Exhibit 10.12.3
THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD AMENDMENT TO CREDIT AGREEMENT dated as of December 20, 1999 (this
"Amendment") to the Credit Agreement dated as of September 26, 1996 (as amended,
the "Credit Agreement") among Univision Communications Inc. (the "Borrower"),
certain Lenders party thereto (collectively, the "Lenders"), Paribas (as
successor-in-interest to Banque Paribas) and The Chase Manhattan Bank, as
Managing Agents (collectively, the "Managing Agents") and The Chase Manhattan
Bank, as Administrative Agent (in such capacity, the "Administrative Agent").
R E C I T A L S
A. The Borrower and the Lenders have agreed to amend the Credit
Agreement for the following purposes: (i) to permit the making of certain
investments; (ii) to increase the maximum amount of permitted unsecured
indebtedness to $500,000,000; (iii) to exclude non-cash interest expense from
the calculation of certain ratio tests; (iv) to eliminate the requirement of
Lender consent to certain secondary stock offerings; and (v) to make certain
amendments to facilitate the foregoing modifications, each on the terms and
conditions set forth herein.
B. Unless otherwise expressly provided in this Amendment or unless the
context otherwise requires, the terms defined in the Credit Agreement shall have
their defined meanings when used in this Amendment.
AGREEMENT
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. Effective as of the date
first set forth above, the Credit Agreement is amended as follows:
(a) NEW DEFINED TERMS. Section 1.1 is amended to add the following
defined terms in the proper alphabetical order:
"`ADDITIONAL ENTRAVISION INVESTMENT': the investment by the Borrower
and/or its Subsidiaries of up to $110,000,000 (which shall be in
addition to the $10,000,000 investment in Entravision permitted by
Section 6.7(j)) to purchase equity or convertible debt of Entravision.
`NEW INVESTMENTS': collectively, the Additional Entravision Investment
and Other Media/Communications Investments, and `New Investment' means
any one of the foregoing.
`OTHER MEDIA/COMMUNICATIONS INVESTMENTS': investments of the Borrower
or its Subsidiaries made after December 20, 1999 in businesses in the
Media/Communications Business in an aggregate amount not exceeding
$400,000,000.
`PIK INTEREST': with respect to any Funded Debt of the Borrower, all
interest on such Funded Debt which interest is paid by the issuance of
additional Funded Debt (and not paid in cash) having no principal
payable thereon on or before December 31, 2003."
(b) AMENDED DEFINED TERMS. Section 1.1 is further amended by amending
the following defined terms therein.
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(i) The defined term "Excess Cash Flow" is amended in its entirety to
read as follows:
"'EXCESS CASH FLOW': for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal
to EBITDA (provided that Program Rights Payments deducted in
the calculation thereof shall be limited to Program Rights
Payments actually made) for such period, LESS, during such
period (in each case, without duplication), (i) Total Debt
Service, (ii) Cash Income Taxes, (iii) Capital Expenditures
(other than those made with the proceeds of a financing
covered by Section 6.3(j)), not in excess of the amount
permitted by the Loan Documents, (iv) increases (or PLUS
decreases) in Net Working Investment, (v) Restricted Payments
permitted under Section 6.6(ii) and 6.6(iii) and (vi) optional
prepayments of Term Loans and, if the Term Loans shall have
been repaid or prepaid in full, optional prepayments of
Revolving Loans accompanied by equal permanent reductions of
the Revolving Loan Commitments, in each case made pursuant to
Section 2.5, but only to the extent such optional prepayments
are made from cash generated from operating revenue."
(ii) The defined term "Media/Communications Business" is amended in its
entirety to read as follows:
"'MEDIA/COMMUNICATIONS BUSINESS': the ownership and
operation of radio and television stations, cable networks,
cable programming, television programming and syndication,
interactive television, direct broadcast satellite,
pay-per-view television, sports promotion and sports team
ownership, home shopping, print and on-line publishing or
broadcasting, billboards and recorded music and music
publishing; PROVIDED THAT to the extent any of the foregoing
involve assets located, or businesses operating, outside of
the United States, aggregate EBITDA derived from such assets
or businesses shall not exceed 20% of EBITDA (based on the
most recently ended twelve month period) for the Borrower and
its Subsidiaries on a consolidated basis; and PROVIDED,
FURTHER, THAT, acquisition of, or investment in, recorded
music and/or music publishing shall not exceed $100,000,000 in
the aggregate during the term of this Agreement. With respect
to an investment made by the Borrower or its Subsidiaries in
the form of an equity or debt investment (such as through the
purchase of stock, partnership interests or otherwise), as
opposed to acquisition of such assets or businesses directly,
the calculation of EBITDA for purposes of the first proviso of
this definition shall be made as if such assets and businesses
were owned directly by the Borrower or its Subsidiaries."
(iii) The defined terms "Primary Station" and "Station" are amended by
adding at the end of each such term the following proviso:
"; provided such term shall not include any Station, any translator or
other television station owned, leased or operated by Entravision so
long as Entravision is not a Subsidiary."
(iv) The defined term "Total Interest Coverage Ratio" is amended to
delete the proviso therein.
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(c) USE OF PROCEEDS. Section 3.15(c)(iii) is amended to read as
follows:
"(iii) to make Acquisitions and New Investments permitted under this
Agreement,"
(d) MAXIMUM TOTAL INTEREST COVERAGE RATIO. Section 6.1(b) is amended as
follows: the existing proviso is deleted and the following substituted therefor:
"; PROVIDED that Interest Expense, as used in the Total Interest
Coverage Ratio, shall exclude all PIK Interest."
(e) MAXIMUM FIXED CHARGE COVERAGE RATIO. Section 6.1(c) is amended as
follows: the existing proviso is deleted and the following substituted
therefor:
"; provided that Interest Expense, as used in Total Debt Service as
used in Fixed Charge Coverage Ratio, shall exclude all PIK interest."
(f) BASKET FOR UNSECURED INDEBTEDNESS. Section 6.2(e) is amended by
deleting the amount "$100,000,000" and substituting the amount
"$500,000,000" therefor and adding the following proviso at the end
thereof:
"; provided that (i) any PIK Interest on such Indebtedness shall not be
included (as an addition to principal or otherwise) in determining
compliance with the maximum amount of Indebtedness permitted by this
Section 6.2(e) and (ii) if the aggregate principal amount of such
Indebtedness shall at any time exceed $100,000,000, such excess
Indebtedness shall not mature or amortize until after the later of (A)
the Term Loan Maturity Date and the (B) Revolving Loan Commitment
Expiration Date;"
(g) MERGERS TO CONSUMMATE NEW INVESTMENTS AND ACQUISITIONS. Section 6.4
is amended to (i) replace the period at the end of Section 6.4(b) with "; and"
and (ii) to add an additional paragraph "(c)" to read as follows:
"(c) any Subsidiary of the Borrower may merge or consolidate with any
Person to consummate any New Investment or Acquisition permitted by
Section 6.7; provided that the survivor of that merger or consolidation
assumes all obligations of such Subsidiary under any Guaranty or
Guarantor Collateral Document to which such Subsidiary is party."
(h) ACQUISITIONS; NEW INVESTMENTS AND PAY TELEVISION INVESTMENT.
Section 6.7 is amended to revise paragraph (g) and add additional
paragraphs "(k)" and "(l)" to read as follows:
The phrase "not otherwise referred to in any other clause of this
Section 6.7" is added after the word "Acquisitions" at the beginning of
clause (g).
The period at the end of Section 6.7(j) is replaced with a ";".
"(k) New Investments; provided that (i) no Default has occurred and is
continuing or would result from the consummation of such New Investment
(and the Borrower shall have delivered a Covenant Compliance
Certificate showing PRO FORMA calculations assuming such New Investment
had been consummated to the Administrative Agent);
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(ii) the New Investment (if in a radio or television station), has
received (if such investment shall require FCC approval) final FCC
approval and evidence thereof satisfactory to the Administrative Agent
has been provided to the Administrative Agent; (iii) the Administrative
Agent shall have received the form of all documents setting forth the
terms of, effecting or otherwise relating to, such New Investment; (iv)
the Borrower shall be in compliance with the Total Debt Ratio on a PRO
FORMA basis assuming such New Investment had been consummated; and (v)
the Administrative Agent shall have received and reviewed all documents
reasonably requested by the Administrative Agent to insure that the
Lenders have a first priority security interest in, and assignment of,
any Program Services Agreements and all other personal property assets
and interests acquired, including consents of third parties if
reasonably requested by the Managing Agents; and"
"(l) the Borrower and its Subsidiaries may make an investment in a
joint venture for the purpose of establishing and operating pay
television channels in the United States; PROVIDED that the Borrower's
(or its Subsidiaries') investment therein shall not exceed $10,000,000
in the aggregate (exclusive of all general and administrative expenses
and affiliate sales and promotion expenses contributed by Borrower (or
any such Subsidiary)); and PROVIDED, FURTHER THAT (i) no Default has
occurred and is continuing or would result from the consummation of
such investment; (ii) the Administrative Agent shall have received and
reviewed the form of all documents setting forth the terms of,
effecting or otherwise relating to, such investment; and (iii) the
Administrative Agent shall have received all documents reasonably
requested by the Administrative Agent to insure that the Lenders have a
first priority security interest in, and assignment of, the joint
venture interest so acquired, including consents of third parties if
reasonably requested by the Managing Agents."
(i) TRANSACTIONS WITH AFFILIATES. Section 6.9 is amended to add
an additional clause "(iv)" to read as follows:
"or (iv) is a New Investment or an investment in a pay television joint
venture permitted by Section 6.7(k) or 6.7(l), respectively."
(j) ELIMINATION OF LENDER CONSENT TO EXECUTION OF AGREEMENT TO SELL
EQUITY SECURITIES. Section 6.16 is amended so that the introductory
portion of that section prior to clause (i) thereof reads as follows:
"The Borrower shall not, and shall not permit any of its Subsidiaries
to, consummate any Equity Offering of the Capital Stock of the Borrower
or any Subsidiary by the Borrower or any Subsidiary except for."
SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become
effective, as of the date first above written, upon satisfaction of the
following:
(a) this Amendment shall have been executed by each of the Borrower and
the Majority Lenders and counterparts of this document so executed shall have
been delivered to the Administrative Agent;
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(b) the Administrative Agent shall have received evidence of the
Guarantors' consent to this Amendment, substantially in the form of Exhibit A
attached hereto;
(c) the representations and warranties contained in the Credit
Agreement and in each other Loan Document and certificate or other writing
delivered to the Lenders prior to or on the effective date hereof are correct on
and as of such date except to the extent that such representations and
warranties expressly relate to an earlier date and no Default has occurred and
is continuing or would result from the execution, delivery and performance of
this Amendment or performance of the Credit Agreement as amended hereby and the
Administrative Agent shall have received a certificate from a Responsible
Officer of the Borrower certifying these statements; and
(d) the Managing Agents and the Administrative Agent shall have
received payment of all fees, costs, expenses and taxes accrued and unpaid and
otherwise due and payable on or before the effective date hereof by the Borrower
in connection with this Amendment.
SECTION 3. REPRESENTATIONS AND WARRANTIES
(a) The Borrower represents and warrants that it has duly authorized
and approved the execution and delivery of, and the performance by the Borrower
of the obligations on its part contained in, the Credit Agreement, as amended by
this Amendment, and the Credit Agreement, as amended by this Amendment,
constitutes the legal, valid and binding obligation of the Borrower enforceable
in accordance with the terms thereof.
(b) The Borrower represents and warrants that to the best of the
Borrower's knowledge, all approvals, consents and orders of, or filings with,
any Governmental Authority, legislative body, board, agency or commission having
jurisdiction which would constitute a condition precedent to the due performance
by the Borrower of its Obligations, or the absence of which would cause a
Material Adverse Effect, have been duly obtained.
(c) The Borrower represents and warrants that notwithstanding the
consummation of any or all of the Additional Entravision Investment, Entravision
will not constitute a Subsidiary.
SECTION 4. MISCELLANEOUS
(a) This Amendment shall be binding upon the successors and assigns of
the Borrower and the Lenders and shall, together with the rights and remedies of
the Lenders hereunder, inure to the benefit of the Lenders and their successors
and assigns.
(b) Except as expressly set forth herein, all provisions of the Credit
Agreement and all other Loan Documents shall continue in full force and effect.
(c) This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts so
executed and delivered shall be deemed to be an original, and all of which
counterparts, taken together, shall constitute but one and the same Amendment.
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(d) This Amendment and the rights and obligations of the parties
under this Amendment shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York (without reference to its
choice of law rules).
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
duly executed as of the date first above written.
UNIVISION COMMUNICATIONS INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice President and Secretary
-------------------------------
THE CHASE MANHATTAN BANK, as Administrative
Agent, as a Managing Agent and as a Lender
By /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------
Title: Vice President
-------------------------------
PARIBAS,
as a Managing Agent and as a Lender
By /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
--------------------------------
Title: Director
-------------------------------
By /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: Vice President
-------------------------------
THE BANK OF NEW YORK,
as a Co-Agent and as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
NATIONSBANK OF TEXAS, N.A.,
as a Co-Agent and as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ABN AMRO BANK N.V.,
as a Lender
By /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
By /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
--------------------------------
Title: Vice President
-------------------------------
BANK OF AMERICA, N.A,
as a Lender
By /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------------
Title: Vice President
-------------------------------
FLEET BANK, N.A.,
as a Lender
By /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
--------------------------------
Title: Assist. Vice President
-------------------------------
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANKBOSTON, N.A.,
as a Lender
By /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
--------------------------------
Title: Division Executive
-------------------------------
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANK OF HAWAII,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANK OF IRELAND,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANK OF MONTREAL,
as a Lender
By /s/ Xxx Xxxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxxx
--------------------------------
Title: Director
-------------------------------
BANK OF NOVA SCOTIA,
as a Lender
By /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
--------------------------------
Title: Authorized Signatory
-------------------------------
BANQUE FRANCAISE DU COMMERCE EXTERIEUR,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANQUE NATIONALE DE PARIS,
as a Lender
By /s/ Xxxxxx XX
-----------------------------------
Name: Xxxxxx Xx
--------------------------------
Title: Vice President
-------------------------------
By /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxx
--------------------------------
Title: Vice President
-------------------------------
XXXXXXX BANK, N.A.,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
CIBC INC.,
as a Lender
By /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
--------------------------------
Title: Executive Director
-------------------------------
CITY NATIONAL BANK,
as a Lender
By /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: Senior Vice President
-------------------------------
CREDIT AGRICOLE INDOSUEZ,
as a Lender
By /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: First Vice President
-------------------------------
By /s/ Xxxx XxXxxxxxx
-----------------------------------
Name: Xxxx XxXxxxxxx
--------------------------------
Title: V.P. Senior Relations Mgr.
-------------------------------
THE DAI-ICHI KANGYO BANK, LTD.,
as a Lender
By /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------
Title: Assist. Vice President
-------------------------------
FIRST HAWAIIAN BANK,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
FIRST UNION NATIONAL BANK,
as a Lender
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
-------------------------------
THE FUJI BANK, LIMITED,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
LTCB TRUST COMPANY,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
MELLON BANK, N.A.,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ROYAL BANK OF CANADA,
as a Lender
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Director
-------------------------------
THE SANWA BANK, LIMITED,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
SOCIETE GENERALE,
as a Lender
By /s/ Xxxxx XxXxxxxx
-----------------------------------
Name: Xxxxx XxXxxxxx
--------------------------------
Title: Vice President
-------------------------------
THE SUMITOMO BANK, LTD.,
as a Lender
By /s/ Xx Xxxxxxxx
-----------------------------------
Name: Xx Xxxxxxxx
--------------------------------
Title: Senior Vice President
-------------------------------
SUNTRUST BANK, CENTRAL FLORIDA, N.A.,
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
CREDIT LYONNAIS
as a Lender
By
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
EXHIBIT A
GUARANTORS' CONFIRMATION AND ACKNOWLEDGMENT
Reference is made to that certain Credit Agreement dated as of
September 26, 1996 (as amended, the "Credit Agreement") among Univision
Communications Inc. (the "Borrower"), Paribas ("Paribas") and The Chase
Manhattan Bank ("Chase"), as Managing Agents, Chase, as Administrative Agent,
and Paribas, Chase and the other financial institutions party thereto as lenders
(collectively, the "Lenders"). (Capitalized terms used herein and not defined
shall have the meanings assigned to them in the Credit Agreement.) Each of the
undersigned has unconditionally, continually and irrevocably guaranteed the
obligations of the Borrower then or thereafter existing under the Credit
Agreement and the Notes, is a "Guarantor" and has executed and delivered a
"Guarantee" thereunder.
Each Guarantee provides that each Guarantor's obligations thereunder
shall remain in full force and effect without regard to, and shall not be
affected or impaired by any change in any term of any of the obligations of the
Borrower or any amendment of the Credit Agreement and that any such change or
amendment may be taken without the consent of, or notice to, such Guarantor.
Notwithstanding the foregoing, each of the undersigned Guarantors acknowledges
that it has received a copy of the Third Amendment to Credit Agreement dated as
of December 20, 1999 (the "Third Amendment") and hereby consents to amendments
and changes to the Credit Agreement made by the Third Amendment and agrees that
such Guarantor's obligations under its respective Guarantee, including the
punctual payment when due of all of the obligations of the Borrower now or
hereafter existing under the Credit Agreement and the Notes shall remain in full
force and effect in all respects.
Dated as of December 20, 1999
UNIVISION TELEVISION GROUP, INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice President and Secretary
-------------------------------
PTI HOLDINGS, INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice President and Secretary
-------------------------------
GALAVISION, INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice President and Secretary
-------------------------------
SUNSHINE ACQUISITION CORP.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice President and Secretary
-------------------------------
SUNSHINE ACQUISITION, L.P.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice President and Secretary
-------------------------------
THE UNIVISION NETWORK LIMITED PARTNERSHIP
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice President and Secretary
-------------------------------
