TELEVISION AND RADIO BROADCASTING SERVICES
AUSTRALIA PTY LIMITED
("Assignor")
and
AUSTAR UNITED LICENCECO PTY LIMITED
("Assignee")
and
AUSTAR UNITED COMMUNICATIONS LIMITED
("Guarantor")
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AGREEMENT TO ASSIGN LICENCES FOR RADIO FREQUENCY SPECTRUM
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Peter Cornelius & Partners
1st Floor 147a King Street
Sydney 2000
Tel: 02 - 9232 6000
DX252 Sydney
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AGREEMENT TO ASSIGN LICENCES FOR RADIO FREQUENCY SPECTRUM
THIS AGREEMENT is made on 21 October 2000.
PARTIES
TELEVISION AND RADIO BROADCASTING SERVICES AUSTRALIA PTY LIMITED ACN 070 677 717
of 55 Pyrmont Bridge Road, Pyrmont ("Assignor");
AUSTAR UNITED LICENCECO PTY LIMITED ACN 094 085 024 of Level 29, AAP Centre,
George Street, Sydney 2000 ("Assignee"); and
AUSTAR UNITED COMMUNICATIONS LIMITED ACN 087 695 707 of Level 29, AAP Centre 259
George Street, Sydney 2000 ("Guarantor")
RECITALS
A. The Assignor holds a number of Licences for specified radio frequency
spectrum.
B. The Assignor has agreed to assign the Licences for radio frequency spectrum
it holds to the Assignee under Chapter 3 Part 3.2 Division 5 of the
Radiocommunications Act.
C. The Assignee has agreed to accept the assignment of the Licences.
D. The Guarantor is a holding company of the Assignee, and guarantees the
obligations of the Assignee under this agreement in consideration of the
Assignor entering into this agreement.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement, unless the contrary intention appears or the context
otherwise requires:
"ACA" means the Australian Communications Authority;
"Assignee Warranties" means those warranties set out in Schedule 2;
"Assignor Warranties" means those warranties set out in Schedule 3;
"Business Day" means a day on which banks are open for business in Sydney,
Australia other than a Saturday, Sunday or public holiday;
"Claim" means any claim, demand, action, or cause of action, including but
not limited to in contract, in tort, in equity or under statute, or any
loss, cost, expense or liability arising from or in connection with the
negotiation and implementation of this agreement, the Licences or any
breach or default under this agreement (including any breach of a Assignor
Warranty) or under an indemnity;
"Completion" means the completion of the assignment of the Licences in
accordance with Clause 6;
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"Completion Date" means the date referred to in Clause 6.1;
"Condition" means the condition referred to in Clause 2.1;
"Deposit" means $14 million;
"Deposit Account" means an interest bearing account held by Macquarie Bank
Limited as stakeholder;
"Duty" means any stamp, transaction or registration duty or similar charge
imposed by any Government Authority and includes, but is not limited to,
any interest, fine, penalty, charge or other amount imposed in respect of
the above;
"Encumbrance" means any Security Interest, pledge, mortgage, lien, charge
or adverse claim of ownership or use;
"FIRB" means the Treasurer of the Commonwealth of Australia, whether acting
on the advice of the Foreign Investment Review Board of the Commonwealth of
Australia or not;
"Government Authority" means any government or governmental,
semi-governmental, administrative, fiscal or judicial body, department,
commission, authority, tribunal, agency or entity;
"GST" has the meaning given by A New Tax System (Goods and Services Tax Act
1999;
"Guaranteed Moneys" means all debts and other liabilities of the Assignee
to the Assignor under or in relation to this agreement and in any capacity,
irrespective of whether the debts and other liabilities:
(a) are present or future;
(b) are actual or contingent;
(c) are ascertained or unascertained;
(d) are owed or incurred alone, or severally or jointly with any other
person;
(e) are owed or incurred as principal, interest, fees, charges, Duties,
damages (whether for breach of contract or tort or incurred on any
other ground), losses, costs, expenses or on any other account; or
(f) comprise any combination of the above, and includes debts and monetary
liabilities owed or incurred under or pursuant to this agreement;
"Interest Rate" means 7% per annum calculated on a daily basis without
compounding;
"Laws" means all laws including rules of common law, principles of equity,
statutes, regulations, proclamations, ordinances, by-laws, rules,
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regulatory principles and requirements, mandatory codes of conduct, writs,
orders, injunctions, judgements, determinations or statutory licence
conditions;
"Licences" means the licences specified in Schedule 1, including the rights
granted under those licences;
"Purchase Price" means the total consideration paid for the assignment of
the rights granted under the Licences comprising:
(a) Immediate cash component - $110 million payable on Completion.
(b) Deferred component - $30 million plus interest payable under Clause
6.3.
"Register" means the register established pursuant to Section 143 of the
Radiocommunications Act 1992;
"Related Body Corporate" has the same meaning as in the Corporations Law;
"Security Interest" means an interest or power:
(a) reserved in or over an interest in any asset including, but not
limited to, any retention of title; or
(b) created or otherwise arising in or over any interest in any asset
under a bill of sale, mortgage, charge, lien, pledge, trust or power,
by way of security for the payment of a debt or any other monetary
obligation or the performance of any other obligation and includes, but is
not limited to, any agreement to grant or create any of the above;
"Transfer Forms" means ACA forms for the assignment of the Licences to the
Assignee in the form of Annexure 1 of this agreement;
"Warranties" means the Assignee Warranties and the Assignor Warranties.
1.2 Interpretation
In this agreement, unless the context otherwise requires:
(a) a reference to this agreement is a reference to this agreement as
amended, varied, novated or substituted from time to time;
(b) a reference to any legislation includes all legislation, regulations
and instruments issued under that legislation and any modification,
consolidation, amendment, re-enactment or replacement of that
legislation;
(c) a word importing the singular includes the plural and vice versa and a
gender includes each other gender;
(d) where a word or phrase is given a defined meaning, any other part of
speech or other grammatical form of that word or phrase has a
corresponding meaning;
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(e) a reference to a Clause, Schedule or Annexure is a reference to a
Clause, Schedule or Annexure of this agreement;
(f) any heading used in the agreement is for convenience only and does not
affect the interpretation of this agreement;
(g) the Schedules of, and Recitals and Annexures to, this agreement form
part of this agreement;
(h) words and expression importing natural persons includes any company,
corporation or other body corporate or other person, firm, joint
venture, partnership, trust or other entity or any Government
Authority and vice versa;
(i) references to any of the parties hereto, where relevant, is deemed to
be references to or include, as appropriate, its successors or
permitted assigns;
(j) reference to time is a reference to time in Sydney, Australia;
(k) a reference to "dollars" or "$" is to an amount in Australian
currency;
(l) unless otherwise expressly stated, references to, or any payments of,
monetary amounts must be in immediately available and freely
transferable funds and where payment is to be made to the Assignor
such payment must be made to the Assignor or as it may direct; and
(m) whenever any payment is to be made or any act, matter or thing is to
be done under this agreement on a day which is not a Business Day,
then such payment must be made or act, matter or thing done on the
next day which is a Business Day.
2 CONDITION PRECEDENT
2.1 Condition
Completion will not proceed unless at least one of the following occurs:
(a) A notice in writing is issued by, or on behalf of, the Treasurer of
the Commonwealth of Australia stating that the Commonwealth Government
does not object under the Government's foreign investment policy to
the parties entering into and completing this agreement and the
transactions contemplated by it following an application made under
the Foreign Acquisitions and Takeovers Act 1975 (Cth) ("FATA").
(b) The Treasurer of the Commonwealth of Australia becomes precluded from
making an order in respect of the transactions contemplated by this
agreement under FATA, if those transactions are prohibited by FATA.
(c) FIRB notifies the Assignee in writing that the transactions
contemplated by this agreement are not within the scope of FATA.
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2.2 Condition Precedent
The Condition in Clause 2.1 is a condition precedent to Completion.
2.3 Reasonable Endeavours
(a) The Assignee must use all reasonable endeavours and act diligently to
procure that the Condition in Clause 2.1 is fulfilled as soon as
possible.
(b) The Assignee must:
(1) forthwith lodge its application for the approval contemplated by
Clause 2.1 ("FIRB approval") which shall in all respects contain
all information which FIRB may require;
(2) not withdraw its application for FIRB approval and must promptly
comply with FIRB's requests for information;
(3) notify the Assignor in writing forthwith of FIRB granting or
refusing to grant its approval to the assignment of the Licences;
(c) The Assignor must provide the Assignee with all reasonable assistance
to obtain FIRB approval.
(d) The Assignor will not provide information to FIRB without a
representative of the Assignee approving that information unless the
Assignor is required to provide that information by Law or to comply
with a request by FIRB.
2.4 Termination
(a) If the Condition in Clause 2.1 is not satisfied or waived in writing
in accordance with Clause 2.5 by 31 December 2000 or by such later
time as the parties agree in writing, then this agreement may be
terminated by either the Assignor or the Assignee giving written
notice of termination to the other.
(b) If this agreement is terminated pursuant to Clause 2.4(a), the parties
shall remain liable for any pre-existing breach of this agreement.
2.5 Waiver
The Condition in Clause 2.1 can be waived only by the Assignee.
3 DEPOSIT
3.1 Pay Deposit
(a) On signing this agreement, the Assignee must pay the Deposit to
Macquarie Bank Limited by bank cheque which must forthwith be placed
into a Deposit Account in the joint names of the Assignee and the
Assignor.
(b) The Deposit must be dealt with in accordance with this Clause 3.
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3.2 Investment of Deposit
The Assignor and the Assignee must:
(a) instruct Macquarie Bank Limited to invest the Deposit until
Completion, rescission or termination of this agreement in the Deposit
Account; and
(b) procure the withdrawal of the Deposit and accrued interest on the
Completion Date or upon the rescission or termination of this
agreement and pay it to the party entitled to the Deposit under
Clauses 3.3 and 3.4 including delivery of any necessary authorities to
Macquarie Bank Limited to release the Deposit in accordance with this
agreement.
3.3 Interest on the Deposit
Interest on the Deposit is payable to the person entitled to the Deposit in
accordance with Clause 3.4.
3.4 Entitlement to Deposit
(a) The Assignor is entitled to the Deposit and any accrued interest on
the Deposit if:
(1) Completion occurs in accordance with Clause 6; or
(2) the Assignee is in breach of:
(A) any obligation under this agreement (other than those which
require the payment of money to the Assignor and those which
are incapable of remedy) and has not remedied that breach
within 5 Business Days notice from the Assignor to do so;
(B) any obligation under this agreement which is incapable of
remedy; or
(C) any obligation under this agreement to pay money to the
Assignor.
(b) The Assignee is entitled to the Deposit and any accrued interest on
the Deposit in all circumstances (including if this agreement is
terminated) except where the Assignor is entitled to the Deposit and
any accrued interest in accordance with Clause 3.4(a).
(c) The rights set out in Clauses 3.4(a) and (b) are without prejudice to
any other rights or remedies that the parties may have.
4 TITLE
Title to the Deposit shall pass to the Assignor or the Assignee as
appropriate when they become entitled to the Deposit under Clause 3.4.
5 NOT USED
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6 COMPLETION
6.1 Completion Date
The Completion Date means the date on which Completion occurs in accordance
with Clause 6.
6.2 Time & Place for Completion
Completion will occur as soon as reasonably practicable (but in any event
no longer than 5 Business Days) after the Condition is satisfied.
Completion will take place at the Canberra offices of the ACA at 12.00pm or
such other time and/or place as the parties may agree in writing
6.3 Payment of Purchase Price
(a) The Purchase Price is to be paid as follows:
(1) at Completion, the Assignee must:
(A) pay $96 million to the Assignor by bank cheque ("Completion
Cheque"); and
(B) deliver an authority addressed to Macquarie Bank Limited for
Macquarie Bank Limited to release the Deposit to the
Assignor.
(2) On or before 31 August 2001, the Assignee must pay $30 million to
the Assignor as well as all accrued interest on that amount
calculated at the Interest Rate from but not including the
Completion Date to and including the date of payment in
accordance with this clause.
(b) At Completion, the Assignor must deliver an authority to Macquarie
Bank Limited for Macquarie Bank Limited to release the Deposit to the
Assignor.
6.4 Transfers
(a) On Completion the Assignor will deliver to the ACA the Transfer Forms
duly completed and duly signed by the Assignor, following receipt by
it of the Completion Cheque. The Assignor will hold the Completion
Cheque in escrow and will not bank the Completion Cheque and title in
the money underlying the Completion Cheque will not pass until the ACA
has amended the Register to show that the Assignee is the licensee of
the Licences.
6.5 GST
(a) The consideration payable under this agreement does not include a
goods or services tax ("GST") or similar tax. If GST is imposed on any
supply made under this agreement, the parties agree that subject to
the Assignor issuing a valid tax invoice (as defined in the A New Tax
System (Goods and Services) Act 1999), the consideration may be
increased by an additional amount calculated by multiplying the
consideration payable for the relevant supply by the prevailing GST
rate at the time of the supply.
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(b) Except where specifically provided otherwise in this agreement, the
parties agree that any amount in respect of GST payable under this
Clause 6.5 must be paid by the Assignee before the 21st day of the
following month after receipt by the Assignee of the relevant valid
tax invoice provided that if the Assignee does not pay the Assignor
GST on the due date under this Clause the Assignee must pay the
Assignor any additional tax, interest or penalties for late payment
incurred by the Assignor as a result.
(c) The Assignor must provide the Assignee with an adjustment note
immediately upon becoming aware of an adjustment event (as defined in
a New Tax System (Goods and Services) Tax Act 1999).
6.6 Assignment of Licences
(a) At Completion the Assignor, effective from Completion assigns to the
Assignee and the Assignee accepts assignment from the Assignor of all
rights, title and interest in each of the Licences.
(b) From Completion, the Assignee must duly observe and perform all of the
covenants, terms, conditions and obligations to be observed or
performed by the Assignor under each Licence.
6.7 Assignor's Obligation Upon Completion
On Completion the Assignor will deliver to the Assignee original copies of
the Licences (if not already provided).
6.8 Interdependence
Each of the obligations of the parties expressed as being required to take
place at Completion must occur simultaneously and none of them will be
taken to have occurred until all of them have occurred.
7 PERIOD BEFORE COMPLETION
7.1 Prior to Completion
(a) During the period after both parties have signed this agreement and
until Completion, the Assignor will not:
(i) sell, transfer, lease, assign or otherwise dispose of any of the
Licences;
(ii) without the prior written approval of the Assignee (which consent
cannot be unreasonably withheld) create or allow any Encumbrance
to arise over the Licences; or
(iii) knowingly or wilfully do or fail to do anything that would
result in the Assignor breaching any conditions of the Licences
or any Laws applicable to the Licences.
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(b) The Assignor will notify the Assignee of any claim, demand, action, or
cause of action made against the Assignor prior to Completion in
respect of the Licences.
(c) The Assignee must forthwith provide the ACA with such information
about the assignment contemplated by this agreement, including but not
limited to any applicable fees, as the ACA requires (if any) for the
purpose of amending the Register to take account of that assignment.
8 WARRANTIES AND INDEMNITIES
8.1 Warranties
(a) Unless otherwise stated, and subject to Clause 8.2, the Assignor gives
to the Assignee the Assignor Warranties as at the date of this
agreement and immediately prior to Completion.
(b) The Assignee and the Guarantor gives to the Assignor the Assignee
Warranties as at the date of this agreement and immediately prior to
Completion.
8.2 Disclosure and Matters of Public Record
The Assignor Warranties other than the Assignor Warranties numbered 1
through 5 and 10 are given subject to and are qualified by:
(a) disclosures in this agreement;
(b) the written information provided by the Assignor to the Assignee for
the purposes of due diligence enquiries into the Licences, the
Assignor and the business of the Assignor; and
(c) matters recorded as at 4.00pm in Sydney on the date preceding the date
of this agreement which would have been revealed by searches as at
those times of any public register or data base kept by the ACA.
8.3 Assignor Indemnity
(a) The Assignor will indemnify the Assignee against any loss or damage
and all reasonable costs and expenses it incurs as a direct result of
the breach of the agreement by the Assignor ("Assignee Claim"). For
the avoidance of doubt this indemnity extends, without limitation, to
reasonable legal costs.
(b) Within 15 Business Days after the Assignee receives any claim or
demand, or is served with any legal proceedings, which may lead to
liability on the part of the Assignor under any Assignee Claim, the
Assignee shall give written notice to the Assignor setting out full
details of the claim, demand or legal proceedings.
(c) The Assignee shall not compromise or pay any claim or demand or admit
liability in relation to any claim or demand or agree to arbitrate,
compromise or settle any legal proceedings which may lead to liability
on the part of the Assignor under any Assignee Claim without prior
written approval of the Assignor.
(d) The Assignor will at any time be entitled at its election to:
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(i) require, at the Assignor's own cost, the Assignee (and the
Assignee will be obliged) to take such action as the Assignor
reasonably requires to avoid, contest, compromise or defend any
claim, demand or legal proceedings which may lead to liability on
the part of the Assignor under any Assignee Claim, or
(ii) take over responsibility for the conduct or defence of such claim
or demand or legal proceedings.
(e) The Assignor is not liable to the Assignee for any Assignee Claim
arising from a claim, demand or legal proceedings in respect of which
the Assignee does not fully comply with this Clause 8.3.
(f) The indemnity given in Clause 8.3(a) is subject to all of the
limitations that apply to a Claim for breach of an Assignee Warranty.
8.4 Assignee Indemnity
(a) The Assignee will indemnify the Assignor against any loss or damage
and all reasonable costs and expenses it incurs as a direct result of
the breach of the agreement by the Assignee ("Assignor Claim"). For
the avoidance of doubt this indemnity extends without limitation to
reasonable legal costs.
(b) Within 15 Business Days after the Assignor receives any claim or
demand, or is served with any legal proceedings, which may lead to
liability on the part of the Assignee under any Assignor Claim, the
Assignor shall give written notice to the Assignee setting out full
details of the claim, demand or legal proceedings.
(c) The Assignor shall not compromise or pay any claim or demand or admit
liability in relation to any claim or demand or agree to arbitrate,
compromise or settle any legal proceedings which may lead to liability
on the part of the Assignee under any Assignor Claim without prior
written approval of the Assignee.
(d) The Assignee will at any time be entitled at its election to:
(i) require, at the Assignee's own cost, the Assignor (and the
Assignor will be obliged) to take such action as the Assignee
reasonably requires to avoid, contest, compromise or defend any
claim, demand or legal proceedings which may lead to liability on
the part of the Assignee under any Assignor Claim, or
(ii) take over responsibility for the conduct or defence of such claim
or demand or legal proceedings.
(e) The Assignee is not liable to the Assignor for any Assignor Claim
arising from a claim, demand or legal proceedings in respect of which
the Assignor does not fully comply with this Clause 8.4.
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(f) The indemnity given in Clause 8.4(a) is subject to all of the
limitations that apply to a Claim for breach of an Assignor Warranty.
8.5 Not Entitled to Claim
The Assignee must not make any Claim unless it is based on and limited to
the provisions of this agreement (and, if it relates to a breach of an
Assignor Warranty, such Claim must only be for the breach of that Assignor
Warranty as qualified by the matters referred to in Clause 9).
8.6 Assignee's Reliance on its Own Inquiries
The Assignee acknowledges and warrants and represents to the Assignor that:
(a) it is a sophisticated investor and radio communications operator and
it has agreed to take an assignment of the Licences and enter this
agreement as a result of its own investigations and enquiries, for
which it has had ample opportunity, and has not relied upon any
warranty, representation or assurance given by or on behalf of the
Assignor, other than as expressly set out in this agreement;
(b) except as expressly set out in this agreement, neither the Assignor
nor any person acting or purporting to act for or on behalf of the
Assignor have given notice or made any warranty or undertaking
concerning the Licences; and
(c) all conditions and warranties which would otherwise be implied in this
agreement (whether by statute, the common law, equity, trade custom or
usage or howsoever otherwise) are expressly excluded to the maximum
extent permitted by law.
8.7 Adjustment to Purchase Price
Any amount paid to the Assignee by the Assignor under this agreement
including in connection with a Claim, will be treated as a reduction in the
Purchase Price.
9 LIMITATION OF LIABILITY
9.1 Consequential Loss
(a) The Assignor is not liable to the Assignee for, and the Assignee must
not make a Claim for, any consequential or indirect loss including,
without limitation, lost profits and lost opportunities.
(b) The Assignee is not liable to the Assignor for, and the Assignor must
not make a Claim for, any consequential or indirect loss including,
without limitation, lost profits and lost opportunities.
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9.2 Limitation for Insurance
The Assignor is not liable to the Assignee for any Claim for loss or damage
to the extent such loss or damage is recovered under any policy of
insurance of the Assignee or a Related Body Corporate of the Assignee or
would be so recovered by a policy of insurance had the Assignee and its
Related Bodies Corporate complied with their obligations under such policy
of insurance (including, without limitation, by notifying the relevant
insurer of the occurrence of all insurable events and other relevant
matters within the necessary time periods).
9.3 Limitation for Future Events
The Assignor is not liable to the Assignee for any Claim to the extent that
it would not have arisen but for:
(a) anything done or not done after Completion by the Assignee or any
person acting or purporting to act on behalf of the Assignee(other
than at the direction of the Assignor); or
(b) the enactment of any legislation or a change in Law or the practice of
a Government Agency after the date of this agreement including
legislation or any change which has a retrospective effect;
9.4 Time Limits
(a) The Assignor is not liable to the Assignee for any Claim unless:
(i) the Assignee has given written notice to the Assignor setting out
full details of the Claim and the matters giving rise to that
Claim within 2 years after Completion; and
(ii) the Claim was agreed, compromised or settled or the Assignee has
issued and served legal proceedings against the Assignor
concerning the Claim within 3 months of giving notice of the
Claim.
(b) The Assignee is not liable to the Assignor for a breach of an Assignee
Warranty unless:
(i) the Assignor has given written notice to the Assignee setting out
full details of the Claim and the matters giving rise to that
Claim within 2 years after Completion; and
(ii) the Claim was agreed, compromised or settled or the Assignor has
issued and served legal proceedings against the Assignee
concerning the Claim within 3 months of giving notice of the
Claim.
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9.5 Monetary Limits
(a) The Assignor is not liable to the Assignee for any Claim for breach of
the Assignor Warranties unless:
(i) the amount of each claim is more than $140,000, in which case the
Assignee may recover all amounts claimed and not just the excess
of $140,000; and
(ii) the aggregate amount claimed in respect of all breaches under
this agreement must exceed $700,000, in which case the Assignee
may recover all amounts claimed, not just the excess over
$700,000.
(b) The Assignee is not liable to the Assignor for a breach of the
Assignee Warranties unless:
(i) the amount of each claim is more than $140,000, in which case the
Assignor may recover all amounts claimed and not just the excess
of $140,000; and
(ii) the aggregate amount claimed in respect of all breaches under
this agreement must exceed $700,000, in which case the Assignor
may recover all amounts claimed, not just the excess over
$700,000.
9.6 Maximum Amount of Claims
(a) The maximum aggregate amount of Claims which the Assignee may recover
is the amount (excluding interest) it has paid to the Assignor under
this agreement on account of the Purchase Price.
(b) For the avoidance of doubt, the Assignee cannot recover any amount for
a Claim if it has already recovered an amount equal to the amount of
cash it has paid to the Assignor under this agreement.
9.7 Frivolous Claim
No party may make, or institute any legal proceedings for, any frivolous or
vexatious Claim.
9.8 Right to Reimbursement
(a) The Assignee must reimburse the Assignor an amount equal to any sum
paid by the Assignor for any Claim which is subsequently recovered by
or paid to the Assignee by any third party (including but not limited
to, any insurer).
(b) The Assignor must reimburse the Assignee an amount equal to any sum
paid by the Assignee for any Claim which is subsequently recovered by
or paid to the Assignor by any third party (including but not limited
to, any insurer).
9.9 No Liability if Loss is Otherwise Compensated for
No liability will attach to the Assignor by reason of any breach of any of
the Assignor Warranties to the extent that the same loss has been recovered
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by the Assignee under any other Assignor Warranty or term of this agreement
and accordingly the Assignee may only recover once for the same loss.
10 OTHER MATTERS
10.1
(a) The Guarantor shall, for a period of 12 months from the date of
Completion, investigate ways to assist the Assignor in marketing its
non-English pay television channels ("the Assignor's channels") by:
(i) using its reasonable endeavours to procure distribution of the
Assignor's channels which are suitable for the New Zealand market
at reasonable commercial rates and on reasonable commercial terms
over any pay television network in New Zealand in which the
Guarantor has an interest; and
(ii) using its reasonable endeavours to procure distribution of the
Assignor's channels which are suitable to the relevant markets at
reasonable commercial rates and on reasonable commercial terms
over pay television networks which UnitedGlobalCom Inc has an
interest.
(b) This Clause shall not merge on Completion.
11 GENERAL PROVISIONS
11.1 Further Assurance
The parties covenant and agree that each will do all acts and things and
execute all deeds and documents and other writings as are from time to time
reasonably required for the purposes of or to give effect to this agreement
including to effect the registration of the assignment of the Licences to
the Assignee by the ACA.
11.2 Governing Law
(a) This agreement is governed by and construed in accordance with the
laws of New South Wales and of the applicable laws of the Commonwealth
of Australia in force from time to time.
(b) Any legal action or proceedings with respect to this agreement may
only be brought in any of the courts of New South Wales and the
parties hereby exclusively submit to the jurisdiction of such courts
and of the courts of appeal there from.
11.3 Public Announcements and Confidentiality
(a) Subject to Clause 11.3(b) and (c), each of the parties will procure
that neither it nor any of its Related Bodies Corporate will make any
public announcement or disclosure to any person in relation to this
agreement, or information of which it has become aware in connection
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with this agreement, unless it first consults with and obtains the
agreement in writing of the other parties, which agreement is not to
be unreasonably withheld, but:
(1) no party will be entitled to withhold agreement in the case of a
public announcement or notification where and to the extent that
the same is required by law or the Australian Stock Exchange
Limited Listing Rules; and
(2) a party will be entitled to make disclosures:
(A) to the directors, secretary, professional advisers and
bankers of that party so long as the party uses all
reasonable endeavours to ensure that the matters disclosed
are kept confidential
(B) of information in the public domain other than as a breach
of this Clause; and
(b) Austar may make such public announcements or disclosure in relation to
this agreement as required to satisfy any obligations that it has
under any Laws, including under the Listing Rules.
(c) The parties will agree the form of the public announcement to be made
by the Guarantor following signing of this agreement before the
Guarantor makes that announcement.
(d) The Non Disclosure Agreement between the Assignor and the Assignee
dated 20 March 2000 will cease to apply to Confidential Information
relating solely to the terms of the Licences.
11.4 No Set Off
The Assignee must not set off against any amount payable by it to the
Assignor (or any amount due and payable or to become due and payable by it
to the Assignor) any amount due and payable or to become due and payable by
the Assignor to it.
11.5 Notices
(a) All notices, requests, consents and other documents ("Notices")
authorised or required to be given by or under this agreement will be
given in legible writing and in English and either personally served
or sent by facsimile transmission ("fax") addressed as follows:
Assignor
To: Television & Radio Broadcasting Services Australia Pty
Limited
Address: 55 Pyrmont Bridge Road, Pyrmont 2009
Fax No: 9776 2323
Attention: Mr Mike Boulos
15
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Assignee and Guarantor
To: Austar United Communications Limited
Address: Level 29 AAP Centre, 259 George Street, Sydney 2000
Fax No: 9394 9850
Attention: Corporate Counsel
(b) Notices will be deemed served or given:
(1) if personally served, by being left at the address of the party
to whom the Notice is given between the hours of 9.00 am and 5.00
pm on any Business Day ("business hours");
(2) if sent by fax, when successfully transmitted during business
hours in the place to where the facsimile is being transmitted,
or if not during business hours, then when business hours next
commence.
(c) Any party may change its address for receipt of Notices at any time by
giving notice to the other party. Any Notice given under this
agreement may be signed on behalf of any party by the duly authorized
representative of that party and will be sent to all other parties to
this agreement.
11.6 Successors and Assigns
All of the terms and provisions of this agreement are binding upon, enure
to the benefit of, and are enforceable by the respective representatives,
successors or assigns of each of the parties provided that no party may
assign any of its obligations or rights hereunder without the prior written
consent of the other parties (which consent cannot be unreasonably withheld
or delayed.)
11.7 Duty
All Duty assessed on this agreement, or concerning anything done or to be
done under this agreement (including the assignment of the Licences), must
be paid by the Assignee. The Assignee indemnifies the Assignor in respect
thereof and must take all steps necessary to ensure that all Duty is
assessed and paid within the time limits required by law. The Assignee is
liable for any penalty, interest or fine payable for the failure so to do.
11.8 Expenses
Each party bears its own cost and expenses, including brokerage, investment
bank, legal or other advisor fees and commissions, if any, incurred in
connection with this agreement and the transactions contemplated by it.
11.9 Entire agreement
This agreement contains the entire understanding of the parties hereto
concerning the transactions contemplated by this agreement. There are no
16
<PAGE>
understandings, agreements, warranties or representations, express or
implied, concerning the transactions contemplated by this agreement except
for those specifically set forth herein.
11.10 Amendments
No amendment or modification of, nor addition to, the provisions of this
agreement are binding unless it is in writing and executed by the parties
to this agreement.
11.11 Waiver
(a) A party's failure or delay to exercise a power or a right does not
operate as a waiver of that power or right.
(b) The exercise of a power or right does not preclude its future exercise
or the exercise of any other power or right.
(c) No waiver of any power or right under this agreement is effective
unless it is in writing.
11.12 Severance and Reading Down
(a) Each word, phrase, sentence, subparagraph, paragraph, sub-clause,
Clause or other provision ("provision") of this agreement is
severable.
(b) If a court determines that a provision is unenforceable, illegal or
void, the court may sever that provision which becomes inoperative.
(c) Such severance does not affect any other provision of this agreement.
(d) Where a provision of this agreement would otherwise be unenforceable,
illegal or void, the effect of that provision will, so far as is
possible, be limited and read down such that it is not unenforceable,
illegal or void.
11.13 Counterparts
This agreement may be executed in counterparts which, when taken together,
form one document.
11.14 Survival
Clauses 1, 2.4, 3, 4, 6.5, 9, 11 and 12 survive termination of this
agreement.
12 GUARANTEE AND INDEMNITY
12.1 Guarantee
The Guarantor unconditionally and irrevocably guarantees to the Assignor:
(a) the payment of the Guaranteed Moneys; and
(b) the due and punctual performance by the Assignee of the Assignee's
obligations under this agreement.
17
<PAGE>
12.2 Payment
If the Guaranteed Moneys are not paid when due, the Guarantor must
immediately on demand from the Assignor pay to the Assignor the Guaranteed
Moneys in the same manner as the Guaranteed Moneys are required to be paid.
12.3 Performance
If the Assignee fails to perform any of its obligations under this
agreement when they are due, the Guarantor must immediately on demand from
the Assignor perform those obligations or cause the Assignee to perform
those obligations.
12.4 Indemnity
(a) If any of the Guaranteed Moneys (or amounts which would have been
Guaranteed Moneys had they not been irrecoverable) are:
(i) irrecoverable from the Assignee; and
(ii) not recoverable by the Assignor from the Guarantor on the basis
of a guarantee;
the Guarantor as a separate and principal obligation;
(i) indemnifies the Assignor against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered,
paid or incurred by the Assignor in relation to the non-payment
of those amounts; and
(ii) must pay to the Assignor an amount equal to those amounts.
(b) The Guarantor indemnifies the Assignor against any claim, action,
damage, loss, liability, cost, charge, expense, outgoing or payment
suffered, paid or incurred by the Assignor in relation to:
(i) the failure of the Assignee to perform its obligations under this
agreement; or
(ii) the failure of the Guarantor to cause the Assignee to perform its
obligations under this agreement.
12.5 Extent of Guarantee and Indemnity
(a) This Clause 12 applies to:
(i) the present and future amounts of Guaranteed Moneys and the
present and future obligations of the Assignee under this
agreement, and
(ii) this agreement, as amended, supplemented, renewed or replaced.
18
<PAGE>
(b) The obligations of the Guarantor under this Clause 12 extend to any
increase in the Guaranteed Moneys and any change in the obligations of
the Assignee as a result of:
(i) any amendment, supplement, renewal or replacement of this
agreement; or
(ii) the occurrence of any other thing.
(c) This Clause 12 is not affected nor are the obligations of the
Guarantor under this agreement released or discharged or otherwise
affected by anything which but for this provision might have that
effect.
(d) This Clause 12 applies:
(i) regardless of whether the Guarantor is aware of or has consented
to or is given notice of any amendment, supplement, renewal or
replacement of any agreement to which the Assignee and the
Assignor are a party or the occurrence of any other thing; and
(ii) irrespective of any rule of law or equity to the contrary.
12.6 Principal and Independent Obligation
(a) This Clause 12 is a principal obligation and is not to be treated as
ancillary or collateral to any other right or obligation.
(b) This Clause 12 is enforceable against the Guarantor whether or not the
Assignor has:
(A) made demand upon the Assignee; or
(B) given notice to the Assignee or any other person for any thing;
or
(C) taken any other steps against the Assignee or any other person;
and
(D) whether or not any Guaranteed Moneys is due.
12.7 No Competition
(a) Subject to Clause 12.7(b), until the Guaranteed Moneys have been fully
paid, the obligations of the Assignee under this agreement have been
fully performed and this Clause 12.7(a) has been finally discharged,
the Guarantor must not, either directly or indirectly, prove in, claim
or receive the benefit of any distribution, dividend or payment
arising out of or relating to the liquidation of the Assignee.
(b) If required by the Assignor, the Guarantor must prove in any
liquidation of the Assignee for all amounts owed to the Guarantor.
(c) All amounts recovered by the Guarantor from any liquidation or under
any Security Interest from the Assignee must be received and held in
trust by the Guarantor for the Assignor to the extent of the
unsatisfied liability of the Guarantor under this Clause 12.
19
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12.8 Continuing Guarantee and Indemnity
This Clause 12 is a continuing obligation of the Guarantor, despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
(c) and remains in full force and effect until:
(d) all the Guaranteed Moneys have been paid in full;
(e) the obligations of the Assignee under this agreement have been fully
performed; and
this Clause 12 has been finally discharged by the Assignor.
12.9 Procurement
Without limiting any other provision of this agreement, and notwithstanding
any other provision of this agreement, the Guarantor will ensure that the
Assignee performs each of its obligations under this agreement (as and when
required by this agreement) and any other agreement entered into in
accordance with this agreement or relates to the transactions contemplated
in this agreement.
12.10 Limitation
Any limitation of the liability of the Assignee under this agreement also
applies mutatis mutandis to the Guarantor's liability under this Clause 12.
20
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
EXECUTED as an agreement
SIGNED FOR AND ON BEHALF OF )
TELEVISION AND RADIO )
BROADCASTING SERVICES )
AUSTRALIA PTY LIMITED )
/s/ Mike Boulos
------------------------------------------------
Authorised Person
SIGNED FOR AND ON BEHALF OF )
AUSTAR UNITED LICENCECO )
PTY LIMITED )
/s/ John Clinton Porter /s/ Anne Louise Wilde
------------------------------------------------ --------------------------------------------------
Director Director/Secretary
SIGNED FOR AND ON BEHALF OF )
AUSTAR UNITED COMMUNICATIONS )
LIMITED )
/s/ John Clinton Porter /s/ Jonathan L. Morphett
----------------------------------------------- --------------------------------------------------
Director Director/Secretary
</TABLE>
21
<PAGE>
SCHEDULE 1
----------
SPECTRUM LICENCES ISSUED UNDER THE RADIOCOMMUNICATIONS ACT 1992
1 Licence Number 8100020 (Perth)
2 Licence Number 8100023 (Perth)
3 Licence Number 8100025 (Perth)
4 Licence Number 8100027 (Sydney)
5 Licence Number 8100015 (Melbourne)
6 Licence Number 8100012 (Canberra)
7 Licence Number 8100010 (Adelaide)
8 Licence Number 8100008 (Brisbane)
9 Licence Number 8100005 (Adelaide)
10 Licence Number 8100003 (Adelaide)
<PAGE>
SCHEDULE 2
----------
ASSIGNEE WARRANTIES
Corporate Status and Authority
1 The Assignee and the Guarantor have the legal right and power to enter into
this agreement and to consummate the transactions contemplated by it, on
and subject to the terms and conditions of this agreement.
2 The execution, delivery and performance of this agreement by the Assignee
and the Guarantor have been duly and validly authorised and this agreement
is a valid and binding agreement of the Assignee and the Guarantor.
3 The Assignee and the Guarantor are duly incorporated under the laws of
Australia.
4 As at the date of this agreement neither the Assignee, the Guarantor nor
any of their Related Bodies Corporate nor any of their employees or
advisors who were involved in the Assignee's or Guarantor's consideration
of the Licences, the Assignor and its business, this agreement and possible
other agreements with the Assignor or in connection with the Licences are
aware of any matter or thing which would prevent the Assignor transferring
the Licences unencumbered to the Assignee as contemplated by this
agreement.
<PAGE>
SCHEDULE 3
----------
ASSIGNOR WARRANTIES
Corporate Status and Authority
1 The Assignor has the legal right and power to enter into this agreement and
to consummate the transactions contemplated by it, on and subject to the
terms and conditions of this agreement.
2 The execution, delivery and performance of this agreement by the Assignor
has been duly and validly authorised and this agreement is a valid and
binding agreement of the Assignor enforceable in accordance with its terms.
Licences
3 The Assignor is the sole legal and beneficial owner of the Licences.
4 As at Completion the Licences will not be subject to any Encumbrance.
5 At Completion the Assignor will assign the Licences free of any
Encumbrances to the Assignee as contemplated by this agreement.
6 At Completion there will be no users of any spectrum which is the subject
of the Licences that are authorised by the Assignor.
7 To the best of the Assignor's knowledge as at the date of this agreement
the Assignor is not in breach of and has not received notice of a breach
of, any conditions of the Licences or any Law applicable to the Licences.
8 As at the date of this agreement to the best of the Assignor's knowledge,
the Assignor has not acted in any way and is not aware of any reason which
is reasonably likely to cause the ACA to refuse to amend the Register to
document the assignment of the Licences to the Purchaser.
9 As at the date of this agreement to the best of the Assignor's knowledge,
no person has made any claims or demands in relation to the Licences and is
not aware of any such claims or demands that may be made.
10 The Licences numbered 7, 9 and 10 on Schedule 1 were not Encumbered to the
South Australian government when converted to a Licence from apparatus
licences.
<PAGE>
ANNEXURE 1
----------
[TRANSFER FORMS OMMITTED]
