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EXHIBIT 10.20
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.
SUBORDINATED CONVERTIBLE PROMISSORY NOTE
$90,000,000 April 20, 2000
New York, New York
FOR VALUE RECEIVED, Entravision Communications Company, L.L.C., a Delaware
limited liability company (the "Company"), promises to pay to TSG Capital Fund
III, L.P., a Delaware limited partnership (the "Holder"), or its registered
assigns, the principal sum of Ninety Million Dollars ($90,000,000), or such
lesser amount as shall equal the outstanding principal amount hereof, together
with interest from the date of this subordinated convertible promissory note
("Note") on the unpaid principal balance calculated in accordance with Section 2
hereof. All unpaid principal, together with any then unpaid and accrued interest
and other amounts payable hereunder from the date of this Note as set forth
above (the "Effective Date"), shall be due and payable on the earlier of (i) the
fourth (4/th/) anniversary of the Effective Date, or (ii) when, upon or after
the occurrence of an Event of Default (as defined below), such amounts are
declared due and payable by the Holder or become automatically due and payable
in accordance with Section 4 hereof. This Note is issued pursuant to the Note
Purchase Agreement (as defined below). All payments of principal and interest
hereunder shall be made by wire transfer to the account set forth on Schedule
"A" or another bank account designated in writing by Holder.
1. Definitions. As used in this Note, the following capitalized terms
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have the following meanings:
(a) "Company" includes the limited liability company initially
executing this Note and any Person which shall succeed to or assume the
obligations of the Company under this Note.
(b) "Certificate" shall mean the First Amended and Restated
Certificate of Incorporation of the Corporation as amended and/or restated and
effective immediately prior to the exchange of this Note.
(c) "Change of Control" means the occurrence of any event whereby a
person or group of persons acting in concert (other than current owners) shall
(i) become (whether by merger, consolidation, or transfer, redemption or
issuance of capital stock, limited liability
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company interests, other Equity Securities or otherwise) the beneficial owners
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of securities constituting more than fifty percent (50%) of the
combined voting power of or the economic equity interest in the then-outstanding
Equity Securities of the Company (or any surviving or resulting Person) or (ii)
acquire assets constituting all or substantially all of the assets of the
Company and its subsidiaries on a consolidated basis.
(d) "Class A Units" shall mean the Class A Units evidencing a
membership interest in the Company in accordance with the terms of the
Certificate of Formation and operating agreement of the Company, as amended from
time to time.
(e) "Corporation" shall mean Entravision Communications Corporation, a
Delaware corporation.
(f) "Equity Securities" of any Person shall mean (a) all common stock,
preferred stock, participations, shares, membership or partnership interests or
other equity interests in and of such Person (regardless of how designated and
whether or not voting or non-voting) and (b) all warrants, options and other
rights to acquire any of the foregoing.
(g) "Event of Default" has the meaning given in Section 5 hereof.
(h) "Holder" shall mean the person specified in the introductory
paragraph of this Note or any Person who shall at the time be the registered
holder of this Note.
(i) "Indebtedness" means all amounts owing with respect to
indebtedness for borrowed money (but excluding the deferred purchase price of
property or assets and accounts receivable or similar items arising in the
ordinary course of business).
(j) "IPO" means a public offering of common stock of the Corporation,
pursuant to a registration statement that is declared effective under the
Securities Act that results in net proceeds to the Corporation of not less than
Fifty Million Dollars ($50,000,000).
(k) "Make-Whole Premium" shall be an additional amount of interest
payable by the Company to the Holder solely in the event of a default pursuant
to Section 5(c) below in an amount equal to the difference between (i) interest
otherwise paid pursuant to the terms of this Note and (ii) an amount equal to a
thirty percent (30%) return, compounded annually, on the principal amount of
this Note for the period between the Effective Date and the date all amounts due
under this Note are paid.
(l) "Note Purchase Agreement" shall mean the Note Purchase Agreement
dated April 20, 2000 between the Company and the Holder (as amended, modified or
supplemented from time to time).
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(m) "Obligations" shall mean and include all loans, advances, debts,
liabilities and financial obligations, howsoever arising, owed by the Company to
the Holder, now existing or hereafter arising under or pursuant to the terms of
this Note, including, without limitation, all interest, fees, charges, expenses,
and attorneys' fees and costs.
(n) "Operating Agreement" shall mean the Operating Agreement of the
Company, as amended from time to time.
(o) "Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, a limited
liability company, an unincorporated association, a joint venture or other
entity or a governmental authority.
(p) "Roll-Up" means the closing of that certain exchange transaction
contemplated by the Exchange Agreement dated April 20, 2000, by and among the
Company, its members and Univision Communications, Inc.
(q) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(r) "Senior Indebtedness" shall mean, unless expressly subordinated to
or made on a parity with the amounts due under this Note, the principal of (and
premium, if any), unpaid interest on and amounts reimbursable, fees, expenses,
costs of enforcement and other amounts due in connection with, (i) secured or
unsecured indebtedness or financial obligation of the Company or its
Subsidiaries, to banks, commercial finance lenders, insurance companies,
leasing or equipment financing institutions or other lending or financial
institutions regularly engaged in the business of lending money or for
reimbursement obligations, or letters of credit (excluding debt that is
convertible or exercisable into equity through venture capital, investment
banking or similar institutions which sometimes engage in lending activities but
which are primarily engaged in investments in equity securities), and (ii) any
such indebtedness or any debentures, notes or other evidence of indebtedness
issued in exchange for such Senior Indebtedness, or (iii) any indebtedness
arising from the satisfaction of such Senior Indebtedness by a guarantor.
(s) "Subsidiary" shall mean (a) any corporation of which more than
fifty percent (50%) of the issued and outstanding Equity Securities having
ordinary voting power to elect a majority of the Board of Directors of such
corporation is at the time directly or indirectly owned or controlled by the
Company, (b) any partnership, limited liability company, joint venture, or other
association of which more than fifty percent (50%) of the Equity Securities
having the power to vote, direct or control the management of such partnership,
limited liability company, joint venture or other association is at the time
directly or indirectly owned and controlled by the Company, (c) any other entity
included in the financial statements of the Company on a consolidated basis.
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(t) "Transaction Documents" shall mean this Note and the Note Purchase
Agreement, and any other documents that may be exchanged between the Company and
the Holder in connection with the issuance of the Note.
2. Interest. The interest rate to be applied to the unpaid principal
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balance of this Note shall be eight and one-half percent (8.5%) per annum and
all accrued interest shall be payable annually in cash on each anniversary of
the Effective Date and on each date on which a payment of principal is due
hereunder. In the event this Note is converted into Class A Units of the
Company or automatically exchanged into Series A Preferred Stock of the
Corporation in accordance with Section 8, all interest accrued under this Note
shall be payable at the option of the Company (or the Corporation) either in
cash or in additional Class A Units or Series A Preferred Stock, valued as set
forth in Section 8 below and shall be paid at the time of conversion or
exchange. In the event of an occurrence of an Event of Default pursuant to
Section 5(c) below, the Company shall be obligated to pay the Holder additional
interest in an amount equal to the Make-Whole Premium.
3. Prepayment. Upon twenty (20) days prior written notice to the Holder
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and on a date which is at least twelve (12) months after the Effective Date of
this Note, the Company may prepay this Note in whole or in part, unless the
Holder elects to convert the Note in accordance with Section 8(a) of this Note.
No prepayment of this Note may be made at any time prior to the date twelve (12)
months after the Effective Date.
4. Certain Covenants. While any amount is outstanding under the Note,
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without the prior written consent of the Holder:
(a) Dividends, Redemptions, Etc. Neither the Company nor the
Corporation nor any of their Subsidiaries shall (i) pay any dividends or make
any distributions on its Equity Securities; (ii) purchase, redeem, retire,
defease or otherwise acquire for value any of its Equity Securities, other than
the repurchase of shares of common stock under option agreements or restricted
stock purchase agreements with employees, directors or consultants pursuant to
arrangements approved by the Executive Committee of the Company or the Board of
Directors of the Corporation, as the case may be, and in no event shall such
arrangements include the purchase or acquisition of Equity Securities of the
Company or the Corporation held by Walter F. Ulloa, Philip C. Wilkinson, Paul A.
Zevnik or any affiliates or transferees thereof without the prior written
consent of the Holder, which consent shall not be unreasonably withheld; (iii)
return any capital to any holder of its Equity Securities; (iv) make any
distribution of assets to any holder of its Equity Securities; or (v) set apart
any sum for any such purpose; provided, however, that any Subsidiary may pay
cash dividends to the Company.
(b) Incur Indebtedness. The Company or any Subsidiaries shall not
incur any Indebtedness which violates the terms of that certain Amended and
Restated Credit Agreement dated November 10, 1998, as amended from time to time,
between the Company and Union
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Bank of California, N.A. or any successor agreement with the lead lender upon
refinancing of such debt.
(c) Liquidation. The Company shall not liquidate, dissolve or wind-up
its affairs.
(d) Amend Organizational Documents. The Company shall not amend its
Certificate of Formation or Operating Agreement and the Corporation will not
amend its Certificate of Incorporation or Bylaws in a fashion which will
adversely affect the rights of the Holder of this Note or the holders of the
Series A Preferred Stock issuable upon conversion or exchange of this Note.
(e) Amend the Exchange Agreement. The Company shall not consent to
the amendment of the Exchange Agreement (or the First Restated Certificate of
Incorporation or First Amended and Restated Bylaws of the Corporation attached
as exhibits to the Exchange Agreement) in a fashion which will adversely affect
the rights of the Holder of this Note or the holders of the Series A Preferred
Stock issuable upon conversion or exchange of this Note.
5. Events of Default. The occurrence of any of the following shall
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constitute an "Event of Default" under this Note and the other Transaction
Documents. Promptly upon the occurrence thereof, the Company shall provide the
Holder with written notice of the occurrence of any Event of Default hereunder
or any event of default with respect to any Senior Indebtedness.
(a) Failure to Pay. The Company shall fail to pay (i) when due any
principal payment on the due date hereunder or (ii) any interest or other
payment required under the terms of this Note or any other Transaction Document
on the date due and such failure continues for five (5) days; or
(b) Voluntary Bankruptcy or Insolvency Proceedings. The Company or
any of its Subsidiaries shall (i) apply for or consent to the appointment of a
receiver, trustee, liquidator or custodian of itself or of all or a substantial
part of its property, (ii) be unable, or admit in writing its inability, to pay
its debts generally as they mature, (iii) make a general assignment for the
benefit of its or any of its creditors, (iv) be dissolved or liquidated, (v)
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding commenced
against it, (vii) becomes subject to an involuntary bankruptcy case or other
proceedings seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect which is not dismissed within ninety (90) days after the
commencement thereof, or (viii) take any action for the purpose of effecting any
of the foregoing; or
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(c) Closing of Roll-Up. The Company shall fail to close the Roll-Up
by the Interim Closing Deadline, as defined in that certain Acquisition
Agreement and Plan of Merger by and among the Company, the Corporation, ZSPN
Acquisition Corporation, Z-Spanish Media Corporation and its stockholders of
even date herewith (the "Merger Agreement").
6. Rights of the Holder Upon Default. Upon the occurrence or existence
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of any Event of Default other than as described in Section 5(b) above, and at
any time thereafter during the continuance of such Event of Default, the Holder
may, by written notice to the Company, declare all outstanding Obligations
payable by the Company hereunder to be immediately due and payable without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the other Transaction
Documents to the contrary notwithstanding; provided that if an Event of Default
under Section 5(b) shall occur no declaration or notice by the Holder shall be
necessary and such Event of Default shall occur automatically. In addition to
the foregoing remedies, upon the occurrence or existence of any Event of
Default, the Holder may exercise any other right, power or remedy granted to it
by the Transaction Documents or otherwise permitted to it by law, either by suit
in equity or by action at law, or both.
7. Subordination. The indebtedness evidenced by this Note is hereby
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expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all of Senior Indebtedness
of the Company or its Subsidiaries.
(a) Insolvency Proceedings. If there shall occur any receivership,
insolvency, assignment for the benefit of creditors, bankruptcy, reorganization,
or arrangements with creditors (whether or not pursuant to bankruptcy or other
insolvency laws), sale of all or substantially all of the assets, dissolution,
liquidation, or any other marshaling of the assets and liabilities of the
Company, (i) no amount shall be paid by the Company in respect of the principal
of, interest on or other amounts due with respect to this Note at the time
outstanding, unless and until the principal of and interest on the Senior
Indebtedness then outstanding shall be paid in full, and (ii) no claim or proof
of claim shall be filed with the Company by or on behalf of the Holder of this
Note which shall assert any right to receive any payments in respect of the
principal of and interest on all of the Senior Indebtedness then outstanding.
(b) Default on Senior Indebtedness. If there shall occur an event of
default which has been declared in writing with respect to any Senior
Indebtedness, as defined therein, or in the instrument under which it is
outstanding, permitting the holder to accelerate the maturity thereof and the
Holder shall have received written notice thereof from the holder of such Senior
Indebtedness or the Company, then, unless and until such event of default shall
have been cured or waived or shall have ceased to exist, or all Senior
Indebtedness shall have been paid in full, no payment shall be made in respect
of the principal of or interest on this Note.
(c) Further Assurances. By acceptance of this Note, the Holder agrees
to execute and deliver customary forms of subordination agreements requested
from time to time by
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the holders of Senior Indebtedness, and as a condition to the Holder's rights
hereunder, the Company may require that Holder execute such forms of
subordination agreements; provided that such forms shall not impose on the
Holder terms less favorable than those provided herein. The Holder undertakes
and agrees for the benefit of the holders of the Senior Indebtedness to execute,
verify, deliver and file any proofs of claim that such holders may at any time
require to prove and realize upon any rights or claims pertaining to the Note
and to effectuate the full benefit of the subordination contained herein. Upon
the failure of the Holder to do so, such holders of Senior Indebtedness shall be
deemed to be irrevocably appointed as the agent and attorney-in-fact of the
Holder to execute, verify, deliver and file any such proofs of claim.
(d) No Impairment. Subject to the rights, if any, of the holders of
Senior Indebtedness under this Section 7 to receive cash, securities or other
properties otherwise payable or deliverable to the Holder, nothing contained in
this Section 7 shall impair, as between the Company and the Holder, the
obligation of the Company, subject to the terms and conditions hereof, to pay to
the Holder the principal hereof and interest hereon as and when the same become
due and payable, or shall prevent the Holder, upon default hereunder, from
exercising all rights, powers and remedies otherwise provided herein or by
applicable law. The provisions of this Section 7 shall not apply to or in any
manner restrict a conversion or exchange of the Notes under Section 8 hereof.
(e) Reliance of the Holders of Senior Indebtedness. The Holder, by
its acceptance hereof, shall be deemed to acknowledge and agree that the
foregoing subordination provisions are, and are intended to be, an inducement to
and a consideration of each holder of Senior Indebtedness, whether such Senior
Indebtedness was created or acquired before or after the creation of the
Indebtedness evidenced by this Note, and each such holder of Senior Indebtedness
shall be deemed conclusively to have relied on such subordination provisions in
acquiring and holding, or in continuing to hold, such Senior Indebtedness. A
right of the holders of the Senior Indebtedness to enforce subordination as
herein provided shall not at any time or in any way be affected or impaired by
any failure to act on the part of the Company with the holders of the Senior
Indebtedness, or by any non-compliance by the Company or any of its Subsidiaries
with any of the terms, provisions or covenants of the Transaction Documents,
regardless of any knowledge thereof, the holders of the Senior Indebtedness may
have or otherwise be charged with.
8. Conversion.
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(a) Voluntary Conversion. The Holder has the right, at the Holder's
option at any time following December 31, 2000 (or at any time prior to December
31, 2000, solely in connection with the exercise of the Holder's co-sale rights
pursuant to Section 2.4 of the Investor Rights Agreement), at any time prior to
payment in full of this Note or exchange pursuant to Section 8(b) below to
convert the Note at the office of the Company, into the number of Class A Units
of the Company which is equal to the quotient obtained by dividing (i) the
entire unpaid
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principal amount of this Note by (ii) the Note Conversion Price. For purposes of
this Section 8(a), the "Note Conversion Price" shall be $198.37.
(b) Automatic Exchange. The entire unpaid principal amount of this
Note shall be automatically exchanged into Series A Preferred Stock of the
Corporation concurrently with the closing of the Roll-Up. The number of shares
of Series A Preferred Stock into which this Note shall be exchanged in the event
of an automatic exchange pursuant to this Section 8(b) shall be equal to the
entire unpaid principal amount of this Note divided by an amount equal to the
lower of (i) 115% of the Entravision Share Consideration (as defined in the
Merger Agreement) or (ii) the greater of ninety three percent (93%) of the price
per share of Class A Common Stock of the Corporation issued in the IPO, or the
Entravision Share Price (as defined in the Merger Agreement).
(c) Note Conversion Price Adjustments for Certain Dilutive Issuances,
Splits and Combinations. The Note Conversion Price shall be subject to
adjustment from time to time as follows:
(i) (1) If the Company shall issue, after the Effective Date,
any Additional Units (as defined below) without consideration or for a
consideration per share less than the Note Conversion Price in effect
immediately prior to the issuance of such Additional Units, the Note Conversion
Price in effect immediately prior to each such issuance shall forthwith (except
as otherwise provided in this clause (i)) be adjusted to a price determined by
multiplying such Note Conversion Price by a fraction, the numerator of which
shall be the number of Units outstanding immediately prior to such issuance plus
the number of Units that the aggregate consideration received by the Company for
such issuance (including Units deemed to be issued pursuant to Sections
8(c)(i)(5)(a) or (b)) would purchase at such Note Conversion Price; and the
denominator of which shall be the number of Units outstanding immediately prior
to such issuance (including Units deemed to be issued pursuant to Sections
8(c)(i)(5)(a) or (b)) plus the number of such Additional Units.
(2) No adjustment of the Note Conversion Price shall be made
in an amount less than One Cent ($0.01), provided that any adjustments which are
not required to be made by reason of this sentence shall be carried forward and
shall be either taken into account in any subsequent adjustment made prior to
three (3) years from the date of the event giving rise to the adjustment being
carried forward, or shall be made at the end of three (3) years from the date of
the event giving rise to the adjustment being carried forward. Except to the
limited extent provided for in Sections 8(c)(i)(5)(c) and (5)(d) below, no
adjustment of such Note Conversion Price pursuant to this Section 8(c)(i) shall
have the effect of increasing the Note Conversion Price above the Note
Conversion Price in effect immediately prior to such adjustment.
(3) In the case of the issuance of Units for cash, the
consideration shall be deemed to be the amount of cash paid therefor before
deducting any
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reasonable discounts, commissions or other expenses allowed, paid or incurred by
the Company for any underwriting or otherwise in connection with the issuance
and sale thereof.
(4) In the case of the issuance of the Units for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as reasonably determined by
the Executive Committee of the Company in good faith irrespective of any
accounting treatment.
(5) In the case of the issuance (whether before, on or after
the Effective Date) of options to purchase or rights to subscribe for Units,
securities by their terms convertible into or exchangeable for Units or options
to purchase or rights to subscribe for such convertible or exchangeable
securities, the following provisions shall apply for all purposes of this
Section 8(c)(i) and Section 8(c)(ii) below:
(a) The aggregate maximum number of Units deliverable
upon exercise (to the extent then exercisable) of such options to purchase or
rights to subscribe for Units shall be deemed to have been issued at the time
such options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in Sections 8(c)(i)(3) and
8(c)(i)(4) above), if any, received by the Company upon the issuance of such
options or rights plus the minimum exercise price provided in such options or
rights for the Units covered thereby.
(b) The aggregate maximum number of Units deliverable
upon conversion of or in exchange (to the extent then convertible or
exchangeable) for any such convertible or exchangeable securities or upon the
exercise of options to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or exchange thereof shall be
deemed to have been issued at the time such securities were issued or such
options or rights were issued and for a consideration equal to the
consideration, if any, received by the Company for any such securities and
related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by the Company upon the conversion or exchange of such
securities or the exercise of any related options or rights (the consideration
in each case to be determined in the manner provided in Sections 8(c)(i)(3) and
8(c)(i)(4) above).
(c) In the event of any change in the number of Units
deliverable or in the consideration payable to the corporation upon exercise of
such options or rights or upon conversion of or in exchange for such convertible
or exchangeable securities, including, without limitation, a change resulting
from the antidilution provisions thereof, the Note Conversion Price, to the
extent in any way affected by or computed using such options, rights or
securities, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Units or any payment of such
consideration upon the exercise of any such options or rights or the conversion
or exchange of such securities.
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(d) Upon the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the expiration of any
options or rights related to such convertible or exchangeable securities, the
Note Conversion Price, to the extent in any way affected by or computed using
such options, rights or securities or options or rights related to such
securities, shall be recomputed to reflect the issuance of only the number of
Units (and convertible or exchangeable securities which remain in effect)
actually issued upon the exercise of such options or rights, upon the conversion
or exchange of such securities or upon the exercise of the options or rights
related to such securities.
(e) The number of Units deemed issued and the consideration
deemed paid therefor pursuant to Sections 8(c)(i)(5)(a) and (b) above shall be
appropriately adjusted to reflect any change, termination or expiration of the
type described in either Section 8(c)(i)(5)(c) or (d) above.
(ii) "Additional Units" shall mean any Units issued (or deemed to
have been issued pursuant to Section 8(c)(i)(5) above) by the Company after the
Effective Date other than:
(1) Units issued pursuant to a transaction described in Section
8(c)(iii) below;
(2) Units issued upon conversion of the Note;
(3) Units issued to banks, lenders and equipment lessors in
connection with debt financings or equipment leases;
(4) Units issued for consideration other than cash in connection
with mergers, consolidations, acquisitions of assets and other acquisitions or
strategic transactions with non-affiliated third parties as approved by the
Executive Committee of the Company;
(5) Units issued to members, Executive Committee members,
officers, employees and consultants pursuant to an equity incentive plan or
arranged approval by the Company's Executive Committee up to a maximum of
fifteen percent (15%) of the equity of the Company on a fully-diluted basis; or
(6) Units issued by way of dividend or other distribution on
Units for which an adjustment is made under Section 8(c)(iii) below.
(iii) In the event the Company should at any time or from time to
time after the Effective Date fix a record date for the effectuation of a split
or subdivision of the outstanding Units or the determination of the holders of
Units entitled to receive a dividend or other distribution payable in additional
Units or other securities or rights convertible into, or
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entitling the holder thereof to receive directly or indirectly, additional Units
(hereinafter referred to as "Unit Equivalents") without payment of any
consideration by such holder for the additional Units or the Unit Equivalents
(including the additional Units issuable upon conversion or exercise thereof),
then, as of such record date (or the date of such dividend, distribution, split
or subdivision if no record date is fixed), the Note Conversion Price shall be
appropriately decreased so that the number of Units issuable on conversion of
the Note shall be increased in proportion to such increase of the aggregate
number of Units outstanding and those issuable with respect to such Unit
Equivalents with the number of Units issuable with respect to Unit Equivalents
determined from time to time in the manner provided for deemed issuances in
Section 8(c)(i)(5) above.
(iv) If the number of Units outstanding at any time after the
Effective Date is decreased by a combination of the outstanding Units, then,
following the record date of such combination, the Note Conversion Price shall
be appropriately increased so that the number of Units issuable on conversion of
the Note shall be decreased in proportion to such decrease in outstanding Units.
(d) Recapitalizations. If at any time or from time to time there
shall be a recapitalization, reclassification of the Units, or a merger,
transfer, consolidation or exchange in respect of the Units and does not
constitute a Change in Control (other than a subdivision, combination or merger
or sale of assets transaction provided for elsewhere in this Section 8 or
Section 9) provision shall be made so that the Holders of the Note shall
thereafter be entitled to receive upon conversion of the Note the number of
Units or other securities or property of the Company or otherwise, to which a
Holder of Units deliverable upon conversion would have been entitled on such
recapitalization. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 8 with respect to the rights of
the Holders of the Note after the recapitalization to the end that the
provisions of this Section 8 (including adjustment of the Note Conversion Price
then in effect and the number of Units purchasable upon conversion of the Note)
shall be applicable after that event as nearly equivalent as may be practicable.
(e) Conversion Procedure.
(i) Conversion Pursuant to Section 8(a). Before the Holder shall
be entitled to convert this Note into Class A Units, it shall surrender this
Note, duly endorsed, at the office of the Company and shall give written notice
by registered or certified mail, postage prepaid, to the Company at its
principal corporate office, of the election to convert the same pursuant to
Section 8(a), and shall state therein the name or names in which the Class A
Units are to be issued. The Company shall, as soon as practicable thereafter,
issue the Class A Units to which the Holder shall be entitled upon conversion.
The conversion shall be deemed to have been made immediately prior to the close
of business on the date of the surrender of this Note, and the Person or Persons
entitled to receive the Class A Units upon such conversion shall be treated for
all purposes as the record holder or the Holders of such Class A Units as of
such date.
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Upon such conversion, the Holder shall be deemed to be admitted as a member of
the Company concurrently with such conversion, subject to the execution by the
Holder of the Operating Agreement of the Company, as amended, evidencing such
Holder's agreement to be bound by the terms, conditions and restrictions of such
Operating Agreement, as amended. The Company will take all other actions and
execute all other documents as reasonably necessary to admit the Holder as a
member of the Company.
(ii) Exchange Pursuant to Section 8(b). If this Note is
automatically exchanged, the Company shall give at least five (5) days written
notice which shall be delivered to the Holder at the address last shown on the
records of the Company for the Holder or given by the Holder to the Company for
the purpose of notice or, if no such address appears or is given, at the place
where the principal executive office of the Company is located, notifying the
Holder of the exchange to be effected, the amount of Series A Preferred Stock to
be issued upon exchange, the date on which such exchange is expected to occur
and calling upon the Holder to surrender to the Company, in the manner and at
the place designated, the Note. Upon receipt of such notice, the Holder shall
surrender this Note on the date of the Exchange, duly endorsed, at the principal
office of the Company. At its expense, the Company shall, as soon as
practicable thereafter, issue and deliver to the Holder at such principal office
a certificate or certificates for the Series A Preferred Stock to which the
Holder shall be entitled upon such exchange (bearing such legends as are
required by the Note Purchase Agreement and applicable state and federal
securities laws in the reasonable opinion of counsel to the Company), together
with any other securities and property to which the Holder is entitled upon such
exchange under the terms of this Note, including, without limitation, all
accrued and unpaid interest. Any exchange of this Note pursuant to Section 8(b)
shall be deemed to have been made immediately prior to the close of business on
the date of surrender of the Note, and on and after such date the Persons
entitled to receive the Series A Preferred Stock issuable upon such exchange
shall be treated for all purposes as the record holder of such Series A
Preferred Stock.
(f) Fractional Shares; Effect of Conversion or Exchange. The Company
may, but shall not be obligated to, issue any fractional Class A Units or shares
of Series A Preferred Stock upon conversion or exchange of this Note. In the
event that the Company elects not to issue fractional shares, the Company shall
round the number of Units or shares to the nearest whole Unit or share, provided
that if such rounding would result in the Holder receiving less than ninety nine
point nine percent (99.9%) of the amount of such Common Stock to which he is
entitled, pursuant to this Section 8, such fractional shall be rounded up to the
next whole Unit or share.
(g) No Impairment. The Company will not, by amendment of its
Operating Agreement or Certificate of Formation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of Equity Securities or other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms to be observed or performed
hereunder by the Company, but will at all times, in good faith, assist in
carrying out all of the provisions of this Section 8 and the undertaking of all
action as may be necessary or
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<PAGE>
appropriate in order to protect the conversion or exchange rights of the Holder
against impairment.
9. Change of Control. Upon the occurrence of a Change of Control, the
-----------------
Holder shall have the right to require the Company to repurchase all or any part
(equal to One Thousand Dollars ($1,000) or an integral multiple thereof) of the
Note pursuant to the offer described below (the "Change of Control Offer") at an
offer price equal to the greater of: (i) the aggregate principal amount of Note
plus accrued and unpaid interest thereon or (ii) the amount the Holder would
have received if the Holder had converted this Note into Class A Units of the
Company pursuant to the provisions of Section 8(a) above immediately prior to
such Change of Control. At least thirty (30) days prior to any Change of
Control, the Company shall mail a notice (the "Change of Control Notice") to the
Holder describing the transaction to constitute the Change of Control offering
to repurchase the Note concurrently with the completion of the Change of Control
(the "Payment Date"). The Holder shall provide written notice to the Company
detailing the extent to which it accepts such repurchase offer within twenty-
five days of the Change of Control Notice. Upon surrender of the Note, duly
endorsed and delivered to the Company's principal office, the Company shall pay
all amounts due the Holder pursuant to such repurchase offer on the Payment
Date.
10. Successors and Assigns. Subject to the restrictions on transfer
----------------------
described in the Note Purchase Agreement, the rights and obligations of the
Company and the Holder of this Note shall be binding upon and benefit the
successors, assigns, heirs, administrators and transferees of the parties.
11. Assignment by the Company. Neither this Note nor any of the rights,
-------------------------
interests or obligations hereunder may be assigned, by operation of law or
otherwise, in whole or in part, by the Company without the prior written consent
of the Holder.
12. Waiver. The Company hereby waives presentment, demand, or protest and
------
any notice of any kind in connection with the delivery, acceptance, performance,
default, acceleration, or collection of this Note.
13. Notices. Any notice, request or other communication required or
-------
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or mailed by recognized overnight courier or
personal delivery at the respective addresses of the parties as set forth in the
Note Purchase Agreement or on the register maintained by the Company. Any party
hereto may by notice so given change its address for future notice hereunder.
Notice shall conclusively be deemed to have been given when received.
14. No Intent of Usury. Nothing contained in this Note or in the
------------------
Agreement shall be deemed to require the payment by the Company or the retention
by the Holder of interest in excess of the maximum legal rate (the "Maximum
Legal Rate"). All agreements between the Holder and the Company pertaining to
the obligation evidenced hereby (the "Loan") are
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<PAGE>
expressly limited so that in no contingency or event, whether by reason of
acceleration of the maturity of the Loan or otherwise, shall the amount paid or
agreed to be paid to the Holder for the use, forbearance, or detention of money
to be loaned hereunder exceed the Maximum Legal Rate. If, under any circumstance
whatsoever, the fulfillment of any provision of this Note or the Note Purchase
Agreement shall involve transcending the limits of validity prescribed by law,
then, ipso facto, the obligation to be fulfilled by the Company shall be reduced
to the limit of such validity. This provision shall control every provision of
all agreements between the Company and the Holder. In the event at any time the
interest paid shall exceed the Maximum Legal Rate, the excess amount shall be
deemed to be held in trust by the Holder for the exclusive use and benefit of
the Company; provided, however, that such amounts held in trust may be applied
to interest or other lawful consideration payable under the terms of this Note
and the Note Purchase Agreement if such amounts can be so applied without
violating applicable laws and without exceeding the Maximum Legal Rate. The
Holder may commingle any such amounts with its own funds. If at the time the
Note is paid, the total amount deemed to be interest under applicable laws
exceeds the Maximum Legal Rate, the maximum liability of the Company shall be
expressly limited to the legal maximum amounts, and in the event any excess sums
have been paid or are payable such amounts shall be promptly repaid or credited
to the Company. In the event the interest or other consideration payable by the
Company hereunder is exempt from applicable usury statutes, or for any other
reason is not limited by law, none of the provisions of this paragraph shall be
construed so as to limit the interest or other consideration payable under the
terms of this Note or the Agreement.
15. Payment. Payment shall be made in lawful tender of the United States.
-------
16. Expenses. If any action of law or in equity is necessary to enforce
--------
or interpret the terms of this Note, the prevailing party shall be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which said party may be entitled.
17. Governing Law; Submission to Jurisdiction; Venue. This Note shall be
------------------------------------------------
governed by, and construed in accordance with, the law of the State of New York.
All judicial proceedings brought against the Company or any Holder with respect
to this Note shall be brought exclusively in any state or federal court of
competent jurisdiction in New York County, New York, and by execution and
delivery of this Note the Company accepts, the exclusive jurisdiction of the
aforesaid courts for such purpose. The Company hereby waives any claim that New
York County, New York is an inconvenient forum or an improper forum based on
lack of venue. The exclusive choice of forum for the Company as set forth in
this Section 17 will not be deemed to preclude the enforcement by the Holder of
any judgment obtained in any other forum or the taking by the Holder of any
action to enforce the same in any other appropriate jurisdiction.
[Remainder of Page Intentionally Left Blank]
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be issued as of the
date first written above.
"Company" ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.,
a Delaware limited liability company
By: /s/ Walter F. Ulloa
--------------------------------------------------
Walter F. Ulloa Chairman and Chief Executive
Officer
By: /s/ Jeanette L. Tully
--------------------------------------------------
Jeanette L. Tully, Chief Financial Officer
[Signature Page to Subordinated Convertible Promissory Note]
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