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Exhibit 10.39
FALCON HOLDING GROUP, L.P.
LIMITED PARTNERSHIP INTEREST PURCHASE AGREEMENT
This Limited Partnership Interest Purchase Agreement is entered into
as of July 15, 1996, by and among Falcon Holding Group, L.P., a Delaware
limited partnership (the "Company"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee of the Falcon
Cable Trust ("▇▇▇▇▇▇▇▇▇") and Advance TV of California, Inc. ("Advance").
▇▇▇▇▇▇▇▇▇ and Advance are collectively referred to as the "Purchasers".
A. The Company desires an infusion of capital and has offered to
issue and sell certain of its limited partnership interests described below.
B. The Purchasers have agreed to purchase such partnership
interests on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the above and the representations,
warranties, covenants and conditions set forth herein, the parties hereby agree
as follows:
1. Purchase and Sale of Limited Partnership Interests.
1.1 Sale of Issuance of Partnership Interests. Subject
to the terms and conditions of this Agreement, each of the Purchasers,
severally and not jointly, agrees to purchase at the Closing, and the Company
agrees to sell and issue to each of the Purchasers at the Closing, partnership
interests (the "Partnership Interests") of the Company represented by a
Percentage Interest and with an Adjusted Capital Contribution Account as set
forth opposite such Purchaser's name on Schedule I for a Purchase Price as set
forth on Schedule I.
1.2 Closing. The purchase and sale of the partnership
interests being purchased by the Purchasers shall take place at the offices of
the Company on such date no later than August 15, 1996, when all conditions of
Closing are satisfied.
2. Representations and Warranties of the Company. The Company
hereby represents and warrants to each Purchaser, at and as of the date of the
Closing, that the Company now or will have at the Closing, all requisite legal
and partnership power to enter into this Agreement and carry out and perform
its obligations under the terms of this Agreement. All partnership action on
the part of the Company that is necessary for the authorization, execution and
delivery of this Agreement by the Company and for the issuance and delivery of
the Company's partnership interest has been taken or will be taken prior to the
Closing and this Agreement when executed and delivered by the Company (and
assuming due execution and delivery by the Purchasers) shall constitute the
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms subject to (i) judicial principles respecting
election of remedies or limiting the availability of
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specific performance, injunctive relief and other equitable remedies and (ii)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect generally relating to or affecting creditors' rights.
3. Representations, Warranties and Covenants of the Purchasers.
3.1 Due Execution. Each of the Purchasers represents and
warrants and covenants, severally and not jointly, to the Company that this
Agreement when executed and delivered by each of the Purchasers will constitute
the valid and legally binding obligation of each of the Purchasers. All action
required to be taken by or on behalf of each Purchaser in order for such
Purchaser to execute and deliver and perform its obligations under this
Agreement and to purchase the Partnership Interests have been taken or will be
taken before the Closing. This Agreement when executed and delivered by each
Purchaser (and assuming due execution and delivery by the Company) shall
constitute the valid and binding obligation of each Purchaser enforceable
against each Purchaser in accordance with its terms subject to the exceptions
set forth in Clauses (i) and (ii) of Section 2.
3.2 Unregistered Securities. Each Purchaser understands
that the Partnership Interests have not been registered under the Securities
Act of 1933, as amended (the "Act") on the ground that the offer and sale of
securities provided for in this Agreement is exempt from the registration
requirements of the Act pursuant to Section 4(2) of the Act and Regulation D
promulgated thereunder, and that the Company's reliance on such exemption is
predicated in part on Purchasers' representations set forth herein.
3.3 Qualified Purchasers. Each Purchaser is an
"accredited investor" as defined in Regulation D promulgated under the Act and
by reason of the business or financial experience of its control persons has
the capacity to protect its own interest in an investment in the Partnership
Interests. Each Purchaser has had the opportunity to ask questions of the
Company and to obtain any information requested concerning the Company and the
accuracy of the information supplied, and all questions which have been asked
on behalf of any Purchaser have been answered by the Company to the
satisfaction of such Purchaser.
3.4 Investment Intent. The Partnership Interests are
being acquired by each of the Purchasers for investment, for their own account,
and not directly or indirectly for the account of any other person, and not with
a view to or for sale in connection with any distribution of the Partnership
Interests. Each of the Purchasers has no present intention of selling, granting
participation in, or otherwise distributing the Partnership Interests. Each of
the Purchasers does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer, or grant participations, to such person or to
any other third person, with respect to the Partnership Interests. Each of
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the Purchasers understands and acknowledges that this Agreement is being
executed by the Company in reliance upon the foregoing representations and
warranties.
3.5 No Public Market. Each of the Purchasers has been
advised that no public market now exists for the Partnership Interests, that a
public market may never exist and that each of the Purchasers therefore may
have to hold the Partnership Interests indefinitely.
3.6 Restrictions on Transfer. Each of the Purchasers
understands that if the Company does not register with the Securities and
Exchange Commission (the "SEC"), pursuant to Section 12 or 15 of the Securities
Exchange Act of 1934 (the "1934 Act"), or if a registration statement covering
the securities under the Act is not in effect when a Purchaser desires to sell
the Partnership Interests, such Purchaser may be required to hold the
Partnership Interests for an indeterminate period. Each of the Purchasers also
understands that any sale of the Partnership Interests which might be made by a
Purchaser in reliance upon Rule 144 under the Act may be made only in limited
amounts in accordance with the terms and conditions of that rule.
4. Conditions to Closing. The obligation of each of the
Purchasers and the Company to issue and purchase the Partnership Interests at
the Closing is subject to each of the following conditions having been
fulfilled on or prior to the applicable Closing or having been waived by the
parties:
(a) The Company shall have acquired substantially all of
the assets of Falcon Cable Systems Company, a California limited partnership
and Falcon Cable Systems Company shall have distributed the net proceeds
received from the Company to its unit holders.
(b) The Company shall have delivered to each Purchaser an
Option Agreement to purchase additional partnership interests of the Company in
the form set forth in Exhibits "A-1" and "A-2" attached hereto.
(c) The Company shall have amended Schedule V to its
Third Amended and Restated Partnership Agreement dated as of December 28, 1995
as set forth in Exhibit "B" attached hereto.
5. Miscellaneous.
5.1 Governing Law. This Agreement shall be governed in
all respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
5.2 Successors and Assigns. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
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5.3 Notices, Etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be deemed
effective upon personal delivery, confirmation of telex or telecopy, or upon
the fifth day following mailing by registered mail,postage prepaid, addressed
(a) if to Purchasers, at its address set forth on the records of the Company,
or at such other address as it shall have furnished to the Company in writing,
(b) if to the Company at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
5.4 Severability. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
practicable, be modified so as to make it valid, legal and enforceable and to
retain as nearly as practicable, the intent of the parties, and the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
5.5 Title and Subtitles. The titles and subtitles of
this Agreement are intended for reference and shall not by themselves determine
the construction or interpretation of this Agreement.
5.6 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.7 Entire Agreement. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and supersedes any and all prior agreements and
understandings, whether oral or in writing.
* * * * * * * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
FALCON HOLDING GROUP, L.P., a
Delaware limited partnership
By: FALCON HOLDING GROUP, INC.,
a California corporation
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Title EXECUTIVE VICE PRESIDENT
-------------------------
FALCON CABLE TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee
ADVANCE TV OF CALIFORNIA, INC.,
a California corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary
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Schedule I Allocation of Purchase Price
Exhibit "A-1" Option Agreement - ▇▇▇▇▇▇▇▇▇
Exhibit "A-2" Option Agreement - Advance
Exhibit "B" Amended Schedule V to Third Amended and Restated Partnership
Agreement
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Schedule I
Interests Purchased
-------------------
Purchase Price
Capital Contribution Percentage
Purchaser Account Interest
--------- ------------------- ----------
Falcon Cable
Trust $3,315,000 0.89489%
Advance 1,685,000 0.45487
---------- -------
Total $5,000,000 1.34976%
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EXHIBIT A-1
FALCON HOLDING GROUP, L.P.
PARTNERSHIP OPTION AGREEMENT
This Agreement is made and entered into as of July 15, 1996, by and
among ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Trustee of the Falcon Cable Trust ("▇▇▇▇▇▇▇▇▇") and
Falcon Holding Group, L.P., a Delaware limited partnership ("FHGLP").
WHEREAS, ▇▇▇▇▇▇▇▇▇ is currently a limited partner in FHGLP pursuant
to the Third Amended and Restated Agreement of Limited Partnership of FHGLP
dated as of December 28, 1995 (the "Partnership Agreement");
WHEREAS, ▇▇▇▇▇▇▇▇▇ desires to acquire an option to purchase additional
FHGLP partnership interests from FHGLP; and
WHEREAS, FHGLP desires to cause ▇▇▇▇▇▇▇▇▇, under certain terms and
conditions to purchase such partnership interests.
NOW, THEREFORE, the parties hereby agree as follows:
1. Defined Terms. Capitalized terms defined in the Partnership
Agreement are used herein with the meanings so defined.
2. Option. In consideration of the receipt of $5,000 and for
other good and valuable consideration, FHGLP on the date hereof, irrevocably
grants to the ▇▇▇▇▇▇▇▇▇ the option to purchase partnership interests (the
"Partnership Interests") of the Company represented by a Percentage Interest of
0.4429% which will have an Adjusted Capital Contribution Account equal to the
Purchase Price (as defined below) (the "Optioned Interests") upon the terms and
conditions set forth in this Agreement.
3. Purchase Price. The purchase price for the Optioned Interests
(the "Purchase Price") shall be the applicable Purchase Price on the date of
exercise. The initial Purchase Price for the Optioned Interests for the first
twelve months of this Agreement shall be $1,685,000. On each anniversary date
of this Agreement, the Purchase Price for the next succeeding year shall be
equal to 105% of the Purchase Price for the preceding year. The consideration
received for the option shall be applied against the Purchase Price upon
exercise of this option.
4. Adjustments and Option. In the event that the outstanding
Partnership Interests of FHGLP are changed into or exchanged for a different
number or kind of units or partnership interests or any other securities of
FHGLP by reasons of merger, consolidation, recapitalization or
reclassification, or otherwise, the Optioned Interests subject to this option
shall be appropriately and equitably adjusted in number and kind to the extent
that after such event ▇▇▇▇▇▇▇▇▇'▇ proportionate interest in
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FHGLP as represented by the Optioned Interests shall be maintained as before
the occurrence of such event.
5. Expiration of the Option. This option may be exercised at any
time until the first of the following events: (a) the expiration of ten (10)
years from the date the option is granted, or (b) the effective date of (i) a
merger or consolidation of FHGLP with another person, (ii) the acquisition by
another person of all or substantially all the assets or a majority of the then
outstanding partnership interests of FHGLP, or (iii) the dissolution and
liquidation of FHGLP (collectively, the "Dissolution Events"). At least thirty
(30) days prior to the effective date of any Dissolution Event, FHGLP shall
give ▇▇▇▇▇▇▇▇▇'▇ notice of such event if this option has then not been
exercised.
6. FHGLP's Rights to Require Exercise of the Option. In the
event this option has not been exercised on or before fifteen (15) days prior
to a Dissolution Event, then FHGLP may require ▇▇▇▇▇▇▇▇▇ to purchase the
Optioned Interests prior to the date of such Dissolution Event. FHGLP may
exercise its right to require ▇▇▇▇▇▇▇▇▇ to exercise this option by delivery to
▇▇▇▇▇▇▇▇▇ a notice in writing signed on behalf of FHGLP stating that ▇▇▇▇▇▇▇▇▇
is required pursuant to this Paragraph 6 to exercise the option and upon the
receipt of such notice by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ shall be considered to have
provided the requisite notice under Paragraph 7 and to have exercised this
option.
7. Manner of Exercise. This option may be exercised by ▇▇▇▇▇▇▇▇▇
by delivery to FHGLP by a notice in writing signed by ▇▇▇▇▇▇▇▇▇ stating that
the option is thereby exercised. In the case of any exercise other than in
connection with a Dissolution Event, the Purchase Price shall be paid either by
(i) cash or check of the Purchase Price for the Optioned Interests or (ii) the
transfer by ▇▇▇▇▇▇▇▇▇ of other Partnership Interests of FHGLP owned by
▇▇▇▇▇▇▇▇▇ at their then fair market value on the date the option is exercised
in an amount equal to the Purchase Price of the Optioned Interests. In the
case of an exercise in connection with a Dissolution Event, the obligation to
pay the Purchase Price shall be non-recourse to ▇▇▇▇▇▇▇▇▇ and the Purchase
Price shall be paid solely out of distributions otherwise payable to ▇▇▇▇▇▇▇▇▇
by FHGLP with respect to the Optioned Interests and any other Partnership
Interests in FHGLP then held by ▇▇▇▇▇▇▇▇▇. FHGLP is expressly authorized to
withhold distributions with respect to the Optioned Interests and any other
Partnership Interests of ▇▇▇▇▇▇▇▇▇ and to apply such withholdings to the
Purchase Price of the Optioned Interests.
8. Rights as a Partner. ▇▇▇▇▇▇▇▇▇ shall not be nor have any
rights and privileges of a Partner in FHGLP with respect to the Optioned
Interests until this option is fully exercised.
9. Investment Representation.
9.1 Unregistered Securities. ▇▇▇▇▇▇▇▇▇ understands that
neither the option granted by this Agreement the Partnership
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Interests covered thereby have been registered under the Securities Act of
1933, as amended (the "Act") on the ground that the offer and sale of
securities provided for in this Agreement is exempt from the registration
requirements of the Act pursuant to Section 4(2) of the Act and Regulation D
promulgated thereunder, and that the Company's reliance on such exemption is
predicated in part on ▇▇▇▇▇▇▇▇▇'▇ representations set forth herein.
9.2 Qualified Investor. ▇▇▇▇▇▇▇▇▇ is an "accredited
investor" as defined in Regulation D promulgated under the Act and by reason of
the business or financial experience of its control persons has the capacity to
protect its own interest in an investment in the Partnership Interests.
▇▇▇▇▇▇▇▇▇ has had the opportunity to ask questions of the Company and to obtain
any information requested concerning the Company and the accuracy of the
information supplied, and all questions which have been asked on behalf of
▇▇▇▇▇▇▇▇▇ have been answered by the Company to the satisfaction of ▇▇▇▇▇▇▇▇▇.
9.3 Investment Intent. The rights under this Agreement
and the Partnership Interests covered hereby are being or will be acquired by
▇▇▇▇▇▇▇▇▇ for investment, for his own account, and not directly or indirectly
for the account of any other person, and not with a view to or for sale in
connection with any distribution of the Partnership Interests. ▇▇▇▇▇▇▇▇▇ has
no present intention of selling, granting participation in, or otherwise
distributing the Partnership Interests. ▇▇▇▇▇▇▇▇▇ does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer, or
grant participations, to such person or to any other third person, with respect
to the Partnership Interests. ▇▇▇▇▇▇▇▇▇ understands and acknowledges that this
Agreement is being executed by the Company in reliance upon the foregoing
representations and warranties.
9.4 No Public Market. ▇▇▇▇▇▇▇▇▇ has been advised that no
public market now exists for the Partnership Interests, that a public market
may never exist and that each of the Purchasers therefore may have to hold the
Partnership Interests indefinitely.
9.5 Restrictions on Transfer. ▇▇▇▇▇▇▇▇▇ understands that
if the Company does not register with the Securities and Exchange Commission
(the "SEC"), pursuant to Section 12 or 15 of the Securities Exchange Act of
1934 (the "1934 Act"), or if a registration statement covering the securities
under the Act is not in effect when ▇▇▇▇▇▇▇▇▇ desires to sell the Partnership
Interests, ▇▇▇▇▇▇▇▇▇ may be required to hold the Partnership Interests for an
indeterminate period. ▇▇▇▇▇▇▇▇▇ also understands that any sale of the
Partnership Interests which might be made by ▇▇▇▇▇▇▇▇▇ in reliance upon Rule
144 under the Act may be made only in limited amounts in accordance with the
terms and conditions of that rule.
10. Amendments. The provisions of this Agreement may be waived,
offered, amended, modified or appealed in whole or in part only by the written
consent of all parties to this Agreement.
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11. Successors and Assigns. This Agreement shall be binding on
and enforceable by and against the parties to it and their respective heirs,
legal representatives and successors.
12. Notices. Any notice under or pursuant to this Agreement shall
be in writing and shall be delivered either by personal delivery, by telecopier
or similar electronic medium or by overnight courier addressed as follows:
If to FHGLP: Falcon Holding Group, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee
Falcon Cable Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
All such notices shall be effective when delivered or received at the office or
by the party receiving such notice.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
FALCON HOLDING GROUP, L.P., a
Delaware limited partnership
By Falcon Holding Group, Inc.
its general partner
By_____________________________
Title________________________
FALCON CABLE TRUST
By_____________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Trustee
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EXHIBIT A-2
FALCON HOLDING GROUP, L.P.
PARTNERSHIP OPTION AGREEMENT
FOR
ADVANCE TV OF CALIFORNIA, INC.
This Agreement is made and entered into as of July 15, 1996, by and
among Advance TV of California, Inc. ("Advance") and Falcon Holding Group,
L.P., a Delaware limited partnership ("FHGLP").
WHEREAS, Advance is currently a limited partner in FHGLP pursuant to
the Third Amended and Restated Agreement of Limited Partnership of FHGLP dated
as of December 28, 1995 (the "Partnership Agreement");
WHEREAS, Advance desires to acquire an option to purchase additional
FHGLP partnership interests from FHGLP; and
WHEREAS, FHGLP desires to cause Advance, under certain terms and
conditions to purchase such partnership interests.
NOW, THEREFORE, the parties hereby agree as follows:
1. Defined Terms. Capitalized terms defined in the Partnership
Agreement are used herein with the meanings so defined.
2. Option. In consideration of the receipt of $20,000 and for
other good and valuable consideration, FHGLP on the date hereof, irrevocably
grants to the ▇▇▇▇▇▇▇▇▇ the option to purchase partnership interests (the
"Partnership Interests") of the Company represented by a Percentage Interest of
2.1856% which will have an Adjusted Capital Contribution Account equal to the
Purchase Price (as defined below) (the "Optioned Interests") upon the terms and
conditions set forth in this Agreement.
3. Purchase Price. The purchase price for the Optioned Interests
(the "Purchase Price") shall be the applicable Purchase Price on the date of
exercise. The initial Purchase Price for the Optioned Interests for the first
twelve months of this Agreement shall be $8,315,000. On each anniversary date
of this Agreement, the Purchase Price for the next succeeding year shall be
equal to 105% of the Purchase Price for the preceding year. The consideration
received for the option shall be applied against the Purchase Price upon
exercise of this option.
4. Adjustments and Option. In the event that the outstanding
Partnership Interests of FHGLP are changed into or exchanged for a different
number or kind of units or partnership interests or any other securities of
FHGLP by reasons of merger, consolidation, recapitalization or
reclassification, or otherwise, the Optioned Interests subject to this option
shall be appropriately and equitably adjusted in number and kind to the extent
that after such event Advance's proportionate interest in
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FHGLP as represented by the Optioned Interests shall be maintained as before
the occurrence of such event.
5. Expiration of the Option. This option may be exercised at any
time until the first of the following events: (a) the expiration of ten (10)
years from the date the option is granted, or (b) the effective date of (i) a
merger or consolidation of FHGLP with another person, (ii) the acquisition by
another person of all or substantially all the assets or a majority of the then
outstanding partnership interests of FHGLP, or (iii) the dissolution and
liquidation of FHGLP (collectively, the "Dissolution Events"). At least thirty
(30) days prior to the effective date of any Dissolution Event, FHGLP shall
give Advance's notice of such event if this option has then not been exercised.
6. FHGLP's Rights to Require Exercise of the Option. In the
event this option has not been exercised on or before fifteen (15) days prior
to a Dissolution Event, then FHGLP may require Advance to purchase the Optioned
Interests prior to the date of such Dissolution Event. FHGLP may exercise its
right to require Advance to exercise this option by delivery to Advance a
notice in writing signed on behalf of FHGLP stating that Advance is required
pursuant to this Paragraph 6 to exercise the option and upon the receipt of
such notice by Advance, Advance shall be considered to have provided the
requisite notice under Paragraph 7 and to have exercised this option.
7. Manner of Exercise. This option may be exercised by Advance
by delivery to FHGLP by a notice in writing signed by Advance stating that the
option is thereby exercised. In the case of any exercise other than in
connection with a Dissolution Event, the Purchase Price shall be paid either by
(i) cash or check of the Purchase Price for the Optioned Interests or (ii) the
transfer by Advance of other Partnership Interests of FHGLP owned by Advance at
their then fair market value on the date the option is exercised in an amount
equal to the Purchase Price of the Optioned Interests. In the case of an
exercise in connection with a Dissolution Event, the obligation to pay the
Purchase Price shall be non-recourse to Advance and the Purchase Price shall be
paid solely out of distributions otherwise payable to Advance by FHGLP with
respect to the Optioned Interests and any other Partnership Interests in FHGLP
then held by Advance. FHGLP is expressly authorized to withhold distributions
with respect to the Optioned Interests and any other Partnership Interests of
Advance and to apply such withholdings to the Purchase Price of the Optioned
Interests.
8. Rights as a Partner. Advance shall not be nor have any rights
and privileges of a Partner in FHGLP with respect to the Optioned Interests
until this option is fully exercised.
9. Investment Representation.
9.1 Unregistered Securities. Advance understands that
neither the option granted by this Agreement the Partnership Interests covered
thereby have been registered under the Securities Act of 1933, as amended (the
"Act") on the ground that the offer
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and sale of securities provided for in this Agreement is exempt from the
registration requirements of the Act pursuant to Section 4(2) of the Act and
Regulation D promulgated thereunder, and that the Company's reliance on such
exemption is predicated in part on Advance's representations set forth herein.
9.2 Qualified Investor. Advance is an "accredited
investor" as defined in Regulation D promulgated under the Act and by reason of
the business or financial experience of its control persons has the capacity to
protect its own interest in an investment in the Partnership Interests.
Advance has had the opportunity to ask questions of the Company and to obtain
any information requested concerning the Company and the accuracy of the
information supplied, and all questions which have been asked on behalf of
Advance have been answered by the Company to the satisfaction of Advance.
9.3 Investment Intent. The rights under this Agreement
and the Partnership Interests covered hereby are being or will be acquired by
Advance for investment, for its own account, and not directly or indirectly for
the account of any other person, and not with a view to or for sale in
connection with any distribution of the Partnership Interests. Advance has no
present intention of selling, granting participation in, or otherwise
distributing the Partnership Interests. Advance does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer, or
grant participations, to such person or to any other third person, with respect
to the Partnership Interests. Advance understands and acknowledges that this
Agreement is being executed by the Company in reliance upon the foregoing
representations and warranties.
9.4 No Public Market. Advance has been advised that no
public market now exists for the Partnership Interests, that a public market
may never exist and that Advance therefore may have to hold the Partnership
Interests indefinitely.
9.5 Restrictions on Transfer. Advance understands that
if the Company does not register with the Securities and Exchange Commission
(the "SEC"), pursuant to Section 12 or 15 of the Securities Exchange Act of
1934 (the "1934 Act"), or if a registration statement covering the securities
under the Act is not in effect when Advance desires to sell the Partnership
Interests, Advance may be required to hold the Partnership Interests for an
indeterminate period. Advance also understands that any sale of the
Partnership Interests which might be made by Advance in reliance upon Rule 144
under the Act may be made only in limited amounts in accordance with the terms
and conditions of that rule.
10. Amendments. The provisions of this Agreement may be waived,
offered, amended, modified or appealed in whole or in part only by the written
consent of all parties to this Agreement.
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16
11. Successors and Assigns. This Agreement shall be binding on
and enforceable by and against the parties to it and their respective heirs,
legal representatives and successors.
12. Notices. Any notice under or pursuant to this Agreement shall
be in writing and shall be delivered either by personal delivery, by telecopier
or similar electronic medium or by overnight courier addressed as follows:
If to FHGLP: Falcon Holding Group, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Advance: Advance TV of California, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
All such notices shall be effective when delivered or received at the office or
by the party receiving such notice.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
* * * * * * * * * *
4
17
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
FALCON HOLDING GROUP, L.P., a
Delaware limited partnership
By Falcon Holding Group, Inc.
its general partner
By_____________________________
Title________________________
ADVANCE TV OF CALIFORNIA, INC.
By_____________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary
5
18
EXHIBIT B
SCHEDULE ??
TO
AGREEMENT OF LIMITED PARTNERSHIP
-----------------------------------------------------------------------------------------------------------------------------------
Revised Revised Paragraph (i) Paragraph (ii)
Partner (Class A and B Only) Post First For FCSC Units Units
Partner Contribution Acquisition (All Partners) (Class A Partners)
-----------------------------------------------------------------------------------------------------------------------------------
Advanced Company, Ltd. 4,378,398.94 4,378,398,94 1,108.24 145.97
-----------------------------------------------------------------------------------------------------------------------------------
Advanced TV of California, Inc. 11,385,151.07 1,685,00,00 13,070,151.07 3,308.25 --
-----------------------------------------------------------------------------------------------------------------------------------
BancBoston Capital, Inc. 2,911,143.65 2,911,143.85 736.85 --
-----------------------------------------------------------------------------------------------------------------------------------
Baxt. ▇. ▇▇▇▇▇▇▇ 280,293.11 280,293.11 70.95 10.70
-----------------------------------------------------------------------------------------------------------------------------------
Blackhawk Holding Company, Inc. 22,836,808.43 22,836,808.43 5,780.34 691.69
-----------------------------------------------------------------------------------------------------------------------------------
Boston Ventures IIA Investment Corp. 678,459.40 678,459.40 171.73 --
-----------------------------------------------------------------------------------------------------------------------------------
Boston Ventures Limited Partnership II 26,249,616.23 26,249.616.23 6,644.17 --
-----------------------------------------------------------------------------------------------------------------------------------
DIS INVESTMENTS, INC. 10,551,903.63 10,551,903.63 2,670.85 --
-----------------------------------------------------------------------------------------------------------------------------------
Falcon Cable Trust 40,203,516.70 3,315,000.00 43,518,516.70 11,015.19 2,862.31
-----------------------------------------------------------------------------------------------------------------------------------
Falcon First, LLC 8,072,727.03 8,072,727.03 2,043.33
-----------------------------------------------------------------------------------------------------------------------------------
Falcon Holding Group, Inc. 43,076,082.56 43,076,082.56 10,903.20 291.47
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners 35,256,842.48 35,256,842.48 8,924.04 --
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners II, L.P. 99,378,030.13 99,378,030.13 25,154.07 1,368.13
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ 5,616,802.31 5,616,802.31 1,421.70 386.10
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 1,962.202.35 1,962,202.35 496.66 148.02
-----------------------------------------------------------------------------------------------------------------------------------
LEEWAY & CO. 21,103,807.25 21,103,807.25 5,341.69 --
-----------------------------------------------------------------------------------------------------------------------------------
MLC Investors, L.P. 21,297,064.74 21,297,064.74 5,390.61 --
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 166,152.57 166,152.57 42.06 25.43
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ Family Trust 995,958.96 995,958.96 252.09 152.33
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 399,561.06 399,561.06 101.13 44.04
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ 727,788.22 727,788.22 184.21 --
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,065,118.32 1,065,118.32 269.60 40.64
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust 145,557.66 145,557.66 36.84 --
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 582,228.56 582,228.56 147.37 --
-----------------------------------------------------------------------------------------------------------------------------------
Toronto Dominion Investments, Inc. 2,911,143.85 2,911,143.85 736.85 --
-----------------------------------------------------------------------------------------------------------------------------------
Lillane Viadimirschi 3,203,733.85 3,203,733.85 810.91 70.23
-----------------------------------------------------------------------------------------------------------------------------------
Total 365,436,091 5,000,000 370,436,091 93,762.95 6,237.05
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Total
Class C Partners Units
-----------------------------------------------------------------------------------------------------------------------------------
Falcon First LLC 51,373,293
-----------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Partner (Class A and B Only) Total Percentage Voting
Partner Units Interest Percentage
-------------------------------------------------------------------------------------------------
Advanced Company, Ltd. 1,254.21 1.25421% 1.25421%
-------------------------------------------------------------------------------------------------
Advanced TV of California, Inc. 3,308.25 3.30825% 3.30825%
-------------------------------------------------------------------------------------------------
BancBoston Capital, Inc. 736.85 0.73685% 0.73685%
-------------------------------------------------------------------------------------------------
Baxt. ▇. ▇▇▇▇▇▇▇ 81.64 0.08164% 0.08164%
-------------------------------------------------------------------------------------------------
Blackhawk Holding Company, Inc. 6,472.03 6.47203% 6.47203%
-------------------------------------------------------------------------------------------------
Boston Ventures IIA Investment Corp. 171.73 0.17173% 0.17173%
-------------------------------------------------------------------------------------------------
Boston Ventures Limited Partnership II 6,644.17 6.64417% 6.64417%
-------------------------------------------------------------------------------------------------
DIS INVESTMENTS, INC. 2,870.85 2.67085% 2.67085%
-------------------------------------------------------------------------------------------------
Falcon Cable Trust 13,877.50 13.87750% 13,87750%
-------------------------------------------------------------------------------------------------
Falcon First, LLC 2,043.33 2.04333% 2.04333%
-------------------------------------------------------------------------------------------------
Falcon Holding Group, Inc. 11,194.67 11.19467% 9.06011%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners 8,924.04 8.92404% 8.92404%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners II, L.P. 26,522.21 26.52221% 25.65677%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ 1,807.80 1.80780% 1.80780%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 644.69 0.64469% 0.64469%
-------------------------------------------------------------------------------------------------
LEEWAY & CO. 5,341.69 5.34169% 5.34169%
-------------------------------------------------------------------------------------------------
MLC Investors, L.P. 5,390.61 5.39061% 5,39061%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 67.49 0.06749% 0.06749%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ Family Trust 404.42 0.40442% 0.40442%
-------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 145.18 0.14518% 0.14518%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ 184.21 0.18421% 0.18421%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 310.24 0.31024% 0.31024%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust 36.84 0.03684% 0.03684%
-------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 147.37 0.14737% 0.14737%
-------------------------------------------------------------------------------------------------
Toronto Dominion Investments, Inc. 736.85 0.73685% 0.73685%
-------------------------------------------------------------------------------------------------
Lillane Viadimirschi 881.14 0.88114% 0.88114%
-------------------------------------------------------------------------------------------------
Total 100,000 100.00000% 100.00000%
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Percentage Voting
Class C Partners Interests Interests
-------------------------------------------------------------------------------------------------
Falcon First LLC 100.00000% 0.00000%
-------------------------------------------------------------------------------------------------
SCHVPF.XLS 7/30/96