Exhibit 2.2
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Continental Cablevision, Inc.
The ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GUARANTY AGREEMENT
Dear Sirs and Mesdames:
Reference is hereby made to the Purchase Agreement, dated as of March 15,
1996 (as from time to time amended and in effect, the "Purchase Agreement"),
by and among ▇▇▇▇▇▇▇▇/New Heritage Partnership, an Iowa general partnership
("MNHP"), New Heritage Associates, an Iowa general partnership ("NHA" and,
together with MNHP, "Sellers"), and Continental Cablevision, Inc., a Delaware
corporation ("Buyer"). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings ascribed to them in the
Purchase Agreement.
The Purchase Agreement provides, among other things, for the purchase by
Buyer of the Subject Interests of the Sellers for cash consideration. The
undersigned (the "Guarantor") is one of the Ultimate Equity Holders and, as
such, will receive directly or indirectly from the Seller of which the
undersigned is an Ultimate Equity Holder one or more distributions of a
portion of such cash consideration. Accordingly, the Guarantor is receiving a
substantial and material benefit, and otherwise substantially and materially
benefits indirectly as an Ultimate Equity Holder, from the Closing of the
transactions contemplated by the Purchase Agreement.
In consideration of benefits received by the Guarantor from Buyer's
Closing of the transactions contemplated by the Purchase Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Guarantor, intending to be legally bound, hereby
agrees as follows:
Section 1. Unconditional Guaranty.
(a) The Guarantor hereby unconditionally guarantees to Buyer the
due and punctual payment and performance of all present and future
indebtedness, obligations and liabilities, whether absolute or contingent, now
existing or hereafter arising, of Sellers, or either of them, arising out of
any of the agreements, covenants, obligations or liabilities of Sellers under
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Article 10 of the Purchase Agreement, as amended and in effect from time to
time and together with any substitutions or replacements therefor and each
other agreement and instrument now or from time to time evidencing or securing
any of the agreements, covenants or obligations of Sellers under Article 10 of
the Purchase Agreement (collectively, the "Guaranteed Obligations"), including
the due and punctual payment of all amounts and other sums, together with all
interest accrued thereon to the extent provided in such Article 10, of any and
all Guaranteed Obligations now or hereafter owed by Sellers, or either of
them, or any other Person under the Guaranteed Obligations, in each case as
and when the same shall become due and payable, and the due and punctual
performance and observance of all other obligations under the Guaranteed
Obligations, this guaranty being an absolute, unconditional, present and
continuing guaranty of payment and not of collectibility and being in no way
conditional or contingent; and in case any part of the Guaranteed Obligations
shall not have been paid, performed or observed when payable or requested to
be performed or observed, the Guarantor will, promptly upon receipt of notice
from Buyer, immediately pay or cause to be paid to Buyer the amount of, or
perform or cause the performance of, such Guaranteed Obligations.
(b) The Guarantor further agrees that if at any time all or any
part of any payment theretofore applied by Buyer to any of the Guaranteed
Obligations is or must be rescinded or returned or restored for any reason
whatsoever (including the insolvency, bankruptcy or reorganization of either
Seller), such Guaranteed Obligations shall, for the purposes of this
Agreement, to the extent that such payment is or must be rescinded, restored
or returned, be deemed to have continued in existence, notwithstanding such
application, and this Agreement shall continue to be effective or be
reinstated, as the case may be, as to such Guaranteed Obligations, all as
though such application by Buyer had not been made.
(c) The obligations of the Guarantor hereunder shall be absolute
and unconditional, shall not be subject to any counterclaim, setoff,
recoupment or defense based upon any claim the Guarantor may have against
Buyer or any other Person not arising in connection with the Purchase
Agreement, and shall remain in full force and effect without regard to, and
shall not be released, altered, exhausted, discharged or in any way affected
by any of the following circumstances or conditions (whether or not the
Guarantor shall have any knowledge or notice thereof): (I) any amendment or
modification of or supplement to the Purchase Agreement (including the
Guaranteed Obligations) or of any obligation, duty or agreement of Sellers, or
either of them, or any other Person thereunder or in respect thereof, (ii)
any assignment or transfer in whole or in part of any Guaranteed Obligations,
(iii) any furnishing or acceptance of any direct or indirect security or
guaranty, or any release of or non-perfection or invalidity of any direct or
indirect security or guaranty, for the Guaranteed Obligations, (iv) any
waiver, consent, extension, renewal, indulgence, settlement, compromise or
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other action or inaction under or in respect of any such instrument, or any
exercise or non-exercise of any right, remedy, power or privilege under or in
respect of any such instrument (whether by operation of law or otherwise), (v)
any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or similar proceeding with respect to Sellers, or
either of them, or any other Person or any of their respective properties or
creditors or any resulting release or discharge of any Guaranteed Obligations;
(vi) the voluntary or involuntary sale or other disposition of all or
substantially all the assets of Sellers, or either of them, or any other
Person, (vii) the voluntary or involuntary liquidation, dissolution or
termination of Sellers, or either of them, or any other Person, (viii) any
unenforceability, in whole or in part, of any of the Guaranteed Obligations or
any provision of any applicable law or regulation purporting to prohibit the
payment or performance by Sellers, or either of them, or any other Person of
any Guaranteed Obligations, or (ix) any failure on the part of Sellers, or
either of them, or any other Person for any reason to perform or comply with
any term of the Guaranteed Obligations.
(d) If for any reason Sellers, or either of them, or any other
Person is under no legal obligation to discharge any of the Guaranteed
Obligations, or if any other moneys included in the Guaranteed Obligations
have become unrecoverable from Sellers, or either of them, or any other Person
by operation of law or for any other reason, including the unenforceability in
whole or in part of any Guaranteed Obligation, the legal disability of
Sellers, or either of them, or any other obligor in respect of any Guaranteed
Obligations, any discharge of or limitation on the liability of Sellers, or
either of them, or any other Person or any limitation on the method or terms
of payment under any Guaranteed Obligation which may now or hereafter be
caused or imposed in any manner whatsoever (whether consensual or arising by
operation of law or otherwise), the guaranty contained in this Agreement shall
nevertheless remain in full force and effect and shall be binding upon the
Guarantor to the same extent as if the Guarantor at all times had been the
principal obligor on all such Guaranteed Obligations.
Section 2. Waivers. The Guarantor hereby waives, to the fullest extent
permitted by applicable law, (i) all presentments, demands for performance,
notices of nonperformance, protests, notices of protests and notices of
dishonor in connection with the Guaranteed Obligations or any agreement
relating thereto, (ii) notice of acceptance of this Agreement, (iii) notice of
any indulgence, extensions or renewals granted to any obligor with respect to
any of the Guaranteed Obligations, (iv) any requirement of diligence or
promptness in the enforcement of rights under any of the Guaranteed
Obligations or any other agreement or instrument directly or indirectly
relating thereto or to the Guaranteed Obligations, (v) any enforcement of any
present or future agreement or instrument relating directly or indirectly
thereto or to the Guaranteed Obligations, (vi) notice of any of the matters
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referred to in Section 1(c) hereof, (vii) any and all notices of every kind
and description which may be required to be given by any statute or rule of
law and any defense of any kind which it may now or hereafter have with
respect to its liability under this Agreement, (viii) any right to require
Buyer, as a condition of enforcement of this Agreement, to proceed against
Sellers, or either of them, or any other Person or to proceed against or
exhaust any security held by Buyer at any time or to pursue any other right or
remedy in Buyer's power before proceeding against Guarantor, (ix) any defense
that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of Buyer to file or
enforce a claim against the estate (in administration, bankruptcy,
reorganization, insolvency or any other proceeding) of any other Person or
Persons, (x) any defense based upon an election of remedies by Buyer, (xi) any
defense based upon any lack of diligence by Buyer in the collection of any
Guaranteed Obligation, (xii) any duty on the part of Buyer to disclose to the
Guarantor any facts Buyer may now or hereafter know about Sellers, or either
of them, (xiii) any defense arising because of an election made by Buyer under
Section 1111(b)(2) of the Federal Bankruptcy Code, (xiv) any defense based on
any borrowing or grant of a security interest under Section 364 of the Federal
Bankruptcy Code, and (xv) any defense based upon or arising out of any defense
which Sellers, or either of them, or any other Person may have to the payment
or performance of the Guaranteed Obligations.
Section 3. [This Section has been intentionally left blank.]
Section 4. No Effect of Automatic Stay. If payment or performance of
any Guaranteed Obligation is stayed upon the insolvency, bankruptcy or
reorganization of Sellers, or either of them, or any other Person or
otherwise, all such amounts shall nonetheless be payable by the Guarantor
hereunder forthwith upon demand.
Section 5. Limitation of Liability. The liability of the Guarantor
under this Agreement (other than the liability of the Guarantor under Section
6 hereof) shall not exceed $17,144,000 in the aggregate, which amount shall be
reduced to $8,572,000 in the aggregate with respect to any claims by Buyer for
payment or performance of the Guarantor's obligations hereunder with respect
to which notice is not given to the Guarantor on or prior to March 15, 1997.
Section 6. Expenses. If any litigation between Buyer and the Guarantor
with respect to this Agreement or the transactions contemplated hereby is
resolved or adjudicated by a final judgment or order of any court, the party
prevailing under such judgment or order shall be entitled, as part of such
judgment or order, to recover from the other party its reasonable attorneys'
fees and costs and expenses of litigation. The obligations of the Guarantor
under this Section 6 shall be in addition to the other obligations of the
Guarantor hereunder and shall not be limited or otherwise affected by Section
5 hereof.
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Section 7. Miscellaneous Provisions.
(a) Notices.
(I) All notices and other communications under this Agreement
shall be in writing (which shall include communications by
telecopy, answer back requested, if a telecopier number is
listed below) and shall be deemed to have been given when
deposited in the mail, first class, post-prepaid, or sent out
by telecopier, answer back requested, addressed to the party to
which such notice is directed at its respective address as
follows:
(A) In the case of the Guarantor, to it at:
(B) In the case of Buyer, to it at: Continental
Cablevision, Inc., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Telecopy
No. 617-742-0530); with a copy to ▇▇▇▇▇▇▇▇ & Worcester, a
Registered Limited Liability Partnership, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq. (Telecopy No. 617-338-2880).
(ii) Any party hereto may change the address to which notices
shall be directed to it under this Section 7(a) by giving
written notice of such change to the other party in accordance
with this Section 7(a).
(b) No Waivers of Rights Hereunder; Amendments. No course of
dealing or performance by Buyer, including any delay or forbearance in
exercising any right under any of the Guaranteed Obligations, shall operate as
a waiver or relinquishment of any rights hereunder, or the amendment, release
or novation of any provision hereof, nor shall any single or partial exercise
of any right hereunder preclude other or further exercises thereof or the
exercise of any other right hereunder. No waiver of any rights of Buyer
under, nor any amendment of any provision of, this Agreement shall be
enforceable against Buyer unless in writing and signed by its officers, and
unless it expressly refers to the right or provision affected. Any such
waiver shall be limited solely to the specific event waived.
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(c) Assignment. All the provisions of this Agreement shall be
binding upon the Guarantor and its successors and assigns and inure to the
benefit of Buyer its successors, assigns and transferees. The Guarantor may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of Buyer unless the Guarantor remains liable
hereunder along with the assignee or transferee.
(d) Construction.
(I) Words used in this Agreement, regardless of the gender and
number used, shall be deemed and construed to include any other
gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
(ii) As used in this Agreement, the word "including" is not
limiting, and the word "or" is not exclusive.
(iii) The words "this Agreement", "hereto", "herein",
"hereunder", "hereof", and words or phrases of similar import
refer to this Agreement as a whole and not to any particular
article, section, subsection, paragraph, clause or other
portion of this Agreement.
(iv) Unless the context requires otherwise, a reference herein
to a particular article, section, subsection, paragraph or
clause shall refer to such article, section, subsection,
paragraph or clause of this Agreement.
(v) This Agreement has been negotiated by Sellers, the
Guarantor and Buyer and their respective legal counsel, and
legal or equitable principles that might require the
construction of this Agreement or any provision of this
Agreement against the party drafting this Agreement shall not
apply in any construction or interpretation of this Agreement.
(vi) The section and other headings contained in this
Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same
instrument.
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(f) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS. EACH OF THE GUARANTOR AND BUYER SUBMITS TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF MINNESOTA
FOR ALL MATTERS IN CONNECTION HEREWITH. THE GUARANTOR HEREBY IRREVOCABLY
AGREES TO BE ACCEPT AND BE BOUND BY SERVICE OF PROCESS EFFECTED IN ANY MANNER
AUTHORIZED BY THE RULES OF PRACTICE OF ANY SUCH COURT, AND, TO THE EXTENT THAT
IT MAY LAWFULLY DO SO, EXPRESSLY AND IRREVOCABLY WAIVES AND AGREES NOT TO
ASSERT, BY WAY OF MOTION, DEFENSE, COUNTERCLAIM OR OTHERWISE, THAT IT IS NOT
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT OR THAT THE ACTION, SUIT OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE THEREOF IS
IMPROPER. THE GUARANTOR HEREBY AGREES THAT ALL OF BUYER'S RIGHTS HEREUNDER
WERE THE RESULT OF NEGOTIATIONS AMONG BUYER, SELLERS AND THE GUARANTOR, AND
THAT THE BENEFITS TO SELLERS AND THE GUARANTOR UNDER THE PURCHASE AGREEMENT
WERE INDUCED IN A MATERIAL RESPECT BY THE BENEFITS GRANTED TO THE BUYER
HEREUNDER. IN THIS CONTEXT, THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO A TRIAL BY JURY AS TO ANY AND ALL MATTERS AND ISSUES WHICH MAY
ARISE DIRECTLY OR INDIRECTLY HEREFROM OR FROM ANY OTHER AGREEMENT, INSTRUMENT
OR DOCUMENT EXECUTED IN CONJUNCTION HEREWITH, INCLUDING COUNTERCLAIMS, IF ANY.
(g) Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such provision in
any other jurisdiction.
(h) Person Defined. As used herein, the term "Person" shall
include an human being, corporation, partnership, limited liability company,
trust or unincorporated association, or a government or any agency or
political subdivision thereof, or any other entity.
(I) Advice of Counsel. The Guarantor acknowledges that it has been
represented by, and has received the advice of, legal counsel of its choosing
in connection with its execution and delivery of this Agreement and its debts,
liabilities and obligations hereunder.
(j) Exclusive Remedy. The rights of Buyer provided for in this
Agreement shall be the exclusive remedy for Buyer against the Guarantor for
damages for any breach of any representation, warranty, covenant or agreement
of Seller, or either of them, contained in the Purchase Agreement or in any
certificate delivered by either Seller at or prior to the Closing pursuant to
the Purchase Agreement; provided that the provisions of this Section 7(j)
shall not apply to or limit in any way the remedies of Buyer against any other
Person or the right of Buyer to seek specific performance or injunctive or
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other equitable relief against the Guarantor in order to enforce this
Agreement or prevent any violation or avoidance hereof by the Guarantor and,
to the extent permitted by applicable law, the Guarantor waives any objection
to the imposition of such relief.
This Agreement shall become a binding agreement under seal as of the day
and year first above written upon the execution and delivery hereof by or on
behalf of the Guarantor.
Very truly yours,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(Signature)
Print Name: ▇▇▇▇▇▇▇▇ Corporation
Print Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: 515 - 284-3828
The foregoing is hereby accepted:
CONTINENTAL CABLEVISION, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
Title: Vice President, Strategy and Planning
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