SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
TELEMUNDO GROUP, INC.
(Name of Issuer)
Common Stock, $.01 par value per share
(Title of Class of Securities)
87943M306
87943M405
(CUSIP Number of Class of Securities)
Guillermo Bron
Bastion Capital Fund, L.P.
1999 Avenue of the Stars
Los Angeles, California 90067
(310) 277-7371
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
with a copy to:
Michael A. Woronoff, Esq.
Skadden, Arps, Slate, Meagher & Flom
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071-3144
(213) 687-5000
December 30, 1994
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Statement because of Rule 13d-1(b)(3) or (4), check the
following: ( )
Check the following box if a fee is being paid with this
Statement: (X )
CUSIP No. 87943M306
CUSIP No. 87943M405 13D
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
BASTION CAPITAL FUND, L.P.
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X )**
(3) SEC USE ONLY
(4) SOURCE OF FUNDS*
WC
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
: (7) SOLE VOTING POWER
:
: -0-**
:
NUMBER OF SHARES BENEFICIALLY : (8) SHARED VOTING
OWNED BY EACH REPORTING : 1,257,684**
PERSON WITH :
: (9) SOLE DISPOSITIVE
: 1,257,684**
:
:(10) SHARED DISPOSITIVE
: -0-
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,257,684**
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 (X )**
EXCLUDES CERTAIN SHARES*
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
12.6%**
(14) TYPE OF REPORTING PERSON*
PN
____________________
* SEE INSTRUCTIONS BEFORE FILLING OUT!
** SEE ITEMS 4 AND 5
ITEM 1. SECURITY AND ISSUER
This Statement on Schedule 13D (the "Schedule 13D")
relates to shares of Common Stock, $.01 par value per share (the
"Shares"), of Telemundo Group, Inc., a Delaware corporation (the
"Issuer"). The Common Stock of the Issuer consists of two
series: Series A ("Series A Shares") and Series B ("Series B
Shares"). The principal executive offices of the Issuer are
located at 1740 Broadway, New York, New York 10019.
The information set forth in the Exhibits attached
hereto is hereby expressly incorporated herein by reference and
the response to each item of this statement is qualified in its
entirety by the provisions of such Exhibits.
ITEM 2. IDENTITY AND BACKGROUND
This statement is being filed by Bastion Capital Fund,
L.P., a Delaware limited partnership ("Bastion"). Bastion's
principal business is to make and hold investments. The sole
general partner of Bastion is Bastion Partners, L.P., a Delaware
limited partnership ("BP"). BP's principal business is to act as
general partner of Bastion.
The only general partners of BP are Bron Corp., a
Delaware corporation ("BC"), and Villanueva Investments, Inc., a
Delaware corporation ("VII"). The principal businesses of BC and
VII are to act as general partners of BP.
The sole stockholder of voting stock and the sole
director of BC is Guillermo Bron. Mr. Bron is the President,
Chief Executive Officer, Chief Financial Officer and Secretary of
BC. BC has no other executive officers.
Daniel D. Villanueva is the sole director of VII.
Daniel D. Villanueva is the President, Chief Executive Officer,
Chief Financial Officer and Secretary of VII and James J.
Villanueva is the Vice President and Assistant Secretary of VII.
VII has no other executive officers. The sole stockholder of VII
is the Daniel Villanueva Living Trust (the "DVL Trust"), a trust
created under the laws of the state of California. The co-
trustees of the DVL Trust are Daniel D. Villanueva and Myrna E.
Villanueva.
Guillermo Bron and Daniel D. Villanueva are the
managing directors of Bastion Capital Corp. James J. Villanueva
is Vice President of Bastion Capital Corp. Bastion Capital
Corp.'s principal business is to manage the affairs of Bastion
pursuant to a management agreement. Myrna E. Villanueva is a
homemaker.
The business address of each of Bastion, BP, BC, VII,
the DVL Trust, Guillermo Bron, Daniel D. Villanueva, Myrna E.
Villanueva and James J. Villanueva is 1999 Avenue of the Stars,
Los Angeles, California 90067.
Neither Bastion nor any other person disclosed in
response to this Item 2 has, during the last five years, been (i)
convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) or (ii) a party to a civil proceeding or
subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or maintaining activities subject
to, Federal or state securities laws or finding any violation
with respect to such laws.
Each of Guillermo Bron, Daniel D. Villanueva, Myrna E.
Villanueva and James J. Villanueva is a citizen of the United
States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The aggregate amount of funds required by Bastion to
purchase the 1,257,684 Shares beneficially owned by it is
$13,818,153.
Upon consummation on December 30, 1994 of the Second
Amended Chapter 11 Plan of Reorganization of the Issuer under
Chapter 11 of the Bankruptcy Code, Title 11 of the United States
Code, filed by the Issuer and administered as Case No. 93-B-42967
(JLG) (the "Plan of Reorganization"), pursuant to a purchase
agreement and a trust agreement, copies of which are attached
hereto as Exhibits 1 and 2, respectively, Bastion became the
beneficial owner of 179,497 Series A Shares and 882,687 Series B
Shares. The purchase price for such Shares is $10.00 per Share
(which purchase price is expected to be paid on or about January
10, 1995).
Pursuant to a prior arrangement, at such time as the
National Association of Securities Dealers, Inc. declared regular
way trading in the Shares, Bastion became unconditionally
obligated to purchase an aggregate of 195,500 Series A Shares at
an average purchase price of approximately $16.35 per Share
(which purchase price is expected to be paid on or about January
10, 1995).
The funds to be used to purchase such Shares will be
obtained from the working capital of Bastion.
ITEM 4. PURPOSE OF TRANSACTION.
Bastion holds the Shares to which this Statement on
Schedule 13D relates for purposes of investment. Depending upon
its evaluations of the Issuer's business and prospects, future
development, market conditions and other factors, Bastion may,
from time to time, purchase additional Shares, or sell or cause
to be sold all or a portion of the Shares over which Bastion
exercises voting and dispositive power, either in open market or
privately negotiated transactions or otherwise.
Bastion has entered into a Shareholders Agreement,
dated as of December 20, 1994 (the "Shareholders Agreement"), by
and among Bastion, TLMD Partners II, L.L.C., a Delaware limited
liability company ("TLMD"), Leon Black ("Black"), Hernandez
Partners, a California general partnership ("Hernandez"), The
Value Realization Fund, L.P., a Delaware limited partnership
("Value"), and GRS Partners II, an Illinois partnership ("GRS")
(TLMD, Black, Hernandez, Value and GRS are referred to herein as
the "Other Shareholders"), pursuant to which each of the parties
thereto has agreed, during the term of the Shareholders Agreement
and subject to the provisions thereof (including the continued
ownership of a specified minimum number of Series B Shares, as
set forth in the Shareholders Agreement), among other things, to
use its reasonable best efforts to cause a nominee of Bastion,
two nominees of TLMD, Black (or his nominee) and a nominee of
Hernandez to be elected to the Board of Directors of the Issuer.
Pursuant to the Shareholders Agreement, Bastion and the
Other Shareholders have agreed that Shares Beneficially Owned (as
defined in the Shareholders Agreement) by each of them will be
voted by a Voting Committee (the "Voting Committee") comprised of
three members, one of which will be appointed by Bastion, one of
which will be appointed by TLMD, and one of which is an
Independent member (as defined in the Shareholders Agreement).
The parties to the Shareholders Agreement have appointed the
Voting Committee as their attorney-in-fact and proxy to vote all
Shares owned by such parties as to which a vote of the
shareholders is required. As of the date of this filing, Bastion
and the Other Shareholders, based on information provided to
Bastion by the Other Shareholders, own an aggregate of
approximately 54.9% of the Series B Shares outstanding and
approximately 36.1% of the total Shares (Series A and Series B)
outstanding. The Issuer's Restated Certificate of Incorporation
(the "Certificate") provides that the Series B Shares, while
outstanding, shall be entitled to elect a majority of the Board
of Directors of the Issuer. As a consequence of the foregoing,
the Series B Shares presently owned by Bastion and the Other
Shareholders and voted by the Voting Committee are expected to
have the ability to cause the nominees of each of Bastion, TLMD,
Black and Hernandez to be elected to the Board of Directors of
the Issuer and may give Bastion the power to control or influence
the Issuer, which power may be exercised from time to time.
Pursuant to the provisions of the Certificate, Series B Shares
will automatically convert to Series A Shares upon the Transfer
(as defined in the Certificate) of such Series B Shares other
than to a Permitted Transferee (as defined in the Certificate) or
upon the earlier to occur of December 30, 1999 or such time as
there are less than 2,000,000 Series B Shares issued and
outstanding.
As a result of the provisions of the Shareholders
Agreement relating to the nomination and election of directors
and the acquisition and disposition of Shares set forth therein,
Bastion and the Other Shareholders may be deemed to constitute a
"group" within the meaning of Rule 13d-5 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Pursuant
to Rule 13d-4, neither the filing of this Statement nor any of
its contents shall be construed as an admission that Bastion or
any other person named herein is, for the purposes of Section
13(d) or 13(g) of the Exchange Act (or pursuant to Rule 16a-
1(a)(1) thereunder), the beneficial owner of any Shares held by
other members of any such group.
Except as disclosed in this Item 4, Bastion has no
current plans or proposals which relate to or would result in any
of the events described in Items (a) through (j) of the
instruction to Item 4 of Schedule 13D.
The above discussion is qualified in its entirety by
reference to the Shareholders Agreement. A copy of the
Shareholders Agreement is attached hereto as Exhibit 3 and is
incorporated herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Note: The actual number of Shares and the
corresponding percentages reported in this statement are
approximate numbers and percentages, due to the fact that
certificates representing the Shares have not yet been delivered
by the exchange agent for the Plan of Reorganization. Any
differences between the actual numbers and percentages and the
numbers and percentages reported herein are expected to be
immaterial.
(a) Bastion is the beneficial owner of (i) the 374,997
Series A Shares owned by it (approximately 8.5% of the Series A
Shares outstanding) and (ii) the 882,687 Series B Shares owned by
it (approximately 15.7% of the Series B Shares outstanding).
The 1,257,684 Shares owned by Bastion represent approximately
12.6% of the total Shares outstanding.
By reason of the relationships described in Item 4
above, Bastion and the Other Shareholders may be deemed to
constitute a "group" within the meaning of Rule 13d-5 under the
Securities Exchange Act. Bastion has been informed that TLMD
beneficially owns 1,550,464 Series B Shares, Black beneficially
owns 200,000 Series B Shares, Hernandez beneficially owns 49,998
Series A Shares and 450,001 Series B Shares, GRS beneficially
owns 33,333 Series A Shares and Value beneficially owns 66,666
Series A Shares, representing, in the aggregate, approximately
3.4% of the Series A Shares outstanding, 39.2% of the Series B
Shares outstanding and 23.5% of the total Shares outstanding.
The foregoing percentages are based upon Bastion's
understanding that 4,388,394 Series A Shares and 5,611,606 Series
B Shares are outstanding out of an aggregate of 10,000,000 Shares
outstanding (without giving effect to the exercise of warrants,
options or similar rights). (Reference is made to such
Statements on Schedule 13D as have been or may be filed with the
Securities and Exchange Commission by the Other Shareholders for
information regarding the Other Shareholders and their respective
ownership of Shares.)
(b) Except as discussed in Items 4 and 6, Bastion has
sole voting and dispositive power with respect to the Shares
owned by it. Each of (i) BP, by virtue of being the sole general
partner of Bastion, (ii) BC and VII, by virtue of being the sole
general partners of BP, (iii) Guillermo Bron and the DVL Trust,
by virtue of being the sole stockholders of voting stock of BC
and VII, respectively, and (iv) Daniel D. Villanueva and Myrna E.
Villanueva, by virtue of being co-trustees of the DVL Trust, for
the purposes of Section 13(d) of the Exchange Act, may be deemed
to share voting and dispositive power with respect to the
1,257,685 Shares owned by Bastion. By virtue of the provisions
of the Shareholders Agreement described in Item 4, Bastion and
any group that may be deemed formed thereunder may be deemed to
share voting power with respect to the 3,608,146 Shares owned by
Bastion and the Other Shareholders in the aggregate. Pursuant to
Rule 13d-4 under the Exchange Act, neither the filing of this
Statement nor any of its contents shall be construed as an
admission that Bastion or any other person named herein is, for
the purposes of Section 13(d) or 13(g) of the Exchange Act (or
pursuant to Rule 16a-1(a)(1) thereunder), the beneficial owner of
any Shares held by other members of any such group.
(c) Except as set forth above, no transactions in
Shares were effected in the past 60 days by Bastion or any other
person or entity disclosed in Item 2.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
The responses to Items 3 and 4 are incorporated herein
by this reference.
By letter, dated December 30, 1994 (the "Letter"), the
Issuer agreed to nominate (or to use its reasonable best efforts
to cause the nominating committee of the Board of Directors of
the Issuer to nominate) Guillermo Bron to the Board of Directors
of the Issuer so long as Bastion is the beneficial owner of at
least 278,944 Series B Shares. The foregoing is qualified in its
entirety by reference to the Letter. A copy of the Letter is
attached hereto as Exhibit 4 and is incorporated herein by
reference.
Except as set forth above and as described in Items 3
and 4, neither Bastion nor any other person or entity disclosed
in Item 2 has any contract, arrangement, understanding, or
relationship (legal or otherwise) with any person with respect to
any securities of the Issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 Amended Agreement to Purchase Securities,
dated as of July 19, 1994, as amended as of
December 20, 1994, by and between Bastion and
TLMD.
Exhibit 2 Trust Agreement, dated as of December 20,
1994, by and among Michael D. Weiner, as
trustee, Bastion and TLMD.
Exhibit 3 Shareholders Agreement, dated as of December
20, 1994, by and among Bastion, TLMD, Black,
Hernandez, Value and GRS.
Exhibit 4 Letter, dated December 30, 1994, from the
Issuer to Bastion.
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
Dated: January 9, 1995
BASTION CAPITAL FUND, L.P.
By: Bastion Partners, L.P.,
its general partner
By: Bron Corp.,
its general partner
By: /s/ Guillermo Bron
Guillermo Bron
President
By: Villanueva Investments, Inc.,
its general partner
By: /s/ Daniel D. Villanueva
Daniel D. Villanueva
President
EXHIBIT INDEX
Exhibit 1 Amended Agreement to Purchase
Securities, dated as of July 19, 1994,
as amended as of December 20, 1994, by
and between Bastion and TLMD.
Exhibit 2 Trust Agreement, dated as of December
20, 1994, by and among Michael D.
Weiner, as trustee, Bastion and TLMD.
Exhibit 3 Shareholders Agreement, dated as of
December 20, 1994, by and among Bastion,
TLMD, Black, Hernandez, Value and GRS.
Exhibit 4 Letter, dated December 30, 1994, from
the Issuer to Bastion.
EXHIBIT 1
AMENDED AGREEMENT TO PURCHASE SECURITIES
THIS AMENDED AGREEMENT TO PURCHASE SECURITIES (this
"Agreement"), dated as of July 19, 1994, as amended as of
December 20, 1994, is by and between Bastion Capital Fund L.P., a
Delaware limited partnership (" Purchaser"), and TLMD Partners
II, L.L.C., a Delaware limited liability company ("Seller").
Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Second Amended Disclosure
Statement Pursuant to Section 1125 of the Bankruptcy Code of
Telemundo Group, Inc. dated April 29, 1994.
RECITALS:
A. On or about June 8, 1993 (the "Petition Date"),
Telemundo Group, Inc. (the "Debtor") filed a petition for relief
under Chapter 11 of Title 11 of the United States Code, as
amended (the "Bankruptcy Code"), with the United States
Bankruptcy Court for the Southern District of New York,
commencing Chapter 11 case No. 93-B-42967(JLG) (the "Case").
B. Seller will be on the Transfer Date (defined below) the
owner of at least $19,777,752 principal amount of 1992 Zero
Coupon Notes, at least $11,720,746 principal amount of 1993 Zero
Coupon Notes and at least $3,235,345 principal amount of 13 %
Debentures.
C. A proof of claim in the Case has been filed with
respect to the Zero Coupon Notes and the 13 % Debentures owned by
Seller.
D. Seller desires to sell, transfer, and assign to
Purchaser, and Purchaser desires to purchase from Seller, all of
Seller's right, title and interest in and to the Series A Common
Stock and the Series B Common Stock to be issued upon
consummation of the Plan (the "Distribution Stock") in respect of
(i) (x) $19,777,752 principal amount of 1992 Zero Coupon Notes,
(y) $11,720,746 principal amount of 1993 Zero Coupon Notes and
(z) 3,235,345 principal amount 13 % Debentures (collectively, the
" Transferred Securities") and (ii) the related Zero Coupon Note
Claims and 13 % Debenture Claims (collectively, the "Transferred
Claims"), upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises herein
contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. ESTABLISHMENT OF TRUST. Contemporaneously
with the execution of this Agreement, (i) Seller and Purchaser
will cause a trust (the "Trust") to be established in accordance
with the provisions of a Trust Agreement in the form attached
hereto as Exhibit A (the "Trust Agreement"), (ii) each of Seller
and Purchaser shall execute the Trust Agreement and (iii) Seller
shall cause the Transferred Claims and Transferred Securities to
be transferred to the Trust (the date of such transfer, the
"Transfer Date"), to be held and distributed in accordance with
the Trust Agreement.
SECTION 2. TRANSACTIONS AT CLOSING. Seller and
Purchaser agree that, at the Closing, subject to satisfaction or
waiver of all the conditions contained herein, and relying on the
representations, warranties and agreements contained herein:
SECTION 2.01 PURCHASE PRICE. The purchase price (the
" Purchase Price") payable by Purchaser for the Distribution
Stock shall be an amount equal to (x) $10.00 per share multiplied
by (y) the number of shares of Distribution Stock; provided that
if more than 10 million shares of Common Stock are issued
pursuant to the Plan the parties will negotiate in good faith to
adjust such amounts.
SECTION 2.02 PAYMENT OF PURCHASE PRICE AND RELEASE OF
DISTRIBUTION STOCK. (a) At the Closing on the Closing Date
(defined below), Purchaser shall pay to Seller in cash by wire
transfer in immediately available funds, to such account as
Seller shall specify at least two business days in advance, an
amount equal to the Purchase Price and, in consideration thereof,
the Distribution Stock shall be released to Purchaser as
contemplated by the Trust Agreement and, upon such distribution,
such Distribution Stock shall be Beneficially Owned by Purchaser
free and clear of all Liens (defined below). Purchaser
acknowledges and agrees that Seller's obligation hereunder is to
deliver the Distribution Stock in such form as it is constituted
as a result of consummation of the Plan and the transactions
contemplated hereby.
(b) Notwithstanding the above, if at any time
prior to the Closing, Purchaser shall, in its reasonable
judgment, determine that it can deliver the Purchase Price to the
Trustee (to be held as contemplated by the Trust Agreement)
without (i) causing Purchaser to be considered a "fiduciary" for
purposes of the Employee Retirement Income Security Act of 1974
or (ii) causing Purchaser's assets to be considered "plan assets"
for purposes of the Department of Labor "plan asset regulations"
(either, an "ERISA Restriction"), it shall promptly notify Seller
(the "Ability to Fund Notice") and, thereafter, if and when
Seller shall give notice to Purchaser as contemplated in Recital
D of the amount of Sale Debentures, Purchaser will promptly
(unless an ERISA Restriction shall then be applicable, in which
case Seller's notice shall be deemed withdrawn and the provisions
of this paragraph (b) shall apply as if such Ability to Fund
Notice had not been given) deliver to the Trustee the estimated
Purchase Price (based upon the Estimated Distribution Shares (as
defined below) to be issued pursuant to the Plan) which shall be
held in accordance with the Trust Agreement. In such case, the
Purchaser's obligation to deliver the Purchase Price contemplated
by clause (a) shall be satisfied by the delivery by the Trustee
to Seller of that amount of the Cash Amount (as defined in the
Trust Agreement) as equals the Purchase Price as contemplated by
the Trust Agreement (and, if there is any shortfall due to the
number of shares of Distribution Stock being greater than the
Estimated Distribution Shares or a reduction in the value of the
Cash Amount resulting from investments made in accordance with
Section 5.10 of the Trust Agreement), delivery of the shortfall
by wire transfer as contemplated by clause (a) above). In the
event that Purchaser becomes obligated to deposit the Purchase
Price with the Trustee as contemplated above, in lieu thereof it
may establish a letter of credit (the "Letter of Credit") in
favor of the Trustee, in an amount equal to the estimated
Purchase Price, which supports the obligations of Bastion to pay
the Purchase Price as contemplated by this Agreement; provided,
that the terms and conditions of such Letter of Credit shall be
reasonably acceptable to Seller.
"Estimated Distribution Shares" means the number of shares of
Distribution Stock expected to be issuable pursuant to the Plan
in respect of the Transferred Securities and Transferred Claims.
Purchaser agrees that pending the Closing, it will from time to
time evaluate whether it can deliver the Purchase Price
contemplated by this clause (b) and notify Seller promptly upon
reaching a determination that it can so contribute such amounts.
SECTION 2.03 SHAREHOLDERS AGREEMENT. Purchaser and
Seller hereby agree to enter into a Shareholders Agreement
("Shareholders Agreement") in the form of Exhibit B,
contemporaneously with the execution of this Agreement.
SECTION 3. CLOSING. The closing of the purchase and sale
contemplated herein (the "Closing") shall take place at the
offices of Akin, Gump, Strauss, Hauer & Feld, L.L.P., 65 East
55th Street, 33rd Floor, New York, New York, 10022, or such other
place as Seller and Purchaser shall agree, on the seventh
business day after the Consummation Date (the "Closing Date");
provided, that the conditions to Closing in Section 4 have been
satisfied or waived. Except as otherwise described herein, all
of the actions contemplated to be taken pursuant to this
Agreement on the Closing Date and taken or occurring on such date
shall be deemed to have occurred simultaneously; provided, that
the sale of the Distribution Stock shall be deemed to have
occurred as of the date hereof, and to the extent one particular
action must have occurred before another, the parties agree that
such action will be deemed to have occurred prior to the other
such action.
SECTION 4. CONDITIONS.
SECTION 4.01 CONDITIONS PRECEDENT TO THE OBLIGATION
OF THE PARTIES TO CLOSE. The obligation of Purchaser and Seller
to close the transactions contemplated by Section 2.02(a) shall
be subject to the satisfaction or waiver of the following
conditions precedent:
(a) ENTRY OF CONFIRMATION ORDER. The
Confirmation Order shall have been signed by the Bankruptcy Court
and duly entered on the docket for the Chapter 11 Case by the
Clerk of the Bankruptcy Court in form and substance reasonably
satisfactory to the Debtor, the Creditors' Committee, the
Reliance Entities and the Blair Entities.
(b) NO STAY. There shall not be any stay in
effect with respect to the Confirmation Order.
(c) WAITING PERIOD. The applicable waiting
period (and any extension thereof) under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, relevant to the
transactions contemplated hereby or by the Plan shall have
terminated or expired.
(d) APPROVAL OF BLAIR SETTLEMENT AGREEMENT. The
Bankruptcy Court shall authorize and approve the Blair Settlement
Agreement by Final Order.
(e) APPROVAL OF O & Y SETTLEMENT. The Bankruptcy
Court shall authorize and approve the motion to assume and
assign, pursuant to section 365 of the Bankruptcy Code, the 1290
Lease and the 1290 Subleases and pay $7 million to the 1290
Landlord under the terms and conditions of the O & Y Letter
Agreement by Final Order.
(f) NO PROCEEDING OR LITIGATION. On the Closing
Date there shall be no effective injunction, writ, preliminary
restraining order or any order of any nature issued by a court or
governmental or other regulatory or administrative agency or
commission ("Governmental Bodies") (collectively, "Injunctions")
restraining or prohibiting the consummation of the transactions
contemplated by Section 2.02(a) or by the Plan.
(g) CONSENTS AND APPROVALS. All material
licenses, permits, consents, approvals and authorizations of all
third parties and Governmental Bodies (other than the FCC) shall
have been obtained which are required to consummate the
transactions contemplated by Section 2.02(a).
(h) FCC APPROVAL. The FCC shall have released an
order or a public notice approving the transfer of control or
assignment of the FCC licenses of the Debtor as contemplated by
the Plan (without regard to any opportunity for, or any pending,
rehearing or reconsideration or appeal), in form and substance
reasonably satisfactory to Seller.
SECTION 4.02 CONDITIONS PRECEDENT TO THE OBLIGATION
OF PURCHASER TO CLOSE. The obligation of Purchaser to close the
transactions contemplated by Section 2.02(a) shall be subject to
the satisfaction or waiver of the following further conditions
precedent:
(a) FULFILLMENT OF COVENANTS. Seller shall have
performed and complied in all material respects with all
covenants, obligations and agreements required by this Agreement
to be so performed or complied with by it at or prior to Closing.
(b) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller contained in this
Agreement shall be complete and accurate in all material respects
on the date when made and on the Closing Date to the same extent
as if made on such date.
(c) TRANSFER OF DISTRIBUTION STOCK. Trustee or
Seller shall deliver to Purchaser certificates representing the
Distribution Stock, duly endorsed in blank or accompanied by
stock powers duly executed in blank (or, at Seller's election,
the Trustee may in lieu thereof provide such other evidence of
the transfer of ownership of the Distribution Stock to Purchaser,
such evidence to be reasonably acceptable to Purchaser) .
(d) EXECUTION OF RELATED AGREEMENTS. (i) Seller
shall have executed the Shareholders Agreement, (ii) Guillermo
Bron shall have been named in the Confirmation Order as a
director of the initial Board of Directors of Reorganized
Telemundo, and (iii) Purchaser shall have received such
assurances as it shall reasonably request that the Company, at or
immediately after the Closing (but in any event on the Closing
Date), will execute a letter agreement in favor of Purchaser,
effective as of the Closing, in the form attached as Exhibit C,
it being agreed that a representation of Seller that the Series B
Directors have agreed to cause Reorganized Telemundo to execute
such letter agreement is sufficient assurance.
(e) The Plan shall not have been amended in any
manner which is adverse in any material respect to Purchaser (it
being agreed that any amendment which increases the number of
shares of Series B Common Stock to be issued on the Consummation
Date is considered materially adverse to Purchaser).
SECTION 4.03 CONDITIONS PRECEDENT TO THE OBLIGATION
OF SELLER TO CLOSE. The obligation of Seller to close the
transactions contemplated by Section 2.02(a) shall be subject to
the following further conditions precedent:
(a) FULFILLMENT OF COVENANTS. Purchaser shall
have performed and complied in all material respects with all of
its covenants, obligations and agreements required by this
Agreement to be so performed or complied with by it at or prior
to Closing.
(b) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser contained in this
Agreement shall be true, correct and accurate in all material
respects on the date when made and on the Closing Date to the
same extent as if made on such date.
(c) PAYMENT OF PURCHASE PRICE. Seller shall have
received the wire transfer of funds specified in Section 2.02(a)
or (b) of this Agreement.
(d) EXECUTION OF RELATED AGREEMENTS. Purchaser
shall have executed the Shareholders Agreement.
SECTION 4.04 OTHER CONDITIONS PRECEDENT. The
obligation of (i) Purchaser and Seller to execute the Trust
Agreement as contemplated by Section 1, (ii) Seller to transfer
the Transferred Claims and Transferred Securities to the Trust as
contemplated by Section 1, and (iii) Purchaser to deliver the
estimated Purchase Price to the Trust or provide the Letter of
Credit as contemplated by Section 2.02(b), as the case may be
(each of which is considered a separate obligation for purposes
of this Section), shall be subject to the condition that, at the
time such action is to be taken, there shall be no Injunctions
restraining or prohibiting the taking of such action; provided,
that if such an Injunction so restrains or prohibits such action,
the action shall be taken promptly after the Injunction shall no
longer act to restrain or prohibit such action.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to Purchaser, its
successors and assigns, that:
SECTION 5.01 DUE ORGANIZATION; AUTHORITY. Seller is
a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has
all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby.
SECTION 5.02 ENFORCEABILITY. This Agreement has been
duly authorized, executed and delivered by Seller and constitutes
the legal, valid and binding agreement of Seller, enforceable in
accordance with its terms.
SECTION 5.03 TITLE. On the Closing Date, Seller
(through the Trust) will be the Beneficial Owner of the
Transferred Securities and the Transferred Claims, except as
contemplated by this Agreement and the Plan. At the Closing,
Purchaser will (upon distribution of the Distribution Stock from
the Trust) receive the Distribution Stock free and clear of all
liens, charges, pledges, interests or other encumbrances
whatsoever, except for such liens, charges, pledges, interests or
other encumbrances arising from the status or actions of
Purchaser or as contemplated by this Agreement and the Plan
("Liens").
SECTION 5.04 NO CONFLICT. Seller's execution,
delivery, and performance of this Agreement will not require any
governmental, regulatory or third party consent (except as
contemplated by the Plan) and will not contravene or conflict
with (i) any law, statute, rule or regulation, judgment or order,
writ, injunction or decree which is binding upon Seller or any of
its properties or assets, (ii) any provisions of the
organizational documents of Seller, or (iii) any agreement or
undertaking to which Seller is a party or by which it or its
assets is otherwise bound except for consents, contraventions or
conflicts which would not have a material adverse effect on the
ability of Seller to deliver the Distribution Stock as
contemplated by Section 2.02 hereof or perform its obligations
under the Shareholders Agreement; provided, however, that no
representation is deemed made as to consents which may be
required by the FCC or any contravention or conflict arising
under the Federal Communications Act.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to Seller that:
SECTION 6.01 DUE ORGANIZATION; AUTHORITY. Purchaser
is a limited partnership duly organized, validly existing and in
good standing under the laws of Delaware, and has all requisite
partnership power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
SECTION 6.02 ENFORCEABILITY. This Agreement has been
duly authorized, executed and delivered by Purchaser (acting
through its general partner and such general partner's general
partner (collectively, the "General Partners")) and constitutes
the legal, valid and binding agreement of Purchaser, enforceable
in accordance with its terms.
SECTION 6.03 NO CONFLICT. Purchaser's execution,
delivery, and performance of this Agreement will not require any
governmental, regulatory or third party consent (except as
contemplated by the Plan) and will not contravene or conflict
with (i) any law, statute, rule or regulation, judgment or order,
writ, injunction or decree which is binding upon Purchaser or the
General Partners or any of their properties or assets, (ii) any
provisions of the organizational documents of Purchaser or the
General Partners, or (iii) any agreement or undertaking to which
Purchaser or any of the General Partners are a party or by which
any of them or their assets are otherwise bound except for
consents, contraventions or conflicts which would not have a
material adverse effect on the ability of Purchaser to deliver
the Purchase Price as contemplated by Section 2.02 or perform its
obligations under the Shareholders Agreement; provided, however,
that no representation is deemed made as to consents which may be
required by the FCC or any contravention or conflict arising
under the Federal Communications Act.
SECTION 6.04 INVESTMENT REPRESENTATIONS. (a)
Purchaser hereby acknowledges that Purchaser is aware that Seller
or its affiliates by reason of their relationship to Debtor may
have had access to certain information (the "Information") which
may be material regarding Debtor, its financial condition,
results of operations, management, projections and businesses.
Purchaser further agrees that Purchaser has conducted its own
investigation, to the extent that Purchaser has determined
necessary or desirable regarding Debtor, and that Purchaser has
determined to enter into and complete this transaction based on,
among other things, such investigation.
(b) Purchaser understands and represents that it
is purchasing the Distribution Stock for its own account and not
with a view to or for sale or distribution that would be in
violation of the Securities Act of 1933, as amended.
(c) Purchaser is an "accredited investor" as such
term is defined in Rule 501 of Regulation D under the Act, and
has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of
the acquisition of the Distribution Stock, and having had access
to, or having been furnished with, all such information as it has
considered necessary, has concluded that it is able to bear those
risks.
(d) Purchaser represents that the Distribution
Stock was not offered or sold to Purchaser by any form of general
solicitation or general advertising.
SECTION 7. CERTAIN COVENANTS.
(a) REASONABLE BEST EFFORTS. Subject to the
terms of this Agreement, each of Seller and Purchaser shall use
its reasonable best efforts to take, or cause to be taken, all
actions reasonably necessary, proper or advisable under
applicable law, including such additional actions as may be
reasonably requested by the other party hereto, to more fully
effectuate the transactions contemplated by this Agreement. In
the event at any time at or after Closing any further action is
necessary or desirable to carry out the purposes of this
Agreement, the parties hereto shall use their reasonable best
efforts to take such action.
(b) COSTS AND EXPENSES. Each of Seller and
Purchaser shall be solely responsible for all costs and expenses
(including legal expenses) incurred by it with respect to the
negotiation and preparation of this Agreement and the
transactions contemplated hereby.
(c) CERTAIN RIGHTS. The parties agree that
nothing contained herein shall in any way restrict the rights or
abilities of AIF II, L.P., Artemis SNC or Seller, or their
respective affiliates and agents, from taking any action any of
them deems necessary or appropriate with respect to the Plan or
the Case, including voting (or causing the Trustee to vote, if
applicable), the Zero Coupon Notes or 13 Debentures as any of
them may determine.
(d) BOARD REPRESENTATION. At or prior to the
Consummation Date, Seller will use its reasonable best efforts to
cause Guillermo Bron to be named as a director of the initial
Board of Reorganized Telemundo.
SECTION 8. TERMINATION.
(a) MUTUAL CONSENT. This Agreement may be
terminated at any time prior to the Closing by mutual consent of
the parties.
(b) OUTSIDE DATE. In the event that the Closing
shall not have occurred by December 31, 1994, then either Seller
or Purchaser, by written notice given in accordance with Section
9.01 to the other party, may terminate this Agreement and the
related agreements contemplated hereby (including, without
limitation, the Shareholders Agreement); provided, however, that
if neither party shall have delivered the notice contemplated
within 14 days after December 31, 1994, neither party shall have
the right to terminate this Agreement pursuant to this Section
8(b).
(c) In the event of termination of this Agreement
in accordance with its terms, the Shareholders Agreement, if
executed, shall terminate and the Transferred Claims, Transferred
Securities and proceeds thereon (including the Distribution
Stock) shall be returned to Seller.
SECTION 9. MISCELLANEOUS.
SECTION 9.01 NOTICES. All notices or other
communications required or permitted hereunder shall be
sufficiently given (i) if delivered personally, (ii) when
transmitted via telecopy to the telecopy number set forth below
(with hard copy following), or (iii) the day following the day on
which the same has been delivered prepaid to a national overnight
air courier service addressed as set forth below:
If to Purchaser:
Bastion Capital Fund, L.P.
Suite 2800
1999 Avenue of the Stars
Los Angeles, California 90067
Attention: Guillermo Bron
Telecopy: (310) 277-7582
with a copy to:
Michael A. Woronoff, Esq.
Skadden, Arps, Slate, Meagher & Flom
300 South Grand Avenue
Los Angeles, California 90071
Telecopier: (213) 687-5600
If to Seller:
c/o: Apollo Advisors, L.P.
1999 Avenue of the Stars
Suite 1900
Los Angeles, CA 90067
Attention: Pandora Pang
Telecopy: (310) 201-4198
with a copy to:
Patrick J. Dooley, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
65 East 55th Street
33rd Floor
New York, NY 10022
Telecopy: (212) 872-1002
or at such other addresses as Purchaser or Seller may specify in
writing to the other party from time to time.
SECTION 9.02 GOVERNING LAW. This Agreement and all
rights conferred and obligations imposed hereunder shall be
interpreted and construed in accordance with the laws and
internal judicial decisions of the State of Delaware, without
giving effect to the conflicts of laws rules thereof.
SECTION 9.03 ENTIRE AGREEMENT; COUNTERPARTS. This
Agreement (including the attachments hereto) (i) embodies the
entire agreement between the parties relating to the subject
matter hereof, supersedes all prior agreements and understandings
between such parties, if any, relating to the subject matter
hereof (including, without limitation, the Agreement to Purchase
Securities between the parties hereto, dated as of July 19, 1994,
and may be amended only by an instrument in writing executed
jointly by each party hereto, and (ii) may be executed in a
number of identical counterparts, each of which shall be deemed
an original for all purposes and all of which constitute,
collectively, one agreement; but in making proof of this
Agreement, it shall not be necessary to produce or account for
more than one such counterpart.
SECTION 9.04 ASSIGNMENT; SURVIVAL. The terms of this
Agreement shall be binding upon, and shall inure to the benefit
of, Seller, Purchaser, and their respective successors and
assigns. All representations, warranties, covenants and
agreements made herein shall survive the execution and delivery
of this Agreement and the purchase and sale of the Distribution
Stock. Seller shall have the right to assign, by written
instrument, its rights and obligations hereunder in whole or part
to one or more entities which, as of the Closing Date, will own
the Transferred Claims and Transferred Securities (including
Artemis America III and/or AIF II, L.P.), in which case such
entities will become bound by the terms of this Agreement (with
such immaterial changes as are necessary to reflect the
substitution of such other entity(s)), in which case Seller shall
cease to have any rights or obligations hereunder.
SECTION 9.05 CERTAIN LIMITATION. Neither party shall
be liable for damages to the other party or any third person as a
result of a breach or termination of this Agreement, except that
if a party willfully and in bad faith breaches any provision of
this Agreement, the other party shall be entitled to seek damages
resulting from such willful, bad faith breach, but in no event
shall a party be liable for consequential or punitive damages.
SECTION 9.06 HEADINGS. The captions and headings in
this Agreement are for convenience only and shall not affect the
interpretation or construction of this Agreement.
SECTION 9.07 ADDITIONAL SHARES. If Seller shall
request in writing, on or before the record date for
distributions to be received upon consummation of the
reorganization contemplated by the Plan, that Purchaser purchase
additional Zero Coupon Notes and Related Claims, such that
Purchaser will acquire up to 147,404 additional shares of Common
Stock (in addition to the shares of Common Stock contemplated to
be acquired hereby), then in such case such Notes and Claims will
immediately be transferred to the Trust and such Notes and Claims
will be treated as part of the Transferred Securities and
Transferred Claims, and the parties will make such modifications
to the agreements contemplated by this Agreement as may be
appropriate to reflect such changes.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed, each by its duly authorized officer or
representative, all on the day and year first above written.
TLMD PARTNERS II, L.L.C.
By: AIF II, L.P., its Manager
By: Apollo Advisors,
L.P., its
Managing General
Partner
By: Apollo Capital
Management, Inc.,
its General
Partner
By:
Name:
Title:
BASTION CAPITAL FUND L.P.
By: Bastion Partners
its general partner
By: Bron Corp.
its general partner
By:
Guillermo Bron
President
______________________________________________________________________
EXHIBIT 2
TRUST AGREEMENT
Trust Agreement dated as of December 20, 1994 by and among TLMD
Partners II, L.L.C., a Delaware limited liability company ("TLMD"), as
grantor and Beneficiary, Michael D. Weiner as Trustee, and Bastion
Capital Fund L.P., a Delaware limited partnership ("Bastion"), as
grantor and Beneficiary. The Trust shall be known as the TLMD Grantor
Trust, dated as of December 20, 1994.
ARTICLE 1
DEFINITIONS
For purposes of this Trust Agreement, the following terms shall
have the meanings indicated; capitalized terms used and not defined
herein shall have the meanings ascribed in the Disclosure Statement and
the Purchase Agreement:
"Beneficiaries" means, collectively, Bastion and TLMD.
"Cash Amount" shall mean the Cash Amount as defined in Article 3.
"Disclosure Statement" means the Second Amended Disclosure
Statement pursuant to Section 1125 of Chapter 11 of Title 11 of the
United States Code, as amended, of the Debtor dated April 29, 1994.
"Purchase Agreement" means the Agreement to Purchase Securities by
and between Bastion and TLMD and dated as of July 20, 1994 as amended
as of December 20, 1994.
"Reorganization" means the reorganization of the Debtor pursuant
to the Plan.
"Trust" means the trust created by this Trust Agreement.
"Trust Agreement" means this agreement.
"Trust Property" means all property from time to time held in
trust pursuant to the provisions of this Trust Agreement, including the
Cash Amount, the Transferred Securities and Transferred Claims, any
distributions with respect to the Transferred Securities and
Transferred Claims and any proceeds on, or derived from the disposition
of, any of the foregoing.
ARTICLE 2
PURPOSE OF THE TRUST
The purpose of the Trust is to acquire and hold the Trust Property for
the duration of the Trust for the exclusive benefit of the
Beneficiaries in accordance with the terms hereof and of the Purchase
Agreement.
ARTICLE 3
CONTRIBUTIONS
3.1 In accordance with the provisions of the Purchase Agreement, TLMD
will deliver to the Trustee, in trust, the Transferred Securities
and Transferred Claims. If required to do so in accordance with
the provisions of the Purchase Agreement, Bastion will deliver to
the Trustee, in trust, the amount required to be delivered
therewith; provided that, in lieu thereof, in accordance with the
provisions of the Purchase Agreement, Bastion may provide a letter
of credit (the "Letter of Credit") in an amount equal to the
estimated Purchase Price in favor of the Trustee supporting the
obligations of Bastion to pay the Purchase Price as contemplated
by the Purchase Agreement, with such terms and conditions as shall
be reasonably acceptable to TLMD.
3.2 Upon delivery of the Transferred Securities and Transferred Claims
to the Trustee (acknowledgement of receipt of which shall be given
to TLMD), the Trustee agrees to hold the Transferred Securities
and Transferred Claims in accordance with the terms hereof in
trust. In the event that Bastion delivers the estimated Purchase
Price or the Letter of Credit to the Trustee as contemplated by
the Purchase Agreement (acknowledgement of receipt of which shall
be given Bastion), the Trustee will hold such Purchase Price or
Letter of Credit and any amounts received in respect of
investments on such Purchase Price as permitted by Section 5.10
hereof (collectively, the "Cash Amount") in accordance with the
terms hereof in trust.
3.3 During the term of the Trust provided for herein Trustee will hold
title to the Transferred Securities and Transferred Claims for the
benefit of TLMD and TLMD will remain the beneficial owner of the
Transferred Securities and Transferred Claims; provided, that from
and upon the date of deposit of the Transferred Securities and
Transferred Claims in the Trust as contemplated hereby, the
Trustee shall be deemed to hold the Distribution Stock to be
received upon consummation of the Reorganization for the benefit
of Bastion, and Bastion shall (subject to satisfaction or waiver
of the conditions precedent to the delivery of the Distribution
Stock to Bastion provided in the Purchase Agreement and this Trust
Agreement) be deemed to beneficially own the Distribution Stock.
Notwithstanding the above, TLMD will retain all rights with
respect to the Transferred Securities and Transferred Claims to
vote or direct the voting of the Transferred Securities and
Transferred Claims. During the term of the Trust provided for
herein, Trustee will hold the Cash Amount for the benefit of
Bastion and Bastion will remain the beneficial owner of the Cash
Amount; provided that the Trustee shall hold the Cash Amount and
shall distribute the Cash Amount as contemplated by this Trust
Agreement.
ARTICLE 4
DISTRIBUTIONS
4.1 Any and all distributions received from the Debtor with respect to
the Trust Property and any proceeds from the disposition of the
Transferred Securities and Transferred Claims or of any other
Trust Property shall be distributed to the Beneficiaries in
accordance herewith. Upon satisfaction or waiver of the
conditions precedent to the delivery of the Distribution Stock to
Bastion as provided in the Purchase Agreement (the "Closing
Conditions"), all Distribution Stock shall be delivered to Bastion
as contemplated by Section 2.02(a) of the Purchase Agreement, and
all other Trust Property (other than the Cash Amount, the
distribution of which is provided for below) shall be distributed
to TLMD. The Cash Amount in an amount not exceeding the Purchase
Price shall be distributed to TLMD in payment of all or part of
Bastion's obligation to pay the Purchase Price pursuant to
Sections 2.01 and 2.02(b) of the Purchase Agreement, and any
excess Cash Amount shall be distributed to Bastion.
4.2 In the event that the Purchase Agreement is terminated in
accordance with its terms, or upon the revocation or termination
of the Trust in accordance with the terms hereof, all Trust
Property other than the Cash Amount shall be distributed to TLMD
and the Cash Amount, if any, shall be distributed to Bastion.
ARTICLE 5
POWERS, AUTHORITY AND DUTIES OF TRUSTEE;
REMUNERATION; ACCOUNTING
5.1 The Trustee shall have the following powers and authority:
(a) to hold title to the Transferred Securities and Transferred
Claims and Cash Amount as Trust Property, as trustee;
(b) to exercise prior to the confirmation of the Reorganization
upon the written instructions of TLMD, any power to vote or
consent with respect to any matter in its capacity as holder
of the Transferred Securities and Transferred Claims;
(c) to exercise any power to cause the Debtor to redeem or
exchange the Transferred Securities and Transferred Claims in
whole or in part in connection with the proposed
Reorganization;
(d) to sell or otherwise dispose of the Transferred Securities
and Transferred Claims or any portion thereof on such terms
and conditions as shall have been approved in advance by
TLMD, as long as not inconsistent with the provisions of the
Purchase Agreement;
(e) to take any of the actions specifically required by any
provision of this Trust Agreement;
(f) to take such other actions as may be directed in written
instructions signed by TLMD other than as relate to the Cash
Amount or the Letter of Credit or may be inconsistent with
the terms of this Agreement or the Purchase Agreement; and
(g) to take such actions relating to the investment of the Cash
Amount as contemplated by, and as is consistent with, Section
5.10.
5.2 In addition to the duties specifically required by other
provisions of this Trust Agreement, the Trustee shall:
(a) transmit to TLMD and Bastion a copy of all written materials
received by the Trustee in its capacity as holder of the
Transferred Securities and Transferred Claims (whether from
the Debtor or another source) promptly upon receipt by the
Trustee; and
(b) promptly inform the Beneficiaries of any action taken by the
Trustee in his capacity as holder of the Transferred
Securities and Transferred Claims or otherwise in his
capacity as Trustee.
5.3 The Trustee shall not commingle the Trust Property with any other
property.
5.4 The Trustee shall not be entitled to any remuneration for his
services.
5.5 The Trustee shall be entitled to reimbursement from TLMD for any
out-of-pocket expenses which have been approved in advance by TLMD
and Bastion.
5.6 The Trustee shall not be required to render a formal accounting of
the Trust in any court. At the written request of either of the
Beneficiaries, the Trustee shall furnish to the Beneficiaries a
written statement identifying with reasonable particularity all
Trust Property held in trust, and all income and expenditures of
the Trust since the most recent prior report pursuant to this
Section 5.6.
5.7 The Trustee shall not be required to furnish bond for the
performance of its duties pursuant to this Trust Agreement.
5.8 The Trustee may rely upon the representations made by Bastion in
paragraph 6.04 of the Purchase Agreement. Each Beneficiary hereby
agrees not to look to the other Beneficiary and each Beneficiary
agrees not to assert any claim against the Trustee, with respect
to an investment or contemplated investment by the Beneficiaries
in the Transferred Securities, Transferred Claims or Distribution
Stock, or distributions thereon. Each of the Beneficiaries
acknowledges and agrees that the Trustee shall have no duty
whatsoever to ascertain whether the acquisition or continued
ownership of the Transferred Securities and Transferred Claims and
Distribution Stock constitutes a prudent investment, and that
neither shall have or assert any claim that such acquisition or
continued ownership constitutes a breach of fiduciary duty by
reason of the nature of an investment in the Transferred
Securities, Transferred Claims or Distribution Stock.
5.9 Each Beneficiary agrees and acknowledges that it assumes sole
responsibility in the event the Trustee is legally obligated to
disclose to the Debtor or any other party the identities of the
Beneficiaries and neither shall have or assert any claim that such
legally required disclosure constitutes a breach of the Trustee's
fiduciary duty.
5.10 The Trustee, if directed in writing by Bastion, shall invest all
or any part of the Cash Amount in the following investments:
(i) deposit accounts or certificates of deposit in bank or
trust companies, organized under the laws of the United
States of America or any state thereof, which have a
combined capital and surplus of at least one hundred
million dollars ($100,000,000);
(ii) obligations of the United States of America or any
agency thereof or obligations guaranteed by the
United States of America or any agency thereof;
(iii) other short term securities of corporate or
government issuers rated in one of the top two
rating categories by either Standard & Poor's
Corporation or Moody's Investors Service, Inc.; or
(iv) money management accounts (or accounts
substantially similar thereto) as shall have been
agreed to in writing by TLMD and Bastion.
; provided, that in each case, such invested amounts must be
available for withdrawal to permit the satisfaction of the
obligation of Bastion or the Trustee to deliver the Purchase Price
as contemplated by the Purchase Agreement.
The Trustee shall be entitled to receive such information or
instructions from Bastion as it shall deem necessary or
appropriate in order to make the investments contemplated hereby.
The income earned in respect of such investments shall be considered as
part of the Cash Amount and shall be subject to disbursement as herein
provided.
ARTICLE 6
RESIGNATION OF TRUSTEE;
SUCCESSOR TRUSTEE
6.1 The Trustee may resign at any time by written notice to the
Beneficiaries. Such resignation shall not become effective prior
to the termination of the Trust or the appointment of a successor
Trustee who has agreed to serve as such.
6.2 In the event that the Trustee dies, becomes incapacitated, resigns
or ceases to be legally qualified to serve as Trustee, TLMD shall
promptly designate a successor Trustee in writing, which
designation shall be reasonably acceptable to Bastion.
ARTICLE 7
REVOCATION AND TERMINATION
7.1 The Trust and this Trust Agreement will terminate upon the
bankruptcy or insolvency of either Beneficiary.
7.2 The Trust and this Trust Agreement shall terminate upon the
written agreement of the Beneficiaries or upon termination of the
Purchase Agreement in accordance with its terms or upon
distribution of all Trust Property to the Beneficiaries in
accordance with the terms hereof.
ARTICLE 8
MISCELLANEOUS
8.1 Without the consent of the non-transferring Beneficiary, no
Beneficiary shall have the right to transfer any beneficial
interest hereunder except to the extent an interest in the Trust
Property.
8.2 It is the intention of the parties that the Trust shall be treated
as a grantor trust for income tax purposes and that the Trustee
shall file any information returns required to be filed in
connection with such treatment. The parties agree to treat
income, gain, loss, deductions and credits on the Cash Amount as
beneficially owned by Bastion for all federal, state and local
income tax purposes.
8.3 The Beneficiaries shall indemnify the Trustee from, and the
Trustee shall not be liable for, any and all acts committed or
omitted by the Trustee, in its capacity as Trustee hereunder
(including actions taken pursuant to Section 5.10); provided,
however, that no indemnity shall be afforded hereunder for acts or
omissions by the Trustee constituting gross negligence, bad faith
or willful misconduct.
8.4 This Trust Agreement may be amended by a written instrument signed
by TLMD, Bastion and the Trustee.
8.5 This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
contracts entered into and to be wholly performed in such state.
In Witness Whereof, the parties hereto have signed this Trust
Agreement.
TLMD PARTNERS II, L.L.C.
As Grantor and as Beneficiary
By: AIF II, L.P., its Manager
By: Apollo Advisors, L.P.,
its Managing General
Partner
By: Apollo Capital
Management, Inc., its
General Partner
By:__________________________
Name:
Title:
BASTION CAPITAL FUND L.P.
As Grantor and Beneficiary
Name:
Title:
Michael D. Weiner
As Trustee
______________________________________________________________________
EXHIBIT 3
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT ("Agreement") is made and entered
into as of the 20th day of December, 1994, by and between TLMD
Partners II, L.L.C., a Delaware limited liability company
("TLMD"), Bastion Capital Fund, L.P., a Delaware limited
partnership ("Bastion"), Leon Black ("Black"), Hernandez
Partners, a California general partnership ("HP"), GRS Partners
II, L.P., an Illinois limited partnership ("GRS"), and The Value
Realization Fund, L.P., a Delaware limited partnership ("Value"
and, collectively with Bastion, Black, HP and GRS, the "Other
Shareholders").
R E C I T A L S
A. TLMD beneficially owns or will own, as a result of the
Plan of Reorganization (as defined below), approximately
1,550,000 shares (the "TLMD Shares") of Series B Common Stock (as
defined below).
B. Each of the other parties hereto beneficially owns or
will own, as a result of the Plan of Reorganization,
approximately the number of shares of Series A Common Stock (as
defined below) and shares of Series B Common Stock set forth
below:
Black: 0 Series A Common Stock and 52,596 Series B
Common Stock*
Bastion: 374,498 Series A Common Stock and 882,596 Series B
Common Stock*
HP: 50,000 Series A Common Stock and 450,000 Series B Common
Stock
GRS: 33,333 Series A Common Stock and 0 Series B Common
Stock
Value: 66,667 Series A Common Stock and 0 Series B Common
Stock.
C. TLMD and the Other Shareholders desire to promote their
mutual interests by imposing certain restrictions and obligations
on themselves and the Common Stock owned by them.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto mutually
agree as follows:
1. Definitions. Unless otherwise expressly provided, the
following terms, when used in this Agreement, shall be defined as
follows:
Apollo Permitted Transferee shall have the meaning ascribed
to such term in the Certificate.
_____________________
* Subject to possible increase in the aggregate of approximately
147,404 shares of Series B Common Stock.
Bastion Nominee shall mean Guillermo Bron or, if he is unable
to serve as a director of the Company as a result of death or
medical disability or otherwise, a successor nominee chosen by
Bastion and reasonably acceptable to the Voting Committee.
Permitted Transferee, with respect to any Other Shareholder,
shall mean (i) any partner or Affiliate (as defined in the
Certificate) of such Other Shareholder and (ii) any investment
fund, investment account or other entity whose investment
manager, investment advisor or general partner, or any principal
thereof, is such Other Shareholder or any Affiliate or principal
of such Other Shareholder.
Beneficial Ownership shall have the meaning ascribed to such
term in Rule 13d-3 under the Securities Exchange Act and the term
"Beneficially Owned" shall have a correlative meaning.
Certificate shall mean the Restated Certificate of
Incorporation of the Company, as in effect on the consummation of
the reorganization contemplated by the Plan of Reorganization.
Common Stock shall mean collectively the Series A Common
Stock and the Series B Common Stock.
Company shall mean Telemundo Group, Inc., a Delaware
corporation.
HP Nominee shall mean Roland A. Hernandez or, if he is unable
to serve as the HP Nominee, a successor nominee chosen by HP and
reasonably acceptable to the Voting Committee.
Independent Member shall initially be Alan Abramson. In the
event of the death, incapacity or resignation of Alan Abramson,
then Norman Brownstein shall be his successor as the Independent
Member. In the event of the death, incapacity or resignation of
Norman Brownstein, then TLMD and Bastion shall mutually agree
upon subsequent successor(s) to the Independent Member.
1% Retention Requirement shall have the meaning set forth in
Section 3.
Plan of Reorganization shall mean the Second Amended Chapter
11 Plan of Reorganization of the Company dated April 29, 1994
(Case No. 93-B-42967 (JLG) in the United States Bankruptcy Court
for the Southern District of New York).
Registration Rights Agreement shall mean that certain
Registration Rights Agreement among the Company, Apollo Advisors,
L.P. and Reliance Insurance Company contemplated by the Plan of
Reorganization.
Series A Common Stock shall mean the Series A Common Stock,
par value $.01 per share, of the Company, and any stock into
which such shares shall have been changed or any stock resulting
from any stock split, reverse stock split, stock dividend,
reclassification or similar transaction, including, without
limitation, the issuance of Series A Common Stock upon conversion
of Series B Common Stock.
Series B Common Stock shall mean the Series B Common Stock,
par value $.01 per share, of the Company, and any stock into
which such shares shall have been changed or any stock resulting
from any stock split, reverse stock split, stock dividend,
reclassification or similar transaction (other than a conversion
into Series A Common Stock as contemplated by Article 4 of the
Certificate).
Voting Committee shall have the meaning set forth in Section
2.1.
2. Voting Committee.
2.1. Establishment. TLMD and the Other Shareholders
hereby establish a voting committee whose sole function shall be
voting (and consenting or dissenting to corporate action in
writing with respect to) (i) the shares of Common Stock
Beneficially Owned by TLMD and (ii) the shares of Common Stock
Beneficially Owned by the Other Shareholders (the "Voting
Committee"). The Other Shareholders and TLMD hereby agree that
such shares of Common Stock shall be voted (and consents or
dissents to corporate action in writing shall be given with
respect thereto) only as contemplated by this Section 2. TLMD
agrees that the provisions of its organizational documents will,
during the term of this Agreement, provide for the operation of
the Voting Committee as set forth in this Section 2.
2.2. Membership. The Voting Committee shall at all
times consist of three members: John Hannan (appointed by TLMD),
Guillermo Bron (appointed by Bastion) and the Independent Member.
In the event that John Hannan is unable to serve as a member of
the Voting Committee as a result of death or medical disability
or otherwise, TLMD shall be entitled to appoint his successor(s).
TLMD will use reasonable best efforts to cause John Hannan to
continue to serve as its designee on the Voting Committee during
the term of this Agreement. In the event that Guillermo Bron is
unable to serve as a member of the Voting Committee as a result
of death or medical disability or otherwise, Bastion shall be
entitled to appoint his successor(s). Bastion will use
reasonable best efforts to cause Guillermo Bron to continue to
serve as its designee on the Voting Committee during the term of
this Agreement. All members of the Voting Committee are, and
will be, citizens of the United States.
2.3. Action by Voting Committee. The Voting Committee
shall act by a unanimous written consent signed by all the
members of the Voting Committee or by majority vote of at least
two members of the Voting Committee at a meeting called by any
member of the Voting Committee upon two business days written
notice to the other members. Such majority vote by the Voting
Committee at a duly held meeting shall have the effect of
constituting acceptance of such decision by all of the members of
the Voting Committee. Two members of the Voting Committee shall
constitute a quorum for the transaction of business at a meeting
thereof. The Voting Committee shall have the power to designate
one or more members of the Voting Committee to execute
certificates and other documents on behalf of all of them in
furtherance of their collective decisions. The Voting Committee
may, from time to time, adopt and/or amend its own rules of
procedure and take such other actions related to the voting of
the Common Stock not inconsistent with the provisions hereof, and
shall record and keep records of all its proceedings at such
place as may be designated by the Voting Committee.
2.4. Liability of Voting Committee. The members of the
Voting Committee shall not be liable to TLMD, the Other
Shareholders or any other person for errors of law or of any
thing done or suffered or omitted in connection therewith, except
for their own individual willful misconduct, bad faith or action
taken or omitted to be taken in knowing violation of law. The
members of the Voting Committee shall act with due diligence and
shall act in compliance with applicable provisions of law. No
member of the Voting Committee shall be required to give any bond
or other security for the discharge of his duties.
2.5. Election of Directors. So long as Bastion is the
Beneficial Owner of at least 278,944 shares of Series B Common
Stock (unless Bastion instructs the Voting Committee in writing
not to take the following actions), each of TLMD, the Other
Shareholders and the Voting Committee shall (a) use its
reasonable best efforts to cause the Bastion Nominee to be
nominated as a director of the Company (and Bastion will in such
case use its reasonable best efforts to cause the Bastion Nominee
to so serve) and, (b) to vote all shares of Common Stock that
TLMD or the Voting Committee has the right to vote for the
election of the Bastion Nominee as a director of the Company.
So long as Leon Black is the Beneficial Owner of at
least 25,000 shares of Common Stock (unless Mr. Black instructs
the Voting Committee in writing not to take the following
actions), each of TLMD and the Voting Committee and the Other
Shareholders shall (a) use its reasonable best efforts to cause
Mr. Black (or his designee) to be nominated as a director of the
Company and (b) to vote all shares of Common Stock that TLMD or
the Voting Committee has the right to vote for the election of
Mr. Black (or his designee) as a director of the Company.
So long as HP is the Beneficial Owner of at least
125,000 shares of Series B Common Stock (unless HP instructs the
Voting Committee in writing not to take the following actions )
each of TLMD, the Other Shareholders and the Voting Committee
shall (a) use its reasonable best efforts to cause (and, if the
HP Nominee is not a director on or immediately after the
consummation of the Plan of Reorganization, subject to any
necessary Federal Communications Act approvals or consents, to
cause as promptly as reasonably practicable and in any event (to
the extent practicable) within 90 days of the consummation of the
Plan of Reorganization) the HP nominee to be nominated as a
director of the Company and (b) vote all shares of Common Stock
that TLMD or the Voting Committee has the right to vote for the
election of the HP nominee.
So long as TLMD is the Beneficial Owner of at least
278,944 shares of Series B Common Stock (unless TLMD instructs
the Voting Committee in writing not to take the following
actions), the Voting Committee and the Other Shareholders shall
(a) use its reasonable best efforts to cause two persons
specified from time to time by TLMD to be nominated as directors
of the Company (and TLMD will in such case use its reasonable
best efforts cause such persons to so serve) and (b) vote all
shares of Common Stock that the Voting Committee has the right to
vote for the election of such persons as directors of the
Company.
2.6. Proxy of TLMD and the Other Shareholders. In
furtherance of the voting agreement contemplated by this Section
2, each of TLMD and each Other Shareholder hereby irrevocably
appoints the Voting Committee as attorney-in-fact and proxy,
during the term of this Agreement, to vote all shares of Common
Stock Beneficially Owned by it, whether now owned or hereafter
acquired, on all matters as to which it is entitled to vote at a
meeting of the stockholders of the Company or to which it is
entitled to express consent or dissent to corporate action in
writing without a meeting. Each of TLMD and each Other
Shareholder agrees that the Voting Committee may, in TLMD's and
each Other Shareholder's name and stead, as the case may be, (i)
attend any annual or special meeting of the stockholders of the
Company and vote all shares of Common Stock Beneficially Owned by
it at any such annual or special meeting, and (ii) execute with
respect to all shares of Common Stock Beneficially Owned by it
any written consent to, or dissent from, corporate action
respecting any matter to which stockholders of the Company are
entitled to express such consent or dissent without a meeting.
Each of TLMD and each Other Shareholder agrees that this grant of
proxy is irrevocable during the term of this Agreement and is
coupled with an interest. Each of TLMD and each Other
Shareholder further agrees to execute (and, if TLMD or such Other
Shareholder, as the case may be, is not the record owner of
shares Beneficially Owned by it, to use best reasonable efforts
to cause the record owner to execute) all additional writings,
consents and authorizations as may be reasonably requested by the
Voting Committee to evidence the powers granted to the Voting
Committee or to exercise those powers (including any subsequent
proxies).
2.7. Termination of Proxy. The proxy granted by each
Other Shareholder in Section 2.6 shall cease to apply to any
shares of Common Stock which cease, as a result of transactions
permitted pursuant to Section 3, to be Beneficially Owned by such
Other Shareholder or any Other Shareholder's Permitted
Transferees. The proxy granted by TLMD in Section 2.6 shall
cease to apply to any shares of Common Stock which cease, as a
result of transactions permitted pursuant to Section 3, to be
Beneficially Owned by TLMD or Apollo Permitted Transferees.
2.8. Application of Section. The provisions of this
Section 2 shall apply to all shares of Common Stock transferred
by each Other Shareholder (or its Permitted Transferees) to its
Permitted Transferees and to all shares of Common Stock
transferred by TLMD (or Apollo Permitted Transferees) to Apollo
Permitted Transferees as contemplated by Section 3.
3. Restrictions on Resales. Subject to Section 4, TLMD may
freely sell or transfer (subject to compliance with applicable
law) any and all shares of Common Stock Beneficially Owned by it
from time to time; provided, that if transferred to an Apollo
Permitted Transferee, such shares shall continue to be subject to
the provisions of this Agreement applicable to voting and
transfer, and TLMD agrees to be responsible for any breach by an
Apollo Permitted Transferee of such provisions. Each Other
Shareholder may freely sell or transfer any and all shares of
Common Stock Beneficially Owned by it; provided, however, that
each of Bastion and its Permitted Transferees, as a group, and HP
and its Permitted Transferees, as a group, must retain Beneficial
Ownership of at least 55,789 shares of Series B Common Stock (the
"1% Retention Requirement") until termination of this Agreement
in accordance with the terms hereof, unless TLMD shall consent
(in its sole discretion) to such sale or transfer; provided,
however, that the 1% Retention Requirement shall not apply, and
HP and Bastion shall be free to sell any and all shares of Common
Stock, during the 365 day period commencing on the consummation
date of the Plan of Reorganization. Notwithstanding the
foregoing, Bastion or HP (or their respective Permitted
Transferees) may transfer any number of shares of Series B Common
Stock to a Permitted Transferee so long as such Permitted
Transferee agrees to be bound by the provisions of this Agreement
applicable to voting and transfer of Common Stock applicable to
it. Each of Bastion and HP hereby agrees to be responsible for
any breach by its Permitted Transferees of this Agreement.
Without in any way terminating or modifying the obligations set
forth above, in the event of a conversion of Series B Common
Stock to Series A Common Stock, such that Bastion and its
Permitted Transferees, as a group, or HP and its Permitted
Transferees, as a group, no longer Beneficially Own sufficient
Series B Common Stock to satisfy its 1% Retention Requirement,
the 1% Retention Requirement shall apply to such Series B Common
Stock as is still Beneficially Owned by such persons, plus an
amount of Series A Common Stock, which if it were assumed to be
Series B Common Stock, would satisfy the 1% Retention
Requirement.
4. Tag Along Rights of Other Shareholders.
4.1. General. (a) Subject to Sections 4.2 and 4.3,
TLMD hereby agrees that in the event that TLMD or any Apollo
Permitted Transferee (which, for purposes of this Section 4, does
not include Black in respect of the shares of Common Stock owned
by him and subject to this Agreement (other than any such shares
of Common Stock acquired in a chain of transactions from TLMD))
proposes to sell any shares of Common Stock of the Company then
Beneficially Owned by it in a single transaction or a series of
related transactions to any person that is not an Apollo
Permitted Transferee (a "Subject Sale"), then TLMD will notify
each Other Shareholder in writing at least ten business days in
advance of such proposed sale (specifying the number of shares to
be sold, the sales price, the proposed purchaser and other
material terms of sale) and will permit each Other Shareholder
and its Permitted Transferees (at its option) to participate in
such sale on substantially the same terms as generally offered to
TLMD or the Apollo Permitted Transferees and to sell the number
of shares of Common Stock each Other Shareholder and its
Permitted Transferees desire to sell together with the number of
shares of Common Stock which TLMD and the Apollo Permitted
Transferees desire to sell (subject to the limitations set forth
in the remainder of this Section 4). No such sale by Bastion or
HP (or their respective transferees), as the case may be, shall
be made if, as a result of and after consummating such sale, the
1% Retention Requirement for Bastion or HP, as the case may be,
would not be satisfied.
(b) Each Other Shareholder, and its Permitted
Transferees, in the aggregate, shall be entitled to sell, from
shares of Common Stock Beneficially Owned by them immediately
prior to such sale, an aggregate maximum number of shares which,
when divided by the lesser of (x) the number of shares of Common
Stock owned by such Other Shareholder as a result of the
consummation of the Plan of Reorganization (including for these
purposes, but only with respect to Bastion, an additional 195,000
shares of Common Stock) reduced by the number of shares of Common
Stock previously sold by such Other Shareholder and its Permitted
Transferees pursuant to the provisions of this Section 4 and (y)
the total number of shares of Common Stock Beneficially Owned by
them immediately prior to such sale, shall equal the "TLMD
Selling Percentage".
The "TLMD Selling Percentage" equals (x) the
number of shares of Common Stock proposed to be sold by TLMD and
the Apollo Permitted Transferees divided by (y) the lesser of (A)
the number of shares of Common Stock to be owned by TLMD or
Apollo Permitted Transferees as a result of consummation of the
Plan of Reorganization reduced by the number of shares of Common
Stock previously sold by TLMD and the Apollo Permitted
Transferees pursuant to Subject Sales and (B) the number of
shares of Common Stock Beneficially Owned by TLMD and the Apollo
Permitted Transferees immediately prior to such sale.
In the event that the inclusion of the shares
proposed to be sold by the Other Shareholders and their Permitted
Transferees results in a greater number of shares than can be
sold in such transaction or series of transactions, TLMD and the
Apollo Permitted Transferees and the Other Shareholder and their
Permitted Transferees will reduce the number of shares they
propose to sell, as needed, so that the number of shares to be
sold conform to the determinations set forth in clauses (a) and
(b).
(c) Within five business days after receipt of the
notice from TLMD, each Other Shareholder shall notify TLMD in
writing of the number of shares of Series B Common Stock which it
and its Permitted Transferees desire to sell (if any) and will
provide TLMD with such other information, and will take such
actions, as TLMD shall reasonably request. In connection with
each such sale, each Other Shareholder and TLMD will take such
actions as the other party reasonably requests (provided, that
TLMD shall have no obligation to cause the terms of any proposed
sale to be modified at the request of any Other Shareholder), and
neither TLMD nor any Apollo Permitted Transferee will consummate
any such sale if the proposed purchaser shall fail to purchase
the shares of each Other Shareholder or its Permitted Transferees
which are required to be purchased pursuant to the terms hereof.
4.2. Rule 144 Sales. Notwithstanding the provisions of
Section 4.1, in the event that TLMD or an Apollo Permitted
Transferee proposes to sell any shares of Common Stock pursuant
to Rule 144 of the Securities Act of 1933, such entity shall not
be required to permit an Other Shareholder or its Permitted
Transferee to participate in such sale.
4.3. Registered Offerings. Notwithstanding the
provisions of Section 4.1, in the event that the proposed sale by
TLMD or an Apollo Permitted Transferee involves registering
Common Stock under the Securities Act of 1933 pursuant to the
terms of the Registration Rights Agreement, TLMD and any Apollo
Permitted Transferee shall not be required to permit any Other
Shareholder or its Permitted Transferees to participate in such
sale; provided, however, that TLMD shall use its reasonable best
efforts to include, and to cause the Company to include, such
number of shares of Common Stock as any Other Shareholder or its
Permitted Transferees would be otherwise entitled to include
pursuant to Section 4.1, if requested by such Other Shareholder,
and TLMD shall use its reasonable best efforts to cause such
participation to be made on substantially the same terms as are
applicable to TLMD and any Apollo Permitted Transferee. Any
Other Shareholder (or its Permitted Transferee) participating in
such sale shall take such actions as TLMD and the Company shall
reasonably request with respect to any such registration.
4.4. Termination of Tag Along Rights. The right of the
Other Shareholders under this Section 4 to participate in any
such sale of Common Stock shall terminate if TLMD and the Apollo
Permitted Transferees, as a group, cease to own of record at
least 557,887 shares of Common Stock.
5. Termination of Agreement. This Agreement, including the
right of Guillermo Bron and his successor(s) to serve as a member
of the Voting Committee and the proxies granted hereunder, shall
terminate on the earlier of (i) the date when no shares of Series
B Common Stock are outstanding and (ii) the date when TLMD and
the Apollo Permitted Transferees cease to own shares of Series B
Common Stock representing at least 245,003 shares of Series B
Common Stock; provided, that the provisions of Section 4 shall
continue until the earlier of (i) seven years from the
Consummation Date and (ii) the date of termination contemplated
by Section 4.4. This Agreement (other than the provisions of
Section 4, which shall continue until terminated in accordance
with Section 4.4 or the preceding sentence of this Section 5) may
also be terminated as of the date specified by TLMD in a written
notice delivered to each of the Other Shareholders (which notice
may be withdrawn prior to the time of termination of this
Agreement specified in such notice); provided, that any requisite
regulatory approvals required to permit termination of the
Agreement as contemplated hereby shall have been received or such
termination is conditioned upon receipt of any such required
approvals.
6. Legend on Certificates. Each certificate representing
shares of Common Stock subject to this Agreement shall have
conspicuously stamped, printed, or typed on the back thereof the
following legend:
THE VOTING AND TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS OF A SHAREHOLDERS
AGREEMENT. A COPY OF THE SHAREHOLDERS AGREEMENT IS ON FILE
AT THE OFFICES OF TLMD PARTNERS II, [ADDRESS].
Such certificate shall be endorsed on the front thereof as
follows:
"See restrictions on reverse side of this Certificate."
7. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be
delivered in person, by receipted overnight courier, or by
facsimile transmission to the telecopy number below:
To: TLMD Partners II, L.L.C.
c/o The Corporation Trust Company
The Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Telecopy Number: (302) 658-2919
With a copy to: Patrick J. Dooley, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
65 East 55th Street
33rd Floor
New York, New York 10022
Telecopy Number: (212) 872-1002
To: Bastion Capital Fund, L.P.
1999 Avenue of the Stars
Suite 2800
Los Angeles, CA 90067
Attention: Guillermo Bron
Telecopy Number: (310) 277-7582
With a copy to: Michael A. Woronoff, Esq.
Skadden, Arps, Slate, Meagher & Flom
300 South Grand Avenue
Los Angeles, California 90071
Telecopier: (213) 687-5600
To: The remaining Other Shareholders:
to such address as they may specify from
time to time in writing.
8. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of all the parties hereto and their
respective heirs, legatees, legal representatives, successors and
permitted assigns.
9. Representations. TLMD and each Other Shareholder
represents, as to itself, (i) that this Agreement has been duly
and validly authorized, executed and delivered by it and is valid
and binding and enforceable against it in accordance with its
terms and (ii) assuming the delivery of Common Stock to each
Other Shareholder as contemplated by the purchase agreements
between TLMD or its Affiliates and such Other Shareholder, it is
or will be (as a result of the consummation of the Plan of
Reorganization) the Beneficial Owner of the number of shares of
Common Stock set forth in the Recitals as being owned by it.
10. Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an
original, and all such counterparts together shall constitute but
one and the same instrument.
11. Governing Law. This Agreement and all of the rights
and duties of the parties arising from or relating in any way to
the subject matter of this Agreement shall be governed, enforced
and construed in accordance with the laws of the State of
Delaware applicable to contracts entered into and performed
completely within the State of Delaware.
12. Severability. In the event any of the provisions, or
portions thereof, of this Agreement are held to be unenforceable
or invalid by any court of competent jurisdiction, the validity
and enforceability of the remaining provisions, or portions
thereof, shall not be affected thereby. Any provisions so held
unenforceable or invalid shall be reformed by such court to
reflect the construction most nearly approximating the intent of
such provision which shall be valid and enforceable, and the
parties hereto hereby agree to such provision as reformed.
13. Construction. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter
gender, shall include all other genders and the singular shall
include the plural and vice versa.
14. Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject
matter hereof.
15. Amendment. This Agreement may be amended only by the
written consent of all the parties to this Agreement.
16. Certain Adjustments. All references to a number of
shares of Series B Common Stock set forth in this Agreement shall
be adjusted proportionately to reflect any stock split, reverse
stock split, stock dividend or similar transaction (which shall
not include a conversion into Series A Common Stock as
contemplated by Article 4 of the Certificate) that increases or
decreases the total number of outstanding shares of Series B
Common Stock.
17. Specific Performance. The parties hereto acknowledge
that money damages may be an inadequate remedy for breach of this
Agreement. Therefore, the parties agree that either party may,
in its sole discretion, apply to any court of law or equity of
competent jurisdiction, to obtain specific performance of this
Agreement and injunctive relief against any breach hereof, in
either case without the posting of any bond or other security.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
TLMD PARTNERS II, L.L.C.
By: AIF II, L.P., its Manager
By: Apollo Advisors, L.P.,
its Managing General Partner
By: Apollo Capital
Management, Inc.,
its General Partner
By:________________________
Name:
Title:
BASTION CAPITAL FUND, L.P.
By: Bastion Partners
its general partner
By: Bron Corp.
its general partner
By:
Guillermo Bron
President
HERNANDEZ PARTNERS
By:
Roland Hernandez
General Partner
Leon Black
THE VALUE REALIZATION FUND, L.P.
By: Canpartners Investments III, L.P.,
its General Partner
By: Canyon Capital Management, L.P.,
its General Partner
By: Canpartners Incorporated,
its General Partner
By:
Title:
GRS PARTNERS II
By:
Paul Meister, Vice President of
Grosvenor Capital Management, Inc.
general partner of Grosvenor Capital
Management, L.P.,
Administrator of GRS Partners II
______________________________________________________________________
EXHIBIT 4
December 30, 1994
TO: Bastion Capital Fund, L.P.
The undersigned, Telemundo Group, Inc. (the
"Company"), hereby confirms that it agrees to nominate (or to use
its reasonable best efforts to cause the nominating committee of
the Board of Directors of the Company to nominate), in accordance
with applicable proxy rules, Guillermo Bron (or, if he is unable
to serve as a result of death, disability or otherwise, a
successor nominee chosen by you and reasonably acceptable to a
voting committee identified by the undersigned to the Company,
which committee shall be initially comprised of John Hannan,
Guillermo Bron and Alan Abramson, or as the membership of such
committee may change from time to time which will be disclosed to
the Company) to the Board of Directors of the Company so long as
Bastion Capital Fund, L.P. is the Beneficial Owner of at least
278,944 shares of the Company's Series B Common Stock. For
purposes of this letter, "Beneficial Owner" shall have the
meaning ascribed to such term in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended.
TELEMUNDO GROUP, INC.
By: /s/ Peter J. Housman II
Peter J. Housman II
Accepted and agreed as of
the date set forth above:
BASTION CAPITAL FUND, L.P.
