Exhibit 4.2
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
among
XXXXXX TELECASTING OF SOUTHERN CALIFORNIA LLC,
XXXXXX TELECASTING OF HOUSTON,
XXXXXX TELECASTING OF CONCORD,
HISPANIC AMERICA OF HOUSTON, LLC,
HISPANIC AMERICA OF SAN FRANCISCO, LLC
and
AZTECA INTERNATIONAL CORPORATION
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Dated as of February 11, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS .................................................. 2
1.1 Definitions ................................................... 2
ARTICLE II SALE AND PURCHASE OF THE EQUITY INTERESTS AND THE PTSC NOTE.. 5
2.1 The Equity Interests and the PTSC Note ........................ 5
2.2 Deliveries at the Closing ..................................... 5
2.3 The Closing ................................................... 6
2.4 Allocation .................................................... 6
2.5 Related Matters ............................................... 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF AIC ...................... 7
3.1 Power and Authority ........................................... 7
3.2 Authorization ................................................. 7
3.3 No Contravention .............................................. 7
3.4 Title to Equity Interests and PTSC Note ....................... 7
3.5 Consents 7
3.6 Binding Effect ................................................ 7
3.7 Broker's, Finder's or Similar Fees 8
3.8 Tax Matters ................................................... 8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE XXXXXX PARTIES ........ 8
4.1 Power and Authority ........................................... 8
4.2 Authorization ................................................. 8
4.3 No Contravention .............................................. 8
4.4 Consents ...................................................... 9
4.5 Binding Effect ................................................ 9
4.6 Acquisition for Own Account ................................... 9
4.7 Broker's, Finder's or Similar Fees ............................ 9
ARTICLE V CERTAIN CONSENTS.............................................. 9
5.1 Consents, Waivers and Acknowledgment of the Contemplated
Transactions.................................................. 9
ARTICLE VI MISCELLANEOUS ............................................... 10
6.1 Amendment ..................................................... 10
6.2 Entire Agreement .............................................. 10
6.3 Survival of Representations and Warranties .................... 10
6.4 Successors and Assigns ........................................ 10
6.5 Confidentiality ............................................... 11
6.6 Notices ....................................................... 11
6.7 Counterparts .................................................. 13
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Page
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6.8 Headings; Gender .............................................. 13
6.9 Further Assurances ............................................ 13
6.10 Rules of Construction ......................................... 13
6.11 Remedies ...................................................... 13
6.12 Specific Performance .......................................... 13
6.13 Consent to Jurisdiction ....................................... 13
6.14 GOVERNING LAW ................................................. 14
6.15 Access to Records after Closing ............................... 14
Exhibits
Exhibit A Assignment Agreement
ii
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT, dated as of February 11, 2003 (this
"Agreement"), by and among:
(a) Azteca International Corporation, a Delaware corporation ("AIC");
(b) Xxxxxx Telecasting of Houston, a California Limited Partnership
("Xxxxxx Houston");
(c) Xxxxxx Telecasting of Concord, a California Limited Partnership
("Xxxxxx Concord");
(d) Xxxxxx Telecasting of Southern California LLC, a Delaware limited
liability company ("PTSC");
(e) Hispanic America of San Francisco, LLC, a Delaware limited
liability company ("HASF"); and
(f) Hispanic America of Houston, LLC, a Delaware limited liability
company ("HAH").
WHEREAS, pursuant to the Subscription Agreement, dated as of December 31,
2001 ("Subscription Agreement"), among AIC, HASF, HAH, Xxxxxx Concord and Xxxxxx
Houston, AIC subscribed for (i) a 25% equity interest in HASF (the "HASF
Interest") in exchange for a capital contribution to HASF of $57,250,000
(fifty-seven million two hundred fifty thousand dollars), and (ii) a 25% equity
interest in HAH (the "HAH Interest" and, together with the HASF Interest, the
"Equity Interests") in exchange for a capital contribution to HAH of $13,404,333
(thirteen million four hundred four thousand three hundred thirty-three
dollars);
WHEREAS, Xxxxxx Concord holds the remaining 75% equity interest in HASF and
Xxxxxx Houston holds the remaining 75% equity interest in HAH;
WHEREAS, in connection with the Subscription Agreement, (i) AIC and Xxxxxx
Concord entered into the Amended and Restated Operating Agreement of HASF, dated
as of December 31, 2001 (the "HASF Operating Agreement"), and (ii) AIC and
Xxxxxx Houston entered into the Amended and Restated Operating Agreement of HAH,
dated as of December 31, 2001 (the "HAH Operating Agreement")
WHEREAS, AIC holds (as assignee from TV Azteca, S.A. de C.V., AIC's
ultimate parent company ("TVA")) a promissory note, dated July 30, 2001, of PTSC
in the aggregate principal amount of up to $60,000,000 (sixty million dollars),
of which $56,147,922.48 (fifty-six million, one hundred forty-seven thousand,
nine hundred twenty-two dollars and forty-eight cents) is currently outstanding
(the "PTSC Note");
WHEREAS, the PTSC Note was issued to TVA by PTSC pursuant to the Credit
Agreement, dated as of July 21, 2001, by and between TVA, as lender, and PTSC,
as
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borrower (the "Existing Credit Agreement"), and assigned by TVA to AIC, together
with the Existing Credit Agreement and certain other related agreements;
WHEREAS, HAH, Xxxxxx Houston, HASF, Xxxxxx Concord and PTSC (collectively,
the "Xxxxxx Parties") are affiliates;
WHEREAS, the parties hereto are parties to the Settlement Agreement, dated
as of the date hereof (the "Settlement Agreement"), by and among the parties
hereto and certain of their affiliates, pursuant to which, among other matters,
AIC has agreed, subject to the terms and conditions set forth therein and
herein, to (i) sell the HASF Interest and the HAH Interest to PTSC, (ii) cancel
the PTSC Note, and (iii) execute and deliver the Mutual Release Agreement (as
defined in the Settlement Agreement) in consideration for the issuance by PTSC
to AIC of the Amended and Restated Note (as defined in the Settlement Agreement)
in the aggregate initial principal amount on the Closing Date of $128,000,000
(one hundred twenty-eight million dollars) (the "New PTSC Note");
WHEREAS, in connection with this Agreement, the Settlement Agreement and
the issuance of the New PTSC Note, AIC and PTSC are entering into the Amended
and Restated Credit Agreement (as defined in the Settlement Agreement) and
certain related agreements; and
WHEREAS, in connection with this Agreement and the Settlement Agreement,
(i) Xxxxxx Houston is entering into the Amendment to the HAH Operating Agreement
(as defined in the Settlement Agreement) and (ii) Xxxxxx Concord is entering
into the Amendment to the HASF Operating Agreement (as defined in the Settlement
Agreement).
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Defined terms used in this Agreement but not otherwise
defined have the following meanings:
"AIC" has the meaning set forth in the preamble to this Agreement.
"AIC Consideration" has the meaning set forth in Section 2.4(b).
"Agreement" has the meaning set forth in the preamble to this
Agreement.
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"Business Day" means any day other than Saturday, Sunday or other day
on which commercial banks in the State of New York or Mexico City, Mexico,
are required by law or executive order to close.
"Claims" means any actions, suits, proceedings, claims, complaints,
disputes, arbitrations or investigations.
"Closing" has the meaning set forth in Section 2.3 of this Agreement.
"Closing Date" has the meaning set forth in Section 2.3 of this
Agreement.
"Contemplated Transactions" has the meaning set forth in Section 2.3
of this Agreement.
"Contractual Obligations" means, as to any Person, any security issued
by such Person or any agreement, undertaking, contract, indenture,
mortgage, deed of trust or other instrument to which such Person is a party
or by which it or any of its property is bound.
"Equity Interests" has the meaning set forth in the recitals to this
Agreement.
"Existing Credit Agreement" has the meaning set forth in the recitals
to this Agreement.
"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).
"HAH" has the meaning set forth in the preamble to this Agreement.
"HAH Interest" has the meaning set forth in the recitals to this
Agreement.
"HAH Operating Agreement" has the meaning set forth in the recitals to
this Agreement.
"HASF" has the meaning set forth in the preamble to this Agreement.
"HASF Interest" has the meaning set forth in the recitals to this
Agreement.
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"HASF Operating Agreement" has the meaning set forth in the recitals
to this Agreement.
"Initial Maturity Date" shall mean the date set forth in clause (i) of
the definition of Maturity Date set forth in Section 1.2 of the Amended and
Restated Credit Agreement (as defined in the Settlement Agreement).
"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).
"New PTSC Note" has the meaning set forth in the recitals to this
Agreement.
"Option" shall have the meaning set forth in the New Option Agreement
(as defined in the Settlement Agreement).
"Orders" has the meaning set forth in Section 3.3 of this Agreement.
"Xxxxxx Concord" has the meaning set forth in the preamble to this
Agreement.
"Xxxxxx Houston" has the meaning set forth in the preamble to this
Agreement.
"Xxxxxx Parties" has the meaning set forth in the recitals to this
Agreement.
"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.
"PTSC" has the meaning set forth in the preamble to this Agreement.
"PTSC Note" has the meaning set forth in the recitals to this
Agreement.
"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.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"Settlement Agreement" has the meaning set forth in the recitals to
this Agreement.
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ARTICLE II
SALE AND PURCHASE OF THE
EQUITY INTERESTS AND THE PTSC NOTE
2.1 The Equity Interests and the PTSC Note. At the Closing, upon the terms
and conditions of this Agreement, the Settlement Agreement and the Amended and
Restated Credit Agreement and in reliance upon the representations and
warranties and agreements contained herein and therein, (a) AIC shall (i) sell
to PTSC, and PTSC shall purchase from AIC the Equity Interests, free and clear
of any Liens (other than those created by PTSC, the HAH Operating Agreement, the
HASF Operating Agreement and the Existing Credit Agreement), (ii) cancel the
PTSC Note and (iii) execute and deliver the Mutual Release Agreement (as defined
in the Settlement Agreement), and (b) in consideration for the sale of such
Equity Interests, the cancellation of such PTSC Note and the delivery of the
Mutual Release Agreement as set forth in this Section 2.1, PTSC shall issue to
AIC the New PTSC Note.
2.2 Deliveries at the Closing.
(a) At the Closing, AIC shall deliver to PTSC:
(i) the Assignment Agreement attached hereto as Exhibit A, duly
executed by AIC;
(ii) a certificate representing the HASF Interest;
(iii) a certificate representing the HAH Interest;
(iv) the PTSC Note, marked "fully paid" and "cancelled";
(v) the Mutual Release Agreement, duly executed by AIC and TVA;
and
(vi) a certificate of AIC, in form reasonably satisfactory to
PTSC, certifying that AIC is not a "foreign person" within the meaning
of Section 1445(f)(3) of the Code and Section 1.1445-2 of the Treasury
Regulations thereunder.
(b) At the Closing, PTSC shall issue and deliver to AIC (i) the
Assignment Agreement attached hereto as Exhibit A, duly executed by PTSC,
and (ii) the New PTSC Note, duly executed by PTSC.
(c) At the Closing, HASF shall register the purchase of the HASF
Interest by PTSC pursuant to this Agreement.
(d) At the Closing, HAH shall register the purchase of the HAH
Interest by PTSC pursuant to this Agreement.
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2.3 The Closing. The closing (the "Closing") of the transactions described
in this Article II (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, at 5:00 p.m. (local time) on the date
hereof. The time and date on which the Closing occurs is the "Closing Date."
2.4 Allocation.
(a) The parties agree that the allocation of the principal amount of
the New PTSC Note among the PTSC Note that is being cancelled pursuant to
this Agreement, the Equity Interests acquired by PTSC and the Mutual
Release Agreement shall be as follows: (i) $56,147,922.48 (fifty-six
million, one hundred forty-seven thousand, nine hundred twenty-two dollars
and forty-eight cents) to the PTSC Note, (ii) $57,250,000 (fifty-seven
million two hundred fifty thousand dollars) for the HASF Interest (iii)
$13,404,333 (thirteen million four hundred four thousand three hundred
thirty-three dollars) for the HAH Interest and (iv) $1,197,744.52 (one
million one hundred ninety-seven thousand seven hundred forty-four and
fifty-two cents) in respect of the settlement of claims as set forth in the
Mutual Release Agreement. PTSC and AIC each agree to prepare and file all
tax returns and reports (including information returns) on a basis
consistent with the allocation provided in the preceding sentence.
(b) The parties hereto agree that (i) the aggregate fair market value
of the PTSC Note, the Equity Interests and the settlement of claims by AIC
as set forth in the Mutual Release Agreement (collectively, the "AIC
Consideration"), is $128 million, (ii) the fair market value of the Option
is zero, and (iii) neither the New PTSC Note, nor any note treated as
received upon a deemed exchange of the New PTSC Note on the Initial
Maturity Date or otherwise in accordance with this Agreement, shall be
treated as having "original issue discount" for federal income tax
purposes. PTSC and AIC each agree to prepare and file all tax returns and
reports (including information returns) on a basis consistent with the
preceding sentence.
2.5 Related Matters. Effective as of the Closing, the designees of AIC to
the Board of Managers of each of HAH and HASF shall resign. HAH hereby agrees
that, effective as of the Closing, (i) the indemnification provided to such
designees under Section 5.6 of the HAH Operating Agreement shall survive such
resignations and any subsequent amendment of the HAH Operating Agreement, and
(ii) AIC shall have no obligation or liability, in respect of capital
contributions or otherwise, to HAH. HASF hereby agrees that, effective as of the
Closing, (i) the indemnification provided to such designees under Section 5.6 of
the HASF Operating Agreement shall survive such resignations and any subsequent
amendment of the HASF Operating Agreement, and (ii) AIC shall have no obligation
or liability, in respect of capital contributions or otherwise, to HASF.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AIC
AIC represents and warrants to the Xxxxxx Parties as follows:
3.1 Power and Authority. AIC has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement.
3.2 Authorization. AIC has duly authorized the execution, delivery and
performance of this Agreement.
3.3 No Contravention. The execution, delivery and performance by AIC of
this Agreement and the Contemplated Transactions, including, without limitation,
the sale of the Equity Interests, do not (a) contravene the terms of its
constituent or organizational documents; (b) violate, conflict with or result in
any breach or contravention of, or the creation of any Lien under, any
Contractual Obligation of AIC, or any Requirement of Law applicable to AIC or
(c) violate any judgment, writ, injunction, award, decree or order
(collectively, "Orders") of any Governmental Authority against, or binding upon,
AIC.
3.4 Title to Equity Interests and PTSC Note. Except for the Liens created
by the HAH Operating Agreement, the HASF Operating Agreement and the Existing
Credit Agreement, AIC owns, beneficially and of record, the Equity Interests and
the PTSC Note, free and clear of all Liens. Other than pursuant to the HAH
Operating Agreement and the HASF Operating Agreement, AIC has the unrestricted
power and authority to transfer the Equity Interests to PTSC. Upon delivery to
PTSC of the Equity Interests and payment therefor in the form of the execution
and delivery of the New PTSC Note, PTSC shall acquire good and valid title to
such Equity Interests, free and clear of all Liens, other than those created by
PTSC, the HAH Operating Agreement, the HASF Operating Agreement and the Existing
Credit Agreement.
3.5 Consents. Except for the filing by the Xxxxxx Parties of a notification
and report form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and the expiration or earlier termination of the applicable waiting
period thereunder, no approval, consent, compliance, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority or
any other Person, and no lapse of a waiting period under a Requirement of Law is
necessary or required in connection with the execution, delivery or performance
by or enforcement against AIC of this Agreement or the transactions contemplated
hereby.
3.6 Binding Effect. This Agreement has been duly executed and delivered by
AIC, and this Agreement constitutes the legal, valid and binding obligation of
AIC, enforceable against AIC in accordance with its 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).
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3.7 Broker's, Finder's or Similar Fees. There are no brokerage commissions,
finder's fee or similar fees or commissions payable AIC in connection with the
Contemplated Transactions based on any agreement, arrangement or understanding
with AIC or any action taken by AIC.
3.8 Tax Matters.
(a) AIC has timely filed, or caused to be timely filed, with the
appropriate tax authorities all material tax returns pertaining to AIC that
have been required to be filed through the date hereof (and will timely
file, or cause to be filed any such material tax return required to be
filed on or prior to the Closing Date). All such tax returns were (or, in
the case of tax returns not yet filed, will be when filed) true, correct
and complete in all material respects;
(b) All taxes that were reflected as a liability on any of the tax
returns described in paragraph (a), and any other material taxes of AIC,
which were due and payable before the date hereof have been timely paid in
full, and all such taxes that are due and payable on or prior to the
Closing Date shall be timely paid in full on or prior to the Closing Date;
(c) There are no audits, investigations or claims for or relating to
any additional material liability of AIC in respect of taxes that are
pending or have been proposed in writing; and
(d) There are no liens for taxes on the Equity Interests or the PTSC
Note, except for statutory liens for current taxes not yet due.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE XXXXXX PARTIES
The Xxxxxx Parties, jointly and severally, hereby represent and warrant to
AIC as follows:
4.1 Power and Authority. Each of the Xxxxxx Parties has all requisite
limited partnership or limited liability company power and authority to execute,
deliver and perform its obligations under this Agreement.
4.2 Authorization. Each of the Xxxxxx Parties has duly authorized the
execution and delivery and performance of this Agreement.
4.3 No Contravention. The execution, delivery and performance by each of
the Xxxxxx Parties of this Agreement does not (a) contravene the terms of its
constituent or organizational documents, (b) violate, conflict with or result in
any breach or contravention of, or the creation of any Lien under, any
Contractual Obligation of such Xxxxxx Party or any Requirement of Law applicable
to such Xxxxxx Party or (c) violate any Order of any Governmental Authority
against, or binding upon, such Xxxxxx Party.
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4.4 Consents. Except for the filing by the Xxxxxx Parties of a notification
and report form under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and the expiration or earlier termination of the applicable waiting
period thereunder, no approval, consent, compliance, exemption, authorization or
other action by, or notice to, or filing with, any Governmental Authority or any
other Person (other than disclosure filings as contemplated by Section 6.5), and
no lapse of a waiting period under any Requirement of Law, is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, each of the Xxxxxx Parties of this Agreement and the
transactions contemplated hereby.
4.5 Binding Effect. This Agreement has been duly executed and delivered by
each of the Xxxxxx Parties and this Agreement constitutes the valid and binding
obligations of each of the Xxxxxx Parties, enforceable against each such Xxxxxx
Party in accordance with its 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 or by equitable principles relating to enforceability
(regardless of whether considered in a proceeding at law or in equity).
4.6 Acquisition for Own Account. PTSC is acquiring the Equity Interests for
its own account for investment only, and not with a view towards their
distribution except as contemplated by Section 6.6(c) of the Amended and
Restated Credit Agreement (as defined in the Settlement Agreement).
4.7 Broker's, Finder's or Similar Fees. There are no brokerage commissions,
finder's fees or similar fees or commissions payable by any Xxxxxx Party in
connection with the transactions contemplated hereby based on any agreement,
arrangement or understanding with any Xxxxxx Party or any action taken by any
Xxxxxx Party.
ARTICLE V
CERTAIN CONSENTS
5.1 Consents, Waivers and Acknowledgment of the Contemplated Transactions.
(a) Xxxxxx Concord hereby (i) waives its rights of first refusal set
forth in Section 10.4 of the HASF Operating Agreement as to the transfer of
the HASF Interest from AIC to PTSC, (ii) consents to the transfer of the
HASF Interest from AIC to PTSC pursuant to Section 10.4(e)(iv) of the HASF
Operating Agreement, (iii) consents to the transfer of the HASF Interest
from PTSC to Xxxxxx Concord, and (iv) acknowledges and consents to the
Contemplated Transactions.
(b) Xxxxxx Houston hereby (i) waives its rights of first refusal set
forth in Section 10.4 of the HAH Operating Agreement as to the transfer of
the HAH Interest from AIC to PTSC, (ii) consents to the transfer of the HAH
Interest from AIC to PTSC pursuant to Section 10.4(e)(iv) of the HAH
Operating Agreement, (iii) consents to the
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transfer of the HAH Interest from PTSC to Xxxxxx Houston, and (iv)
acknowledges and consents to the Contemplated Transactions.
(c) HASF hereby (i) waives all conditions to the transfer from AIC to
PTSC and from PTSC to Xxxxxx Concord of the HASF Interest contained in the
HASF Operating Agreement and (ii) acknowledges and consents to the
Contemplated Transactions.
(d) HAH hereby (i) waives all conditions to the transfer from AIC to
PTSC and from PTSC to Xxxxxx Houston of the HAH Interest contained in the
HAH Operating Agreement and (ii) acknowledges and consents to the
Contemplated Transactions.
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by any party hereto from the terms of any provision
of this Agreement, shall be effective (i) only if it is made or given in writing
and signed by all the parties hereto, and (ii) only in the specific instance and
for the specific purpose for which made or given. No failure or delay on the
part of any party hereto in exercising any right, remedy, power or privilege
hereunder 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 Agreement shall give rise to a separate cause of action
hereunder, and separate suits may be brought under this Agreement as each cause
of action arises.
6.2 Entire Agreement. This Agreement, the Settlement Agreement and the
Transaction Documents (as defined in the Settlement Agreement) 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
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
6.3 Survival of Representations and Warranties. All of the representations
and warranties made herein shall survive the execution and delivery of this
Agreement.
6.4 Successors and Assigns. Neither any Xxxxxx Party nor AIC 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). This
Agreement shall inure
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to the benefit of and be binding upon the successors and permitted assigns of
the parties hereto.
6.5 Confidentiality.
(a) No statement announcing in any way the Contemplated Transactions
shall be issued by (i) AIC, without the prior written consent of PTSC as to
the specific content of such statement, such consent not to be unreasonably
withheld or delayed, or (ii) PTSC, without the prior written consent of AIC
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 Requirement of Law (as determined in good faith by counsel to
AIC or PTSC, 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 AIC or PTSC, as applicable) for the filing of this
Agreement with a Governmental Authority or other disclosure to a
Governmental Authority related to this Agreement or any other Transaction
Document.
(b) Except as may be required by any Requirement of Law and except as
set forth in Section 6.5(a), AIC shall keep confidential, shall not
disclose or use, and shall use its best efforts to prevent its Affiliates
and any of its or its Affiliates' present or former employees, agents and
representatives from disclosing or using, any information which (i)
pertains to the business of HASF or HAH or (ii) pertains to confidential or
proprietary information of any member of HASF or HAH or which any member of
HASF or HAH has labeled in writing as confidential or proprietary, in each
case without the prior written consent of PTSC. The term "confidential
information" is used in this Section 6.5(b) to describe information which
is confidential, non-public or proprietary in nature, and relates either
directly or indirectly to HAH or HASF, the business of HAH or HASF or any
member of HAH or HASF, but excluding information relating to AIC's
ownership interest in HAH or HASF. Information which (i) is available, or
becomes available, to the public through no fault or action by AIC, its
Affiliates, agents, representatives or employees or (ii) becomes available
on a non-confidential basis from any source other than AIC, or its
Affiliates, agents, representatives or employees and such source is not
prohibited from disclosing such information, shall not be deemed
confidential information.
(c) Notwithstanding anything in this Section 6.5 to the contrary, 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 the parties related to such
structure and tax aspects.
6.6 Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be sent by registered or
certified first-class mail, return receipt requested, courier service or
personal delivery:
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if to 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.
if to AIC:
x/x XX Xxxxxx, X.X. xx X.X.
Xxxxxxxxxx Xxx 0000
Col. Xxxxxxx xx Xxxxxxxx
X.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.
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.
13
6.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute one and the same agreement.
Execution and delivery of this 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 Agreement by such party. Such facsimile copies
shall constitute enforceable original documents.
6.8 Headings; Gender. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. 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.
6.9 Further Assurances. Subject to the Settlement Agreement and other
provisions of this 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 Agreement.
6.10 Rules 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
Agreement or such party had the opportunity to retain counsel to participate in
the preparation of this Agreement but elected not to do so.
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 Agreement or now or hereafter existing at
law or in equity.
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 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 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.
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 declines 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
14
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.
6.14 GOVERNING LAW. THIS 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.
6.15 Access to Records after Closing. For a period of six (6) years after
the Closing Date AIC and its representatives shall have reasonable access to all
of the books and records of HASF and HAH to the extent that such access is
reasonably required by AIC in connection with its ownership interest in HASF or
HAH prior to the Closing Date. Such access shall be afforded by HASF and HAH
upon receipt of reasonable advance notice and during normal business hours. AIC
shall be solely responsible for any costs or expenses incurred by it pursuant to
this Section 6.15, and shall promptly reimburse HASF and HAH for any reasonable
documented costs or expenses incurred by them pursuant to this Section 6.15. If
HASF or HAH shall desire to dispose of any of such books and records prior to
the expiration of such six-year period, it shall, prior to such disposition,
give AIC a reasonable opportunity, at AIC's expense, to segregate and remove
such books and records as AIC may select.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
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 OF SOUTHERN CALIFORNIA LLC
By: XXXXXX TELECASTING COMPANIES,
its Manager
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
HISPANIC AMERICA OF HOUSTON, LLC
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
HISPANIC AMERICA OF SAN FRANCISCO, LLC
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
XXXXXX TELECASTING OF HOUSTON,
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
XXXXXX TELECASTING OF CONCORD,
A California Limited Partnership
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
