EXHIBIT 10.14
AMENDED AND RESTATED
--------------------
SUBORDINATED NOTE PURCHASE AND OPTION AGREEMENT
-----------------------------------------------
THIS AMENDED AND RESTATED SUBORDINATED NOTE PURCHASE AND OPTION
AGREEMENT (this "Agreement") is made and entered as of December 30, 1996, by and
among Univision Communications Inc., a Delaware corporation ("Univision"),
Entravision Communications Company, L.L.C., a Delaware limited liability company
(the "Company"), KSMS-TV, Inc. ("KSMS"), a Delaware corporation, Tierra Alta
Broadcasting, Inc. ("Tierra Alta"), a Delaware corporation, Cabrillo
Broadcasting Corporation ("Cabrillo"), a California corporation, Golden Hills
Broadcasting Corporation ("Golden"), a Delaware corporation, Las Tres Palmas
Corporation ("Las Tres"), a Delaware corporation, Entravision Merger Corp.,
("Merger Corp."), a Delaware corporation (each of the Company, KSMS, Tierra
Alta, Cabrillo, Golden, Las Tres and Merger Corp. a "Borrower", and
collectively, the "Borrowers"), and Xxxxxx X. Xxxxx, an individual and Xxxxxx X.
Xxxxxxxxx, an individual, as the managing members (the "Managing Members"), and
amends and restates in its entirety the SUBORDINATED NOTE PURCHASE AND OPTION
AGREEMENT made and entered as of December 30, 1996 (the "Effective Date") among
the parties hereto with reference to the following:
RECITALS
--------
A. Univision has made a Loan to the Company in the principal amount
of $3,000,000 which is evidenced by a Subordinated Promissory Note due August
19, 1997 (the "Prior Note").
B. Univision is to purchase a Non-Negotiable Subordinated Note from
the Company in the principal amount of $10,000,000.
C. The Company desires to sell the Non-Negotiable Subordinated Note
to Univision and grant to Univision an option to acquire an equity interest in
the Company.
D. In order to induce Univision to purchase the Non-Negotiable
Subordinated Note, the Borrowers wish to make certain representations and
warranties to Univision and agree to perform covenants for the benefit of
Univision.
E. In order to induce Univision to purchase the Subordinated Note,
the Managing Members of the Company wish to grant to Univision an option to
acquire an equity interest in the Borrowers.
AGREEMENT
---------
In consideration of the promises, the mutual covenants and the
agreements hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
1. Purchase of Subordinated Note.
-----------------------------
1.1 Authorization of Subordinated Note. Pursuant to the terms
----------------------------------
and conditions contained herein, the Company has authorized the issuance to
Univision of a Non-Negotiable Subordinated Note in the form of Exhibit A
attached hereto (the "Subordinated Note").
1.2 Purchase and Sale.
-----------------
(a) Subject to the terms and conditions hereof, the Company
hereby issues and sells to Univision and Univision hereby purchases from the
Company, the Subordinated Note for the Purchase Price described in Section
1.2(b).
(b) The aggregate purchase price of the Subordinated Note
shall equal $7,000,000 and the delivery to the Company for cancellation of the
Prior Note (the "Purchase Price").
2. Representations and Warranties. The Subordinated Note has
------------------------------
been authorized by all necessary actions on the part of the Company, and is the
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms. This Agreement has been authorized by the Company and
each of the Borrowers and is a valid and binding obligation of the Company, each
of the Borrowers and each of the Managing Members enforceable against such party
in accordance with its terms. As inducement for Univision entering into this
agreement and purchasing the Subordinated Note each of the Company and the
Borrowers hereby restates and adopt in favor of and for the benefit of Univision
the representations and warranties set forth in Section 3 of the Credit
Agreement among Union Bank of California, as agent for the Banks who are parties
thereto, the Company and the Borrowers dated as of the date hereof, a copy of
which is attached hereto as Exhibit B (the "Credit Agreement") and agrees that,
until the closing of Reorganization (as hereinafter defined) to not engage in
any of the acts or activities described in Section 3 of the Subordinated Note
without the consent of Univision in accordance with the terms thereof.
3. Univision Option/Anti-Dilution Protection.
-----------------------------------------
For the purposes of this Section 3 capitalized terms not defined
herein shall have the meaning given to such terms in the Amended and Restated
Operating Agreement of the Company, a copy of which is attached hereto as
Exhibit C (the "Operating Agreement").
3.1 Univision Option. Univision is hereby granted a right to
----------------
acquire an equity interest in the Company (as calculated in Section 3.2 below)
through the acquisition of Class A Non-Managing Membership Units for a total
exercise price of Ten Million Dollars ($10,000,000) reduced but not below $1, by
the payment to Univision of any amounts distributed pursuant to Section 3(a)(iv)
of the Subordinated Note as a Prepayment Amount (as defined in the Subordinated
Note) (the "Univision Option"). The Univision Option is exercisable only in its
entirety. In light of the unique relationship between Univision and the Company
and the special nature of the Univision Option, the Univision Option is not
assignable to any third party without
2
the consent of the Company, which the Company may withhold in its sole
unqualified discretion. The Univision Option is exercisable for a period of
twenty-five (25) years from the date hereof (i) at the sole option of Univision
or (ii) automatically and mandatorily at any time upon a change of FCC's rules
that would permit such conversion without attribution to Univision.
Notwithstanding anything to the contrary herein, Univision shall not exercise
any of its rights under this provision should such action constitute or result
in a change of control of a broadcast station licensee, if such change of
control would require, under then existing law, the prior approval of the
Federal Communications Commission. In such event, Univision shall only exercise
its rights upon the prior consent of the Federal Communications Commission to a
request filed with it for transfer of control of the broadcast station licensee.
The Option is exercisable only in its entirety, unless the then applicable FCC
attribution rules and regulations permit Univision to acquire a lesser percent.
Univision shall be permitted to credit the principal sum due under the
Subordinated Note to pay the Purchase Price upon Univision's exercise of the
Univision Option. This Univision Option shall expire upon the exercise of the
Borrower Option, as defined below.
3.2 Option Percentage. Upon exercise, the Univision Option shall
-----------------
entitle Univision to acquire 25.55% of the sum of (i) the Class A and Class C
Non-Managing Membership Units currently issued plus (ii) the Class A and Class C
Non-Managing Membership Units to be issued upon the Reorganization (as defined
below) plus (iii) the Class A Non-Managing Membership Units to be issued to
Univision on exercise of the Univision Option (the "Option Percentage"),
including those to be issued to Valley Channel in accordance with the Operating
Agreement. Univision's Option Percentage shall also proportionately increase
upon purchase by the Company of any Class A Non-Managing Membership Units
outstanding on the Effective Date or the non-issuance of any Class A Non-
Managing Membership Units contemplated to be issued in the Reorganization which
are not so issued. There shall be no adjustment related to the option to
acquire 11,965 units held by Xx. Xxxxxxx Xxxxxxx.
3.3 Anti-Dilution Protection. Univision shall have a right of first
------------------------
refusal to purchase any new issuance of Membership Units in the Company pursuant
to Section 7(c)(iii) of the Operating Agreement in order to maintain its
percentage interest in profits, losses and rights; except for the issuance of
non-voting Class D Membership Units to certain managers and employees
representing up to a five percent (5%) interest in profits and losses of the
Company on a fully diluted basis. Any such additional issuances of equity shall
be evidenced by Class B Membership Units pursuant to Section 7(c)(iii) of the
Operating Agreement. In connection with any such additional issuance, so long
as the Univision Option is outstanding, Univision shall have the right to make
an additional long term loan to the Company (the "Additional Loan") in a
Proportionate Amount (as hereinafter defined), which Additional Loan shall be on
the same terms and conditions as the Subordinated Note and shall be accompanied
by additional options to acquire Class B Membership Units (the "Additional
Option"), in an amount sufficient to allow Univision to maintain an ownership
interest in the Company equal to the then Option Percentage. For purposes of
this Section 3.3, "Proportionate Amount" means a principal amount determined by
multiplying (i) the amount to be raised by the Company by (ii) Univision's then
existing Option Percentage. To the extent that Univision exercises its right to
make an Additional Loan, the amount to be raised from the sale of Class B
Membership Units shall be decreased by the amount of such Additional Loan. Such
rights of first refusal and right to make Additional Loans shall terminate upon
a public offering of the Company.
3
3.4 Manner of Exercising Option. Upon the exercise of the Univision
---------------------------
Option pursuant to Section 3.1 above, Univision shall take the following
actions:
(a) Execute and deliver to the Company an agreement agreeing to
be bound by all of the terms and provisions of the then Operating Agreement of
the Company in a form reasonably satisfactory to the Company's attorneys;
(b) Furnish to the Company appropriate documentation that the
person or persons exercising the Univision Option on behalf of Univision have
the authority to exercise the Univision Option; and
(c) Deliver the original of the Note marked "cancelled" and "paid
in full."
As soon thereafter as practical, the Company shall mail or deliver to Univision,
if the Company's membership units are then certificated, a certificate
representing the Membership Units so purchased by Univision.
4. Borrower Option.
---------------
4.1 Borrower Option. As inducement for Univision entering into this
---------------
agreement and purchasing the Subordinated Note each of the Managing Members
hereby grant to Univision the right to purchase the same percentage of the
Capital Stock of each of the Borrowers as Univision may from time to time be
entitled to purchase from the Company pursuant to Section 3 above (the "Borrower
Option"). The Borrower Option is exercisable only in its entirety. In light of
the unique relationship between Univision and the Company and the special nature
of the Borrower Option, the Borrower Option is not assignable to any third party
without the consent of the Company, which the Company may withhold in its sole
unqualified discretion. The Borrower Option is exercisable for a period of
twenty-five (25) years from the Effective Date at the sole option of Univision
and shall expire upon the earlier to occur of (i) the consummation of the
transactions contemplated by the Amended and Restated Formation Agreement among
the Company and the Borrowers dated as of December 30, 1996 (the
"Reorganization") or (ii) the exercise of the Univision Option contained in
Section 3 hereof.
4.2 Manner of Exercising Borrower Option. Upon the exercise of the
------------------------------------
Borrower Option pursuant to Section 4.1 above, Univision shall take the
following actions:
(a) Furnish to the Company appropriate documentation that the
person or persons exercising the Borrower Option on behalf of Univision have the
authority to exercise the Borrower Option; and
(b) Deliver the original of the Subordinated Note.
4
As soon thereafter as practical, the Managing Members shall deliver to Univision
securities representing the interests so purchased by Univision.
Notwithstanding the generality of the foregoing, Univision agrees to
cooperate with the Managing Members and the Borrowers in replacing the Borrower
Option with options directly from the Borrowers for newly issued securities of
Borrowers which would give Univision the same percentage interest in each of the
Borrowers after giving effect to the exercise of such options as Univision would
have if it exercised its option from the Borrower Option.
5. Miscellaneous.
-------------
5.1 Further Assurances. Each party agrees to cooperate fully with
------------------
the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by any other party to evidence and reflect the transactions described
herein and contemplated hereby, and to carry into effect the intents and
purposes of this Agreement.
5.2 Rights Cumulative. Each and all of the various rights, powers
-----------------
and remedies of the parties hereto shall be considered to be cumulative with and
in addition to any other rights, powers and remedies which such parties may have
at law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
5.3 Notices. All Notices, demands and requests required by this
-------
Agreement shall be in writing and shall be deemed to have been given for all
purposes (i) upon personal delivery, (ii) one day after being sent, when sent by
professional overnight courier service from and to locations within the
continental United States, (iii) five days after posting when sent by registered
or certified mail, or (iv) on the date of transmission when sent by telegram,
telegraph, telex or facsimile transmission, addressed to the parties hereto at
the addresses set forth on the signature pages hereto. Any party hereto may
from time to time by notice in writing served upon the others as provided
herein, designate a different mailing address or a different person to which
such notices or demands are thereafter to be address or delivered.
5.4 Captions. Captions are provided herein for convenience only and
--------
they are not to serve as a basis for interpretation or construction of this
Agreement, nor as evidence of the intention of the parties hereto.
5.5 Severability. If any clause, provision or section of this
------------
Agreement is ruled invalid by any court of competent jurisdiction, the
invalidity of such clause, provision or section shall not affect any of the
remaining provisions hereof. The parties further agree to replace such void or
unenforceable provisions of this Agreement with valid and enforceable provisions
which will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provisions.
5
5.6 Governing Law. This Agreement shall be governed, interpreted,
-------------
construed and enforced in accordance with the laws of the State of California.
5.7 Entire Agreement. This writing is the complete and exclusive
----------------
statement of the agreement between the parties with respect to the transactions
contemplated hereby and supersedes any prior proposal, agreement or
communication relating to the subject matter of this Agreement, and may not be
modified except by writing signed by all of the parties hereto.
5.8 Waiver of Breach. The failure of any party hereto at any time to
----------------
require performance by the other shall in no way affect their right thereafter
to enforce the same, nor shall the waiver by either party hereto of any breach
of any provision(s) hereof be taken or held to be a waiver of any succeeding
breach or as a waiver of the provision itself.
5.9 Successors and Assigns. Except as otherwise provided herein, the
----------------------
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
Except as provided in Section 3.1 herein and above, which shall be controlling,
Univision may transfer or assign its rights and obligations hereunder.
5.10 Attorneys' Fees. If any action is brought to enforce the terms
---------------
of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs, and disbursements in addition to any other relief to
which the party may be entitled.
5.11 Survival. Except as otherwise provided in this Agreement, none
--------
of the terms, provisions, agreements or representations contained in this
Agreement shall survive the termination of this Agreement.
5.12 Counterparts. This Agreement may be executed simultaneously in
------------
multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
6
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the Effective Date and, as applicable in their respective
corporate names by their duly authorized officers.
UNIVISION COMMUNICATIONS INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
Name:___________________________
Title:__________________________
________________________________
________________________________
ENTRAVISION COMMUNICATIONS
COMPANY, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxxx
Name:___________________________
Title:__________________________
________________________________
________________________________
BORROWERS
KSMS-TV, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: __________________________
Title: _________________________
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
TIERRA ALTA BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: __________________________
Title: _________________________
00 Xxxxxxxx Xxxxxx Xxx
Xxxxxxxxx, Xxxxxx 00000
Fax No.: (702) _____________
7
CABRILLO BROADCASTING
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: ____________________________________
Title: ___________________________________
KBNT-TV, Channel 19
0000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
GOLDEN HILLS BROADCASTING
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: ____________________________________
Title: ___________________________________
KCEC
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
LAS TRES PALMAS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: ____________________________________
Title: ___________________________________
KVER-TV
00000 Xxxxxxxxx Xxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Fax No.: (000) 000-0000
MANAGING MEMBERS
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx
8
EXHIBITS
Exhibit A Non-Negotiable Subordinated Note and Option Agreement
Exhibit B Credit Agreement
Exhibit C Operating Agreement
The registrant hereby agrees to furnish a copy of any omitted schedule or
exhibit upon request.
9
