EXHIBIT 10.16
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PURCHASE AGREEMENT
BETWEEN
BINAN INVESTMENTS B.V.
UA-UII, INC.
AND
UA-UII MANAGEMENT, INC.
NOVEMBER 6, 1998
CONCERNING UNITED INTERNATIONAL INVESTMENTS
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement"), dated November 6, 1998, is
between BINAN INVESTMENTS B.V. ("Binan"), a company organized under the laws of
The Netherlands, UA-UII, INC. ("UA"), a Colorado corporation, and UA-UII
MANAGEMENT, INC. a Colorado corporation ("UAM").
RECITALS
A. Binan and UA are the sole general partners of United International
Investments (the "Partnership"), a Colorado general partnership, originally
formed pursuant to a partnership agreement entered into as of June 18, 1992,
between United International Holdings, Inc. ("UIHI"), a Delaware corporation,
and UA-UII, Inc., a Colorado corporation formerly known as UA-Israel, Inc. (such
agreement, as amended to date, is referred to herein as the "Partnership
Agreement"). Binan is the successor to UIHI's interest in the Partnership.
Binan is the managing partner of the Partnership.
B. United Pan-Europe Communications N.V. (formerly known as United and
Philips Communications B.V. ("UPC") and UAM are the sole general partners of UII
Management ("UII Management"), a Colorado general partnership, originally formed
pursuant to the UIIM Partnership Agreement, entered into as of December 28, 1992
and effective as of April 8, 1992, as amended between UPC (as successor to
United International Management, Inc.) and UAM (such agreement, as amended to
date, is referred to herein as the "UIIM Partnership Agreement"). UPC is the
managing partner of the UII Management.
C. The Partnership owns interests, directly or indirectly, in, among
other things, (i) UCT Netherlands B.V. ("UCTN"), Tishdoret Achzakot Ltd., Tevel
Israel International Communications Ltd. ("Tevel"), its subsidiaries and I.C.P.
Israel Cable Programming Ltd. (collectively with UCNT and Tevel, the "Israel
Interests"); (ii) Melita Partnership and Melita Cable TV plc ("Melita" and
collectively with the Melita Partnership, the "Malta Interests"); and (iii) UII-
Ireland Limited Liability Company, a Utah limited liability company ("UII
Ireland LLC"), UII-Ireland Ltd., a Colorado limited partnership ("UII Ireland
LP"), and its subsidiary companies including Princes Holdings, Ltd. ("PHL"), a
corporation organized under the laws of Ireland, (collectively the "Ireland
Interests").
D. PHL owes I(Pounds)4,975,000 in principal and I(Pounds)1,696,843 in
interest to UII Ireland LP (the "Shareholder Loans") as of September 30, 1998.
(The Shareholder Loans accrue interest at a per diem amount of I(Pounds)1146.)
Binan's indirect pro-rata portion of the Shareholder Loans as of September 30,
1998 is I(Pounds)3,983,909 (the "Binan Shareholder Loans"). (The Binan
Shareholder Loans accrue interest at a per diem amount of I(Pounds)624.)
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X. Xxxxxxx Communications Limited ("RCL") owns a 10% limited partnership
interest in UII Ireland LP (the "Xxxxxxx Interest") and Binan owns a .88889%
interest in UII Ireland LLC (collectively with the Xxxxxxx Interest, the "Binan
Ireland Interests"). (The Binan Ireland Interests and the Ireland Interests are
referred to collectively as the "Combined Ireland Interests.") RCL's indirect
pro-rata portion of the Shareholders Loans as of September 30, 1998 is
I(Pounds)448,566 (the "Xxxxxxx Shareholders Loans"). (The Xxxxxxx Shareholder
Loans accrue interest at a per diem amount of I(Pounds)87.)
F. Prior to the Closing, Binan shall acquire from RCL, the Xxxxxxx
Interest and all rights to the Xxxxxxx Shareholder Loans.
G. UPC (as successor to UIHI), and PHL were parties to the Management
Services Agreement dated June 19, 1992 (the "PHL Management Agreement") pursuant
to which PHL owes a receivable to UPC of I(Pounds)1,066,667 as set forth on the
UII Liquidation and Settlement Sheet attached as Exhibit A (the "PHL
Receivable").
H. Pursuant to the terms and conditions of this Agreement, (1) the
parties desire to cause UII to distribute to UA the Ireland Interests, including
the Shareholder Loans, (2) Binan desires to acquire UA's partnership interest in
the Partnership (the "UA Partnership Interest") (3) Binan desires to acquire
UAM's partnership interest in UII Management (the "UIIM Interest"), and (4) UA
desires to acquire the Binan Ireland Interests and all rights to the PHL
Receivable.
I. Charts illustrating the transactions contemplated by this Agreement
are attached as Exhibit B.
AGREEMENT
Each of Binan, UA and UAM agree as follows:
ARTICLE I
PURCHASE AND SALE
1.01 The Closing. Subject to the satisfaction of the conditions set forth
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in this Agreement, the closing (the "Closing") of the transactions described in
this Agreement shall take place at 10:00 a.m. local time at the offices of Holme
Xxxxxxx & Xxxx LLP, Fourth Floor, Mellier House, 26a Albemarle Street, London,
England, on the later of November 5, 1998 or the third Business Day after all of
the conditions set forth in Articles V and VI have been satisfied or waived, or
such other time, date and place as UA and Binan may agree in writing. (The date
of the Closing being referred to herein as the "Closing Date," and the term
"Business Day" means any day that the national banks in the United States of
America, England and The Netherlands are open for business.)
1.02 Actions at Closing. At the Closing the following shall occur:
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(a) The Partnership shall distribute to UA the Ireland Interests,
including the Shareholder Loans.
(b) Transfers to Binan of UA Partnership Interest, Assumptions.
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Pursuant and subject to the terms and conditions of this Agreement, the UA
Partnership Interest shall be transferred to Binan or a subsidiary designated in
accordance with Section 12.06 (the "Subsidiary"), and Binan or the Subsidiary
shall assume all liabilities and obligations that relate to the UA Partnership
Interest arising before, on or after the date of Closing, excluding (i) UA's
liabilities and obligations, if any, for Taxes (as defined in Section 8.02) that
UA may be or become liable for in connection with the sale of the UA Partnership
Interest, (ii) any liability or obligation relating to or arising out of any
action taken or any agreement or other document or instrument executed by UA
that creates any obligation or liability for the Partnership or otherwise that
relates to the UA Partnership Interest or that creates any claim or charge
against such interests, other than those actions taken with the actual knowledge
and acquiescence (express or implicit) of Binan, (iii) any such liability or
obligation attributable to the Ireland Interests, and (iv) any liability arising
under Section 8.03 hereof.
(c) Transfers to Binan of UIIM Interest, Assumptions. Pursuant and
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subject to the terms and conditions of this Agreement, the UIIM Interest shall
be transferred to Binan or a affiliate designated in accordance with Section
12.06 (the "Affiliate"), and Binan or the Affiliate shall assume all liabilities
and obligations that relate to the UIIM Interest arising before, on or after the
date of Closing, excluding (i) UA's liabilities and obligations, if any, for
Taxes (as defined in Section 8.02) that UA may be or become liable for in
connection with the sale of the UIIM Interest, (ii) any liability or obligation
relating to or arising out of any action taken or any agreement or other
document or instrument executed by UA that creates any obligation or liability
for UII Management or otherwise that relates to the UIIM Interest or that
creates any claim or charge against such interests, other than those actions
taken with the actual knowledge and acquiescence (express or implicit) of Binan,
and (iii) any liability arising under Section 8.03 hereof.
(d) Transfers to UA, Assumptions. Pursuant and subject to the terms
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and conditions of this Agreement, the Binan Ireland Interests shall be
transferred to UA and UA shall, assume all liabilities and obligations of Binan
as a general partner of the Partnership and otherwise, to the extent that they
relate to the Combined Ireland Interests arising before, on or after the date of
Closing, excluding (i) Binan's liabilities and obligations, if any, for Taxes
(as defined in Section 8.02), and (ii) any liability or obligation relating to
or arising out of any action taken or any agreement or other document or
instrument executed by Binan that creates any obligation or liability for the
Partnership or otherwise relates to the Combined Ireland Interests or that
creates any claim or charge against the Partnership or any of its assets or the
Combined Ireland Interests, other than those taken with the actual knowledge and
acquiescence (express or implicit) of UA and (iii) any liability arising under
Section 8.02 hereof.
(e) Payment. Binan will pay to UA the sum of $71 million (i) plus
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the additional amounts set forth on the UII Liquidation and Settlement Sheet
attached as Exhibit A,
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which includes amounts related to UAM's pro rata share of management fees with
respect to the Israel Interests and the Malta Interests and UA's pro rata
portion of dividends received by UPC with respect to the Israel Interests, and
(ii) minus the credits set forth on Exhibit A which includes the amount of the
Binan Shareholder Loans and Xxxxxxx Shareholder Loans, including all accrued
interest as of the Closing Date (collectively, the "Adjusted Purchase Price"),
by wire transfer to an account previously designated by UA. UA hereby consents
to the transfer of the Xxxxxxx Interest to Binan as described in Recital E. The
amounts set forth in Recital C with respect to the Shareholder Loans, the Binan
Shareholder Loans and the Xxxxxxx Shareholder Loans have been confirmed by the
appropriate parties pursuant to the Acknowledgment to be delivered pursuant to
Sections 7.01(g) and 7.02(j).
(f) Other Deliveries. The parties shall make the deliveries
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described in Article VII.
1.03 Post-Closing Adjustments.
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(a) Not less than 60 days after the Closing, Binan shall notify UA
(the "Adjustment Notice") of its good faith determination of any necessary
adjustment to the calculation of the Adjusted Purchase Price relating to cash of
the Partnership and UII Management, dividends made with respect to the Israel
Interests and management fees received with respect to the Israel or Malta
Interests and shall provide a reasonably detailed calculation of the Adjusted
Purchase Price. Promptly following the receipt of the Adjustment Notice, UA
shall verify such calculation of the Adjusted Purchase Price and Binan shall
provide complete access to the records necessary to complete such calculation to
UA and its accountants for the purpose of such verification. Not later than 15
days after receipt of the Adjustment Notice. UA shall notify Binan in writing
(the "Response Notice") as to whether it agrees with the calculation in the
Adjustment Notice. If UA fails to provide such Response Notice within 15 days
of receipt of the Adjustment Notice, the calculations set forth in the
Adjustment Notice shall be final and binding on both parties. If UA agrees with
the calculation in the Adjustment Notice, or if UA fails to deliver a Response
Notice within 15 days after receipt of the Adjustment Notice, Binan shall
promptly make any payments required as a result of the calculations in the
Adjustment Notice. If UA disagrees, it shall include in the Response Notice a
reasonably detailed calculation of the amount of any necessary adjustment to the
calculation of the Adjusted Purchase Price it asserts existed at Closing. The
Parties shall promptly attempt to reconcile their respective determinations as
to the amount of the Adjusted Purchase Price. If the parties are unable to
agree upon the amount of the Adjusted Purchase Price within 20 days after
receipt of the Response Notice, either party may refer the matter to Xxxxxx
Xxxxxxxx, LLP or another independent certified public accountant acceptable to
the parties, who shall promptly determine the amount of the Adjusted Purchase
Price, and whose decision shall be final and binding upon both parties who will
share equally the cost for Xxxxxx Xxxxxxxx or the other independent accountant.
Any amounts required to be paid pursuant to this Section 1.03(a) shall be paid
within 10 days following the date that the accountants communicate the amount of
Adjusted Purchase Price as of Closing to the parties.
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(b) Promptly after the first anniversary of the Closing the parties
will determine whether there has occurred since the Closing any transaction (a
"Valuation Transaction") with respect to UII Ireland LLC, UII Ireland LP, or
PHL, or with respect to any similarly situated property in Ireland (such as
CableLink in Dublin) (an "Ireland Entity") excluding any Valuation Transaction
to which UIHI or any of its affiliates or principals is a direct or indirect
party, but including, without limitation, (a) a sale or contract for the sale of
any equity or instruments convertible into equity or carrying the right to
acquire equity of an Ireland Entity, (b) the sale or contract for the sale of
material assets of any Ireland Entity, (c) an equity financing or (d) any other
transaction or contract to enter into a transaction, any of which would indicate
a value for a 25% indirect interest in PHL (the "PHL Equity") as of the Closing
greater than $20.5 million provided that, if the Valuation Transaction is a
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contract entered into within one year of the Closing, such transaction must
close within 18 months of the Closing to be the basis for any adjustment, and
that reapplication for licenses in Ireland by PHL or any straight debt financing
by an Ireland Entity shall not be a Valuation Transaction. If such a Valuation
Transaction has occurred, UA shall pay to Binan an amount equal to the
difference between (i) the indicated value of the PHL Equity based upon the
Valuation Transaction and (ii) $20.5 million, up to a maximum of $6.5 million.
If no such Valuation Transaction occurs with respect to an Ireland Entity or if
the implied value of the PHL Equity based upon a Valuation Transaction is lower
than $20.5 million, no payment will be due to Binan or from Binan or any of its
affiliates to UA or any of its affiliates. UA and Binan shall apply the
valuation methodology used in such Valuation Transaction to the extent it is
known and the valuation shall be discounted at 15 percent per annum from the
date of the Valuation Transaction to the Closing Date. If the parties are
unable to agree upon the indicated value of the PHL Equity based upon a
Valuation Transaction, Xxxxxxx Sachs or another internationally recognized
investment banking firm approved in their reasonable discretion by Binan and UA
will be retained to determine the indicated value of the PHL Equity based upon
its analysis of the Valuation Transaction. Such determination shall be binding
on both parties who will share equally the cost for Xxxxxxx Xxxxx or the other
investment banker. UA will promptly advise Binan of any Valuation Transaction of
which it has knowledge and will provide, to the extent available to UA,
appropriate documentation and other information to Binan and any investment
banker that is necessary or advisable to assist in establishing the indicated
value of a Valuation Transaction.
(c) Litigation. If the pending lawsuit entitled Princes Holdings
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Ltd. and others vs. Minister for Public Enterprise and others is settled or
concluded otherwise within one year from the Closing Date with a net cash award
in favor of PHL, UA will make a payment to Binan equal to 25% of such award net
of 25% of the legal fees incurred by PHL or its subsidiaries in connection with
the lawsuit after Closing.
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ARTICLE II
UA'S REPRESENTATIONS AND WARRANTIES
UA and UAM represent and warrant to Binan as follows:
2.01 Organization, Power and Authorization. Each of UA and UAM is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Colorado. Each of UA and UAM has full corporate power and
authority to enter into this Agreement, to perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated by each of UA and UAM have been duly and validly
authorized by all necessary corporate action on the part of UA and UAM,
respectively. This Agreement is a valid and binding agreement of each of UA and
UAM and is enforceable against each of them in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization or
similar laws of general applicability relating to or affecting enforcement of
creditors' rights and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the court before
which any proceeding therefor may be brought. Any assignment, agreement,
certificate or other document that UA or UAM executes and delivers in connection
with this Agreement, when so executed and delivered, will be a valid and binding
obligation of UA or UAM, as the case may be, enforceable against UA or UAM, as
the case may be, in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization or similar laws of general
applicability relating to or affecting enforcement of creditors' rights and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
2.02 No Violation. Each of UA's and UAM's execution and delivery of this
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Agreement, its performance of their respective obligations hereunder and the
consummation of the transactions contemplated hereby will not violate any
provision of law and will not, with or without the giving of notice or the
passage of time, conflict with or result in any breach of any of the terms or
conditions of, or constitute a default under (a) any of the governing documents
of UA or UAM, respectively, or (b) except for the transfer restrictions
contained in the Partnership Agreement or the UIIM Partnership Agreement and
restrictions contained in the PHL financings with the Bank of Ireland, any
agreement, contract or other instrument by which either UA or UAM is bound.
2.03 The Partnership Interest. UA owns, both of record and beneficially,
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the UA Partnership Interest free from any pledge, lien, charge, security
interest, option, right of first refusal or other encumbrance, restriction or
claim, of any person claiming through UA, except for the transfer restrictions
contained in the Partnership Agreement and restrictions contained in the PHL
financings with the Bank of Ireland. UA has not taken any action that would
result in the imposition of any pledge, lien, charge, security interest or other
encumbrance, restriction or claim upon the UA Partnership Interests.
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2.04 The UIIM Interest. UAM owns, both of record and beneficially, the
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UIIM Interest free from any pledge, lien, charge, security interest, option,
right of first refusal or other encumbrance, restriction or claim, of any person
claiming through UAM, except for the transfer restrictions contained in the UIIM
Partnership Agreement. UAM has not taken any action that would result in the
imposition of any pledge, lien, charge, security interest or other encumbrance,
restriction or claim upon the UIIM Interests.
2.05 No Actions Binding the Interest. Neither UA or UAM has taken any
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action nor executed any agreement or other document or instrument that creates
any obligation or liability, contingent or otherwise, or that creates any claim
or charge, contingent or otherwise, against the UA Partnership Interest or the
UIIM Interest, respectively, except for actions taken with the actual knowledge
and acquiescence (express or implicit) of Binan.
2.06 Brokers and Other Liabilities. Neither UA or UAM has employed or
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retained any broker, agent or finder, or agreed to pay any fee, commission or
similar payment to any such person, on account of this Agreement or the
transactions contemplated hereby with respect to which any of Binan, its
affiliates or the Partnership or UII Management would be liable.
2.07 Consents and Approvals. UA has obtained or filed, or prior to the
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Closing shall obtain or file, all consents, approvals and notices, governmental
or otherwise, necessary for UA's execution, delivery and performance of this
Agreement as it relates to the Combined Ireland Interests, except with respect
to Binan's acquisition of the Xxxxxxx Interests.
2.08 Litigation. There are no actions, proceedings, claims or
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investigations pending or, to the best knowledge of UA or UAM, threatened by or
before any court or administrative agency to which UA, UAM or any of their
affiliates is a party that questions the validity of this Agreement or any other
agreement or document to be executed in connection with this Agreement or seeks
to restrain or enjoin the consummation of the transactions contemplated by this
Agreement.
ARTICLE III
BINAN'S REPRESENTATIONS AND WARRANTIES
Binan represents and warrants to UA that:
3.01 Organization, Corporate Power and Authorization. Each of Binan and
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the Subsidiary is a company duly organized and validly existing under the laws
of The Netherlands. Each of Binan and the Subsidiary has full corporate power
and authority to enter into this Agreement, to perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated by each of Binan and the Subsidiary have been duly
and validly authorized by all necessary company action on the part of Binan and
the Subsidiary, respectively. This Agreement is a valid and binding agreement of
each of Binan and
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the Subsidiary and is enforceable against each of them in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization or similar laws of general applicability relating to or affecting
enforcement of creditors' rights and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought. Any assignment,
agreement, certificate or other document that Binan or the Subsidiary executes
and delivers in connection with this Agreement, when so executed and delivered,
will be a valid and binding obligation of Binan or the Subsidiary, as the case
may be, enforceable against Binan or the Subsidiary, as the case may be, in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization or similar laws of general applicability relating to
or affecting enforcement of creditors' rights and except that the availability
of equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be brought.
3.02 No Violation. Binan's execution and delivery of this Agreement, its
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performance by Binan and the Subsidiary, and the consummation of the
transactions contemplated hereby will not violate any provision of law, and will
not, with or without the giving of notice or the passage of time, conflict with
or result in any breach of any of the terms or conditions of, or constitute a
default under (a) any of the governing documents of Binan or the Subsidiary or
(b) any agreement, contract or other instrument by which Binan or the Subsidiary
is bound.
3.03 The Partnership Interest. Binan is a general partner of the
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Partnership and owns, both of record and beneficially, its interest in the
Partnership and the Binan Ireland Interests free from any pledge, lien, charge,
security interest, option, right of first refusal or other encumbrance,
restriction or claim, except for the transfer restrictions contained in the
Partnership Agreement. Binan has not taken any action that would result in the
imposition of any pledge, lien, charge, security interest or other encumbrance,
restriction or claim upon the Combined Ireland Interests.
3.04 No Actions Binding the Partnership. Binan has neither taken any
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action nor executed any agreement or other document or instrument that creates
any obligation or liability, contingent or otherwise, for the Partnership or the
Combined Ireland Interests or that creates any claim or charge, contingent or
otherwise, against the Partnership or any of the Combined Ireland Interests,
except for actions taken with the actual knowledge and acquiescence (express or
implicit) of UA, or taken in the ordinary course of business in accordance with
the Partnership Agreement.
3.05 Consents and Approvals. Binan has obtained or filed, or prior to the
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Closing shall obtain or file, all consents, approvals and notifications,
governmental or otherwise, necessary for the execution, delivery and performance
of this Agreement by Binan or the Subsidiary, and the consummation of the
transactions contemplated hereby with respect to the Malta Interests and the
Israel Interests.
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3.06 Litigation. There are no actions, proceedings, claims or
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investigations pending or, to the best knowledge of Binan, threatened by or
before any court or administrative agency to which Binan or its affiliates is a
party that questions the validity of this Agreement or any other agreement or
document to be executed in connection with this Agreement or seeks to restrain
or enjoin the consummation of the transactions contemplated by this Agreement.
3.07 Brokers and Other Liabilities. Binan has not employed or retained any
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broker, agent or finder, or agreed to pay any fee, commission or similar payment
to any such person, on account of this Agreement or the transactions
contemplated hereby with respect to which any of UA, its affiliates or the
Partnership would be liable.
3.08 Combined Ireland Interests. Except as disclosed to or otherwise known
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by UA:
(a) Ownership. To Binan's knowledge, other than the Subscription and
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Shareholders Agreement among Independent Newspapers, PLC, United International
Holdings, Inc., PHL and Independent Wireless Cable Limited dated April 9, 1992,
as amended by Amendment No. 1 dated June 18, 1992 (the "Subscription
Agreement"), the PHL Management Agreement, and undertakings with respect to PHL
financings with the Bank of Ireland, and the Partnership Agreement and the
agreement forming UII Ireland LLC, there are no other written agreements,
commitments or understandings relating to the ownership of the Combined Ireland
Interests or management or control of the Combined Ireland Interests.
(b) Governmental Permits. To Binan's knowledge, all franchises,
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licenses, authorizations, permits and similar rights obtained from any
governmental authority with respect to the Combined Ireland Interests
("Governmental Permits") are currently in full force and effect and are issued
and maintained in all material respects according to all applicable statutes,
ordinances, codes, laws, rules, regulation or other requirements enacted by any
governmental authority ("Laws"). To Binan's knowledge, there is no legal
action, governmental proceeding or investigation pending to terminate, suspend
or modify any Governmental Permit.
(c) Compliance with Law. To Binan's knowledge, the conduct of the
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business related to the Combined Ireland Interests as it is currently conducted
does not violate any laws, which violation, individually or in the aggregate,
would have a material adverse effect on the Combined Ireland Interests. Binan
has not received any notice claiming a violation by Binan or any of the Combined
Ireland Interests of any Law.
(d) Undisclosed Liabilities. Except as disclosed by, or reserved
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against in, financial statements of the applicable entities, for the year ended
December 31, 1997, to Binan's knowledge, neither UII Ireland LLC or UII Ireland
LP or PHL has any liability or obligation which is or would be material to the
business results of operations or financial condition of either of them
respectively, nor to Binan's knowledge does any aspect of the business of either
of them form a basis for any claim by a third party which, if asserted, could
result in a liability not disclosed by or reserved against in such financial
statements.
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(e) Legal Proceedings. Except as is known to UA, to Binan's
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knowledge there is no judgment or order outstanding, or any action, suit,
complaint, proceeding or investigation by or before any governmental authority
or any arbitrator, pending or threatened, involving or affecting the Ireland
Interests which, if adversely determined, could materially and adversely affect
the financial condition or operations of the Combined Ireland Interests.
3.09 Management Fees and Dividends. UAM's pro rata portion of the
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estimated management fees set forth on the UII Liquidation and Settlement Sheet
attached as Exhibit B were calculated based upon the provisions of the
Consulting Agreement, dated as of August 29, 1991, between UIIM and Tevel and
the Amended and Restated Management Agreement, dated as of December 28, 1992,
between UIIM and Melita and unaudited quarterly financial information and are
subject to adjustment as set forth in Section 1.03(a). UAM's pro rata portion
of dividends made to UPC with respect to the Israel Interests is $2,419,143.
Other than the amounts set forth in the preceding sentences or as contemplated
to be paid pursuant to Section 1.03(a), there are no other receivables or cash
in the Partnership and UIIM.
ARTICLE IV
COVENANTS PENDING THE CLOSING
Pending the Closing (a) neither UA, UAM nor Binan shall, without the other
party's prior written consent, take any action that would result (i) in any of
its representations and warranties contained in this Agreement not being true,
correct and complete in all material respects or (ii) in any of its covenants
contained in this Agreement being breached in any material respect; (b) UA, UAM
and Binan shall each promptly advise the other party of any act or event of
which it becomes aware that has the effect of making incorrect any of its
representations or warranties or rendering unperformable any of such covenants;
(c) UA and UAM shall use commercially reasonable efforts to fulfill the
conditions set forth in Article V, Binan shall use commercially reasonable
efforts to fulfill the conditions set forth in Article VI and each party shall
each use commercially reasonable efforts to cause its respective representations
and warranties to remain true and correct in all material respects as of the
Closing Date; (d) UA, UAM or Binan shall not take any action nor execute any
agreement or other document or instrument that creates any obligation or
liability for the Partnership, UII Management or that creates any claim or
charge against the Combined Ireland Interests or the Malta Interests or Israel
Interests, except for actions duly authorized by the Management Committee of the
Partnership or UII Management or by the written consent or approval of both
Binan and UA or as provided in a letter agreement between UA and Binan dated
August 31, 1998; and (e) Binan hereby agrees to, and agrees to cause its or its
affiliates' representatives on the boards (or equivalent) of the companies
comprising the Ireland Interests to, recuse itself and themselves from all
deliberations by PHL or its subsidiaries and waives all rights to consent or
approve with respect to (i) the reapplication for telecommunications licenses in
Ireland, including the required business plans or (ii) the preparation and
submission of a bid for CableLink. Neither PHL, UA, UAM nor their respective
affiliates shall be obligated to share any information with Binan or its
affiliates or
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representatives, including Xxxx Xxxxxxx, with respect to the matters described
in the preceding sentence. On or prior to execution of this Agreement, Xxxx
Xxxxxxx shall have resigned as chairman and CEO of PHL. Notices of Recusal
relating to the foregoing shall have been delivered to PHL by Binan's
representatives on the Board and Management Committee of PHL. The second and
third paragraphs of the letter dated August 31, 1998 shall survive execution of
this Agreement.
Pending the Closing, UA, UAM and Binan shall cooperate with one another and
use their commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary to obtain the
consents referred to in Sections 2.06 and 3.05. In furtherance of the foregoing,
UA, UAM and Binan shall furnish to one another such information and assistance
as the other may reasonably request in connection with obtaining such consents.
ARTICLE V
CONDITIONS PRECEDENT TO BINAN'S OBLIGATION TO CLOSE
Binan's obligation to effect the Closing is subject to the fulfillment to
Binan's reasonable satisfaction on or before the Closing Date of the following
conditions, any of which Binan may waive in writing:
5.01 Representations and Warranties True on the Closing Date. Each of
-------------------------------------------------------
UA's and UAM's representations and warranties contained in Article II of this
Agreement shall be true and correct in all material respects on the date of this
Agreement and as of the Closing Date with the same force and effect as if they
had been made as of the Closing Date.
5.02 Performance. UA and UAM shall have performed and complied in all
-----------
material respects with all agreements, covenants and conditions contained in
this Agreement required to be performed or complied with by each of them on or
before the Closing Date.
5.03 Consents and Approvals. UA and UAM shall have obtained all consents
----------------------
and approvals and filed all the notices, governmental or otherwise, necessary
for each of UA's and UAM's execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby, excluding the
consents, approvals and notices described in Section 2.06; and Binan shall have
obtained the consents described in Section 3.05.
5.04 No Adverse Order. No order, decree, judgment or other judicial or
----------------
administrative action or rule shall have been issued or be pending to restrain,
enjoin or prevent the indirect transfer of the Malta Interests or the Israel
Interests or direct transfer of the UA Partnership Interest or UIIM Interest.
5.05 Financing. Binan and its affiliates shall have obtained on terms and
---------
conditions satisfactory to them all of the financing necessary to consummate the
transactions contemplated hereby, and such financing shall have been advanced.
11
5.06 Release of Guarantee. UPC shall have been released from all
--------------------
guarantees of indebtedness of PHL and its subsidiaries (the "Guarantee Release")
and UPC and its affiliates shall be released from all obligations arising under
the Subscription Agreement (the "Subscription Release").
5.07 No Material Damage. There shall not have occurred any material
------------------
casualty with respect to the Israel Interests or Malta Interests.
ARTICLE VI
CONDITIONS PRECEDENT TO UA'S OBLIGATION TO CLOSE
UA's and UAM's obligation to effect the Closing is subject to the
fulfillment to UA's reasonable satisfaction on or before the Closing Date of the
following conditions, any of which UA may waive in writing:
6.01 Representations and Warranties True on the Closing Date. Binan's
-------------------------------------------------------
representations and warranties contained in Article III of this Agreement shall
be true and correct in all material respects on the date of this Agreement and
as of the Closing Date with the same force and effect as if they had been made
as of the Closing Date.
6.02 Performance. Binan shall have performed and complied in all material
-----------
respects with all agreements, covenants and conditions contained in this
Agreement required to be performed or complied with by it on or before the
Closing Date.
6.03 No Adverse Order. No order, decree, judgment or other judicial or
----------------
administrative action or rule shall have been issued or be pending to restrain,
enjoin or prevent the transfer of the Combined Ireland Interests to UA.
6.04 Consents and Approvals. Binan shall have obtained all consents and
----------------------
approvals and filed all notices, governmental or otherwise necessary for the
execution, delivery and performance of this Agreement by Binan and the
consummation of the transactions contemplated hereby, other than the consents,
approvals and notices referred to in Section 3.05, and UA shall have obtained
the consents in Section 2.06.
6.05 No Material Damage. There shall not have occurred any material
------------------
casualty with respect to the Combined Ireland Interests.
12
ARTICLE VII
DELIVERIES AT THE CLOSING
7.01 UA's and UAM's Deliveries. UA and UAM shall deliver, or cause to
-------------------------
be delivered, the following items to Binan, at the Closing (all documents shall
be reasonably acceptable in form and substance to Binan):
(a) One or more documents assigning to Binan, the Subsidiary or the
Affiliate, as the case may be, all of the UA Partnership Interest and UIIM
Interest.
(b) A certificate of each of UA and UAM, dated the Closing Date, as
to the matters specified in Sections 5.01 and 5.02.
(c) An opinion of counsel for UA and UAM, dated the Closing Date,
substantially in the form of Exhibit C attached hereto.
(d) A release from UA and UAM, substantially in the form of Exhibit
D attached hereto.
(e) Resignations, effective as of the Closing Date, of UA's
officers, representatives or affiliates from the Management Committee of the
Partnership and from the boards (or equivalent) of the companies comprising the
Israel Interests and the Malta Interests. Resignations, effective as of the
Closing Date, of UAM's officers, representatives or affiliates from the
Management Committee of UII Management.
(f) The Guarantee Release and the Subscription Release.
(g) Acknowledgment of the Shareholders Loans owed to UII Ireland LP
by PHL.
7.02 Binan's Deliveries. Binan shall deliver, or cause to be
------------------
delivered, the following items to UA at the Closing (all documents shall be
reasonably acceptable in form and substance to UA):
(a) One or more assignments of the Combined Ireland Interests.
(b) Copies of assignments evidencing the acquisition of the Xxxxxxx
Interests by Binan.
(c) A certificate of Binan, dated the Closing Date, as to the
matters specified in Sections 6.01 and 6.02.
(d) Opinions of counsel for Binan, dated the Closing Date,
substantially in the forms of Exhibit E and Exhibit F attached hereto.
13
(e) A release from Binan, substantially in the form of Exhibit D
attached hereto.
(f) Resignations effective as of the Closing Date of Binan's
officers, representatives or affiliates from the boards (or equivalent) of the
entities comprising the Ireland Interests.
(g) Funds to UA in the amount of $71,000,000, as adjusted pursuant
to Section 1.02(e), by wire transfer.
(h) An assignment by UPC of the PHL Receivable.
(i) The books and records including minute books and tax returns of
UII Ireland LLC and UII Ireland LP.
(j) Acknowledgment of the Shareholders Loans owed to UII Ireland LP
by PHL.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.01 Survival. To the extent required to give them their proper and
--------
intended effect, the provisions of this Agreement, including UA's, UAM's and
Binan's representations and warranties, shall survive for one year following the
Closing, and this Agreement shall not be deemed merged into any documents
delivered pursuant to the Closing; except that (a) the representations contained
------
in Sections 2.03 and 3.03 shall survive without limit; (b) Sections 8.02, 8.03
and 8.04 shall not terminate at the time provided above if, prior to such time,
a Claim Notice (as defined in Section 8.04) has been given to Binan or UA and
UAM, as applicable; and (c) other provisions of this Agreement, for which some
other period of survival is expressed, shall survive for such expressed period.
8.02 Indemnification by Binan. Binan hereby agrees that it shall
------------------------
indemnify, defend and hold harmless UA, UAM, its partners and affiliates, and
its successors and assigns (the "UA Indemnified Parties") from, against and in
respect of any damages, claims, losses, charges, actions, suits, proceedings,
deficiencies, interest, penalties, and reasonable costs and expenses (including
reasonable attorneys' fees, removal costs, remediation costs, closure costs,
fines, penalties and expenses of investigation and ongoing monitoring)
(collectively, the "Losses") imposed on, sustained, incurred or suffered by or
asserted against any of the UA Indemnified Parties, directly or indirectly,
relating to or arising out of (a) the failure of any representation or warranty
made herein by Binan to be true and correct in all material respects on the date
of this Agreement and at the Closing Date, (b) any breach by Binan of any of its
covenants herein, (c) any liability or obligation relating to or arising out of
any action taken or any agreement or other document or instrument executed by
Binan either that creates any obligation or liability for the Partnership or for
the Combined Ireland Interests or that creates any claim or charge against
14
the Partnership or any of its assets or the Combined Ireland Interests other
than those actions taken with the actual knowledge and acquiescence (express or
implicit) of UA or UAM, respectively (d) any acts or omissions to the act
occurring on or after the Closing that relate to the Israel Interests or the
Malta Interests or (e) any liability or obligation assumed pursuant to Sections
1.02(b) and (c). For avoidance of doubt and notwithstanding the foregoing, Binan
shall have no obligation to indemnify UA or UAM for any tax, levy, impost, duty
or other charge of similar nature, including, any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the same
(collectively, "Taxes") that UA or UAM may be or become liable for in connection
with the sale of the UA Partnership Interest or the UIIM Interest.
8.03 Indemnification by UA. UA and UAM, jointly and severally, hereby
---------------------
agree that they shall indemnify, defend and hold harmless Binan, its affiliates,
and its successors and assigns (the "Binan Indemnified Parties" and,
collectively with the UA Indemnified Parties, the "Indemnified Parties") from,
against and in respect of any Losses imposed on, sustained, incurred or suffered
by or asserted against any of the Binan Indemnified Parties, directly or
indirectly, relating to or arising out of (a) the failure of any representation
or warranty made herein by UA or UAM to be true and correct in all material
respects on the date of this Agreement and at the Closing Date, (b) any breach
by UA or UAM of any of its covenants herein, (c) any liability or obligation
relating to or arising out of any action taken or any agreement or other
document or instrument executed by UA or UAM either that creates any obligation
or liability for the Partnership, UII Management or the Malta Interests and the
Israel Interests or that creates any claim or charge against the Partnership or
the Malta Interests and the Israel Interests or the UIIM Interest, other than
those actions taken with the actual knowledge and acquiescence (express or
implicit) of Binan, (d) any acts or omissions to act occurring on or after the
Closing that relate to the Combined Ireland Interests or (e) any liability or
obligation assumed pursuant to Section 1.02(d). For the avoidance of doubt and
notwithstanding the foregoing, UA and UAM shall have no obligation to indemnify
Binan for any Taxes that Binan may be or become liable for in connection with
the transfer of the Combined Ireland Interests or the UA Partnership Interest or
the UIIM Interest.
8.04 Indemnification Procedures. With respect to third-party claims,
--------------------------
all claims for indemnification by any Indemnified Party hereunder shall be
asserted and resolved as set forth in this Section 8.04. In the event that any
written claim or demand for which Binan or UA or UAM, as the case may be (an
"Indemnifying Party"), would be liable to any Indemnified Party hereunder is
asserted against or sought to be collected from any Indemnified Party by a third
party, such Indemnified Party shall promptly, but in no event more than 15 days
following such Indemnified Party's receipt of such claim or demand, notify the
Indemnifying Party of such claim or demand and the amount or the estimated
amount thereof to the extent then feasible (which estimate shall not be
conclusive of the final amount of such claim or demand) (the "Claim Notice").
The Indemnifying Party shall have 45 days from the personal delivery or mailing
of the Claim Notice (the "Notice Period") to notify the Indemnified Party (a)
whether or not the Indemnifying Party disputes the liability of the Indemnifying
Party to the Indemnified Party hereunder with respect to such claim or demand
and (b) whether or not it desires to defend the Indemnified Party against such
claim or demand. All costs and expenses incurred by the
15
Indemnifying Party in defending such claim or demand shall be a liability of,
and shall be paid by, the Indemnifying Party. Except as hereinafter provided, in
the event that the Indemnifying Party notifies the Indemnified party within the
Notice Period that it desires to defend the Indemnified Party against such claim
or demand, the Indemnifying Party shall have the right to defend the Indemnified
Party by appropriate proceedings and shall have the sole power to direct and
control such defense. If any Indemnified Party desires to participate in any
such defense, it may do so at its sole cost and expense, provided that, if the
Indemnifying Party proposes that the same counsel represent both the
Indemnifying Party and the Indemnified Party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them, then the Indemnified Party shall have the right to
retain its own counsel at the cost and expense of the Indemnifying Party. The
Indemnifying Party shall not, without the prior written consent of the
Indemnified Party, settle, compromise or offer to settle or compromise any such
claim or demand on a basis that would result in the imposition of a consent
order, injunction or decree that would restrict the future activity or conduct
of the Indemnified Party or any subsidiary or affiliate thereof or that would
impose criminal liability or injunctive relief. If the Indemnifying Party elects
not to defend the Indemnified Party against such claim or demand, whether by not
giving the Indemnified Party timely notice as provided above or otherwise, then
the amount of any such claim or demand or, if the same be contested by the
Indemnified Party, then that portion thereof as to which such defense is
unsuccessful (and the reasonable costs and expenses pertaining to such defense,
which shall be payable as incurred), shall be the liability of the Indemnifying
Party hereunder. To the extent the Indemnifying Party shall direct, control or
participate in the defense or settlement of any third-party claim or demand, the
Indemnified Party will give the Indemnifying Party and its counsel access to,
during normal business hours, the relevant business records and other documents,
and shall permit them to consult with the employees and counsel of the
Indemnified Party. The Indemnified Party shall use its commercially reasonable
efforts in the defense of all such claims.
ARTICLE IX
CONFIDENTIAL INFORMATION; COMPETITION
9.01 General. Any information or document that either party to this
-------
Agreement provides to the other (if such information or document was designated
"confidential" at the time it was given to the other party or should reasonably
have been understood to be confidential), with the exception of publicly
available information (other than information that becomes publicly available by
a party's breach of this Agreement) and information that the other party already
is aware of itself or becomes aware of independently of the other party or that
relates to the interest distributed to the disclosing party after the Closing,
shall be treated as confidential and proprietary and shall not be disclosed to
any third party without the consent of both UA and Binan. Each of the parties is
permitted to disclose confidential information to such of its employees,
officers, agents and legal, accounting financial and other advisors as may be
appropriate, provided that in such case the disclosing party shall use
reasonable efforts to prevent the publication or disclosure of such confidential
information by any such person. This section
16
shall not limit the ability of Binan or UA or their affiliates to make such
disclosures as they may consider necessary or appropriate pursuant to
requirements under U.S. securities laws or other applicable laws, or necessary
to secure third-party consents.
9.02 Public Announcements. Neither UA, UAM nor Binan shall issue any
--------------------
press release or make any other public disclosure relating to the transactions
contemplated by this Agreement without the prior consent of the other and
without consulting the other about the content and timing of such release or
announcement. The foregoing, however, shall not limit either party's ability to
make such public announcements or disclosures as it may consider necessary or
appropriate pursuant to the reporting requirements under U.S. or foreign
securities laws or other applicable law or necessary to secure third-party
consents, on the condition that the party making an announcement or disclosure
shall give the other party reasonable notice before making it.
9.03 Effect of Failure to Close. The obligations under Sections 9.01
--------------------------
and 9.02 shall continue for a period of three years after the date of this
Agreement.
9.04 No Non-compete. Following the Closing, none of the parties nor
--------------
any affiliate of the parties (including PHL) nor Independent Newspapers PLC
shall be limited as to holding interests or conducting activities that might
compete with the other with respect to the interest distributed or sold,
notwithstanding any provision of the Partnership Agreement or other document
related to the Partnership, including the Subscription Agreement.
ARTICLE X
TERMINATION
10.01 Termination. This Agreement may be terminated prior to the
-----------
Closing: (a) by mutual consent of UA and Binan, (b) by UA if Binan materially
breaches a representation, warranty or covenant given in this Agreement, UA has
given Binan notice of such breach and such breach shall not have been cured in
all material respects or waived on or before the 30th day following the date on
which such notice is given, (c) by Binan if UA or UAM materially breaches a
representation, warranty or covenant given in this Agreement, Binan has given UA
notice of such breach and such breach shall not have been cured in all material
respects or waived on or before the 30th day following the date on which such
notice is given, (d) by either Binan or UA if the conditions in Section 5.05 are
not satisfied on or before year-end 1998, (e) by Binan if the conditions in
Article V are not satisfied on or before December 31, 1998, or such later date
as UA and Binan may otherwise agree in writing, or (f) by UA if the conditions
in Article VI are not satisfied on or before December 31, 1998, or such later
agreed date. The party terminating this Agreement upon the occurrence of any of
the foregoing events shall effect the termination by giving notice of the
termination and the grounds for it to the other party.
17
10.02 Survival. The provisions of Article IX shall remain in full force
--------
for the period set forth in Section 9.03 despite the termination of this
Agreement, and nothing in this Article X shall relieve UA, UAM or Binan from
liability to the other for any breach under this Agreement.
10.03 Partial Closing. Notwithstanding Section 10.01, if Closing does not
---------------
occur on or before December 31, 1998 (the "Termination Date") (as extended by
the parties) due to a material breach by Binan of any representation, warranty
or covenant given in this Agreement, the failure to secure any of the consents
described in Section 3.05 (Israel/Malta consents) or the failure to secure the
financing described in Section 5.05 (UIH financing), UA may elect to purchase
the Combined Ireland Interests for $20.5 million subject to the terms and
conditions of this Agreement relating to the Combined Ireland Interests.
Notwithstanding Section 10.01, if Closing does not occur on or before the
Termination Date (as extended by the parties) due to a material breach by UA or
UAM of any representation, warranty or covenant given in this Agreement or the
failure to secure any of the consents described in Section 2.06 (Ireland
consents), Binan may elect to purchase the Israel Interests and Malta Interests
for $91.5 million subject to the terms and conditions of this Agreement relating
to the Israel Interests and the Malta Interests (in either case, a "Partial
Transaction"). The parties agree to structure the Partial Transaction in the
most tax efficient manner acceptable to both parties. The parties will use
commercially reasonable efforts to close the Partial Transaction as soon as
possible after the Termination Date. The parties will continue to hold the
Interests not sold in the Partial Transaction in accordance with the terms of
the Partnership Agreement, including provisions relating to noncompetition,
subject to the Letter Agreement dated August 31, 1998.
ARTICLE XI
NOTICES
All notices and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given on the date and at the time
of delivery, if delivered personally to the party to whom notice is given at the
address specified below, or on the date of delivery or attempted delivery shown
on the return receipt, if mailed to the party to whom notice is to be given by
first class mail, registered or certified, return receipt requested, postage
prepaid and properly addressed as specified below, or on the date and at the
time shown on the facsimile, if telecopied to the number specified below and
receipt of such telecopy is acknowledged on the sending facsimile device:
To UA or UAM:
------------
UA-UII, Inc.
c/o Tele-Communications International, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
XXX
Attention: Chief Financial Officer
Fax: x0 (000) 000-0000
18
With copies to:
--------------
UA-UII, Inc.
c/o Tele-Communications International, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
XXX
Attention: General Counsel
Fax: x0 (000) 000-0000
To Binan:
--------
Binan Investments B.V.
c/o United Pan-Europe Communications N.V.
Xxxx. Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Ton van Voskuijlen
Fax: x(00) 00 000 0000
With copies to:
--------------
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
XXX
Attention: W. Xxxx Xxxxxx
Fax: x0 (000) 000-0000
and
Xxxxx Xxxxxxx & Xxxx XXX
Xxxxxxx Xxxxx, 0xx Xxxxx
00x Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx X0X 0XX
Attention: Xxxx X. Xxxxxxxx
Fax: x(00) 000 000 0000
Either Binan or UA may change its address for the giving of notice by giving
notice hereunder.
19
ARTICLE XII
MISCELLANEOUS
12.01 Further Assurances. At or after the Closing, each party shall, if
------------------
requested by the other, make, execute and deliver to the other, or any
Subsidiary or Affiliate designated pursuant to Section 12.06, such additional
assignments, consents and other documents and instruments of transfer as may be
necessary or proper to transfer to the receiving party, or any such Subsidiary
or Affiliate, all of the assigning party's rights and interests in the assets,
to be acquired.
12.02 Governing Law; Consent to Jurisdiction.
--------------------------------------
(a) This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Colorado without giving effect to
the conflicts of laws provisions thereof.
(b) Any proceeding by a party hereto to enforce this Agreement may
be brought in the District Court in and for the City and County of Denver, State
of Colorado, or the United States District Court for the District of Colorado or
in any other court of competent jurisdiction in any other jurisdiction where a
party hereto or any of its property may be found. Each party hereto irrevocably
consents to venue and jurisdiction of any such court in respect of any such
proceeding and to service of process under Sections 13-1-124(1)(a) and 13-1-125,
Colorado Revised Statutes (1973), as amended, in respect of any such proceeding.
12.03 Headings. The article and section headings in this Agreement are for
--------
convenience only and shall not be used in its interpretation or considered part
of this Agreement.
12.04 Counterparts. This Agreement may be executed in any number of
------------
counterparts or counterpart signature pages, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
12.05 Amendments. No provision of this Agreement shall be amended or
----------
modified except by an instrument in writing signed by Binan and UA and
designated as an amendment.
12.06 Assignment. Neither Binan, UA or UAM shall assign any of its rights
----------
under this Agreement or delegate its obligations hereunder unless it obtains the
prior written consent of the other party, except that either party may, upon
notice to the other given one Business Day prior to the Closing, assign in whole
or in part its rights to purchase under this Agreement to one or more
Subsidiaries (as defined below) of UPC. and Tele-Communications International,
Inc. ("TINTA"), respectively. For purposes of this Agreement, a "Subsidiary"
----------
means any company or partnership in which Binan or TINTA owns, directly or
indirectly, 100% of the share capital or partnership interests. For avoidance of
doubt, neither party may delegate any of its obligations hereunder without the
prior written consent of the other, provided that upon assignment by a party of
its rights under this Agreement the assigning party and the assignee shall be
jointly and severally liable for the assignor's obligations hereunder.
20
Notwithstanding the preceding paragraph, Binan shall have the right to
assign in whole or in part its right to acquire the UIIM Interest under this
Agreement to one or more of its affiliates including subsidiaries of UPC
provided that upon assignment by Binan of its rights to acquire the UIIM
Interest, Binan and the assignee shall be jointly and severally liable for the
assignor's obligations hereunder..
12.07 Binding Effect. This Agreement and the covenants set forth herein
--------------
shall be binding upon and shall inure to the benefit of Binan, UA and UAM and
their respective successors and permitted assigns.
12.08 Time of the Essence. Time is of the essence for purposes of this
-------------------
Agreement. If any of the conditions or obligations in this Agreement are not
timely met by Binan, UA or UAM, then Binan, UA or UAM, respectively, shall be
deemed to be in default hereunder.
12.09 The Term Including. The term "including" whenever used in this
------------------
Agreement shall be deemed to mean "including without limitation."
12.10 Entire Agreement. This Agreement and the August 31 letter
----------------
between the parties embody the entire agreement between the parties concerning
the subject matter hereof and replaces and supersedes any prior and
contemporaneous negotiations, agreements and understandings among the parties
relating to such subject matter.
UA, UAM, UPC and Binan agree that the execution, delivery and
performance of this Agreement shall constitute a waiver of the transfer
restrictions contained in Article X of the Partnership Agreement and Sections
12.1 and 12.2 of the UII Management Partnership Agreement..
12.11 No Waiver. The failure or delay of UA, UAM or Binan at any time
---------
or from time to time to exercise any right under or enforce any provision of
this Agreement shall not be construed as implying a waiver of such provision or
of the right of that party to exercise or enforce it subsequently. No single
or partial exercise of any right under this Agreement shall preclude the further
or full exercise of the right. No waiver of any default on any one occasion
shall constitute a waiver of any subsequent or other default.
12.12 Expenses. UA, UAM and Binan shall each pay its own expenses and
--------
those of its advisors incurred in connection with this Agreement and the
transactions contemplated hereby. UA shall pay any fees or stamp duties or
similar expenses relating to transfer of the Combined Ireland Interests to UA.
Binan shall pay any fees or stamp duties or similar expenses relating to
transfer of the UA Partnership Interest, the Malta Interests or the Israel
Interests or the UIIM Interest.
21
EXECUTED as of the date of this Agreement.
UA-UII, INC. BINAN INVESTMENTS B.V.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ A.H.E. van Voskuijlen
--------------------- ---------------------------
Title:Vice President Title: Attorney-in-Fact
UA-UII MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Title: Vice President
For purposes of the waiver in Section 12.10 only:
UNITED PAN-EUROPE COMMUNICATIONS N.V., a company
formed under the laws of the Netherlands
By: /s/ A.H.E. van Voskuijlen
---------------------------
Title: Attorney-in-Fact
EXHIBIT A UII Liquidation and Settlement Sheet.............................. A-1
EXHIBIT B Transaction Charts............................ (intentionally omitted)
EXHIBIT C Form of Opinion of UA's Counsel............... (intentionally omitted)
EXHIBIT D Form of Mutual Release............................................ D-1
EXHIBIT E Form of Opinion of Binan's Counsel............. intentionally omitted)
EXHIBIT F Form of Opinion of Binan's Colorado Counsel... (intentionally omitted)
EXHIBIT A
UII Liquidation and Settlement Sheet
A-1
UII Liquidation and Settlement
Estimate of Net Payment
UPC Settlement with TINTA USD
----------------------
Amount Payable to UA per Agreement 71,000,000
Add:
Management Fees UIIM
Received (Schedule sent) 424,884
Estimated 1998 (see below) 819,357
Dividends - Israel Interests
Received (Schedule sent) 2,419,143
Third Qtr.-Settlement Item
----------------------
Total Adjusted Payable 74,663,384
----------------------
UPC's Indirect Pro Rata Share of
of Loans and interest due from PHL 6,685,943
----------------------
Total due UPC 6,685,943
----------------------
Net Settlement Amount 67,977,441
======================
PHL Receivable 1,490,799
Net Payable to UPC from Princes (paid on 10/21/98) 1,322,544
Estimated Management Fees WH Tax
Gross 15% Net 50%
---
------------
Tevel
1st Quarter 615,031 (92,255) 522,776 261,388
2nd Quarter 615,000 (92,250) 522,750 261,375
3rd Quarter 500,000 (75,000) 425,000 212,500 Estimated (to be confirmed)
-------------------------
Subtotal 1,470,526 735,263
Melita 168,188 84,094
------------
Total 819,357
============
USD Conversion of Loans (as of Nov. 6)
UPC Loan 3,070,000
UPC Interest 913,909
Additional Interest (624/day for 37 days) 23,088 Period from September 30 to November 6
Xxxxxxx loan 317,500
Xxxxxxx Interest 131,066
Additional Interest (87/day for 37 days) 3,219 Period from September 30 toNovember 6
-----------------
Total 4,458,782
Exchange rate 1.4995
-----------------
6,685,943
=================
Per dium interest amount I(pound) 711/USD1,066
EXHIBIT D
Form of Mutual Release
----------------------
MUTUAL RELEASE
This MUTUAL RELEASE (this "Release"), dated as of November __, 1998, is
being given pursuant to the Purchase Agreement, dated November ___, 1998 (the
"Purchase Agreement"), between Binan Investments B.V.("Binan"), a company
organized under the laws of The Netherlands, and UA-UII, Inc. ("UA"), a Colorado
corporation. Capitalized terms used herein without definition have the meanings
assigned to them in the Purchase Agreement.
The parties hereto agree as follows:
1. UA's Release. For good and valuable consideration, the sufficiency of
------------
which consideration is hereby acknowledged, UA, or UA-UII Management, Inc. ("UA-
UIIM"), each for itself, any of its shareholders, affiliates, officers,
directors, agents, insurers, successors and assigns, hereby fully and forever
releases and discharges, with immediate effect, Binan and its shareholders,
affiliates, successors, all past and present employees, officers, directors,
agents, insurers and assigns from any and all claims, demands, obligations,
actions, liabilities, losses, costs, expenses and damages of every kind and
nature whatsoever (collectively, "Claims"), including, without limitation,
reasonable attorneys' fees, in law or equity, whether known or unknown, whether
fixed or contingent, which UA or UA-UIIM may now have, or claim at any future
time to have, based in whole or in part upon any act or omission on or before
the date hereof, without regard to the present, actual knowledge of such acts or
omissions, arising from or based upon or in any way related to Partnership
Agreement, the UII Management Partnership Agreement and any transaction,
document, agreement or instrument related thereto; except for the rights and
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obligations created by this Release, the Purchase Agreement, the August 31, 1998
Letter Agreement or Sections 4.6 (Comply With Law), 4.8 (Confidentiality),
15.8(a) (Use of Names) of the Partnership Agreement or for Claims under the
first sentence of Section 4.7 (Exculpation) of the Partnership Agreement
resulting from willful misconduct or gross negligence, or Sections 5.6 (Comply
with Law), 5.8 (Confidentiality),15.8 (Use of Names) of the UII Management
Partnership Agreement or for Claims under the first sentence of Section 5.7
(Exculpation) of the UII Management Partnership Agreement resulting from willful
misconduct or gross negligence.
2. Binan's Release. For good and valuable consideration, the sufficiency
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of which consideration is hereby acknowledged, Binan, UPC, UIHI and United
International Management, Inc. (now known as UIH Europe, Inc.) each for itself,
any of its shareholders, affiliates (including PHL), officers, directors,
agents, insurers, successors and assigns, hereby fully and forever releases and
discharges, with immediate effect, UA and its shareholders, affiliates,
successors, all past and present employees, officers, directors, agents,
insurers and assigns from any and all Claims, including, without limitation,
reasonable attorneys' fees, in law or equity, whether known or unknown, whether
fixed or contingent, which Binan may now have, or claim at any future time to
have, based in whole or in part upon any act or omission
on or before the date hereof, without regard to the present, actual knowledge of
such acts or omissions, arising from or based upon or in any way related to the
Partnership Agreement, the Reimbursement Agreement, UIIM Partnership Agreement,
the PHL Management Agreement (including fees or expense reimbursements due from
PHL or relating thereto) and any transaction, document, agreement or instrument
related thereto; except for the rights and obligations created by this Release,
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the Purchase Agreement or Sections 4.6 (Comply With Law), 4.8 (Confidentiality),
15.8(a) (Use of Names) of the Partnership Agreement or for Claims under the
first sentence of Section 4.7 (Exculpation) of the Partnership Agreement
resulting from willful misconduct or gross negligence, or Sections 5.6 (Comply
with Law), 5.8 (Confidentiality), 15.8 (Use of Names) of the UII Management
Partnership Agreement or for Claims under the first sentence of Section 5.7
(Exculpation) of the UII Management Partnership Agreement resulting from willful
misconduct or gross negligence. UIH acknowledges that the Management Services
Agreement dated June 19, 1992 between UIH and PHL expired on June 17, 1997.
3. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Colorado without giving
effect to the conflict of laws provisions thereof.
EXECUTED as of the date of this Release.
UA-UII, INC.
By:___________________________________
Title:
BINAN INVESTMENTS B.V.
By:___________________________________
Title:
UA-UII MANAGEMENT, INC.
By:___________________________________
Title:
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:___________________________________
Title:
UNITED INTERNATIONAL HOLDINGS, INC.
By:___________________________________
Title:
UIH EUROPE, INC.
By:___________________________________
Title:
XXXXXXX COMMUNICATIONS LIMITED
By:___________________________________
Title
______________________________________
Xxxx Xxxxxxx
