Exhibit 10.73
MUTUAL RELEASE AGREEMENT
THIS MUTUAL RELEASE AGREEMENT (this "Agreement") is made as of the 27th
day of January 2003, by and among Xxxxxxx X. Xxxxx ("MTF"), the Fries Family
Partnership LLLP, a Colorado limited liability limited partnership (the "Family
Partnership" and, together with MTF, "Fries"), UnitedGlobalCom, Inc., a Delaware
corporation ("UGC") and UGC Properties (formerly known as United International
Properties, Inc., a Colorado corporation ("Properties" and, together with UGC,
the "Company").
RECITALS
X. Xxxxx is indebted to the Company in the amount of $3,517,429. Such
indebtedness is evidenced by non-recourse promissory notes, dated various dates
commencing November 22, 2000, payable to the Company (the "Notes") and is
secured by the collateral as set forth on Exhibit A attached hereto (the
"Collateral").
B. The Company has declared the Notes in default, set January 22, 2003
as the date for repayment, and stated its intention to foreclose upon the
collateral. Fries has asserted that the Notes are neither in default nor
currently due and payable.
C. The parties have agreed to resolve their dispute on this matter
without resort to litigation and desire to enter into this Agreement in full
settlement of all claims that were or could have been asserted by any party
hereto against any other party in respect of the Notes and the Collateral.
AGREEMENT
In consideration of the terms of this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agrees as follows:
1. ACKNOWLEDGEMENT OF INDEBTEDNESS. Fries acknowledges that, as of the
date hereof, he is indebted to the Company under the Notes in the approximate
amount of $3,517,429 (the "Indebtedness"), and that he has granted to the
Company a security interest in the Collateral to secure repayment of all of the
Indebtedness. Fries has not granted a security interest, lien or other
encumbrance in the Collateral to any other person.
2. RETURN OF COLLATERAL; TERMINATION OF PROCEEDING.
(a) Fries hereby surrenders, grants and turns over to the
Company ownership, possession and control of all of the Collateral and the
Company hereby accepts such Collateral in complete and full satisfaction of the
Indebtedness (the "Foreclosure").
(b) The Foreclosure proceeding shall be complete upon the
execution of this Agreement. The Company shall not be obligated to sell or
otherwise dispose of the Collateral. Fries waives any and all (i) notices
regarding the retention or disposition of the Collateral and (ii) rights of
redemption in, to or of the Collateral.
(c) Fries shall execute and deliver to the Company such
additional documents, instruments and agreements as may be reasonably necessary
and appropriate for the complete surrender and return of the Collateral to the
Company, to vest in the Company all right, title and interest therein and to
otherwise effect and evidence the Foreclosure.
3. BONUS PAYMENT.
(a) Subject to execution of this Agreement by Fries and
delivery of the executed Agreement to UGC no later than 5 p.m. Mountain Standard
Time, Tuesday, January 28, 2003, UGC shall pay to MTF a bonus in the amount of
$1,248,256 ("Bonus"), pursuant to (b) below.
(b) Upon receipt of this Agreement pursuant to the terms in
(a) above, UGC shall execute this Agreement and shall deliver a fully executed
copy of this Agreement to Fries. UGC shall pay to MTF the Bonus in immediately
available funds no later than two (2) business days following receipt of the
executed Agreement pursuant to (a) above.
4. MUTUAL RELEASE. UGC and Properties, for and on behalf of themselves
and their respective officers, directors, employees, shareholders, parent,
subsidiaries, affiliates, successors and assigns ("Company Releasors") hereby
release and forever discharge MTF and the Family Partnership, their respective
partners, representatives, heirs, successors and assigns, from any and all
claims, demands and causes of action, known and unknown, which the Company
Releasors may now have or ever have had against MTF and the Family Partnership,
their respective partners, representatives, heirs, successors and assigns,
arising out of the Indebtedness, the Notes, the Foreclosure, the letter
agreement dated May 7, 2002, between MTF and UGC, or any other written or oral
agreement relating to the foregoing, other than the express obligations of Fries
under this Agreement. MTF and the Family Partnership, for and on behalf of
themselves, their respective partners, representatives, heirs, successors and
assigns, hereby release and forever discharge the Company Releasors from any and
all claims, demands and causes of action, known and unknown, which MTF and the
Family Partnership, their respective partners, representatives, heirs,
successors or assigns, may now have or ever have had against the Company
Releasors arising out of the Indebtedness, the Notes, the letter agreement dated
May 7, 2002, between MTF and UGC, the Foreclosure or any other written or oral
agreement relating to the foregoing, other than the express obligations of the
Company under this Agreement. Each party represents that he has not made or
suffered to be made any assignment or transfer of any claim, demand or cause of
action released by him hereunder and that he is the sole and absolute owner
thereof.
5. INFORMED DECISION. The parties have been represented by counsel of
their own choice throughout the action described herein and all investigations
and negotiations which have preceded the execution of this Agreement. Each party
acknowledges that it has sufficient information in order to make an informed
decision about whether to enter into this Agreement.
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6. ENTIRE AGREEMENT; AMENDMENTS. The Agreement contains the entire
agreement of the parties with respect to the matters provided for herein and
supersedes all prior agreements, whether oral or written, and all
contemporaneous oral agreements with respect to such matters. This Agreement may
be amended only with the written consent of MTF and XXX.
0. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado (excluding its conflicts of
laws provisions if such provisions would require application of the laws of
another jurisdiction).
8. NOTICES. Any notice or other communication hereunder to any party
hereto shall be by hand delivery, overnight delivery or facsimile and unless
otherwise provided herein shall be deemed to have been given or made when
delivered or faxed, addressed to the party at its address specified below (or at
any other address that the party may hereafter specify to the other parties in
writing):
The Company: UnitedGlobalCom, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Legal Department
Telephone: 000 000 0000
Facsimile: 000 000 0000
Fries: Xxxxxxx X. Xxxxx
c/o UnitedGlobalCom, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
9. HEADINGS. The headings in this Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any provision hereof.
10. SUCCESSORS AND ASSIGNS. Neither this Agreement nor any party's
rights or obligations hereunder may be assigned without the consent of the other
parties, which consent shall not be unreasonably withheld.
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11. CONSTRUCTION OF TERMS. Common nouns and pronouns shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity of
the person may in the context require.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written.
UNITEDGLOBALCOM, INC.
/s/ XXXXXXX X. XXXXX By /s/ XXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxx Name XXXXX X. XXXXXXXX
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Title SR. VICE PRESIDENT
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THE FRIES FAMILY PARTNERSHIP LLLP UGC PROPERTIES, INC.
By /s/ XXXXXXX X. XXXXXXXX, XX. By /s/ XXXXX X. XXXXXXXX
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Name XXXXXXX X. XXXXXXXX, XX. Name XXXXX X. XXXXXXXX
--------------------------------- --------------------------------
Title TRUSTEE Title SR. VICE PRESIDENT
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