Exhibit 2
Execution Copy
AMENDMENT NO. 1 TO OPTION AGREEMENTS
This AMENDMENT to each of those certain Option Agreements described
more fully herein is entered into as of this 12 day of August 1998, by and among
Xxxxx International, Ltd. ("International"), Xxxxx Xxxxx Grantor Business Trust
(the "Xxxxx Trust"), Xxxxx International Grantor Business Trust (the "JI Trust",
and together with the Xxxxx Trust, the "Trusts"), Xxxxx Space Segment, Inc.
("Space"), Xxxxx Global Group, Inc. ("Global"), Xxxxx Interdigital, Inc.
("Interdigital"), Xxxxx Entertainment Group, Ltd. ("Entertainment" and together
with International, the Trusts, Space, Global and Interdigital, the "Xxxxx
Entities") and The Bank of New York (as successor agent to Xxxxxx Guaranty Trust
Company of New York) (the "Purchaser"), as agent for, in the case of a Section
3.1(a)(vi) Exercise (as defined herein), Comcast Corporation, a Pennsylvania
corporation ("Comcast"), and in all other cases BTH (Intercable) Limited, a
British Virgin Islands corporation f/k/a Xxxx Canada International BVI VI
Limited ("BTH Intercable") as assignee of BCI Telecom Holdings Inc., a Canadian
corporation, f/k/a Xxxx Canada International, Inc. ("BTH").
WHEREAS, the Xxxxx Entities have entered into those certain Option
Agreements, each dated as of December 20, 1994 (the "Option Agreements"),
pursuant to which BTH Intercable, as assignee of BTH and through its agent, has
the option (the "Control Option") to purchase the shares of Common Stock, par
value $.01 per share (the "Common Stock"), of Xxxxx Intercable, Inc. (the
"Company") owned beneficially or of record by the Xxxxx Entities (the "Control
Shares");
WHEREAS, BTH, BTH Intercable and BTH (US Cable) Limited, a
British Virgin Islands corporation f/k/a Xxxx Canada International BVI III,
Limited ("US Cable") have entered into a Purchase and Sale Agreement with
Comcast, dated as of May 22, 1998, and amended and restated as of the date
hereof (the "Comcast/BTH Agreement") in connection with the transactions
contemplated by the Xxxxx/Comcast Agreement (as defined herein), including the
exercise of the Control Option pursuant to the Option Agreements. BTH, BTH
Intercable and US Cable are sometimes referred to herein as the "Bell Entities."
WHEREAS, the Xxxxx Entities have entered into an Agreement with
Comcast, dated August 12, 1998 (the "Xxxxx/Comcast Agreement"), concerning the
exercise of the Control Option;
WHEREAS, in connection with the execution and delivery of the
Comcast/BTH Agreement as so amended and restated and the Xxxxx/Comcast Agreement
and in light of the transactions contemplated thereby, the parties hereto desire
to amend each of the Option Agreements as described herein to provide for, among
other things, a new Exercise Period (as defined in the Option Agreements) which
will cause the Control Option to become currently exercisable;
THEREFORE, in consideration of the mutual covenants contained herein,
and intending to be legally bound hereby, the parties agree as follows.
1. Definitions. All terms used but not otherwise defined herein shall
have the same meanings as ascribed to them in the Option Agreements.
2. Amendment of Preamble. The preamble to the Option Agreements is
hereby amended by:
(a) inserting after the date "December 20, 1994" the phrase
"and amended as of August 12, 1998" and
(b) inserting after the word "between" the phrase "The Bank of
New York (as successor agent to Xxxxxx Guaranty Trust Company of New York) (the
"Purchaser"), as agent for, in the case of a Section 3.1(a)(vi) Exercise (as
defined herein), Comcast Corporation, a Pennsylvania corporation and in all
other cases BTH (Intercable) Limited, a British Virgin Islands corporation f/k/a
Xxxx Canada International BVI VI Limited ("BTH Intercable") as assignee of BCI
Telecom Holdings Inc., a Canadian corporation, f/k/a Xxxx Canada International,
Inc. ("BTH")".
3. Substitution of the term "BCI". All instances of the term "BCI" in
the Option Agreements are hereby deleted and replaced with the term "BTH".
4. Amendment to Section 1.1(a). Section 1.1(a) is amended by:
(a) deleting the definition of "BCI" and inserting in lieu
thereof the following definition:
""BTH" means BCI Telecom Holding Inc. f/k/a Xxxx Canada
International Inc., a corporation organized under the Canada Business
Corporations Act."
(b) deleting the definition of "Shareholders Agreement" and
inserting in lieu thereof the following definition:
""Shareholders Agreement" means the Shareholders Agreement
dated as of December 20, 1994 among BTH, the Company, Xxxxx and Xxxxx
International, as amended on August 12, 1998."
(c) and adding thereto the following definitions:
""BTH/Comcast Agreement" means that certain Purchase and Sale
Agreement, dated May 22, 1998, and amended and restated as of August 12, 1998 by
and among Comcast, BTH, BTH (US Cable) Limited, a British Virgin Islands
corporation f/k/a Xxxx Canada International BVI III Limited, and BTH Intercable.
"Comcast" means Comcast Corporation, a Pennsylvania
corporation.
"Franchise Authority" has the meaning that term is given by
Section 602(9) of the Cable Communications Act of 1984 (47 U.S.C. (S) 522(10)).
"Xxxxx/Comcast Agreement" means that certain Agreement dated
August 12,, 1998 by and among Comcast and the Xxxxx Entities (as defined
therein).
"Xxxxx/Comcast Closing" means the "Closing" as defined in the
Xxxxx/Comcast Agreement.
-2-
"Xxxxx/Comcast Closing Date" means the "Closing Date" as
defined in the Xxxxx/Comcast Agreement.
"Section 3.1(a)(vi) Exercise" shall refer to the exercise of
the Control Option in accordance with Article III hereof pursuant to Section
3.1(a)(vi).
"Simultaneous Closing" means the Simultaneous Closing as such
term is defined in the BTH/Comcast Agreement."
5. Amendment to Section 1.1(b). Section 1.1(b) is hereby amended by
inserting the following:
"Other Transactions 3.2(b)"
6. Amendment of Section 3.1. Section 3.1 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"SECTION 3.1 Exercise Periods. (a) The Control Option may be exercised
either as provided in Section 7.2(c), or by Purchaser at any time during any of
the following periods (each, an "Exercise Period"):
(i) the period commencing on the day of an Event and ending
270 days after Purchaser receives written notice from or on behalf of
any Optionor of the occurrence of an Event;
(ii) the period commencing on the day of a Resignation Event
and ending 90 days after Purchaser receives a written notice from (or
on behalf of ) any Optionor of the occurrence of a Resignation Event;
(iii) the period commencing on the day that Purchaser receives
a written notice from (or on behalf of ) Grantor requesting that
Purchaser exercise the Control Option (the "Grantor's Notice"), which
notice may be delivered only on or after the fifth anniversary of the
SPA Closing, and ending 180 days after such day;
(iv) the period commencing on the seventh anniversary of the
SPA Closing and ending on the eighth anniversary of the SPA Closing;
(v) the period commencing on the day of a Xxxxx Bankruptcy
Event and ending 30 days after Purchaser receives written notice of the
occurrence of a Xxxxx Bankruptcy Event; and
(vi) the period commencing on August 12, 1998, which period
shall only apply to the exercise of the Control Option pursuant to the
Xxxxx/Comcast Agreement; provided, that upon the occurrence of the
Initial Closing as defined in the BTH/Comcast Agreement the Exercise
Period described in this Section 3.1(a)(vi) shall automatically
terminate.
provided that no Exercise Period will expire if immediately preceding such
expiration there is in effect a law, regulation or order that stays or otherwise
prohibits Purchaser from delivering an Exercise Notice after (or as a result of)
the occurrence of a Xxxxx Bankruptcy Event; provided further however, that the
commencement of any Exercise Period described in Sections 3.1(a)(i) through (v)
inclusive shall be postponed until such time, if ever, on the earlier to occur
of the date the Xxxxx/Comcast Agreement shall have expired or been terminated or
the date of the Initial Closing under the BTH/Comcast Agreement, but in no event
shall such Exercise Periods described in Sections 3.1(a)(i) - 3.1(a)(v) end
later than December 20, 2002.
-3-
(b) The notices delivered pursuant to clauses (i), (ii), (iii) and (v)
will be in the form attached hereto as Exhibit A. A Grantor's Notice delivered
pursuant to clause (iii) will be effective only if a similar notice is
simultaneously delivered to Purchaser under the Related Option Agreements. Once
delivered to Purchaser, a Grantor's Notice will be irrevocable.
(c) Subject to the termination provisions of Section 3.6, the parties
acknowledge that at any given time there may be more than one Exercise Period in
effect at such time.
(d) Grantor acknowledges and agrees that the delivery of an Exercise
Notice pursuant to a Section 3.1(a)(vi) Exercise is being made for the account
of Comcast. BTH shall not be liable to Grantor under this Agreement if the
closing of the Section 3.1(a)(vi) Exercise shall not occur for any reason
provided that this Section 3.1(d) shall not be deemed to be a waiver by Grantor
of any claim which it may have against BTH due to a breach by BTH of its
obligations hereunder or preserved pursuant to the second sentence of Section
1.6 of the Agreement and Amendment No. 1 to Shareholders Agreement of even date
herewith."
7. Amendment of Section 3.2. Section 3.2 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"SECTION 3.2 Exercise of Control Option. (a) Purchaser may exercise the
Control Option at any time during an Exercise Period by delivery to Grantor of
an irrevocable written notice in the form attached hereto as Exhibit B (the
"Exercise Notice"). The execution and delivery of this Agreement as amended on
August 12, 1998 shall be deemed to be delivery by Purchaser of a valid Exercise
Notice as of such date pursuant to a Section 3.1(a)(vi) Exercise. Purchaser has
no obligation to deliver an Exercise Notice pursuant to Section 3.1(a)(i)
through (v) and may allow the Control Option to expire and terminate without
purchasing the Optioned Shares. The Control Option may only be exercised
simultaneously with the exercise of the option granted under the Related Option
Agreements and the Closing hereunder will only take place simultaneously with
the closing of the exercise of the option granted under the Related Option
Agreements; provided that the Closing pursuant to a Section 3.1(a)(vi) Exercise
will also only take place on the same date as the Xxxxx/Comcast Closing and the
Simultaneous Closing.
(b) The closing for the exercise of the Control Option (the "Closing")
(1) in the case of any exercise of the Control Option other than a Section
3.1(a)(vi) Exercise, will take place not more than 20 Business Days after the
date that the Exercise Notice is delivered to Grantor, provided that (x) if it
is necessary to determine Market Value pursuant to Section 3.4(b), the Closing
will be postponed as provided in Section 3.4(c) and (y) so long as Purchaser is
using its reasonable efforts to consummate the Closing promptly, and subject to
Section 3.6 hereof, Purchaser may postpone the Closing until such time as the
following conditions have been satisfied or waived by Purchaser and (2) in the
case of a Section 3.1(a)(vi) Exercise, will take place on the same date as the
Xxxxx/Comcast Closing and the Simultaneous Closing at such time as the following
conditions have been satisfied or waived by Purchaser:
-4-
(i) The waiting period (including any extension thereof
resulting from additional inquiries, if any) under the HSR Act
applicable to (x) the purchase of the Optioned Shares by Purchaser and
(y) in the case of a Section 3.1(a)(vi) Exercise, the consummation of
the transactions contemplated by the Xxxxx/Comcast Agreement and the
BTH/Comcast Agreement including the sale of the Optioned Shares from
Purchaser to Comcast (the "Other Transactions") shall have expired or
been earlier terminated.
(ii) All other actions by, in respect of or filings with any
Governmental Authority in the United States, England or Spain, or any
other country where the Intercable Group conducts material business,
required to permit (x) the consummation of the Closing and (y) in the
case of a Section 3.1(a)(vi) Exercise, the consummation of the Other
Transactions, shall have been taken or obtained, as the case may be,
and shall be in full force and effect; provided that, in the case of a
Section 3.1(a)(vi) Exercise, if all authorizations, consents and
approvals from applicable Franchise Authorities necessary to effect the
change of control of the Franchises (A) relating to the Franchises in
Systems (whether Owned Systems or Managed Systems) set forth on
Schedule F hereto, (B) relating to Franchises in Managed Systems which
as of the date of Closing are subject to a letter of intent or
agreement of sale providing for the sale or other disposition of such
Managed Systems to a person other than the Company (or its wholly owned
Subsidiaries), and (C) relating to Franchises with not less than 10,000
basic subscribers in Systems (whether Owned Systems or Managed Systems)
acquired by any Intercable Group Entity (except for Managed Systems
which, as of the Closing Date, are subject to a letter of intent or
agreement of sale providing for the sale or other disposition of such
Managed System to the Company or one of its wholly owned Subsidiaries)
after the date hereof (the "Required Franchise Approvals") shall have
been so obtained, be in effect and not be subject to withdrawal or
appeal then the condition contained in this paragraph (ii) shall be
deemed to be fulfilled as it relates to authorizations, consents or
approvals from applicable Franchise Authorities on the date on which
all of the Required Franchise Approvals are so obtained and are in
effect and not subject to withdrawal or appeal and provided further
that this condition shall not be satisfied if any Required Franchise
Approval shall not have been obtained.
(iii) There shall not then be in effect any applicable law,
rule or regulation or any judgment, injunction, order or decree that
has one or more of the effects described in clauses (a), (b) or (c) of
the following paragraph (iv), provided that (x) if after the date
hereof BTH or any of its Affiliates and (y) in the case of a Section
3.1(a)(vi) Exercise, if after August 12, 1998 Comcast or any of its
Affiliates enters into a new line of business and at such time there is
a law, rule or regulation that has, or is reasonably expected to have,
one or more of such effects, then this clause (iii) will not apply to
any such law, rule or regulation.
(iv) There shall not then be instituted or pending any action
or proceeding before any federal or state court or other Governmental
Authority brought by a Governmental Authority challenging the
consummation of the Closing or, in the case of a Section 3.1(a)(vi)
Exercise, the Other Transactions or seeking to (a) prevent BTH (or its
agent) or, in the case of a Section 3.1(a)(vi) Exercise, Comcast (or
its agent) from exercising the Control Option, (b) require BTH (or its
agent) or, in the case of a Section 3.1(a)(vi) Exercise, Comcast (or
its agent) to divest, or otherwise limit BTH's, Comcast's (or their
respective agent's) ability to exercise full rights of ownership over,
the shares of Capital Stock owned by BTH and its Affiliates, Comcast
and its Affiliates, the Control Option or the Optioned Shares or (c)
require, after the exercise of the Control Option, the Intercable Group
or, in the case of a Section 3.1(a)(vi) Exercise the Intercable Group
or Comcast to divest any material business or assets or would impose a
material limitation on the conduct of Intercable Group's or Comcast's
business, provided that (A) if after the date hereof BTH or any of its
Affiliates, or, in the case of a Section 3.1(a)(vi) Exercise, if after
August 12, 1998 Comcast or any of its Affiliates enters into a new line
of business and at such time there is a law, rule or regulation that
has, or is reasonably expected to have, one or more of the foregoing
effects, then this paragraph (iv) will not apply to actions or
proceedings that seek to enforce such law, rule or regulation and (B)
any actions or proceedings described in clause (a) or (b) will be based
on the business or assets of BTH and Comcast or their respective
Affiliates and not the Purchaser.
-5-
(v) The Intercable Group Entities shall have received all
material third party consents required to be obtained in connection
with the Closing, and, in the case of a Section 3.1(a)(vi) Exercise,
the consummation of the Other Transactions in each case in form and
substance reasonably satisfactory to Purchaser.
(vi) The representations and warranties of Grantor contained
in Article V shall be true at and as of the date of the Closing, as if
made at and as of such date.
(vii) In the case of a Section 3.1(a)(vi) Exercise only, the
Xxxxx/Comcast Closing and the Simultaneous Closing shall have occurred
on the same date as the Closing hereunder."
8. Amendment of Section 3.3. Section 3.3 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"SECTION 3.3 Purchase Price For the Optioned Shares. (a) The purchase
price per Optioned Share will be calculated as follows:
(i) (A) if the Trigger Date occurs prior to or on June 18,
1995, 200% of the Market Value of a share of Class A Common Stock on
the applicable Trigger Date, or (B) except in the case of a Section
3.1(a)(vi) Exercise, if the Trigger Date occurs after June 18, 1995,
the sum of (x) two-thirds of the Option Price on the applicable Trigger
Date(1) and (y) one-third of 120% of the Market Value of a share of
Class A Common Stock on the applicable Trigger Date1 or (C) in the case
of a Section 3.1(a)(vi) Exercise, $69.4891 per Optioned Share, in each
case reduced by
(ii) (A) the amount (or in the case of property other than
cash, fair market value) of any dividends and distributions other than
stock dividends paid, declared or otherwise distributed by the Company
in respect of the Optioned Shares between the date hereof and the date
of Closing and (B) in the case of a Section 3.1(a)(vi) Exercise, the
amount of any Initial Consideration (as such term is used in the
Xxxxx/Comcast Agreement) which has been paid to Xxxxx, Grantor or any
party to the Related Option Agreements (or their respective Affiliates)
in respect of the Optioned Shares plus interest accrued at the
Applicable Rate (as such term is used in the Xxxxx/Comcast Agreement)
from the date such Initial Consideration was paid by Comcast to and
including the date of Closing; provided that the amount of such Initial
Consideration (plus interest) deemed to have been paid in respect of
each Optioned Share shall be equal to the total amount of such Initial
Consideration (plus interest) paid (and accrued) under the
Xxxxx/Comcast Agreement divided by the sum of the aggregate number of
Optioned Shares actually acquired by Purchaser on the date of Closing
under this Option Agreement plus the aggregate number of Optioned
Shares (as such term is used in the Related Option Agreements) actually
acquired by Purchaser on the date of Closing under the Related Option
Agreements.(2) In the event any such dividends or distributions are
made in property other than cash, the fair market value of such
dividends or distributions will be determined pursuant to the valuation
procedures described in Section 3.4(b).
--------
1. As an example of the calculation described in clause (i) (B), if on the
applicable Trigger Date the Option Price were $50 per Share and the
Market Value of a share of Class A Common Stock were $60 per share, the
purchase price would be 2/3 of $50 ($33.3333) plus 1/3 of 120% of $60
($24), or $57.3333 (computed to four decimal places).
2 As an example of the calculation described in clause (ii)(B), if on the
date of Closing the total amount of the Initial Consideration (plus
interest) paid (and accrued) under the Xxxxx/Comcast Agreement is equal
to $51,000,000 and the sum of the aggregate number of Optioned Shares
actually acquired by Purchaser on the date of Closing under this Option
Agreement plus the aggregate number of Optioned Shares (as such term is
used in the Related Option Agreements) actually acquired by Purchaser
on the date of Closing under the Related Option Agreements is equal to
2,700,000 Optioned Shares, the amount of the reduction per Optioned
Share would be $51,000,000 divided by 2,700,000, or $18.8889 (computed
to four decimal places).
-6-
(b) The applicable "Trigger Date" will depend on the Exercise Period
under which Purchaser is delivering an Exercise Notice and will be earliest of
the following days:
(i) in the case of an Exercise Period described in
clauses (i) or (ii) of Section 3.1(a), the day of an Event or
Resignation Event, as the case may be;
(ii) in the case of an Exercise Period described in clause
(iii) of Section 3.1(a), the day immediately preceding the day on which
Grantor delivers a Grantor's Notice;
(iii) in the case of an Exercise Period described in clause
(iv) of Section 3.1(a), the day immediately preceding day on which
Purchaser delivers an Exercise Notice;
(iv) in the case of an Exercise Period described in clause (v)
of Section 3.1(a), the day immediately preceding the day of a Xxxxx
Bankruptcy Event; or
(v) in the case of a Section 3.1(a)(vi) Exercise, the
date hereof."
9. Amendment of Section 3.5. Section 3.5 is amended by adding a new
subsection (c) thereto as follows:
"(c) In the case of a Section 3.1(a)(vi) Exercise, the transactions
described in paragraphs (a) and (b) of this Section 3.5 shall occur on the same
date as the Xxxxx/Comcast Closing and the Simultaneous Closing. If the
Simultaneous Closing and the Xxxxx/Comcast Closing shall not have occurred on
the same date as the Closing, then the transactions described in paragraphs (a)
and (b) of Section 3.5 shall be rescinded and deemed not to have occurred. In
the case of a Section 3.1(a)(vi) Exercise, the procedures at the Closing shall
be as follows:
(i) the directors of the Company other than the Joint Nominees
(as such term is defined in the Shareholders Agreement) shall resign
seriatim and the remaining directors shall appoint individuals
designated by Comcast to fill the vacancies created thereby, all as
more fully described in the Xxxxx/Comcast Agreement and the BTH/Comcast
Agreement.
(ii) the transactions described in paragraphs (a) and (b) of
Section 3.5 of this Agreement and of the Related Option Agreements
shall occur; and
(iii) the transactions to be effected at the Simultaneous
Closing shall occur."
10. Amendment of Section 3.6 Section 3.6 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"SECTION 3.6 Termination of Control Option. (a) The Control Option
shall terminate at 5:00 p.m. Denver time when the first Exercise Period
described in clauses (i), (iii) or (iv) of Section 3.1 expires (the "Termination
Time"), provided that, subject to the following paragraph (b), the Control
Option will not terminate if Purchaser has previously delivered to Grantor an
Exercise Notice. The Control Option shall also terminate (A) at such time as
Purchaser withdraws an Exercise Notice pursuant to Section 3.4(c), or (B) if the
Closing has been postponed pursuant to Section 3.2(b)(1), ten Business Days
after Grantor has delivered written notice to Purchaser stating that it believes
Purchaser is not using its reasonable efforts to consummate the Closing promptly
(which notice will set forth the basis for such claim) and Purchaser has failed
to use its reasonable efforts prior to the expiration of such period to cure the
problem identified by Grantor. The Control Option will not terminate solely
because of the expiration of the Exercise Periods described in clauses (ii) and
(v) of Section 3.1, or in the case of a Section 3.1(a)(vi) Exercise, upon the
termination of the Xxxxx/Comcast Agreement and the failure of the Closing
hereunder to occur.
-7-
(b) Notwithstanding anything in this Agreement to the contrary, (i) if
an Exercise Period is extended pursuant to the proviso in Section 3.1(a), the
Termination Time will occur twenty Business Days after such stay or prohibition
has been lifted and Purchaser has received notice of such action and (ii) each
Exercise Notice other than a Section 3.1(a)(vi) Exercise Notice shall terminate,
and be of no further force or effect, 18 months after its delivery, unless a
Closing shall have occurred by such time.
(c) Notwithstanding the foregoing provisions of this Section 3.6, in no
event shall the Control Option expire or terminate prior to the termination of
the Xxxxx/Comcast Agreement."
11. Amendment of Section 4.1. Section 4.1 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"SECTION 4.1 No Proxies for or Encumbrances on Optioned Shares. Except
as contemplated by this Agreement, until the termination of this Agreement
pursuant to Section 10.1, Grantor shall not, directly or indirectly, (i) grant
any proxies (other than a revocable proxy granted in connection with a meeting
of stockholders) or enter into any voting trust or other agreement or
arrangement with respect to the voting of any Optioned Shares, (ii) sell,
assign, transfer, encumber or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect sale, assignment, transfer, encumbrance or other disposition of, any
Optioned Shares or (iii) seek or solicit any transaction or arrangement
described in clauses (i) and (ii). Grantor will notify Purchaser promptly (and
provide all details reasonably requested by Purchaser) if Grantor is approached
or solicited, directly or indirectly, by any person with respect to any of the
foregoing. Nothing herein shall be deemed to prevent or restrict (x) Grantor or
its Affiliates from voting its shares in its sole discretion on all matters,
except as otherwise agreed to between Grantor, its Affiliates, and BTH in the
Shareholders Agreement or otherwise, or between Grantor, its Affiliates and
Comcast in the Xxxxx/Comcast Agreement or otherwise or (y) any Affiliate of
Grantor from taking or refraining from taking any other action not provided
herein or otherwise agreed to between Grantor, its Affiliates and BTH in the
Shareholders Agreement, the Xxxxx/Comcast Agreement or otherwise or between
Grantor, its Affiliates and Comcast in the Xxxxx/Comcast Agreement."
12. Amendment of Section 4.2. Section 4.2 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"SECTION 4.2 Further Assurances. BTH (and its agent) and Grantor will
each execute and deliver or cause to be executed and delivered all further
documents and instruments and use their reasonable best efforts to secure such
consents and take all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby or to enable Purchaser
and BTH or Comcast, as applicable, to enjoy all benefits and rights of the
Optioned Shares."
-8-
13. Amendment of Section 6.1. Section 6.1 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"SECTION 6.1 Acquisition for Purchaser's Account. Purchaser represents
and warrants to Grantor that as of the date hereof and the date of the Closing
the Optioned Shares to be acquired upon exercise of the Control Option will be
acquired by Purchaser as the agent for, in the case of a Section 3.1(a)(vi)
Exercise, Comcast's, and in all other instances BTH's own account and not with a
view to the public distribution thereof and will not be transferred except in
compliance with the Securities Act."
14. Amendment of Section 9.3(c). Section 9.3(c) is hereby deleted in
its entirety and the following is substituted in lieu thereof:
"(c) In connection with an exercise of rights pursuant to Section
9.1(d), Purchaser may cause any or all of the Optioned Shares to be transferred
of record into the name of Purchaser, in the case of a Section 3.1(a)(vi)
Exercise, to Comcast and in the case of any other exercise, to BTH, or in any
event, to any of their respective nominees. After notice thereof, Grantor will
promptly give to the Purchaser (or its designee) copies of any notices or other
communications received by it with respect to the Optioned Shares registered in
the name of Grantor, and Purchaser will promptly give to Grantor copies of any
notices and communications received by Purchaser, to the extent the same have
been delivered to Purchaser (or Comcast, BTH or a nominee) with respect to any
Optioned Shares registered in the name of Purchaser (or Comcast, BTH or a
nominee)."
15. Amendment of Section 10.2(a). Section 10.2(a) is hereby deleted in
its entirety and the following is substituted in lieu thereof:
"SECTION 10.2 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors. No party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
written consent of the other parties hereto, provided that (i) Purchaser may
assign its rights, but not its obligations, hereunder to any Eligible Assignee
(or an agent of such Eligible Assignee), (ii) Purchaser may assign its rights
and obligations hereunder as provided in Article VII, (iii) Purchaser may assign
its rights (but not its obligations) hereunder at any time after the delivery by
it of an Exercise Notice to Grantor if at the time of any such assignment
pursuant to this clause (iii) the assignee purchases the Optioned Shares
pursuant to Section 3.5(a) and (b) and (iv) Purchaser may, at the Closing of a
Section 3.1(a)(vi) Exercise and the consummation of the Xxxxx/Comcast Closing,
assign all its rights and obligations hereunder to Comcast."
-9-
16. Amendment of Section 10.4. Section 10.4 is hereby amended by (a)
deleting the address of Xxxx Canada International, Inc. in its entirety and
substituting in lieu thereof the following:
"BCI Telecom Holding Inc.
0000, xxx xx xx Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Fax: 000-000-0000
Attention: Corporate Secretary
with copies to (unless the Initial Closing (as defined in the
BTH/Comcast Agreement) shall have occurred or the
Xxxxx/Comcast Agreement shall have terminated):
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Fax: 000-000-0000"
and (b) deleting the name and address of the Purchaser and substituting in lieu
thereof:
"The Bank of New York, as successor agent to
Xxxxxx Guaranty Trust Company of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00X
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxx X. Xxxx, Assistant Vice President"
17. Amendment to Section 10.10. Section 10.10 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"Section 10.10 Entire Agreement. This Agreement, together with the
Xxxxx/Comcast Agreement, the Shareholders Agreement (including the Agreement and
Amendment No. 1 to Shareholders Agreement) and the BTH/Comcast Agreement
constitutes the entire agreement between the parties with respect to the subject
matter of this Agreement and supersedes all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter of
this Agreement."
18. Amendment to Section 10.12. Section 10.12 is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"SECTION 10.12 Agency Capacity of Purchaser. Grantor expressly
acknowledges and agrees that Purchaser is acting solely as agent on behalf of,
in the case of a Section 3.1(a)(vi) Exercise, Comcast, and in all other
instances, BTH and not in a principal capacity. Grantor further acknowledges and
agrees that in executing and delivering this Agreement, making any payment,
delivering any notice or instruction, making any determination or taking any
other action provided for or contemplated herein, Purchaser is acting and shall
act solely upon the instruction and at the direction of, in the case of a
Section 3.1(a)(vi) Exercise, Comcast, and in all other instances, BTH."
19. Addition of Section 10.13. Immediately following Section 10.12, a
new Section 10.13 is hereby added as follows:
"SECTION 10.13 Termination of Xxxxx/Comcast Agreement. All references
to the Xxxxx/Comcast Agreement, the BTH/Comcast Agreement, the Xxxxx/Comcast
Closing and Closing Date, Comcast and the Section 3.1(a)(vi) Exercise shall be
deemed deleted and of no force or effect if and at such time as the earlier to
occur of the Initial Closing under the BTH/Comcast Agreement and the date the
Xxxxx/Comcast Agreement shall have been terminated."
-10-
IN WITNESS WHEREOF, the parties have caused this Amendment to
be executed by their duly authorized representatives as of the day and year
first above written.
XXXXX XXXXX GRANTOR BUSINESS TRUST
By:_____________________________________
XXXXX INTERNATIONAL GRANTOR BUSINESS TRUST
By:_____________________________________
XXXXX INTERNATIONAL, LTD.
By:_____________________________________
XXXXX SPACE SEGMENT, INC.
By:_____________________________________
XXXXX GLOBAL GROUP, INC..
By:_____________________________________
XXXXX INTERDIGITAL, INC..
By:_____________________________________
-11-
XXXXX ENTERTAINMENT GROUP, LTD.
By:______________________________________
THE BANK OF NEW YORK, as successor agent
to XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as agent for BTH Telecom Holding
Inc. f/k/a Xxxx Canada International Inc.
and Comcast Corporation
By:______________________________________
This Amendment is consented to and approved of by the following:
BCI TELECOM HOLDING, INC.
By:______________________________________
BTH (INTERCABLE) LIMITED
By:______________________________________
COMCAST CORPORATION
By:______________________________________
-12-
SCHEDULE F
Owned Systems
FRANCHISES HELD BY
XXXXX INTERCABLE, INC.
Panama City Beach, Florida System
City of Panama City Beach
Oxnard, California System
City of Oxnard
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF MARYLAND, INC.
Prince George's County System:
Xxxxx Xxxxxx Xxxxxx'x Xxxxxx
Xxxxx Xxxxxx Xxxxxx'x Xxxxxx
City of Bowie
Chesapeake Bay Group (including Annapolis,
Xxxx Arundel County and
Xxxxxxx County Systems):
Xxxx Arundel County
City of Annapolis
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF
GEORGIA/SOUTH CAROLINA, INC.
Savannah System:
Chatham County
City of Savannah
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF VIRGINIA, INC.
Alexandria System:
City of Alexandria
Prince Xxxxxxx Group (including
Xxxx City, Reston and
Manassas Systems):
Fairfax County (Reston)
City of Manassas
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF ARIZONA, INC.
Pima County System:
Town of Oro Valley
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF MISSOURI, INC.
Independence System:
City of Olathe, KS
City of Raytown
-2-
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF NEW MEXICO, INC.
Albuquerque System:
City of Albuquerque
FRANCHISES HELD BY
XXXXX OF WISCONSIN, INC.
Manitowoc System:
City of Manitowoc
Managed Systems
FRANCHISES HELD BY
CABLE TV FUND 14-A, Ltd.
Xxxxxxx County System:
Xxxxxxx County
Naperville System
City of Naperville
FRANCHISES HELD BY
XXXXX GROWTH PARTNERS, X.X.
Xxxxxxx System
City of Wheaton
Village of Addison
-3-
FRANCHISES HELD BY
IDS/XXXXX JOINT VENTURE PARTNERS
Aurora System
City of Aurora
FRANCHISES HELD BY
CABLE TV FUND 12-BCD VENTURE
Palmdale and Littlerock Systems:
Los Angeles County
City of Lancaster
City of Palmdale
FRANCHISES HELD BY
XXXXX CABLE INCOME FUND 1-A, LTD.
Owatonna/Glencoe System
City of Owatonna
FRANCHISES HELD BY
CABLE TV FUND 12-A, LTD.
Xxxx County/Orland Park System
Village of Mundelein
FRANCHISES HELD BY
CABLE TV FUND 15-A, LTD.
South Suburban System
Village of Lansing
-4-
