FIRST SUPPLEMENTAL INDENTURE
Execution
Copy
FIRST
SUPPLEMENTAL INDENTURE
First
Supplemental Indenture (this “Supplemental Indenture”),
dated as of March 28, 2016, between IRSA Inversiones y
Representaciones, Sociedad Anónima, a sociedad anónima organized under
the laws of the Argentina (“IRSA”), and The Bank of
New York Mellon (formerly The Bank of New York), a corporation
organized under the laws of the State of New York authorized to
conduct a banking business, as Trustee (the “Trustee”), Co-Registrar,
Principal Paying Agent and Transfer Agent.
W
I T N E S S E T H
WHEREAS, IRSA has
heretofore executed and delivered to the Trustee and Banco
Santander Río S.A., as Registrar, Paying Agent, Transfer Agent
and representative of the Trustee in Argentina (the
“Argentine
Representative”), an Indenture, dated as of July 20,
2010 (the “Indenture”), with respect
to IRSA’s US$400,000,000 Global Note Program, pursuant to
which US$150,000,000 aggregate principal amount of IRSA’s
11.500% Notes due 2020, Series No. 2 (the “Notes”) were
issued;
WHEREAS, Section
7.2 of the Indenture provides that, when authorized by a resolution
of the Board of Directors of IRSA, IRSA and the Trustee may enter
into an indenture supplemental to the Indenture for the purposes of
adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture with the affirmative vote,
at a meeting of Holders of the Notes or at an adjourned meeting
duly convened at which a quorum is present as provided in Section
6.6 of the Indenture, of a majority in aggregate principal amount
of the Notes then Outstanding represented and voting at such
meeting;
WHEREAS, IRSA has
solicited consents upon the terms and subject to the conditions set
forth in the Tender Offer and Consent Solicitation Statement dated
March 3, 2016 (as the same may be amended or supplemented from time
to time, the “Statement”), and in the
related Consent and Letter of Transmittal (each, as defined in the
Statement), from each Holder of the Notes to the amendments to the
Indenture described in the Statement and set forth below in Article
Two, Article Three, Article Four, Article Five, Article Six,
Article Seven and Article Eight of this Supplemental Indenture (the
“Proposed
Amendments”);
WHEREAS, on March
23, 2016, a duly-convened meeting of Holders of the Notes (the
“Meeting”) was held in
accordance with the applicable provisions of Section 6.6 of the
Indenture, at which meeting a quorum was present as provided in
Section 6.6 of the Indenture, and the Holders holding US$85,189,000
in aggregate principal amount of Outstanding Notes, representing a
majority of the Notes then Outstanding represented and voting at
the Meeting, affirmatively voted to approve the Proposed
Amendments;
WHEREAS, the record
of the Meeting and the ballots voted at the Meeting evidencing such
consent of the Holders of the Notes to the Proposed Amendments have
been delivered to the Trustee in accordance with Section 6.6(f) of
the Indenture;
WHEREAS, IRSA was
authorized by its Board of Directors by resolution dated March 28,
2016 (the “Board
Resolution”) to enter into this Supplemental
Indenture;
1
WHEREAS, IRSA has
delivered to the Trustee an Officers’ Certificate, an Opinion
of Counsel and a copy of the Board Resolution pursuant to Sections
7.5 and 12.6 of the Indenture;
WHEREAS, all
conditions necessary to authorize the execution and delivery of
this Supplemental Indenture by IRSA and to make this Supplemental
Indenture valid and binding on IRSA have been complied with or have
been done or performed; and
WHEREAS, pursuant
to Section 7.2 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby
acknowledged, the parties mutually covenant and agree for the equal
and ratable benefit of the Holders of the Notes as
follows:
ARTICLE
ONE.
SECTION
1.01 Capitalized Terms. Capitalized
terms used herein without definition shall have the meanings
assigned to them in the Indenture.
ARTICLE
TWO.
SECTION
2.01 Amendment to the Table of
Contents. The Table of Contents of the Indenture is amended
by deleting the titles to Sections 3.20 and 3.23 and inserting in
lieu thereof the phrase “[intentionally
omitted]”.
ARTICLE
THREE.
SECTION
3.01 Amendment to the Recitals. The
eighth recital is amended by adding the words “or
International Financial Reporting Standards” after the word
“Argentina”.
ARTICLE
FOUR.
SECTION
4.01 Amendment to Certain Provisions in
Article I. Section 1.1 (Definitions) of the Indenture is
amended as follows:
(a) by deleting the
following text from the definition of “Acquired
Indebtedness”: “or at the time it merges or
consolidates with IRSA or any of its Restricted Subsidiaries or is
assumed in connection with the acquisition of assets from such
Person” and “or at the time it merges or consolidates
with IRSA or a Restricted Subsidiary or at the time such
Indebtedness is assumed in connection with the acquisition of
assets from such Person”.
(b) by deleting the
following text from clause (5) of the definition of “Asset
Sale”: “including a Permitted
Investment”.
(c) by adding the
following text to the definition of “Consolidated
EBITDA”: “and its Subsidiaries (Restricted Subsidiaries
in the case of IRSA)” after the word “Person” in
clause (1) and after the word “Person” in clause
(2).
2
(d) by adding the
following text to the definition of “Consolidated Net
Income”: “(Restricted Subsidiaries in the case of
IRSA)” after the word
“Subsidiaries”.
(e) by adding the
following new definition: “Effective Date” means March
28, 2016.” in alphabetical order.
(f) by deleting in its
entirety the definition of “Investment
Return”.
(g) by deleting the
definition of “Permitted Business” in its entirety and
inserting in lieu thereof the following text:
“Permitted
Business” means (i) any business or activity
in which the Issuer or any of its Subsidiaries or Banco Hipotecario
or any of their respective Affiliates is directly or indirectly
engaged (including though the ownership of Capital Stock) on the
Effective Date, (ii) any business involving real estate, retail
sales, telecommunications, data transmission, internet, information
technology or media content services or products and/or (iii) any
business or activity related, ancillary or complementary to any of
the foregoing including, without limitation, any such activities
outside of Argentina.
(h) by deleting the
words “Issue Date” in the definition of
“Permitted Holders” and adding in lieu thereof the
words “Effective Date”.
(i) by deleting in its
entirety the definition of “Permitted
Investments”.
(j) by deleting the
words “Issue Date” in the definition of
“Permitted Lien” and adding in lieu thereof the words
“Effective Date”.
(k) by deleting in its
entirety the definition of “Receivables
Entity”.
(l) by deleting the
following text from the definition of “Receivables
Transaction”: “(including a Receivables
Entity)”.
(m) by deleting
in its entirety the definition of “Standard Securitization
Undertakings”.
(n) by adding the
following proviso at the end of the definition of
“Subsidiary”: “; provided that for the avoidance of
doubt and notwithstanding any provision hereof to the contrary, in
no event shall IDB Development Corporation Ltd. or any of its
Subsidiaries be (i) considered a “Subsidiary” for any
purposes hereunder or (ii) taken into account for purposes of any
of the definitions (including those in Article I) or covenants in
this Indenture (whether or not the financial statements of any of
such companies are at any time consolidated with the financial
statements of IRSA).”
ARTICLE
FIVE.
SECTION
5.01 Modification
and deletion of Certain Provisions in Article III.
3
(a) Section 3.16
(Limitation on Incurrence of Additional Indebtedness) of the
Indenture is amended as follows:
(a)
deleting from
clause (1) thereof the following text: (i) “(a)” where
it appears; and (ii) “; and (b) with respect to the
Incurrence of Secured Debt of IRSA and Indebtedness of Restricted
Subsidiaries, immediately after giving pro forma effect to the
Incurrence thereof, the aggregate principal amount of all
outstanding Secured Debt of IRSA plus the aggregate principal
amount of all Indebtedness of its Restricted Subsidiaries on a
consolidated basis is less than 30% of Consolidated Tangible Assets
of IRSA, in each case calculated as of the end of the most recent
fiscal quarter ending prior to the date of such Incurrence;
provided that notwithstanding the foregoing, if IRSA or any
Restricted Subsidiary Incurs Purchase Money Indebtedness and,
immediately after giving pro forma effect to the Incurrence thereof
and the application of the proceeds therefrom, the Consolidated
Interest Coverage Ratio of IRSA is greater than 2.25 to 1.0,
calculated as of the end of the most recent fiscal quarter ending
prior to the date of such Incurrence, such Purchase Money
Indebtedness and the purchased assets securing such Purchase Money
Indebtedness shall not be included at any time in the calculation
of Secured Debt or Consolidated Tangible Assets for the purpose of
this clause (b).”
(b)
by deleting from
clause (2)(e) thereof the number “5%” where it appears
and adding in lieu thereof the number
“15%”.
(c)
by deleting from
clause (2)(g) thereof the words “Issue Date” where it
appears and adding in lieu thereof the words “Effective
Date”.
(d)
by deleting from
clause (2)(j)(1) thereof the words “Issue Date” where
it appears and adding in lieu thereof the words “Effective
Date”.
(e)
by deleting from
clause (2)(m) thereof the text thereof in its entirety and
inserting in lieu thereof the following text:
“Indebtedness
represented by working capital Indebtedness in an aggregate
outstanding principal amount at any time not to exceed US$40.0
million; and”
(f)
by deleting from
clause (2)(n) thereof the text thereof in its entirety and
inserting in lieu thereof the following text:
“additional
Indebtedness in an aggregate outstanding principal amount not to
exceed 25.0% of the consolidated total assets of IRSA, calculated
as of the end of the most recent fiscal quarter ending prior to the
date of such Incurrence.”
4
(b) Section 3.17
(Limitation on Restricted Payments) of the Indenture is amended by
deleting the text of that Section in its entirety and inserting in
lieu thereof the following text:
“Section 3.17
Limitation on Restricted
Payments. IRSA will not, and will not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, take any of
the following actions (each, a “Restricted
Payment”):
(a) declare or pay any
dividend or make any distribution, whether in cash or in kind, on
or in respect of shares of Capital Stock of the Issuer to holders
of such Capital Stock (other than dividends or distributions
payable in Capital Stock of the Issuer); or
(b) purchase, redeem or
otherwise acquire or retire for value any shares of Capital Stock
of the Issuer (other than any such shares held by the Issuer or a
Subsidiary);
unless
at the time of the Restricted Payment and immediately after giving
effect thereto:
(1) no Event of Default
shall have occurred and be continuing; and
(2) IRSA is able to
Incur at least US$1.00 of additional Indebtedness pursuant to
clause (1) of Section
3.16.
Notwithstanding the
preceding paragraph, this covenant does not prohibit:
(1) the payment of any
dividend or distribution or redemption within sixty (60) days after
the date of declaration of such dividend or distribution or notice
of redemption if such payment would have been permitted on the date
of such declaration or notice;
(2) the purchase,
redemption or other acquisition or retirement of any Capital Stock
of IRSA made in exchange for or out of the proceeds of the issuance
or sale of Capital Stock of IRSA;
(3) the purchase,
redemption or other acquisition or retirement of any Capital Stock
or other securities exercisable or convertible into Capital Stock
from any current or former employees, officers, directors or
consultants of IRSA or any of its Subsidiaries or their authorized
representatives upon the death, disability or termination of
employment or directorship of such employees, officers or
directors, or the termination of retention of any such
consultants;
(4) the purchase,
redemption or other acquisition or retirement of any Capital Stock
deemed to occur upon the exercise of stock options, warrants or
similar rights if such Capital Stock represents a portion of the
exercise price of those stock options, warrants or similar
rights;
5
(5) the purchase,
redemption or other acquisition or retirement of any fractional
shares arising out of stock dividends, splits or combinations or
business combinations;
(6) payments or
distributions to dissenting stockholders of Capital Stock of IRSA
or its Subsidiaries pursuant to applicable law in connection with a
consolidation, merger or similar transaction that complies with the
provisions of the Indenture;
(7) Restricted Payments
in an amount not to exceed the sum of the aggregate net proceeds
and the Fair Market Value of any property or other assets received
by the Issuer or any Subsidiary after the Issue Date from (i)
contributions of capital or the issuance or sale of Capital Stock
or (ii) the issuance of any Indebtedness of the Issuer or any of
its Subsidiaries that has been converted into or exchanged for
Capital Stock after the Issue Date; or
(8) Restricted Payments
in an aggregate amount taken together with all other Restricted
Payments made subsequent to the Effective Date pursuant to this
clause (8) not to exceed the greater of US$50.0 million (or the
equivalent in other currencies) and 10% of the consolidated total
assets of IRSA as of the last date of its most recent fiscal
quarter.”
(c) Section 3.19
(Limitation on Designation of Unrestricted Subsidiaries) of the
Indenture is amended by (i) deleting the word “(a)”
where it appears in Clause (2); (ii) deleting the words “an
Investment” where they appear in clause (3) and inserting in
lieu thereof the words “a Restricted Payment”; and
(iii) deleting the words “as a Restricted Payment” and
“or as a Permitted Investment” in clause
(3).
(d) Section 3.20
(Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries) of the Indenture is amended by deleting it
in its entirety and inserting in lieu thereof the phrase
“[intentionally omitted]”.
(e) Section 3.23
(Limitation on Guarantees) of the Indenture is amended by deleting
it in its entirety and inserting in lieu thereof the phrase
“[intentionally omitted]”.
(f) Section 3.24
(Limitation on Transactions with Affiliates) of the Indenture is
amended by (i) deleting the words “Issue Date” where
they appear in clause (2)(c) and inserting in lieu thereof the
words “Effective Date” and (ii) deleting the words
“and Permitted Investments” in clause
(2)(d).
6
ARTICLE
SIX.
SECTION
6.01 Amendment to and Elimination of Certain
Provisions in Article IV. Section 4.1 (Events of Default) of
the Indenture is amended by:
(a) deleting the text
of clauses (b), (c), (d), (e) and (g) of Section 4.1 in their
entirety and inserting in lieu thereof the following:
“(b) IRSA
shall fail duly to perform or observe any other covenant or
obligation applicable to such Series under this Indenture or
contained in such Securities, and such failure shall continue for a
period of ninety (90) days after written notice to that effect is
received by IRSA or by IRSA and the Trustee from the Holders of at
least 25% in aggregate principal amount of the Outstanding
Securities of such Series specifying such failure and requiring it
to be remedied and stating that such notice constitutes a
“notice of default” under the Indenture;
or
(c) IRSA
shall fail to pay when due the final scheduled maturity thereof
principal of its Indebtedness in an aggregate past due principal
amount of at least US$50,000,000 (or the then equivalent thereof in
another currency at the time of determination) and such failure
shall continue after the grace period, if any, applicable thereto,
or any other event of default shall occur under any agreement or
instrument relating to any such Indebtedness in an aggregate
principal amount of at least US$50,000,000 (or the then equivalent
thereof in another currency at the time of determination), and in
each case such failure to pay or other event of default shall
result in the acceleration of the final scheduled maturity thereof
in an aggregate past due principal amount of at least US$50,000,000
(or the then equivalent thereof in another currency at the time of
determination); or
(d) a
court having jurisdiction enters a final decree or order for (1)
relief in respect of IRSA in an involuntary case under the
Argentine Law No. 24,522, as amended (the “Bankruptcy
Law”), or any other applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or (2) appointment
under any applicable bankruptcy, insolvency or other similar law of
an administrator, receiver or trustee for IRSA for all or
substantially all of the property of IRSA and, in each case such
decree or order shall remain unstayed and in effect for a period of
ninety (90) consecutive days; or
(e) IRSA
(a) commences a voluntary case under the Bankruptcy Law or any
other applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or (b) consents to the appointment under any
applicable bankruptcy, insolvency or other similar law of or taking
possession by an administrator, receiver or trustee for IRSA for
all or substantially all of the property of
IRSA;”
7
(b) deleting the words
“and/or the relevant Subsidiary” in the text following
clause (e).
ARTICLE
SEVEN.
SECTION
7.01 Elimination of Certain Provisions in the
Notes. Each Global Security representing the Notes shall be
deemed to be amended to reflect the provisions of Article Two,
Article Three, Article Four, Article Five and Article Six
hereof.
ARTICLE
EIGHT.
SECTION
8.01 References to Deleted or Amended
Provisions. All references in the Indenture and any Global
Security representing the Notes, as amended by Article Two, Article
Three, Article Four, Article Five, Article Six and Article Seven
hereof, to any of the provisions deleted and eliminated or modified
as provided herein, or to terms defined in such provisions, shall
also be deemed deleted and eliminated or modified, as the case may
be, in accordance with the terms of this Supplemental Indenture.
Effective as of the date hereof, none of IRSA, the Trustee, the
Argentine Representative, the Holders of the Notes or other parties
to or beneficiaries of the Indenture shall have any rights,
obligations or liabilities under such Sections, subsections or
clauses and such deleted or modified Sections, subsections or
clauses shall not be considered in determining whether an Event of
Default has occurred or whether IRSA has observed, performed or
complied with the provisions of the Indenture or any
Note.
SECTION
8.02 Amendment to Definitions. The Indenture is
hereby amended by deleting any definitions from the Indenture and
any Global Security representing the Notes with respect to which
references would be eliminated as a result of amendments to the
Indenture pursuant to Article Two, Article Three, Article Four,
Article Five, Article Six and Article Seven hereof.
ARTICLE
NINE.
SECTION
9.01 Effectiveness of Supplemental
Indenture. This Supplemental Indenture shall be effective
upon its execution and delivery by the parties hereto. The Proposed
Amendments set forth in Article Two, Article Three, Article Four,
Article Five, Article Six, Article Seven and Article Eight hereof
shall become operative immediately upon IRSA’s delivery of an
Officers’ Certificate to the Trustee confirming that (i) IRSA
has accepted for purchase the Notes tendered by consenting Holders
and that (ii) IRSA has paid all other amounts due and owing to the
Holders in accordance with the terms and conditions set forth in
the Statement.
SECTION9 .02
GOVERNING LAW. THIS SUPPLEMENTAL
INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
SECTION
9.03 Full Force and Effect. Except as
expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. Subject to Section 9.01
hereof, upon the execution and delivery of this Supplemental
Indenture by IRSA and the Trustee, this Supplemental Indenture
shall form a part of the Indenture for all purposes, and IRSA, the
Trustee and every Holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby. Any and all
references to the Indenture or the Global Securities representing
the Notes, whether within the Indenture, such Global Securities or
in any notice, certificate or other instrument or document, shall
be deemed to include a reference to the Indenture as amended by
this Supplemental Indenture (whether or not made), unless the
context shall otherwise require.
8
SECTION
9.04 Indenture and Supplemental Indenture
Construed Together. This Supplemental Indenture is an
indenture supplemental to the Indenture, and the Indenture and this
Supplemental Indenture shall henceforth be read and construed
together.
SECTION
9.05 Benefits of Supplemental
Indenture. Nothing in this Supplemental Indenture, express
or implied, shall give to any Person other than the parties hereto
and thereto and their successors hereunder and thereunder and the
Holders of the Notes, any benefit of any legal or equitable right,
remedy or claim under the Indenture, this Supplemental Indenture or
the Notes.
SECTION
9.06 Successors. All agreements of the
Trustee in this Supplemental Indenture shall bind its
successors.
SECTION
9.07 The Trustee. The Trustee shall
not be responsible in any manner for or in respect of the validity
or sufficiency of this Supplemental Indenture or for or in respect
of the recitals contained herein, all of which are made by
IRSA.
SECTION
9.08 Counterparts. The parties may
sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together
represent the same agreement.
SECTION
9.09 Effect of Headings. The Section
headings herein are for convenience only and shall not affect the
construction hereof.
SECTION
9.10 Severability. If any provision in
this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality or enforceability of the
remaining provisions of this Supplemental Indenture or the
Indenture shall not in any way be affected or impaired
thereby.
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above
written.
IRSA
INVERSIONES Y REPRESENTACIONES, SOCIEDAD ANÓNIMA
By:
_______________________________
Name:
Title:
THE BANK OF NEW YORK MELLON, as
Trustee
By:
_______________________________
Name:
Title:
002761-0008-16036-Active.18633675.7
9
