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TELEMUNDO GROUP, INC.
and
BANKERS TRUST COMPANY,
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of December 12, 1995
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$116,889,000
10.25% Senior Notes Due December 30, 2001
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FIRST SUPPLEMENTAL INDENTURE dated as of December 12, 1995 (the "First
Supplemental Indenture"), between TELEMUNDO GROUP, INC., a Delaware corporation
(the "Company"), and BANKERS TRUST COMPANY, a New York banking corporation, as
trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee entered into an Indenture, dated as of
December 30, 1994 (the "Indenture"), pursuant to which the Company issued
$116,889,000 in principal amount of 10.25% Senior Notes due December 30, 2001
(the "Securities") (capitalized terms used herein without definition shall have
the respective meanings ascribed to them in the Indenture); and
WHEREAS, Section 10.02 of the Indenture provides that the Company and the
Trustee may amend or supplement the Indenture with the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Securities without notice to any Securityholder; and
WHEREAS, all acts and things prescribed by the Indenture, by law and by the
Certificate of Incorporation and the Bylaws of the Company and of the Trustee
necessary to make this First Supplemental Indenture a valid instrument legally
binding on the Company and the Trustee, in accordance with its terms, have been
duly done and performed; and
WHEREAS, the written consents to the amendments or supplements to the
Indenture have been obtained from the Holders of at least a majority in
aggregate principal amount of the outstanding Securities; and
WHEREAS, all conditions precedent to amend or supplement the Indenture have
been met.
NOW, THEREFORE, each party agrees, for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities, to the
amendments set forth below (the "Amendments") which will become operative
pursuant to the terms hereof.
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ARTICLE 1
AMENDMENTS
Section 1.01. AMENDMENTS AND MODIFICATIONS TO ARTICLE ONE
a. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"ACCRETED VALUE" as of any date means, with respect to the Senior
Notes, the amount determined in accordance with the Senior Indenture.
b. REPLACE THE DEFINITION OF ACQUIRED INDEBTEDNESS IN SECTION 1.01 WITH
THE FOLLOWING DEFINITION.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a
Restricted Subsidiary or assumed in connection with the acquisition of
assets from such Person.
c. REPLACE THE DEFINITION OF AFFILIATE IN SECTION 1.01 WITH THE FOLLOWING
DEFINITION.
"AFFILIATE" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or
is controlled by, or is under common control with, such specified
Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by,"
and "under common control with"), as used with respect to any Person,
means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise.
d. INSERT THE FOLLOWING AS A NEW DEFINITION IN SECTION 1.01.
"ASSET DISPOSITION" has the meaning ascribed to the term Asset Sale in
the Senior Indenture as in effect on the Operative Date.
e. REPLACE THE DEFINITION OF AVERAGE LIFE IN SECTION 1.01 WITH THE
FOLLOWING DEFINITION.
"AVERAGE LIFE" means, as of the date of determination, with respect to
any Indebtedness or security, the quotient obtained by dividing (a)
the sum of the product of (i) the number of years from such date to
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the date of each successive scheduled principal or redemption payment
of such Indebtedness or security multiplied by (ii) the amount of such
principal or redemption payment by (b) the sum of all such principal
or redemption payments.
f. REPLACE THE DEFINITION OF CAPITAL STOCK IN SECTION 1.01 WITH THE
FOLLOWING DEFINITION.
"CAPITAL STOCK" means, with respect to any Person, any and all shares
or other equivalents (however designated) of capital stock,
partnership interests or any other participation, right or other
interest in the nature of an equity interest in such Person or any
option, warrant or other security convertible into any of the
foregoing.
g. REPLACE THE DEFINITION OF CAPITALIZED LEASE OBLIGATION IN SECTION 1.01
WITH THE FOLLOWING DEFINITION.
"CAPITALIZED LEASE OBLIGATIONS" means Indebtedness represented by
obligations under a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP and the amount of
such Indebtedness shall be the capitalized amount of such obligations
determined in accordance with GAAP.
h. REPLACE THE DEFINITION OF CASH EQUIVALENT IN SECTION 1.01 WITH THE
FOLLOWING DEFINITION.
"CASH EQUIVALENTS" means (i) securities with maturities within 365
days of the date of acquisition, issued, fully guaranteed or insured
by the United States Government or any agency thereof; (ii)
certificates of deposit, time deposits, overnight bank deposits,
banker's acceptances and repurchase agreements issued by a Qualified
Issuer having maturities of 270 days or less from the date of
acquisition; (iii) commercial paper of an issuer rated at least A-1 by
S&P or P-1 by Moody's, or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments, and having
maturities of 270 days or less from the date of acquisition and (iv)
money market accounts or funds with or issued by Qualified Issuers.
i. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person, for
any period, the aggregate amount of interest which, in conformity with
GAAP, would be set
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forth opposite the caption "interest expense" or any like caption on
an income statement for such Person and its Subsidiaries on a
consolidated basis (including, but not limited to, Redeemable
Dividends, whether paid or accrued, on Preferred Stock of a Subsidiary
(as defined below in Section 1.01), imputed interest included in
Capitalized Lease Obligations, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers'
acceptance financing, the net costs associated with hedging
obligations, amortization of other financing fees and expenses, the
interest portion of any deferred payment obligation, amortization of
discount or premium, if any, and all other non-cash interest expense
(other than interest amortized to cost of sales)) plus, without
duplication, all net capitalized interest for such period and all
interest incurred or paid under any guarantee of Indebtedness
(including a guarantee of principal, interest or any combination
thereof) of any Person, plus the amount of all dividends or
distributions paid on Disqualified Capital Stock (other than dividends
paid or payable in shares of Capital Stock of the Company).
j. REPLACE THE DEFINITION OF CONSOLIDATED NET INCOME IN SECTION 1.01 WITH
THE FOLLOWING DEFINITION.
"CONSOLIDATED NET INCOME" means, with respect to any Person, for any
period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; PROVIDED, HOWEVER, that (a) for any Person (the
"other Person") in which the Person in question or any of its
Subsidiaries has less than a 100% interest (which interest does not
cause the net income of such other Person to be consolidated into the
net income of the Person in question in accordance with GAAP) (i) Net
Income of the other Person shall be included only to the extent of the
amount of dividends or distributions paid to the Person in question or
its Subsidiary and (ii) net loss related to the interest of the
Company and its Subsidiaries in TeleNoticias del Mundo, L.P. shall be
included in Net Income of the Company and its Subsidiaries only to the
extent that such net loss is in excess of $10 million and to the
extent the Company or its Subsidiaries have contributed or contribute
amounts to TeleNoticias del Mundo, L.P. in an aggregate amount in
excess of $10 million, (b) the Net Income of any Subsidiary of the
Person in question that is subject to any restriction or limitation on
the payment of dividends or the making of other distributions shall be
excluded to the extent of such restriction or
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limitation, (c) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such
acquisition shall be excluded, (d) any net gain (but not loss)
resulting from an Asset Disposition by the Person in question or any
of its Subsidiaries other than in the ordinary course of business
shall be excluded, (e) extraordinary, unusual and non-recurring gains
and losses shall be excluded, and (f) all non-cash items increasing
Consolidated Net Income and not otherwise included in the definition
of EBITDA shall be excluded.
k. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"CREDIT FACILITIES" means any credit facility or agreement (including
the Loan and Security Agreement) with a bank or syndicate of banks or
other financial institutions (including working capital or revolving
credit facilities) including any related guarantees, collateral
documents, instruments and agreements executed in connection
therewith, as such agreements may be amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or
otherwise modified from time to time (including without limitation,
any successive renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplementations or other modifications
of the foregoing). For all purposes under this Indenture, "Credit
Facilities" shall include any amendments, renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplements
or any other modifications that increase the principal amount of the
Indebtedness thereunder or commitments to lend thereunder and have
been made in compliance with Section 4.10 of this Indenture; PROVIDED
that for purposes of Section 4.10 of this Indenture, no such increase
may result in the principal amount of Indebtedness of the Company and
the Restricted Subsidiaries under the Credit Facilities exceeding the
amount permitted by clause (a) of the definition of "Permitted
Indebtedness."
l. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"CUMULATIVE CONSOLIDATED INTEREST EXPENSE" means with respect to any
Person, as of any date of determination, Consolidated Interest Expense
from the Operative Date to the end of the Company's most recently
ended full fiscal quarter prior to such date, taken as a single
accounting period.
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m. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"CUMULATIVE EBITDA" means with respect to any Person, as of any date
of determination, EBITDA from the Operative Date to the end of the
Company's most recently ended full fiscal quarter prior to such date,
taken as a single accounting period.
n. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement or other similar arrangement designed to protect the
Company or any of its Restricted Subsidiaries against fluctuations in
currency values.
o. REPLACE THE DEFINITION OF DISQUALIFIED CAPITAL STOCK IN SECTION 1.01
WITH THE FOLLOWING DEFINITION.
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock of the Company or
a Restricted Subsidiary thereof which, by its terms (or by the terms
of any security into which it is convertible or for which it is
exchangeable at the option of the holder), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the maturity date
of the Securities, for cash or securities constituting Indebtedness.
Without limitation of the foregoing, Disqualified Capital Stock shall
be deemed to include (i) any Preferred Stock of a Restricted
Subsidiary of the Company and (ii) any Preferred Stock of the Company,
with respect to either of which, under the terms of such Preferred
Stock, by agreement or otherwise, such Restricted Subsidiary or the
Company is obligated to pay current dividends or distributions in cash
during the period prior to the maturity date of the Securities.
p. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"EBITDA" means, for any Person, for any period for which it is to be
determined, an amount equal to the sum of, without duplication, (i)
Consolidated Net Income for such period, plus (ii) the provision for
taxes for such period based on income or profits to the extent such
income or profits were included in computing Consolidated Net Income
and any provision for
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taxes utilized in computing net loss under clause (i) hereof, plus
(iii) Consolidated Interest Expense for such period (including, for
this purpose, Redeemable Dividends to the extent that such dividends
were deducted in determining Net Income), plus (iv) depreciation and
amortization for such period on a consolidated basis, plus (v)
non-cash charges for such period on a consolidated basis, except that
with respect to the Company each of the foregoing items shall be
determined on a consolidated basis with respect to the Company and
its Restricted Subsidiaries only.
q. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"FAIR MARKET VALUE" or "fair value" means, with respect to any asset
or property or Capital Stock, the price which could be negotiated in
an arm's-length, free market transaction, for cash, between an
informed and willing seller and an informed, willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction.
r. REPLACE THE DEFINITION OF GAAP IN SECTION 1.01 WITH THE FOLLOWING
DEFINITION.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
s. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"GUARANTEE" is defined to mean any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any
Indebtedness of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other
obligation of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keepwell, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for
purposes of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part);
PROVIDED that the term "Guarantee" shall not include endorsements for
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collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
t. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"INCUR" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of
such Indebtedness or other obligation or the recording, as required
pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and "incurrence,"
"incurred," "incurrable," and "incurring" shall have meanings
correlative to the foregoing).
u. REPLACE THE DEFINITION OF INDEBTEDNESS IN SECTION 1.01 WITH THE
FOLLOWING DEFINITION.
"INDEBTEDNESS" is defined to mean, with respect to any Person, at any
date of determination (without duplication), (i) all indebtedness of
such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with
respect thereto), (iv) all obligations of such Person to pay the
deferred and unpaid purchase price of property (excluding any balances
that constitute accounts payable or trade payables, and other accrued
liabilities arising in the ordinary course of business, including,
without limitation, any and all programming obligations), which
purchase price is due more than six months after the date of placing
such property in service or taking delivery and title thereto, (v) all
obligations of such Person as lessee under Capitalized Lease
Obligations and all Purchase Money Indebtedness, (vi) all Indebtedness
of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person, provided
that the amount of such Indebtedness shall be the lesser of (A) the
fair market value of such asset at such date of determination and
(B) the principal amount of such Indebtedness, (vii) all Indebtedness
of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person, (viii) to the extent not
otherwise included in this definition, net obligations under Currency
Agreements and Interest Rate Agreements, and (ix) all Disqualified
Capital
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Stock issued by such Person. The amount of Indebtedness of any Person
at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to
contingent obligations, the maximum liability upon the occurrence of
the contingency giving rise to the obligation; PROVIDED that the
amount outstanding at any time of any Indebtedness issued with
original issue discount is the face amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of
such Indebtedness at such time as determined in conformity with GAAP
and for purposes of calculating the amount of the Senior Notes
outstanding at any time, the amount shall be the Accreted Value
thereof as of such time. A Guarantee of (or an obligation with respect
to a letter of credit supporting) Indebtedness permitted by the terms
of this Indenture will not constitute a separate incurrence of
Indebtedness.
v. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal, expert
or investment banking firm of nationally recognized standing that is,
in the reasonable and good faith judgment of the Board of Directors of
the Company, qualified to perform the task for which such firm has
been engaged and disinterested and independent with respect to the
Company and its Affiliates.
w. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"INTEREST RATE PROTECTION AGREEMENT" means, for any Person, any
interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar agreement designed to protect
the party therein against fluctuations in interest rates.
x. REPLACE THE DEFINITION OF INVESTMENT IN SECTION 1.01 WITH THE
FOLLOWING DEFINITION.
"INVESTMENTS" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary
course of business), loan or capital contribution to (by means of
transfers of property to others, payments for property or services for
the account or use of others or otherwise), the purchase of any stock,
bonds, notes, debentures, partnership or joint venture interests or
other securities of, the acquisition, by purchase or
-9-
otherwise, of all or substantially all of the business or assets or
stock or other evidence of beneficial ownership of, any Person or the
making of any investment in any Person. Investments shall exclude
extensions of trade credit in the ordinary course of business,
repurchases or redemptions of the Senior Notes by the Company, prepaid
expenses (including television programming) arising in the ordinary
course of business, endorsements for collection or deposit in the
ordinary course of business, worker's compensation, utility, lease and
similar deposits made in the ordinary course of business, and loans
and advances to employees, other than officers and directors of the
Company or any Restricted Subsidiary, made in the ordinary course of
business.
y. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"JOINT VENTURE AGREEMENT" means the Amended and Restated Partnership
Agreement of Video 44, dated as of November 8, 1995.
z. REPLACE THE DEFINITION OF LIEN IN SECTION 1.01 WITH THE FOLLOWING
DEFINITION.
"LIEN" means with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority, or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect to
such property or assets (including without limitation, any Capitalized
Lease Obligations, conditional sales, or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
aa. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"LOAN AND SECURITY AGREEMENT" means the Loan and Security Agreement by
and between the Company, certain of its Subsidiaries and Foothill
Capital Corporation dated December 30, 1994, as amended to the
Operative Date.
ab. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"LOCAL MARKETING AGREEMENT" means a local marketing arrangement, sale
agreement, time brokerage agreement,
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management agreement or similar arrangement pursuant to which a Person
(which, if not the Company, shall be a single-purpose entity which
cannot conduct any other business operations but those which are to be
purchased or managed pursuant to the following provisions):
(i) obtains the right to sell at least a majority of the advertising
inventory of a television station on behalf of a third party,
(ii) purchases at least a majority of the air time of a television
station to exhibit programming and sell advertising time,
(iii) manages the selling operations of a television station with
respect to at least a majority of the advertising inventory of such
station, (iv) manages the acquisition of programming for a television
station, (v) acts as a program consultant for a television station, or
(vi) manages the operation of a television station generally.
ac. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"MATURITY" means the date on which the principal of the Securities
becomes due and payable in full as provided therein or herein, whether
at its Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
ad. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
ae. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"NET INCOME" means, with respect to any Person for any period, the net
income (loss) of such Person determined in accordance with GAAP.
af. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"NET PROCEEDS" means (a) in the case of any sale of Capital Stock by
the Company, the aggregate net proceeds received by the Company, after
payment of expenses, commissions and the like incurred in connection
therewith, whether such proceeds are in cash or in property (valued at
the fair market value thereof, as determined in good faith by the
Board of Directors, at the time of receipt) and (b) in the case of any
exchange, exercise, conversion or surrender of outstanding securities
of any kind for or into shares
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of Capital Stock of the Company which is not Disqualified Capital
Stock, the net book value of such outstanding securities on the date
of such exchange, exercise, conversion or surrender (plus any
additional amount required to be paid by the holder to the Company
upon such exchange, exercise, conversion or surrender, less any and
all payments made to the holders, e.g., on account of fractional
shares and less all expenses incurred by the Company in connection
therewith).
ag. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"OPERATIVE DATE" means the date that the Repurchase Offer and the
Consent Solicitation (as such terms are defined in the Offer to
Purchase referred to below) are completed pursuant to the terms and
conditions set forth in the Company's Offer to Purchase and Consent
Solicitation Statement, dated November 27, 1995 and as amended from
time to time.
ah. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01
"PERMITTED INDEBTEDNESS" means, without duplication, (a) Indebtedness
of the Company or, to the extent permitted pursuant to Section 4.15 of
this Indenture, any Restricted Subsidiary, evidenced by or arising
under Credit Facilities, which taken together (without duplication) is
in an aggregate principal amount at any one time not to exceed $75
million; (b) Indebtedness of the Company evidenced by or arising under
the Securities and this Indenture; (c) Indebtedness of the Company or
any Restricted Subsidiary outstanding on the Operative Date (including
the Senior Notes and the Senior Indenture); (d) Indebtedness of the
Company or any Restricted Subsidiary under Currency Agreements and
Interest Rate Protection Agreements which are entered into for the
purpose of protection against risk of currency or interest rate
fluctuations affecting the Company or any of its Subsidiaries in its
ordinary course of business or that are related to payment obligations
of the Company or any of its Subsidiaries otherwise permitted under
this Indenture; (e) unsecured Indebtedness of the Company owing to a
Restricted Subsidiary of the Company which shall be evidenced by an
intercompany promissory note that is subordinated in right of payment
to the payment and performance of the Company's obligations under this
Indenture and the Securities and any subsequent issuance or transfer
of Capital Stock of a Restricted Subsidiary of the Company (the
"Creditor Subsidiary") that results in such
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Creditor Subsidiary ceasing to be a Restricted Subsidiary of the
Company or any subsequent transfer of Indebtedness owing from the
Company to such Creditor Subsidiary (other than a transfer to another
Restricted Subsidiary of the Company) shall be deemed in each case to
constitute the incurrence of Indebtedness by the Company to the extent
of any such Indebtedness then outstanding; (f) Indebtedness of the
Company incurred in connection with a repurchase of the Senior Notes
pursuant to a Change of Control (as defined in the Senior Indenture),
in whole or in part, provided that the principal amount of such
Indebtedness does not exceed 101% of the Accreted Value of the Senior
Notes repurchased and the reasonable, customary expenses, fees and
costs of the Company, and such Indebtedness (y) has an Average Life to
Stated Maturity equal to or greater than the remaining Average Life to
Maturity of the Senior Notes, and (z) does not mature prior to the
Stated Maturity of the Senior Notes; (g) Purchase Money Indebtedness
and Capitalized Lease Obligations of the Company, or, to the extent
permitted pursuant to Section 4.15 of this Indenture, any Restricted
Subsidiary, incurred in the ordinary course of business in a principal
amount outstanding at the time of incurrence which does not in the
aggregate exceed $15 million at any time outstanding; (h) Indebtedness
of the Company or any Restricted Subsidiary, incurred or incurrable in
respect of reimbursement obligations related to letters of credit,
banker's acceptances or similar facilities entered into in the
ordinary course of business; (i) Indebtedness of the Company and any
Restricted Subsidiary in respect to bids, performance and surety bonds
and obligations provided in the ordinary course of business and appeal
bonds; (j) Acquired Indebtedness, provided that such Indebtedness was
not incurred or issued as a result of, or in connection with, or in
anticipation of, such Person becoming a Restricted Subsidiary of the
Company and immediately after giving effect to such Person becoming a
Restricted Subsidiary of the Company (as if such Indebtedness was
incurred and issued on the first day of the previous four fiscal
quarters), the Company could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under Section 4.10 of this
Indenture; (k) Indebtedness incurred by the Company in exchange for,
or the proceeds of which are used to refinance Indebtedness incurred
in compliance with the ratio set forth in Section 4.10(a) of this
Indenture and Indebtedness referred to in clauses (b) through (d) and
(f) through (i) of this paragraph, provided that (i) such Indebtedness
is in an aggregate principal amount not in excess of the aggregate
principal amount
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then outstanding of the Indebtedness being refinanced, plus the amount
of accrued and unpaid interest, if any, and premiums owed, if any, not
in excess of preexisting payment provisions on such Indebtedness being
refinanced, plus the reasonable, customary expenses, fees, and costs
of the Company incurred in connection with such refinancing, (ii) such
Indebtedness is scheduled to mature either (A) no earlier than the
Indebtedness being refinanced or (B) after the Stated Maturity of the
Securities, and (iii) such Indebtedness has an Average Life at the
time such Indebtedness is incurred that is equal to or greater than
the Average Life of the Indebtedness being refinanced, and (iv) such
Indebtedness is ranked in right of payment to the Securities no more
favorably than the Indebtedness being refinanced is ranked in right of
payment to the Securities; (l) Indebtedness incurred or incurrable, to
the extent permitted pursuant to Section 4.15 of this Indenture, by a
Restricted Subsidiary under any Guarantee of any Restricted Subsidiary
made in the ordinary course of business and not to exceed $10 million
at any one time outstanding; (m) Indebtedness incurred or incurrable
by Telemundo of Chicago, Inc. and Harriscope of Chicago, Inc. pursuant
to Section 3.5(a) of the Joint Venture Agreement; (n) Indebtedness of
the Company not otherwise permitted to be incurred pursuant to this
section, so long as the aggregate principal amount of all such
Indebtedness does not exceed $25 million at any one time outstanding;
(o) Indebtedness of a Restricted Subsidiary for refinancing of certain
Indebtedness as permitted under clause (j) of Section 4.15; (p)
Indebtedness of any Restricted Subsidiary or Preferred Stock of any
Restricted Subsidiary issued to and held by the Company or a Wholly-
Owned Subsidiary of the Company, PROVIDED, that such Indebtedness or
Preferred Stock is at all times held by the Company or a Wholly-Owned
Subsidiary of the Company; and (q) Indebtedness, to the extent
permitted pursuant to Section 4.15 of this Indenture, of any
Restricted Subsidiary pursuant to a Local Marketing Agreement.
ai. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"PERMITTED INVESTMENTS" means, for any Person, Investments made on or
after the date of this Indenture consisting of:
(i) Investments by the Company, or by a Restricted Subsidiary
thereof, in the Company or a Restricted Subsidiary:
-14-
(ii) Temporary Cash Investments;
(iii) Investments in Property used in the ordinary course of
business;
(iv) Investments by the Company, or by a Restricted Subsidiary
thereof, in a Person (or in all or substantially all of the
business or assets of such Person), if as a result of such
Investment (a) such Person becomes a Restricted Subsidiary of
the Company, (b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary thereof or (c) such business or assets
are owned by the Company or a Restricted Subsidiary;
(v) an Investment that is made by the Company or a Restricted
Subsidiary thereof in the form of any stock, bonds, notes,
debentures, partnership or joint venture interests or other
securities that are issued by a third party to, or otherwise
received by, the Company or Restricted Subsidiary solely as
partial consideration for the consummation of an Asset Sale
that is otherwise permitted under the covenant described under
Section 4.13 of this Indenture;
(vi) Investments pursuant to any agreement or obligation of the
Company or a Restricted Subsidiary, in effect on the Operative
Date, which requires the Company to make such Investments;
(vii) Investments made after the Operative Date in the Primary
Business of the Company not to exceed $25 million at any one
time outstanding;
(viii) Investments made after the Operative Date in majority-owned
Subsidiaries of the Company in the Primary Business of the
Company not to exceed $10 million at any one time outstanding;
(ix) loans and reasonable advances to officers and directors of the
Company or any of its Restricted Subsidiaries made in the
ordinary course of business in an aggregate principal amount
not exceeding $1,000,000;
(x) Investments received in settlement of obligations incurred in
the ordinary course of
-15-
business owed to the Company or any Restricted Subsidiary
(other than by the Company or any Subsidiary) and as a result
of bankruptcy or insolvency proceedings or upon the
foreclosure, perfection or enforcement of any Lien in favor of
the Company or any Restricted Subsidiary;
(xi) Investments held by any Person on the date such Person becomes
a Restricted Subsidiary and not in excess of 5% of the total
fair market value of the assets of such Person being
transferred in such acquisition; and
(xii) Investments in any Person with which the Company or any of
Restricted Subsidiaries has entered into, or has an agreement
that, subject to consummation of such agreement, entitles the
Company or any of its Restricted Subsidiaries to enter into, a
Local Marketing Agreement and Investments in any Person created
by such a Local Marketing Agreement.
aj. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"PERMITTED LIENS" means, without duplication, (a) Liens securing
Indebtedness incurred under the Credit Facilities incurred in
accordance with Section 4.10 of this Indenture; (b) Liens on property
or assets of, or any shares of stock of or secured debt of, any Person
or corporation existing at the time such Person or corporation becomes
a Restricted Subsidiary of the Company or at the time such Person or
corporation is merged into the Company or any of its Restricted
Subsidiaries, provided that such Liens are not incurred in connection
with, or in contemplation of, such Person or corporation becoming a
Restricted Subsidiary of the Company or merging into the Company or
any of its Restricted Subsidiaries; (c) Liens on Property existing at
the time of acquisition of such Property, provided that such Liens are
not incurred in connection with, or in contemplation of, such Property
being acquired; (d) Liens existing on the Operative Date; (e) Liens
securing Capitalized Lease Obligations permitted to be incurred under
Section 4.15 of this Indenture provided that such Lien does not extend
to any property other than that subject to underlying lease; (f)
charges or levies (other than any Lien imposed by the Employee
Retirement Income Security Act of 1974, as amended) that are not yet
subject to penalties for non-payment or are being contested in good
faith by appropriate proceedings and for which adequate reserves, if
-16-
required, have been established or other provisions have been made in
accordance with GAAP; (g) statutory mechanics', workmen's,
materialmen's, operators', warehousemen's, repairmen's and bankers'
liens, and similar Liens imposed by law and arising in the ordinary
course of business for sums which are not overdue by more than 15 days
or, if so overdue, are being contested in good faith by appropriate
proceedings and for which adequate reserves, if required, have been
established or other provisions have been made in accordance with
GAAP; (h) minor imperfections of, or encumbrances on, title that do
not impair the value of property for its intended use; (i) Liens
(other than any Lien under the Employee Retirement Income Security Act
of 1974, as amended) incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security; (j) Liens incurred or
deposits made to secure the performance of tenders, bids, leases,
statutory or regulatory obligations, bankers' acceptances, surety and
appeal bonds, government contracts, performance and return of money
bonds and other obligations of a similar nature incurred in the
ordinary course of business (exclusive of obligations for the payment
of borrowed money); (k) easements, rights-of-way, municipal and zoning
ordinances and similar charges, encumbrances, title defects or other
irregularities that do not materially interfere with the ordinary
course of business of the Company or of any of its Subsidiaries; (l)
Liens to secure Purchase Money Indebtedness that is otherwise
permitted under this Indenture, PROVIDED that (1) any such Lien is
created solely for the purpose of securing Indebtedness representing,
or incurred to finance, refinance or refund the cost (including the
sales and excise taxes, installation and delivery charges and other
direct costs of, and other direct expenses paid or charged in
connection with, such purchase or construction) of the item of
Property subject thereto and such Lien is created prior to, at the
time of or within 365 days after the later of the acquisition, the
completion of construction or the commencement of full operation of
such property, (2) the principal amount of the Indebtedness secured by
such Lien does not exceed 100% of such cost, and (3) any such Lien
shall not extend to or cover any Property other than such item of
Property and any improvements on such item or proceeds thereof; (m)
Liens in favor of the Company or any Wholly-Owned Subsidiary of the
Company; (n) Liens arising from the rendering of a final judgment or
order against the Company or any Subsidiary of the Company that does
not
-17-
give rise to an Event of Default and that do not interfere with the
ordinary course of business of the Company and its Subsidiaries; (o)
Liens securing reimbursement obligations with respect to letters of
credit incurred in accordance with this Indenture that encumber
documents and other property relating to such letters of credit and
the products and proceeds thereof; (p) Liens encumbering customary
initial deposits and margin deposits, and other Liens that are within
the general parameters customary in the industry and incurred in the
ordinary course of business securing Indebtedness under Interest Rate
Protection Agreements and Currency Agreements constituting
Indebtedness permitted to be incurred pursuant to Section 4.10 of this
Indenture pursuant to clause (d) of the definition of "Permitted
Indebtedness"; (q) Liens securing Permitted Indebtedness incurred in
accordance with subsection (j) of the definition of "Permitted
Indebtedness"; (r) other Liens securing obligations incurred in the
ordinary course of business which obligations do not exceed $250,000
in the aggregate at any one time outstanding; (s) Liens to secure any
permitted extension, renewal, refinancing or refunding (or successive
extensions, renewals, refinancings or refundings), in whole or in
part, of any Indebtedness secured by Liens referred to in the
foregoing clauses (b) through (r), provided that, such Liens do not
extend to any other property or assets and the principal amount of the
debt secured by such Liens is not increased; (t) Liens with respect to
any license of intellectual property entered into in the ordinary
course of business (including programming agreements); and (u) Liens
in connection with Local Marketing Agreements related to the Primary
Business.
ak. REPLACE THE DEFINITION OF PERSON IN SECTION 1.01 WITH THE FOLLOWING
DEFINITION.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government (including any agency or political
subdivision thereof).
al. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"PREFERRED STOCK" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with
respect to dividends, distributions or liquidation proceeds of such
Person
-18-
over the holders of other Capital Stock issued by such Person.
am. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"PRIMARY BUSINESS" means the ownership and operation of television
stations and networks and production facilities and the creation,
production, development and distribution of products for television.
an. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"PROPERTY" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person
and its Subsidiaries under GAAP.
ao. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"PURCHASE MONEY INDEBTEDNESS" means any Indebtedness incurred in the
ordinary course of business by a Person to finance the cost (including
the cost of construction) of an item of property, the principal amount
of which Indebtedness does not exceed the sum of (i) 100% of such cost
and (ii) reasonable fees and expenses of such Person incurred in
connection therewith.
ap. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"QUALIFIED ISSUER" means any commercial bank having capital, surplus
and undivided profits totaling in excess of $100,000,000 and the
outstanding short-term debt securities of which are rated at least A-2
by S&P or at least P-2 by Moody's, or carrying an equivalent rating by
a nationally recognized rating agency if both the two named rating
agencies cease publishing ratings of investments.
aq. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"REDEEMABLE DIVIDEND" means, for any dividend or distribution with
regard to Disqualified Capital Stock, the quotient of the dividend or
distribution divided by the difference between one and the maximum
statutory federal income tax rate (expressed as a decimal number
-19-
between 1 and 0) then applicable to the issuer of such Disqualified
Capital Stock.
ar. REPLACE THE DEFINITION OF RESTRICTED PAYMENT IN SECTION 1.01 WITH THE
FOLLOWING DEFINITION.
"RESTRICTED PAYMENT" means, without duplication, any of the following:
(i) the declaration or payment of any dividend or any other
distribution or payment on Capital Stock of the Company or any
Restricted Subsidiary of the Company or any payment made to the direct
or indirect holders (in their capacities as such) of Capital Stock of
the Company or any Restricted Subsidiary of the Company (other than
(y) dividends or distributions payable solely in Capital Stock (other
than Disqualified Capital Stock) or in options, warrants or other
rights to purchase Capital Stock (other than Disqualified Capital
Stock), and (z) in the case of Restricted Subsidiaries of the Company,
dividends or distributions payable to the Company or to a Wholly-Owned
Subsidiary of the Company), (ii) the purchase, redemption or other
acquisition or retirement for value of any Capital Stock of the
Company or any of its Restricted Subsidiaries (other than Capital
Stock owned by the Company or a Wholly-Owned Subsidiary of the
Company, excluding Disqualified Capital Stock), (iii) the making of
any Investment or guarantee of any Investment in any Person other than
a Permitted Investment, (iv) any designation of a Restricted
Subsidiary as an Unrestricted Subsidiary on the basis of the fair
market value of such Subsidiary utilizing standard valuation
methodologies and approved by the Board of Directors, and (v)
forgiveness of any Indebtedness (other than Indebtedness of a
Wholly-Owned Subsidiary) of an Affiliate of the Company to the Company
or a Restricted Subsidiary. For purposes of determining the amount
expended for Restricted Payments, cash distributed or invested shall
be valued at the face amount thereof and property other than cash
shall be valued at its fair market value as conclusively determined by
the Company's Board of Directors in good faith.
as. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"RESTRICTED SUBSIDIARY" means a Subsidiary of the Company other than
an Unrestricted Subsidiary and includes all of the Subsidiaries of the
Company existing as of the Operative Date, including but not limited
to Telemundo of Chicago, Inc. The Board of Directors of the Company
may designate any Unrestricted
-20-
Subsidiary as a Restricted Subsidiary if immediately after giving
effect to such action (and treating any Acquired Indebtedness as
having been incurred at the time of such action), the Company could
have incurred at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.10.
at. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
au. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"SENIOR INDENTURE" means the indenture between the Company and the
trustee for the Senior Notes, as such indenture may be amended or
supplemented from time to time in accordance with its terms.
av. INSERT THE FOLLOWING AS A NEW DEFINITION TO SECTION 1.01.
"SENIOR NOTES" means senior notes of the Company issued pursuant to an
indenture dated as of the Operative Date.
aw. REPLACE THE DEFINITION OF STATED MATURITY IN SECTION 1.01 WITH THE
FOLLOWING DEFINITION.
"STATED MATURITY" means, with respect to any security or Indebtedness,
the date specified therein as the fixed date on which any principal of
such security or Indebtedness is due and payable, including pursuant
to any mandatory redemption provision (but excluding any provision
providing for the repurchase thereof at the option of the holder
thereof).
ax. REPLACE THE DEFINITION OF SUBSIDIARY IN SECTION 1.01 WITH THE
FOLLOWING DEFINITION.
"SUBSIDIARY" of any specified Person means any corporation,
partnership, joint venture, association or other business entity,
whether now existing or hereafter organized or acquired, (i) in the
case of a corporation, of which more than 50% of the total voting
power of the Capital Stock entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, officers or
trustees thereof is held by such first-named Person or any of its
Subsidiaries; or (ii) in the case of a partnership,
-21-
joint venture, association or other business entity, with respect to
which such first-named Person or any of its Subsidiaries has the power
to direct or cause the direction of the management and policies of
such entity by contract or otherwise or if in accordance with GAAP
such entity is consolidated with the first-named Person for financial
statement purposes.
ay. INSERT THE FOLLOWING AS A NEW DEFINITION IN SECTION 1.01.
"TEMPORARY CASH INVESTMENTS" means (i) Investments in marketable,
direct obligations issued, guaranteed or insured by the United States
of America, or of any governmental agency thereof and backed by the
full faith and credit of the United States, in each case maturing
within 365 days of the date of acquisition thereof; (ii) Investments
in certificates of deposit or Eurodollar deposits, demand deposits,
time deposits, overnight bank deposits, and banker's acceptances
offered by a Qualified Issuer, maturing within 365 days of the date of
acquisition thereof; (iii) commercial paper maturing no more than one
year from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 from S&P or at least P-1
from Moody's; (iv) repurchase obligations with a term of not more than
seven (7) days for underlying securities of the type described in
clause (i) above entered into with any Qualified Issuer; (v) deposits
available for withdrawal on demand with a Qualified Issuer; (vi)
Investments not exceeding 365 days in duration in money market funds
that invest substantially all of such funds' assets in the Investments
described in the preceding clauses (i), (ii) and (iii); and (vii)
foreign equivalents of the Investments described in clauses (i), (ii)
and (v) above, provided that such foreign equivalents shall be
permitted by the Company or a Subsidiary only to the extent that such
Person holds such foreign equivalents in the ordinary course of
business and in the currency of the country where such Person conducts
its business.
az. INSERT THE FOLLOWING AS A NEW DEFINITION IN SECTION 1.01.
"TNNI" means Telemundo News Network, Inc., a Delaware corporation.
-22-
ba. REPLACE THE DEFINITION OF UNRESTRICTED SUBSIDIARY IN SECTION 1.01 WITH
THE FOLLOWING DEFINITION.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of an Unrestricted
Subsidiary and (b) any Subsidiary of the Company which is classified
after the Operative Date as an Unrestricted Subsidiary by a resolution
adopted by the Board of Directors of the Company, provided that a
Subsidiary organized or acquired after the Operative Date may be so
classified as an Unrestricted Subsidiary only if such classification
is in compliance with the Section 4.05 of this Indenture. The Trustee
shall be given prompt notice by the Company of each resolution adopted
by the Board of Directors of the Company under this provision,
together with a copy of each such resolution adopted.
bb. INSERT THE FOLLOWING AS A NEW DEFINITION IN SECTION 1.01.
"VIDEO 44" means Video 44, an Illinois general partnership.
bc. INSERT THE FOLLOWING AS A NEW DEFINITION IN SECTION 1.01.
"WHOLLY-OWNED SUBSIDIARY" or "WHOLLY-OWNED RESTRICTED SUBSIDIARY"
means any Restricted Subsidiary all of the outstanding voting
securities (other than directors' qualifying shares) of which are
owned, directly or indirectly, by the Company.
Section 1.02. AMENDMENTS AND MODIFICATIONS TO ARTICLE FOUR.
a. SECTION 4.03 OF THE INDENTURE, ENTITLED "COMMISSION REPORTS," IS
REPLACED IN ITS ENTIRETY BY ADDING A NEW SECTION 4.03 THAT READS AS
FOLLOWS:
So long as any of the Securities is outstanding, the Company
shall file with the Commission and, within 15 days after it files them
with the Commission, file with the Trustee and thereafter promptly
mail or promptly cause the Trustee to mail to the Holders of
Securities at their addresses as set forth in the register of
Securities, copies of the periodic reports and the information,
documents and other reports (without exhibits unless requested in
writing by any such Holder) which the Company is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act or
which the Company would be required to file with the Commission if the
Company then had a
-23-
class of securities registered under the Exchange Act. In addition,
the Company shall cause its annual report to stockholders and any
quarterly or other financial reports furnished to its stockholders
generally to be filed with the Trustee no later than the date such
materials are mailed or made available to the Company's stockholders,
and thereafter mailed promptly to the Holders of Securities at their
addresses as set forth in the register of Securities. The Company
shall also comply with the provisions of TIA Section 314(a).
b. SECTION 4.05 OF THE INDENTURE, ENTITLED "LIMITATION ON RESTRICTED
PAYMENTS," IS REPLACED IN ITS ENTIRETY BY NEW SECTION 4.05 THAT READS
AS FOLLOWS:
Section 4.05. LIMITATION ON RESTRICTED PAYMENTS.
The Company will not make, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make, any
Restricted Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(b) immediately after giving pro forma effect to such
Restricted Payment, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.10(a)
of this Indenture; and
(c) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made
after the Operative Date does not exceed the sum of (1) 100% of the
Company's Cumulative EBITDA minus 1.4 times the Company's Cumulative
Consolidated Interest Expense, (2) 100% of the aggregate Net Proceeds
in cash (including cash Net Proceeds received upon the conversion of
noncash proceeds) from the issue or sale, after the Operative Date, of
Capital Stock (other than Disqualified Capital Stock or Capital Stock
of the Company issued to any Subsidiary of the Company) of the Company
or any Indebtedness or other securities of the Company convertible
into or exercisable or exchangeable for Capital Stock (other than
Disqualified Capital Stock) of the Company which has been so converted
or exercised or exchanged, as the case may be, and (3) an amount equal
to the net reduction in Investments, subsequent to the Operative Date,
in any Person resulting from payments of interest on debt, dividends,
repayments of
-24-
loans or advances, return of capital, or other transfers of property
(but only to the extent such distributions are not included in the
calculation of Consolidated Net Income), in each case, to the Company
or any Restricted Subsidiary from any Person, not to exceed in the
case of any Person, the amount of Investments previously made by the
Company or any Restricted Subsidiary in such Person and which was
treated as a Restricted Payment.
The provisions of this section shall not prohibit: (i) the payment of
any distribution within 60 days after the date of declaration thereof, if
at such date of declaration such payment would comply with the provisions
of this Indenture; (ii) so long as no Default or Event of Default shall
have occurred and be continuing, the purchase, redemption, acquisition,
cancellation or other retirement for value of shares of Capital Stock of
the Company held by present or former officers, directors or employees (or
their estates or beneficiaries under their estates) and which payments, in
the aggregate to all such Persons do not exceed $4,000,000; (iii) so long
as no Default or Event of Default shall have occurred and be continuing,
the acquisition, redemption or retirement of any shares of Capital Stock of
the Company or a Restricted Subsidiary or by conversion into, or by or in
exchange for, shares of Capital Stock (other than Disqualified Capital
Stock) of the Company, provided that the proceeds of any sale of Capital
Stock shall not increase the amount available for Restricted Payments or
(iv) distributions by Video 44 to a minority partner (other than a
Restricted Subsidiary) pursuant to the Joint Venture Agreement. The amounts
expended to purchase, redeem, retire or acquire, convert or exchange or
make distributions on Capital Stock as set forth in the immediately
preceding clauses (ii), (iii) and (iv) (other than distributions funded by
capital contributions of Telemundo of Chicago, Inc. or Harriscope of
Chicago, Inc. pursuant to Section 3.5(a) of the Joint Venture Agreement)
shall be excluded from the calculation of the amount available for
Restricted Payments under the previous paragraph. No payments made or paid
pursuant to clause (c) of the previous paragraph shall be counted for
purposes of calculating the amounts utilized for Restricted Payments
pursuant to clause (c) of the previous paragraph to the extent that such
amount was already counted for such purpose.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by Section 4.09 of this Indenture were
-25-
computed, which calculations may be based upon the Company's latest
available financial statements, and that no Default or Event of Default
exists and is continuing and no Default or Event of Default will occur
immediately after giving effect to any Restricted Payment.
c. SECTION 4.09 OF THE INDENTURE, ENTITLED "LIMITATION ON TRANSACTIONS
WITH AFFILIATES," IS REPLACED IN ITS ENTIRETY BY A NEW SECTION 4.09
THAT READS AS FOLLOWS:
Section 4.09. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, conduct any business or enter
into any transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of assets or
property or rendering of services) with or for the benefit of any
Affiliate (other than the Company or a Wholly-Owned Restricted
Subsidiary or a majority-owned Restricted Subsidiary (so long as no
minority interest is owned by an entity which is otherwise an
Affiliate) and including entities in which the Company or any of its
Restricted Subsidiaries own a minority interest) (an "Affiliate
Transaction") or extend, renew, waive or otherwise modify the terms of
any Affiliate Transaction entered into prior to the Operative Date
unless the terms of such Affiliate Transaction are fair and reasonable
to the Company or such Restricted Subsidiary, as the case may be, and
the terms of such Affiliate Transaction are at least as favorable as
the terms which could be obtained by the Company or such Restricted
Subsidiary, as the case may be, in a comparable transaction made on an
arm's-length basis between unaffiliated parties. With respect to any
Affiliate Transaction involving an amount or having a value in excess
of $5 million, the Company must obtain a resolution of the Board of
Directors (including a majority of the disinterested directors)
certifying that, in their good faith judgment, such Affiliate
Transaction complies with the preceding sentence and with respect to
any Affiliate Transaction involving an amount or having a value in
excess of $10 million, such certificate shall be accompanied by a
written opinion from an Independent Financial Advisor that the
transaction is fair from a financial point of view to the Company or
such Restricted Subsidiary. A certificate evidencing such resolution
shall be delivered to the Trustee within five Business Days after the
consummation of such Affiliate Transaction.
-26-
The foregoing provisions will not apply to (i) any Restricted
Payment that is not prohibited by the provisions described under
Section 4.05 of this Indenture; or (ii) any transaction, approved by
the Board of Directors of the Company, with an officer or director of
the Company or of any Subsidiary in his or her capacity as officer or
director entered into in the ordinary course of business, including
compensation and employee benefit arrangements with any officer or
director of the Company.
d. SECTION 4.10 OF THE INDENTURE, ENTITLED "LIMITATION ON INCURRENCES OF
ADDITIONAL INDEBTEDNESS AND ISSUANCES OF DISQUALIFIED CAPITAL STOCK,"
IS REPLACED IN ITS ENTIRETY WITH A NEW SECTION 4.10 THAT READS AS
FOLLOWS:
Section 4.10. LIMITATION ON ADDITIONAL INDEBTEDNESS.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, incur any
Indebtedness (including Acquired Indebtedness) unless (a) after giving
effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the ratio of the total
Indebtedness of the Company and its Restricted Subsidiaries, on a
consolidated basis, to the Company's EBITDA (determined on a pro forma
basis for the preceding four full fiscal quarters of the Company for
which financial statements are available at the date of determination)
is less than 7.0 to 1 if the Indebtedness is incurred prior to
eighteen months from the Operative Date and 6.5 to 1 if the
Indebtedness is incurred thereafter, determined by giving pro forma
effect to (i) the incurrence of such Indebtedness and (if applicable)
the application of the net proceeds therefrom, including to refinance
other Indebtedness, as if such Indebtedness was incurred, and the
application of such proceeds occurred, at the beginning of such four
fiscal quarters; (ii) the incurrence, repayment or retirement of any
other Indebtedness by the Company and its Restricted Subsidiaries
since the first day of such four full fiscal quarters (and all
Indebtedness incurred and the receipt and application of proceeds
thereof and all Indebtedness repaid or retired since the end of the
most recently completed fiscal quarter of the Company for which a
balance sheet is available preceding the date of determination) as if
such incurrence (and, if applicable, the application of proceeds),
repayment and retirement occurred at the beginning of such four fiscal
quarters; (iii) in the case of Acquired Indebtedness, the related
acquisition as if such acquisition had occurred at the beginning of
-27-
such four fiscal quarters; and (iv) any acquisition or disposition by
the Company and its Restricted Subsidiaries of any company or any
business or any assets out of the ordinary course of business, or any
related repayment of Indebtedness, in each case since the first day of
such four fiscal quarters, assuming such acquisition, disposition or
repayment had been consummated on the first day of such four fiscal
quarters, and (b) no Default or Event of Default shall have occurred
and be continuing at the time or as a consequence of the incurrence of
such Indebtedness.
(b) Notwithstanding the foregoing, the Company and any of its
Restricted Subsidiaries, may incur Permitted Indebtedness, as
specified, provided, that the Company will not incur any Permitted
Indebtedness that ranks junior in right of payment to the Securities
that has a maturity or mandatory sinking fund payment prior to the
Stated Maturity of the Securities.
e. SECTION 4.11 OF THE INDENTURE, ENTITLED "LIMITATION ON PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES," IS REPLACED IN ITS ENTIRETY BY
ADDING A NEW SECTION 4.11 THAT READS AS FOLLOWS:
Section 4.11. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary to (i)(a) pay dividends or
make any other distributions to the Company or any other Restricted
Subsidiary on its Capital Stock or with respect to any other interest
or participation in, or measured by, its profits or (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary,
(ii) make loans or advances to the Company or any other Restricted
Subsidiary, or (iii) transfer any of its properties or assets to the
Company or any other Restricted Subsidiary, except for such
encumbrances or restrictions existing under or by reason of:
(a) any agreement existing on the Operative Date, including
the Loan and Security Agreement, the Senior Indenture and this
Indenture;
(b) any agreement governing Acquired Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to
the
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extent such Indebtedness was incurred in connection with or in
anticipation of such acquisition), provided that such restriction does
not extend to or cover any Person, or the properties or assets of any
Person, other than the Person so acquired;
(c) agreements relating to an acquisition of Property,
provided that such encumbrances or restrictions relate solely to the
Property so acquired;
(d) agreements relating to Indebtedness incurred to refinance
Indebtedness set forth in preceding clauses (a)-(c) and which
Indebtedness incurred to refinance Indebtedness set forth in preceding
clauses (a)-(c) is refinancing Indebtedness permitted under Sections
4.10 and 4.15 of this Indenture, provided that the encumbrances or
restrictions contained in the agreements governing such permitted
refinancing are no more restrictive in the aggregate than such
encumbrances or restrictions contained in the agreements governing the
Indebtedness being refinanced immediately prior to such refinancing
and do not extend to or cover any other Person or the property of any
other Person other than the Person in respect of whom such encumbrance
or restriction relating to the Indebtedness being refinanced applied;
(e) applicable law;
(f) customary non-assignment provisions in leases and any
license of intellectual property entered into in the ordinary course
of business (including programming agreements) and Local Marketing
Agreements;
(g) agreements for the sale of any assets of any Restricted
Subsidiary, provided that such restriction is only applicable to the
assets to be sold by such Restricted Subsidiary;
(h) Purchase Money Indebtedness for property acquired in the
ordinary course of business that only imposes restrictions on the
Property so acquired and any improvements on such Property; and
(i) Capitalized Lease Obligations that are otherwise permitted
hereunder, provided that such encumbrance or restriction does not
extend to any Property other than that subject to the underlying
lease.
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f. SECTION 4.12 OF THE INDENTURE, ENTITLED "LIMITATION ON LIENS," IS
REPLACED IN ITS ENTIRETY BY ADDING A NEW SECTION 4.12 THAT READS AS
FOLLOWS:
Section 4.12. LIMITATION ON LIENS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist
or become effective any Liens of any kind (other than Permitted Liens)
upon any property or asset of the Company or any Restricted Subsidiary
or any shares of stock or debt of any Restricted Subsidiary, now owned
or hereafter acquired, unless (i) if such Lien secures Indebtedness
which is PARI PASSU with the Securities, then the Securities are
secured on an equal and ratable basis with the obligations so secured
until such time as such obligation is no longer secured by a Lien or
(ii) if such Lien secures Indebtedness which is subordinated to the
Securities, then the Securities are secured prior to the obligations
so secured, and such Lien shall be subordinated to the Lien granted to
the Holders of the Securities to the same extent as such subordinated
Indebtedness is subordinated to the Securities until such time as such
obligation is no longer secured by a Lien.
g. SECTION 4.15 OF THE INDENTURE, ENTITLED "LIMITATION ON INVESTMENTS,"
IS DELETED AND REPLACED IN ITS ENTIRETY BY ADDING A NEW SECTION 4.15
THAT READS AS FOLLOWS:
Section 4.15. LIMITATION ON RESTRICTED SUBSIDIARY DEBT AND PREFERRED
STOCK
The Company will not permit any of its Restricted Subsidiaries
to, directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness) or issue any Preferred Stock other than, without
duplication:
(a) (1) Indebtedness of any Restricted Subsidiary evidenced
by or arising under the Credit Facilities, which taken together with
any Indebtedness of the Company or any Restricted Subsidiary evidenced
by or arising under the Credit Facilities (without duplication) is in
an aggregate principal amount at any one time not to exceed
$75 million less any amounts incurred pursuant to clause (a)(4) of
this covenant;
(2) Purchase Money Indebtedness and Capitalized Lease
Obligations incurred in the ordinary course of business in a principal
amount outstanding at
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the time of incurrence which does not in the aggregate exceed $15
million at any time outstanding;
(3) Indebtedness incurred or incurrable under any
Guarantee of any Restricted Subsidiary made in the ordinary course of
business and not to exceed $10 million at any time outstanding; and
(4) Indebtedness incurred or incurrable pursuant to a
Local Marketing Agreement, for a television station located outside of
the continental United States and operated in a country, a territory
or a possession in which the Company owns and operates a television
station on the Operative Date, in an amount as determined in
accordance with GAAP, not to exceed $50 million at any time
outstanding;
provided, however, that (A) after giving effect to the incurrence of
any Indebtedness pursuant to this clause (a) and the receipt and
application of the proceeds thereof, the ratio of the total
Indebtedness of the Company's Restricted Subsidiaries (excluding any
guarantee of the Credit Facilities by any Restricted Subsidiary
pursuant to clause (b), Indebtedness under clause (f) or Indebtedness
under clause (h) of this covenant), on a combined consolidated basis,
to the Company's EBITDA (determined on a pro forma basis for the
preceding four fiscal quarters of the Company for which financial
statements are available at the date of determination) is less than
3.0 to 1, determined by giving pro forma effect to (i) the incurrence
of such Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as if
such Indebtedness was incurred, and the application of such proceeds
occurred, at the beginning of such four fiscal quarters; (ii) the
incurrence, repayment or retirement of any other Indebtedness by the
Company and its Restricted Subsidiaries since the first day of such
four full fiscal quarters (and all Indebtedness incurred and the
receipt and application of proceeds thereof and all Indebtedness
repaid or retired since the end of the most recently completed fiscal
quarter of the Company for which a balance sheet is available
preceding the date of determination) as if such incurrence (and, if
applicable, the application of proceeds), repayment and retirement
occurred at the beginning of such four fiscal quarters; (iii) in the
case of Acquired Indebtedness, the related acquisition as if such
acquisition had occurred at the beginning of such four fiscal
quarters; and (iv) any acquisition or disposition by the Company and
its Restricted
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Subsidiaries of any company or any business or any assets out of the
ordinary course of business, or any related repayment of Indebtedness,
in each case since the first day of such four fiscal quarters,
assuming such acquisition, disposition or repayment had been
consummated on the first day of such four fiscal quarters, and (B) no
Default or Event of Default shall have occurred and be continuing at
the time or as a consequence of the incurrence of such Indebtedness;
(b) Indebtedness of any Restricted Subsidiary or Preferred
Stock of any Restricted Subsidiary issued to and held by the Company
or a Wholly-Owned Restricted Subsidiary of the Company, provided that
such Indebtedness or Preferred Stock is at all times held by the
Company or a Wholly-Owned Restricted Subsidiary of the Company;
(c) Indebtedness of any Restricted Subsidiary under Currency
Agreements and Interest Rate Protection Agreements which are entered
into for the purpose of protection against risk of currency or
interest rate fluctuations affecting any Restricted Subsidiary in its
ordinary course of business or that are related to payment obligations
of any Restricted Subsidiary otherwise permitted under this Indenture;
(d) Indebtedness or Preferred Stock of any Restricted
Subsidiary remaining outstanding on the Operative Date;
(e) Indebtedness incurred or incurrable in respect of
reimbursement obligations related to letters of credit, banker's
acceptances or similar facilities entered into in the ordinary course
of business;
(f) Indebtedness incurred or incurrable by Telemundo of
Chicago, Inc. and Harriscope of Chicago, Inc. pursuant to Section
3.5(a) of the Joint Venture Agreement;
(g) Indebtedness in respect to bids, performance and surety
bonds and obligations provided in the ordinary course of business and
appeal bonds;
(h) Acquired Indebtedness, provided that such Indebtedness was
not incurred or issued as a result of or in connection with or in
anticipation of such Person becoming a Restricted Subsidiary of the
Company and immediately after giving effect to such Person becoming a
Restricted Subsidiary of the Company (as if such Indebtedness was
incurred and issued on the first day
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of the four quarter period) the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) under
Section 4.10 of this Indenture; and
(i) Indebtedness incurred by a Restricted Subsidiary in
exchange for, or the proceeds of which are used to refinance
Indebtedness referred to in clauses (a)(2), (c) - (g) of this Section,
provided that (i) such Indebtedness is in an aggregate principal
amount not in excess of the aggregate principal amount then
outstanding of the Indebtedness being refinanced, plus the amount of
accrued and unpaid interest, if any, and premiums owed, if any, not in
excess of preexisting payment provisions on such Indebtedness being
refinanced, plus the reasonable, customary expenses, fees, and costs
of the Company incurred in connection with such refinancing, (ii) such
Indebtedness is scheduled to mature either (A) no earlier than the
Indebtedness being refinanced or (B) after the Stated Maturity of the
Securities, and (iii) such Indebtedness has an average life at the
time such Indebtedness is incurred that is equal to or greater than
the average life of the Indebtedness being refinanced.
Section 1.03. AMENDMENTS AND MODIFICATIONS TO ARTICLE FIVE
a. SECTION 5.01 OF THE INDENTURE, ENTITLED "LIMITATIONS ON MERGERS,
CONSOLIDATIONS OR SALE OF ASSETS," IS RESTATED IN ITS ENTIRETY TO READ
AS FOLLOWS:
Section 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
The Company will not consolidate with, merge with or into, or
transfer all or substantially all of its assets (as an entirety or
substantially as an entirety in one transaction or a series of related
transactions), to any Person (other than the merger or transfer of
assets of a Wholly-Owned Restricted Subsidiary of the Company into
another Wholly-Owned Restricted Subsidiary of the Company or into the
Company) unless: (i) the Company shall be the continuing Person, or
the Person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which the properties and assets
of the Company are transferred shall be a corporation organized and
existing under the laws of the United States or any State thereof or
the District of Columbia and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all of the obligations of the Company under the
Securities and this Indenture, and the obligations under this
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Indenture shall remain in full force and effect; (ii) immediately
before and immediately after giving effect to such transaction on a
pro forma basis, no Default or Event of Default (and no event that,
after notice or lapse of time, or both, would become an Event of
Default) shall have occurred and be continuing, and (iii) immediately
after giving effect to such transaction on a pro forma basis the
Company or such Person could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.10,
and immediately after such transaction, the Company or the surviving
Person holds all material permits, licenses, certifications or
approvals required for operation of the business of the Company as the
same is conducted prior to such transaction and immediately
thereafter.
In connection with any consolidation, merger or transfer of
assets contemplated by this section, the Company shall deliver, or
cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and
an opinion of counsel, each stating that such consolidation, merger or
transfer and the supplemental indenture in respect thereto comply with
this provision and that all conditions precedent herein provided for
relating to such transaction or transactions have been complied with.
Section 1.05. MUTATIS MUTANDIS EFFECT. The Indenture is hereby amended
MUTATIS MUTANDIS to reflect the addition or amendment of the definitional terms
incorporated into the Indenture pursuant to Section 1.01 hereof.
ARTICLE 2
MISCELLANEOUS
Section 2.01. EFFECT OF THIS FIRST SUPPLEMENTAL INDENTURE. This First
Supplemental Indenture is supplemental to the Indenture and does and shall be
deemed to form a part of, and shall be construed in connection with and as part
of, the Indenture for any and all purposes, including but not limited to
discharge of the Indenture as provided in Article Eight of the Indenture.
Except as specifically modified herein, the Indenture and the Securities are in
all respects ratified and confirmed and shall remain in full force and effect in
accordance with their terms.
Section 2.02. TRUSTEE. Except as otherwise expressly provided herein, no
duties, responsibilities or liabilities are
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assumed, or shall be construed to be assumed, by the Trustee by reason of this
First Supplemental Indenture. This First Supplemental Indenture is executed and
accepted by the Trustee subject to all the terms and conditions set forth in the
Indenture with the same force and effect as if those terms and conditions were
repeated at length herein and made applicable to the Trustee with respect
hereto. The Trustee assumes no responsibility for the recitals contained
herein, which shall be taken as statements of the Company, and makes no
representation as to the validity or sufficiency of this First Supplemental
Indenture.
Section 2.03. GOVERNING LAW. The laws of the State of New York shall
govern this First Supplemental Indenture without regard to principles of
conflicts of law. The Trustee and the Company agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this First Supplemental Indenture.
Section 2.04. COUNTERPARTS. The parties may sign any number of copies of
this First Supplemental Indenture. Each signed copy shall be an original, but
all of such executed copies together shall represent the same agreement.
Section 2.05. SEVERABILITY. In case one or more of the provisions in this
First Supplemental Indenture shall be held invalid, illegal or unenforceable, in
any respect for any reason, the validity, illegality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
Section 2.06. EFFECTIVE DATE OF THIS FIRST SUPPLEMENTAL INDENTURE. This
First Supplemental Indenture and the Amendments to Sections 1.01, 4.03, 4.05,
4.09, 4.10, 4.11, 4.12, 4.15 and 5.01, shall be effective pursuant to Section
10.02 of the Indenture immediately upon execution by the Company and delivery to
and execution by the Trustee of this First Supplemental Indenture. The
Amendments shall not become operative until such date that the Company delivers
to the Trustee an Officer's Certificate that the following events have occurred:
(i) the Company has paid to Holders who consented to the Amendments a Consent
Fee, if required pursuant to the Company's Offer to Purchase and Consent
Solicitation Statement dated November 27, 1995, and as amended from time to time
("Offer to Purchase"), (ii) the Repurchase Offer (as defined in the Offer to
Purchase) for the Securities by the Company pursuant to the Offer to Purchase
has been completed, (iii) the Company's acquisition of a 74.5% interest in Video
44 has been completed or terminated, and (iv) the Operative Date has occurred;
PROVIDED that if the Operative Date has not occurred on or before May 15, 1996,
the
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Amendments shall not ever become operative thereafter. On the Operative Date,
the Company shall deliver to the Trustee a certified copy of the Senior
Indenture as in effect on the Operative Date.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the date first written above.
TELEMUNDO GROUP, INC.
By: /s/ XXXXX X. XXXXXXX XX
-------------------------------
Name: Xxxxx X. Xxxxxxx XX
Title: Chief Financial Officer and
Treasurer
(SEAL)
Attest:
/s/ Xxxxxx X. Xxxxxx III
-------------------------
Xxxxxx X. Xxxxxx III
Assistant General Counsel and
Assistant Secretary
BANKERS TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxxxxxx Xxxxxxxx
Title: Assistant Vice President
(SEAL)
Attest:
/s/ Xxxxx Xxxxxxx
--------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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