EXHIBIT 10.13
FIRST AMENDED AND RESTATED
NON-NEGOTIABLE SUBORDINATED NOTE
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THIS SUBORDINATED NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
("STATE ACT"). THE SECURITIES EVIDENCED BY THIS NOTE MAY NOT BE OFFERED, SOLD
OR TRANSFERRED FOR VALUE, DIRECTLY OR INDIRECTLY, IN THE ABSENCE OF SUCH
REGISTRATION UNDER THE ACT AND QUALIFICATION UNDER APPLICABLE STATE ACTS, OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND QUALIFICATION UNDER
APPLICABLE STATE ACTS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
REASONABLE SATISFACTION OF ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.
ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.
Subordinated Note Due December 30, 2021
$120,000,000 Los Angeles, California
March 2, 2000
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Entravision Communications Company, L.L.C., a Delaware limited liability
company (the "Company"), for value received, hereby promises to pay to Univision
Communications Inc., a Delaware corporation ("Univision"), at 1999 Avenue of the
Stars, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal sum of One
Hundred Twenty Million Dollars ($120,000,000) together with interest (computed
on the basis of a 360-day year) from the date of this Note, (the "Commencement
Date") on the unpaid balance of such principal amount at 7.01% (the "Interest
Rate"). Principal and interest under this Note shall be payable as follows:
Interest on this Note shall be due and payable semi-annually, as it accrues,
beginning six (6) months after the Commencement Date and continuing regularly
and semi-annually thereafter each calendar year until December 30, 2021, when
the outstanding principal balance of this Note, together with all accrued and
unpaid interest thereon, shall be due and payable in full. Reference is made to
the Company's First Amended and Restated Operating Agreement dated as of
December 30, 1996 (as amended from time to time, the "Operating Agreement").
Capitalized terms not defined herein shall have the meaning given to such terms
in the Operating Agreement. This Note amends, restates and supersedes that
certain Non-Negotiable Subordinated Note dated December 30, 1996 in the
principal amount of $10,000,000 executed by the Company in favor of Univision.
1. Subordination.
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a. Subordination to Senior Indebtedness. The indebtedness evidenced
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by this Note, and the payment of the principal hereof and any interest hereon,
is wholly subordinated,
junior and subject in right of payment, to the extent and in the manner
hereinafter provided, to the prior payment of all Senior Indebtedness (as
hereinafter defined) of the Company now outstanding or hereafter incurred.
"Senior Indebtedness" means the principal of and interest on, together with all
other payment obligations under (i) all indebtedness of the Company to banks,
trust companies, insurance companies and other financial institutions, including
commercial paper and accounts receivable sold or assigned by the Company to such
institutions; (ii) obligations of the Company as lessee under leases of real or
personal property; (iii) any indebtedness of the Company issued or incurred in
connection with the acquisition of an equity interest in a business or with the
assets of a business; (iv) shareholder and/or member loans, junk bond debt,
trade debt incurred in the ordinary course of business and other unsecured debt;
(v) deferrals, renewals, extensions and refunding of and modifications to any
such indebtedness or obligations described in (i), (ii), (iii) and (iv) above;
and (vi) any other indebtedness of the Company which the Company and Univision
may hereafter from time to time expressly and specifically agree in writing.
b. Payment Upon Dissolution, Etc. Upon payment or distribution of
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assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary,
in bankruptcy, insolvency, receivership or other proceedings, all principal and
interest, together with all other payment obligations under, due upon any Senior
Indebtedness shall first be paid in full, or payment thereof in full duly
provided for, before Univision shall be entitled to receive or, if received, to
retain any payment or distribution on account of this Note; and upon any such
dissolution or winding-up or liquidation or reorganization, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which Univision would be entitled except for the
provisions of this Section 1 shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, or by Univision if it shall have received such payment
or distribution, directly to the holders of the Senior Indebtedness (pro rata to
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each such holder on the basis of the respective amounts of such Senior
Indebtedness held by such holder) or their representatives to the extent
necessary to pay all such Senior Indebtedness in full after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to Univision. In the
event of any such dissolution, winding-up, liquidation or reorganization of the
Company, Univision shall be entitled to be paid one hundred percent (100%) of
the outstanding principal amount hereof and accrued interest hereon before any
distribution of assets shall be made among the holders of any class of
Membership Units of the Company in their capacities as holders of such
Membership Units.
For purposes of this paragraph (b), the words "assets" and "cash,
property or securities" shall not be deemed to include Membership Units of the
Company as reorganized or readjusted, or Membership Units of the Company or any
other person provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Section
1 with respect to this Note to the payment of all Senior Indebtedness which may
at the time be outstanding; provided that (i) the Senior Indebtedness is
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assumed by the new person, if any, resulting from any such reorganization or
readjustment, and (ii) the rights
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of the holders of Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment.
c. Subrogation. Subject to payment in full of all Senior
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Indebtedness, Univision shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of the assets of the
Company made on such Senior Indebtedness until all principal and interest on
this Note shall be paid in full; and, for purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which Univision would be entitled except for the
subordination provisions of this Section 1 shall, as between Univision and the
Company and/or its creditors other than the holders of the Senior Indebtedness,
be deemed to be a payment on account of the Senior Indebtedness.
d. Rights of Holder Unimpaired. The provisions of this Section 1 are
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and are intended solely for the purposes of defining the relative rights of
Univision and the holders of Senior Indebtedness; and nothing in this Section 1
shall impair, as between the Company and Univision, the obligation of the
Company, which is unconditional and absolute, to pay to Univision the principal
hereof and interest hereon, in accordance with the terms of this Note; nor shall
anything herein prevent Univision from exercising all remedies otherwise
permitted by applicable law or hereunder upon default, subject to the rights set
forth above of holders of Senior Indebtedness to receive cash, property or
securities otherwise payable or deliverable to Univision.
e. Holders of Senior Indebtedness. These provisions regarding
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subordination will constitute a continuing offer to all persons who, in reliance
upon such provisions, become holders of, or continue to hold, Senior
Indebtedness; such provisions are made for the benefit of the holders of Senior
Indebtedness, and such holders are hereby made obligees under such provisions to
the same extent as if they were named herein, and they or any of them may
proceed to enforce such subordination. Univision shall execute and deliver to
any holder of Senior Indebtedness (i) any such instrument as such holder of
Senior Indebtedness may request in order to confirm the subordination of this
Note to such Senior Indebtedness upon the terms set forth in this Note, and (ii)
any powers of attorney specifically confirming the rights of holders of Senior
Indebtedness to enforce such subordination and all such proofs of claim,
assignments of claim and other instruments as may be requested by the holders of
Senior Indebtedness or their representatives to enforce all claims upon or in
respect of this Note.
f. Payments on Subordinated Note. Subject to the terms of this
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Section 1, the Company may make payments of the principal of, and any interest
on, this Note, if at the time of payment, and immediately after giving effect
thereto, (i) there exists no default in any payment with respect to any Senior
Indebtedness and (ii) there shall not have occurred an event of default (other
than a default in the payment of amounts due thereon) with respect to any Senior
Indebtedness, as defined in the instrument under which the same is outstanding,
permitting the holders thereof to accelerate the maturity thereof, other than an
event of default which shall have been cured or waived or shall have ceased to
exist. All payments of principal and interest with respect to this Note and all
other Subordinated Notes of the Company due at the
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time of said payment shall be made ratably in proportion to the aggregate amount
outstanding with respect to each of the Notes.
2. Prepayment. The principal and interest indebtedness represented by
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this Note may be prepaid to Univision, in whole or in part, without penalty, any
time upon thirty (30) days' prior written notice from Company to Univision.
3. Univision Rights.
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a. Matters Requiring Univision Approval. The following matters
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shall require Univision's approval, which shall not be unreasonably withheld,
except as otherwise specified:
i. Acquisition of assets by the Company for a purchase price
equal to or greater than the greater of (a) Five Million Dollars ($5,000,000) or
(b) ten percent (10%) of the Company's "Net Asset Value." Net Asset Value shall
be defined to mean the most recent four (4) quarters of EBITDA (excluding
"Additional Compensation" as that term is defined in that certain Letter
Agreement between Univision and the Company dated December 30, 1996), times
eight (8), less outstanding indebtedness, other than the Subordinated Note.
ii. Incurrence of debt (excluding the Subordinated Note and debt
under the Credit Facility) if, on a pro forma basis, the debt to EBITDA ratio
would exceed the ratio set forth below for the applicable EBITDA of the Company:
EBITDA LEVERAGE RATIO
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Up to $5 million 4.00 : 1
$5.0 to less than $6.5 million 4.25 : 1
$6.5 to less than $8.0 million 4.50 : 1
$8.0 to less than $10.0 million 4.75 : 1
$10 million or greater 5.00 : 1
iii. Any transaction involving the direct or indirect transfer or
sale of any FCC License, (including the sale of Membership Units) in which case,
except as provided below, Univision's consent may be withheld in its sole
discretion; provided, however, in connection with a transfer of Membership
Interests subject to the provisions of Section 26(d) of the Operating Agreement,
the Managing Members may submit to Univision a list of potential transferees
prior to the right of first offer pursuant to said Section 26(d) of the
Operating Agreement and such potential transferees may be approved by Univision,
which approval shall not be unreasonably withheld. If such transferee is
approved in such a manner, an indirect transfer of an FCC License as a result of
such transfer of Membership Interests to such transferee that complies with
Section 26(d) of the Operating Agreement, shall be deemed approved hereunder;
provided, further, that Univision agrees to not unreasonably withhold its
approval of other potential transferees under Section 26(d) of the Operating
Agreement.
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iv. Distributions to Members in excess of quarterly tax
distributions (calculated at the highest applicable federal and state income tax
rates, taking into account the deduction of state income taxes for federal
income tax purposes). The Company shall be permitted to make additional
distributions in amounts in excess of reasonable working capital and reserve
requirements if concurrent with such distribution the Company makes a prepayment
of principal on this Subordinated Note in an amount equal to the "Prepayment
Amount" (as defined below). The "Prepayment Amount" shall be determined as
follows:
A = B (C + A)
A equals the amount to be prepaid on this Subordinated Note;
B equals Univision's then existing Option Percentage (as defined
in Exhibit "D" to the Operating Agreement);
C equals the total distributions proposed to be made to the
Members of the Company;
v. Transactions with any Member in excess of $50,000 or not at
arm's length (except for existing management contracts, employment agreements,
and loans existing at the date hereof and scheduled in the Credit Facility
between the Company, among others, and Union Bank of California, N.A., as agent
for various banks).
vi. Amendments to the Operating Agreement that would adversely
affect the Class A Non-Managing Membership Units or Univision with respect to
its rights under the Operating Agreement.
vii. The merger or consolidation of the Company with a third
party or the sale of all, or substantially all, the assets of the Company, in
which case Univision may withhold its consent, in its sole discretion.
viii. The issuance of additional Membership Units in the Company
pursuant to Section 7(c)(iii) of the Operating Agreement.
ix. The dissolution and liquidation of the Company, in which
case Univision may withhold its consent, in its sole discretion.
x. Any other action by the Company that, assuming full exercise
of the rights of Univision under that certain Amended and Restated Subordinated
Note Purchase and Option Agreement dated December 30, 1996 between and among the
Company, Univision, et al., as amended from time to time, would require
Univision's approval under the Operating Agreement.
The foregoing approval rights shall terminate upon repayment of the Note or upon
the closing of Univision's sale of a majority of the principal amount of this
Note to a third party.
b. Inspection Rights; Reports. So long as this Note remains
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outstanding, Univision shall (i) have the inspection rights of a Member of the
Company set forth in the
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Operating Agreement and (ii) shall be entitled to receive all financial reports
provided to the Members of the Company pursuant to the Operating Agreement.
4. [Intentionally omitted.]
5. No Assignment. This Note may be transferred, assigned or encumbered
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only with the consent of the Company which consent the Company may withhold in
its sole discretion.
6. Default. Subject to the terms, provisions and conditions any time
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contained in any Subordination Agreement by and between Univision and the
holder(s) of any Senior Indebtedness, Univision can require that the entire
unpaid principal of this Note and the interest then accrued on this Note shall
become and be immediately due and payable upon written demand of Univision,
without any other notice or demand of any kind or any presentment or protest, if
any one of the following events (an "Event of Default") shall occur and be
continuing at the time of such demand, whether voluntarily or involuntarily, or,
without limitation, occurring or brought about by operation of law or pursuant
to or in compliance with any judgment, decree or order of any court or any
order, rule or regulation of any governmental body:
a. The failure to pay any principal and/or interest amount when due
hereunder;
b. If the Company (i) makes a general assignment for the benefit of
creditors; (ii) applies for, consents to, acquiesces in, files a petition or an
answer seeking, or admits (by answer, default or otherwise) the material
allegations of a petition filed against it seeking the appointment of a trustee,
receiver, liquidator or assignee in bankruptcy or insolvency of itself or of all
or a substantial portion of its assets, or a reorganization, arrangement with
creditors or other remedy, relief or adjudication available to or against a
bankrupt, insolvent or debtor under any bankruptcy or insolvency law or any law
relating to relief of debtors; or (iii) admits in writing its inability to pay
its debts generally as they become due; or
c. If a decree, order or judgment shall have been entered adjudging
the company a bankrupt or insolvent, or appointing a receiver, liquidator,
trustee or assignee in bankruptcy or insolvency for it or for all or a
substantial portion of its assets or approving a petition seeking a
reorganization, arrangement or the winding-up or liquidation of its affairs on
the grounds of insolvency or nonpayment of debts, and such decree, order or
judgment shall remain undischarged and unstayed for a period of sixty (60) days;
or if any substantial part of the property of the Company is sequestered or
attached and shall not be returned to the possession of the Company or such
subsidiary or released from such attachment within sixty (60) days.
d. A material breach of the terms of this Note which goes uncured for
a period of thirty (30) days from written notice from Univision to the Company;
provided that if such breach is not curable within thirty (30) days, the Company
shall have such longer period as may be reasonably necessary to cure such breach
so long as it diligently continues to pursue such cure.
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7. General.
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a. Successors and Assigns. Subject to the restrictions on
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assignment/transfer contained in Section 5 of this Note, this Note, and the
obligations and rights of the Company hereunder, shall be binding upon and inure
to the benefit of the Company, Univision and their respective heirs, successors
and assigns.
b. Recourse. This Note is unsecured. Recourse under this Note shall
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be to the general unsecured assets of the Company only and in no event to the
Managing Members, officers, or Members of the Company.
c. Changes. Changes in or additions to this Note may be made or
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compliance with any term, covenant, agreement, condition or provision set forth
herein may be omitted or waived (either generally or in a particular instance
and either retroactively or prospectively), upon written consent of the Company
and Univision.
d. Currency. All payments shall be made in such coin or currency of
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the United States of America as at the time of payment shall be legal tender
therein for the payment of public and private debts.
e. Notices. All notices, requests, consents and demands shall be
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made in writing and shall be mailed postage prepaid, or delivered by hand at the
addresses set forth below or to such other address as may be furnished in
writing to the other party hereto:
Univision:
Univision Communications Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company:
Entravision Communications Company, L.L.C.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
f. Saturdays, Sundays, Holidays. If any date that may at any time be
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specified in this Note as a date for the making of any payment of principal or
interest under this Note shall fall on Saturday, Sunday or on a day which in the
State of California shall be a legal holiday, then the date for the making of
that payment shall be the next subsequent day which is not a Saturday, Sunday or
legal holiday.
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g. Governing Law. This Note shall be construed and enforced in
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accordance with, and the rights of the parties shall be governed by, the laws of
the State of California, without giving effect to any conflicts of laws
principles.
h. Definitions. Any capitalized, but undefined, terms used in this
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Note shall have the same meaning set forth in the Operating Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Note has been executed and delivered on the date
first above written by the Managing Members of the Company.
ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.,
a Delaware limited liability company
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman, Chief Executive Officer and
Managing Member
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President, Chief Operating Officer
and Managing Member
Acknowledged and Agreed:
UNIVISION COMMUNICATIONS INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: EVP
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[Signature Page to First Amended and Restated
Non-Negotiable Subordinated Note]
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