller in writing at least 30 days prior to Closing as to whether it desires Transitional Billing Services. The amount to be paid by Buyer for Transitional Billings Services, if provided hereunder, shall not exceed the actual cost to JCC of providing such Transitional Billing Services. SECTION 7.10. NO SOLICITATION. (a) From the date hereof, none of the --------------- Seller, JCC, Jones or Jones Intercable, nor any of their respective Affiliates, nor any of their respective officers, directors, representatives or agents shall, directly or indirectly, encourage, solicit, initiate or, except as otherwise provided in this Section 7.10(a), participate in any way in discussions or negotiations with or provide any confidential information to, any corporation, partnership, person or other entity or group (other than Buyer or any Affiliate or associate of Buyer and their respective directors, officers, employees, representatives and agents) concerning any merger of or business combination with or involving Seller, the sale of any of the Assets, other than in the ordinary course of business, consistent with past practice, including without limitation, the System, the sale of the partnership interests of Seller or similar transactions involving Seller; provided, however, that nothing contained in this Section 7.10(a) shall prohibit Seller, JCC, Jones or Jones Intercable from responding to any unsolicited proposal or -37- inquiry solely by advising the person making such proposal or inquiry of the terms of this Section 7.10(a). It is understood that any violation of the restrictions set forth in this Section 7.10(a) by any officer, director, employee, investment banker, attorney, advisor, representative or other agent of Seller, JCC, Jones or Jones Intercable or any of their respective Affiliates shall be deemed to be a breach of this Section 7.10(a) by Seller. Notwithstanding the foregoing, nothing contained in this Section 7.10(a) shall prevent JCC from furnishing non-public information to, or entering into discussions or negotiations with, any Person in connection with an unsolicited bona fide Superior Proposal with respect to Seller, the System or the Assets, if and only to the extent that (i) JCC determines in good faith, based upon the written opinion of outside counsel to JCC (a copy of which is delivered to Buyer) that, failing to take such action would result in a breach of its fiduciary duties under applicable law; and (ii) prior to furnishing non-public information to, or entering into discussions or negotiations with, such Person, Seller notifies Buyer thereof in writing and gives Buyer an opportunity to match such Superior Proposal and (iii) prior to furnishing non-public information to such Person, Seller receives from such Person an executed confidentiality agreement on terms no less favorable to Seller than those contained in Seller's confidentiality agreement with Buyer. For purposes of this Agreement, "SUPERIOR PROPOSAL" means any bona fide, written, unsolicited offer or proposal relating ---- ---- to (A) a merger or other business combination involving Seller, or (B) the acquisition in any manner of any significant equity interest in, or a substantial portion of the Assets of Seller, in each case other than the transactions contemplated by this Agreement. (b) JCC shall not (i) withdraw or modify, or propose to withdraw or modify, the adoption, approval or recommendation by JCC of this Agreement; or (ii) approve or recommend, or propose to approve or recommend, any Superior Proposal by any Person other than Buyer, unless (A) JCC determines in good faith, based upon the written opinion of outside counsel to JCC, that failure to take such action would result in a breach of its fiduciary duties under applicable law and (B) such Superior Proposal is determined in good faith (based upon a written opinion of an investment banking firm of national reputation) by JCC to be more favorable to the limited partners of Seller than the transactions provided for in this Agreement. (c) Seller will promptly (and in no event later than three Business Days after receipt of the relevant Superior Proposal), notify (which notice shall be provided orally and in writing and shall identify the Person making the Superior Proposal and set forth the material terms thereof) Buyer after receipt of any Superior Proposal meeting the standard set forth in clause (i) of Section 7.10(a) and will keep Buyer fully informed of the status and details of any such Superior Proposal. Seller shall give Buyer at least three days' advance notice of any information to be supplied to, and at least five days' advance notice of any agreement to be entered into with, any person making such Superior Proposal. SECTION 7.11. SEC FILINGS. (a) JCC shall prepare and as soon as ----------- practicable, and in any event within 30 days after the date of this Agreement, file with the SEC a proxy statement (the "PRELIMINARY PROXY STATEMENT") comprising preliminary proxy materials of the Seller under the Exchange Act with respect to the transactions contemplated by this Agreement, and will thereafter use its best efforts to respond to any comments of the SEC with respect thereto and to cause a definitive -38- proxy statement (including all supplements and amendments thereto, the "PROXY STATEMENT") and proxy to be mailed to the partners of the Seller as promptly as practicable. (b) JCC will notify Buyer promptly of the receipt of any comments from the SEC or its staff or any other government official and of any requests by the SEC or its staff or any other government official for amendments or supplements to the Preliminary Proxy Statement or for additional information. SECTION 7.12. JCC RECOMMENDATION. Subject to Section 7.10(b), the Proxy ------------------ Statement shall include the affirmative recommendation of JCC that the partners of Seller approve the transactions contemplated by this Agreement. SECTION 7.13. VOTE OF PARTNERS OF SELLER. JCC shall take all action -------------------------- necessary, in accordance with applicable law and its partnership agreement, to conduct a vote of the partners of Seller as promptly as practicable to consider the adoption and approval of this Agreement and the transactions contemplated hereby. The partnership vote required shall be the vote required pursuant to the partnership agreement of Seller. JCC (subject, in the case of a Superior Proposal, to its fiduciary duty, as advised by written opinion of outside counsel) shall, subject to compliance with applicable law, use commercially reasonable efforts to solicit from the partners of Seller, proxies in favor of adoption and approval of the transactions contemplated by this Agreement and to take all other commercially reasonable action necessary to secure the vote of such partners required to effect the transactions contemplated hereby. JCC agrees to vote in favor of this Agreement and the transactions contemplated hereby (subject, in the case of a Superior Proposal, to its fiduciary duty as advised by written opinion of outside counsel). SECTION 7.14. SCHEDULES. Five business days prior to the Closing Date, --------- Seller shall deliver to Buyer new Schedules 3.12(a), 3.12(c), 3.16 and 3.24(a) ----------------- ------- ---- ------- to this Agreement that are amended or supplemented to update the information contained therein in order to reflect any changes in the information contained therein resulting from events occurring after the date hereof and prior to the Closing Date. SECTION 7.15. FEES FOR ENVIRONMENTAL ASSESSMENTS. Seller shall pay ---------------------------------- Buyer, on the earlier of the Closing Date or the date of termination of this Agreement, one-half of Buyer's cost of conducting Environmental Assessments of the Owned Real Property and the Leased Real Property. SECTION 7.16. CITY OF ROSEVILLE FRANCHISE. Seller shall assign to --------------------------- Buyer, the CATV Instruments and Authorizations associated with the City of Roseville franchise, free and clear of all "demerits", under the demerit system set forth in Ordinance No. 1822 of the Council of the City of Roseville. SECTION 7.17. TERMINATION OF REVOLVING CREDIT AND TERM LOAN AGREEMENTS -------------------------------------------------------- AND SECURITY INTERESTS. Seller shall, on or prior to the Closing Date, - - ---------------------- terminate the Revolving Credit Agreement, dated February 28, 1996, by and between Seller and Colorado National Bank ("COLORADO NATIONAL BANK"), and all amounts due -39- thereunder shall be paid in full, and any related notes, security agreements, mortgages or other agreements to which the Seller is a party shall be terminated (collectively, the "BANK LOAN DOCUMENTS"). SECTION 7.18. WAIVER OF JCC RIGHT OF FIRST REFUSAL. Each of JCC, Jones ------------------------------------ and Jones Intercable hereby agree that upon execution of this Agreement, its rights of first refusal under the Seller's Limited Partnership Agreement, with respect to the purchase of property of Seller, shall immediately terminate, including without limitation, any rights of first refusal that were granted in favor of any affiliates of either JCC, Jones or Jones Intercable. SECTION 7.19. STODDARD/PACIFIC #2 AGREEMENT. Seller shall use ----------------------------- commercially reasonable efforts to obtain an amendment to Section 5(c) of the Cable Television Installation and Wiring Agreement, dated September 21, 1992, by and between Seller and Stoddard/Pacific #2 ("STODDARD") as follows: Section 5(c) of the Cable Television Installation and Wiring Agreement is hereby amended and restated in its entirety as follows: (c) MATV Service. In the event Owner exercises the option referred ------------ to in Section 5(a) hereof, for a period of one year immediately following such exercise, Operator shall connect the MATV to any Unit on the request of Owner or any Unit occupant and shall provide off-air television signals to such Unit at no charge to Owner or any Unit occupant. SECTION 7.20. POLE ATTACHMENT AGREEMENTS. (a) Seller shall use -------------------------- commercially reasonable efforts to obtain an acknowledgment from Roseville Telephone Company that the pole attachment agreement by and between the Seller and Roseville Telephone Company is in full force and effect and that the term of such pole attachment agreement is for the term of the Seller's franchise to provide Cable Service in the area covered by such pole attachment agreement, including any renewal terms of such franchise (the "ROSEVILLE TELEPHONE COMPANY ACKNOWLEDGMENT"). (b) Seller shall use commercially reasonable efforts to obtain an acknowledgment from Pacific Gas and Electric Company ("PG&E") that the pole attachment agreement by and between Seller and PG&E is in full force and effect and that the term of such agreement has been extended for the term of Seller's franchise to provide Cable Service in the area covered by such pole attachment agreement, including any renewal terms of such franchise (the "PG&E ACKNOWLEDGMENT"). SECTION 7.21. ASSIGNMENT BY JONES INTERCABLE. On or prior to the ------------------------------ Closing Date, Jones Intercable shall assign, and Seller shall assume, all rights and obligations of Jones Intercable in any asset or contract included in the Assets, including without limitation, the following contracts (the "JONES INTERCABLE ASSETS"): (a) Agreement, dated July 28, 1993, by and between Foothill Alarm System, Inc. and Jones Intercable; -40- (b) Agreement, dated October 1, 1995, by and between Image Building Maintenance Concept and Jones Intercable; (c) Agreement, dated August 7, 1989, by and between Jones Intercable and one or more of its affiliates and Sierra Joint Community College; and (d) Easement and Right-of-Way, dated December 14, 1994, by and among Daniel W. Sanford and Barbara J. Sanford and Jones Intercable, Jones Spacelink and/or one or more of their controlled affiliates. SECTION 7.22. MAIDU CENTER PAYMENT. Seller shall make the $5,000 -------------------- payment required by Franchise Ordinance 1822, Section 31(e) for cablecasting from the Maidu Center (the "MAIDU CENTER PAYMENT"). SECTION 7.23. EASEMENT. Seller shall use commercially reasonable -------- efforts to obtain a written easement executed by Orla Swager for access to the property located at 510 Vine Avenue, Roseville, California. ARTICLE 8 COVENANTS OF BOTH PARTIES Buyer and Seller agree that: SECTION 8.1. BEST EFFORTS; FURTHER ASSURANCES. (a) Subject to the terms -------------------------------- and conditions of this Agreement, Buyer and Seller will each use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable laws and regulations to consummate the transactions contemplated by this Agreement. Seller and Buyer each agree to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or desirable in order to consummate or implement expeditiously the transactions contemplated by this Agreement and to vest in Buyer good and marketable title to the Assets (whether before or after the Closing). (b) Seller hereby constitutes and appoints, effective as of the Closing Date, Buyer and its successors and assigns as the true and lawful attorney of Seller with full power of substitution in the name of Buyer or in the name of Seller, but for the benefit of Buyer (i) to collect for the account of Buyer any of the Assets and (ii) to institute and prosecute all proceedings which Buyer may in its sole discretion deem proper in order to assert or enforce any right, title or interest in, to or under the Assets, and to defend or compromise any and all actions, suits or proceedings in respect of the Assets. Buyer shall be entitled to retain for its own account any amounts collected pursuant to the foregoing powers, including any amounts payable as interest in respect thereof. SECTION 8.2. CERTAIN FILINGS. Seller and Buyer shall cooperate with one --------------- another (a) in determining whether any action by or in respect of, or filing with, any -41- Governmental Authority is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any of the Contracts, in connection with the consummation of the transactions contemplated by this Agreement and (b) in taking such actions or making any such filings, furnishing information required in connection therewith and seeking timely to obtain any such actions, consents, approvals or waivers. Without limitation, Seller and Buyer shall each make an appropriate filing of a Notification and Report Form pursuant to the HSR Act (the "HSR FILING") no later than fifteen (15) Business Days from the date hereof; and each such filing shall request early termination of the waiting period imposed by the HSR Act. Notwithstanding the foregoing, (i) in the event the Department of Justice or Federal Trade Commission make a second request for information in connection with the HSR Filing, neither Buyer nor Seller shall be obligated to comply with such second request, but rather may terminate this Agreement in accordance with Section 13.1 and (ii) Buyer shall not be required to agree to any consent decree or order in connection with any objections of the Department of Justice or the Federal Trade Commission to the transactions contemplated by this Agreement. SECTION 8.3. PUBLIC ANNOUNCEMENTS. No party hereto shall make any -------------------- public announcements or otherwise communicate with any news media with respect to this Agreement or any of the transactions contemplated hereby without prior consultation with the other parties as to the timing and content of any such announcement; provided however, that nothing contained herein shall prevent any party from promptly making all filings with Governmental Authorities as may, in its judgment, be required or advisable in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or as required by any Legal Requirement. ARTICLE 9 TAX MATTERS SECTION 9.1. TAX DEFINITIONS. The following terms, as used herein, have --------------- the following meanings: "CODE" means the Internal Revenue Code of 1986, as amended. "POST-CLOSING TAX PERIOD" means any Tax period (or portion thereof) ending after the Closing Date. "PRE-CLOSING TAX PERIOD" means any Tax period (or portion thereof) ending on or before the close of business on the Closing. "TAX" means any net income, alternative or add-on minimum tax, documentary stamp tax, escheat, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, capital, paid-up capital, profits, greenmail, license, withholding on amounts paid to or by Seller or the System, payroll, employment, excise, severance, stamp, occupation, premium, property, environmental or windfall profit tax, custom duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or additional -42- amount imposed by any Governmental Authority (domestic or foreign) responsible for the imposition of any such tax. SECTION 9.2. TAX REPRESENTATIONS. Seller hereby represents and warrants ------------------- to Buyer that: (a) Seller has timely filed with the appropriate Governmental Authorities all Tax Returns required to be filed by or on behalf of Seller. (b) Seller has timely paid all Taxes payable by it for the Pre-Closing Tax Period which are required to be paid on or prior to the Closing Date, the non-payment of which could result in a Lien on any Asset, could otherwise adversely affect the System or could result in Buyer or any Affiliate of Buyer becoming liable or responsible therefor. (c) Seller has established, in accordance with GAAP, adequate reserves for the payment of, and will timely pay all Tax liabilities, assessments, interest and penalties which arise from or with respect to the Assets or the operation of the System and are incurred in or attributable to the Pre-Closing Tax Period, the non-payment of which could result in a Lien on any Asset, could otherwise adversely affect the System or could result in Buyer or any Affiliate of Buyer becoming liable therefor. (d) Seller has not received any written notice of audit, deficiency or assessment with respect to any Tax, the nonpayment of which could result in a Lien on any Asset, could otherwise adversely affect the System or could result in Buyer or any Affiliate of Buyer becoming liable therefor. (e) Schedule 9.2 sets forth the states with which Seller has filed any ------------ Tax return relating to the System. SECTION 9.3. TAX COOPERATION AND OTHER TAX MATTERS. (a) Buyer and ------------------------------------- Seller agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Assets and the System as is reasonably necessary for the filing of all Tax returns, and making of any election related to Taxes, the preparation for any audit by any taxing authority, and the prosecution or defense of any claim, suit or proceeding relating to any Tax return. Seller and Buyer shall cooperate with each other in the conduct of any audit or other proceeding related to Taxes involving the System for any Pre-Closing Tax Period. (b) All real property taxes, personal property taxes and similar ad -- valorem obligations levied with respect to the Assets for a taxable period which - - ------- includes (but does not end on) the Closing Date shall be apportioned between Seller and Buyer as of the Closing Date based on the number of days of such taxable period included in the Pre-Closing Tax Period and the number of days of such taxable period included in the Post-Closing Period. Seller shall be liable for the proportionate amount of such taxes that is attributable to the Pre- Closing Tax Period, and Buyer shall be liable for the proportionate amount of such taxes that is attributable to the Post-Closing Tax Period. Within 90 days after the Closing, Seller and Buyer shall present a statement to the other setting forth the amount of reimbursement to which each is -43- entitled under this Section 9.3(b) together with such supporting evidence as is reasonably necessary to calculate the proration amount. The proration amount shall be paid by the party owing it to the other within 15 days after delivery of such statement to the extent that the amount has not been taken into account as "Current Assets" or "Total Liabilities," as the case may be, in determining the adjustments to the Purchase Price under Section 2.5(b). Thereafter, Seller shall notify Buyer upon receipt of any bill for real or personal property taxes relating to the Assets, part or all of which are attributable to the Post- Closing Tax Period, and shall promptly deliver such bill to Buyer who shall pay the same to the appropriate taxing authority, provided that if such bill covers the Pre-Closing Tax Period, to the extent that the proportionate amount has not been taken into account as "Total Liabilities" in determining the adjustments to the Purchase Price under Section 2.5(b), Seller shall also remit to Buyer prior to the due date of assessment, payment for the proportionate amount of such bill that is attributable to the Pre-Closing Tax Period. Buyer shall notify Seller upon receipt of any bill for real or personal property taxes relating to the Assets, part or all of which are attributable to the Pre-Closing Tax Period, and shall promptly deliver such bill to Seller who, to the extent that the amount due under such bill has not been taken into account as "Total Liabilities" in determining the adjustments to the Purchase Price under Section 2.5(b) and such amount relates solely to the Pre-Closing Tax Period, shall pay the same to the appropriate taxing authority, provided that if such bill covers the Pre-Closing Tax Period and the Post-Closing Tax Period, to the extent that the porportionate amount has not been taken into account as "Total Liabilities" in determining the adjustments to the Purchase Price under Section 2.5(b), Seller shall remit to Buyer prior to the due date of assessment, payment for the proportionate amount of such bill that is attributable to the Pre-Closing Tax Period. In the event that either Seller or Buyer shall thereafter make a payment for which it is entitled to reimbursement under this Section 9.3(b), and to the extent that the amount has not been taken into account as "Current Assets" or "Total Liabilities," as the case may be, in determining the adjustments to the Purchase Price under Section 2.5(b), the other party shall make such reimbursement promptly but in no event later than 30 days after the presentation of a statement setting forth the amount of reimbursement to which the presenting party is entitled along with such supporting evidence as is reasonably necessary to calculate the amount of reimbursement. Any payment required under this Section and not made within ten (10) days of delivery of the statement shall bear interest at the rate per annum determined, from time to time, under the provisions of Section 6621(a)(2) of the Code for each day until paid. (c) In the case of any Taxes (other than any real property taxes, personal property taxes and similar ad valorem obligations) that are payable for -- ------- a taxable period that includes (but does not end on) the Closing Date, the amount of such Taxes attributable to the Pre-Closing Tax Period shall be deemed equal to the amount which would be payable if the relevant taxable period ended on the Closing Date. (d) Any transfer, documentary stamp tax, sales, use or other Taxes assessed upon or with respect to the transfer of the Assets to Buyer and any recording or filing fees with respect thereto shall be the responsibility of Seller. (e) At the Closing, Seller shall deliver to Buyer a certificate as required by Treasury regulations Section 1.1445 to the effect that Seller is not a "foreign person" as defined in Section 1445 of the Code. -44- (f) Seller shall not take or omit to take any action out of the ordinary course of business or inconsistent with past practice if such action or omission would have the effect of increasing the Tax liability relating to the System, the Buyer, or any of Buyer's Affiliates. ARTICLE 10 EMPLOYEE BENEFITS SECTION 10.1. EMPLOYEE BENEFITS DEFINITIONS. The following terms, as ----------------------------- used herein, having the following meanings: "EMPLOYEE PLANS" means each "employee benefit plan", as such term is defined in Section 3(3) of ERISA, which (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by Seller or any of its ERISA Affiliates (as defined below) and (iii) covers any employee of Seller or any of its ERISA Affiliates. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "ERISA AFFILIATE" of any entity means any other entity which, together with Seller, would be treated as a single employer under Section 414 of the Code. "MULTIEMPLOYER PLAN" means each Employee Plan that is a multiemployer plan, as defined in Section 3(37) of ERISA. SECTION 10.2. EMPLOYEE BENEFIT REPRESENTATIONS. Seller hereby -------------------------------- represents and warrants to Buyer that: (a) Neither Seller nor any ERISA Affiliate of Seller has ever been a party to, contributed to, or been obligated to contribute to a Multiemployer Plan. No Employee Plan is subject to Title IV of ERISA. Neither Seller nor any of Seller's ERISA Affiliates has incurred any liability under Title IV of ERISA that could become, after the Closing Date, an obligation of Buyer or any of its Affiliates. (b) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. (c) Schedule 10.2(c) includes a list of each employment, severance or ---------------- other similar contract, arrangement or policy (written or oral) and each plan or arrangement (written or oral) providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation or sick benefits, retirement benefits or for deferred compensation, profit-sharing, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits which (i) is not an Employee Plan, (ii) is entered into, maintained or contributed to, as the -45- case may be, by Seller or any of its Affiliates and (iii) covers any U.S. employee of the System. Such contracts, plans and arrangements as are described above, copies or descriptions of all of which have been made available or furnished previously to Buyer are hereinafter referred to collectively as the "BENEFIT ARRANGEMENTS." Each Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Benefit Arrangement. (d) With respect to the employees of the System, there are no employee post-retirement medical or health plans in effect, except as required by Section 4980B of the Code. (e) The Assets are not now nor will they after the passage of time be subject to any Lien imposed under Code Section 412(n) by reason of the failure of Seller or its Affiliates to make timely installments or other payments required by Code Section 412. (f) Except as set forth on Schedule 10.2(f), no Transferred Employee will ---------------- become entitled to any retirement, severance or similar benefit or enhanced benefit solely as a result of the transactions contemplated hereby. (g) Except as set forth on Schedule 10.2(g) attached hereto, each ---------------- Employee Plan complies and has been administered in all material respects in accordance with the applicable provisions of ERISA and the Code, including, without limitation, the satisfaction of all applicable reporting, disclosure, fiduciary and tax qualification requirements under ERISA and the Code. All statements and disclosures made on documents or forms filed or distributed pursuant to the applicable reporting and disclosure requirements under ERISA and the Code have been true and complete in all material respects and have been filed or distributed timely. No excise tax liability has been incurred with respect to any Employee Plan. Each Employee Plan is, and has been, operated and administered in accordance with the appropriate written plan documents. (h) All communications with respect to each Employee Plan by any person having the requisite authority to make such communications, reflect and always have reflected accurately the plan documents and operations of each such Employee Plan. To the knowledge of Seller, there have been no written statements or communications and no oral statements or communications made to any employee of the System in any form by any Person (including, without limitation, any officer, director or other employee) (having the requisite authority to do so) of the Seller or its Affiliates) which provide for or could be construed as a contract or promise by either Seller or any ERISA Affiliate to provide for any pension, welfare or other insurance type benefits to any employee of the System, whether before or after retirement, other than benefits under the Employee Plans or Benefit Arrangements. (i) Neither Seller nor any ERISA Affiliate has contributed to a non- conforming group health plan (as that term is defined in Code section 5000(c)) or incurred any tax liability under Code section 5000(a). -46- (j) Neither Seller nor any Affiliate shall make or cause to be made to any employee of the System, and there has not been made to any former employee of the System, any payment in the form of wages or other consideration pursuant to any employment agreement or Benefit Plan that was (in the case of payments made prior to Closing) or will (in the case of payments made after Closing), constitute in the aggregate an "excess parachute payment" (within the meaning of Section 280G(b) of the Code) as a consequence in whole or in part of this Agreement, or thereafter, as a consequence of any change in the ownership or effective control of the System or any change in the ownership of a substantial portion of the System's assets. (k) Seller or its ERISA Affiliates have made all payments and contributions to all Employee Plans on a timely basis as required by the terms of each such plan and any applicable law or regulation. All such payments and contributions have been deducted fully by Seller or its Affiliates for federal income tax purposes. Such deductions have not been challenged or disallowed by any Governmental Authority and Seller has no reason to believe that such deductions are not properly allowable. Seller and its ERISA Affiliates have funded or will fund each Employee Plan in accordance with the terms of each such plan and have paid all applicable premiums on any insurance contract funding any Employee Plan or Benefit Arrangement. SECTION 10.3. EMPLOYEES AND OFFERS OF EMPLOYMENT. (a) Buyer may, but ---------------------------------- shall have no obligation to, offer employment to any of the current employees of the System pursuant to this Section 10.3(a). Not less than seventy-five (75) days prior to the Closing Date, Seller shall provide to Buyer a list of all then Active Employees of the System, showing then-current positions and rates of compensation. Not less than forty-five (45) days prior to the Closing Date, Buyer will notify Seller in writing which employees will be hired by Buyer or its Affiliates ("BUYER'S LIST"). On the Closing Date, Buyer shall offer employment to all Active Employees of the System on Buyer's List; provided, that -------- Buyer may terminate at any time after the Closing Date the employment of any employee who accepts such offer; and, provided further, that in the case of an employee who is on short term disability leave, an authorized leave of absence (including a leave of absence under the Family and Medical Leave Act), military service or lay-off with recall rights as of the Closing Date, such offer of employment shall be made as of the date that such leave, military service or lay-off ends. For purposes of this Article 10, the term "ACTIVE EMPLOYEE" shall also include any Person who, on the Closing Date, is actively employed by Seller and who is on short-term disability leave, authorized leave of absence (including a leave of absence under the Family and Medical Leave Act), military service or lay-off with recall rights as of the Closing Date, but shall exclude any other inactive or former employee including any Person who has been on long- term disability leave or unauthorized leave of absence or who has terminated his or her employment, retired or died on or before the Closing Date. Any such offers shall be at such salary or wage and benefit levels and on such other terms and conditions as Buyer shall in its sole discretion deem appropriate. The employees who accept and report for work with Buyer on the day after Closing are hereinafter collectively referred to as the "TRANSFERRED EMPLOYEES". Seller will not take, and will cause each of its subsidiaries not to take, any action which would impede, hinder, interfere or otherwise compete with Buyer's effort to hire any -47- Transferred Employees. Buyer shall not assume responsibility for any Transferred Employee until such employee commences employment with Buyer. (b) With respect to each Transferred Employee: (i) Buyer shall recognize, for purposes of eligibility to participate in its "employee welfare benefit plans" (as that term is defined in ERISA section 3(1)), the service of any Transferred Employee with Seller or its ERISA Affiliates prior to the Closing Date. (ii) Buyer shall recognize, for purposes of eligibility to participate, early commencement of benefits, and vesting (but not for purposes of benefit accrual) under its "employee pension benefit plans" (as that term is defined in ERISA section 3(2)), the service of any Transferred Employee with Seller or its ERISA Affiliates prior to the Closing Date. (iii) Seller and Buyer agree that the responsibilities for payroll taxes with respect to Transferred Employees shall be assigned under the Alternative Procedure described in Section of 5 of Rev. Proc. 96-60. SECTION 10.4. SELLER'S EMPLOYEE BENEFIT PLANS. (a) Seller shall retain ------------------------------- all obligations and liabilities under the Employee Plans and Benefit Arrangements. Accrued benefits or account balances of Transferred Employees under the Seller's Employee Plans and Benefit Arrangements shall be fully vested as of the Closing Date. (b) With respect to the Transferred Employees (including any beneficiary or dependent thereof), Seller shall retain (i) all liabilities and obligations arising under any group life, accident, medical, dental or disability plan or similar arrangement (whether or not insured) to the extent that such liability or obligation relates to contributions or premiums accrued (whether or not payable), or to claims incurred (whether or not reported), on or prior to the Closing Date, (ii) all liabilities and obligations arising under any worker's compensation arrangement to the extent such liability or obligation relates to the period prior to the Closing Date, including liability for any retroactive worker's compensation premiums attributable to such period and (iii) all other liabilities and obligations arising under the Employee Plans and the Benefit Arrangements to the extent any such liability or obligation relates to the period prior to the Closing Date, including, without limitation, liabilities and obligations in respect of accruals through the Closing Date under any bonus plan or arrangement, any vacation plans, arrangements and policies. (c) With respect to any Transferred Employee (including any beneficiary or dependent thereof) who enters a hospital or is on short-term disability under any Benefit Arrangement on or prior to the Closing Date and continues in a hospital or on short-term disability after the Closing Date, Seller shall be responsible for claims and expenses incurred both before and after the Closing Date in connection with such Person, to the extent that such claims and expenses are covered by a Benefit Arrangement, until such time, (if any) that, in the case of a Transferred Employee, such Person commences full-time employment with Buyer or one of its Affiliates and, in the case of any beneficiary or dependent of a Transferred Employee, such Person's hospitalization has terminated. Notwithstanding the foregoing, with respect to any -48- medical expenses and other costs relating to pregnancies and maternity leave, Seller shall be responsible for all claims (whether or not reported) and expenses incurred during the period prior to and ending on the Closing Date. (d) Seller shall be responsible, and Buyer shall have no responsibility, for all severance obligations to all employees who do not become Transferred Employees. (e) Seller shall be responsible for satisfying obligations under Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code, to provide continuation coverage and notice of such coverage to employees of the System and their eligible dependents who suffer a "qualifying event" on or prior to the Closing Date. Such continuation coverage shall be identical to the coverage provided to Seller's employees and their eligible dependents immediately prior to the Closing Date. Seller will provide such coverage through: (i) the maintenance of their existing group health insurance contracts; (ii) the conversion of group coverage to individual policies; (iii) other available commercial insurance arrangements; (iv) an arrangement funded by the general assets of Seller; or (v) any combination of the above; provided, however, that the cost charged to such employee and their eligible dependents for that coverage shall not exeed the "applicable premium" (as that term is defined in Section 604 of ERISA) that would have been charged for COBRA continuation coverage by Seller immediately prior to the Closing Date. To the extent that the cost of providing such coverage exceeds that applicable premium, Seller shall bear any additional cost. Seller's obligations pursuant to this paragraph shall continue for the full continuation period set forth in Section 602(2)(A) of ERISA, without regard to the application of Section 602(2)(B) of ERISA. (f) Seller shall be responsible for satisfying obligations under Part 7 of Subtitle B of Title I of ERISA and Section 9801 and 4980D of the Code, to provide certifications of coverage to employees of the System and their eligible dependents who become entitled to such certifications as a result of a termination of coverage or employment occurring on or prior to the Closing Date. SECTION 10.5. NO THIRD PARTY BENEFICIARIES. No provision of this ---------------------------- Article shall create any third party beneficiary or other rights in any employee or former employee (including any beneficiary or dependent thereof) of Seller or of any of its subsidiaries in respect of continued employment (or resumed employment) with either Buyer or any of its Affiliates and no provision of this Article 10 shall create any such rights in any such Persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Plan or Benefit Arrangement or any plan or arrangement which may be established by Buyer or any of its Affiliates. No provision of this Agreement shall constitute a limitation on rights to amend, modify or terminate after the Closing Date any such plans or arrangements of Buyer or any of its Affiliates. -49- ARTICLE 11 CONDITIONS TO CLOSING SECTION 11.1. CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The ------------------------------------------- obligations of Buyer and Seller to consummate the Closing are subject to the satisfaction or waiver of the following conditions: (a) Any applicable waiting period under the HSR Act relating to the transactions contemplated hereby shall have expired or been terminated. (b) No provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the Closing. (c) Buyer and Seller shall have received all Required Consents in connection with the Material Contracts (other than for pole agreements) and all Franchise Approvals, and no such Franchise Approval or Required Consent shall have been revoked. (d) The partners of Seller shall have voted to approve the transactions contemplated by this Agreement in accordance with their respective partnership agreements. SECTION 11.2. CONDITIONS TO OBLIGATION OF BUYER. The obligation of --------------------------------- Buyer to consummate the Closing is subject to the satisfaction or waiver of the following further conditions: (a)(i) Seller shall have performed in all material respects all of its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto, shall have been true as of the date hereof and shall be true at and as of the Closing Date in all material respects, as if made at and as of such date, except for changes permitted or contemplated by this Agreement and insofar as any representation or warranty is made specifically as of the date of this Agreement or other specified earlier date, and (iii) Buyer shall have received a certificate signed by an appropriate executive officer of Seller to the foregoing effect. (b) Buyer shall have received an opinion of Elizabeth Steele, Vice President and General Counsel of Jones Intercable and counsel to Seller, dated the Closing Date, in form and substance reasonably satisfactory to Buyer. (c) Buyer shall have received an opinion of Cole, Raywid & Braverman, Seller's FCC counsel, dated the Closing Date, in form and substance reasonably satisfactory to Buyer. -50- (d) The System shall have as of the Closing Date, at least (i) 19,000 Basic Subscribers, (ii) 24,523 Homes Passed, and (iii) Total Revenue From All Subscribers of at least $1,724,819. If Buyer shall waive the condition set forth in this paragraph (d), Buyer shall nevertheless be entitled to the benefit of the adjustments to the Purchase Price described in Article 2, including without limitation to the full extent set forth in Section 2.5(b). (e) There shall have been no material adverse change in the business, assets, condition (financial or otherwise) or results of operations of the business of the System, including without limitation, as to the System's rate regulation position (provided that, certification of a local Franchising Authority shall not, by itself, constitute a material adverse change in the business, assets, condition (financial or otherwise) or results of operation of the business of the System), other than (i) a change arising out of general economic conditions in the United States, (ii) any change affecting the United States cable industry as a whole, including any change arising from legislation, litigation, rulemaking or regulation, any of which affects the United States cable industry as a whole or (iii) competition caused by or arising from any Multi-Channel Video Service providers who are currently competing with, have the legal authorization, pursuant to a franchise or license, to compete with, or have announced their intention to compete with the Seller, and which are set forth on Schedule 3.27. ------------- (f) Buyer shall have entered into, or received a valid assignment of, a retransmission consent agreement with each broadcaster whose signal is carried on the System at the Closing who did not make a so-called "must carry" election under the Cable Act on terms and conditions reasonably acceptable to Buyer, including without limitation, with respect to channel KTXL. (g) Buyer shall have conducted an Environmental Assessment of the Owned Real Property and the Leased Real Property, which audit will identify and delineate, to the fullest extent possible, all Environmental Liabilities in connection with such Owned Real Property and the Leased Real Property and which Assessment shall be satisfactory to the Buyer in its reasonable discretion. For purposes of this provision, an "ENVIRONMENTAL ASSESSMENT" means: (i) a Phase I report in accordance with a scope of work provided by Buyer, and (ii) if warranted by the facts discovered in the Phase I report, in Buyer's sole discretion, a Phase II report in order to identify the existence and extent of Hazardous Substances at the Owned Real Property and the Leased Real Property or in buildings or other structures on such Owned Real Property and the Leased Real Property. Such a Phase II report shall include, but shall not be limited to, the physical sampling and analytical analysis necessary to determine the existence and extent of particular types of contamination. (h) No provision of any applicable law or regulation and no judgment, injunction, order or decree shall restrain, prohibit or otherwise interfere with the effective operation or enjoyment by Buyer of all or any material portion of the Assets. (i) No proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any Person before any arbitrator or Governmental Authority and be pending. -51- (j) Seller shall have obtained a franchise renewal agreement with each of the City and the County, on terms and conditions reasonably satisfactory to Buyer. (k) Buyer shall have received evidence satisfactory to it that the Bank Loan Documents have been terminated, and that any security interest granted and any Financing Statements (or any amendments, modifications or continuations thereof) issued in favor of either Colorado National Bank or PNC Bank (successor by merger to Provident National Bank) in connection with the Bank Loan Documents have been terminated. (l) Buyer shall have entered into license agreements for pole attachments with each of the parties (other than Seller) to the license agreements for pole attachments listed on Schedule 3.12 or provided for or made alternative ------------- arrangements reasonably acceptable to Buyer for use of such pole attachments without violation of any Legal Requirement. (m) The Jones Intercable Assets shall have been transferred to Seller as provided in Section 7.21 hereof. (n) Seller shall provide Buyer with written evidence, reasonably satisfactory to Buyer, that the Maidu Center Payment has been made. SECTION 11.3. CONDITIONS TO OBLIGATION OF SELLER. The obligation of ---------------------------------- Seller to consummate the Closing is subject to the satisfaction or waiver of the following further conditions: (a) (i) Buyer shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date, (ii) the representations and warranties of Buyer contained in this Agreement and in any certificate or other writing delivered by Buyer pursuant hereto, shall have been true as of the date hereof and shall be true at and as of the Closing Date in all material respects, as if made at and as of such date and (iii) Seller shall have received a certificate signed by an appropriate executive officer of Buyer to the foregoing effect. (b) The Subscriber/Revenue Adjustment shall not exceed the amount of $2,000,000; provided however, that in the event the Subscriber/Revenue Adjustment exceeds the amount of $2,000,000 and Buyer agrees to limit the amount of the actual Subscriber/Revenue Adjustment to $2,000,000, then the condition set forth in this Section 11.3(b) shall be deemed waived by Seller. (c) Seller shall have received an opinion of the Deputy General Counsel of Buyer, dated the Closing Date, in form and substance reasonably satisfactory to Seller. (d) No proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any Person before any arbitrator or Governmental Authority and be pending. -52- ARTICLE 12 SURVIVAL; INDEMNIFICATION SECTION 12.1. SURVIVAL. The representations and warranties of the -------- parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing until the eighteen month anniversary of the Closing Date, except that the representations and warranties set forth in Sections 3.1, 3.2 and 3.9 shall survive indefinitely and the representations and warranties set forth in Section 3.19 and Articles 9 and 10 shall survive until the later of the third anniversary of the Closing Date or 60 days following the expiration of the applicable statutory period of limitations (giving effect to any waiver, mitigation or extension thereof). Notwithstanding the preceding sentence, any representation or warranty in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentence, if notice of the inaccuracy or breach thereof giving rise to such right to indemnity shall have been given to the party against whom such indemnity may be sought prior to such time. Section 12.2. INDEMNIFICATION. (a) Seller hereby indemnifies Buyer and --------------- its Affiliates against and agrees to hold each of them harmless from any and all damage, loss, liability and expense (including, without limitation, reasonable expenses of investigation and reasonable attorneys' fees and expenses in connection with any action, suit or proceeding) (collectively, "LOSS") incurred or suffered by Buyer or any of its Affiliates arising out of: (i) any misrepresentation or breach of warranty, covenant or agreement made or to be performed by Seller pursuant to this Agreement; (ii) any Excluded Liability or Excluded Asset, including without limitation, the failure of Seller to perform any Excluded Liability or any obligation or liability of Seller relating to the Excluded Assets; or (iii) the failure of Seller to comply with any applicable bulk sales laws. (b) Buyer hereby indemnifies Seller and its Affiliates against and agrees to hold each of them harmless from any and all Loss incurred or suffered by Seller or any of its Affiliates arising out of: (i) any misrepresentation or breach of warranty, covenant or agreement made or to be performed by the Buyer pursuant to this Agreement; or (ii) the failure of Buyer to perform any Assumed Liability. SECTION 12.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any -------------------------------------- proceeding or claim (including any governmental investigation) shall be instituted or asserted involving any Person in respect of which indemnity may be sought pursuant to Section 12.2, such Person (the "INDEMNIFIED PARTY") shall promptly notify the Person -53- against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the Indemnifying Party, upon the request of the Indemnified Party, shall retain counsel reasonably satisfactory to such Indemnified Party to represent such Indemnified Party and any others the Indemnifying Party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Indemnified Parties, such firm shall be designated in writing by the Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent, or if there be a final judgment for the plaintiff, the Indemnifying Party shall indemnify and hold harmless such Indemnified Parties from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. SECTION 12.4. ESTABLISHMENT OF LOSSES. ----------------------- (a) The Indemnifying Party and the Indemnified Party may agree in writing, at any time, as to the existence and amount of a Loss, and upon execution of such agreement, such Loss shall be deemed established. (b) A Loss shall be deemed established pursuant to Section 12.3 upon the earlier of (i) the resolution of said claim by the Indemnifying Party with the claimant, or (ii) the termination of the defense by the Indemnifying Party against such claimant or the failure of the Indemnifying Party to prosecute such defense in good faith in a diligent manner. The Indemnified Party shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. (c) In the event an Indemnified Party asserts the existence of any Loss, the Indemnified Party shall provide prompt written notice to the Indemnifying Party of the nature and amount of such Loss. If the Indemnifying Party, within a period of ten (10) days after the giving of notice of such Loss, does not give notice to the Indemnified Party that it contests such Loss, such assertion by the Indemnified Party shall be deemed accepted and the amount of the Loss shall be deemed established. In the event that an Indemnifying Party contests the assertion of a Loss, then the contested assertion of such Loss shall be settled by arbitration to be held in Sacramento, California, in accordance with the rules of the American Arbitration Association then obtaining. The determination of the arbitrator(s) shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Loss, if any, shall be deemed established. -54- SECTION 12.5. PAYMENT OF LOSSES. The Indemnifying Party hereby agrees ----------------- to pay the amount of established Losses to the Indemnified Party in cash, within five (5) days after establishment thereof. Any amounts required to be paid but not paid by the Indemnifying Party when due under this subsection shall bear interest from the due date thereof until the date paid at a rate equal to the lesser of (i) two percent (2%) over Prime Rate, or (ii) the highest legal rate permitted by applicable law. SECTION 12.6. LIMITATION ON INDEMNITY CLAIMS. Claims for ------------------------------ indemnification from Losses arising solely by reason of any misrepresentation or breach or nonfulfillment of any representation, warranty or covenant shall not be payable hereunder unless such claims exceed, on a cumulative basis, the sum of $25,000 (the "BASKET AMOUNT") and in the event they exceed the Basket Amount, shall be payable from the first dollar thereof. The relief to Seller from claims as set forth in this Section shall not apply to Losses described in Section 12.2(a)(ii) or (iii) or claims arising out of any violation of Section 7.4 of this Agreement. ARTICLE 13 TERMINATION SECTION 13.1. TERMINATION. This Agreement may be terminated at any time ----------- prior to the Closing: (a) by mutual written agreement of Seller and Buyer; (b) by either Seller or Buyer if the Closing shall not have been consummated on or before December 31, 1998; (c) by the Seller (upon payment of any amount due pursuant to Section 13.3) or by Buyer if, pursuant to the partners' vote referred to in Section 7.13, the transactions contemplated hereby that require such approval shall fail to be approved and adopted by the affirmative vote specified herein; (d) by either Buyer or Seller if it has received any communication from either the Department of Justice or Federal Trade Commission (such communication to be confirmed to the Seller) indicating that either the Department of Justice or Federal Trade Commission has authorized the institution of litigation challenging the transactions contemplated by this Agreement under the U.S. antitrust laws, which litigation will include a motion seeking an order or injunction prohibiting the consummation of any of the transactions contemplated by this Agreement. (e) by either Buyer or Seller in the event the Department of Justice or Federal Trade Commission makes a second request for information in connection with the HSR Filing; (f) by either Seller or Buyer if there shall be any law or regulation that makes the consummation of the transactions contemplated hereby illegal or otherwise -55- prohibited or if consummation of the transactions contemplated hereby would violate any nonappealable final order, decree or judgment of any Governmental Authority; or The party desiring to terminate this Agreement pursuant to clauses (b), (c), (d), (e) or (f) shall give notice of such termination to the other parties. SECTION 13.2. EFFECT OF TERMINATION. If this Agreement is terminated as --------------------- permitted by Section 13.1, such termination, subject to Section 13.3, shall be without liability of either party (or any partner, officer, employee, agent, consultant or representative of such party) to the other parties to this Agreement; provided that if such termination shall result from the willful -------- failure of either party to fulfill a condition to the performance of the obligations of the other party, failure to perform a covenant of this Agreement or breach by either party to this Agreement of any representation or warranty or agreement contained herein, such party shall be fully liable for any and all Losses incurred or suffered by the other party as a result of such failure or breach. The provisions of Section 14.3 shall survive any termination hereof pursuant to Section 13.1. Section 13.3. BREAK-UP FEE. In order to induce Buyer to enter into the ------------ Agreement, Seller will agree that if (i) JCC fails to vote in favor of or fails to recommend to each of the partners of Seller that they vote in favor of consummating the transactions contemplated in this Agreement and the partners of Seller fail to approve the transactions contemplated in this Agreement or (ii) the partners of Seller fail to approve the transactions contemplated by this Agreement as a result of a Superior Proposal, which Superior Proposal is received on or after the date of the Agreement and prior to the vote of the partners of Seller, to purchase the Assets and/or the System or any transaction having a similar effect, Seller shall pay Buyer a break-up fee (the "BREAK-UP FEE") in an amount equal to the greater of (A) five percent of the Purchase Price or (B) five percent of the purchase price under the Superior Proposal. The Break-Up Fee shall be paid in immediately available funds no later than five business days after the termination of this Agreement. ARTICLE 14 MISCELLANEOUS SECTION 14.1. NOTICES. All notices, requests and other communications ------- to any party hereunder shall be in writing (including facsimile transmission) and shall be given, if to Buyer, to: Comcast Corporation 1500 Market Street Philadelphia, PA 19102-2148 Attention: General Counsel Telecopy: (215) 981-7794 -56- if to Seller, JCC, Jones or Jones Intercable to: IDS/Jones Growth Partners 87-A, Ltd. c/o Jones Intercable, Inc. 9697 East Mineral Avenue Englewood, CO 80112 Attention: President Telecopy: (303) 799-1644 with a copy to: Legal Department c/o Jones Intercable, Inc. 9697 East Mineral Avenue Englewood, CO 80112 Attention: General Counsel Telephone: (303) 792-3111 Telecopy: (303) 799-1644 All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding business day in the place of receipt. SECTION 14.2. AMENDMENTS AND WAIVERS. (a) Any provision of this ---------------------- Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the waiver is to be effective. (b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. SECTION 14.3. EXPENSES. Except as otherwise provided herein (including -------- without limitation Article 13), costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense. The HSR Act filing fee will be paid one-half by Buyer and one-half by Seller. SECTION 14.4. SUCCESSORS AND ASSIGNS. The provisions of this Agreement ---------------------- shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party may assign, delegate -------- or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other party hereto except that Buyer may, without the consent of Seller, transfer or assign, in whole or from time to time in part, the right to purchase all or a portion of the Assets, but no such transfer or assignment will relieve Buyer of its obligations hereunder. -57- SECTION 14.5. GOVERNING LAW. This Agreement shall be governed by and ------------- construed in accordance with the law of the State of Colorado (and United States law, to the extent applicable), without regard to the conflicts of law rules of such state. SECTION 14.6. SPECIFIC PERFORMANCE; REMEDIES CUMULATIVE. (a) Seller ----------------------------------------- recognizes that the Assets and the System cannot be readily obtained in the open market and that Buyer will be irreparably injured if this Agreement is not specifically enforced. Therefore, Buyer shall be entitled in such event, in addition to bringing suit at law or equity for money or other damages, to obtain specific performance of the terms of this Agreement. In any action to enforce the provisions of this Agreement, Seller shall waive the defense that there is an adequate remedy at law or equity and agree that Buyer shall have the right to obtain specific performance of the terms of this Agreement. (b) The remedies provided in this Agreement shall be cumulative and shall not preclude the assertion by any party hereto of any other rights or the seeking of any other remedies against the other party hereto. SECTION 14.7. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed --------------------------- in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party hereto. SECTION 14.8. ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES. This ------------------------------------------- Agreement and the Exhibits attached hereto constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter of this Agreement. No representation, inducement, promise, understanding, condition or warranty not set forth herein has been made or relied upon by either party hereto. Neither this Agreement nor any provision hereof is intended to confer upon any Person other than the parties hereto any rights or remedies hereunder. SECTION 14.9. CAPTIONS. The captions herein are included for -------- convenience of reference only and shall be ignored in the construction or interpretation hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. -58- COMCAST CORPORATION By:____________________________ Title: Vice President ---------------------------------------- IDS/JONES GROWTH PARTNERS 87-A, LTD. By: Jones Cable Corporation, managing general partner By:____________________________ Title:__________________________ JONES INTERNATIONAL, LTD. By:____________________________ Title:_________________________________________ JONES INTERCABLE, INC. By:____________________________ Title:___________________________ -59- EXHIBIT A GUARANTY -------- THIS GUARANTY, made as of this ____ day of _________, 1998 by Jones Intercable, Inc., a Colorado corporation (the "Guarantor"), with an address of 9697 East Mineral Avenue, Englewood, Colorado 80112. WITNESSETH: Jones Cable Corporation ("JCC") is the general partner of IDS/Jones Growth Partners 87-A, Ltd., a Colorado limited partnership (the "Seller") and a wholly owned subsidiary of the Guarantor. Each of the Seller, Jones International, Ltd. ("Jones") and JCC now have and are expected to have various liabilities and obligations to Comcast Corporation or its assignee (the "Company") under an Asset Purchase Agreement dated as of the date hereof among the Company, the Guarantor, the Seller, JCC and Jones (the "Agreement"). Terms not otherwise defined herein shall have the meaning set forth in the Agreement. All liabilities and obligations of the Seller, JCC and Jones to the Company under the Agreement, both now existing and hereafter arising, are hereinafter referred to collectively as the "Obligations." Guarantor will benefit from the transactions pursuant to which the Obligations are incurred, and the Company would be unwilling to enter into the Agreement without having received this Guaranty. NOW, THEREFORE, in consideration of the foregoing and intending to be legally bound, Guarantor hereby agrees as follows: 1. Guarantor hereby unconditionally and irrevocably guarantees to the Company the punctual payment and performance of all of the Obligations. Any sum due by Guarantor under any provisions of this Guaranty shall thereafter bear interest until paid at the rate which is two percent (2%) per annum in excess of the Prime Rate or, if less, the highest rate permitted by applicable law. 2. Guarantor hereby, to the fullest extent permitted by law: waives notice of acceptance of this Guaranty, waives presentment, demand, notice or protest of any kind, waives giving of any notice of default or other notice to, or making any demand on, anyone (including, without limitation, Company and Guarantor) liable in any manner for the payment of any Obligations. 3. The obligations and agreements of Guarantor under this Guaranty are primary, absolute, independent, irrevocable and unconditional. This is an agreement of suretyship as well as of guaranty, and without being required to proceed first against Seller, JCC or Jones or any other person or entity, the Company may proceed directly against Guarantor (without the necessity of joining Seller, JCC or Jones in any action brought against Guarantor) whenever Seller, JCC or Jones fails to make any payment when due relating to the Obligations or fails to perform any Obligation now or hereafter owed to the Company. This Guaranty shall remain in full force and effect until all Obligations have been indefeasibly paid in full to the Company and performed and until all such sums or other things of value received by the Company are not subject to rescission or repayment upon the bankruptcy, insolvency or reorganization of Seller, A-1 JCC or Jones, as applicable, and if any such sums are rescinded or repaid, then, to such extent, Seller, JCC or Jones, as applicable, shall not, for the purposes of this Guaranty, be deemed to have paid such amounts or things of value, and Guarantor shall remain liable for the payment thereof. 4. The obligations of Guarantor under this Guaranty shall remain in full force and effect, and shall not be negated or impaired, irrespective of (a) the impossibility or the illegality of performance on the part of Seller, JCC or Jones of the Obligations, (b) any defense that may arise by reason of the incapacity or lack of authority of Guarantor or the failure of the Company to file or enforce a claim against the estate of Seller, JCC or Jones, as applicable, in any bankruptcy or other proceeding, (c) the involvement of Seller, JCC or Jones in any bankruptcy, reorganization, insolvency or any other proceedings, or (d) any other circumstances, occurrence or condition, whether similar or dissimilar to any of the foregoing, which might otherwise constitute a legal or equitable defense, discharge or release of a guarantor or surety. 5. Guarantor represents and warrants that (a) Guarantor has the full power, authority and legal right to enter into, execute and deliver this Guaranty; and (b) this Guaranty is a valid and binding obligation of Guarantor, and is fully enforceable against Guarantor in accordance with its terms. Guarantor represents and warrants that the documents and reports which Guarantor has filed pursuant to the requirements of the Securities Exchange Act of 1934, as amended (the "Act"), and the rules and regulations promulgated thereunder conform in all material respects to the requirements of the Act and such rules and regulations and do not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. 6. Any notice, demand, request or other communication which the Company may desire to give to Guarantor with respect to this Guaranty shall be deemed sufficient if in writing and mailed by certified or registered mail, postage prepaid, addressed to Guarantor at the address of Guarantor set forth in the heading of this Guaranty or such other address of which the Company has received any notice pursuant to the provisions of this paragraph. No change of address by Guarantor shall be effective as against the Company unless Guarantor shall have advised the Company of the change of address by a written notice thereof mailed to the Company by registered or certified mail, return receipt requested, postage prepaid, and the Company shall have actually received such notice. 7. All rights and remedies of the Company under this Guaranty or law are separate and cumulative, and the exercise of one shall not limit or prejudice the exercise of any other such rights or remedies. The enumeration in this Guaranty of any waivers or consents by Guarantor shall not be deemed exclusive of any additional waivers or consents by Guarantor which may be deemed to exist in law or equity. No delay or omission by the Company in exercising any such right or remedy shall operate as a waiver thereof. No waiver of any rights and remedies hereunder, and no modification or amendment of this Guaranty shall be deemed made by the Company unless in writing and duly signed by the Company. Any such written waiver shall apply only to the particular instance specified therein and shall not impair the further exercise of such right or remedy or of any other right or remedy of the Company, and no single or partial exercise of any right or remedy under this Guaranty shall preclude any other or A-2 further exercise thereof or any other right or remedy. 8. Guarantor will reimburse the Company, upon demand, for all reasonable expenses incurred in connection with the collection and/or enforcement of this Guaranty (including, without limitation, attorneys' fees) whether or not suit is actually instituted. 9. This Guaranty shall be a continuing Guaranty and shall be binding upon Guarantor, and Guarantor's successors and assigns, and shall inure to the benefit of the Company and its successors and assigns. Notwithstanding the foregoing, Guarantor may not assign any of its obligations under this Guaranty. 10. If any provision of this Guaranty is held to be invalid or unenforceable by a court of competent jurisdiction, the other provisions of this Guaranty shall remain in full force and effect and shall be liberally construed in favor of the Company in order to effect the provisions of this Guaranty. 11. This Guaranty is being delivered in, and shall be governed by and construed according to the laws of, the State of Colorado applicable to contracts wholly performed within such jurisdiction. 12. Guarantor shall, from time to time upon request by the Company, execute, acknowledge and deliver to the Company, promptly after such request and at no expense to the Company, such other documents and instruments as the Company shall request in order to effectuate the provisions of this Guaranty. IN WITNESS WHEREOF, Guarantor has executed this Guaranty the day and year first above written. JONES INTERCABLE, INC. By:_________________________ Name: Title: A-3 EXHIBIT B FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT KNOW ALL MEN BY THESE PRESENTS, that IDS/JONES GROWTH PARTNERS 87-A, LTD., a Colorado limited partnership ("Assignor"), pursuant to that certain Asset Purchase Agreement dated as of ___________ among COMCAST CORPORATION, a Pennsylvania corporation ("Buyer"), Assignor, JONES INTERNATIONAL, LTD., a Colorado corporation, JONES CABLE CORPORATION, a Colorado corporation, and JONES INTERCABLE, INC., a Colorado corporation (the "Asset Purchase Agreement"), for the consideration set forth in the Asset Purchase Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, has this day assigned and transferred and does hereby assign and transfer to Sacramento Cable Television d/b/a Comcast Cablevision of Sacramento, a California general partnership ("Assignee") an assignee of Buyer, effective 11:59 p.m. (local California time) on the date hereof, all of Assignor's right, title and interest in, to and under the Authorizations and Contracts (as defined in the Asset Purchase Agreement). Assignee hereby accepts said assignment and hereby assumes and agrees to perform, comply with and be bound by all terms, covenants and conditions of the Authorizations and Contracts with respect to the period of time from and after 11:59 p.m. (local California time) on the date hereof, except for any such terms, covenants or conditions which are Excluded Liabilities (as defined in the Asset Purchase Agreement), in the same manner and with the same force and effect as if Assignee had originally executed such documents. Notwithstanding any other provisions of this Agreement to the contrary, nothing contained herein shall in any way supersede, modify, replace, amend, change, rescind, waive, exceed, expand, enlarge or in any way affect the provisions, including the warranties, covenants, agreements, conditions, representations or, in general any of the rights and remedies, and any of the obligations and indemnifications of Seller or Buyer set forth in the Asset Purchase Agreement. This Agreement is intended only to effect the assignment of certain contracts and commitments and the assumption of certain liabilities pursuant to the Asset Purchase Agreement and shall be governed entirely in accordance with the terms and conditions of the Asset Purchase Agreement. This Assignment and Assumption Agreement shall be constued in accordance with and governed under the laws of the State of Colorado. B-1 This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party hereto. IN WITNESS WHEREOF, Assignor and Assignee, intending to be legally bound hereby, have caused this instrument to be executed and delivered this _____ day of _____________, 1998. IDS/JONES GROWTH PARTNERS 87-A, LTD. By: JONES CABLE CORPORATION, managing general partner By:____________________________ Title:_________________________ SACRAMENTO CABLE TELEVISION By: Comcast Cablevision of Sacramento, Inc., a general partner By:_____________________________ Title:__________________________ B-2 EXHIBIT "C" FORM OF BILL OF SALE -------------------- Pursuant to a certain Asset Purchase Agreement (the "ASSET PURCHASE AGREEMENT"), dated _______, 1998, by and among IDS/Jones Growth Partners 87-A, Ltd., a Colorado limited partnership ("SELLER"), Comcast Corporation, a Pennsylvania corporation and certain other related parties, this Bill of Sale is made this ___ day of ________, 1998 by Seller. Capitalized words used but not defined herein shall have the respective meanings ascribed to them in the Asset Purchase Agreement. WITNESSETH: WHEREAS, pursuant to the Asset Purchase Agreement, Seller has agreed to convey, assign, transfer and deliver to Comcast Cablevision of Sacramento, a California general partnership ("Transferee"), an assignee of Buyer, and Transferee has agreed to purchase and accept as of the date hereof, certain assets relating to the System. NOW, THEREFORE, Seller, for good and valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound, does hereby irrevocably sell, assign, convey, transfer, deliver and set over to Transferee, all of Seller's right, title and interest in, to and under the Assets, but excluding any Excluded Assets, including, but not limited to, the following: (a) All Authorizations; (b) All interests in real property, including without limitation, all appurtenances, towers and fixtures located thereon, rights-of-way, easements and other real property interests owned or leased by Seller; (c) All tangible personal property, including, without limitation, all electronic devices, towers, satellite dishes, antenna, downleads, trunk and distribution pedestals, grounding and pole hardware, cable system plant, machinery, installed subscribers' devices (including, without limitation, drop lines, converters, and encoders, transformers and fittings), headends, origination, transmission and distribution systems and equipment, maps, internal wiring, hardware, tools, inventory, spare parts, motor vehicles, supplies, test and closed circuit devices, earth stations and microwave equipment and systems and furniture, furnishings and office equipment used in the System; (d) All claims and rights of every kind arising out of or related to all contracts, leases of real and personal property (both as lessor and lessee), agreements, non-governmental licenses, orders for service to be provided by the System and understandings in connection with the System and to which Seller or any Affiliate of C-1 Seller is a party, including without limitation, all pole attachment and conduit agreements, wire crossing agreements, subscriber agreements, retransmission consent agreements and other agreements, written or oral, to which Seller or any Affiliate of Seller is a party and which relate to the System, except for those agreements that are Excluded Assets; (e) All business records of Seller regardless of the medium of storage relating to the System, including without limitation, all schematics, blueprints, working drawings, engineering data, engineering drawings, reports, design information, specifications, maintenance manuals, test procedures, current customer and subscriber lists, maps, reports, plans, projections, statistics, promotional graphics, original art work, mats, plates, negatives, advertising, marketing or related materials, files, manuals and records, lists of all pending subscriber hook-ups, disconnect and repair orders and supply orders, and all other technical, accounting and financial information concerning the System; (f) All deposits with respect to the Authorizations or with respect to any bonding or surety arrangements; (g) All rights, claims and causes or action against third parties, including without limitation, any rights, claims and causes of action arising under warranties from vendors and other third parties; (h) All accounts receivable, notes receivable and prepaid expenses, as well as insurance and indemnity claims with respect to the Assets; (i) All goodwill associated with the System and the Assets; and (j) All other assets of whatever nature and wherever located, and owned, used or held for use by the Seller or any Affiliate of Seller in connection with the System. TO HAVE AND TO HOLD the same unto Transferee, its successors and assigns forever; provided, however, that no Assets (1) which are incapable of -------- ------- assignment or transfer, (2) which would become forfeitable by reason of a transfer or assignment, or (3) which may not be transferred without the consent, approval or waiver of a third party (including, without limitation, any Governmental Entity) if such transfer or attempted transfer would constitute a breach thereof or a violation of any law (any such asset being herein called a "Nonassignable Asset"), shall pass by virtue of this instrument, but Seller, either by itself or through an agent (which agent shall be Transferee, to the extent it may lawfully so act), shall take, in Seller's own rights, title and interest in, to and under any such Nonassignable Assets and Seller will cooperate in any reasonable arrangement requested by Transferee to provide Transferee with the benefits under such Nonassignable Assets as if such Nonassignable Assets had been assigned to Transferee, including enforcement for the benefit of Transferee, at Transferee's expense, of any and all rights of Seller against any other party thereto; provided, however, that Seller will not -------- ------- be obligated to pay any consideration therefor or to incur any additional liability or obligation in connection therewith or to remain secondarily liable thereon. C-2 Seller hereby irrevocably constitutes and appoints Transferee, to the extent that it may lawfully do so, with full power of substitution for Seller, and in its name, place and stead, but on behalf and for the benefit of Transferee, to demand and enforce payment and performance of any and all obligations, claims and demands of every conceivable kind included among the Assets; to demand, receive and enjoy the Assets; to give receipts and releases in respect to the same; to institute, prosecute, defend and compromise any and all proceedings at law, in equity, or otherwise, which Transferee may deem desirable in order to collect, assert, enforce, defend or enjoy the benefit of any claim, demand, right, title or interest of every conceivable kind with respect to the Assets; and to do any and all such acts and things in connection therewith as Transferee shall deem desirable. Seller hereby declares that the appointment of Transferee so made, and any and all powers so granted to it, are coupled with an interest, shall be irrevocable by Seller, and shall survive its dissolution or liquidation. Notwithstanding any other provisions of this Bill of Sale to the contrary, nothing contained herein shall in any way supersede, modify, replace, amend, change, rescind, waive, exceed, expand, enlarge or in any way affect the provisions, including the warranties, covenants, agreements, conditions, representations or, in general any of the rights and remedies, and any of the obligations and indemnification's of Seller or Buyer set forth in the Asset Purchase Agreement, nor shall this Bill of Sale expand or enlarge any remedies under the Asset Purchase Agreement including, without limitation, any limits on indemnification specified therein. This Bill of Sale is intended only to effect the purchase of the Assets pursuant to the Asset Purchase Agreement and shall be governed entirely in accordance with the terms and conditions of the Asset Purchase Agreement. The agreements, obligations, assumptions and covenants of Buyer and Seller under the Asset Purchase Agreement are not merged into this Bill of Sale and shall, to the extent provided in the Asset Purchase Agreement, survive the execution and delivery of this Bill of Sale, and the performance of the consummation of all transactions provided for in the Asset Purchase Agreement. This Bill of Sale shall be binding upon and enforceable against Seller, its successors and permitted assigns. This Bill of Sale shall be construed in accordance with and governed under the laws of the State of Colorado. IN WITNESS WHEREOF, Seller has duly executed this Bill of Sale, all as of the date first above written. IDS/JONES GROWTH PARTNERS 87-A, LTD. By: JONES CABLE CORPORATION, managing general partner By:_______________________ Name: Title: C-3 EX-99.2 3 BENEFICIAL OWNER LETTER EXHIBIT 99.2 August 31, 1998 RE: PROXY MAILING - PROPOSED SALE OF THE ROSEVILLE CALIFORNIA CABLE TELEVISION SYSTEM BY IDS/JONES GROWTH PARTNERS 87-A, LTD. Dear Beneficial Owner of IDS/Jones Growth Partners 87-A, Ltd: Our records indicate that you are a beneficial owner of limited partnership interests in IDS/Jones Growth Partners 87-A, Ltd. (the "Partnership"). Enclosed for your information and review are proxy solicitation materials. Your qualified plan trustee/custodian, which is the registered owner of your limited partnership interests, has authorized Jones Cable Corporation, the Managing General Partner, to mail these proxy materials directly to you and has authorized its clients, the beneficial owners, to execute the proxy cards on its behalf. By this authorization, your signature will be legally sufficient and your vote of the limited partnership interests registered in the name of the trustee/custodian will be counted without the trustee/custodian's counter-signature. PLEASE VOTE, DATE AND SIGN AS BENEFICIAL OWNER (INVESTOR), AND RETURN YOUR PROXY CARD TO US IN THE ENCLOSED ENVELOPE AS SOON AS POSSIBLE, BUT NO LATER THAN SEPTEMBER 30, 1998. - - ------------------- If the proposed sale is consummated, the Partnership will mail your share of the net sale proceeds to your Trustee for your benefit, and the Partnership will notify you that the distribution has occurred. After the sale of the Roseville system and the distribution of the net sales proceeds, the Partnership will be liquidated and dissolved, most likely in 1998. For tax planning purposes, please refer to Federal and State Income Tax ---------------------------- Consequences discussion pages 12-13 of the proxy statement. - - ------------ If you have any questions, please call the Jones Investor Services Department. Sincerely, Jones Cable Corporation Managing General Partner Enclosures EX-99.3 4 REGISTERED REPRESENTATIVE LETTER Exhibit 99.3 August 31, 1998 RE: NOTICE OF PROXY MAILING: PROPOSED SALE OF THE ROSEVILLE CALIFORNIA CABLE TELEVISION SYSTEM BY IDS/JONES GROWTH PARTNERS 87-A, LTD. DEAR REGISTERED REPRESENTATIVE OF CLIENTS IN IDS/JONES GROWTH PARTNERS 87-A, LTD: IDS/Jones Growth Partners 87-A, Ltd. ("Fund 87-A") plans to sell its Roseville California system to an unaffiliated third party during the fourth quarter of 1998. The proposed sale and the distribution of net sales proceeds are contingent upon the approval by the holders of a majority of Fund 87-A's limited partnership interests, as well as the consents of governmental authorities and other third parties. Enclosed for your information is a copy of the Fund 87-A Notice and Proxy Statement. The proxy record date is August 20, 1998. ----------------------------------------- For taxable accounts, proxy materials are being sent directly to investors. - - --------------------- For tax-exempt accounts (IRAs and other qualified plans), proxy materials are - - ----------------------- being sent according to the instructions of the Trustees-which are the registered owners of investors' interest in these plans. Some Trustees required us to send proxy materials directly to their clients, the beneficial owners, and to accept the investors' signatures as legally sufficient to count the votes without the Trustee's counter-signature. Other Trustees required us to mail their clients' proxy materials directly to the Trustees for their handling. THE PROXY DUE DATE IS SEPTEMBER 30, 1998, BUT WE HOPE TO HAVE ALL VOTES IN AS -------------------- SOON AS POSSIBLE. If the proposed sale is consummated, limited partners in Fund 87-A are expected to receive approximately $668 for each $1,000 invested. Distributions will be net of California non-resident withholding tax, if applicable, on taxable accounts. This withholding requirement does not apply to California residents or to tax-exempt entities such as IRAs and other qualified plans. Distribution checks will be issued according to the account registration or special payment of record. After the sale of the Roseville system and the distribution of the net sales proceeds, the Partnership will be liquidated and dissolved, most likely in 1998.
Proposed Sale Prior Sale Anticipated Roseville system Carmel Indiana system Total Return ---------------- --------------------- ------------ $668 per $1000* $731 per $1000 $1,400 per $1000
* Net of California non-resident withholding tax, if applicable. Please review the enclosed list that shows registration and check information and estimated distributions prior to withholding, if applicable, for each of your clients Fund 87-A. If you find any discrepancies in this information or have questions, please contact the Jones Investor Services Department as soon as possible. Sincerely, Jones Cable Corporation Managing General Partner Enclosures EX-99.4 5 QUALIFIED PLAN TRUSTEE/CUSTODIAN EXHIBIT 99.4 To: Qualified Plan Trustee/Custodian From: Jones Cable Corporation, the Managing General Partner Date: August 31, 1998 RE: NOTICE OF PROXY MAILING: PROPOSED SALE OF THE ROSEVILLE CALIFORNIA CABLE TELEVISION SYSTEM BY IDS/JONES GROWTH PARTNERS 87-A, LTD. IDS/Jones Growth Partners 87-A, Ltd. (the "Partnership") plans to sell its Roseville California system to an unaffiliated third party during the fourth quarter of 1998. PROXY INFORMATION - - ----------------- The proposed sale and the distribution of net sales proceeds are contingent upon the approval by the holders of a majority of Fund 87-A's limited partnership interests, as well as the consents of governmental authorities and other third parties. The proxy record date is August 20, 1998. ---------------------------------------- ENCLOSED PLEASE FIND PROXY MATERIALS FOR EACH INTEREST IN YOUR NAME AS THE ENTITY REGISTERED AS A LIMITED PARTNER ON THE BOOKS AND RECORDS OF THE PARTNERSHIP. IMPORTANT YOUR SIGNATURE AS AUTHORIZED TRUSTEE MUST BE ON EACH PROXY IN ORDER FOR THE --------------------------------------------------------------------------- VOTES TO BE COUNTED. -------------------- If you send the proxies to your clients for their vote and signature, please instruct the clients to return the proxies to you for YOUR ---- COUNTERSIGNATURE! ----------------- PLEASE THEN RETURN THE PROXIES, WITH YOUR COUNTERSIGNATURE AS AUTHORIZED TRUSTEE, TO US IN THE ENVELOPE PROVIDED, AS SOON AS POSSIBLE, BUT NO LATER -------- THAN SEPTEMBER 30, 1998. Please note that you must bear any and all costs associated with proxy mailing services. DISTRIBUTION INFORMATION - - ------------------------ If the proposed sale is consummated, the Partnership will distribute approximately $668 for each $1,000 invested. The Partnership will mail net sales proceeds to you on behalf of the Beneficial Owners, and the Partnership will notify the Beneficial Owners that the distribution has occurred. After the sale of the Roseville system and the distribution of the net sales proceeds, the Partnership will be liquidated and dissolved, most likely in 1998. Taking into account the prior and pending liquidation distributions and prior cash flow distributions, limited partners will have received a total of $1,400 per $1,000 invested in the Partnership. FEDERAL AND STATE INCOME TAX CONSEQUENCES - - ----------------------------------------- Please be aware that the sale of the Roseville system will require certain tax filings. Income from the partnership may be taxable to an IRA or pension plan as Unrelated Business Taxable Income (UBTI). WE STRONGLY URGE YOU TO REFER TO THE TAX DISCUSSION ON PAGES 12-13 OF THE PROXY STATEMENT FOR INFORMATION THAT IS PROVIDED SOLELY FOR TAX PLANNING PURPOSES. If you have any questions, please contact the Jones Investor Services Department. Enclosures EX-99.5 6 QUALIFIED PLAN TRUSTEE/CUSTODIAN EXHIBIT 99.5 To: Qualified Plan Trustee/Custodian From: Jones Cable Corporation, the Managing General Partner Date: August 31, 1998 RE: NOTICE OF PROXY MAILING: PROPOSED SALE OF THE ROSEVILLE CALIFORNIA CABLE TELEVISION SYSTEM BY IDS/JONES GROWTH PARTNERS 87-A, LTD. IDS/Jones Growth Partners 87-A, Ltd. (the "Partnership") plans to sell its Roseville California system to an unaffiliated third party during the fourth quarter of 1998. PROXY INFORMATION - - ----------------- The proposed sale and the distribution of net sales proceeds are contingent upon the approval by the holders of a majority of Fund 87-A's limited partnership interests, as well as the consents of governmental authorities and other third parties. The proxy record date is August 20, 1998. ----------------------------------------- According to our records, you have authorized the Managing General Partner to send proxy materials directly your clients, the beneficial owners of the limited partnership interests that are registered in your name and for which you act as trustee/custodian, and have authorized the beneficial owners to execute the proxy cards on your behalf without your countersignature. At your request, the proxy materials have been sent directly to such beneficial owners. THE DEADLINE FOR THE RETURN OF THE PROXY VOTE BY LIMITED PARTNERS IS SEPTEMBER 30, 1998, BUT WE HOPE TO HAVE ALL VOTES IN AS SOON AS POSSIBLE. - - ------------------ DISTRIBUTION INFORMATION - - ------------------------ If the proposed sale is consummated, the Partnership will distribute approximately $668 for each $1,000 invested. The Partnership will mail net sales proceeds to you on behalf of the Beneficial Owners, and the Partnership will notify the Beneficial Owners that the distribution has occurred. After the sale of the Roseville system and the distribution of the net sales proceeds, the Partnership will be liquidated and dissolved, most likely in 1998. Taking into account the prior and pending liquidation distributions and prior cash flow distributions, limited partners will have received a total of $1,400 per $1,000 invested in the Partnership. FEDERAL AND STATE INCOME TAX CONSEQUENCES - - ----------------------------------------- Please be aware that the sale of the Roseville system will require certain tax filings. Income from the partnership may be taxable to an IRA or pension plan as Unrelated Business Taxable Income (UBTI). WE STRONGLY URGE YOU TO REFER TO THE TAX DISCUSSION ON PAGES 12-13 OF THE PROXY STATEMENT FOR INFORMATION THAT IS PROVIDED SOLELY FOR TAX PLANNING PURPOSES. Enclosed please find a copy of the Notice and Proxy Statement and the Managing General Partner's list of the beneficial owners of limited partnership interests that are registered in your name. If you find any discrepancies in this information or have questions, please contact the Jones Investor Services Department as soon as possible. Enclosures -----END PRIVACY-ENHANCED MESSAGE-----