{"id":43520,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/purchase-agreement-qwest-communications-international-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"purchase-agreement-qwest-communications-international-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/purchase-agreement-qwest-communications-international-inc.html","title":{"rendered":"Purchase Agreement – Qwest Communications International Inc., Slingshot Networks LLC and Anschutz Digital Media Inc."},"content":{"rendered":" \n--------------------------------------------------------------------------------\n\n PURCHASE AGREEMENT\n\n by and among\n\n QWEST COMMUNICATIONS INTERNATIONAL INC.\n\n SLINGSHOT NETWORKS, LLC,\n\n and\n\n ANSCHUTZ DIGITAL MEDIA, INC.\n\n\n\n Dated as of September 26, 1999\n\n--------------------------------------------------------------------------------\n\n \n PURCHASE AGREEMENT\n\n This PURCHASE AGREEMENT, dated as of September 26, 1999 (this \"Agreement\"),\nby and among Qwest Communications International Inc., a Delaware corporation\n(together with its permitted assigns, \"Purchaser\"), Slingshot Networks, LLC, a\nDelaware limited liability company (\"Slingshot\"), and Anschutz Digital Media,\nInc., a Colorado corporation (\"ADMI\").\n\n RECITALS\n\n A. ADMI and Slingshot are engaged in the business of providing enhanced\ntelephony, calling card and related services and advanced digital production,\npost-production and transmission facility, digital media storage and\ndistribution services, telephony-based data storage and enhanced services,\naccess and routing services and prepaid telecommunications services (the\n\"Business\");\n\n B. Subject to the terms and conditions contained in this Agreement, ADMI\nintends to sell, transfer and assign to Purchaser, and Purchaser intends to\npurchase and acquire from ADMI, certain assets of ADMI used in the operation of\nthe portion of the Business relating to the provision of enhanced telephony\nservices, including network-based telecommunications products, customer premises\ntelecommunications products and service bureau transactional service offerings\n(the \"Telecom Business\"); and\n\n C. Subject to the terms and conditions contained in this Agreement, and\nin the Contribution Agreement and the Subscription Agreement referred to herein,\n(1) ADMI intends to contribute certain assets of ADMI used in the operation of\nthe portion of the Business relating to advanced digital production, post-\nproduction and transmission facility, digital media storage and distribution\nservices, telephony-based data storage and enhanced services, access and routing\nservices (the \"Digital Media Business\") to Slingshot and (2) Qwest desires,\neither itself or through its permitted assigns, to purchase Class A Units (as\ndefined herein) in Slingshot.\n\n AGREEMENT\n\n NOW THEREFORE, in consideration of the foregoing premises and for other\ngood and valuable consideration, the receipt and adequacy of which are hereby\nacknowledged, the parties hereto agree as follows:\n\n ARTICLE I\n DEFINITIONS AND TERMS\n\n Section 1.1 Certain Definitions. As used in this Agreement, the following\nterms shall have the meanings set forth or as referenced below:\n\n \"ADMI\" shall have the meaning set forth in the introductory paragraph to\nthis Agreement.\n\n \n \"Affiliate\" shall mean, as to any Person (i) any other Person which,\ndirectly or indirectly, is in control of, is controlled by, or is under common\ncontrol with, such Person, (ii) any corporation or organization (other than a\nSubsidiary of such Person) of which such Person is an officer or partner or is,\ndirectly or indirectly, the beneficial owner of 10% or more of any class of\nequity securities, (iii) any trust or other estate in which such Person has a\nsubstantial beneficial interest or as to which such Person serves as trustee or\nin a similar fiduciary capacity, and (iv) any relative or spouse of such Person,\nor any relative of such spouse, who has the same home as such Person or who is a\ndirector or officer of such Person or any of its parents or Subsidiaries. The\nterm \"control\" (including, with correlative meanings, the terms \"controlled by\"\nand \"under common control with\") as applied to any Person means the possession,\ndirect or indirect, of the power to direct or cause the direction of the\nmanagement and policies of such Person, whether through the ownership of voting\nsecurities or other ownership interest, by contract or otherwise.\nNotwithstanding the foregoing, except as otherwise expressly provided, Purchaser\nand any of its Affiliates that would constitute Affiliates of ADMI, Slingshot or\nPSI only by virtue of being Affiliates of Qwest Communications International\nInc. shall be deemed not to be Affiliates of ADMI for the purposes of this\nAgreement; provided, that for purposes of the assignment of the Speer Indemnity,\nADMI and Purchaser are Affiliates.\n\n \"Agreement\" shall have the meaning set forth in the introductory paragraph\nto this Agreement.\n\n \"Assets\" shall have the meaning set forth in Section 2.1(a) hereof.\n\n \"Assumed Liabilities\" shall have the meaning set forth in Section 2.1(c)\nhereof.\n\n \"Balance Sheets\" shall have the meaning set forth in Section 4.7(a) hereof.\n\n \"Balance Sheet Date\" shall mean July 31, 1999.\n\n \"BFD\" shall mean BFD Productions, Inc., a Nevada corporation.\n\n \"Bill of Sale, Assignment and Assumption Agreement\" shall mean the bill of\nsale, assignment and assumption agreement to be entered into at Closing by and\nbetween Purchaser and ADMI, in form and substance mutually acceptable to\nPurchaser and ADMI, pursuant to which (i) ADMI will transfer the Telephony\nAssets held by it to Purchaser, (ii) ADMI will assign to Purchaser any rights\nrelating to the Telephony Assets under the Speer Purchase Agreement (including\nrights of indemnification), and (iii) Purchaser will assume the Assumed\nLiabilities of ADMI, as contemplated by Section 2.1 of this Agreement, together\nwith such other instruments of transfer as the parties shall mutually agree in\neach case to Purchaser and ADMI .\n\n \"Business\" shall have the meaning set forth in the preamble hereto.\n\n \"Business Day\" shall mean any day other than a Saturday, a Sunday or a day\non which banks in Denver, Colorado are authorized or obligated by law or\nexecutive order to close.\n\n 2\n\n \n \"Capacity and Service Agreement\" shall mean a master services agreement to\nbe entered into by Purchaser and ADMI substantially in the form of Exhibit A\nhereto.\n\n \"Cleanup\" shall mean all actions, whether voluntary or compelled by\nEnvironmental Laws, required to: (i) clean-up, remove, treat or remediate\nHazardous Materials in the indoor or outdoor environment; (ii) prevent the\nRelease of Hazardous Materials so that they do not migrate, endanger or threaten\nto endanger public health or welfare or the indoor or outdoor environment; (iii)\nperform pre-remedial studies and investigations and post-remedial monitoring and\ncare, or (iv) respond to any government or third-party requests for information\nor documents in any way relating to clean-up, removal, treatment or remediation\nor potential clean-up, removal, treatment or remediation of Hazardous Materials\nin the indoor or outdoor environment.\n\n \"Class A Units\" shall mean Class A units of interest in Slingshot\nrepresenting, after giving effect to the transactions contemplated by this\nAgreement, 50% of the outstanding equity interests of Slingshot on a fully\ndiluted basis.\n\n \"Closing\" shall have the meaning set forth in Section 3.3 hereof.\n\n \"Closing Date\" shall have the meaning set forth in Section 3.3 hereof.\n\n \"Contribution Agreement\" shall mean a contribution agreement dated the\nClosing Date, between ADMI and Slingshot, substantially in the form of Exhibit D\nattached hereto.\n\n \"Code\" shall mean the Internal Revenue Code of 1986, as amended.\n\n \"Computer Programs\" shall mean, with respect to a specified Person, (i) any\nand all computer software programs and software development tools, including all\nsource and object code, (ii) databases and compilations, including any and all\ndata and collections of data, whether machine readable or otherwise, (iii) all\ndescriptions, flow-charts and other work product used to design, plan, organize\nand develop any of the foregoing, (iv) all domain names and the content\ncontained in such Person's Internet site(s); provided such intangibles shall not\ninclude any right or license to use the names \"Anschutz\" or \"Speer\" in any\nmanner whatsoever, including without limitation any registered trademark, domain\nnames and other rights containing or incorporating the names \"Anschutz\" or\n\"Speer\", and (v) all documentation, including user manuals and training\nmaterials, relating to any of the foregoing; provided that the foregoing shall\nnot include any shrink-wrapped or similar off-the-shelf products.\n\n \"Current Assets\" shall have the meaning set forth in Section 3.1 hereof.\n\n \"Current Liabilities\" shall have the meaning set forth in Section 3.1\nhereof.\n\n \"Digital Media Business\" shall have the meaning set forth in the preamble\nhereto.\n\n \"Damages\" shall have the meaning set forth in Section 9.3(a) hereof.\n\n \"Environmental Claim\" shall mean, with respect to a specified Person, any\nclaim, action, cause of action, notice of potential responsibility, information\nrequest, notice of violation, notice\n\n 3\n\n \nof potential violation, complaint, order, directive, investigation or notice by\nany other Person arising out of, based on or attributable to (i) the current or\npast presence, threatened Release, or Release, of any Hazardous Material at, on,\nunder or from, any location, whether or not owned, leased or operated by such\nspecified Person, including any location at which Hazardous Materials\noriginating on or from such specified Person's business were sent for disposal\nor treatment or (ii) circumstances forming the basis of any violation, or\nalleged violation, of any Environmental Law.\n\n \"Environmental Laws\" shall mean all applicable federal, state, local and\ncommon laws and regulations relating to pollution or protection of the\nenvironment, including laws and regulations, now or hereafter in effect,\nrelating to Releases or threatened Releases of Hazardous Materials, or otherwise\nrelating to the manufacture, processing, distribution, use, installation,\ngeneration, treatment, storage, disposal, transport or handling of Hazardous\nMaterials, and all laws and regulations with regard to record keeping,\nnotification, disclosure and reporting requirements respecting Hazardous\nMaterials.\n\n \"Environmental Liability\" shall mean any liability resulting from an\nactual, threatened or potential Environmental Claim; from failure to comply with\nany Environmental Law; from failure to obtain or comply with any Environmental\nPermit; from a Remedial Action; or from harm or injury to any person, to public\nhealth, or to the environment as a result of actual, threatened or potential\nexposure to Hazardous Materials.\n\n \"Environmental Permits\" shall mean all permits, approvals, identification\nnumbers, licenses, certificates, executions, approvals and any other\nauthorizations under any Environmental Law.\n\n \"ERISA\" shall mean the Employee Retirement Income Security Act of 1974, as\namended.\n\n \"ERISA Affiliate\" shall have the meaning set forth in Section 4.16 hereof.\n\n \"Equipment\" shall have the meaning set forth in Section 4.9(f) hereof.\n\n \"Final Closing Date Balance Sheet\" shall have the meaning set forth in\nSection 3.1 hereof.\n\n \"FCC\" shall mean the Federal Communications Commission.\n\n \"GAAP\" shall mean United States generally accepted accounting principles\nand practices.\n\n \"Governmental Authority\" shall mean any foreign, national, federal, state\nor local judicial, legislative, executive or governmental regulatory authority.\n\n 4\n\n \n \"Growth Share Plan\" shall mean the phantom equity participation plan to be\nadopted by Slingshot after the closing pursuant to which Slingshot may offer up\nto 7.5% of its common equity interest to its directors, officers and employees.\n\n \"Hazardous Materials\" shall mean any wastes, substances, radiation, or\nmaterials (whether solids, liquids or gases) (i) that are hazardous, toxic,\ninfectious, explosive, radioactive, carcinogenic, or mutagenic; (ii) that are or\nbecome defined or listed as a \"pollutants,\" \"contaminants,\" \"hazardous\nmaterials,\" \"hazardous wastes,\" \"hazardous substances,\" \"toxic substances,\"\n\"radioactive materials,\" \"solid wastes,\" or other similar designations in, or\notherwise subject to regulation under, any Environmental Laws; (iii) without\nlimitation, that contain polychlorinated bi-phenyls (PCBs), asbestos and\nasbestos-containing materials, lead-based paints, urea-formaldehyde foam\ninsulation, and petroleum or petroleum products (including, without limitation,\ncrude oil or any fraction thereof) or (iv) that pose a hazard to human or worker\nhealth or safety, natural resources, industrial hygiene, or the environment, or\nan impediment to working conditions.\n\n \"HSR Act\" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of\n1976, as amended, and the rules and regulations promulgated thereunder.\n\n \"IHC\" shall mean IHC Holdings, LLC, a Colorado limited liability company.\n\n \"Indebtedness\" of any Person at any date shall include (i) all indebtedness\nof such Person for borrowed money or for the deferred purchase price of property\nor services (other than current trade liabilities incurred in the ordinary\ncourse of business and payable in accordance with customary practices) and\nincluding earn-out or similar contingent purchase amounts, (ii) any other\nindebtedness of such Person which is evidenced by a note, bond, debenture or\nsimilar instrument, (iii) all obligations of such Person under capitalized lease\nobligations, (iv) all obligations of such Person in respect of acceptances\nissued or created for the account of such Person, (v) all liabilities secured by\nany Lien on any property owned by such Person even though such Person has not\nassumed or otherwise become liable for the payment thereof, and (vi) all\nguarantees by such Person of obligations of others.\n\n \"Instruments of Transfer\" shall have the meaning set forth in Section\n2.1(b) hereof.\n\n \"Intellectual Property\" shall mean, with respect to a specified Person, all\nintellectual property rights used in or reasonably necessary for the business of\nsuch Person as currently conducted or as presently contemplated by such Person\nto be conducted, including all patents and patent applications, trademarks,\ntrademark registrations and applications; service marks, service mark\nregistrations and applications, logos, designs, proprietary rights, slogans and\ngeneral intangibles of like nature, together with all goodwill related to the\nforegoing; trade names, copyrights, copyright registrations and applications;\nComputer Programs; product plans, technology, process engineering, drawings,\nschematic drawings, secret processes; proprietary knowledge, including without\nlimitation, trade secrets, know-how, confidential confirmation, proprietary\nprocesses and formulae; provided such intangibles shall not include any right or\nlicense to use the names \"Anschutz\" and \"Speer\" in any manner whatsoever,\nincluding without limitation any registered trademark, domain names and other\nrights containing or incorporating\n\n 5\n\n \nthe names \"Anschutz\" or \"Speer\"; provided further, that the foregoing shall not\ninclude any shrink-wrapped or similar off-the-shelf products. For the purposes\nof this Agreement, any reference to Intellectual Property of ADMI or Slingshot\nshall be deemed not to include Intellectual Property of PSI except to the extent\notherwise expressly stated.\n\n \"IRS\" shall mean the Internal Revenue Service of the United States.\n\n \"Knowledge\" or \"knowledge\" with respect to any particular representation or\nwarranty contained in this Agreement, when used to apply to the \"knowledge of\nADMI\", shall be deemed to be followed by the phrase \"after due inquiry\" and\nshall mean the actual knowledge or conscious awareness after due inquiry of any\nsenior officer of ADMI; provided that for purposes of Section 4.25 hereof the\nterm \"knowledge\" means that such statement shall be deemed to be made to the\nactual knowledge or conscious awareness of any senior officer of ADMI after\nhaving shown Lee Provow, Ken Clinebell and Scott Carpenter the relevant\nstatement and having consulted with such individuals as to whether they have\nactual knowledge of any fact or circumstance that would make such statement\nuntrue.\n\n \"Laws\" shall mean any applicable federal, state, local or foreign law,\nstatute, ordinance, rule, regulation, order, judgment, decree, administrative\norder or administrative or judicial decision.\n\n \"Liabilities\" shall mean debts, liabilities, commitments, obligations,\nduties and responsibilities of any kind and description, whether absolute,\naccrued, contingent, monetary or nonmonetary, direct or indirect, known or\nunknown or matured or unmatured or of any other nature, including, but not\nlimited to, liabilities on account of taxes, other governmental charges or\nlawsuits brought, whether or not of a kind required by generally accepted\naccounting principles to be set forth on a financial statement, which are not\nset forth on or disclosed in either the Telecom Balance Sheet or the Slingshot\nBalance Sheet, as the case may be.\n\n \"Licenses\" shall have the meaning set forth in Section 4.15(d) hereof.\n\n \"Liens\" shall mean any lien, pledge, mortgage, security interest, lease,\ncharge, option, right of first refusal, easement, servitude, transfer \nrestriction under any shareholder or similar agreement, or any other encumbrance\nof any nature whatsoever.\n\n \"Litigation\" shall mean, with respect to any specified Person, any\nlitigation, legal action, arbitration, proceeding, material demand, material\nclaim or investigation pending, or, to the knowledge of ADMI, threatened,\nplanned or reasonably probable, against, affecting or brought by or against such\nspecified Person or its present or former employees or agents relating to the\nbusiness of such specified Person or any of its assets or liabilities or binding\nany of such Person's property or assets.\n\n \"Managed\" shall have the meaning set forth in Section 4.13(e).\n\n 6\n\n \n \"Management Agreement\" shall mean the management agreement, dated March 16,\n1999, between ADMI, the Speer Sellers and RMS Limited Partnership, a Nevada\nlimited partnership.\n\n \"Marks\" shall mean all trade names, trademarks, service marks, brand names,\nbrand marks, fictitious names or other Intellectual Property relating thereto;\nprovided such trade names, trademarks, service marks, brand names, brand marks,\nfictitious names or other Intellectual Property shall not include any right or\nlicense to use the names \"Anschutz\" and \"Speer\" in any manner whatsoever,\nincluding without limitation any registered trademark, domain names and other\nrights containing or incorporating either \"Anschutz\" or \"Speer\"\n\n Unless the context otherwise requires, when used in Articles IV and V other\nthan as a part of the defined terms Material Adverse Change or Material Adverse\nEffect, the word \"material\" shall mean, when used with respect to any event(s),\nact(s), condition(s) or occurrence(s), affecting the Telecom Business, the\nDigital Media Business or the Business, as the case may be, and an effect or\nchange with respect to the same or any similar event(s), act(s), condition(s) or\noccurrence(s), individually or in the aggregate with respect to which Damages of\n$100,000 in the aggregate or more is being, or would reasonably be expected to\nbe, asserted against, imposed upon or sustained by any of the Telecom Business,\nDigital Media Business or the Business taken as a whole or a corresponding\nincrease in the liabilities (including the Assumed Liabilities).\n\n \"Material Adverse Change\" shall mean, with respect to the same or any\nsimilar events, acts, conditions or occurrences, whether individually or in the\naggregate resulting in, a material adverse effect on or a material adverse\nchange in (A) when referring to the Telecom Business (i) the Telecom Assets or\nthe Assumed Liabilities or (ii) any of the Telecom Business or condition\n(financial or otherwise), operations, assets or liabilities of the Telecom\nBusiness, (B) when referring to the Digital Media Business (i) the Slingshot\nAssets and related liabilities or (ii) any of the Digital Media Business or\ncondition (financial or otherwise), operations, assets or liabilities of the\nDigital Media Business and (C) when referring to the Business (i) the Assets or\n(ii) any of the Business or condition (financial or otherwise), operations,\nassets or liabilities of ADMI. For purposes of this definition and without\nlimiting the generality of the foregoing, an effect or change with respect to\nthe same or any similar event(s), act(s), condition(s) or occurrence(s)\nindividually or in the aggregate with respect to which ADMI or Slingshot would\nreasonably be expected to have $2,000,000 in the aggregate or more in Damages\nbeing asserted against, imposed upon or sustained by the Telecom Business, the\nDigital Media Business or the Business, taken as a whole, or a corresponding\nincrease in related Liabilities shall constitute a \"material adverse\" change.\n\n \"Material Adverse Effect\" shall mean, with respect to the same or any\nsimilar events, acts, conditions or occurrences, whether individually or in the\naggregate resulting in, a material adverse effect on or a material adverse\nchange in (A) when referring to the Telecom Business (i) the Telecom Assets or\nthe Assumed Liabilities or (ii) any of the Telecom Business or condition\n(financial or otherwise), operations, assets or liabilities of the Telecom\nBusiness, (B) when referring to the Digital Media Business (i) the Slingshot\nAssets and related liabilities or (ii) any of the Digital Media Business or\ncondition (financial or otherwise), operations, assets or \n\n 7\n\n \nliabilities of the Digital Media Business and (C) when referring to the Business\n(i) the Assets or (ii) any of the Business or condition (financial or\notherwise), operations, assets or liabilities of ADMI, (D) the legality or\nenforceability against ADMI or Slingshot of this Agreement or (E) the ability of\nADMI to perform its obligations and to consummate the transactions under this\nAgreement. For purposes of clauses (A) through (C) of this definition and\nwithout limiting the generality of the foregoing, an effect or change with\nrespect to the same or any similar event(s), act(s), condition(s) or\noccurrence(s) individually or in the aggregate with respect to which ADMI or\nSlingshot would reasonably be expected to have $100,000 in the aggregate or more\nin Damages being asserted against, imposed upon or sustained by any of the\nTelecom Business, Digital Media Business or the Business taken as a whole or a\ncorresponding increase in the liabilities (including the Assumed Liabilities)\nshall constitute a \"material adverse\" effect.\n\n \"Material Contracts\" shall have the meaning set forth in Section 4.14(a)\nhereof.\n\n \"Net Working Capital\" shall have the meaning set forth in Section 3.1\nhereof.\n\n \"Nondelivered Telecom Assets\" shall have the meaning set forth in Section\n2.3 hereof.\n\n \"Note\" shall mean a promissory note of Purchaser, having an initial\nprincipal amount equal to the Purchase Price, in substantially the form of\nExhibit C hereto, and any replacement of such note.\n\n \"Other PSI Entity\" shall have the meaning set forth in Section 4.3(b)\nhereof.\n\n \"Other Slingshot Entity\" shall have the meaning set forth in Section 4.2(c)\nhereof.\n\n \"Operating Agreement\" shall mean the amended and restated limited liability\ncompany operating agreement of Slingshot.\n\n \"Ownership Interests\" shall have the meaning set forth in Section 4.2(a)\nhereof.\n\n \"Permits\" shall mean as to any Person, all licenses, permits, franchises,\norders, approvals, concessions, registrations, authorizations and qualifications\nunder any foreign, federal, state or local laws with any and all Governmental\nAuthorities or with any and all industry or other non-governmental self-\nregulatory organizations that are issued to such Person.\n\n \"Person\" shall mean an individual, a corporation, a partnership, limited\nliability company, an association, a trust or other entity or organization.\n\n \"PSI\" shall mean Precision Systems, Inc., a Delaware corporation, and,\nunless the context otherwise requires, its consolidated Subsidiaries other than\nBFD.\n\n \"PSI Securities\" shall have the meaning set forth in Section 4.3 hereof.\n\n \"Purchase Price\" shall have the meaning set forth in Section 3.1 hereof.\n\n 8\n\n \n \"Purchaser\" shall have the meaning set forth in the introductory paragraph\nto this Agreement.\n\n \"Purchaser Indemnified Parties\" shall mean Purchaser and its successors,\nassigns, Affiliates, agents and employees.\n\n \"Real Property\" shall have the meaning set forth in Section 4.9(b) hereof.\n\n \"Release\" shall mean any release, spill, emission, leaking, pumping,\ndumping, injection, deposit, disposal, discharge, dispersal, leaching or\nmigration into the indoor or outdoor environment (including ambient air, surface\nwater, groundwater and surface or subsurface strata, sewers, storm drains, or a\npublicly owned treatment works), or into or out of any property, including the\nmovement of Hazardous Materials through or in the air, soil, surface water,\ngroundwater or property.\n\n \"Remedial Action\" shall mean any action or proceeding to (i) cause the\nremoval, abatement or containment of any Hazardous Materials, or (ii) to correct\nor prevent a Release, or to recover the cost of either of the foregoing by a\nGovernment Authority or third party.\n\n \"Requirement of Law\" shall mean as to any Person, the partnership\nagreement, certificate of incorporation, bylaws or other organizational or\ngoverning documents of such Person, and any law, treaty, rule or regulation or\norder of an arbitrator or Governmental Authority, in each case applicable to or\nbinding upon such Person or any of its properties or assets or to which such\nPerson or any of its properties or assets is subject.\n\n \"Schedules\" and any references to specific items therein shall mean the\ndisclosure schedules hereto.\n\n \"Seller Indemnified Parties\" shall mean Slingshot and ADMI and their\nsuccessors, assigns, Affiliates, agents and employees.\n\n \"Services and Option Agreements\" shall mean (i) the Qwest Wholesale Private\nLine Service Agreement, (ii) the Qwest Internet Transport and Video and Data\nTransmission Service Agreement, (iii) the Qwest Private Line Collocation License\nAgreement, (iv) the Qwest IRU Agreement and (v) the Qwest IRU Collocation\nAgreement, in each case together with any exhibits and addenda thereto, each to\nbe entered into by Slingshot and Purchaser (or an Affiliate thereof) at Closing\nin substantially the forms attached hereto as Exhibits B-1 through B-5.\n\n \"Slingshot\" shall have the meaning set forth in the introductory paragraph\nto this Agreement.\n\n \"Slingshot Assets\" shall have the meaning set forth in Section 2.1(a)\nhereof.\n\n \"Slingshot Balance Sheet\" shall have the meaning set forth in Section\n4.7(a) hereof.\n\n \"Speer Communications\" shall mean Speer Communications Holdings Limited\nPartnership, a Nevada limited partnership.\n\n 9\n\n \n \"Speer Indemnity\" shall have the meaning set forth in Section 7.12 hereof.\n\n \"Speer Productions\" shall mean Speer Productions Limited Partnership, a\nNevada limited partnership.\n\n \"Speer Purchase Agreement\" shall mean the Asset Purchase Agreement, dated\nas of February 16, 1999, by and among ADMI, the Speer Sellers, RMS Limited\nPartnership, a Nevada limited partnership, and Roy M. Speer (as to Articles IX\nand XI only).\n\n \"Speer Sellers\" shall mean Speer Communications, Speer Virtual Media\nLimited Partnership, a Nevada limited partnership, Speer World Wide, Speer\nProductions, Professional Video Services Corporation, a Delaware corporation,\nand Enhanced Services of Nevada, Inc., a Nevada corporation.\n\n \"Speer World Wide\" shall mean Speer World Wide Digital Limited Partnership,\na Nevada limited partnership.\n\n \"Subscription Agreement\" shall mean a subscription agreement dated the\nClosing Date, between Slingshot and Qwest Communications Corporation, or another\nAffiliate of Purchaser, substantially in the form of Exhibit E attached hereto.\n\n \"Subsidiary\" shall mean, with respect to any Person, any corporation,\npartnership or other organization, whether incorporated or unincorporated, of\nwhich such Person or any other subsidiary of such person beneficially owns a\nmajority of the voting or equity interests.\n\n \"Systems\" shall have the meaning set forth in Section 4.24 hereof.\n\n \"Tax Law\" shall mean any Law relating to Taxes.\n\n \"Tax Return\" shall mean any return, report, information return or other\ndocument (including any related or supporting information) with respect to\nTaxes.\n\n \"Taxes\" shall mean all taxes, charges, fees, duties, levies, penalties or\nother assessments imposed by any Governmental Authority, including income, gross\nreceipts, excise, property, sales, gain, use, license, capital stock, transfer,\nfranchise, payroll, withholding, social security or other taxes, including any\ninterest, penalties or additions attributable thereto.\n\n \"Telecom Assets\" shall have the meaning set forth in Section 2.1(a) hereof.\n\n \"Telecom Balance Sheet\" shall have the meaning set forth in Section 4.7(a)\nhereof.\n\n \"Telecom Business\" shall have the meaning set forth in the preamble hereto.\n\n \"Telephony Assets\" shall mean all of the Telecom Assets other than the PSI\nSecurities.\n\n \"Third Party Software\" shall have the meaning set forth in Section 4.9(f)\nhereof.\n\n 10\n\n \n \"Year 2000 Compliant\" shall have the meaning set forth in Section 4.24\nhereof.\n\n Section 1.2 Terms Generally. The definitions in Sections 1.1 shall apply\nequally to both the singular and plural forms of the terms defined. Whenever the\ncontext may require, any pronoun shall include the corresponding masculine,\nfeminine and neuter forms. The words \"include,\" \"includes\" and \"including\" shall\nbe deemed to be followed by the phrase \"without limitation\" even if not followed\nactually by such phrase unless the context expressly provides otherwise. Unless\notherwise expressly defined, terms defined in the Agreement shall have the same\nmeanings when used in any Exhibit or Schedule and terms defined in any Exhibit\nor Schedule shall have the same meanings when used in the Agreement or in any\nother Exhibit or Schedule. The words \"herein,\" \"hereof,\" \"hereto\" and\n\"hereunder\" and other words of similar import refer to this Agreement as a whole\nand not to any particular provision of this Agreement. The phrase \"made\navailable\" in this Agreement shall mean that the information referred to has\nbeen made available by the party in question. The phrases \"the date of this\nAgreement,\" \"the date hereof\" and terms of similar import, unless the context\notherwise requires, shall be deemed to refer to the date set forth in the\nintroductory paragraph of this Agreement. References to \"dollars\" or \"$\" in this\nAgreement shall mean United States dollars unless the context provides\notherwise.\n\n ARTICLE II\n ACQUISITION AND DISPOSITION OF ASSETS\n\n Section 2.1 Purchase and Sale of Assets.\n\n (a) At the Closing, upon the terms and subject to the conditions\nset forth in this Agreement, ADMI shall transfer, assign, convey and deliver to\nPurchaser and Purchaser shall receive from ADMI all right, title and interest in\nand to all of the Telecom Assets free and clear of all Liens except for Assumed\nLiabilities. It is the intent of the parties hereto that the term (i) \"Telecom\nAssets\" shall mean all right, title and interest in all of the assets, tangible\nor intangible, along with all contractual and leasehold rights ADMI holds\n(subject to the limitations set forth in Section 2.2) relating to the Telecom\nBusiness, including, without limitation, the assets listed in Schedule 2.1(a),\n(ii) \"Slingshot Assets\" shall mean all right, title and interest in all assets,\ntangible or intangible of ADMI other than (A) the Telecom Assets, (B) the\nmembership interests and assets of IHC and (C) the capital stock and assets of\nBFD, and (iii) \"Assets\" shall mean the Telecom Assets and the Slingshot Assets\ntaken together.\n\n (b) The sale, conveyance, assignment, transfer and delivery of the\nTelecom Assets will be effected by delivery by ADMI to Purchaser of (i) a Bill\nof Sale, Assignment and Assumption Agreement from ADMI, (ii) executed copies of\nthe filings, consents, approvals, notices or waivers, and copies of the\ninstruments transferring, registering or issuing the consents, approvals,\npermits, licenses, permissions, registrations or other authorizations referred\nto in Section 7.2 hereof, (iii) with respect to the PSI Securities, the PSI\nSecurities accompanied by stock powers duly executed in blank, and (iv) such\nother good and sufficient instruments of conveyance, transfer and assignment\n(together with the Bill of Sale, Assignment and Assumption Agreement, the\n\"Instruments of Transfer\") as shall be necessary to vest in Purchaser full\nright, \n\n 11\n\n \ntitle and interest in and to the Telecom Assets, free and clear of all claims\nand Liens whether absolute, accrued, contingent or otherwise except the Assumed\nLiabilities.\n\n (c) Upon the terms and subject to the conditions of this\nAgreement, including but not limited to the exceptions set forth in Section\n2.1(d), at the Closing Purchaser will assume and agree to pay, perform and\ndischarge as and when due the liabilities and obligations of ADMI listed in\nSchedule 2.1(c) (the \"Assumed Liabilities\"); provided, however, that the amount\nof Assumed Liabilities as of the Closing Date shall not exceed either (i) the\namount of liabilities as set forth on the Telecom Balance Sheet or (ii) the\namount of current assets as set forth on the Telecom Balance Sheet. The\nassumption of the Assumed Liabilities by Purchaser will be effected by delivery\nby Purchaser to ADMI of the duly executed Bill of Sale, Assignment and\nAssumption Agreement. Notwithstanding the foregoing, Purchaser shall not assume\nany liabilities of PSI in connection with the acquisition of the PSI Securities\npursuant to this Agreement and such liabilities shall be and remain liabilities\nof PSI.\n\n (d) Except as may be expressly provided for in this Agreement,\nPurchaser shall not assume and ADMI shall not assign to Purchaser and shall\nremain liable for, any liability or obligation, direct or indirect, absolute or\ncontingent, of ADMI or any Subsidiary, division, associate or Affiliate of ADMI,\nincluding, as of the Closing, BFD, or of any Person, relating to (i) Taxes with\nrespect to or attributable to the assets of ADMI (other than PSI) for all\ntaxable periods through the Closing Date and Taxes with respect to or\nattributable to the properties, business or operations of ADMI or any\nSubsidiary, division, associate or Affiliate of ADMI (other than PSI) and,\nsubject to Section 11.9, Taxes of ADMI with respect to or attributable to the\ntransactions contemplated hereby or otherwise, (ii) any Liabilities associated\nwith the assets of ADMI other than the Telecom Assets and (iii) any employee\nbenefit plan of any ADMI or any benefits or other amounts payable and provided\nunder any of ADMI's employee benefit plans or any contract relating to\nemployment or termination of employment between any of ADMI or its Affiliates\nand any of their respective employees or former employees (other than (A) the\nemployment agreements and arrangements specified, together with the amount of\ncompensation payable thereunder on Schedule 2.1(d) relating to certain employees\nof PSI which shall remain obligations of PSI and shall constitute Assumed\nLiabilities and (B) employment related liabilities shown on the Final Closing\nDate Balance Sheet) and (iv) any other Liabilities of ADMI not disclosed in\nSchedule 2.1(c).\n\n Section 2.2 Excluded Assets. It is the intention of the parties that no\nassets other than the Telecom Assets be sold, transferred or conveyed to\nPurchaser pursuant to this Agreement. All of ADMI's right, title and interest in\nand to any assets other than the Telecom Assets shall be retained by ADMI or\nSlingshot, as the case may be. As a point of clarification and without limiting\nthe foregoing, the parties agree that Purchaser is not purchasing the Slingshot\nAssets, the membership interests in IHC or the capital stock of BFD as the same\nexist as of the date hereof or as of the Closing Date. As a further point of\nclarification and not in limitation of the foregoing, the parties agree that\nPurchaser is purchasing only assets and not capital stock, partnership interests\nor other equity or ownership interests or intercompany notes receivable or\npayable held by any party hereto other than the Class A Units in Slingshot that\n\n 12\n\n \nPurchaser or its permitted assigns is acquiring pursuant the Subscription\nAgreement and the PSI Securities being acquired hereunder.\n\n Section 2.3 Nondelivered Assets. Notwithstanding anything else contained \nin this Agreement, in the event that any Telecom Asset is not delivered by ADMI\nto Purchaser at Closing (a \"Nondelivered Telecom Asset\"), ADMI shall deliver\nsuch Nondelivered Telecom Asset to Purchaser as soon as ADMI has actual\nknowledge of the existence of such Nondelivered Telecom Asset.\n\n Section 2.4 No Assignment if Breach. Notwithstanding anything contained in\nthis Agreement to the contrary, this Agreement shall not constitute an agreement\nto assign any of the Telephony Assets, or to assume any Assumed Liabilities, if\nthe attempted assignment or assumption of the same, as a result of the absence\nof the consent or authorization of a third party, would constitute a breach or\ndefault under any lease, agreement, encumbrance or commitment or would in any\nway adversely affect the rights, or increase the obligations, of any party or\nany Subsidiary with respect thereto or would otherwise affect the ability of\nPurchaser to receive the benefit of the Telephony Assets. If any such consent or\nauthorization is not obtained, or if an attempted assignment or assumption would\nbe ineffective or would adversely affect the rights or benefits or increase the\nobligations of Purchaser with respect to any such Telephony Assets, or Assumed\nLiabilities, as appropriate, then the parties shall enter into such reasonable\ncooperative arrangements (including without limitation, sublease, agency,\npartial closing, management, indemnity or payment arrangements and enforcement\nat the cost and for the benefit of Purchaser of any and all rights of ADMI\nagainst an involved third party) to provide for Purchaser the benefit of such\nTelephony Assets or such Assumed Liabilities, any transfer or assignment to\nPurchaser by ADMI or a Subsidiary of ADMI, of any such Telephony Assets, or any\nassumption by Purchaser of any such Assumed Liabilities, which shall require\nsuch consent or authorization or a third party that is not obtained, shall be\nmade subject to such consent or authorization being obtained.\n\n ARTICLE III\n PURCHASE PRICE AND DELIVERY\n\n Section 3.1 Purchase Price and Payment.\n\n (a) The total purchase price under this Agreement shall be $34\nmillion (the \"Purchase Price\"). On the Closing Date, Purchaser will deliver to\nADMI the Purchase Price by execution and delivery to ADMI of the Note in an\naggregate principal amount equal to the Purchase Price in accordance with the\nterms and provisions set forth herein and therein.\n\n (b) Within 90 days after the Closing Date, Purchaser will (a)\nconduct a final review to determine the Net Working Capital, as defined below,\nof the Telecom Business as of the Closing Date and (b) prepare a final closing\ndate balance sheet for the Telecom Business (the \"Final Closing Date Balance\nSheet\") utilizing the same accounting methodology, consistently applied, as was\nused in preparing the Telecom Balance Sheet. The results of the review will be\nsubject to verification by ADMI's accountants or other representatives. If ADMI\nand Purchaser disagree regarding the Final Closing Date Balance Sheet, and are\nunable to resolve such\n\n 13\n\n \ndisagreement within 30 days after delivery of the Final Closing Date Balance\nSheet, the items of disagreement alone shall be referred for final determination\nto PriceWaterhouseCoopers (\"PWC\"). PWC shall be instructed by ADMI and the\nPurchaser to make its determination within 30 days. The determination of PWC\nshall be final and binding. The fees of PWC shall be split equally between ADMI\nand Purchaser. If the Net Working Capital as reflected in the Final Closing Date\nBalance Sheet is negative, ADMI shall pay Purchaser an amount equal to the\namount that the Net Working Capital is negative. Any amounts owed pursuant to\nthis Section 3.1(b) shall be paid to the appropriate party in immediately\navailable funds within ten days after agreement or final determination of any\namounts owed, with interest at a rate of 6% per annum from the Closing Date to\nthe date of payment. As used herein, \"Net Working Capital\" means Current Assets\nminus Current Liabilities. \"Current Assets\" shall mean cash and cash equivalents\naccounts and contract receivable supplies and other current assets and\ncosts\/earnings in excess of billings (other than with respect to any assets not\nto be sold, transferred or conveyed pursuant to this Agreement, by reason of\nSection 2.1 or otherwise), and excludes, without limitation, note receivable,\nintercompany receivables and investment in subsidiary. \"Current Liabilities\"\nshall mean all accounts payables, accrued liabilities billings in excess of cost\nand deferred revenue other than liabilities not to be assumed by Purchaser,\nincluding those identified in Section 2.1(d).\n\n Section 3.2 Allocation and Tax Election.\n\n (a) Allocation of Consideration. The aggregate consideration paid\nby Purchaser to ADMI pursuant to Section 3.1 hereof, shall be allocated among\nthe Assets as set forth on Schedule 3.2 attached hereto. The allocation of the\nPurchase Price was bargained and negotiated for and each party hereto shall file\nall Tax Returns (including Form 8594 which has been agreed by Purchaser and\nADMI) in a manner consistent with Schedule 3.2. Purchaser will propose a\npreliminary Form 8594 and submit such Form 8594 for ADMI's review and\nconcurrence.\n\n (b) Tax Treatment of Purchase. (i) If ADMI elects to make an \nelection under Section 338(h)(10) of the Code (the \"Section 338(h)(10)\nElection\"), then ADMI and Purchaser shall jointly make a timely Section\n338(h)(10) Election for federal and all applicable state Tax Laws, with respect\nto Purchaser's acquisition of the PSI Securities and will join in timely\nexecuting and filing Internal Revenue Service Form 8023 and any other forms and\nschedules as may be required under the Code (the \"Section 338(h)(10) Forms\").\nPurchaser shall be responsible for the preparation and filing of all Section\n338(h)(10) Forms in accordance with the Code.\n\n (ii) If ADMI elects to make the Section 338(h)(10) Election,\nthen (A) Purchaser and ADMI shall negotiate in good faith to agree as soon as\npracticable after Closing, but in no event later than 30 days following\ndetermination of the amount, if any, owing pursuant to Section 3.1(b), on the\ncomputation of the modified aggregate deemed sale price (\"MADSP\") (as defined\nunder United States Treasury Regulations), and (B) ADMI shall, upon each request\nof Purchaser, execute and deliver to Purchaser such documents or forms as\nPurchaser shall reasonably request to effect this Section 7.6(c).\n\n 14\n\n \n (iii) If ADMI elects to make the Section 338(h)(10) Election,\nthen (A) the parties will negotiate in good faith to agree upon the fair market\nvalue of the assets of PSI, (B) Purchaser shall perform or cause to be performed\nan initial valuation of assets and allocation of purchase price of PSI for\npurposes of Section 338 of the Code, (C) Purchaser shall provide ADMI with\ndrafts of such valuation of assets and allocation of MADSP within 30 days after\nthe determination of the amount, if any, owing pursuant to Section 3.1(b), (D)\nADMI shall have 45 days to provide Purchaser with any objections to such drafts,\nand (E) any disputes relating to computation of the MDSP shall be resolved in\nthe same manner as provided in Section 3.1(b).\n\n Section 3.3 Closing. Subject to the terms of Article X, the sale, \nconveyance, assignment, transfer and delivery of the Telecom Assets by ADMI and\nthe purchase and acceptance of the Telecom Assets, and assumption of the Assumed\nLiabilities, by Purchaser (hereinafter called the \"Closing\") shall take place at\n9:00 A.M. (Denver time) at the offices of Hogan & Hartson L.L.P., 1200\nSeventeenth Street, Suite 1500, Denver, Colorado 80202 on the third Business Day\nfollowing the day on which all conditions set forth in Article VIII shall have\nbeen satisfied or waived, or on such other date, time and place as may be\nmutually agreed upon by the parties hereto. The date on which the Closing occurs\nis referred to herein as the \"Closing Date.\" Notwithstanding the foregoing or\nany other provision of this Agreement to the contrary, the parties hereto agree\nthat the closing of the transactions contemplated herein shall be deemed to take\neffect at 12:01 A.M. (Denver time) on the Closing Date.\n\n Section 3.4 Deliveries by ADMI. At the Closing, ADMI shall duly execute,\nif required, and deliver to Purchaser or Slingshot, as the case may be:\n\n (a) A duly executed Bill of Sale, Assignment and Assumption\nAgreement relating to the Telephony Assets and Assumed Liabilities referred to\nin Section 2.1(a) hereof;\n\n (b) The PSI Securities free and clear of all Liens accompanied by\nstock powers duly executed in blank;\n\n (c) Such other good and sufficient Instruments of Transfer as\nshall be necessary to vest in Purchaser all of ADMI's title to the Telecom\nAssets, free and clear of all Liens;\n\n (d) The certificate of ADMI referred to in Section 8.2(d) hereof;\n\n (e) Copies of all consents, approvals, authorizations, agreements\nand other documentation required pursuant to Section 7.2 hereof;\n\n (f) The Operating Agreement;\n\n (g) The Contribution Agreement; and\n\n 15\n\n \n (h) Such other documents, instruments and writings reasonably\nrequested by Purchaser at or prior to the Closing.\n\n Purchaser will thereupon take actual possession of the Telecom\nAssets and assume the Assumed Liabilities.\n\n Section 3.5 Deliveries by Slingshot. At the Closing, Slingshot shall duly\nexecute, if required, and deliver to Purchaser or ADMI, as the case may be:\n\n (a) The Contribution Agreement;\n\n (b) The Subscription Agreement;\n\n (c) The Class A Units;\n\n (d) The Operating Agreement;\n\n (e) The Services and Option Agreements;\n\n (f) The Capacity and Service Agreement; and\n\n (g) Such other documents, instruments and writings reasonably\nrequested by Purchaser at or prior to the Closing.\n\n Section 3.6 Deliveries by Purchaser. At the Closing, Purchaser or its\nAffiliates shall duly execute, if required, and deliver to ADMI or Slingshot, as\nthe case may be:\n\n (a) A duly executed Bill of Sale, Assignment and Assumption\nrelating to the Telephony Assets and Assumed Liabilities, referred to in Section\n2.1(a) hereof;\n\n (b) The certificate referred to in Section 8.3(c) hereof;\n\n (c) The Subscription Agreement;\n\n (d) The Capacity and Service Agreement;\n\n (e) The Services and Option Agreements;\n\n (f) The Operating Agreement; and\n\n (g) Such other documents, instruments and writing reasonably\nrequested by ADMI at or prior to the Closing.\n\n 16\n\n \n ARTICLE IV\n REPRESENTATIONS AND WARRANTIES OF ADMI\n\n ADMI represents and warrants to Purchaser as follows:\n\n Section 4.1 Authorization and Validity. Slingshot has full limited \nliability company power and authority to enter into this Agreement and the other\ndocuments and instruments to be executed and delivered by Slingshot pursuant\nhereto and to carry out its obligations hereunder and thereunder. The execution,\ndelivery and performance by Slingshot of this Agreement and the other documents\nand instruments to be executed and delivered by Slingshot pursuant hereto, and\nthe consummation by Slingshot of the transactions contemplated hereby and\nthereby, have been duly and validly authorized by the management committee of\nSlingshot and no other act or proceeding on the part of Slingshot is necessary\nto authorize the execution and delivery by Slingshot of this Agreement or the\nother documents or instruments to be executed and delivered by Slingshot\npursuant hereto, or the consummation by Slingshot of the transactions\ncontemplated hereby or thereby. This Agreement and the other documents and\ninstruments to be executed and delivered by Slingshot pursuant hereto have been\nduly and validly executed and delivered by Slingshot and, assuming this\nAgreement and the other documents and instruments to be executed and delivered\nby Slingshot pursuant hereto are the valid and binding obligations of such other\nPersons a party hereto or thereto, constitute a valid and binding obligation of\nSlingshot enforceable against Slingshot in accordance with their terms, except\nthat (i) such enforcement may be subject to applicable bankruptcy, insolvency or\nother similar laws, now or hereafter in effect, affecting creditors' rights\ngenerally, and (ii) the remedy of specific performance and injunctive and other\nforms of equitable relief may be subject to equitable defenses and to the\ndiscretion of the court before which any proceeding therefor may be brought.\n\n Section 4.2 Equity; Good Title.\n\n (a) Schedule 4.2(a) sets forth, as of the date hereof, the names\nof the holders of limited liability company interests of Slingshot and the\npercentage and nature of ownership of such holder therein (such partnership and\nother equity interests are referred to collectively as the \"Ownership\nInterests\"). All of the outstanding Ownership Interests of Slingshot are validly\nissued, fully paid and nonassessable, and have not been issued in violation of\nany preemptive or similar rights.\n\n (b) All of the outstanding Ownership Interests of Slingshot are\nowned of record by the respective owners thereof identified on Schedule 4.2(a).\n\n (c) Schedule 4.2(c)(i) sets forth the name, form of organization,\njurisdiction of organization and percentage ownership of any Person in which\nSlingshot directly or indirectly owns any equity or other ownership interest (an\n\"Other Slingshot Entity\"). Except as set forth on Schedule 4.2(c)(ii), Slingshot\nhas no Subsidiaries. All outstanding shares of capital stock, partnership\ninterests and other ownership interests of each Other Slingshot Entity are owned\nbeneficially and of record by Slingshot. Except as set forth on Schedule\n4.2(c)(iii), since March 16, 1999, neither Slingshot nor any Other Slingshot\nEntity has issued, created or entered into outstanding options, warrants, calls,\nrights or commitments, or any other agreements of any\n\n 17\n\n \ncharacter relating to the sale, issuance or voting of, or the granting of rights\nto acquire, any shares of capital stock of or other debt or equity interest in\nSlingshot or such Other Slingshot Entity, or any securities or other instruments\nconvertible into, exchangeable for or evidencing the right to purchase any\nshares of capital stock of or other debt or equity interest in Slingshot or any\nsuch Other Slingshot Entity. Except for the Other Slingshot Entities, Slingshot\ndoes not own any equity or other ownership interests in any other Person.\n\n Section 4.3 Capitalization of PSI. The authorized capital stock of PSI\nconsists of 100 shares of common stock, all of which are issued and outstanding\n(the \"PSI Securities\") and owned beneficially and of record by ADMI free and\nclear of all Liens. All of the issued and outstanding shares of capital stock of\nPSI have been duly authorized and validly issued, are fully paid and\nnonassessable and were issued in compliance with all applicable state and\nfederal securities laws. Except as set forth herein or on Schedule 4.3(a) or as\ncontemplated by this Agreement (x) no subscription, warrant, option, convertible\nsecurity or other right (contingent or otherwise) to purchase or acquire any\nshares of capital stock of PSI is authorized or outstanding, (y) PSI does not\nhave any obligation (contingent or otherwise) to issue any subscription,\nwarrant, option, convertible security or other such right or to issue or\ndistribute to holders of any shares of its capital stock any evidence of\nindebtedness or assets of PSI, and (z) PSI does not have any obligation\n(contingent or otherwise) to purchase, redeem or otherwise acquire any shares of\nits capital stock or any interest therein or to pay any dividend or make any\nother distribution in respect thereof.\n\n (b) Schedule 4.3(b) sets forth the name, form of organization,\njurisdiction of organization and percentage ownership of any Person in which, to\nthe knowledge of ADMI, PSI directly or indirectly owns any equity or other\nownership interest (an \"Other PSI Entity\"). Except as set forth on Schedule\n4.3(b), to the knowledge of ADMI, PSI has no Subsidiaries. To the knowledge of\nADMI, all outstanding shares of capital stock, partnership interests and other\nownership interests of each Other PSI Entity are owned beneficially and of\nrecord by PSI. Except as set forth on Schedule 4.3(b), since July 12, 1999, no\nOther PSI Entity has issued, created or entered into outstanding options,\nwarrants, calls, rights or commitments, or any other agreements of any character\nrelating to the sale, issuance or voting of, or the granting of rights to\nacquire, any shares of capital stock of or other debt or equity interest in such\nOther PSI Entity, or any securities or other instruments convertible into,\nexchangeable for or evidencing the right to purchase any shares of capital stock\nof or other debt or equity interest in any such Other PSI Entity. Except for the\nOther PSI Entities, to the knowledge of ADMI, PSI does not own any equity or\nother ownership interests in any other Person. Since July 12, 1999, PSI has not\nacquired any equity or other ownership interest in any other Person.\n\n Section 4.4 Organization. (a) Slingshot is a duly organized and validly\nexisting limited liability company under the laws of the State of Delaware, and\nhas full power and authority to own all of its properties and assets, including\nthe Slingshot Assets, and to carry on its business as it is now being conducted.\nSlingshot has delivered to Purchaser a complete and correct copy of the limited\nliability company agreement of Slingshot as amended to date. Such limited\nliability company agreement is in full force and effect and Slingshot is not in\nmaterial violation of any provision of such limited liability company agreement.\n\n 18\n\n \n (b) PSI and each of its Subsidiaries is duly organized and validly\nexisting under the laws of its jurisdiction of incorporation or organization,\nand has full power and authority to own all of its properties and assets and to\ncarry on its business as it is now being conducted. PSI has delivered to\nPurchaser a complete and correct copy of the Restated Certificate of\nIncorporation of PSI. Prior to Closing, ADMI shall make available to Purchaser\nthe charter documents of each of PSI's subsidiaries.\n\n Section 4.5 No Conflict. Except as set forth in Schedule 4.5, the \nexecution, delivery and performance by Slingshot of this Agreement and the other\ndocuments and instruments to be executed and delivered by Slingshot pursuant\nhereto, the consummation by Slingshot of the transactions contemplated hereby or\nthereby and the compliance by Slingshot with the provisions hereof or thereof\nwill not (a) conflict with or result in any breach of any provision of\nSlingshot's limited liability company operating agreement, (b) constitute a\nchange in control under or require the consent from or the giving of notice to a\nthird party (other than a notice or consent of a Governmental Authority\ncontemplated by Section 4.6), result in a violation or breach of, or constitute\n(with or without due notice or lapse of time or both) a default (or give rise to\nany right of termination, amendment, cancellation or acceleration) under, or\nresult in the creation of any Lien upon or affecting Slingshot's properties or\nassets (including the Slingshot Assets) pursuant to, any of the terms,\nconditions or provisions of any contractual obligation of Slingshot, (c) violate\nany order, writ, injunction, decree, statute, rule or regulation of any\nGovernmental Authority applicable to Slingshot or to which any of its properties\nor assets (including the Slingshot Assets) may be bound, or (d) result in\ntriggering of any right of first refusal or other right under any partnership or\njoint venture agreement to which Slingshot is a party, except in the case of\nclauses (b), (c) or (d) for such violations, breaches or defaults which would\nnot, individually or in the aggregate, reasonably be expected to have a Material\nAdverse Effect.\n\n Section 4.6 Governmental Consents. Except (a) under the HSR Act, (b) with\nrespect to the business of reselling long distance telecommunications services,\nthe consent of the FCC and the public service commissions of the various states\nand (c) with respect to licenses to operate satellite earth stations, the\nconsent of the FCC, no consent, order or authorization of, or registration,\ndeclaration or filing with, any Governmental Authority is required in connection\nwith the execution, delivery and performance of this Agreement or the\nconsummation of the transactions contemplated hereby by ADMI or Slingshot.\n\n Section 4.7 Balance Sheet Information.\n\n (a) Attached hereto as Schedule 4.7(a) (i) is a copy of the\nunaudited balance sheet of ADMI with respect to the Telecom Business (the\n\"Telecom Balance Sheet\") as of July 31, 1999 (the \"Balance Sheet Date\").\nAttached hereto as Schedule 4.7(a)(ii) is a copy of the unaudited balance sheet\nof ADMI relating to the Slingshot Assets (the \"Slingshot Balance Sheet\" and,\ntogether with the Telecom Balance Sheet, the \"Balance Sheet\") as of the Balance\nSheet Date. The Balance Sheets were prepared in accordance with GAAP applied on\na consistent basis (except to the extent disclosed therein or required by\nchanges in GAAP), and fairly present (x) the information presented therein to\nthe extent such information relates to or is derived from periods after March\n16, 1999 (or July 12, 1999, with respect to information concerning PSI), (y)\n\n 19\n\n \nto the knowledge of ADMI, the information presented therein that relates to or\nis derived from periods prior to March 16, 1999 (or July 12, 1999, with respect\nto information concerning PSI) and (z) the financial position of the Telecom\nBusiness and the Digital Media Business, as the case may be, as of July 31, 1999\nand for the period then ended. The reserves that are reflected on the Balance\nSheets and that were established since March 16, 1999 (and, to the knowledge of\nADMI, the reserves that are reflected on the Telecom Balance Sheet that were\nestablished prior to March 16, 1999 (or July 12, 1999, with respect to\ninformation concerning PSI)) against assets are in amounts that have been\nestablished on a basis consistent with past practice and in accordance with\nGAAP. There have been no changes in reserves of ADMI relating to the Telecom\nBusiness or the Digital Media Business since the Balance Sheet Date other than\nchanges in such reserves consistent with past practice in such amounts as would\nnot in the aggregate reasonably be expected to have a Material Adverse Effect.\n\n (b) Except as disclosed in Schedule 4.7(b), (i) there are no\nLiabilities relating to the Telecom Business or the Digital Media Business that\nwere incurred on or after March 16, 1999 (or July 12, 1999, in the case of\nLiabilities of PSI) that are not reflected or reserved against in the Telecom\nBalance Sheet or the Slingshot Balance Sheet, as applicable, other than such\nLiabilities as (A) were incurred in the ordinary course of business in a manner\nconsistent with past practice since the Balance Sheet Date, or (B) would not be\nrequired to be presented in financial statements or the notes thereto prepared\nin conformity with GAAP, applied in a manner consistent with past practice, in\nthe preparation of the Telecom Balance Sheet or the Slingshot Balance Sheet, as\napplicable, and (ii) to the knowledge of ADMI, there are no Liabilities that\nwere incurred prior to March 16, 1999 (or July 12, 1999, in the case of PSI)\nthat are not reflected or reserved against in the Telecom Balance Sheet or the\nSlingshot Balance Sheet, as applicable, other than such Liabilities as would not\nbe required to be presented in financial statements or the notes thereto\nprepared in conformity with GAAP, applied in a manner consistent with past\npractice, in the preparation of the Telecom Balance Sheet or the Slingshot\nBalance Sheet, as applicable.\n\n Section 4.8 Absence of Certain Changes or Events. Except as set forth on\nSchedule 4.8, since March 16, 1999 (or since July 12, 1999 with respect to PSI)\nand, to the knowledge of ADMI, between December 31, 1998 and March 15, 1999 (or\nbetween December 31, 1998 and July 11, 1999 with respect to PSI), (a) ADMI, PSI\nand Slingshot have conducted the Business only in the ordinary course and\nconsistent with past practice, (b) there has not been any development or event\nthat has or could reasonably be expected to have, individually or in the\naggregate with any other development or event, a Material Adverse Effect and (c)\nexcept as contemplated in this Agreement:\n\n (i) Slingshot, PSI and ADMI have not adopted any amendment\n to their operating agreement or certificate or articles of incorporation,\n as applicable, other than such amendments which have been previously\n provided to Purchaser;\n\n (ii) (A) Slingshot, PSI and ADMI (including, for this\n purpose, the Telecom Business (other than PSI) and the Digital Media\n Business prior to March 16, 1999) have not sold, leased, transferred or\n disposed of any assets or rights, other than\n\n 20\n\n \n assets or rights that individually or in the aggregate would not be\n material, in either case, in the ordinary course of business consistent\n with past practice, (B) incurred any Lien thereupon, except for Liens\n incurred in the ordinary course of business consistent with past practice\n which Liens would not in the aggregate be material, (C) acquired or leased\n any assets or rights other than assets or rights that individually or in\n the aggregate would not be material in the ordinary course of business\n consistent with past practice, or (D) entered into any commitment or\n transaction with respect to (A), (B) or (C) above;\n\n (iii) PSI and ADMI have not (A) incurred, assumed or\n refinanced any Indebtedness or (B) made any loans, advances or capital\n contributions to, or investments in, any Person other than as set forth on\n Schedule 4.19;\n\n (iv) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not paid, discharged or satisfied any liability,\n obligation, or Lien other than payment, discharge or satisfaction of (A)\n Indebtedness as it matures and become due and payable or (B) liabilities,\n obligations or Liens in the ordinary course of business consistent with\n past practice;\n\n (v) Slingshot, PSI and ADMI have not (A) changed any of\n their accounting or tax principles, practices or methods used by it, except\n as required by changes in applicable Tax Laws, or (B) changed reserve\n amounts or policies;\n\n (vi) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not made any change in the compensation payable or\n to become payable to any of their officers, employees, agents, consultants\n or Persons acting in a similar capacity (other than general increases in\n wages (not exceeding $50,000 per year in any individual case) to employees\n who are not officers or Persons acting in a similar capacity in the\n ordinary course consistent with past practice), or to Persons providing\n management services, entered into or amended any employment, severance,\n consulting, termination or other agreement or employee benefit plan or made\n any loans to any of its Affiliates (other than as set forth on Schedule\n 4.19 officers, employees, agents or consultants or Persons acting in a\n similar capacity or made any change in its existing borrowing or lending\n arrangements for or on behalf of any of such Persons pursuant to an\n employee benefit plan or otherwise;\n\n (vii) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not (A) paid or made any accrual or arrangement for\n payment of any pension, retirement allowance or other employee benefit\n pursuant to any existing plan, agreement or arrangement to any officer,\n employee or Person acting in a similar capacity; (B) paid or agreed to pay\n or made any accrual or arrangement for payment to officers, employees or\n Persons acting in a similar capacity of any amount relating to unused\n vacation days, except payments and accruals made in the ordinary course\n consistent with past practice;\n\n 21\n\n \n (C) except for the Growth Share Plan, granted, issued, accelerated or\n accrued salary or other payments or benefits pursuant to any pension,\n profit-sharing, bonus, extra compensation, incentive, deferred\n compensation, stock purchase, stock option, stock appreciation right, group\n insurance, severance pay, retirement or other employee benefit plan,\n agreement or arrangement, or any employment or consulting agreement with or\n for the benefit of any Affiliate, officer, employee, agent or consultant or\n Person acting in a similar capacity, whether past or present; or (D)\n amended in any material respect any such existing plan, agreement or\n arrangement;\n\n (viii) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not entered into any collective bargaining\n agreement;\n\n (ix) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not made any payments (other than regular\n compensation payable to officers and employees or Persons acting in a\n similar capacity of Slingshot or ADMI in the ordinary course consistent\n with past practice), loans, advances or other distributions to, or entered\n into any transaction, agreement or arrangement with, Slingshot's, PSI's or\n ADMI's officers, employees, agents, consultants or Persons acting in a\n similar capacity;\n\n (x) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not made or authorized any capital expenditures,\n except in the ordinary course consistent with past practice not in excess\n of $250,000 individually or $500,000 in the aggregate;\n\n (xi) Slingshot, PSI and ADMI have not incurred any Taxes,\n except in the ordinary course of business consistent with past practice;\n\n (xii) Slingshot, PSI and ADMI have not settled or compromised\n any Tax liability or agreed to any adjustment of any Tax attribute or made\n any election with respect to Taxes;\n\n (xiii) Slingshot, PSI and ADMI have not failed to duly and\n timely file any Tax Return with the appropriate Governmental Authorities\n required to be filed by it in a true and complete and correct form or to\n timely pay all Taxes shown to be due thereon;\n\n (xiv) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not (A) entered into, amended, renewed or permitted\n the automatic renewal of, terminated or waived any right under, any\n Material Contract, or, except in the ordinary course of business consistent\n with past practice, any other agreement, or (B) taken any action or failed\n to take any action that, with or without either notice or lapse of time,\n would constitute a default under any Material Contract;\n\n 22\n\n \n (xv) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not (A) made any change in their working capital\n practices generally, including accelerating any collections of cash or\n accounts receivable or deferring payments or (B) failed to make timely\n accruals, including with respect to accounts payable and liabilities\n incurred in the ordinary course of business;\n\n (xvi) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not failed to renew (at levels consistent with\n presently existing levels), terminated or amended or failed to perform any\n of their obligations or permitted any material default to exist or caused\n any material breach under, or entered into (except for renewals in the\n ordinary course of business consistent with past practice), any material\n policy of insurance;\n\n (xvii) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not disposed of or permitted to lapse any material\n Intellectual Property;\n\n (xviii) except in the ordinary course of business consistent\n with past practice pursuant to appropriate confidentiality agreements, and\n except as required by any Law, any existing agreements set forth on\n Schedule 4.14 or as may be reasonably necessary to secure or protect\n intellectual or other property rights, Slingshot, PSI and ADMI (including,\n for this purpose, the Telecom Business (other than PSI) and the Digital\n Media Business prior to March 16, 1999) have not provided any confidential\n information regarding the Business to any Person other than Purchaser;\n \n (xix) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not waived, or agreed to waive, any right of\n material value to the Assets; or\n\n (xx) Slingshot, PSI and ADMI (including, for this purpose,\n the Telecom Business (other than PSI) and the Digital Media Business prior\n to March 16, 1999) have not changed, or agreed to change, any of their\n material business policies or practices relating to or affecting the\n Telecom Assets (including, without limitation, material production,\n advertising, marketing, pricing, purchasing, accounting, sales, returns,\n budget or product acquisition policies or practices) in any manner that\n would reasonably be expected to have a Material Adverse Effect.\n\n Section 4.9 Property; Assets.\n\n (a) Except as set forth on Schedule 4.9(a), to the knowledge of\nADMI, (x) ADMI and PSI, taken together own, or otherwise hold, and (y) after\nClosing, Purchaser will own or otherwise hold a valid leasehold interest or\nlicenses providing sufficient and legally enforceable rights to use, all of the\nproperty and assets necessary or otherwise material to the conduct of the\nTelecom Business. Except as set forth on Schedule 4.9(a), to the knowledge of\n\n 23\n\n \nADMI, (x) ADMI owns, or otherwise holds, and (y) upon the closing under the\nContribution Agreement, Slingshot will own or otherwise hold a valid leasehold\ninterest or licenses providing sufficient and legally enforceable rights to use,\nall of the property and assets necessary or otherwise material to the conduct of\nthe Digital Media Business. To the knowledge of ADMI, immediately prior to the\ntransactions contemplated by this Agreement, ADMI has good and marketable (other\nthan with respect to personal property) title to all assets reflected on the\nBalance Sheets (other than assets of PSI) that were acquired before March 16,\n1999, free and clear of all Liens, other than assets no longer used or useful in\nthe Business disposed of since the Balance Sheet Date in the ordinary course of\nbusiness consistent with past practice. To the knowledge of ADMI, immediately\nprior to the transactions contemplated by this Agreement, PSI has good and\nmarketable (other than with respect to personal property) title to all assets of\nPSI reflected on the Telecom Balance Sheet that were acquired before July 12,\n1999, free and clear of all Liens, other than assets no longer used or useful in\nthe Business disposed of since the Balance Sheet Date in the ordinary course of\nbusiness consistent with past practice. Immediately prior to the transactions\ncontemplated by this Agreement, ADMI and PSI have good and marketable (other\nthan with respect to personal property) title to all assets of ADMI and PSI\nreflected on the Balance Sheets that were acquired after March 16, 1999 (or\nafter July 12, 1999 with respect to assets of PSI reflected on the Telecom\nBalance Sheet), free and clear of all Liens, other than assets no longer used or\nuseful in the Business disposed of since the Balance Sheet Date in the ordinary\ncourse of business consistent with past practice. Such assets are generally in\ngood operating condition and repair (ordinary wear and tear excepted), and to\nthe knowledge of ADMI have been reasonably maintained consistent with standards\ngenerally followed in the industry, are suitable for their present uses and, in\nthe case of owned structures, are structurally sound.\n\n (b) Schedule 4.9(b) contains a list of all real property owned or\nleased by ADMI, Slingshot or PSI (the \"Real Property\"), indicating whether such\nproperty is owned or leased. The current use of the Real Property by ADMI,\nSlingshot or PSI does not violate the certificate of occupancy thereof or any\nlocal zoning or similar land use or other Laws and none of the structures on the\nReal Property encroaches upon real property of another Person, and no structure\nof any other Person encroaches upon any Real Property. Slingshot and ADMI have\nnot received notice of any pending or threatened condemnation proceeding, or of\nany sale or other disposition in lieu of condemnation, affecting any of the Real\nProperty. Each parcel of Real Property abuts on or has direct vehicular access\nto a public road.\n\n (c) Schedule 2.1(a) sets forth as of the Balance Sheet Date, a\ncomplete and accurate list of all furniture, equipment, automobiles and all\nother tangible personal property owned by, in the possession of, or used by ADMI\nand PSI in connection with the Telecom Business which have a book value in\nexcess of $5,000 per item. Such personal property is not held under any lease,\nsecurity agreement, conditional sales contract, or other title retention or\nsecurity arrangement or subject to any liens or encumbrances, or is located\nother than in the possession of ADMI or PSI.\n\n (d) All receivables of Slingshot, PSI or ADMI reflected on the\nBalance Sheets that arose from transactions after March 16, 1999 (or July 12,\n1999 with respect to receivables of PSI) or created after the Balance Sheet Date\narose from valid transactions in the ordinary course\n\n 24\n\n \nof business. To the knowledge of ADMI, all receivables of Slingshot, PSI or ADMI\nreflected on the Balance Sheets that arose from transactions before March 16,\n1999 (or July 12, 1999 with respect to receivables of PSI) arose from valid\ntransactions in the ordinary course of business.\n\n (e) Except as set forth on Schedule 4.9(e), by completing the\ntransactions contemplated herein Purchaser will obtain at Closing all such\nassets, tangible or intangible and contractual, license and leasehold rights\nnecessary for Purchaser (i) to operate the business of ADMI related to the\nTelephony Assets as operated on the date hereof, and (ii) to utilize the\nTelephony Assets and contractual, license and leasehold rights in the same\nmanner as they were used on the date of this Agreement. With the exception of\nthose assets used in the Business pursuant to license and leasehold rights in\nfavor of Slingshot, PSI or ADMI, as of the date hereof (A) all of the assets\nused in the Businesses and acquired since March 16, 1999 (or July 12, 1999 with\nrespect to receivables of PSI) are owned by Slingshot, PSI or ADMI and none are\nowned by any other party, and (B) to the knowledge of ADMI, all other assets\nused in the Business are owned by Slingshot, PSI or ADMI and none are owned by\nany other party.\n\n (f) The Assets identified on Schedule 2.1(a) include (i) all\nmachinery or equipment, including without limitation, computer hardware, with an\noriginal market value in excess of $25,000 used to conduct the Telecom Business,\ntogether with the date of acquisition of each piece of Equipment and the\nlocation of each piece of Equipment and (ii) all material software and computer\nprograms used in the Telecom Business, including any Computer Programs not\nwholly owned by Slingshot, PSI or ADMI (\"Third Party Software\") imbedded\ntherein, in machine readable source code forms and in machine executable object\ncode forms and all related specifications (including, without limitation, all\nlogic architectures, algorithms and logic flows and all physical, functional,\noperating and design parameters, operation systems and procedures (including\ndevelopmental methodology), designs, design revisions, related application\nsoftware in any language, concepts, ideas, processes, techniques, software\ndesign and test tools, Third Party Software interfaces, methods of\nimplementation and packaging, all associated know-how and show-how and all\nrelated programmer and user manuals, which are used by Slingshot, PSI and ADMI\nto install, operate, maintain, correct, test, repair, enhance, extend, modify,\nprepare derivative works based upon design and develop software and computer\nprograms.\n\n (g) Subject to Section 2.4 and except for changes resulting from\nany \"change of control of PSI,\" after giving effect to the transactions\ncontemplated by the Contribution Agreement, the Operating Agreement and the\nSubscription Agreement (i) Qwest will hold, free and clear of any Liens created\n(or knowingly suffered to exist) by ADMI, all right, title and interest to the\nTelecom Assets and (ii) Slingshot will hold, free and clear of any Liens created\nby (or knowingly suffered to exist) ADMI, all right, title and interest to the\nSlingshot Assets held by ADMI.\n\n Section 4.10 Litigation and Claims; Compliance with Laws.\n\n (a) Schedule 4.10(a) sets forth all Litigation against ADMI,\nSlingshot and PSI as of the date hereof that arose on or after March 16, 1999\n(or July 12, 1999, in the case of\n\n 25\n\n \nLitigation relating to PSI), and, to the knowledge of ADMI, prior to March 16,\n1999 (or July 12, 1999, in the case of Litigation relating to PSI) and all\nLitigation with respect to the Business including the name of the claimant, the\ndate of the alleged act or omission, a detailed narrative as to the nature of\nthe alleged act or omission, the date the matter was referred to an insurance\ncarrier (if referred) of ADMI, Slingshot or PSI, as the case may be, the\nestimated amount of exposure, the amount ADMI, Slingshot or PSI has reserved, or\nthe amount of ADMI's, Slingshot's or PSI's claim and estimated expenses of ADMI,\nSlingshot or PSI in connection with such matters. Except as set forth in\nSchedule 4.10(a), there is no Litigation that arose on or after March 16, 1999\n(or July 12, 1999, in the case of Litigation relating to PSI), or, to the\nknowledge of ADMI, that arose prior to March 16, 1999 (or July 12, 1999, in the\ncase of Litigation relating to PSI) that is not fully covered by the insurance\npolicies referenced in Section 4.12. Since March 16, 1999 (or July 12, 1999, in\nthe case of PSI), and, to the knowledge of ADMI, prior to March 16, 1999 (or\nJuly 12, 1999, in the case of Litigation relating to PSI), and except as set\nforth on Schedule 4.10(a), (i) Slingshot, ADMI, PSI and the Assets have not been\nsubject to any order, consent decree, settlement or similar agreement with any\nGovernmental Authority (ii) there has not been any judgment, injunction, decree,\norder or other determination of an arbitrator or Governmental Authority\nspecifically applicable Slingshot, ADMI, PSI or the Assets (iii) no Litigation\nis pending relating to alleged unlawful discrimination or sexual harassment and\n(iv) no Litigation has arisen that seeks to prevent consummation of the\ntransactions contemplated hereby or that seeks material damages in connection\nwith the transactions contemplated hereby.\n\n (b) Except as set forth in Schedule 4.10(b), to the knowledge of\nADMI, prior to March 16, 1999 (or July 12, 1999, in the case of PSI), Slingshot,\nPSI and ADMI were in compliance with all Laws applicable to them and the\nBusiness except where the failure to be in compliance would not reasonably be\nexpected to have a Material Adverse Effect. Except as set forth in Schedule\n4.10(b), since March 16, 1999 (or July 12, 1999, in the case of PSI), Slingshot,\nPSI and ADMI have complied and are in compliance with all Laws applicable to\nthem and the Business except where the failure to be in compliance would not\nreasonably be expected to have a Material Adverse Effect. Except as set forth in\nSchedule 4.10(b) and except for the filings contemplated by Section 4.6, (i) to\nthe knowledge of ADMI, Slingshot, PSI and ADMI hold all material licenses,\npermits and other authorizations of Governmental Authorities necessary to\nconduct the Business as now being conducted or, under currently applicable Laws,\nto continue to conduct the Business as now being conducted and (ii) there is no\nintent on the part of Slingshot, PSI or ADMI to make any changes in the conduct\nof the Business that will result in or cause Slingshot, PSI or ADMI to be in\nnoncompliance with applicable Laws or that will require changes in or a loss of\nany such licenses, permits or other authorizations or an increase in any\nexpenses related thereto except where such noncompliance, change, loss or\nincrease would not reasonably be expected to have a Material Adverse Effect.\nSuch licenses, permits and other authorizations as aforesaid held by ADMI are,\nto the knowledge of ADMI, valid and in full force and effect, and, since March\n16, 1999, there have not been any (a) Actions pending, or to the knowledge of\nADMI, threatened or (b) Investigations, to the knowledge of ADMI, pending or\nthreatened that could result in the termination, impairment or nonrenewal\nthereof.\n\n Section 4.11 Taxes. (a) Slingshot, PSI and ADMI have (i) timely filed or\ncaused to be filed with the appropriate federal, state and local Governmental\n\n 26\n\n \nAuthority all Tax Returns required to be filed (taking into account any\nextensions) with respect to any period ending on or after March 16, 1999 (or\nJuly 12, 1999 with respect to Tax Returns required to be filed by PSI) and each\nsuch Tax Return is true, complete and correct in all material respects, and (ii)\nto the knowledge of ADMI, timely filed or caused to be filed with the\nappropriate federal, state and local Governmental Authority all Tax Returns\nrequired to be filed (taking into account any extensions) with respect to any\nperiod ending on or before March 16, 1999 (or July 12, 1999 with respect to Tax\nReturns with respect to PSI) and each such Tax Return is true, complete and\ncorrect in all material respects. All Taxes payable by Slingshot, ADMI or, to\nthe knowledge of ADMI, PSI, shown to be due on such Tax Returns, all such Taxes\narising from or attributable to the Assets or any other assets of Slingshot,\nADMI or PSI, required to be paid by Slingshot, ADMI or, to the knowledge of\nADMI, PSI, and all Taxes payable by Slingshot, ADMI or, to the knowledge of\nADMI, PSI, arising from or attributable to the Assets or any other assets of\nSlingshot ADMI or PSI required to be withheld by or with respect to Slingshot,\nADMI or, to the knowledge of ADMI, PSI have been timely paid or, if applicable,\nwithheld and paid to the appropriate Governmental Authority.\n\n (b) Since March 16, 1999 (or July 12, 1999 with respect to PSI), and to\nthe knowledge of ADMI, prior to such dates: (i) Slingshot, PSI and ADMI have\nreceived no notice of any deficiencies or assessment of Taxes from any taxing\nauthority with respect to or attributable to the Assets or any other assets of\nSlingshot, PSI or ADMI in such amounts as would in the aggregate have a Material\nAdverse Effect; (ii) Slingshot, PSI and ADMI have received no notice of any\nongoing audits or examinations of any of the Tax Returns relating to or\nattributable to the Assets or any other assets of Slingshot, PSI or ADMI; (iii)\nSlingshot, PSI and ADMI have not granted any requests, agreements, consents or\nwaivers to extend the statutory period of limitations applicable to the\nassessment of any Taxes with respect to or attributable to the Assets or any\nother assets of Slingshot, PSI or ADMI; and (iv) Slingshot, PSI and ADMI have\nnot become aware of any material issue with respect to or attributable to the\nAssets or any other assets of ADMI and PSI that could be raised by any\nGovernmental Authority.\n\n Section 4.12 Insurance. Schedule 4.12 sets forth a complete and accurate\nlist as of the date hereof of all primary, excess and umbrella policies, bonds\nand other forms of insurance owned or held by or on behalf of or providing\ninsurance coverage to Slingshot, ADMI and, to the knowledge of ADMI, PSI (or\ntheir officers, salespersons, agents or employees or Persons acting in a similar\ncapacity) and the extent, if any, to which the limits of liability under such\npolicies have been exhausted. Slingshot, ADMI and PSI, have in effect motor\nvehicle and comprehensive general liability insurance and workers' compensation\ninsurance covering the Business and fire and extended coverage insurance with\nrespect to the properties and assets of Slingshot ADMI and PSI. True and\ncomplete copies of such policies of Slingshot, ADMI and PSI have been previously\nprovided to Purchaser. All such policies of Slingshot, ADMI and PSI, are in full\nforce and effect and all such policies in such amounts will be outstanding and\nin full force and effect without interruption until the Closing. Slingshot, ADMI\nand PSI have not received (since July 12, 1999, in the case of PSI) notice of\ndefault under any such policy, nor has it received written notice of any pending\nor threatened termination or cancellation, coverage limitation or reduction, or\nmaterial premium increase with respect to any such policy. Schedule 4.12 sets\nforth a complete and accurate summary of all of the self-insurance coverage\nprovided \n\n 27\n\n \nby Slingshot, ADMI and, to the knowledge of ADMI, PSI. Except as set forth on\nSchedule 4.12, no letters of credit have been posted and no cash has been\nrestricted to support any reserves for insurance on the Balance Sheets.\n\n Section 4.13 Environmental Matters.\n\n (a) Except as specified on Schedule 4.13, since March 16, 1999\n(or July 12, 1999, in the case of PSI), Slingshot, ADMI and PSI, (i) have been\nand are in compliance with and have incurred no liability under the\nEnvironmental Laws (which compliance includes the possession by each of\nSlingshot, ADMI and PSI of all Environmental Permits and other governmental\nauthorizations required under applicable Environmental Laws, and compliance with\nthe terms and conditions thereof), except for such non-compliance and liability\nwhich would not reasonably be expected to have a Material Adverse Effect, and\n(ii) have not received any communication from any Person or Governmental\nAuthority alleging that Slingshot, ADMI or PSI is not in such compliance. Except\nas specified on Schedule 4.13, there are no present (or, to the knowledge of\nADMI, past or anticipated) actions, activities, circumstances, conditions,\nevents or incidents that may prevent or interfere with such compliance in the\nfuture. All Environmental Permits maintained by Slingshot, ADMI, or to the\nknowledge of ADMI, PSI, are identified on Schedule 4.13. The execution and\ndelivery by Slingshot and ADMI of this Agreement do not, and the consummation of\nthe transactions contemplated hereby will not, violate, or result in the\nviolation of, or default (with or without notice or lapse of time, or both)\nunder, any provision of, or result in the termination or acceleration of, or\ngive rise to a right of termination or acceleration of or the loss of any\nbenefit under, any material Environmental Permit applicable to Slingshot, ADMI,\nor, to the knowledge of ADMI, PSI, or any of the Assets, other than those\nviolations, defaults, terminations, accelerations or rights which would not\nindividually or in the aggregate reasonably be expected to have a Material\nAdverse Effect.\n\n (b) No transfers of Environmental Permits, no additional\nEnvironmental Permits, and no notifications to, filings with or approval of any\nGovernmental Authority, will be required to permit the conduct of the business\nof Slingshot and ADMI and, to the knowledge of ADMI, PSI, in compliance with all\napplicable Environmental Laws immediately following the Closing Date as\nconducted immediately prior to the Closing Date.\n\n (c) Since March 16, 1999 (or July 12, 1999, in the case of PSI)\nand, to the knowledge of ADMI, between December 31, 1998 and March 15, 1999 (or\nbetween December 31, 1998 and July 11, 1999 in the case of PSI) no Environmental\nClaims (other than investigations) have been filed and are pending against\nSlingshot, ADMI or to the knowledge of ADMI, PSI, and no Environmental Claims,\nto the knowledge of ADMI, are threatened against Slingshot, PSI or ADMI. To the\nknowledge of ADMI, except as specified on Schedule 4.13, there are no\nEnvironmental Claims (including investigations) pending or threatened against\nany Person or entity whose liability for any Environmental Claim Slingshot, ADMI\nor PSI has or may have retained or assumed either contractually or by operation\nof law.\n\n (d) Except as specified on Schedule 4.13, to the knowledge of\nADMI, there are no past or present actions, activities, circumstances,\nconditions, events or incidents, including\n\n 28\n\n \nthe Release or presence of any Hazardous Materials, that would reasonably be\nexpected to form the basis of any Environmental Claim against Slingshot, ADMI or\nPSI or against any Person or entity whose liability for any Environmental Claim\nSlingshot, ADMI or PSI has or may have retained or assumed either contractually\nor by operation of law.\n\n (e) Except as specified on Schedule 4.13, Slingshot and ADMI have\nnot, and since July 12, 1999, PSI has not, and to the knowledge of ADMI, no\nother Person has, placed, stored, deposited, discharged, buried, dumped,\ngenerated or disposed or caused the Release of (collectively, \"Managed\") any\nHazardous Materials at, on, beneath or adjacent to any Real Property or other\nproperty formerly owned, operated or leased by Slingshot or ADMI or any\npredecessor of Slingshot or ADMI, or to the knowledge of ADMI any property\nformerly owned, operated or leased by PSI or any predecessor of PSI, except for\nsuch Hazardous Materials Managed in the ordinary course of business (which\nHazardous Materials, if any, were and are Managed in accordance with applicable\nEnvironmental Laws).\n\n (f) ADMI has delivered or made available copies and results of\nany reports, studies, analyses, tests or monitoring received by ADMI from the\nSpeer Sellers pertaining to Hazardous Materials in, on, beneath or adjacent to\nany Real Property relating to compliance with applicable Environmental Laws or\nregarding a Cleanup, an Environmental Claim or an Environmental Liability. A\nlist of all such documents is set forth on Schedule 4.13.\n\n (g) Since March 16, 1999 (or July 12, 1999, in the case of PSI),\nno Real Property, and no property to which Hazardous Materials originating on or\nfrom such properties or the Assets has been sent for treatment, storage, or\ndisposal, has been listed or has been proposed to be listed on the National\nPriorities List or CERCLIS or on any other governmental database or list of\nproperties that may or do require investigation or cleanup under Environmental\nLaws. To the knowledge of ADMI, prior to March 16, 1999 (or July 12, 1999, in\nthe case of PSI), no such property was so listed or proposed to be listed on the\nNational Priorities List or CERCLIS or on any other governmental database or\nlist of properties that may or do require investigation or cleanup under\nEnvironmental Laws. All locations at which Slingshot, ADMI or PSI has itself\ndisposed of any Hazardous Materials since March 16, 1999 (or July 12, 1999, in\nthe case of PSI), or of which Slingshot, ADMI or PSI has written notice of the\ndisposal of any Hazardous Materials by any third party on their behalf since\nMarch 16, 1999 (or July 12, 1999, in the case of PSI) are listed in Schedule\n4.13. To the knowledge of ADMI, all locations at which any Person has itself\ndisposed of any Hazardous Materials on or prior to March 16, 1999 (or July 12,\n1999, in the case of PSI) for which Slingshot, ADMI or PSI has or may have\nretained or assumed contractually or by law or of which Slingshot, ADMI or PSI\nhas received written notice of the disposal of any Hazardous Materials by any\nthird party on their behalf on or prior to March 16, 1999 (or July 12, 1999, in\nthe case of PSI), are listed in Schedule 4.13.\n\n Section 4.14 Material Contracts.\n\n (a) Schedule 4.14(a) lists (without duplication) each of the\nfollowing contracts and other agreements (or, in the case of oral contracts,\nsummaries thereof) to which Slingshot, \n\n 29\n\n \nPSI or ADMI is a party or by or to which Slingshot, PSI or ADMI or any of their\nassets or properties is bound or subject (such contracts and agreements being\n\"Material Contracts\"):\n\n (i) any advertising, market research and other marketing\n agreements that require future payments of in excess of $25,000 per year;\n\n (ii) any employment, severance, non-competition, consulting\n or other agreements of any nature with any current or former stockholder,\n partner, officer or employee of Slingshot, PSI or ADMI, other than\n employment agreements with any officer or employee whose annual salary\n compensation is less than $100,000;\n\n (iii) any agreements relating to the making of any loan or\n advance by Slingshot or PSI that require a payment of in excess of $25,000\n per year or concern assets valued in excess of $50,000;\n\n (iv) any agreements providing for the indemnification by\n Slingshot, PSI or ADMI of any Person that require a payment of in excess of\n $25,000 per year or concern assets valued in excess of $25,000, other than\n agreements providing for the indemnification of directors, officers,\n employees or agents of Slingshot, PSI or ADMI entered into in the ordinary\n course of business;\n\n (v) any agreements with any Governmental Authority except\n those entered into in the ordinary course of business which are not\n material to Slingshot, PSI, ADMI or the Assets;\n\n (vi) all (A) supplier contracts and any other contracts,\n agreements and other arrangements for the sale of assets or for the\n furnishing to Slingshot, ADMI or PSI, of services, goods or products (I)\n with firm commitments having a value in excess of $50,000 or (II) having a\n remaining term which is greater than eight months and which is not\n terminable by Slingshot, PSI or ADMI on less than 90 days' notice without\n the payment of any termination fee or similar payment, and (B) all customer\n contracts with a remaining value in excess of $500,000;\n\n (vii) any broker, reseller, vendor, dealer, representative\n or agency agreements that require a payment of or generate revenues in\n excess of $25,000 per year or concern assets valued in excess of $25,000;\n\n (viii) any agreements (including settlement agreements)\n currently in effect pursuant to which Slingshot, PSI or ADMI licenses the\n right to use any Intellectual Property of Slingshot, PSI or ADMI to any\n Person or from any Person, and research and development agreements;\n\n (ix) any confidentiality agreements entered into by\n Slingshot, PSI or ADMI pursuant to which confidential information has been\n provided to a third party or by which Slingshot, PSI or ADMI was restricted\n from providing information to third\n\n 30\n\n \n parties, other than those entered into the ordinary course of business\n relating to the Business or the Assets;\n\n (x) any voting trust or similar agreements relating to any of\n the Ownership Interests to which Slingshot or ADMI is a party;\n\n (xi) any leases of Real Property that require a payment of or\n generate revenues in excess of $25,000 per year or concern assets valued in\n excess of $50,000;\n\n (xii) any joint venture, partnership or similar documents or\n agreements;\n\n (xiii) any agreements that limit or purport to limit the ability\n of Slingshot, PSI or ADMI to own, operate, sell, transfer, pledge or\n otherwise dispose of any assets valued in excess of $25,000; and\n\n (xiv) all other agreements, contracts or commitments not made in\n the ordinary course of business which are material to ADMI or PSI.\n\n (b) Each Material Contract entered into by Slingshot or ADMI since\nMarch 16, 1999 and by PSI since July 12, 1999 is legal, valid and binding and\nenforceable against Slingshot, PSI or ADMI, as the case may be, and, to the\nknowledge of ADMI, the other parties thereto, and is in full force and effect.\nTo the knowledge of ADMI, each Material Contract relating to the Telecom\nBusiness that was assigned to ADMI by the Speer Sellers pursuant to the Speer\nPurchase Agreement is legal, valid and binding on and enforceable against ADMI\nand the other parties thereto, and is in full force and effect. To the knowledge\nof ADMI, each Material Contract relating to the Digital Media Business that was\nassigned to ADMI by the Speer Sellers pursuant to the Speer Purchase Agreement\nhas been duly assigned to Slingshot pursuant to the Contribution Agreement and\nis legal, valid and binding on and enforceable against Slingshot and the other\nparties thereto, and is in full force and effect. Upon consummation of the\ntransactions contemplated by this Agreement, each Material Contract shall remain\nin full force and effect without any loss of benefits thereunder and without the\nneed to obtain the consent of any party thereto to the transactions contemplated\nby this Agreement, other than those contracts and agreements specified on\nSchedule 4.14(b) and notice to, and consent of, landlords under certain leases\nof Real Property. Slingshot and ADMI are not, and to the knowledge of ADMI, PSI\nis not (and with the giving of notice or lapse of time would not be) in material\nbreach of, or material default under, any Material Contract and no other party\nthereto is in material breach of, or material default under, any Material\nContract. Neither Slingshot nor ADMI has received, and since July 12, 1999, PSI\nhas not received, any written notice that any Material Contract is not\nenforceable against any party thereto, that any Material Contract has been\nterminated before the expiration of its term or that any party to a Material\nContract intends to terminate such Material Contract prior to the termination\ndate specified therein, or that any other party is in breach of, or default\nunder, any Material Contract. True and complete copies of all Material Contracts\nor, in the case of oral agreements, if any, written summaries thereof have been\nmade available to Purchaser.\n\n Section 4.15 Intellectual Property.\n\n 31\n\n \n (a) Slingshot is or will be as of the Closing the sole and exclusive\nowner of, or has or will have as of the Closing the valid right to use the\nIntellectual Property of ADMI acquired, to the knowledge of ADMI, from the Speer\nSellers relating to the Digital Media Business free and clear of all Liens.\nADMI, or, to the knowledge of ADMI, PSI, is the sole and exclusive owner of, or\nhas the valid right to use the Intellectual Property of ADMI or PSI or acquired\nfrom the Speer Sellers relating to the Telecom Business free and clear of all\nLiens. Schedule 4.15 sets forth a complete and accurate list (including\nIntellectual Property that Slingshot, ADMI or PSI is the owner or licensee\nthereof) of all (i) patents and patent applications, (ii) trademark or service\nmark registrations and applications, (iii) copyright registrations and\napplications, and (iv) material unregistered copyrights, service marks,\ntrademarks and trade names, each as owned or licensed by Slingshot, ADMI or, to\nthe knowledge of ADMI, PSI. Slingshot, ADMI or PSI currently is listed in the\nrecords of the appropriate United State, state or foreign agency as the sole\nowner of record for each owned application and registration listed on Schedule\n4.15.\n\n (b) To the knowledge of ADMI, the Intellectual Property registrations\nlisted on Schedule 4.15 are valid and subsisting, in full force and effect in\nall material respects, and have not been canceled, expired or abandoned. Except\nas set forth on Schedule 4.15, there is no pending, existing, or to the\nknowledge of ADMI, threatened, opposition, interference, cancellation proceeding\nor other legal or governmental proceeding before any court or registration\nauthority in any jurisdiction against the Intellectual Property registrations\nlisted on Schedule 4.15. To the knowledge of ADMI, there is no pending, existing\nor threatened opposition, interference, cancellation proceeding or other legal\nor governmental proceeding before any court or registration authority in any\njurisdiction against any of the Intellectual Property.\n\n (c) Schedule 4.15 lists all of the Computer Programs other than off-\nthe-shelf applications that are owned, licensed, leased or otherwise used by\nSlingshot, ADMI or, to the knowledge of ADMI, PSI, in connection with the\noperation of the Business as currently conducted, and identifies which is owned,\nlicensed, leased, or otherwise used, as the case may be. Each Computer Program\nlisted on Schedule 4.15 is either (i) owned by Slingshot, ADMI or PSI, (ii)\ncurrently in the public domain or otherwise available to Slingshot, ADMI or PSI\nwithout the license, lease or consent of any third party, or (iii) used under\nrights granted to Slingshot, ADMI or PSI pursuant to a written agreement,\nlicense or lease from a third party, which written agreement, license or lease\nis identified on Schedule 4.15. Slingshot, ADMI and PSI use the Computer\nPrograms set forth on Schedule 4.15 in connection with the operation of their\nbusinesses as conducted on the date hereof and such use does not to the\nknowledge of ADMI violate the rights of any third party. Except for Third Party\nSoftware, all Computer Programs set forth in Schedule 4.15 were either developed\nby (x) employees of Slingshot, ADMI, PSI or the Speer Sellers within the scope\nof their employment, (y) third parties as \"work-made-for-hire\", as that term is\ndefined under Section 101 of the United States copyright laws, pursuant to\nwritten agreements or (z) independent contractors who have assigned their rights\nto Slingshot, ADMI or PSI pursuant to written agreements.\n\n 32\n\n \n (d) Schedule 4.15 sets forth a complete and accurate list of all\nmaterial agreements pertaining to the use of or granting any right to use or\npractice any rights under any Intellectual Property of Slingshot, ADMI or, to\nthe knowledge of ADMI, PSI, whether Slingshot, ADMI or PSI is the licensee or\nlicensor thereunder (the \"Licenses\") and any written settlements or assignments\nrelating to any such Intellectual Property. To the knowledge of ADMI, the\nLicenses are valid and binding obligations of each party thereto, enforceable\nagainst each such party in accordance with their terms, and there are no\nbreaches or defaults by Slingshot, ADMI or PSI under any Licenses.\n\n (e) To the knowledge of ADMI, no trade secret or confidential know-\nhow material to the business of Slingshot, PSI or ADMI as currently operated has\nbeen disclosed or authorized to be disclosed to any third party, other than\npursuant to a non-disclosure agreement that protects the proprietary interests\nof Slingshot, PSI or ADMI, as the case may be, in and to such trade secrets and\nconfidential know-how.\n\n (f) To the knowledge of ADMI, the conduct of the Business does not\ninfringe upon any intellectual property right owned or controlled by any third\nparty and no third party is infringing upon any Intellectual Property owned by\nSlingshot, PSI or ADMI and no such claims have been made against a third party\nby Slingshot, PSI or ADMI. Except as set forth on Schedule 4.15, there are no\nclaims or suits pending or, to the knowledge of ADMI, threatened, and, since\nMarch 12, 1999 (or July 12, 1999, in the case of PSI) Slingshot, PSI and ADMI\nhave not received any written notice of a third party claim or suit (x) alleging\nthat Slingshot's, PSI's or ADMI's activities or the conduct of their businesses\ninfringes upon or constitutes the unauthorized use of the proprietary rights of\nany third party, or (y) challenging the ownership, use, validity or\nenforceability of the Intellectual Property.\n\n (g) There are no settlements, consents, judgments or orders or other\nagreements that restrict the rights of Slingshot or ADMI, or to the knowledge of\nADMI, PSI to use any Intellectual Property of Slingshot, ADMI or PSI, or other\nagreements that restrict the rights of Slingshot or ADMI, or to the knowledge of\nADMI, PSI to use any Intellectual Property owned by Slingshot, ADMI or PSI.\n\n (h) The consummation of the transactions contemplated hereby will not\n(i) result in the loss or impairment of the right of Purchaser or its successors\nto own or use any of the Intellectual Property of ADMI or, to the knowledge of\nADMI, PSI that is included within the Telecom Assets, (ii) result in the loss or\nimpairment of the right of Slingshot or its successors to own or use any of the\nother Intellectual Property of ADMI or Slingshot currently owned or used by\nSlingshot or (iii) require the consent of any Governmental Authority or third\nparty in respect of any such Intellectual Property of Slingshot, ADMI or, to the\nknowledge of ADMI, PSI and no present or former employee, or officer of\nSlingshot, ADMI, or to the knowledge of ADMI, PSI has any right, title, or\ninterest, directly or indirectly, in whole or in part, in any Intellectual\nProperty.\n\n Section 4.16 Employee Benefits; ERISA. (a) Except as set forth on \nSchedule 4.16(a), since March 16, 1999 none of Slingshot, ADMI nor any trade or\nbusiness, whether or \n\n 33\n\n \nnot incorporated (an \"ERISA Affiliate\"), that together with Slingshot or ADMI\nwould be deemed a \"single employer\" within the meaning of Section 4001(b)(1) of\nERISA has sponsored or contributed to, or has been required to contribute to,\nany \"employee benefit plan,\" as defined by Section 3(3) of ERISA, or any other\nplan, program or arrangement, including without limitation any \"multiemployer\nplan,\" as such term is defined in Section 3(37) of ERISA, for the benefit of,\nrelating to or with any employee of any Person.\n\n (b)(1) Schedule 4.16(b) contains a complete list of all material\n written bonus, vacation, deferred compensation, pension, retirement, \n profit-sharing, thrift, savings, employee stock ownership, stock bonus,\n stock purchase, restricted stock and stock option plans, employment or\n severance contracts, medical, dental, disability, health and life insurance\n plans, and other employee benefit and fringe benefit plans or other\n contracts maintained or contributed to by PSI or any of its Subsidiaries\n for the benefit of officers, former officers, employees, former employees,\n directors, former directors, or the beneficiaries of any of the foregoing,\n or pursuant to which PSI or any of its Subsidiaries may have any liability\n that are contracts with, or plans maintained primarily for the benefit of,\n individuals employed or rendering services in the United States and are not\n multiemployer plans within the meaning of Section 4001(a)(3) of ERISA\n (collectively (whether or not material), the \"PSI Compensation and Benefit\n Plans\").\n\n (2) ADMI has delivered to Purchaser copies of all PSI Compensation\n and Benefit Plans listed on Schedule 4.16(b), including, but not limited\n to, all amendments thereto, and all of such copies that have been delivered\n are true and correct.\n\n (3) To the knowledge of ADMI, each of the PSI Compensation and\n Benefit Plans has been and is being administered in accordance with the\n terms thereof and all applicable Laws. To the knowledge of ADMI, each\n \"employee pension benefit plan\" within the meaning of Section 3(2) of ERISA\n (each such plan, a \"Pension Plan\") included in the PSI Compensation and\n Benefit Plans (a \"PSI Pension Plan\") that is intended to be qualified under\n Section 401(a) of the Code has received a favorable determination letter\n from the Internal Revenue Service, and ADMI is not aware of any\n circumstances which could result in the revocation or denial of any such\n favorable determination letter. To the knowledge of ADMI, no material\n \"prohibited transaction,\" within the meaning of Section 4975 of the Code or\n Section 406 of ERISA, has occurred with respect to any PSI Compensation and\n Benefit Plan. There is no pending or, to ADMI's knowledge, threatened\n Litigation relating to any of PSI Compensation and Benefit Plans.\n\n (4) To the knowledge of ADMI, no material liability under Title IV\n of ERISA has been or is reasonably expected to be incurred by PSI or any of\n its Subsidiaries or any entity which is considered one employer with PSI\n under Section 4001(a)(15) of ERISA or Section 414 of the Code (any such\n entity, a \"PSI\n\n 34\n\n \n ERISA Affiliate\"), other than such liabilities that have previously been\n satisfied. To the knowledge of ADMI, no notice of a \"reportable event,\"\n within the meaning of Section 4043 of ERISA, for which the 30-day reporting\n requirement has not been waived, has been required to be filed for any PSI\n Pension Plan or by any PSI ERISA Affiliate within the past 12 months.\n\n (5) To the knowledge of ADMI, all contributions, premiums and\n payments required to be made under the terms of any PSI Compensation and\n Benefit Plan have been made, except where the failure to do so does not,\n individually or in the aggregate, have a Material Adverse Effect on PSI. To\n the knowledge of ADMI, neither any PSI Pension Plan nor any single-employer\n plan of a PSI ERISA Affiliate has an \"accumulated funding deficiency\"\n (whether or not waived) within the meaning of Section 412 of the Code or\n Section 302 of ERISA. To the knowledge of ADMI, neither PSI nor any of its\n Subsidiaries has provided, or is required to provide, security to any PSI\n Pension Plan or to any single-employer plan of a PSI ERISA Affiliate\n pursuant to Section 401(a)(29) of the Code.\n\n (6) To the knowledge of ADMI, under each PSI Pension Plan that is a\n defined benefit plan, as of the last day of the most recent plan year ended\n prior to the date hereof, the actuarially determined present value of all\n \"benefit liabilities,\" within the meaning of Section 4001(a)(16) of ERISA\n (as determined on the basis of the actuarial assumptions contained in such\n PSI Pension Plan's most recent actuarial valuation) did not exceed the then\n current value of the assets of such PSI Pension Plan, and there has been no\n adverse change in the financial condition of such PSI Pension Plan (with\n respect to either assets or benefits) since the last day of the most recent\n plan year.\n\n (7) Neither PSI nor any of its Subsidiaries contributes to or is\n required to contribute to any multiemployer plan within the meaning of\n Section 4001(c)(3) of ERISA (\"PSI Multiemployer Plan\"). To the knowledge of\n ADMI, neither PSI nor any of its Subsidiaries has incurred any material\n withdrawal liability (within the meaning of Section 4201 of ERISA) under\n any PSI Multiemployer Plan within the past 5 years that has not been\n satisfied, nor could any such material withdrawal liability reasonably be\n expected to be incurred.\n\n (8) To the knowledge of ADMI, except as set forth in the PSI\n Compensation and Benefit Plans listed in Schedule 4.16(b), the execution\n of, and performance of the transactions contemplated in, this Agreement\n will not (either alone or upon the occurrence of any additional or\n subsequent events):\n\n (A) constitute an event under any PSI Compensation and\n Benefit Plan, trust or loan that will or may result in any\n payment (whether of severance pay or otherwise),\n acceleration, forgiveness of indebtedness, vesting,\n distribution, increase in\n\n 35\n\n \n benefits or obligation to fund benefits with respect to any\n officers and directors of PSI;\n\n (B) result in any payment or benefit that will or may\n be made by PSI, any of its Subsidiaries or any of their\n respective affiliates that will be characterized as an\n \"excess parachute payment,\" within the meaning of Section\n 280G(b)(1) of the Code; or\n\n (C) provide for any payment to any employee or\n independent contractor of PSI that is not deductible under\n Section 162(a)(1) or 404 of the Code.\n\n (9) To the knowledge of ADMI, the contributions of PSI and any of\n its Subsidiaries to any trust described in Section 501(c)(9) of the Code\n have complied with Section 419A of the Code.\n \n (10) To the knowledge of ADMI, neither PSI nor its Subsidiaries have\n any obligations for retiree health and life benefits under any PSI\n Compensation and Benefit Plan, except as set forth in Schedule 4.16(b). To\n the knowledge of ADMI, PSI or its Subsidiaries may amend or terminate any\n such plan under the terms of such plan at any time without incurring any\n material liability thereunder.\n\n (11) Anything in this Agreement to the contrary notwithstanding the\n representations and warranties set forth in this Section 4.16(b) shall not,\n to the extent that they relate to any facts, events or circumstances prior\n to July 12, 1999, survive the Closing and to such extent shall not be\n subject to the indemnification provisions of Article IX.\n\n Section 4.17 Labor Matters. Except as set forth on Schedule 4.17, (i)\nthere is no labor strike, dispute, slowdown, stoppage or lockout actually\npending, or to the knowledge of ADMI, threatened against or affecting Slingshot,\nPSI or ADMI, (ii) Slingshot and ADMI are not, and to the knowledge of ADMI, PSI\nis not party to or bound by any collective bargaining or similar agreement with\nany labor organization, or work rules or practices agreed to with any labor\norganization or employee association applicable to employees of Slingshot, PSI\nor ADMI, (iii) none of the employees of Slingshot or ADMI or to the knowledge of\nADMI, PSI is represented by any labor organization and ADMI has no knowledge of\nany union organizing activities among the employees of Slingshot, PSI and ADMI\nsince March 16, 1999 (or July 12, 1999, in the case of PSI), nor does any\nquestion concerning representation exist concerning such employees, (iv)\nSlingshot, ADMI and PSI are, and have been at all times since March 16, 1999 (or\nJuly 12, 1999, in the case of PSI), in compliance, in all material respects,\nwith all applicable Laws respecting employment and employment practices, terms\nand conditions of employment, wages, hours of work and occupational safety and\nhealth, and are not engaged in any unfair labor practices as defined in the\nNational Labor Relations Act or other applicable Laws, (v) there is no unfair\nlabor practice charge or complaint against Slingshot, ADMI or , to the knowledge\nof ADMI, PSI pending or, to the knowledge of ADMI,\n\n 36\n\n \nthreatened before the National Labor Relations Board or any similar state or\nforeign agency, (vi) to the knowledge of ADMI, no charges with respect to or\nrelating to Slingshot, PSI or ADMI are pending before the Equal Employment\nOpportunity Commission or any other agency responsible for the prevention of\nunlawful employment practices, (vii) since March 16, 1999 (or July 12, 1999, in\nthe case of PSI), Slingshot, ADMI and PSI have not received a notice of the\nintent of any federal, state, local or foreign agency responsible for the\nenforcement of labor or employment Laws to conduct an investigation with respect\nto or relating to Slingshot, PSI or ADMI and, to the knowledge of ADMI, no such\ninvestigation is in progress, and (x) there are no complaints, lawsuits or other\nproceedings pending or, to the knowledge of ADMI, threatened in any forum by or\non behalf of any present or former employee of Slingshot, ADMI or, to the\nknowledge of ADMI, PSI, any applicant for employment or classes of the foregoing\nalleging breach of any express or implied contract or employment, any Laws\ngoverning employment or the termination thereof or other discriminatory,\nwrongful or tortious conduct in connection with the employment relationship.\n\n Section 4.18 Records.\n\n (a) The record books of Slingshot contain complete and accurate\nrecords of all actions taken by the management committee of Slingshot. Complete\nand accurate copies of all such minute books have been made available to\nPurchaser. All officers of Slingshot have been properly elected.\n\n (b) The accounting books and records of each of Slingshot and\nADMI are complete and correct, have been maintained in accordance with\napplicable Laws and good business practices and accurately reflect the basis for\nthe financial condition and results of operations of Slingshot and ADMI set\nforth in the financial statements of Slingshot and ADMI.\n\n (c) The record books of PSI contain complete and accurate records\nof all actions taken by the board of directors and stockholders of PSI since\nJuly 12, 1999 and, to the knowledge of ADMI, prior to July 12, 1999. Copies of\nall such minute books have been made available to Purchaser. All officers of PSI\nhave been properly elected.\n\n (d) With respect to all entries made since July 12, 1999, and, to\nthe knowledge of ADMI, with respect to entries made prior to July 12, 1999, the\naccounting books and records of PSI are complete and correct, have been\nmaintained in accordance with applicable Laws and good business practices and\naccurately reflect the basis for the financial condition and results of\noperations of PSI set forth in the financial statements of PSI.\n\n Section 4.19 Affiliate Transactions.\n\n (a) Schedule 4.19 lists all agreements, arrangements and currently\nproposed agreements and arrangements that have been entered into since March 16,\n1999, by or between Slingshot or ADMI, on the one hand, with or for the benefit\nof any current or former shareholder, partner, officer or other Affiliate of\nSlingshot or ADMI or any entity in which any such Person has a direct or\nindirect material interest, on the other hand. Schedule 4.19 lists all payments\nof any kind in any one case in excess of $25,000 since March 16, 1999 from\nSlingshot or ADMI to\n\n 37\n\n \nor for the benefit of any current or former partner, officer or other Affiliate\nof Slingshot or ADMI or any of such Persons' Affiliates, or any entity in which\nany such Person has a direct or indirect material equity interest. All\noutstanding debts and other obligations of Slingshot or ADMI incurred since\nMarch 16, 1999 to any of its owners were incurred in return for fair and\nadequate consideration paid or delivered by them in cash or other property.\n\n (b) Schedule 4.19 lists all agreements, arrangements and currently\nproposed agreements and arrangements that have been entered into since July 12,\n1999, by or between PSI on the one hand, with or for the benefit of any current\nor former shareholder, partner, officer or other Affiliate (other than Slingshot\nor ADMI) of PSI or any entity in which any such Person has a direct or indirect\nmaterial interest, on the other hand. Schedule 4.19 lists all payments of any\nkind in any one case in excess of $25,000 since July 12, 1999 from PSI to or for\nthe benefit of any current or former partner, officer or other Affiliate (other\nthan Slingshot or ADMI) of PSI or any of such Persons' Affiliates, or any entity\nin which any such Person has a direct or indirect material equity interest. All\noutstanding debts and other obligations of PSI incurred to ADMI or any Affiliate\nof ADMI were incurred in return for fair and adequate consideration paid or\ndelivered by them in cash or other property. As of the Closing there will not be\nany outstanding debt or other obligations of PSI to ADMI or any Affiliate of\nADMI.\n\n Section 4.20 Brokers, Finders, Etc. Slingshot, PSI and ADMI have not \nemployed and are not subject to the valid claim of, nor has Slingshot, PSI or\nADMI incurred any Liability that would be payable by Slingshot, PSI or ADMI, for\nany brokerage, finder's or other fees or commissions of any broker, finder or\nother financial intermediary in connection with the transactions contemplated by\nthis Agreement.\n\n Section 4.21 Questionable Payments. Since March 16, 1999 (or July 12, \n1999, in the case of PSI) Slingshot, ADMI and, to the knowledge of ADMI, PSI,\nand their officers (or Person of similar capacity), have not used any funds of\nSlingshot, PSI and ADMI for unlawful contributions, gifts, entertainment or\nother unlawful expenses relating to political activity, have not made any direct\nor indirect unlawful payments to government officials or employees from\ncorporate funds, have not established or maintained any unlawful or unrecorded\nfund or corporate moneys or other assets, and have not made any false or\nfictitious entries on the books or records of any such corporations, made any\nbribe, payoff, kickback or other unlawful payment.\n\n Section 4.22 Other Information. No representation or warranty of ADMI in\nthis Agreement, nor any statement, certificate or other document furnished or to\nbe furnished by Slingshot, ADMI or PSI to Purchaser pursuant to this Agreement,\nnor the Exhibits and Schedules hereto prepared by Slingshot, ADMI or PSI,\ncontains any untrue statement of a material fact, or omits to state a material\nfact required to be stated therein or necessary to make the statements therein,\nin light of the circumstances under which they were made, not misleading.\n\n Section 4.23 Customer and Supplier Relationships; Warranty Claims. Except\nas set forth in Schedule 4.23, since March 16, 1999 (or July 12, 1999, in\nthe case of PSI) Slingshot, ADMI and PSI have \n\n 38\n\n \nnot received any notice that any customer or supplier intends to discontinue or\nalter the prices or terms of, or substantially diminish its relationship with\nSlingshot, PSI or ADMI, as the case may be. Other than as set forth in Schedule\n4.23, since March 16, 1999 (or July 12, 1999, in the case of PSI) Slingshot,\nADMI and PSI have not received notice of any outstanding warranty claims against\nSlingshot, PSI or ADMI or the Speer Sellers by any of their customers with\nrespect to products sold or services rendered by Slingshot, PSI or ADMI or the\nSpeer Sellers.\n\n Section 4.24 Year 2000 Program.\n\n (a) Except as set forth in Schedule 4.24, to the knowledge of ADMI, all\ndevices, systems, machinery, information technology, computer software and\nhardware and other date sensitive technology (collectively, the \"Systems\")\nnecessary to carry on the Business are Year 2000 Compliant to the extent\nnecessary to ensure no material disruption of the operations of Purchaser. As\nused herein, \"Year 2000 Compliant\" means that the Systems are designed to be\nused prior to, during and after the Gregorian calendar year 2000 A.D. and will\noperate during each such time period without error relating to date or date\nsensitive data, specifically including any error relating to, or the product of,\ndate data which represents or references difference centuries or more than one\ncentury.\n\n (b) ADMI has (and, to the knowledge of ADMI, since July 12, 1999, PSI has)\ntaken reasonable and practicable steps, including, without limitation, (i)\nevaluating computer software utilized in their respective businesses and (ii)\nobtaining certifications and other information concerning the date-handling\ncapabilities of third party computer software included in PSI's or ADMI's\ncomputer software products to identify, address, and remediate problems relating\nto the failure to be Year 2000 Compliant. ADMI has fully disclosed and made\navailable to Purchaser any and all information and materials relating to\nproblems with any computer software utilized in the Business being Year 2000\nCompliant.\n\n Section 4.25 PSI Merger Agreement. Except to the extent set forth in\nSchedule 4.25, to the knowledge of ADMI, all of the representations and\nwarranties made by PSI pursuant to the Agreement and Plan of Merger dated as of\nMarch 15, 1999 among ADMI, PSI and PS Acquisitions, Inc. were true and correct\nas of the closing of the merger contemplated therein.\n\n ARTICLE V\n REPRESENTATIONS AND WARRANTIES AS TO ADMI\n\n ADMI represents and warrants to Purchaser as to ADMI as follows:\n\n Section 5.1 Organization; Authorization and Validity. ADMI is duly\norganized and validly existing corporation under the laws of the State of\nColorado, and has full power and authority to own all of its properties and\nassets and to carry on its business as it is now being conducted. ADMI has full\ncorporate power and authority to enter into this Agreement and the other\ndocuments and instruments to be executed and delivered by ADMI pursuant hereto\n(to the extent that such Person is a party hereto or thereto) and to carry out\nits obligations hereunder and thereunder. The execution, delivery and\nperformance by ADMI of this Agreement and the other documents and instruments to\nbe executed and delivered by ADMI pursuant hereto, and the\n\n 39\n\n \nconsummation by ADMI of the transactions contemplated hereby and thereby, have\nbeen duly and validly authorized by the Board of Directors of ADMI and no other\nact or proceeding on the part of ADMI or its shareholders is necessary to\nauthorize the execution and delivery by ADMI of this Agreement or the other\ndocuments or instruments to be executed and delivered by ADMI pursuant hereto,\nor the consummation by ADMI of the transactions contemplated hereby or thereby.\nThis Agreement and the other documents and instruments to be executed and\ndelivered by ADMI pursuant hereto have been duly and validly executed and\ndelivered by ADMI and, assuming this Agreement and the other documents and\ninstruments to be executed and delivered by ADMI pursuant hereto are the valid\nand binding obligations of the other Persons a parties hereto or thereto,\nconstitutes a valid and binding obligation of ADMI enforceable against ADMI in\naccordance with its terms, except that (i) such enforcement may be subject to\napplicable bankruptcy, insolvency or other similar laws, now or hereafter in\neffect, affecting creditors' rights generally, and (ii) the remedy of specific\nperformance and injunctive and other forms of equitable relief may be subject to\nequitable defenses and to the discretion of the court before which any\nproceeding therefor may be brought.\n\n Section 5.2 Assignments to Slingshot and Qwest. Except as set forth on\nSchedule 5.2(a), and except for the Telecom Assets and the capital stock or\nother securities of IHC and BFD, pursuant to the Contribution Agreement, ADMI\nwill transfer to Slingshot at or prior to Closing all of ADMI's tangible or\nintangible assets, and ADMI's contractual, license and leasehold rights and all\nliabilities of ADMI relating to the conduct of the Digital Media Business,\nincluding the Slingshot Assets. Schedule 5.2(b) sets forth all investments made\nby ADMI in the Digital Media Business since March 16, 1999, whether by advance,\ncapital contribution, forgiveness or otherwise. Prior to the transfer to Qwest\nof the Telecom Assets, ADMI shall cause PSI to dividend, distribute or otherwise\ntransfer and dispose of all of the outstanding capital stock or other securities\nof BFD to ADMI or its assignee.\n\n Section 5.3 Telecom Assets and Slingshot Assets.\n\n (a) The Telecom Assets constitute all of the assets of ADMI\nrelating to the portion of the Business consisting of enhanced telephony\nservices, other than IHC and BFD and their assets relating to the provision of\nenhanced telephony services.\n\n (b) The Slingshot Assets represent all of the assets of ADMI\nother than IHC and BFD relating to advanced digital production, post-production\nand transmission facility, digital media storage and distribution services.\n\n Section 5.4 No Conflict. Except as set forth in Schedule 5.4, the \nexecution, delivery and performance of this Agreement by ADMI and the other\ndocuments and instruments to be executed and delivered by ADMI pursuant hereto,\nthe consummation by ADMI of the transactions contemplated hereby or thereby and\nthe compliance by ADMI with the provisions hereof or thereof will not (a)\nconflict with or result in any breach of any provision of the articles of\nincorporation or bylaws of ADMI or PSI, (b) constitute a change in control of\nADMI under or require the consent from or the giving of notice to a third party\n(other than a notice to or consent from a Governmental Authority contemplated by\nSection 4.6), result in a violation or breach of,\n\n 40\n\n \nor constitute (with or without due notice or lapse of time or both) a default\n(or give rise to any right of termination, amendment, cancellation or\nacceleration) under, any of the terms, conditions or provisions of any\ncontractual obligation of ADMI, or result in the creation of any Lien upon or\naffecting any properties or assets of ADMI, (c) to the knowledge of ADMI with\nrespect to contracts entered into prior to July 12, 1999, constitute a change in\ncontrol of PSI under or require the consent from or the giving of notice to a\nthird party (other than a notice to or consent from a Governmental Authority\ncontemplated by Section 4.6), result in a violation or breach of, or constitute\n(with or without due notice or lapse of time or both) a default (or give rise to\nany right of termination, amendment, cancellation or acceleration) under, any of\nthe terms, conditions or provisions of any contractual obligation of PSI, or\nresult in the creation of any Lien upon or affecting any properties or assets of\nPSI, (d) violate any order, writ, injunction, decree, statute, rule or\nregulation of any Governmental Authority applicable to ADMI or to which its\nproperties or assets may be bound, (e) to the knowledge of ADMI, violate any\norder, writ, injunction, decree, statute, rule or regulation of any Governmental\nAuthority applicable to PSI or to which its properties or assets may be bound,\nor (f) result in triggering of any right of first refusal or other right under\nany partnership or joint venture agreement to which ADMI or, to the knowledge of\nADMI, PSI, is a party, except in the case of clauses (b), (c), (d), (e) or (f)\nfor such violations, breaches or defaults which would not, individually or in\nthe aggregate, reasonably be expected to have a Material Adverse Effect.\n\n ARTICLE VI\n REPRESENTATIONS AND WARRANTIES OF PURCHASER\n\n Purchaser hereby represents and warrants to ADMI as follows:\n\n Section 6.1 Organization; Authorization and Validity. Purchaser is a\ncorporation organized under the laws of the State of Delaware. Purchaser is duly\norganized, validly existing and in good standing and has full power and\nauthority to carry on its business as presently conducted. Purchaser has full\ncorporate power and authority to enter into this Agreement and the other\ndocuments and instruments to be executed and delivered by it pursuant hereto and\nto carry out its obligations hereunder and thereunder. The execution, delivery\nand performance by Purchaser of this Agreement and the other documents and\ninstruments to be executed and delivered by Purchaser pursuant hereto, and the\nconsummation by Purchaser of the transactions contemplated hereby and thereby,\nhave been duly authorized by all necessary corporate action and no other\ncorporate act or proceeding on the part of Purchaser is necessary to authorize\nthe execution and delivery by Purchaser of this Agreement or the other documents\nor instruments to be executed and delivered by Purchaser pursuant hereto, or the\nconsummation by Purchaser of the transactions contemplated hereby or thereby.\nThis Agreement and the other documents and instruments to be executed and\ndelivered by Purchaser pursuant hereto have been duly and validly executed and\ndelivered by Purchaser and, assuming this Agreement and the other documents and\ninstruments to be executed and delivered by Purchasers pursuant hereto are the\nvalid and binding obligations of such other Persons a party hereto or thereto,\nconstitutes a valid and binding obligation of Purchaser enforceable against\nPurchaser in accordance with its terms, except that (i) such enforcement may be\nsubject to applicable bankruptcy, insolvency or other similar laws, now or\nhereafter in effect, affecting creditors' rights generally, and (ii) the remedy\n\n 41\n\n \nof specific performance and injunctive and other forms of equitable relief may\nbe subject to equitable defenses and to the discretion of the court before which\nany proceeding therefor may be brought.\n\n Section 6.2 No Conflict. Neither the execution, delivery or performance by\nPurchaser of this Agreement nor the consummation of the transactions\ncontemplated hereby and compliance by Purchaser with any of the provisions\nhereof or thereof will (a) conflict with or result in any breach of any\nprovision of the articles of incorporation or bylaws of Purchaser, (b) require\nany consent, approval or notice under, violate or result in the violation of,\nconflict with or result in a breach of any provisions of, constitute a default\n(or an event which, with notice or lapse of time or both, would constitute a\ndefault) under, result in the termination of, accelerate the performance\nrequired by or result in a right of termination or acceleration, result in the\nloss of a material benefit under or result in the creation of any Lien upon any\nof the properties or assets of Purchaser under any of the terms, conditions or\nprovisions of any material contractual obligation of Purchaser or (c) violate\nany order, writ, injunction, decree, statute, rule or regulation of any\nGovernmental Authority applicable to Purchaser or to which any of its properties\nor assets may be bound, except in such case as would not materially impair or\ndelay Purchaser in the consummation of the transactions contemplated hereby.\n\n Section 6.3 Governmental Consents. Except under the HSR Act, no consent,\norder or authorization of, or registration, declaration or filing with, any\nGovernmental Authority is required in connection with the execution, delivery\nand performance of this Agreement or the consummation of the transactions\ncontemplated hereby by Purchaser.\n\n Section 6.4 Brokers, Finders, Etc.. Purchaser has not employed, and is\nnot subject to the valid claim of, nor has Purchaser incurred any liability that\nwould be payable by Purchaser, for any brokerage, finder's or other fees or\ncommissions of any broker, finder or other financial intermediary in connection\nwith the transactions contemplated by this Agreement.\n\n Section 6.5 Other Information. No representations or warranty of Purchaser\nin this Agreement, nor any statement, certificate or other document furnished or\nto be furnished by Purchaser to Slingshot or ADMI pursuant to this Agreement,\ncontains any untrue statements or a material fact, or omits to state a material\nfact required to be stated therein or necessary to make the statements therein,\nin light of the circumstances under which they were made, not misleading.\n\n Section 6.6 Purchase for Investment. Purchaser is acquiring the PSI\nSecurities and any other securities to be acquired by it pursuant to the terms\nof this Agreement for investment purposes and not with a view toward any resale\nor distribution thereof. Purchaser acknowledges that the securities to be\nacquired in accordance herewith have not been registered for the purpose of the\ntransactions contemplated by this Agreement or otherwise under the Securities\nAct of 1933, as amended, or under any state securities laws. Purchaser will not\nsell or otherwise distribute all or any portion of the securities acquired\nhereunder except in compliance with applicable laws relating to the sale or\nother distribution of securities.\n\n ARTICLE VII\n COVENANTS\n\n 42\n\n \n Section 7.1 Commercially Reasonable Efforts.\n\n (a) Upon the terms and subject to the conditions hereof, each of\nthe parties hereto agrees to use commercially reasonable efforts to take, or\ncause to be taken, all actions and to do, or cause to be done, all things\nnecessary, proper or advisable to consummate and make effective the transactions\ncontemplated by this Agreement.\n\n (b) In case at any time after the Closing Date any further action\nis necessary or desirable to carry out the purposes of this Agreement, the\nparties shall use their commercially reasonable efforts to take, or cause to be\ntaken, all such necessary actions.\n\n Section 7.2 Filings and Consents. The parties hereto shall use all \ncommercially reasonable efforts to obtain and to cooperate in obtaining any\nconsent, approval, authorization or order of, and in making any registration or\nfiling with, any Governmental Authority or other third party required in\nconnection with the execution, delivery or performance of this Agreement and the\nother documents and instruments to be executed pursuant hereto.\n\n Section 7.3 Publicity. Without the prior consent of the other parties \nhereto, which consent shall not be unreasonably withheld or delayed, none of the\nparties hereto shall, nor shall any of them permit Affiliates which any of them\ncontrol to, issue or cause the publication of any press release or other public\nstatement or announcement with respect to this Agreement or the transactions\ncontemplated hereby except as may be required by law or by obligations pursuant\nto any listing agreement with a national securities exchange. A party making any\nstatement or announcement pursuant to the requirements of applicable law or the\nlisting agreement of a national securities exchange shall provide a copy thereof\nto the other parties hereto to the extent possible prior to issuing such\nstatement or announcement.\n\n Section 7.4 Notification of Certain Matters. ADMI shall give prompt notice\nto Purchaser upon becoming aware of, and Purchaser shall give prompt notice to\nADMI upon becoming aware of, (a) the occurrence or non-occurrence of any event,\nthe occurrence or non-occurrence of which would cause any representation or\nwarranty contained in this Agreement to be untrue or inaccurate in any material\nrespect at or prior to the Closing Date and (b) any material failure of ADMI or\nPurchaser, as the case may be, to comply with or satisfy any covenant, condition\nor agreement to be complied with or satisfied by it hereunder; provided,\nhowever, that the delivery of any notice pursuant to this Section 7.4 shall not\nlimit or otherwise affect the remedies available hereunder to the party\nreceiving such notice.\n\n Section 7.5 Expenses. Except as set forth in Section 11.6, whether or not\nthe transactions contemplated hereby are consummated, all costs and expenses\nincurred in connection with this Agreement and the transactions contemplated\nhereby will be paid by the party incurring such costs and expenses.\n\n 43\n\n \n Section 7.6 Conduct of Business of ADMI. ADMI covenants and agrees that,\nexcept for actions taken to implement this Agreement and the transactions\ncontemplated hereby or as disclosed in Schedules hereto or as consented to by\nPurchaser, from and after the date of this Agreement and until the Closing Date\nADMI will not operate the Telecom Assets other than in the ordinary course of\nbusiness consistent with past practices. In furtherance thereof and not in\nlimitation of the foregoing, ADMI will not take, and will not permit Slingshot\nor PSI to take, any action or elect to omit to take any action the result of\nwhich in either case will be to:\n\n (a) Issue, grant or make any commitment to grant, any Ownership\nInterests or other rights relating to the Ownership Interests or PSI's debt\ninstruments or other securities;\n \n (b) Redeem, repurchase or otherwise reacquire any Ownership\nInterests or make any commitment with respect thereto, or declare or pay any\ndistribution of any assets constituting Slingshot Assets to the owners of\nSlingshot or their Affiliates other than as contemplated by the terms of this\nAgreement;\n\n (c) Cause PSI or ADMI to suffer any adverse change that is\nmaterial to the Telecom Assets;\n\n (d) Incur any Liabilities relating to the Telecom Assets except\nLiabilities (x) incurred in the ordinary course of business and consistent with\npast practice and (y) Liabilities not incurred in the ordinary course of\nbusiness in an aggregate amount of no greater than $250,000 (including\nLiabilities arising from one transaction or a series of similar transactions,\nand all periodic installments or payments under any lease or other agreement\nproviding for periodic installments or payments, as a single Liability);\n \n (e) Pay, discharge or satisfy any claim or Liabilities relating to\nthe Telecom Assets other than the payment, discharge or satisfaction in the\nordinary course of business and consistent with past practice of Liabilities\nreflected or reserved against in the Balance Sheets or incurred in the ordinary\ncourse of business and consistent with past practice since the Balance Sheet\nDate;\n \n (f) Permit or allow any of the Telecom Assets (real, personal or\nmixed, tangible or intangible) to become subject to any Lien except in the\nordinary course of business consistent with good financial practices;\n \n (g) Write off as uncollectible any notes or accounts receivable\nthat constitute Telecom Assets except for immaterial write-offs in the ordinary\ncourse of business and consistent with past practice;\n \n (h) Cancel any debts or waive any claims or rights relating to the\nTelecom Assets that, individually or in the aggregate, would reasonably be\nexpected to have a Material Adverse Effect;\n\n 44\n\n \n (i) Sell, transfer, or otherwise dispose of any of the Telecom\nAssets (real, personal or mixed, tangible or intangible), except (i) in the\nordinary course of business and consistent with past practice and (ii) transfers\nand other dispositions not in the ordinary course of business in an aggregate\namount not exceeding $100,000 with respect to all other assets and properties;\n\n (j) Capitalize any work, project or other form of services\nperformed or to be performed in connection with the Telecom Assets or by the\nTelecom Business, except in accordance with generally accepted accounting\nprinciples;\n\n (k) Introduce any new, or significantly change any, management\noperation or accounting policy relating to the Telecom Assets, including tax\naccounting methods and procedures, or operate its properties or assets other\nthan substantially as previously operated and in the ordinary course;\n \n (l) Suffer any damage, destruction or loss to the Telecom Assets\n(whether or not covered by insurance) which could have been prevented by\nreasonably prudent action on the part of the PSI or ADMI; or\n \n (m) Make or commit to make any capital expenditures for Telecom\nAssets not in the ordinary course of business for any single item in excess of\n$25,000 other than as required by any contract listed on Schedule 4.14\n\n Section 7.7 Access and Inspection. Slingshot and ADMI shall afford to the\nofficers, employees, accountants, counsel and other representatives of\nPurchaser, access, upon reasonable prior request or notice, during normal\nbusiness hours from the date hereof until the Closing Date, to Slingshot's,\nADMI's and PSI's offices, properties, books, contracts, commitments and records\nand, during such period, Slingshot, ADMI and PSI shall furnish promptly to\nPurchaser all other information concerning its business, properties and\npersonnel as Purchaser may reasonably request. Purchaser will hold any such\ninformation which is nonpublic in confidence in accordance with the provisions\nof the Confidentiality Agreement.\n\n Section 7.8 Management Agreement; Speer Indemnity. Pursuant to the Bill of\nSale, Assignment and Assumption Agreement, at Closing, ADMI shall assign to\nPurchaser, and Purchaser shall assume, all of the rights and obligations under\nthe Management Agreement and the Speer Purchase Agreement, to the extent that\neach relates to the Telecom Assets.\n\n Section 7.9 Consents. Prior to the Closing, Slingshot and ADMI shall use\nall commercially reasonable efforts to obtain all consents necessary to the\nconsummation of the transactions contemplated hereby. All such consents will be\nin writing and executed counterparts thereof will be delivered to Purchaser at\nor prior to the Closing. Notwithstanding any other provision of this Agreement,\nthe parties hereto agree that ADMI or Slingshot may seek to obtain any consents\nor waivers from any Persons necessary to consummate the transactions\ncontemplated hereby; provided that ADMI or Slingshot and their\n\n 45\n\n \nrespective representatives shall use their best efforts to restrict access to\nany information concerning this Agreement and the transactions contemplated\nhereby to those Persons that \"need to know\"; provided further, that Slingshot,\nADMI and their respective representatives will request and encourage those\nPersons who are informed of this Agreement or the transactions contemplated\nhereby to treat any such information so provided in accordance with the terms of\nthe Confidentiality Agreement as if such Persons were a party thereto.\n\n Section 7.10 No Solicitation. For a period of two years following the\nClosing, without the prior written consent of Qwest's most senior executive\nprimarily engaged in Qwest's human resources department, Slingshot and ADMI\nshall not, and shall cause their respective representatives not to, directly or\nindirectly, solicit or attempt to solicit, or assist any other Person to solicit\nor to attempt to solicit, any employee of Qwest (other than Greg Bell and Robert\nThalman to terminate his or her employment with Qwest or to interfere or attempt\nto interfere with the relationship between Qwest and any of its employees.\nNothing contained in this Agreement or any other document or instrument to be\nexecuted and delivered pursuant hereto will be deemed to limit or otherwise\naffect the right of any employee of Qwest to seek employment with or to be\nemployed by Slingshot, ADMI or any of their respective Affiliates if Slingshot,\nADMI and such Affiliates have not solicited such employee in violation of the\npreceding sentence.\n\n Section 7.11 Supplements to Schedules. From time to time prior to the\nClosing, Slingshot and ADMI shall promptly supplement or amend any Schedule\nhereto with respect to any matter, condition or occurrence hereafter arising\nwhich, if existing or occurring at the date of this Agreement, would have been\nrequired to be set forth or described in such Schedule; provided that for\npurposes of the conditions to Closing, no such supplement or amendment will be\ndeemed to cure any breach of any representation, warranty or covenant and\nPurchaser may elect, as its sole remedy, to terminate this Agreement pursuant to\nSection 10.1(c). The parties hereto recognize and acknowledge that certain\nassets will be acquired and disposed of and that certain liabilities will be\nincurred and discharged in the ordinary course of business; provided, however,\nthat the parties do not intend for this sentence to alter or modify the\nconditions or prohibitions of taking such actions contained elsewhere in this\nAgreement.\n\n Section 7.12 Further Assurances. From and after the Closing Date,\nSlingshot, ADMI and Purchaser shall promptly execute, acknowledge and deliver\nany other assurances or documents reasonably requested by another party hereto\nto permit such other party to satisfy its obligations hereunder or to evidence\ntitle, or to provide such other party with the benefits enumerated in this\nAgreement, including without limitation, the execution, acknowledgment and\ndelivery of any assurances or documents necessary to assign the benefits of the\nprovisions in the Speer Purchase Agreement related to the Telecom Assets\nincluding the indemnity provisions (the \"Speer Indemnity\") and the rights and\nobligations of ADMI under the Management Agreement related to the Telecom\nAssets.\n\n Section 7.13 IHC Interests. Notwithstanding any other provision of this\nAgreement or any other document or instrument to be delivered pursuant hereto,\nADMI shall not transfer to \n\n 46\n\n \nSlingshot or to Purchaser (i) any interest in securities of IHC owned by ADMI,\n(ii) any interest in any properties or assets acquired by ADMI from IHC, or\n(iii) any Liabilities related thereto.\n\n Section 7.14 Insurance. Purchaser acknowledges that, as of the Closing\nDate, all insurance coverage with respect to the Telecom Assets that is provided\nthrough ADMI or its Affiliates will be terminated and that any insurance\ncoverage of the Telecom Assets thereafter will be the sole responsibility of\nPurchaser.\n\n Section 7.15 Inter-Company Accounts. Prior to the Closing, (a) ADMI will\ncontribute to the capital of PSI and its Subsidiaries other than BFD the\noutstanding amount of any inter-company account payable by PSI or any such\nSubsidiary to ADMI and (b) ADMI will cause PSI to contribute to the capital of\nBFD the outstanding amount of any inter-company account payable by BFD to PSI.\n\n ARTICLE VIII\n CONDITIONS TO CLOSING\n\n Section 8.1 Conditions to the Obligations of Purchaser, Slingshot and\nADMI. The obligations of each party hereto effect the Closing are subject to the\nsatisfaction (or waiver) at or prior to the Closing of the following conditions:\n\n (a) No Injunction or Litigation. No temporary restraining order,\npreliminary or permanent injunction or other order or decree which prevents the\nconsummation of the transactions contemplated hereby shall have been issued and\nremain in effect, and no statute, rule or regulation shall have been enacted by\nany Governmental Authority which makes the consummation of the transactions\ncontemplated hereby illegal. No litigation shall have been commenced and be\ncontinuing that seeks to prevent consummation of the transactions contemplated\nhereby or that seeks material damages from Purchaser, Slingshot, PSI, ADMI or\nany of their Affiliates, in connection with the transactions contemplated\nhereby.\n\n (b) Consents. All consents, approvals, permits or authorizations\nrequired to be obtained, declarations or filings required to be made and waiting\nperiods or terminations required to have occurred prior to the Closing from or\nwith any Governmental Authority in connection with the execution and delivery of\nthis Agreement and the consummation of the transactions contemplated hereby,\nshall have been obtained, made or occurred.\n\n Section 8.2 Conditions to the Obligations of Purchaser. The obligation of\nPurchaser to effect the Closing is subject to the satisfaction (or waiver by\nPurchaser) at or prior to the Closing, of the following conditions:\n\n (a) Representation and Warranties. The representations and\nwarranties of ADMI contained herein shall have been true and correct in all\nmaterial respects when made and shall be true and correct in all material\nrespects as of the Closing.\n\n 47\n\n \n (b) Covenants. Slingshot and ADMI shall have performed in all\nrespects the covenants and obligations required to be performed by them on or\nprior to the Closing.\n\n (c) No Material Adverse Change. There shall not have been, or no\nevent shall have occurred, which could reasonably be expected to result in, a\nMaterial Adverse Change with respect to the Business.\n\n (d) Slingshot's and ADMI's Certificates. Slingshot and ADMI shall\neach have furnished Purchaser with a certificate, dated the Closing Date, to the\neffect that the conditions set forth in Sections 8.2(a), (b) and (c) have been\nsatisfied.\n\n (e) Slingshot and ADMI Deliveries. Slingshot and ADMI shall have\nduly executed, if called for, and delivered to Purchaser each document,\ninstrument and other writing required to be delivered by Slingshot or ADMI\npursuant to Sections 3.4 and 3.5.\n\n (f) Consents. All material consents and approvals required to be\nobtained prior to the Closing from or with any third party (other than a\nGovernmental Authority) in connection with the execution and delivery of this\nAgreement and the consummation of the transactions contemplated hereby, shall\nhave been obtained.\n\n Section 8.3 Conditions to the Obligations of Slingshot and ADMI. The\nobligations of Slingshot and ADMI to effect the Closing is subject to the\nsatisfaction (or waiver by Slingshot and ADMI) on or prior to the Closing, of\nthe following conditions:\n\n (a) Representations and Warranties. The representations and\nwarranties of Purchaser contained herein shall have been true and correct in all\nmaterial respects when made and shall be true and correct in all material\nrespects as of the Closing.\n\n (b) Covenants. Purchaser shall have performed in all respects the\ncovenants and obligations required to be performed by it at or prior to the\nClosing.\n\n (c) Certificate. Purchaser shall have furnished Slingshot and\nADMI with a certificate dated the Closing Date, signed on its behalf by an\nauthorized signatory of Purchaser, to the effect that the conditions set forth\nin Sections 8.3(a) and (b) have been satisfied.\n\n (d) Purchaser Deliveries. Purchaser shall have executed, if\ncalled for, and delivered to Slingshot or ADMI, as the case may be, each\ndocument, instrument and other writing required to be delivered by Purchaser\npursuant to Section 3.6.\n\n ARTICLE IX\n SURVIVAL AND INDEMNIFICATION\n\n Section 9.1 Survival of Representations and Warranties. Each of the\nrepresentations and warranties made by Purchaser in this Agreement shall\nterminate on the date which is 18 months from the Closing Date. Each of the\nrepresentations and warranties made by ADMI in this Agreement shall terminate on\nthe date which is 18 months from the Closing Date; provided,\n\n 48\n\n \nhowever, that (i) the representations and warranties contained in Sections 4.11,\n4.16(a) and, to the extent not covered by clause (ii), 4.16(b) shall survive the\nClosing until 90 days following the expiration of the applicable statute of\nlimitations, (ii) to the extent that they relate to any facts, events or\ncircumstances prior to July 12, 1999, the representations and warranties set\nforth in Section 4.16(b) shall not survive the Closing and to such extent shall\nnot be subject to the indemnification provisions of this Article IX, and (iii)\nthe representations and warranties contained in Section 4.13 shall survive the\nClosing until the sixth anniversary of the Closing Date. In the event notice of\nany claim for indemnification under Section 9.2, 9.3, 9.4 or 9.5 hereof shall\nhave been given within the applicable survival period, the representations and\nwarranties that are the subject of such indemnification claim shall survive\nuntil such time as such claim is finally resolved. The covenants and agreements\nof the parties set forth in this Agreement and the indemnification obligations\nof the parties hereunder shall survive indefinitely except as expressly provided\nherein.\n\n Section 9.2 Speer Indemnity.\n\n (a) (i) ADMI agrees to assign all rights under the Speer\nIndemnity that relate to the Telecom Assets to Purchaser at the Closing.\n\n (ii) ADMI agrees to assign all rights under the Speer\nIndemnity that relate to the Slingshot Assets to Slingshot at the Closing.\n\n (b) In the event of a breach of a representation, warranty or\ncovenant under the Speer Purchase Agreement, Purchaser's only recourse for such\nbreach shall be to seek indemnification in accordance with the Speer Indemnity.\nThe parties agree that they will cooperate with the other party's reasonable\nrequests in such party's assertion of rights under the Speer Indemnity. ADMI\nagrees that, subject to receipt of reasonably satisfactory indemnification from\nPurchaser, it will act as the named plaintiff in any action under the Speer\nIndemnity at the reasonable direction of Purchaser if necessary in order for\nPurchaser to assert any rights thereunder.\n\n (c) If Purchaser would be entitled to recover any amounts (the\n\"Blocked Amounts\") under the Speer Indemnity but is prevented from recovering\nsuch amounts by reason of the $50,000,000 cap on indemnification specified in\nSection 9.2(b) of the Speer Purchase Agreement, and the aggregate amount\nrecovered by Purchaser under the Speer Indemnity is less than $10,000,000, ADMI\nagrees that it will pay to Purchaser the Blocked Amounts, provided, that ADMI\nshall not be required to pay Purchaser in excess of an aggregate of $10,000,000\nfor all Blocked Amounts and amounts under Section 9.3 relating to the Telecom\nBusiness.\n\n Section 9.3 Base Indemnification by ADMI.\n\n (a) Subject to the other provisions of this Article IX, ADMI shall\nindemnify, defend and hold harmless Purchaser Indemnified Parties from and\nagainst any and all costs, expenses, losses, damages and liabilities (including\nreasonable attorneys' fees and expenses) (\"Damages\") suffered by any of\nPurchaser Indemnified Parties to the extent resulting from, arising out of, or\nincurred with respect to, or (in the case of claims asserted against any of\n\n 49\n\n \nPurchaser Indemnified Parties by a third party) alleged to result from, arise\nout of or have been incurred with respect to (i) any breach of or inaccuracy in\nany representation or warranty as of the date made or as of the Closing Date of\nADMI contained in this Agreement (other than with respect to PSI), (ii) any\nbreach of any covenant of Slingshot or ADMI contained in this Agreement (other\nthan with respect to PSI) and (iii) all Litigation arising on or after March 16,\n1999 relating to the Assets and the operations of the Business (other than with\nrespect to PSI) after March 16, 1999 and prior to the Closing (the \"Base\nIndemnity\").\n\n (b) In no event shall ADMI be liable to the Purchaser Indemnified\nParties under the Base Indemnity with respect to any breaches of representations\nand warranties unless the aggregate Damages therefrom and amounts under Section\n9.4 relating to PSI exceed $350,000, and then only to the extent the Damages\nexceed $350,000. In no event shall the aggregate liability of ADMI for Damages\nresulting from breaches of the representations and warranties set forth in\nArticles IV or V (i) with respect to the Telecom Business (other than amounts\nunder Section 9.4) together with amounts under Section 9.2 exceed $10,000,000\nand (ii) with respect to the Digital Media Business exceed $20,000,000; provided\nthat ADMI shall indemnify Purchaser without limitation in respect of any Damages\nsuffered by any Purchaser Indemnified Party which arise out of any Liabilities\nof ADMI other than (i) Assumed Liabilities or (ii) Liabilities associated with\nthe Slingshot Assets. For purposes of this Section 9.3, Damages that relate to\nrepresentations or warranties or Litigation covered by the Base Indemnity with\nrespect to the Slingshot Assets or the Digital Media Business, shall include any\nDamages of Slingshot to the extent not a direct Damage of a Purchaser\nIndemnified Party, and in such case shall be an amount equal to that portion of\nSlingshot's Damages based on the percentage equity interest held by Purchaser\nand its Affiliates in Slingshot at the time the Damages were incurred. As an\nexample, if Slingshot incurs any Damage that would be covered by the Base\nIndemnity if the representations and warranties contained herein were made to\nSlingshot and the Base Indemnity were made for the benefit of Slingshot, and if\nPurchaser's Affiliates then held an aggregate 50% equity interest in Slingshot,\nthe Purchaser Indemnified Parties will be entitled to indemnification hereunder\n(subject to the other limitations in this Article IX) as if the Purchaser\nIndemnified Parties had suffered direct Damages in an amount equal to 50% of the\nSlingshot Damages.\n\n (c) Notwithstanding the foregoing, the parties agree that neither\nADMI nor Slingshot shall be liable to the Purchaser Indemnified Parties for any\ncosts, expenses, losses, damages and liabilities (including reasonable\nattorneys' fees and expenses) suffered by any of Purchaser Indemnified Parties\nto the extent that such costs, expenses, losses, damages and liabilities are\ncovered by the Speer Indemnity, other than in accordance with Section 9.2(c).\n\n Section 9.4 PSI Indemnification by ADMI.\n\n (a) Subject to the other provisions of this Article IX, ADMI shall\nindemnify, defend and hold harmless Purchaser Indemnified Parties from and\nagainst any and all Damages suffered by any of Purchaser Indemnified Parties to\nthe extent resulting from, arising out of, or incurred with respect to, or (in\nthe case of claims asserted against any of Purchaser Indemnified Parties by a\nthird party) alleged to result from, arise out of or have been incurred with\nrespect to\n\n 50\n\n \n(i) any breach of or inaccuracy in any representation or warranty as of the date\nmade or as of the Closing Date of ADMI contained in this Agreement relating to\nPSI, (ii) any breach of any covenant of Slingshot or ADMI contained in this\nAgreement relating to PSI and (iii) all Litigation arising on or after July 12,\n1999 relating to PSI and its operations prior to the Closing (the \"PSI\nIndemnity\").\n\n (b) In no event shall the aggregate liability of ADMI for Damages\nresulting from breaches of the representations and warranties set forth in\nArticles IV or V under the PSI Indemnity exceed $10,000,000.\n\n Section 9.5 Indemnification by Purchaser.\n\n (a) Subject to the other provisions of this Article IX, Purchaser\nshall indemnify, defend and hold harmless the Seller Indemnified Parties from\nand against any and all Damages suffered by any of the Seller Indemnified\nParties to the extent resulting from, arising out of, or incurred with respect\nto, or (in the case of claims asserted against any of the Seller Indemnified\nParties by a third party) alleged to result from, arise out of or have been\nincurred with respect to, (i) any breach of or inaccuracy in any representation\nor warranty as of the date made or as of the Closing Date of Purchaser contained\nin this Agreement, (ii) any breach of any covenant of any of Purchaser contained\nin this Agreement, (iii) the Assumed Liabilities and (iv) all litigation\nrelating to the operation of the Telecom Assets and the ownership of PSI\nsubsequent to Closing.\n\n (b) In no event shall Purchaser be liable to the Seller\nIndemnified Parties with respect to any breaches of representations and\nwarranties unless the aggregate Damages therefrom exceed $100,000, and then only\nto the extent the Damages exceed $100,000. In no event shall the aggregate\nliability of Purchaser for Damages resulting from breaches of the\nrepresentations and warranties set forth in Article VI exceed $1,000,000.\n\n Section 9.6 Notice and Resolution of Claim.\n\n (a) An indemnified party under this Agreement shall promptly give\nwritten notice to the indemnifying party after obtaining knowledge of any third\nparty claim or litigation against the indemnified party as to which recovery may\nbe sought against the indemnifying party because of the indemnity set forth in\nSections 9.2 through 9.5, specifying in reasonable detail the claim or\nlitigation and the basis for indemnification; provided, however, that the\nfailure of the indemnified party promptly to notify the indemnifying party of\nany such matter shall not release the indemnifying party, in whole or in part,\nfrom its obligations under this Article IX except to the extent the indemnified\nparty's failure to so notify in breach of this Section 9.6(a) materially\nprejudices the indemnifying party's ability to defend against such third party\nclaim or litigation. The indemnified party shall permit the indemnifying party\nto assume the defense of any such claim, litigation or any litigation resulting\nfrom such third party claim.\n\n (b) If the indemnifying party assumes the defense of any such\nthird party claim or litigation, the obligations of the indemnifying party under\nthis Agreement shall include taking all steps necessary in the investigation,\ndefense or settlement of such claim or litigation\n\n 51\n\n \n(including the retention of legal counsel) and holding the indemnified party\nharmless from and against any and all losses caused by or arising out of any\nsettlement approved by the indemnifying party or any judgment in connection with\nsuch claim or litigation. The indemnifying party shall not, in the defense of\nsuch claim or litigation, consent to entry of any judgment (except with the\nwritten consent of the indemnified party) or enter into any settlement (except\nwith the written consent of the indemnified party): (i) that does not include as\nan unconditional term thereof the giving by the claimant or the plaintiff to the\nindemnified party a complete release from, all liability in respect of such\nclaim or litigation, or (ii) the effect of which is to permit any injunction,\ndeclaratory judgment, other order or other equitable relief to be entered,\ndirectly or indirectly, against any indemnified party. The indemnifying party\nshall permit the indemnified party to participate in such defense or settlement\nthrough counsel chosen by the indemnified party, with the fees and expenses of\nsuch counsel borne by the indemnified party.\n\n (c) Failure by the indemnifying party to notify the indemnified\nparty of its election to assume the defense of any such claim or litigation by a\nthird party within 30 days after notice thereof has been given to the\nindemnifying party shall be deemed a waiver by the indemnifying party of its\nright to assume the defense of such claim or litigation. If the indemnifying\nparty does not assume the defense of such claim or litigation by a third party,\nthe indemnified party may defend or settle such clam or litigation in such\nmatter as the indemnified party may deem appropriate and may settle such claim\nor litigation on such terms as it may deem appropriate.\n\n (d) The parties agree that they will cooperate with any other\nparty's reasonable requests in such party's assertion of rights under the Speer\nIndemnity.\n\n ARTICLE X\n TERMINATION\n\n Section 10.1 Termination. This Agreement may be terminated at any time\nprior to Closing:\n\n (a) by written agreement of Purchaser and each of Slingshot and\n ADMI;\n\n (b) by ADMI or Purchaser, by giving written notice of such\n termination to the other party, if the Closing shall not have occurred on\n or prior to December 31, 1999; provided, however, that the right to\n terminate this Agreement under this Section 10.1(b) shall not be available\n to any party whose failure to perform any material covenant or obligation\n under this Agreement has been the cause of or resulted in the failure of\n the Closing to occur on or before such date;\n\n (c) by either Purchaser or ADMI by giving written notice of\n termination to the other party, if there shall have been a material breach\n of any of the covenants or agreements or any of the representations or\n warranties set forth in this Agreement on the part of the other party,\n which breach is not cured within ten days following written notice given by\n the terminating party to the party committing such breach, or which breach,\n by\n\n 52\n\n \n its nature, cannot be cured prior to the Closing; provided, however, that\n the right to terminate this Agreement under this Section 10.1 shall not be\n available if at the time the terminating party is in material breach of any\n representation, warranty, covenant or other agreement contained herein; or\n\n (d) by either Purchaser or ADMI by written notice of termination\n to the other party if any Governmental Authority of competent jurisdiction\n shall have issued any statute, rule, regulation, order, decree or\n injunction or taken any other action permanently restraining, enjoining or\n otherwise prohibiting the transactions contemplated by this Agreement, and\n such statute, rule, regulation, order, decree or injunction or other action\n shall have become final.\n\n Section 10.2 Effect of Termination. In the event of the termination of\nthis Agreement in accordance with Section 10.1 hereof, this Agreement shall\nthereafter become void and have no effect, and no party thereto shall have any\nliability to any other party hereto or any of its respective Affiliates,\nofficers or employees, except for the obligations of the parties hereto\ncontained in this Section 10.2 and in Sections 11.1, 11.5, 11.6 and 11.8 hereof,\nand provided that nothing contained in this Section 10.2 shall relieve any party\nfrom liability for a breach of any provision of this Agreement.\n\n ARTICLE XI\n MISCELLANEOUS\n\n Section 11.1 Notices. All notices or other communications hereunder shall\nbe deemed to have been duly given and made if in writing and if served by\npersonal delivery upon the party for whom it is intended, if delivered by\nregistered or certified mail, return receipt requested, or by a national courier\nservice, or if sent by facsimile, provided, however, that the facsimile is\npromptly followed by telephone confirmation thereof to the appropriate person at\nthe address set forth below, or at such other address as may be designated in\nwriting hereafter, in the same manner, by such person.\n\n To Slingshot:\n\n Slingshot Networks, LLC\n 555 17th Street, Suite 2400\n Denver, Colorado 80202\n Telephone: (303) 298-1000\n Facsimile: (303) 298-8881\n Attention: Craig Slater\n\n 53\n\n \n with a copy to:\n\n Hogan & Hartson L.L.P.\n One Tabor Center\n 1200 17th Street, Suite 1500\n Denver, Colorado 80202\n Telephone: (303) 899-7300\n Facsimile: (303) 899-7333\n Attention: Steven A. Cohen\n\n To ADMI:\n\n Anschutz Digital Media, Inc.\n 555 17th Street, Suite 2400 \n Denver, Colorado 80202 \n Telephone: (303) 298-1000 \n Facsimile: (303) 298-8881 \n Attention: Craig Slater \n\n with a copy to:\n\n Hogan & Hartson L.L.P.\n One Tabor Center\n 1200 17th Street, Suite 1500\n Denver, Colorado 80202\n Telephone: (303) 899-7300\n Facsimile: (303) 899-7333\n Attention: Steven A. Cohen\n\n To Purchaser:\n\n Qwest Communications International Inc.\n 700 Qwest Tower \n 555 17th Street \n Denver, Colorado 80202 \n Telephone: (303) 992-1400\n Facsimile: (303) 992-1203\n Attention: Marc Weisberg \n\n 54\n\n \n with a copy to:\n\n O'Melveny & Myers LLP\n Century City \n 1999 Avenue of the Stars \n Los Angeles, California 90067-6035 \n Telephone: (310) 246-6727 \n Facsimile: (310) 246-6779 \n Attention: Steven L. Grossman \n\n Any such notice shall be deemed delivered (a) on the date delivered if by\npersonal delivery, (b) on the date upon which the return receipt is signed or\ndelivery is refused or the notice is designed by the postal authorities as a not\ndeliverable, as the case may be, if mailed by registered or certified mail, (c)\non the next succeeding business day if sent by national courier service, or (d)\non the date telecommunicated if by telecopier if confirmed by telephone\nconfirmation.\n\n Section 11.2 Amendment, Waiver. Any provision of this Agreement may be\namended or waived if, and only if such amendment or waiver is in writing and\nsigned, in the case of an amendment, by Purchaser, ADMI and Slingshot, or in the\ncase of a waiver, by the party against whom the waiver is to be effective. No\nfailure or delay by any party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise\nof any other right, power or privilege.\n\n Section 11.3 Assignment. No party to this Agreement may assign any of its\nrights or obligations under this Agreement without the prior written consent of\nthe other parties hereto; provided that any party may assign any of its rights\nand obligations hereunder in whole or in part to any of its respective\nAffiliates without obtaining the consent of the other parties hereto.\n\n Section 11.4 Entire Agreement. This Agreement (including all Exhibits and\nSchedules hereto) contains the entire agreement between the parties hereto with\nrespect to the subject matter hereof and supersedes all prior agreements and\nunderstandings, oral or written, with respect to such matters.\n\n Section 11.5 Parties in Interest. This Agreement shall inure to the\nbenefit of and be binding upon the parties hereto and their respective\nsuccessors and permitted assigns. Nothing in this Agreement, express or implied,\nis intended to confer upon any Person other than Purchaser, ADMI, Slingshot or\ntheir successors or permitted assigns, any rights or remedies under or by reason\nof this Agreement.\n\n Section 11.6 Expense. All and expenses incurred by Purchaser in connection\nwith this Agreement and the transactions contemplated hereby, shall be borne by\nPurchaser and all costs and expenses incurred by ADMI in connection with this\nAgreement and the transactions contemplated hereby shall be borne by ADMI;\nprovided that the Purchaser and ADMI shall share\n\n 55\n\n \nequally the $45,000 filing fee in respect of the filing of a notification and\nreport form under the HSR Act with respect to the transactions contemplated\nhereby.\n\n Section 11.7 Governing Law; Jurisdiction; Service of Process. This \nAgreement shall be governed by the laws of the State of Colorado, its rules of\nconflict of laws notwithstanding. Purchaser and ADMI hereby agree and consent to\nbe subject to the non-exclusive jurisdiction of the federal and state courts of\nthe State of Colorado in any suit, action or proceeding seeking to enforce any\nprovision of, or based on any matter arising out of or in connection with, this\nAgreement or the transactions contemplated hereby. Each party hereby irrevocably\nconsents to the service of any and all process in any such suit, action or\nproceeding by the delivery of such process to such party at the address and in\nthe manner provided in Section 11.1.\n\n Section 11.8 Specific Performance. The parties hereto agree that if any of\nthe provisions of this Agreement are not performed in accordance with their\nspecific terms or are otherwise breached, irreparable damage would occur, no\nadequate remedy at law would exist and damages would be difficult to determine,\nand that the parties shall be entitled to specific performance of the terms\nhereof, in addition to any other remedy at law or equity.\n\n Section 11.9 Transfer and Similar Taxes. Notwithstanding any other\nprovision of this Agreement to the contrary, Purchaser and Seller shall share\nevenly and cooperate to pay when due all sales, property, use, privilege,\ntransfer, documentary, gains, stamp, duties, recording and similar Taxes and\nfees (including any penalties, interest or additions) imposed upon any party\nincurred in connection with the transactions contemplated by this Agreement.\n\n Section 11.10 Headings. The heading references herein and in the table of\ncontents hereto are for convenience purposes only, do not constitute a part of\nthis Agreement, and shall not be deemed to limit or affect any of the provisions\nhereof.\n\n [SIGNATURE PAGE FOLLOWS]\n\n 56\n\n \n SIGNATURES\n\n IN WITNESS WHEREOF, the parties have executed or caused this Agreement to\nbe executed as of the date first written above.\n\n QWEST COMMUNICATIONS \n INTERNATIONAL INC. \n \n \n \n By: \/s\/ Drake S. Tempest \n -------------------------------\n Name: Drake S. Tempest \n ---------------------------\n Title: Executive Vice President and \n ----------------------------\n General Counsel \n ----------------------------\n \n ANSCHUTZ DIGITAL MEDIA, INC. \n \n \n \n By: \/s\/ Craig D. Slater \n ------------------------------- \n Name: Craig D. Slater \n ---------------------------\n Title: Executive Vice President \n ---------------------------\n \n \n \n SLINGSHOT NETWORKS, LLC \n \n \n By: \/s\/ Craig D. Slater \n ------------------------------- \n Name: Craig D. Slater \n --------------------------- \n Title: Executive Vice President \n --------------------------- \n\n Signature Page\n\n \n EXHIBIT A\n\n Form of Capacity and Service Agreement\n --------------------------------------\n\n \n EXHIBIT B-1 through B-5\n\n Forms of Services and Option Agreements\n ---------------------------------------\n\n \n EXHIBIT C\n\n Form of Note\n ------------\n \n\n \n EXHIBIT D\n\n Form of Contribution Agreement\n ------------------------------\n \n\n \n EXHIBIT E\n \n Form of Subscription Agreement\n ------------------------------\n\n \n--------------------------------------------------------------------------------\n\n SCHEDULES TO ASSET PURCHASE AGREEMENT\n\n--------------------------------------------------------------------------------\n\n [TO BE PROVIDED BY ADMI]\n\n \n TABLE OF CONTENTS\n\n<\/pre>\n
\n\nTitle Page
\n—– —-
\n
\nARTICLE I DEFINITIONS AND TERMS……………………………………………………………. 1
\n Section 1.1 Certain Definitions………………………………………………………. 1
\n Section 1.2 Terms Generally………………………………………………………….. 11
\nARTICLE II ACQUISITION AND DISPOSITION OF ASSETS…………………………………………….. 11
\n Section 2.1 Purchase and Sale of Assets……………………………………………….. 11
\n Section 2.2 Excluded Assets………………………………………………………….. 12
\n Section 2.3 Nondelivered Assets………………………………………………………. 13
\n Section 2.4 No Assignment if Breach…………………………………………………… 13
\nARTICLE III PURCHASE PRICE AND DELIVERY…………………………………………………….. 13
\n Section 3.1 Purchase Price and Payment………………………………………………… 13
\n Section 3.2 Allocation and Tax Election……………………………………………….. 14
\n Section 3.3 Closing………………………………………………………………… 15
\n Section 3.4 Deliveries by ADMI……………………………………………………….. 15
\n Section 3.5 Deliveries by Slingshot…………………………………………………… 16
\n Section 3.6 Deliveries by Purchaser…………………………………………………… 16
\nARTICLE IV REPRESENTATIONS AND WARRANTIES OF ADMI……………………………………………. 17
\n Section 4.1 Authorization and Validity………………………………………………… 17
\n Section 4.2 Equity; Good Title……………………………………………………….. 17
\n Section 4.3 Capitalization of PSI…………………………………………………….. 18
\n Section 4.4 Organization…………………………………………………………….. 18
\n Section 4.5 No Conflict……………………………………………………………… 19
\n Section 4.6 Governmental Consents…………………………………………………….. 19
\n Section 4.7 Balance Sheet Information…………………………………………………. 19
\n Section 4.8 Absence of Certain Changes or Events……………………………………….. 20
\n Section 4.9 Property, Assets…………………………………………………………. 23
\n Section 4.10 Litigation and Claims, Compliance with Laws………………………………… 25
\n Section 4.11 Taxes………………………………………………………………….. 26
\n Section 4.12 Insurance………………………………………………………………. 27
\n Section 4.13 Environmental Matters……………………………………………………. 28
\n Section 4.14 Material Contracts………………………………………………………. 29
\n Section 4.15 Intellectual Property……………………………………………………. 31
\n Section 4.16 Employee Benefits; ERISA…………………………………………………. 33
\n Section 4.17 Labor Matters…………………………………………………………… 36
\n Section 4.18 Records………………………………………………………………… 37
\n Section 4.19 Affiliate Transactions…………………………………………………… 37
\n Section 4.20 Brokers, Finders, Etc……………………………………………………. 38
\n Section 4.21 Questionable Payments……………………………………………………. 38
\n Section 4.22 Other Information……………………………………………………….. 38
\n Section 4.23 Customer and Supplier Relationships; Warranty Claims………………………… 38
\n Section 4.24 Year 2000 Program……………………………………………………….. 39
\n<\/c><\/s><\/caption>\n<\/table>\n i<\/p>\n
\n
\n Section 4.25 PSI Merger Agreement…………………………………………………….. 39
\nARTICLE V REPRESENTATIONS AND WARRANTIES AS TO ADMI………………………………………….. 39
\n Section 5.1 Organization; Authorization and Validity……………………………………. 39
\n Section 5.2 Assignment to Slingshot and Qwest………………………………………….. 40
\n Section 5.3 Telecom Assets and Slingshot Assets………………………………………… 40
\n Section 5.4 No Conflict……………………………………………………………… 40
\nARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER……………………………………….. 41
\n Section 6.1 Organization; Authorization and Validity……………………………………. 41
\n Section 6.2 No Conflict……………………………………………………………… 42
\n Section 6.3 Governmental Consents…………………………………………………….. 42
\n Section 6.4 Brokers, Finders, Etc…………………………………………………….. 42
\n Section 6.5 Other Information………………………………………………………… 42
\n Section 6.6 Purchase for Investment…………………………………………………… 42
\nARTICLE VII COVENANTS…………………………………………………………………….. 42
\n Section 7.1 Commercially Reasonable Efforts……………………………………………. 43
\n Section 7.2 Filings and Consents……………………………………………………… 43
\n Section 7.3 Publicity……………………………………………………………….. 43
\n Section 7.4 Notification of Certain Matters……………………………………………. 43
\n Section 7.5 Expenses………………………………………………………………… 43
\n Section 7.6 Conduct of Business of ADMI……………………………………………….. 44
\n Section 7.7 Access and Inspection…………………………………………………….. 45
\n Section 7.8 Management Agreement; Speer Indemnity………………………………………. 45
\n Section 7.9 Consents………………………………………………………………… 45
\n Section 7.10 No Solicitation…………………………………………………………. 46
\n Section 7.11 Supplements to Schedules…………………………………………………. 46
\n Section 7.12 Further Assurances………………………………………………………. 46
\n Section 7.13 IHC Interests…………………………………………………………… 46
\n Section 7.14 Insurance………………………………………………………………. 47
\n Section 7.15 Inter-Company Accounts…………………………………………………… 47
\nARTICLE VIII CONDITIONS TO CLOSING…………………………………………………………. 47
\n Section 8.1 Conditions to the Obligations of Purchaser, Slingshot and ADMI………………… 47
\n Section 8.2 Conditions to the Obligations of Purchaser………………………………….. 47
\n Section 8.3 Conditions to the Obligations of the Slingshot and ADMI………………………. 48
\nARTICLE IX SURVIVAL AND INDEMNIFICATION…………………………………………………….. 48
\n Section 9.1 Survival of Representations and Warranties………………………………….. 48
\n Section 9.2 Speer Indemnity………………………………………………………….. 49
\n Section 9.3 Base Indemnification by ADMI………………………………………………. 49
\n Section 9.4 PSI Indemnification by ADMI……………………………………………….. 50
\n Section 9.5 Indemnification by Purchaser………………………………………………. 51
\n Section 9.6 Notice and Resolution of Claim…………………………………………….. 51
\nARTICLE X TERMINATION…………………………………………………………………….. 52
\n Section 10.1 Termination…………………………………………………………….. 52
\n Section 10.2 Effect of Termination……………………………………………………. 53
\nARTICLE XI MISCELLANEOUS………………………………………………………………….. 53
\n Section 11.1 Notices………………………………………………………………… 53
\n<\/c><\/s><\/table>\n ii<\/p>\n
\n
\n Section 11.2 Amendment, Waiver……………………………………………………….. 55
\n Section 11.3 Assignment……………………………………………………………… 55
\n Section 11.4 Entire Agreement………………………………………………………… 55
\n Section 11.5 Parties in Interest……………………………………………………… 55
\n Section 11.6 Expense………………………………………………………………… 55
\n Section 11.7 Governing Law; Jurisdiction; Service of Process…………………………….. 56
\n Section 11.8 Specific Performance…………………………………………………….. 56
\n Section 11.9 Transfer and Similar Taxes……………………………………………….. 56
\n Section 11.10 Headings………………………………………………………………. 56
\n<\/c><\/s><\/table>\n iii<\/p>\n
EXHIBITS<\/p>\n
A — Form of Capacity and Service Agreement<\/p>\n
B — Forms of Services and Option Agreements<\/p>\n
C — Form of Note<\/p>\n
D — Form of Contribution Agreement<\/p>\n
E — Form of Subscription Agreement<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8630],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9623,9622],"class_list":["post-43520","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-qwest-communications-international-inc","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43520","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43520"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43520"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43520"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43520"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}