EXHIBIT 10.3
SECURITIES PURCHASE AGREEMENT
dated as of December 17, 2001
by and among
CROWN MEDIA HOLDINGS, INC.,
CROWN MEDIA TRUST
and
the INVESTORS NAMED HEREIN
1. DEFINITIONS....................................................................................1
2. PURCHASE OF SECURITIES.........................................................................7
2.1 Purchase of Securities................................................................7
2.2 Certificates..........................................................................7
2.3 Use of Proceeds.......................................................................8
3. THE INVESTORS' REPRESENTATIONS AND WARRANTIES..................................................8
3.1 Existence; Authorization; Legal Proceedings...........................................8
3.2 Investment Intention..................................................................9
3.3 Accredited Investor...................................................................9
3.4 Restricted Securities.................................................................9
3.5 Tax Residency.........................................................................9
3.6 Treatment of Units....................................................................9
3.7 No Disposition of Shares by Investor.................................................10
3.8 ERISA................................................................................10
4. THE ISSUERS' REPRESENTATIONS AND WARRANTIES...................................................10
4.1 Authorized and Outstanding Shares of Capital Stock...................................10
4.2 Securities Laws......................................................................11
4.3 Corporate Existence; Compliance with Law.............................................11
4.4 No Violations........................................................................12
4.5 Preferred Securities.................................................................12
4.6 Common Securities....................................................................13
4.7 Contingent Appreciation Certificate Agreement........................................13
4.8 Contingent Appreciation Certificates.................................................13
4.9 Exercise of Contingent Appreciation Certificates.....................................13
4.10 Purchase Agreement...................................................................13
4.11 Indenture............................................................................13
4.12 Debentures...........................................................................14
4.13 Guarantee............................................................................14
4.14 Subordination and Support Agreement..................................................14
4.15 No Conflicts.........................................................................14
4.16 Subsidiaries.........................................................................15
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(CONTINUED)
PAGE
4.17 SEC Documents; Financial Statements..................................................15
4.18 No Violations........................................................................16
4.19 Authorizations.......................................................................16
4.20 Benefit Plans........................................................................16
4.21 Taxes................................................................................17
4.22 No Litigation........................................................................17
4.23 Brokers..............................................................................17
4.24 Patents, Trademarks, Copyrights and Licenses.........................................17
4.25 Ownership of Property................................................................18
4.26 Investment Company...................................................................18
4.27 Registration Rights..................................................................18
4.28 No Material Adverse Change...........................................................18
4.29 Assumed Hallmark Obligations and Existing Indebtedness...............................18
4.30 No Material Untrue Statement or Omission.............................................19
4.31 Certificates.........................................................................19
4.32 Treatment of Units...................................................................19
5. CLOSING DELIVERIES............................................................................20
5.1 Indenture............................................................................20
5.2 Declaration..........................................................................20
5.3 Contingent Appreciation Certificate Agreement........................................20
5.4 Contingent Appreciation Certificates.................................................20
5.5 Debentures...........................................................................20
5.6 Preferred Securities Guarantee.......................................................20
5.7 Subordination and Support Agreement..................................................20
5.8 Trust Securities and Debenture Purchase Agreement....................................20
5.9 Credit, Security, Guaranty and Pledge Agreement and Consent..........................20
5.10 Stock Certificates...................................................................21
5.11 Opinion of Wachtell, Lipton, Xxxxx & Xxxx............................................21
5.12 Opinion of Xxxxxx X. Xxxxxxxxx.......................................................23
5.13 Opinion of Xxxxxxx Xxxxxxxx..........................................................24
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5.14 Opinion of Xxxxxxxx, Xxxxxx & Finger, P.A. ..........................................26
5.15 Opinion to Company...................................................................28
5.16 Use of Proceeds......................................................................28
5.17 Fees.................................................................................28
5.18 Good Standing Certificates...........................................................28
6. INDEMNIFICATION...............................................................................28
6.1 Indemnification......................................................................28
6.2 General Indemnification Procedures...................................................29
6.3 Tax Treatment of Indemnity Payments..................................................30
7. MISCELLANEOUS.................................................................................30
7.1 Successors and Assigns...............................................................30
7.2 Amendments; Etc. ....................................................................30
7.3 Entire Agreement.....................................................................31
7.4 Severability.........................................................................31
7.5 Governing Law........................................................................31
7.6 Waiver of Jury Trial.................................................................31
7.7 Notices..............................................................................31
7.8 Survival.............................................................................32
7.9 Section and Other Headings...........................................................33
7.10 Counterparts.........................................................................33
7.11 Publicity............................................................................33
7.12 Remedies.............................................................................33
ANNEX A...............................................................................................A-1
Schedule 2.3 Use of Proceeds..........................................................................S-1
Schedule 3.5 Non-U.S. Person..........................................................................S-2
Schedule 3.8 ERISA....................................................................................S-3
Schedule 4.1(c) Preemptive Rights.....................................................................S-4
Schedule 4.16 Subsidiaries............................................................................S-5
Schedule 4.20 Benefit Plans...........................................................................S-6
Schedule 4.22 Litigation..............................................................................S-8
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TABLE OF CONTENTS
(CONTINUED)
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Schedule 4.29(a) Assumed Obligations.................................................................S-10
Schedule 4.29(b) Outstanding Indebtedness............................................................S-11
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of December 17, 2001, by and
among Crown Media Trust, a Delaware statutory business trust (the "Trust"),
Crown Media Holdings, Inc., a Delaware corporation (the "Company," and together
with the Trust, the "Issuers") and the Investors named on the signature pages
hereto (the "Investors").
WITNESSETH:
WHEREAS, the Issuers have agreed to issue and sell to the Investors,
and the Investors have agreed to purchase from the Issuers, upon the terms and
conditions hereinafter provided, Units (as defined herein), consisting of: (i)
one preferred security, representing undivided beneficial interests in the
assets of Trust and having such terms as are set forth in the Declaration (each
a "Preferred Security") and (ii) one contingent appreciation certificate (each a
"Contingent Appreciation Certificate") to receive cash or to purchase 38.261
(the "Index Amount") shares (the "Certificate Shares") of Class A Common Stock,
par value $0.01 per share (the "Class A Common Stock") of the Company at a price
per share of $13.07 (the "Index Price"). The Units, Preferred Securities and
Contingent Appreciation Certificates shall be referred to herein as the
"Securities."
WHEREAS, pursuant to the terms of a Preferred Securities Guarantee
Agreement, dated as of December 17, 2001 (the "Guarantee"), the Company has
agreed to guarantee, on a subordinated basis, the obligations of the Trust with
respect to the Preferred Securities, including with respect to distributions and
amounts payable on the Preferred Securities upon liquidation or redemption or
otherwise, to the extent of the Trust's assets.
WHEREAS, the Trust is subject to the provisions of the Amended and
Restated Declaration of Trust (the "Declaration") among the Company, as Sponsor,
XX Xxxxxx Xxxxx Bank, as property trustee (the "Property Trustee"), Chase
Manhattan Bank USA, National Association, as Delaware trustee (the "Delaware
Trustee"), three individual trustees who are officers of the Company (the
"Regular Trustees," and together with the Property Trustee and Delaware Trustee,
the "Trustees"), for the benefit of the holders of the Securities, from time to
time.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. DEFINITIONS
"Affiliate" has the meaning given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Agreement" means this
Securities Purchase Agreement, including all
amendments, modifications and supplements hereto and any appendices, exhibits
and
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schedules hereto or thereto, and shall refer to such agreement as the same may
be in effect at the time such reference becomes operative.
"Assumed Obligations" means the obligations set forth in Schedule
4.29(a) hereof.
"Authorization" has the meaning set forth in Section 4.19 hereof.
"Beneficial Ownership" (including correlative meanings) means the
ownership of a security (as defined in the Securities Act) as defined under Rule
13d-3 under the Exchange Act.
"Business Day" means any day other than a day on which Federal and
State banking institutions in The Borough of Manhattan, the City of
New York are
authorized or obligated by law, executive order or regulation to close.
"Certificate Shares" has the meaning set forth in the recitals to this
Agreement.
"Class A Common Stock" has the meaning set forth in the recitals to
this Agreement.
"Class B Common Stock" means the Company's Class B Common Stock, par
value $0.01 per share.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the U.S. Securities and Exchange Commission.
"Common Securities" means the common securities of the Trust
representing undivided beneficial interests in the assets of the Trust having
such terms as are set forth in the Declaration.
"Common Stock" means collectively the Class A Common Stock and the
Class B Common Stock and any recapitalization or reclassification of either such
class of Common Stock.
"Company" has the meaning set forth in the first paragraph of this
Agreement.
"Company SEC Documents" has the meaning set forth in Section 4.17(a)
hereof.
"Contingent Appreciation Certificate" has the meaning set forth in the
recitals to this Agreement.
"Contingent Appreciation Certificate Agreement" means the Contingent
Appreciation Certificate Agreement dated as of the Issue Date, between the
Company and the Investors.
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"Control Group" has the meaning set forth in Section 4.20 hereof.
"Crown Media" means Crown Media International, Inc., a Delaware
corporation and a subsidiary of the Company.
"Debentures" means $273,196,000 in aggregate principal amount of the
Company's 6.75% Subordinated Debentures due 2007.
"Declaration" has the meaning set forth in the recitals to this
Agreement.
"Delaware Trustee" has the meaning set forth in the recitals to this
Agreement.
"DGCL" means the General Corporation Law of the State of Delaware.
"Environmental Laws" means all foreign, federal, state and local laws,
statutes, ordinances and regulations, now or hereafter in effect, and in each
case as amended or supplemented from time to time, and any judicial or
administrative interpretation thereof, including any applicable judicial or
administrative order, consent decree or judgment, relative to the applicable
real estate, relating to the regulation and protection of human health and
safety, the environment and natural resources (including ambient air, surface
water, groundwater, wetlands, land surface or subsurface strata, wildlife,
aquatic species and vegetation) or hazardous or toxic substances or wastes,
pollutants or contaminants. Environmental Laws include but are not limited to
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. Section 9601 et seq.) ("CERCLA"); the Hazardous
Material Transportation Act, as amended (49 U.S.C. Section 1801 et seq.); the
Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C.
Section 136 et seq.); the Resource Conservation and Recovery Act, as amended (42
U.S.C. Section 6901 et seq.) ("RCRA"); the Toxic Substance Control Act, as
amended (15 U.S.C. Section 2601 et seq.); the Clean Air Act, as amended (42
U.S.C. Section 740 et seq.); the Federal Water Pollution Control Act, as amended
(33 U.S.C. Section 1251 et seq.); the Occupational Safety and Health Act, as
amended (29 U.S.C. Section 651 et seq.) ("OSHA"); and the Safe Drinking Water
Act, as amended (42 U.S.C. Section 300f et seq.), and any and all regulations
promulgated thereunder, and all analogous state and local counterparts or
equivalents and any transfer of ownership notification or approval statutes that
relate to worker health and safety or the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974 (or
any successor legislation thereto), as amended from time to time and any
regulations promulgated thereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
from time to time, or any successor statute, and all rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"GAAP" means generally accepted accounting principles in the United
States, as in effect on the Issue Date.
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"Governmental Authority" means any nation or government, any state,
local or other political subdivision thereof, any court, arbitrator, official,
agency, department or other Person exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, or any
foreign, federal, state or local governmental or regulatory agency, authority,
commission or instrumentality.
"Group" has the meaning given such term in Section 13(d)(3) of the
Exchange Act.
"Guarantee" has the meaning set forth in the recitals to this
Agreement.
"Hallmark Cards" means Hallmark Cards, Incorporated, a Missouri
corporation, and its successors and assigns.
"herein", "hereof" and "hereunder", and other words of similar import,
refer to this Agreement as a whole and not to any particular Article, Section or
other subdivision.
"Indemnified Party" has the meaning set forth in Section 6.2(a) hereof.
"Indemnifying Party" has the meaning set forth in Section 6.2(a)
hereof.
"Indemnity Payment" has the meaning set forth in Section 6.3 hereof.
"Indenture" means the Indenture, dated as of December 17, 2001, by and
among the Company and the Indenture Trustee, as such indenture may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"Indenture Trustee" means the Indenture Trustee named in the Indenture.
"Index Amount" has the meaning set forth in the recitals to this
agreement.
"Index Price" has the meaning set forth in the recitals to this
Agreement.
"Initial Declaration of Trust" means the Declaration of Trust of the
Trust, dated December 7, 2001, among the Company, as Sponsor, and the Trustees.
"Intellectual Property Rights" has the meaning set forth in Section
4.24 hereof.
"Investment Company Act" has the meaning set forth in Section 4.26
hereof.
"Investors" has the meaning set forth in the first paragraph of this
Agreement.
"Issue Date" means December 17, 2001.
"Issuers" has the meaning set forth in the first paragraph of this
Agreement.
"Losses" has the meaning set forth in Section 6.1 hereof.
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"Material Adverse Effect" means any change, occurrence or effect that
is materially adverse to the business, prospects, financial condition or results
of operations of the Company and its Subsidiaries (including the Trust) taken as
a whole, or materially adversely affects the ability of any such party to
perform its obligations under any Transaction Documents.
"Minimum Return Amount" has the meaning set forth in the Contingent
Appreciation Certificate Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Permit" means any license, franchise, permit, consent, approval,
waiver or certificate.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, entity or
government (whether federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof).
"PPM" means the private placement memorandum relating to the Securities
delivered by the Company to the Investors in connection herewith.
"Preferred Securities" has the meaning set forth in the recitals to
this Agreement.
"Property Trustee" has the meaning set forth in the recitals to this
Agreement.
"Purchase Price" has the meaning set forth in Section 2.1 hereof.
"Regular Trustees" has the meaning set forth in the recitals to this
Agreement.
"SEC" means the U.S. Securities and Exchange Commission, or any
successor thereto.
"Securities" has the meaning set forth in the recitals to this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, from
time to time, or any successor statute, and all rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Significant Subsidiary" has the meaning assigned to such term in
Regulation S-X promulgated by the SEC.
"Stock" means all shares, options, warrants, general or limited
partnership interests, limited liability company membership interests,
participations or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited
5
liability company or equivalent entity whether voting or nonvoting, including,
without limitation, common stock, preferred stock, or any other "equity
security" (as such term is defined in Rule 3a11-1 under the Exchange Act).
"Subordination and Support Agreement" means the Subordination and
Support Agreement, dated as of December 17, 2001, among the Trust, the Company,
Hallmark Cards, the Indenture Trustee, the Property Trustee and the holders of
Contingent Appreciation Certificates identified therein.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose voting power of outstanding Stock shall at the time be
owned, directly or indirectly, by such Person or by one or more Subsidiaries of
such Person, (ii) any general partnership, joint venture or similar entity, at
least a majority of whose outstanding voting partnership or similar voting
interests shall at the time be owned by such Person, or by one or more
Subsidiaries of such Person and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner.
"Third-Party Claim" has the meaning set forth in Section 6.2(a) hereof.
"Trading with the Enemy Act" means the Trading with the Enemy Act of
1917, as amended.
"Transaction Documents" means this Agreement, the Indenture, the
Contingent Appreciation Certificate Agreement, the Debentures, the Contingent
Appreciation Certificates, the Guarantee, the Declaration, certificates
representing the Trust Securities and the Subordination and Support Agreement.
"Trust" has the meaning set forth in the first paragraph of this
Agreement.
"Trust Securities" means the Common Securities and the Preferred
Securities, collectively.
"Trust Securities and Debenture Purchase Agreement" means the Trust
Securities and Debenture Purchase Agreement, dated as of the date hereof,
between the Company and Trust, relating to the exchange by the Company and the
Trust of the Trust Securities and Debentures.
"Trustees" has the meaning set forth in the recitals to this Agreement.
"Units" means the units, each comprised of one Trust Security and one
Contingent Appreciation Certificate.
Any accounting term used in this Agreement shall have, unless otherwise
specifically provided herein, the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be
computed, unless otherwise specifically provided herein, in accordance with GAAP
consistently applied. That certain
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terms or computations are explicitly modified by the phrase "in accordance with
GAAP" shall in no way be construed to limit the foregoing.
The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole, including any exhibits and schedules
hereto, as the same may from time to time be amended, modified or supplemented,
and not to any particular section, subsection or clause contained in this
Agreement. The words "includes" or "including" and other words of similar import
means "including, without limitation," unless the context expressly otherwise
requires.
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Any reference to a party hereto shall
include the successors and assigns of such party.
2. PURCHASE OF SECURITIES
2.1 Purchase of Securities. On the terms, provisions and
conditions set forth herein and in reliance upon the representations and
warranties contained herein, each Investor hereby purchases, and the Issuers
hereby issue and sell to each Investor, that number of Units set forth below
each such Investor's name on the signature pages hereto at the price per Unit
equal to $1,000, or $265,000,000 in the aggregate (such price, in the aggregate,
the "Purchase Price").
2.2 Certificates. The certificate or certificates representing
the Units, the Preferred Securities and the Contingent Appreciation Certificates
shall be subject to a legend restricting transfer under the Securities Act, such
legend to be substantially as follows:
EACH HOLDER OF THE SECURITIES REPRESENTED HEREBY, BY ITS ACCEPTANCE THEREOF,
WILL BE DEEMED TO HAVE ACKNOWLEDGED, REPRESENTED TO AND AGREED WITH THE COMPANY
AND THE TRUST THAT SUCH HOLDER UNDERSTANDS AND ACKNOWLEDGES THAT (1) THE
SECURITIES AND ANY UNDERLYING SECURITIES OR SECURITIES ISSUABLE PURSUANT THERETO
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY OTHER APPLICABLE
SECURITIES LAWS AND ARE NOT FREELY TRANSFERABLE WITHOUT REGISTRATION UNDER OR AN
EXEMPTION FROM THE SECURITIES ACT, (2) THE SECURITIES ARE BEING PURCHASED FOR
THE ACCOUNT OF THE HOLDER WITHOUT A VIEW TO DISTRIBUTE, OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION OF, THE SECURITIES IN VIOLATION OF THE
SECURITIES ACT OR ANY OTHER APPLICABLE SECURITIES LAWS AND (3) IN THE ABSENCE OF
REGISTRATION, THE SECURITIES CAN ONLY BE TRANSFERRED PURSUANT TO AN EXEMPTION
UNDER THE SECURITIES ACT AND UPON DELIVERY OF SUCH CERTIFICATIONS AND AN OPINION
OF COUNSEL
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REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT AND IN ACCORDANCE WITH ANY
OTHER APPLICABLE SECURITIES LAWS AND THAT SUCH HOLDER WILL NOTIFY THE TRANSFEREE
OF SUCH RESALE RESTRICTIONS.
2.3 Use of Proceeds. (a) The Trust shall issue the Trust
Securities to the Company in exchange for the Debentures pursuant to an
agreement between the Trust and the Company and the Company shall simultaneously
sell the Units, each of which is comprised of one Preferred Security and one
Contingent Appreciation Certificate, to the Investors.
(b) The Company shall use the proceeds of the sale of
the Units to the Investors as set forth in Schedule 2.3. The Company covenants
that no part of the proceeds from the sale of the Debentures hereunder will be
used, directly or indirectly, for the purpose of buying or carrying any margin
stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 207), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve the Company in
a violation of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220). The Company
warrants that it has no margin stock and the Company does not have any present
intention to have any margin stock. As used in this Section, the terms "margin
stock" and "purpose of buying or carrying" shall have the meanings assigned to
them in said Regulation U.
3. THE INVESTORS' REPRESENTATIONS AND WARRANTIES
Each Investor (as to itself only and not as to any other Investor)
makes the following representations and warranties to the Company and the Trust:
3.1 Existence; Authorization; Legal Proceedings. The Investor
is a corporation, limited liability company or limited partnership duly
organized, validly existing and in good standing under the laws of the state of
its organization. The execution, delivery and performance by the Investor of
this Agreement and the other Transaction Documents to be executed by the
Investor, and the consummation of the transactions contemplated hereby and
thereby: (i) are within such Investor's corporate, limited liability company or
partnership power; (ii) have been duly authorized by all necessary corporate,
limited liability company or partnership action; and (iii) are not in
contravention of any provision of such Investor's certificate of incorporation,
by-laws, certificate of formation, limited liability company agreement,
certificate of limited partnership or limited partnership agreement, as
applicable. The Investor is not required to obtain any Authorization from any
Person in connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Transaction Documents to which it is a
party. There are no legal or governmental proceedings pending, or to the best
knowledge of the Investor, threatened against such Investor that would have the
effect of preventing or delaying the Investor from entering into any of the
transactions contemplated by the Transaction Documents.
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3.2 Investment Intention. The Investor is purchasing the Units
pursuant to this Agreement for its own account, for investment purposes and not
with a present view to the distribution thereof in violation of the Securities
Act. The Investor confirms that the Issuers have made available to such Investor
and its representatives and agents the opportunity to ask questions of the
officers and management employees of the Issuers and to acquire such additional
information about the business and financial condition of the Issuers as the
Investor has requested.
3.3 Accredited Investor. Each Investor is an "accredited
investor" (as that term is defined in Rule 501 of Regulation D under the
Securities Act) and by reason of its business and financial experience, it has
such knowledge, sophistication and experience in business and financial matters
as to be capable of evaluating the merits and risks of the prospective
investment, is able to bear the economic risk of such investment and is able to
afford a complete loss of such investment for the foreseeable future.
3.4 Restricted Securities. The Investor understands that the
Securities to be purchased by it pursuant to this Agreement are characterized as
"restricted securities" under the Securities Act inasmuch as they are being
acquired from the Company in a transaction not involving a public offering, and
that under the Securities Act such securities may be resold without registration
under the Securities Act only in certain limited circumstances. The Investor is
familiar with Rule 144 of the Securities Act, as presently in effect, and
understands the resale limitations imposed thereby and by the Securities Act.
3.5 Tax Residency. Except as disclosed on Schedule 3.5, the
Investor is a "United States person" under the Code.
3.6 Treatment of Units. The Investor hereby agrees to treat,
for United States federal income tax purposes, the Preferred Securities and the
related Contingent Appreciation Certificates that comprise the Units, as unitary
debt instruments that are subject to the United States Treasury regulations
governing contingent payment debt instruments. Notwithstanding any other
provision in this Agreement and the other applicable Transaction Documents to
the contrary, in the event that on or after the Issue Date, (a) an Investor
determines (and the Company agrees in writing, which agreement shall not be
unreasonably withheld) that there is a change in the laws of the United States
which change occurs on or after the Issue Date and would require an Investor to
characterize, for United States federal income tax purposes, the Preferred
Securities and the related Contingent Appreciation Certificates that comprise
the Units as other than unitary debt instruments that are subject to the United
States Treasury regulations governing contingent payment debt instruments, or
(b) there is a "determination" within the meaning of Section 1313(a)(1) of the
Code with respect to an Investor that requires an Investor to characterize, for
United States federal income tax purposes, the Preferred Securities and the
related Contingent Appreciation Certificates that comprise the Units as other
than unitary debt instruments that are subject to the United States Treasury
regulations governing contingent payment debt instruments, then that Holder
shall not be bound pursuant to the preceding sentence or the documents referred
to in this sentence to
9
treat, for United States federal income tax purposes, the Preferred Securities
and the related Contingent Appreciation Certificates that comprise the Units as
unitary debt instruments that are subject to the United States Treasury
regulations governing contingent payment debt instruments. In the event that the
Debentures are distributed by the Trust to holders of Securities, the above
provisions of this Section 3.6 shall apply with respect to the Debentures so
distributed in lieu of the Preferred Securities.
3.7 No Disposition of Shares by Investor. Except as set forth
on Schedule 3.7, during the 30 days immediately preceding the date hereof,
neither the Investor nor any of its Affiliates (other than either (a) for the
account of others or (b) for the account of the Investor or its Affiliates in
trading conducted pursuant to internal procedures and policies to maintain
confidentiality as between the functions of the Investor assessing the
investment in the Units and such trading functions) has purchased, acquired,
sold, transferred, conveyed, mortgaged or otherwise disposed of, or undertaken,
agreed or promised (whether orally or in writing) to acquire, purchase, sell,
transfer, convey, mortgage or otherwise dispose of (i) any shares of Class A
Common Stock, (ii) any option, warrant, convertible or derivative security or
instrument, exercisable to, convertible into, or exchangeable for, Class A
Common Stock or (iii) any other right in respect of any Class A Common Stock.
3.8 ERISA. Except as disclosed in Schedule 3.8 hereto, no
portion of the assets used by the Investor to acquire the Units constitutes
"plan assets" as defined under Title I of ERISA. Each Investor hereby agrees,
and any purchaser or other transferee of any Unit shall agree, that it will not
sell or otherwise transfer any Unit or any interest therein to any "benefit plan
investor" (as such term is defined in Department of Labor regulation Section
2510.3-101) or Excluded Person (as defined below) unless (i) each purchaser or
other transferee of any Unit represents and warrants as to the percentage of the
assets used by such purchaser or transferee to acquire or hold the Units
constituting assets of any benefit plan investor and agrees that it shall not
sell or otherwise transfer any Unit without complying with this sentence, (ii)
the Units held in the aggregate by benefit plan investors immediately after such
transfer are less than 25% of the total number of Units (excluding any Units
held by the Trustees and their affiliates (collectively, "Excluded Persons"))
and (iii) the Company and the Trust agree in writing with respect to clause (ii)
above. Any purported sale or other transfer that violates the preceding sentence
shall be null and void. The Company, the Trust and each Investor shall be
entitled to conclusively rely upon the representations under or pursuant to this
Section 3.8 by each Investor or any purchaser or other transferee of any Unit
without further inquiry or investigation.
4. THE ISSUERS' REPRESENTATIONS AND WARRANTIES
The Issuers, jointly and severally, make the following representations
and warranties to the Investors:
4.1 Authorized and Outstanding Shares of Capital Stock. (a) As
of December 6, 2001, the authorized capital stock of the Company consisted of
(i)
10
200,000,000 shares of Class A Common Stock, $0.01 par value per share, of which
73,907,788 shares were issued and outstanding; (ii) 120,000,000 shares of Class
B Common Stock, $0.01 par value per share, of which 30,670,422 shares were
issued and outstanding; and (iii) 10,000,000 shares of Preferred Stock, $0.01
par value per share, none of which were issued and outstanding. All of such
issued and outstanding shares are validly issued, fully paid and non-assessable.
No shares of capital stock are held by the Company as treasury stock as of the
date of this Agreement. True, correct and complete copies of the certificate of
incorporation and by-laws of the Company have been made available to each
Investor.
(b) As of the Issue Date, the authorized capital stock
of the Trust consisted of (i) 8,196 Common Securities, stated liquidation amount
of $1,000 per security, and (ii) 265,000 Preferred Securities, stated
liquidation amount of $1,000 per security, none of either of which were issued
and outstanding.
(c) There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale or liens
granted or issued by the Company or any of its Subsidiaries relating to or
entitling any Person to purchase or otherwise to acquire any Stock of the
Company or any of its Subsidiaries, except as disclosed in the Company SEC
Documents and except as further reflected on Schedule 4.1(c) hereto.
4.2 Securities Laws. The offer, issuance, sale and delivery of
the Securities contemplated by this Agreement and the Contingent Appreciation
Certificate Agreement, as provided in this Agreement and the Contingent
Appreciation Certificate Agreement, and the Debentures pursuant to the
Indenture, as provided in the Indenture, are exempt from the registration
requirements of the Securities Act and all applicable state securities laws, and
are otherwise in compliance with such laws. Neither the Trust nor the Company
nor any Person acting on their behalf has taken or will take any action
(including any offering of any securities of the Trust or the Company under
circumstances which would require the integration of such offering with the
offering of the Securities contemplated by this Agreement and the Contingent
Appreciation Certificate Agreement under the Securities Act and the rules and
regulations of the SEC thereunder) which would subject the offering, issuance or
sale of the Securities contemplated by this Agreement and the Contingent
Appreciation Certificate Agreement, to the registration requirements of Section
5 of the Securities Act.
4.3 Corporate Existence; Compliance with Law. (a) Each of the
Company and its Significant Subsidiaries has been duly organized, is validly
existing as a corporation or limited liability company, as applicable, in good
standing under the laws of its respective jurisdiction of organization and has
the requisite corporate or other similar power and authority to carry on its
business as it is currently being conducted and to own, lease and operate its
properties except where the failure to have such power and authority,
individually or in the aggregate, would not have a Material Adverse Effect; and
the Company has the requisite corporate power and authority to authorize the
offering of the Contingent Appreciation Certificates, the Guarantee and the
Debentures, to execute,
11
deliver and perform this Agreement and the other Transaction Documents, and to
issue, sell and deliver the Debentures, the Guarantee and the Certificate Shares
and to pay the Minimum Return Amount; and each of the Company and the
Significant Subsidiaries is duly qualified and is in good standing as a foreign
corporation or limited liability company, as the case may be, authorized to do
business in each jurisdiction where the operation, ownership or leasing of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified, individually or in the aggregate, would
not have a Material Adverse Effect.
(b) The Trust is a statutory business trust duly created
and validly existing as a statutory business trust and in good standing under
the Delaware Business Trust Act; with the trust power and authority to own
property and conduct its business as it is currently being conducted, and has
conducted and will conduct no business other than the transactions contemplated
by this Agreement; and the Trust has the requisite trust power and authority to
authorize the offering of the Trust Securities, to execute, deliver and perform
this Agreement and the other Transaction Documents to which it is a party, and
to issue, sell and deliver the Trust Securities as contemplated by this
Agreement; the Trust is not a party to or bound by any agreement or instrument
other than this Agreement, the Declaration, the Subordination and Support
Agreement and the agreements and instruments contemplated by the Transaction
Documents; assuming (i) all factual statements concerning the issuance of the
Securities and Debentures contained in, and all factual representations made in,
the Transaction Documents by parties other than the Company, are true, correct
and complete and (ii) all terms of the Transaction Documents are complied with,
the Trust is not under current law, classified as an association taxable as a
corporation for United States federal income tax purposes; and the Trust is not
a party to or subject to any action, suit or proceeding of any nature.
4.4 No Violations. Neither the Company nor any of its
Subsidiaries, including the Trust, is now, or after giving effect to the
transactions contemplated hereby, will be (a) in violation of its respective
charter or bylaws (or other organizational documents), or (b) in violation of
applicable law, judgment or decree or in default in the performance of any
obligation, agreement, covenant or condition contained in any bond, debenture,
note or any other evidence of indebtedness or any indenture, mortgage, deed of
trust or other contract, lease or other instrument (i) to which the Company or
any Subsidiary is a party or by which any of them is bound or (ii) to which any
of the property or assets of the Company or any Subsidiary is subject, except,
with respect to clause (b) in the case of the Company and the Trust, and either
clause (a) or (b) in the case of any Subsidiary, such violation or default by a
Subsidiary, as would not have a Material Adverse Effect.
4.5 Preferred Securities. The Preferred Securities have been
duly authorized by the Trust, and, when issued and delivered to the Investors
against payment therefor as provided herein, will be duly and validly issued and
fully paid and non-assessable undivided beneficial interests in the assets of
the Trust; the issuance of the Preferred Securities is not subject to preemptive
or other similar rights; the Preferred Securities will have the rights set forth
in the Declaration, and certificates representing
12
the Preferred Securities, when duly executed and delivered by the Trust, will be
the valid and binding obligations of the Trust as set forth in the Declaration.
4.6 Common Securities. The Common Securities have been duly
and validly authorized by the Trust and when issued and delivered by the Trust
to the Company against payment therefor, will be duly and validly issued and
fully paid and non-assessable undivided beneficial interests in the assets of
the Trust; the issuance of the Common Securities is not subject to preemptive or
other similar rights; all of the issued and outstanding Common Securities of the
Trust are directly owned by the Company free and clear of any lien; and the
Trust Securities are the only interests authorized to be issued by the Trust.
4.7 Contingent Appreciation Certificate Agreement. The
Contingent Appreciation Certificate Agreement has been duly and validly
authorized by the Company and, when duly executed and delivered by the Company,
will be the valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except (i) as may be limited by
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium or similar laws affecting creditors' rights and
remedies generally, (ii) as to general principles of equity, regardless of
whether the same is sought in a proceeding at law or in equity, and (iii) to the
extent that a waiver of rights under any usury laws may be unenforceable.
4.8 Contingent Appreciation Certificates. The Contingent
Appreciation Certificates have been duly and validly authorized by the Company
and, when duly executed and delivered by the Company, will be the valid and
binding obligation of the Company, enforceable against the Company in accordance
with their terms, except (i) as may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or
similar laws affecting creditors' rights and remedies generally, and (ii) as to
general principles of equity, regardless of whether the same is sought in a
proceeding at law or in equity.
4.9 Exercise of Contingent Appreciation Certificates. When the
Contingent Appreciation Certificates are delivered in accordance with this
Agreement, such Contingent Appreciation Certificates will be exercisable for the
Certificate Shares in accordance with the terms of the Contingent Appreciation
Certificates; the Certificate Shares have been duly authorized and reserved for
issuance upon such exercise and, when issued upon such exercise, will be validly
issued, fully paid and nonassessable.
4.10 Purchase Agreement. This Agreement has been duly and
validly authorized, executed and delivered by each of the Company and the Trust
and is a valid and binding obligation of the Company and the Trust.
4.11 Indenture. The Indenture has been duly and validly
authorized by the Company and, when duly executed and delivered by the Company
and the Indenture Trustee, will be the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
(i) as may be limited by bankruptcy,
13
insolvency, fraudulent conveyance, fraudulent transfer, reorganization,
moratorium or similar laws affecting creditors' rights and remedies generally,
(ii) as to general principles of equity, regardless of whether the same is
sought in a proceeding at law or in equity, and (iii) to the extent that a
waiver of rights under any usury laws may be unenforceable.
4.12 Debentures. The Debentures have been duly and validly
authorized for issuance and sale by the Company to the Trust and, when issued
and authenticated in accordance with the terms of the Indenture and delivered
against payment therefor in accordance with the terms thereof, will be the valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the Indenture,
except (i) as may be limited by bankruptcy, insolvency, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium or similar laws affecting
creditors' rights and remedies generally, (ii) as to general principles of
equity, regardless of whether the same is sought in a proceeding at law or in
equity, and (iii) to the extent that a waiver of rights under any usury laws may
be unenforceable.
4.13 Guarantee. The Guarantee has been duly and validly
authorized by the Company and, when duly executed and delivered by the Company,
will be the valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except (i) as may be limited by
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium or similar laws affecting creditors' rights and
remedies generally and (ii) as to general principles of equity, regardless of
whether the same is sought in a proceeding at law or in equity.
4.14 Subordination and Support Agreement. The Subordination
and Support Agreement has been duly and validly authorized by the Company and,
when duly executed and delivered by the Company, will be the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except (i) as may be limited by bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and (ii) as to general
principles of equity, regardless of whether the same is sought in a proceeding
at law or in equity.
4.15 No Conflicts. (a) The execution, delivery and performance
by the Company of this Agreement and the other Transaction Documents, the
compliance by the Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not (i)
require any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as have been
obtained or made by the Company), (ii) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the charter or by-laws of
the Company or any of its Significant Subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or its property is bound, (iii) violate or conflict with Section 7
of the Exchange Act or any
14
regulation promulgated thereunder, including, without limitation, Regulations T,
U and X of the Board of Governors of the Federal Reserve System or with any
other material law (including the Trading with the Enemy Act, or any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto) or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Company, any of its Subsidiaries or their respective property, or (iv) result in
the suspension, termination or revocation of any Authorization of the Company or
any of its Subsidiaries or any other impairment of the rights of the holder of
any such Authorization, except in the case of clause (iii) above, as would not,
individually or in the aggregate, have a Material Adverse Effect.
(b) The execution, delivery and performance by the Trust
of this Agreement and the other Transaction Documents to which it is a party,
the compliance by the Trust with all the provisions hereof and the consummation
of the transactions contemplated hereby will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency, (ii) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the Declaration or any
indenture, loan agreement, mortgage, lease or other agreement or instrument to
which the Trust is a party or by which the Trust or its property is bound, (iii)
violate or conflict with any material law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Trust or its property, or (iv) result in the suspension,
termination or revocation of any Authorization of the Trust or any other
impairment of the rights of the holder of any such Authorization.
4.16 Subsidiaries. All of the outstanding Stock, including
member interests, of each of the Company's Significant Subsidiaries have been
duly authorized and validly issued and are fully paid and non-assessable, and
are owned by the Company, directly or indirectly through one or more
Subsidiaries, free and clear of any security interest, claim, lien, encumbrance
or adverse interest of any nature, except as set forth in Schedule 4.16.
4.17 SEC Documents; Financial Statements. (a) Each form,
report, schedule, registration statement and definitive proxy statement filed by
the Company with the SEC since January 1, 2001 and prior to the date hereof (as
such documents have been amended or supplemented prior to the date hereof, the
"Company SEC Documents"), as of their respective dates, complied in all material
respects with the applicable requirements of the Securities Act and the Exchange
Act. None of the Company SEC Documents, as of their respective dates, contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
Company has made available to the Investors true, accurate and complete copies
of all of the Company SEC Documents. The audited consolidated financial
statements and unaudited consolidated interim financial statements of the
Company and its Subsidiaries included in such reports comply as to form in all
material
15
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto, have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto or, in the case of the
unaudited interim financial statements, as permitted by Form 10-Q of the SEC)
and fairly present in all material respects (subject, in the case of the
unaudited interim financial statements, to normal, year-end audit adjustments)
the consolidated financial position of the Company and its Subsidiaries as at
the dates thereof and the consolidated results of their operations and cash
flows for the periods then ended.
(b) No dividends or other distributions have been
declared, paid or made upon any shares of capital stock of the Company, nor have
any shares of capital stock of the Company been redeemed, retired, purchased or
otherwise acquired for value by the Company since December 31, 2000.
4.18 No Violations. Neither the Company nor any of its
Subsidiaries has violated any Environmental Laws, any provisions of ERISA, any
provisions of the Trading with the Enemy Act, or any provisions of the Foreign
Corrupt Practices Act or the rules and regulations promulgated thereunder,
except for such violations which, individually or in the aggregate, would not
have a Material Adverse Effect.
4.19 Authorizations. Each of the Company and its Subsidiaries
has such permits, licenses, consents, exemptions, franchises, authorizations and
other approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without limitation,
under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business, except where
the failure to have any such Authorization or to make any such filing or notice
would not, individually or in the aggregate, have a Material Adverse Effect.
Each such Authorization is valid and in full force and effect and each of the
Company and its Subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and the Company is not aware
that any event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; except where such failure to be valid and in full force and
effect or to be in compliance, the occurrence of any such event or the presence
of any such restriction would not, individually or in the aggregate, have a
Material Adverse Effect.
4.20 Benefit Plans. Schedule 4.20 hereto sets forth a list of
each material pension, retirement, savings, disability, dental, health, life,
death benefit, group insurance, profit-sharing, deferred compensation, stock
option, bonus, incentive, severance pay or other employee benefit plan, trust,
arrangement, contract, commitment,
16
agreement or policy sponsored or maintained by Company or its Subsidiaries, in
which present or former employees of Company or any Subsidiary participate
(collectively, the "Company Plans"). Correct and complete copies of the
following documents, which are correct and complete in all material respects,
with respect to each of the Company Plans (other than a Multiemployer Plan),
have been made available to each Investor, to the extent applicable: (i) any
plans, all material amendments thereto and related trust documents, and
amendments thereto; (ii) the most recent Forms 5500 and all schedules thereto
and the most recent actuarial report, if any; (iii) the most recent IRS
determination letter; (iv) summary plan descriptions; (v) material written
communications to employees relating to the Company Plans; and (vi) written
descriptions of all material non-written agreements relating to the Company
Plans.
4.21 Taxes. Except as set forth on Schedule 4.21, all federal,
state, local and foreign tax returns, reports and statements required to be
filed by the Company and its Significant Subsidiaries have been timely filed
with the appropriate Governmental Authority and all such returns, reports and
statements are true, correct and complete, except, in either case, as would not,
individually or in the aggregate, have a Material Adverse Effect. All taxes and
other impositions due and payable on such returns, reports and statements have
been paid (other than those taxes being contested in good faith or those taxes
currently payable without penalty or interest) prior to the date on which any
fine, penalty, interest or late charge may be added thereto for nonpayment
thereof, or any such fine, penalty, interest, late charge or loss has been paid,
except as would not have a Material Adverse Effect.
4.22 No Litigation. Except as disclosed in the Company SEC
Documents and except as disclosed on Schedule 4.22 hereto, no action, claim or
proceeding is now pending or, to the knowledge of the Company, threatened
against the Company or any of its Subsidiaries, at law, in equity or otherwise,
before any court, board, commission, agency or instrumentality of any foreign,
federal, state, or local government or of any agency or subdivision thereof, or
before any arbitrator or panel of arbitrators which would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
4.23 Brokers. Except for those brokers or finders to whom the
Company is solely responsible for the payment of any brokerage or finder's fees,
no broker or finder acting on behalf of the Company or any of its Subsidiaries
brought about the consummation of the transactions contemplated pursuant to this
Agreement or any of the other Transaction Documents and neither the Company nor
any of its Subsidiaries has any obligation to any Person in respect of any
brokerage or finder's fees (or any similar obligation) in connection with the
transactions contemplated by this Agreement or any of the other Transaction
Documents.
4.24 Patents, Trademarks, Copyrights and Licenses. The Company
and its Subsidiaries own, possess, license or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other intellectual property
(collectively, "Intellectual
17
Property Rights") necessary to conduct the business now operated by them, or
presently employed by them, and have no knowledge of, and have not received, any
notice of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined adversely to the
Company or any of its Subsidiaries, would individually or in the aggregate have
a Material Adverse Effect.
4.25 Ownership of Property. Except as disclosed on Schedule
4.25 hereto, the Company and its Subsidiaries have good and marketable title to
all real properties owned by them that are material to the Company and its
Subsidiaries taken as a whole and all personal properties reflected as owned in
the financial statements described in Section 4.17 and not disposed of in the
ordinary course of business since December 31, 2000, in each case that are
material to the business of the Company and its Subsidiaries taken as a whole,
in each case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed on Schedule 4.25 hereto, the Company
and its Subsidiaries hold any leased real or personal property that are material
to the Company and its Subsidiaries taken as a whole under valid and enforceable
leases with no exceptions that would materially interfere with the use made or
to be made thereof by them.
4.26 Investment Company. Neither the Company nor the Trust is
and, after giving effect to the offering and sale of the Units and the
application of the proceeds thereof as described in Section 2.3 hereof, will be,
an "investment company" as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
4.27 Registration Rights. Except as disclosed in the Company
SEC Documents, there are no contracts, agreements or understandings between the
Company and any Person granting such Person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company, except as set forth on
Schedule 4.27. None of the rights disclosed in the Company SEC Documents or
described in Schedule 4.27 conflicts with the registration rights granted to the
Investors under the Contingent Appreciation Certificate Agreement.
4.28 No Material Adverse Change. Since the date as of the
Company's most recent report on Form 10-Q under the Securities Act, (i) there
has not occurred any Material Adverse Effect or any development involving a
prospective Material Adverse Effect, and (ii) neither the Company nor any of its
Significant Subsidiaries has incurred any material liability or obligation,
direct or contingent.
4.29 Assumed Hallmark Obligations and Existing Indebtedness.
Schedule 4.29(a) sets forth a complete and correct list of all of the "Assumed
Liabilities" identified in, and assumed by, the Company pursuant to that certain
Assignment and Assumption Agreement, dated as of September 28, 2001, between the
Company and Hallmark Entertainment Distribution LLC. Schedule 4.29(b) sets forth
a complete and
18
correct list of all outstanding indebtedness of the Company and its consolidated
Subsidiaries, as of the Issue Date, since which date there has been no material
change in the amounts, interest rates sinking funds, installment payments or
maturities of the indebtedness of the Company or its consolidated Subsidiaries.
Except for waivers of payment defaults with respect to amounts owed to Hallmark
Cards or its subsidiaries, neither the Company nor any consolidated Subsidiary
is in default and no waiver of any default is currently in effect, in the
payment of any principal, premium, if any, or interest on, any indebtedness of
the Company or such consolidated Subsidiary and no event or condition exists
with respect to any indebtedness of the Company or any consolidated Subsidiary
that with notice or the lapse of time, or both, would permit one or more Persons
to cause such indebtedness to become due and payable before its stated maturity
or before its regularly scheduled dates of payment.
4.30 No Material Untrue Statement or Omission. As of the date
hereof, neither the PPM nor any of the other materials or documents provided to
the Investors directly or indirectly by the Company in connection herewith,
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
4.31 Certificates. Each certificate signed by any officer of
either the Company or the Trust and delivered to the Investors or counsel for
the Investors shall be deemed to be a representation and warranty by the Company
or the Trust, as the case may be, to the Investors as to the matters covered
thereby.
4.32 Treatment of Units. The Company hereby agrees to treat,
for United States Federal income tax purposes, the Preferred Securities and the
related Contingent Appreciation Certificates that comprise the Units, as unitary
debt instruments that are subject to the United States Treasury regulations
governing contingent payment debt instruments. Notwithstanding any other
provision in this Agreement and the other applicable Transaction Documents to
the contrary, in the event that on or after the Issue Date, (a) the Company
determines that there is a change in the laws of the United States which change
occurs on or after the Issue Date and would require the Company to characterize,
for United States federal income tax purposes, the Preferred Securities and the
related Contingent Appreciation Certificates that comprise the Units as other
than unitary debt instruments that are subject to the United States Treasury
regulations governing contingent payment debt instruments, or (b) there is a
"determination" within the meaning of Section 1313(a) of the Code requiring
that, for United States federal income tax purposes, the Preferred Securities
and the related Contingent Appreciation Certificates that comprise the Units be
treated as other than unitary debt instruments that are subject to the United
States Treasury regulations governing contingent payment debt instruments, then
the Company shall not be bound pursuant to the preceding sentence or the
documents referred to in this sentence to treat, for United States federal
income tax purposes, the Preferred Securities and the related Contingent
Appreciation Certificates that comprise the Units as unitary debt instruments
that are subject to the United States Treasury regulations governing contingent
payment debt instruments. If the Company
19
determines that there is a change in law or there is a "determination" as
described above requiring the Company to characterize the Preferred Securities
and the related Contingent Appreciation Certificates that comprise the Units as
other than unitary debt instruments that are subject to the United States
Treasury regulations governing contingent payment debt instruments pursuant to
clause (a) or (b) of the preceding sentence, the Company shall promptly notify,
in writing, the Holders. In the event that the Debentures are distributed by the
Trust to holders of Securities, the above provisions of this Section 4.32 shall
apply with respect to the Debentures so distributed in lieu of the Preferred
Securities.
5. CLOSING DELIVERIES
The following documents shall be delivered concurrently with the
execution and delivery of this Agreement:
5.1 Indenture. The Indenture, executed by the Company and the
Indenture Trustee, shall be delivered to each Investor and the Trust.
5.2 Declaration. Each of the Initial Declaration of Trust and
the Declaration, executed by the Company, the Delaware Trustee, the Property
Trustee, and the Regular Trustees, and filed with the Secretary of State of the
State of Delaware, shall be delivered to each Investor.
5.3 CONTINGENT APPRECIATION CERTIFICATE AGREEMENT. The
Contingent Appreciation Certificate Agreement, executed by the parties thereto
shall be delivered to each Investor.
5.4 Contingent Appreciation Certificates. The Contingent
Appreciation Certificates, executed by the Company, shall be delivered to each
Investor.
5.5 Debentures. The Debentures, executed by the Company and
the Indenture Trustee, shall be delivered to the Trust.
5.6 Preferred Securities Guarantee. The Guarantee, executed by
the Company and the Preferred Guarantee Trustee named therein, shall be
delivered to the Trust and the Investors.
5.7 Subordination and Support Agreement. The Subordination and
Support Agreement, executed by each of the Company, Hallmark Cards, the
Investors, and the Indenture Trustee, shall be delivered to each Investor.
5.8 Trust Securities and Debenture Purchase Agreement. The
Trust Securities and Debenture Purchase Agreement, executed by each of the
Company and the Trust, shall be delivered to each Investor.
5.9 Credit, Security, Guaranty and Pledge Agreement and
Consent. The amendment and consent referenced in Section 4.15(a) hereof to the
Credit, Security,
20
Guaranty and Pledge Agreement, dated as of December 17, 2001, executed by each
of the Company, the Guarantors named therein, the requisite Lenders named
therein and The Chase Manhattan Bank, as Administrative Agent, shall be
delivered to each Investor.
5.10 Stock Certificates. (a) The Trust shall issue and deliver
to each Investor certificates representing the Preferred Securities set forth
below such Investor's name on the signature pages hereto.
(b) The Trust shall issue and deliver to the Company
certificates representing the Common Securities.
5.11 OPINION OF WACHTELL, LIPTON, XXXXX & XXXX. The Investors
shall have received an opinion, in form and substance satisfactory to the
Investors, dated as of the date hereof, of Wachtell, Lipton, Xxxxx & Xxxx,
counsel for the Company and the Trust, to the effect that:
(a) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its business
as it is currently being conducted and to own, lease and operate its properties;
(b) the Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement,
the Contingent Appreciation Certificates, the Guarantee, the Indenture and the
other Transaction Documents to which it is a party and to consummate the
transactions contemplated hereby or thereby, including without limitation, with
respect to the Company, all requisite corporate power and authority to issue,
sell and deliver the Debentures, the Contingent Appreciation Certificates, the
Guarantee and the Certificate Shares as contemplated by this Agreement;
(c) each of this Agreement, the Indenture, the
Contingent Appreciation Certificate Agreement, the Guarantee and the
Subordinated Support Agreement has been duly authorized, executed and delivered
by the Company; and this Agreement is the valid and binding obligation of the
Company;
(d) the Contingent Appreciation Certificate Agreement is
the valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except (i) as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, fraudulent transfer,
moratorium or similar laws affecting creditors' rights and remedies generally,
(ii) as to general principles of equity, regardless of whether the same is
sought in a proceeding at law or in equity, and (iii) rights to indemnification
and contribution thereunder may be limited by federal or state securities laws
or public policy relating thereto;
(e) the Contingent Appreciation Certificates have been
duly authorized for issuance and sale in accordance with the transactions
contemplated by this
21
Agreement and the Contingent Appreciation Certificate Agreement and, when issued
in accordance with the terms of such agreements and delivered against payment
therefor in accordance with the terms hereof, will be the valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except (i) as may be limited by bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally, and (ii) as to general
principles of equity, regardless of whether the same is sought in a proceeding
at law or in equity;
(f) assuming the due authorization, execution and
delivery thereof by the Indenture Trustee, the Indenture is the valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except (i) as may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, fraudulent transfer, moratorium or
similar laws affecting creditors' rights and remedies generally, (ii) as to
general principles of equity, regardless of whether the same is sought in a
proceeding at law or in equity, and (iii) to the extent that a waiver of rights
under any usury laws may be unenforceable;
(g) the Debentures have been duly authorized for
issuance and sale in accordance with the transactions contemplated by this
Agreement and, when issued and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in accordance with the terms
thereof, will be the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and entitled to the benefits
of the Indenture, except (i) as may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or
similar laws affecting creditors' rights and remedies generally, (ii) as to
general principles of equity, regardless of whether the same is sought in a
proceeding at law or in equity, and (iii) to the extent that a waiver of rights
under any usury laws may be unenforceable;
(h) the Guarantee is the valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except (i) as may be limited by bankruptcy, insolvency, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium or similar laws affecting
creditors' rights and remedies generally and (ii) as to general principles of
equity, regardless of whether the same is sought in a proceeding at law or in
equity;
(i) when the Units are issued and delivered pursuant to
this Agreement and the Contingent Appreciation Certificate Agreement, none of
the Preferred Securities, the Contingent Appreciation Certificates, the
Debentures or the Guarantee will be of the same class (within the meaning of
Rule 144A under the Securities Act) as securities of the Company, the Trust or
any similar trust affiliated with the Company that are listed on a national
securities exchange registered under Section 6 of the Exchange Act or that are
quoted in a United States automated inter-dealer quotation system;
22
(j) the Subordination and Support Agreement is the valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except (i) as may be limited by bankruptcy,
insolvency, fraudulent conveyance, fraudulent transfer, reorganization,
moratorium or similar laws affecting creditors' rights and remedies generally
and (ii) as to general principles of equity, regardless of whether the same is
sought in a proceeding at law or in equity;
(k) no registration under the Securities Act or Trust
Indenture Act of 1939, as amended, of any of the Preferred Securities, the
Debentures, the Guarantee, the Contingent Appreciation Certificates or the
Certificate Shares is required for the sale of the Preferred Securities to the
Investors as contemplated hereby;
(l) the execution, delivery and performance of this
Agreement by the Company, the compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby will not,
(A) require any consent, approval, authorization or other order of, or
qualification with, any U.S. federal,
New York or Delaware (with respect to
matters relating to the Company's incorporation under the DGCL) court or
governmental body or agency (except such as have been obtained or made by the
Company or such as may be required under the securities or Blue Sky laws of the
various states), (B) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Company or (C)
violate or conflict with any provision of the laws of the State of
New York
(other than its securities or Blue Sky laws) or the federal laws of the United
States;
(m) neither the Company nor the Trust is, after giving
effect to the offering and sale of the Units and the application of the proceeds
thereof as described herein, will be, an "investment company" as such term is
defined in the Investment Company Act;
(n) none of the transactions contemplated by this
Agreement or the other Transaction Documents (including, without limitation, the
use of the proceeds set forth in Section 2.3) will violate or result in a
violation of Section 7 of the Exchange Act or any regulation promulgated
thereunder, including, without limitation, Regulations T, U and X of the Board
of Governors of the Federal Reserve System; and
In rendering this opinion, such counsel may state that such opinion is
limited to matters arising under the laws of the State of
New York, the DGCL and
the federal laws of the United States.
The opinion of Wachtell, Lipton, Xxxxx & Xxxx described in this Section
5.11 shall be rendered to the Investors at the request of the Company and shall
so state therein.
5.12 Opinion of Xxxxxx X. Xxxxxxxxx. The Investors shall have
received an opinion, dated as of the date hereof, of Xxxxxx X. Xxxxxxxxx, Vice
President and General Counsel of Hallmark Cards, to the effect that:
23
(a) the Subordination and Support Agreement has been
duly authorized, executed and delivered by Hallmark Cards and the other
subordinated creditors named therein and is the valid and binding obligation of
Hallmark Cards and the other subordinated creditors named therein, enforceable
against Hallmark Cards in accordance with its terms, except (i) as may be
limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium or similar laws affecting creditors' rights and
remedies generally and (ii) as to general principles of equity, regardless of
whether the same is sought in a proceeding at law or in equity;
(b) the execution, delivery and performance of the
Subordination and Support Agreement by Hallmark Cards and the other subordinated
creditors named therein, the compliance by Hallmark Cards and the other
subordinated creditors named therein with all the provisions thereof and the
consummation of the transactions contemplated thereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as have been obtained or made
by Hallmark Cards), (ii) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of Hallmark
Cards or any of its Significant Subsidiaries or (iii) any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which Hallmark
Cards or any of its Subsidiaries is a party or by which Hallmark Cards or any of
its Subsidiaries or their respective property is bound; except in the case of
clauses (i) through (iii), as would not have a material adverse effect on the
business, prospects, financial condition or results of operations of Hallmark
Cards and its Subsidiaries taken as a whole or on the ability of Hallmark Cards
to perform its obligations under the Subordination and Support Agreement.
In rendering this opinion, except as noted above, such counsel may
state that such opinion is limited to matters arising under the laws of the
State of Missouri and that such counsel does not opine as to matters arising
under the laws of any other state or foreign jurisdiction.
The opinion of Xxxxxx X. Xxxxxxxxx described in this Section 5.12 shall
be rendered to the Investors at the request of the Company and shall so state
therein.
5.13 Opinion of Xxxxxxx Xxxxxxxx. The Investors shall have
received an opinion, dated as of the date hereof, of Xxxxxxx Xxxxxxxx, General
Counsel and Executive Vice President - Legal and Business Affairs of the
Company, to the effect that:
(a) Each of the Company and its Significant Subsidiaries
has been duly organized, is validly existing as a corporation or limited
liability company, as applicable, in good standing under the laws of its
respective jurisdiction of organization and has the requisite corporate or other
similar power and authority to carry on its business as it is currently being
conducted and to own, lease and operate its properties except where the failure
to have such power and authority, individually or in the aggregate, would not
have a Material Adverse Effect.
24
(b) Each of the Company and its Significant Subsidiaries
is duly qualified and is in good standing as a foreign corporation or limited
liability company, as the case may be, authorized to do business in each
jurisdiction where the operation, ownership or leasing of property or the
conduct of its business requires such qualification, except where the failure to
be so qualified, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
(c) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid,
non-assessable and, except as set forth in Schedule 4.1(c) to this Agreement,
not subject to any preemptive or similar rights;
(d) neither the Company nor any of its Significant
Subsidiaries is (A) in violation of its charter or by-laws and (B) in default in
the performance of any obligation, agreement, covenant or condition contained in
any indenture, loan agreement, mortgage, lease or other agreement or instrument
to which the Company or any Significant Subsidiary thereof is bound, except,
with respect to clause (B) only, such defaults as would not have a Material
Adverse Effect;
(e) to the best of such counsel's knowledge after due
inquiry, the Trust is not a party to, or bound by, any agreement or instrument
other than this Agreement, the Declaration and the agreements and instruments
contemplated by this Agreement or the Declaration;
(f) the execution, delivery and performance by any
Significant Subsidiary of the Company of the Transaction Documents to which such
Significant Subsidiary is a party, the compliance by such Significant Subsidiary
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (A) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
(i) the charter or by-laws of such Significant Subsidiary or (ii) any indenture,
loan agreement, mortgage, lease or other agreement or instrument listed as an
exhibit to the Company SEC Documents, to which any such Significant Subsidiary
is a party or by which any such Significant Subsidiary or its property is bound,
or (B) violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency having
jurisdiction over such Significant Subsidiary or its property except, with
respect to clause (A)(ii) and clause (B), such violation, conflict, breach of
default as would not have a Material Adverse Effect.
(g) except as disclosed in the Company SEC Documents and
except as otherwise disclosed in Schedule 4.27, there are no contracts,
agreements or understandings between the Company and any Person granting such
Person the right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company; and
(h) there are no material legal or governmental
proceedings pending or after due inquiry, to such counsel's knowledge,
threatened to which the
25
Company or Crown Media is a party or to which any of their respective properties
is subject, except as are described in the Company SEC Documents or disclosed on
Schedule 4.22.
In rendering this opinion, such counsel may state that such opinion is
limited to matters arising under the laws of the State of
New York, the DGCL and
the federal laws of the United States and that such counsel does not opine as to
matters arising under the laws of any other state or foreign jurisdiction.
The opinion of Xxxxxxx Xxxxxxxx described in this Section 5.13 shall be
rendered to you at the request of the Company and shall so state therein.
5.14 Opinion of Xxxxxxxx, Xxxxxx & Finger, P.A. The Investors
shall have received, an opinion dated as of the date hereof, of Xxxxxxxx, Xxxxxx
& Finger, P.A., special Delaware counsel to the Trust and the Company, to the
effect that:
(a) the Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Business Trust
Act;
(b) under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i) to own its
properties and conduct its business, all as described in the PPM, (ii) to
execute and deliver the Agreements (as defined in such opinion), and (iii) to
issue and perform its obligations under the Trust Securities, all as described
in the Declaration;
(c) the Declaration constitutes a valid and binding
obligation of the Company and the Trustees, enforceable against the Company and
the Trustees in accordance with its terms, except to the extent that the same
may be limited by (i) bankruptcy, insolvency, receivership, liquidation,
fraudulent transfer or conveyance, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and
remedies, (ii) general principles of equity including applicable law relating to
fiduciary duties, (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution;
(d) under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of the Agreements, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary action on the part of the Trust;
(e) the Common Securities are duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
exchange therefor in accordance with the Declaration and the agreement in
respect of such exchange, will be validly issued and represent undivided
beneficial interests in the assets of the Trust;
26
(f) the Preferred Securities are duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
exchange therefor in accordance with the Declaration and the agreement in
respect of such exchange, will be validly issued and, subject to the
qualifications set forth in paragraph (g) below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust;
(g) the holders of the Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided
that such counsel need express no opinion as to any holder of a Preferred
Security that is, was or becomes a named Trustee of the Trust and may note that
the holders of the Preferred Securities may be obligated to make payments or
provide indemnity or security as set forth in the Declaration;
(h) under the Delaware Business Trust Act and the
Declaration, the issuance by the Trust of the Trust Securities is not subject to
preemptive rights;
(i) assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware Trustee as required by the Delaware
Business Trust Act and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware, no filing,
registration or qualification with, or authorization, approval, consent,
license, order or decree of, any Delaware court or Delaware governmental
authority or agency (other than as may be required under the securities or blue
sky laws of the State of Delaware as to which such counsel need express no
opinion) is necessary or required to be obtained by the Trust solely in
connection with issuance and sale of the Preferred Securities by the Trust in
accordance with the Declaration or the consummation of the transactions
contemplated by the Agreement;
(j) assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware Trustee as required by the Delaware
Business Trust Act and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware and that the Trust
is treated as a grantor trust for federal income tax purposes, the holders of
the Preferred Securities (other than those holders of Preferred Securities who
reside or are domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable for any income tax
imposed by the State of Delaware;
(k) the purchase by the Trust of the Debentures and the
distribution by the Trust of the Debentures in the circumstances contemplated by
the Declaration do not violate (i) any terms or provisions of the Certificate of
Trust or the Declaration or (ii) any applicable Delaware law or administrative
regulation; and
27
(l) based solely on an inquiry on December 13, 2001,
limited to, and solely to the extent disclosed thereupon, court dockets for
active cases of the Court of Chancery of the State of Delaware in and for New
Castle County, Delaware, of the Superior Court of the State of Delaware in and
for New Castle County, Delaware, of the United States District Court sitting in
the State of Delaware and of the United States Bankruptcy Court sitting in the
State of Delaware, we are not aware of any legal or governmental proceedings
pending to which the Trust is a party or of which any property of the Trust is
subject.
In rendering this opinion, such counsel may state that such opinion is
limited to matters arising under the laws of the State of Delaware and that such
counsel does not opine as to matters arising under the laws of any other
jurisdiction.
The opinion of Xxxxxxxx, Xxxxxx & Finger, P.A. described in this
Section 5.14 shall be rendered to the Investors at the request of the Company
and shall so state therein.
5.15 OPINION TO COMPANY. The Company shall have delivered to
the Investors a copy of the opinion of Wachtell, Lipton, Xxxxx & Xxxx to the
Company to the effect that the Trust will be classified as a grantor trust for
United States federal income tax purposes and not as an association subject to
tax as a corporation.
5.16 Use of Proceeds. Each Issuer agrees and covenants that it
will use the proceeds of the offering only for lawful purposes in accordance
with Section 2.3 hereof, as applicable and such uses shall not contravene any
applicable law or any provisions hereof.
5.17 Fees. The Company shall have paid the fees payable to
Credit Suisse First Boston and the reasonable legal fees and disbursements of
Weil, Gotshal & Xxxxxx LLP incurred with respect to the preparation and
negotiation of this Agreement and the other documents ancillary hereto and
reasonable legal expenses of Weil, Gotshal & Xxxxxx LLP incurred in connection
with the due diligence performed in connection with entering into this
Agreement.
5.18 Good Standing Certificates. The Investors shall have
received from the Company long-form good standing certificates, dated within
five (5) Business Days preceding the date hereof, and related bring-down
memoranda, dated as of the date hereof, for the Company, the Trust and each
Significant Subsidiary issued by the Secretary of State in the jurisdiction of
organization of each such entity.
6. INDEMNIFICATION
6.1 Indemnification. Subject to the terms and conditions of
this Section 6 and Section 7.9 hereof, the Company agrees to indemnify and hold
each Investor and each of its officers, directors and Affiliates harmless from
and against any and all liabilities, obligations, damages, losses, deficiencies,
costs, penalties and expenses (including, without limitation, reasonable
attorneys' fees) (collectively, "Losses"),
28
including those arising from third-party claims, arising out of, based upon,
attributable to or resulting from: (i) the failure of any of the representations
or warranties of the Company set forth in Sections 4.1 through 4.32 hereof, to
be true and correct as of the date hereof; and (ii) the breach of any covenant
or other agreement on the part of the Company under the terms of this Agreement,
in each case, to the extent not waived by such Investor.
6.2 General Indemnification Procedures. (a) A Person entitled
to make a claim for indemnification under Section 6.1 (an "Indemnified Party")
against a party (the "Indemnifying Party") required thereunder to indemnify such
Indemnified Party not involving a claim or action by a third party shall give
written notice of the assertion of such claim covered by such indemnity to the
Indemnifying Party, which notice shall set forth in reasonable detail, the
amount of such claim and a description of the basis for such claim with
reference to the provision of this Agreement under which liability is asserted.
In the event that any suit, action or proceedings shall be instituted by any
third party or that any claim or demand shall be asserted by any third party in
respect of which indemnification may be sought under Section 6.1 (a "Third-Party
Claim"), the Indemnified Party shall reasonably promptly cause written notice of
the assertion of such Third Party Claim of which it has knowledge to be
forwarded to the Indemnifying Party. The Indemnifying Party shall have the
right, at its sole option and expense, to be represented by counsel of its
choice and to defend against, negotiate, settle or otherwise take over control
and deal with any Third-Party Claim, and if the Indemnifying Party elects to
defend against, negotiate, settle or otherwise take over control and deal with
any Third-Party Claim, the Indemnifying Party's choice of counsel must be
reasonably satisfactory to the Indemnified Party, and the Indemnifying Party
shall within twenty (20) days of such notice (or sooner, if the nature of the
Third-Party Claim so requires) notify the Indemnified Party of its intent to do
so. If the Indemnifying Party elects not to defend against, negotiate, settle or
otherwise take over control and deal with any Third-Party Claim, fails to notify
the Indemnified Party of its election as herein provided or contests its
obligation to indemnify the Indemnified Party for such Losses under this
Agreement, the Indemnified Party may defend against, negotiate, settle or
otherwise deal with such Third-Party Claim; provided, that if the Indemnifying
Party contests its obligations to indemnify the Indemnified Party, and if it is
finally determined that any such Third-Party Claim was not a claim for which
indemnification was available under this Section 6, the Indemnified Party shall
reimburse the Indemnifying Party for any expenses advanced on its behalf;
provided, further, that the Indemnified Party shall keep the Indemnifying Party
fully informed of the facts of the Third-Party Claim and the progress of the
defense thereof. If the Indemnified Party defends any Third-Party Claim, then
the Indemnifying Party shall reimburse the Indemnified Party for the reasonable
and documented expenses of defending such Third-Party Claim with respect to
which it is entitled to be indemnified hereunder upon submission of periodic
bills. If the Indemnifying Party shall assume the defense of any Third-Party
Claim, the Indemnified Party may participate, at his, her or its own expense, in
the defense of such Third-Party Claim; provided, however, that such Indemnified
Party shall be entitled to participate in any such defense with separate counsel
at the expense of the Indemnifying Party (as provided above) if (i) so requested
29
by the Indemnifying Party to participate or (ii) in the reasonable opinion of
counsel to the Indemnified Party, a conflict or potential conflict exists
between the Indemnified Party and the Indemnifying Party that would make such
separate representation advisable; and provided, further, that the Indemnifying
Party shall not be required to pay for more than one such counsel for all
Indemnified Parties in connection with any Third-Party Claim. The parties hereto
agree to cooperate fully with each other in connection with the defense,
negotiation or settlement of any such Third-Party Claim.
(b) After any final judgment or award shall have been
rendered by a court, arbitration board or administrative agency of competent
jurisdiction and the expiration of the time in which to appeal therefrom, or a
settlement (which is reasonably acceptable to the Indemnifying Party) shall have
been consummated, or the Indemnified Party and the Indemnifying Party shall have
arrived at a mutually binding agreement with respect to a claim for
indemnification under Section 6.1, including any Third-Party Claim, the
Indemnified Party shall forward to the Indemnifying Party notice of any sums due
and owing by the Indemnifying Party pursuant to this Agreement, with respect to
such matter and the Indemnifying Party shall be required to make payment of all
sums so due and owing to such Indemnified Party by wire transfer of immediately
available funds within ten (10) Business Days after the date of such notice.
(c) The failure of the Indemnified Party to give
reasonably prompt notice of any Third-Party Claim shall not release, waive or
otherwise affect the Indemnifying Party's obligations with respect thereto
except to the extent that the Indemnifying Party can demonstrate actual loss and
prejudice as a result of such failure.
6.3 Tax Treatment of Indemnity Payments. The parties agree
that any indemnity payment made pursuant to this Section 6 (an "Indemnity
Payment") shall be treated by the parties for all tax purposes as an adjustment
to the Purchase Price.
7. MISCELLANEOUS
7.1 Successors and Assigns. Any Investor may assign its rights
and obligations under this Agreement to any Person; provided, however, that any
such assignee shall agree in writing to be bound hereby. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Except as provided in Section 6,
nothing in this Agreement shall create or be deemed to create any third party
beneficiary rights in any Person not a party to this Agreement.
7.2 AMENDMENTS; ETC. No amendment, modification, termination,
or waiver of any provision of this Agreement, and no consent to any departure by
a party to this Agreement from any provision of this Agreement, shall be
effective unless it shall be in writing making specific reference hereto and
signed and delivered by each other party to this Agreement, and then it shall be
effective only in the specific instance and for the specific purpose for which
it is given.
30
7.3 Entire Agreement. This Agreement and the other Transaction
Documents embody the entire agreement and understanding of the parties and
supersede all prior agreements or understandings with respect to the subject
matter thereof.
7.4 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
7.5 Governing Law. This Agreement and the obligations arising
hereunder shall be governed by, and construed and enforced in accordance with,
the laws of the State of
New York applicable to contracts made and performed in
such State, without regard to the principles thereof regarding conflict of laws,
and any applicable laws of the United States of America. The Investors and the
Company agree to submit to personal jurisdiction and to waive any objection as
to venue in the federal or
New York State courts located in the County of
New
York, State of
New York. Service of process on the Investors or the Company in
any action arising out of or relating to any of the Transaction Documents shall
be effective if mailed to such party at the address listed in Section 7.8
hereof.
7.6 Waiver of Jury Trial. The parties hereto waive all right
to trial by jury in any action or proceeding to enforce or defend any rights
under the Transaction Documents.
7.7 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made and shall be effective (i) upon receipt if delivered personally,
(ii) upon receipt of a transmission confirmation if sent by facsimile (with a
confirming copy sent by overnight courier), and (iii) on the next Business Day
if sent by Federal Express, United Parcel Service, Express Mail or other
reputable overnight courier to the parties at the following addresses (or at
such other address for a party as shall be specified by notice):
If to the Company:
Crown Media Holdings, Inc.
0000 X. Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
31
with copies to:
Hallmark Cards, Incorporated
2501 XxXxx, P.O. Box 419126
Mail Drop #339
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
and:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to the Investors, at the addresses and telecopy numbers set
forth in Annex A hereto with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxx, Esq.
Fax: (000) 000-0000
For purposes of the Transaction Documents, all notices, payments and other
deliveries to the Investors shall be made in accordance with Annex A hereto.
The giving of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Failure or delay in delivering copies of
any notice, demand, request, consent, approval, declaration or other
communication to the Persons designated above to receive copies shall in no way
adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication.
7.8 Survival. The representations and warranties contained in
Sections 4.1 through 4.32 hereof (except insofar as such representations are
expressly limited to a certain date), and the applicable obligations of the
Company to indemnify the Investors pursuant to Section 6 hereof, shall survive
the execution, delivery and acceptance hereof by the parties hereto, and any
examination or due diligence inquiry by a party hereto, until the date that is
one year after the date hereof. Except as set forth in the preceding sentence,
no other representation or warranty in this Agreement shall survive the
execution, delivery and acceptance hereof by the parties hereto. All covenants
and agreements contained in this Agreement (which terms do not include
representations and warranties) shall, except as provided in such covenant or
agreement, survive the execution, delivery and acceptance hereof by the parties
hereto and shall remain operative and in full force and effect. The obligations
to indemnify and hold harmless a Person pursuant to Section 6 hereof shall
survive only until the expiration of the applicable survival period referred to
above for the representation and warranty under which the claim for
indemnification is being made; provided, however, that such
32
obligations to indemnify and hold harmless shall not terminate with respect to
any such item as to which an Indemnified Party shall have, before the expiration
of the applicable period, previously made a bona fide good faith claim by
delivering a notice (stating in reasonable detail the basis of such claim) to
the Indemnifying Party.
7.9 Section and Other Headings. The article, section and other
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
7.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
7.11 Publicity. Neither the Investors nor the Company shall
issue any press release or make any public disclosure regarding the transactions
contemplated hereby unless such press release or public disclosure is approved
by the other party in advance. Notwithstanding the foregoing, each of the
parties hereto may, in documents required to be filed by it with the SEC or
other regulatory bodies, make such statements with respect to the transactions
contemplated hereby as each may be advised by counsel is legally necessary or
advisable, and may make such disclosure as it is advised by its counsel is
required by law, subject, in any such case, to advance consultation with The
Investors.
7.12 Remedies. Subject to Section 6, the Investor's rights and
remedies under this Agreement shall be cumulative and nonexclusive of any other
rights and remedies which the Investors may have under any other agreement,
including the other Transaction Documents, by operation of law or otherwise.
[Signatures Appear On Following Page.]
33
IN WITNESS WHEREOF, the Company, the Trust and each Investor have
executed this Purchase Agreement as of the day and year first above written.
CROWN MEDIA HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
CROWN MEDIA TRUST
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Regular Trustee
34
INVESTORS
FARALLON CAPITAL PARTNERS, L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
Number of Units: 22,500
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
FARALLON CAPITAL INSTITUTIONAL PARTNERS, L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
Number of Units: 17,500
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
FARALLON CAPITAL INSTITUTIONAL PARTNERS II,
L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
Number of Units: 4,000
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
35
FARALLON CAPITAL INSTITUTIONAL PARTNERS III,
L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
Number of Units: 5,000
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
RR CAPITAL PARTNERS, L.P.
By: FARALLON PARTNERS, L.L.C., its General
Partner
Number of Units: 1,000
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
36
DLJ INVESTMENT PARTNERS II, L.P.
Number of Units: 22,731
By: /s/ Xxxxxx Xxx
----------------------------------------
Name: Xxxxxx Xxx
Title: Principal
DLJ INVESTMENT PARTNERS, L.P.
Number of Units: 10,102
By: /s/ Xxxxxx Xxx
----------------------------------------
Name: Xxxxxx Xxx
Title: Principal
DLJIP II Holdings, L.P.
Number of Units: 7,167
By: /s/ Xxxxxx Xxx
----------------------------------------
Name: Xxxxxx Xxx
Title: Principal
37
TORONTO DOMINION INVESTMENTS, INC.
Number of Units: 35,000
By: /S/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
38
XXXX XXXXXXX LIFE INSURANCE COMPANY
Number of Units: 25,000
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
Number of Units: 2,000
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
SIGNATURE 5 L.P.
Number of Units: 3,000
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
39
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA
Number of Units: 30,000
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director - Xxxxxxx Xxxxxxxxx
00
XXX XXXX LIFE INSURANCE COMPANY
Number of Units: 25,000
By: /s/ S. Xxxxxx Xxxxx
----------------------------------------
Name: S. Xxxxxx Xxxxx
Title: Investment Vice President
41
ALLSTATE LIFE INSURANCE COMPANY
Number of Units: 15,000
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Authorized Signatories
42
MAGNETITE ASSET INVESTORS III L.L.C.
By: BLACKROCK FINANCIAL MANAGEMENT, INC.
As Managing Member
Number of Units: 7,500
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
MAGNETITE ASSET INVESTORS L.L.C.
By: BLACKROCK FINANCIAL MANAGEMENT, INC.
As Managing Member
Number of Units: 7,500
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
00
XXXXXX XXXXXX FUND, L.P.
By: MLIM DivPEP I, LLC, its
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration & Management
Ltd., its general partner
Number of Units: 2,028
By: /s/ Piers X. X. Xxxxxx
-------------------------------------------
Name: Piers X. X. Xxxxxx
Title: Vice President
XXXXXX STREET PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC, its managing
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration & Management
Ltd., its general partner
Number of Units: 1,146
By: /s/ Piers X. X. Xxxxxx
-------------------------------------------
Name: Piers X. X. Xxxxxx
Title: Vice President
00
XXXXX XXXXXX FUND, L.P.
By: MLIM DivPEP I, LLC, its
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration & Management
Ltd., its general partner
Number of Units: 4,413
By: /s/ Piers X. X. Xxxxxx
-------------------------------------------
Name: Piers X. X. Xxxxxx
Title: Vice President
XXXXX STREET PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC, its managing
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration & Management
Ltd., its general partner
Number of Units: 5,711
By: /s/ Piers X. X. Xxxxxx
-------------------------------------------
Name: Piers X. X. Xxxxxx
Title: Vice President
45
PASSAGE PORTFOLIO, L.P.
By: MLIM DivPEP I, LLC, its managing
general partner
By: MLIM Private Equity, L.P., its member
manager
By: Portfolio Administration & Management
Ltd., its general partner
Number of Units: 1,702
By: /s/ Piers X. X. Xxxxxx
-------------------------------------------
Name: Piers X. X. Xxxxxx
Title: Vice President
46
MONY LIFE INSURANCE COMPANY OF AMERICA
Number of Units: 10,000
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Agent
47
ANNEX A
FARALLON CAPITAL PARTNERS, L.P.
PAYMENT INFORMATION
1. Wire information Bank: Chase Manhattan Bank
ABA#: 000-000-000
F/A/O: Xxxxxxx, Xxxxx & Co., NY
A/C#: 000-0-000000
F/F/C: Farallon Capital Management Bulk
A/C: 000-00000-0
2. Registered Name of Securities Farallon Capital Partners, L.P.
3. Tax Identification Number 00-0000000
NOTICE INFORMATION
4. Scheduled Payments, Farallon Capital Management LLC
Unscheduled Prepayments 0 Xxxxxxxx Xxxxx Xxxxx 0000
Notice of Maturity Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
5. Financial Statements and Farallon Capital Management LLC
Certificates of Compliance 0 Xxxxxxxx Xxxxx Xxxxx 0000
With financial covenants Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
6. Change in Issuer's name, Farallon Capital Management LLC
address or principal place 0 Xxxxxxxx Xxxxx Xxxxx 0000
of business, Change in Xxx Xxxxxxxxx, XX 00000
location of collateral and Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Copies of legal opinions Fax: (000) 000-0000
A-1
DOCUMENT DELIVERY INFORMATION
7. Delivery of Securities Farallon Capital Management LLC
0 Xxxxxxxx Xxxxx Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx and Xxxxx Xxxxxxx
Fax: (000) 000-0000
A-2
FARALLON CAPITAL INSTITUTIONAL PARTNERS, L.P.
PAYMENT INFORMATION
1. Wire information Bank: Chase Manhattan Bank
ABA#: 000-000-000
F/A/O: Xxxxxxx, Xxxxx & Co., NY
A/C#: 000-0-000000
F/F/C: Farallon Capital Management Bulk
A/C: 000-00000-0
2. Registered Name of Securities Farallon Capital Institutional Partners,
L.P.
3. Tax Identification Number 00-0000000
NOTICE INFORMATION
4. Scheduled Payments, Farallon Capital Management LLC
Unscheduled Prepayments 0 Xxxxxxxx Xxxxx Xxxxx 0000
Notice of Maturity Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
5. Financial Statements and Farallon Capital Management LLC
Certificates of Compliance 0 Xxxxxxxx Xxxxx Xxxxx 0000
With financial covenants Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
6. Change in Issuer's name, Farallon Capital Management LLC
address or principal place 0 Xxxxxxxx Xxxxx Xxxxx 0000
of business, Change in Xxx Xxxxxxxxx, XX 00000
location of collateral and Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Copies of legal opinions Fax: (000) 000-0000
DOCUMENT DELIVERY INFORMATION
7. Delivery of Securities Farallon Capital Management LLC
0 Xxxxxxxx Xxxxx Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx and Xxxxx Xxxxxxx
Fax: (000) 000-0000
A-3
FARALLON CAPITAL INSTITUTIONAL PARTNERS II, L.P.
PAYMENT INFORMATION
1. Wire information Bank: Chase Manhattan Bank
ABA#: 000-000-000
F/A/O: Xxxxxxx, Xxxxx & Co., NY
A/C#: 000-0-000000
F/F/C: Farallon Capital Management Bulk
A/C: 000-00000-0
2. Registered Name of Securities Farallon Capital Institutional Partners
II, L.P.
3. Tax Identification Number 00-0000000
NOTICE INFORMATION
4. Scheduled Payments, Farallon Capital Management LLC
Unscheduled Prepayments 0 Xxxxxxxx Xxxxx Xxxxx 0000
Notice of Maturity Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
5. Financial Statements and Farallon Capital Management LLC
Certificates of Compliance 0 Xxxxxxxx Xxxxx Xxxxx 0000
With financial covenants Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
6. Change in Issuer's name, Farallon Capital Management LLC
address or principal place 0 Xxxxxxxx Xxxxx Xxxxx 0000
of business, Change in Xxx Xxxxxxxxx, XX 00000
location of collateral and Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Copies of legal opinions Fax: (000) 000-0000
DOCUMENT DELIVERY INFORMATION
7. Delivery of Securities Farallon Capital Management LLC
0 Xxxxxxxx Xxxxx Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx and Xxxxx Xxxxxxx
Fax: (000) 000-0000
A-4
FARALLON CAPITAL INSTITUTIONAL PARTNERS III, L.P.
PAYMENT INFORMATION
1. Wire information Bank: Chase Manhattan Bank
ABA#: 000-000-000
F/A/O: Xxxxxxx, Xxxxx & Co., NY
A/C#: 000-0-000000
F/F/C: Farallon Capital Management Bulk
A/C: 000-00000-0
2. Registered Name of Securities Farallon Capital Institutional Partners
III, L.P.
3. Tax Identification Number 00-0000000
NOTICE INFORMATION
4. Scheduled Payments, Farallon Capital Management LLC
Unscheduled Prepayments 0 Xxxxxxxx Xxxxx Xxxxx 0000
Notice of Maturity Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
5. Financial Statements and Farallon Capital Management LLC
Certificates of Compliance 0 Xxxxxxxx Xxxxx Xxxxx 0000
With financial covenants Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
6. Change in Issuer's name, Farallon Capital Management LLC
address or principal place 0 Xxxxxxxx Xxxxx Xxxxx 0000
of business, Change in Xxx Xxxxxxxxx, XX 00000
location of collateral and Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Copies of legal opinions Fax: (000) 000-0000
DOCUMENT DELIVERY INFORMATION
7. Delivery of Securities Farallon Capital Management LLC
0 Xxxxxxxx Xxxxx Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx and Xxxxx Xxxxxxx
Fax: (000) 000-0000
A-5
RR CAPITAL PARTNERS, L.P.
PAYMENT INFORMATION
1. Wire information Bank: Chase Manhattan Bank
ABA#: 000-000-000
F/A/O: Xxxxxxx, Xxxxx & Co., NY
A/C#: 000-0-000000
F/F/C: Farallon Capital Management Bulk
A/C: 000-00000-0
2. Registered Name of Securities RR Capital Partners, L.P.
3. Tax Identification Number 00-0000000
NOTICE INFORMATION
4. Scheduled Payments, Farallon Capital Management LLC
Unscheduled Prepayments 0 Xxxxxxxx Xxxxx Xxxxx 0000
Notice of Maturity Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
5. Financial Statements and Farallon Capital Management LLC
Certificates of Compliance 0 Xxxxxxxx Xxxxx Xxxxx 0000
With financial covenants Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Fax: (000) 000-0000
6. Change in Issuer's name, Farallon Capital Management LLC
address or principal place 0 Xxxxxxxx Xxxxx Xxxxx 0000
of business, Change in Xxx Xxxxxxxxx, XX 00000
location of collateral and Attn: Xxxx Xxxxxxx and Xxxxxxx Xxxx
Copies of legal opinions Fax: (000) 000-0000
DOCUMENT DELIVERY INFORMATION
7. Delivery of Securities Farallon Capital Management LLC
0 Xxxxxxxx Xxxxx Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx and Xxxxx Xxxxxxx
Fax: (000) 000-0000
A-6
DLJ INVESTMENT PARTNERS II, L.P.
PAYMENT INFORMATION AND SIGNING PERSONS
1. Wire information Citibank, N.A.
New York, NY
ABA No.: 000-000-000
Account Name: DLJ Securities Corp.
Account No.: 3889-6041
For further credit to: DLJ Investment
Partners II, L.P.
DLJ Internal Account #275-004471
Reference: Crown Media
Contact: Xxxxx Xxxxxxx (000) 000-0000
NOTICE INFORMATION
DLJ Investment Partners II, Inc.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx / Xxxxxx Xxx
Tel: (000) 000-0000 / (000) 000-0000
Fax (000) 000-0000
e-Mail: xxxx.xxxxxxxx@xxxx.xxx /
xx.xxx@xxxx.xxx
ADDRESS FOR DELIVERY OF SECURITIES
Credit Suisse First Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx - 13th Floor
Tel: (000) 000-0000
DLJ INVESTMENT PARTNERS, L.P.
PAYMENT INFORMATION AND SIGNING PERSONS
2. Wire information Citibank, N.A.
New York, NY
ABA No.: 000-000-000
Account Name: DLJ Securities Corp.
Account No.: 3889-6041
For further credit to: DLJ Investment
Partners, L.P.
DLJ Internal Account #275-004521
Reference: Crown Media
Contact: Xxxxx Xxxxxxx (000) 000-0000
A-7
NOTICE INFORMATION
DLJ Investment Partners II, Inc.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx / Xxxxxx Xxx
Tel: (000) 000-0000 / (000) 000-0000
Fax (000) 000-0000
e-Mail: xxxx.xxxxxxxx@xxxx.xxx /
xx.xxx@xxxx.xxx
ADDRESS FOR DELIVERY OF SECURITIES
Credit Suisse First Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx - 13th Floor
Tel: (000) 000-0000
A-8
DLJIP II HOLDINGS, L.P.
PAYMENT INFORMATION AND SIGNING PERSONS
3. Wire information Citibank, N.A.
New York, NY
ABA No.: 000-000-000
Account Name: DLJ Securities Corp.
Account No.: 3889-6041
For further credit to: DLJIP II Holdings,
L.P.
DLJ Internal Account #275-007953
Reference: Crown Media
Contact: Xxxxx Xxxxxxx (000) 000-0000
NOTICE INFORMATION
DLJ Investment Partners II, Inc.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx / Xxxxxx Xxx
Tel: (000) 000-0000 / (000) 000-0000
Fax (000) 000-0000
e-Mail: xxxx.xxxxxxxx@xxxx.xxx /
xx.xxx@xxxx.xxx
ADDRESS FOR DELIVERY OF SECURITIES
Credit Suisse First Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx - 13th Floor
Tel: (000) 000-0000
A-9
XXXX XXXXXXX LIFE INSURANCE COMPANY
General Account, Closed Block, Separate Account 3SA and Separate Account 3SB
PAYMENT INFORMATION
1. Wire information Fleet Boston
ABA No.: 000000000
Xxxxxx, Xxxxxxxxxxxxx 00000
Account of: Xxxx Xxxxxxx Life Insurance
Co. Private Placement Collection Acct.
Account Number: 541-55417
On Order of: Name of Issuer and CUSIP/PPN
Full name, interest rate and maturity
date of Notes or other obligations
Wire Deadline 12 NOON, BOSTON TIME
All payments on account of the Notes or
other obligations in accordance with the
provisions thereof shall be made by bank
wire or transfer of immediately available
funds for credit by 12 noon, Boston time.
2. Registered Name of Xxxx Xxxxxxx Life Insurance Company
Securities
3. Tax Identification Number 00-0000000
NOTICE INFORMATION
All notices shall be sent via fax AND mail according to the instructions below:
4. Scheduled Payments, Xxxx Xxxxxxx Life Insurance Company
Unscheduled Prepayments 000 Xxxxxxxxx Xx.
Notice of Maturity Xxxxxx, XX 00000
Attn: Investment Accounting Division, B-3
Fax: (000) 000-0000
Include:
(a) full name, interest rate and maturity
date of the Notes or other obligations
(b) allocation of payment between
principal and interest and any special
payment
(c) name and address of Bank (or Trustee)
from which the wire transfer was sent
A-10
5. Financial Statements and Xxxx Xxxxxxx Life Insurance Company
Certificates of Compliance 000 Xxxxxxxxx Xx.
with financial covenants Xxxxxx, XX 00000
Attn: Bond and Corporate Finance Group,
T-57
Fax: (000) 000-0000
6. Change in Issuer's name, Xxxx Xxxxxxx Life Insurance Company
address or principal place 000 Xxxxxxxxx Xx.
of business, Change in Xxxxxx, XX 00000
location of collateral and Attn: Investment Law Division, T-30
Copies of legal opinions Fax: (000) 000-0000
DOCUMENT DELIVERY INFORMATION
7. Delivery of Securities All securities are to be sent for receipt
the day after the closing to:
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xx., X-00
Xxxxxx, XX 00000
Attn: Xxx Xxxx
A-11
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
PAYMENT INFORMATION
1. Wire information Fleet Boston
ABA No.: 000000000
Xxxxxx, Xxxxxxxxxxxxx 00000
Account of: Xxxx Xxxxxxx Life Insurance
Co. Private Placement Collection Acct.
Account Number: 541-55417
On Order of: Name of Issuer and CUSIP/PPN
Full name, interest rate and maturity
date of Notes or other obligations
Wire Deadline 12 NOON, BOSTON TIME
All payments on account of the Notes or
other obligations in accordance with the
provisions thereof shall be made by bank
wire or transfer of immediately available
funds for credit by 12 noon, Boston time.
2. Registered Name of Xxxx Xxxxxxx Variable Life Insurance
Securities Company
3. Tax Identification Number 00-0000000
NOTICE INFORMATION
All notices shall be sent via fax AND mail according to the instructions below:
4. Scheduled Payments, Xxxx Xxxxxxx Variable Life Insurance
Unscheduled Prepayments Company
and 000 Xxxxxxxxx Xx.
Notice of Maturity Xxxxxx, XX 00000
Attn: Investment Accounting Division, B-3
Fax: (000) 000-0000
Include:
(a) full name, interest rate and maturity
date of the Notes or other obligations
(b) allocation of payment between
principal and interest and any special
payment
(c) name and address of Bank (or Trustee)
from which the wire transfer was sent
A-12
5. Financial Statements and Xxxx Xxxxxxx Life Insurance Company
Certificates of Compliance 000 Xxxxxxxxx Xx.
with financial covenants Xxxxxx, XX 00000
Attn: Bond and Corporate Finance Group,
T-57
Fax: (000) 000-0000
6. Change in Issuer's name, Xxxx Xxxxxxx Life Insurance Company
address or principal place 000 Xxxxxxxxx Xx.
of business change in Xxxxxx, XX 00000
location Attn: Investment Law Division, T-30
of collateral and copies Fax: (000) 000-0000
of legal opinions
DOCUMENT DELIVERY INFORMATION
7. Delivery of Securities All securities are to be sent for receipt
the day after the closing to:
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xx., X-00
Xxxxxx, XX 00000
Attn: Xxx Xxxx
A-13
SIGNATURE 5 L.P.
PAYMENT INFORMATION
1. Wire information HARE & CO.
c/o The Bank of New York
ABA No.: 000000000
BNF: IOC566
FFC: Account No. 77634
On Order of: Name of Issuer and CUSIP/PPN
Full name, interest rate and maturity
date of Notes or other obligations
Wire Deadline 12 NOON, BOSTON TIME
All payments on account of the Notes or
other obligations in accordance with the
provisions thereof shall be made by bank
wire or transfer of immediately available
funds for credit by 12 noon, Boston time.
2. Registered Name of HARE & CO
Securities
3. Tax Identification Number N/A
NOTICE INFORMATION
All notices shall be sent via fax AND mail according to the instructions below:
4. Scheduled Payments, Investors Bank & Trust Company and:
Unscheduled Prepayments 000 Xxxxxxxxx Xx. HARE & CO.
and Notice of Maturity Xxxxxx, XX 00000 x/x Xxx Xxxx xx
Xxxx: Xxxxxx Xxxxxxxx Xxx Xxxx
Fax: (000) 000-0000 X.X. Xxx 00000
Xxxxxx, XX 00000
Include:
(a) full name, interest rate and maturity
date of the Notes or other obligations
(b) allocation of payment between
principal and interest and any special
payment
(c) name and address of Bank (or Trustee)
from which the wire transfer was sent
5. Financial Statements and Xxxx Xxxxxxx Life Insurance Company
Certificates of Compliance 000 Xxxxxxxxx Xx.
with financial covenants Xxxxxx, XX 00000
Attn: Bond and Corporate Finance Group,
T-57
Fax: (000) 000-0000
A-14
6. Change in Issuer's name, Xxxx Xxxxxxx Life Insurance Company
address or principal place 000 Xxxxxxxxx Xx.
of business change in Xxxxxx, XX 00000
location Attn: Investment Law Division, T-30
of collateral and copies Fax: (000) 000-0000
of legal opinions
DOCUMENT DELIVERY INFORMATION
7. Delivery of Securities All securities are to be sent for receipt
the day after the closing to:
Bank of New York
One Wall Street, Window A
Xxx Xxxx, XX 00000
A/C Name: Investors Bank & Trust Company
Reference: 017001/Signature 5 L.P. 77634
A-15
MAGNETITE ASSET INVESTORS L.L.C.
PAYMENT INFORMATION AND SIGNING PERSONS
1. Wire information The Chase Manhattan Bank
Houston, TX
ABA No.: 000000000, Acct # 00102619468
BNF: Wire Clearing Asset Backed Securities
FFC: Re: Magnetite Asset Investors, LLC
Acct # 2303901
Re: "Name of Investment" Interest or
Principal
2. Registered Name of XXXXXX & Co. (Nominee)
Securities
3. Tax Identification Number XXXXXX & Co. (Nominee) - 00-0000000
MAGNETITE ASSET INVESTORS L.L.C. -
00-0000000
NOTICE INFORMATION
4. Contact persons
Magnetite Asset Investors Xxxxxx X. Xxxxxxx
III L.L.C. c/o: BlackRock Financial Management, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Chase Manhattan Bank Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000
fax: (000) 000-0000
MISCELLANEOUS
Jurisdiction and form of Delaware, Limited Liability Company
organization
A-16
MAGNETITE ASSET INVESTORS III L.L.C.
PAYMENT INFORMATION AND SIGNING PERSONS
1. Wire information The Chase Manhattan Bank
Houston, TX
ABA No.: 000000000, Acct # 00102619468
BNF: Wire Clearing Asset Backed Securities
FFC: Re: Magnetite Asset Investors III, LLC
A/C # 5503001 23633-00
OBI: Xxxxxx Xxxxxxx/Re: "Name of
Investment" Interest or Principal
2. Registered Name of XXXXXX & Co. (Nominee)
Securities
3. Tax Identification Number XXXXXX & Co. (Nominee) - 00-0000000
MAGNETITE ASSET INVESTORS III L.L.C. -
00-0000000
NOTICE INFORMATION
4. Contact persons
Magnetite Asset Investors Xxxxxx X. Xxxxxxx
III L.L.C c/o: BlackRock Financial Management, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Chase Manhattan Bank Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000
fax: (000) 000-0000
A-17
MONY LIFE INSURANCE COMPANY OF AMERICA
PAYMENT INFORMATION
1. Wire information All payments to be made by bank wire or
intra-bank transfer of Federal or other
funds to:
XX Xxxxxx Chase Manhattan Bank
ABA No.: 000000000
For credit to Private Income Processing
Account No. 900 9000 200
For further credit to account G52964 with
sufficient information (including issuer
name, PPN number, interest rate, maturity
and whether the payment is in respect of
principal, interest, premium or
otherwise) to identify the source and
application of the funds.
2. Registered Name on J. ROMEO & CO.
Securities
3. Name of Purchaser Mony Life Insurance Company of America
4. Tax Identification Numbers Mony Life Insurance Company of America -
00-0000000
NOTICE INFORMATION AND DELIVERY OF SECURITIES
5. All notices and conformation relating to payments
If by mail or courier: XX Xxxxxx Xxxxx Manhattan Bank
00000 X. Xxxxxx Xxxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
with a copy to:
MONY Life Insurance Company of America
c/o MONY Life Insurance Company
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Securities Custody Division
M.D. 6-39A
A-18
If by fax: XX Xxxxxx Chase Manhattan Bank
(000) 000-0000
with a copy to:
MONY Life Insurance Company of America
c/o MONY Life Insurance Company
Fax: (000) 000-0000
Attention: Securities Custody Division
M.D. 6-39A
6. Addresses for all other Notices
By mail, courier and fax: MONY Life Insurance Company of America
c/o MONY Life Insurance Company
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Capital Management Unit
7. Address for Delivery of Securities
MONY Life Insurance Company of America
c/o MONY Life Insurance Company
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, Esq., Law
Department
A-19
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
PAYMENT INFORMATION
1. Wire information Chase Manhattan Bank
ABA No.: 000-000-000
Account of : Teachers Insurance and
Annuity
Association of America
Account No.: 000-0-000000
For further Credit to the TIAA Account
No.: G07040
Reference: PPN#/Issuer/Mat. Date./Coupon
Rate/P&I breakdown
All payments shall be made in immediately
available funds at the opening of
business on the due date by electronic
funds transfer through the Automated
Clearing House System to the above
referenced account
2. Tax Identification Numbers 00-0000000
NOTICE INFORMATION AND DELIVERY OF SECURITIES
3. Notices and conformation relating to payments
Contemporaneously with electronic wire
transfer of funds Issuer should advise by
a written notice of (i) the full name of
Issuer, private placement number, if any,
and interest rate of the note; (ii)
allocation of payment between principal.
interest, premium and any special
payment, if any; and (iii) name and
address of Bank (or trustee) from which
wire transfer was sent.
The written Notice should be sent via
mail or faxed to the following contact
details:
Teachers Insurance and Annuity
Association of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Securities Accounting Divisions
Tel: (000) 000-0000
Fax: (000) 000-0000
A-20
4. All other Notices
Teachers Insurance and Annuity Association
of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Securities Divisions, Private
Placements
Tel: (000) 000-0000 (Xxxxxxx Xxxx)
(000) 000-0000 (General No.)
Fax: (000) 000-0000
5. Address for Delivery of Securities
Teachers Insurance and Annuity Association
of America
000 Xxxxx Xxxxxx (0xx Xxxxx)
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
A-21
ALLSTATE LIFE INSURANCE COMPANY
PAYMENT INFORMATION AND SIGNING PERSONS
1. Wire information All payments by Fedwire transfer of
immediately available funds, identifying
the name of the Issuer, the Private
Placement Number preceded by "DPP" and
the payment as principal, interest or
premium, in the format as follows:
BBK: Xxxxxx Trust and Savings Bank
ABA No.: 000000000
BNF: Allstate Life Insurance Company
Collection Account #000-000-0
ORG: (Enter Issuer Name)
OBI: DPP (Enter Private Placement
No., if available)
Payment Due Date 12/15/08 - P_____ (Enter
"P" and amount of principal being
remitted, for example, P5000000.00) - I
(Enter "I" and amount of interest being
remitted, for example, I225000.00)
2. Registered Name of Allstate Life Insurance Company
Securities
3. Tax Identification Number 00-0000000
NOTICE INFORMATION
4. Notices of Scheduled Payments and written confirmations of wire
transfers
Allstate Insurance Company
Investment Operations - Private Placements
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000 Private Placements
(000) 000-0000 Bank Loans
Fax: (000) 000-0000
5. Notices regarding financial reports, compliance certificates and all
other written communications, including notice of prepayments
Allstate Life Insurance Company
Private Placements Department
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
A-22
DOCUMENT DELIVERY INFORMATION
6. Delivery of Securities All securities are to be sent for receipt
the day after the closing to:
Xxxxxx Trust and Savings Bank
000 X. Xxxxxx Xxxxxx 0X
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
For Allstate Life Insurance
Company/Safekeeping Account No. 846627
A-23
TORONTO DOMINION INVESTMENTS, INC.
PAYMENT INFORMATION AND SIGNING PERSONS
Wire information Bank of New York
ABA No.: 000000000
Account No.: GLA111569
TD Investments
Reference: X. X. Xxxxxxx
NOTICE INFORMATION AND ADDRESS FOR DELIVERY OF SECURITIES
Toronto Dominion Investments, Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: X. X. Xxxxxxx
Tel: (000) 000-0000
Fax (000) 000-0000
e-Mail: xxxxxx.xxxxxxx@xxxxxxxxx.xxx
With copy to:
Toronto Dominion Capital
TD Bank Tower
66 Wellington Street, West
00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxx
A-24
NEW YORK LIFE INSURANCE COMPANY
PAYMENT INFORMATION AND SIGNING PERSONS
1. Wire information All payments by wire or intrabank transfer
of immediately available funds to:
Chase Xxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000-000-000
Credit: New York Life Insurance Company
General Account No. 000-0-00000
with sufficient information (including
issuer, PPN number, interest rate,
maturity and whether payment is of
principal, premium, or interest) to
identify the source and application of
such funds.
2. Registered Name of New York Life Insurance Company
Securities
3. Tax Identification Number 00-0000000
NOTICE INFORMATION
4. Notices of Payments
New York Life Insurance Company
c/o New York Life Investment Management LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Financial Management and
Operations Group
Securities Operations
2nd Floor
Fax #: (000) 000-0000
A-25
6. All other Notices
New York Life Insurance Company
c/o New York Life Investment Management LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Securities Investment Group
Private Finance
2nd Floor
Fax: (000) 000-0000
with a copy of any notices regarding
defaults or Events of Default under the
transaction documents to:
Attention: Xxxxxx xx Xxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxxxx, Xxxx 0000
Fax #: (000) 000-0000
X-00
XXXXXX XXXXXX XXXX, X.X.
1. Wire information All payments by wire or intrabank transfer of
immediately available funds to:
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
EIN: 00-0000000
SEND WIRES TO:
PNC BANK, N.A.
ATTENTION:
Xxxxx Xxxxxxxxx (000) 000-0000
ABA: #000000000
A/C: #00-000-00000
A/C NAME: PFPC Trust
FBO/REF: 34-34-012-0389313
FURTHER CREDIT TO: Xxxxxx Street Fund, LP
with sufficient information (including
issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium,
or interest) to identify the source and
application of such funds.
NOTICE INFORMATION
2. Notices of Payments
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxx
3. All other Notices
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Xxxxx Xxxxxxx
X-00
XXXXXX XXXXXX PORTFOLIO, L.P.
1. Wire information All payments by wire or intrabank transfer of
immediately available funds to:
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
EIN: 00-0000000
SEND WIRES TO:
PNC BANK, N.A.
ATTENTION:
Xxxxx Xxxxxxxxx (000) 000-0000
ABA: #000000000
A/C: #00-000-00000
A/C NAME: PFPC Trust
FBO/REF: 34-34-012-0389321
FURTHER CREDIT TO: Xxxxxx Street Portfolio,
LP (Offshore)
with sufficient information (including
issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium,
or interest) to identify the source and
application of such funds.
NOTICE INFORMATION
2. Notices of Payments
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxx
3. All other Notices
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Xxxxx Xxxxxxx
A-28
PASSAGE PORTFOLIO, L.P.
1. Wire information All payments by wire or intrabank transfer of
immediately available funds to:
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
EIN: 00-0000000
SEND WIRES TO:
PNC BANK, N.A.
ATTENTION: Xxxxx Xxxxxxxxx (000) 000-0000
ABA: #000000000
A/C: #00-000-00000
A/C NAME: PFPC Trust
FBO/REF: 34-34-012-0389339
FURTHER CREDIT TO: Passage Portfolio, LP
(Islamic)
with sufficient information (including
issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium,
or interest) to identify the source and
application of such funds.
NOTICE INFORMATION
2. Notices of Payments
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxx
3. All other Notices
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Xxxxx Xxxxxxx
A-29
XXXXX STREET FUND, L.P.
1. Wire information All payments by wire or intrabank transfer of
immediately available funds to:
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
EIN: 00-0000000
SEND WIRES TO:
PNC BANK, N.A.
ATTENTION: Xxxxx Xxxxxxxxx (000) 000-0000
ABA: #000000000
A/C: #00-000-00000
A/C NAME: PFPC Trust
FBO/REF: 34-34-012-0389355
FURTHER CREDIT TO: Xxxxx Street Fund, LP
(master)
with sufficient information (including
issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium,
or interest) to identify the source and
application of such funds.
NOTICE INFORMATION
2. Notices of Payments
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxx
3. All other Notices
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Xxxxx Xxxxxxx
A-30
XXXXX STREET PORTFOLIO, L.P.
1. Wire information All payments by wire or intrabank transfer of
immediately available funds to:
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
EIN: 00-0000000
SEND WIRES TO:
PNC BANK, N.A.
ATTENTION: Xxxxx Xxxxxxxxx (000) 000-0000
ABA: #000000000
A/C: #00-000-00000
A/C NAME: PFPC Trust
FBO/REF: 34-34-012-0389363
FURTHER CREDIT TO: Xxxxx Street Portfolio, LP
(offshore)
with sufficient information (including
issuer, PPN number, interest rate, maturity
and whether payment is of principal, premium,
or interest) to identify the source and
application of such funds.
NOTICE INFORMATION
2. Notices of Payments
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxx
3. All other Notices
Private Equity Partners
000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Xxxxx Xxxxxxx
A-31
Schedule 2.3
Use of Proceeds
Use of Proceeds
1. $70,608,496.72 to HC Crown to repay outstanding intercompany
indebtedness pursuant to demand notes dated November 19, 1999,
February 23, 2000 (as amended on April 14, 2000) and July 10, 2001;
2. $69,391,503.28 to Hallmark Entertainment Distribution, LLC ("HEDC")
pursuant to certain program license agreements between HEDC and
subsidiaries of the Company;
3. $111,625,435.29 to JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as Administrative Agent, ("Chase") to reduce amount
outstanding under the Revolving Credit Loan ("Revolving Credit Loan")
pursuant to that certain Credit, Security, Guaranty and Pledge
Agreement, dated as of August 31, 2001, (the "Credit Agreement")
executed by each of the Company, the Guarantors named therein, the
Lenders named therein and Chase, as Administrative Agent.
4. $13,374,564.71 for fees and expenses related to the transactions
contemplated by this Agreement.
S-1
Schedule 3.5
Non-U.S. Person
The following entities (which are investing the corresponding amounts
set forth next to each entity's name) are non-U.S. persons under the Internal
Revenue Code of 1986, as amended:
1. Signature 5 L.P. ($3,000,000)
2. Xxxxx Street Portfolio, L.P. ($5,711,000)
3. Xxxxxx Street Portfolio, L.P. ($1,146,000)
4. Passage Portfolio, L.P. ($1,702,000)
S-2
Schedule 3.8
ERISA
1. Xxxx Xxxxxxx Life Insurance Company ("Xxxx Xxxxxxx") represents and warrants
that, with respect to its general account to be used by it to purchase Units
(the "Source"), the Source is an "insurance general account" as such term is
defined in section V(e) of Prohibited Transaction Class Exemption 95-60 (issued
July 12, 1995) ("PTE 95-60"), and there is no "plan" with respect to which the
aggregate amount of such general account's reserves and liabilities for the
contracts held by or on behalf of such "plan" and all other "plans" maintained
by the same employer (and affiliates thereof, as defined in section V(a) of PTE
95-60) or by the same employee organization (in each case determined under Xxxx
Xxxxxxx'x NAIC Annual Statement as filed in its state of domicile) exceeds or is
expected to exceed 15% of the total of all liabilities and reserves of such
general account, plus surplus, as of the Issue Date (excluding any liabilities
of the Xxxx Xxxxxxx separate accounts). The Xxxx Xxxxxxx general account is
purchasing Units with an aggregate price of $25,000,000.
2. New York Life Insurance Company ("NY Life") represents and warrants that,
with respect to each Source, the Source (a) contains no "plan assets" as defined
under Title I of ERISA or (b) is an "insurance Company general account" as such
term is defined in section V(e) of PTE 95-60, and there is no "plan" with
respect to which the aggregate amount of such general account's reserves and
liabilities for the contracts held by or on behalf of such "plan" and all other
"plans" maintained by the same employer (and affiliates thereof, as defined in
section V(a) of PTE 95-60) or by the same employee organization (in each case
determined under each of the NY Life's NAIC Annual Statement as filed in its
state of domicile) exceeds or is expected to exceed 10% of the total of all
liabilities and reserves of such general account, plus surplus, as of the Issue
Date (excluding any liabilities of the NY Life separate accounts). The total
price of Units being purchased by the NY Life is $25,000,000.
3. Xxxxx Street Portfolio, L.P. ("Xxxxx Street") is utilizing assets of foreign
benefit plans to acquire Units and the total price of Units being purchased by
Xxxxx Street is $5,700,000.
4. MONY Life Insurance Company of America ("MONY") represents and warrants that,
with respect to each source of funds to be used by it to pay the purchase price
of the Units to be purchased by it, such source (a) contains no "plan assets" as
defined under Title I of ERISA or (b) is an "insurance general account" as such
term is defined in section V(e) of PTE 95-60, and there is no "plan" with
respect to which the aggregate amount of such general account's reserves and
liabilities for the contracts held by or on behalf of such "plan" and all other
"plans" maintained by the same employer (and affiliates thereof, as defined in
section V(a) of PTE 95-60) or by the same employee organization (in each case
determined under each of the MONY's NAIC Annual Statement as filed in its state
of domicile) exceeds or is expected to exceed 10% of the total of all
liabilities and reserves of such general account, plus surplus, as of the Issue
Date (excluding any liabilities of the MONY separate accounts). The total price
of Units being purchased by the MONY is $10,000,000.
S-3
Schedule 4.1(c)
Preemptive Rights
Options to purchase shares of Class A Common Stock pursuant to the Amended and
Restated Crown Media Holdings, Inc. 2000 Long Term Incentive Plan.
S-4
Schedule 4.16
Subsidiaries
All of the capital stock or equity interests of each Significant Subsidiary has
been pledged to The Chase Manhattan Bank, as Agent, pursuant to, and as security
for the due and punctual payment by the Company under, that certain Credit,
Security, Guaranty and Pledge Agreement, dated as of August 30, 2001, executed
by each of the Company, the Guarantors named therein, the requisite Lenders
named therein and The Chase Manhattan Bank, as Administrative Agent.
S-5
Schedule 4.20
Benefit Plans
Section 1. Stock Option Plan
Amended and Restated Crown Media Holdings, Inc. 2000 Long Term
Incentive Plan.
Section 2. Health/Insurance Plans
(a) Crown Media Holdings, Inc. (and subsidiaries where indicated)
(i) (Life Insurance, Short/Long Term Disability and AD&D) Unum
Life Insurance Company of America Group Insurance Policy No.
570847 001 in favor of Crown Media Holdings, Inc., Crown Media
International, Inc. and Crown Media United States, LLC.
(ii) (Long Term Care) Unum Life Insurance Company of America Group
Long Term Care Insurance Policy Number 571532-002 in favor of
Crown Media Holdings, Inc., Crown Media International, Inc.
and Crown Media United States, LLC.
(iii) (Cafeteria Plan) Service Agreement, dated June 12, 2001 by and
between Denver Reserve Corporation and Crown Media Holdings,
Inc. for Cafeteria Plan.
(iv) (EAP) Employee Assistance Program Agreement, dated August 20,
2001, by and between Health Resources Corporation and Crown
Media Holdings, Inc., Crown Media International, Inc. and
Crown Media United States, LLC.
(v) (COBRA) Administrative Services Agreement, dated July 1, 2000,
between Crown Media Holdings, Inc. and Cobra Compliance, Inc.
(b) Crown Media International, Inc. (Colorado and International based
employees)
(i) (Medical) United Healthcare Insurance Company Group Health
Insurance Policy Number GA-700456.
(ii) (Dental) Delta Dental Plan of Colorado Delta Preferred Option
Contract Group #6324, as amended, in favor of Crown Media
International, Inc., with amendment including Crown Media
Unites States, LLC.
(iii) (401(k)) Xxxxxx Flexible 401(k) and Profit Sharing Plan
Agreement #001 in favor of Crown Media International, Inc.
(includes Crown Media Holdings, Inc.).
S-6
(iv) (Severance) Crown Media International, Inc. Employee Severance
Pay Plan for Fourth Quarter 2001.
(c) Crown Media United States, LLC (US Employees)
(i) (Medical - CA Employees) Cigna Healthcare of California, Inc.
Group Service Agreement No. I696A852 in favor of Crown Media
United States, LLC (formerly Odyssey Holdings, LLC).
(ii) (Medical - NY Employees) Oxford Health Plans (NY), Inc. Group
Enrollment Agreement No. OH1029*01,01C and renewal in favor of
Crown Media United States, LLC (formerly Odyssey Holdings,
LLC).
(iii) (Vision) Vision Service Plan No. 12113787 in favor of Crown
Media United States, LLC (formerly Odyssey Holdings, LLC) (now
includes Crown Media Holdings, Inc. and Crown Media
International, Inc.).
(iv) (401(k)) Principal Financial Group.
(v) (Severance) Crown Media United States, LLC Employee Severance
Pay Plan for Fourth Quarter 2001.
(d) U.K. Office
(i) (Pension Plan) Winterthur Life's Group Personal Pension in
favor of Crown Entertainment Limited.
(e) Asia Offices
(i) (Medical - Hong Kong) American International Assurance Company
(Bermuda) Limited Group Hospital & Surgical Policy No.
GHS-20950, endorsed to cover Crown Media International (HK)
Limited.
(ii) (Medical, AD&D - Taiwan) Xxxxxxx X. Xxxxxx Policy NO. 290470
and 290471.
(iii) (Life Insurance - Hong Kong) CGU International Insurance plc
Employee's Compensation Insurance Policy No. 61025528 EC in
favor of Crown Media International (HK) Limited (formerly HEN
Asia Pacific (HK) Ltd.).
(iv) (Medical - India) United India Insurance Co. Ltd. Policy No.
040900/48/00/01250 in favor of Hallmark India Private Limited.
S-7
Schedule 4.22
Litigation
Stockholder Suit
1. Xxxxxxx Xxxxxx v. Crown Media Holdings, Inc., Xxxxxx X. Xxxxx, Xx.,
Xxxxx X. Xxxxx, Xxxxxxx X. Xxxx, Xx., Xxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxx, Xxxxxx X. Xxxx, Xx., Irvine X. Xxxxxxxx, Xx., Xxxxx X. Xxxx,
Xxxxx X. Xxxx, Xxxx X. Mascotte, Xxxxxxx X. Xxxxx, Hallmark Cards,
Inc., Hallmark Entertainment Distribution, LLC, and Hallmark
Entertainment, Inc. Del. Ch., C.A. No. 18949-NC. The Plaintiff claims
that, inter alia, the purchase price agreed upon by Crown Media
Holdings, Inc. and Hallmark Entertainment Distribution, LLC, for the
purchase and sale of 702 film titles and related assets was not the
result of an arms-length transaction and is not fair to the public
stockholders of Crown Media Holdings, Inc.
Status: A Memorandum of Understanding ("MOU") was entered into
by all parties on June 29, 2001, and is awaiting confirmation
by the court. The proposed settlement terms of the MOU
provide, primarily, that the purchase price for the film
assets payable to Hallmark Entertainment Distribution, LLC be
reduced by 425,000 shares of Crown Media Holdings, Inc. Class
A Common Stock and that such shares be placed in escrow
pending final court approval, at which time the shares will be
returned to Crown Media Holdings, Inc.
Claims Related to Library Assets
2. DGA, SAG & WGA CLAIMS AGAINST RHI ENTERTAINMENT, INC.
Tri-guild audit commenced seeking residuals allegedly unpaid
by RHI Entertainment Inc. for period 1990-1994. By the time
the audit was completed the guilds were provided with proof
that substantially all claimed residuals had been previously
paid. An outstanding balance of approximately $80,000 in
residuals has subsequently been paid.
Status: No further claims have been made by the guilds in
respect of this matter.
Separately, the DGA and SAG have asserted that RHI and related
entities have failed to provide adequate financial assurances
required by the guilds in order to secure their obligations
under the Basic Agreements and SAG filed a formal statement
with respect thereto in January, 1998.
S-8
Status: Formal hearings have been repeatedly postponed and
negotiations have continued intermittently regarding adequate
financial assurances and a security agreement acceptable to
all parties. Therefore, certain Films may be retroactively
subject to security interests by the DGA and SAG including the
following:
ASCENT
BYE BYE BIRDIE
CHRISTMAS, MEMORY, A
CRAYOLA: 20,000 LEAGUES UNDER THE SEA
CRAYOLA: TROJAN HORSE
FOLLOW THE RIVER
GYPSY
INCIDENT, THE
IN THE LATE OF THE XXXXX
MY BROTHERS KEEPER
REUNION
SCARLETT
TAKING LIBERTY
TIME PIECE
TRUE WOMEN
WHITE DWARF
YEARLING, THE
S-9
Schedule 4.29(a)
Assumed Obligations
Feast of All Saints 5,500,000
Further Tales of the City 2,000,000
My Louisiana Sky 1,850,000
Red Sneakers, The 1,819,000
Ruby's Bucket of Blood 2,500,000
Sea People 190,910
Snow in August 1,750,000
Summer's End 250,000
Three AM 2,000,000
Time at the Top 250,000
Xxxxxx & Xxxxx 2,049,000
------------
SUB-TOTAL SHOWTIME 20,158,910
Xxxxxx Xxxxxxxxx Productions 2,100,000 Oct-01
Allied Irish Bank 6,480,838 Jul-02
Mercantile National Bank 2,012,500 Jan-02
Dog Run Productions 300,000 TBD
Xxxxx Xxxxxxxxxx 3,500,000 Jan-02
Allied Irish Bank 11,910,512 Mar-02
VZS Productions 300,000 TBD
Babelsburg Commitments/ABN AMRO 14,090,905 Jun-02
Babelsburg Commitments/ABN AMRO 13,569,950 Sep-02
Babelsburg Commitments/ABN AMRO 13,048,735 Jun-03
Babelsburg Commitments/ABN AMRO 12,527,650 Sep-03
------------
SUB-TOTAL OTHER & BABELSBURG COMMITMENTS 79,841,090
------------
GRAND TOTAL $100,000,000
============
S-10
Schedule 4.29(b)
Outstanding Indebtedness
(1) $249,127,506 pursuant to that certain Credit, Security,
Guaranty and Pledge Agreement, dated as of August 31, 2001, executed by each of
the Company, the Guarantors named therein, the requisite Lenders named therein
and The Chase Manhattan Bank, as Administrative Agent.
(2) $20,000,000 pursuant to the $20,000,000 Promissory Note,
dated November 19, 1999, made by Crown Media International, Inc. in favor of HC
Crown Corporation.
(3) $16,800,000 pursuant to the $10,000,000 Promissory Note,
dated February 23, 2000, made by Crown Media International, Inc. in favor of HC
Crown Corporation, as amended on April 14, 2000 to increase amount of Note to
$20,000,000.
(4) $805,822 accrued interest payable pursuant to the
promissory notes in item 1, 2 and 3 above.
(5) $33,221,125, together with accrued interest of $322,183
pursuant to the $50,000,000 Promissory Note, dated July 10, 2001, made by the
Company in favor of HC Crown Corporation.
(6) $2,905,564 in principal and accrued interest pursuant to a
letter agreement, dated August 23, 1999, between The Chase Manhattan Bank and
Hallmark India Private Limited.
(7) $12,040,863 pursuant to Contract for a Combined Uplink and
Space Segment Service, dated as of December 17, 1999, by and between British
Telecommunications PLC and Hallmark Entertainment Networks (now known as Crown
Media International, Inc.).
(8) $44,483,718 pursuant to Program License Agreement, dated
as of July 1, 1999, by and between Hallmark Entertainment Distribution, LLC, as
successor to Hallmark Entertainment Distribution Company and Hallmark
Entertainment Networks, Inc. (now known as Crown Media International, Inc.).
(9) $85,137,061 pursuant to Program License Agreement, dated
as of November 13, 1998, by and between Hallmark Entertainment Distribution
Company and Odyssey Holdings, L.L.C. (now known as Crown Media United States,
LLC).
(10) $100,000,000 payables assumed pursuant to that certain
Purchase and Sale Agreement, dated as of April 10, 2001, by and between the
Company and Hallmark Entertainment Distribution, LLC with respect to the
acquisition of film library assets.
S-11
(11) $2,825,007 intercompany payable owed to Hallmark
Entertainment, Inc. for rent and various miscellaneous matters.
(12) $981,249 pursuant to the Amended and Restated
Intercompany Service Agreement, dated as of January 1, 2000, by and between
Hallmark Cards, Incorporated and the Company.
(13) $1,443,750 pursuant to the service agreement, dated
September 28, 2001, by and between Hallmark Entertainment, Inc. and the Company.
S-12
