EXHIBIT 2.5
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of May 12, 2003 (this
"Supplemental Indenture"), between AZTECA HOLDINGS, S.A. DE C.V., a corporation
(sociedad anonima de capital variable) established under the laws of the United
Mexican States (the "Company"), having its principal office at Periferico Sur
No. 4121, Colonia Xxxxxxx xxx Xxxxxxxx, 00000, Xxxxxx, D.F. and THE BANK OF NEW
YORK, a New York banking corporation, as trustee (the "Trustee").
WHEREAS, the Company and the Trustee are parties to that certain
Indenture, dated as of January 31, 2002 (the "Indenture"), pursuant to which the
Company issued US$150,000,000 in aggregate principal amount of its 10 1/2%
Senior Secured Notes due 2003 (the "Notes");
WHEREAS, Section 9.02 of the Indenture provides that modifications and
amendments to the Indenture may be made and one or more indentures supplement to
the Indenture may be entered into by the Company and the Trustee with the
written consent of the holders (the "Holders") of a majority in aggregate
principal amount of the Notes outstanding, except for certain specific
modifications or supplements which require the unanimous written consent or
unanimous affirmative vote of the Holders of the Notes;
WHEREAS, the Company undertook an exchange offer and consent
solicitation pursuant to an Offering Memorandum and Consent Solicitation
Statement, dated March 3, 2003, as supplemented by a Supplement to the Offering
Memorandum and Consent Solicitation Statement, dated April 25, 2003 (the
"Offering Memorandum"), offering to exchange the Holders' Notes for its new 10
3/4% Senior Secured Amortizing Notes due 2008 (the "New Notes") and requesting
that the Holders give their written consent to implement the amendments to the
Indenture set forth in this Supplemental Indenture;
WHEREAS, the Company has received the valid written consents of the
Holders of at least a majority in aggregate principal amount outstanding of the
Notes consenting to so amend the Indenture;
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding, and legal instrument in accordance with
the terms of the Indenture have been performed and fulfilled and the execution
and delivery hereof have been in all respects duly authorized; and
WHEREAS, in accordance with the terms of the Indenture, the Company
has requested that the Trustee 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
Company and the
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Trustee hereby agree for the benefit of each other and the equal and ratable
benefit of the Holders of the Notes as follows:
Article I
INDENTURE AMENDMENTS
Section 1.01 Amendments to Indenture. The Indenture is hereby amended
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as follows:
(a) The table of contents of the Indenture is hereby amended by (i)
replacing the heading "Limitation on Other Business Activities"
in Section 4.06 with the heading "[intentionally omitted];" (ii)
replacing the heading "Limitation on Indebtedness of the Company
and Limitation on Preferred Stock of TV Azteca" in Section 4.07
with the heading "[intentionally omitted];" (iii) replacing the
heading "Limitation on Indebtedness of TV Azteca and its
Restricted Subsidiaries" in Section 4.08 with the heading
"[intentionally omitted];" (iv) replacing the heading "Limitation
on Restricted Payments" in Section 4.09 with the heading "Asset
Disposition Proceeds Offer to Purchase;" (v) replacing the
heading "Limitation on Dividend and Other Payment Restrictions
Affecting Certain Subsidiaries" in Section 4.10 with the heading
"[intentionally omitted];" (vi) replacing the heading "Required
Stock Ownership; Limitation on Liens" in Section 4.11 with the
heading "[intentionally omitted];" (vii) replacing the heading
"Limitation on Sale and Leaseback Transactions by TV Azteca and
its Restricted Subsidiaries" in Section 4.12 with the heading
"[intentionally omitted];" (viii) replacing the heading
"Limitation on Asset Dispositions by TV Azteca and its Restricted
Subsidiaries" in Section 4.14 with the heading "[intentionally
omitted];" (ix) replacing the heading "Limitation on Transactions
with Affiliates" in Section 4.15 with the heading "[intentionally
omitted];" (x) replacing the heading "Limitation on Interest
Rate, Currency or Commodity Price Agreements" in Section 4.16
with the heading "[intentionally omitted];" (xi) replacing the
heading "Provision of Financial Information" in Section 4.17 with
the heading "[intentionally omitted];" (xii) replacing the
heading "Limitation on Designation of Unrestricted Subsidiaries"
in Section 4.18 with the heading "[intentionally omitted];"
(xiii) replacing the heading "Merger, Consolidation and Certain
Sales of Assets" of Article V with the heading "[intentionally
omitted];" and (xiv) replacing the heading "Cure, Waiver or
Rescission of Cross-Acceleration or Payment Default" of Section
6.04 with the heading "[intentionally omitted]."
(b) Section 1.01 of the Indenture is hereby amended to include the
following definitions:
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"Exchange Offer" means the Company's offer to exchange the
Holders' Notes for New Notes made pursuant to an Offering
Memorandum and Consent Solicitation Statement, dated March 3,
2003, as supplemented by a Supplement to the Offering Memorandum
and Consent Solicitation Statement, dated April 25, 2003.
"New Notes" means the US$80,082,000 in aggregate principal amount
of the Company's 10 3/4% Senior Secured Amortizing Notes due
2008.
"Release Percentage" means 76.694% of the 2003 TV Azteca Pledged
Shares held pursuant to the CPO Pledge Agreement on the date of
the consummation of the Exchange Offer.
(c) The definition of "2003 Unefon Rights" set forth in Section 1.01
of the Indenture is deleted in its entirety and replaced with the
following:
"2003 Unefon Rights" means the Unefon Rights with respect to
34,310,092 ordinary, no par value, Series "A" shares of Unefon,
consisting of (i) 4,837,106 shares of Capital Stock of Unefon
that may be acquired pursuant to the exercise of the Unefon
Rights associated with the 2003 TV Azteca Pledged Shares and (ii)
29,472,986 shares of Capital Stock of Unefon that may be acquired
pursuant to the exercise of the Unefon Rights associated with
235,358,095 Azteca Holdings Series A Shares.
(d) Article IV is amended by deleting the text of Sections 4.06,
4.07, 4.08, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.17 and 4.18 in
their entirety and inserting in lieu thereof the text
"[intentionally omitted]."
(e) The words "Limitation on Restricted Payments" in the heading to
Section 4.09 are deleted and replaced with the words "Asset
Disposition Proceeds Offer to Purchase."
(f) Section 4.09 is amended by deleting all of the text thereof,
except for the text contained in subparagraph (d)(i). The text of
such subparagraph is amended by deleting the words "60 days" in
the first line and replacing them with the words "6 months" and
by deleting the words "pursuant to Section 4.14" in the second
line and replacing them with the words "with the proceeds of an
Asset Disposition."
(g) Section 4.13 is amended by deleting the words "30 days" in the
first line and replacing them with the words "6 months."
(h) The text of Article V is hereby deleted in its entirety and
replaced with the text "[intentionally omitted]."
(i) Sections 6.01(e), (f), (g), (h) and (i) are hereby deleted in
their entirety.
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(j) Section 6.02 is amended by deleting the first sentence. The
second sentence of Section 6.02 is amended by deleting the words
"any other" and replacing them with the word "an."
(k) Section 6.04 is amended by deleting the text in its entirety and
inserting in lieu thereof "[intentionally omitted]."
(l) A new Section 11.04(j) is included in the Indenture
to read as follows:
Notwithstanding anything to the contrary contained herein, the
Trustee shall instruct the 2003 Collateral Agent to release from
the CPO Pledge Agreement on May 12, 2003 in connection with the
consummation of the Exchange Offer, that portion of the 2003 TV
Azteca Pledged Shares equal to the Release Percentage.
Section 1.02 Mutatis Mutandi Effect. The Indenture, as supplemented,
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is hereby amended mutatis mutandi to reflect amendments described in Section
1.01 hereof.
Article II
MISCELLANEOUS
Section 2.01 Terms Defined. For all purposes of this Supplemental
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Indenture, except as otherwise defined herein, capitalized terms used in this
Supplemental Indenture shall have the meanings ascribed to such terms in the
Indenture.
Section 2.02 Indenture Ratified. Except as expressly amended hereby,
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the Indenture and the Notes are in all respects ratified and confirmed and all
the terms, conditions and provisions thereof shall remain in full force and
effect. From and after the effectiveness of this Supplemental Indenture, any
reference to the Indenture shall mean the Indenture as so amended by this
Supplemental Indenture.
Section 2.03 Parties Bound. This Supplemental Indenture shall form a
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part of the Indenture for all purposes, and every holder of the Notes heretofore
or hereafter authenticated and delivered shall be bound hereby. Upon the
execution of this Supplemental Indenture, the Indenture and the Notes
theretofore issued shall be deemed to be modified and amended in accordance with
this Supplemental Indenture and the respective rights, limitation of rights,
obligations, duties and immunities under the Indenture of the Company and the
Trustee and the Holders of the Notes shall thereafter be determined, exercised
and enforced thereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of this Supplemental Indenture
shall be and be deemed to be part of the terms and conditions of the Indenture
and the Notes theretofore issued for any and all purposes.
Section 2.04 Successors and Assignees. All agreements of the Company
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and the Trustee in this Supplemental Indenture, the Indenture and the Notes
shall bind their
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respective successors and assigns. This Supplemental Indenture shall be binding
upon each Holder of Notes and their respective successors and assigns.
Section 2.05 Counterparts. This Supplemental Indenture may be executed
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in any number of counterparts, each of which when so executed shall be deemed to
be an original, and all of such counterparts shall together constitute one and
the same instrument.
Section 2.06 Severability. In case any provision in this Supplemental
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Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.07 Headings. The headings of the Articles and Sections of
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this Supplemental Indenture have been inserted for convenience of reference only
and are not to be considered part of this Supplemental Indenture and shall in no
way modify or restrict any of the terms or provisions of this Supplemental
Indenture.
Section 2.08 Effective Date of this Supplemental Indenture. This
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Supplemental Indenture and the amendments to Sections 1.01, 4.06, 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 6.01, 6.02, 6.04 and
11.04 and Article V shall be effective pursuant to Section 9.03 of the Indenture
immediately upon execution by the Company and delivery to and execution by the
Trustee of this Supplemental Indenture.
Section 2.09 Trustee Disclaimer. The Trustee accepts the amendment of
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the Indenture effected by this Supplemental Indenture as hereby amended, but
only upon the terms and conditions set forth in the Indenture, including the
terms and conditions defining and limiting the liabilities and responsibilities
of the Trustee in the performance of its duties and obligations under the
Indenture, as hereby amended. Without limiting the generality of the foregoing,
the Trustee shall not be responsible in any manner whatsoever for or with
respect to any of the recitals or statements contained herein, all of which
recitals or statements are made solely by the Company, or for or with respect to
(i) the validity, efficacy, or sufficiency of this Supplemental Indenture or any
of the terms or provisions hereof, (ii) the proper authorization hereof by the
Company by corporate action or otherwise, or (iii) the due execution hereof by
the Company and the Trustee makes no representation with respect to any such
matters.
Section 2.10 Governing Law. This Supplemental Indenture shall be
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governed by and construed in accordance with the internal laws of the State of
New York without giving effect to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
AZTECA HOLDINGS, S.A. DE C.V.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Attorney-in-Fact
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Representante Legal
