EXHIBIT 5
This Programming Purchase Agreement (the "Agreement") is dated December 5,
1997, by and between Tescorp, Inc. (the "Purchaser") and Supercanal Holding
S.A. (the "Seller"). Intending to be legally bound by the terms and
conditions hereof, the parties agree as follows:
1. Rights.
a. Right to Purchase Programming. Purchaser shall have the nonexclusive
right, but not the obligation, to purchase from Seller any television
programming which Seller has the right to sell to Purchaser and Purchaser
desires to purchase.
b. Consideration. Purchaser's right to enter into this Programming
Agreement with Seller is given in exchange for Purchaser's agreement to
execute that certain Stock Purchase and Merger Agreement by and between
Purchaser and Tescorp Acquisition Corporation, a wholly owned subsidiary of
Seller. In addition to such consideration, Purchaser shall convey to Seller
the following consideration in exchange for the programming it purchases from
Seller:
i. An amount equal to Seller's actual cost of the programming
(not including internal overhead or similar costs), an estimate of which
shall be listed by Seller in Exhibit "A" hereto on a per subscriber basis.
ii. The right for Seller to include the total number of
Purchaser's subscribers in Seller's subscription base for the purpose of
negotiating contracts with individual programmers.
c. No Obligation to Purchase. Purchaser shall have no obligation to
purchase any programming from Seller. Purchaser shall have no obligation to
exclusively purchase its programming from Seller, but shall have the right to
enter into and maintain contracts to purchase programming from suppliers
other than Purchaser. Purchaser shall have the right, in its sole
discretion, to terminate its obligation to purchase programming from Seller
under this Agreement as follows:
i. In the case of individual programs, if Purchaser is able to
independently purchase comparable programming at a lower cost than Seller's,
provided that Seller shall have the right, but not the obligation, to
continue to sell such individual programs to Purchaser at such lower cost.
▇▇.▇▇ the case of all programming, if the total of (a) Seller's
cost; plus (b) Purchaser's continued programming costs from other sources;
plus (c) Purchaser's cost for substitute programming for Seller's programs
which Purchaser is not able to distribute to its subscribers exceeds
Purchaser's existing cost of programming.
2. Delivery and Distribution of Seller's Services. Seller shall deliver all
programming to Purchaser in a manner consistent with industry standards as they
currently exist in Argentina, and
on a best efforts basis such that the programming is ready for distribution
when it is received by Purchaser.
3. Representations and Warranties; Indemnification.
a. Seller hereby represents and warrants that it has the right, power and
authority to enter into and perform this Agreement and has obtained the
appropriate and necessary authorizations, licenses and permissions from any
and all third parties and governmental agencies or authorities that may be
required of Purchaser and/or Seller for the license, delivery and
transmission of Seller's programming in Purchaser's transmission areas.
b. Purchaser and Seller shall each indemnify and forever hold harmless
the other, the other's affiliated companies and their respective officers,
directors, employees and agents from all liabilities, claims, costs, damages
and expenses (including, without limitation, reasonable counsel fees of
counsel of the other party's choice) arising out of any breach or claimed
breach of any representation or any of its obligations pursuant to this
Agreement.
c. Seller shall indemnify Purchaser against any and all claims, damages,
liabilities, costs and expenses arising out of the distribution, pursuant to
this Agreement, of Seller's programming to the extent that such claims,
damages, liabilities, costs and expenses are (i) based upon alleged libel,
slander, defamation, invasion of the right of privacy, or violation or
infringement of copyright or literary or dramatic rights arising out of the
content of Seller's programming (ii) based upon the distribution of the
Seller's programming as furnished by Seller without deletions by Purchaser;
and (iii) not based upon any material added by Purchaser to the Seller's
programming.
d. Each party shall so indemnify the other only if such other party gives
the indemnifying party prompt notice of any claim or litigation to which its
indemnity applies; it being agreed that the indemnifying party shall have the
right to assume the defense of any or all claims or litigation to which its
indemnity applies and that the indemnified party will cooperate fully with
the indemnifying party in such defense and in the settlement of such claim or
litigation.
e. Except as herein provided to the contrary, neither Purchaser nor
Seller shall have any rights against the other party hereto for claims by
third persons or for the nonoperation of facilities or the nonfurnishing of
Sellers programming services if such nonoperation or nonfurnishing is due to
failure of equipment, action or claims by any third person, labor dispute or
any cause beyond such party's reasonable control.
4. General.
a. Term. This Programming Agreement shall commence as of the date
hereof and shall be in effect for a period of ten years; provided, however,
either party may extend this Agreement for successive one year terms by
providing the other party with written notice not later than one
(1) month prior to the termination hereof.
b. Confidentiality. The terms and conditions, other than the existence
and duration, of this Agreement shall be kept confidential by the parties
hereto and shall not be disclosed by either party to any third party except
as may be required by any applicable laws, regulations, court order or
governmental agency of competent jurisdiction, and except to a party's
accountants, auditors, and legal counsel, each of whom must first agree to be
bound by this paragraph.
c. Severability. The invalidity under applicable law of any provision
of this Agreement shall not affect the validity of any other provision of
this Agreement, and in the event that any provision hereof is determined to
be invalid or otherwise illegal, this Agreement shall remain effective and
shall be construed in accordance with its terms as if the invalid or illegal
provision were not contained herein.
d. Applicable Law. Regardless of the place of execution hereof, this
Agreement, all amendments hereto, and any and all issues or controversies
arising herefrom or related hereto, shall be governed by and construed
exclusively in accordance with the laws and decisions of the State of New
York, the United States, without giving effect to its conflict of laws
principles. Seller hereby consents to personal jurisdiction in and service of
process by any competent state or federal court in the State of New York.
Additionally, the parties hereto agree that the State of New York shall be
the exclusive forum and situs for the resolution of any and all disputes,
controversies or matters arising herefrom or related hereto. Seller agrees
that service of process by mail shall be effective service of same and such
service shall have the same effect as personal service within the State of
New York and result in jurisdiction over Seller in the appropriate forum in
the State of New York.
e. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the purchase of Seller's programming by
Purchaser and supersedes all prior or contemporaneous written or oral
agreements and representations between the parties with respect thereto.
This Agreement may not be amended, modified or altered in any manner, unless
such amendment, modification or alteration is in writing and is signed by
duly authorized representatives of the parties. This Agreement is
enforceable by its own terms.
f. No Joint Venture or Agency Relationship. Nothing herein shall be
deemed to create any joint venture, partnership or agency relationship
between the parties, and neither party is authorized to or shall act toward
third parties or the public in any manner which would indicate any such
relationship with the other.
g. Waiver. A waiver by either party of any of the terms or conditions of
this Agreement in any instance shall not be deemed or construed to be a
waiver of such term or condition for the future, or of any subsequent breach
thereof. All remedies and rights contained in the Agreement shall be
cumulative and none of them shall be in limitation of any other remedy or
right of either party.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute the Agreement.
Supercanal Holding S.A. Tescorp, Inc.
By: By:
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Title: Title:
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EXHIBIT "A"
