EXHIBIT 1
TELEMUNDO GROUP, INC.
AND
BANK OF MONTREAL TRUST COMPANY
TRUSTEE
----------------------------
$192,000,000
10 1/2% SENIOR NOTES DUE 2006
----------------------------
INDENTURE
DATED AS OF FEBRUARY 26, 1996
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Other Definitions. . . . . . . . . . . . . . . . . . . . 20
Section 1.03 Incorporation by Reference of Trust Indenture Act. . . . 21
Section 1.04 Rules of Construction. . . . . . . . . . . . . . . . . . 21
ARTICLE 2
THE SENIOR NOTES
Section 2.01 Form and Dating. . . . . . . . . . . . . . . . . . . . . 22
Section 2.02 Execution and Authentication . . . . . . . . . . . . . . 22
Section 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . 23
Section 2.04 Paying Agent To Hold Money in Trust. . . . . . . . . . . 23
Section 2.05 Holder Lists . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.06 Transfer and Exchange. . . . . . . . . . . . . . . . . . 24
Section 2.07 Replacement Senior Notes . . . . . . . . . . . . . . . . 24
Section 2.08 Outstanding Senior Notes . . . . . . . . . . . . . . . . 25
Section 2.09 When Treasury Senior Notes Disregarded . . . . . . . . . 25
Section 2.10 Temporary Senior Notes . . . . . . . . . . . . . . . . . 25
Section 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . 26
Section 2.13 CUSIP Number . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.14 Global Securities. . . . . . . . . . . . . . . . . . . . 26
ARTICLE 3
REDEMPTION
Section 3.01 Notice to Trustee. . . . . . . . . . . . . . . . . . . . 27
Section 3.02 Selection of Senior Notes To Be Redeemed . . . . . . . . 27
Section 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . 28
Section 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . 28
Section 3.05 Deposit of Redemption Price. . . . . . . . . . . . . . . 29
Section 3.06 Senior Notes Redeemed in Part. . . . . . . . . . . . . . 29
(i)
ARTICLE 4
COVENANTS
Section 4.01 Payment of Senior Notes. . . . . . . . . . . . . . . . . 29
Section 4.02 Commission Reports . . . . . . . . . . . . . . . . . . . 29
Section 4.03 Compliance Certificate . . . . . . . . . . . . . . . . . 30
Section 4.04 Maintenance of Office or Agency. . . . . . . . . . . . . 31
Section 4.05 Limitation on Additional Indebtedness. . . . . . . . . . 31
Section 4.06 Limitation on Restricted Payments. . . . . . . . . . . . 32
Section 4.07 Limitation on Liens. . . . . . . . . . . . . . . . . . . 33
Section 4.08 Limitation on Transactions with Affiliates . . . . . . . 33
Section 4.09 Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries. . . . . . . . . . . . . . . . . 34
Section 4.10 Limitation on Certain Asset Sales. . . . . . . . . . . . 35
Section 4.11 Limitation on Capital Stock of Restricted Subsidiaries . 38
Section 4.12 Limitation on Restricted Subsidiary Debt and Preferred
Stock. . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.13 Limitation on Sale and Lease-Back Transactions . . . . . 40
Section 4.14 Change of Control. . . . . . . . . . . . . . . . . . . . 40
Section 4.15 Continued Existence. . . . . . . . . . . . . . . . . . . 42
Section 4.16 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 4.17 Stay, Extension and Usury Laws . . . . . . . . . . . . . 43
Section 4.18 Investment Company Act . . . . . . . . . . . . . . . . . 43
Section 4.19 Appointments to Fill Vacancies in Trustee's Office . . . 43
Section 4.20 Further Instruments and Acts . . . . . . . . . . . . . . 43
ARTICLE 5
SUCCESSORS
Section 5.01 When the Company May Merge, Etc. . . . . . . . . . . . . 43
Section 5.02 Successor Corporation Substituted. . . . . . . . . . . . 44
Section 5.03 Purchase Option on Change of Control . . . . . . . . . . 44
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. . . . . . . . . . . . . . . . . . . . 45
Section 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . 47
Section 6.04 Waiver of Past Defaults. . . . . . . . . . . . . . . . . 47
Section 6.05 Control by Majority. . . . . . . . . . . . . . . . . . . 47
Section 6.06 Limitation on Suits. . . . . . . . . . . . . . . . . . . 47
Section 6.07 Rights of Holders To Receive Payment . . . . . . . . . . 48
Section 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . 48
Section 6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . 48
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.11 Undertaking for Costs. . . . . . . . . . . . . . . . . . 49
(ii)
ARTICLE 7
THE TRUSTEE
Section 7.01 Duties of the Trustee. . . . . . . . . . . . . . . . . . 49
Section 7.02 Rights of the Trustee. . . . . . . . . . . . . . . . . . 51
Section 7.03 Individual Rights of the Trustee . . . . . . . . . . . . 51
Section 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . 52
Section 7.05 Notice of Defaults . . . . . . . . . . . . . . . . . . . 52
Section 7.06 Reports by the Trustee to Holders. . . . . . . . . . . . 52
Section 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . 52
Section 7.08 Replacement of the Trustee . . . . . . . . . . . . . . . 53
Section 7.09 Successor Trustee by Merger, Etc . . . . . . . . . . . . 54
Section 7.10 Eligibility, Disqualification. . . . . . . . . . . . . . 54
Section 7.11 Preferential Collection of Claims Against Company. . . . 55
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Termination of Company's Obligations . . . . . . . . . . 55
Section 8.02 Application of Trust Money . . . . . . . . . . . . . . . 58
Section 8.03 Repayment to Company . . . . . . . . . . . . . . . . . . 59
Section 8.04 Reinstatement. . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 9
AMENDMENTS
Section 9.01 Without the Consent of Holders . . . . . . . . . . . . . 59
Section 9.02 With the Consent of Holders. . . . . . . . . . . . . . . 60
Section 9.03 Compliance with the Trust Indenture Act. . . . . . . . . 61
Section 9.04 Revocation and Effect of Consents. . . . . . . . . . . . 61
Section 9.05 Notation on or Exchange of Senior Notes. . . . . . . . . 61
Section 9.06 Trustee Protected. . . . . . . . . . . . . . . . . . . . 62
ARTICLE 10
GENERAL PROVISIONS
Section 10.01 Trust Indenture Act Controls . . . . . . . . . . . . . . 62
Section 10.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 10.03 Communication by Holders With Other Holders. . . . . . . 63
Section 10.04 Certificate and Opinion as to Conditions Precedent . . . 63
Section 10.05 Statements Required in Certificate or Opinion. . . . . . 63
Section 10.06 Rules by Trustee and Agents. . . . . . . . . . . . . . . 64
Section 10.07 Legal Holidays . . . . . . . . . . . . . . . . . . . . . 64
Section 10.08 No Recourse Against Others . . . . . . . . . . . . . . . 64
Section 10.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . 64
Section 10.10 Other Provisions . . . . . . . . . . . . . . . . . . . . 64
(iii)
Section 10.11 Governing Law. . . . . . . . . . . . . . . . . . . . . . 65
Section 10.12 No Adverse Interpretation of Other Agreements. . . . . . 65
Section 10.13 Successors . . . . . . . . . . . . . . . . . . . . . . . 65
Section 10.14 Severability . . . . . . . . . . . . . . . . . . . . . . 65
Section 10.15 Table of Contents, Headings, Etc . . . . . . . . . . . . 66
(iv)
CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT SECTION INDENTURE SECTION
SECTION 310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . .7.08, 7.10, 10.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
SECTION 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
SECTION 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . .10.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . .10.03
SECTION 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1). . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2). . . . . . . . . . . . . . . . . . . . . . . .7.06
(c) . . . . . . . . . . . . . . . . . . . . . .7.06, 10.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
SECTION 314 (a) . . . . . . . . . . . . . . . . . . . 4.02, 4.03 10.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . .10.04
(c)(2). . . . . . . . . . . . . . . . . . . . . . . .10.04
(c)(3). . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . .10.05
(f) . . . .. . . . . . . . . . . . . . . . . . . . . .N.A.
SECTION 315 (a) . . . . . . . . . . . . . . . . . . . . . . . .7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . 7.05, 10.02
(c) . . . . . . . . . . . . . . . . . . . . . . . .7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . .7.01(c)
(e) . . . . . . .. . . . . . . . . . . . . . . . . . .6.11
SECTION 316 (a)(last sentence). . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(2)(B) . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6.02
SECTION 317 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
SECTION 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . .10.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . .10.01
N.A. means not applicable
--------------------------------
*This Cross-Reference Table is not part of the Indenture.
(v)
THIS INDENTURE, dated as of February 26, 1996, is between Telemundo Group,
Inc., a Delaware corporation (the "Company"), and Bank of Montreal Trust
Company, a New York banking corporation ("Trustee"). The Company has duly
authorized the creation of its 10 1/2% Senior Notes Due 2006 (the "Senior
Notes") and to provide therefor the Company has duly authorized the execution
and delivery of this Indenture. Each party agrees as follows for the benefit
of the other party and for the equal and ratable benefit of the holders from
time to time of the Senior Notes.
ARTICLE 1
DEFINITIONS
Section 1.01 DEFINITIONS.
"ACCRETED VALUE" as of any date (the "specified date") means, with
respect to each $1,000 face amount of Senior Notes, the following amount:
(a) if the specified date is one of the following dates (each an
"accrual date"), the amount set forth opposite such date below:
SEMI-ANNUAL ACCRUAL DATE ACCRETED VALUE
------------------------ --------------
February 26, 1996 $ 912.70
August 15, 1996 $ 924.75
February 15, 1997 $ 938.30
August 15, 1997 $ 952.57
February 15, 1998 $ 967.58
August 15, 1998 $ 983.37
February 15, 1999 $ 1000.00
(b) if the specified date occurs between two semi-annual accrual dates,
the sum of (i) the accreted value for the semi-annual accrual date
immediately preceding the specified date and (ii) an amount equal to the
product of (A) the accreted value for the immediately following semi-annual
accrual date less the accreted value for the immediately preceding semi-
annual accrual date and (B) a fraction, the numerator of which is the
number of days (not to exceed 180 days) from the immediately preceding
semi-annual accrual date to the specified date, using a 360-day year of
twelve 30-day months, and the denominator of which is 180.
"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.
"ACQUISITION" means the closing of the transactions pursuant to that
certain Agreement to Purchase NST Venture Interest and Capital Stock by and
among The Stockholders of Harriscope of Chicago, Inc. and National Subscription
Television of
Chicago, Inc. and Telemundo of Chicago, Inc. dated as of November 8, 1995, as
amended or supplemented to the date hereof.
"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. With respect to the Company, Affiliate will also include any
Permitted Holder or its Affiliates so long as such Permitted Holder or its
Affiliates own shares of the Capital Stock of the Company or would otherwise be
an Affiliate.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APOLLO" means collectively, Apollo Advisors, L.P., a Delaware limited
partnership, Lion Advisors, L.P., a Delaware limited partnership, Apollo
Investment Fund, L.P., a Delaware limited partnership, Apollo Investment Fund
II, L.P., a Delaware limited partnership, or any investment fund, investment
account or other entity whose investing manager, investment advisor or general
partner, or any principal thereof, is any of the foregoing entities or
individuals or any principal or Affiliate of any of them; provided, however,
that no entity or individual shall be deemed within the definition of Apollo
when that entity or individual ceases to be an Affiliate of any of the foregoing
entities or individuals or an investment fund, investment account or other
entity whose investing manager, investment advisor or general partner, or any
principal thereof, is any of the foregoing entities or individuals or any
principal or Affiliate of any of them.
"ASSET SALE" means the sale, issuance, conveyance, transfer, lease, or
other disposition (including without limitation, by way of merger, consolidation
or Sale and Lease-Back Transaction) (collectively, a "transfer"), directly or
indirectly, in any single transaction or series of related transactions
involving assets with a fair market value in excess of $1,000,000 (other than to
the Company or any of its Restricted Subsidiaries) of (a) any Capital Stock of
or other equity interest in any Restricted Subsidiary of the Company, (b) all or
substantially all of the assets of any division or line of business of the
Company or of any Restricted Subsidiary thereof, or (c) any other properties of
the Company or any Restricted Subsidiary, other than in the ordinary course of
business; provided that Asset Sales shall not include (i) transfers to the
Company or to a Restricted Subsidiary or to any other Person if after giving
effect to such sale, lease, conveyance, transfer or other disposition such other
Person becomes a Restricted Subsidiary; (ii) transfers governed by Section 5.01
of this Indenture; (iii) sales of Permitted Investments permitted under clause
(b) of the definition of "Permitted Investments;" and (iv) the sale, issuance,
conveyance, transfer, lease, or other disposition of an Investment described in
clause (c) of the definition of "Restricted Payment," provided that such
Investment was permitted by the terms of this Indenture, unless such disposition
constitutes the transfer of all of the Capital Stock of a Wholly-Owned
Restricted Subsidiary.
2
"ASSET SALE PROCEEDS" means, with respect to any Asset Sale, (a) cash
received by the Company or any Restricted Subsidiary from such Asset Sale, after
(i) provision for all income or other taxes measured by or resulting from such
Asset Sale, (ii) payment of all brokerage commissions, underwriting, accounting,
legal and other fees and expenses related to such Asset Sale, (iii) provision
for minority interest holders in any Restricted Subsidiary as a result of such
Asset Sale and (iv) deduction of appropriate amounts to be provided by the
Company or a Restricted Subsidiary as a reserve, in accordance with GAAP,
against any liabilities associated with the assets sold or disposed of in such
Asset Sale and retained by the Company or a Restricted Subsidiary after such
Asset Sale, including, without limitation, pension and other post employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with the assets sold or disposed of
in such Asset Sale, and (b) promissory notes and other noncash consideration
received by the Company or any Restricted Subsidiary from such Asset Sale or
other disposition upon the liquidation or conversion of such notes or non-cash
consideration into cash, provided however that any Asset Sale Proceeds with
respect to the assets of Telemundo News Network, Inc. shall be after deduction
for amounts actually contributed to TeleNoticias del Mundo, L.P. by the Company
or a Restricted Subsidiary.
"ASSET SWAP" means an asset sale by the Company or any Restricted
Subsidiary in exchange for properties or assets that will be used in the Primary
Business of the Company and its Restricted Subsidiaries.
"ATTRIBUTABLE INDEBTEDNESS" under this Indenture in respect of a Sale
and Lease-Back Transaction means, as at the time of determination, the greater
of (i) the fair value of the property subject to such arrangement (as determined
by the Board of Directors) and (ii) the present value (discounted at the
interest rate borne by the Senior Notes, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale and Lease-Back Transaction (including any period for
which such lease has been extended).
"AVAILABLE ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
the aggregate Asset Sale Proceeds from such Asset Sales that have not been
applied in accordance with clauses (a) or (b), and which have not yet been the
basis for an Excess Proceeds Offer in accordance with clause (c), of the second
paragraph of Section 4.10 of this Indenture.
"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 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.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or
any authorized committee of the Board of Directors.
3
"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.
"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.
"CASH EQUIVALENTS" means (a) 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; (b) 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; (c) commercial paper of an issuer rated at least
A-1 by S&P or P-1 by Xxxxx'x, 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 (d) money market accounts or funds with or issued
by Qualified Issuers.
A "CHANGE OF CONTROL" of the Company will be deemed to have occurred
at such time as (i) any Person (including a Person's Affiliates and associates),
other than a Permitted Holder, becomes the beneficial owner (as defined under
Rule 13d-3 or any successor rule or regulation promulgated under the Exchange
Act) of 50% or more of the total voting or economic power of the Company's
Common Stock, (ii) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the Company
has been approved by 66-2/3% of the directors then still in office who either
were directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute a
majority of the Board of Directors of the Company; or (iii) so long as
$10,000,000 principal amount of Old Notes remains outstanding, any "change in
control" occurs (as defined at such time) with respect to the Old Notes.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" of any Person means all Capital Stock of such Person
that is generally entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"COMMON STOCK OFFERING" means a public offering by the Company of
shares of its Common Stock (however designated and whether voting or non-voting)
and any and all rights, warrants or options to acquire such Common Stock.
"COMPANY" means the party named as such above until a successor
replaces it in accordance with Article 5 and thereafter means the successor.
4
"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 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 this Article
1), 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).
"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 $10,000,000 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 $10,000,000, (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 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 Sale 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.
"CONSOLIDATED NET WORTH" means, with respect to any Person, the equity
of the common and preferred stockholders of such Person and its Subsidiaries
(excluding any redeemable preferred stock and any cumulated foreign currency
translation adjustment), as determined on a consolidated basis and in accordance
with GAAP.
"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,
5
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 4.05 of this Indenture; provided that for purposes of the
definition of "Permitted Indebtedness," no such increase may result in the
principal amount of Indebtedness of the Company under the Credit Facilities
exceeding the amount permitted by clause (a) of the definition of "Permitted
Indebtedness."
"CUMULATIVE CONSOLIDATED INTEREST EXPENSE" means with respect to any
Person, as of any date of determination, Consolidated Interest Expense from the
Issue Date to the end of the Company's most recently ended full fiscal quarter
prior to such date, taken as a single accounting period.
"CUMULATIVE EBITDA" means with respect to any Person, as of any date
of determination, EBITDA from the Issue Date to the end of the Company's most
recently ended full fiscal quarter prior to such date, taken as a single
accounting period.
"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.
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default (as defined in Section 6.01 of this
Indenture).
"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 Senior Notes, 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 Senior Notes.
"EBITDA" means, for any Person, for any period for which it is to be
determined, an amount equal to the sum of, without duplication, (a) Consolidated
Net Income for such period, plus (b) 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
6
any provision for taxes utilized in computing net loss under clause (a) hereof,
plus (c) 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 (d) depreciation and amortization for such period
on a consolidated basis, plus (e) 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.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"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.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"GUARANTEE" means 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 collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"HARRISCOPE" means Harriscope of Chicago, Inc., and any Wholly-Owned
Restricted Subsidiary of Harriscope of Chicago, Inc.
"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); provided, however, that a change in GAAP that
results in an obligation of such Person that exists at such time becoming
Indebtedness shall not be deemed an incurrence of such Indebtedness.
"INDEBTEDNESS" means, with respect to any Person, at any date of
determination (without duplication), (a) all indebtedness of such Person for
borrowed money; (b) all obligations of such Person evidenced by bonds,
debentures, notes or other similar
7
instruments; (c) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with respect
thereto); (d) 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; (e) all
obligations of such Person as lessee under Capitalized Lease Obligations and all
Purchase Money Indebtedness; (f) 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 (i) the fair market value of such asset at such date of determination and
(ii) the principal amount of such Indebtedness; (g) all Indebtedness of other
Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed
by such Person; (h) to the extent not otherwise included in this definition, net
obligations under Currency Agreements and Interest Rate Agreements; and (i) all
Disqualified Capital 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.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"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.
"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.
"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
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
8
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.
"ISSUE DATE" means the date the Senior Notes are first issued by the
Company and authenticated by the Trustee under this Indenture.
"JOINT VENTURE AGREEMENT" means the Partnership Agreement of Video 44,
dated as of November 8, 1995 by and among Essaness Theatres Corporation,
Telemundo of Chicago, Inc. and Harriscope of Chicago, Inc., as in effect on the
date of this Indenture, without regard to any amendments or supplements thereto.
"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 Obligation, conditional sales, or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"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 such agreement 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),
provided that any amendments, renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplements or modifications do not increase the
principal amount of the Indebtedness thereunder in excess of $20,000,000.
"LOCAL MARKETING AGREEMENT" means a local marketing arrangement, sale
agreement, time brokerage agreement, 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): (a) obtains the
right to sell at least a majority of the advertising inventory of a television
station on behalf of a third party, (b) purchases at least a majority of the air
time of a television station to exhibit programming and sell advertising time,
(c) manages the selling operations of a television station with respect to at
least a majority of the advertising inventory of such station, (d) manages the
acquisition of programming for a television station, (e) acts as a program
consultant for a television station, or (f) manages the operation of a
television station generally.
9
"MATURITY" means the date on which the principal of a Senior Note
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.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"NET INCOME" means, with respect to any Person for any period, the net
income (loss) of such Person determined in accordance with GAAP
"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 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).
"OFFICER" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Chief Accounting
Officer, any Executive Vice President, Senior Vice President or Vice President,
the Treasurer, any other executive officer, the Secretary and any Assistant
Treasurer or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two officers,
one of whom must be the principal executive officer, principal financial
officer, the treasurer or principal accounting officer of the Company.
"OLD NOTE INDENTURE" means the Indenture, dated as of December 30,
1994, between the Company and Bankers Trust Company, as Trustee, pursuant to
which the Old Notes were issued, as amended or supplemented from time to time.
"OLD NOTES" means the 10.25% Senior Notes due December 30, 2001 of the
Company as such may be amended from time to time.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee except to the extent otherwise indicated
in this Indenture.
"PERMITTED HOLDERS" means Apollo, TLMD, Bastion Capital Fund L.P or
Xxxxxxxxx Partners or any of their respective Affiliates.
"PERMITTED INDEBTEDNESS" means, without duplication:
10
(a) Indebtedness of the Company or, to the extent permitted in clause
(j) of Section 4.12 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 $50,000,000;
(b) Indebtedness of the Company evidenced by or arising under the
Senior Notes and this Indenture;
(c) Indebtedness of the Company or any Restricted Subsidiary remaining
outstanding immediately after the Issue Date after giving effect to the
consummation of the transactions described in the Prospectus under "Use of
Proceeds";
(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
Senior Notes and any subsequent issuance or transfer of Capital Stock of a
Restricted Subsidiary of the Company (the "Creditor Subsidiary") that
results in such 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, 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 (x) has an Average Life to Stated Maturity equal to or greater
than the remaining Average Life to Maturity of the Senior Notes and (y)
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 4.12 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 $15,000,000 at any time outstanding;
11
(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 4.05 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 the first paragraph of Section 4.05 of this
Indenture and Indebtedness referred to in clauses (b) through (d) and (f)
through (i) of this definition, 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
Senior Notes, 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 Senior Notes no more favorably than the
Indebtedness being refinanced is ranked in right of payment to the Senior
Notes;
(l) Indebtedness incurred or incurrable, to the extent permitted
pursuant to Section 4.12 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 $10,000,000 at any one time
outstanding;
(m) Indebtedness incurred or incurrable by Telemundo of Chicago, Inc.
and Harriscope 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 $25,000,000 at any one time outstanding;
(o) Indebtedness of a Restricted Subsidiary for refinancing of certain
Indebtedness as permitted under clause (i) of Section 4.12 of this
Indenture;
12
(p) 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; and
(q) Indebtedness, to the extent permitted pursuant to Section 4.12 of
this Indenture, of any Restricted Subsidiary pursuant to a Local Marketing
Agreement.
"PERMITTED INVESTMENTS" means, for any Person, Investments made on or
after the date of this Indenture consisting of:
(a) Investments by the Company, or by a Restricted Subsidiary thereof,
in the Company or a Restricted Subsidiary:
(b) Temporary Cash Investments;
(c) Investments in Property used in the ordinary course of business;
(d) 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 (i) such Person becomes a
Restricted Subsidiary of the Company, (ii) 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 (iii) such business or assets are owned by
the Company or a Restricted Subsidiary;
(e) 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 Section 4.10 of this Indenture;
(f) Investments pursuant to any agreement or obligation of the Company
or a Restricted Subsidiary, in effect on the Issue Date, which requires the
Company to make such Investments;
(g) Investments made after the Issue Date in the Primary Business of
the Company not to exceed $25,000,000 at any one time outstanding;
(h) Investments made after the Issue Date in majority-owned
Subsidiaries of the Company in the Primary Business of the Company not to
exceed $10,000,000 at any one time outstanding;
13
(i) 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;
(j) Investments received in settlement of obligations incurred in the
ordinary course of 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;
(k) 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
(l) Investments in any Person with which the Company or any of the
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.
"PERMITTED LIENS" means, without duplication:
(a) Liens securing Indebtedness incurred under the Credit Facilities
incurred in accordance with Section 4.05 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 date of this Indenture;
(e) Liens securing Capitalized Lease Obligations permitted to be
incurred under Section 4.05 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
14
proceedings and for which adequate reserves, if 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 give
rise to an Event of
15
Default and that do not interfere with the ordinary course 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 4.05 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 programing agreements);
and
(u) Liens in connection with Local Marketing Agreements related to the
Primary Business.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"PLAN OF LIQUIDATION" means a plan (including by operation of law)
that provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously) (a) the sale,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company otherwise than as an entirety or substantially as an entirety and
(b) the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and all or substantially all of the
remaining assets of the Company to holders of Capital Stock of the Company.
"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
16
liquidation proceeds of such Person over the holders of other Capital Stock
issued by such Person.
"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.
"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.
"PROSPECTUS" means the Company's final prospectus dated February 21,
1996 in respect of the public offering of the Senior Notes.
"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.
"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 Xxxxx'x, or carrying an equivalent rating by a nationally recognized rating
agency if both of the two named rating agencies cease publishing ratings of
investments.
"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 between 1 and 0) then
applicable to the issuer of such Disqualified Capital Stock.
"REDEMPTION DATE", when used with respect to any of the Senior Notes
to be redeemed, means the date fixed by the Company for such redemption pursuant
to this Indenture and the Senior Notes.
"REDEMPTION PRICE", when used with respect to any of the Senior Notes
to be redeemed, means the price fixed for such redemption pursuant to this
Indenture and the Senior Notes.
"RESTRICTED PAYMENT" means, without duplication, any of the following:
(a) 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 (x) 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 (y) in the
17
case of Restricted Subsidiaries of the Company, dividends or distributions
payable to the Company or to a Wholly-Owned Subsidiary of the Company), (b) 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), (c) the making of any Investment or
guarantee of any Investment in any Person other than a Permitted Investment, (d)
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 (e) forgiveness of any
Indebtedness (other than Indebtedness of a Wholly-Owned Restricted 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.
"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 Issue Date, including but not limited to Telemundo of
Chicago, Inc. The Board of Directors of the Company may designate any
Unrestricted 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 4.05 of this Indenture.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-
Xxxx, Inc.
"SALE AND LEASE-BACK TRANSACTION" means any arrangement with any
Person providing for the leasing by the Company or any Restricted Subsidiary of
the Company of any real or tangible personal property, which property has been
or is to be sold or transferred by the Company or such Restricted Subsidiary to
such Person in contemplation of such leasing.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Company that ranks
PARI PASSU in right of payment with the Senior Notes.
"SENIOR NOTES" means the Senior Notes issued under this Indenture.
"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).
"SUBSIDIARY" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or
18
acquired, (a) 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 (b) in
the case of a partnership, 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.
"TEMPORARY CASH INVESTMENTS" means (a) 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; (b) 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; (c) 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 Xxxxx'x; (d) repurchase obligations
with a term of not more than seven (7) days for underlying securities of the
type described in clause (a) above entered into with any Qualified Issuer; (e)
deposits available for withdrawal on demand with a Qualified Issuer; (f)
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 (a), (b) and (c); and (g) foreign equivalents of the
Investments described in clauses (a), (b) and (e) above, provided that such
foreign equivalents shall be permitted by the Company or a Restricted Subsidiary
only to the extent that such Person holds such foreign equivalents in the
ordinary course of its business and in the currency of the country where such
Person conducts its business.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of execution of this
Indenture, except as provided in Section 9.03 of this Indenture.
"TLMD" means TLMD Partners II, L.L.C., a Delaware limited liability
company, and its Affiliates, members (including voting committee members),
investing managers and investment advisors, or any investment fund, investment
account or other entity whose investing manager, investment advisor or general
partner, or any principal thereof, is any of the foregoing entities or
individuals or any principal or Affiliate of any of them; provided, however,
that no entity or individual shall be deemed within the definition of TLMD when
that entity or individual ceases to be an Affiliate of any of the foregoing
entities or individuals or an investment fund, investment account or other
entity whose investing manager, investment advisor or general partner, or any
principal thereof, is any of the foregoing entities or individuals or any
principal or Affiliate of any of them.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
19
"TRUST OFFICER" means any officer within the Corporate Trust
Department (or any successor department) of the Trustee, including any vice
president, assistant vice president or assistant secretary; any other officer of
the Trustee customarily performing functions similar to those performed by any
officer of the Corporate Trust Department; and any other officer of the Trustee
to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of an Unrestricted
Subsidiary and (b) any Subsidiary of the Company which is classified after the
Issue 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 Issue Date may be so classified as an Unrestricted Subsidiary only if such
classification is in compliance with Section 4.06 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.
"VIDEO 44" means Video 44, an Illinois general partnership, as it may
be constituted from time to time.
"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 OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- -----------
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . 4.08
"Asset Sale Trigger Date" . . . . . . . . . . . . . . . . . . 4.10
"Bankruptcy Law". . . . . . . . . . . . . . . . . . . . . . . 6.01
"Business Day". . . . . . . . . . . . . . . . . . . . . . . . 10.07
"Change of Control Offer" . . . . . . . . . . . . . . . . . . 4.14
"Change of Control Payment Date". . . . . . . . . . . . . . . 4.14
"Change of Control Purchase Price". . . . . . . . . . . . . . 4.14
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Event of Default". . . . . . . . . . . . . . . . . . . . . . 6.01
"Excess Proceeds Offer" . . . . . . . . . . . . . . . . . . . 4.10
"Excess Proceeds Offer Payment Date". . . . . . . . . . . . . 4.10
"Excess Proceeds Offer Termination Date". . . . . . . . . . . 4.10
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . 10.07
"New York Office" . . . . . . . . . . . . . . . . . . . . . . 2.03
"Paying Agent". . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"United States Government Obligations". . . . . . . . . . . . 8.01
20
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the Commission;
"indenture securities" means the Senior Notes;
"indenture security holder" means a holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Senior Notes means the Company or any other obligor
on the Senior Notes.
All other terms in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
Section 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) the male, female and neuter genders include one another;
(f) provisions apply to successive events and transactions; and
(g) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other Subdivision.
21
ARTICLE 2
THE SENIOR NOTES
Section 2.01 FORM AND DATING.
The Senior Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form set forth in Exhibit A,
which is hereby incorporated in and expressly made a part of this Indenture,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture. The Senior Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). The Company shall furnish any such legend not contained in
Exhibit A to the Trustee in writing. Each Senior Note shall be dated the date
of its authentication. The terms of the Senior Notes set forth in Exhibit A are
part of the terms of this Indenture.
Section 2.02 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Senior Notes for the Company by manual or
facsimile signature. The Company's seal shall be impressed, affixed, imprinted
or reproduced on the Senior Notes.
If an Officer whose signature is on a Senior Note no longer holds that
office at the time the Senior Note is authenticated, the Senior Note shall
nevertheless be valid.
A Senior Note shall not be valid until an authorized signatory of the
Trustee manually signs the Certificate of Authentication on the Senior Note.
The signature shall be conclusive evidence that the Senior Note has been
authenticated under this Indenture.
Upon a written order of the Company signed by two Officers of the
Company, the Trustee shall authenticate and deliver Senior Notes for original
issue up to the aggregate principal amount at Stated Maturity of $192,000,000.
Such order shall specify the amount of the Senior Notes to be authenticated and
the date on which the original issue of Senior Notes is to be authenticated and
shall further provide instructions concerning registration, amounts for each
holder and delivery. The aggregate principal amount of Senior Notes outstanding
at any time may not exceed that amount except as provided in Section 2.07 of
this Indenture.
The Senior Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 or any integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Senior Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Senior Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same right as an Agent for service of notices and demands.
22
Section 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain or cause to be maintained in the Borough of
Manhattan, New York, New York (the "New York Office"), and in such other
locations as it shall determine, an office or agency: (a) where Senior Notes may
be presented for registration of transfer or for exchange (the "Registrar"); (b)
where Senior Notes may be presented for payment (the "Paying Agent"); and (c)
where notices and demand to or upon the Company in respect of Senior Notes and
this Indenture may be served by the holders of Senior Notes. The Registrar
shall keep a register of the Senior Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent, Registrar or co-registrar without prior
notice. The Company shall notify the Trustee of the name and address of any
Agent not a party to this Indenture and shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a party to this
Indenture. The agreement shall implement the provisions of this Indenture and
the terms of the TIA that relate to such Agent. The Company or any of its
domestically incorporated Wholly-Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar, except that for purposes of Articles 3 and 8 and
Sections 4.10 and 4.14 of this Indenture, neither the Company nor any of its
Subsidiaries shall act as Paying Agent. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such, and the Trustee shall initially act as such. The Trustee shall cause the
New York Office to be maintained as long as it acts as Registrar or Paying
Agent.
Section 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
On or prior to each due date of the principal and interest on any
Senior Note, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal and interest when so becoming due. The Company shall require
each Paying Agent (other than the Trustee, who hereby so agrees), to agree in
writing that the Paying Agent will hold in trust for the benefit of holders of
Senior Notes or the Trustee all money held by the Paying Agent for the payment
of principal or interest on the Senior Notes, and will notify the Trustee of any
default by the Company in respect of making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any funds disbursed by
the Paying Agent. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary of the Company) shall have no further liability
for the money. If the Company or a Subsidiary of the Company acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the holders of Senior Notes all money held by it as Paying Agent.
Section 2.05 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
holders of Senior Notes. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee, in writing at least five Business Days before each
interest payment date and at such other times as the Trustee may
23
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of holders of Senior Notes.
Section 2.06 TRANSFER AND EXCHANGE.
The Senior Notes shall be issued in registered form and shall be
transferable only upon surrender of a Senior Note for registration of transfer.
When a Senior Note is presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange it for an equal principal amount
of Senior Notes of other denominations, the Registrar shall register the
transfer or make the exchange if its requirements for such transactions are met;
provided, however, that the Senior Notes surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Registrar or co-registrar,
duly executed by the holder or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall issue and the
Trustee shall authenticate Senior Notes at the Registrar's request. The Company
may require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with any transfer or exchange pursuant to
this Section 2.06 (other than any such transfer, tax assessment or other
governmental charge payable upon exchanges pursuant to Sections 2.10, 3.06 or
9.05 of this Indenture, which the Company shall pay).
The Company shall not be required (a) to issue, register the transfer
of or exchange Senior Notes during a period beginning at the opening of business
15 days before the day of any selection of Senior Notes for redemption under
Section 3.02 of this Indenture and ending at the close of business on the day of
selection, (b) to register the transfer of or exchange any Senior Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Senior Note being redeemed in part, (c) to register the transfer of or
exchange of any Senior Note for a period beginning 15 days before the mailing of
a notice of an offer to repurchase pursuant to Section 4.10 or Section 4.14 of
this Indenture and ending at the close of business on the day of such mailing,
or (d) to register the transfer of or exchange of any Senior Note 15 days before
an interest payment date.
Prior to the due presentation for registration of transfer of any
Senior Note, the Company, the Trustee, and each Agent may deem and treat the
person in whose name a Senior Note is registered as the absolute owner of such
Senior Note for the purpose of receiving payment of principal of and interest on
such Senior Note and for all other purposes whatsoever, whether or not such
Senior Note is overdue, and neither the Company, the Trustee nor any Agent shall
be affected by notice to the contrary.
All Senior Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Senior Notes surrendered upon such
transfer or exchange.
Section 2.07 REPLACEMENT SENIOR NOTES.
If a mutilated Senior Note is surrendered to the Trustee or the
Registrar or a holder of a Senior Note submits an affidavit or other evidence
satisfactory to the Xxxxxxxxx
00
and the Company that the Senior Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Senior Note if the Trustee's requirements are met. If required by the Trustee
or the Company as a condition of receiving a replacement Senior Note, the holder
of Senior Note must provide an indemnity bond sufficient, in the judgment of
both the Company and the Trustee, to fully protect the Company, the Trustee, any
Agent and any authenticating agent from any loss which any of them may suffer if
the Senior Note is replaced. The Company and the Trustee may charge the
relevant holder for their expenses in replacing any Senior Note.
Every replacement Senior Note is an additional obligation of the
Company.
Section 2.08 OUTSTANDING SENIOR NOTES.
The Senior Notes outstanding at any time are all the Senior Notes
properly authenticated by the Trustee except for those cancelled by the Trustee,
those delivered to it for cancellation, and those described in this Section 2.08
as not outstanding.
If a Senior Note is replaced pursuant to Section 2.07 of this
Indenture, it ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to them that the replaced Senior Note is held by a
bona fide purchaser.
If Senior Notes are considered paid under Section 4.01 of this
Indenture, they cease to be outstanding and interest on them ceases to accrue.
A Senior Note does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Senior Note.
Section 2.09 WHEN TREASURY SENIOR NOTES DISREGARDED.
In determining whether the holders of the required principal amount of
Senior Notes have concurred in any direction, waiver or consent or any
amendment, modification or other change to this Indenture, Senior Notes owned by
the Company or by an Affiliate of the Company shall be disregarded and deemed
not to be outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent
or any amendment, modification or other change to this Indenture, only Senior
Notes which the Trustee knows are so owned shall be so disregarded. Senior
Notes so owned which have been pledged in good faith shall not be disregarded if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to the Senior Notes and that the pledgee is not the
Company or an Affiliate of the Company.
Section 2.10 TEMPORARY SENIOR NOTES.
Until definitive Senior Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Senior Notes. Temporary
Senior Notes shall be substantially in the form of definitive Senior Notes but
may have variations that the Company considers appropriate for temporary Senior
Notes. If temporary Senior Notes are issued, the Company will cause definitive
Senior Notes to be prepared without unreasonable delay.
25
After the preparation of definitive Senior Notes, the temporary Senior Notes
shall be exchangeable for definitive Senior Notes upon surrender of the
temporary Senior Notes at any office or agency of the Company designated
pursuant to Section 2.03 of this Indenture without charge to the holder. Upon
surrender for cancellation of any one or more temporary Senior Notes the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Senior Notes of authorized
denominations. Until so exchanged, the temporary Senior Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Senior Notes.
Section 2.11 CANCELLATION.
The Company at any time may deliver Senior Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Senior Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Senior Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation.
All cancelled Senior Notes held by the Trustee shall be disposed of in
accordance with the Trustee's standard procedures, unless the Company directs
the Trustee to deliver cancelled Senior Notes to the Company. The Company may
not issue new Senior Notes to replace Senior Notes that it has paid or that have
been delivered to the Trustee for cancellation.
Section 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Senior Notes,
the Company shall pay such defaulted interest (plus interest on such defaulted
interest to the extent lawful) in any lawful manner. The Company may pay such
defaulted interest, plus any such interest payable on it, to the persons who are
holders on a subsequent special record date. The Company shall fix any such
defaulted special record date and special payment date to the reasonable
satisfaction of the Trustee. At least 15 days before any such record date, the
Company shall mail to holders of Senior Notes a notice that states the record
date, payment date and amount of such defaulted interest to be paid.
Section 2.13 CUSIP NUMBER.
The Company in issuing the Senior Notes may use a "CUSIP" number, and
if so, such CUSIP number shall be included in notices of redemption or exchange
as a convenience to holders of Senior Notes; provided, however, that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Senior Notes and
that reliance may be placed only on the other identification numbers printed on
the Senior Notes. The Company will promptly notify the Trustee of any change in
the CUSIP number.
Section 2.14 GLOBAL SECURITIES.
The Company may issue some or all of the Senior Notes in temporary or
permanent global form. The Company may issue a global Senior Note only to a
depository. A depository may transfer a global Senior Note only to its nominee
or to a successor
26
depository or the nominee of such depository and be delivered to the Trustee as
custodian for such depository. A global Senior Note shall represent the amount
of Senior Notes specified in the global Senior Note. A global Senior Note may
have variations that the depository requires or that the Company considers
appropriate for such a security.
Beneficial owners of a global Senior Note are subject to the rules of
the depository as in effect from time to time.
The Company, the Trustee and the Agents shall not be responsible for
any acts or omissions of a depository, for any depository records of beneficial
ownership interests or for any transactions between the depository and
beneficial owners.
ARTICLE 3
REDEMPTION
Section 3.01 NOTICE TO TRUSTEE.
If the Company elects to redeem Senior Notes pursuant to paragraph 5
of the Senior Notes, it shall notify the Trustee at least 15 days before notice
of the Redemption Date is to be mailed to holders of the Senior Notes, in
writing of the Redemption Date (unless a shorter notice period shall be
satisfactory to the Trustee). Such notice shall be accompanied by an Officers'
Certificate that the Company has elected to redeem Senior Notes pursuant to
paragraph 5(a) or 5(b) of the Senior Notes, as the case may be, the date notice
of redemption is to be mailed to holders of the Senior Notes, the Redemption
Date, the aggregate principal amount of the Senior Notes to be redeemed, the
Redemption Price for such Senior Notes, the amount of accrued and unpaid
interest on such Senior Notes as of the Redemption Date and the manner in which
Senior Notes are to be selected for redemption if less than all outstanding
Senior Notes are to be redeemed and an Opinion of Counsel from the Company to
the effect that such redemption will comply with the conditions herein.
The Company will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption.
Section 3.02 SELECTION OF SENIOR NOTES TO BE REDEEMED.
If less than all of the Senior Notes are to be redeemed, the Trustee
shall select the Senior Notes to be redeemed by lot or by any other method that
complies with applicable legal and securities exchange requirements, if any, and
that the Trustee considers fair and appropriate and in accordance with methods
generally used at the time of selection by fiduciaries in similar circumstances.
The Trustee shall make the selection from Senior Notes outstanding not
previously called for redemption. The Trustee may select for redemption a
portion of the principal of Senior Notes that have denominations larger than
$1,000. Senior Notes and portions thereof selected by the Trustee will be
redeemed in the amount of $1,000 or whole multiples of $1,000. Provisions of
this Indenture that apply to Senior Notes called for redemption also apply to
portions of Senior Notes called for redemption. The Trustee
27
shall notify the Company promptly of the Senior Notes or portions of
Senior Notes to be called for redemption.
Section 3.03 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption to each holder whose Senior Notes
are to be redeemed.
The notice shall identify the Senior Notes to be redeemed and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if any Senior Note is being redeemed in part, the portion of the
principal amount of such Senior Note to be redeemed and that, after the
Redemption Date, upon surrender of such Senior Note, a new Senior Note or Senior
Notes in principal amount equal to the unredeemed portion will be issued;
(d) the name and address of the Paying Agent;
(e) that Senior Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(f) that interest on Senior Notes called for redemption and for which
funds have been set apart for payment ceases to accrue on and after the
Redemption Date (unless the Company defaults in the payment of the Redemption
Price or the Paying Agent is prohibited from making such payment pursuant to the
terms of this Indenture);
(g) the paragraph of the Senior Notes and the section of this
Indenture pursuant to which the Senior Notes are being redeemed; and
(h) the aggregate principal amount of Senior Notes that are being
redeemed.
At the Company's request, the Trustee shall give notice of redemption
in the Company's name and at its expense. In such event, the Company shall
provide the Trustee with the information required by this Section 3.03.
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Senior Notes called for
redemption become due and payable on the Redemption Date at the Redemption Price
set forth in the notice, plus accrued and unpaid interest. Upon surrender to
the Trustee or the Paying Agent, such Senior Notes shall be paid at the
Redemption Price stated in the notice, plus accrued and unpaid interest to the
Redemption Date, provided that if the Redemption Date is subsequent to a record
date with respect to any interest payment date specified in the Senior
28
Notes and on or prior to such interest payment date, then any accrued and unpaid
interest will be paid to the Person in whose name the Senior Note is registered
at the close of business on such record date. Failure to give notice or any
defect in the notice to any holder of Senior Notes shall not affect the validity
of the notice to any other holder.
Section 3.05 DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent money sufficient to pay the Redemption Price of and accrued and
unpaid interest on all Senior Notes to be redeemed on that date (other than
Senior Notes or portions thereof called for redemption on that date that have
been delivered by the Company to the Trustee for cancellation). The Trustee or
the Paying Agent shall return to the Company any money not required for that
purpose.
Section 3.06 SENIOR NOTES REDEEMED IN PART.
Upon surrender of a Senior Note that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the holder of a Senior Note
at the expense of the Company a new Senior Note equal in principal amount to the
unredeemed portion of the Senior Note surrendered.
ARTICLE 4
COVENANTS
Section 4.01 PAYMENT OF SENIOR NOTES.
The Company shall promptly pay the principal of and interest on the
Senior Notes on the dates and in the manner provided in the Senior Notes and in
this Indenture. Principal and interest shall be considered paid on the date due
if the Paying Agent holds as of 1:00 p.m. Eastern Time on that date money
designated for and sufficient to pay all principal and interest then due.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on (a) overdue principal, at the rate
borne by Senior Notes, compounded semiannually; and (b) overdue installments of
interest (without regard to any applicable grace period) at the same rate,
compounded semiannually, to the extent lawful.
Section 4.02 COMMISSION REPORTS.
So long as any Senior Note 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 mail or promptly cause the Trustee to mail to the holders
of the Senior Notes at their addresses as set forth in the register of the
Senior Notes, copies of the periodic reports and of the information, documents
and other reports (without exhibits, unless requested in
29
writing by any such holder) which the Company is required to file with
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
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
Senior Notes at their addresses as set forth in the register of Senior Notes.
The Company shall also comply with the other provisions of TIA Section 314(a).
Section 4.03 COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 60 days after the end
of the first three fiscal quarters and within 105 days after the end of each
fiscal year of the Company, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
period has been made under the supervision of the signing Officers with a view
to determining whether the Company has fully performed its obligations under
this Indenture and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms and conditions hereof (or, if any Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and the status of each), and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest on the Senior Notes are
prohibited.
The Company shall, so long as any of the Senior Notes are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or Event of Default
and the status of each.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, at the time the Officers'
Certificate described in the second preceding paragraph is filed with respect to
any fiscal year end of the Company, the Company also shall file with the Trustee
a letter or statement of the independent accountants who shall have certified
the financial statements of the Company for its preceding fiscal year in
connection with the annual report of the Company to its stockholders for such
year to the effect that, in making the examination necessary for certification
of such financial statements, nothing came to their attention that would lead
them to believe that the Company has violated any of the terms or conditions
contained in Sections 4.05, 4.06 and 4.12 of this Indenture, which Default
remains uncured at the date of such letter or statement or, if they shall have
obtained knowledge of any such uncured Default, specifying in such letter or
statement such Default or Defaults and the nature thereof, it being understood
that such accountants shall not be liable directly or indirectly for failure to
obtain knowledge of any such Default or Defaults and that their examination was
not directed primarily toward obtaining knowledge of such noncompliance.
30
Section 4.04 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain or cause to be maintained the office or
agency required under Section 2.03 of this Indenture. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency not maintained by the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Senior Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designation;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain or cause to be maintained a
New York Office for such purpose.
Section 4.05 LIMITATION ON ADDITIONAL INDEBTEDNESS.
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 Issue 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 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.
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 Senior Notes that has a maturity or mandatory sinking fund
payment prior to the Stated Maturity of the Senior Notes.
31
Section 4.06 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 the first paragraph of Section 4.05 of this
Indenture; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue 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 Issue 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 Issue Date, in any Person resulting from payments of interest on debt,
dividends, repayments of 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 4.06 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
32
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 (i) of this
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 this Section 4.06 were 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.
Section 4.07 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 and Liens created by
Section 7.07 of this Indenture) 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 Senior Notes, then the Senior Notes
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 Senior Notes, then the Senior
Notes are secured prior to the obligations so secured, and such Lien shall be
subordinated to the Lien granted to the holders of the Senior Notes to the same
extent as such subordinated Indebtedness is subordinated to the Senior Notes
until such time as such obligation is no longer secured by a Lien.
Section 4.08 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 any
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 Issue 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 $2,500,000, the Company must
obtain a resolution of the Board of Directors (including a majority of the
disinterested directors) certifying that, in their
33
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 $5,000,000, 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.
The foregoing provisions will not apply to (i) any Restricted Payment
that is not prohibited by Section 4.06 of this Indenture; or (ii) any transac-
tion, 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.
Section 4.09 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 (a)(i) 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 (ii) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary, (b) make loans or advances to the Company or any other Restricted
Subsidiary, or (c) 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:
(i) any agreement existing on the Issue Date, including the Loan and
Security Agreement, this Indenture and the Old Note Indenture (if Old Notes
are still outstanding), as in effect on the Issue Date;
(ii) 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 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;
(iii) agreements relating to an acquisition of Property, provided
that such encumbrances or restrictions relate solely to the Property so
acquired;
(iv) agreements relating to Indebtedness incurred to refinance
Indebtedness set forth in preceding clauses (i)-(iii) and which
Indebtedness incurred to refinance Indebtedness set forth in preceding
clause (i)-(iii) is refinancing Indebtedness permitted under Sections 4.05
and 4.12 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
34
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;
(v) applicable law;
(vi) 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;
(vii) 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;
(viii) 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
(ix) 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.
Section 4.10 LIMITATION ON CERTAIN ASSET SALES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (a) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time of
such sale or other disposition at least equal to the Fair Market Value (as
conclusively evidenced by an Officers' Certificate for amounts up to $5,000,000
and by a resolution of the Company's Board of Directors set forth in an
Officers' Certificate and delivered to the Trustee for amounts in excess of
$5,000,000) of the assets sold or otherwise disposed of, and (b)(i) at least 75%
of the consideration therefor received by the Company or its Restricted
Subsidiary, as the case may be, is in the form of cash or Cash Equivalents, or
(ii) the consideration therefor received by the Company or such Restricted
Subsidiary in an Asset Swap is determined by an Independent Financial Advisor to
be substantially comparable in type to the asset being sold; provided that any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet or in the notes thereto) of the Company or any Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Senior Notes) that are assumed by the transferee of any such assets shall be
deemed to be Cash Equivalents (to the extent of the lesser of the Fair Market
Value or book value of such liabilities); and provided further that any Asset
Sale with respect to the stock or assets of Telemundo News Network, Inc. shall
not be subject to clause (b)(i) of this paragraph.
The Company or any Restricted Subsidiary, as the case may be, may
cause the Asset Sale Proceeds from such Asset Sale to be applied (a) to the
extent the Company elects, or is required, to prepay, repay or purchase debt
under any then existing Senior Indebtedness
35
of the Company or Indebtedness of any Restricted Subsidiary within 360 days
following the receipt of the Asset Sale Proceeds from any Asset Sale; (b) to the
extent of the balance of Asset Sale Proceeds after application as described
above, to the extent the Company elects, to an investment in assets acquired by
the Company or any Restricted Subsidiary (including Capital Stock or other
securities purchased in connection with the acquisition of Capital Stock or
Property of another Person) used or useful in businesses similar or related to
the business of the Company or Restricted Subsidiary as conducted at the time of
such Asset Sale, and the Asset Sale Proceeds are applied within 360 days
following the receipt of such Asset Sale Proceeds (the "Asset Sale Trigger
Date"); and (c) if on the Asset Sale Trigger Date with respect to any Asset
Sale, the Available Asset Sale Proceeds exceed $10,000,000, the Company shall
apply an amount equal to such Available Asset Sale Proceeds to an offer to
repurchase the Senior Notes, at a purchase price in cash equal to 100% of the
Accreted Value thereof plus accrued and unpaid interest, if any, to the date of
repurchase (an "Excess Proceeds Offer"). If an Excess Proceeds Offer is not
fully subscribed, the Company may retain the portion of the Available Asset Sale
Proceeds not required to repurchase Senior Notes and use such amount for general
corporate purposes. Upon completion of an Excess Proceeds Offer, the amount of
Available Asset Sale Proceeds shall be reset to zero.
Notice of each Excess Proceeds Offer shall be mailed to the holders of
the Senior Notes at the addresses shown on the register of holders maintained by
the Registrar with a copy to the Trustee and the Paying Agent, within 30 days
following the applicable Asset Sale Trigger Date, and shall comply with each of
the procedures for notice set forth below. Each Excess Proceeds Offer shall
remain open until a specified date (the "Excess Proceeds Offer Termination
Date") which is at least 20 Business Days from the date such Excess Proceeds
Offer is mailed. During the period specified in the Excess Proceeds Offer,
holders of Senior Notes may elect to tender their Senior Notes in whole or in
part in integral multiples of $1,000 in exchange for cash. Payment shall be
made by the Company (or applicable Subsidiary) in respect of Senior Notes
properly tendered pursuant to this Section 4.10 on a specified Business Day (the
"Excess Proceeds Offer Payment Date") which shall be no earlier than three
Business Days after the Excess Proceeds Offer Termination Date and not earlier
than 30 days and not later than 60 days from the date the Excess Proceeds Offer
is mailed. To the extent holders of Senior Notes properly tender Senior Notes
in an amount exceeding the Available Asset Sale Proceeds, Senior Notes of
tendering holders will be repurchased on a pro rata basis (based on amounts
tendered).
The notice, which shall govern the terms of the Excess Proceeds Offer,
shall include such disclosures as are required by law and shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this
Section 4.10;
(b) the purchase price (including the amount of the accrued interest,
if any) for each Senior Note, the Excess Proceeds Offer Termination Date and the
Excess Proceeds Offer Payment Date;
(c) that any Senior Note or portion thereof not validly tendered or
accepted for payment will continue to accrue interest in accordance with the
terms thereof;
36
(d) that, unless the Company defaults in making payment as provided
for in this Indenture and the Senior Notes, any Senior Note or portion thereof
accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue
interest after the Excess Proceeds Offer Payment Date;
(e) that holders electing to have Senior Notes or portions thereof
purchased pursuant to an Excess Proceeds Offer will be required to surrender
their Senior Notes to the Company, a depository, if appointed by the Company, or
the Paying Agent at the address specified in the notice prior to 5:00 p.m., New
York City time, on the Excess Proceeds Offer Termination Date, with the form
entitled "Option of Holder to Elect Purchase" on the reverse side of the Senior
Notes completed, and must complete any form of letter of transmittal proposed by
the Company and acceptable to the Trustee and the Paying Agent;
(f) that holders of Senior Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York City
time, on the Excess Proceeds Offer Termination Date, a tested telex, facsimile
transmission or letter setting forth the name of the holder, the principal
amount of the Senior Notes the holder delivered for purchase, the Senior Note
certificate number (if any) and a statement that such holder is withdrawing his
election to have such Senior Notes purchased;
(g) that if Senior Notes in a principal amount in excess of the
Available Asset Sale Proceeds are validly tendered pursuant to the Excess
Proceeds Offer, the Company shall purchase Senior Notes on a pro rata basis
among the Senior Notes tendered (with such adjustments as may be deemed
appropriate by the Company so that only Senior Notes in denominations of $1,000
or integral multiples of $1,000 shall be acquired);
(h) that holders whose Senior Notes are purchased only in part will
be issued new Senior Notes equal in principal amount to the unpurchased portion
of the Senior Notes surrendered;
(i) the instructions that holders must follow in order to tender
their Senior Notes; and
(j) the calculation used in determining the amount of Available Asset
Sale Proceeds to be applied to the repurchase of such Senior Notes.
On the Excess Proceeds Offer Payment Date, the Company shall (i)
accept for payment Senior Notes or portions thereof validly tendered pursuant to
the Excess Proceeds Offer, (ii) deposit with the Paying Agent money sufficient
to pay the purchase price of all Senior Notes or portions thereof so tendered
and accepted and (iii) deliver to the Trustee the Senior Notes so accepted
together with an Officers' Certificate setting forth the Senior Notes or
portions thereof tendered to and accepted for payment by the Company. The
Paying Agent shall promptly mail or deliver to the holders of Senior Notes so
accepted payment in an amount equal to the purchase price, and the Company shall
execute and issue and the Trustee shall promptly authenticate and mail or
deliver to such holders a new Senior Note equal in principal amount to any
unpurchased portion of the Senior Note surrendered. Any
37
Senior Notes not so accepted shall be promptly mailed or delivered by the
Company to the holder thereof.
In the event an offer is made to repurchase the Senior Notes pursuant
to an Excess Proceeds Offer, and holders of Senior Notes exercise their right to
require the Company to purchase Senior Notes, if such purchase constitutes a
"tender offer" for purposes of Rule 14e-1 under the Exchange Act at that time,
the Company will comply with the requirement of Rule 14e-1 as then in effect
with respect to such repurchase.
Section 4.11 LIMITATION ON CAPITAL STOCK OF RESTRICTED SUBSIDIARIES.
The Company will not (a) sell, pledge, hypothecate or otherwise convey
or dispose of any Capital Stock of a Restricted Subsidiary (other than in
connection with Indebtedness incurred pursuant to Section 4.05 of this Indenture
as permitted by clause (a) of the definition of "Permitted Indebtedness") or (b)
permit any of its Restricted Subsidiaries to issue any Capital Stock, other than
to the Company or a Wholly-Owned Subsidiary of the Company (other than
director's qualifying shares in an amount not in excess of 1% of the total
outstanding shares of such Person). The foregoing restrictions shall not apply
to an asset sale made in compliance with Section 4.10 of this Indenture or the
issuance of Preferred Stock in compliance with Section 4.12 of this Indenture.
Section 4.12 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) Purchase Money Indebtedness and Capitalized Lease
Obligations incurred in the ordinary course of business in a principal amount
outstanding at the time of incurrence which does not in the aggregate exceed
$15,000,000 at any time outstanding;
(2) Indebtedness incurred or incurrable under any Guarantee of any
Restricted Subsidiary made in the ordinary course of business and not to exceed
$10,000,000 at any time outstanding; and
(3) 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 date of this
Indenture, in an amount as determined in accordance with GAAP, not to exceed
$50,000,000 at any time outstanding;
provided, however, that (A) after giving effect to the incurrence of any
Indebtedness pursuant to this clause (a) of this Section 4.12 and the receipt
and application of the proceeds thereof, the ratio of the total Indebtedness of
the Company's Restricted Subsidiaries (excluding Indebtedness incurred by any
Restricted Subsidiary pursuant to clause (b), (f) or (h) of this Section 4.12),
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
38
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 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 immediately after the Issue Date after giving effect to
the consummation of the transactions described in the Prospectus under "Use of
Proceeds";
(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 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
39
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 four quarter period) the Company
could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
under Section 4.05 of this Indenture;
(i) Indebtedness incurred by a Restricted Subsidiary in exchange for,
or the proceeds of which are used to refinance Indebtedness referred to in
clause (a)(1) and clauses (c) through (g) of this Section 4.12, 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 Senior Notes, 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
(j) Indebtedness of any Restricted Subsidiary evidenced by or arising
under the Loan and Security Agreement.
Section 4.13 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS
The Company will not, and will not permit any Restricted Subsidiary
to, enter into any Sale and Lease-Back Transaction unless (a) the net proceeds
received in such Sale and Lease-Back Transaction are at least equal to the fair
market value of the property sold; (b) the Company could incur the Attributable
Indebtedness in respect of such Sale and Lease-Back Transaction in compliance
with Section 4.05 of this Indenture; and (c) the Company shall apply or cause to
be applied the Asset Sale Proceeds of such transaction in accordance with
Section 4.10 of this Indenture.
Section 4.14 CHANGE OF CONTROL.
Within 30 days of the occurrence of a Change of Control, the Company
shall notify the Trustee in writing of such occurrence and shall make an offer
to purchase (the "Change of Control Offer") the outstanding Senior Notes at a
purchase price equal to 101% of the Accreted Value thereof plus any accrued and
unpaid interest thereon to the Change of Control Payment Date (as hereinafter
defined) (such purchase price being hereinafter referred to as the "Change of
Control Purchase Price") in accordance with the procedures set forth in this
Section 4.14.
Within 30 days of the occurrence of a Change of Control, the Company
also shall (a) cause a notice of the Change of Control Offer to be sent at least
once to the Dow Xxxxx News Service or similar business news service in the
United States and (b) send by first-class mail, postage prepaid, to the Trustee
and to each holder of the Senior Notes, at the
40
address appearing in the register maintained by the Registrar of the Senior
Notes, a notice stating:
(i) that the Change of Control Offer is being made pursuant to this
Section 4.14 and that all Senior Notes validly tendered will be accepted
for payment, and otherwise subject to the terms and conditions set forth
herein;
(ii) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 20 Business Days from the date such
notice is mailed (the "Change of Control Payment Date"));
(iii) that any Senior Note or portion thereof not validly tendered will
continue to accrue interest in accordance with the terms thereof;
(iv) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Senior Notes accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the Change
of Control Payment Date;
(v) that holders accepting the offer to have their Senior Notes
purchased pursuant to a Change of Control Offer will be required to
surrender the Senior Notes to the Company, a depository, if appointed by
the Company, or the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day preceding the Change of
Control Payment Date, with the form entitled "Option of Holder to Elect
Purchase" on the reverse side of the Senior Notes completed, and must
complete any form of letter of transmittal proposed by the Company and
acceptable to the Trustee and the Paying Agent;
(vi) that holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than 5:00 p.m., New York City time, on the
third Business Day preceding the Change of Control Payment Date, a tested
telex, facsimile transmission or letter setting forth the name of the
holder, the principal amount of the Senior Notes delivered for purchase,
and a statement that such holder is withdrawing his election to have such
Senior Notes purchased;
(vii) that holders whose Senior Notes are being purchased only in part
will be issued new Senior Notes equal in principal amount to the
unpurchased portion of the Senior Notes surrendered, provided that each
Senior Note purchased and each such new Senior Note issued shall be in
denominations of $1,000 and integral multiples thereof;
(viii) any other procedures that a holder must follow to accept a Change
of Control Offer or effect withdrawal of such acceptance; and
(ix) the name and address of the Paying Agent.
41
On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment Senior Notes or portions thereof validly
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Senior Notes or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
Senior Notes so accepted together with an Officers' Certificate stating the
Senior Notes or portions thereof validly tendered to the Company. The Paying
Agent shall promptly mail or deliver to each holder of Senior Notes so accepted
payment in an amount equal to the purchase price for such Senior Notes, and the
Company shall execute and issue, and the Trustee shall promptly authenticate and
mail or deliver to such holder, a new Senior Note equal in principal amount to
any unpurchased portion of the Senior Notes surrendered; provided that each such
new Senior Note shall be issued in denominations of $1,000 and integral
multiples thereof.
If the Company or any Subsidiary thereof has issued any outstanding
(i) Indebtedness that is subordinated in right of payment to the Senior Notes or
(ii) Preferred Stock and the Company or such Subsidiary is required to
repurchase, or make an offer to repurchase, such Indebtedness, or redeem, or
make the offer to redeem, such Preferred Stock, in the event of a Change of
Control or to make a distribution with respect to such subordinated Indebtedness
or Preferred Stock in the event of a Change of Control, the Company shall not
consummate any such offer or distribution with respect to such subordinated
Indebtedness or Preferred Stock until such time as the Company shall have paid
the Change of Control Purchase Price in full to the holders of Senior Notes that
have accepted the Company's Change of Control Offer and shall otherwise have
consummated the Change of Control Offer made to holders of the Senior Notes.
The Company will not issue Indebtedness or Preferred Stock that is subordinated
in right of payment to the Senior Notes or Preferred Stock with change of
control provisions requiring the payment of such Indebtedness or Preferred Stock
prior to the payment of the Senior Notes in the event of a Change of Control
under this Indenture.
In the event that a Change of Control occurs and the holders of Senior
Notes exercise their right to require the Company to purchase Senior Notes, if
such purchase constitutes a "tender offer" for purposes of Rule 14e-1 under the
Exchange Act at that time, the Company will comply with the requirements of Rule
14e-1 as then in effect with respect to such repurchase.
Section 4.15 CONTINUED EXISTENCE.
Subject to Article 5, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
Section 4.16 TAXES.
The Company shall pay prior to delinquency all taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings or where the failure to do so (together with all other such
failures) would not have a material adverse effect on the financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole.
42
Section 4.17 STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the Company's
obligation to pay the Senior Notes; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
insofar as such law applies to the Senior Notes, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law has been enacted.
Section 4.18 INVESTMENT COMPANY ACT.
The Company, as of the Issue Date, is not and shall not become an
investment company subject to registration under the Investment Company Act of
1940, as amended.
Section 4.19 APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.08 of this
Indenture, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.20 FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary to
carry out more effectively the purpose of this Indenture.
ARTICLE 5
SUCCESSORS
Section 5.01 WHEN THE COMPANY MAY MERGE, ETC.
The Company will not consolidate with, merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its assets (as an entirety or substantially as an entirety in one transaction
or a series of relation 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:
(a) the Company shall be the surviving or 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
sold, assigned, transferred, leased, conveyed or disposed of shall be a
corporation organized and validly existing under the laws
43
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 Senior Notes and this Indenture, and the obligations under
this Indenture shall remain in full force and effect;
(b) immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of Default shall have
occurred and be continuing; and
(c) immediately after giving effect to such transaction on a pro
forma basis, the Company or such Person (A) would have Consolidated Net Worth
equal to or greater than the Consolidated Net Worth of the Company immediately
preceding the transaction, (B) could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.05 of this
Indenture and (C) 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 5.01, the Company or such Person shall deliver, or
cause to be delivered, to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with the
provisions of this Indenture and that all conditions precedent in this Indenture
relating to such transaction have been satisfied.
Section 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any such consolidation, merger, sale, assignment, conveyance,
lease or transfer in accordance with Section 5.01 of this Indenture, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made will succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor had been named as
the Company therein, and thereafter (except in the case of a sale, assignment,
transfer, lease, conveyance or other disposition) the predecessor corporation
will be relieved of all further obligations and covenants under this Indenture
and the Senior Notes.
Section 5.03 PURCHASE OPTION ON CHANGE OF CONTROL.
This Article 5 does not affect the obligations of the Company
(including without limitation any successor to the Company) under Section 4.14
of this Indenture.
44
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
An "Event of Default" with respect to any Senior Notes occurs if:
(a) the Company defaults in the payment of principal of, or premium,
if any, on the Senior Notes when the same becomes due and payable at its Stated
Maturity, upon redemption, upon acceleration or otherwise, including, without
limitation, failure of the Company to redeem or purchase Senior Notes on the
date required pursuant to Section 4.10 or 4.14 of this Indenture or failure to
make any optional redemption payment when due; or
(b) the Company defaults in any payment of any interest on the Senior
Notes when the same becomes due and payable (including any interest payable in
connection with any optional redemption payment) and continuance of such default
for more than 30 days; or
(c) the Company or any Restricted Subsidiary fails to observe,
perform or comply with any covenant or agreement (other than the obligations
specified in clauses (a) and (b) of this Section 6.01) in the Senior Notes or
this Indenture for a period of 60 days after the receipt of written notice from
the Trustee or the holders of not less than 25% in aggregate principal amount of
the then outstanding Senior Notes; or
(d) default in the payment when due after any applicable grace period
of principal, interest or premium with respect to any Indebtedness of the
Company or any Restricted Subsidiary thereof or the acceleration of any
Indebtedness of the Company or any Restricted Subsidiary, and, in either case,
the total amount of such unpaid or accelerated debt exceeds $5,000,000; or
(e) the rendering of any judgment or judgments (not subject to appeal
and other than any judgment as to which an insurance company rated A - or better
by A. M. Best has accepted full liability) against the Company or any Restricted
Subsidiary thereof in an aggregate principal amount in excess of $5,000,000
which remains unstayed, in effect and unpaid for a period of 60 consecutive days
thereafter; or
(f) the Company or any Restricted Subsidiary, pursuant to or within
the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in
an involuntary case,
(3) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
45
(4) makes a general assignment for the benefit of its creditors;
or
(g) a court of competent jurisdiction enters a judgment, order or
decree under any Bankruptcy Law that:
(1) is for relief against the Company or any Restricted
Subsidiary in an involuntary case,
(2) appoints a Custodian of the Company or any Restricted
Subsidiary for all or substantially all of its property, or
(3) orders the liquidation of the Company or any Restricted
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A notice under clause (c) of this Section 6.01 must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
Section 6.02 ACCELERATION.
If an Event of Default (other than an Event of Default specified in
clauses (f) and (g) of Section 6.01 of this Indenture) occurs and is continuing,
then and in every such case the Trustee, by written notice to the Company, or
the holders of at least 25% in aggregate principal amount of the then
outstanding Senior Notes, by written notice to the Company and the Trustee, may
declare to be immediately due and payable the entire Accreted Value of all the
Senior Notes then outstanding, plus accrued interest to the date of
acceleration. Upon such declaration such principal amount, premium, if any, and
accrued and unpaid interest shall be immediately due and payable notwithstanding
anything contained in this Indenture or the Senior Notes to the contrary. If an
Event of Default with respect to the Company specified in clauses (f) or (g) of
Section 6.01 of this Indenture shall occur, Accreted Value, premium, if any, and
accrued and unpaid interest with respect to all of the Senior Notes then
outstanding shall automatically become and be immediately due and payable
without any declaration or other act on the part of the Trustee or the holders
of Senior Notes.
The holders of a majority in principal amount of the then outstanding
Senior Notes by notice to the Trustee may rescind an acceleration and its
consequences if all existing Events of Default, other than the nonpayment of
principal and premium, if any, and interest on the Senior Notes which has become
due solely by virtue of such acceleration have been cured or waived and if the
rescission would not conflict with any judgment or decree of any court of
competent jurisdiction obtained by the Trustee. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
46
Section 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Senior Notes or to enforce the
performance of any provision of the Senior Notes or this Indenture. The Trustee
may maintain a proceeding even if it does not possess any of the Senior Notes or
does not produce any of them in the proceeding. A delay or omission by the
Trustee or any holder of a Senior Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04 WAIVER OF PAST DEFAULTS.
The holders of a majority in aggregate principal amount of the Senior
Notes then outstanding may, on behalf of the holders of all the Senior Notes,
waive an existing Default or Event of Default and its consequences, except a
Default or an Event of Default in the payment of the principal of or interest on
the Senior Notes held by non-consenting holders (other than nonpayment of
principal of and premium, if any, or interest on the Senior Notes which has
become due solely by virtue of an acceleration which has been duly rescinded, as
provided above), or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of all holders of Senior
Notes. When a Default is waived, it shall cease to exist and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
under this Indenture. No waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
Section 6.05 CONTROL BY MAJORITY.
The holders of a majority in principal amount of the then outstanding
Senior Notes may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other holders of Senior Notes or that may involve
the Trustee in personal liability; provided that the Trustee may take any other
action the Trustee deems proper that is not inconsistent with such directions.
Section 6.06 LIMITATION ON SUITS.
A holder of a Senior Note may not pursue any remedy with respect to
this Indenture or the Senior Notes unless:
(a) the holder gives to the Trustee notice of a continuing Event of
Default;
(b) the holders of at least 25% in principal amount of the then
outstanding Senior Notes make a written request to the Trustee to pursue the
remedy;
47
(c) such holder or holders offer and, if requested, provide to the
Trustee reasonable indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the holders of a majority in principal
amount of the then outstanding Senior Notes do not give the Trustee a direction
inconsistent with the request.
A holder of a Senior Note may not use this Indenture to prejudice the
rights of another holder or to obtain a preference or priority over another
holder.
Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any holder of a Senior Note to receive payment of principal and interest on the
Senior Note, on or after such respective due dates expressed in the Senior Note,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
holder of a Senior Note.
Section 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) of this
Indenture occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company for the whole amount
of principal and interest remaining unpaid on the Senior Notes and interest on
overdue principal and interest and such further amount as shall be sufficient to
cover the costs and, to the extent lawful, expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the holders of Senior Notes allowed in any judicial proceedings
relative to the Company, its creditors or its property and, unless prohibited by
law or applicable regulations, may vote on behalf of the holders of the Senior
Notes in any election of a trustee in bankruptcy or other Person performing
similar functions, and any custodian in any such judicial proceeding is hereby
authorized by each holder of Senior Notes to make payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07 of this Indenture. Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
holder of a Senior Note any plan of reorganization, arrangement, adjustment or
composition affecting
48
the Senior Notes or the rights of any holder thereof, or to authorize the
Trustee to vote in respect of the claim of any holder in any such proceeding.
Section 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07 of this
Indenture, including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee, and the costs and expenses of
collection;
Second: to holders of Senior Notes for amounts due and unpaid on the
Senior Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Senior Notes for principal, premium, if any, and interest, respectively; and
Third: to the Company.
Except as otherwise provided in Section 2.12 of this Indenture, the
Trustee may fix a record date and payment date for any payment to holders of
Senior Notes.
Section 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys fees, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a holder
pursuant to Section 6.07 of this Indenture or a suit by holders of more than 10%
in principal amount of the then outstanding Senior Notes.
ARTICLE 7
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
Section 7.01 DUTIES OF THE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree
49
of care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) The duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 of this Indenture.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that is in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk is not reasonably assured
to it. The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
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(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 and to the provisions of the TIA.
Section 7.02 RIGHTS OF THE TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate, an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by Officers of the Company.
(f) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(g) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Senior Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
Section 7.03 INDIVIDUAL RIGHTS OF THE TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Senior Notes and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to and
must comply with Sections 7.10 and 7.11 of this Indenture.
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Section 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Senior Notes, it shall
not be accountable for the Company's use of the proceeds from the Senior Notes
and it shall not be responsible for any statement or recital herein or any
statement in the Senior Notes or any other document in connection with the sale
of the Senior Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each holder of a Senior Note a
notice of the Default or Event of Default within 60 days after it occurs. A
Default or an Event of Default shall not be considered known to the Trustee
unless it is a Default or Event of Default in the payment of principal or
interest when due under Section 6.01(a) or (b) of this Indenture or the Trustee
shall have received notice thereof, in accordance with this Indenture, from the
Company or from the holders of a majority in principal amount of the outstanding
Senior Notes. Except in the case of a Default or Event of Default in payment of
principal or premium, if any, or interest on any Senior Note, the Trustee may
withhold the notice if and so long as a committee of its Trust officers in good
faith determines that withholding the notice is in the interest of the holders
of Senior Notes.
Section 7.06 REPORTS BY THE TRUSTEE TO HOLDERS.
Within 60 days after the reporting date stated in Section 10.10 of
this Indenture, the Trustee shall mail to holders of Senior Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within twelve months
preceding the reporting date, no report need be transmitted). The Trustee shall
also comply with TIA Section 313(b) and TIA Section 313(c).
A copy of each report at the time of its mailing to holders of Senior
Notes shall be filed with the Commission and each stock exchange, if any, on
which the Senior Notes are listed. The Company shall notify the Trustee when
the Senior Notes are listed on any stock exchange.
Section 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and its services hereunder.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable out-of-pocket expenses incurred or made by it,
in addition to the compensation for its services. Such expenses may include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
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The Company shall indemnify the Trustee against any loss, liability or
expense incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, except as set forth in the
next paragraph. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim with counsel designated by the Company, who may be outside
counsel to the Company, and the Trustee shall cooperate in the defense. In
addition, the Trustee may retain one separate counsel and the Company shall pay
the reasonable fees and expenses of such separate counsel. The indemnification
herein extends to any settlement, provided that the Company will not be liable
for any settlement made without its consent.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own wilful misconduct,
negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07 of
this Indenture, the Trustee shall have a Lien prior to the Senior Notes on all
money or property held or collected by the Trustee, except that held in trust to
pay principal and interest on particular Senior Notes. Such Liens shall survive
the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(f) or (g) of this Indenture occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
Section 7.08 REPLACEMENT OF THE TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign at any time by so notifying the Company. The
holders of a majority in principal amount of the Senior Notes may remove the
Trustee by so notifying the Trustee and the Company. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 of this Indenture;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a receiver or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the holders
of a majority in principal amount of the then outstanding Senior Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
holders of at least 25% in principal amount of the then outstanding Senior Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee, provided such corporation or association shall be otherwise
eligible and qualified under this Article.
If the Trustee after written request by any holder of a Senior Note
who has been a holder for at least six months fails to comply with Section 7.10
of this Indenture, such holder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to holders of Senior Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
that all sums owing to the retiring Trustee hereunder have been paid and subject
to the lien provided for in Section 7.07 of this Indenture. Notwithstanding the
replacement of the Trustee pursuant to this Section 7.08 of this Indenture, the
Company's obligations under Section 7.07 of this Indenture shall continue for
the benefit of the retiring Trustee.
Section 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee provided such corporation or association shall be
otherwise eligible and qualified under this Article.
Section 7.10 ELIGIBILITY, DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a) of this Indenture. The Trustee shall always
have a combined capital and surplus as stated in Section 10.10 of this
Indenture. The Trustee is subject to TIA Section 310(b) regarding the
disqualification of a trustee upon acquiring a conflicting interest; provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
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Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship set forth in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 TERMINATION OF COMPANY'S OBLIGATIONS.
(a) This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.07 and 8.03 of this Indenture shall
survive) when all outstanding Senior Notes theretofore authenticated and issued
have been delivered (other than destroyed, lost or stolen Senior Notes that have
been replaced or paid) to the Trustee for cancellation and the Company has paid
all sums payable hereunder. In addition, the Company may terminate its
obligations under this Indenture (except the Company's obligations under
Sections 7.07 and 8.03 of this Indenture) if, under terms satisfactory to the
Trustee: (a) the Senior Notes have either become due and payable or are by
their terms due and payable within one year (or scheduled for redemption, or are
to be called for redemption under arrangements satisfactory to the Trustee for
the giving of a notice of redemption in the name of the Company, within one
year); and (b) the Company irrevocably deposits in trust with the Trustee money
or United States Government Obligations (defined below in this Section 8.01), or
a combination thereof, sufficient, without consideration of the reinvestment of
interest, to pay principal and interest on the Senior Notes to maturity or upon
redemption, as the case may be. The Company may make the deposit only during
the one year period.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 4.01, 4.04, 7.07, 7.08, 8.03 and 8.04 of this Indenture shall survive
until the Senior Notes are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07 and 8.03 of this Indenture shall survive.
After a deposit made pursuant to this Section 8.01, the Trustee upon
request of the Company shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified above and the Trustee's and Paying Agent's obligations in
Section 8.03 of this Indenture shall survive.
In addition, the Company may elect to have either clause (b) or clause
(c) below be applied to the outstanding Senior Notes upon compliance with the
conditions set forth in clause (d) below.
(b) Upon the Company's exercise under the last sentence of paragraph
(a) above of the option applicable to this paragraph (b), the Company shall be
deemed to have been released and discharged from its obligations with respect to
the outstanding Senior Notes on the date the conditions set forth below are
satisfied ("legal defeasance"). For this
55
purpose, legal defeasance means that the Company shall be deemed to have paid
and discharged the entire Indebtedness represented by the outstanding Senior
Notes, which shall thereafter be deemed to be "outstanding" only for the purpose
of the Sections of and matters under this Indenture referred to in subclauses
(i), (ii), (iii), (iv) and (v) of this clause (b), and to have satisfied all its
other obligations under such Senior Notes and this Indenture insofar as such
Senior Notes are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following, which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of holders of outstanding Senior Notes to receive
solely from the trust fund described in clause (d) below and as more fully set
forth in such clause, payments in respect of the principal of, and premium, if
any, and interest on such Senior Notes when such payments are due, (ii) the
Company's obligations with respect to such Senior Notes when such payments are
due, (iii) the Company's obligations with respect to such Senior Notes under
Sections 2.03, 2.05, 2.06, 2.07 and 4.04 of this Indenture, and, with respect to
the Trustee, under Section 7.07 of this Indenture, (iv) the rights, powers,
trusts, duties and immunities of the Trustee hereunder, (v) the right of the
Company to redeem the Senior Notes pursuant to clauses 5(a) or 5(b) of the
Senior Notes, and (vi) this Section 8.01 and Sections 8.03 and 8.04 of this
Indenture. Subject to compliance with this Section 8.01, the Company may
exercise its option under this clause (b) notwithstanding the prior exercise of
its option under paragraph (c) below with respect to the Senior Notes.
(c) Upon the Company's exercise under the last sentence of clause (a)
of the option applicable to this clause (c), the Company shall be released and
discharged from its obligations under any covenant contained in Article 4
(except for Sections 4.01 and 4.04 of this Indenture) and Article 5 with respect
to the outstanding Senior Notes on and after the date the conditions set forth
below are satisfied ("covenant defeasance"), and the Senior Notes shall
thereafter be deemed to be not "outstanding" for the purpose of any direction,
waiver, consent or declaration or act of holders of Senior Notes (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the outstanding
Senior Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 of this
Indenture but, except as specified above, the remainder of this Indenture
(including without limitation obligations set forth in Sections 8.03 and 8.04 of
this Indenture) and such Senior Notes shall be unaffected thereby.
(d) The following shall be the conditions to the application of
either clause (b) or (c) above to the outstanding Senior Notes:
(i) the Company has irrevocably deposited in trust with the
Trustee or, at the option of the Trustee, with a trustee, satisfactory
to the Trustee and the Company, under terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, cash in
United States dollars, United States Government Obligations, or a
combination thereof, sufficient, without
56
consideration of the reinvestment of interest, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certificate delivered to the Trustee, to pay at
maturity principal and interest on the Senior Notes; provided that (A)
the trustee of the irrevocable trust shall have been irrevocably
instructed to pay such money or the proceeds of such United States
Government Obligations to the Trustee and (B) the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of
such United States Government Obligations to the payment of said
principal and interest with respect to the Senior Notes;
(ii) in the case of an election under clause (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel reasonably acceptable to the Trustee
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date of this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that the holders
of the outstanding Senior Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such legal
defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same time as would have been
the case if such legal defeasance had not occurred;
(iii) in the case of an election under clause (c) above, the
Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized counsel reasonably acceptable to the Trustee (A)
to the effect that the holders of the outstanding Senior Notes will
not recognize income, gain or loss for federal income tax purposes as
a result of such covenant defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same
time as would have been the case if such covenant defeasance had not
occurred or (B) that the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the foregoing
effect;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(v) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event
of Default under any material agreement or instrument to which the
Company or any of its subsidiaries is bound;
(vi) The Company shall deliver to the Trustee an Opinion of
Counsel to the effect that after the ninety-first day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally except that if a court were to
rule under any such law in any case or proceeding that the trust funds
remained property of the Company, no opinion is given as to the
57
effect of such laws on the trust funds except the following: (A)
assuming such trust funds remained in the Trustee's possession prior
to such court ruling to the extent not paid to holders of the Senior
Notes, the Trustee will hold, for the benefit of such holders, a valid
and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise and (B) such holders will be
entitled to receive adequate protection of their interest in such
trust funds if such trust funds are used;
(vii) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the holders over the other
creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others;
(viii) The Company shall have delivered to the Trustee an
Opinion of Counsel stating that neither the trust nor the Trustee will
be required to register as an investment company under the Investment
Company Act of 1940, as amended; and
(ix) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent provided for relating to the legal defeasance under clause
(b) above or the covenant defeasance under clause (c) above, as the
case may be, have been complied with.
After such irrevocable deposit made pursuant to this Section 8.01 (and
satisfaction of the other conditions set forth herein), the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified above.
As used herein, "United States Government Obligations" means
obligations for which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Senior Notes at a future date
in accordance with Article 3.
Section 8.02 APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 8.01 of this Indenture. It
shall apply the deposited money and the money from United States Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal and interest on the Senior Notes.
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Section 8.03 REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years after
the date upon which such payment shall have become due; provided, however, that
the Company shall have first caused notice of such payment to the Company to be
mailed to each holder entitled thereto no less than 30 days prior to such
payment. After payment to the Company, holders entitled to the money must look
to the Company for payment as general creditors unless an applicable abandoned
property law designates another person and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
Section 8.04 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 8.02 of this Indenture by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Senior Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01 of this Indenture until such time
as the Trustee or Paying Agent is permitted to apply all such money or United
States Government Obligations in accordance with Section 8.02 of this Indenture;
provided, however, that if the Company makes any payment of interest on or
principal of any Senior Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of such Senior Notes to
receive such payment from the money or United States Government Obligations held
by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
Section 9.01 WITHOUT THE CONSENT OF HOLDERS.
The Company and the Trustee may amend or modify this Indenture
(including the terms and conditions of the Senior Notes) without notice to or
the consent of any holder of Senior Notes for the purpose of:
(a) adding to the covenants of the Company for the benefit of the
holders of Senior Notes;
(b) surrendering any right or power conferred upon the Company;
(c) evidencing the succession of another Person to the Company and
the assumption of such successor of the covenants and obligations of the Company
hereunder and in the Senior Notes as permitted herein;
59
(d) curing any ambiguity, or correcting or supplementing any
defective provision contained herein or making any changes in any other
provisions of this Indenture which the Company and the Trustee deem necessary or
desirable and which, in either case, will not adversely affect the interests of
the holders of Senior Notes.
Section 9.02 WITH THE CONSENT OF HOLDERS.
Subject to Section 6.07 of this Indenture, the Company and the Trustee
may amend this Indenture or the Senior Notes with the written consent of the
holders of not less than a majority in aggregate principal amount of the then
outstanding Senior Notes.
Subject to Sections 6.04 and 6.07 of this Indenture, the holders of a
majority in principal amount of the Senior Notes then outstanding may also waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Senior Notes.
However, without the consent of each holder of a Senior Note affected,
an amendment or waiver under this Section 9.02 may not:
(a) reduce the amount of Senior Notes whose holders must consent to
an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of, interest,
including defaulted interest, on any Senior Notes;
(c) reduce the principal of or premium on or change the fixed
maturity of any Senior Note or alter the redemption provisions with respect
thereto;
(d) make the principal of or premium, if any, or interest on, any
Senior Note payable in money other than as provided for in this Indenture and
the Senior Notes;
(e) waive a continuing default in the payment of the principal of or
premium, if any, or interest on, or redemption or repurchase payment with
respect to, any Senior Note, including, without limitation, a continuing failure
to make payment when required upon a Change of Control or after an Asset Sale
Trigger Date;
(f) after the Company's obligation to purchase the Senior Notes
arises hereunder, to then amend, modify or change the obligation of the Company
to make or consummate a Change of Control Offer in the event of a Change of
Control or an Asset Sale Offer in the event of an Asset Sale Trigger Date or
waive any default in the performance thereof or modify any of the provisions or
definitions with respect to any such offers; or
(g) make any change in provisions relating to waivers of defaults,
the abilities of holders of Senior Notes to enforce their rights hereunder or
the provisions of clauses (a) through (g) of this Section 9.02.
To secure a consent of the holders under this Section 9.02, it shall
not be necessary for such holders to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
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After an amendment or waiver under this Section 9.02 becomes
effective, the Company shall mail to holders of Senior Notes a notice briefly
describing the amendment or waiver. Any failure of the Company to mail such
notices or any defect therein, shall not, however in any way impair or affect
the validity of such amendment or waiver.
Section 9.03 COMPLIANCE WITH THE TRUST INDENTURE ACT.
Every amendment to this Indenture or the Senior Notes shall be set
forth in a supplemental indenture that complies with the TIA as then in effect.
Section 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
holder of a Senior Note is a continuing consent by the holder and every
subsequent holder, of a Senior Note or portion of a Senior Note that evidences
the same debt as the consenting holder's Senior Note, even if notation of the
consent is not made on any Senior Note. However, any such holder or subsequent
holder may revoke the consent as to his or her Senior Note or portion of a
Senior Note if the Trustee receives the notice of revocation before the date on
which the Trustee receives an Officers' Certificate certifying that the holders
of the requisite principal amount of Senior Notes have consented to the
amendment or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the holders entitled to consent to any amendment or
waiver. If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those persons who were holders at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to consent to such amendment or waiver or to revoke any consent
previously given, whether or not such persons continue to be holders after such
record date. No consent shall be valid or effective for more than 90 days after
such record date unless consents from holders of the principal amount of Senior
Notes required hereunder for such amendment or waiver to be effective shall have
also been given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
holder, unless it is of the type described in any of clauses (a) through (g) of
Section 9.02 of this Indenture. In such case, the amendment or waiver shall
bind each holder of a Senior Note who has consented to it.
Section 9.05 NOTATION ON OR EXCHANGE OF SENIOR NOTES.
Senior Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 9 may, and shall if required by
the Trustee, bear a notation in the form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Senior Notes so modified as to conform, in the opinion of the
Company and the Trustee, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for outstanding Senior Notes. Any failure to make the appropriate
notation or issue a new Senior Note shall not affect the validity of the
supplemental indenture.
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Section 9.06 TRUSTEE PROTECTED.
The Trustee shall sign any amendment, waiver or supplemental indenture
authorized pursuant to this Article 9 if such amendment, waiver or supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, waiver or supplemental indentures the Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment, waiver or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE 10
GENERAL PROVISIONS
Section 10.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
Section 10.02 NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail, with postage prepaid (registered or certified, return receipt requested),
facsimile or overnight air couriers guaranteeing next day delivery, to the
other's address stated in Section 10.10 of this Indenture. The Company or the
Trustee by notice to the other may designate additional or different addresses
for subsequent notices or communications.
All notices and communications (other than those sent to holders of
Senior Notes) shall be deemed to have been duly given at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when transmission confirmed, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a holder of a Senior Note shall be
mailed by first-class mail, with postage prepaid, to his or her address shown on
the register kept by the Registrar. Failure to mail a notice or communication
to a holder or any defect in it shall not affect its sufficiency with respect to
other holders.
If a notice or communication is sent in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company sends a notice or communication to holders of Senior
Notes, it shall send a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
62
Section 10.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders of Senior Notes may communicate pursuant to TIA Section 312(b)
with other holders with respect to their rights under this Indenture or the
Senior Notes. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
Section 10.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 of this Indenture) stating that, in the opinion of such person,
all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 of this Indenture) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been complied with.
Section 10.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such officer knows that the opinion
with respect to the matters upon which his certificate may be based as aforesaid
is erroneous. Any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon certificates, statements or opinions of, or
representations by an Officer or Officers of the Company, or other persons or
firms deemed appropriate by such counsel, unless such counsel knows that the
certificates,
63
statements or opinions or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be
based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representation by an accountant (who may be an employee of the
Company), or firm of accountants, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representation with respect to
the accounting matters upon which his certificate, statement or opinion may be
based as aforesaid is erroneous.
Section 10.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
holders of Senior Notes. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 10.07 LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York are not required to be open, and a
"Business Day" is any day that is not a Legal Holiday. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
Section 10.08 NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such, of the Company
from time to time shall have any liability for any obligations of the Company
under the Senior Notes or this Indenture or for any claim based on, in respect
of, or by reason of such obligations or their creation. Each holder by
accepting a Senior Note waives and releases all such liability. This waiver and
release are part of the consideration for the Senior Notes. Each of such
directors, officers, employees and stockholders is a third party beneficiary of
this Section 10.08 of this Indenture.
Section 10.09 COUNTERPARTS.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10 OTHER PROVISIONS.
The Company initially appoints the Trustee as Paying Agent, Registrar
and authenticating agent.
The first certificate pursuant to Section 4.03 of this Indenture shall
be for the first full fiscal quarter of the Company following the issuance of
Senior Notes hereunder.
64
The reporting date for Section 7.06 of this Indenture is May 15 of
each year. The first reporting date is the first May 15 following the issuance
of Senior Notes hereunder.
The Trustee shall always have, or shall be a Subsidiary of a bank or
bank holding company which has, a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
Telemundo Group, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Trustee's address is:
Bank of Montreal Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Section 10.11 GOVERNING LAW.
The internal laws of the State of New York shall govern this Indenture
and the Senior Notes, without regard to the conflict of laws provisions thereof.
Section 10.12 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such other indenture, loan
or debt agreement may not be used to interpret this Indenture.
Section 10.13 SUCCESSORS.
All agreements of the Company in this Indenture and the Senior Notes
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.14 SEVERABILITY.
In case any provision in this Indenture or in the Senior Notes 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.
65
Section 10.15 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed and attested, all as of the date first above written, signifying their
agreements contained in this Indenture.
SIGNATURES
TELEMUNDO GROUP, INC.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President and Chief Executive Officer
Attest:
/s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Secretary
BANK OF MONTREAL TRUST COMPANY
By: /s/ Xxx Xxxxxxx
-------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Vice President
Attest:
/s/
------------------------------
66
EXHIBIT A
(Face of Security)
No. 001 $______________
CUSIP
87943M AF 5
TELEMUNDO GROUP, INC.
10 1/2% SENIOR NOTE DUE 2006
TELEMUNDO GROUP, INC., a Delaware corporation (the "Company"), for value
received, hereby promises to pay to _______________, or registered assigns, the
principal sum of ____________________ on February 15, 2006.
Interest Payment Dates: February 15 and August 15, commencing August 15, 1996.
Regular Record Dates: February 1 and August 1.
IN WITNESS WHEREOF, the Company has caused this Senior Note to be signed
manually or by facsimile by their duly authorized officers and a facsimile of
its seal to be affixed hereto or imprinted hereon.
TELEMUNDO GROUP, INC.
By
---------------------
President and Chief
Executive Officer
By
-----------------------
Chief Financial Officer
and Treasurer
Dated: February 26, 1996
(SEAL)
A-1
Certificate of Authentication
This Senior Note is one of the Senior Notes
issued pursuant to the within-mentioned Indenture.
BANK OF MONTREAL TRUST COMPANY
as Trustee
By
----------------------
Authorized Signatory
A-2
(Back of Security)
TELEMUNDO GROUP, INC.
10 1/2% SENIOR NOTE DUE 2006
1. INTEREST. Telemundo Group, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount at Stated
Maturity of this Senior Note semiannually on February 15 and August 15 of each
year, at the rate of 7% per annum through and including February 15, 1999, and
at the rate of 10 1/2% per annum after February 15, 1999 until maturity.
Interest on the Senior Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance of the Senior Notes. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the
Senior Notes (except defaulted interest) to the person in whose name each Senior
Note is registered at the close of business on the February 1 or August 1
immediately preceding the relevant interest payment date even though Senior
Notes are cancelled after such record date and on or before the interest payment
date. Holders must surrender Senior Notes to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. However, the Company may pay interest by check payable in
such money, and may mail such check to the holder's registered address.
3. PAYING AGENT AND REGISTRAR. Bank of Montreal Trust Company,
a New York banking corporation (together with any successor trustee under the
Indenture referred to below, the "Trustee"), will act as Paying Agent and
Registrar. The Company may change the Paying Agent, Registrar or co-registrar
without prior notice. Subject to certain limitations in the Indenture, the
Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Senior Notes under an
Indenture dated as of February 26, 1996 (the "Indenture") between the Company
and the Trustee. The terms of the Senior Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb), as in effect on the
date of the Indenture. The Senior Notes are subject to, and qualified by, all
such terms, certain of which are summarized hereon, and holders are referred to
the Indenture and such Act for a statement of such terms. The Senior Notes are
unsecured general obligations of the Company limited to $192,000,000 in
aggregate principal amount. Capitalized terms not defined below have the same
meaning as is given to them in the Indenture.
5. REDEMPTION PROVISIONS.
(a) Optional Redemption. Except as set forth below, the Senior Notes
are not redeemable at the Company's option prior to February 15, 2001. On or
after that date, the Senior Notes will be subject to redemption at the option of
the Company, as a whole at any time or in part from time to time, at the
following Redemption Prices, expressed as
A-3
percentages of the Accreted Value of the Senior Notes, set forth below, plus
accrued and unpaid interest, if any, to the Redemption Date:
IF REDEEMED DURING THE PERIOD PERCENTAGE
----------------------------- ----------
From February 15, 2001 through February 14, 2002 . . . . . . . . 105.250%
From February 15, 2002 through February 14, 2003 . . . . . . . . 103.500%
From February 15, 2003 through February 14, 2004 . . . . . . . . 101.750%
From February 15, 2004 and thereafter. . . . . . . . . . . . . . 100.000%
(b) Redemption After Common Stock Offerings. Notwithstanding the
foregoing, at any time prior to February 15, 1999, the Company may, at its
option, on one or more occasions, redeem up to 35% of the aggregate outstanding
principal amount of the Senior Notes with the Net Proceeds of one or more Common
Stock Offerings at a redemption price of 110.5% of the Accreted Value of the
Senior Notes, plus accrued and unpaid interest, if any, to the date of
redemption; provided, however, that after any such redemption at least $100
million of the aggregate principal amount at Stated Maturity of the Senior Notes
remains outstanding.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
holder of Senior Notes to be redeemed at his or her registered address. Senior
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000. In the event of a redemption of less than all of the
Senior Notes, the Senior Notes will be chosen for redemption by the Trustee by
lot or by any other method that complies with applicable legal and securities
exchange requirements, if any, and that the Trustee considers fair and
appropriate and in accordance with methods generally used at the time of
selection by fiduciaries in similar circumstances. On and after the Redemption
Date, interest ceases to accrue on Senior Notes or portions of them called for
redemption (unless the Company defaults in the payment of the Redemption Price).
If this Senior Note is redeemed subsequent to a record date with respect to any
interest payment date specified above and on or prior to such interest payment
date, then any accrued interest will be paid to the person in whose name this
Senior Note is registered at the close of business on such record date.
7. CHANGE OF CONTROL. Upon a Change of Control, the Company
shall make a Change of Control Offer to purchase all outstanding securities at a
price equal to 101% of the Accreted Value of the Senior Notes, plus accrued and
unpaid interest to the date of purchase, such offer to be made as provided in
the Indenture. To accept the Change of Control Offer, the holder hereof must
comply with the terms thereof, including surrendering this Senior Note, with the
"Option of Holder to Elect Purchase" portion hereof completed to the Company, a
depository, if appointed by the Company, or the Paying Agent, at the address
specified in the notice of the Change of Control Offer mailed to holders as
provided in the Indenture, prior to termination of the Change of Control Offer.
8. ASSET SALES. In the event that the Company accumulates more
than $10,000,000 of Available Asset Sale Proceeds, the Company shall make an
offer to repurchase all or a portion of Senior Notes with such Available Asset
Sale Proceeds, at a purchase price in cash equal to 100% of the Accreted Value
thereof, plus accrued and unpaid
A-4
interest, if any, to the date of repurchase, such offer to be made as provided
in the Indenture. To accept such an offer, the holder hereof must comply with
the terms thereof, including surrendering this Senior Note, with the "Option of
Holder to Elect Purchase" portion hereof completed to the Company, a depository,
if appointed by the Company, or the Paying Agent, at the address specified in
the notice of such offer mailed to holders as provided in the Indenture prior to
the termination of such offer.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Senior Notes may be registered and Senior
Notes may be exchanged as provided in the Indenture. As a condition of
transfer, the Registrar may require a holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
holder to pay any taxes and fees required by law or permitted by the Indenture.
The Registrar need not exchange or register the transfer of any Senior Note or
portion of a Senior Note selected for redemption. Also, it need not exchange or
register the transfer of any Senior Notes for a period of 15 days before a
selection of Senior Notes to be redeemed or before a mailing of notice of an
offer to repurchase under the Indenture.
10. PERSONS DEEMED OWNERS. The registered holder of a Senior
Note may be treated as its owner for all purposes.
11. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Senior Notes may be amended with the consent of the holders of
at least a majority in principal amount of the then outstanding Senior Notes and
any existing default may be waived with the consent of the holders of a majority
in principal amount of the then outstanding Senior Notes. Without the consent
of any holder, the Indenture or the Senior Notes may be amended to: add to the
covenants of the Company for the benefit of the holders; surrender any right or
power conferred upon the Company; evidence the succession of another person to
the Company and the assumption by such successor of the covenants and
obligations of the Company thereunder and in the Senior Notes as permitted in
the Indenture; and cure any ambiguity or correct or supplement any defective
provision herein or make any changes in any other provisions of the Indenture
which the Company and the Trustee deem necessary or desirable and which in
either case will not adversely affect the interest of the holders of the Senior
Notes.
12. DEFAULTS AND REMEDIES. An Event of Default includes in
summary form: default for 30 days in payment of interest on the Senior Notes;
default in payment of principal of or premium, if any, on the Senior Notes;
failure by the Company for 60 days after notice to it to comply with any of its
other agreements in the Indenture or the Senior Notes; certain defaults under
and accelerations prior to maturity of certain indebtedness; certain final
judgments which remain undischarged; and certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Senior Notes
may declare the entire Accreted Value of all the Senior Notes then outstanding
to be due and payable immediately, except that in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Senior Notes become due and payable without further action or notice. Holders
may not enforce the Indenture or the Senior Notes except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Senior Notes. Subject to certain limitations,
holders
A-5
of a majority in principal amount of the then outstanding Senior Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from holders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding notice is in
their interests. The Company must furnish quarterly compliance certificates to
the Trustee.
13. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee or any of
its Affiliates, in their individual or any other capacities, may make or
continue loans to or guaranteed by, accept deposits from and perform services
for the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee
or stockholder, as such, of the Company shall have any liability for any
obligations of the Company under the Senior Notes or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each holder by accepting a Senior Note waives and releases all such
liability. The waiver and release are part of the consideration for the Senior
Notes.
15. AUTHENTICATION. This Senior Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the
name of a holder or an assignee, such as: TEN COM = tenants in common, TEN ENT
= tenants by the entireties, JT TEN = joint tenants with right of
survivorship and not as tenants in common, CUST = Custodian and U/G/M/A =
Uniform Gifts to Minors Act.
The Company will furnish to any holder upon written request and
without charge a copy of the Indenture. Requests may be made to: Secretary,
Telemundo Group, Inc., 0000 Xxxx 0xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
A-6
ASSIGNMENT FORM
If you the holder want to assign this Senior Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Senior Note to
--------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint__________________________________ agent to transfer this
Senior Note on the books of the Company. The agent may substitute another to
act for him.
Date: Your signature:
-------------------- -----------------------------
(Sign exactly as your name appears on
the other side of this Senior Note)
Signature Guarantee*:
----------------------------------------------------------
--------------------------------------------------------------------------------
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in The City of New York or the city
where the principal office of the registrar is located or by a member of a
national securities exchange.
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Senior Note purchased by the Company pursuant
to Sections 4.10 or 4.14 of the Indenture, check the Box: / /
If you wish to have a portion of this Senior Note purchased by the
Company pursuant to Sections 4.10 or 4.14 of the Indenture, state the amount in
multiples of $1,000:
$___________________
Date:_______________________________
Your signature:_______________________________________________
(Sign exactly as your name appears
on the other side of this Senior Note)
Signature Guarantee*:__________________________________________
--------------------------------------------------------------------------------
* Your signature must be guaranteed by a commercial bank or trust company
located, or having a correspondent located, in The City of New York or the city
where the principal office of the registrar is located or by a member of a
national securities exchange.
