In the United States Bankruptcy Court for the District of Delaware

Case 21-10457-LSS Doc 249 Filed 05/17/21 Page 1 of 6

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Chapter 11 In re Case No. 21-10457 (LSS) MOBITV, INC., et al., (Jointly Administered)

Debtors1. Re: Docket Nos. 73, 164 and 171

Objection Deadline: May 17, 2021 at 4:00 p.m. Hearing Date: May 21, 2021 at 2:00 p.m.

LIMITED OBJECTION AND RESERVATION OF RIGHTS WITH RESPECT TO PROPOSED ASSUMPTION AND ASSIGNMENT

Fox Cable Network Services, LLC, Fox News Network, LLC and Fox Television

Holdings, LLC (collectively, “Fox”), by its undersigned counsel, submits its limited objection and reservation of rights (the “Objection”) to the Motion for (I) Order (A) Approving Bid

Procedures for the Sale of Substantially All Assets of the Debtors; (B) Approving Procedures for the Assumption and Assignment of Executory Contracts and Unexpired Leases; (C) Scheduling the Auction and Sale Hearing; and (D) Granting Related Relief; and (II) an Order (A)

Approving the Debtors’ Sale of Assets Free and Clear of All Liens, Claims and Encumbrances; and (B) Approving the Assumption and Assignment or Rejection of Executory Contracts and

Unexpired Leases, dated March 8, 2021 [Docket No. 73] (the “Motion”) filed by the above- captioned debtors (the “Debtors”). In support of this Objection, Fox respectfully represents as follows:

1 The Debtors in these chapter 11 cases and the last four digits of each Debtor’s U.S. tax identification number are as follows: MobiTV, Inc. (2422) and MobiTV Service Corporation (8357). The Debtors’ mailing address is 1900 Powell Street, 9th Floor, Emeryville, CA 94608. Case 21-10457-LSS Doc 249 Filed 05/17/21 Page 2 of 6

1. MobiTV, Inc. (“MobiTV”) and Fox entered into a Service Signal Transport

Agreement, dated as of April 2, 2018, as amended by an amendment effective and entered into

April 27, 2020 (as amended, the “Signal Transport Agreement”) pursuant to which MobiTV is

authorized to receive and distribute on the terms set forth therein the signal for certain Fox

televised services set forth in Schedule 1 to the Signal Transport Agreement.

2. The Debtors propose to assume and assign the Signal Transport Agreement to the

Successful Bidder (as hereinafter defined). To assign an executory contract, section 365(f)(2)(B)

of the Bankruptcy Code requires a debtor to provide adequate assurance of future performance

by the assignee, whether or not there has been a default. 11 U.S.C. § 365(f)(2(B). The Debtors

have provided no information about the prospective assignee, let alone its willingness or ability

to perform the very specific technical obligations under the Signal Transport Agreement. In the

absence of this required information, Fox reserves its rights and for that reason objects to the

assignment to the Successful Bidder until the Debtors have provided Fox with sufficient

information about the Successful Bidder’s ability to perform the obligations it will assume.

BACKGROUND

3. On March 1, 2021, the Debtors commenced these chapter 11 cases (the “Chapter

11 Cases”) by filing voluntary petitions for relief under chapter 11 of the Bankruptcy Code. The

Debtors continue to manage and operate their businesses as debtors-in-possession under sections

1107(a) and 1108 of the Bankruptcy Code. No trustee or examiner has been appointed in these

Chapter 11 Cases.

4. The Debtors are in the business of providing end-to-end internet protocol

streaming television services (“IPTV”) by a proprietary cloud-based, white label application that

enables the Debtors’ customers (generally television operators, broadband providers, and cellular device carriers) to provide a customized video streaming platform to their retail subscribers on

- 2 - Case 21-10457-LSS Doc 249 Filed 05/17/21 Page 3 of 6

devices such as Roku, Apple TV, Amazon Fire TV, Xbox, and smart TVs, as well as devices

utilizing Android and iOS operating systems.

5. Fox is in the business of producing video content for a number of different

audiences. The Signal Transport Agreement enables the Debtors to carry the signal for Fox

video and deliver it to the Debtors’ customers. For that reason, the Signal Transport Agreement

contains a number of very specific requirements and imposes technical obligations on the

Debtors, which, by the Motion, the Debtors propose to assign to the Successful Bidder.

6. On April 7, 2021, this Court entered the Order (A) Approving Bidding Procedures

for the Sale of Substantially All Assets of the Debtors; (B) Approving Procedures for the

Assumption and Assignment of Executory Contracts and Unexpired Leases; (C) Scheduling the

Auction and Sale Hearing; and (D) Granting Related Relief [Docket No. 164] (the “Bidding

Procedures Order”).

7. On April 9, 2021, the Debtors filed the Notice of Proposed (I) Cure Amounts and

Cure Objection Deadline and (II) Potential Assumption and Assignment of Executory Contracts

and Unexpired Leases [Docket No. 171] (the “Assumption and Cure Notice”). The Signal

Transport Agreement was identified in the Assumption and Cure Notice as one of the executory

contracts to be assumed and assigned.

8. Pursuant to the Bidding Procedures Order, the Debtors conducted an auction on

May 11-12, 2021 for substantially all of the Debtors’ assets. At the conclusion of the auction, the Debtors, in consultation with their advisors and the Consultation Parties (as defined in the

Bidding Procedures Order), selected the bid submitted by TiVo Corporation (the “Successful

Bidder”) as the successful bid.

- 3 - Case 21-10457-LSS Doc 249 Filed 05/17/21 Page 4 of 6

9. Following the auction, the Successful Bidder added certain additional contracts to,

and removed certain contracts from, the Assumption and Cure Notice. However, the Signal

Transport Agreement has remained on the list of contracts to be assumed and assigned.

LIMITED OBJECTION AND RESERVATION

10. Fox does not object to the Debtors’ sale of substantially all of its assets to the

Successful Bidder. However, Fox does object to the assumption and assignment of the Signal

Transport Agreement to the extent that the assumption and assignment is not conditioned on

compliance with the requirements of section 365 of the Bankruptcy Code, including, but not

limited to, paying all amounts due and owing under through the effective date of the assumption

and providing adequate assurance of future performance information to Fox.

11. To assume an executory contract, “a debtor typically need only cure any arrearages and provide adequate assurance of future performance of the lease or contract.” In re

Sun TV and Appliances, Inc., 234 B.R. 356, 359 (Bankr. D. Del. 1999) (citing 11 U.S.C. §

365(b)(1)).

12. Bankruptcy Code section 365(f)(2)(B) permits a trustee or debtor-in-possession to assign an executory contract only if “adequate assurance of future performance by the assignee of such contract or lease is provided, whether or not there has been a default in such contract or lease.” See In re Sun TV and Appliances, Inc. at 370.

13. While adequate assurance of future performance is not defined in the Bankruptcy

Code, several courts have looked to the legislative history for guidance and have concluded that

“the term was intended to be given a practical, pragmatic construction in light of the facts of each case.” In re Natco Industries, Inc., 54 B.R. 436, 440-441 (Bankr. S.D.N.Y. 1985); see also In re

Fleming Cos., Inc., 499 F.3d 300, 307 (3d Cir. 2007) (“Adequate assurance of future

performance are not words of art; the legislative history of the [Bankruptcy] Code shows that

- 4 - Case 21-10457-LSS Doc 249 Filed 05/17/21 Page 5 of 6

they were intended to be given a practical, pragmatic construction.... What constitutes ‘adequate

assurance of future performance must be determined by consideration of the facts of the

proposed assumption.” (internal quotation marks omitted)).

14. The Debtors bear the burden of demonstrating the Successful Bidder’s ability to

provide adequate assurance of future performance. In re Lafayette Radio Electronics Corp., 12

B.R. 302, 312 (Bankr. E.D.N.Y. 1991). See also In re Thane Int’l, Inc., 586 B.R. 540, 546

(Bankr. D. Del. 2018); In re Federated Dept. Stores, Inc., 135 B.R. 941, 944 (Bankr. S.D. Ohio

1991); In re TSW Stores of Nanuet, Inc., 34 B.R. 299, 308 (Bankr. S.D.N.Y. 1983).

15. Here, neither the Debtors nor the Successful Bidder has provided any information on which Fox can determine whether the proposed assignee has the ability or willingness to perform the obligations it will assume under the Signal Transport Agreement. Until the Debtors come forward with such information, Fox is unable to determine whether the requirements of section 365(f)(2)(B) of the Bankruptcy Code can be satisfied.

16. Until that information is forthcoming, Fox reserves all of its rights and in the absence of such information, objects to the proposed assumption and assignment to the

Successful Bidder.

[Remainder of Page Intentionally Left Blank]

- 5 - Case 21-10457-LSS Doc 249 Filed 05/17/21 Page 6 of 6

WHEREFORE, Fox requests that the Court deny the Motion until, and unless, the

Debtors have satisfied the requirements of section 365(f)(2)(B) of the Bankruptcy Code.

Dated: May 17, 2021 Respectfully submitted, Wilmington, Delaware REED SMITH LLP

By: /s/ Katelin A. Morales Katelin A Morales (No. 6683) 1201 Market Street, Suite 1500 Wilmington, DE 19801 Telephone: (302) 778-7500 Facsimile: (302) 778-7575 E-mail: [email protected]

Attorneys for Fox Cable Network Services, LLC, Fox News Network, LLC and Fox Television Holdings, LLC

- 6 - Case 21-10457-LSS Doc 249-1 Filed 05/17/21 Page 1 of 2

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Chapter 11 In re Case No. 21-10457 (LSS) MOBITV, INC., et al., (Jointly Administered)

Debtors1.

CERTIFICATE OF SERVICE

I, John B. Lord, an employee of Reed Smith LLP, certify that, on the 17th day of May

2021, a true and correct copy of the LIMITED OBJECTION AND RESERVATION OF

RIGHTS WITH RESPECT TO PROPOSED ASSUMPTION AND ASSIGNMENT was electronically filed via the Court’s CM/ECF system and thereby served on those parties having registered to receive electronic notice in the above-captioned matter, as well as separately on the below-listed parties in the manners indicated:

VIA E-MAIL VIA E-MAIL Debra Grassgreen Mary Caloway Jason Rosell Pachulski Stang Ziehl & Jones LLP Pachulski Stang Ziehl & Jones, LLP, 919 North Market Street, 17th Floor 150 California Street, 15th Floor Wilmington, DE 19801 San Francisco, CA 94111 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]

VIA E-MAIL VIA E-MAIL Benjamin A. Hackman Kenneth Noble Office of the United States Trustee for the McGuireWoods LLP District of Delaware 1251 Avenue of the Americas, 20th Floor 844 King Street, Suite 2207 New York, NY 10020, Wilmington, DE 19801 E-mail: [email protected] E-mail: [email protected]

VIA E-MAIL VIA E-MAIL Seth Niederman Will Sugden Michael Sweet Jacob Johnson Gordon Gouviea Alston & Bird LLP Fox Rothschild LLP 1201 W. Peachtree Street. 919 N. Market Street, Suite 300 Atlanta, GA 30309 Wilmington, DE 19801 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] E-mail: [email protected]

Dated: May 17, 2021 REED SMITH LLP Wilmington, Delaware By: /s/ John B. Lord John B. Lord, Bankruptcy Paralegal 1201 North Market Street, Suite 1500 Wilmington, DE 19801-1163 Telephone: (302) 778-7500 E-mail: [email protected]

- 2 -