Exhibit 4.5
EXECUTION COPY
GUARANTY AGREEMENT
This Guaranty Agreement (this "Guaranty"), dated as of February __, 2003,
is made by TV Azteca, S.A. de C.V. ("Guarantor"), in favor of ▇▇▇▇▇▇ Telecasting
of Southern California LLC (the "Beneficiary").
WHEREAS, Azteca International Corporation ("AIC") is an indirect
wholly-owned subsidiary of the Guarantor; and
WHEREAS, Azteca International Corporation, the Beneficiary, and ▇▇▇▇▇▇
Southern California License, LLC, a direct, wholly-owned subsidiary of the
Beneficiary, have entered into that certain Local Marketing Agreement (as the
same may be amended, the "LMA"), dated as of the date hereof, pursuant to which
AIC will provide programming to KAZA-TV, Avalon, California, for which ▇▇▇▇▇▇
Southern California License, LLC is the licensee pursuant to authorizations
granted by the Federal Communication Commission; and
WHEREAS, the Guarantor will obtain benefit directly or indirectly from the
LMA;
NOW, THEREFORE, in consideration of the premises, the Guarantor hereby
agrees as follows:
ARTICLE I
DEFINED TERMS
Capitalized terms used in this Guaranty but not otherwise defined herein
shall have the meanings given to such terms in the LMA.
ARTICLE II
GUARANTY
2.01 Guaranty. Subject to the commencement of the Term (as defined in the
LMA) of the LMA, Guarantor hereby unconditionally and irrevocably guarantees, as
primary obligor and not merely as surety, to the Beneficiary the due and
punctual payment in full and timely performance of all of the obligations of AIC
under the LMA as determined in accordance with Section 15 thereof and offsets
permitted under the LMA and under the Amended and Restated Credit Agreement (the
"Credit Agreement"), dated as of the date hereof, by and between AIC, as lender,
and the Beneficiary, as borrower (the "Guaranteed Obligations"), and agrees to
pay any and all reasonable and documented expenses (including reasonable counsel
fees and expenses) incurred by the Beneficiary in enforcing any rights under
this Guaranty. Notwithstanding anything in this Guaranty to the contrary, if the
LMA does not become effective, this Guaranty shall automatically terminate and
shall be void ab initio.
2.02 Demand. If AIC fails or refuses to pay or perform any Guaranteed
Obligation and the Beneficiary has elected to exercise its rights under this
Guaranty, the Beneficiary shall make a demand upon the Guarantor (a "Demand"). A
Demand shall be
in writing and shall describe in reasonable detail in what manner and what
amount AIC has failed to pay or perform and an explanation of why such payment
or performance is required, with a specific statement that Beneficiary is
calling upon the Guarantor to perform under this Guaranty. A Demand satisfying
the foregoing requirements shall be deemed sufficient notice to Guarantor that
it must pay or perform, as applicable, the then outstanding Guaranteed
Obligations that are the subject of such Demand. A single written Demand shall
be effective as to any specific default during the continuance of such default,
until AIC has, or the Guarantor has, cured such default, and additional written
demands concerning such default shall not be required until such default is
cured.
2.03 Guaranty Obligation Independent. The Guarantor guarantees that the
Guaranteed Obligations will be paid and performed strictly in accordance with
the terms of the LMA (including, without limitation, Section 15 thereof). The
obligations of the Guarantor under this Guaranty are independent of the
Guaranteed Obligations, and, subject to the provisions of Section 15 of the LMA,
a separate action or actions may be brought and prosecuted against the Guarantor
to enforce this Guaranty, irrespective of whether any action is brought against
AIC or whether AIC is joined in any such action or actions. Subject to the
provisions of Section 15 of the LMA, the Guarantor agrees that this Guaranty is
a guaranty of payment and performance and not of collection, and that its
obligations under this Guaranty shall be absolute and unconditional irrespective
of, and the Guarantor hereby irrevocably waives any defenses it may now or
hereafter have in any way relating to, any and all of the following:
(a) any lack of capacity of AIC or any lack of validity or enforceability
of any provision of the LMA or any agreement or instrument relating thereto or
the genuineness, validity, regularity, enforceability of any future amendment of
or change in this Guaranty or any agreement or instrument related thereto;
(b) any variation, extension, waiver, compromise or release of any or all
of the obligations of AIC under the LMA or any change in the time, manner or
place of payment of, or in any other term of, any of the Guaranteed Obligations,
or any other amendment or waiver of or any consent to departure from the LMA or
any agreement or instrument relating thereto;
(c) any taking, release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Guaranteed Obligations;
(d) the insolvency of AIC; or
(e) any other action or circumstances which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor.
This Guaranty shall continue to be effective should any petition be filed by or
against AIC for liquidation or reorganization, should AIC become insolvent or
make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of AIC's assets. This Guaranty
shall continue to be effective and Guarantor shall continue to be liable for
performance under the LMA irrespective of any
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excuse, discharge or exoneration of AIC, including, without limitation, in the
event AIC were to reject the LMA under Section 365 of Title 11 of the United
States Code or any other similar, applicable bankruptcy laws. This Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Guaranteed Obligations, or any part thereof,
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by Beneficiary, whether as a "voidable
preference", "fraudulent conveyance" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Guaranteed Obligations
shall be reinstated and deemed reduced only by such amount actually paid and not
so rescinded, reduced, restored or returned.
2.04 Waiver. The Guarantor hereby, to the extent permitted by applicable
law, waives (a) presentment, promptness, diligence or notice of acceptance with
respect to any of the Guaranteed Obligations and this Guaranty; (b) any
requirement that the Beneficiary protect, secure, perfect or insure any lien on
any property subject thereto or exhaust any right or take any action against AIC
or any other Person; and (c) notice of any adverse change in the financial
condition of AIC or of any other fact which might increase the Guarantor's risk.
The Guarantor hereby waives any right to revoke this Guaranty, and acknowledges
that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future. The Guarantor hereby waives
any effect of a pledge by AIC of its rights under the LMA and any effect of a
foreclosure by a pledgee thereon. The Guarantor further agrees that its
obligations under this Guaranty shall not be subject to any counterclaims,
offsets or defenses against AIC of any kind which may arise in the future.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
The Guarantor hereby represents and warrants as follows:
(a) The Guarantor is a corporation duly incorporated, validly existing, and
in good standing under the laws of Mexico and has all requisite corporate power
and authority to execute, deliver and carry out the terms and provisions of this
Guaranty.
(b) The execution, delivery and performance by the Guarantor of this
Guaranty are within the Guarantor's corporate powers, have been duly authorized
by all necessary corporate action, and do not (i) contravene the Guarantor's
charter or by-laws, (ii) violate any applicable law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award, or (iii) conflict
with or result in the breach of, or constitute a default under, any indenture,
mortgage, deed of trust, credit agreement or loan agreement, or any other
material agreement, contract or other instrument binding or affecting the
Guarantor, any of its Affiliates or any of its or their properties.
(c) No authorization, approval, consent or order of, or registration or
filing with, any court or other governmental body having jurisdiction over the
Guarantor is required on the part of the Guarantor for the execution and
delivery of this Guaranty.
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(d) This Guaranty constitutes a valid, legally binding and enforceable
obligation of the Guarantor, except as enforceability hereof may be limited by
the effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally and by general principles
of equity.
(e) The Guarantor is fully aware of the contents of the LMA and hereby
acknowledges the terms and conditions of the LMA and of all exhibits and
schedules thereto.
(f) There are no conditions precedent to the effectiveness of this Guaranty
that have not been satisfied or waived.
ARTICLE IV
MISCELLANEOUS
4.01 Continuing Guaranty; Assignment. The guaranty obligations of Guarantor
under Article II of this Guaranty shall be continuing and remain in full force
and effect so long as any of the Guaranteed Obligations remain outstanding. All
of the obligations of the Guarantor set forth herein shall bind the Guarantor
and its successors. The Guarantor shall not assign or delegate its duties or
obligations hereunder without the prior written consent of the Beneficiary, and
any purported assignment or delegation without such consent shall be null and
void. No person or entity other than the Beneficiary shall be a beneficiary of
this Guaranty or have or acquire any rights by reason of this Guaranty.
4.02 Limitation on Guarantor's Right of Subrogation or Indemnity. So long
as any Guaranteed Obligation remains unpaid or unperformed, the Guarantor shall
have, with respect to AIC, no right of subrogation, reimbursement, contribution,
set off or indemnity whatsoever (whether such right or claim arises under
contract, U.S. state or federal common law or state or federal statutory law or
applicable Mexican law or in equity) or to any other rights that could accrue to
a surety against a principal, to a guarantor against a principal, to a guarantor
against a maker or obligor, to an accommodation party against the party
accommodated, to a holder of any claim against any person or entity, and which
the Guarantor may have or hereafter acquires against AIC and no right of
recourse to, or with respect to, any assets or property of AIC.
4.03 Marshaling. The Guarantor consents and agrees that the Beneficiary
shall not be under any obligation to marshal any assets in favor of the
Guarantor or against or in payment of any or all of the Guaranteed Obligations.
4.04 Governing law. This Guaranty shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of laws.
4.05 Jurisdiction; Consent to Service of Process.
(a) Jurisdiction. Any actions, suits, proceedings, claims, complaints,
disputes, arbitrations or investigations (a "Claim") arising out of or relating
to this Guaranty shall be brought by the parties and heard and determined only
in Delaware Chancery Court,
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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
Guaranty 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 4.06. Nothing herein
contained shall be deemed to affect the right of any party to serve process in
any manner permitted by law.
(b) Consent to Service of Process. Within five(5) Business Days (as defined
in the LMA) of the date hereof, the Guarantor shall appoint CT Corporation
System in New York State, with an office on the date hereof at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent to receive on behalf of it and its
properties, service of process in the United States in connection with any
action, suit or proceeding arising hereunder. Guarantor irrevocably consents to
the service of process in any such suit, action or proceeding in the manner
provided for notices in Section 4.06 of this Guaranty. Within five (5) Business
Days of the date hereof, the Guarantor shall provide the Beneficiary with a
notarized irrevocable special power of attorney granted by the Guarantor to CT
Corporation System as Guarantor's agent for service of process, and an
acknowledgement by CT Corporation System of its acceptance of its appointment as
Guarantor's agent for service of process pursuant to this Section 4.05(b).
4.06 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 Beneficiary,
c/▇ ▇▇▇▇▇▇ Telecasting Companies
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Guarantor,
TV Azteca, S.A. de C.V.
Periferico Sur 4121
Col. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Delegacion Tlalpan
Mexico, D.F.
Tel: ▇▇▇-▇▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: Lic. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇, Esq.
and
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices, demands and other communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; and when
delivered by courier, if delivered by commercial courier service; when actually
received by the intended recipient, if mailed; provided, however, that if any
notice, demand or other communication is delivered or received, as the case may
be, after 5:00 P.M. New York City time on a Business Day or delivered or
received, as the case may be, on a day that is not a Business Day, such notice,
demand or communication shall be deemed to have been duly given pursuant to this
Section 4.06 on the next succeeding Business Day. Any party may by notice given
in accordance with this Section 4.06 designate another address or person for
receipt of notices hereunder, but such notice shall not be effective until
actually received.
4.07 Modification, Amendment, Waiver. No modification, amendment or waiver
of any provision of this Guaranty shall be effective unless approved in writing
by the Guarantor and the Beneficiary. The failure of the Beneficiary at any time
to enforce
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any of the provisions of this Guaranty shall in no way be construed as a waiver
of such provisions and shall not affect the rights of the Beneficiary thereafter
to enforce the provisions of this Guaranty in accordance with its terms.
4.08 Counterparts. This Guaranty 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 Guaranty by exchange of facsimile copies bearing
the facsimile signature of a party hereto shall constitute a valid and binding
execution and delivery of this Guaranty by such party. Such facsimile copies
shall constitute enforceable original documents.
4.09 Severability. Any provision of this Guaranty which may be determined
by competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions of this
Guaranty, and any such prohibition or unenforceability in such jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
4.10 Headings. The Article and Section headings in this Guaranty are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provisions of this Guaranty.
4.11 Confidentiality. No statement announcing in any way the performance of
this Guaranty shall be issued by (i) TVA, without the written consent of ▇▇▇▇▇▇
as to the specific content of such statement, such consent not to be
unreasonably withheld or delayed, (ii) ▇▇▇▇▇▇, without the prior written consent
of TVA as to the specific content of such statement, such consent not to be
unreasonably withheld or delayed; provided that this Section 4.11 shall not
apply (a) in the event such disclosure is required by any pending litigation or
any Requirement of Law (as defined in the Settlement Agreement) (as determined
in good faith by counsel to TVA or ▇▇▇▇▇▇, as applicable), including if a court
of competent jurisdiction or a duly authorized Governmental Authority (as
defined in the Settlement Agreement) requires any such statement in a final
order or (b) there is a Requirement of Law (as determined in good faith by
counsel to TVA or ▇▇▇▇▇▇, as applicable) for the filing of this Guaranty or the
Affiliation Agreement with a Government Authority or other disclosure to a
Governmental Authority related to this Guaranty or the Affiliation Agreement
and, provided, further, that the parties hereto are expressly authorized to
disclose to any and all Persons the structure and tax aspects of Guaranty and
the Affiliation Agreement and all materials of any kind that are provided to
such party related to such structure and tax aspects.
4.12 Rights Cumulative. The rights, powers and remedies given to
Beneficiary by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Beneficiary by virtue of
any statute or rule of law or in the LMA or any agreement between the
Beneficiary and the Guarantor or between the Beneficiary and AIC. Any
forbearance or failure to exercise, and any delay by the Beneficiary in
exercising any right, power or remedy hereunder shall not impair any such
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right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
4.13 Further Assurances. The Guarantor agrees, upon the written request of
the Beneficiary, to execute and deliver to the Beneficiary, from time to time,
any additional instruments or documents reasonably considered necessary by the
Beneficiary to cause this Guaranty to be, become or remain valid and effective
in accordance with its terms. Without limiting the generality of the foregoing
sentence, the Guarantor specifically agrees to execute and deliver such
instruments and documents as may be necessary to cause this Guaranty to become
and remain effective under Mexican law.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
TV AZTECA, S.A. de C.V.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Counsel
Acknowledged and Accepted:
▇▇▇▇▇▇ TELECASTING OF SOUTHERN CALIFORNIA LLC
By: ▇▇▇▇▇▇ Telecasting Companies, its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
