ASSIGNMENT AND AMENDMENT AGREEMENT
This ASSIGNMENT AND AMENDMENT AGREEMENT (this "Agreement") is made and
entered into as of October 29, 1997, by and among (1) Supercanal Holding S.A.,
an Argentine corporation (the "Assignor"), (2) Multicanal S.A., an Argentine
corporation ("Multicanal"), and Cablevision S.A., an Argentine corporation
("Cablevision" and, together with Multicanal, the "Assignees"), and (3) UIH
Argentina, Inc., a Colorado corporation ("UIHA"), and CV American Holdings
L.L.C., a Delaware limited liability company ("CVAH" and, together with UIHA,
the "Sellers"). The Sellers, the Assignor, and the Assignees are jointly
referred to herein as the "Parties."
RECITALS
A. Assignor and Sellers are parties to a Stock Purchase Agreement, dated as
of September 9, 1997 and amended and restated as of October 20, 1997 (the
"Purchase Agreement"), pursuant to which (1) Sellers have agreed to sell, and
Assignor has agreed to purchase, the shares of stock of certain Argentine
companies and (2) Assignor has agreed to assume certain liabilities of Sellers.
B. As contemplated by Section 11.6 of the Purchase Agreement, Assignor
desires to assign all of its rights and obligations under the Purchase Agreement
to Assignees, and Assignees desire to assume all of such rights and obligations,
it being understood that such assignment and assumption will in no way relieve
Assignor of such obligations and that Assignor and Assignees will be jointly and
severally liable with respect to such obligations.
C. The Parties desire to make certain amendments to the Purchase Agreement
as described herein.
D. Capitalized terms used and not defined herein have the meanings given to
such terms in the Purchase Agreement.
AGREEMENT
In consideration of the mutual promises herein made and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
Parties hereby agree as follows:
Section 1. ASSIGNMENT. Pursuant and subject to Section 11.6 of the Purchase
Agreement, Assignor hereby assigns, transfers, conveys, and delivers to each
Assignee an undivided one-half interest in all of Assignor's rights and
interests under the Purchase Agreement. On the terms and conditions set forth
herein, Sellers hereby consent to such assignment, which consent shall be
effective when this Agreement has been executed and delivered by all Parties.
Section 2. ASSUMPTION. Pursuant and subject to Section 11.6 of the Purchase
Agreement, each Assignee hereby assumes and agrees to perform and fully
discharge all of Assignor's rights, obligations and interests under the Purchase
Agreement, it being understood that such assumption will in no way relieve
Assignor of such obligations and that Assignor and Assignees will be jointly and
severally liable with respect to such obligations.
Section 3. AMENDMENTS. Effective as of the date hereof, the Purchase
Agreement is hereby amended as follow:
(a) DEFINITION OF "BUYER". All references in the Purchase Agreement
to "Buyer" are hereby modified to refer to Multicanal and Cablevision,
collectively, as Buyers.
(b) PURPOSE OF AGREEMENT. Section 2.1 (a) of the Purchase Agreement
is hereeby amended to add the following sentences at the end thereof:
"If any Buyer breaches any of its obligations under this
Agreement on the Closing Date, then the non-breaching Buyer, if
any, will fulfill the obligations of the breaching Buyer to the
extent of such breach on the Closing Date. If the Buyers do not
fulfill all of their obligations that are to be fulfilled on the
Closing Date, then Supercanal Holding S.A.will, no later than
12:00 noon New York time on October 30, 1997, satisfy and perform
such obligations in full as primary obligor hereunder.
Notwithstanding the foregoing, each of the Buyers and Supercanal
Holding S.A. shall be and remain jointly and severally liable for
the performance in full of all obligations of the Buyers
hereunder, PROVIDED HOWEVER that after payment in full of the
Escrow Deposit and the Purchase Price to the Sellers (the
"Payment") by the Buyers, Supercanal Holding S.A.will be released
of any obligation under the Purchase Agreement; and PROVIDED
FURTHER that after the Payment, Buyers and Sellers do hereby
covenant and agree that it will not under any circumstances hold
or attempt to hold Supercanal Holding S.A. liable or any claim
that might arise under this Agreement and the Purchase Agreement,
and Buyers further agree that they will at all times indemnify
and hold harmless Supercanal Holding S.A. for all costs and
damages for which it might hereafter become liable by reason of
the non performance or non compliance of any kind of obligation
of the Buyers under the Purchase Agreement and this Agreement.
Simultaneously with the Payment the Buyers shall pay to
Supercanal Holding S.A. a sum equal to the amount of the initial
payment made by Supercanal Holding S.A. to the Sellers on October
20, 1997, by wire to the account of Supercanal Holding S.A. N(0)
115-013738/7 at Banco Credicoop, it being understood, however,
that such payment obligation will in no event be or become the
responsibility of any Seller and that the non compliance by the
Buyers in doing such payment will in no event affect the validity
of this Agreement.
2
(c) CLOSING DELIVERIES. Section 2.2(b) of the Purchase Agreement is
hereby amended to read in its entirety as follows:
"At the Closing (i) the Sellers will deliver to the Buyers,
according to joint instructions to the Sellers' Representative
executed by both Buyers, any and all certificates representing
the Shares and will take all necessary acts to perfect the
transfer of the Shares and note in the name of the Person or
entity so design by the Buyers the transfer in the Companies'
Stock Registry Books, free of Liens and Restrictions, with the
exception of the authorization provided for in Article 46 clause
(f) of the Broadcasting Law, if applicable, and (ii) UIHA will
assign to the Buyers all of its rights under the Local Group
Purchase Agreement."
(d) PAYMENT OF PURCHASE PRICE. Section 2.6 of the Purchase Agreement
is hereby amended to read in its entirety as follows:
"All payments to be made pursuant to this Agreement shall be made
to the Sellers' Representative by wire transfer of immediately
available funds to such bank accounts as are specified by
Sellers' Representative to Buyers in writing at least one
Business Day before the Closing. To the extent any portion of the
Purchase Price is not paid on the Closing Date by any Buyer, the
other Buyer shall pay such amount no later than 10:00 a.m. New
York time on October 30, 1997. To the extent any portion of the
Purchase Price is not paid by 10 a.m. New York time on October
30, 1997, Supercanal Holding S.A. shall pay such amount no later
than 12:00 noon New York time on October 30, 1997."
(e) SANTO TOME. The first sentence of Section 2.7 of the Purchase
Agreement is hereby modified to read in its entirety as follows:
"At any time within eight months after the Closing, UIHA may
enter into an agreement to purchase all of the outstanding stock
of Cablevideo Santo Tome S.A. (the "Santo Tome Shares")."
(f) REPRESENTATIONS AND WARRANTIES OF SELLERS. It is hereby agreed
that the representations and warranties included in Article 3 of the
Purchase Agreement will run to the benefit of each Assignee to the same
extent that such representations and warranties currently run to the
benefit of Assignor.
3
(g ASSETS AND CONTROLLED AFFILIATES IN THE UNITED STATES. A new
Section 3.19 of the Purchase Agreement is hereby added, to read in its
entirety as follows:
"ASSETS AND CONTROLLED AFFILIATES IN THE UNITED STATES. None of
the Companies is incorporated in the United States, or organized
under the laws of the United States, or has its principal offices
within the United States. None of the Companies, nor any entity
that they control, nor all such controlled entities in the
aggregate, hold assets located in the United States having an
aggregate book value of $15,000,000 or more, and none of the
Companies directly or indirectly controls any corporation that is
incorporated in the United States, is organized under the laws of
the United States, or has its principal offices within the United
States. As used in this Section 3.19, the term "control" means
(a) holding 50% or more of the outstanding voting securities of
an issuer; (b) in the case of an entity that has no outstanding
voting securities, having the right to 50% or more of the
entity's profits, or having the right in the event of dissolution
to 50% or more of the entity's assets; or (c) having the
contractual power presently to designate 50% or more of the
directors of a corporation, or in the case of unincorporated
entities, of individuals exercising similar functions."
(h) REPRESENTATIONS AND WARRANTIES OF ASSIGNEES. Each of Multicanal
and Cablevision hereby represents and warrants, as of the date hereof, each
representation and warranty set forth in Sections 4.1 and 4.2 of the
Purchase Agreement.
(i) BROKERS, AGENTS, FINDERS, ETC. Section 4.3 of the Purchase
Agreement is hereby amended to read in its entirety as follows:
"BROKERS, AGENTS, FINDERS, ETC. Neither the Buyers nor Supercanal
Holding S.A. nor any of their respective agents have retained or
hired any broker, agent or finder, nor have they agreed to pay
any fee, commission or similar payment to any person under this
Agreement or under any Additional Agreement or in respect of the
transactions contemplated herein or therein, except, with respect
to Supercanal Holding S.A., for Integra Financial Services LLC,
Xxxxx Xxxxxx, and ING Bank ("ING"). No Seller will have any
liability relating to any obligation arising under any of the
arrangements described in the preceding sentence."
(j) DIRECTORS' EXPENSES. A new Section 5.11 of the Purchase Agreement
is hereby added, to read in its entirety as follows:
"DIRECTORS' EXPENSES. Schedule 5.11 sets forth a list of expenses
that have been approved by the Companies. Buyers and Supercanal
Holding S.A. hereby covenant that, subject to the condition that
those expenses have not been and shall not be taken into account
in order to increase the Purchase Price or the estimated Purchase
Price (i) they will take no action, directly or indirectly, that
would have the effect of negating such approval and (ii) they
will take no action, directly or indirectly, that would have the
effect of requiring the beneficiaries of such approval to
reimburse the Companies for such approved expenses."
4
(k) INDEMNIFICATION.
(i) It is hereby agreed that the indemnification obligations of
Sellers included in Article 9 of the Purchase Agreement will run to
the benefit of each Assignee to the same extent that such
indemnification obligations currently run to the benefit of Assignor.
(ii) Section 9.2(f) is hereby amended to add the following
sentence at the end thereof:
"Each of the Buyers and Supercanal Holding S.A. shall be and
remain jointly and severally liable for the performance in
full of all obligations of the Buyers hereunder."
(l) LOCAL GROUP SHARES. UIHA will assign its rights and obligations
under the Local Group Purchase Agreement to Assignees before the Closing.
Therefore, (i) Assignees will purchase the Local Group Shares directly from
Xxxxxx and Xxxxxx, (ii) the Local Group Shares will be delivered to
Assignees directly by Xxxxxx and Xxxxxx, and (iii) the purchase price for
the Local Group Shares will be paid by Assignees directly to Xxxxxx and
Xxxxxx to such bank accounts as are specified by Xxxxxx and Xxxxxx to
Assignees in writing at least one Business Day before the Closing. Any
provision to the contrary in the Purchase Agreement is hereby amended
accordingly.
(m) NOTICES. Any and all notices to be provided by "Buyer" under the
Purchase Agreement will be valid only when signed by both Multicanal and
Cablevision. Section 11.1 of the Purchase Agreement is hereby amended to
delete the heading "Buyer" and replace it with the heading "Supercanal
Holding S.A." and to add the heading "Buyers" and to include the following
information thereunder:
"Multicanal S.A.
Xxxxxxxx Xxxxxxxx 1628
0xx Xxxx
0000 Xxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Tel: 000-00-0-000-0000
Fax: 000-00-0-000-0000
Cablevision S.A.
Xxxxxxx 0, xxxx 00
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn.: Xxxxxxxx X. Xxxxx
Tel: 000-00-0-000-0000
Fax: 000-00-0-000-0000
5
Copy to:
Estudio de los Dres. O'Farrell
Xxxxxxx xx Xxxx 000, xxxx 0
0000 Xxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attn.: Xxxxx X. Xxxxxxx
Tel: 000-00-0-000-0000
Fax: 000-00-0-000-0000
Hope, Xxxxxx & Xxxxx
Avenida L.N. Xxxx 0000
Xxxx 0
0000 Xxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attn.: Xxxxxxx X. Xxxxxxxxx
Tel: 000-00-0-000-0000
Fax: 000-00-0-000-0000
Xxxxx Xxxxxxxx & Xxxxxxx
Xxxxxxxx Xxxxxxxx 1628
2nd Piso
1344 Buenos Aires
Attn.: Xxxx Xxxxx de la Xxxx
Tel: 000-00-0-000-0000
Fax: 000-00-0-000-0000"
(n) ESCROW AGREEMENT. The Form of Escrow Agreement attached to the
Purchase Agreement as Exhibit A is hereby deleted and replaced in its
entirety by the Form of Escrow Agreement attached hereto as Exhibit A.
Section 4. MISCELLANEOUS.
(a) EFFECT. Except as specifically amended by this Agreement, the
Purchase Agreement will remain in full force and effect. All references to
the "Agreement" in the Purchase Agreement will hereafter be deemed to refer
to the Purchase Agreement as amended hereby.
(b) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns.
(c) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
6
(d) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be delivered to the Parties as provided in
the Stock Purchase Agreement, as amended hereby.
(e) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the domestic laws of the State of Colorado, without giving
effect to any choice of law or conflict of law provision or rule (whether
of the State of Colorado or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Colorado. Any dispute, controversy or claim arising out of or relating to
this Agreement will be resolved by the state courts of Colorado or the
federal courts located within the State of Colorado. The Parties consent to
personal jurisdiction of such courts in any such disputes. The Parties
consent to service of process through notice given under Section 11.1 of
the Purchase Agreement, as amended hereby, in connection with any such
dispute and waive any other requirements for service of process.
(f) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement will be valid unless it is in writing and signed by all of the
Parties. Failure or delay of any Party at any time or from time to time to
exercise any right under or enforce any provision of this Agreement will
not be construed as implying a waiver of such provision or of that Party's
right to exercise or enforce it subsequently. No single or partial exercise
of any right hereunder by any Party will preclude the further or full
exercise of the right by such Party. No waiver of any default on any one
occasion by a Party will constitute a waiver of any subsequent or other
default by such Party.
(g) SEVERABILITY. If any provision of this Agreement or the
applications thereof to any Person or circumstance is held by an authority
of competent jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Agreement, and the application of such provision to other
Persons or circumstances, will not be affected thereby and will be enforced
to the greatest extent permitted by applicable Law. In such case, the
Parties will amend this Agreement to effect, to the fullest extent possible
under applicable Laws, the original intent of the Parties with respect to
such invalid or unenforceable provision.
(h) FURTHER ASSURANCES. The Parties will execute, acknowledge and
deliver or cause to be executed, acknowledged and delivered such
instruments and take such other action as may be reasonably necessary or
advisable to carry out their obligations under this Agreement.
(i) HEADINGS. The Section headings in this Agreement are for
convenience only and will not be used for interpretation hereof nor
considered part of this Agreement.
(j) ASSIGNMENT. Except for assignments to Affiliates, no Party will
assign any of its rights or obligations under this Agreement unless it
obtains prior written consent of the other Parties. For any assignment
under the preceding sentence by the Assignor or any Assignee, the proposed
assignee, as a condition to the effectiveness of such assignment, must
assume all obligations hereunder as co-obligor with the applicable
assignor.
7
(k) EXPENSES. Each Party will pay its own expenses incurred in
connection with the preparation, negotiation and execution of this
Agreement.
* * * * *
8
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
SUPERCANAL HOLDING S.A.
By: ______________________________
Name: ______________________________
Title: ______________________________
MULTICANAL S.A.
By: ______________________________
Name: ______________________________
Title: ______________________________
CABLEVISION S.A.
By: ______________________________
Name: ______________________________
Title: ______________________________
UIH ARGENTINA, INC.
/s/ Xxxxxxx Xxxxxxx
By: ______________________________
Name: Xxxxxxx Xxxxxxx
Title: Attorney-in-fact
CV AMERICAN HOLDINGS L.L.C.
/s/ Xxxxxxx Xxxxxxx
By: ______________________________
Name: Xxxxxxx Xxxxxxx
Title: Attorney-in-fact
9
