Exhibit 4.1
EXECUTION COPY
SETTLEMENT AGREEMENT
among
TV AZTECA, S.A. DE C.V.,
AZTECA INTERNATIONAL CORPORATION,
XXXXXX TELECASTING COMPANIES,
XXXXXX TELECASTING OF SOUTHERN CALIFORNIA LLC,
XXXXXX SOUTHERN CALIFORNIA LICENSE, LLC,
XXXXXX TELECASTING OF HOUSTON,
HISPANIC AMERICA OF HOUSTON, LLC,
XXXXXX TELECASTING OF CONCORD,
HISPANIC AMERICA OF SAN FRANCISCO, LLC
XXXXXX TELECASTING OF NEVADA,
XXXXXX TELECASTING OF ARIZONA, LLC, and
XXXXXX ARIZONA LICENSE, LLC
Dated as of February 11, 2003
TABLE OF CONTENTS
Page No.
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ARTICLE I DEFINITIONS ................................................. 4
Section 1.1 Definitions ...................................... 4
Section 1.2 Other Definitions ................................ 6
ARTICLE II OVERVIEW OF THE TRANSACTIONS AND THE CLOSING ............... 7
Section 2.1 Deliveries at the Closing......................... 7
Section 2.2 The Closing ...................................... 9
Section 2.3 Simultaneous Closing ............................. 10
ARTICLE III OTHER AGREEMENTS .......................................... 10
Section 3.1 Mutual Cooperation as to Pending Litigations ..... 10
Section 3.2 KAZA-DT Channel 47 .............................. 11
Section 3.3 Limited Indemnification .......................... 11
Section 3.4 Termination of Certain Prior Agreements .......... 12
Section 3.5 AIC's Petition for Waiver for National Spot
Advertising..................................... 12
Section 3.6 Refinancing of PTSC Debt ......................... 13
Section 3.7 Third Party Debt Covenants ....................... 13
Section 3.8 EchoStar Injunction .............................. 13
Section 3.9 New Station Affiliates ........................... 13
Section 3.10 Appointment of FCC Expert ........................ 13
Section 3.11 Stipulations of Dismissal ........................ 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE XXXXXX PARTIES ....... 14
Section 4.1 Existence and Power .............................. 14
Section 4.2 Authorization .................................... 14
Section 4.3 No Contravention.................................. 14
Section 4.4 Binding Effect ................................... 15
ARTICLE V REPRESENTATIONS AND WARRANTIES OF AZTECA PARTIES ............ 15
Section 5.1 Existence and Power .............................. 15
Section 5.2 Authorization .................................... 16
Section 5.3 No Contravention ................................. 16
Section 5.4 Binding Effect ................................... 16
ARTICLE VI GENERAL TERMS .............................................. 17
Section 6.1 Amendment ........................................ 17
Section 6.2 Entire Agreement ................................. 17
Section 6.3 Survival of Representations and Warranties ....... 17
Section 6.4 Successors and Assigns ........................... 17
Section 6.5 Confidentiality .................................. 18
Section 6.6 Notices .......................................... 18
Section 6.7 Counterparts ..................................... 20
Section 6.8 Headings; Gender ................................. 20
Section 6.9 Further Assurances ............................... 20
Section 6.10 Rule of Construction ............................. 20
Section 6.11 Remedies ......................................... 20
Section 6.12 Specific Performance ............................. 20
Section 6.13 Consent to Jurisdiction .......................... 21
Section 6.14 GOVERNING LAW .................................... 21
Schedules
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Schedule 2.1(j) New Station Affiliates
Schedule 3.4 Terminated Agreements
Exhibits
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Exhibit A-1 Purchase and Sale Agreement
Exhibit A-2 Amendment to the HAH Operating Agreement
Exhibit A-3 Amendment to the HASF Operating Agreement
Exhibit B-1 Amended and Restated Credit Agreement
Exhibit B-2 Amended and Restated Note
Exhibit B-3 Amended and Restated Securities Pledge Agreement
Exhibit B-4 Amended and Restated Security Agreement
Exhibit B-5 Amended and Restated Guarantee
Exhibit C-1 Amended and Restated Affiliation Agreement
Exhibit C-2 New Affiliation Agreement Guaranty
Exhibit C-3 Agreement Not to Compete
Exhibit D Mutual Release Agreement
Exhibit E-1 Stipulation of Dismissal (New York)
Exhibit E-2 Stipulation of Dismissal (Delaware)
Exhibit E-3 Stipulation of Dismissal (California)
Exhibit F-1 Local Marketing Agreement
Exhibit F-2 LMA Guaranty
Exhibit G New Option Agreement
Exhibit H Legal Opinion of Xxxx Xxxxxxx LLP
Exhibit I Legal Opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
Exhibit J Withdrawal of Objection
EXECUTION COPY
SETTLEMENT AGREEMENT
Settlement Agreement (the "Settlement Agreement"), dated as of February 11,
2003, by and among each of:
(a) TV Azteca, S.A. de C.V., a sociedad anonima de capital variable
incorporated under the laws of Mexico ("TVA");
(b) Azteca International Corporation, a Delaware corporation and an
indirect wholly-owned subsidiary of TVA ("AIC");
(c) Xxxxxx Telecasting Companies, a Nevada corporation ("PTC");
(d) Xxxxxx Telecasting of Southern California LLC, a Delaware limited
liability company ("PTSC");
(e) Xxxxxx Southern California License, LLC, a Delaware limited liability
company ("PSC License");
(f) Xxxxxx Telecasting of Houston, a California limited partnership
("Xxxxxx Houston");
(g) Hispanic America of Houston, LLC, a Delaware limited liability company
("HAH");
(h) Xxxxxx Telecasting of Concord, a California limited partnership
("Xxxxxx Concord");
(i) Hispanic America of San Francisco, LLC, a Delaware limited liability
company ("HASF");
(j) Xxxxxx Telecasting of Nevada, a California limited partnership ("Xxxxxx
Nevada");
(k) Xxxxxx Telecasting of Arizona, LLC, an Arizona limited liability
company ("Xxxxxx Arizona"); and
(l) Xxxxxx Arizona License, LLC, a Delaware limited liability company
("Arizona License").
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RECITALS
A. The Parties.
Xx. Xxxxx X. Xxxxxx holds 100% of the issued and outstanding equity
interests of PTC. PTC is the manager of and holds 4.44% of the issued and
outstanding equity interests of PTSC. Messrs. Xxxxxx, XxXxx X. Xxxxxxxxxxx and
Xxxxxx X. Xxxxx hold 86.68%, 4.44% and 4.44%, respectively, of the issued and
outstanding equity interests of PTSC. PTSC is the sole member of PSC License.
Under the terms and conditions of the Amended and Restated Equity Option
Agreement, dated as of December 31, 2001 (the "Existing Equity Option
Agreement"), by and between AIC and PTSC, PTSC granted AIC the right to purchase
a percentage of the equity interest of PTSC calculated in accordance with the
terms and conditions of such agreement.
Xx. Xxxxxx is the general partner of Xxxxxx Houston. Xxxxxx Houston holds
75% of the issued and outstanding equity interests of HAH. AIC holds the
remaining 25% of the issued and outstanding equity interests of HAH ("AIC's HAH
Interest"), which it acquired pursuant to the terms and conditions of the
Subscription Agreement, dated as of December 31, 2001 (the "Subscription
Agreement"), by and among HASF, HAH, Xxxxxx Concord, Xxxxxx Houston, TVA and
AIC. HAH is governed pursuant to the terms of the Amended and Restated Operating
Agreement of HAH, dated as of December 31, 2001 (the "HAH Operating Agreement").
Each of Xx. Xxxxxx and PTC is a general partner of Xxxxxx Concord. Xxxxxx
Concord holds 75% of the issued and outstanding equity interest of HASF. AIC
holds the remaining 25% of the issued and outstanding equity interests of HASF
("AIC's HASF Interest"), which it acquired pursuant to the terms and conditions
of the Subscription Agreement. HASF is governed pursuant to the terms of the
Amended and Restated Operating Agreement of HASF, dated as of December 31, 2001
(the "HASF Operating Agreement").
Xxxxxx Nevada is a party to an Existing Affiliation Agreement (as defined
below) with AIC.
Xxxxxx Arizona and Arizona License are parties to the Existing Guarantee
Agreement and the Existing Security Agreement (each as defined below).
B. Certain Existing Agreements between the Parties.
1. Affiliation Agreements.
Pursuant to (i) the Amended and Restated Station Affiliation Agreement,
dated as of December 31, 2001, between AIC and PTSC, with respect to KAZA-TV,
NTSC Channel 54, which serves the Los Angeles, California designated market
area; (ii) the Station Affiliation Agreement, dated as of December 31, 2001,
between AIC and HAH, with respect to KAZH-TV, NTSC Channel 57 and DTV Channel
41, and KVVV-LP, NTSC Channel 53, which serve the Houston, Texas designated
market area; (iii) the
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Station Affiliation Agreement, dated as of December 31, 2001, between AIC and
HASF with respect to KTNC-TV, NTSC Channel 42 and DTV Channel 63, which serve
the San Francisco-Oakland-San Jose, California designated market area; and (iv)
the Station Affiliation Agreement, dated as of October 31, 2001, between AIC and
Xxxxxx Nevada, with respect to KUVR-LP, NTSC Channels 47 and 68, which serve the
Xxxx-Xxxxxx-Carson City, Nevada designated market area (the agreements in
clauses (i) - (iv) collectively, the "Existing Affiliation Agreements"), AIC
granted the relevant Xxxxxx Party an exclusive license for certain broadcasting
of AIC's programming in the relevant designated market area and AIC and such
Xxxxxx Party agreed, among other things, to share certain advertising revenue
generated by AIC and by such Xxxxxx Party.
2. Indebtedness of PTSC to TVA.
(a) PTSC (as borrower) and TVA (as lender) are parties to that certain
Credit Agreement, dated as of July 21, 2001 (the "Existing TVA Credit
Agreement"). As of the date hereof, the aggregate amount outstanding
(including principal and interest thereon) under the Existing TVA Credit
Agreement is $56,147,922.48 (fifty-six million, one hundred forty-seven
thousand nine hundred twenty-two dollars and forty-eight cents).
(b) The obligations of PTSC under the Existing TVA Credit Agreement
are (i) guaranteed pursuant to the Guarantee Agreement, dated as of July
30, 2001 (the "Existing Guarantee Agreement"), by and among TVA, AIC,
Xxxxxx Arizona, Arizona License and PSC License and (ii) secured under (x)
a Security Agreement, dated as of July 30, 2001 (the "Existing Security
Agreement"), by and among PTSC, PSC License, Xxxxxx Arizona, Arizona
License, TVA and AIC, and (y) a Securities Pledge Agreement, dated as of
July 30, 2001, by and among PTC, Messrs. Xxxxxx, Xxxxx and Abercrombie, TVA
and AIC.
C. The Option Exercise and the Pending Litigation.
Pursuant to the Existing Equity Option Agreement, AIC gave notice to PTSC
of AIC's intent to exercise its option to purchase a percentage of the equity
interests in PTSC. The acquisition by AIC of an equity interest in PTSC was not
consummated by the parties on the anticipated closing date, whereupon (i) AIC
filed suit against PTSC in Delaware Chancery Court (Azteca International
Corporation x. Xxxxxx Telecasting of Southern California LLC, Civ. A. No. 19783
(Del. Ch. Ct.)) (the "Delaware Action") and (ii) PTSC and PSC License filed suit
against the Azteca Parties in California state court (Xxxxxx Telecasting of
Southern California LLC and Xxxxxx Southern California License LLC v. TV Azteca,
S.A. de C.V. and Azteca International Corporation, Case No. 02-201389 (Sup.
Ct.)) (the "California Action"). The California Action was stayed by the
agreement of the parties.
Subsequently, (i) AIC filed suit against each PTSC, HAH, HASF and Xxxxxx
Nevada in New York state court (Azteca International Corporation x. Xxxxxx
Telecasting of Southern California LLC, et al., Index No. 602847/02 (Sup. Ct.
N.Y. Cty.)
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and (ii) the relevant Xxxxxx Parties filed counterclaims against each of the
Azteca Parties (collectively, the "New York Action").
D. Agreement in Principle.
PTSC and AIC entered into the Agreement in Principle, dated as of November
27, 2002 ("Agreement in Principle"), to settle all outstanding issues between
them and their respective Affiliates with respect to, among other things, (i)
the Delaware Action, (ii) the New York Action and (iii) the California Action.
In connection with the Agreement in Principle, the New York Action has been
stayed and the trial date in respect of the Delaware Action has been postponed
until March 3, 2003.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein, and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
Capitalized terms used but not otherwise defined in this Settlement
Agreement shall have the meanings specified in this Article I.
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. For the purposes of
this definition, the term "controls," "is controlled by" or "under common
control with" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Azteca Parties" means, collectively, TVA and AIC.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in the State of New York or Mexico City, Mexico are
authorized or required by law or executive order to close.
"Claims" means any actions, suits, proceedings, claims, complaints,
disputes, arbitrations or investigations.
"Contractual Obligations" means, as to any Person, any security issued by
such Person or any agreement, undertaking, contract, indenture, mortgage, deed
of trust
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or other instrument to which such Person is a party or by which it or any of its
property is bound.
"Expense" means any and all expenses incurred in connection with
investigating, defending or asserting any Claim incident to any matter
indemnified against in Section 3.3 (including, without limitation, court filing
fees, court costs, arbitration fees or costs, witness fees, and reasonable fees
and disbursements of legal counsel, investigators, expert witnesses,
consultants, accountants and other professionals).
"Governmental Authority" (i) when used herein in connection with any
representation, warranty, covenant, agreement or obligation of the Seller, means
the government of the United States of America and any state, city, locality or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing Governmental
Authorities referred to in this clause (i); and (ii) when used herein in
connection with any representation, warranty, covenant, agreement or obligation
of the Optionee, means the governments of the United States of America and
Mexico and any state, city, locality or other political subdivision thereof, any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by any of
the foregoing Governmental Authorities referred to in this clause (ii).
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other) or preference, priority,
right of first offer or first refusal, exchange or option right, or other
security interest or preferential arrangement of any kind or nature whatsoever
(excluding preferred stock and equity related preferences).
"Xxxxxx Parties" means, collectively, PTC, PTSC, HAH, Xxxxxx Concord, HASF,
Xxxxxx Houston, Xxxxxx Nevada, PSC License, Xxxxxx Arizona and Arizona License.
"Person" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"Requirements of Law" means, as to any Person, any law, statute, treaty,
rule, regulation, right, privilege, qualification, license or franchise or
determination of an arbitrator or a court or other Governmental Authority or
stock exchange, in each case applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated or referred to herein.
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"Transaction Documents" means this Settlement Agreement, the Amended and
Restated Affiliation Agreements, the New Affiliation Agreements, the New
Affiliation Agreement Guaranties, the Agreements Not to Compete, the Purchase
and Sale Agreement, the Amended and Restated Credit Agreement, the Amended and
Restated Note, the Amended and Restated Security Agreement, the Amended and
Restated Securities Pledge Agreement, the Amended and Restated Guarantee, the
Amendment to the HAH Operating Agreement, the Amendment to the HASF Operating
Agreement, the Local Marketing Agreement, the LMA Guaranty, the New Option
Agreement and the Mutual Release Agreement.
Section 1.2 Other Definitions.
As used herein, the following terms shall have the meanings ascribed to
them in the section of this Settlement Agreement opposite such term:
Definitions Section
----------- -------
Agreement in Principle Recitals
Agreements Not to Compete Section 2.1(l)
AIC Preamble
AIC's HAH Interest Recitals
AIC's HASF Interest Recitals
Amended and Restated Affiliation Agreements Section 2.1(i)
Amended and Restated Credit Agreement Section 2.1(d)
Amended and Restated Guarantee Section 2.1(h)
Amended and Restated Note Section 2.1(e)
Amended and Restated Securities Pledge Agreement Section 2.1(f)
Amended and Restated Security Agreement Section 2.1(g)
Amendment to the HAH Operating Agreement Section 2.1(b)
Amendment to the HASF Operating Agreement Section 2.1(c)
Arizona License Preamble
Asserted Liability Section 3.3(b)
Azteca Parties Recitals
Azteca Release Section 2.1(j)
California Action Recitals
Claims Notice Section 3.3(b)
Closing Section 2.2
Closing Date Section 2.2
Contemplated Transactions Section 2.2
Delaware Action Recitals
Digital Station Section 3.2
Echostar Litigation Section 3.1(a)
Existing Affiliation Agreements Recitals
Existing Equity Option Agreement Recitals
Existing Guarantee Agreement Recitals
Existing Security Agreement Recitals
Existing TVA Credit Agreement Recitals
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FCC Section 3.2
HAH Preamble
HAH Operating Agreement Recitals
HASF Preamble
HASF Operating Agreement Recitals
Indemnifying Party Section 3.3(b)
Indemnitee Section 3.3(b)
LMA Guaranty Section 2.1(p)
Local Marketing Agreement Section 2.1(o)
Losses Section 3.3(a)
Mutual Release Agreement Section 2.1(m)
New Affiliation Agreements Section 2.1(j)
New Affiliation Agreement Guaranties Section 2.1(k)
New Option Agreement Section 2.1(q)
New Station Affiliates Section 2.1(q)
New York Action Recitals
Orders Section 4.3
Xxxxxx Arizona Preamble
Xxxxxx Concord Preamble
Xxxxxx Houston Preamble
Xxxxxx Indemnified Party Section 3.3(a)
Xxxxxx Nevada Preamble
Xxxxxx Release Section 2.1(j)
PSC License Preamble
PTC Preamble
PTSC Preamble
Purchase and Sale Agreement Section 2.1(a)
SCT Section 3.2
SCT Concurrence Section 3.2
Settlement Agreement Preamble
Stipulations of Dismissal Section 2.1(n)
Subscription Agreement Recitals
Terminated Agreements Section 3.4
TVA Preamble
UBS Credit Agreement Recitals
ARTICLE II
OVERVIEW OF THE TRANSACTIONS AND THE CLOSING
Section 2.1 Deliveries at the Closing.
Subject to the terms of, and upon the satisfaction or waiver of the
conditions to be satisfied on the Closing Date set forth in, this Settlement
Agreement and the other Transaction Documents, on the Closing Date:
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(a) each of AIC, PTSC, HAH, HASF, Xxxxxx Houston and Xxxxxx Concord shall
execute and deliver a purchase and sale agreement with respect to AIC's HAH
Interest, AIC's HASF Interest and the note issued by PTSC pursuant to the
Existing TVA Credit Agreement, in the form attached as Exhibit A-1 hereto (the
"Purchase and Sale Agreement");
(b) Xxxxxx Houston shall execute and deliver the Second Amended and
Restated Operating Agreement of HAH, in the form attached as Exhibit A-2 hereto
(the "Amendment to the HAH Operating Agreement");
(c) Xxxxxx Concord shall execute and deliver the Second Amended and
Restated Operating Agreement of HASF, in the form attached as Exhibit A-3 hereto
(the "Amendment to the HASF Operating Agreement");
(d) each of PTSC and AIC shall execute and deliver an amended and restated
credit agreement, in the form attached as Exhibit B-1 hereto (the "Amended and
Restated Credit Agreement");
(e) PTSC shall execute and deliver to AIC a secured promissory note, in the
form attached as Exhibit B-2 hereto, for an initial principal amount of
$128,000,000 (one hundred twenty-eight million dollars) (the "Amended and
Restated Note");
(f) each of PTC, Messrs. Pappas, Davis, Abercrombie and AIC shall execute
and deliver an amended and restated securities pledge agreement, in the form
attached as Exhibit B-3 hereto (the "Amended and Restated Securities Pledge
Agreement");
(g) each of PTSC, PSC License, PTC, Xxxxxx Arizona, Arizona License and AIC
shall execute and deliver an amended and restated security agreement, in the
form attached as Exhibit B-4 hereto (the "Amended and Restated Security
Agreement");
(h) each of Xxxxxx Arizona, Arizona License, PSC License and PTSC shall
execute and deliver an amended and restated guarantee agreement in favor of AIC,
in the form attached as Exhibit B-5 hereto (the "Amended and Restated
Guarantee");
(i) AIC and each of PTSC, HAH, HASF and Xxxxxx Nevada, as to its respective
designated market area, shall execute and deliver an amended and restated
station affiliation agreement, in the form attached as Exhibit C-1 hereto
(collectively, the "Amended and Restated Affiliation Agreements"), amending and
restating their respective Existing Affiliation Agreements;
(j) AIC and each station affiliate set forth on Schedule 2.1(j) hereto
(collectively, the "New Station Affiliates") designated by the Xxxxxx Parties on
or prior to the Closing Date shall execute and deliver a station affiliation
agreement, in the form of the Amended and Restated Affiliation Agreement, with
respect to the station in the
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designated market area set forth opposite the name of such New Station Affiliate
on Schedule 2.1(j) (collectively, the "New Affiliation Agreements");
(k) in connection with each New Affiliation Agreement, each of TVA and the
New Station Affiliate executing a New Affiliation Agreement shall execute and
deliver a guaranty agreement with respect to such New Affiliation Agreement in
the form attached hereto as Exhibit C-2 (collectively, the "New Affiliation
Agreement Guaranties")
(l) in connection with each New Affiliation Agreement, each of TVA, PTC
(and Xx. Xxxxx X. Xxxxxx) shall execute and deliver the Agreement Not to Compete
with respect to the designated market area covered by such New Affiliation
Agreement, in the form attached as Exhibit C-3 hereto (collectively, the
"Agreements Not to Compete");
(m) each of the Xxxxxx Parties (and the other Persons related to Xxxxxx
Parties named therein) and the Azteca Parties shall execute and deliver a mutual
general release, in the form attached as Exhibit D hereto (the "Mutual Release
Agreement");
(n) each of the Xxxxxx Parties and Azteca Parties shall cause their
respective counsel to execute and file with the relevant court the stipulations
of dismissal, in the forms attached as Exhibits E-1, E-2 and E 3 hereto
(collectively, the "Stipulations of Dismissal"), dismissing the New York Action,
the Delaware Action and the California Action (including the claims and
counterclaims) with prejudice and without costs;
(o) each of PTSC, PSC License and AIC shall execute and deliver a local
marketing agreement, in the form attached as Exhibit F-1 hereto (the "Local
Marketing Agreement");
(p) each of TVA and PTSC shall execute and deliver a guaranty agreement
with respect to the Local Marketing Agreement, in the form attached as Exhibit
F-2 hereto (the "LMA Guaranty");
(q) each of PTSC and AIC shall execute and deliver an option agreement, in
the form attached as Exhibit G hereto (the "New Option Agreement");
(r) The Azteca Parties shall have received an opinion of Xxxx Xxxxxxx LLP,
dated the Closing Date, relating to the Contemplated Transactions, substantially
in the form attached hereto as Exhibit H; and
(s) The Xxxxxx Parties shall have received an opinion of Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx LLP, dated the Closing Date, relating to the
Contemplated Transactions, substantially in the form attached hereto as
Exhibit I.
Section 2.2 The Closing.
The closing (the "Closing") of the execution and delivery of the documents
described in Section 2.1 and the other transactions contemplated by this
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Settlement Agreement and the other Transaction Documents to occur concurrently
therewith (but specifically excluding (x) the effectiveness of the Option (as
defined in the New Option Agreement) granted to AIC by PTSC which is subject to
the conditions set forth in Section 2.1 of the New Option Agreement, (y) the
commencement of the Term (as defined in the Local Marketing Agreement) of the
Local Marketing Agreement which is subject to the conditions set forth in
Section 3.1 of the Local Marketing Agreement and (z) the effectiveness of the
LMA Guaranty which is subject to the commencement of the Term of the Local
Marketing Agreement) (collectively, the "Contemplated Transactions") shall take
place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, in New
York City or such other place as the parties may agree, on the date hereof. The
date on which the Closing occurs is the "Closing Date."
Section 2.3 Simultaneous Closing.
The obligations of the parties hereto to consummate the Closing of the
Contemplated Transactions are subject to the simultaneous execution and delivery
of all the Transaction Documents (but specifically excluding (x) the
effectiveness of the Option (as defined in the New Option Agreement) granted to
AIC by PTSC which is subject to the conditions set forth in Section 2.1 of the
New Option Agreement, (y) the commencement of the Term (as defined in the Local
Marketing Agreement) of the Local Marketing Agreement which is subject to the
conditions set forth in Section 3.1 of the Local Marketing Agreement and (z) the
effectiveness of the LMA Guaranty which is subject to the commencement of the
Term of the Local Marketing Agreement).
ARTICLE III
OTHER AGREEMENTS
Section 3.1 Mutual Cooperation as to Pending Litigations.
(a) For a period of one (1) year after the Closing Date, each of the Xxxxxx
Parties agrees to use its commercially reasonable efforts to cooperate (by
providing requested documentation and information and making available
representatives thereof) with the Azteca Parties from time to time and as
reasonably requested by the Azteca Parties in connection with the pending
litigation captioned Echostar Satellite Corporation v. TV Azteca S.A. de C.V.,
Xx. 00 Xxx. 0000 (XXX) (S.D.N.Y.) (the "Echostar Litigation").
(b) For a period of one (1) year after the Closing Date, each of the Azteca
Parties agrees to use its commercially reasonable efforts to cooperate (by
providing requested documentation and information and making available
representatives thereof) with the Xxxxxx Parties from time to time and as
reasonably requested by the Xxxxxx Parties in connection with the pending
litigation between the Xxxxxx Parties and Citicorp Venture Capital (the
"Citicorp Litigation").
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Section 3.2 KAZA-DT Channel 47.
TVA agrees to use its reasonable commercial efforts to assist PTSC in
gaining the concurrence (the "SCT Concurrence") of the Xxxxxxxxxx xx
Xxxxxxxxxxxxxx x Xxxxxxxxxxx xx Xxxxxx (the "SCT") with the allocation by the
Federal Communications Commission of the United States (the "FCC") of digital
channel 47, KAZA-DT (the "Digital Station"), to PTSC; provided, however, that,
so long as TVA complies with its obligations under this Section 3.2, neither
AIC, TVA nor any of their respective Affiliates shall be liable to PTSC if the
SCT fails to grant the SCT Concurrence or for any action of the FCC as to the
allocation of the Digital Station.
Section 3.3 Limited Indemnification.
(a) Notwithstanding any provision to the contrary in this Settlement
Agreement or the Mutual Release Agreement and subject to the limitations
contained in Section 3.3(b),
(i) the Azteca Parties, jointly and severally, agree to indemnify and
hold harmless each of the Xxxxxx Parties, KAZH License, LLC and KTNC
License, LLC (each a "Xxxxxx Indemnified Party") from and against all fines
and other penalties imposed by a Governmental Authority and related
Expenses (collectively, "Losses") based upon, arising out of or otherwise
in respect of any breach of any Requirement of Law by any Xxxxxx
Indemnified Party arising directly from any action, or failure to act when
required to act, of any Azteca Party under the Existing Affiliation
Agreements and any other agreement between the parties during any period
prior to the Closing Date; and
(ii) the Xxxxxx Parties, jointly and severally, agree to indemnify and
hold harmless each of the Azteca Parties from and against all Losses based
upon, arising out of or otherwise in respect of any breach of any
Requirement of Law by any of the Azteca Parties arising directly from any
action, or failure to act when required to act, of any Xxxxxx Party under
the Existing Affiliation Agreements and any other agreement between the
parties during any period prior to the Closing Date.
(b) The party making a Claim under this Section 3.3 is referred to as the
"Indemnitee," and the party against whom such Claims are asserted under this
Section 3.3 is referred to as the "Indemnifying Party." All Claims by any
Indemnitee under this Section 3.3 shall be asserted and resolved as follows:
Promptly after receipt by the Indemnitee of notice of any Claim or circumstances
which, with the lapse of time, would or might give rise to a Claim or the
commencement (or threatened commencement) of a Claim (an "Asserted Liability")
that may result in a Loss imposed by a Governmental Authority, the Indemnitee
shall give notice thereof (the "Claims Notice") to the Indemnifying Party. The
Claims Notice shall describe the Asserted Liability in reasonable detail, and
shall indicate the amount (estimated, if necessary and to the extent feasible)
of the Loss that has been or may be suffered by the Indemnitee. The Indemnifying
Party may elect to compromise or defend, at its own expense and by its own
counsel, any Asserted Liability. If the Indemnifying Party elects to compromise
or
12
defend such Asserted Liability, it shall within 30 days (or sooner, if the
nature of the Asserted Liability so requires) notify the Indemnitee of its
intent to do so, and the Indemnitee shall cooperate, at the expense of the
Indemnifying Party, in the compromise of, or defense against, such Asserted
Liability. If the Indemnifying Party elects not to compromise or defend the
Asserted Liability, fails to notify the Indemnitee of its election as herein
provided or contests its obligation to indemnify under this Settlement
Agreement, the Indemnitee may pay, compromise or defend such Asserted Liability.
Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnitee
may settle or compromise any Asserted Liability over the objection of the other;
provided, however, consent to settlement or compromise shall not be unreasonably
withheld. In any event, the Indemnitee and the Indemnifying Party may
participate, at their own expense, in the defense of such Asserted Liability. If
the Indemnifying Party chooses to defend any Asserted Liability, the Indemnitee
shall make available to the Indemnifying Party any books, records or other
documents within its control that are necessary or appropriate for such defense.
Section 3.4 Termination of Certain Prior Agreements.
The execution of this Settlement Agreement by each of the Azteca Parties
and Xxxxxx Parties shall constitute the written agreement of these parties that
the agreements set forth on Schedule 3.4 hereto (collectively, the "Terminated
Agreements") shall, effective as of the date hereof, be deemed terminated and of
no further force and effect and without further obligation of any party
thereunder.
Section 3.5 AIC's Petition for Waiver for National Spot Advertising.
(a) On or prior to the Closing Date, each of the Xxxxxx Parties shall have
withdrawn any and all objections such Xxxxxx Parties' filed with or otherwise
submitted to the FCC with respect to AIC's petition for waiver for authorization
to sell advertising for affiliates of the Azteca America Network (other than
affiliates owned or controlled by Xxxxx X. Xxxxxx) by filing with the FCC the
withdrawal, in the form attached hereto as Exhibit J,
(b) During the term of the Amended and Restated Affiliation Agreements and
the New Affiliation Agreements, AIC covenants, for itself and its Affiliates,
not to sell any advertising for broadcast on the Azteca America Network (or any
successor) other than as specifically permitted in Rider A to the Amended and
Restated Affiliation Agreements and the New Affiliation Agreements. For the
avoidance of doubt, AIC covenants, for itself and its Affiliates, not to sell,
or attempt to sell, on its own or through representatives or agents, local or
national spot advertising on behalf of any Azteca America Network affiliate that
is a Xxxxxx Party or owned or controlled by a Xxxxxx Party or Xxxxx X. Xxxxxx
except that, if the Local Marketing Agreement becomes effective pursuant to its
terms, then during the Term (as defined therein) of the Local Marketing
Agreement, AIC may sell local and national spot advertising on behalf of
KAZA-TV.
13
Section 3.6 Refinancing of PTSC Debt. From and after the date hereof and
until the Option Effective Date (as defined in the New Option Agreement), as
requested from time to time by AIC or its representatives, the Xxxxxx Parties
shall keep AIC and its representatives reasonably informed with respect to the
status of PTSC's efforts to secure financing to pay the PTSC Debt (as defined in
the Amended and Restated Credit Agreement).
Section 3.7 Third Party Debt Covenants. During the Term of the Local
Marketing Agreement (as such term is defined in the Local Marketing Agreement)
if (i) AIC has knowledge of the covenants contained in any instrument or
agreement creating or evidencing indebtedness of PTSC permitted pursuant to
Section 6.1(j) of the Amended and Restated Credit Agreement, (ii) AIC shall have
been provided with a copy of, and a reasonable opportunity to comment on, each
such instrument or agreement prior to its execution by PTSC and (iii) such
instrument or agreement contains commercially reasonable and standard covenants,
AIC shall exercise reasonable commercial efforts to refrain from causing as a
direct result of its actions, or failure to act when it had an obligation to act
under the terms of the Local Marketing Agreement, a material breach by PTSC of
any such covenants. AIC acknowledges and agrees that the affirmative and
negative covenants contained in the Amended and Restated Credit Agreement are
commercially reasonable and standard covenants.
Section 3.8 EchoStar Injunction. If, prior to the Maturity Date (as
determined in accordance with clause (i) of the definition of Maturity Date set
forth in Section 1.2 of the Amended and Restated Credit Agreement), an Echostar
Injunction (as defined in the Amended and Restated Credit Agreement) is issued,
and the PTSC Debt (as defined in the Amended and Restated Credit Agreement) is
not paid in full before the EchoStar Injunction is issued, then, upon the
issuance of the EchoStar Injunction, the Local Marketing Agreement and the New
Option Agreement shall terminate automatically and be void ab initio and clauses
(y) and (z) of the last sentence of Section 9.4 of the Amended and Restated
Affiliation Agreements shall be deemed to be deleted effective on the date the
Echostar Injunction is issued.
Section 3.9 New Station Affiliates. Notwithstanding the provisions of the
New Affiliation Agreements, the term of each New Affiliation Agreement shall
commence on the date the New Station Affiliate first telecasts the Network
Programs over its station.
Section 3.10 Appointment of FCC Expert. AIC and PTSC have appointed R.
Xxxxx Xxxxxx, Esq. as the "FCC Expert", as defined in the Amended and Restated
Affiliation Agreements, the New Affiliation Agreements and the Local Marketing
Agreement and as the "Option Expert" as defined in the New Option Agreement.
AIC, PTSC and PTC (for itself and its Affiliates) agree that at all times the
same individual shall be appointed by the relevant parties as FCC Expert or
Option Expert under each of these Transaction Documents, and that the relevant
parties shall take all actions necessary to ensure that any successor FCC Expert
or Option Expert appointed under any such Transaction Document shall also be
appointed the successor
14
FCC Expert or Option Expert under each other such Transaction Document, as well
as any station affiliation agreements entered after the Closing Date pursuant to
Section 3.9.
Section 3.11 Stipulations of Dismissal.The parties hereto agree that the
Stipulation of Dismissal in the Delaware Action constitutes a termination of the
Status Quo Agreement and Order entered on August 20, 2002.ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE XXXXXX PARTIES
The Xxxxxx Parties, jointly and severally, represent and warrant as
follows:
Section 4.1 Existence and Power.
Each of the Xxxxxx Parties is a limited liability company or a limited
partnership, duly formed, or corporation, duly organized, in each case validly
existing and in good standing under the laws of the state of its jurisdiction of
formation or incorporation. Each of the Xxxxxx Parties has, as the case may be,
(i) the legal capacity and (ii) the requisite entity-level power and authority
to execute and deliver this Settlement Agreement and the other Transaction
Documents to which it is (or after giving effect to the Closing shall be) a
party, to perform all of its obligations hereunder and thereunder required to be
performed on the Closing Date and to cause its counsel to file with the relevant
court the Stipulations of Dismissal.
Section 4.2 Authorization.
Each of the Xxxxxx Parties has duly authorized the execution, delivery and
performance of this Settlement Agreement and the other Transaction Documents to
which it is (or after giving effect to the Closing shall be) a party and the
filing by its counsel with the relevant court the Stipulations of Dismissal.
Section 4.3 No Contravention.
The execution, delivery and performance by each of the Xxxxxx Parties of
this Settlement Agreement and each of the other Transaction Documents to which
it is (or after giving effect to the Closing shall be) a party and the
Contemplated Transactions (but specifically excluding (x) the effectiveness of
the Option (as defined in the New Option Agreement) granted to AIC by PTSC which
is subject to the conditions set forth in Section 2.1 of the New Option
Agreement and (y) the commencement of the Term (as defined in the Local
Marketing Agreement) of the Local Marketing Agreement which is subject to the
conditions set forth in Section 3.1 of the Local Marketing Agreement), and the
filing by its counsel with the relevant court the Stipulations of Dismissal do
not (i) if applicable, contravene the terms of the constituent or organizational
documents of such Xxxxxx Party, (ii) violate, conflict with or result in any
breach, default or contravention of (or with due notice or lapse of time or both
would result in any breach, default or contravention of), or the creation of any
Lien under, any material Contractual Obligation of any Xxxxxx Party or any
Requirement of Law applicable to such Xxxxxx Party, or (iii)
15
violate any judgment, injunction, writ, award, decree or order (collectively,
"Orders") of any Governmental Authority against, or binding upon, the Xxxxxx
Parties.
Section 4.4 Binding Effect.
This Settlement Agreement and each of the other Transaction Documents to
which any of the Xxxxxx Parties are (or after giving effect to the Closing shall
be) a party have been (or shall have been, on and as of the Closing Date) duly
executed and delivered by such Xxxxxx Party, and, assuming due execution and
delivery thereof by the other parties hereto and thereto, this Settlement
Agreement and each of the other Transaction Documents to which any of the Xxxxxx
Parties are (or after giving effect to the Closing shall be) a party constitute,
the legal, valid and binding obligation of such Xxxxxx Party, enforceable
against such Xxxxxx Party in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity); provided, however, that (x) the
effectiveness of the Option (as defined in the New Option Agreement) granted to
AIC by PTSC is subject to the conditions set forth in Section 2.1 of the New
Option Agreement and (y) the commencement of the Term (as defined in the Local
Marketing Agreement) of the Local Marketing Agreement is subject to the
conditions set forth in Section 3.1 of the Local Marketing Agreement.
None of the Xxxxxx Parties is making any representation or warranty as to
any matter concerning AIC's (i) power and authority or (ii) legal right to hold
the Option (as defined in the New Option Agreement), to exercise the Option, to
acquire the FCC Licenses (as defined in the New Option Agreement) or to
otherwise consummate the transactions contemplated in the New Option Agreement,
whether under the Communications Act or any other Requirement of Law.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF AZTECA PARTIES
The Azteca Parties, jointly and severally, hereby represent and warrant as
follows:
Section 5.1 Existence and Power.
TVA is a sociedad anonima de capital variable incorporated under the laws
of Mexico. AIC is a corporation, duly organized, validly existing and in good
standing under the laws of the state of Delaware. Each of the Azteca Parties has
the requisite entity-level power and authority to execute and deliver this
Settlement Agreement and the other Transaction Documents to which it is (or
after giving effect to the Closing shall be) a party and to perform all of its
obligations hereunder and thereunder required to be performed on the Closing
Date and to cause its counsel to file with the relevant court the Stipulations
of Dismissal.
16
Section 5.2 Authorization.
Each of the Azteca Parties has duly authorized the execution, delivery and
performance of this Settlement Agreement and the other Transaction Documents to
which it is (or after giving effect to the Closing shall be) a party and the
filing by its counsel with the relevant court the Stipulations of Dismissal.
Section 5.3 No Contravention.
The execution, delivery and performance by each of the Azteca Parties of
this Settlement Agreement and each of the other Transaction Documents to which
it is (or after giving effect to the Closing shall be) a party and the
Contemplated Transactions (but specifically excluding (x) the effectiveness of
the Option (as defined in the New Option Agreement) granted to AIC by PTSC which
is subject to the conditions set forth in Section 2.1 of the New Option
Agreement, (y) the commencement of the Term (as defined in the Local Marketing
Agreement) of the Local Marketing Agreement which is subject to the obtaining of
the conditions set forth in Section 3.1 of the Local Marketing Agreement and (z)
the effectiveness of the LMA Guaranty which is subject to the commencement of
the Term of the Local Marketing Agreement), and the filing by its counsel with
the relevant court the Stipulations of Dismissal do not (i) contravene the terms
of the constituent or organizational documents of any Azteca Party, (ii)
violate, conflict with or result in any breach, default or contravention of (or
with due notice or lapse of time or both would result in any breach, default or
contravention of), or the creation of any Lien under, any material Contractual
Obligation of any such Azteca Party or any Requirement of Law applicable to any
Azteca Party, or (iii) violate any Order of any Governmental Authority against,
or binding upon, such Azteca Party.
Section 5.4 Binding Effect.
This Settlement Agreement and each of the other Transaction Documents to
which any of the Azteca Parties is (or after giving effect to the Closing shall
be) a party have been (or shall have been, on and as of the Closing Date) duly
executed and delivered by such Azteca Party, and, assuming due execution and
delivery thereof by the other parties hereto and thereto, this Settlement
Agreement and each of the other Transaction Documents to which any of the Azteca
Parties is (or after giving effect to the Closing shall be) a party constitute,
the legal, valid and binding obligation of such Azteca Party, enforceable
against such Azteca Party in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity); provided, however, that (x) the
effectiveness of the Option (as defined in the New Option Agreement) granted to
AIC by PTSC is subject to the conditions set forth in Section 2.1 of the New
Option Agreement, (y) the commencement of the Term (as defined in the Local
Marketing Agreement) of the Local Marketing Agreement is subject to the
conditions set forth in Section 3.1 of the Local Marketing Agreement and (z) the
17
effectiveness of the LMA Guaranty is subject to the commencement of the Term of
the Local Marketing Agreement.
ARTICLE VI
GENERAL TERMS
Section 6.1 Amendment.
Any amendment, supplement or modification of or to any provision of this
Settlement Agreement, and any waiver of any provision of this Settlement
Agreement shall be effective (i) only if it is made or given in writing and
signed by each of the Azteca Parties and Xxxxxx Parties and (ii) only in the
specific instance and for the specific purpose for which made or given. No
failure to exercise and no delay in exercising on the part of any party hereto
any right, remedy, power or privilege provided in this Settlement Agreement or
by statute or at law or in equity shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, remedy, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. No course of dealing between the parties
hereto shall operate as a waiver of any right, power or privilege hereunder of
any such party. Each and every default by any of the parties under this
Settlement Agreement shall give rise to a separate cause of action hereunder,
and separate suits may be brought under this Settlement Agreement as each cause
of action arises.
Section 6.2 Entire Agreement.
This Settlement Agreement, together with the exhibits and schedules hereto,
and the other Transaction Documents are intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no restrictions,
promises, representations, warranties or undertakings, other than those set
forth or referred to herein or therein. This Settlement Agreement, together with
the exhibits and schedules hereto, and the other Transaction Documents supersede
all prior agreements and understandings between the parties with respect to such
subject matter, including, without limitation, the Terminated Agreements.
Section 6.3 Survival of Representations and Warranties.
All of the representations and warranties made herein shall survive the
execution and delivery of this Settlement Agreement.
Section 6.4 Successors and Assigns.
This Settlement Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of the parties hereto.
18
No Xxxxxx Party, on the one hand, and no Azteca Party, on the
other hand, shall assign or delegate any of its rights or duties hereunder
without the prior written consent of the other (which the other may withhold in
its sole discretion).
Section 6.5 Confidentiality.
No statement announcing in any way the Contemplated Transactions shall be
issued by (i) any of the Azteca Parties, without the prior written consent of
the Xxxxxx Parties as to the specific content of such statement, such consent
not to be unreasonably withheld or delayed, (ii) any of the Xxxxxx Parties,
without the prior written consent of the Azteca Parties as to the specific
content of such statement, such consent not to be unreasonably withheld or
delayed; provided that this Section 6.5 shall not apply (a) in the event such
disclosure is required by any pending litigation or any Requirement of Law (as
determined in good faith by counsel to the Azteca Parties or the Xxxxxx Parties,
as applicable), including if a court of competent jurisdiction or a duly
authorized Governmental Authority requires any such statement in a final order
or (b) if there is a Requirement of Law (as determined in good faith by counsel
to the Azteca Parties or the Xxxxxx Parties, as applicable) for the filing of
this Settlement Agreement or any other Transaction Document with a Governmental
Authority or other disclosure to a Governmental Authority related to any
Transaction Document and, provided, further, that the parties hereto are
expressly authorized to disclose to any and all Persons the structure and tax
aspects of the Contemplated Transactions and all materials of any kind that are
provided to such party related to such structure and tax aspects.
Section 6.6 Notices.
All notices, demands and other communications hereunder shall be made in
writing and shall be by registered or certified first-class mail, return receipt
requested, courier service or personal delivery:
(i) if to any of the Xxxxxx Parties,
c/x Xxxxxx Telecasting Companies
000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Attention: Xxxx Xxxx Xxxxxx, Esq.
Xxxxx Xxxxxxxxxx, Esq.
19
and
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel. (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
(ii) if to any of the Azteca Parties,
TV Azteca, S.A. de C.V.
Periferico Sur 4121
Col. Xxxxxxx xx Xxxxxxxx
X.X. 00000 Xxxxxx
Delegacion Tlalpan
Mexico, D.F.
Tel: 000-000-0-0000-0000
Attention: Lic. Xxxxxxxxx X. Xxxxxxx Xxxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Tel: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxx Xxxxx, Esq.
and
Xxxxx & Xxxxxxx L.L.P
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
Xxxxxxxxxx X. Xxxxxx, Esq.
All such notices, demands and other communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when delivered
by courier, if delivered by commercial courier service; or when actually
received, if mailed. If a notice would be deemed to be given by the preceding
sentence after 5:00 p.m. local time on a Business Day or on a day that is not a
Business Day, such notice shall instead be deemed to have been given on the
immediately following Business Day. Any party may by notice given in accordance
with this Section 6.6 designate another address or Person for receipt of notices
hereunder, but such notice shall not be effective until actually received.
20
Section 6.7 Counterparts.
This Settlement Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same agreement. Execution
and delivery of this Settlement Agreement by exchange of facsimile copies
bearing the facsimile signature of a party hereto shall constitute a valid and
binding execution and delivery of this Settlement Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
Section 6.8 Headings; Gender.
The headings in this Settlement Agreement are inserted for convenience of
reference only and shall not affect the interpretation of this Settlement
Agreement. As used herein, masculine pronouns shall include the feminine and
neuter, neuter pronouns shall include the masculine and feminine, and the
singular shall be deemed to include the plural.
Section 6.9 Further Assurances.
Subject to the other provisions of this Settlement Agreement, each party
hereto agrees to execute, acknowledge, deliver, file and record such further
certificates, amendments, instruments and documents, and to do all such other
acts and things, as may be required by law or as may be necessary, advisable or
convenient to carry out the intent and purpose of this Settlement Agreement.
Section 6.10 Rule of Construction.
The general rule of construction for interpreting a contract, which
provides that the provisions of a contract should be construed against the party
preparing the contract, is waived by the parties hereto. Each party acknowledges
that such party was represented by separate legal counsel in this matter who
participated in the preparation of this Settlement Agreement and the other
Transaction Documents or such party had the opportunity to retain counsel to
participate in the preparation of this Settlement Agreement and the other
Transaction Documents but elected not to do so.
Section 6.11 Remedies.
Except as otherwise provided herein, no remedy herein conferred or reserved
is intended to be exclusive of any other available remedy or remedies, and each
and every remedy shall be cumulative and shall be in addition to every remedy
under this Settlement Agreement or now or hereafter existing at law or in
equity.
Section 6.12 Specific Performance.
Each party hereto acknowledges and agrees that its respective remedies at
law for a breach or threatened breach of any of the provisions of this
Settlement
21
Agreement would be inadequate and, in recognition of that fact, agrees that, in
the event of a breach or threatened breach by any party of the provisions of
this Settlement Agreement, in addition to any remedies at law, the other parties
shall, without posting any bond, be entitled to obtain equitable relief in the
form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
Section 6.13 Consent to Jurisdiction.
Any Claim arising out of or relating to this Agreement or the Contemplated
Transactions contemplated hereby shall be brought by the parties and heard and
determined only in Delaware Chancery Court, unless Delaware Chancery Court
determines that it does not have jurisdiction over such Claim, in which case
such Claim may be brought by the parties and heard and determined only in
Delaware state court or a federal court sitting in Delaware. The parties hereto
consent to jurisdiction before and waive any objections of venue to the Delaware
Chancery Court, Delaware state court and any federal court sitting in Delaware.
Each party agrees not to assert, by way of motion, as a defense or otherwise, in
any such Claim, that it is not subject personally to the jurisdiction of any
such courts, that such Claim is brought in an inconvenient forum, that the venue
of such Claim is improper or that this Agreement or the subject matter hereof
may not be enforced in or by any such courts. Each party further irrevocably
submits to the jurisdiction of Delaware Chancery Court, Delaware state court and
any federal court sitting in Delaware in any such Claim. Each of the parties
irrevocably consents to service of process in the manner provided for notices in
Section 6.6. Nothing herein contained shall be deemed to affect the right of any
party to serve process in any manner permitted by law.
Section 6.14 GOVERNING LAW.
THIS SETTLEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF.
IN WITNESS WHEREOF, the undersigned have caused this Settlement Agreement
to be duly executed and delivered as of the date first written above.
TV AZTECA, S.A. DE C.V.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: General Counsel
AZTECA INTERNATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx Xxxxxx
Title: Director
XXXXXX TELECASTING COMPANIES
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
XXXXXX TELECASTING OF SOUTHERN CALIFORNIA LLC
By: Xxxxxx Telecasting Companies,
its Manager
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
XXXXXX SOUTHERN CALIFORNIA LICENSE, LLC
By: Xxxxxx Telecasting of Southern California
LLC, its Sole Member
By: Xxxxxx Telecasting Companies,
its Manager
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: President
XXXXXX TELECASTING OF HOUSTON,
a California limited partnership
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
HISPANIC AMERICA OF HOUSTON, LLC
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
XXXXXX TELECASTING OF CONCORD,
a California limited partnership
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
HISPANIC AMERICA OF SAN FRANCISCO, LLC
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
XXXXXX TELECASTING OF NEVADA
By: Xxxxxx Telecasting Companies,
its Manager
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: President
XXXXXX TELECASTING OF ARIZONA, LLC
By: Xxxxxx Telecasting Companies,
its Manager
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: President
XXXXXX ARIZONA LICENSE, LLC
By: Xxxxxx Telecasting of Arizona, LLC,
its Sole Member
By: Xxxxxx Telecasting Companies,
its Manager
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: President
CONSENT AND ACKNOWLEDGEMENT
On this 11th day of February, 2003, the undersigned, as members of Xxxxxx
Telecasting of Southern California LLC ("PTSC"), and individually with respect
to paragraph (b) below, hereby acknowledge, consent and agree to:
(a) the execution, delivery and performance by PTSC of the Settlement
Agreement, dated as of the date hereof, by and among TV Azteca, S.A. de C.V.
("TVA"), Azteca International Corporation ("AIC"), Xxxxxx Telecasting Companies
("PTC"), PTSC, Xxxxxx Southern California License, LLC, Xxxxxx Telecasting of
Houston, a California Limited Partnership, Hispanic America of Houston, LLC,
Xxxxxx Telecasting of Concord, a California Limited Partnership, Hispanic
America of San Francisco, LLC, Xxxxxx Telecasting of Nevada, a California
Limited Partnership, Xxxxxx Telecasting of Arizona, LLC and Xxxxxx Arizona
License, LLC including, without limitation, the entry of PTSC into and the
performance by PTSC of the
(i) Local Marketing Agreement, dated as of the date hereof, by and
among PTSC, Xxxxxx Southern California License, LLC, and AIC,
(ii) the Amended and Restated Credit Agreement, dated as of the date
hereof, by and between PTSC and AIC, and
(iii) the Option Agreement, dated as of the date hereof, by and
between PTSC and AIC; and
(b) be bound as a Xxxxxx Party with respect to Section 3.1(a) of the
Settlement Agreement.
IN WITNESS WHEREOF, the undersigned have signed this Consent,
Acknowledgement and Agreement as of the day and year first above written.
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
/s/ LeBon X. Xxxxxxxxxxx
-------------------------------------
LeBon X. Xxxxxxxxxxx
