EXHIBIT 2.1
CONTRIBUTION AGREEMENT, DATED AS OF AUGUST 22, 2000, BY AND AMONG BASTION
CAPITAL FUND, L.P., BCF MEDIA, LLC, XXXX-XXXXXXXXXX CAPITAL, LLC, COUNCIL TREE
COMMUNICATIONS, LLC, COUNCIL TREE COMMUNICATIONS V, LLC, COUNCIL TREE HISPANIC
BROADCASTERS II, L.L.C., LIBERTY MEDIA CORPORATION, SONY PICTURES ENTERTAINMENT
INC. AND TELEMUNDO COMMUNICATIONS GROUP, INC.
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CONTRIBUTION AGREEMENT
BY AND AMONG
BASTION CAPITAL FUND, LP,
BCF MEDIA, LLC,
XXXX-XXXXXXXXXX CAPITAL, LLC,
COUNCIL TREE COMMUNICATIONS, LLC,
COUNCIL TREE COMMUNICATIONS V, LLC,
COUNCIL TREE HISPANIC BROADCASTERS II, L.L.C.,
LIBERTY MEDIA CORPORATION,
SONY PICTURES ENTERTAINMENT INC.
AND
TELEMUNDO COMMUNICATIONS GROUP, INC.
DATED AS OF AUGUST 22, 2000
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TABLE OF CONTENTS
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Page(s)
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ARTICLE 1 DEFINITIONS
1.1 Definitions.......................................................2
ARTICLE 2 THE TRANSACTIONS
2.1 Council Tree Transactions.........................................8
2.2 Station Partners Contribution.....................................8
2.3 Liberty Contribution..............................................8
2.4 SPE Contribution..................................................8
2.5 BV Capital Contribution...........................................8
2.6 Closing...........................................................9
2.7 Deliveries at Closing.............................................9
2.8 Adjustment.......................................................10
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS AND
THE CT PARTIES
3.1 Organization, Standing, and Authority............................11
3.2 Authorization and Binding Obligation.............................11
3.3 Foreign Ownership................................................11
3.4 Consents and Approvals...........................................11
3.5 Purchase for Investment..........................................12
3.6 Financial Matters................................................12
3.7 Adequate Access to Personnel and Materials.......................12
3.8 Brokers..........................................................12
3.9 Litigation.......................................................12
3.10 Ownership........................................................13
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.1 Organization, Standing, and Authority............................14
4.2 Authorization and Binding Obligation.............................14
4.3 Ownership; No Previous Operations................................15
4.4 Financial Statements.............................................15
4.5 Litigation; Decrees..............................................15
4.6 Environmental Matters............................................15
4.7 FCC Compliance...................................................16
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF COUNCIL TREE
5.1 Financial Information............................................16
5.2 Litigation; Decrees..............................................16
5.3 Environmental Matters............................................16
5.4 FCC Compliance...................................................17
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5.5 Fraudulent Transfer..............................................17
ARTICLE 6 COVENANTS
6.1 HSR Filings......................................................17
6.2 FCC Filings......................................................17
6.3 Modifications....................................................17
6.4 Access for Investigation; Confidentiality........................18
6.5 Conduct of Business..............................................18
6.6 Payments to Apollo...............................................19
6.7 Other Transaction Documents......................................19
6.8 Foreign Ownership................................................20
6.9 BV Capital Credit Support........................................21
6.10 WPHA-TV..........................................................22
6.11 Contributed Station Investigation................................23
6.12 Station Partners Certification...................................23
ARTICLE 7 CONDITIONS
7.1 Absence of Legal Barriers........................................23
7.2 HSR Waiting Period...............................................23
7.3 FCC Approval.....................................................23
7.4 Performance of Obligations of Parties............................23
ARTICLE 8 TERMINATION
8.1 Termination by Mutual Written Consent............................24
8.2 Termination Upon Notice..........................................24
8.3 Effect of Termination............................................24
ARTICLE 9 INDEMNIFICATION
9.1 General..........................................................25
9.2 Indemnification..................................................25
9.3 Limitations on Indemnification...................................25
9.4 Procedure for Indemnification....................................26
ARTICLE 10 GENERAL
10.1 Efforts to Proceed Promptly......................................26
10.2 Survival of Representations and Warranties.......................27
10.3 Notices..........................................................27
10.4 Specific Enforcement.............................................29
10.5 Interpretation...................................................30
10.6 Severability.....................................................30
10.7 Assignment.......................................................31
10.8 Entire Agreement.................................................31
10.9 Amendment; Waiver................................................31
10.10 Expenses.........................................................31
ii
10.11 Counterparts.....................................................31
10.12 Governing Law....................................................31
10.13 Public Announcement..............................................31
10.14 No Third Party Beneficiaries.....................................32
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EXHIBITS
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EXHIBIT A - Equity Interests in the Company
EXHIBIT B - Scheduled Capital Contributions
EXHIBIT C - Station Partners Put/Call Agreement
EXHIBIT D - BV Capital Put/Call Agreement
EXHIBIT E - Amended Station Partners Operating Agreement
EXHIBIT F - Stockholders Agreement
EXHIBIT G - Certificate of Incorporation
EXHIBIT H - Bylaws
EXHIBIT I - Amended Network Co. Operating Agreement
EXHIBIT J - Holdings Certificate of Incorporation
EXHIBIT K - Holdings Bylaws
EXHIBIT L - Exchange Agreement
EXHIBIT M - Irrevocable Proxy
EXHIBIT N - Registration Rights Agreement
EXHIBIT O - SCC Guarantee
SCHEDULES
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2.8 Adjustment Formula
3.10(a) Capitalization of Liberty Sub
3.10(d) Contributed Station and Related Assets
4.3 Capitalization of the Company
5.4 FCC Permits
iv
CONTRIBUTION AGREEMENT
This Contribution Agreement (the "Agreement") is made as of
August 22, 2000 by and among Bastion Capital Fund, LP ("Bastion"), BCF Media,
LLC ("BCF"), Xxxx-Xxxxxxxxxx Capital, LLC ("BV Capital"), Council Tree
Communications, LLC ("CTC"), Council Tree Communications V, LLC ("CTCV,"
together with CTC, the "CT Parties"), Council Tree Hispanic Broadcasters II,
L.L.C. (("CTHB" and, together with the CT Parties, "Council Tree"), Liberty
Media Corporation ("Liberty"), Sony Pictures Entertainment Inc. ("SPE" and,
together with Bastion, BCF, BV Capital, CTHB and Liberty, the "Contributors")
and Telemundo Communications Group, Inc., a Delaware corporation (the "Company"
and, together with the Contributors and the CT Parties, the "Parties").
WHEREAS, pursuant to the Letter Agreement dated June 30, 2000,
by and among Bastion, BV Capital, CTC, Liberty and SPE (the "Letter Agreement")
and the term sheet attached thereto as Exhibit 1 (including all exhibits and
schedules attached thereto, the "Term Sheet"), the Parties have negotiated this
Agreement and the other agreements, documents and instruments to be executed and
delivered pursuant to this Agreement including those listed in Section 6.7
(collectively with the Agreement, the "Transaction Documents"); and
WHEREAS, in connection with the execution of the Letter
Agreement, (i) Liberty and SPE exercised a call right in accordance with the
terms of the Agreement by and between Liberty and Station Partners, LLC
("Station Partners"), dated as of October 18, 1999 (as modified by the agreement
dated as of June 30, 2000 by and among Liberty, Bastion, SPE, Station Partners
and Apollo Investment Fund III, LP ("Apollo"), the "Prepayment Agreement") and
(ii) have assigned the right to purchase all of the membership interests of
Station Partners owned by Apollo (the "Apollo Interest") to CTHB pursuant to
that certain Assignment Agreement by and among Liberty, SPE and CTHB, dated as
of the date hereof;
WHEREAS, the Parties desire to consummate the transactions
contemplated herein (the "Transactions"), by each Contributor contributing
certain property and certain Contributors receiving shares of Class A common
stock (the "Class A Common Stock") and certain other Contributors receiving
shares of Class B common stock (the "Class B Common Stock" and, together with
the Class A Common Stock, the "Company Common Stock") of the Company; and
WHEREAS, for Federal income tax purposes, it is intended that
the contributions will qualify as transfers to a controlled corporation under
the provisions of Section 351 of the Internal Revenue Code of 1986, as amended
(the "Code"), and the Treasury Regulations thereunder.
NOW, THEREFORE, in consideration of the premises and the
representa-
1
tions, warranties and agreements herein contained, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The capitalized terms used herein shall have
the respective meanings assigned to such terms set forth below (such definitions
to be equally applicable to both the singular and plural forms of the terms
defined):
(a) "Agreement" has the meaning set forth in the Preamble.
(b) "Amended Network Co. Operating Agreement" has the
meaning set forth in Section 6.7.
(c) "Amended Station Partners Operating Agreement" has the
meaning set forth in Section 6.7.
(d) "Apollo" has the meaning set forth in the Preamble.
(e) "Apollo Cash Amount" has the meaning set forth in
Section 2.1.
(f) "Apollo Interest" has the meaning set forth in the
Preamble.
(g) "Apollo Purchase" has the meaning set forth in Section
2.1.
(h) "Article 5 Reduction in Value" has the meaning set
forth in Section 9.3(c).
(i) "Article 4 Reduction in Value" has the meaning set
forth in Section 9.3(b).
(j) "Bastion" has the meaning set forth in the Preamble.
(k) "BCF" has the meaning set forth in the Preamble.
2
(l) "Blue Sky Laws" means the blue sky and other state
securities laws.
(m) "Business Day" means any day that is not a Saturday, a
Sunday or any day on which banks are required or authorized by law to be closed
in the City of New York.
(n) "BV Capital" has the meaning set forth in the
Preamble.
(o) "BV Capital Contribution" has the meaning set forth
in Section 2.5.
(p) "BV Capital Put/Call Agreement" has the meaning set
forth in Section 6.7
(q) "Bylaws" has the meaning set forth in Section 6.7.
(r) "Certificate of Incorporation" has the meaning set
forth in Section 6.7.
(s) "Class A Common Stock" has the meaning set forth in
the Preamble.
(t) "Class B Common Stock" has the meaning set forth in
the Preamble.
(u) "Closing" has the meaning set forth in Section 2.6.
(v) "Closing Date" has the meaning set forth in Section
2.6.
(w) "Code" has the meaning set forth in the Preamble.
(x) "Company" has the meaning set forth in the Preamble.
(y) "Company Common Stock" has the meaning set forth in
the Preamble.
3
(z) "Communications Act" means the Communications Act of
1934, as amended.
(aa) "Contributed Station" has the meaning set forth in
Section 3.10(d).
(bb) "Contributors" has the meaning set forth in the
Preamble.
(cc) "Council Tree" has the meaning set forth in the
Preamble.
(dd) "Council Tree Indemnitee" has the meaning set forth
in Section 9.2(a). (1)
(ee) "Council Tree Portion" has the meaning set forth in
Section 9.2(a).
(ff) "Credit Agreement" means the Credit Agreement, dated
as of August 4, 1998, among TLMD Acquisition Co. (now known as Telemundo Group,
Inc.), Telemundo Holdings, Inc., the lenders named therein, Credit Suisse First
Boston, as Administrative Agent, as Collateral Agent and as Issuing Bank, and
Canadian Imperial Bank of Commerce, as Documentation Agent.
(gg) "CTC" has the meaning set forth in the Preamble.
(hh) "CTCV" has the meaning set forth in the Preamble.
(ii) "CTHB" has the meaning set forth in the Preamble.
(jj) "Encumbrances" means any security interest, mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property to secure
payment of a debt or performance of an obligation or other priority or
preferential arrangement or liability, contingent or otherwise, of any kind or
nature whatsoever, including the interest of a vendor, lessor or licensor under
any conditional sale, capitalized lease, exclusive license or other title
retention agreement.
(kk) "Environmental Claim" has the meaning set forth in
4
Section 4.6.
(ll) "Environmental Laws" has the meaning set forth in
Section 4.6.
(mm) "Equity Interests" means any evidence of equity
ownership of any Person, whether represented by common stock, preferred stock,
securities, options, warrants or other rights to repurchase or acquire any
equity ownership of such Person (including convertible debentures, notes or
other securities convertible or exchangeable into or exercisable for the
purchase or other acquisition of capital stock), trust certificates, general or
limited partnership interests or any other type of capital stock or equity
interest.
(nn) "Exchange Agreement" has the meaning set forth in
Section 6.7.
(oo) "FCC" means the U.S. Federal Communications
Commission.
(pp) "FCC Approval" means a preliminary order or decision
from the FCC that grants all consents or approvals required under the
Communications Act and FCC Regulations for consummation of the Transactions
(whether or not any appeal or request for reconsideration or review of such
order is pending, or whether the time for filing any such appeal or request for
reconsideration or review, or for any such sua sponte action by the FCC with
similar effect, has expired).
(qq) "FCC Permits" means all permits, licenses, waivers,
exemptions, orders, franchises and approvals under the Communications Act and
FCC Regulations.
(rr) "FCC Regulations" means the regulations promulgated
by the FCC.
(ss) "GAAP" has the meaning set forth in Section 4.4.
(tt) "Holdings Bylaws" has the meaning set forth in
Section 6.7.
5
(uu) "Holdings Certificate of Incorporation" has the
meaning set forth in Section 6.7.
(vv) "Holdings Common Stock" has the meaning set forth in
Section 2.2.
(ww) "HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the regulations promulgated
thereunder.
(xx) "Indenture" means the Indenture, dated as of August
12, 1998, governing Telemundo Holdings' 11 1/2% Senior Discount Notes due 2008.
(yy) "Letter Agreement" has the meaning set forth in the
Preamble.
(zz) "Liberty" has the meaning set forth in the Preamble.
(aaa) "Liberty Contribution" has the meaning set forth in
Section 2.3.
(bbb) "Liberty Proxy" has the meaning set forth in Section
6.7.
(ccc) "Liberty Sub" has the meaning set forth in Section
2.3.
(ddd) "LMC" means LMC Capital LLC, a Delaware limited
liability company.
(eee) "Material Adverse Effect" means a material adverse
effect on the business, financial condition or results of operations of a
Person.
(fff) "Network Co." means Telemundo Network Group LLC.
(ggg) "Option" means the Option granted by Liberty to BV
Capital pursuant to the Option Agreement.
(hhh) "Option Agreement" means the Option Agreement dated
as of the date hereof between Liberty and BV Capital.
6
(iii) "Option Amount" has the meaning set forth in Section
2.5.
(jjj) "Option Shares" has the meaning set forth in Section
2.5.
(kkk) "Original Indemnitee" has the meaning set forth in
Section 9.2(b)
(lll) "Original Indemnitee Portion" has the meaning set
forth in Section 9.2(b).
(mmm) "Person" means any individual, corporation, limited
liability company, limited or general partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
(nnn) "Prepayment Agreement" has the meaning set forth in
the Preamble.
(ooo) "Prepayment Amount" has the meaning set forth in
Section 2.1.
(ppp) "Previous Stockholders Agreement" has the meaning
set forth in Section 6.5.
(qqq) "Put/Call Agreement" means the Put/Call Agreement
dated as of August 12, 1998, by and among Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxxx,
Xxxxxxx and SPE.
(rrr) "Reimbursed Amount" has the meaning set forth in
Section 2.1.
(sss) "Registration Rights Agreement" has the meaning set
forth in Section 6.7.
(ttt) "SCC" means Sony Capital Corporation.
7
(uuu) "SCC Guarantee" has the meaning set forth in Section
6.7.
(vvv) "Scheduled Contributions" has the meaning set forth
in Section 2.8.
(www) "Securities Act" means the Securities Act of 1933
and the regulations promulgated thereunder, each as amended.
(xxx) "SPE" has the meaning set forth in the Preamble.
(yyy) "SPE Contribution" has the meaning set forth in
Section 2.4.
(zzz) "SPE Sub" means SPE Mundo Investment Inc.
(aaaa) "Station Partners" has the meaning set forth in the
Preamble.
(bbbb) "Station Partners Contribution" has the meaning set
forth in Section 2.2.
(cccc) "Station Partners Put/Call Agreement" has the
meaning set forth in Section 6.7.
(dddd) "Stockholders Agreement" has the meaning set forth
in Section 6.7.
(eeee) "Subsidiaries" means, in respect of any Person, any
corporation, association, limited liability company, limited or general
partnership or other business entity of which more than 50% of the total voting
power of Equity Interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person, (ii) such Person and one or more
Subsidiaries of such Person, or (iii) one or more Subsidiaries of such Person;
provided that Network Co. shall be deemed to be a Subsidiary of the Company for
all purposes under this Agreement.
(ffff) "Telemundo Holdings" has the meaning set forth in
8
Section 2.2.
(gggg) "Term Sheet" has the meaning set forth in the
Preamble.
(hhhh) "Transactions" has the meaning set forth in the
Preamble.
(iiii) "Transaction Documents" has the meaning set forth
in the Preamble.
(jjjj) "Transfer of Control Application" means the
application for Consent to Transfer Control filed in connection with the
transactions contemplated by this Agreement with the FCC on August 8, 2000.
ARTICLE 2
THE TRANSACTIONS
2.1 Council Tree Transactions. CTHB shall (a) purchase the Apollo
Interest (the "Apollo Purchase") for an amount in cash equal to $160 million
(the "Apollo Cash Amount"), (b) contribute the Contributed Station to Station
Partners and (c) reimburse Liberty $6.0 million in cash (the "Reimbursed
Amount") of the total amount to be reimbursed to Liberty pursuant to the
Prepayment Agreement of $59.422 million (the "Prepayment Amount").
2.2 Station Partners Contribution. On or prior to the Closing Date,
Bastion, BCF and CTHB shall cause Station Partners to contribute (a) all of the
common stock ("Holdings Common Stock") in Telemundo Holdings, Inc. ("Telemundo
Holdings") owned by Station Partners and (b) the Contributed Station, to the
Company (the "Station Partners Contribution"). In exchange for the Station
Partners Contribution, Station Partners shall receive shares of the Company's
Class B Common Stock as set forth in Exhibit A.
2.3 Liberty Contribution. On or prior to the Closing Date, Liberty
shall (a) contribute all of its Holdings Common Stock and (b) cause LMC to
contribute all of the outstanding Equity Interests of Liberty Telemundo Network,
Inc. ("Liberty Sub") to the Company (the "Liberty Contribution"). In exchange
for the Liberty Contribution, Liberty shall receive shares of the Company's
Class A
9
Common Stock as set forth in Exhibit A.
2.4 SPE Contribution. On or prior to the Closing Date, SPE shall
contribute all of its Holdings Common Stock to the Company (the "SPE
Contribution"). In exchange for the SPE Contribution, SPE shall receive shares
of the Company's Class A Common Stock as set forth in Exhibit A.
2.5 BV Capital Contribution. If BV Capital has exercised its Option,
on or prior to the Closing Date, BV Capital shall reimburse Liberty (the "BV
Capital Contribution") the remaining $53.422 million in cash (the "Option
Amount") of the Prepayment Amount. In exchange for the BV Capital Contribution,
BV Capital shall receive shares of the Company's Class A Common Stock as set
forth in Exhibit A (the "Option Shares"). The BV Capital Contribution shall be
reduced proportionately to the extent BV Capital only partially exercises its
Option pursuant to the Option Agreement. To the extent the BV Capital
Contribution is less than the Option Amount, Liberty and SPE will in good faith
attempt to arrange for a third party to reimburse Liberty for the remaining
Option Amount to the extent necessary to comply with the FCC's broadcast/cable
cross-ownership rules. Upon payment of a portion of the Option Amount to
Liberty, such third party shall receive a corresponding portion of the Option
Shares to be issued as indicated above. To the extent Liberty is not reimbursed
a portion of the Option Amount, Liberty shall receive a corresponding portion of
the Option Shares and Liberty shall grant SPE an option to purchase 50% of any
such Option Shares held by Liberty on terms to be mutually agreed to by SPE and
Liberty.
2.6 Closing. Subject to the conditions set forth below, the closing
of the Transactions (the "Closing") shall take place as promptly as practicable
at the offices of Troop Xxxxxxx Xxxxxx Xxxxxxx & Xxxxx, LLP, located at 0000
Xxxxxxx Xxxx Xxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 at 9:00 a.m. (local
time) on the date fifteen days after satisfaction or waiver of all of the
conditions to the Parties' respective obligations to consummate the Transactions
(other than those requiring the delivery of documents or the taking of other
action at the Closing) or such other date as may be agreed upon by the Parties.
The date on which the Closing is consummated is hereinafter called the "Closing
Date."
2.7 Deliveries at Closing. At the Closing,
(a) CTHB will (i) pay to Apollo on the Closing Date the Apollo
Cash Amount plus CTHB's proportionate share of any additional amounts
10
due pursuant to Section 2.8(b) below and (ii) pay to Liberty the Reimbursed
Amount, in each case by wire transfer of immediately available funds to such
account or accounts as Apollo or Liberty, as the case may be, shall have
designated at least two Business Days prior to the Closing Date;
(b) Apollo, Bastion and BCF will execute all consents and other
documents necessary to permit Apollo to transfer its membership interests in
Station Partners to CTHB, admit CTHB as a member of Station Partners and approve
and execute the Amended Station Partners Operating Agreement as set forth
herein;
(c) each of the Contributors will deliver to the Company share
certificates or other documents, which certificates or other documents shall be
either duly endorsed in blank or accompanied by stock powers duly executed in
blank, representing their respective interests to be contributed to the Company
pursuant to this Article 2;
(d) to the extent it exercises the Option, BV Capital (or a
third party pursuant to Section 2.5, as the case may be) will pay to Liberty in
cash the aggregate amount due pursuant to Section 2.5 above, by wire transfer of
immediately available funds to such account or accounts as Liberty shall have
designated at least two Business Days prior to the Closing Date; and
(e) the Company will deliver to the Contributors share
certificates representing the Company Common Stock to be issued to the
Contributors pursuant to this Article 2.
2.8 Adjustment.
(a) In the event the scheduled capital contributions to Network
Co. set forth on Exhibit B (the "Scheduled Contributions") have not been made by
Liberty or SPE (or one of their Subsidiaries, as applicable), a corresponding
reduction shall be made to the relative portion of Class A Common Stock to be
received by Liberty or SPE, as applicable, pursuant to this Agreement, in
accordance with the formula set forth on Schedule 2.8 hereto.
(b)In the event the Closing occurs after March 31, 2001 and on
or before June 30, 2001, each of the Contributors will pay to Apollo and Bastion
(or BCF as the case may be) each Contributor's proportionate share (based on
such Contributor's relative portion of Equity Interests in the Company as set
forth
11
on Exhibit A) of any additional cash amounts due to Apollo and Bastion or BCF,
as the case may be, pursuant to the Prepayment Agreement and the Put/Call
Agreement for the period ending on or before June 30, 2001; provided, that in
the event that such proportionate payments are not made by a Contributor as set
forth above, a corresponding reduction shall be made to the relative portion of
Company Common Stock to be received by such Contributor pursuant to this
Agreement, in accordance with the formula set forth on Schedule 2.8 hereto.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS
AND THE CT PARTIES
Other than as specifically set forth below, each Contributor and CT
Party, severally and not jointly, represents and warrants as to those matters
pertaining to itself only (and not the other Contributors and CT Parties),
except that (i) Bastion and BCF represent and warrant to their knowledge as to
matters pertaining to Station Partners in Section 3.10(b) and (ii) Liberty
represents and warrants as to matters pertaining to Liberty Sub and LMC) as
follows:
3.1 Organization, Standing, and Authority. Each Contributor and CT
Party (i) is duly organized, validly existing, and in good standing under the
laws of its respective jurisdiction of formation and (ii) has the requisite
corporate, partnership, or limited liability company power and authority to
execute and deliver the Transaction Documents (with respect to such agreements
to which it is a party) and to perform its obligations thereunder.
3.2 Authorization and Binding Obligation. (i) The execution and
delivery of the Transaction Documents (with respect to such agreements to which
it is a party) and the performance by it of its obligations thereunder have been
duly authorized by all necessary corporate, partnership or limited liability
company action, including any necessary approval by its board of directors or
other governing body, and no other corporate, partnership or limited liability
company proceedings on its part are necessary for the execution and delivery of
the Transaction Documents (with respect to such agreements to which it is a
party) and the performance of its obligations provided for therein; (ii) this
Agreement has been duly executed and delivered by it, and assuming this
Agreement is a binding obligation of the other Parties, this Agreement will
constitute a valid and binding obligation of it enforceable against it in
accordance with its terms; and (iii) when the other
12
Transaction Documents are executed and delivered by it (with respect to such
agreements to which it is a party), and assuming the other Transaction Documents
are binding obligations of the other Parties to such Transaction Documents, each
of the Transaction Documents (with respect to such agreements to which it is a
party) will constitute valid and binding obligations of it enforceable against
it in accordance with its terms.
3.3 Foreign Ownership.
(a) Each of Bastion, BCF and BV Capital represents and warrants
that upon the Closing the aggregate alien ownership of Bastion, BCF and BV
Capital that will be attributable to the Company will be no greater than 0.54%.
(b) Council Tree represents and warrants that upon the Closing
the aggregate alien ownership of CTHB that will be attributable to the Company
will be no greater than 1.5%.
(c) Liberty and SPE represent and warrant that upon the Closing
the aggregate alien ownership of the Company will be less than 25%, solely as a
result of the investment by Liberty and SPE in the Company and assuming that the
representations and warranties of Council Tree, Bastion, BCF and BV Capital in
Sections 3.3(a) and (b) are true and accurate.
3.4 Consents and Approvals. Except as otherwise contemplated by the
Transaction Documents, neither the execution, delivery and performance of this
Agreement or any of the other Transaction Documents by such Contributor or CT
Party, nor the performance or consummation by such Contributor or CT Party of
any transaction related hereto or thereto will require any consent, approval,
order or authorization of, filing, registration, declaration or taking of any
other action with, or notice to, any Person, other than such consents,
approvals, filings or actions (i) under the federal securities laws, the Blue
Sky Laws, the HSR Act, the Communications Act, the FCC Regulations or the
Investment Company Act of 1940, as amended or (ii) that have already been
obtained.
3.5 Purchase for Investment. Each Contributor, as applicable, is
acquiring the Company Common Stock pursuant to Article 2 for its own account and
not as a nominee or agent for any other Person and has no present intention of
distributing such Company Common Stock. Each Contributor understands that the
Company Common Stock must be held indefinitely unless it is registered under the
13
Securities Act or an exemption from such registration becomes available.
3.6 Financial Matters. Each Contributor represents and understands
that the acquisition of the Company Common Stock involves substantial risk and
that such Contributor's financial condition and investments are such that it is
in a financial position to hold the Company Common Stock for an indefinite
period of time and to bear the economic risk of, and withstand a complete loss
of, its investment in the Company. Each Contributor represents that it is an
"accredited investor" as that term is defined in Regulation D promulgated under
the Securities Act, and that it is a sophisticated investor, capable of
evaluating the merits and risks of investing in the Company given its current
stage of development.
3.7 Adequate Access to Personnel and Materials. During the
negotiation of the transactions contemplated herein, each Contributor and CT
Party and their representatives have been afforded full and free access to
Telemundo Holdings' and Network Co.'s corporate and other organizational books,
financial statements and records, have been afforded an opportunity to ask such
questions of Telemundo Holdings' and Network Co.'s officers and employees
concerning Telemundo Holdings', Network Co.'s and the Company's business,
operations, financial condition, assets, liabilities and other relevant matters,
and have been given all such information as has been requested, in order to
evaluate the merits and risks of the prospective investment contemplated herein.
3.8 Brokers. Except for fees owed to Xxxxxxx & Associates, no
Contributor or CT Party is obligated to pay any fee or commission to any broker,
finder or other similar Person in connection with the Transactions.
3.9 Litigation. There are no actions, suits, proceedings, orders,
investigations or claims pending or, to the knowledge of such Contributor or CT
Party, threatened, against or affecting such Contributor or CT Party, at law or
in equity, before any court, arbitration panel, tribunal or governmental
commission, bureau, agency or instrumentality that seek to enjoin or restrain
the performance or consummation of the Transactions.
3.10 Ownership.
(a) (i) Liberty owns 2,495 shares of Holdings Common Stock. The
shares of Holdings Common Stock owned by Liberty are duly authorized, validly
issued, fully paid and non-assessable and will be delivered to the
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Company free and clear of any Encumbrances, preemptive rights, escrows, options,
rights of first refusal or other agreements, arrangements, commitments,
understandings or obligations, whether written or oral, or any other restriction
affecting the rights and other incidents of record and beneficial ownership,
other than restrictions on transferability imposed generally under the
Securities Act and under Blue Sky Laws.
(ii) Schedule 3.10(a) sets forth a true and complete statement
of the capitalization of Liberty Sub. LMC owns all of the Equity Interests in
Liberty Sub. The Liberty Sub Equity Interests to be contributed to the Company
are duly authorized, validly issued, fully paid and non-assessable and will be
delivered to the Company free and clear of any Encumbrances, preemptive rights,
escrows, options, rights of first refusal or other agreements, arrangements,
commitments, understandings or obligations, whether written or oral, or any
other restriction affecting the rights and other incidents of record and
beneficial ownership, other than restrictions on transferability imposed
generally under the Securities Act and under Blue Sky Laws. All of the Liberty
Sub Equity Interests are owned beneficially by Liberty through LMC. Liberty is
the sole member of LMC. LMC is the sole recordholder of the Liberty Sub Equity
Interests and is a "disregarded entity" within the meaning of Treas. Reg.
Section 301.7701-3.
(iii) Liberty Sub owns 50% of the Equity Interests in Network
Co., and except for its ownership of such Equity Interests, Liberty Sub does not
have any assets or liabilities and has never conducted any business other than
the ownership of Equity Interests in Network Co.
(b) Station Partners owns 5,010 shares of Holdings Common Stock. The
shares of Holdings Common Stock owned by Station Partners are duly authorized,
validly issued, fully paid and non-assessable and will be delivered to the
Company free and clear of any Encumbrances, preemptive rights, escrows, options,
rights of first refusal or other agreements, arrangements, commitments,
understandings or obligations, whether written or oral, or any other restriction
affecting the rights and other incidents of record and beneficial ownership,
other than restrictions on transferability imposed generally under the
Securities Act and under Blue Sky Laws.
(c) SPE owns 2,495 shares of Holdings Common Stock. The shares of
Holdings Common Stock owned by SPE are duly authorized, validly issued, fully
paid and non-assessable and will be delivered to the Company free and
15
clear of any Encumbrances, preemptive rights, escrows, options, rights of first
refusal or other agreements, arrangements, commitments, understandings or
obligations, whether written or oral, or any other restriction affecting the
rights and other incidents of record and beneficial ownership, other than
restrictions on transferability imposed generally under the Securities Act and
under Blue Sky Laws.
(d) (i) CTCV has good, indefeasible and marketable title to the
television station and related assets set forth on Schedule 3.10(d) (the
"Contributed Station") free and clear of all Encumbrances other than as set
forth on Schedule 3.10(d), including after taking into account any fraudulent
conveyance or fraudulent transfer law. At or prior to the Closing, ownership of
the Contributed Station shall be transferred to CTHB and CTHB shall have good,
indefeasible and marketable title to the Contributed Station free and clear of
all Encumbrances other than as set forth on Schedule 3.10(d), including after
taking into account any fraudulent conveyance or fraudulent transfer law. Upon
contribution of the Contributed Station to the Company in accordance with this
Agreement, the Company shall have good, indefeasible and marketable title to the
Contributed Station free and clear of all Encumbrances other than as set forth
on Schedule 3.10(d), including after taking into account any fraudulent
conveyance or fraudulent transfer law.
(ii) CTC represents and warrants that CTHB shall be deemed to
be "Council Tree II" as such term is defined in the Commitment Letter, dated as
of June 30, 2000, by and among Madison Dearborn Capital Partners III, L.P.,
Toronto Dominion Investments, Inc., Alta Communications, Inc., Arctic Slope
Regional Corporation, Catalyst Investors, L.P., Xxxxx X. Xxxxxxx and CTC, and
that the cash investments committed to in such letter shall be funded to CTHB
when and as called, in accordance with such Commitment Letter.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Contributors as follows:
4.1 Organization, Standing, and Authority. The Company (i) is duly organized,
validly existing, and in good standing under the laws of Delaware and (ii) has
the requisite corporate power and authority to execute and deliver the
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Transaction Documents (with respect to such agreements to which it is a party)
and to perform its obligations thereunder.
4.2 Authorization and Binding Obligation. (i) The execution and
delivery of the Transaction Documents (with respect to such agreements to which
it is a party) and the performance by it of its obligations thereunder have been
duly authorized by all necessary corporate action, including any necessary
approval by its board of directors or other governing body, and no other
corporate proceedings on its part are necessary for the execution and delivery
of the Transaction Documents (with respect to such agreements to which it is a
party) and the performance of its obligations provided for therein; (ii) this
Agreement has been duly executed and delivered by it, and assuming this
Agreement is a binding obligation of the other Parties, this Agreement will
constitute a valid and binding obligation of it enforceable against it in
accordance with its terms; and (iii) when the other Transaction Documents are
executed and delivered by it (with respect to such agreements to which it is a
party), and assuming the other Transaction Documents are binding obligations of
the other Parties to such Transaction Documents, each of the Transaction
Documents (with respect to such agreements to which it is a party) will
constitute valid and binding obligations of it enforceable against it in
accordance with its terms.
4.3 Ownership; No Previous Operations. Schedule 4.3 sets forth a
true and complete statement of the capitalization of the Company. The Company
does not have and has never had any Subsidiaries. Except as set forth on
Schedule 4.3, the Company has not issued any Equity Interests, nor are any such
Equity Interests (or any rights to acquire or purchase any Equity Interests)
outstanding. The Company does not have any assets or liabilities and has never
conducted any business other than with respect to the Transactions described
herein.
4.4 Financial Statements. To the knowledge of the Company, each of
the quarterly and audited annual financial statements and related notes thereto
made available to Council Tree prior to June 30, 2000 present fairly, in all
material respects, the financial position and results of operations of Telemundo
Holdings, Network Co. and their consolidated Subsidiaries, if any, as of the
respective dates and for the respective periods to which they apply, in each
case in accordance with generally accepted accounting principles ("GAAP").
4.5 Litigation; Decrees. To the knowledge of the Company, as of June
30, 2000, other than the pending FCC application and proceeding related to the
17
acquisition of Telemundo Holdings in August 1998, there was no suit, action or
proceeding pending against Telemundo Holdings, Network Co. or any of their
Subsidiaries in any Federal, state or local court or agency that would
reasonably be expected to have a Material Adverse Effect on Telemundo Holdings,
Network Co. and their consolidated Subsidiaries, taken as a whole.
4.6 Environmental Matters. To the knowledge of the Company, except
as would not reasonably be expected to have a Material Adverse Effect on
Telemundo Holdings, Network Co. and their Subsidiaries, taken as a whole, as of
June 30, 2000 (a) Telemundo Holdings, Network Co. and their Subsidiaries were in
compliance with all applicable federal, state, and local laws governing
pollution or the protection of human health or the environment ("Environmental
Laws") and (b) none of Telemundo Holdings, Network Co. nor any of their
Subsidiaries had received any written notice with respect to the business of, or
any property owned or leased by, Telemundo Holdings, Network Co. or any of their
Subsidiaries, from any governmental entity or third party alleging that
Telemundo Holdings, Network Co. or any of their Subsidiaries was not in
compliance with any Environmental Laws as of such date (an "Environmental
Claim") and there were no activities, circumstances, events or incidents,
including releases of any hazardous material into the environment, that were
reasonably likely to form the basis of any Environmental Claim against Telemundo
Holdings, Network Co. or any of their Subsidiaries.
4.7 FCC Compliance. To the knowledge of the Company, and subject to
the pending FCC application and proceeding related to the acquisition of
Telemundo Holdings in August 1998, as of June 30, 2000, Telemundo Holdings and
its Subsidiaries held all material FCC Permits necessary for the lawful conduct
of their respective businesses in the manner in which they were then being
conducted under the Communications Act and FCC Regulations and Telemundo
Holdings and its Subsidiaries were in compliance with the terms of all material
FCC Permits necessary for the lawful conduct of the respective businesses of
Telemundo Holdings and its Subsidiaries in the manner in which they were then
being conducted.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF COUNCIL TREE
Council Tree represents and warrants to Bastion, BCF, Liberty, SPE
and BV Capital, as follows:
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5.1 Financial Information. To the knowledge of Council Tree, the
financial information related to the Contributed Station and made available to
Liberty and SPE prior to the date hereof presents fairly, in all material
respects, the financial position and results of operations of the Contributed
Station as of the respective dates and for the respective periods to which it
applies.
5.2 Litigation; Decrees. To the knowledge of Council Tree, as of the
date hereof, there is no suit, action or proceeding pending with respect to the
Contributed Station in any Federal, state or local court or agency that would
reasonably be expected to have a Material Adverse Effect on the Contributed
Station.
5.3 Environmental Matters. To the knowledge of Council Tree, except
as would not reasonably be expected to have a Material Adverse Effect on the
Contributed Station, (a) Council Tree is in compliance with all Environmental
Laws with respect to the Contributed Station and (b) Council Tree has not
received any Environmental Claim and there are no activities, circumstances,
events or incidents, including releases of any hazardous material into the
environment, that are reasonably likely to form the basis of any Environmental
Claim with respect to the Contributed Station.
5.4 FCC Compliance. To the knowledge of Council Tree, as of the
date hereof Schedule 5.4 hereto sets forth all current material FCC Permits
included in the Contributed Station and necessary for the lawful conduct of the
business of operating the Contributed Station in the manner in which it is
currently being conducted and Council Tree is in compliance with the terms of
all material FCC Permits necessary for the lawful conduct of the business of the
Contributed Station in the manner in which it is currently being conducted.
5.5 Fraudulent Transfer. All contributions of the Contributed
Station made in connection with or in anticipation of the consummation of these
Transactions were made for adequate consideration and would not be subject to
"avoidance" under any relevant fraudulent conveyance or fraudulent transfer law.
ARTICLE 6
COVENANTS
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6.1 HSR Filings. Following the date hereof, each of the Parties
shall file or cause to be filed promptly any forms required under applicable
laws and regulations to consummate and make effective the Transactions,
including required filings or requests for information under the HSR Act, and
shall take any other action reasonably necessary in connection with obtaining
the expiration or termination of the waiting periods under the HSR Act
applicable to the Transactions.
6.2 FCC Filings. Each of the Parties shall file promptly any forms
required under applicable law or in connection with the Transfer of Control
Application and take any other action reasonably necessary in connection with
obtaining FCC Approval.
6.3 Modifications. Each Party agrees it will make such reasonable
modifications and adjustments to its relationships and arrangements with respect
to the Company as may be required in order to obtain the necessary consents and
approvals under the Communications Act and FCC Regulations or to avoid a
potential change of control under the Credit Agreement and the Indenture,
(including, if and to the extent reasonably required, changing its general
voting power with respect to its shares of Company Common Stock or substituting
for its Company Common Stock other securities or rights in respect thereof), so
long as such modifications and adjustments do not modify the economic
arrangement among and between the Parties as contemplated by this Agreement.
Notwithstanding the foregoing, no Party will be required to modify any internal
relationship or relationship with any of its members, partners, stockholders or
affiliates, divest or limit its members', partners', stockholders' or
affiliates' rights with respect to any assets, agree to any restriction of its
activities or modify any transaction (except, in each case, as contemplated by
the preceding sentence) in order to obtain any necessary consent or approval in
order to consummate the Transactions.
6.4 Access for Investigation; Confidentiality. (a) At reasonable
times and places during customary business hours and upon reasonable notice,
Liberty, SPE, BCF and Bastion shall cause Telemundo Holdings, and Liberty and
SPE shall cause Network Co., to permit each of the Contributors and their
respective accountants and counsel and other representatives to have full access
to the premises and to all books, contracts, commitments and records of
Telemundo Holdings and Network Co. and furnish each Contributor with such
financial and operating data and other information with respect to the business
and properties of Telemundo Holdings and Network Co. as they shall from time to
time reasonably request in order to consummate the Transactions.
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(b) At reasonable times and places during customary business
hours and upon reasonable notice, Council Tree shall permit each of the
Contributors and their respective accountants and counsel and other
representatives to have full access to the premises and to all books, contracts,
commitments and records related to the Contributed Station and furnish each
Contributor with such financial and operating data and other information with
respect to the business of operating the Contributed Station as they shall from
time to time reasonably request in order to consummate the Transactions.
(c) Except as required by law, each Party will hold, and will
cause its respective officers, employees, accountants, counsel, financial
advisors and other representatives and affiliates to hold, any nonpublic
information received in connection with the Transactions in confidence until
such time as such information becomes publicly available (otherwise than through
a wrongful act of any such Person) and shall use its best efforts to ensure that
such Persons do not disclose such information to others without the prior
written consent of the other Party or Parties providing the information. In the
event of the termination of this Agreement for any reason, each Party shall
promptly return or destroy all documents containing nonpublic information so
obtained from any other Party or any of its subsidiaries and any copies made of
such documents.
6.5 Conduct of Business. From the date hereof and prior to the
Closing, without the prior written consent of the other Parties:
(a) each of Liberty and SPE shall (i) use its best efforts to
cause Network Co. to continue to operate Network Co.'s business of owning and
operating a network programming business in the United States and its
territories that provides predominantly Spanish-language or Hispanic-themed
programming in the ordinary course of business consistent with past practice or
the Network Co.'s current operating and strategic plans subject to extraordinary
events outside the control of management and (ii) disclose to Council Tree and
BV Capital the occurrence of any such extraordinary events that they become
aware of prior to the Closing Date.
(b) each of Liberty (subject to the limitations and
restrictions set forth in the Irrevocable Proxy made by Liberty in favor of
Station Partners dated as of August 12, 1998), SPE, Bastion and BCF:
21
(i) shall (i) use its best efforts to cause Telemundo Holdings
to continue to operate its broadcast business of providing predominantly
Spanish-language or Hispanic-themed programming in the ordinary course of
business consistent with past practice or Telemundo Holdings' current operating
and strategic plans subject to extraordinary events outside the control of
management and (ii) disclose to Council Tree and BV Capital the occurrence of
any such extraordinary events that they become aware of prior to the Closing
Date; and
(ii) shall not consent to any Major Decision as defined in the
Telemundo Holdings, Inc. Stockholders Agreement dated August 12, 1998, by and
among Telemundo Holdings, Station Partners, Apollo, Bastion, SPE and Liberty
(the "Previous Stockholders Agreement") substantially similar to any of the
Major Decisions as defined in the Stockholders Agreement without first obtaining
the consent of CTHB.
(c) Council Tree shall (i) use its best efforts to continue to
operate the Contributed Station's business of operating a broadcast television
station providing predominantly Spanish-language or Hispanic-themed programming
in the ordinary course of business consistent with past practice or Council
Tree's current operating and strategic plans with respect to the Contributed
Station subject to extraordinary events outside the control of management and
(ii) disclose to each other Party the occurrence of any such extraordinary
events that it becomes aware of prior to the Closing Date.
6.6 Payments to Apollo. Except as contemplated by this Agreement and
the other Transaction Documents in connection with the Closing, none of the
Parties shall, directly or indirectly, make any payment to Apollo on account of
or in connection with the Transactions.
6.7 Other Transaction Documents. Concurrently with or prior to the
Closing:
(a) Liberty, SPE and Station Partners shall execute the
Put/Call Agreement substantially in the form of Exhibit C (the "Station Partners
Put/Call Agreement").
(b) Liberty, SPE and BV Capital shall execute a Put/Call
Agreement substantially in the form of Exhibit D (the "BV Capital Put/Call
Agreement").
22
(c) Bastion or BCF, as applicable, and CTHB shall amend and
restate Station Partners' Amended and Restated Operating Agreement substantially
in the form of Exhibit E (the "Amended Station Partners Operating Agreement").
(d) The Company, Liberty, SPE, Station Partners and BV Capital
shall enter into a Stockholders' Agreement substantially in the form of Exhibit
F (the "Stockholders Agreement").
(e) The Company shall amend and restate its Certificate of
Incorporation substantially in the form of Exhibit G (the "Certificate of
Incorporation").
(f) The Company shall adopt Bylaws substantially in the form of
Exhibit H (the "Bylaws").
(g) Liberty and SPE shall amend and restate Network Co.'s
Amended and Restated Operating Agreement substantially in the form of Exhibit I
(the "Amended Network Co. Operating Agreement").
(h) Station Partners, Liberty and SPE shall amend and restate
Telemundo Holdings' Amended and Restated Articles of Incorporation substantially
in the form of Exhibit J (the "Holdings Certificate of Incorporation").
(i) Station Partners, Liberty and SPE shall amend and restate
Telemundo Holdings' Bylaws substantially in the form of Exhibit K (the "Holdings
Bylaws").
(j) The Company and SPE shall execute an Exchange Agreement
substantially in the form of Exhibit L hereto (the "Exchange Agreement").
(k) Liberty shall execute an Irrevocable Proxy in favor of
Station Partners, who shall agree to and acknowledge the same, substantially in
the form of Exhibit M (the "Liberty Proxy").
(l) Station Partners, BV Capital, Liberty, SPE and the Company
shall execute a Registration Rights Agreement substantially in the form of
Exhibit N hereto (the "Registration Rights Agreement").
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(m) SCC shall execute a Guarantee and Undertaking substantially
in the form of Exhibit O hereto (the "SCC Guarantee").
6.8 Foreign Ownership.
(a) Each of Bastion, BCF and BV Capital agrees that if,
subsequent to the Closing Date, the aggregate alien ownership of Bastion, BCF
and BV Capital attributable to the Company is greater than 0.54%, each of
Bastion, BCF and BV Capital will restructure their investments in Station
Partners or the Company, as applicable, or take any other action necessary so
that such excess alien interest will not be attributable to the Company
consistent with the requirements of the Communications Act and FCC Regulations,
and Liberty, SPE and CTHB agree to cooperate with all reasonable requests of
Bastion, BCF and BV Capital in connection therewith.
(b) CTHB agrees that if, subsequent to the Closing Date, CTHB
becomes aware that the aggregate alien ownership of the Company attributable to
CTHB is at any time greater than 1.5%, it will restructure its investment in
Station Partners or take any other action necessary so that such excess alien
ownership interest will not be attributable to the Company consistent with the
requirements of the Communications Act and FCC Regulations, and Liberty, SPE,
Bastion, BCF and BV Capital agree to cooperate with all reasonable requests of
CTHB in connection therewith.
(c) Liberty and SPE agree that if, subsequent to the Closing
Date, they become aware that aliens own a greater percentage interest in the
Company than 25% solely as a result of their investment in the Company and
assuming that the representations and warranties of CTHB, Bastion, BCF and BV
Capital in Sections 3.3(a) and (b) are true and accurate, they will restructure
their investment in the Company or take any other action necessary so that such
alien interest in excess of 25% will not be attributable to the Company
consistent with the requirements of the Communications Act and FCC Regulations,
and CTHB, Bastion, BCF and BV Capital will cooperate with all reasonable
requests of Liberty and SPE in connection therewith.
6.9 BV Capital Credit Support.
(a) In connection with any assignment or Encumbrance by
24
BV Capital (or a BV Capital Controlled Affiliate) of its Company Common Stock in
accordance with Section 3.3.5 of the Stockholders Agreement or its right to
receive all or a part of its portion of the Pay Out Amount (as defined in the BV
Capital Put/Call Agreement) in accordance with Section 6(d) of the BV Capital
Put/Call Agreement for the purpose of (i) obtaining financing to exercise the
Option and/or (ii) obtaining direct or indirect financing for the payment of any
capital contribution to Station Partners or the Company, each of Liberty and SPE
agree to deliver to the financial institution, lender or other source of such
financing (of which they have been notified by BV Capital or the BV Capital
Controlled Affiliate) a writing, in a form reasonably acceptable to such
financing source and SPE or Liberty, as applicable, acknowledging the receipt
(if so received) of an irrevocable assignment or Encumbrance by BV Capital or
the BV Capital Controlled Affiliate of its interest, rights and remedies under
the BV Capital Put/Call Agreement to such financial institution , lender or
other source of such financing and confirming (assuming it has received the
applicable directions) (x) the Minimum Value that it will be obligated to pay to
such assignee as a result of the exercise of the put or call under the BV
Capital Put/Call Agreement, (y) that it will pay such amounts directly to the
financing source, without offset or defense, and (z) that it will accept the
direction of the financing source as a valid exercise of BV Capital's or the
applicable BV Capital Controlled Affiliate's put under the BV Capital Put/Call
Agreement. To the extent that such financing source, as a condition to entering
into such financing arrangements on a commercially reasonable basis, reasonably
requires from Liberty or SPE any additional information, acknowledgements or
approvals, or the execution or delivery of any additional documents,
certificates, instruments or agreements, Liberty and SPE each agree, in order to
accomplish the purposes of this Section 6.9, to cooperate with BV Capital and
such financing source to comply with any such reasonable request referenced
above. Notwithstanding the foregoing, neither Liberty nor SPE will be required
to pay any money, to modify any internal relationship or relationship with any
of such Party's members, partners, stockholders or affiliates, or to divest or
limit its rights or its members', stockholders', partners', or affiliates'
rights with respect to any assets, or to agree to any restriction of its
activities or to modify any transaction in order to comply with the provisions
of this Section 6.9(a).
(b) As part of such credit support, SPE shall cause SCC to
guarantee SPE's monetary obligations upon default under the BV Capital Put/Call
Agreement and to have such guarantee designated as an "Approved Debt" for the
purposes of the Keep Well Agreement between SCC and Sony Corporation, provided
that BV Capital undertakes to reimburse SPE for 50% of SPE's actual
out-of-pocket charges paid to SCC for such arrangement (such 50% shall not
exceed 0.0625% of the amount guaranteed per year), such reimbursement to be paid
(together with 10% interest from the date of payment of the reimbursed costs)
upon payment of the Pay Out Amount under the BV Capital Put/Call Agreement.
6.10 WPHA-TV. For the period beginning from the date of this
25
Agreement up to and including the Closing Date or the termination of this
Agreement, if Council Tree or a Council Tree Entity resolves to sell the
interest and opportunities with respect to WPHA-TV, Atlantic City, Philadelphia,
CTHB must deliver to Telemundo Holdings, Inc. a written notice of such intent,
and shall set forth the material terms pursuant to which Council Tree or such
Council Tree Entity would be prepared to make such sale. Telemundo Holdings,
Inc. shall have a period of 60 days after it is has received such notice to
accept the terms set forth therein and to purchase such interests. If Telemundo
Holdings, Inc. does not accept the terms within such period, or fails to
purchase such interest after 60 days (or, in the event regulatory approvals are
necessary, the earlier of (a) 15 days after receipt of such regulatory approvals
or the date after which Telemundo Holdings, Inc. has abandoned good faith
attempts to obtain such regulatory approvals and (b) six months from such
notice), then Council Tree or a Council Tree Entity shall be entitled to enter
into an agreement with a third party on terms that, individually and
collectively, are the same or more favorable to Council Tree or a Council Tree
Entity than those offered to Telemundo Holdings, Inc.; provided, however, that:
(i) Council Tree or a Council Tree Entity must sign an agreement with such third
party on such terms within 180 days of Telemundo Holdings, Inc.'s failure to
accept, and the proposed purchase or acquisition must be closed on such terms
within 180 days of such agreement (subject to extension for FCC approval delays
only), or such potential third party sale shall once again be subject to the
provisions of this Section 6.10; (ii) if Council Tree or a Council Tree Entity
and the third party change the proposed sale terms so that they are less
favorable to Council Tree or the Council Tree Entity than those offered to
Telemundo Holdings, Inc., then CTHB must offer Telemundo Holdings, Inc. the
opportunity to match such terms pursuant to the procedure set forth above; and
(iii) if the proposed transaction with the third party is not concluded, any
other potential sales will be subject to the provisions of this Section 6.10.
6.11 Contributed Station Investigation. In the event the
investigation by BV Capital, Liberty or SPE of the Contributed Station shall
have revealed any Encumbrances that in the commercially reasonable judgment of
BV Capital, Liberty or SPE, should not be included in the Contributed Station,
such Encumbrances shall be retained by CTCV or another Council Tree Entity and
shall not be assumed by the Company.
6.12 Station Partners Certification. The Parties shall use their
respective best efforts to obtain a certification from Apollo as to the matters
set forth in Section 3.10(b) in form and substance reasonably satisfactory to
the Parties.
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ARTICLE 7
CONDITIONS
Consummation of the Transactions will be subject to the satisfaction
of the following conditions:
7.1 Absence of Legal Barriers. No statute, rule, regulation, order,
decree or injunction shall have been enacted, entered, promulgated or enforced
by any court or governmental authority of competent jurisdiction that prohibits
the consummation of the Transactions; provided, however, that the Parties shall
use their best efforts to have any such order, decree or injunction vacated.
7.2 HSR Waiting Period. The applicable waiting period under the HSR
Act shall have expired or been terminated.
7.3 FCC Approval. FCC Approval shall have been obtained.
7.4 Performance of Obligations of Parties. All Parties shall have
received the Transaction Documents, duly authorized, executed and delivered by
the other appropriate Parties thereto and each of the Certificate of
Incorporation and the Holdings Certificate of Incorporation shall have been
filed with the Delaware Secretary of State.
ARTICLE 8
TERMINATION
8.1 Termination by Mutual Written Consent. This Agreement may be
terminated and the Transactions contemplated hereby may be abandoned, for any
reason, at any time prior to the Closing Date, by the mutual written consent of
all of the Parties.
8.2 Termination Upon Notice. This Agreement may be terminated and
the Transactions may be abandoned by notice from any of Liberty, Bastion, BCF or
SPE to all of the other Parties that Station Partners has exercised its right to
demand that Telemundo Holdings be sold pursuant to Section 5(b) of the
27
Put/Call Agreement; provided, however, that each of Liberty, Bastion, BCF and
SPE severally agrees to use its best efforts to negotiate with Apollo to waive
Apollo's right to cause Telemundo Holdings to be sold or otherwise to permit the
Transactions (it being understood that best efforts shall not be deemed to
include any payment by any Party to Apollo).
8.3 Effect of Termination. In the event of termination of this
Agreement as provided herein prior to the Closing, this Agreement shall be of no
further force or effect, except (a) as provided in this Section 8.3 and Sections
10.10 and 10.13, each of which shall survive termination of this Agreement, and
(b) nothing herein shall relieve any Party from liability for any breach of this
Agreement.
ARTICLE 9
INDEMNIFICATION
9.1 General. From and after the Closing, subject to the other
provisions of this Article 9, the Contributors shall be indemnified as provided
in this Article 9. All amounts payable pursuant to this Article 9 shall be paid
either in cash or in additional Equity Interests of the Company, at the option
of the Company. To the extent the Company chooses to issue additional Equity
Interests in lieu of paying cash, such additional Equity Interests will be
issued for their Fair Market Value and shall be subject to limitations on
transfer, exchange and conversion (i) if such transfer, exchange or conversion
would be inconsistent with the requirements of the Communications Act and FCC
Regulations and (ii) as set forth in the Stockholders Agreement. For purposes of
this section, "Fair Market Value" shall mean an amount determined by taking into
account the following: (a) that the fair market value of the Company Common
Stock shall be the average of the last reported sales prices of the Company
Common Stock on each of the 20 trading days immediately preceding the relevant
date as reported on any exchange or quotation system over which the Company
Common Stock may be traded and (b) if the Company Common Stock is not then
traded over any exchange or quotation system, then the fair market value of the
Company Common Stock shall be the fair market value of such class of capital
stock on the relevant date as determined by an investment banking firm of
recognized national standing chosen in good faith by the Board of Directors.
9.2 Indemnification.
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(a) Subject to the limitations set forth in Section 9.3 and
elsewhere herein, the Company shall indemnify, save and keep CTHB and its
successors and permitted assigns (each a "Council Tree Indemnitee"), harmless
against and from any reduction in the value of CTHB's indirect investment in the
Company (the "Council Tree Portion") to the extent sustained or incurred as a
result of or arising out of any inaccuracy in or breach of any representation
and warranty made by the Company in Sections 4.4, 4.5, 4.6 or 4.7 or in the
Schedules relating thereto.
(b) Subject to the limitations set forth in Section 9.3 and
elsewhere herein, the Company shall indemnify, save and keep each of Bastion,
BCF, Liberty, SPE and BV Capital and their successors and permitted assigns
(each an "Original Indemnitee"), harmless against and from any reduction in such
Party's investment, direct or indirect, in the Company (the "Original Indemnitee
Portion") to the extent sustained or incurred as a result of or arising out of
any inaccuracy in or breach of any representation and warranty made by Council
Tree to Bastion, BCF, Liberty, SPE and BV Capital in Article 5 or in the
Schedules related thereto.
9.3 Limitations on Indemnification
(a) A claim by a Council Tree Indemnitee or an Original
Indemnitee for indemnification under this Article 9 shall be ineffective unless
such Person delivers a written claim for indemnification within the survival
period specified in Section 10.2 applicable to the representation or warranty
that is the subject of such claim.
(b) Council Tree Indemnitees shall not be entitled to any
indemnification hereunder unless the consolidated equity value of the Company
and its Subsidiaries, taken together as a whole, is reduced (the "Article 4
Reduction in Value") to the extent and as a result of one or more inaccuracies
in or breaches of the representations and warranties indicated in Section 9.2(a)
in an aggregate amount in excess of $50 million. If the Article 4 Reduction in
Value is greater than $50 million, Council Tree Indemnitees shall only be
entitled to indemnification pursuant to this Article 9 for 16.6% of the amount
(up to $100 million of any Article 4 Reduction Value) in excess of $50 million.
(c) Original Indemnitees shall not be entitled to any
indemnification hereunder unless the consolidated equity value of the Company
and
29
its Subsidiaries, taken together as a whole, is reduced (the "Article 5
Reduction in Value") to the extent and as a result of one or more inaccuracies
in or breaches of any representations and warranties indicated in Section 9.2(b)
in an aggregate amount in excess of $.7 million. If the Article 5 Reduction in
Value is greater than $.7 million, Original Indemnitees shall only be entitled
to indemnification pursuant to this Article 9 for 83.4% of the amount (up to
$1.4 million of any Article 5 Reduction Value) in excess of $ .7 million.
(d) The sole and exclusive remedies of the Parties with respect
to any inaccuracy in or breach of any representation and warranty made by the
Company in Article 4 or Council Tree in Article 5 of this Agreement shall be
pursuant to this Article 9; provided that nothing herein shall limit the rights
of any Party to seek any relief in equity or limit in any way any Party's
remedies in respect of fraud by another Party in connection herewith or in
connection with the other provisions of this Agreement or the Transactions.
9.4 Procedure for Indemnification. If any Person shall claim
indemnification (the "Indemnified Party") hereunder for any claim, the
Indemnified Party shall promptly give written notice to the Company of the
nature and amount of the claim, including the Indemnified Party's estimate of
the amount of the Article 4 Reduction in Value or Article 5 Reduction in Value,
as the case may be. Within 15 Business Days after receipt of the notice by the
Company pursuant to the preceding sentence, the Company shall notify the
Indemnified Party whether or not it disagrees with the proposed Article 4
Reduction in Value or Article 5 Reduction in Value. To the extent the Parties
disagree on the amount of the Article 4 Reduction in Value or Article 5
Reduction in Value, the Parties shall negotiate in good faith to determine the
appropriate Article 4 Reduction in Value or Article 5 Reduction in Value, if
any. In the event the Parties have not reached agreement within 45 Business Days
after receipt of the notice by the Company pursuant to the first sentence of
this paragraph, the determination of the Article 4 Reduction in Value or the
Article 5 Reduction in Value, if any, shall be submitted to binding arbitration
in Los Angeles, California according to the rules and procedures of the American
Arbitration Association. Such arbitrator shall be required to construe and
enforce the express terms and conditions of this Agreement and shall not be
empowered to enlarge, expand or imply terms or conditions into this Agreement,
absent the mutual written agreement of the Parties. To the extent the
determination of the Article 4 Reduction in Value or Article 5 Reduction in
Value is submitted to an arbitrator as set forth above, all claims with respect
to indemnification must be submitted to the arbitrator before a final
determination may be made. Judgment upon any determination may be entered in
30
any court of competent jurisdiction.
ARTICLE 10
GENERAL
10.1 Efforts to Proceed Promptly. Each of the Parties agrees to use
its respective best efforts to take all such action (including executing such
other agreements and instruments, and making such filings) as may be reasonably
necessary or appropriate in order to effectuate the Transactions and the
financing set forth in Section 6.9(a)(i) and (a)(ii), as promptly as
practicable. Each Party to this Agreement agrees to execute, acknowledge,
deliver, file and record such further certificates, amendments, instruments,
agreements and documents and to do all such other acts and things, as may be
required by law or as, in the reasonable opinion of the Parties, may be
necessary or advisable to carry out the intent and purposes of this Agreement.
Each Party agrees that it will act diligently and in good faith to carry out its
respective obligations under this Agreement. Notwithstanding the foregoing,
other than as specifically set forth herein and in the other Transaction
Documents, no Party (nor any of its members, partners, stockholders or
affiliates) will be required to modify any internal relationship or relationship
with any of such Party's members, partners, stockholders or affiliates, or
divest or limit its rights or its members', stockholders', partners', or
affiliates' rights with respect to any assets, agree to any restriction of its
activities or modify any transaction in order to obtain the approval of any
regulatory agency in order to consummate the Transactions and the financing set
forth in Section 6.9(a)(i) and (a)(ii). Each Party shall consult with the other
Parties regarding the nature of any discussions with regulatory authorities and
keep each other informed of such discussions.
10.2 Survival of Representations and Warranties. The representations
and warranties contained in this Agreement or in any other instrument delivered
in connection herewith shall terminate at, and shall not survive or have any
force or effect after the Closing, except that all representations and
warranties of the Company contained in Sections 4.4 through 4.7 and all
representations and warranties of Council Tree contained in Article 5 shall
survive the Closing and continue in full force and effect for a period of 12
months from the Closing and all representations and warranties of the
Contributors and the CT Parties contained in Article 3 shall survive the Closing
and continue in full force and effect until sixty (60) days after the expiration
of the statute of limitations applicable to the subject thereof.
31
10.3 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed properly delivered, given and received (i) if
hand delivered, when delivered, (ii) if sent by overnight courier, on the first
business day after being sent by a nationally recognized overnight delivery
service, (iii) if sent by facsimile, when receipt is confirmed by the person to
whom the facsimile was sent, or (iv) if mailed by registered or certified mail
(return receipt requested), upon receipt by the sender of the return receipt so
requested, in any case to the Parties at the following addresses or at such
other address for a Party as shall be specified by like notice:
(a) If to Bastion or BCF to:
Bastion Capital Fund LP
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Irell & Xxxxxxx LLP
1800 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
(b) If to BV Capital to:
Xxxx-Xxxxxxxxxx Capital, LLC
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Irell & Xxxxxxx LLP
1800 Avenue of the Stars, Xxxxx 000
00
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
(c) If to Council Tree to:
Council Tree Hispanic Broadcasters II, L.L.C.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxxxxx & Xxxxx
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
(d) If to Liberty to:
Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
33
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
(e) If to SPE to:
Sony Pictures Entertainment Inc.
00000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Sony Pictures Entertainment Inc.
00000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
10.4 Specific Enforcement. The Parties recognize and agree that, in
the event that any of the provisions of this Agreement are not performed in
accordance with their specific terms or otherwise are breached, immediate
irreparable injury would be caused for which there is no adequate remedy at law.
It is accordingly agreed that in the event of a failure by a Party to perform
its obligations under this Agreement, the nonbreaching Parties shall be entitled
to specific performance through injunctive relief to prevent breaches of the
provisions of this Agreement and to enforce specifically the provisions of this
Agreement in any action instituted in any court having subject matter
jurisdiction, in addition to any other remedy to which such Parties may be
entitled, at law or in equity.
10.5 Interpretation. When a reference is made in this Agreement to a
Section, Schedule or Exhibit, such reference shall be to a Section, Schedule or
Exhibit of this Agreement unless otherwise indicated. When a reference is made
in this Agreement to a specific Schedule, such reference shall be deemed to
include, to the extent applicable, all the other Schedules; provided, however,
that the relevance of the disclosure item on such specific Schedule to the other
Schedules is reasonably
34
clear. The table of contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When the words "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." When any representation or warranty in Article 3 is made
to the knowledge of Bastion or BCF, such term shall mean only to the actual
knowledge of Xxxxxxxxx Xxxx or Xxxxxx Xxxxxxxxxx (after such individual has made
an inquiry of the employees of Bastion, BCF or any of their Subsidiaries who
would reasonably be expected to have knowledge of such matters to which such
representation relates). When any representation or warranty in Article 4 is
made to the knowledge of the Company, such term shall mean only to the actual
knowledge of the Chief Executive Officer, Chief Operating Officer and Chief
Financial Officer of the Company as of the date the Transactions are consummated
or, to the extent such officers do not exist, a comparable officer of the
Company (after such officer has made an inquiry of the employees of the Company,
Telemundo Holdings, Network Co. or any of their Subsidiaries who would
reasonably be expected to have knowledge of such matters to which such
representation relates). When any representation or warranty in Article 5 is
made to the knowledge of Council Tree, such term shall mean only to the actual
knowledge of the Chief Executive Officer, Chief Operating Officer and Chief
Financial Officer of CTHB or to the extent such officers do not exist, a
comparable officer of CTHB (after such officer has made an inquiry of the
employees of CTHB, CTC and CTCV who would reasonably be expected to have
knowledge of such matters to which such representation relates). All accounting
terms not defined in this Agreement shall have the meanings determined by
generally accepted accounting principles as of the date of this Agreement. All
capitalized terms defined herein are equally applicable to both the singular and
plural forms of such terms.
10.6 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
10.7 Assignment. This Agreement shall not be assignable by any Party
other than (i) with respect to Bastion and BCF, to a Bastion Controlled
Affiliate (as that term is defined in the Stockholders Agreement), (ii) with
respect to
35
BV Capital, to a BV Capital Controlled Affiliate (as that term is defined in the
Stockholders Agreement), (iii) with respect to SPE and Liberty, to a Controlled
Affiliate (as that term is defined in the Stockholders Agreement) and (iv) with
respect to CTHB, to a Council Tree Entity (as that term is defined in the
Stockholders Agreement), without the prior written consent of each other Party.
Notwithstanding anything to the contrary herein, no assignment pursuant to this
section shall release any Party from its respective obligations under this
Agreement unless expressly released from such obligations by each other Party.
Assignment shall be subject to continued compliance with FCC Regulations as
contemplated herein.
10.8 Entire Agreement. This Agreement, the Schedules and Exhibits
attached to this Agreement, and any documents delivered hereunder constitute the
entire agreement between the Parties and supersede any prior agreement
(including, the Letter Agreement and the Term Sheet) or understanding between
the Parties with respect to the subject matter hereof. Except as specifically
set forth herein, nothing in this Agreement shall constitute a waiver, amendment
or termination of the terms of any agreement.
10.9 Amendment; Waiver. Except as provided otherwise herein, this
Agreement may not be amended nor may any rights hereunder be waived except by an
instrument in writing signed by the Parties.
10.10 Expenses. Each Party shall pay all of its own legal and
accounting fees and other expenses incurred in connection with the negotiation,
preparation and execution of the Transaction Documents and any agreements
associated therewith; provided that in the event this Agreement is terminated
pursuant to Section 8.2 hereof, Liberty, SPE, BCF and Bastion shall cause
Telemundo Holdings to reimburse Council Tree's reasonable documented
out-of-pocket expenses (including expenses incurred in making required HSR
filings) in an aggregate amount not to exceed $1.5 million).
10.11 Counterparts. This Agreement may be executed in one or more
counterpart copies and by facsimile; each of which shall be considered an
original, but together shall constitute one agreement.
10.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without regard
to the conflicts of law principles thereof.
36
10.13 Public Announcement. So long as this Agreement is in effect,
each Party agrees to consult with the other Parties before issuing any press
release or otherwise making any public statement with respect to the
Transactions, the Company, Telemundo Holdings or Network Co.; and no Party (or
their respective affiliates) will issue any press release or make any such
public statement with respect to the Transactions, the Company, Telemundo
Holdings or Network Co. without the consent of the other Parties, except as may
be required by law (including disclosure required in public filings required to
be made by the Parties or any affiliates of the Parties) or the requirements of
any securities exchange. To the extent a Party is required by law to make such
disclosure, such Party shall, to the extent possible within the applicable time
constraints, give the other Parties reasonable, actual prior notice of such
disclosure and an opportunity to review such disclosure and shall use its best
efforts to agree with the other Parties on the form and content of such
disclosure.
10.14 No Third Party Beneficiaries. Nothing contained in this
Agreement is intended to or shall confer upon any person other than the Parties
(or their Permitted Assignees) any rights or remedies hereunder.
37
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date first set forth above.
BASTION CAPITAL FUND, L.P.
By: BASTION PARTNERS, L.P.,
Its General Partner
By: BRON CORP.,
Its Co-general Partner
By: /s/ Xxxxxxxxx Xxxx
--------------------------------
Xxxxxxxxx Xxxx
President
By: XXXXXXXXXX INVESTMENTS, INC.,
Its Co-general Partner
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxxxx
President
BCF MEDIA, LLC
By: /s/ Xxxxxxxxx Xxxx
-----------------------------------------
Xxxxxxxxx Xxxx, its Manager
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxxxx, its Manager
By: BASTION CAPITAL FUND, L.P.,
its Sole Member
By: BASTION PARTNERS, L.P.,
Its General Partner
By: BRON CORP.,
Its Co-general Partner
By: /s/ Xxxxxxxxx Xxxx
--------------------------------
Xxxxxxxxx Xxxx
President
By: XXXXXXXXXX INVESTMENTS, INC.,
Its Co-general Partner
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxxx
President
XXXX-XXXXXXXXXX CAPITAL, LLC
By: /s/ Xxxxxxxxx Xxxx
--------------------------------
Xxxxxxxxx Xxxx, its Manager
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxxxx, its Manager
COUNCIL TREE COMMUNICATIONS, LLC
/s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
COUNCIL TREE COMMUNICATIONS V, L.L.C.
/s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
COUNCIL TREE HISPANIC BROADCASTERS II,
L.L.C.
/s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
LIBERTY MEDIA CORPORATION
/s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
39
SONY PICTURES ENTERTAINMENT INC.
/s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Assistant Secretary
TELEMUNDO COMMUNICATIONS GROUP, INC.
/s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
