Exhibit 99.(b)(i)
U.S.$300,000,000 SENIOR FLOATING RATE NOTES DUE 2002
NOTE PURCHASE AGREEMENT
among
SUPERCANAL HOLDING S.A.,
and
VARIOUS SUBSIDIARIES THAT ARE
OR MAY BECOME PARTY HERETO,
as Issuers,
and
VARIOUS FINANCIAL INSTITUTIONS,
as Purchasers,
ING BARING (U.S.) SECURITIES, INC.,
as Arranger,
ING BARING (U.S.) CAPITAL CORPORATION,
as Administrative and Collateral Agent,
and
THE BANK OF NEW YORK,
as Registrar
__________________________________
Dated as of November 12, 1997
__________________________________
TABLE OF CONTENTS
Page
----
Section 1. Definitions and Principles of Construction . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . 1
1.2 Principles of Construction. . . . . . . . . . . . . . . 18
Section 2. Sale and Purchase of Notes.. . . . . . . . . . . . . . . . . 19
2.1 Authorization; Form of Notes; Evidence of Obligations . 19
2.2 Commitment; Notice of Funding
2.3 Closings. . . . . . . . . . . . . . . . . . . . . . . . 20
2.4 Amount of Each Funding. . . . . . . . . . . . . . . . . 22
2.5 Interest. . . . . . . . . . . . . . . . . . . . . . . . 23
2.6 Increased Costs, Illegality, etc. . . . . . . . . . . . 24
2.7 Compensation. . . . . . . . . . . . . . . . . . . . . . 25
Section 3. Commitment Fee; Additional Fees; Reduction of Total
Commitment . . . . . . . . . . . . . . . . . . . . . . . . 26
3.1 Commitment Fee. . . . . . . . . . . . . . . . . . . . . 26
3.2 Additional Fees . . . . . . . . . . . . . . . . . . . . 26
3.3 Reduction of Total Commitment . . . . . . . . . . . . . 26
3.4 Voluntary Termination of Unutilized Total Commitment. . 26
Section 4. Prepayments; Scheduled Repayments; Payments. . . . . . . . . 27
4.1 Voluntary Prepayments . . . . . . . . . . . . . . . . . 27
4.2 Scheduled Repayments. . . . . . . . . . . . . . . . . . 27
4.3 Mandatory Prepayments . . . . . . . . . . . . . . . . . 28
4.4 Method and Place of Payment . . . . . . . . . . . . . . 29
4.5 Net Payments. . . . . . . . . . . . . . . . . . . . . . 29
Section 5. Conditions Precedent . . . . . . . . . . . . . . . . . . . . 30
5.1 Conditions Precedent to the Initial Funding . . . . . . 30
5.2 Conditions Precedent to Subsequent Fundings . . . . . . 35
5.3 Conditions Precedent Relating to Acquisitions . . . . . 36
5.4 Satisfaction of Conditions; Representation. . . . . . . 40
Section 6. Representations, Warranties and Agreements . . . . . . . . . 40
6.1 Legal Status. . . . . . . . . . . . . . . . . . . . . . 40
6.2 Power and Authority . . . . . . . . . . . . . . . . . . 41
6.3 No Immunity . . . . . . . . . . . . . . . . . . . . . . 41
6.4 No Violation. . . . . . . . . . . . . . . . . . . . . . 41
6.5 Governmental Approvals. . . . . . . . . . . . . . . . . 41
(i)
6.6 Litigation. . . . . . . . . . . . . . . . . . . . . . . 42
6.7 Financial Statements; Projections; No Material Adverse
Change. . . . . . . . . . . . . . . . . . . . . . . . 42
6.8 Existing Indebtedness . . . . . . . . . . . . . . . . . 43
6.9 Use of Proceeds . . . . . . . . . . . . . . . . . . . . 43
6.10 Properties. . . . . . . . . . . . . . . . . . . . . . . 43
6.11 License . . . . . . . . . . . . . . . . . . . . . . . . 44
6.12 Patents, Licenses, Franchises and Formulas. . . . . . . 44
6.13 True and Complete Disclosure. . . . . . . . . . . . . . 44
6.14 Tax Returns and Payments. . . . . . . . . . . . . . . . 44
6.15 Employee Benefit Plans. . . . . . . . . . . . . . . . . 44
6.16 Capitalization. . . . . . . . . . . . . . . . . . . . . 45
6.17 Subsidiaries and Acquisition Subsidiaries . . . . . . . 45
6.18 Compliance with Statutes, etc.. . . . . . . . . . . . . 46
6.19 Labor Relations . . . . . . . . . . . . . . . . . . . . 46
6.20 Pledge Agreements . . . . . . . . . . . . . . . . . . . 46
6.21 Guaranty Trust Agreements . . . . . . . . . . . . . . . 47
6.22 Establishment of Liens. . . . . . . . . . . . . . . . . 47
6.23 Availability and Transfer of Foreign Currency . . . . . 47
6.24 Fees and Enforcement. . . . . . . . . . . . . . . . . . 47
6.25 Withholding and Value-Added Taxes . . . . . . . . . . . 48
6.26 The Acquisitions. . . . . . . . . . . . . . . . . . . . 48
6.27 Investment Company Act. . . . . . . . . . . . . . . . . 49
6.28 Public Utility Holding Company Act. . . . . . . . . . . 49
6.29 Securities Laws Representations . . . . . . . . . . . . 49
Section 7. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . 49
7.1 Information Covenants . . . . . . . . . . . . . . . . . 49
7.2 Books, Records and Inspections; Accounting Matters;
Provision of Certain Financial Statements . . . . . . 52
7.3 Compliance with Statutes, etc.. . . . . . . . . . . . . 52
7.4 Performance of Obligations. . . . . . . . . . . . . . . 52
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.6 Corporate Franchises. . . . . . . . . . . . . . . . . . 52
7.7 Compliance with License . . . . . . . . . . . . . . . . 53
7.8 Further Assurances. . . . . . . . . . . . . . . . . . . 53
7.9 Maintenance of Property; Insurance. . . . . . . . . . . 54
7.10 Fiscal Years. . . . . . . . . . . . . . . . . . . . . . 54
7.11 COMFER Approvals. . . . . . . . . . . . . . . . . . . . 54
7.12 Notices under Guaranty Trust Agreements . . . . . . . . 55
7.13 Additional Pledge Agreements. . . . . . . . . . . . . . 55
7.14 Pledge of Stock of Offeror. . . . . . . . . . . . . . . 55
7.15 Amendments to Bylaws. . . . . . . . . . . . . . . . . . 56
7.16 Registration of Ownership . . . . . . . . . . . . . . . 56
7.17 Transfer of Domicile of Limited Liability Companies . . 57
(ii)
7.18 Registration of SRL Pledge Agreements . . . . . . . . . 57
7.19 Transfer and Acquisition of Limited Liability
Companies . . . . . . . . . . . . . . . . . . . . . . 57
7.20 Interest Rate Protection. . . . . . . . . . . . . . . . 58
7.21 Payment Instructions. . . . . . . . . . . . . . . . . . 58
7.22 Financial Statements. . . . . . . . . . . . . . . . . . 58
7.23 Clearance Through DTC . . . . . . . . . . . . . . . . . 58
7.24 Interest Reserve Account. . . . . . . . . . . . . . . . 59
Section 8. Negative Covenants . . . . . . . . . . . . . . . . . . . . . 59
8.1 Liens . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.2 Dividends . . . . . . . . . . . . . . . . . . . . . . . 60
8.3 Indebtedness. . . . . . . . . . . . . . . . . . . . . . 61
8.4 Capital Expenditures. . . . . . . . . . . . . . . . . . 62
8.5 Advances, Investments and Loans . . . . . . . . . . . . 63
8.6 Consolidations, Mergers, Sales of Assets. . . . . . . . 64
8.7 Indebtedness-Subscriber Ratio . . . . . . . . . . . . . 65
8.8 Senior Indebtedness-Subscriber Ratio. . . . . . . . . . 65
8.9 Indebtedness-Annualized EBITDA Ratio. . . . . . . . . . 66
8.10 Senior Indebtedness-Annualized EBITDA Ratio . . . . . . 66
8.11 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . 66
8.12 Interest Coverage Ratio . . . . . . . . . . . . . . . . 67
8.13 Pro Forma Debt Service Coverage Ratio . . . . . . . . . 67
8.14 Issuance of Stock . . . . . . . . . . . . . . . . . . . 67
8.15 Limitations on Voluntary Payments and Bonuses and
Modifications of Indebtedness; Modifications and
Certain Agreements; etc.. . . . . . . . . . . . . . . 67
8.16 No Other Business . . . . . . . . . . . . . . . . . . . 68
8.17 Transactions with Affiliates. . . . . . . . . . . . . . 68
8.18 Limitation on Restrictions on Subsidiary Dividends
and Other Distributions . . . . . . . . . . . . . . . 68
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . 69
9.1 Payments. . . . . . . . . . . . . . . . . . . . . . . . 69
9.2 Representations, etc. . . . . . . . . . . . . . . . . . 69
9.3 Covenants . . . . . . . . . . . . . . . . . . . . . . . 69
9.4 Default Under Other Agreements. . . . . . . . . . . . . 69
9.5 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . . . 69
9.6 Security Documents. . . . . . . . . . . . . . . . . . . 70
9.7 Judgments . . . . . . . . . . . . . . . . . . . . . . . 70
9.8 Cancellation of Payment Obligation. . . . . . . . . . . 70
9.9 Abandonment of Business . . . . . . . . . . . . . . . . 70
9.10 Governmental Action . . . . . . . . . . . . . . . . . . 70
9.11 Licenses. . . . . . . . . . . . . . . . . . . . . . . . 71
9.12 COMFER Approvals. . . . . . . . . . . . . . . . . . . . 71
9.13 Adverse Change. . . . . . . . . . . . . . . . . . . . . 71
(iii)
9.14 Change in Control . . . . . . . . . . . . . . . . . . . 71
Section 10. The Administrative Agent and the Collateral Agent. . . . . . 72
10.1 Appointment of the Administrative Agent . . . . . . . . 72
10.2 Appointment of the Collateral Agent . . . . . . . . . . 73
10.3 Administration of the Collateral. . . . . . . . . . . . 73
10.4 Application of Proceeds . . . . . . . . . . . . . . . . 73
10.5 Nature of Duties. . . . . . . . . . . . . . . . . . . . 74
10.6 No Reliance on the Administrative Agent and the
Collateral Agent. . . . . . . . . . . . . . . . . . . 74
10.7 Request For Instructions By, and Direction of, the
Administrative Agent and the Collateral Agent . . . . 75
10.8 Reliance by the Administrative Agent and the
Collateral Agent. . . . . . . . . . . . . . . . . . . 75
10.9 Indemnification . . . . . . . . . . . . . . . . . . . . 75
10.10 Capacity as Purchasers. . . . . . . . . . . . . . . . . 76
10.11 Holders . . . . . . . . . . . . . . . . . . . . . . . . 76
10.12 Assignment; Resignation . . . . . . . . . . . . . . . . 76
Section 11. Restructuring of the Issuers . . . . . . . . . . . . . . . . 77
11.1 Restructuring Transactions. . . . . . . . . . . . . . . 77
11.2 Conditions. . . . . . . . . . . . . . . . . . . . . . . 77
11.3 Certain Modifications to Purchase Documents . . . . . . 78
11.4 Further Assurances. . . . . . . . . . . . . . . . . . . 79
Section 12. Certain Acquisitions and Related Matters . . . . . . . . . . 79
12.1 International Acquisitions. . . . . . . . . . . . . . . 79
12.2 The TDH Acquisition . . . . . . . . . . . . . . . . . . 82
Section 13. Representations and Agreements of the Purchasers . . . . . . 82
13.1 Securities Act. . . . . . . . . . . . . . . . . . . . . 83
13.2 Commitment to Accept Negotiable Obligations . . . . . . 83
Section 14. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 84
14.1 Payment of Expenses, etc. . . . . . . . . . . . . . . . 84
14.2 Right of Setoff . . . . . . . . . . . . . . . . . . . . 85
14.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . 85
14.4 Benefit of Agreement. . . . . . . . . . . . . . . . . . 86
14.5 Registration of Notes; Transfer and Exchange;
Transfer Restrictions . . . . . . . . . . . . . . . . 86
14.6 Joinder . . . . . . . . . . . . . . . . . . . . . . . . 92
14.7 Payments Pro Rata . . . . . . . . . . . . . . . . . . . 92
14.8 Calculations; Exclusion of Certain Persons;
Computations. . . . . . . . . . . . . . . . . . . . . 92
14.9 Governing Law; Submission to Jurisdiction; Venue. . . . 93
14.10 Obligation to Make Payments in Dollars. . . . . . . . . 94
14.11 Counterparts. . . . . . . . . . . . . . . . . . . . . . 95
(iv)
14.12 Effectiveness . . . . . . . . . . . . . . . . . . . . . 95
14.13 Headings Descriptive. . . . . . . . . . . . . . . . . . 95
14.14 Amendment or Waiver . . . . . . . . . . . . . . . . . . 95
14.15 Obligations Joint and Several . . . . . . . . . . . . . 95
14.16 Authorization . . . . . . . . . . . . . . . . . . . . . 95
14.17 Survival. . . . . . . . . . . . . . . . . . . . . . . . 95
14.18 Domicile of Advances. . . . . . . . . . . . . . . . . . 95
14.19 Confidentiality . . . . . . . . . . . . . . . . . . . . 96
14.20 Base Rate Advances During Interim Period. . . . . . . . 96
14.21 Waiver of Security, Performance Bond, etc . . . . . . . 96
14.22 Interest Reserve Account Payments, Security
Interest, etc . . . . . . . . . . . . . . . . . . . . 97
14.23 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . 98
Exhibit A Note
Exhibit B Notice of Funding
Exhibit C Officer's Certificate
Exhibit D-1 Xxxxxx & Xxxxx Opinion
Exhibit D-2 Xxxxxx X'Xxxxxxx Opinion
Exhibit D-3 Estudio Vila Opinion
Exhibit E-1 SA Pledge Agreement
Exhibit E-2 SRL Pledge Agreement
Exhibit F Guaranty Trust Agreement
Exhibit G Joinder
Exhibit H Compliance Certificate
Exhibit I Financial Statements Certificate
Exhibit J Accredited Investor's Letter
Schedule I Schedule of Commitments
Schedule II Funding Offices
Schedule III COMFER Exceptions
Schedule IV Litigation
Schedule V Existing Indebtedness
Schedule VI Supercanal Holding Shareholders/Options, etc.
Schedule VII Subsidiaries
Schedule VIII Liens
Schedule IX Permitted Stock Issuances
(v)
NOTE PURCHASE AGREEMENT, dated as of November 12, 1997, among
SUPERCANAL HOLDING S.A. ("Supercanal Holding") and SUPERCANAL S.A.
("Supercanal"), each a corporation (sociedad anonima) organized and existing
under the laws of the Republic of Argentina, MIRROR HOLDING S.R.L., a limited
liability company (sociedad de responsabilidad limitada) organized and existing
under the laws of the Republic of Argentina ("SRL Holding"), each of the other
Persons which have executed this Agreement below as an Issuer and each other
Person which hereafter becomes party hereto as an Issuer in accordance with the
provisions hereof (Supercanal Holding, Supercanal, SRL Holding and each other
Person identified above, each an "Issuer" and collectively, the "Issuers"), and
the financial institutions listed in Schedule I hereto (each, a "Purchaser" and
collectively, the "Purchasers"), ING BARING (U.S.) SECURITIES, INC., as arranger
(the "Arranger"), ING BARING (U.S.) CAPITAL CORPORATION, as administrative agent
(in such capacity, the "Administrative Agent"), and collateral agent (in such
capacity, the "Collateral Agent"), and THE BANK OF NEW YORK, as registrar (in
such capacity, the "Registrar").
W I T N E S S E T H:
WHEREAS, the Issuers have duly authorized and have determined to
create and issue, from time to time, up to U.S.$300,000,000 aggregate principal
amount of their Senior Floating Rate Notes due 2002, upon the terms and
conditions herein set forth;
WHEREAS, the Purchasers desire to purchase the Notes from time to time
upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto hereby agree as follows:
Section 1. Definitions and Principles of Construction.
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined, except as otherwise
provided):
"Acquired Issuer" shall mean the Issuers the Stock of which was
acquired by Supercanal Holding, SRL Holding or the Purchasing Agents with
proceeds of loans under the Syndicated Facilities.
"Acquisition" shall mean the acquisition by an Issuer of the Stock or
assets of any Acquisition Subsidiary for a purchase price not greater than the
Acquisition Price.
"Acquisition Documents" shall mean, as to any Approved Acquisition,
the purchase agreement in respect thereof and all other documents and
instruments relating to or effecting such Approved Acquisition (other than the
Purchase Documents).
"Acquisition Price" shall mean the purchase price as shall have been
disclosed to and approved by the Required Purchasers in connection with any
Approved Acquisition.
"Acquisition Subsidiary" shall mean any Person approved by the
Required Purchasers.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Advance" shall have the meaning provided in Section 2.2(b).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person; provided, however, that for purposes of
Section 8.17, an Affiliate of the Issuers shall include any Person that directly
or indirectly owns more than 5% of any Issuer and any officer or director of any
Issuer or any such Person (and the spouse, parent, brother, sister or children
of any such officer, director or other Person). A Person shall be deemed to
control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting Stock, by contract or
otherwise.
"Agreement" shall mean this Note Purchase Agreement, as modified,
supplemented or amended from time to time.
"Annualized Consolidated EBITDA" shall mean:
(a) as at the end of any calendar quarter ended on or prior to
March 31, 1998, the Consolidated EBITDA of Supercanal Holding for the calendar
quarter then ended, multiplied by four; and
(b) as at the end of any calendar quarter ended on or after June 30,
1998, the Consolidated EBITDA of Supercanal Holding for the period of two
consecutive calendar quarters then ended, multiplied by two.
"Applicable Acquisition" shall mean the Acquisition of any Applicable
Acquisition Subsidiary in any Approved Acquisition.
"Applicable Acquisition Documents" shall mean, as to any Applicable
Acquisition, the Acquisition Documents relating thereto.
"Applicable Acquisition Subsidiary" shall mean, as to any Funding
Date, any Acquisition Subsidiary which was acquired by an Issuer in any Approved
Acquisition, and for
2
which all or part of the Acquisition Price and/or Permitted Transaction Expenses
in connection therewith will be paid with proceeds of an Advance on such Funding
Date.
"Applicable Indebtedness Amount" shall mean U.S.$510,000,000.
"Applicable Margin" shall mean 4.50%; provided, however, that from and
after the date on which the Issuers shall have satisfied in full all principal,
interest and other amounts due under the Bridge Purchase Documents, the
Applicable Margin shall be increased or decreased as of the first day of each
Interest Period to the percentage set forth below corresponding to the
Indebtedness-Annualized EBITDA Ratio in effect as of such date:
Indebtedness-Annualized EBITDA
Ratio Percentage
----- ----------
GREATER THAN OR EQUAL TO 7.0 4.50%
GREATER THAN OR EQUAL TO 6.0 but LESS THAN 7.0 4.00%
GREATER THAN OR EQUAL TO 5.5 but LESS THAN 6.0 3.50%
GREATER THAN OR EQUAL TO 5.0 but LESS THAN 5.5 3.00%
GREATER THAN OR EQUAL TO 4.5 but LESS THAN 5.0 2.50%
GREATER THAN OR EQUAL TO 4.0 but LESS THAN 4.5 2.00%
GREATER THAN OR EQUAL TO 3.5 but LESS THAN 4.0 1.75%
LESS THAN 3.5 1.50%
The calculation of the Indebtedness-Annualized EBITDA Ratio in effect on the
first day of each Interest Period shall be based upon the financial statements
provided to the Administrative Agent pursuant to Section 7.1(i) and the related
certificate required pursuant to Section 7.1(v). If the Issuers have not
submitted to the Administrative Agent such financial statements and certificate
as and when required pursuant to Section 7.1, the Applicable Margin shall be the
highest percentage indicated until the Interest Determination Date next
succeeding the delivery of financial statements and certificates by the Issuers
to the Administrative Agent as required under Section 7.1. If the interest
borne by any Advances is determined by reference to the Base Rate pursuant to
Section 2.6(a), the term Applicable Margin shall mean with respect to such
Advances during such Interest Period the Applicable Margin as calculated above,
less 1.00%.
"Approved Acquisition" shall mean, as of any Funding Date, an
Acquisition for which all or part of the Acquisition Price and/or Permitted
Transaction Expenses in connection therewith will be paid with proceeds of an
Advance made on such Funding Date and in connection
3
with which the conditions to such Funding specified in Section 5.3 were
satisfied on or prior to such Funding Date.
"Argentina" shall mean the Republic of Argentina.
"Argentine GAAP" shall mean generally accepted accounting principles
in Argentina, consistently applied during a relevant period.
"Assignment and Acceptance" shall mean (i) as to any transfer of a
Note at any time on or prior to the earlier to occur of (x) the Availability
Expiry Date, and (y) the date on which the Total Commitment is funded hereunder,
an assignment and acceptance substantially in the form of Annex A to the Notes,
and (ii) as to any transfer of a Note thereafter, an assignment and acceptance
substantially in the form of Annex B to the Notes.
"Availability Expiry Date" shall mean the date 120 days after
Effective Date; provided, however, that solely for purposes of (i) 7.23, (ii)
any Advances requested under Section 12.1(b), and (iii) 14.5(d), the
Availability Expiry Date shall mean the date 180 days after the Effective Date.
"Bankruptcy Code" shall have the meaning provided in Section 9.5.
"Base Rate" shall mean, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day, and (ii) the sum of 1% plus the
Federal Funds Rate for such day.
"Bridge Acquisitions" shall mean all "Acquisitions" as defined under
the Bridge Note Purchase Agreement.
"Bridge Advances" shall mean all "Advances" as defined under the
Bridge Note Purchase Agreement.
"Bridge Collateral Agent" shall mean the Collateral Agent under, and
as defined in, the Bridge Note Purchase Agreement.
"Bridge Guaranty Trust Agreements" shall mean the Guaranty Trust
Agreements executed and delivered pursuant to, and as defined in, the Bridge
Note Purchase Agreement.
"Bridge Note Purchase Agreement" shall mean that certain Bridge Note
Purchase Agreement, dated as of the date hereof, between the Issuers, various
financial institutions, ING Baring (U.S.) Securities, Inc., as arranger, ING
Baring (U.S.) Capital Corporation, as administrative agent and collateral agent,
and The Bank of New York, as registrar.
"Bridge Notes" shall mean the "Notes" as defined under the Bridge Note
Purchase Agreement.
"Bridge Obligations" shall mean the "Obligations" as defined under the
Bridge Note Purchase Agreement. For purposes hereof, the Bridge Obligations
shall be deemed to be "outstanding" at all times prior to the Availability
Expiry Date (as defined in the Bridge Note
4
Purchase Agreement) and for so long as any Bridge Advances or other Bridge
Obligations remain unpaid.
"Bridge Purchase Documents" shall mean the "Purchase Documents" as
defined in the Bridge Note Purchase Agreement.
"Bridge Purchasers" shall mean the Purchasers under, and as defined
in, the Bridge Note Purchase Agreement.
"Bridge SA Pledge Agreements" shall mean the SA Pledge Agreements
executed and delivered pursuant to, and as defined in, the Bridge Note Purchase
Agreement.
"Bridge SRL Pledge Agreements" shall mean the SRL Pledge Agreements
executed and delivered pursuant to, and as defined in, the Bridge Note Purchase
Agreement.
"Broadcasting Law" shall mean Argentine Law No. 22,285, passed on
September 15, 1980, as amended.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York, Curacao or Buenos Aires a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close, and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Advances, any day which is a
Business Day described in clause (i) above and which is also a day for trading
by and between banks in the London interbank Eurodollar market.
"Capital Expenditures" shall have the meaning provided in Section 8.4.
"Cash Equivalents" shall mean, as to any Person, (i)
dollar-denominated securities issued or directly and fully guaranteed or insured
by (x) the United States or any Governmental Authority thereof (provided that
the full faith and credit of the United States is pledged in support thereof)
having maturities of not more than six months from the date of acquisition, or
(y) Argentina or any Governmental Authority thereof (provided that the full
faith and credit of Argentina is pledged in support thereof) having maturities
of not more than 30 days from the date of acquisition, (ii) Dollar-denominated
time deposits or certificates of deposit of any commercial bank, or principal
banking subsidiary of a bank holding company, in any such case incorporated in
the United States of recognized standing and having a long-term unsecured debt
rating of at least "A" or the equivalent thereof from Standard & Poor's Ratings
Group, a division of The McGraw Hill Companies, or "A2" or the equivalent
thereof from Xxxxx'x Investors Service, Inc., (iii) Dollar-denominated
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (ii) above, (iv) commercial paper
issued by any Person incorporated in (x) the United States rated at least A-1 or
the equivalent thereof by Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, or at least P-1 or the equivalent thereof by Xxxxx'x
Investor Service, Inc. or (y) Argentina rated for external indebtedness at least
investment grade by Duff & Xxxxxx, and in each case of clause (x) and (y),
5
maturing not more than six months after the date of acquisition by the Issuer,
and (v) investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (iv)
above.
"Collateral" shall mean and include all of the collateral pledged or
assigned in guaranty trust under the Security Documents.
"Collateral Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"COMFER" shall mean the Comite Federal de Radiofusion, the Argentine
Governmental Authority responsible for administering the Broadcasting Law.
"COMFER Approval" shall mean the approval of COMFER to the transfer
and acquisition of Stock or assets of a Person which holds a License.
"Commitment" shall mean for each Purchaser, the amount set forth
opposite such Purchaser's name in Schedule I directly below the column entitled
"Commitment", as the same may be reduced pursuant to Section 3.3 and 9, and as
the same may be adjusted pursuant to Section 14.5 and/or any Assignment and
Acceptance executed and delivered pursuant to the provisions thereof.
"Commitment Fee" shall have the meaning provided in Section 3.1.
"Consolidated EBIT" shall mean, as to any Person and for any period,
the consolidated net income of such Person and its Subsidiaries for such period,
before interest expense and provision for income taxes and without giving effect
to any extraordinary gains and gains from sales of assets (other than sales of
inventory in the ordinary course of business).
"Consolidated EBITDA" shall mean, as to any Person and for any period,
the Consolidated EBIT of such Person and its Subsidiaries for such period,
adjusted by (i) adding thereto (x) the amount of all amortization and
depreciation that were deducted in arriving at such Consolidated EBIT for such
period, (y) all non-recurring financing costs and expenses incurred by any of
the Issuers, including in connection with the Purchase Documents, the Proposed
IPO or the Proposed High Yield Debt Offering, and (z) all non-recurring costs
and expenses incurred by any of the Issuers in connection with any severance or
employment termination expenses arising in connection with any reorganization of
an Issuer immediately following the acquisition thereof, and (ii) subtracting
therefrom the amount of all non-cash gains that were added in arriving at such
Consolidated EBIT for such period, and (iii) making a pro forma adjustment
approved by the Administrative Agent for any Acquisition effected during such
period, including any identified cost savings which would have been achieved by
such Acquisition Subsidiary during such period if it had been an Affiliate of
Supercanal Holding at the beginning of such period.
"Consolidated Fixed Charges" shall mean, as to any Person and for any
period, the sum of (i) the total consolidated Interest Expense of such Person
and its Subsidiaries for such period (calculated without regard to any
limitations on the payment thereof), (ii) imputed
6
consolidated interest expense on capitalized lease obligations of such Person
and its Subsidiaries for such period, (iii) the scheduled principal amount of
all amortization payments on all Indebtedness of such Person and its
Subsidiaries for such period (as determined on the first day of the respective
period), (iv) the total amount of all income taxes of such Person and its
Subsidiaries for such period, on a consolidated basis, and (v) the total amount
of Capital Expenditures of such Person and its Subsidiaries for such period, on
a consolidated basis (other than Capital Expenditures financed with proceeds of
Indebtedness).
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing any Indebtedness, leases, dividends or other
obligations ("primary obligations") of any other Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the holder of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made (subject to any limitation therein) or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith.
"Credit Parties" shall mean each of the Issuers and any Subsidiaries
of any of the foregoing.
"Default" shall mean any event, act or condition which, with notice or
lapse of time, or both, would constitute an Event of Default.
"Dollar Denominated Securities" shall mean dollar denominated Bonos
Externos of Argentina or any other public or private equity or debt securities
actively traded on any national securities exchange in the United States or the
National Market System of the National Association of Securities Dealers
Automated Quotation System.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Effective Date" shall have the meaning provided in Section 14.12.
"Event of Default" shall have the meaning provided in Section 9.
7
"Excess Cash Flow" shall mean, for any period, an amount equal to the
difference, if such difference is positive, between (i) the Consolidated EBITDA
of Supercanal Holding for such period, and (ii) the sum of (w) the aggregate
amount of payments of principal and interest by Supercanal Holding and/or its
Subsidiaries during such period in respect of any of their respective
Indebtedness, (x) the aggregate amount of all Capital Expenditures made by
Supercanal Holding and its Subsidiaries during such period (other than Capital
Expenditures financed with the proceeds of Indebtedness), (y) the aggregate
amount of all income taxes paid or required to be paid in respect of such period
by Supercanal Holding and its Subsidiaries in cash, and (z) the net change in
the working capital of Supercanal Holding and its Subsidiaries during such
period.
"Excluded Subsidiary" shall have the meaning provided in Section
14.8(b).
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published for such day (or if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not published for any day which is a Business Day, the average
rate quoted to Xxxxxx Guaranty Trust Company of New York on such day on such
transactions as determined by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.
"Final Maturity Date" shall mean the date five years after the
Effective Date.
"Fixed Charge Coverage Ratio" shall mean, as to any Person and for any
period, the ratio of (i) the Consolidated EBITDA of such Person for such period
(calculated without making the pro forma adjustment specified in clause (iii) of
the definition of Consolidated EBITDA), to (ii) the Consolidated Fixed Charges
of such Person for such period.
"Funding" shall mean a funding of Advances to the Issuers on a Funding
Date.
"Funding Date" shall mean the date occurring on or after the Effective
Date on which a Funding hereunder occurs.
"Funding Office" shall mean, with respect to each Purchaser, the
office of such Purchaser specified as its "Funding Office" opposite its name on
Schedule II or such other office, Subsidiary or Affiliate of such Purchaser as
such Purchaser may from time to time specify as such to the Issuer and the
Administrative Agent.
"Governmental Approval" shall mean any authorization, approval,
consent, license, concession, ruling, permit, tariff, rate, certification,
order, validation, exemption, waiver, variance, or registration, filing or
recording with, any Governmental Authority.
8
"Governmental Authority" shall mean any ministry, administrative
department, agency, commission, bureau, board, regulatory authority, registry,
instrumentality, corporation or other governmental body, entity, judicial or
administrative body or court (including, without limitation, banking and taxing
authorities), of, or owned or controlled by, as the case may be, Argentina, the
United States or any other jurisdiction or any political subdivision of any of
the foregoing.
"Guaranty Trust Agreement" shall have the meaning provided in Section
5.1(g).
"Guaranty Trustee" shall mean Red Rose Investment N.V., or any
successor entity designated by the Administrative Agent and approved by the
Issuers, such approval not to be unreasonably withheld, conditioned or delayed.
"Indebtedness" shall mean, as to any Person, without duplication,
(i) all indebtedness (including principal, interest, fees and charges) of such
Person (x) evidenced by any notes, bonds, debentures or similar instruments made
or issued by such Person, (y) for borrowed money or (z) for the deferred
purchase price of property or services (other than current trade accounts
payable incurred in the ordinary course of business), (ii) the face amount of
all letters of credit issued for the account of such Person, (iii) all
liabilities secured by any Lien on any property owned by such Person, whether or
not such liabilities have been assumed by such Person, (iv) the aggregate amount
required to be capitalized in accordance with Argentine GAAP under leases under
which such Person is the lessee and (v) all Contingent Obligations of such
Person.
"Indebtedness-Annualized EBITDA Ratio" shall mean, as at the end of
any calendar quarter, the ratio of (i) the total consolidated Indebtedness of
Supercanal Holding and its Subsidiaries as at the end of such quarter (less the
aggregate amount of (x) any cash or Cash Equivalents of Supercanal Holding
and/or its Subsidiaries as at the end of such quarter in excess of U.S.$500,000,
and (y) any cash or Cash Equivalents held for the benefit of Supercanal Holding
and/or its Subsidiaries as at the end of such quarter (other than amounts held
in the Interest Reserve Account) and pledged to the Collateral Agent for the
benefit of the Purchasers pursuant to documentation satisfactory in all respects
to the Collateral Agent) to (ii) the Annualized Consolidated EBITDA of
Supercanal Holding for such calendar quarter.
"Indebtedness-Subscriber Ratio" shall mean, as to any Person and for
any period, the ratio of (i) the total consolidated Indebtedness of such Person
and its Subsidiaries as at the end of such period (less the aggregate amount of
(x) any cash or Cash Equivalents of such Person and/or its Subsidiaries as at
the end of such period in excess of U.S.$500,000, and (y) any cash or Cash
Equivalents held for the benefit of such Person and/or its Subsidiaries as at
the end of such period (other than amounts held in the Interest Reserve Account)
and pledged to the Collateral Agent for the benefit of the Purchasers pursuant
to documentation satisfactory in all respects to the Collateral Agent) to (ii)
the total number of Net Subscribers of such Person and its Subsidiaries as at
the end of such period.
"ING London" shall have the meaning provided in Section 2.2(e).
9
"Initial Funding Date" shall mean the first Funding Date hereunder on
which the Purchasers shall have made Advances.
"Interest Coverage Ratio" shall mean, as to any Person and for any
period, the ratio of (i) Consolidated EBITDA of such Person (calculated without
making the pro forma adjustment specified in clause (iii) of the definition of
Consolidated EBITDA) to (ii) the Interest Expense of such Person.
"Interest Determination Date" shall mean, with respect to any Advance,
the second Business Day prior to the commencement of any Interest Period
relating to such Advance.
"Interest Expense" shall mean, as to any Person and for any period,
the total interest expense of such Person and its Subsidiaries with respect to
all outstanding Indebtedness of such Person and its Subsidiaries (less interest
income from cash or Cash Equivalents of such Person and its Subsidiaries during
such period).
"Interest Period" shall mean (i) as to any Funding occurring prior to
December 8, 1997, an initial period commencing on the date of such Funding and
ending on December 8, 1997, (ii) as to any Funding occurring on or after
December 9, 1997 and before March 8, 1998, an initial period commencing on the
date of such Funding and ending on Xxxxx 0, 0000, (xxx) as to any Funding
occurring on or after March 9, 1998 and before June 8, 1998, an initial period
commencing on the date of such Funding and ending on June 8, 1998, and (iv) as
to each Funding, each subsequent period commencing on the last day of the next
preceding Interest Period and ending three months thereafter; provided that,
each of the foregoing provisions relating to Interest Periods is subject to the
following:
(x) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(y) any Interest Period that would otherwise extend beyond the Final
Maturity Date shall end on the Final Maturity Date; and
(z) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Reserve Account" shall have the meaning provided in
Section 7.24.
"International Acquisition" shall have the meaning provided in
Section 12.1.
"International Acquisition Subsidiary" shall mean (i) any Person the
Stock of which was acquired by one or more Issuers or a Purchasing Agent in an
International
10
Acquisition, (ii) any Person organized outside of Argentina which acquired the
assets of any other Person in any International Acquisition, and (iii)
Supercanal Bolivia.
"Issuer" and "Issuers" shall have the meaning provided in the first
paragraph of this Agreement. The term Issuer shall include any Acquisition
Subsidiary acquired in an Approved Acquisition from and after the time of the
execution and delivery of the applicable Joinder Agreement and any other Person
which becomes party hereto pursuant to any agreement or other instrument
executed and delivered for such purpose.
"Joinder Agreements" shall have the meaning provided in Section
5.3(d).
"Latlink" shall mean Latlink Argentina, Inc., a corporation organized
and existing under the laws of Delaware.
"Law" shall mean any constitution, treaty or convention, statute,
law, code, act, ordinance, decree, order, injunction, rule, regulation or
resolution. For purposes of Sections 2.6 and 4.5, the term Law shall also
include any guideline, interpretation, direction, policy, restriction or
request (whether or not in any such case having the force of law), or
judicial, administrative or arbitral decision.
"LIBOR" shall mean, with respect to each Interest Period for the
Advances, (i) the rate which appears on the Telerate Page 3750 (rounded
upward to the next whole multiple of 1/16th of 1%) for deposits in Dollars
comparable to the outstanding principal amount of the Advances with
maturities comparable to such Interest Period (provided that, if such
Telerate Page is not available or if no such rate is quoted for the relevant
Interest Period, then LIBOR shall mean the average of the rates which appear
on the Reuters Screen LIBO Page; and, if such LIBO Page is not available or
if no such rate is quoted for the relevant Interest Period, then LIBOR shall
mean the average of the offered quotation to two or more reference banks
selected by the Administrative Agent for Dollar deposits of amounts
comparable to the outstanding principal amount of the Advance for which an
interest rate is then being determined with maturities comparable to the
Interest Period to be applicable to such Advance (in each such case rounded
upward to the next whole multiple of 1/16th of 1%)), determined as of
10:00 A.M. (New York time) on the date which is two Business Days prior to the
commencement of such Interest Period, divided by (ii) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements, if any
(including, without limitation, any marginal, emergency, supplemental,
special or other reserves) applicable on the date two Business Days prior to
the commencement of such Interest Period to any member bank of the Federal
Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.
"License" shall mean a cable television broadcasting license issued by
COMFER pursuant to the Broadcasting Law.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security
11
agreement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing or similar
statement or notice filed under any recording or notice statute, and any lease
having substantially the same effect as any of the foregoing).
"Margin Stock" shall have the meaning provided in Regulation U of the
Board of Governors of the Federal Reserve System.
"Material Adverse Effect" shall mean, with respect to any Person, (a)
any material adverse effect on the condition (financial or otherwise), business,
operations, assets, revenues, properties or prospects of such Person and, unless
the context indicates otherwise, such Person's Subsidiaries, taken as a whole,
and/or (b) any material adverse effect on the ability of such Person to perform
any of its obligations under any Purchase Document to which it is a party.
"Multicanal" shall mean Multicanal S.A., a corporation (sociedad
anonima) organized and existing under the laws of Argentina.
"Net Proceeds" shall mean (i) the gross cash proceeds received by any
of the Issuers, the Purchasing Agents or the Offeror in connection with any of
the transactions referred to, as the case may be, in Sections 4.3(a), (b) or
(c), less (ii)(v) all related underwriting, broker, dealer, sales or placement
agent fees and commissions, and all out-of-pocket expenses paid by the Issuers
in connection therewith, including, without limitation, fees and expenses with
respect to legal, accounting, investment banking, brokerage, financial advisory
and other professional services and printing, telecommunications and duplicating
expenses, (w) all amounts required to be paid to ING Bank N.V., Argentina
Branch, pursuant to that certain letter agreement dated July 28, 1997, between
ING (U.S.) Capital Corporation, ING Bank N.V., Argentina Branch, and the Issuers
under the Syndicated Facilities (provided, that amounts payable pursuant to such
letter agreement shall only be deducted if the provisions thereof require
payment in connection with the transaction for which Net Proceeds are being
determined), (x) all taxes, assessments, registration or filing fees or similar
charges payable by the Issuers as a consequence of any such transaction, (y) the
amount of such gross cash proceeds required to be used to pay interest or other
amounts on any Indebtedness to the Purchasers which is required to be repaid,
and (z) the amount of such proceeds, if any, required to be used to make any
mandatory prepayments pursuant to Section 4.3(a) of the Bridge Note Purchase
Agreement plus interest and other amounts, if any.
"Net Subscribers" shall mean, with respect to any Issuer, the product
of (x) the number of Subscribers of such Issuer on the date of determination,
and (y) the direct or indirect percentage ownership of Supercanal Holding, SRL
Holding or their respective Purchasing Agents of the outstanding Stock of such
Issuer, on a fully diluted basis.
"Noon Buying Rate" shall mean the noon buying rate in New York City
for cable transfers in foreign currencies as certified for customs purposes by
the Federal Reserve Bank of New York.
"Note" shall have the meaning provided in Section 2.1.
12
"Notice of Funding" shall have the meaning provided in Section
2.2(b).
"Notice Office" shall mean the office of the Administrative Agent
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
office as the Administrative Agent may hereafter designate in writing as such
to the other parties hereto.
"Obligations" shall mean all present and future obligations,
liabilities and other amounts owing to the Administrative Agent, the
Collateral Agent or any Purchaser pursuant to the terms of this Agreement or
any other Purchase Document. For purposes of Section 4.3, the term
"Obligations" shall include only Obligations then due and payable.
"Offeror" shall mean Supercanal Holding or any other holding company
organized in connection with any public or private offering in the
international and/or Argentine capital markets, of capital stock or debt
securities of Supercanal Holding or any of the other Issuers (or any direct
or indirect holding company of Supercanal Holding or any of the Issuers) or
the Offeror, including, without limitation, as contemplated in Section 11.1
or in that certain mandate letter dated January 23, 1997, between the
Arranger and Supercanal Holding.
"Payment Office" shall mean the office of the Administrative Agent
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
office as the Administrative Agent may hereafter designate in writing as such
to the other parties hereto.
"Permitted Funding Amount" shall have the meaning provided in
Section 2.4.
"Permitted Liens" shall have the meaning provided in Section 8.1.
"Permitted Transaction Expenses" shall mean any transaction fees and
expenses in connection with the transactions contemplated hereby or any
Approved Acquisition, to the extent disclosed to and approved by the
Administrative Agent.
"Person" shall mean any individual, partnership, limited
partnership, joint venture, firm, corporation, association, trust or other
enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Peso" shall mean the lawful currency of Argentina.
"Prime Rate" shall mean the rate of interest publicly announced by
ING (U.S.) Capital Corporation in New York City from time to time as its
Prime Rate.
"Pro Forma Debt Service Coverage Ratio" shall mean, as at the last
day of any calendar quarter, the ratio of the Annualized Consolidated EBITDA
of Supercanal Holding as at such day to the Pro Forma Debt Service of
Supercanal Holding as at such day.
"Pro Forma Debt Service" shall mean, on any date of determination,
the sum of (i) all required scheduled principal payments on the consolidated
Indebtedness of Supercanal Holding and its Subsidiaries for the 12-month
period following the date of determination, and (ii)
13
the total projected consolidated Interest Expense of Supercanal Holding and
its Subsidiaries for the 12-month period following the date of determination;
provided, that for the 12-month period in which the final Repayment Date
occurs, Pro Forma Debt Service shall not include the principal amount of the
final Scheduled Repayment.
"Process Agent" shall mean National Registered Agents, Inc.,
presently located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Proposed High Yield Debt Offering" shall mean the proposed high
yield bond issue by Supercanal Holding in the international capital markets
upon the terms and conditions set forth in that certain commitment letter
dated September 10, 1997, between ING Baring (U.S.) Securities, Inc. and
Supercanal Holding.
"Proposed IPO" shall mean the proposed initial public offering by
Supercanal Holding in the international capital markets of Stock of one or
more of the Issuers, which will result in Net Proceeds to the Issuers of not
less than U.S.$100,000,000, and for which the Arranger will be Global
Coordinator, as contemplated in that certain mandate letter dated January 23,
1997, between the Arranger and Supercanal Holding.
"Purchase Documents" shall mean and include (i) this Agreement, (ii)
the Notes, (iii) the Security Documents, (iv) the Joinder Agreements, (v) the
Transferor Powers of Attorney, and (vi) all other documents and instruments
executed and delivered in connection with any of the foregoing.
"Purchaser" shall have the meaning provided in the first paragraph
of this Agreement, subject to Section 14.5 hereof.
"Purchase Money Financing" shall mean any purchase money
Indebtedness incurred by any of the Issuers or the Purchasing Agents from the
sellers or any other third party in connection with the acquisition of the
Stock or assets of any Issuer.
"Purchasing Agent" shall mean any or all of Xxxxxx Xxxxxxx Xxxx,
Xxxxxxx Xxxx Xxxx Santander, Xxxxxxx Xxxx and any other Person which was
appointed by any Issuer to acquire and/or hold and own for and on behalf of
an Issuer the Stock of any Person.
"QIB" shall have the meaning provided in Section 13.1(b).
"Receivables" shall mean all of the right, title and interest of an
Issuer in and to all amounts, or portions thereof, owed or to be owed by any
subscriber of cable television services to such Issuer for cable television
services provided by the Issuer pursuant to a License.
"Registrar" shall mean The Bank of New York.
"Registrar Office" shall mean the office of the Registrar located at
000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, or such other office
as the Registrar may thereafter designate in writing as such to the other
parties hereto.
14
"Repayment Date" shall have the meaning provided in Section 4.2(a).
"Required Purchasers" shall mean the Purchasers holding more than
50% of the then aggregate unpaid principal amount of the Advances or, if no
such principal amount is then outstanding, Purchasers holding more than 50%
of the Total Commitment; provided, however, that in connection with any
matter relating to the approval of any Acquisition or any matter directly
related thereto for which the Acquisition Price is greater than
U.S.$25,000,000 (or the equivalent), the term Required Purchasers shall mean
the Purchasers holding more than 66 2/3 % of the then aggregate unpaid
principal amount of the Advances or, if no such principal amount is then
outstanding, the Purchasers holding more than 66 2/3 % of the Total
Commitment; provided further, that in connection with any matter relating to
the approval of an Acquisition or any matter in connection therewith for
which (i) the Acquisition Price is equal to or less than U.S.$10,000,000 (or
the equivalent), and (ii) the Acquisition Price, when added to the
Acquisition Price for all other Acquisitions and the Acquisition Price (as
defined under the Bridge Note Purchase Agreement) for all the Bridge
Acquisitions (other than, in each such case, International Acquisitions)
theretofore effected after the Effective Date which have been approved by the
Administrative Agent is less than U.S.$25,000,000 (or the equivalent), the
term Required Purchasers shall mean the Administrative Agent.
"Resale Restriction Termination Date" shall have the meaning
provided in Section 13.1(b).
"Restructuring Transaction" shall have the meaning provided in
Section 11.1.
"SA Pledge Agreements" shall have the meaning provided in Section
5.1(f)(i).
"Scheduled Repayment" shall have the meaning provided in Section
4.2(a).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Documents" shall mean and include (i) the SA Pledge
Agreements, (ii) the SRL Pledge Agreements, (iii) the Guaranty Trust
Agreements, (iv) the Bridge SA Pledge Agreements, (v) the Bridge SRL Pledge
Agreements, (vi) and the Bridge Guaranty Trust Agreements, and (iv) all other
agreements and/or instruments executed and delivered to secure the Notes.
"Senior Indebtedness-Annualized EBITDA Ratio" shall mean, as at the
end of any calendar quarter, the ratio of (i) the total consolidated
Indebtedness of Supercanal Holding and its Subsidiaries under this Agreement
and the other Purchase Documents as at the end of such quarter (less the
aggregate amount of (x) any cash or Cash Equivalents of Supercanal Holding
and/or its Subsidiaries as at the end of such quarter in excess of
U.S.$500,000, and (y) any cash or Cash Equivalents held for the benefit of
Supercanal Holding and/or its Subsidiaries as at the end of such quarter
(other than amounts held in the Interest Reserve Account) and pledged to the
Collateral Agent for the benefit of the Purchasers pursuant to documentation
satisfactory in all respects to the Collateral Agent) to (ii) the Annualized
Consolidated EBITDA of Supercanal Holding for such calendar quarter.
15
"Senior Indebtedness-Subscriber Ratio" shall mean, as to any Person
and for any period, the ratio of (i) the total consolidated Indebtedness of
such Person and its Subsidiaries under this Agreement and the other Purchase
Documents as at the end of such period (less the aggregate amount of (x) any
cash or Cash Equivalents of such Person and/or its Subsidiaries as at the end
of such period in excess of U.S.$500,000, and (y) any cash or Cash
Equivalents held for the benefit of such Person and/or its Subsidiaries as at
the end of such period (other than amounts held in the Interest Reserve
Account) and pledged to the Collateral Agent for the benefit of the
Purchasers pursuant to documentation satisfactory in all respects to the
Collateral Agent) to (ii) the total number of Net Subscribers of such Person
and its Subsidiaries as at the end of such period.
"Shareholders' Agreement" shall mean the Acuerdo de Accionistas
dated July 25, 1996, between Multicanal, Latlink and the Vilas, as amended,
modified or supplemented through the Effective Date.
"SRL Issuers" shall mean the Issuers (other than SRL Holding)
organized as limited liability companies (sociedades de responsabilidad
limitada).
"SRL Holding" shall have the meaning provided in the first paragraph
of this Agreement.
"SRL Pledge Agreements" shall have the meaning provided in Section
5.1(f)(ii).
"Stock" shall mean any and all shares, interests, participations or
other equivalents, including, without limitation, cuotas (however designated,
whether voting or non-voting, ordinary or preferential) in equity of any
Person, whether now outstanding or issued after the date hereof.
"Subscriber" shall mean a Person which has entered into an agreement
with (i) an Issuer for the provision by the Issuer or any of its Subsidiaries
to such Person of multi-channel television service in the area covered by a
License, or (ii) any Subsidiary of an Issuer for the provision by such
Subsidiary or any of its Subsidiaries to such Person of multi-channel
television service in the area covered by a License; provided that in each of
the cases referred to in clauses (i) and (ii) above, (x) such Person has paid
at least one monthly service charge for such service, (y) no amount owed by
such Person to the Issuer or Subsidiary is more than 90 days past due, and
(z) the agreement between the Issuer and such Person or any such other
Subsidiary has not been terminated and is in full force and effect.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
and/or one or more Subsidiaries of such Person and/or a Purchasing Agent of
such Person, (ii) any partnership, association, joint venture or other entity
in which such Person and/or one or more Subsidiaries of such Person has more
than a 50% equity interest at the time, (iii) in the case of Supercanal
16
Holding, (x) all of the Issuers (including all Acquisition Subsidiaries), and
(y) SRL Holding and any corporation or limited liability company more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by SRL Holding
and/or one or more Subsidiaries of SRL Holding and/or a Purchasing Agent of
SRL Holding. For the avoidance of doubt, SRL Holding is defined as a
Subsidiary of Supercanal Holding under this Agreement and the other Purchase
Documents for convenience of reference and the operation of the provisions
hereof and thereof. The use of such definition shall not mean, and shall not
be construed to mean, that Supercanal Holding owns any Stock of SRL Holding
or any other limited liability company (sociedad de responsabilidad limitada).
"Subsidiary Indebtedness" shall mean any Indebtedness of any of the
Issuers (other than Supercanal and Supercanal Holding) for borrowed money
(other than Indebtedness under the Syndicated Facilities) incurred prior to
the Effective Date.
"Supercanal" shall have the meaning provided in the first paragraph
of this Agreement.
"Supercanal Bolivia" shall have the meaning provided in Section
7.13(b).
"Supercanal Holding" shall have the meaning provided in the first
paragraph of this Agreement.
"Syndicated Facilities" shall mean (i) that certain U.S.$90,000,000
acquisition and working capital facility provided pursuant to that certain
Amended and Restated Credit Agreement dated as of August 9, 1996 (as amended,
modified or supplemented from time to time), between and among Supercanal
Holding, Supercanal and certain of their Subsidiaries, as borrowers, various
financial institutions party thereto, as lenders, ING Baring (U.S.)
Securities, Inc., as arranger, and ING (U.S.) Capital Corporation, as
administrative and collateral agent, and (ii) that certain U.S.$113,000,000
acquisition facility provided pursuant to that certain Credit Agreement dated
as of April 16, 1997 (as amended, modified or supplemented from time to
time), between and among Supercanal Holding, Supercanal and certain of their
Subsidiaries, as borrowers, various financial institutions party thereto, as
lenders, ING Baring (U.S.) Securities, Inc., as arranger, and ING (U.S.)
Capital Corporation, as administrative and collateral agent.
"Taxes" shall have the meaning provided in Section 4.5.
"Tescorp Acquisition" shall mean the acquisition by Tescorp Delaware
of all of the outstanding Stock of Tescorp Texas pursuant to the Tescorp
Purchase Agreement.
"Tescorp Carryover Reduction Amount" shall have the meaning provided
in Section 3.3(a).
17
"Tescorp Delaware" shall mean Tescorp Acquisition Corporation, a
Delaware corporation and a wholly-owned subsidiary of Supercanal Holding.
"Tescorp Purchase Agreement" shall mean that certain Stock Purchase
and Merger Agreement dated September 16, 1997, between Tescorp Acquisition
Corporation and Tescorp, Inc., as amended from time to time.
"Tescorp Texas" shall mean Tescorp, Inc., a Texas corporation.
"TDH" shall mean Television Directa al Hogar S.A., an Argentina
corporation.
"TIC" shall have the meaning provided in Section 5.1(f)(iii).
"Total Assets" shall mean, as to any Person, all of the assets of
such Person and its Subsidiaries.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Purchasers.
"Transferor Power of Attorney" shall have the meaning provided in
Section 5.3(j).
"United States" and "U.S." shall each mean the United States of
America.
"Unutilized Commitment" shall mean, at any time, the positive
difference of (i) the Total Commitment, less (ii) the aggregate principal
amount of all Advances made prior to such time.
"Unutilized Total Commitment" shall mean the sum of the Unutilized
Commitments of each of the Purchasers.
"U.S. GAAP" shall mean generally accepted accounting principles in
the United States, consistently applied during a relevant period.
"Vilas" shall mean Xxxxxx Xxxxxxx Xxxx and Xxxxxxx Xxxx Xxxx
Santander.
"Warrant" shall have the meaning provided in the Bridge Note
Purchase Agreement.
"Warrant Agreement" shall have the meaning provided in the Bridge
Note Purchase Agreement.
1.2 Principles of Construction.
(a) All references to sections, schedules and exhibits are to
sections, schedules and exhibits in or to this Agreement unless otherwise
specified. The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
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(b) All accounting terms not specifically defined herein shall be
construed in accordance with Argentine GAAP in conformity with those used in
the preparation of the financial statements described in Section 6.7.
(c) A statement made herein to the knowledge of the Issuers means
that such statement is made to the knowledge or belief of the executive
officers and directors of Supercanal Holding and Supercanal, after due and
diligent inquiry as to the matter that is the subject of such statement.
(d) Notwithstanding anything contained herein to the contrary, the
parties agree that all of the representations, covenants and defaults
contained herein which cannot be made or performed solely because of Laws
applicable to Supercanal Bolivia or other relevant circumstances relating to
the organization of, and conduct of business by, Supercanal Bolivia outside
of Argentina, shall be deemed to be modified in the manner and to the extent
necessary to take into account and be consistent with such Laws and
circumstances; provided, that nothing shall be deemed to modify the
provisions of Section 8.5 hereof.
Section 2. Sale and Purchase of Notes.
2.1 Authorization; Form of Notes; Evidence of Obligations. (a)
The Issuers have duly authorized the issue and sale of their Senior Floating
Rate Promissory Notes in the aggregate principal amount of U.S.$300,000,000,
to mature on the Final Maturity Date, and to bear interest on the outstanding
principal thereof as provided herein.
(b) The Senior Floating Rate Notes shall be in registered form only
and substantially in the form of Exhibit A hereto (such notes, including any
note delivered following transfer or exchange or pursuant to any other
provision of this Agreement, hereinafter individually a "Note" and,
collectively, the "Notes").
2.2 Commitment; Notice of Funding.
(a) The Issuers hereby agree to issue and sell to each Purchaser,
and each Purchaser severally agrees, subject to and upon the terms and
conditions set forth herein, to purchase from the Issuers, during the period
commencing on the Initial Funding Date and ending on the Availability Expiry
Date, Notes in an aggregate principal amount not to exceed the Commitment of
such Purchaser.
(b) The funding by each Purchaser of its Commitment shall be made
in installments (each, an "Advance" and collectively, the "Advances") in such
principal amounts and at such times as the Issuers may designate in a written
notice with respect thereto delivered to the Administrative Agent at its
Notice Office at least three Business Days' prior to the issue and sale
thereof, provided that such notice shall be deemed to have been given on a
certain day only if given before 12:00 noon (New York time) on such day.
Each such notice (each a "Notice of Funding") shall be irrevocable and shall
be given by the Issuers in the form of Exhibit B, appropriately completed to
specify (i) the aggregate principal amount of the Advances to be made
pursuant to such Funding, (ii) the date of such Funding (which shall be a
Business Day),
19
(iii) whether the proceeds of the Advances will be used to repay the
Syndicated Facilities, Purchase Money Financing or Subsidiary Indebtedness,
to make Capital Expenditures, for working capital purposes, or to pay or
reimburse Permitted Transaction Expenses or the Acquisition Price of an
Approved Transaction, and (iv) the following additional information:
(i) if proceeds of the Advances will be used to make or reimburse
Capital Expenditures, a description in reasonable detail of
the nature and amount of each such Capital Expenditure;
(ii) if proceeds of the Advance are to be applied for working
capital, a description in reasonable detail of: (x) the
purposes for which the proceeds will be used, (y) the amounts
to be expended for each such purpose, and (z) if proceeds will
be used to acquire any assets, a description of each asset to
be acquired;
(iii) if proceeds of the Advances will be used to pay or reimburse
Permitted Transaction Expenses, a description in reasonable
detail of: (x) the amount of each such Permitted Transaction
Expense, (y) the purpose for which each such Permitted
Transaction Expense will be or was incurred, and (z) the party
to whom such Permitted Transaction Expense will be or was
paid; and
(iv) if proceeds of the Advances will be used to pay or reimburse
the Acquisition Price in an Approved Acquisition, (x) the
amount of such Acquisition Price, and (y) the party to whom
such Permitted Transaction Expense will be or was paid.
Each Notice of Funding will be accompanied by agreements, invoices or other
supporting documentation reflecting or evidencing the amounts which will be
paid or reimbursed with proceeds of the Advances.
(c) The Advances will be made by the Purchasers only on the terms
and conditions specified hereunder, and once repaid, in full or in part,
shall not be remade by the Purchasers in full or in part.
(d) The Administrative Agent shall promptly (but in no event later
than two Business Days prior to the applicable Funding Date) give each
Purchaser notice of such proposed Funding, of such Purchaser's proportionate
share thereof and of the other matters required by the immediately preceding
sentence to be specified in the Notice of Funding.
(e) Notwithstanding anything contained herein to the contrary, if
any Purchaser shall fail to purchase Notes and make available its pro rata
portion of the aggregate amount of the Advances as required pursuant to
Section 2.3(d), ING Bank N.V., London Branch ("ING London"), shall make an
Advance, in addition to any other Advances required to be made by ING London
hereunder, in an amount equal to the unfunded amount. In such event, (i) the
Issuers shall execute and deliver to ING London, and the Registrar shall
register in the name of
20
ING London, an additional Note with respect to such Advance of the unfunded
amount, and (ii) the Administrative Agent shall inform the Registrar of the
failure of such Purchaser to purchase Notes and make available its pro rata
portion of the Advances.
2.3 Closings.
(a) The closing of the initial purchase and sale of the Notes shall
be held at 12:00 Noon (New York time) on the Initial Funding Date, at the
offices of White & Case, 1155 Avenue of the Americas, New York, New York, or
at such other time and location as the parties may agree. Delivery of the
Notes to the Purchasers hereunder shall be made on the Initial Funding Date
against payment by the Purchasers as provided herein. On each Funding Date
subsequent to the Initial Funding Date, each Purchaser shall, subject to the
terms and conditions set forth herein, make the Advance required to be made
by such Purchaser on such date as provided herein.
(b) The Notes to be delivered to each Purchaser on the Initial
Funding Date shall be appropriately completed to (i) be dated the Initial
Funding Date, (ii) be in a stated principal amount equal to the Commitment of
such Purchaser, (iii) mature on the Final Maturity Date, (iv) bear interest
as provided in Section 2.5, and (v) be entitled to the benefits of this
Agreement and the other Purchase Documents. The Notes will be registered in
the name of the Purchaser thereof (or its nominee's name).
(c) At the time of each Funding and at the time of the making of
any payment of principal, interest or other amounts in respect of the Notes
or this Agreement, each Purchaser will note in its internal records the
amount of the indebtedness of the Issuers to such Purchaser as a result
thereof. Such internal records shall constitute prima facie evidence of the
existence and amounts of the Advances and other Obligations therein noted;
provided, however, that the failure of any Purchaser to make such notations,
or any error therein, shall not in any manner affect the obligations of the
Issuers to repay or pay the Advances made by such Purchaser hereunder and
under the Notes in accordance with the terms of this Agreement and the Notes.
(d) Subject to the terms and conditions hereof, no later than 12:00
Noon (New York time) on each Funding Date, each Purchaser will make available
its pro rata portion of the aggregate amount of the Advances to be made on
such date, in Dollars and in immediately available funds at the Payment
Office of the Administrative Agent, and the Administrative Agent will
transfer the aggregate of the amounts so made available by the Purchasers,
net of fees and costs payable to the Purchasers, to or to the order of the
relevant Issuer or Issuers pursuant to wire instructions provided to the
Administrative Agent not later than three Business Days prior to the Funding
Date.
(e) Unless the Administrative Agent shall have been notified by any
Purchaser prior to the date of a Funding that such Purchaser does not intend
to make available to the Administrative Agent such Purchaser's portion of the
Advances to be made on such date, the Administrative Agent may assume that
such Purchaser has made or will make such amount available to the
Administrative Agent on such date and the Administrative Agent may (but shall
have no obligation to), in reliance upon such assumption, make available to
the relevant Issuer or
21
Issuers a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Purchaser, the
Administrative Agent shall be entitled to recover such corresponding amount
from such Purchaser on demand. If such Purchaser does not pay such
corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the relevant Issuer
or Issuers and the relevant Issuer or Issuers shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover on demand from such Purchaser or the
Issuers, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Administrative Agent to the relevant Issuer or Issuers until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if such amount is recovered from such Purchaser, the cost
to the Administrative Agent of acquiring overnight federal funds at the then
applicable rate, and (ii) if such amount is recovered from the Issuers, the
then applicable rate of interest as provided herein. Nothing in this Section
2.3 shall be deemed to relieve any Purchaser from its obligation to fund its
Commitment hereunder or to prejudice any rights which the relevant Issuer or
Issuers may have against any Purchaser as a result of any failure by such
Purchaser to make an Advance hereunder.
2.4 Amount of Each Funding. (a) The aggregate principal amount of
Advances made on any Funding Date shall be not less than U.S.$5,000,000, and,
subject to Section 2.4(b) below, shall not be more than the Permitted Funding
Amount. For purposes hereof, the term "Permitted Funding Amount" shall mean:
(i) in respect of Advances the proceeds of which will be
applied to repay the Syndicated Facilities, U.S.$203,000,000;
(ii) in respect of Advances the proceeds of which will be
applied to repay Purchase Money Financing, U.S.$39,021,546;
(iii) in respect of Advances the proceeds of which will be
applied to repay Subsidiary Indebtedness, U.S.$2,292,390;
(iv) in respect of Advances the proceeds of which will be
applied to make permitted Capital Expenditures, the difference between
(x) U.S.$15,000,000, and (y) the aggregate amount of all prior Advances
the proceeds of which were applied to make permitted Capital Expenditures;
(v) in respect of Advances the proceeds of which will be
applied for working capital purposes, the difference between (x)
U.S.$15,000,000, and (y) the aggregate amount of all prior Advances the
proceeds of which were applied for working capital purposes;
(vi) in respect of Advances the proceeds of which will be
applied to (x) pay Permitted Transaction Expenses, the amount of such
Permitted Transaction Expenses to the extent then due and payable, or (y)
reimburse the Issuers for any portion of any Permitted Transaction
Expenses previously paid by the Issuers, the amount of such
22
Permitted Transaction Expenses to the extent such amounts were paid with
funds of the Issuers other than the proceeds of Advances or advances
under the Bridge Note Purchase Agreement and were not theretofore
reimbursed; provided, however, that the aggregate amount of all Advances
the proceeds of which are to be applied to pay or reimburse the
Acquisition Price and Permitted Transaction Expenses in connection with
any Approved Acquisition of Stock of a Person organized or doing business
outside of Argentina or of assets located outside of Argentina (other
than the Tescorp Acquisition) shall not exceed U.S.$10,000,000 (or the
equivalent);
(vii) in respect of Advances the proceeds of which will be
applied to (x) pay the Acquisition Price for any Approved Acquisition,
the amount of the unpaid amounts in respect thereof, to the extent then
due and payable, or (y) reimburse the Issuers for any portion of the
Acquisition Price for any Approved Acquisition previously paid by the
Issuers, the amount of the Acquisition Price so paid to the extent such
amounts were paid with funds of the Issuers other than the proceeds of
Advances or advances under the Bridge Note Purchase Agreement and were
not theretofore reimbursed; provided, however, that the aggregate amount
of all Advances the proceeds of which are to be applied to pay or
reimburse the Acquisition Price and Permitted Transaction Expenses in
connection with any Approved Acquisition of Stock of a Person organized
or doing business outside of Argentina or of assets located outside of
Argentina (other than the Tescorp Acquisition) shall not exceed
U.S.$10,000,000 (or the equivalent).
(b) Notwithstanding anything contained herein to the contrary, the
aggregate principal amount of the Advances and the Bridge Advances for each
of the items specified in Section 2.4(a)(i) through (vii) above shall not
exceed the corresponding amounts specified above.
(c) Subject to Section 2.2(e), all Advances shall be made by the
Purchasers pro rata on the basis of their Commitments. It is understood that
no Purchaser shall be responsible for any default by any other Purchaser of
its obligation to make an Advance except to the extent set forth in Section
2.2(e), and that each Purchaser shall be obligated to make the Advances
provided to be made by it thereunder regardless of the failure of any other
Purchaser to make its Advance hereunder.
2.5 Interest. (a) The Issuers agree to pay interest in respect of
the unpaid principal amount of each Advance from the date the amount of such
Advance is made available to the Issuers as provided herein until the
maturity thereof (whether by acceleration or otherwise) at a rate per annum
which shall, during each Interest Period applicable thereto, be equal to the
sum of the Applicable Margin plus LIBOR for such Interest Period.
(b) During any period in which an Event of Default has occurred and
is continuing (whether or not the Advances are accelerated), as the result of a
default by the Issuers in the payment when due of any amount required to be paid
hereunder, the outstanding principal amount of each Advance and, to the extent
permitted by law, overdue interest in respect of the outstanding principal
amount of each Advance and any other overdue amount payable by the
23
Issuers hereunder or under any other Purchase Document shall bear interest at a
rate per annum equal to the product of (i) LIBOR in effect from time to time
plus the Applicable Margin, and (ii) 1.5, in each such case with such interest
to be payable on demand. During any period in which an Event of Default has
occurred and is continuing (but the Advances have not been accelerated), as the
result of a default by the Issuers in the due performance or observance of any
term, covenant or agreement contained in Section 8, the outstanding principal
amount of each Advance and, to the extent permitted by law, overdue interest in
respect of the outstanding principal amount of each Advance and any other
overdue amount payable by the Issuers hereunder or under any other Purchase
Document shall bear interest at a rate per annum equal to the sum of (i) LIBOR
in effect from time to time, plus (ii) the Applicable Margin, plus (ii) 2%, in
each such case with such interest to be payable on demand.
(c) Accrued (and theretofore unpaid) interest shall be payable in
respect of the outstanding principal amount of each Advance on the last day of
each Interest Period applicable thereto, on any repayment or prepayment (on the
amount repaid or prepaid), at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.
(d) On each Interest Determination Date, the Administrative Agent
shall determine LIBOR for the Interest Period applicable to the Advances and
shall promptly notify the Issuers and the Purchasers thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
2.6 Increased Costs, Illegality, etc.
(a) In the event that any Purchaser shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto but, with respect to clause (i) below, may be made only
by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the Effective Date affecting the London interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition of
LIBOR; or
(ii) at any time, that such Purchaser shall incur increased costs
or reductions in the amounts received or receivable hereunder with respect
to any Advance because of (x) any change since the Effective Date in any
applicable Law or in the interpretation or administration thereof and
including the introduction of any new Law, such as, for example, but not
limited to: (A) a change in the basis of taxation of payments to any
Purchaser of the principal of or interest on the Notes or any other amounts
payable hereunder (except for changes in the rate of tax on, or determined
by reference to, the net income or profits of such Purchaser pursuant to
the laws of the jurisdiction in which it is organized or in which its
principal office or applicable Funding Office is located or any subdivision
thereof or therein) or (B) a change in official reserve requirements and/or
(y) other circumstances since the Effective Date affecting such Purchaser
or the London interbank Eurodollar market or the position of such Purchaser
in such market; or
24
(iii) at any time, that the making or continuance of any
Advance has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Purchaser in good
faith with any governmental request (whether or not having force of law) or
(z) impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the London interbank
Eurodollar market;
then, and in any such event, such Purchaser (or the Administrative Agent, in the
case of clause (i) above) shall promptly give telephonic notice (confirmed in
writing) to the Issuers and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Purchasers). Thereafter
(x) in the case of clause (i) above, the interest rate during the applicable
Interest Period shall be the Base Rate in effect on the applicable Interest
Determination Date plus the Applicable Margin, (y) in the case of clause (ii)
above, the Issuers shall pay to such Purchaser, upon written demand therefor,
such additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Purchaser in its sole
discretion shall determine) as shall be required to compensate such Purchaser
for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Purchaser,
showing the basis for the calculation thereof, submitted to the Issuers by such
Purchaser shall, absent manifest error, be final and conclusive and binding on
all the parties hereto) and (z) in the case of clause (iii) above, the Issuers
shall take one of the actions specified in Section 2.6(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Advance is affected by the circumstances
described in Section 2.6(a) (iii), the Issuers shall either (x) if the affected
Advance is then being made initially, cancel the respective Advance (subject,
however, to Section 2.7), or (y) if the affected Advance is then outstanding,
upon at least five Business Days' written notice to the Administrative Agent,
repay the Advance of the affected Purchaser, provided that, if more than one
Purchaser is affected at any time, then all affected Purchasers must be treated
the same pursuant to this Section 2.6(b).
(c) If any Purchaser determines at any time that the introduction or
implementation of, or any change in, any applicable Law after the Effective
Date, concerning capital adequacy, or any change in interpretation or
administration thereof after the Effective Date by any Governmental Authority,
will have the effect of increasing the amount of capital required or expected to
be maintained by such Purchaser based on the existence of such Purchaser's
Commitment hereunder or its obligations hereunder, then the Issuers shall pay to
such Purchaser, within 15 Business Days of its written demand therefor, such
additional amounts as shall be required to compensate such Purchaser for the
increased cost to such Purchaser as a result of such increase of capital. In
determining such additional amounts, each Purchaser will act reasonably and in
good faith and will use averaging and attribution methods which are reasonable,
provided that such Purchaser's determination of compensation owing under this
Section 2.6 shall, absent manifest error, be final and conclusive and binding on
all the parties hereto. Each Purchaser, upon determining that any additional
amounts will be payable pursuant
25
to this Section 2.6, will give prompt written notice thereof to the Issuers,
which notice shall show the basis for calculation of such additional amounts,
and the failure to give any such notice shall not release the Issuers'
obligations to pay additional amounts pursuant to this Section 2.6.
(d) At any time that any Advance is affected by the circumstances
described in Sections 2.6(a)(ii) or 2.6(c), the Issuers shall have the right
(subject, however, to Section 2.7), upon at least five Business Days' written
notice to the Administrative Agent, to prepay the Advance of the affected
Purchaser, provided that, if more than one Purchaser is affected at any time,
then all affected Purchasers must be treated the same pursuant to this Section
2.6(d).
2.7 Compensation. The Issuers shall compensate each Purchaser, upon
its written request (which request shall set forth the basis for requesting such
compensation and shall, absent manifest error, be final and conclusive and
binding on all the parties hereto), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Purchaser to fund its Advances) which such Purchaser may
sustain: (i) if for any reason (other than a default by such Purchaser or the
Administrative Agent) any Funding of Advances does not occur on the date
specified therefor in a Notice of Funding (whether or not withdrawn by the
Issuer); (ii) if any repayment (including any prepayment made pursuant to
Section 4) of its Advances occurs on a date which is not the last day of an
Interest Period with respect thereto, or (iii) as a consequence of (x) any other
default by the Issuers to repay the Advances when required by the terms of this
Agreement or the Notes or (y) any actions taken pursuant to Sections 2.6(b) or
(d).
Section 3. Commitment Fee; Additional Fees; Reduction of Total
Commitment.
3.1 Commitment Fee. The Issuers agree to pay to the Administrative
Agent for distribution to the Purchasers a commitment commission (the
"Commitment Fee") for the period from the Effective Date until the earlier of
(i) the date that the Purchasers shall have made Advances in an aggregate
principal amount equal to the Total Commitment, or (ii) the Availability Expiry
Date (or, in either such case, such earlier date as the Total Commitment shall
have been terminated), computed at a rate equal to 1% per annum on the daily
average Unutilized Commitment. The Commitment Fee shall be due and payable in
arrears on (x) the last Business Day of each calendar quarter, beginning on
December 31, 1997, and (y) upon the earlier of (A) the Availability Expiry Date,
and (B) such earlier date as the Total Commitment shall be terminated.
3.2 Additional Fees. The Issuers agree to pay to the Administrative
Agent, for its own account the fees that have been agreed to in that certain
letter dated the date hereof between Supercanal Holding and the Administrative
Agent.
3.3 Reduction of Total Commitment.
(a) If Tescorp Delaware shall not have consummated the acquisition of
the Purchased Common Stock pursuant to, and as defined in, the Tescorp Purchase
Agreement on or
26
before December 31, 1997, the Total Commitment shall be reduced by an amount,
if any, equal to the Tescorp Carryover Reduction Amount. For purposes
hereof, the "Tescorp Carryover Reduction Amount" shall mean the difference,
if any, between (i) U.S.$100,000,000, and (ii) the amount of the commitment
reduction effected pursuant to Section 3.3(a) of the Bridge Note Purchase
Agreement, to the extent such reduction reduces the Unutilized Total
Commitment (as defined in the Bridge Note Purchase Agreement).
(b) Each increase or reduction of the Total Commitment pursuant to
this Section 3.3 shall apply proportionately to the Commitment of each
Purchaser.
3.4 Voluntary Termination of Unutilized Total Commitment. Upon at
least five Business Days' prior notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent will promptly transmit to each of
the Purchasers), the Issuers shall have the right, without premium or penalty,
to terminate the Unutilized Total Commitment in whole or in part, in integral
multiples of U.S.$5,000,000, provided that any such termination shall apply
proportionately to reduce the Commitment of each Purchaser.
Section 4. Prepayments; Scheduled Repayments; Payments.
4.1 Voluntary Prepayments. The Issuers shall have the right to
prepay the Advances, without premium or penalty, in whole or in part at any time
and from time to time after the Initial Funding Date on the following terms and
conditions: (i) the Issuers shall give the Administrative Agent at the Notice
Office at least five Business Days' prior written notice of its intent to prepay
the Notes and the amount of such prepayment (which notice the Administrative
Agent will promptly transmit to each of the Purchasers); (ii) each prepayment in
respect of any Advances shall be in an aggregate principal amount of at least
U.S.$5,000,000; (iii) prepayments of an Advance may only be made pursuant to
this Section 4.1 on the last day of an Interest Period applicable thereto,
unless the Issuers pay all amounts owing under Section 2.7 as a result of
repaying such Advance on a day other than the last day of the Interest Period
applicable thereto; (iv) each prepayment in respect of any Advances shall be
applied pro rata among such Advances in the inverse order of maturity; and (v)
the Issuers shall have provided reasonable assurances to the Administrative
Agent that the prepayment does not violate any applicable Laws of Argentina.
4.2 Scheduled Repayments. (a) On the dates set forth below, the
Issuers shall repay the principal amount of the Advances, to the extent then
outstanding, as is set forth opposite such date (each such repayment, a
"Scheduled Repayment" and each such date, a "Repayment Date"), as follows:
Repayment Date Amount
----------------- -----------------
January 31, 2000 U.S.$ 15,000,000
April 30, 2000 U.S.$ 15,000,000
July 31, 2000 U.S.$ 15,000,000
October 31, 2000 U.S.$ 15,000,000
January 31, 2001 U.S.$ 15,000,000
April 30, 2001 U.S.$ 15,000,000
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July 31, 2001 U.S.$ 15,000,000
October 31, 2002 U.S.$ 15,000,000
January 31, 2002 U.S.$ 15,000,000
April 30, 2002 U.S.$ 15,000,000
July 31, 2002 U.S.$ 15,000,000
Final Maturity Date U.S.$135,000,000
(b) If the Total Commitment is reduced pursuant to Section 3.3, or if
less than all of the Advances are funded, the Scheduled Repayments set forth
above shall be reduced by the amount of such reduction or amount not borrowed
pro rata based upon the then remaining Scheduled Repayments after giving effect
to prior reductions thereto.
4.3 Mandatory Prepayments.
(a) In addition to any other mandatory prepayments pursuant to this
Section 4.3, if at any time after the Initial Funding Date any of the Issuers,
any Purchasing Agents or the Offeror receives or is entitled to receive any Net
Proceeds from any public or private sale by any such Person of debt or equity
securities (other than in connection with the Proposed IPO) of any Issuer or the
Offeror, including, without limitation, in connection with the Proposed High
Yield Debt Offering, then the Issuers shall promptly make, or cause to be made,
a mandatory prepayment of the Advances and the other Obligations in an amount
equal to the lower of (i) 100% of such Net Proceeds, and (ii) the outstanding
amount of the Advances and other Obligations; provided, however, that the
Issuers shall not be required to make any such prepayment in connection with any
sale of Stock of any Issuer which results in Net Proceeds to the Issuers of less
than U.S.$100,000 (or the equivalent thereof) in the aggregate.
(b) In addition to any other mandatory prepayments pursuant to this
Section 4.3, if at any time after the Initial Funding Date any of the Issuers,
any Purchasing Agents or the Offeror receives or is entitled to receive any Net
Proceeds from the Proposed IPO, then the Issuers shall promptly make, or cause
to be made, a mandatory prepayment of the Advances and the other Obligations in
an amount equal to the lower of (i) the amount of the Net Proceeds, (ii) the sum
of (x) U.S.$100,000,000, and (y) 50% of the difference between the amount of the
Net Proceeds and U.S.$100,000,000, and (iii) the outstanding amount of the
Advances and other Obligations.
(c) In addition to any other mandatory prepayments pursuant to this
Section 4.3, if at any time after the Initial Funding Date any of the Issuers
receives or is entitled to receive any Net Proceeds in excess of U.S.$1,000,000
(or the equivalent thereof) from the sale of any assets in any single or related
series of transactions other than in the ordinary course of business (including
any sale of Stock of any Issuer or any other Person), then the Issuers shall
promptly make a mandatory prepayment of the Advances and the other Obligations
in an amount equal to the lower of (i) 100% of such Net Proceeds (and not merely
the excess), and (ii) the outstanding amount of the Advances and other
Obligations; provided, however, that if any such sale is made by a Subsidiary of
Supercanal Holding other than a wholly-owned Subsidiary, the mandatory
prepayment shall be in an amount equal to the Net Proceeds of such sale
multiplied
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by the percentage ownership interest (direct or indirect) of Supercanal
Holding in such Subsidiary.
(d) In addition to any other mandatory prepayments pursuant to this
Section 4.3, on April 30, 1999 and on April 30 of each year thereafter, the
Issuers shall make a mandatory prepayment of the Advances and the other
Obligations in an amount equal to the lower of (i) 100% of the Excess Cash Flow
for the immediately preceding calendar year, and (ii) the outstanding amount of
the Advances and other Obligations; provided, however, that if all principal,
interest and all other amounts due under the Bridge Note Purchase Agreement
shall have been fully paid on or before the first anniversary of the Effective
Date, the obligation of the Issuers to make a mandatory prepayment under this
Section 4.3(d) shall commence on April 30, 2000 and continue on each April 30
thereafter and the amount of any such mandatory prepayment shall be reduced to
an amount equal to the lower of (x) 50% of the Excess Cash Flow for the
immediately preceding calendar year, and (y) the outstanding amount of the
Advances and other Obligations.
(e) Each prepayment pursuant to this Section 4.3 shall be applied pro
rata among the Advances to the repayment of the principal thereof in the inverse
order of maturity.
4.4 Method and Place of Payment.
(a) Except as otherwise specifically provided herein, all payments
under this Agreement or any Note shall be made to the Administrative Agent for
the account of the Purchaser or Purchasers entitled thereto not later than 12:00
Noon (New York time) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office; provided, however, that if
the Issuers are not able to so tender Dollars as a result of the adoption of a
Law, the taking of action by a Governmental Authority or the occurrence of any
other circumstance which in any such case prohibits or prevents the payment of
Dollars, the Issuers shall, during the continuance of such prohibition or
restriction, make payments hereunder and under the Notes by delivering to the
Administrative Agent, for the benefit of the Purchasers, at its own expense, an
amount of Dollar Denominated Securities which, when sold by the Administrative
Agent in the markets in which such securities are customarily traded, will
result in net proceeds to the Administrative Agent sufficient to satisfy in full
the payments due hereunder and under the Notes in respect of the Obligations.
The Administrative Agent shall sell any such Dollar Denominated Securities
promptly, but in no event later than 30 days after delivery thereof, unless the
Issuers shall otherwise so direct in writing. Any such delivery of Dollar
Denominated Securities shall only be deemed to constitute payment of the
applicable Obligation upon receipt by the Administrative Agent of the full
amount of Dollars due in respect thereof.
(b) Whenever any payment to be made hereunder or under any Note shall
be stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate during
such extension.
29
(c) Any payment of principal or interest hereunder or under any Note
in respect of any Advance shall be made by the Issuer which received the
proceeds of such Advance. Contemporaneously with any such payment, the Issuers
shall provide the Administrative Agent with evidence satisfactory to the
Administrative Agent of compliance with this Section 4.4(c).
4.5 Net Payments. All payments made by the Issuers hereunder or
under any Note will be made without setoff, counterclaim or other defense. All
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, value-added taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now or
hereafter imposed by any jurisdiction or by any political subdivision or taxing
authority thereof or therein (but excluding, except as provided below, any tax
imposed on or measured by the net income of a Purchaser pursuant to the laws of
the jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the principal office or Funding Office of such Purchaser is
located and any jurisdiction which would have legal power to tax the net income
of a Purchaser if such Purchaser had not made any Advance to the Issuers) and
all interest, penalties or similar liabilities with respect thereto
(collectively, "Taxes"). The Issuers shall also reimburse each Purchaser, upon
the written request of such Purchaser, for all other taxes imposed on or
measured by the net income of such Purchaser pursuant to the laws of the
jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the principal office or Funding Office of such Purchaser is
located as such Purchaser shall determine are payable by such Purchaser in
respect of amounts paid to or on behalf of such Purchaser pursuant to the
preceding sentence. If any Taxes are so levied or imposed, the Issuers agree to
pay the full amount of such Taxes and such additional amounts as may be
necessary so that every payment of all amounts due hereunder or under any Note,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. The Issuers will furnish
to the Administrative Agent within 45 days after the date the payment of any
Taxes is due pursuant to applicable Law certified copies of tax receipts
evidencing such payment by the Issuers (provided, that if any such receipts
cannot be obtained within 45 days, the Issuers will furnish such receipts as
soon as reasonably practicable). Argentine value-added tax or any tax imposed
in replacement thereof will be invoiced directly to the Issuers by each
Purchaser which is an Argentine financial institution or whose Funding Office is
located in Argentina, and the Issuer will pay such tax directly to such
Purchaser upon receipt of any such invoice. The Issuers will indemnify and hold
harmless each Purchaser, and reimburse such Purchaser upon its written request,
for the amount of any Taxes or other taxes described above which are levied or
imposed on and paid by such Purchaser.
Section 5. Conditions Precedent.
5.1 Conditions Precedent to the Initial Funding. The obligation of
each Purchaser to make the Advances on the Initial Funding Date is subject, at
the time of such Funding, to the satisfaction or waiver of the following
conditions:
(a) Execution of Agreement; Notes. The Effective Date shall have
occurred and there shall have been delivered to the Administrative Agent for the
account of each
30
Purchaser the appropriate Notes executed by the Issuers in the amount, with
the maturity and as otherwise provided herein.
(b) No Default; Representations and Warranties. At the time of the
Funding (and after giving effect thereto) (i) there shall exist no Default or
Event of Default and (ii) all representations and warranties contained herein
and in the other Purchase Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date of the Funding.
(c) Notice of Funding; Amount of Funding. The Administrative Agent
shall have received a Notice of Funding with respect to the Advances to be made
on such date meeting the requirements of Section 2.2(b). Each Advance requested
in such Notice of Funding shall not exceed the Permitted Funding Amount with
respect to such Advance, and the sum of (i) aggregate amount of the Advances
requested in such Notice of Funding, and (ii) the aggregate amount of all
Advances outstanding under the Notes, shall not exceed the product of (x) 5.25,
and (y) the Annualized Consolidated EBITDA of Supercanal Holding as at the end
of the calendar quarter then nearest ended. For purposes hereof, the Annualized
Consolidated EBITDA of Supercanal shall be determined by reference to the
financial statements delivered to the Administrative Agent pursuant to Section
7.1(i) hereof (or, if no such financial statements have been delivered pursuant
to such Section, by reference to the financial statements delivered pursuant to
the credit documents for the Syndicated Facilities or such other financial
statements as shall be acceptable to the Administrative Agent).
(d) Officer's Certificates; Proceedings.
(i) The Administrative Agent shall have received a certificate
from (A) Supercanal Bolivia, (B) Sucanal S.R.L., and (C) each of the
Issuers which has adopted any amendments to its estatutos sociales or other
organization documents since the date it became a Subsidiary of Supercanal
Holding (other than amendments adopted pursuant to the credit documents for
the Syndicated Facilities), dated the Initial Funding Date, signed by the
President or any Vice President of such Issuers, substantially in the form
of Exhibit C hereto, with appropriate insertions, together with copies of
the estatutos sociales, as amended, and resolutions referred to in such
certificate.
(ii) All corporate and legal proceedings and all Purchase
Documents shall be satisfactory in form and substance to the Administrative
Agent and the Administrative Agent shall have received all information and
copies of all documents and papers, including records of corporate
proceedings and Governmental Approvals, if any, which the Administrative
Agent may reasonably have requested in connection therewith, such documents
and papers where appropriate to be certified by proper corporate or
Governmental Authorities.
(iii) The Administrative Agent shall have received from
Supercanal Holding a copy of the Shareholders' Agreement, together with all
amendments thereto through and including the Initial Funding Date,
certified as true and correct by the President of Supercanal Holding.
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(e) Opinions of Counsel. The Administrative Agent shall have
received opinions addressed to the Administrative Agent, the Collateral Agent
and each of the Purchasers, dated the Initial Funding Date, and in form and
substance satisfactory to the Administrative Agent, from (i) Xxxxxx & Xxxxx,
special U.S. counsel to the Issuers, substantially in the form of Exhibit D-1
hereto and as to such other matters as the Administrative Agent shall reasonably
request, (ii) Marval, X'Xxxxxxx & Mairal, special Argentine counsel to the
Issuers, substantially in the form of Exhibit D-2 hereto and as to such other
matters as the Administrative Agent shall reasonably request, (iii) Estudio
Vila, Argentine counsel to the Issuers, substantially in the form of Exhibit D-3
and as to such other matters as the Administrative Agent shall reasonably
request, (iv) Xx. Xxxxxxxx, special counsel to the Issuers (or other similarly
qualified expert reasonably satisfactory to the Administrative Agent), as to
such matters as the Administrative Agent shall reasonably request, and (v) such
other counsel as the Administrative Agent shall reasonably require, as to such
matters as the Administrative Agent shall reasonably require.
(f) Pledge Agreements.
(i) Each Issuer which holds Stock of another Issuer (other than
Supercanal Bolivia), if such other Issuer is a corporation (sociedad
anonima), shall have duly authorized, executed and delivered a pledge
agreement substantially in the form of Exhibit E-1 (as amended, modified or
supplemented from time to time, an "SA Pledge Agreement" and together with
all other SA Pledge Agreements executed and delivered pursuant hereto, the
"SA Pledge Agreements"), pursuant to which such Issuer shall have granted
to (A) the Collateral Agent, for the benefit of the Purchasers, a first
priority Lien on all of the Stock of each such other Issuer owned by such
Issuer, and (B) the Bridge Collateral Agent for the benefit of the Bridge
Purchasers, a second priority Lien on all of such Stock of each such other
Issuer, free and clear of all Liens (and shall have (i) delivered to the
Collateral Agent all such Stock with the relevant annotation of the
existence and perfection of the Liens created by such SA Pledge Agreement,
(ii) given notice to the Issuer which issued such Stock of the grant of
such Liens as required by Argentine Law, and (iii) caused the Issuer which
issued such Stock to have duly registered such Liens in the names of the
Collateral Agent and the Bridge Collateral Agent in such Issuer's share
registry).
(ii) SRL Holding and each Issuer and Purchasing Agent which
acquired Stock of another Issuer, if such other Issuer is a limited
liability company (sociedad de responsabilidad limitada), shall have duly
authorized, executed and delivered a pledge agreement substantially in the
form of Exhibit E-2 (as amended, modified or supplemented from time to
time, an "SRL Pledge Agreement" and together with all other SRL Pledge
Agreements executed and delivered pursuant hereto, the "SRL Pledge
Agreements"), pursuant to which SRL Holding, and each such Issuer or
Purchasing Agent shall have granted to (A) the Collateral Agent, for the
benefit of the Purchasers, a first priority Lien on all of the Stock of
such other Issuer owned or acquired by SRL Holding, such Issuer or
Purchasing Agent, and (B) the Bridge Collateral Agent, for the benefit of
the Bridge Purchasers, a second priority Lien on all of such Stock, free
and clear of all Liens.
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(iii) Supercanal Holding shall have duly authorized, executed
and delivered an SA Pledge Agreement pursuant to which it shall have
granted to (A) the Collateral Agent, for the benefit of the Purchasers, a
first priority Lien on 49% of the Stock of Tele Imagen Codificada S.A.
("TIC"), and (B) the Bridge Collateral Agent for the benefit of the Bridge
Purchasers, a second priority Lien on all of such Stock, free and clear of
all Liens (and shall have (i) delivered to the Collateral Agent all such
Stock with the relevant annotation of the existence and perfection of the
Liens created by such SA Pledge Agreement, (ii) given notice to TIC of the
grant of such Liens as required by Argentine Law, and (iii) caused TIC to
have duly registered such Liens in the names of the Collateral Agent and
the Bridge Collateral Agent in TIC's share registry).
(iv) The Administrative Agent shall have received evidence of the
completion of all recordings and filings of, or with respect to, the SA
Pledge Agreements, and the SRL Pledge Agreements as may be necessary or,
in the opinion of the Administrative Agent, desirable to perfect the
security and other interests intended to be created by each such agreement,
except for the filing of the SRL Pledge Agreements with the applicable
registro publico which is required in order to perfect the security
interest granted thereby.
(g) Guaranty Trust Agreements. Each Issuer (other than Supercanal
Holding, SRL Holding, Inversora Atelco Comodoro S.A. and Inversora Antena
Comunitaria Trelew S.A.) and TIC shall have duly authorized, executed and
delivered a guaranty trust agreement (cesion fiduciaria) substantially in the
form of Exhibit F (as amended, modified or supplemented from time to time, a
"Guaranty Trust Agreement" and together with all other Guaranty Trust Agreements
executed and delivered pursuant hereto, the "Guaranty Trust Agreements"),
pursuant to which such Issuer shall have assigned to the Guaranty Trustee in
guaranty trust for the benefit of the Purchasers and the Bridge Purchasers all
of its present and future Receivables, free and clear of all Liens, other than
Liens created pursuant to the Purchase Documents and the Bridge Purchase
Documents; provided, that (i) the Guaranty Trust Agreements executed and
delivered by Cable Televisora Color Pehuenche S.R.L. and Cable Televisora Color
S.R.L. shall only provide for the assignment in guaranty trust of 65% of the
Receivables of each such company, and (ii) the Guaranty Trust Agreement executed
and delivered by TIC shall only provide for the assignment in guaranty trust of
13% of the Receivables of such company.
(h) Due Diligence. The Administrative Agent and the Required
Purchasers shall have (i) completed a due diligence investigation of the Issuers
and such other matters related to or in connection with the transactions
contemplated hereby, in scope, and with results, satisfactory to the
Administrative Agent and the Required Purchasers in all respects, (ii) been
given such access to the management, records, books of account, contracts,
concessions, management agreements with respect to the business, regulatory
framework and environment and property of the Issuers, and (iii) received such
financial, business and other information regarding the Issuers and such other
matters related to or in connection with the transactions contemplated hereby as
the Administrative Agent and/or the Required Purchasers shall have requested.
33
(i) Projections. On or prior to the Initial Funding Date, the
Administrative Agent shall have received true and correct copies of the
projections referred to in Section 6.7, which projections shall be in form
and substance satisfactory to the Administrative Agent and the Required
Purchasers.
(j) Transferor's COMFER Approval; Power of Attorney. The
Administrative Agent shall have received assurances satisfactory to it that,
except as set forth on Schedule III, the transferors from which the Issuers
or the Purchasing Agents acquired the Stock of the Acquired Issuers either
(i) had all COMFER Approvals required in connection with the acquisition and
ownership of such Stock by such transferors, or (ii) had received, prior to
the transfer of such Stock to the Issuers or the Purchasing Agents, an
irrevocable power of attorney pursuant to which the predecessor in interest
of the transferors had granted to such transferors the right to direct or
cause the direction of the management and policies of the Acquired Issuers
and to transfer or otherwise pledge the Stock of the Acquired Issuers.
(k) Consent Letter. The Administrative Agent shall have received a
letter from the Process Agent, in form and substance satisfactory to the
Administrative Agent in all respects, indicating its consent to its
appointment by each Issuer as its agent to receive service of process in
connection with the transactions contemplated by the Purchase Documents.
(l) Governmental Approvals. The Administrative Agent shall have
received assurances satisfactory to it that all Governmental Approvals
(except for the filing of the SRL Pledge Agreements with the applicable
registro publico which is required in order to perfect the security interest
granted thereby) required (i) in connection with the execution, delivery and
performance of the Purchase Documents, and (ii) to ensure the legality,
validity, binding effect and enforceability of any and all such Purchase
Documents, have been received by the Issuers.
(m) Compliance. The Administrative Agent shall have received
assurances satisfactory to it that the transactions contemplated in the
Purchase Documents are in compliance in all respects with all applicable Laws.
(n) Litigation. Other than as set forth on Schedule IV hereto, no
litigation, action, suit, investigation, claim or proceeding shall be pending
or, to the knowledge of the Issuers, threatened with respect to this
Agreement or any other Purchase Document, the transactions contemplated
hereby or which could reasonably be expected to have a Material Adverse
Effect on any of the Issuers.
(o) Payments. All Fees and other amounts required to be paid or
deposited on or prior to the Initial Funding Date under this Agreement and
the other Purchase Documents shall have been paid or deposited.
(p) Market Conditions, etc. There shall not exist or be
anticipated to occur any disruption or other circumstances in United States,
Argentine or international capital markets or other financial, political or
economic conditions, or currency exchange rates or exchange controls
applicable to the Dollar or the Peso as would, in the sole judgment of the
Administrative Agent, make it impracticable for any Purchaser to successfully
sell its Notes.
34
(q) COMFER Applications. The Administrative Agent shall have
received assurances satisfactory to it that the predecessors in interest of
each Acquired Issuer and each direct and indirect predecessor in interest of
such predecessors shall have prepared, executed and filed all required
documents and instruments necessary to obtain the COMFER Approval required in
connection with the acquisition and ownership by any such transferor of its
interest in the Acquired Issuer.
(r) No Material Adverse Change. The Issuers shall have delivered
to the Administrative Agent a certificate signed by the President of
Supercanal Holding to the effect that since June 30, 1997, there has been no
material adverse change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Supercanal
Holding or any of its Subsidiaries.
(s) Power of Attorney for Review of COMFER Records. Each of the
Issuers shall have executed and delivered to the Administrative Agent an
irrevocable power of attorney, in form and substance satisfactory to the
Administrative Agent, pursuant to which each such Person shall have granted
to the Administrative Agent and its Affiliates and authorized representatives
the authority to review the records of COMFER relating to it.
(t) Funding of Bridge Advances; Refinancing of Certain
Indebtedness. The Issuers shall have requested, and the Bridge Purchasers
shall have funded, Bridge Advances in an aggregate principal amount not less
than the Total Commitment (as defined under the Bridge Note Purchase
Agreement) and all such Bridge Advances shall have been applied to the
payment of the Syndicated Facilities and/or the Subsidiary Indebtedness. To
the extent such Bridge Advances are not sufficient to repay in full such
Indebtedness, the Issuers shall have requested Advances on the Initial
Funding Date in an aggregate principal amount equal to the unpaid amount of
such Indebtedness.
(u) Additional Conditions Relating to Acquisitions. If the
Advances to be made on the Initial Funding Date relate to the payment or
reimbursement of the Acquisition Price of any Acquisition Subsidiary or the
payment or reimbursement of any Permitted Transaction Expenses arising in
connection with any Acquisition, the Issuers shall have satisfied the
additional conditions precedent set forth in Section 5.3.
5.2 Conditions Precedent to Subsequent Fundings. The obligation of
each Purchaser to make Advances on each Funding Date after the Initial
Funding Date is subject, at the time of such Funding, to the satisfaction or
waiver of the following conditions:
(a) No Default; Representations and Warranties. At the time of the
Funding (and after giving effect thereto) (i) there shall exist no Default or
Event of Default and (ii) all representations and warranties contained herein
and in the other Purchase Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties
had been made on and as of the date of the Funding.
(b) Notice of Funding; Amount of Funding. The Administrative Agent
shall have received a Notice of Funding with respect to the Advances to be
made on such date meeting
35
the requirements of Section 2.2(b). Each Advance requested in such Notice of
Funding shall not exceed the Permitted Funding Amount with respect to such
Advance, and the sum of (i) the aggregate amount of the Advances requested in
such Notice of Funding, and (ii) the aggregate amount of all Advances
outstanding hereunder, shall not exceed the product of (x) 5.25, and (y) the
Annualized Consolidated EBITDA of Supercanal Holding as at the end of the
calendar quarter then nearest ended. For purposes hereof, the Annualized
Consolidated EBITDA of Supercanal shall be determined by reference to the
financial statements delivered to the Administrative Agent pursuant to
Section 7.1(i) hereof (or, if no such financial statements have been
delivered pursuant to such Section, by reference to the financial statements
delivered pursuant to the credit documents for the Syndicated Facilities or
such other financial statements as shall be acceptable to the Administrative
Agent).
(c) Litigation. Other than as set forth on Schedule IV hereto, no
litigation, action, suit, investigation, claim or proceeding shall be pending
or, to the knowledge of the Issuers, threatened with respect to this
Agreement or any other Purchase Document, the transactions contemplated
hereby or which could reasonably be expected to have a Material Adverse
Effect on any Issuer.
(d) Payments. All Fees and other amounts required to be paid or
deposited on or prior to the Funding Date under this Agreement and the other
Purchase Documents shall have been paid or deposited.
(e) Market Conditions, etc. There shall not exist or be
anticipated to occur any disruption or other circumstances in the United
States, Argentine or international capital markets or other financial,
political or economic conditions, or currency exchange rates or exchange
controls applicable to the Dollar or the Peso as would, in the sole judgment
of the Administrative Agent, make it impracticable for any Purchaser to
successfully sell its Notes.
(f) Additional Conditions Relating to Acquisitions. If the
Advances to be made on the Funding Date relate to the payment or
reimbursement of the Acquisition Price of any Acquisition Subsidiary or the
payment or reimbursement of any Permitted Transaction Expenses arising in
connection with any Acquisition, the Issuers shall have satisfied the
additional conditions precedent set forth in Section 5.3.
5.3 Conditions Precedent Relating to Acquisitions. The obligation
of each Purchaser to make Advances on each Funding Date, to the extent that
the proceeds of Advances to be made on such date will be applied to the
payment or reimbursement of the Acquisition Price of any Acquisition
Subsidiary or the payment or reimbursement of any Permitted Transaction
Expenses arising in connection with any Acquisition (other than the Tescorp
Acquisition, except to the extent provided in Section 12.1(b)), is subject,
at the time of such Funding, to the satisfaction or waiver of the following
additional conditions:
(a) Officer's Certificates; Proceedings. The Administrative Agent
shall have received a certificate from each Applicable Acquisition
Subsidiary, dated the Funding Date, signed by the President or any Vice
President of each Applicable Acquisition Subsidiary,
36
substantially in the form of Exhibit C hereto with appropriate insertions,
together with copies of the estatutos sociales and the resolutions referred
to in such certificate.
(b) Pledge Agreements.
(i) If any Applicable Acquisition Subsidiary is a corporation
(sociedad anonima), the acquiring Issuer shall have duly authorized,
executed and delivered an SA Pledge Agreement, pursuant to which such
Issuer shall have granted (A) to the Collateral Agent, for the benefit of
the Purchasers, a first priority Lien on all of the Stock of such
Applicable Acquisition Subsidiary acquired by the Acquiring Issuer, and
(B) if any Bridge Obligations are outstanding, to the Bridge Collateral
Agent, for the benefit of the Bridge Purchasers, a second priority Lien
on all of such Stock of such Applicable Acquisition Subsidiary, free and
clear of all Liens (and shall have (i) delivered to the Collateral Agent
all such Stock with the relevant annotation of the existence and
perfection of the Liens created by such SA Pledge Agreement, (ii) given
notice to the Applicable Acquisition Subsidiary of the grant of such
Liens as required by Argentine Law, and (iii) caused the Applicable
Acquisition Subsidiary to have duly registered such Liens in the names of
the Collateral Agent and the Bridge Collateral Agent in the Applicable
Acquisition Subsidiary's share registry).
(ii) If any Applicable Acquisition Subsidiary is a limited
liability company (sociedad de responsabilidad limitada), the acquiring
Issuer shall have duly authorized, executed and delivered an SRL Pledge
Agreement, pursuant to which the Issuer shall have granted to (A) the
Collateral Agent, for the benefit of the Purchasers, a first priority
Lien on all of the Stock of such Applicable Acquisition Subsidiary
acquired by the acquiring Issuer, and (B) if any Bridge Obligations are
outstanding, the Bridge Collateral Agent, for the benefit of the Bridge
Purchasers, a second priority Lien on all of the Stock of each such
Applicable Acquisition Subsidiary, free and clear of all Liens.
(iii) The Administrative Agent shall have received evidence
of the completion of all recordings and filings of, or with respect to,
the SA Pledge Agreements and the SRL Pledge Agreements as may be
necessary or, in the opinion of the Administrative Agent, desirable to
perfect the security and other interest intended to be created by each
such agreement, except for the filing of the SRL Pledge Agreements with
the applicable registro publico which is required in order to perfect the
security interest granted thereby.
(c) Guaranty Trust Agreement. Each Applicable Acquisition
Subsidiary shall have duly authorized, executed and delivered a Guaranty
Trust Agreement, pursuant to which such Applicable Acquisition Subsidiary
shall have assigned to the Guaranty Trustee in guaranty trust for the benefit
of the Purchasers and, to the extent any Bridge Obligations are outstanding,
the Bridge Purchasers all of such Applicable Acquisition Subsidiary's present
and future Receivables, free and clear of all Liens.
(d) Joinder Agreement. Each Applicable Acquisition Subsidiary
shall have duly authorized, executed and delivered a Joinder Agreement
substantially in the form of Exhibit
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G hereto (as amended, modified or supplemented from time to time, a "Joinder
Agreement") pursuant to which such Applicable Acquisition Subsidiary shall
have joined in this Agreement and the Notes and, to the extent any Bridge
Obligations are outstanding, in the Bridge Note Purchase Agreement and the
Bridge Notes as a party hereto and thereto and become an Issuer hereunder and
under the Notes and under the Bridge Note Purchase Agreement and the Bridge
Notes.
(e) Opinions of Counsel. The Administrative Agent shall have
received from counsel to the Issuers (who shall be reasonably satisfactory to
the Administrative Agent) an opinion or opinions addressed to the
Administrative Agent, the Collateral Agent and each of the Purchasers and
dated the date of the Funding as to such matters as the Administrative Agent
may reasonably request.
(f) Due Diligence. The Administrative Agent and the Required
Purchasers shall have (i) completed a due diligence investigation of the
Applicable Acquisition Subsidiary and such other matters related to or in
connection with the Acquisition thereof, in scope, and with results,
satisfactory to the Administrative Agent and the Required Purchasers in all
respects, (ii) been given such access to the management, records, books of
account, contracts, concessions, management agreements with respect to the
business, regulatory framework and environment and property of the Issuers,
and (iii) received such other financial, business and other information
regarding the Applicable Acquisition Subsidiary and the Acquisition thereof
as the Administrative Agent and/or the Required Purchasers shall have
requested.
(g) Acquisition Audit Report; Projections; Compliance Certificate.
The Administrative Agent shall have received the following documents not
later than the date three Business Days prior to the applicable Funding Date:
(x) the special audit report of Coopers & Xxxxxxx (or other auditors of
international standing acceptable to the Administrative Agent), prepared in
accordance with agreed upon procedures and dated not earlier than the date 10
days prior to the date of the Funding, of the Subscribers, Indebtedness and
contingent liabilities of each Applicable Acquisition Subsidiary, and the
results of such audit shall be to the satisfaction of the Administrative
Agent and the Required Purchasers, (y) as to each Applicable Acquisition
Subsidiary for which the Acquisition Price or exchange value exceeds
U.S.$5,000,000, consolidated financial projections for Supercanal Holding and
its Subsidiaries for the five-year period after the Funding Date, prepared by
Supercanal Holding on a pro forma basis to reflect the Consolidated EBITDA
and Indebtedness of each Applicable Acquisition Subsidiary during such
period, and (z) a certificate from Supercanal Holding substantially in the
form of Exhibit H hereto, dated the date three Business Days prior to the
Funding Date, signed by the President or any Vice President of Supercanal
Holding, setting forth the calculations required to establish pro forma
compliance by Supercanal Holding with the provisions of Sections 8.7 through
8.13 hereof, after giving effect to the Acquisition of each Applicable
Acquisition Subsidiary. The conditions set forth in clauses (y) and (z)
shall not be applicable in connection with the Acquisition of Telecable S.A.
(h) Transferor's COMFER Approval; Power of Attorney. The
Administrative Agent shall have received assurances satisfactory to it in all
respects that, the transferors from
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which the Issuers will acquire the Stock of each Applicable Acquisition
Subsidiary, either (i) has all COMFER Approvals required in connection with
the acquisition and ownership of such Stock by such transferors, or (ii) have
been granted an irrevocable power of attorney, in form and substance
satisfactory to the Administrative Agent, pursuant to which the predecessor
in interest of the transferors shall have granted to such transferors the
right to direct or cause the direction of the management and policies of the
Applicable Acquisition Subsidiary and to transfer or otherwise pledge the
Stock of such Acquisition Subsidiary. This condition shall not be applicable
in connection with the Acquisition of Telecable S.A.
(i) The Acquisition. On or prior to the date three Business Days
prior to the Funding Date there shall have been delivered to the
Administrative Agent and the Required Purchasers a true and correct copy of
all of the Applicable Acquisition Documents, certified as true and correct by
the President or any Vice President of Supercanal Holding, and all such
Applicable Acquisition Documents shall be in full force and effect and in
form and substance satisfactory to the Administrative Agent and the Required
Purchasers, including with respect to the establishment by the Issuers of
procedures and reserves for the Indebtedness and contingent liabilities of
each Applicable Acquisition Subsidiary. On or prior to the Funding Date (i)
each of the conditions precedent as set forth in the Applicable Acquisition
Documents shall have been satisfied and not waived (or with respect to any
non-material conditions, waived by the applicable party); (ii) the
Administrative Agent shall have received assurances satisfactory to it in all
respects that (x) each Applicable Acquisition shall have been consummated in
compliance with the Applicable Acquisition Documents and all applicable Laws
and (y) all necessary Governmental Approvals and third-party approvals in
connection with each Applicable Acquisition other than the COMFER Approval
shall have been obtained and remain in effect, and (iii) all applicable
waiting periods shall have expired without any action being taken by any
Governmental Authority which restrains, prevents or imposes, in the judgment
of the Administrative Agent, materially adverse conditions upon the
consummation of each Applicable Acquisition.
(j) Transferor Power of Attorney. The transferors of the Stock of
each Applicable Acquisition Subsidiary shall have granted to the Issuers an
irrevocable power of attorney, in form and substance satisfactory to the
Administrative Agent (a "Transferor Power of Attorney" and together with all
other Transferor Powers of Attorney executed and delivered in connection with
any Applicable Acquisition, the "Transferor Powers of Attorney"), pursuant to
which the Issuers shall have the exclusive right and power to direct or cause
the direction of the management and policies of such Applicable Acquisition
Subsidiary, including without limitation, the right and power to vote the
Stock of such Applicable Acquisition Subsidiary, to request the applicable
COMFER Approval, to execute and deliver the SA Pledge Agreement and the SRL
Pledge Agreement, as the case may be, and to take such other actions
regarding the business or assets of such Applicable Acquisition Subsidiary as
the Issuers shall deem necessary or desirable. This condition shall not be
applicable in connection with the Acquisition of Telecable S.A.
(k) Consent Letter. The Administrative Agent shall have received a
letter from the Process Agent, in form and substance satisfactory to the
Administrative Agent in all
39
respects, indicating its consent to its appointment by each Applicable
Acquisition Subsidiary as its agent to receive service of process in
connection with the transactions contemplated by the Purchase Documents and
the Bridge Purchase Documents. This condition shall not be applicable to the
Funding on the Initial Funding Date in connection with the Acquisition of
Telecable S.A.
(l) Governmental Approvals. The Administrative Agent shall have
received assurances satisfactory to it that all Governmental Approvals
(except for the filing of the SRL Pledge Agreements with the applicable
registro publico which is required in order to perfect the security interest
granted thereby) required (i) in connection with the execution, delivery and
performance of the Purchase Documents and (ii) to ensure the legality,
validity, binding effect and enforceability of any and all such Purchase
Documents, have been received by the Issuers.
(m) COMFER Applications. The Administrative Agent shall have
received assurances satisfactory to it that the transferors in each
Applicable Acquisition and each direct and indirect predecessor in interest
of such transferors shall have prepared, executed and filed all required
documents and instruments necessary to obtain the COMFER Approval required in
connection with the acquisition and ownership by any such transferor or
predecessor of its interest in the Applicable Acquisition Subsidiary.
(n) Power of Attorney for Review of COMFER Records. Each
Acquisition Subsidiary shall have executed and delivered to the
Administrative Agent an irrevocable power of attorney, in form and substance
satisfactory to the Administrative Agent, pursuant to which each such
Acquisition Subsidiary shall have granted to the Administrative Agent and its
Affiliates and authorized representatives the authority to review the records
of COMFER relating to it.
5.4 Satisfaction of Conditions; Representation.
(a) The obligations of each Purchaser to make Advances on each
Funding Date are subject to the satisfaction of the foregoing conditions
applicable to such Funding to the satisfaction of the Administrative Agent;
provided, however, that the conditions specified in Sections 5.1(h), 5.1(i),
5.3(f), 5.3(g) and the first sentence of 5.3(i) shall be to the satisfaction
of the Required Purchasers.
(b) The acceptance of the proceeds of each Advance shall constitute
a representation and warranty by each of the Issuers to the Administrative
Agent and each of the Purchasers that all the conditions specified in this
Section 5 were satisfied as of the Funding Date for such Advance (unless
otherwise waived by the Administrative Agent or the Purchasers, as the case
may be). All of the Notes, certificates, legal opinions and other documents
and papers referred to in Section 5, unless otherwise specified, shall be
delivered to the Administrative Agent for the account of each of the
Purchasers and, except for the Notes, in sufficient counterparts for each of
the Purchasers.
Section 6. Representations, Warranties and Agreements. In order
to induce the Purchasers to enter into this Agreement and to purchase the
Notes and make the Advances, each of the Issuers makes the following
representations, warranties and agreements, all of which
40
shall survive the execution and delivery of this Agreement and the Notes and
the making of the Advances, with the occurrence of each Funding being deemed
to constitute a representation and warranty that the matters specified in
this Section 6 are true and correct on and as of the date of the Funding (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct
in all material respects only as of such specified date):
6.1 Legal Status.
(a) Each of the Credit Parties organized and existing under the
Laws of Argentina is either a duly incorporated and validly existing
corporation (sociedad anonima) or limited liability company (sociedad de
responsabilidad limitada) under the laws of Argentina. Each of the Credit
Parties organized and existing under the Laws of a jurisdiction outside of
Argentina is a duly organized and validly existing corporation (and, if
applicable, in good standing) under the laws of such jurisdiction.
(b) Each of the Credit Parties (i) has the power and authority to
own its property and assets and to transact the business in which it is
engaged and to do all things necessary or appropriate in respect of its
business and (ii) is duly qualified and is authorized to do business and is
in good standing in each jurisdiction where the ownership, leasing or
operation of its property or the conduct of its business requires such
qualification, except for (x) failures to be so qualified which, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect
on it or any of its Subsidiaries, (y) COMFER Approvals which are required to
be obtained by the Credit Parties or the Purchasing Agents in connection with
the acquisition by such Persons of the Stock of the Acquired Issuers and the
Acquisition Subsidiaries, and (z) registration with the applicable
Governmental Authorities, including, without limitation, the applicable
registros publicos, of the ownership by the Issuers or their Purchasing
Agents of Stock of any Acquired Issuers or Acquisition Subsidiaries.
6.2 Power and Authority. Each of the Credit Parties and the
Purchasing Agents has the power and authority to execute, deliver and perform
the terms and provisions of each of the Purchase Documents to which it or he
is party and has taken all corporate or other action necessary to authorize
the execution, delivery and performance by it of each such Purchase Documents
as have been executed and delivered as of each date this representation and
warranty is made. Each of the Credit Parties and the Purchasing Agents has
duly executed and delivered each of the Purchase Documents to which it is
party, and each such Purchase Document constitutes its legal, valid and
binding obligation enforceable against it in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or other similar laws
relating to or affecting creditors' rights generally or by general equity
principles. Except as reflected in the certificates delivered by the Issuers
pursuant to Section 5.1(d), none of the bylaws or other organization
documents of any of the Acquired Issuers has been amended, except to the
extent such amendments were adopted pursuant to the credit documents for the
Syndicated Facilities.
41
6.3 No Immunity. None of the Credit Parties or the Purchasing
Agents nor any of its or his property has any immunity from the jurisdiction
of any court or from setoff or any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) under the laws of any jurisdiction, including the
laws of Argentina, except to the extent provided in Section 63 of the
Broadcasting Law.
6.4 No Violation. Neither the execution, delivery or performance
by any Credit Party or Purchasing Agent of the Purchase Documents to which it
or he is a party, nor compliance by it or him with the terms and provisions
thereof, nor the use of the proceeds of the Advances as contemplated herein
(i) will contravene any provision of any law, statute, rule or regulation or
any order, writ, injunction or decree of any court or governmental
instrumentality binding on any such Credit Party or Purchasing Agent, (ii)
will conflict or be inconsistent with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default in
respect of, or result in the creation or imposition of (or the obligation to
create or impose) any Lien (other than Liens created pursuant to the Security
Documents) upon, any of the property or assets of any Credit Party or
Purchasing Agent or pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement, loan agreement or any other material agreement,
contract or instrument to which any Credit Party or Purchasing Agent is a
party or by which any such Credit Party's or Purchasing Agent's properties or
assets is bound or to which any such Credit Party may be subject or (iii)
will violate any provision of the estatutos sociales, articles of
incorporation, bylaws or other organizational documents of any Credit Party.
6.5 Governmental Approvals.
(a) No Governmental Approval (except (x) as has been obtained or
made and is in full force and effect, and (y) the filing of any SRL Pledge
Agreement with the applicable Governmental Authority, including, without
limitation, the applicable registro publico (which is necessary in order to
perfect the security interest granted thereby)), is required to authorize, or
is required in connection with, (i) the execution, delivery and performance
by any Issuer or Purchasing Agent of any Purchase Document or (ii) the
legality, validity, binding effect or enforceability against any Issuer or
Purchasing Agent of any such Purchase Document.
(b) Except as set forth on Schedule III hereto, the transferors
from which the Issuers or Purchasing Agents acquired the Stock of the
Acquired Issuers either (i) had all COMFER Approvals required in connection
with the acquisition and ownership of such Stock by such transferors, or (ii)
had been granted, prior to the transfer of such Stock to the Issuers or the
Purchasing Agents, an irrevocable power of attorney pursuant to which the
predecessor in interest of the transferors had granted to such transferors
the right to direct or cause the direction of the management and policies of
the Acquired Issuers and to transfer or otherwise pledge the Stock of the
Acquired Issuers.
(c) To the best knowledge of the Issuers, there is no reason to
believe that each COMFER Approval required but not yet received in connection
with the acquisition by the Issuers or Purchasing Agents of the Stock of any
Acquired Issuer or any Acquisition Subsidiary would not be granted by COMFER
in the ordinary course.
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6.6 Litigation. There is no litigation, action, suit,
investigation, claim or proceeding pending or, to the knowledge of the
Issuers, threatened with respect to this Agreement or any other Purchase
Document or the transactions contemplated hereby. Other than as set forth on
Schedule IV hereto, there is no litigation, action, suit, investigation,
claim or proceeding pending or threatened which could reasonably be expected
to have a Material Adverse Effect on any Credit Party.
6.7 Financial Statements; Projections; No Material Adverse Change.
(a) The consolidated balance sheet of Supercanal Holding and its
Subsidiaries as at June 30, 1997, and the related statement of income and
retained earnings and changes in financial position of Supercanal Holding and
its Subsidiaries for the six-month period then ended heretofore furnished to
the Administrative Agent were prepared in accordance with Argentine GAAP and
fairly present the financial condition and results of operations of
Supercanal Holding and its Subsidiaries as at and for the period covered
thereby.
(b) The financial projections for the Issuers prepared by
Supercanal Holding for the five-year period after the Initial Funding Date
heretofore furnished to the Administrative Agent were prepared on the basis
described therein, and are based on good faith estimates and assumptions
believed by management of Supercanal Holding to be reasonable and attainable
as of the date thereof, and there are no statements or conclusions in any of
the projections which are based upon or include information known to
Supercanal Holding to be misleading or which fail to take into account
material information regarding the matters reported therein.
(c) The consolidated financial projections for Supercanal Holding
and its Subsidiaries furnished to the Administrative Agent in connection with
any Funding pursuant to Section 5.3(g) were prepared on the basis described
therein, and are based on good faith estimates and assumptions believed by
management of Supercanal Holding to be reasonable and attainable as of the
date thereof, and there are no statements or conclusions in any of the
projections which are based upon or include information known to Supercanal
Holding to be misleading or which fail to take into account material
information regarding the matters reported therein.
(d) Since the date of the latest audited financial statements of
the Issuers provided to the Administrative Agent pursuant to the credit
documents for the Syndicated Facilities or pursuant to Section 7.1 hereof,
there has been no material adverse change in the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of Supercanal Holding or any of its Subsidiaries.
6.8 Existing Indebtedness.
(a) Schedule V sets forth a true and complete list of all
Indebtedness of each of the Credit Parties as of the Effective Date other
than Contingent Obligations, in each case indicating the aggregate principal
amount thereof, accrued interest in respect thereof and the obligee of such
Indebtedness.
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(b) As of the Effective Date, the aggregate amount of all Purchase
Money Financing is U.S.$39,021,546, and the aggregate amount of all Subsidiary
Indebtedness is U.S.$2,292,390.
(c) Tescorp Delaware does not have any Indebtedness other than
Indebtedness arising under the Tescorp Purchase Agreement. Neither Inversora
Atelco Comodoro S.A. nor Inversora Antena Comunitaria Trelew S.A. has any
Indebtedness.
6.9 Use of Proceeds. All proceeds of the Advances shall be used by
the Issuers to (i) repay the Syndicated Facilities, the Purchase Money
Indebtedness and the Subsidiary Indebtedness, (ii) to make permitted Capital
Expenditures, (iii) for working capital purposes, (iv) to pay or reimburse the
Issuers for Permitted Transaction Expenses, (v) to pay or reimburse the Issuers
for the Acquisition Price in connection with Approved Acquisitions, and (vi) to
pay or reimburse amounts contemplated in Section 12 hereof. Advances made on
the Initial Funding Date shall be used to repay the Syndicated Facilities, the
Purchase Money Indebtedness and the Subsidiary Indebtedness. No part of the
proceeds of any Advance will be used by the Issuers to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock. Neither the making of the Advances nor the use of
the proceeds thereof will violate or be inconsistent with the provisions of
Regulations G, T, U, or X of the Board of Governors of the Federal Reserve
System.
6.10 Properties. Each of the Credit Parties has good and marketable
title to all properties owned by it, free and clear of all Liens other than
Liens permitted under Section 8.1, except as such title may be affected by the
failure of the Issuers to have obtained COMFER Approvals in connection with the
acquisition by Supercanal Holding of the Stock of its Subsidiaries. With
respect to any lease or rental agreement for any premises to which any Credit
Party is a party, (i) such lease or rental agreement is in full force and
effect, (ii) such Credit Party has complied in all material respects with all of
the terms of such lease or rental agreement, (iii) there exists no event of
default or an event, act or condition (other than defaults or conditions which
are not reasonably likely to have a Material Adverse Effect on the Credit Party)
which with notice or lapse of time, or both, would constitute an event of
default thereunder by the Credit Party or, to the knowledge of the Issuers, the
lessor thereunder, and (iv) the Credit Party is in possession of the premises
demised under all such leases and rental agreements and is conducting business
on such premises.
6.11 License. The License held by each of the Credit Parties is in
full force and effect and each of the Credit Parties is in compliance with the
terms and conditions thereof. A true and correct copy of each such License has
been provided to the Administrative Agent.
6.12 Patents, Licenses, Franchises and Formulas. Each of the Credit
Parties owns all the patents, trademarks, permits, service marks, trade names,
copyrights, licenses, franchises and formulas, or rights with respect to the
foregoing, and has obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its business, without any
known conflict with the rights of others which, or the failure to obtain which,
as the case may be, could result in a Material Adverse Effect on such Credit
Party.
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6.13 True and Complete Disclosure. All factual information (taken as
a whole) heretofore or contemporaneously furnished by or on behalf of any of the
Credit Parties or the Purchasing Agents (including, without limitation, such
factual information as contained in the Purchase Documents and the Acquisition
Documents), for purposes of or in connection with this Agreement or any
transaction contemplated herein or in any Purchase Document is, and all other
such factual information (taken as a whole) hereafter furnished by or on behalf
of any of the Credit Parties or the Purchasing Agents to the Administrative
Agent, the Collateral Agent or any Purchaser will be, true and accurate in all
material respects on the date as of which such information is dated or certified
and does not omit any fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances under which such
information was provided. There is no material fact or circumstance which could
have a Material Adverse Effect on any of the Credit Parties, any Purchasing
Agent or any Acquisition Subsidiary which has not been disclosed herein or in
such other documents, certificates and statements furnished to the Purchasers
for use in connection with the transactions contemplated hereby and there are in
existence no documents or agreements which have not been disclosed to the
Purchasers which are material in the context of the Purchase Documents or the
Acquisitions or which have the effect of varying any of the Purchase Documents
or the Acquisition Documents.
6.14 Tax Returns and Payments. Each of the Credit Parties has filed
all tax returns required to be filed by it and has paid all taxes payable by it
which have become due pursuant to such tax returns and all other taxes and
assessments payable by it which have become due, other than those not yet
delinquent and except for those contested in good faith and for which adequate
reserves have been established.
6.15 Employee Benefit Plans. Each of the Credit Parties is in
compliance in all material respects with its respective obligations relating to
all employee benefit plans established, maintained or contributed to by it, and
none of the Credit Parties has outstanding any liabilities with respect to any
such employee benefit plans.
6.16 Capitalization.
(a) As of the Effective Date, the authorized capital stock of
Supercanal Holding consists of 106,385,110 common book-entry shares each with a
nominal value of ten cents (0.10 Pesos) per share, of which 106,385,110 shares
are issued, outstanding, and fully paid and are owned and registered in the name
of the shareholders listed on Schedule VI, and 69,538,657 preferred book entry
shares, of which 4,075,154 shares are issued and paid as to 25% and represented
by provisional certificates (certificados provisorios) held by the shareholders
listed on Schedule VI and the balance of which may be offered to the public in
the Proposed IPO. Other than the Warrant Agreement and the Warrants and as
otherwise set forth on Schedule VI, Supercanal Holding does not have outstanding
(i) any securities convertible into or exchangeable for its capital stock or
(ii) any rights to subscribe for or to purchase, or any options for the purchase
of, or any agreements, arrangements or understandings providing for the issuance
(contingent or otherwise) of, or any calls, puts, commitments or claims of any
character relating to, its capital stock.
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(b) As of the Effective Date, the authorized capital stock of
Supercanal consists of 10,000 shares of common stock, 10 Pesos nominal value per
share, of which 10,000 shares are issued, outstanding, 9,999 of which are fully
paid and are owned and registered in the name of Supercanal Holding and one of
which is fully paid and is owned and registered in the name of S.H.O. S.A.
Supercanal does not have outstanding (i) any securities convertible into or
exchangeable for its capital stock or (ii) any rights to subscribe for or to
purchase, or any options for the purchase of, or any agreements, arrangements or
understandings providing for the issuance (contingent or otherwise) of, or any
calls, puts, commitments or claims of any character relating to, its capital
stock.
(c) As of the Effective Date, the authorized capital stock (capital
social) of SRL Holding consists of 12,000 shares (cuotas), nominal value one
Peso per share, all of which are issued and outstanding and 25% of which are
fully paid. 5,400 shares are owned and registered in the name of Xxxxxx Xxxxxxx
Xxxx Santander, 5,400 shares are owned and registered in the name of Xxxxxxx
Xxxx Xxxx and 1,200 shares are owned and registered in the name of Xxxxxxx Xxxx
Xxxx. The foregoing persons have entered into agreements to transfer the Stock
of SRL Holding owned by them to Supercanal Holding or Supercanal upon the
conversion of SRL Holding into a corporation (sociedad anonima). SRL Holding
does not have outstanding (i) any securities convertible into or exchangeable
for its capital stock or (ii) any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreements, arrangements or understandings
providing for the issuance (contingent or otherwise) of, or any calls, puts,
commitments or claims of any character relating to, its Stock.
6.17 Subsidiaries and Acquisition Subsidiaries. Schedule VII
correctly sets forth, as of the Effective Date, the percentage ownership (direct
and indirect) of Supercanal Holding and/or any Purchasing Agent acting for or on
behalf of Supercanal Holding or any of the Credit Parties in each class of Stock
in each of its Subsidiaries and also identifies the direct owner thereof. Other
than as set forth on Schedule VII, none of Supercanal Holding or any of the
Credit Parties or any Purchasing Agent acting for or on behalf of any of the
foregoing owns any proprietary interest in any other Person as of the Effective
Date. The Stock of each Subsidiary described on Schedule VII which was acquired
prior to the Effective Date by any Person other than Supercanal Holding,
Supercanal or SRL Holding was acquired for or on behalf of Supercanal Holding by
a Purchasing Agent with proceeds of loans made under the Syndicated Facilities.
6.18 Compliance with Statutes, etc. Each of the Credit Parties is in
compliance in all material respects with all applicable Laws imposed by all
Governmental Authorities, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except (x) such noncompliance as could not have a Material Adverse
Effect on such Credit Party, and (y) the legal requirement that the Credit
Parties and the Purchasing Agents obtain COMFER Approvals in connection with the
acquisition of the Stock of the Acquired Issuers and the Acquisition
Subsidiaries.
46
6.19 Labor Relations. None of the Credit Parties has engaged in any
unfair labor practice that could reasonably be expected to have a Material
Adverse Effect on it. There is (i) no unfair labor practice complaint pending
against any Credit Party or, to the knowledge of the Issuers, threatened against
any Credit Party, before any governmental body or any political subdivision
thereof with responsibility, authority or jurisdiction for such matters, and no
significant grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against any Credit Party
or, to the knowledge of the Issuers, threatened against any Credit Party, (ii)
no strike, labor dispute, slowdown or stoppage pending against any Credit
Parties or, to the knowledge of the Issuers, threatened against any Credit
Party, (iii) to the knowledge of the Issuers, no union representation question
existing with respect to the employees of any Credit Party and, to the knowledge
of the Issuers, no union organizing activities with respect to any Credit Party
are taking place, in any such case that could have a Material Adverse Effect on
it, except as set forth on Schedule IV hereto.
6.20 Pledge Agreements.
(a) The provisions of each SA Pledge Agreement are, or upon execution
and delivery will be, effective to (i) create in favor of the Collateral Agent
for the benefit of the Purchasers, a legal, valid and enforceable fully
perfected first priority Lien on and security interest in the Stock referred to
therein, and (ii) to the extent that any Bridge Obligations are outstanding,
create in favor of the Bridge Collateral Agent for the benefit of the Bridge
Purchasers, a legal, valid and enforceable fully perfected second priority Lien
on and security interest in the Stock referred to therein, subject in each such
case to no other Liens. The provisions of each Bridge SA Pledge Agreement are,
or upon execution and delivery will be, effective to (i) create in favor of the
Collateral Agent for the benefit of the Purchasers, a legal, valid and
enforceable fully perfected first priority Lien on and security interest in the
Stock referred to therein, and (ii) to the extent that any Bridge Obligations
are outstanding, create in favor of the Bridge Collateral Agent for the benefit
of the Bridge Purchasers, a legal, valid and enforceable fully perfected second
priority Lien on and security interest in the Stock referred to therein, subject
in each such case to no other Liens.
(b) The provisions of each SRL Pledge Agreement are, or upon
execution and delivery and registration with the applicable Governmental
Authority, including, without limitation the applicable registro publico, will
be, effective to (i) create in favor of the Collateral Agent for the benefit of
the Purchasers, a legal, valid and enforceable fully perfected first priority
Lien on and security interest in the Stock referred to therein, and (ii) to the
extent that any Bridge Obligations are outstanding, create in favor of the
Bridge Collateral Agent for the benefit of the Bridge Purchasers a legal, valid
and enforceable fully perfected second priority Lien on and security interest in
the Stock referred to therein, subject in each such case to no other Liens. The
provisions of each Bridge SRL Pledge Agreement are, or upon execution and
delivery and registration with the applicable Governmental Authority, including,
without limitation the applicable registro publico, will be, effective to (i)
create in favor of the Collateral Agent for the benefit of the Purchasers, a
legal, valid and enforceable fully perfected first priority Lien on and security
interest in the Stock referred to therein, and (ii) to the extent that any
Bridge Obligations are outstanding, create in favor of the Bridge Collateral
Agent for the benefit of the Bridge
47
Purchasers a legal, valid and enforceable fully perfected second priority
Lien on and security interest in the Stock referred to therein, subject in
each such case to no other Liens.
6.21 Guaranty Trust Agreements. The provisions of each Guaranty Trust
Agreement and Bridge Guaranty Trust Agreement are, or upon execution and
delivery and compliance with the notification requirements set forth therein,
will be, effective to (i) constitute the Collateral assigned in guaranty trust
an estate separate from that of the Guaranty Trustee and each of the Issuers,
and (ii) create in favor of the Guaranty Trustee, for the benefit of the
Purchasers and, to the extent that any Bridge Obligations are outstanding, the
Bridge Purchasers, a legal, valid and enforceable right as between the parties
to receive distributions of the Collateral described therein as provided
therein.
6.22 Establishment of Liens. Neither the establishment of the Liens
created by the Security Documents (including, without limitation, the pledge and
deposit of the Stock with the Collateral Agent or its designee and the pledge of
the Receivables to the Guaranty Trustee) nor the exercise of the rights and
remedies contemplated by the Security Documents at any time after the Initial
Funding Date (i) contravenes any provision of existing Argentine Law, or
Governmental Approval or any order, writ, injunction or decree of any Argentine
court or Governmental Authority, or (ii) would result in the termination of any
of the Licenses.
6.23 Availability and Transfer of Foreign Currency. No foreign
exchange control approvals or other authorizations by the Argentine government
or any Governmental Authority thereof are required to assure the availability of
Dollars to enable the Issuers to perform all of their obligations under each
Purchase Document to which they are a party in accordance with the terms
thereof. There are no restrictions or requirements which limit the availability
or transfer of foreign exchange for the purpose of the performance by the
Issuers of their respective obligations under this Agreement or any other
Purchase Document to which they are a party.
6.24 Fees and Enforcement. No fees or taxes, including, without
limitation, stamp, transaction, registration or similar taxes, are required to
be paid for the legality, validity, or enforceability of this Agreement or any
of the other Purchase Documents. This Agreement and each other Purchase
Document is in proper legal form under the laws of Argentina, and under the
respective governing laws selected in such Purchase Documents, for the
enforcement thereof in such jurisdiction without any further action by any
Issuer, the Administrative Agent, the Collateral Agent or the Purchasers;
provided, that if legal proceedings in respect of the Purchase Documents are
brought before Argentine courts, a court fee of three percent of the amount
claimed will be imposed on the claimant.
6.25 Withholding and Value-Added Taxes.
(a) As of the Effective Date, all payments of interest by the Issuers
to Purchasers who make and maintain their Advances from outside of Argentina of
interest under this Agreement, the Notes and the other Purchase Documents in
respect of the Obligations are subject to withholding of Argentine income tax at
an effective rate of 13.2%. The Issuers are not prohibited or restricted by
applicable Law from paying the additional amounts required to be
48
paid pursuant to Section 4.5 as will result in receipt by the Purchasers of
such amounts as would have been received by them had no such withholding been
required.
(b) As of the Effective Date, all payments of interest by the Issuers
to Purchasers domiciled in Argentina of interest under this Agreement, the Notes
and the other Purchase Documents in respect of the Obligations are subject to
Argentine value-added tax at an effective rate of 21%. The Issuers will pay to
the Purchasers all value-added taxes due in respect of interest payments under
the Notes.
(c) Other than as set forth in this Section 6.25, no withholding or
other taxes are required to be paid in respect of, or deducted from, any payment
required to be made by the Issuers under this Agreement, the Notes or any other
Purchase Document.
6.26 The Acquisitions. Each Applicable Acquisition has been
consummated in accordance with the terms and conditions of the Applicable
Acquisition Documents and all applicable Laws. All conditions precedent set
forth in the Applicable Acquisition Documents have been or will have been
satisfied and not waived (or with respect to any non-material conditions, waived
by the applicable party) on or prior to consummation of the Applicable
Acquisition, and all necessary Governmental Approvals and third-party approvals
in connection with each Applicable Acquisition other than the COMFER Approvals
and the registration with the applicable Governmental Authorities, including,
without limitation, the applicable registros publicos, in connection with the
transfer of the Stock in the Acquisitions have been or will have been obtained
and are or will be in full force and effect, and all applicable waiting periods
have or will have expired at the time of the consummation of such Applicable
Acquisitions. All representations and warranties of the Issuers contained in
the Applicable Acquisition Documents are true and correct as of the time as of
which such representations and warranties were made, except for such
misrepresentations or breaches of warranties which could not have a Material
Adverse Effect on the Issuers or the Applicable Acquisition Subsidiary. The
copies of the Applicable Acquisition Documents delivered or to be delivered to
the Administrative Agent in satisfaction of the conditions set forth in Section
5 hereof are or will be true and correct copies of the Applicable Acquisition
Documents as in effect at the time of each Funding relating to the payment of
any portion of the Acquisition Price in connection therewith.
6.27 Investment Company Act. None of the Credit Parties is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
6.28 Public Utility Holding Company Act. None of the Credit Parties
is a "holding company," or a "subsidiary company" of a "holding company," or an
"Affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
6.29 Securities Laws Representations.
(a) None of the Issuers nor anyone acting on behalf of any of the
Issuers has offered the Notes or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise approached or
negotiated in respect thereof with, any Person other than
49
the Purchasers and the Bridge Purchasers. None of the Issuers nor anyone
acting on behalf of any of the Issuers has taken, or will take, any action
which would require the issuance and sale of the Notes to be registered
pursuant to Section 5 of the Securities Act, or would limit the availability
to the Purchasers of the resale exemptions provided in Rule 144A and
Regulation S under the Securities Act.
(b) Neither the Issuers, nor any of their affiliates (as defined in
Rule 144 under the Securities Act), nor any person acting on behalf of any of
the foregoing persons has engaged or will engage in any "directed selling
efforts" (as defined in Regulation S under the Securities Act) with respect to
the Notes.
(c) Neither the Issuers, nor any of their affiliates (as defined in
Rule 144 under the Securities Act), nor any person acting on behalf of any of
the foregoing persons has engaged or will engage in any form of "general
solicitation" or "general advertising" (within the meaning of Rule 502(c) under
the Securities Act) in connection with the sale of the Notes in the United
States.
(d) The Notes meet the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
(e) There is no "substantial U.S. market interest" (as defined in
Rule 902(n) under the Securities Act) in any of the debt securities of the
Issuers.
Section 7. Affirmative Covenants. The Issuers covenant and agree
that on and after the Effective Date and until the Notes, together with all
accrued interest, Fees and all other Obligations incurred hereunder and
thereunder, are paid in full:
7.1 Information Covenants. Supercanal Holding will furnish or cause
to be furnished to each Purchaser:
(i) Quarterly Financial Statements. As soon as available, but,
in any event, within 45 days (or 120 days in the case of the fourth fiscal
quarter of 1998 or any subsequent calendar year) after the close of each
quarterly accounting period in each fiscal year of Supercanal Holding, a
copy of the complete unaudited and consolidated balance sheet of Supercanal
Holding and its Subsidiaries for such period, together with the related
statements of income and retained earnings and statements of changes in
financial position for such quarterly period, certified by the chief
executive officer of Supercanal Holding, subject to normal recurring
year-end adjustments. The quarterly financial statements for the fourth
quarter of 1997 shall be delivered within 45 days after the close of such
quarter.
(ii) Annual Financial Statements. As soon as available, but, in
any event, within 120 days after the close of each fiscal year of
Supercanal Holding, the consolidated and consolidating balance sheet of
Supercanal Holding and its Subsidiaries for such fiscal year, together with
the related consolidated and consolidating statements of income and
retained earnings and statements of changes in financial position for such
50
fiscal year, certified by independent public accountants of recognized
international standing selected by Supercanal Holding, and in each case
pursuant to an unqualified opinion of such independent public accountants,
subject only to Defaults or Events of Default specified therein.
(iii) Management Letters. Promptly after Supercanal
Holding's receipt thereof, a copy of any "management letter" or other
similar communication received by Supercanal Holding from its auditors in
relation to its financial, accounting and other systems, management and
accounts.
(iv) Budgets. Promptly after preparation, copies of any
consolidated or unconsolidated annual budgets of Supercanal Holding and/or
its Subsidiaries (and any modifications thereof or supplements thereto),
including budgeted statements of income and sources and uses of cash and
balance sheets.
(v) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 7.1(i) and (ii), a certificate
signed by the chief executive officer of Supercanal Holding substantially
in the form of Exhibit I hereto, to the effect that, to the best of his
knowledge, no Default or Event of Default has occurred and is continuing,
and setting forth (x) the calculations required to establish compliance by
Supercanal Holding with the provisions of Sections 8.7 through 8.13 at the
end of such fiscal quarter or year, as the case may be, and (y) in the case
of the certificate delivered at the time of the delivery of the financial
statements provided for in Section 7.1(ii), the calculations required to
establish compliance by the Issuers with the provisions of Section 8.4,
and, from and after January 1, 1999 or January 1, 2000, as the case may be,
the calculation of Excess Cash Flow for the calendar year then ended.
(vi) Auditor's Certificates. (1) At the time of the delivery of
the financial statements for the fiscal quarter ended each June 30, a
limited review report prepared in accordance with Argentine GAAP by the
independent public accountants of Supercanal Holding of recognized
international standing selected by Supercanal Holding, which report shall
set forth the calculations required to establish compliance by Supercanal
Holding with the provisions of Sections 8.7 through 8.13 at the end of such
period.
(2) At the time of the delivery of the financial statements
provided for in Section 7.1(ii), a certificate signed by independent public
accountants of Supercanal Holding of recognized international standing
selected by Supercanal Holding setting forth (A) the number of Subscribers
and Net Subscribers of Supercanal Holding and its Subsidiaries at the end
of the period covered thereby, and (B) the Consolidated EBITDA of
Supercanal Holding and its Subsidiaries during the period covered thereby.
(vii) Notice of Default or Litigation, etc. Promptly, but in
no event later than three days after an officer of Supercanal Holding or
any other Issuer obtains actual knowledge thereof, written notice of (i)
the occurrence of any event which constitutes a Default or Event of
Default, (ii) any litigation or governmental proceeding pending or
51
threatened (x) against Supercanal Holding, (y) against any Credit Party or
Purchasing Agent which, if determined adversely, could have a Material
Adverse Effect on such Credit Party or Purchasing Agent or (z) with respect
to any Purchase Document, (iii) any other event which could have a Material
Adverse Effect on any Credit Party or Purchasing Agent, and (iv) any claim
by COMFER that any License held by any Credit Party is not valid or that
any breach or default has occurred thereunder or under relevant Law or any
notice or inquiry of COMFER as to any breach or potential breach of any
such License.
(viii) Monthly Reports. (A) Within 15 days after the
beginning of each month, a report prepared by Supercanal Holding setting
forth the number of Subscribers and Net Subscribers of Supercanal Holding
and its Subsidiaries as at the end of the previous month.
(B) Within 30 days after the beginning of each month, a report
prepared by Supercanal Holding setting forth (1) the Consolidated EBITDA of
each of Supercanal Holding and each of its Subsidiaries for the previous
month, and (2) the Consolidated EBITDA of Supercanal Holding and its
Subsidiaries for the previous month.
(ix) Status Reports. From time to time, within five Business
Days after request therefor from the Administrative Agent, such reports,
prepared in reasonable detail and in form and substance satisfactory to the
Administrative Agent, regarding (A) the status of the registration of the
amendments to the estatutos sociales of each of the Issuers required
hereby, and (B) the status of all registrations, filings and other actions
required to be taken pursuant to Section 7 hereof, including, without
limitation, the matters contemplated in Sections 7.15 through 7.19 hereof.
(x) COMFER Correspondence. Promptly upon dispatch or receipt,
copies of all correspondence with COMFER.
(xi) Rule 144A(d)(4) Reports. To permit compliance with Rule
144A under the Securities Act in connection with transfers of the Notes
that are "restricted securities," Supercanal Holding will furnish, upon the
request of any holder of a Note or any prospective purchaser designated by
such holder, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act, if at the time of such request
Supercanal Holding is neither a reporting company under Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, nor exempt from
reporting pursuant to Rule 12g3-2(b) thereunder.
(xii) Other Information. From time to time, such other
information or documents (financial or otherwise) as any Purchaser and/or
the Administrative Agent may reasonably request.
7.2 Books, Records and Inspections; Accounting Matters; Provision of
Certain Financial Statements. Supercanal Holding shall, and shall cause each of
its Subsidiaries to, keep
52
proper books of record and account adequate to reflect truly and fairly the
financial condition and results of operations of Supercanal Holding and its
Subsidiaries and in which full, true and correct entries in conformity with
applicable generally accepted accounting principles consistently applied and
all requirements of Law shall be made of all dealings and transactions in
relation to its business and activities. Supercanal Holding will, and will
cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent, the Collateral Agent or any
Purchaser to visit and inspect, under guidance of officers of, as the case
may be, Supercanal Holding or its respective Subsidiaries, any of the
properties of Supercanal Holding or any such Subsidiary, and to examine and
make copies of the books of record and account of Supercanal Holding or any
such Subsidiary and discuss the affairs, finances and accounts of Supercanal
Holding or any such Subsidiary with, and be advised as to the same by, its
and their officers, all at such reasonable times and intervals and to such
reasonable extent as such Person may request. The requirements of this
Section 7.2 are subject to restrictions of applicable Laws, including,
without limitation, applicable securities laws.
7.3 Compliance with Statutes, etc. Each of the Issuers will, and
will cause each other Credit Party to, comply with all applicable Laws imposed
by all governmental bodies, domestic or foreign, in respect of the conduct of
its business and the ownership of its property, except where the failure to so
comply could not have a Material Adverse Effect on it.
7.4 Performance of Obligations. Each of the Issuers will, and will
cause each other Credit Party and Purchasing Agent to, perform all of its or his
obligations under (a) each Purchase Document and Bridge Purchase Document to
which it is a party, (b) the terms of each other agreement, mortgage, indenture,
security agreement, and other debt instrument by which it is bound, except, in
the case of this clause (b), when the failure to so perform could not have a
Material Adverse Effect on it.
7.5 Taxes. Each of the Issuers will, and will cause each other
Credit Party to, pay and discharge or cause to be paid and discharged all
applicable taxes (including stamp taxes), assessments and governmental charges
or levies imposed upon it or upon its income or profits or upon any of its
property, real, personal or mixed or upon any part thereof, when due (other than
taxes contested in good faith and for which adequate reserves have been
established), as well as all lawful claims for labor, materials and supplies
which, if unpaid might by law become a Lien upon such property (except to the
extent permitted by Section 8.1).
7.6 Corporate Franchises. Each of the Issuers will, and will cause
each other Credit Party to, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 7.6 shall prevent any other transaction specifically permitted by
this Agreement or the withdrawal by any Credit Party of its qualification as a
foreign corporation in any jurisdiction where such withdrawal could not have a
Material Adverse Effect on such Credit Party.
7.7 Compliance with License. Each of the Issuers will, and will
cause each other Credit Party to, perform all of its obligations under its
respective License and take all such
53
further actions as shall be required in order to ensure that its License shall
remain in full force and effect.
7.8 Further Assurances.
(a) Each of the Issuers will, at its own expense, (i) make,
execute, endorse, acknowledge, file and/or deliver to the Administrative
Agent and/or the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, reports and other
assurances or instruments and (ii) take or cause to be taken such further
actions and steps relating to (x) the Collateral, (y) the filing and
prosecution of applications with Governmental Authorities for registration or
recording (including, if necessary or requested, the modification, refiling
and prosecution of such applications) and (z) the other agreements, covenants
and transactions provided for or contemplated herein, in any such case as the
Administrative Agent and/or the Collateral Agent may reasonably require.
(b) Each of the Issuers will (i) make, execute, endorse,
acknowledge, file with and/or deliver, or cause to be made, executed,
endorsed, acknowledged, filed and/or delivered, to the Administrative Agent
and the Purchasers from time to time such documents, instruments and
opinions, and (ii) take such further steps, relating to the sale or other
disposition by any Purchaser of all or any portion of the Notes as
contemplated in Section 14.5, in each such case as the Administrative Agent
or any Purchaser may reasonably require. Without limiting the generality of
the foregoing, the Issuers will promptly execute and deliver such additional
Notes as the Administrative Agent or any Purchaser may reasonably require.
(c) The Issuers agree to cooperate with the other parties hereto,
and to execute and deliver such documents and instruments as the
Administrative Agent shall reasonably require in order to effect such
modifications and amendments to the Purchase Documents and the Bridge
Purchase Documents as the Registrar and the Purchasers and the Bridge
Purchasers in the initial placement of the Notes and the Bridge Notes may
reasonably request.
(d) Promptly, but in no event later than the date 30 days after the
Initial Funding Date, (i) the Issuers will cause the Process Agent to deliver
to the Administrative Agent a letter, in form and substance satisfactory to
the Administrative Agent, indicating its consent to its appointment by
Telecable S.A. as its agent to receive service of process in connection with
the transactions contemplated by the Purchase Documents and the Bridge
Purchase Documents, and (ii) the Issuers will prepare and deliver to the
Administrative Agent a certificate from Supercanal Holding substantially in
the form of Exhibit J hereto, dated as of the Initial Funding Date, signed by
the President of Supercanal Holding, setting forth the calculations required
to establish pro forma compliance by Supercanal Holding with the provisions
of Sections 8.7 through 8.13 hereof, after giving effect to the Acquisition
of Telecable S.A.
7.9 Maintenance of Property; Insurance. Each of the Issuers will,
and will cause each other Credit Party to, (i) keep all property useful and
necessary in its business in good working order and condition (except to the
extent failure to do so would have no Material Adverse Effect on it) and (ii)
keep its present and future properties and business insured with
54
financially sound and reputable insurers satisfactory to the Purchasers
against loss or damage in such manner and to the same extent as companies in
the Issuers' line of business customarily maintain in Argentina (or, in the
case of any Credit Party organized or located in any other jurisdiction, such
other jurisdiction), subject to customary deductibles, and each of the
Issuers will, and will cause each other Credit Party to, maintain with
financially sound and reputable insurance companies satisfactory to the
Purchasers, insurance against other hazards and risks and liability to
Persons and property sufficient to protect the Credit Parties and the
respective financial condition of each of them against the risks involved in
the business conducted by them. Notwithstanding anything contained in this
Section 7.9 to the contrary, the Credit Parties may, in lieu of or
supplemental to the insurance described above, adopt such other plan or
method of protection, whether by the establishment of any insurance fund or
reserve to be held and applied to make good losses from casualties, or
otherwise, and conforming to the practices of similar corporations
maintaining systems of self-insurance, as may be determined by the Board of
Directors. If any Credit Party adopts any such other plan or method of
protection, whether by the establishment of an insurance fund or reserve, or
otherwise, such Credit Party shall, at the time of the establishment thereof,
furnish to the Administrative Agent a certificate of an actuary or other
qualified person that such plan or method of protection is adequate.
7.10 Fiscal Years. Each of the Issuers will, and will cause each
other Credit Party to, cause its fiscal year and the fiscal year of each of
its Subsidiaries to end on December 31.
7.11 COMFER Approvals. (a) Promptly, but in no event later than 30
days after the Effective Date, the Issuers will prepare, execute and file, or
cause to be prepared, executed and filed, all required documents and
instruments and take such other action as is necessary to obtain the required
COMFER Approval in connection with the acquisition by the Issuers or their
Purchasing Agents of the Stock of each of the Acquired Issuers. Following
such filings, the Issuers will take, or cause to be taken, all such
additional actions and do such other things as are necessary to obtain such
approval as soon after the Effective Date as is practicable.
(b) Promptly, but in no event later than 30 days after the
consummation of any Acquisition, the Issuers will prepare, execute and file,
or cause to be prepared, executed and filed, all required documents and
instruments and take such other action as is necessary to obtain the required
COMFER Approval for such Acquisition. Following such filing, the Issuers
will take all such additional actions and do such other things as are
necessary to obtain such approval as soon after the Effective Date as is
practicable.
(c) The Issuers will provide the Administrative Agent with copies
of all documents and instruments referred to in this Section 7.11
contemporaneously with the preparation and filing thereof, and will
thereafter promptly provide the Administrative Agent with copies of all
correspondence with COMFER or any other Governmental Authority relating
thereto and will promptly notify the Administrative Agent of all other
communications in connection therewith.
55
7.12 Notices under Guaranty Trust Agreements. Prior to the
incurrence of any Indebtedness for borrowed money (other than the Advances),
the Issuers will (i) provide a notification which constitutes an acto publico
for purposes of Argentine Law to the Person from whom such Indebtedness is
to be incurred of the assignment of the Receivables in guaranty trust
pursuant to the Guaranty Trust Agreements, and (ii) provide a copy of such
notification to the Administrative Agent.
7.13 Additional Pledge Agreements. (a) Promptly, but in no event
later than 30 days after the acquisition by any Issuer or its Purchasing
Agents or any other Person acting by or on behalf of any Issuer of Stock of
any Person other than an Acquisition Subsidiary, the Issuers will cause the
acquiring Issuer, Purchasing Agent or other Person, as the case may be, to
(i) execute and deliver a pledge agreement, in form and substance
satisfactory to the Administrative Agent, pursuant to which such Issuer,
Purchasing Agent or other Person shall have granted to the Collateral Agent,
for the benefit of the Purchasers, a perfected Lien of first priority in all
of such Stock, free and clear of all Liens other than Liens created by the
Bridge Purchase Documents, and (ii) (x) deliver to the Collateral Agent all
such Stock with the relevant annotation of the existence and perfection of
the Liens created by such pledge agreement, (y) give notice to the Person
which issued such Stock of the grant of such Liens, if required by applicable
Law, and (z) cause such Person to duly register such Liens in the names of
the Collateral Agent and the Bridge Collateral Agent in such Person's share
registry.
(b) Within 30 days after the Effective Date, the Issuers will cause
the shareholders of Supercanal Bolivia S.A., a corporation (sociedad anonima)
organized and existing under the laws of Bolivia ("Supercanal Bolivia") to
(i) execute and deliver a pledge agreement, in form and substance
satisfactory to the Administrative Agent, pursuant to which such shareholders
shall have granted to the Collateral Agent, for the benefit of the
Purchasers, a perfected Lien of first priority in all of the Stock of
Supercanal Bolivia, free and clear of all other Liens other than Liens
created by the Bridge Purchase Documents, and (ii) (x) deliver to the
Collateral Agent all such Stock with the relevant annotation of the existence
and perfection of the Liens created by such SA Pledge Agreement, (y) give
notice to Supercanal Bolivia of the grant of such Liens, if required by
applicable Law, and (z) cause Supercanal Bolivia to duly register such Liens
in the names of the Collateral Agent and the Bridge Collateral Agent in
Supercanal Bolivia's share registry.
7.14 Pledge of Stock of Offeror. If the Offeror is organized as the
holding company of Supercanal Holding, contemporaneously with the
organization of the Offeror and the transfer to the Offeror of the Stock of
Supercanal Holding, the Issuers will cause the Offeror to (i) execute and
deliver an SA Pledge Agreement pursuant to which the Offeror shall grant to
the Collateral Agent for the benefit of the Purchasers a fully perfected Lien
of first priority on all Stock of Supercanal Holding, free and clear of all
Liens other than the Liens created by the Bridge Purchase Documents, and (ii)
(x) deliver to the Collateral Agent all such Stock with the relevant
annotation of the existence and perfection of the Liens created by such SA
Pledge Agreement, (y) give notice to Supercanal Holding of the grant of such
Liens, if required by applicable Law, and (z) cause Supercanal Holding to
duly register such Liens in the names of the Collateral Agent and the Bridge
Collateral Agent in Supercanal Holding's share registry.
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7.15 Amendments to Bylaws. (a) On or before June 30, 1998,
Supercanal Holding will cause the bylaws (estatutos sociales) or other
organizational documents of each of the Issuers (including all Acquisition
Subsidiaries) to be amended, pursuant to an amendment in form and substance
satisfactory to the Administrative Agent, to prohibit the transfer of the
License of each such Issuer prior to December 31, 2007.
(b) On or before June 30, 1998, Supercanal Holding will cause the
bylaws (estatutos sociales) or other organizational documents of SRL Holding
to be amended, pursuant to an amendment in form and substance satisfactory to
the Administrative Agent, to prohibit or restrict, during any period in which
any of the Advances is outstanding, (x) the transfer of any of its assets or
properties, and (y) the incurrence of any Indebtedness in excess of
U.S.$100,000.
(c) Promptly, but in no event later than 30 days after the adoption
of any amendments of the bylaws of any Issuer as contemplated in this Section
7.15, the Issuers will prepare, execute and file, or cause to be prepared,
executed and filed, all required documents and instruments and take such
other action as is necessary to obtain the required COMFER approval for such
amendment. Following such filing, the Issuers will take all such additional
actions and do such other things as are necessary to obtain such approval as
soon as is practicable.
(d) Promptly, but in no event later than 30 days after the adoption
of any amendments to the bylaws of any Issuer, the Issuers will prepare,
execute and file, or cause to be prepared, executed and filed, all required
documents and instruments and take such other action as is necessary to cause
all such amendments to be effective. Following such filings, the Issuers
will take all such additional actions and do such other things as are
necessary to cause such amendments to be effective as soon as is practicable.
7.16 Registration of Ownership. (a) Promptly, but in no event
later than 30 days after the Effective Date, the Issuers will cause the
ownership of the Stock of each Acquired Issuer which is organized as a
limited liability company to be properly registered with all appropriate
Governmental Authorities, including, without limitation, the applicable
registros publicos; provided, however, that the 30-day period described above
shall be extended with respect to any Issuer for one or more additional
15-day periods if (i) no Issuer shall have received notice, or the
Administrative Agent shall not have any reason to believe, that such
registration with respect to such Issuer will not be granted in the ordinary
course, and (ii) the Administrative Agent shall not have determined that the
Issuers are not diligently prosecuting the application for such registration.
(b) Promptly, but in no event later than 30 days after the
consummation of any Acquisition of an Acquisition Subsidiary organized as a
limited liability company, the Issuers will prepare, execute and file all
documents and instruments necessary to cause the ownership of the Stock of
such Acquisition Subsidiary to be properly registered with all appropriate
Governmental Authorities, including, without limitation, the applicable
registros publicos. Following such filing, the Issuers will take all such
additional actions and do such other things as are necessary to cause such
registrations to be made as soon after the Effective Date as is practicable.
57
7.17 Transfer of Domicile of Limited Liability Companies. (a)
Within 30 days after the registration of ownership of any Issuer organized as
a limited liability company pursuant to Section 7.16(a) above (or, if such
ownership is registered as of the Effective Date, within 30 days after the
Effective Date), the Issuers will prepare, execute and file all documents and
instruments necessary to cause the registered domicile of each such Issuer
organized as a limited liability company to be transferred to and registered
in the City of Buenos Aires. Following such filing, the Issuers will take
all such additional actions and do such other things as are necessary to
cause such registration to be made as soon after the Effective Date as is
practicable.
(b) Promptly, but in no event later than 30 days after the
consummation of any Acquisition of any Acquisition Subsidiary organized as a
limited liability company, the Issuers will prepare, execute and file all
documents and instruments necessary to cause the registered domicile of such
Acquisition Subsidiary to be transferred to and registered in the City of
Buenos Aires; provided, that if the selling shareholders in any such
acquisition shall not have previously adopted appropriate resolutions
authorizing such change in registered domicile, the Issuers shall prepare,
execute and file all such documents and instruments no later than 30 days
after the registration of the ownership of the Stock of such Acquisition
Subsidiary, as contemplated in Section 7.16(b). Following such filings, the
Issuers will take all such additional actions and do such other things as are
necessary to cause such registration to be made as soon after the Effective
Date as is practicable.
7.18 Registration of SRL Pledge Agreements. Promptly, but in no
event later than the earlier to occur of (i) 30 days after the registration
of the change in registered domicile of any Issuer or any Acquisition
Subsidiary pursuant to Section 7.17 above (or, if such domicile is registered
in the City of Buenos Aires as of the Effective Date, within 30 days after
the Effective Date), or (ii) if possible, contemporaneously with the filing
with the registro publico in the City of Buenos Aires of the application for
such change in registered domicile of any such Person, the Issuers will file
each SRL Pledge Agreement with respect to such Issuer or Acquisition
Subsidiary for registration with all appropriate Governmental Authorities,
including, without limitation, the applicable registros publicos. Following
such filing, the Issuers will take all additional actions and do such other
things and execute and deliver such other documents and instruments relating
thereto as shall be necessary or as the Collateral Agent shall reasonably
request in order to cause such registration to be made and to cause the
security interests granted pursuant to each such SRL Pledge Agreement to
constitute fully perfected Liens of first and second priority, as the case
may be, subject to no other Liens other than Liens created by the Bridge
Purchase Documents, in each such case as soon after the Effective Date as is
practicable.
7.19 Transfer and Acquisition of Limited Liability Companies. (a)
Promptly, but in no event later than the earlier to occur of (i) 15 days
after the registration of any pledge agreement as contemplated in Section
7.18 with respect to any Issuer or Acquisition Subsidiary, or (ii) if
possible, contemporaneously with the filing with the registro publico in the
City of Buenos Aires of the application for the registration of any such
pledge agreement (provided, no delay in the registration of such pledge
agreement will result from such filing), the Issuers will, and will cause all
Purchasing Agents to, (i) transfer to SRL Holding all of the Stock owned by
any of them in such Issuer or Acquisition Subsidiary, and (ii) prepare,
execute and file all
58
documents and instruments necessary to cause the ownership of such Stock to
be properly registered with all appropriate Governmental Authorities,
including, without limitation, the applicable registros publicos. Following
such filings, the Issuers will take all such additional actions and do such
other things as are necessary to cause such registrations to be made as soon
after the Effective Date as is practicable.
(b) From and after the Effective Date, the Issuers will cause SRL
Holding to directly acquire the Stock of any Acquisition Subsidiary or other
Person organized as a limited liability company, without the use of
Purchasing Agents.
7.20 Interest Rate Protection. No later than the date 60 days after
the Effective Date, the Issuers will enter into, and for a minimum of two
years thereafter maintain, interest rate cap agreements in form and substance
reasonably satisfactory to the Administrative Agent with international
financial institutions or other counterparties reasonably acceptable to the
Administrative Agent, which establish a fixed or maximum interest rate
acceptable to the Administrative Agent in respect of at least 50% of the
aggregate principal amount of the Notes and the Bridge Notes which may be
issued hereunder and under the Bridge Purchase Documents.
7.21 Payment Instructions. Prior to the consummation of the
Proposed IPO or the Proposed High Yield Debt Offering or any other public or
private sale by any Issuer or Offeror of any Stock or debt securities which
will require the Issuers to make a prepayment of the Advances pursuant to
Section 4.3(a), the Issuers will cause the Issuers, Purchasing Agents or
Offeror entitled to receive the Net Proceeds to provide the global
coordinators or lead underwriters with irrevocable payment instructions to
pay to the Administrative Agent an amount of the Net Proceeds of such sale
sufficient to make the required prepayment.
7.22 Financial Statements. On or before December 15, 1997, the
Issuers will deliver to the Administrative Agent (i) the consolidated balance
sheet of Supercanal Holding and its Subsidiaries as at September 30, 1997,
together with the related statement of income and retained earnings and
changes in financial position of Supercanal Holding and its Subsidiaries for
the nine-month period then ended, prepared in accordance with Argentine GAAP
and accompanied by a reconciliation to U.S. GAAP and an unqualified opinion
of Coopers & Xxxxxxx based on a limited review, and (ii) a copy of a
"management letter" from the auditors of Supercanal Holding, dated the date
of the opinion provided by such auditors in connection with the financial
statements described in clause (i) above, to the effect that the financial
systems and controls utilized by Supercanal Holding are, in the opinion of
such auditors, adequate.
7.23 Clearance Through DTC. The Issuers will cooperate with the
Purchasers and take all actions necessary to (i) cause the Notes to be
designated as eligible for trading on the PORTAL System of the National
Association of Securities Dealers Inc. and maintain such designation, (ii)
make all necessary arrangements for the clearance of the Notes for book entry
settlement by The Depository Trust Company, including all arrangements
regarding the assignment by Standard & Poor's CUSIP Service Bureau of a CUSIP
Number to the Notes, (iii) make such modifications to this Agreement and the
other Purchase Documents as any Purchaser shall reasonably request in order
to effect the foregoing (it being understood and agreed that any such
modifications shall be binding on all parties hereto; provided, that such
modifications shall
59
(x) not adversely affect any right or remedy of any party hereto, and (y)
shall be in form and substance satisfactory to the Administrative Agent),
(iv) cause to be provided to the Administrative Agent and the Purchasers such
opinion or opinions of counsel reasonably acceptable to the Administrative
Agent as the Administrative Agent shall require, and (v) pay all costs,
expenses and fees incident to each of the foregoing. The Issuers agree to
take the actions set forth in the immediately preceding sentence as soon
after the Effective Date as is practicable, but in any event within the time
required in order for all necessary arrangements for the clearance of the
Notes through The Depository Trust Company to be accomplished on the
Availability Expiry Date. For purposes hereof, the fact that Purchasers who
are accredited investors may not hold Notes through such book-entry system
shall not constitute an adverse effect on any right or remedy of such
Purchaser; provided, that each such Purchaser can continue to transfer its
Notes as provided herein.
7.24 Interest Reserve Account. On or before November 28, 1997, the
Issuers will establish an interest reserve account (the "Interest Reserve
Account") with the Collateral Agent pursuant to standard documentation and
policies of the Collateral Agent with respect to such accounts, for deposits
of amounts as contemplated in Section 14.22 and all other revenues, receipts,
moneys, proceeds and other sums derived in any manner from such amounts.
Section 8. Negative Covenants.
Each of the Issuers covenants and agrees that on and after the
Effective Date and until the Notes, together with all accrued interest, Fees
and all other Obligations incurred hereunder and thereunder, are paid in full:
8.1 Liens. None of the Issuers will, or will permit any other
Credit Party to, create, agree to create, incur, assume or suffer to exist
any Lien upon or with respect to any of its property or assets (real,
personal or mixed, tangible or intangible), whether now owned or hereafter
acquired, provided that the provisions of this Section 8.1 shall not prevent
the creation, incurrence, assumption or existence of (all Liens described
below are hereinafter referred to as "Permitted Liens"):
(i) Liens for taxes, assessments or governmental charges or
levies not yet due, or Liens for taxes, assessments or governmental charges
or levies being contested in good faith and by appropriate proceedings for
which adequate reserves have been established in accordance with generally
accepted accounting principles;
(ii) Liens created pursuant to the Security Documents and the
Bridge Purchase Documents;
(iii) Liens in respect of property or assets of the any of
the Issuers imposed by Law, which were incurred in the ordinary course of
business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and which do not
in the aggregate materially detract from the value of the
60
Issuers' respective property or assets or materially impair the use
thereof in the operation of the business of the Issuers;
(iv) Liens in existence on the Effective Date which are listed,
and the property subject thereto described, in Schedule VIII hereto and any
other Liens in existence at the time of the consummation of the acquisition
of the Stock or assets of any Person, to the extent such acquisition is
permitted hereby or by the Bridge Purchase Documents;
(v) Liens placed upon equipment or machinery used in the
ordinary course of business of any of the Issuers at the time of
acquisition thereof to secure Indebtedness incurred to pay all or a portion
of the purchase price thereof, provided that (x) the aggregate principal
amount of all Indebtedness of the Issuers secured by Liens permitted by
this clause (v) does not exceed U.S.$10,000,000 in the aggregate, and (y)
in all events, the Lien encumbering the equipment or machinery so acquired
does not encumber any other asset of the Issuers;
(vi) pledges or deposits for the purpose of securing a stay or
discharge in the course of any legal proceedings, provided that the
aggregate amount of such pledges or deposits does not exceed U.S.$2,000,000
in the aggregate; and
(vii) other Liens which, in the aggregate, do not encumber
more than the lesser of (x) two percent of the combined Total Assets of the
Issuers, and (y) U.S.$8,000,000.
Notwithstanding anything contained in this Agreement to the
contrary, none of the Issuers will create, incur, assume or suffer to exist
any Lien (other than pursuant to the Security Documents and the Bridge
Purchase Documents) upon any of the Stock of the Issuers (other than
Supercanal Holding) (including any Stock of any Issuer owned by a Purchasing
Agent), to the extent such Stock constitutes Collateral, or any other
Collateral.
8.2 Dividends.
(a) Supercanal Holding will not declare or pay any dividends, or
return any capital, to its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for any consideration, any shares of any class of its capital
stock now or hereafter outstanding (or any options or warrants issued by
Supercanal Holding with respect to its capital stock) or set aside any funds
for any of the foregoing purposes, or permit any of its respective
Subsidiaries to purchase or otherwise acquire for a consideration any shares
of any class of the capital stock of Supercanal Holding now or hereafter
outstanding (or any options or warrants issued by Supercanal Holding with
respect to its capital stock), except as permitted or required by the
Purchase Documents.
(b) Supercanal Holding will not permit any of its respective
Subsidiaries to declare or pay any dividends, or return any capital, to its
stockholders or authorize or make any
61
other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise acquire,
directly or indirectly, for a consideration, any shares of any class of its
capital stock now or hereafter outstanding (or any options or warrants issued
by such Subsidiary with respect to its capital stock), or set aside any funds
for any of the foregoing purposes, or permit any of its respective
Subsidiaries to purchase or otherwise acquire for a consideration any shares
of any class of the capital stock of any other Subsidiary of Supercanal
Holding now or hereafter outstanding (or any options or warrants issued by
such Subsidiary with respect to its capital stock), except that any such
Subsidiary may pay dividends to Supercanal Holding or any Subsidiary of
Supercanal Holding for distribution to Supercanal Holding. Nothing contained
in this Section 8.2(b) shall be deemed to prohibit the acquisition of Stock
of any Issuer in an Approved Acquisition.
8.3 Indebtedness. None of the Issuers will, or will permit any
other Credit Party to, contract, create, incur, assume or suffer to exist any
Indebtedness (including the Indebtedness to be incurred under this
Agreement), such that the aggregate amount of the Indebtedness of the Credit
Parties outstanding at any time (less the aggregate amount of (x) any cash or
Cash Equivalents of Supercanal Holding and/or its Subsidiaries as at such
time in excess of U.S.$500,000, and (y) any cash or Cash Equivalents held for
the benefit of Supercanal Holding and/or its Subsidiaries as at such time
(other than amounts held in the Interest Reserve Account) and pledged to the
Collateral Agent for the benefit of the Purchasers pursuant to documentation
satisfactory in all respects to the Collateral Agent) exceeds the lesser of:
(i) the Applicable Indebtedness Amount, or
(ii) the difference between:
(x) the sum of: (1) the outstanding principal amount of the
Advances and the principal amount of Indebtedness outstanding
under the Bridge Purchase Documents (which Indebtedness may be
refinanced with the Indebtedness of the Proposed High Yield Debt
Offering), (2) U.S.$10,000,000 (or its equivalent), and (3) until
the Initial Funding Date (at which time the Indebtedness
described in this subclause (3) shall be repaid in full), the
aggregate amount of the Purchase Money Financing and the
Subsidiary Indebtedness; and
(y) an amount equal to the amount of any mandatory prepayment
pursuant to Sections 4.3(a) through (d) hereof;
provided, however, that no Issuer shall guaranty or otherwise become liable
for any Indebtedness of TDH or any International Acquisition Subsidiary
(other than any Person acquired in the Tescorp Acquisition); provided,
further that none of Tescorp Delaware, Inversora Atelco Comodoro S.A. or
Inversora Antena Comunitaria Trelew S.A. shall incur any Indebtedness, other
than in each such case Indebtedness under this Agreement and the Notes and
the Bridge Note Purchase Agreement and the Bridge Notes.
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8.4 Capital Expenditures.
(a) None of the Issuers will, or will permit any other Credit Party
to, make any expenditure for fixed or capital assets (including, without
limitation, expenditures for maintenance and repairs which should be
capitalized in accordance with applicable generally acceptable accounting
principles and including capitalized lease obligations) (each a "Capital
Expenditure"), except that the Credit Parties may make Capital Expenditures
so long as the aggregate amount of such Capital Expenditures made by all such
Credit Parties does not exceed in any calendar year the amount set forth
opposite such calendar year below:
Year Amount
1997 U.S.$8,000,000
1998 1998 CapEx Amount
1999 1999 CapEx Amount
2000 U.S.$25,000,000
2001 U.S.$15,000,000
2002 U.S.$15,000,000
(b) For purposes hereof, (i) the term "1998 CapEx Amount" shall
mean the sum of (x) U.S.$27,000,000, and (y) the lesser of (A)
U.S.$26,000,000, (B) product of (1) U.S.$175, multiplied by (2) an amount
equal to the net increase in the number of Subscribers which buy or lease
addressable converter boxes from the Issuers during 1998, and (C) the amount
of Capital Expenditures made by the Issuers for addressable converter boxes
during 1998, and (ii) the term "1999 CapEx Amount" shall mean the sum of (x)
U.S.$25,000,000, and (y) the lesser of (A) U.S.$13,000,000, (B) the product
of (1) U.S.$175, multiplied by (2) an amount equal to the net increase in the
number of Subscribers which buy or lease addressable converter boxes from the
Issuers during 1999, and (C) the amount of Capital Expenditures made by the
Issuers for addressable converter boxes during 1999.
(c) Notwithstanding anything contained to the contrary in Section
8.4(a) or (b) above, to the extent that the aggregate amount of Capital
Expenditures made the Issuers in any calendar year above is less than the
amount set forth opposite such year, 50% of the amount of such difference may
be carried forward and used to make Capital Expenditures in the immediately
succeeding calendar year (after the full amount of Capital Expenditures
otherwise permitted to be made in such year, with regard to the provision of
this Section 8.4(c) have been made); provided, that amounts once carried
forward to such succeeding calendar year shall lapse and terminate at the end
of such calendar year.
(d) Nothing contained in this Section 8.4 shall prohibit or
restrict Capital Expenditures made by TDH or, if acquired by the Issuers,
Procono S.A.
8.5 Advances, Investments and Loans. None of the Issuers will, or
will permit any other Credit Party to, directly or indirectly, lend money or
credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
63
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, except that
the following shall be permitted:
(i) the Issuers may acquire the Acquisition Subsidiaries in
the Acquisitions, and the Credit Parties may acquire capital stock or
other proprietary interests in, or assets of, entities directly and
primarily engaged in the multi-channel television business in Argentina
or the telecommunications business in Argentina or other businesses
directly related to the telecommunications business in Argentina;
provided, however, that (x) prior to making any investment permitted by
this clause (i) in excess of U.S.$1,000,000, the Issuers shall notify the
Administrative Agent of such investment and provide the Administrative
Agent with such information relating thereto as it may reasonably
request, and (y) prior to making any investment permitted by this clause
(i) in excess of U.S.$5,000,000 in any single or related series of
transactions (other than in any Approved Acquisition), the Issuers shall
obtain the consent of the Administrative Agent, which consent shall not
be unreasonably withheld, conditioned or delayed;
(ii) the Issuers may consummate the Approved Acquisitions
and any Bridge Acquisitions permitted under the Bridge Purchase Documents;
(iii) the Issuers may consummate the Tescorp Acquisition,
subject to the requirements of Section 12.1 hereof;
(iv) the Issuers may purchase capital stock or other
proprietary interests in, or assets of, entities which are organized or
doing business outside of Argentina and which are directly and primarily
engaged in the multi-channel television business or the telecommunications
business or other businesses directly related to the telecommunications
business; provided, however, that (x) prior to making any investment in any
entity organized or doing business outside of Argentina, the Issuers shall
obtain the prior written consent of the Administrative Agent and the
Required Purchasers (it being understood that the Administrative Agent will
promptly request such consent of the Required Purchasers if requested to do
so by the Issuers), (y) the aggregate of all such investments hereafter made
by any Issuer or any Purchasing Agent shall not exceed (A) at all times
prior to the consummation of the Proposed IPO, U.S.$20,000,000 (or the
equivalent thereof), and (B) at all times from and after the consummation of
the Proposed IPO, U.S.$35,000,000 (or the equivalent thereof), and (z) any
such investment, to the extent permitted, shall be subject to the provisions
of Section 12 hereof;
(v) the Credit Parties may acquire and hold accounts
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary terms;
(vi) the Credit Parties may acquire and hold cash and Cash
Equivalents;
(vii) the Issuers may make intercompany loans, advances and
capital contributions to other Issuers in the ordinary course of
business; provided, however, that
64
none of the Issuers will, or will permit any other Credit Party to, make
any loans, advances or capital contributions to (x) any Excluded
Subsidiary (except that such investments shall be permitted to be made to
TDH in an aggregate amount not to exceed U.S.$2,500,000, to be used by
TDH to make Capital Expenditures), or (y) any International Acquisition
Subsidiary (other than any Person acquired in the Tescorp Acquisition).
Notwithstanding anything contained in this Agreement to the contrary, the
Issuers shall not make any of the investments otherwise permitted by this
Section 8.5 in excess of the Permitted Investment Amount (as defined below) in
any entity primarily engaged in any business other than the multi-channel
television business without the prior written consent of the Required
Purchasers. For purposes hereof, the term "Permitted Investment Amount" shall
mean (i) at all times prior to the consummation of the Proposed IPO,
U.S.$5,000,000, and (ii) from and after the consummation of the Proposed IPO,
the sum of (x) U.S.$5,000,000, and (y) the net proceeds to the Issuers from the
Proposed IPO in excess of all mandatory prepayments required to be made as a
result of the Proposed IPO pursuant to Section 4.3 of this Agreement and 4.3 of
the Bridge Note Purchase Agreement.
8.6 Consolidations, Mergers, Sales of Assets. None of the Issuers
will, or will permit any other Credit Party to, wind up, liquidate or dissolve
its affairs or enter into any transaction of consolidation or merger with or
into any other Person; sell, lease, assign, transfer or otherwise dispose of,
directly or indirectly (or agree to do any of the foregoing at any future time),
all or any part of its property or assets or any of the Collateral; or enter
into any partnership, joint venture or sale-leaseback transaction, or purchase
or otherwise acquire (in one or a series of related transactions) any part of
the property or assets (other than purchases or other acquisitions of inventory,
materials and equipment in the ordinary course of business) of any Person,
except that, subject to Section 4.3 hereof:
(i) The Credit Parties shall be entitled to sell, transfer,
lease or otherwise dispose of not more than 5% of the combined Total
Assets of the Credit Parties in any 12-month period; provided, however,
that if the proceeds of any such sale, transfer, lease or disposal are
retained by the Credit Parties in investments approved by the
Administrative Agent (such approval not to be unreasonably withheld,
conditioned or delayed), the Credit Parties shall be entitled to sell,
transfer, lease or otherwise dispose of not more than 15% of the combined
Total Assets of the Credit Parties in any 12-month period;
(ii) Capital Expenditures by each of the Credit Parties
shall be permitted to the extent not in violation of Section 8.4;
(iii) Each of the Credit Parties may, in the ordinary course
of business, sell, lease or otherwise dispose of any assets which, in its
reasonable judgment, are no longer useful in the conduct of its business,
provided that the aggregate sale proceeds of all assets subject to such
sales or other dispositions shall not exceed the equivalent of
U.S.$250,000 in any fiscal year;
65
(iv) Investments may be made to the extent permitted by
Section 8.5;
(v) Each of the Credit Parties may lease (as lessee) real
or personal property; and
(vi) Each of the Credit Parties may make sales of inventory
in the ordinary course of business;
(vii) The Credit Parties may enter into the transactions
contemplated by Section 7.19; and
(viii) The Credit Parties may enter into Restructuring
Transactions, to the extent permitted pursuant to Section 11 hereof.
Notwithstanding anything contained in this Agreement to the contrary, (i) none
of the Credit Parties will transfer, convey, assign, lien or otherwise encumber
any of its right, title or interest in or to any License held by it, and
(ii) SRL Holding will not transfer, convey, assign, lien or otherwise encumber
any of its right, title or interest in or to any of its properties or assets
(except pursuant to the Security Documents and the Bridge Purchase Documents).
8.7 Indebtedness-Subscriber Ratio. Supercanal Holding will not
permit its Indebtedness-Subscriber Ratio as at the end of any calendar quarter
ended on the dates set forth below to exceed the ratio set forth opposite such
date:
Calendar Quarter Ended Ratio
---------------------- -----
December 31, 1997 975
March 31, 1998 975
June 30, 1998 750
September 30, 1998 750
December 31, 1998 700
March 31, 1999 650
June 30, 1999 650
September 30, 1999 650
Thereafter 600
8.8 Senior Indebtedness-Subscriber Ratio. Supercanal Holding will not
permit its Senior Indebtedness-Subscriber Ratio as at the end of any calendar
quarter ended on the dates set forth below to exceed the ratio set forth
opposite such date:
Calendar Quarter Ended Ratio
---------------------- -----
December 31, 1997 525
March 31, 1998 525
June 30, 1998 350
September 30, 1998 350
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December 31, 1998 350
March 31, 1999 350
June 30, 1999 350
September 30, 1999 350
Thereafter 300
8.9 Indebtedness-Annualized EBITDA Ratio. Supercanal Holding will not
permit its Indebtedness-Annualized EBITDA Ratio as at the end of any calendar
quarter ended on the dates set forth below to exceed the ratio set forth
opposite such date:
Calendar Quarter Ended Ratio
---------------------- -----
December 31, 1997 7.50
March 31, 1998 7.50
June 30, 1998 5.50
September 30, 1998 5.50
December 31, 1998 5.00
March 31, 1999 5.00
June 30, 1999 5.00
September 30, 1999 4.75
December 31, 1999 4.50
March 31, 2000 4.25
June 30, 2000 4.00
September 30, 2000 3.75
Thereafter 3.50
8.10 Senior Indebtedness-Annualized EBITDA Ratio. Supercanal Holding
will not permit its Senior Indebtedness-Annualized EBITDA Ratio as at the end of
any calendar quarter ended on the dates set forth below to exceed the ratio set
forth opposite such date:
Calendar Quarter Ended Ratio
---------------------- -----
December 31, 1997 5.25
March 31, 1998 5.25
June 30, 1998 3.25
September 30, 1998 3.25
December 31, 1998 3.25
March 31, 1999 3.00
June 30, 1999 2.75
September 30, 1999 2.50
December 31, 1999 2.50
Thereafter 2.00
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8.11 Fixed Charge Coverage Ratio. Supercanal Holding will not permit
its Fixed Charge Coverage Ratio as at the end of any calendar quarter ended on
and after December 31, 1999 to be less than 1.25
8.12 Interest Coverage Ratio. Supercanal Holding will not permit its
Interest Coverage Ratio as at the end of any calendar quarter ended on the dates
set forth below to be less than the ratio set forth opposite such date:
Calendar Quarter Ended Ratio
---------------------- -----
December 31, 1997 1.00
March 31, 1998 1.25
June 30, 1998 1.50
September 30, 1998 2.00
December 31, 1998 2.00
March 31, 1999 2.25
June 30, 1999 2.25
September 30, 1999 2.50
December 31, 1999 2.50
March 31, 2000 2.75
June 30, 2000 2.75
September 30, 2000 3.00
December 31, 2000 3.00
March 31, 2001 3.25
June 30, 2001 3.25
Thereafter 3.50
8.13 Pro Forma Debt Service Coverage Ratio. Supercanal Holding will
not permit its Pro Forma Debt Service Coverage Ratio as at the end of any
calendar quarter ended on or after June 30, 1998 to be less than 1.50.
8.14 Issuance of Stock. None of the Issuers will, or will permit any
other Credit Party to, issue any Stock or any options or warrants to purchase,
or securities convertible into, Stock except as contemplated herein and/or in
the Bridge Purchase Documents; provided, however, that (i) Supercanal Holding
shall be permitted to issue Stock to Multicanal pursuant to the Shareholders'
Agreement as in effect on the date of the execution and delivery thereof, and
(ii) Supercanal Holding shall be permitted to issue Stock as described on
Schedule IX hereto.
8.15 Limitations on Voluntary Payments and Bonuses and Modifications
of Indebtedness; Modifications and Certain Agreements; etc. None of the Issuers
will, or will permit any other Credit Party to, (i) make (or give any notice in
respect of) any voluntary or optional payment or prepayment on or redemption or
acquisition for value of (including, without limitation, by way of depositing
with the trustee with respect thereto money or securities before due for the
purpose of paying when due) any unsecured Indebtedness which is subordinated in
right of payment to the Notes and/or the other Obligations, (ii) pay any bonuses
or other amounts
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to any management level personnel for the purpose of covering their personal
tax liability or interest expense, (iii) amend or modify, or permit the
amendment or modification of, (v) any provision of any Indebtedness, (w) the
agreements referred to in Section 6.16(c), (x) any agreement (including,
without limitation, any purchase agreement, indenture, loan agreement or
security agreement) relating to any of the foregoing if, in the case of the
preceding clauses (v), (w) or (x), such amendment or modification could
reasonably result in a Material Adverse Effect on any of the Credit Parties,
or (y) the Shareholders' Agreement if such amendment or modification could
reasonably result in a Material Adverse Effect on any of the Credit Parties
(it being understood that the substitution of Multicanal with any strategic
investor of comparable reputation and ability in the cable television
business, as reasonably determined by the Required Purchasers, will not
constitute a Material Adverse Effect), or (iv) amend, modify or change its
estatutos sociales or other organizational documents, except as contemplated
in Section 7.15 hereof or as contemplated under the Bridge Purchase Documents.
8.16 No Other Business. None of the Issuers will, or will permit any
other Credit Party to, carry on any business other than the business conducted
by it as of the Effective Date, or with respect to any Acquisition Subsidiary or
any other Person acquired after the date hereof, as of the date of the
consummation of the relevant Acquisition or other acquisition, and will not take
any action whether by acquisition or otherwise which would constitute or result
in any material alteration to the nature of that business; provided, however,
that (i) TDH will be permitted to engage in the business conducted by it as of
the Effective Date, and (ii) the Credit Parties will be permitted to engage in
the telecommunications business and other businesses directly related to the
telecommunications business to the extent already conducted by such Credit
Parties as of the Effective Date and to the extent the Credit Parities conduct
such business as a result of any permitted investments in such businesses
pursuant to Section 8.5.
8.17 Transactions with Affiliates. None of the Issuers will, or will
permit any other Credit Party to, enter into any transaction or series of
related transactions with any of its shareholders or Affiliates other than in
the ordinary course of business and on terms and conditions substantially as
favorable to the Credit Party as would reasonably be obtained by the Credit
Party at that time in a comparable arm's-length transaction with a Person other
than a shareholder or Affiliate.
8.18 Limitation on Restrictions on Subsidiary Dividends and Other
Distributions. Supercanal Holding will not, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any of its Subsidiaries to (i) pay dividends or
make any other distributions on its capital stock or any other interest or
participation in its profits owned by Supercanal Holding or any of its
Subsidiaries, or pay any Indebtedness owed to Supercanal Holding or any of its
Subsidiaries, (ii) make loans or advances to Supercanal Holding or
(iii) transfer any of its properties or assets to Supercanal Holding, except
for such encumbrances or restrictions existing under or by reasons of
(x) applicable Law, (y) this Agreement and (z) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of Supercanal Holding or any of its Subsidiaries.
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Notwithstanding anything contained in this Agreement or the other
Purchase Documents to the contrary, if at any time after the Initial Funding
Date any of the Issuers, any Purchasing Agents or the Offeror receives or is
entitled to receive any Net Proceeds from the Proposed IPO, and the Issuers have
made the mandatory prepayment required to made pursuant to Section 4.3(b), the
Issuers shall be entitled to use the Net Proceeds remaining after such payment
without regard to any limitation or restriction contained in this Section 8.
Section 9. Events of Default.
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
9.1 Payments. Any Issuer shall (i) default in the payment when due
of any principal of any Note or any Advance thereunder or (ii) default, and such
default shall continue unremedied for five or more Business Days, in the payment
when due of any interest on any Note or any Advance thereunder or any Fees or
any other amounts owing hereunder or under any other Purchase Document; or
9.2 Representations, etc. Any representation, warranty or statement
made by or on behalf of any Issuer herein or in any other Purchase Document or
in any certificate delivered pursuant hereto or thereto shall prove to be untrue
in any material respect on the date as of which made or deemed made; or
9.3 Covenants. Any of the Issuers shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 7.1(vii), 7.11 or 8 or (ii) default in the due performance or
observance by it of any term, covenant or agreement (other than those referred
to in Sections 9.1 and 9.2 and clause (i) of this Section 9.3) contained in this
Agreement or any other Purchase Document and any such default shall have
continued unremedied for a period of 30 days; or
9.4 Default Under Other Agreements. Any of the Credit Parties shall
(i) default in any payment of any Indebtedness other than the Obligations
(including, without limitation Indebtedness under the Bridge Purchase Documents)
in a principal amount in excess of U.S.$2,000,000 (or its equivalent in any
other currency), either individually or in the aggregate, when as the same shall
become due and payable beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created, or
(ii) default in the observance or performance of any agreement, covenant or
condition relating to any Indebtedness other than the Obligations (including,
without limitation Indebtedness under the Bridge Purchase Documents) in a
principal amount in excess of U.S.$2,000,000 (or its equivalent in any other
currency), either individually or in the aggregate, or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition, in each case, is to cause, or to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any notice
is required), any such Indebtedness to become due prior to its stated
maturity; or any such Indebtedness of any of the
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Credit Parties shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to the
stated maturity thereof; or
9.5 Bankruptcy, etc. Any of the Credit Parties shall commence a
voluntary case concerning itself under Title 11 of the United States Code, as
now or hereafter in effect, or any successor thereto (the "Bankruptcy Code") or
under any bankruptcy law of Argentina or any other jurisdiction; or an
involuntary case under any such statute is commenced against any of the Credit
Parties, and the petition is not controverted within 10 days, or is not
dismissed within 30 days, after commencement of the case; or a custodian or
trustee is appointed for, or takes charge of, any Collateral or all or
substantially all of the other property or assets of any of the Credit Parties
and such custodian or trustee is not discharged or removed within 30 days, or
any of the Credit Parties commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to any of the Credit Parties, or there is commenced
against any of the Credit Parties any such proceeding which remains undismissed
for a period of 30 days, or any of the Credit Parties is adjudicated insolvent
or bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any of the Credit Parties suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 30 days; or any of the Credit
Parties makes a general assignment for the benefit of creditors; or any trust or
corporate action is taken by any of the Credit Parties for the purpose of
effecting any of the foregoing; or
9.6 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents shall cease to be in full force and
effect, or, except as otherwise permitted hereby, shall cease to give the
Collateral Agent or the Guaranty Trustee for the benefit of the Purchasers the
Liens, rights, powers and privileges purported to be created thereby (including,
from and after the perfection thereof, a perfected Lien of first priority on all
of the Collateral in favor of the Collateral Agent or the Guaranty Trustee for
the benefit of the Purchasers), subject to no other Liens (except as permitted
by Section 8.1 or as provided in the Bridge Purchase Documents), or any of the
Issuers or the Purchasing Agents shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any of the Security Documents and any such default results
in, or could, in the reasonable judgment of the Administrative Agent, be
expected to result in, a Material Adverse Effect on any Credit Party; or
9.7 Judgments. One or more judgments or decrees shall be entered
against any of the Issuers involving, in the aggregate, a liability (not paid or
fully covered by insurance) of the equivalent of U.S.$2,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged or stayed or
bonded pending appeal within 30 days after the entry thereof; or
9.8 Cancellation of Payment Obligation. Any Governmental Authority
or any other dominant authority asserting or exercising de jure or de facto
governmental or police powers in Argentina shall, by moratorium laws or
otherwise, cancel, suspend or defer the obligation of the Issuers to pay any
amount required to be paid hereunder or under the Notes, or
71
the obligations of any of the Issuers or the Purchasing Agents under any
other Purchase Document; or
9.9 Abandonment of Business. Any of the Issuers shall abandon the
business in which it is engaged; or
9.10 Governmental Action. Any Governmental Authority or any other
dominant authority asserting or exercising de jure or de facto governmental or
police powers in any jurisdiction shall have condemned, nationalized, seized, or
otherwise expropriated all or any substantial part of the property or other
assets of any of the Issuers or the Stock of any of the Issuers; or shall have
assumed custody or control of such property or other assets of the business or
operations of any of the Issuers; or shall have taken any action for the
dissolution or disestablishment of any of the Issuers or any action that would
prevent any of the Issuers from carrying on its business or a substantial part
thereof; or
9.11 Licenses. COMFER or any other Governmental Authority in
Argentina shall assert that any License held by any of the Issuers will be
terminated and such assertion has been consented to or is not being contested in
good faith on grounds that the Administrative Agent reasonably believes has a
probability of success; or COMFER or any other Governmental Authority in
Argentina shall assert that any such License is terminated and such assertion
has been consented to or is not being contested in good faith on grounds that
the Administrative Agent reasonably believes has a probability of success; or
any such License shall terminate for any reason whatsoever; or any of the
Issuers shall cease to have the right to possess and use its respective License;
or COMFER or any other Governmental Authority in Argentina or any of the Issuers
shall assert that the exercise of any remedies under the Security Documents
would constitute a violation of any License or applicable Law and such assertion
has been consented to or is not being contested in good faith on grounds that
the Administrative Agent reasonably believes has a probability of success; and
any of the foregoing results in or could, in the reasonable judgment of the
Administrative Agent, be expected to result in a Material Adverse Effect on any
Credit Party; or
9.12 COMFER Approvals. All COMFER Approvals required by applicable
Law in connection with (i) the acquisition by any Issuer or any Purchasing Agent
of any other Issuer, or (ii) any Acquisition or Restructuring Transaction shall
not have been received within 120 days after the consummation of such
acquisition or Restructuring Transaction, as the case may be; provided, however,
that such 120-day period shall be extended for additional 90-day periods if
(x) no Issuer or Purchasing Agent, as the case may be, shall have received
notice, or the Administrative Agent shall not have any reason to believe,
that the applicable COMFER Approval will not be granted in the ordinary
course, and (y) the Administrative Agent shall not have determined that the
Issuers or the Purchasing Agents, as the case may be, are not diligently
prosecuting the application for such COMFER Approval; provided further, that
if such COMFER Approval is denied, no Event of Default shall occur if within
10 days after the date of such denial the Issuers prepay the Advances in an
amount equal to the sum of the Acquisition Price and related Permitted
Transaction Expenses in connection with the Acquisition of the Acquisition
Subsidiary for which the COMFER Approval was denied; or
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9.13 Adverse Change. Any event or condition shall occur which gives
reasonable grounds to conclude, in the judgment of the Required Purchasers, that
any of the Issuers will not, or will be unable to, perform or observe in the
normal course of business its obligations under the Purchase Documents; or
9.14 Change in Control. The Vilas (directly or indirectly through
Grupo Uno S.A. or otherwise) shall cease to own (unless otherwise consented
to by the Required Purchasers), in the aggregate, at least 51% of the voting
Stock of Supercanal Holding or, if the Offeror has been organized and all of
the Stock of Supercanal Holding transferred to the Offeror pursuant to
Section 11 hereof or otherwise, the Offeror;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, then the Administrative Agent may (with the
approval of the Required Purchasers) and, upon the written request of the
Required Purchasers, shall by written notice to the Issuers, take any and all
of the following actions, without prejudice to the rights of the
Administrative Agent, any Purchaser or the holder of any Note to enforce its
claims against any of the Issuers (provided, that, if an Event of Default
specified in Section 9.5 shall occur with respect to any of the Issuers the
result which would occur upon the giving of written notice by the
Administrative Agent as specified in clause (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) to declare the
Total Commitment terminated whereupon the Commitment of each Purchaser shall
forthwith terminate immediately; (ii) to declare the principal of and any
accrued interest in respect of all the Notes and the Advances and all
obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Issuers;
(iii) to instruct the Collateral Agent and the Guaranty Trustee to vote the
Stock of the Issuers or take any other action pursuant to any Security
Documents; and (iv) to exercise any other rights available under the Purchase
Documents or any other document or instrument entered into in connection
therewith.
Section 10. The Administrative Agent and the Collateral Agent.
10.1 Appointment of the Administrative Agent. (a) The Purchasers
hereby appoint and designate ING Baring (U.S.) Capital Corporation as
Administrative Agent to act as specified herein and in the other Purchase
Documents. Each Purchaser hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement, the other Purchase Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental hereto and thereto.
(b) The Administrative Agent may perform any of its duties
hereunder and under the other Purchase Documents by or through officers,
directors, employees, agents and attorneys in fact. The Administrative Agent
hereby appoints ING Bank N.V., Argentina Branch,
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as its agent in Argentina, for the benefit of the Purchasers, to take such
actions and do such things, on behalf of the Administrative Agent, as shall be
convenient or desirable to assist the Administrative Agent in the performance of
its duties hereunder in Argentina and in connection with the review and approval
of the Acquisitions and other matters in connection therewith and otherwise as
requested by the Administrative Agent from time to time, and by the taking of
such actions and the doing of such things, ING Bank N.V., Argentina Branch,
shall be deemed to accept such appointment. All references in the Purchase
Documents to the Administrative Agent shall be deemed to be references to the
Administrative Agent and/or ING Bank N.V., Argentina Branch, as agent for the
Administrative Agent, to the extent of the performance by ING Bank N.V.,
Argentina Branch, of duties of the Administrative Agent.
10.2 Appointment of the Collateral Agent. (a) The Purchasers hereby
appoint and designate ING Baring (U.S.) Capital Corporation as Collateral Agent
to act as specified herein and in the other Purchase Documents. Each Purchaser
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, the Collateral Agent to take
such action on its behalf under the provisions of this Agreement and the other
Purchase Documents and any other instruments and agreements referred to herein
or therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Collateral Agent
by the terms hereof and thereof and such other powers as are reasonably
incidental hereto and thereto.
(b) The Collateral Agent may perform any of its duties hereunder or
under any other Purchase Document by or through officers, directors, employees,
agents or attorneys in fact. The Collateral Agent hereby appoints ING Bank
N.V., Argentina Branch, as its agent in Argentina, for the benefit of the
Purchasers, to take such actions as shall be specified in the Security
Documents, and by its execution and delivery of each such Security Document, ING
Bank N.V., Argentina Branch, shall be deemed to accept such appointment. All
references in the Purchase Documents to the Collateral Agent shall be deemed to
be references to the Collateral Agent and/or ING Bank N.V., Argentina Branch, as
agent for the Collateral Agent, to the extent of the performance by ING Bank
N.V., Argentina Branch, of duties of the Administrative Agent.
10.3 Administration of the Collateral. The Collateral Agent shall
administer the Collateral and any Lien thereon for the benefit of the Purchasers
in the manner provided herein and in the other Purchase Documents. The
Collateral Agent shall exercise such rights and remedies with respect to the
Collateral as are granted to it hereunder and under the other Purchase Documents
and applicable Law and as shall be directed by the Required Purchasers.
10.4 Application of Proceeds. Except as otherwise specifically
provided in any Security Document, the proceeds of any collection, sale,
disposition or other realization of all or any part of the Collateral shall be
applied by the Collateral Agent as follows:
(a) to the payment of any and all expenses and fees (including
reasonable attorneys' fees) incurred by the Collateral Agent in obtaining,
taking possession of, removing, insuring, repairing, storing and disposing of
the Collateral and any and all amounts incurred by the Collateral Agent in
connection therewith;
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(b) next, any surplus then remaining to the payment of the
Obligations in the following order of priority:
(i) accrued and unpaid interest;
(ii) outstanding principal due under the Advances;
(iii) unpaid Fees, if any; and
(iv) all other unpaid Obligations, if any;
(c) any surplus remaining after payment of the foregoing amounts
shall be paid to the Issuers, subject, however, to the rights of the holder of
any then existing Lien of which the Collateral Agent has actual notice (without
investigation), including without limitation, the Bridge Collateral Agent;
it being understood that the Issuers shall remain liable to the extent of any
deficiency between the amount of the proceeds of the Collateral and the
aggregate amount of the sums referred to in clauses (a) and (b) of this Section
10.4.
10.5 Nature of Duties. Neither the Administrative Agent nor the
Collateral Agent shall have any duties or responsibilities except those
expressly set forth in this Agreement and in the other Purchase Documents.
Neither the Administrative Agent nor the Collateral Agent nor any of their
respective officers, directors, agents or employees shall be liable for any
action taken or omitted by it or them hereunder or under any other Purchase
Document or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct. Neither the Administrative Agent nor
the Collateral Agent shall have by reason of this Agreement or any other
Purchase Document a fiduciary relationship in respect of any Purchaser or the
holder of any Note; and nothing in this Agreement or any other Purchase
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent or the Collateral Agent any obligations in
respect of this Agreement or any other Purchase Document except as expressly set
forth herein.
10.6 No Reliance on the Administrative Agent and the Collateral Agent.
Independently and without reliance upon the Administrative Agent or the
Collateral Agent, each Purchaser and the holder of each Note, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of the Issuers in
connection with the purchase of the Notes and the making of the Advances
thereunder and the taking or not taking of any action in connection herewith and
(ii) its own appraisal of the creditworthiness of the Issuers and, except as
expressly provided in this Agreement, neither the Administrative Agent nor the
Collateral Agent shall have any duty or responsibility, either initially or on a
continuing basis, to provide any Purchaser or the holder of any Note with any
credit or other information with respect thereto, whether coming into its
possession before the issue and sale of the Note or at any time or times
thereafter. Neither the Administrative Agent nor the Collateral Agent shall be
responsible to any Purchaser or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in
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any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Document or the financial condition of the Issuers or be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Purchase Document, or
the financial condition of the Issuers or the existence or possible existence of
any Default or Event of Default.
10.7 Request For Instructions By, and Direction of, the Administrative
Agent and the Collateral Agent.
(a) If either the Administrative Agent or the Collateral Agent shall
request instructions from the Required Purchasers with respect to any act or
action (including failure to act) in connection with this Agreement or any other
Purchase Document, then the Administrative Agent or Collateral Agent requesting
such instructions shall be entitled to refrain from such act or taking such
action unless and until it shall have received instructions from the Required
Purchasers. Notwithstanding anything contained in this Agreement or the other
Purchase Documents to the contrary, no Person, including, without limitation,
any Purchaser or the holder of any Note shall have any right of action
whatsoever against the Administrative Agent or the Collateral Agent (and neither
the Administrative Agent or the Collateral Agent shall incur any liability
whatsoever) as a result of refraining from any act or taking any action as
contemplated in this Section 10.7(a).
(b) The Required Purchasers shall have the right to instruct the
Administrative Agent and the Collateral Agent to exercise their respective
rights and remedies granted or provided to them hereunder and under the other
Purchase Documents; provided, however that in no case shall the Administrative
Agent or the Collateral Agent be required to take any actions hereunder or under
any other Purchase Document (i) which are contrary to this Agreement, the other
Purchase Documents or applicable Law or (ii) which may, in the opinion of the
Administrative Agent or the Collateral Agent, as the case may be, result in any
liability to the Administrative Agent or the Collateral Agent, unless in the
case of this clause (ii), the Required Purchasers requesting any such action
agree to indemnify the Administrative Agent or the Collateral Agent, as the case
may be, pursuant to an instrument reasonably satisfactory to it, or post a bond
reasonably satisfactory to it. Notwithstanding anything contained in this
Agreement or the other Purchase Documents to the contrary, no Purchaser or the
holder of any Note shall have any right of action whatsoever against the
Administrative Agent or the Collateral Agent as a result of (and neither the
Administrative Agent or the Collateral Agent shall incur any liability
whatsoever as a result of) acting or refraining from acting hereunder or under
any other Purchase Document in accordance with the instructions of the Required
Purchasers.
10.8 Reliance by the Administrative Agent and the Collateral Agent.
Each of the Administrative Agent and the Collateral Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent or Collateral
Agent,
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as the case may be, believed to be the proper Person, and, with respect to all
legal matters pertaining to this Agreement and any other Purchase Document and
its duties hereunder and thereunder, upon advice of counsel selected by it.
10.9 Indemnification. To the extent the Administrative Agent or the
Collateral Agent is not reimbursed and indemnified by the Issuers, the
Purchasers will reimburse and indemnify the Administrative Agent or the
Collateral Agent, as the case may be, in proportion to their outstanding Notes,
for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by the Administrative Agent or the Collateral Agent, as the case may
be, in performing its duties hereunder or under any other Purchase Document, or
in any way relating to or arising out of this Agreement or any other Purchase
Document, provided that no Purchaser shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent or the Collateral Agent.
10.10 Capacity as Purchasers. With respect to its obligation to
make Advances under this Agreement, each of the Administrative Agent and the
Collateral Agent shall have the rights and powers specified herein for a
"Purchaser" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Purchasers," "Required
Purchasers," "holders of Notes" or any similar terms shall, unless the context
clearly otherwise indicates, include each of the Administrative Agent and the
Collateral Agent in its individual capacity. Each of the Administrative Agent
and the Collateral Agent may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with the Issuer or any
Affiliate of the Issuer as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Issuers for
services in connection with this Agreement and otherwise without having to
account for the same to the Purchasers.
10.11 Holders. Each of the Administrative Agent and the
Collateral Agent may deem and treat the payee of any Note as the owner thereof
for all purposes hereof unless and until a written notice of the assignment,
transfer or endorsement thereof, as the case may be, shall have been filed with
the Administrative Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or indorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
10.12 Assignment; Resignation.
(a) The Administrative Agent and the Collateral Agent shall be
entitled to assign its obligations and duties hereunder and/or under the other
Purchase Documents to any of its Affiliates. From and after any such assignment,
the terms Administrative Agent and Collateral Agent as used herein and in all
other Purchase Documents shall be deemed to refer to such
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Affiliate for all purposes. The Administrative Agent and the Collateral Agent
will promptly provide the Issuers notice of any such assignment.
(b) The Administrative Agent and the Collateral Agent may resign from
the performance of its duties as Administrative Agent or Collateral Agent
hereunder and/or under the other Purchase Documents at any time by giving 15
Business Days' prior written notice to the Issuers and the Purchasers. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent or Collateral Agent, as the case may be, pursuant to clauses (c) and (d)
below or as otherwise provided below.
(c) Upon any such notice of resignation, the Purchasers shall appoint
a successor Administrative Agent or Collateral Agent hereunder or thereunder who
shall be an internationally-recognized commercial bank or trust company
reasonably acceptable to the Issuers.
(d) If a successor Administrative Agent or Collateral Agent shall not
have been so appointed within such 15 Business Day period, the Administrative
Agent or Collateral Agent, with the consent of the Issuers, may then appoint a
successor Administrative Agent or Collateral Agent who shall serve as such
hereunder or thereunder until such time, if any, as the Purchasers appoint a
successor as provided above.
(e) If no successor has been appointed pursuant to clause (b) or (c)
above by the 20th Business Day after the date such notice of resignation was
given by the Administrative Agent or the Collateral Agent the resignation shall
become effective and the Purchasers shall thereafter perform all the duties of
the Administrative Agent and the Collateral Agent hereunder and/or under any
other Purchase Document until such time, if any, as the Purchasers appoint a
successor as provided above.
Section 11. Restructuring of the Issuers.
11.1 Restructuring Transactions. The Issuers have informed the
Purchasers that they may enter into the following transactions (each, a
"Restructuring Transaction", and collectively, the "Restructuring
Transactions"): (i) Supercanal Holding will lend funds to SRL Holding for SRL
Holding to acquire Stock of the SRL Issuers, (ii) SRL Holding will exercise
options to acquire Stock of the SRL Issuers previously obtained by certain
Purchasing Agents on behalf of SRL Holding with respect to such SRL Issuers,
(iii) such Purchasing Agents will cause the SRL Issuers to change their domicile
to the City of Buenos Aires, (iv) SRL Holding shall thereafter be registered in
the share register of the SRL Issuers as the registered owner of the Stock of
the SRL Issuers following which, (v) the Subsidiaries of SRL Holding will be
merged into SRL Holding; and SRL Holding and/or all or some of the other Issuers
will be merged into either Supercanal Holding or Supercanal in a tax-free
reorganization and (vi) the Issuers will cause Supercanal Holding to conduct a
public or private offering in the international and/or Argentine capital markets
and offer to sell a portion of Supercanal Holding's newly issued preferred stock
or its debt securities. Nothing contained in this Section 11.1 shall be
construed to require the Issuers to undertake any of the Restructuring
Transactions.
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11.2 Conditions. The Purchasers acknowledge and agree that,
notwithstanding anything contained in this Agreement or in any other Purchase
Document to the contrary, the Issuers shall be permitted to enter into the
Restructuring Transactions; provided that prior to entering into any such
Restructuring Transaction, the following conditions shall have been satisfied,
in each case in a manner, and to the extent requested by, the Administrative
Agent in its reasonable discretion:
(a) No Default or Event of Default. Immediately prior to (and after
giving effect to) any Restructuring Transaction, no Default or Event of Default
shall have occurred and be continuing.
(b) Documentation and Information. The Issuers shall have (i)
provided to the Administrative Agent promptly upon request therefor (x) true and
correct copies of all agreements, documents, instruments, books and records
relating to or in connection with the Restructuring Transaction as the
Administrative Agent shall have requested, and (y) such financial and operating
data and such other information with respect to the Issuers as the
Administrative Agent shall have deemed relevant in connection with the
evaluation of the Restructuring Transaction, and (ii) granted the Administrative
Agent and its representatives access to, and provided an opportunity to ask
questions of, and receive answers from, such directors, officers, employees, and
professional advisors of the Issuers as the Administrative Agent shall have
deemed relevant in connection with the evaluation of the Restructuring
Transaction.
(c) Execution of Documentation; Opinions. The Issuers shall have (i)
made, executed, endorsed, acknowledged, filed with and/or delivered to the
Administrative Agent such agreements, documents, instruments and certificates,
and shall have taken such other action as the Administrative Agent shall have
deemed reasonably necessary or desirable in order to (x) preserve and maintain
in full force and effect the legality and validity of the each of the Purchase
Documents and the enforceability against the Issuers of each such Purchase
Document to which it is a party, (y) create in favor of the Collateral Agent for
the benefit of Purchasers, such Liens on such additional collateral as the
Administrative Agent shall require, and (z) modify the Purchase Documents to
change or supplement the existing covenants and include such additional
financial and other covenants as the Administrative Agent shall reasonably
require, and (ii) caused to be delivered to the Administrative Agent such
opinions of legal counsel reasonably acceptable to the Administrative Agent and
in form and substance satisfactory to the Administrative Agent as it shall have
requested in connection with any of the foregoing. The Purchasers will request
only such additional Liens, collateral and covenants pursuant to clauses (x) and
(y) above to the extent necessary or desirable, in the reasonable opinion of the
Required Purchasers, to provide at least the same degree of protection and
security to the Purchasers as provided by the provisions of this Agreement and
the other Purchase Documents prior to any such Restructuring Transaction.
(d) Governmental Approvals. The Issuers shall have delivered
evidence satisfactory to the Administrative Agent in all respects that all
Governmental Approvals required
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in connection with the Restructuring Transaction other than the applicable
COMFER Approval (subject, however, to Section 9.12) have been received by the
Issuers.
(e) Adverse Change. There shall not have occurred or exist any event
or condition (including, without limitation, any material adverse change in the
economic or financial condition or prospects of any of the Issuers) which gives
reasonable grounds to conclude, in the judgment of the Administrative Agent and
the Required Purchasers, that as a result of the consummation of the
Restructuring Transaction any of the Issuers will not, or will be unable to,
perform or observe in the normal course of business its respective obligations
under the Purchase Documents;
11.3 Certain Modifications to Purchase Documents. The Purchasers and
the Issuers acknowledge and agree that in connection with each Restructuring
Transaction, it will be necessary to amend, modify or supplement this Agreement
and/or one or more of the Purchase Documents, to conform the representations and
covenants contained herein and therein to the requirements of the Restructuring
Transactions in a manner not detrimental to the Purchasers, as determined by the
Administrative Agent and the Required Purchasers. The Purchasers and the
Issuers agree to cooperate in making any such amendments, modifications and
supplements, including, if necessary, the release of Collateral; provided that
the Purchasers shall simultaneously therewith receive substitute collateral
acceptable to the Administrative Agent and the Required Purchasers, free and
clear of all Liens. All agreements, documents or instruments relating to any
such amendments, modifications or supplements shall be in form and substance
satisfactory to the Administrative Agent and the Required Purchasers in all
respects.
11.4 Further Assurances. Each of the Issuers will, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Administrative Agent and/or the Collateral Agent from time to time such
agreements, documents, instruments, and certificates, vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other assurances or
instruments and take such further action as the Administrative Agent shall have
reasonably deemed necessary or desirable in connection with the Restructuring
Transactions in order to preserve and maintain in full force and effect the
legality and validity of the each of the Purchase Documents and the
enforceability against each of the Issuers of each such Purchase Document to
which it is a party.
Section 12. Certain Acquisitions and Related Matters.
12.1 International Acquisitions. The Issuers have informed the
Purchasers that they intend to acquire the Stock of certain entities or the
assets of certain entities organized outside of Argentina or principally engaged
in the multi-channel television business in one or more countries outside of
Argentina, and that they would like to use proceeds of one or more Advances to
finance such acquisitions (each an "International Acquisition"). The Purchasers
acknowledge and agree that, notwithstanding anything contained in this Agreement
or in any other Purchase Document to the contrary, the Issuers shall be
permitted to request Advances hereunder at any time prior to the Availability
Expiry Date to (i) pay the unpaid amount of the
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Acquisition Price or Permitted Transaction Expenses directly related to any such
International Acquisition, to the extent due and payable, or (ii) to reimburse
the Issuers for any portion of such Acquisition Price or Permitted Transaction
Expenses to the extent such amounts were paid with funds of the Issuers other
than proceeds of Advances and were not theretofore reimbursed as follows:
(a) General. As to any International Acquisition other than the
Tescorp Acquisition, the Issuers shall be permitted to request Advances in
respect thereof to the extent that (i) such acquisition is permitted under
Section 8.5, and (ii) the aggregate amount of Advances so made shall not exceed
U.S.$10,000,000, and provided, further that the Issuers shall have satisfied
such conditions to such Funding and to such International Acquisition as the
Administrative Agent shall specify, including, without limitation, the
conditions specified in Section 5 hereof, as applicable, and such additional
conditions precedent as the Administrative Agent shall deem necessary or
desirable at such time. Without limiting the generality of the foregoing, the
Issuers shall have (i) provided to the Administrative Agent true and correct
copies of all agreements, documents, instruments, books and records relating to
or in connection with any International Acquisition as the Administrative Agent
shall have requested, and such financial and operating data and such other
information in connection with the evaluation of the International Acquisition
as the Administrative Agent shall have requested, (ii) made, executed, endorsed,
acknowledged, filed with and/or delivered to the Administrative Agent such
agreements, documents, instruments and certificates, and shall have taken such
other action as the Administrative Agent shall have reasonably deemed necessary
or desirable in order to (x) grant to the Purchasers a security interest in the
Stock or other assets of the entity acquired in such International Acquisition,
and (y) amend, modify or supplement this Agreement and/or one or more of the
Purchase Documents, to conform the representations and covenants contained
herein and therein to the International Acquisition and the circumstances
related thereto, and (iii) caused to be delivered to the Administrative Agent
such opinions of legal counsel acceptable to the Administrative Agent and in
form and substance satisfactory to the Administrative Agent as it shall have
reasonably requested. All agreements, documents or instruments relating to any
such amendments, modifications or supplements shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Required Purchasers
in all respects.
(b) The Tescorp Acquisition. As to the Tescorp Acquisition, Tescorp
Delaware shall be permitted to request Advances hereunder at any time prior to
the Availability Expiry Date to (i)(x) pay the unpaid amount of the acquisition
price for Purchased Common Stock (as defined in the Tescorp Purchase Agreement),
to the extent due and payable at the time of the Purchase Closing (as defined in
the Tescorp Purchase Agreement), (y) pay all amounts required to be paid by
Tescorp Delaware upon the completion of the Tender Offers (as defined in the
Tescorp Purchase Agreement), to the extent then due and payable, and (z) pay the
transaction expenses directly related to the Tescorp Acquisition; provided,
however, that the aggregate principal amount of Advances and Bridge Advances for
the Tescorp Acquisition shall not exceed U.S.$135,000,000; and provided, further
that the Issuers shall have satisfied such conditions to such Fundings as the
Required Purchasers shall specify on or before the later to occur of (1)
December 5, 1997, and (2) the commencement of the Tender Offers (as defined in
the Tescorp Purchaser Agreement), including, the conditions specified in Section
5 hereof, as applicable, and
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such additional conditions precedent as the Required Purchasers shall deem
necessary or desirable, including, without limitation, the following:
(i) the Tescorp Acquisition Agreement and all documents and
instruments required to be executed and delivered in connection therewith shall
be in form and substance satisfactory to the Required Purchasers;
(ii) Tescorp Delaware shall have executed and delivered a joinder
agreement substantially in the form of the Joinder Agreement with such
modifications thereto as the Administrative Agent shall require, pursuant to
which Tescorp Delaware shall have become a party hereto and to the other
Purchase Documents;
(iii) there shall have been delivered to the Administrative Agent
the special audit report of Coopers & Xxxxxxx (or other auditors of
international standing acceptable to the Administrative Agent), prepared in
accordance with agreed upon procedures and dated not earlier than the date ten
days prior to the date of the Funding, of the Subscribers, Indebtedness and
contingent liabilities of Tescorp Texas and its subsidiaries, and the results of
such audit shall be to the satisfaction of the Required Purchasers;
(iv) the shareholders of Tescorp Delaware shall have executed and
delivered a pledge agreement, in form and substance satisfactory to the
Administrative Agent, pursuant to which such shareholders shall have granted to
(A) the Collateral Agent, for the benefit of the Purchasers, a perfected Lien of
first priority in all of the Stock of Tescorp Delaware, and (B) the Bridge
Collateral Agent, for the benefit of the Bridge Purchasers, a perfected Lien of
second priority in all such Stock, in each such case free and clear of all
Liens;
(v) Tescorp Delaware shall have executed and delivered a pledge
agreement, in form and substance satisfactory to the Administrative Agent,
pursuant to which Tescorp Delaware shall have granted to (A) the Collateral
Agent, for the benefit of the Purchasers, a perfected Lien of first priority in
all of the Stock of Tescorp Texas theretofore and thereafter acquired by Tescorp
Delaware, and (B) the Bridge Collateral Agent, for the benefit of the Bridge
Purchasers, a perfected Lien of second priority in all such Stock, in each such
case free and clear of all Liens;
(vi) the Issuers, immediately following the consummation of the merger
between Tescorp Delaware and Tescorp Texas, shall have caused Tescorp Texas to
have executed and delivered pledge agreements, in form and substance
satisfactory to the Administrative Agent, pursuant to which Tescorp Texas shall
have granted to (A) the Collateral Agent, for the benefit of the Purchasers, a
perfected Lien of first priority in all of the Stock of the Argentine operating
companies owned by Tescorp Texas, and (B) the Bridge Collateral Agent, for the
benefit of the Bridge Purchasers, a perfected Lien of second priority in all
such Stock, in each such case free and clear of all Liens; and
(vii) the Issuers, immediately following the consummation of the
merger between Tescorp Delaware and Tescorp Texas, shall have caused Tescorp
Texas to execute and deliver an instrument pursuant to which Tescorp Texas
acknowledges its obligations hereunder.
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Without limiting the generality of the foregoing, the Issuers shall have (i)
provided to the Administrative Agent true and correct copies of all
agreements, documents, instruments, books and records relating to or in
connection with the Tescorp Acquisition as the Required Purchasers shall have
requested, and such financial and operating data and such other information
in connection with the evaluation of the Tescorp Acquisition as the Required
Purchasers shall have requested, (ii) made, executed, endorsed, acknowledged,
filed with and/or delivered to the Administrative Agent such agreements,
documents, instruments and certificates, and shall have taken such other
action as the Required Purchasers shall have reasonably deemed necessary or
desirable in order to amend, modify or supplement this Agreement and/or one
or more of the Purchase Documents, to conform the representations and
covenants contained herein and therein to the Tescorp Acquisition and the
circumstances related thereto, and (iii) caused to be delivered to the
Administrative Agent such opinions of legal counsel acceptable to the
Administrative Agent and in form and substance satisfactory to the Required
Purchasers as they shall have reasonably requested. All agreements, documents
or instruments relating to any such amendments, modifications or supplements
shall be in form and substance reasonably satisfactory to the Administrative
Agent and the Required Purchasers in all respects.
Notwithstanding anything contained in this Agreement to the
contrary, the obligations of Tescorp Delaware to repay any Advances or other
amounts hereunder or under the other Purchase Documents shall be limited to
the amount of Advances made to Tescorp Delaware hereunder and all accrued
interest thereon.
12.2 The TDH Acquisition. (a) Permitted Advances. Notwithstanding
anything contained in this Agreement or in any other Purchase Document to the
contrary, the Issuers shall be permitted to request Advances hereunder at any
time prior to the Availability Expiry Date to (i)(x) pay the unpaid amount of
the acquisition price or transaction expenses directly related to the
acquisition by the Issuers of TDH, to the extent due and payable, or (y) to
reimburse the Issuers for any portion of such acquisition price or transaction
expenses directly related the acquisition by the Issuers of TDH, to the extent
such amounts were paid with funds of the Issuers other than proceeds of Advances
and were not theretofore reimbursed, and (ii) to make Capital Expenditures in
respect of TDH; provided, that the aggregate amount of all such Advances to be
applied as contemplated in clause (i) above shall not exceed U.S.$6,000,000, and
(ii) the aggregate amount of all such Advances to be applied as contemplated in
clause (ii) above shall not exceed U.S.$2,500,000.
(b) Conditions. The obligation of the Purchasers to make Advances
pursuant to Section 12.2(a) above, shall be subject to the satisfaction of the
Administrative Agent of the following conditions:
(i) the satisfaction of the conditions set forth in Section 5.2
hereof;
(ii) the Issuer which is the shareholder of TDH shall have duly
authorized, executed and delivered an SA Pledge Agreement, pursuant to
which such Issuer shall have granted to (A) the Collateral Agent, for
the benefit of the Purchasers, a fully perfected first priority Lien
in all of the Stock of TDH, and (B)
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if any Bridge Obligations are outstanding, to the Bridge Collateral
Agent, for the benefit of the Bridge Purchasers, a fully perfected
second priority Lien in all of the Stock of TDH, free and clear of all
Liens (and shall have (i) delivered to the Collateral Agent all such
Stock with the relevant annotation of the existence and perfection of
the Liens created by such SA Pledge Agreement, (ii) given notice to
TDH of the grant of such Liens as required by Argentine Law, and (iii)
caused TDH to have duly registered such Liens in the names of the
Collateral Agent and the Bridge Collateral Agent in TDH's share
registry); and
(iii) The Administrative Agent shall have received from
counsel to the Issuers (who shall be reasonably satisfactory to the
Administrative Agent) an opinion or opinions addressed to the
Administrative Agent, the Collateral Agent and each of the Purchasers
and dated the date of the Funding covering such matters incident to
the transactions contemplated hereby as the Administrative Agent may
reasonably request.
Section 13. Representations and Agreements of the Purchasers.
13.1 Securities Act. Each Purchaser listed on Schedule I hereto as of
the Initial Funding Date hereby represents and warrants to, and agrees with, the
Issuers, as of the Initial Funding Date, as follows:
(a) Each Purchaser is an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) purchasing for its own account or for the account of such an institutional
"accredited investor", each Purchaser is not acquiring the Notes with a view to,
or for offer or sale in connection with, any distribution in violation of the
Securities Act, each Purchaser has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment in the Notes, and each Purchaser and any accounts for which such
Purchaser is acting are each able to bear the economic risk of its investment.
(b) Each Purchaser understands that the Notes have not been
registered under the Securities Act and further agrees on its own behalf and on
behalf of any investor account for which it is purchasing the Notes to offer,
sell or otherwise transfer such Notes prior to the date which is two years after
the later of the date of original issue thereof and the last date on which any
Issuer or any affiliate of any Issuer was the owner of such Notes (the "Resale
Restriction Termination Date") only (i) pursuant to a registration statement
which has been declared effective under the Securities Act, (ii) for so long as
the Notes are eligible for resale pursuant to Rule 144A under the Securities
Act, to a person the Purchaser reasonably believes is a qualified institutional
buyer under Rule 144A (a "QIB") that purchases for its own account or for the
account of a QIB to whom notice is given that the transfer is being made in
reliance on Rule 144A, (iii) pursuant to offers and sales to non-U.S. Persons
that occur outside the United States within the meaning of Regulation S under
the Securities Act, (iv) to an institutional "accredited investor" within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act that is acquiring the Notes for its own account or for the account of such
an
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institutional "accredited investor" and not with a view to, or for offer or sale
in connection with, any distribution thereof in violation of the Securities Act
or (v) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of its property and the property of
such investor account or accounts be at all times within its or their control
and to compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed to
be made pursuant to clause (iv) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of Exhibit J, which shall provide, among other things,
that the transferee is an institutional "accredited investor" within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act and
that it is acquiring such Notes not for distribution in violation of the
Securities Act. The Purchasers acknowledge that the Issuers reserve the right
prior to any offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Notes pursuant to clause (v) above to require the
delivery of an opinion of counsel satisfactory to the Issuers.
13.2 Commitment to Accept Negotiable Obligations.
(a) Each Purchaser agrees that if Supercanal Holding issues
Negotiable Obligations (as defined below) at any time after the date hereof, and
the Issuers request the Purchasers to accept such Negotiable Obligations as
payment for the Notes and the Advances, they will accept, as payment in full of
the Obligations, Negotiable Obligations with an aggregate principal amount not
less than the sum of outstanding principal amount of the Notes, all accrued and
unpaid interest thereon and all other amounts payable hereunder by the Issuers
hereunder and under the other Purchase Documents; provided, that (i) no Default
or Event of Default has occurred and is continuing, (ii) at the time of payment,
the issuer of the Negotiable Obligations shall not be, and shall not at any time
have been, in default under the terms and conditions of any such Negotiable
Obligations, and (iii) the Administrative Agent shall have received such legal
opinions of counsel satisfactory to the Administrative Agent and the Purchasers
covering such matters relating to the issuance, validity, enforceability of the
Negotiable Obligations, and the security therefor and such other matters as the
Administrative Agent and the Purchasers shall require.
(b) The term "Negotiable Obligations" shall mean bonds constituting
obligaciones negociables under Argentine Law issued by Supercanal Holding after
the date hereof in the international and Argentine capital markets, which are
(i) issued in compliance with Articles 36 and 36 bis of Argentine Law 23,576, as
amended, (ii) issued upon the same economic terms and conditions as the Notes,
and such other terms and conditions customarily included in similar
transactions, (iii) are (as to the Negotiable Obligations to be transferred to
the Purchasers) secured to the same extent as, the Notes and the other
Obligations hereunder, (iv) afford the Purchasers the same rights and remedies
provided by the Purchase Documents, and (v) otherwise in form and substance
satisfactory to the Administrative Agent and the Required Purchasers, all as
determined in the discretion of the Administrative Agent and the Required
Purchasers.
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Section 14. Miscellaneous.
14.1 Payment of Expenses, etc. The Issuers shall: (i) whether or not
the transactions herein contemplated are consummated, pay, from time to time
upon request, all reasonable out-of-pocket costs and expenses of (w) the
Administrative Agent and the Collateral Agent (including, without limitation,
the reasonable costs and expenses of the arrangement of the issue and sale of
the Notes, the reasonable fees and disbursements of White & Case (as special
U.S. counsel to the Administrative Agent) and Bruchou, Xxxxxxxxx Xxxxxx &
Xxxxxxxx (as Argentine counsel to the Administrative Agent) and reasonable
printing, document production and delivery, communication, travel and due
diligence costs) and the Registrar incurred in connection with the preparation,
review, negotiation, translation, execution and delivery of this Agreement and
the other Purchase Documents and the documents and instruments prepared in
connection herewith or in anticipation hereof and any amendment, waiver or
consent relating hereto or thereto, (x) the Administrative Agent, the Collateral
Agent, the Registrar and each of the Purchasers in connection with the
enforcement of the Notes, this Agreement and the other Purchase Documents and
the documents and instruments referred to herein and therein (including, without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent, the Collateral Agent, the Registrar and each of the
Purchasers), (y) the Administrative Agent in connection with the sale by it of
any Dollar Denominated Securities as contemplated in Section 4.4(a), and (z)
each of the Purchasers in connection with any due diligence conducted by any of
them in connection with the transactions contemplated hereby; (ii) pay and hold
the Registrar and each of the Purchasers harmless from and against any and all
present and future stamp and other similar taxes with respect to the foregoing
matters and save and hold the Registrar and each of the Purchasers harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to the Registrar or such
Purchaser) to pay such taxes; and (iii) indemnify the Administrative Agent, the
Collateral Agent, the Registrar and each Purchaser, and their respective
officers, directors, employees, representatives and agents (each an "indemnified
person") from and hold each of them harmless against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses and disbursements incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of, any investigation,
litigation or other proceeding (whether or not the indemnified person is a party
thereto) related to the entering into and/or performance of the Notes, this
Agreement or any other Purchase Document or the use of the proceeds of any
Advances hereunder or the consummation of any transactions contemplated herein
or in any other Purchase Document, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding (but excluding any such
liabilities, obligations, losses, etc., to the extent incurred by reason of the
gross negligence or willful misconduct of the Person to be indemnified).
14.2 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, the Administrative
Agent and the Collateral Agent and each Purchaser is hereby authorized, to the
extent permitted by Law, at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Issuer or to any other
Person, any
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such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Purchaser (including without limitation by
branches and agencies of such Purchaser wherever located) to or for the credit
or the account of the Issuer against and on account of the Obligations and
liabilities of the Issuer to such Purchaser or the Administrative Agent or the
Collateral Agent under this Agreement or under any of the other Purchase
Documents, including, without limitation, all interests in Obligations purchased
by such Purchaser pursuant to Section 14.7(b), and all other claims of any
nature or description arising out of or connected with this Agreement or any
other Purchase Document, irrespective of whether or not such Purchaser or the
Administrative Agent or the Collateral Agent shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
14.3 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, sent by facsimile, cabled or delivered: if to any or all
of the Issuers, to Supercanal Holding at its address specified opposite its
signature below; if to any Purchaser, to its Funding Office specified opposite
its name on Schedule II; if to the Administrative Agent, to it at its Notice
Office; if to the Collateral Agent or to the Arranger, to it at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; if to the Registrar, at the Registrar's
Office; or, as to any such party, to such other address as shall be designated
by such party in a written notice to the other parties hereto. All such notices
and communications shall be effective (i) three days after deposit in the mails,
when mailed, (ii) when delivered to any nationally-recognized telegraph company,
cable company or overnight courier, when sent by telegraph, cable or overnight
courier, and (iii) when sent, when sent by telex or facsimile, except that
notices and communications to the Administrative Agent and the Collateral Agent
shall not be effective until actually received by the Administrative Agent or
the Collateral Agent, as the case may be.
14.4 Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, provided that none of the Issuers may assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Purchasers.
14.5 Registration of Notes; Transfer and Exchange; Transfer
Restrictions.
(a) The Notes shall be issued in registered non-endorseable form
only. Supercanal Holding shall cause to be kept at the Registrar Office and at
its offices in Argentina a register in which, subject to such reasonable
regulations as it may prescribe, Supercanal Holding shall provide for the
registration of the Notes and transfers or exchanges of the Notes as herein
provided and for the recording of the Advances and Commitments of each
Purchaser, as the same may be adjusted pursuant to an Assignment and Acceptance.
The name and address of each holder of one or more Notes, each transfer thereof
and of the Advances and Commitments in respect thereof, and the name and address
of each transferee of one or more Notes and of the Advances and Commitments in
respect thereof shall be registered in such register. All Notes issued upon any
registration of transfer or exchange of Notes shall be the valid obligations of
the
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Company, evidencing the same obligations, and entitled to the same benefit under
this Agreement, as the Notes surrendered for such registration of transfer or
exchange.
(b) On or prior to the earlier to occur of (i) the Availability
Expiry Date, and (ii) the date on which the Total Commitment is funded
hereunder, any transfer of a Note shall represent a transfer of a uniform, and
not varying, percentage of the transferor's Advances made under such Note and of
such transferor's Commitment hereunder. After the earlier to occur of (i) the
Availability Expiry Date, and (ii) the date on which the Total Commitment is
funded hereunder, any transfer of a Note shall represent a transfer of the
aggregate principal amount of the Advances thereunder.
(c) A Purchaser may transfer its Note and its rights and obligations
thereunder only by complying with the terms of this Agreement. No such transfer
shall be effected until, and such transferee shall succeed to the rights of a
holder only upon, final acceptance and registration of the transfer by the
Registrar in the register. Prior to the registration of any transfer of Notes
by a holder as provided herein, the Issuers, the Registrar and the
Administrative Agent may treat the Person in whose name the Notes are registered
as the owner thereof for all purposes and as the Person entitled to exercise the
rights represented thereby, any notice to the contrary notwithstanding. When
Notes are presented to the Registrar with a request to register the transfer or
to exchange them, the Registrar shall register the transfer or make the exchange
in accordance with the provisions hereof. No Purchaser shall grant a
participation under which the participant shall have rights to approve any
amendment to or waiver of any provision of this Agreement, any Note or any other
Purchase Documents except to the extent such amendment or waiver would (i)
extend the final scheduled maturity of any Advance or Note in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon, or (ii) release all or substantially all of the
Collateral under all of the Security Documents (except as expressly provided in
such Security Documents) supporting the Advances and Notes in which such
participant is participating.
(d) When Notes are presented to the Registrar with a request from the
holder of such Notes to register the transfer or to exchange them, the Registrar
shall register the transfer or make the exchange as requested and provide the
transferor and the transferee with a written confirmation thereof within three
Business Days of such transfer or exchange; provided that (i) every Note
presented and surrendered for registration of transfer or exchange shall be
accompanied by an Assignment and Acceptance duly executed by the holder thereof
or the holder's attorneys duly authorized in writing pursuant to which the
holder shall have assigned a uniform, and not varying, percentage of its rights
and obligations under such Note and hereunder, (ii) the transferor and
transferee of such Notes shall have complied with their respective obligations
under Sections 14.5(g), (h), (i) and (j), and (iii) if such transfer or exchange
is made prior to the Availability Expiry Date, the Administrative Agent shall
have provided its consent.
(e) Upon presentment of any Note for transfer in accordance with the
provisions of Section 14.5(d) above, the Issuers shall execute and deliver, at
the Issuers' expense, one or more new Notes (as requested by the holder thereof)
in exchange therefor, in an aggregate principal amount equal to the principal
amount of the surrendered Note. Each such new Note shall be in such principal
amount and be payable to such Person as such holder may request and shall be
substantially in the form of Exhibit A. Each such new Note
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shall be dated and bear interest from the date to which interest shall have been
paid on the surrendered Note or dated the date of the surrendered Note if no
interest shall have been paid thereon. Notes shall not be issued or transferred
in denominations of less than U.S.$1,000,000; provided, that if necessary to
enable the registration of transfer by a holder of its entire holding of Notes,
one Note may be issued in a denomination of less than U.S.$1,000,000.
(f) If any Purchaser transfers all or a part of its Notes and its
rights and obligations hereunder to any other Person pursuant to the provisions
hereof, the transferor Purchaser shall be relieved of its obligations hereunder
with respect to the transferred Notes, Advances or Commitment, as the case may
be, and the transferee shall be a party hereto and, to the extent that Notes,
Advances and Commitments and such other rights and obligations hereunder have
been transferred, shall acquire such Notes, Advances, Commitments and other
rights and obligations of a Purchaser hereunder and under the other Purchase
Documents, and this Agreement shall be deemed to be amended to the extent
necessary to reflect the transfer and assignment of such rights and obligations
and the addition of such transferee, and any reference to the transferring
Purchaser in this Agreement, the other Purchase Documents or the Note of such
Purchaser shall thereafter refer to such Purchaser and to such transferee to the
extent of their respective interests.
(g) The following provisions shall apply with respect to the
registration of any proposed transfer of Notes to any institutional "accredited
investor" which is not a QIB (excluding non-U.S. Persons, as such term is
defined in Regulation S under the Securities Act): the Registrar shall register
the transfer of any Note if (i) the proposed transferee has delivered to the
Registrar and the Administrative Agent a certificate to the effect that at least
two years have elapsed since the later of (x) the original issue date of such
Notes, and (y) the last date on which any Issuer or any affiliate of any Issuer
was the owner of such Notes, or (ii) the proposed transferee has delivered to
the Registrar and the Administrative Agent a certificate substantially in the
form of Exhibit J hereto.
(h) The following provisions shall apply with respect to the
registration of any proposed transfer of Notes to a QIB (excluding non-U.S.
Persons, as such term is defined in Regulation S under the Securities Act): the
Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on the applicable
Assignment and Acceptance stating, or has otherwise advised the Issuers, the
Registrar and the Administrative Agent in writing that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed a
certification stating, or has otherwise represented to the Issuers, the
Registrar and the Administrative Agent in writing, that it is purchasing the
Notes for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Issuers as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon its
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foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
(i) The following provisions shall apply to the registration of any
proposed transfer of Notes to a Non-U.S. Person outside the United States (in
each case within the meaning of Regulation S under the Securities Act): the
Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on the applicable
Assignment and Acceptance stating, or has otherwise advised the Issuers, the
Registrar and the Administrative Agent in writing, that the sale has been made
in compliance with Regulation S to a transferee who has signed the certification
provided for on the applicable Assignment and Acceptance, or has otherwise
advised the Issuers, the Registrar and the Administrative Agent in writing that
it is a non-U.S. Person (within the meaning of Regulation S under the Securities
Act) and that the sale has been made in compliance with the provisions of
Regulation S.
(j) By its acceptance of any Notes, each holder of such Notes
acknowledges the restrictions on transfer of such Notes set forth therein and in
this Agreement and agrees that it will transfer such Notes only as provided in
this Agreement. The Registrar shall not register a transfer of any Notes unless
such transfer complies with the restrictions on transfer of such Notes set forth
in this Agreement.
(k) Upon receipt by the Registrar and Supercanal Holding of evidence
reasonably satisfactory to each of them of the ownership of and the loss, theft,
destruction or mutilation of any Note, and
(x) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to each of them; or
(y) in the case of mutilation, upon surrender and cancellation
thereof;
the Issuers, at their expense, shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Notes or dated the date of
such lost, stolen, destroyed or mutilated Notes if no interest shall have been
paid thereon.
(l) The Registrar and the Administrative Agent shall retain copies of
all letters, notices and other written communications received pursuant to this
Section 14.5. The Issuers shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar and the
Administrative Agent.
(m) The Registrar agrees to notify Supercanal Holding from time to
time upon the registration of the transfer of any Note, Advance or Commitment
pursuant to such procedures as the Registrar and Supercanal Holding shall agree.
In the event of any conflict between any transfers or other particulars noted in
the register maintained by the Registrar and the register
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maintained by Supercanal Holding, the transfers and particulars noted in the
register maintained by the Registrar shall prevail.
(n) The Registrar will promptly notify the Administrative Agent upon
the registration of any transfer or exchange of Notes or any Commitments and
Advances in respect thereof.
(o) To permit registrations of transfers and exchanges, the Company
shall make available to the Registrar a sufficient number of duly executed Notes
to effect such registrations of transfers and exchanges. Such Notes shall be
prepared with the date, the payee and the principal amount in blank. The
Registrar is authorized and directed to prepare the appropriate Notes to be
delivered upon any registration of transfer or exchange and, in connection
therewith, to fill in the appropriate date, payee and principal amount, all as
contemplated hereunder and in the applicable Assignment and Acceptance.
(p) The Issuers hereby appoint the Registrar to act as agent of the
Issuers as set forth in this Agreement. The Registrar hereby accepts the agency
established by this Agreement and agrees to perform the same upon the terms and
conditions herein set forth, by all of which the Issuers and the Purchasers
shall be bound. The Registrar shall not have any obligation towards or
relationship of agency or trust for the Purchasers, except as provided in this
Section 14.5. The Registrar shall not by any act hereunder be deemed to make
any representations as to the validity or authorization of the Notes. The
Registrar shall not be accountable for the use or application by the Issuers of
the proceeds from the issuance of any Note. The Registrar shall not (i) be
liable for any recital or statement of fact contained herein or for any action
taken, suffered or omitted by it in good faith in the belief that any Notes or
any other documents or any signatures are genuine or properly authorized, (ii)
be responsible for any failure on the part of the Issuers to comply with any of
their covenants and obligations contained in this Agreement or (iii) be liable
for any act or omission in connection with this Agreement except for its own
gross negligence or willful misconduct. The Registrar is hereby authorized to
accept instructions with respect to the performance of its duties hereunder from
the President, any Vice President or the Secretary or Treasurer of Supercanal
Holding and to apply to any such officer for instructions (which instructions
will be promptly given in writing when requested) and the Registrar shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with the instructions of any such officer; however, in its
discretion, the Registrar may in lieu thereof accept other evidence of such or
may require such further or additional evidence as it may deem reasonable. The
Registrar shall not be liable for any action taken with respect to any matter in
the event it requests instructions from Supercanal Holding as to that matter and
does not receive such instructions within a reasonable period of time after the
request therefor.
(q) The Registrar may execute and exercise any of the rights and
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, and the Registrar shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees, provided reasonable care has been exercised
in the selection and in the continued employment of any such attorney, agent or
employee. The Registrar shall not be under any obligation or duty to institute,
appear in
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or defend any action, suit or legal proceeding in respect hereof, unless first
indemnified to its satisfaction, but this provision shall not affect the power
of the Registrar to take such action as the Registrar may consider proper,
whether with or without such indemnity. The Registrar shall promptly notify
Supercanal Holding in writing of any claim made or action, suit or proceeding
instituted against it arising out of or in connection with this Agreement.
(r) The Registrar may rely and shall be fully protected in acting or
refraining from acting upon any certificate, notice, instruction, Note, document
or other writing believed by it to be genuine and to have been signed or
presented by the proper Person. The Registrar need not investigate any fact or
matter stated in any such certificate, notice, instruction, Note, document or
other writing. The Registrar shall not be liable for any action that it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers.
(s) The Issuers will perform, execute, acknowledge and deliver or
cause to be performed, executed, acknowledged and delivered all such further
acts, instruments and assurances as are consistent with this Agreement and as
may reasonably be required by the Registrar in order to enable it to carry out
or perform its duties under this Agreement.
(t) The Registrar shall act solely as agent of the Issuers hereunder.
The Registrar shall not be liable except for the failure to perform such duties
as are specifically set forth herein, and no implied covenants or obligations
shall be read into this Agreement against the Registrar, whose duties and
obligations shall be determined solely by the express provisions hereof.
(u) The Registrar may at any time consult with legal counsel
acceptable to it (who may be legal counsel for the Issuers), and the opinion or
advice of such counsel shall be full and complete authorization and protection
to the Registrar and the Registrar shall incur no liability or responsibility to
the Issuers or to any holder for any action taken, suffered or omitted by it in
good faith in accordance with the opinion or advice of such counsel.
(v) The Registrar and any stockholder, director, officer or employee
of the Registrar may buy, sell or deal in any of the Notes or other securities
of the Issuers or become pecuniarily interested in transactions in which the
Issuers may be interested, or contract with or lend money to any of the Issuers
or otherwise act as fully and freely as though it were not the Registrar under
this Agreement. Nothing herein shall preclude the Registrar from acting in any
other capacity for the Issuers or for any other legal entity.
(w) Except as otherwise provided in this Section 14.5, no resignation
or removal of the Registrar and no appointment of a successor registrar shall
become effective until the acceptance of appointment by the successor registrar
provided herein. The Registrar may resign from its position as such and be
discharged from all further duties and liabilities hereunder (except liabilities
arising as a result of the Registrar's own gross negligence or willful
misconduct), after giving one month's prior written notice to the Issuers. The
Issuers may remove the Registrar upon one month's prior written notice
specifying the date when such discharge shall take effect, and the Registrar
shall thereupon in like manner be discharged from all further duties and
liabilities hereunder, except as aforesaid. The Registrar or the Issuers shall
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cause to be mailed (by first-class mail, postage prepaid) to each holder of a
Note a copy of said notice of resignation or notice of removal, as the case
may be. Upon such resignation or removal the Issuers shall appoint in
writing a new registrar. If the Issuers shall fail to make such appointment
within a period of 30 calendar days after it has been notified in writing of
such resignation by the resigning Registrar or after such removal, then the
resigning Registrar or the holder of any Note, at the Issuers' expense, may
apply to any court of competent jurisdiction for the appointment of a new
registrar. Any new registrar, whether appointed by the Issuers or by such a
court, shall be a bank or trust company doing business under the laws of the
United States or any state thereof, in good standing and having a combined
capital and surplus of not less than US$50,000,000. The combined capital and
surplus of any such new registrar shall be deemed to be the combined capital
and surplus as set forth in the most recent annual report of its condition
published by such registrar prior to its appointment, provided that such
reports are published at least annually pursuant to law or to the
requirements of a federal or state supervising or examining authority. After
acceptance in writing of such appointment by the new registrar, it shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as the Registrar, without any further assurance,
conveyance, act or deed; however, the original Registrar, upon payment of its
fees and expenses, shall in all events deliver and transfer to the successor
Registrar all property, if any, at the time held hereunder by the original
Registrar and if for any reason it shall be necessary or expedient to execute
and deliver any further assurance, conveyance, act or deed, the same shall be
done at the expense of the Issuers and shall be legally and validly executed
and delivered by the resigning or removed Registrar. Not later than the
effective date of any such appointment, the Issuers shall file a notice
thereof with the resigning or removed Registrar and shall forthwith cause a
copy of such notice to be mailed to each holder of a Note. Failure to give
any notice provided for in this Section 14.5, however, or any defect therein,
shall not affect the legality or validity of the resignation of the Registrar
or the appointment of a new registrar, as the case may be.
(x) Any corporation into which the Registrar or any successor
registrar may be merged or converted, or any corporation resulting from any
consolidation to which the Registrar or any successor Registrar shall be a
party, and any corporation which acquires substantially all of the corporate
trust business of the Registrar, shall be a successor Registrar under this
Agreement without any further act, provided that such corporation would be
eligible for appointment as successor to the Registrar under this Section
14.5. Any such successor Registrar shall promptly cause notice of its
succession as Registrar to be mailed (by first-class mail, postage prepaid)
to each holder of a Note.
14.6 Joinder. Upon the execution and delivery of a Joinder
Agreement pursuant to the provisions hereof, the Person executing and
delivering such Joinder Agreement shall be an Issuer hereunder and under the
other Purchase Documents as provided therein.
14.7 Payments Pro Rata.
(a) The Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Issuers in respect of any
Obligations of the Issuers hereunder, it
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shall distribute such payment to the Purchasers pro rata based upon their
respective shares, if any, of the Obligations with respect to which such
payment was received.
(b) Each of the Purchasers agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Purchase Documents,
or otherwise), which is applicable to the payment of the principal of, or
interest on, the Notes or any Advances thereunder or any Fee, of a sum which
with respect to the related sum or sums received by other Purchasers is in a
greater proportion than the total amount of such Obligation then owed and due
to such Purchaser bears to the total amount of such Obligation then owed and
due to all the Purchasers immediately prior to such receipt, then such
Purchaser receiving such excess payment shall purchase for cash without
recourse or warranty from the other Purchasers an interest in the Obligations
of the Issuers to such Purchasers in such amount as shall result in a
proportional participation by all the Purchasers in such amount; provided,
however, that if all or any portion of such excess amount is thereafter
recovered from such Purchaser, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
14.8 Calculations; Exclusion of Certain Persons; Computations.
(a) The financial statements to be furnished to the Purchasers
pursuant hereto shall be made and prepared in accordance with U.S. or
Argentine GAAP, as applicable (except as set forth in the notes thereto or as
otherwise disclosed in writing by the Issuers to the Purchasers); provided
that such financial statements shall also be accompanied by convenience
translations pursuant to which all Peso amounts will be converted into
Dollars both (i) using the Noon Buying Rate as in effect on the last day of
the respective fiscal quarter or year of the Borrower, as the case may be,
and (ii) on the basis provided in Section 14.8(b)(i). All financial
statements and other reports and certificates delivered pursuant to this
Agreement shall be in English.
(b) Notwithstanding anything to the contrary contained in clause
(a) of this Section 14.8, (i) all calculations used in determining Excess
Cash Flow and compliance with Sections 8.7 through 8.13, inclusive, shall
convert all Peso amounts into Dollars using the average rate of exchange
during the relevant fiscal period based on the rates in effect in Argentina
on each Business Day during such fiscal period, provided that in determining
the Indebtedness-Annualized EBITDA Ratio and the Senior
Indebtedness-Annualized EBITDA Ratio for such fiscal period the numerator
thereof shall be calculated by converting all Peso amounts into Dollars using
the Noon Buying Rate as in effect on the last day of the relevant fiscal
period, (ii) for purposes of determining compliance with any incurrence tests
set forth in Sections 8.1 through 8.6 and 8.17, any amounts so incurred or
expended (to the extent incurred or expended in a currency other than
Dollars) shall be converted into Dollars on the basis of the Noon Buying Rate
as in effect on the date of such incurrence or expenditure under any
provision of any such Section that has an aggregate Dollar limitation
provided for therein for any fiscal period, and (iii) except as otherwise
specifically provided herein, all computations determining compliance with
Sections 8.7 through 8.13, inclusive, shall utilize accounting principles and
policies in conformity with those used to prepare the historical financial
statements heretofore delivered to the Purchasers.
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(c) Notwithstanding anything contained in this Agreement or in any
other Purchase Document to the contrary, no Excluded Subsidiary shall be
subject to, or be limited or restricted by, or shall be considered a
Subsidiary of any Issuer for the purposes of, or be included in any
calculations of the ratios in, the determination of Excess Cash Flow or the
covenants contained in Sections 8.7 through 8.13, including for purposes of
calculating the assets, liabilities or Subscribers of any Issuer. For
purposes hereof, the term "Excluded Subsidiary" shall mean (i) TDH, (ii)
Procono S.A., and (iii) Supercanal Bolivia and Integra Cable S.A.; provided,
if the assets, liabilities and results of operations of Supercanal Bolivia or
Integra Cable S.A. are included in the consolidated financial statements of
Supercanal Holding provided to the Administrative Agent pursuant to Section
7.1, such company shall not be an Excluded Subsidiary during the period
covered by such financial statements.
(d) All computations of interest and Fees hereunder shall be made
on the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
such interest or Fees are payable.
14.9 Governing Law; Submission to Jurisdiction; Venue.
(a) This Agreement and the other Purchase Documents and the rights
and obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the State of New York, except
as is otherwise specifically provided in such Purchase Document. Any legal
action or proceeding with respect to this Agreement or any other Purchase
Document may be brought in the courts of the State of New York sitting in the
City and the County of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, each
of the Issuers hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts. Each of the Issuers hereby irrevocably designates,
appoints and empowers the Process Agent, as its designee, appointee and agent
to receive, accept and acknowledge for and on its behalf, and in respect of
its property, service of any and all legal process, summons, notices and
documents which may be served in any action or proceeding. If for any reason
such designee, appointee and agent shall cease to be available to act as
such, each of the Issuers agrees to designate a new designee, appointee and
agent in New York City on the terms and for the purposes of this provision
satisfactory to the Administrative Agent. Each of the Issuers further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to the
Issuers at the address set forth opposite its signature below, such service
to become effective 30 days after such mailing. Nothing herein shall affect
the right of the Administrative Agent, the Collateral Agent, any Purchaser or
the holder of any Note to serve process in any other manner permitted by law
or to commence legal proceedings or otherwise proceed against the Issuers in
any other jurisdiction.
(b) To the extent permitted by Law, each of the Issuers hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Agreement or any other Purchase Document brought in the
courts referred to in clause (a) above and hereby further
95
irrevocably waives and agrees not to plead or claim in any such court that
any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) Each of the Issuers agrees, to the extent permitted by
applicable law, that in any legal action or proceeding arising out of or in
connection with this Agreement or any other Purchase Document (the
"Proceedings") anywhere (whether for an injunction, specific performance,
damages or otherwise), no immunity (to the extent that it may at any time
exist) from those Proceedings, from attachment (whether in aid of execution,
before judgment or otherwise), or from judgment shall be claimed by it or on
its behalf or with respect to its assets. Each of the Issuers agrees, to the
extent permitted by applicable law, that it is and its assets are, and shall
be, subject to such Proceedings, attachment or execution in respect of its
obligations under this Agreement and each other Purchase Document to which it
is party.
14.10 Obligation to Make Payments in Dollars. The obligation of
the Issuers to make payment in Dollars of the principal of and interest on
the Notes and any other amounts due hereunder or under any other Purchase
Document to the Payment Office of the Administrative Agent as provided in
Section 4.4 shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment, which is expressed in or converted into
any currency other than Dollars, except to the extent such tender or recovery
shall result in the actual receipt by the Administrative Agent at its Payment
Office on behalf of the Purchasers or holders of the Notes of the full amount
of Dollars expressed to be payable in respect of the principal of and
interest on the Notes and all other amounts due hereunder or under any other
Purchase Document. The obligation of the Issuers to make payments in Dollars
as aforesaid shall be enforceable as an alternative or additional cause of
action for the purpose of recovery in Dollars of the amount, if any, by which
such actual receipt shall fall short of the full amount of Dollars expressed
to be payable in respect of the principal of and interest on the Notes and
any other amounts due under any other Purchase Document, and shall not be
affected by judgment being obtained for any other sums due under this
Agreement or under any other Purchase Document. The Issuers assume and will
be liable in respect of any future circumstance (including acts of God or
force majeure) which may affect the exchange market or mechanism available
for the purchase of Dollars in such a way as to hinder or make more onerous
obtaining the Dollars owed hereunder and under the Notes and agree to provide
the Administrative Agent with Dollar Denominated Securities as contemplated
herein or take any other similar or other actions permitted by applicable law
to enable the Issuers to make full payment, in Dollars, of the Obligations in
accordance with the provisions of this Agreement and the Notes. The Issuers
waive the right to invoke any defense of payment impossibility (including any
defense under Section 1198 of the Argentine Civil Code).
14.11 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
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14.12 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which the parties hereto shall have duly
executed and delivered a copy hereof (whether the same or different copies).
14.13 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision
of this Agreement.
14.14 Amendment or Waiver. Neither this Agreement nor any other
Purchase Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the Required Purchasers and the Administrative Agent;
provided, however, that no such change, waiver, discharge or termination
shall, without the consent of each Purchaser, (i) extend the final maturity
of any Advance or Note, or reduce the rate or extend the time of payment of
interest or Fees thereon, or reduce the principal amount thereof, or increase
the Commitment of any Purchaser over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Commitment shall not constitute a change in
the terms of any Commitment of any Purchaser), (ii) release substantially all
of the Collateral except as shall be otherwise provided in any Purchase
Document, (iii) amend, modify or waive any provision of this Section 14.14
or Sections 2.1, 2.2, 2.3, 10.9, 13, 14.1, 14.2, 14.4, 14.5, 14.7, 14.8(b),
(iv) reduce the percentage specified in the definition of Required Purchasers
or (v) consent to the assignment or transfer by any of the Issuers of any of
its rights and obligations under this Agreement.
14.15 Obligations Joint and Several. The obligations of the
Issuers hereunder and under the Notes are joint and several.
14.16 Authorization. Each Issuer hereby authorizes, and grants
a power of attorney to, each other Issuer to execute and deliver for and on
its behalf Notices of Funding, Notes and any other Purchase Documents which
purport to be executed and delivered for and on behalf of such Issuer.
14.17 Survival. All indemnities set forth herein, including,
without limitation, in Sections 2.6, 2.7, 4.5, 10.9 and 14.1, shall survive
the execution and delivery of this Agreement and the Notes and the making and
repayment of the Advances.
14.18 Domicile of Advances. Each Purchaser may transfer and
thereafter carry its Advances at, to or for the account of any office,
Subsidiary or Affiliate of such Purchaser; provided, however, that to the
extent a transfer of Advances pursuant to this Section 14.18 would, at the
time of such transfer, result in increased costs or taxes under Section 2.6
or 4.5 hereof from those being charged by the respective Purchaser prior to
such transfer, then the Issuers shall not be obligated to pay such increased
costs or taxes (although the Issuers shall be obligated to pay any other
increased costs or taxes of the type described above resulting from changes
after the date of the respective transfer).
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14.19 Confidentiality. Each of the Administrative Agent, the
Collateral Agent, the Arranger and each Purchaser agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality
of all non-public information provided to it by the Issuers pursuant to this
Agreement or the other Purchase Documents, and no such party shall use any
such information for any purpose or in any manner other than in connection
with the transactions contemplated in this Agreement; except to the extent
such information was or becomes available on a non-confidential basis from a
source other than the Issuers; provided further, however, that any Purchaser
may disclose such information (A) at the request or pursuant to any
requirement of any Governmental Authority to which the Purchaser is subject
or in connection with an examination of such Purchaser by any such authority;
(B) pursuant to subpoena or other judicial or administrative process; (C)
when required to do so in accordance with the provisions of any applicable
Law; (D) to the extent reasonably required in connection with any litigation
or proceeding to which the Purchaser or its Affiliates may be party, (E) to
the extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Purchase Document, (F) to such Purchaser's
independent auditors and other professional advisors, and (G) with the
permission of Supercanal Holding. Notwithstanding the foregoing, and without
limiting the generality of the foregoing, the Issuers authorize each
Purchaser to disclose to any transferee (each, a "Transferee") and to any
prospective Transferee, such financial and other information in such
Purchaser's possession concerning the Issuers which has been delivered to the
Administrative Agent, or the Collateral Agent or the Purchasers pursuant to
this Agreement or in connection with the transactions contemplated hereby;
provided that any such Transferee shall agree to be bound to keep such
information confidential to the same extent required of the Purchasers
hereunder.
14.20 Base Rate Advances During Interim Period. Notwithstanding
anything contained in this Agreement to the contrary, the parties agree that
during the Interim Period (as defined below) the Advances made on the Initial
Funding Date shall bear interest at a rate per annum equal to the Base Rate
in effect from time to time, plus 3.00%. For purposes hereof, the term
"Interim Period" shall mean the period commencing on the Initial Funding Date
and ending on the earlier to occur of (i) November 30, 1997, and (ii) the
date (the "LIBOR Commencement Date") specified in a written notice from the
Administrative Agent to the Issuers and the Purchasers, which notice shall
(a) be given not less than two Business Days prior to the LIBOR Commencement
Date, (b) specify that Advances made on the Initial Funding Date shall bear
interest from and after the LIBOR Commencement Date on the basis of LIBOR as
provided in Section 2.5 hereof, and (c) specify LIBOR for the ensuing
Interest Period, which Interest Period shall commence on the LIBOR
Commencement Date and end on January 7, 1998. All accrued interest in
respect of the Interim Period shall be payable on the last Business Day of
the Interim Period.
14.21 Waiver of Security, Performance Bond, etc. To the extent
that any of the Issuers may be entitled to the benefit of any provision of
Law requiring the Administrative Agent, the Collateral Agent or any Purchaser
in any suit, action or proceeding brought in a court of Argentina or other
jurisdiction arising out of or in connection with this Agreement, the Notes,
any of the other Purchase Documents or any of the transactions contemplated
hereby or thereby, to post security for litigation costs or otherwise post a
performance bond or guaranty (cautio
98
judicatum solvi or excepcion de arraigo), or to take any similar action, each
of the Issuers hereby irrevocably waives such benefit, in each case to the
fullest extent now or hereafter permitted under the Laws of Argentina or any
such other jurisdiction.
14.22 Interest Reserve Account Payments, Security Interest, etc.
(a) On the last Business Day of each calendar month, the Issuers
shall pay to the Collateral Agent for deposit in the Interest Reserve Account
an amount equal to the amount of interest that will have accrued during such
calendar month in respect of the Advances, as set forth in a written notice
from the Collateral Agent to Supercanal Holding dated not later than the date
five Business Days prior to the last Business Day of such calendar month.
(b) On or before 12:00 noon (New York time) on each Interest
Payment Date, the Collateral Agent shall transfer monies from the Interest
Reserve Account to the Administrative Agent (or as the Administrative Agent
shall designate), for the account of the Purchasers entitled thereto, to be
applied to the payment of accrued interest. All amounts from time to time on
deposit in the Interest Reserve Account shall constitute collateral for the
payment of the Advances and shall not constitute any payment of any
Obligation until applied as provided above. To the extent that any amounts
so transferred from the Interest Reserve Account to the Administrative Agent
on any Interest Payment Date are not sufficient to pay all accrued interest
due on such date, the Issuers shall pay to the Administrative Agent on such
date an amount equal to all remaining accrued interest due on such date.
(c) As security for the prompt and complete payment and performance
when due of all of the Obligations, each of the Issuers does hereby grant,
bargain, assign, transfer, sell, deliver and convey unto the Collateral
Agent, its successors and assigns, and does hereby grant to the Collateral
Agent for the benefit of the Purchasers, a continuing security interest in,
and first Lien on, all of the Issuers' respective right, title and interest
in, to and under the Interest Reserve Account (including any and all
investment accounts established by the Collateral Agent to hold investments
of funds deposited in the Interest Reserve Account), and all monies,
securities, revenues, receipts, proceeds and other sums from time to time
deposited or required to be deposited in the Interest Reserve Account (or any
such investment accounts). The security interest of the Collateral Agent
under this Agreement extends to all interest, monies, securities and
instruments deposited or required to be deposited in the Interest Reserve
Account (or any such investment accounts) at any time during the continuation
of this Agreement.
(d) All funds held by the Collateral Agent in the Interest Reserve
Account shall be invested and reinvested in cash and Cash Equivalents. All
revenues, receipts, monies, proceeds and other sums derived in any manner
from any amounts held in the Interest Reserve Account shall be held and
applied in accordance with this Section 14.19.
(e) Upon the occurrence and during the continuance of an Event of
Default, the Collateral Agent shall hold and apply the amounts held in the
Interest Reserve Account, in accordance with Section 10.4 of the Credit
Agreement.
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14.23 WAIVER OF JURY TRIAL. EACH OF THE PURCHASERS, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE ISSUERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR
ANY OTHER PURCHASE DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING
HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
PURCHASERS, THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT TO ENTER INTO
THIS AGREEMENT.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
ISSUERS:
c/o Estudio Vila SUPERCANAL HOLDING X.X.
Xxxxxx 000-Xxxx. 0/0
0000, Xxxxxxx, Xxxxxxxxx
Attn: Xx. Xxxxxxx Xxxx Xxxx By:______________________________
Telephone/Facsimile: (54-61) 25- Xxxxxx Xxxxxxx Xxxx
3229/4202/4879/3859 President
SUPERCANAL S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
MIRROR HOLDING S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
T.V. CABLE LA RIOJA S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
CABLE TELEVISORA COLOR
MERCEDES S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
101
INTEGRA CABLE S.A. f/k/a Integra
Cable S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
HORIZONTE S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
T.V. CABLE CATAMARCA S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
ACV CABLE VISION S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
NUEVA VISION SATELITAL S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
102
MONTEROS TELEVISORA COLOR S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
A-T SAT S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
TRINIDAD TELEVISION S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
XXXXXX CABLE S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
TELEVISORA DEL OESTE S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
CABLE TELEVISORA COLOR S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
103
PEHUENCHE CABLE TELEVISORA
COLOR S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
XXXXXXX X.X.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
ATELCO S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
INVERSORA ATELCO COMODORO S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
ANTENA TELEVISION COMUNITARIA S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
104
INVERSORA ANTENA COMUNITARIA TRELEW S.A.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
President
SUCANAL S.R.L.
By:______________________________
Xxxxxx Xxxxxxx Xxxx
Manager
ACONQUIJA TELEVISORA SATELITAL S.R.L.
By:______________________________
Xxxxxxx Xxxx Xxxx
Manager
SUPERCANAL BOLIVIA S.A.
By:______________________________
Xxxxxxx Xxxx Xxxx
President
ARRANGER
ING BARING (U.S.) SECURITIES, INC.
By:______________________________
Name:_________________________
Title:________________________
105
ADMINISTRATIVE AGENT AND
COLLATERAL AGENT
000 Xxxx 00xx Xxxxxx ING BARING (U.S.) CAPITAL CORPORATION
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By:______________________________
Name:_________________________
Title:________________________
AGENT OF COLLATERAL AGENT
ING BANK N.V., ARGENTINA BRANCH
By:______________________________
Name:_________________________
Title:________________________
REGISTRAR
THE BANK OF NEW YORK
By:______________________________
Name:_________________________
Title:________________________
PURCHASERS
BZW SECURITIES LIMITED
By:_______________________________
Name:_________________________
Title:________________________
106
ING BANK N.V., LONDON BRANCH
By:_______________________________
Name:_________________________
Title:________________________
By:______________________________
Name:_________________________
Title:________________________
XXXXXX COMMERCIAL PAPER INC.
By:_______________________________
Name:_________________________
Title:________________________
CREDIT LYONNAIS SECURITIES (USA) INC.
By:______________________________
Name:_________________________
Title:________________________
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