GUARANTEE
(THE UNIVISION NETWORK LIMITED PARTNERSHIP)
This GUARANTEE ("GUARANTEE"), dated as of September 26, 1996, is made by
THE UNIVISION NETWORK LIMITED PARTNERSHIP, a Delaware limited partnership
(the "GUARANTOR"), in favor of THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent (the "AGENT") for the benefit of the
Lenders (as defined in the Credit Agreement referred to below, the "LENDERS").
RECITALS
A. The Chase Manhattan Bank, a New York banking corporation, as a
managing agent, Banque Paribas, a French banking corporation, as a managing
agent (collectively, the "MANAGING AGENTS"), the Agent and the Lenders have
entered into a Credit Agreement dated as of September 26, 1996 (said
Agreement, as it may hereafter be amended or otherwise modified from time to
time, being called the "CREDIT AGREEMENT") with Univision Communications
Inc., a Delaware corporation (the "BORROWER").
B. Guarantor previously executed that certain Guarantee dated as of
December 17, 1992 (the "PRIOR GUARANTEE"), in favor of the Agent for the
benefit of certain financial institutions party to a Credit Agreement dated
as of December 17, 1992 among such financial institutions, the Agent, as
agent therefor, the Managing Agents and Univision Television Group, Inc., as
amended (the "PRIOR CREDIT AGREEMENT"). Concurrently herewith, borrowings
under the Credit Agreement are being used to repay indebtedness under the
Prior Credit Agreement. This Guarantee is being given in exchange for the
release of the Prior Guarantee.
C. It is a condition precedent to the extension of credit by the
Lenders under the Credit Agreement that the Guarantor shall have executed and
delivered this Guarantee. Guarantor desires to execute this Guarantee
because it is interested in the financial success of the Borrower and, in
addition, anticipates that extensions of credit under the Credit Agreement
may be distributed by the Borrower to it or its Subsidiaries.
D. Terms defined in the Credit Agreement and not otherwise defined
herein have the same respective meanings when used herein, and the rules of
interpretation set forth in Section 1.2 of the Credit Agreement are
incorporated herein by reference.
AGREEMENT
NOW, THEREFORE, in order to induce the Lenders to enter into the Credit
Agreement and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, Guarantor hereby agrees as follows:
SECTION 1. GUARANTEE.
(a) The Guarantor hereby unconditionally, continually and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Borrower
now or hereafter existing under the Credit Agreement, the Notes and the other
Loan Documents, whether for principal, interest, fees, reimbursement under
Letters of Credit, expenses or otherwise and whether accruing before or after
the filing of a petition initiating any insolvency, bankruptcy,
reorganization or similar proceeding affecting the Borrower or the Guarantor
(collectively, the "OBLIGATIONS"); PROVIDED, HOWEVER, that the Guarantor's
liability hereunder in respect of the Obligations shall not exceed at any
time the greater of (i) the net benefit realized by the Guarantor from
proceeds of working capital advances made by the Borrower from the proceeds
of extensions of credit under the Credit Agreement to the Guarantor or any of
its Subsidiaries from time to time and (ii) the lesser of (A) the Obligations
or (B) 95% of (1) the fair salable value of the property of the Guarantor
from time to time minus (2) the total liabilities of the Guarantor (including
contingent liabilities, but excluding the obligations of the Guarantor
hereunder and under any Subordinated Indebtedness of the Guarantor) from time
to time. This is a guaranty of payment and not of collection only.
(b) In addition to the amount stated above (and not limited by the
proviso set forth therein), after the occurrence and during the continuance
of a Default, the Guarantor agrees to pay or reimburse each Managing Agent,
the Agent and each Lender for all its reasonable costs and out-of-pocket
expenses incurred in connection with the enforcement or preservation of any
rights under this Guarantee and any other documents executed in connection
herewith or in connection with any refinancing or restructuring of the credit
arrangements provided under the Credit Agreement involving this Guarantee in
the nature of a "work-out" or of any insolvency or bankruptcy proceeding,
including, without limitation, reasonable legal fees and disbursements of
counsel to the Agent, the Managing Agents and each Lender and the allocated
reasonable cost of internal counsel to the Managing Agents, the Agent and
each Lender.
(c) Without limiting the generality of the foregoing, this
Guarantee guarantees, to the extent provided
herein, the payment of all amounts which constitute part of the Obligations
and would be owed by the Borrower to the Lenders under any Loan Document but
for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving the
Borrower or the Guarantor.
(d) This Guarantee is secured by, among other things, the
Guarantor Security Agreement executed by Guarantor in connection herewith and
may be secured from time to time in the future by leasehold and/or fee deeds
of trust or mortgages on forms and containing terms and conditions acceptable
to the Majority Lenders which Guarantor shall provide to the Agent for the
benefit of the Lenders, all as more particularly set forth and described in
the Credit Agreement.
SECTION 2. GUARANTEE ABSOLUTE. The Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the Credit
Agreement, the Notes and the other Loan Documents, regardless of any
Requirement of Law now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Lenders with respect thereto. The
obligations of the Guarantor hereunder shall remain in full force and effect
without regard to, and shall not be affected or impaired by the following,
any of which may be taken without the consent of, or notice to, the
Guarantor, nor shall any of the following give the Guarantor any recourse or
right of action against the Lenders:
(a) any lack of validity or enforceability of, or any release or
discharge of the Borrower or any other Loan Party from liability under, the
Credit Agreement or any other Loan Document;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations or any other amendment or waiver
of, or any consent to departure from, the Credit Agreement or any other Loan
Document;
(c) any subordination, compromise, exchange, release,
nonperfection or liquidation of any collateral, or any release, amendment or
waiver of, or consent to departure from, any other guaranty, for any or all
of the Obligations;
(d) any express or implied amendment, modification, renewal,
supplement, extension or acceleration of the Obligations or any of the Loan
Documents;
(e) any exercise or nonexercise by the Lenders of any right or
privilege under this Guarantee or any of the other Loan Documents;
-3-
(f) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to the
Guarantor, the Borrower or any other guarantor of the Obligations or any
action taken with respect to this Guarantee by any trustee, receiver or court
in any such proceeding, whether or not the Guarantor shall have had notice or
knowledge of any of the foregoing;
(g) any assignment or other transfer, in whole or in part, of this
Guarantee or any of the other Loan Documents;
(h) any acceptance of partial performance of the Obligations;
(i) any consent to the transfer of, or any bid or purchase at sale
of, any collateral for the Obligations; or
(j) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or any guarantor (other
than payment by the Borrower or any other Loan Party of the Obligations).
So long as any of the obligations guaranteed hereunder shall be owing to the
Lenders, or any Commitment or Letter of Credit shall be outstanding, the
Guarantor shall not, without the prior written consent of the Lenders,
commence or join with any other party in commencing any bankruptcy,
reorganization or insolvency proceedings of or against the Borrower. The
Guarantor understands and acknowledges that by virtue of this Guarantee, it
has specifically assumed any and all risks of a bankruptcy or reorganization
case or proceeding with respect to the Borrower. As an example and not in
any way of limitation, a subsequent modification of the Obligations not
consented to by the required number of Lenders under the Credit Agreement in
any reorganization case concerning the Borrower shall not affect the
obligation of the Guarantor to pay and perform the Obligations in accordance
with their respective terms prior to such reorganization case. If claim is
ever made upon the Lenders for repayment of any amount or amounts received by
the Lenders in payment of the Obligations and the Lenders repay all or any
part of said amount, then, notwithstanding any revocation or termination of
this Guarantee or any other instrument evidencing the Obligations, the
Guarantor shall be and remain liable to the Lenders for the amount so repaid
to the same extent as if such amount had never originally been received by
the Lenders.
SECTION 3. WAIVERS. The Guarantor unconditionally waives any defense
to the enforcement of this Guarantee, including the following:
(a) all presentments, demands for performance, notices of
nonperformance, protests, notices of protest,
-4-
notices of dishonor and notices of acceptance of this Guarantee;
(b) any right to require the Lenders to proceed against the
Borrower or any other guarantor of the Obligations at any time, to proceed
against or exhaust any security held by the Lenders at any time or to pursue
any other remedy whatsoever at any time;
(c) the defense of any statute of limitations affecting the
liability of the Guarantor hereunder, the liability of the Borrower or any
other guarantor of the Obligations or the enforcement hereof, to the extent
permitted by law;
(d) any defense arising by reason of any invalidity or
unenforceability of any of the Loan Documents, any disability of the Borrower
or any other guarantor of the Obligations, any manner in which the Lenders
have exercised their rights and remedies under the Loan Documents or any
cessation from any cause whatsoever of the liability of the Borrower or any
other guarantor of the Obligations;
(e) any defense based upon an election of remedies by the Lenders,
including any election to proceed by judicial or nonjudicial foreclosure of
any Lien, whether on real property or personal property, or by deed in lieu
thereof, whether or not every aspect of any foreclosure sale is commercially
reasonable, or any election of remedies, including remedies relating to
real-property or personal-property security, that destroys or otherwise
impairs any subrogation rights of the Guarantor or any rights of the
Guarantor to proceed against the Borrower or any other guarantor of the
Obligations for reimbursement, or both (including California Code of Civil
Procedure Sections 580a, 580b, 580d and 726);
(f) any duty of the Lenders to advise the Guarantor of any
information known to the Lenders regarding the financial condition of the
Borrower or any other circumstance affecting the Borrower's ability to
perform its obligations to the Lenders, it being agreed that the Guarantor
assumes responsibility for being and keeping informed regarding such
condition or any such circumstance;
(g) any right of subrogation, contribution, indemnity or otherwise
against the Borrower that may arise out of or be caused by this Guarantee,
all rights and/or claims against the Borrower which may arise against the
Borrower by reason of this Guarantee, any right to enforce any remedy that
the Lenders now have or may hereafter have against the Borrower and any
benefit of, and any right to participate in, any security now or hereafter
held by the Lenders;
-5-
(h) any failure by the Lenders to perfect or continue the perfection of
any lien or security interest in any collateral, including, but not limited
to, the collateral given under the Loan Documents or any failure by the
Lenders to protect the property covered by any such lien or security interest;
(i) any right to interpose any defense, counter-claim or offset of any
nature and description which the Guarantor may now have or which may exist
between and among the Lenders and the Loan Parties (other than payment by the
Borrower or any other Loan Party of the Obligations); and
(j) in furtherance and not in limitation of the foregoing, the
Guarantor waives all rights and defenses arising out of an election of
remedies by the Lenders, even though that election of remedies, such as a
nonjudicial foreclosure with respect to any mortgages or deeds of trust
securing the Obligations from time to time, has destroyed the Guarantor's
rights of subrogation and reimbursement against the Borrower by the operation
of Section 580d of the California Code of Civil Procedure or otherwise.
SECTION 4. PAYMENTS IN TRUST. If any amount shall be paid to the
Guarantor contrary to the provisions of Section 3(g), such amount shall be
held in trust for the benefit of the Lenders and shall forthwith be paid to
the Agent to be credited and applied to the Obligations, whether matured or
unmatured, in accordance with the terms of the Credit Agreement.
SECTION 5. CONTINUING GUARANTEE; SUCCESSORS. The obligations of the
Guarantor under this Guarantee and any Guarantor Collateral Documents
executed by Guarantor in connection herewith shall continue in full force and
effect until the Obligations shall have been fully paid in cash and
performed, the Commitments and any Letters of Credit shall have been
terminated or shall have expired and the expiration of the period of time
during which payments by the Borrower to the Lenders may be deemed to be
preferential payments under the United States Bankruptcy Code or other
similar applicable laws. This Guarantee shall be binding upon the Guarantor
and its successors and assigns (provided that the Guarantor may not assign
this Guarantee without the prior written consent of each of the Lenders) and
shall inure to the benefit of and be enforceable by the Lenders and their
successors, transferees and assigns. Without limiting the generality of the
foregoing, and without notice to the Guarantor, the Lenders may assign or
otherwise transfer any of their rights and obligations under the Loan
Documents to any other person or entity in accordance with the terms of the
Credit Agreement, and such other person or entity shall thereupon become
vested with all the rights in respect thereof granted to the Lenders herein
or otherwise.
-6-
The term "BORROWER" shall mean both the named Borrower and any other person
or entity at any time assuming or otherwise becoming primarily liable on all
or any part of the Obligations.
SECTION 6. SUBORDINATION. Any indebtedness of the Borrower now or
hereafter held by the Guarantor is hereby subordinated to the prior payment
and performance in full of the Obligations, pursuant to the terms of the
Intercreditor Agreement. If the Guarantor shall receive any payments from
the Borrower in violation of the preceding sentence, the Guarantor shall act
as trustee for the Lenders and immediately pay over to the Agent for the
benefit of the Lenders any amounts received by the Guarantor to be applied
against the Obligations. However, no such payment shall reduce or affect in
any manner the absolute, unconditional and independent liability of the
Guarantor hereunder except to the extent such payment is applied against the
Obligations.
SECTION 7. PAYMENTS. It is understood that the Obligations may at any
time and from time to time exceed the aggregate liability of the Guarantor
hereunder without impairing this Guarantee. The Guarantor agrees that
whenever the Guarantor shall make any payment to the Agent for the benefit of
the Lenders hereunder on account of the liability hereunder, the Guarantor
will deliver such payment to the Agent at the address provided for it in
Section 11 below and notify the Agent in writing that such payment is made
under this Guarantee for such purpose. It is understood that the Agent,
without impairing this Guarantee, may apply payments from the Borrower to the
Obligations or to such other obligations owed by the Borrower to the Lenders
in such amounts and in such order as the Lenders in their complete discretion
determine. No payment made hereunder by the Guarantor to the Agent or the
Lenders shall constitute the Guarantor as a creditor of the Agent, the
Lenders or the Borrower.
SECTION 8. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants as follows:
(a) SOLVENCY. The execution and delivery of this Guarantee and
the other Loan Documents to which Guarantor is party will not (i) render the
Guarantor insolvent under GAAP nor render it Insolvent (as defined below),
(ii) leave the Guarantor with remaining assets which constitute unreasonably
small capital given the nature of the Guarantor's business, or (iii) result
in the incurrence of Debts (as defined below) beyond the Guarantor's ability
to pay them when and as they mature. For the purposes of this Section,
"INSOLVENT" means that the present fair salable value of assets is less than
the amount that will be required to pay the probable liability on existing
Debts as they become absolute and matured. For the purposes of this Section,
"DEBTS" includes any legal liability
-7-
for indebtedness, whether matured or unmatured, liquidated or unliquidated,
absolute, fixed or contingent.
(b) FINANCIAL OR OTHER BENEFIT OR ADVANTAGE. The Guarantor hereby
acknowledges and warrants that it has derived or expects to derive a
financial or other benefit or advantage from the Credit Agreement and from
each and every renewal, extension, release of collateral or other
relinquishment of legal rights made or granted or to be made or granted by
the Lenders to the Borrower in connection with the Credit Agreement.
(c) EXISTENCE AND RIGHTS. The Guarantor is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Guarantor has the power and authority and legal right
to own its property and to carry on its business as now owned and carried on
and in which it proposes to be engaged after the Initial Closing Date and is
duly qualified and in good standing in each jurisdiction in which the
property owned by it or the business conducted by it makes such qualification
necessary (except to the extent the failure to qualify thereunder could not,
in the aggregate, reasonably be expected to have a material adverse effect on
the financial condition or business of the Guarantor or its ability to
perform under this Guarantee or any other Guarantor Collateral Document
executed by the Guarantor (a "MATERIAL ADVERSE EFFECT")) and the Guarantor
has the power and authority to make and carry out this Guarantee and the
other Loan Documents to which Guarantor is party.
(d) GUARANTEE AUTHORIZED AND BINDING; COMPLIANCE WITH LAW. The
execution, delivery and performance of each of this Guarantee and the other
Loan Documents to which the Guarantor is party has been duly authorized and,
except as set forth on Schedule 7 to the Credit Agreement, does not require
the consent or approval of any Governmental Authority (including, without
limitation, the FCC) and is not in contravention of, or in conflict with, any
Requirement of Law. The Guarantor is in compliance with all Requirements of
Law except to the extent that a failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each of
this Guarantee and the other Loan Documents to which the Guarantor is party
is a valid and legally binding obligation of the Guarantor enforceable in
accordance with its terms, subject to and limited by the effect of
bankruptcy, insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or other laws affecting or relating to the rights of
creditors generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law).
(e) NO CONFLICT. The execution and delivery of this Guarantee and
the other Loan Documents to which the Guarantor
-8-
is party are not, and the performance of this Guarantee and the other Loan
Documents to which the Guarantor is party will not be, in contravention of,
or in conflict with, any agreement, indenture or undertaking to which the
Guarantor is a party or by which it or any of its property is or may be bound
or affected and do not, and will not cause any Lien to be created or imposed
upon any such property, other than security interests imposed by the Loan
Documents.
(f) LITIGATION. Except as set forth on Schedule 1 hereto, there
is no litigation or other proceeding pending or, to the knowledge of the
Guarantor, threatened against, or affecting, it or its properties (a) on the
Initial Closing Date with respect to this Guarantee or any other Guarantor
Collateral Document executed by the Guarantor or (b) which, if determined
adversely to the Guarantor, would, individually or in the aggregate, have a
Materially Adverse Effect, and the Guarantor is not in default with respect
to any order, writ, injunction, decree or demand of any court or other
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect.
(g) OWNERSHIP OF GUARANTOR.
a. On the Initial Closing Date, the following Persons have the
following ownership interests in the Guarantor:
(i) The Univision Holding Limited Partnership, a Delaware
limited partnership -- 99.99%, and
(ii) Network Limited Partners, Inc., a Delaware corporation --
0.01%.
b. On and after the Second Closing Date (except as otherwise
permitted by the Credit Agreement), the following Persons will have the
following ownership interests in the Guarantor:
(i) The Borrower -- 71.85%; and
(ii) Sunshine Acquisition, L.P., a California limited partnership
-- 28.15%.
SECTION 9. COVENANTS. The Guarantor covenants and agrees that, so long
as any part of the Obligations shall remain unpaid or any Commitment shall
remain in effect or any Letter of Credit shall remain outstanding the
Guarantor will, unless the Majority Lenders shall otherwise consent in
writing:
(a) REPORTING REQUIREMENTS. The Guarantor will furnish to the
Agent (i) as soon as available and in any event within 90 days after the end
of each fiscal year of the
-9-
Guarantor, a copy of the financial statements of the Guarantor for such
period and (ii) such other information respecting the financial condition or
business of the Guarantor as any Lender, through the Agent, may from time to
time request.
(b) NOTICE OF PROCEEDINGS. The Guarantor will promptly give
notice in writing to the Agent of all litigation, arbitral proceedings and
regulatory proceedings not otherwise described on Schedule 1 hereto affecting
the Guarantor or the properties of the Guarantor, except litigation or
proceedings that, if adversely determined, could not reasonably be expected
to have a Material Adverse Effect.
(c) LIMITATIONS ON FUNDAMENTAL CHANGES. Except as permitted under
the Credit Agreement, the Guarantor shall not, and shall not permit any of
its Subsidiaries to, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose
of, all or substantially all of its property, business or assets.
(d) LIMITATION ON DISTRIBUTIONS. The Guarantor shall not, and
shall not permit any of its Subsidiaries to, except as otherwise permitted
pursuant to the Credit Agreement, declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of its stock or any warrants or
options to purchase any such stock, whether now or hereafter outstanding, or
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property.
(e) COMBINED ENTITIES LOAN AGREEMENT. The Guarantor shall comply
with all the terms and provisions of the Combined Entities Loan Agreement.
(f) MANAGEMENT FEES. The Guarantor shall not, and shall not
permit any of its Subsidiaries to, pay any management fees for services
rendered, except for the Management Fees and other management fees to Persons
not Affiliates for services rendered and incurred in an arm's length
transaction and in the ordinary course of the Guarantor's or such
Subsidiaries' business. The Guarantor shall make no payment with respect to
the Management Fees unless (i) such payment is made in accordance with the
terms of its partnership agreement (unless provided otherwise herein), (ii)
no Default shall occur and be continuing at the time of and immediately after
giving effect to such payment, (iii) such payment shall not result in the
aggregate annual Management Fees paid exceeding 3% of Combined Net Time
Sales, (iv) such Management Fee is paid no more frequently than quarterly,
provided that such quarterly payment shall be subject to adjustment following
review of the annual
-10-
financial statements referred to in Section 5.1(a) of the Credit Agreement,
and (v) the Management Fees remain subordinated to the Obligations pursuant
to the Intercreditor Agreement. Concurrently with delivery of the financial
statements referred to in Sections 5.1(a) and 5.1(b) of the Credit Agreement,
the Guarantor shall deliver to the Managing Agents a certificate setting
forth the calculation of such Management Fees.
(g) PROGRAM FEES. Televisa shall pay 100% of its portion of all
programming costs under the Program Cost Sharing Agreement as follows:
(A) on the fourth day prior to each calendar quarter
commencing with the fourth fiscal quarter of 1996, except as
hereinafter set forth, Univisa shall prepay to the Guarantor an amount
equal to 100% of its portion of the budgeted program costs for such
calendar quarter, which amount shall be either increased or decreased
by an amount equal to the difference between the prior quarter's
budgeted and actual program costs. (For purposes of illustration
only, if the budgeted program costs for quarters 1, 2 and 3 were
$5,000,000 each, but the actual program costs for quarter 1 were
$6,000,000 and the actual program costs for quarter 2 were $4,000,000,
Univisa would prepay (i) $5,000,000 on the fourth day prior to the
first day of quarter 1, (ii) $6,000,000 ($5,000,000 budgeted for
quarter 2 plus $1,000,000 for cost overage for quarter 1) on the
fourth day prior to the first day of quarter 2 and (iii) $4,000,000
($5,000,000 budgeted for quarter 3 minus $1,000,000 for cost underage
for quarter 2) on the fourth day prior to the first day of quarter 3).
(B) The Guarantor shall be obligated to reimburse Univisa
for program costs as follows: (i) thirty days following the final
principal payment required to be made on the Loans each calendar year
by the Borrower, the Guarantor shall reimburse Univisa for 50% of the
amount prepaid by Univisa for the prior 4 calendar quarters (if
Univisa is required, as set forth above, to make prepayments) or (ii)
at times mutually agreed upon by Univisa and the Guarantor, the
Guarantor shall reimburse Univisa for 50% of the actual program costs
paid by Univisa (if Univisa is not required to make such prepayments).
In addition, as long as Univisa continues to make prepayments, the
Guarantor shall make a further payment, if necessary, after the
11
Guarantor has received its audited year-end financial statements,
equal to 50% of the positive difference between the actual program
costs for the fourth calendar quarter and the budgeted program costs
for such quarter. After Univisa is no longer required to make
prepayments, the Guarantor and Univisa shall make whatever adjustments
are necessary, after the Guarantor has received its audited year-end
financial statements, to provide that the Guarantor and Univisa shall
share 50% each in actual program costs.
In addition, and subject to the preceding sentence, the Guarantor
shall make no payment with respect to Program Fees unless (i) such
payment is made in accordance with the terms of the Program Cost
Sharing Agreement, (ii) no Default shall occur and be continuing at
the time of and immediately after giving effect to such payment and
(iii) the Program Fees shall remain subordinated to the Obligations
pursuant to the Intercreditor Agreement.
SECTION 10. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Guarantee or consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same
shall be in writing and otherwise in accordance with Section 9.1 of
the Credit Agreement, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose
for which given.
SECTION 11. ADDRESSES FOR NOTICES. All notices, requests and demands
or other communications hereunder to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered
by hand, or 3 days after being deposited in the United States mail,
certified and postage prepaid and return receipt requested, or, in the
case of telecopy notice, when received, in each case addressed as
follows: if to the Guarantor to it at its address or telecopier
number set forth on the signature page hereof, and if to the Agent, to
it at the address or telecopier number specified for the Agent in the
Credit Agreement; or, as to each party, to it at such other address as
shall be designated by such party in a written notice to the other
party.
SECTION 12. NO WAIVER; REMEDIES. No failure on the part of the
Lenders to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof, and no single or partial exercise
of any right hereunder shall preclude any other or further exercise
thereof or the exercise of any other right. The remedies provided
herein are cumulative and not exclusive of any remedies provided by
law.
SECTION 13. RIGHT OF SETOFF. In addition to any rights and remedies
of the Lenders provided by law, with the prior consent of the Majority
Lenders, each Lender shall have the right, exercisable upon the
occurrence and during the continuance of an Event of Default and
acceleration of the Obligations pursuant to Section 7 of the Credit
Agreement, without prior notice to the Guarantor, any such notice
being expressly waived by the Guarantor to the extent permitted by
applicable law, to set off and appropriate and apply against
12
any such Obligations any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof or bank
controlling such Lender to or for the credit or the account of the
Guarantor. Each Lender agrees promptly to notify the Guarantor after
any such set-off and application made by such Lender, PROVIDED that
the failure to give such notice shall not affect the validity of such
set-off and application.
SECTION 14. CONSENT TO JURISDICTION.
(a) The Guarantor, to the extent permitted by applicable law, hereby
irrevocably submits to the non-exclusive general jurisdiction of the courts
of the States of California and New York, the courts of the United States of
America for the Central District of California and the Southern District of
New York and appellate courts from any thereof in any legal action or
proceeding arising out of or relating to this Guarantee or any other Loan
Document to which the Guarantor is or may be a party, and the Guarantor
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such California, New York or
federal court. The Guarantor hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding and any objection to venue of such
action or proceeding.
(b) Nothing in this Section shall affect the right of the Lenders to
serve legal process in any manner permitted by law or affect the right of the
Lenders to bring any action or proceeding against the Guarantor or its
property in the courts of any other jurisdictions.
SECTION 15. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO ITS CHOICE OF LAW RULES).
SECTION 16. COMPLETE AGREEMENT. This Guarantee supersedes any prior
negotiations, discussions or communications between the Guarantor and the
Lenders and constitutes the entire agreement between the Guarantor and the
Lenders with respect to the guarantee of the Obligations.
SECTION 17. WAIVER OF JURY TRIAL. THE GUARANTOR, THE AGENT, THE MANAGING
AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE OR ANY
OTHER LOAN DOCUMENT TO WHICH THE GUARANTOR IS OR MAY BE A PARTY OR ANY
13
DOCUMENT EXECUTED IN CONNECTION HEREWITH AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 18. SEVERABILITY. Any provision of this Guarantee which is
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 portions hereof or
thereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 19. COUNTERPARTS. This Guarantee may be executed in any number
of counterparts and by different parties hereto in separate counterparts,
each of which shall be deemed to be an original, but all of which taken
together shall constitute one and the same agreement.
SECTION 20. COPIES OF CERTIFICATES, ETC. Whenever the Guarantor is
required to deliver notices, certificates, opinions, statements or other
information hereunder to the Agent or to the Managing Agents for delivery to
any Lender, it shall do so in such number of copies as the Agent or the
Managing Agents shall reasonably specify.
14
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
executed by its duly authorized representative as of the date first above
written.
THE UNIVISION NETWORK LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: THE UNIVISION NETWORK HOLDING
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Sunshine Acquisition L.P., a
California limited
partnership
its General Partner
By: Sunshine Acquisition
Corp., a California
corporation
By:
----------------------
Name:
--------------------
Title:
-------------------
Address for Notices:
Chartwell Partners
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
15
SCHEDULE 1 TO
GUARANTEE
GUARANTOR LITIGATION
NONE
