Exhibit 10.29
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT (this "Amendment") to that certain Purchase and Sale
Agreement dated April 24, 2000 by and between Hispanic Television Network,
Inc. and ▇▇▇▇▇▇▇ Broadcasting of Dallas, Inc., "the "Purchase Agreement") is
executed on December 7, 2000, but is made effective as of October 31, 2000
(the "Effective Date'"). Unless otherwise defined herein, all capitalized
terms have the meanings assigned to them in the Purchase Agreement.
Recitals
WHEREAS, the Parties entered into that certain First Amendment to the
Purchase Agreement on September 29, 2000 (the "First Amendment"), which among
other things, amended the definition of Closing Date.
WHEREAS, Seller has given notice to Buyer that Buyer is in default under the
Purchase Agreement, as amended by the First Amendment, and Buyer wishes to
cure such default pursuant to the terms of this Amendment.
WHEREAS, Seller does not desire to terminate the sale process and is willing
to resolve Buyer's default and amend the Purchase Agreement to provide for an
extension of the Closing date upon the terms set forth in this Amendment.
WHEREAS, each of the undersigned desire to revoke the First Amendment and to
amend the Purchase Agreement in certain respects as more particularly
described below.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals set forth above and other
good and valuable consideration contained herein, the receipt and sufficiency
of which are hereby acknowledged by the Parties hereto, and intending to be
legally bound, the Parties agree as follows:
1. Resolution of Default. To resolve Buyer's default, Buyer agrees and
acknowledges that Seller shall be entitled to retain all consideration
(including, but not limited to, cash and stock) given by Buyer to Seller on
or prior to the date hereof. Buyer hereby covenants, assigns and transfers to
Seller all right title and: interest in, and forever releases, forfeits and
disclaims any right or claim to, all such consideration.
2. Issuance of Extension Shares. As consideration for this Amendment, Buyer
will transfer to Seller one million (1,000,000) shares (the "Extension
Shares") of newly issued Buyer Common Stock concurrently with the execution
of this Agreement. Buyer
represents and warrants to Seller that, upon issuance, the Extension Shares
will be duly authorized, fully paid, non-assessable and validly issued. With
respect to the Extension Shares, Seller reaffirms to Buyer those
representations and warranties set forth in Section 4.16 of the Purchase
Agreement. Each party acknowledges that the Extension Shares will contain the
following stock legend:
"The shares represented by this Certificate have not been registered
under the Securities act of 1933 (the "Act") and are "restricted securities"
as that term is defined in Rule 144 under the Act. The shares may not be
offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act or pursuant to an exemption
from registration under the Act, the availability of which is to be
established to the satisfaction of the Company"
3. Mutual Release of all Previous Claims. Each of Buyer and Seller,
on behalf of itself and its affiliates, shareholders, agents, directors,
employees, successors and assigns hereby completely and forever releases,
acquits and discharges the other party and its affiliates, stockholders,
agents, directors, employees, successors and assigns, of and from any and all
obligations, claims, demands, rights, liabilities, suits or causes of action
of any kind whatsoever, whether known or unknown, in contract or tort, at
common law or by statute or otherwise, that such party has or may have or may
hereafter claim to have, against the other party for acts or omissions on or
prior to the Effective Date arising out of or related to the Purchase
Agreement.
4. Definition of "Closing Date." The definition of "Closing Date" in
Section 1.1 of the Purchase Agreement, as amended and restated in the First
Amendment, is hereby further amended and restated in its entirety to read as
follows:
"CLOSING DATE" means a time and business date to be selected by
Buyer, which date shall not be later than February 12, 2001, 5:00 p.m. CST."
5. Increase in Purchase Price. Section 2.2.4(a) of the Purchase
Agreement is amended and restate din its entirety to read as follows:
"(a) PAYMENT OF ESTIMATED PURCHASE PRICE AT CLOSING. At
Closing, Buyer will pay to Seller by wire transfer of
immediately available funds an aggregate amount equal to (I)
$35,000,000, as adjusted (up or down) by the estimated Closing
adjustments pursuant to Section 2.2.3(b), LESS (ii) the value
of the Extension Shares as determined by averaging the closing
sales price per share of Buyer Common Stock as quoted on the
Nasdaq Stock Market over the 30 days immediately prior to the
Closing; provided, however, in no event will the value of the
Extension Shares exceed $2,000,000 for purposes of this
Section 2.2.4(a)."
6 . Recourse. Sections 19.1, 19.2 and 19.3 of the Purchase Agreement
are deleted in their entirety. Section 19.4 of the Purchase Agreement is
amended and restated in its entirety to read as follows:
"19.4. SELLER'S RECOURSE. In the event this Agreement is terminated
other than pursuant to Sections 17.3 or 17.5 hereof, Seller
shall be entitled to retain the Extension Shares, as
liquidated damages, which shall be the Seller's sole and
exclusive remedy under this Agreement for such termination and
any breach by Buyer of the representation, warranty,
termination or condition of this Agreement. Buyer and Seller
agree that the harm caused by any breach of any
representation, warranty, or condition of this Agreement by
Buyer would be difficult to estimate and that the retention by
Seller of the Extension Shares is a reasonable forecast of
just compensation for any such breach. The remedy specified in
this Section 19.4 is intended to be the sole remedy to Seller
for breach by Buyer of any representation, warranty, or
condition of this Agreement arising or occurring on or prior
to the earlier of the Closing Date or the date of termination.
Buyer and Seller irrevocably agree not to contest or limit in
any manner whatsoever the enforcement of this Section 19.4."
7. Pre-Closing Remedies. Section 20.16 of the Purchase Agreement is
amended and restated in its entirety to read as follows:
"20.16. PRE-CLOSING REMEDIES. The remedies specified in
Section 20.16.1 and Section 20.16.2 are intended to be the
sole remedies to Buyer for breach by Seller of any
representation, warranty, or condition of this Agreement
arising or occurring on or prior to the earlier of the Closing
Date or the date of termination. Buyer expressly releases and
waives its rights to all other remedies.
20.16.1. BUYER'S RIGHT TO ENJOIN; SPECIFIC PERFORMANCE. Seller
irrevocably acknowledges that the Station Licenses and
Broadcasting Assets constitute unique and irreplaceable
assets. Seller further irrevocably acknowledges that the
benefits to be derived by Buyer from the transactions
contemplated by this Agreement are equally unique and
irreplaceable. Accordingly, if Seller improperly abandons or
improperly terminates this Agreement, Buyer would not have an
adequate remedy at law. Therefore, Buyer shall be entitled to
a court order (a) enjoining any action or a transaction that
could reasonably be expected to constitute a breach of this
Agreement, including but not limited to any act or transaction
that could reasonably be expected to constitute a breach of
Section 7.1.10, and (b) requiring Seller to perform this
Agreement and to consummate the transactions contemplated by
this Agreement in
accordance with the specific terms of this Agreement. However,
Buyer shall be entitled to maintain an action for specific
performance under this Section 20.16.1 only if Buyer deposits
in escrow on or before the Closing Date with Coamerica
Bank-Texas (or any court of competent jurisdiction) the amount
specified in Section 2.2.4(a) of the Purchase Agreement. Such
amount must remain in escrow with Coamerica Bank-Texas (or any
court of competent jurisdiction) during the enforcement of
this Section 20.16.1. If Buyer files an action under this
Section 20.16.1, and then fails to deposit the amount
specified in Section 2.2.4(a) of the Purchase Agreement in
escrow with Coamerica Bank-Texas or any court of competent
jurisdiction) on or before the Closing Date, Buyer shall
dismiss any such action with prejudice. Buyer and Seller
irrevocably agree not to contest or limit in any manner
whatsoever the enforcement of this Section 20.16.1. Seller
shall not be entitled to the remedies of injunctive relief
and specific performance specified in this Section 20.16.1.
20.16.2. LIMITATION OF BUYER'S PRE-CLOSING DAMAGES. Without
limiting in any manner whatsoever the availability of Buyer's
remedies of injunctive relief and specific performance
specified in Section 20.16.1, Buyer irrevocably agrees that
any monetary damages associated with Seller's improperly
abandoning or improperly terminating this Agreement or any
other pre-closing cause of action or claim shall be limited to
Seller's return to Buyer of the Extension Shares. Buyer and
Seller irrevocably agree not to contest or limit in any manner
whatsoever the enforcement of this Section 20.16.2. Each party
acknowledges and agrees that nothing in this Section 20.16.2
will affect in any manner whatsoever such party's liability
under Section 15."
8. FCC Filings. Seller agrees to cooperate with Buyer in filing with
the Federal Communications Commission any necessary requests or extensions of
time to consummate the transactions contemplated by the Purchase Agreement, as
hereby amended.
9. Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
will constitute one and the same instrument.
10. Controlling Provisions. This Amendment is entered into pursuant
to Section 20.6 of the Purchase Agreement and shall amend the Purchase
Agreement to the extent expressly provided in this Amendment. The Purchase
Agreement, except as amended hereby, is and shall remain in full force and
effect. In the event of a conflict of the terms of this Amendment and the
Purchase Agreement, the terms of this Amendment shall control.
11. Successors and Assigns; Governing Law. This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their
successors and any permitted assigns. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas (without regard
to the conflicts-of-law principles thereof).
12. Time is of the Essence. Time is of the essence in the
performance of this Amendment and all dates and periods specified in this
Amendment and the Purchase Agreement. Notwithstanding any provision to the
contrary in this Amendment or the Purchase Agreement, no party will be
entitled to any time period in which to cure any breach of a representation
or warranty or to cure the non-performance of any covenant, agreement or
obligation. This Amendment and the Purchase Agreement shall automatically
terminate without the requirement of notice to either party, if the deposit
specified in Section 20.16.1 has not been made by February 12, 2001 at 5:00
CST.
IN WITNESS WHEREOF, the parties have executed this Amendment to be
effective as of the Effective date.
Hispanic Television Network, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, its Chief Executive Officer
▇▇▇▇▇▇▇ Broadcasting of Dallas, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President