AS ACTUALLY RECEIVED BY TEM PUERTO RICO WITHOUT GIVING EFFECT TO
ANY SUBSEQUENT CHANGES IN VALUE OF SUCH NON-CASH PROCEEDS.
(F)
IT IS EXPRESSLY AGREED AMONG THE PARTIES THAT THE PREMIUM SHALL (I) BE
EFFECTED OR PAID AS A REDUCTION IN TEM PUERTO RICO'S ENTITLEMENT TO THE
LIQUIDATION/SALE PROCEEDS AND (II) BE PAID SOLELY TO THE HOLDERS OF THE PREMIUM
STOCK AS OF THE DATE OF PAYMENT OF SUCH PREMIUM.
(G)
IT IS ACKNOWLEDGED AND AGREED THAT THE PREMIUM SHALL UNDER NO CIRCUMSTANCES
(I) EXCEED 16.6% OF THE LIQUIDATION/SALE PROCEEDS, NOR (II) EXCEED THE
PROPORTION OF THE LIQUIDATION/SALE PROCEEDS PAYABLE AND ACTUALLY PAID TO TEM
PUERTO RICO DUE TO THE SHARES OF THE COMPANY'S CAPITAL STOCK IT HELD AT THE TIME
OF THE EFFECTIVE DATE AND THAT IT STILL HOLDS ON THE LIQUIDATION/SALE EFFECTIVE
DATE, PROVIDED THAT THE SHARES OF CAPITAL STOCK HELD BY TEM PUERTO RICO AT THE
TIME OF THE EFFECTIVE DATE AND THEREAFTER SOLD TO A THIRD PARTY, IF ANY, SHALL
BE DEEMED AS IF STILL HELD BY TEM PUERTO RICO.
(H)
THE PARTIES HEREBY AGREE THAT IT IS A CONDITION PRECEDENT TO (X) THE SALE
OF THE COMPANY OR (Y) THE ACQUISITION BY CLEARCOMM OF TEM PUERTO RICO'S EQUITY
INTERESTS IN NEWCOMM UNDER THE SALE AGREEMENT THAT (I) THE BRIDGE LOAN OR THE
LONG-TERM FINANCING, AS THE CASE MAY BE, SHALL HAVE BEEN EITHER REPAID OR
ASSUMED AND EACH OF TEF, TEM, TEM PUERTO RICO AND CLEARCOMM HAS BEEN FULLY AND
UNCONDITIONALLY RELEASED FROM ITS GUARANTEE OBLIGATIONS THEREUNDER AND RECEIVED
PAYMENT IN FULL, INCLUDING INTEREST, AS TO ANY PAYMENTS MADE PURSUANT TO SUCH
GUARANTEES AND (II) THE FCC RELATED DEBT SHALL HAVE BEEN EITHER REPAID OR
ASSUMED AND EACH OF TELEFÓNICA S.A. AND TEM HAS BEEN FULLY AND UNCONDITIONALLY
RELEASED FROM ITS GUARANTEE OBLIGATIONS THEREUNDER.
Section 6.3
Payment of the Premium Irrespective of a
Sale/Liquidation Event.
(A)
IN THE ABSENCE OF A LIQUIDATION/SALE EVENT, UPON THE EARLIER TO OCCUR OF
(I) AN SPA CHANGE OF CONTROL AND (II) THE FIFTH ANNIVERSARY OF THE EFFECTIVE
DATE, TEM PUERTO RICO AGREES, SUBJECT TO THE TERMS SET FORTH IN THIS SECTION, TO
PAY A PREMIUM, WHICH SHALL BE PAYABLE TO
16
HOLDERS, AT THAT TIME, OF PREMIUM STOCK, BASED ON THE APPRAISED VALUE OF NEWCOMM
ESTIMATED BY THE INVESTMENT BANK PREPARING AN EQUITY VALUATION PURSUANT TO THE
PROCEDURES SET FORTH IN SECTION 2.02(B) AND (C) OF THE STOCK PURCHASE
AGREEMENT.
THE INVESTMENT BANK SHALL BE INSTRUCTED THAT THE EQUITY VALUATION TO
BE DELIVERED FOR PURPOSES OF THIS SECTION 6.3(A) SHALL (I) BE DETERMINED AS IF
THE COMPANY WERE TO BE SOLD TO A THIRD PARTY AND (II) BE AN EQUITY VALUATION
WITH RESPECT TO WHICH THE INVESTMENT BANK WOULD BE PREPARED TO DELIVER A WRITTEN
FAIRNESS OPINION IF SO REQUESTED BY THE PARTIES.
(B)
IN THE EVENT THE EQUITY VALUATION IS LESS THAN OR EQUAL TO THE SUM OF THE
BASE VALUE PLUS THE ADDITIONAL SUBSCRIBED VALUE, THERE SHALL BE NO PREMIUM
PAYABLE.
(C)
IN THE EVENT THE