EXHIBIT 10.14
AMENDMENT NO. 2
TO
OPERATING AGREEMENT
This Amendment No. 2 to the Operating Agreement (the "Amendment") of Fox
Kids Worldwide, L.L.C., a Delaware limited liability company (the "Company"), is
made and entered into as of July 31, 1997, by and among Saban Entertainment,
Inc. ("SEI"), FCN Holding, Inc. ("FCNH"), Fox Broadcasting Company ("FBC") and
Fox Kids Worldwide, Inc. ("Fox Kids"), which are each Delaware corporations.
R E C I T A L S
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A. SEI, FCNH and FBC are parties to that certain Operating
Agreement, dated as of December 22, 1995, as amended by Amendment No. 1 to
Operating Agreement dated as of September 27, 1996 (the "Agreement"). All terms
defined in the Agreement which are not defined in this Amendment shall have the
same meanings when used in this Amendment.
B. The parties desire to amend the Agreement to reflect agreed upon
modifications and deletions of various sections thereof.
C. Pursuant to Section 9.3.10 of the Agreement, Sections 3.2, 5.7.4
and 8.4.1(d) of the Agreement may be amended only with the written consent of
each of the Class B Members, Saban and the Class A Member.
D. In connection with the reorganization (the "Reorganization") of
SEI and FCNH into Fox Kids pursuant to that certain Agreement dated as of June
11, 1997 (the "Reorganization Agreement"), the parties to this Amendment have
determined that it is in the best interest of all of the parties that this
Agreement be amended to reflect the Reorganization.
E. In connection with the Reorganization, FBC is transferring to Fox
Kids a $50 million note receivable due to it from the Company and is assigning
to Fox Kids its current Class A membership interest in the Company, and is
assigning to Fox Kids existing intercompany indebtedness of $4,573,000 owed to
FBC or its affiliates by the Company or its affiliates, and in consideration
therefor, Fox Kids is issuing a note in the amount of $104,573,000 to FBC under
the Subordinated Note Agreement between Fox Kids and FBC. In the possession of
Fox Kids, the Class A membership interest in the Company shall be a Class B
membership interest.
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A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing facts, the parties hereto
agree as follows:
1. Section 3.2 of the Agreement is amended to read in full as follows:
3.2 [Intentionally deleted.]
2. Section 3.3 of the Agreement is amended to read in full as follows:
3.3 CLASS B MEMBERS. Each of SEI, FCNH and Fox Kids shall be a Class
B Member. As a Class B Member, each of SEI, FCNH and Fox Kids shall have the
right to receive distributions of Distributable Cash pursuant to Section 5.7
hereof, distributions on dissolution or liquidation pursuant to Section 8.4.1(e)
hereof, allocations of net profits and net losses and similar items from the
Company as expressly provided for in Section 5.4 hereof, and the right to vote
on or participate in the management and the right to receive information
concerning the business and affairs of the Company, all as provided for herein.
3. Section 3.4 of the Agreement is amended to read in full as follows:
3.4 ADMISSION OF ADDITIONAL MEMBERS. The Company shall not admit any
Members other than SEI, FCNH and Fox Kids.
4. Section 3.5 of the Agreement is amended to read in full as follows:
3.5 WITHDRAWALS OR RESIGNATIONS. Except for FBC, no Member may
withdraw or resign from the Company.
5. Section 3.6 of the Agreement is amended to read in full as follows:
3.6 TRANSFER AND ASSIGNMENT OF INTERESTS. No Member shall be
entitled to transfer, assign, convey, sell, encumber or in any way alienate all
or any part of its membership interest in the Company, including by way of
involuntary transfer; provided, however, that FBC is hereby entitled to exchange
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its Class A membership interest to Fox Kids in exchange for an obligation from
Fox Kids to pay to FBC $50 million and Fox Kids is hereby admitted as a new
Class B Member.
6. Section 3.7 of the Agreement is amended to read in full as follows:
3.7 [Intentionally deleted.]
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7. Section 4.1 of the Agreement is amended to read in full as follows:
4.1 MANAGEMENT.
4.1.1 MANAGING MEMBER. The Company's business, property and
affairs shall be managed, and all powers of the Company shall be exercised, by
or under the direction of the Manager. So long as Fox Kids is a Member and is
not in default of any obligations under this Agreement, Fox Kids shall be the
Manager of the Company. The Manager shall have and exercise full power and
discretion and final authority with respect to the management of the affairs of
the Company.
4.1.2 PERFORMANCE OF DUTIES; LIABILITY OF MANAGER. The Manager
shall not be liable to the Company or to any Member for any loss or damage
sustained by the Company or any Member, unless the loss or damage results from
fraud, gross negligence, reckless or intentional misconduct, or an intentional
violation of law by the Manager. The Manager shall perform its managerial duties
in good faith, in a manner it reasonably believes to be in the best interests of
the Company and its Members, and with such care, including reasonable inquiry,
as an ordinarily prudent person in a like position would use under similar
circumstances. In performing its managerial duties, the Manager shall be
entitled to rely on information, opinions, reports or statements, including
financial statements and other financial data, in each case prepared or
presented by counsel, independent accountants or other persons as to matters
which the Manager believes to be within such person's professional or expert
competence, so long as the Manager acts in good faith, after reasonable inquiry
and without knowledge that would cause such reliance to be unwarranted.
8. Section 4.2 of the Agreement is amended to read in full as follows:
4.2 INFORMATIONAL MEETINGS OF THE CLASS B MEMBERS
Meetings of the Class B Members may be called by any of the Class B
Members on 48 hours notice to each other Class B Member, given in person or by
telephone or facsimile transmission, or by overnight mail or courier delivery.
Members may participate in a meeting of Members by conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
9. Section 4.3 of the Agreement is amended to read in full as follows:
4.3 [Intentionally deleted.]
10. Section 4.4 of the Agreement is amended to read in full as follows:
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4.4 [Intentionally deleted.]
11. Section 4.5 of the Agreement is amended to read in full as follows:
4.5 [Intentionally deleted.]
12. Section 4.6 of the Agreement is amended to read in full as follows:
4.6 [Intentionally deleted.]
13. Section 4.7 of the Agreement is amended to read in full as follows:
4.7 [Intentionally deleted.]
14. Section 4.8.1 of the Agreement is amended to read in full as follows:
4.8.1 [Intentionally deleted.]
15. Section 4.8.2 of the Agreement is amended to read in full as follows:
4.8.2 [Intentionally deleted.]
16. Section 4.8.3 of the Agreement is amended to read in full as follows:
4.8.3 For purposes of this Agreement, those assets assigned to the
Management Company at the closing under the Formation Agreement pursuant to that
certain Asset Assignment Agreement dated as of December 22, 1995 and any
operating assets acquired after such date (such as a separate kid's service or
production company), shall be allocated by the Manager in its discretion.
17. Section 4.9 of the Agreement is amended to read in full as follows:
4.9 [Intentionally deleted.]
18. Section 4.10 of the Agreement is amended to read in full as follows:
4.10 [Intentionally deleted.]
19. Section 4.11 of the Agreement is amended to read in full as follows:
4.11 INDEMNIFICATION. The Manager, employees and agents of the
Company shall be entitled to be indemnified by the Company for any action taken
or failure to act within the
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scope of the authority conferred on the Member by this Agreement or by law,
unless such action or omission was performed or omitted in bad faith, involved
intentional misconduct or a knowing violation of law. This right of
indemnification shall not be construed as being in lieu of, or otherwise limit,
any right that any party may have under any agreement providing for
indemnification by the Company, any Member or any Operating Entity.
20. Section 4.12 of the Agreement is amended to read in full as follows:
4.12 SPECIAL PROVISION RELATED TO ISRAEL LICENSE. SEI currently
licenses and distributes certain of its properties (e.g., motion pictures,
television programs, other productions, merchandising and license rights) in the
country of Israel through Israel Audiovisual Corporation (the "Israeli
Licensee"). Notwithstanding anything to the contrary contained herein or in any
of the other Alliance Agreements, so long as Saban is the Chairman and Chief
Executive Officer of Fox Kids, SEI may distribute and/or license all current or
future properties of the Company, FCN and SEI to the Israel Licensee on the same
basis as SEI currently distributes its properties in Israel. Notwithstanding the
foregoing, SEI shall not grant rights to the Israeli Licensee that conflict with
or restrict the Company's ability to grant to others satellite broadcast rights
in a territory including Israel.
21. Section 4.14 of the Agreement is amended to read in full as follows:
4.14 FIDUCIARY DUTIES. Notwithstanding anything to the contrary
contained herein, each of the Members, on its own behalf and on behalf of its
Affiliates, agrees that it will exercise the governance rights accorded to it
pursuant to this Agreement and the other Alliance Agreements in good faith and
in a manner it believes to be in the best interests of the Company and the
Members taken as a whole and shall not exercise any of such rights for the
purpose of exploiting a business opportunity itself separate from the Company.
22. Section 5.1.3 of the Agreement is amended to read in full as follows:
5.1.3 For purposes of this Agreement, (i) all payments to the Company
by FBC pursuant to Section 10(i)(B) of the Strategic Stockholders Agreement and
(ii) all rights, assets, monies and obligations transferred, assigned or
delegated to the Company pursuant to the Asset Assignment Agreement dated as of
December 22, 1995, shall constitute direct or indirect capital contributions by
FBC.
23. Section 5.2 of the Agreement is amended to substitute the term
"Manager" for "Members Committee."
24. Section 5.4.1(b) of the Agreement is amended to read in full as
follows:
[Intentionally deleted.]
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25. Section 5.4.1(c) of the Agreement is amended to read in full as
follows:
Second, to the Class B Members in accordance with their Interests in
the Company.
26. Section 5.6 of the Agreement is amended to read in full as follows:
5.6 The Company shall make mandatory distributions of Distributable
Cash to cover the actual tax liability of the Members with respect to their
allocable share of the income of the Company, except that no such distributions
shall be made to cover any Member's tax liability with respect to any income
allocated to it under Section 5.4.1(a) hereof.
27. The first paragraph of Section 5.7 is amended to read in full as
follows:
5.7 ADDITIONAL DISTRIBUTIONS. Unless the Manager of the Company
determines otherwise, the Company shall distribute all of its Distributable Cash
at the end of each fiscal year within 90 days thereafter in the following order
of priority:
28. Section 5.7.2 of the Agreement is amended to read in full as follows:
5.7.2 Second, to reduce the principal balance on the Fox Kids Loan
provided for in Section 5.8 hereof until such principal balance has been paid in
full;
29. Section 5.7.4 of the Agreement is amended to read in full as follows:
5.7.4 [Intentionally deleted.]
30. Section 5.7.5 of the Agreement is amended to read in full as follows:
5.7.5 Third, to the Class B Members as from time to time
determined by the Members Committee.
31. Section 5.8 of the Agreement is amended to read in full as follows:
5.8 FOX KIDS LOAN. The Company owes to Fox Kids $50 million pursuant
to the transfer of a note receivable from FBC to Fox Kids pursuant to that
certain Agreement re Transfer of LLC Interests dated as of the date hereof (the
"Loan").
32. Section 5.12 of the Agreement is amended to read in full as follows:
5.12 TAX MATTERS PARTNER. The Manager shall designate one of the
Members as the "tax matters partner" (as defined in the Code). The Tax Matters
Partner shall take no action
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which is reasonably likely to have a material adverse affect on one or more of
the Members unless such action is approved by the Manager.
33. All references to "or Member of the Members Committee" in Section 6.6
of the Agreement are hereby deleted.
34. Article 7 of the Agreement is amended to substitute the term "Manager"
for "Members Committee."
35. The second sentence of Section 8.1.2 of the Agreement is amended to
read in full as follows:
Each of SEI, FCNH and Fox Kids hereby agrees to continue the existence
of the Company notwithstanding the termination of FBC's Class A membership
pursuant to the provisions of Section 3.2 hereof.
36. Section 8.4.1(b) of the Agreement is amended to read in full as
follows:
(b) second, to Fox Kids to retire any remaining outstanding and unpaid
principal on the Loan,
37. Section 8.4.1(d) of the Agreement is amended to read in full as
follows:
(d) [Intentionally deleted.]
38. All references to "Members Committee or" in Section 8.4.4 of the
Agreement are hereby deleted.
39. The second part of Section 9.3.3 is amended to read in full as
follows:
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
0000 Xxxxx Xxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
40. A new Section 9.3.4 is added to read in full as follows:
9.3.4 If to Fox Kids:
Fox Kids Worldwide, Inc.
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00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Troop Xxxxxxxxx Xxxxxxx & Xxxxxx, LLP
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: C.N. Xxxxxxxx Xxxxxxx III
Fax: (000) 000-0000
41. Sections 9.3.4 (Severability) through 9.3.15 (Administration
Agreement) are amended to be renumbered as 9.4 (Severability) through 9.15
(Administration Agreement).
42. Section 9.3.10 of the Agreement is amended to read in full as follows:
9.10 AMENDMENTS AND WAIVERS. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally or in writing,
except that any term of this Agreement may be amended and the observance of any
such term may be waived (either generally or in a particular instance and either
retroactively or prospectively) with (but only with) the written consent of each
of the Class B Members and Saban; provided, however, that no such amendment or
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waiver shall extend to or affect any obligation not expressly waived or impair
any right consequent therein. No delay or omission to exercise any right, power
or remedy accruing to any party hereto shall impair any such right, power or
remedy of such party nor be construed to be a waiver of any such right, power or
remedy nor constitute any course of dealing or performance hereunder.
43. Section 9.3.14 of the Agreement is amended to read in full as follows:
9.14 DEADLOCK. The parties intend that any controversy or dispute
with regard to the management of the Company which results in a deadlock between
them is to be resolved between them without the intervention of any court or
other tribunal and each party expressly waives the right or power to seek relief
(including, but not limited to dissolution) from any court (whether sitting in
law or equity) with respect thereto.
44. The definition of "Distributable Cash" set forth on Exhibit A is
amended to read in full as follows:
"Distributable Cash" means, at the time a determination of
Distributable Cash is made, the net cash provided by operating activities
of the Company and its Operating
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Entities from the date of issuance of each Member's membership interest in
the Company through the end of the last fiscal quarter ending not less than
90 days prior to the time of determination, less the sum of (i) all
restricted cash, (ii) all Reserves and (iii) all amounts previously paid as
distributions to the Members. "Reserves" are those amounts determined from
time to time by the Manager as necessary to provide, over such period as
the Manager considers appropriate, for current and planned capital
expenditures, debt service, working capital requirements and expansion
plans; and if the Manager has not made such a determination, the Reserves
shall be maintained at a level equal to the sum of $30 million."
45. Exhibit A of the Agreement is hereby amended to delete the following
definitions:
Xxxxxx, Management Decision Notice, Members Committee, Operating Committee,
Terminating Event and Triggering Event.
46. Except as expressly modified herein, all terms of the Operating
Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
SABAN ENTERTAINMENT, INC.
By /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Its: Chief Executive Officer
FOX BROADCASTING COMPANY
By /s/ Xxx Xxxxxxxxx
------------------------------
Xxx Xxxxxxxxx
Its: Senior Vice President
FOX KIDS WORLDWIDE, INC.
By /s/ Xxxx Xxxxx
-------------------------------
Xxxx Xxxxx
Its: Chief Executive Officer
FCN HOLDING, INC.
By /s/ Xxx Xxxxxxxxx
-------------------------------
Xxx Xxxxxxxxx
Its: Senior Vice President
The Undersigned hereby consents and agrees to the foregoing Amendment, as of the
date first above written.
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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