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FIRST AMENDMENT TO ASSET EXCHANGE AGREEMENT
THIS FIRST AMENDMENT TO ASSET EXCHANGE AGREEMENT (this "Amendment"),
dated as of December 15, 1995, is by and between Time Warner Entertainment -
Advance/Xxxxxxxx Partnership ("TWEAN") and Telecable Associates, Inc.
("TCA").
RECITALS:
A. TWEAN and TCA entered into that certain Asset Exchange
Agreement (the "Exchange Agreement") dated August 28, 1995.
B. TWEAN and TAC now desire, pursuant to Section 11.5 of the
Exchange Agreement, to amend the Exchange Agreement to provide more
particularized indemnification for damages that may be incurred relating to
certain real property.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
Amendments
Section 1.1 Indemnification by TWEAN. Section 10.2 of the Exchange
Agreement is hereby amended to add subsection (g) immediately following the
existing Section 10.2(f):
(g) the failure of TWEAN to transfer to TCA good and
marketable title to the property more particularly described in
Exhibit A attached hereto (the "Antenna Tract"), upon which property
an antenna that is part of the TWEAN Systems is located.
Section 1.2 Time and Manner of Certain Claims. The second sentence
of Section 10.5 that reads
"TCA's liability under Section 10.1 and TWEAN's liability under
Section 10.2 (other than Section 10.2(d) shall be limited to Losses
exceeding in the aggregate $50,000 (the "Deductible"), and neither
party shall have any liability under this Agreement for Losses
constituting the Deductible."
shall be deleted and replaced with
"TCA's liability under Section 10.1 and TWEAN's liability under
Section 10.2 (other than Sections 10.2(d) and
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10.2(g)) shall be limited to Losses exceeding in the aggregate $50,000
(the "Deductible"), and neither party shall have any liability under
this Agreement for Losses constituting the Deductible"
such that Section 10.5, as amended, reads as follows:
Section 10.5. Time and Manner of Certain Claims. The
representations and warranties of TWEAN and TCA in this Agreement
shall survive Closing for a period of 24 months, except that (i) the
liability of the parties shall extend beyond such 24-month period with
respect to any claim which has been asserted in a written notice
before the expiration of such 24-month period, (ii) all such
representations and warranties with respect to any federal, state or
local taxes and with respect to any FCC or Copyright matters will
survive until the expiration of the applicable statute of limitations,
(iii) the covenants and agreements of the parties in this Agreement
and all representations with respect to title to the Assets shall
survive Closing and shall continue in full force and effect without
limitation, and (iv) the representations and warranties set forth in
Section 4.15 shall survive Closing for a period of 15 years. TCA's
liability under Section 10.1 and TWEAN's liability under Section 10.2
(other than Sections 10.2(d) and 10.2(g)) shall be limited to Losses
exceeding in the aggregate $50,000 (the "Deductible"), and neither
party shall have any liability under this Agreement for Losses
constituting the Deductible. TCA's and TWEAN's liability,
respectively, under this Agreement shall be limited to Losses not
exceeding in the aggregate the amount of $62,700,000.
Section 1.3 Owned Real Property. Schedule 2.1(b)(ii) TWEAN Real
Property Interests Section A. Owned Real Property subsections 1. and 2. to the
Exchange Agreement are hereby deleted and replaced with the language set forth
on Exhibit A; in addition, existing subsection 3, is renumbered to be
subsection 2.
ARTICLE 2
Ratification
The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Exchange
Agreement and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Exchange Agreement are ratified and confirmed
and shall continue in full force and effect. TWEAN and TCA agree that the
Exchange
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Agreement as amended hereby shall continue to be legal, valid, binding
and enforceable in accordance with its terms.
ARTICLE 3
Covenants
TWEAN covenants to (a) use its best efforts, and to continue to use its
best efforts following the Closing (as defined in the Exchange Agreement), to
transfer to TCA good and marketable title to the property by special warranty
deed more particularly described in Exhibit A attached hereto (the "Antenna
Tract"), upon which property an antenna that is part of the TWEAN Systems is
located, (b) provide all assistance reasonably requested by TCA to enable TCA
to timely perform its obligations to Star Cable Associates ("Star") under
Section 3.2 of the First Amendment to Asset Purchase Agreement dated December
15, 1995 between TCA and Star (the "Purchase Agreement Amendment"), and (c)
pay, or cause to be paid, to Star timely all amounts payable by TCA to Star
under Section 1.2 of the Purchase Agreement Amendment; provided, however, that
if TWEAN elects to make such payments through TCA, TCA shall receive the
necessary funds from TWEAN and timely make such payments to Star.
ARTICLE 4
Miscellaneous
Section 4.1 Reference to Agreement. The Exchange Agreement and any and
all other agreements, documents, or instruments now or hereafter executed and
delivered pursuant to the terms hereof or thereof, are hereby amended so that
any reference to the Exchange Agreement shall mean a reference to the Exchange
Agreement as amended hereby.
Section 4.2 Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 4.3 APPLICABLE LAW. THE VALIDITY, PERFORMANCE AND ENFORCEMENT
OF THIS AMENDMENT, UNLESS EXPRESSLY PROVIDED TO THE CONTRARY, SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
CONFLICTS OF LAW OF SUCH STATE.
Section 4.4 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of TWEAN and TCA and their respective successors and
assigns.
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Section 4.5 Counterparts. This Amendment may be executed in one
or more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument. Telecopies of signatures shall be binding and effective as
originals.
Section 4.6 ENTIRE AGREEMENT. The Exchange Agreement, as amended
by this Amendment, and all other instruments, documents and agreements executed
and delivered in connection with the Exchange Agreement and this Amendment
embody the final, entire agreement among the parties hereto and supersede any
and all prior commitments, agreements, representations and understandings,
whether written or oral, relating to the Exchange Agreement and this Amendment,
and may not be contradicted or varied by evidence of prior, contemporaneous or
subsequent or oral agreements or discussions of the parties hereto. There are
no oral agreements among the parties hereto.
TCA:
TELECABLE ASSOCIATES, INC., A TEXAS
CORPORATION
By: XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx, President
TWEAN:
TIME WARNER ENTERTAINMENT -
ADVANCE/XXXXXXXX PARTNERSHIP, A NEW YORK
GENERAL PARTNERSHIP
BY: TIME WARNER ENTERTAINMENT COMPANY, L.P.,
A DELAWARE LIMITED PARTNERSHIP, THROUGH
ITS DIVISION, TIME WARNER CABLE
VENTURES, GENERAL PARTNER
By: XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx,
Vice President,
Time Warner Cable Ventures
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