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Exhibit 4.1
Telemundo Holdings, Inc., as Issuer
and
Bank of Montreal Trust Company, as Trustee
_____________________
INDENTURE
Dated as of August 12, 1998
____________________
$218,838,000 Principal Amount at Maturity
11 1/2% Senior Discount Notes Due 2008, Series A
11 1/2% Senior Discount Notes Due 2008, Series B
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Reconciliation and tie between Trust Indenture Act of 1939,
as amended, and this Indenture
Trust Indenture Indenture
Act Section Section
--------------- ---------
(S) 310 (a)(1)............ 6.05, 6.09
(a)(2)............ 6.05, 6.09
(a)(3)............ 6.05
(a)(4)............ 6.05
(a)(5)............ 6.05, 6.09
(b)............... 6.05, 6.08, 6.10
(c)............... Not Applicable
(S) 311 (a)............... 6.07
(b)............... 6.07
(c)............... Not Applicable
(S) 312 (a)............... 3.05, 7.01
(b)............... 7.02
(c)............... 7.02
(S) 313 (a)............... 7.03
(b)............... 6.07, 7.03
(c)............... 7.03
(d)............... 7.03
(S) 314 (a)............... 7.04, 10.09
(b)............... Not Applicable
(c)(1)............ 1.04, 4.04, 11.01, 12.01
(c)(2)............ 1.04, 4.04, 11.01, 12.01
(c)(3)............ Not Applicable
(d)............... Not Applicable
(e)............... 1.04. 10.21
(f)............... Not Applicable
(S) 315 (a)............... 6.01(a)
(b)............... 6.02
(c)............... 6.01(b)
(d)............... 6.01(c)
(e)............... 5.14
(S) 316 (a) (last sentence) 3.14
(a)(1)(A)......... 5.12
(a)(1)(B)......... 5.13
(a)(2)............ 9.02
(b)............... 5.08
(c)............... 9.07
(S) 317 (a)(1)............ 5.03
(a)(2)............ 5.04
(b)............... 10.03
(S) 318 (a)............... 1.08
TABLE OF CONTENTS
Page
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PARTIES................................................................................ 1
RECITALS............................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions............................................................. 1
Section 1.02. Other Definitions....................................................... 20
Section 1.03. Rules of Construction................................................... 21
Section 1.04. Form of Documents Delivered to Trustee.................................. 21
Section 1.05. Acts of Holders......................................................... 21
Section 1.06. Notices, etc., to the Trustee and Holdings.............................. 22
Section 1.07. Notice to Holders; Waiver............................................... 22
Section 1.08. Conflict with Trust Indenture Act....................................... 23
Section 1.09. Effect of Headings and Table of Contents................................ 23
Section 1.10. Successors and Assigns.................................................. 23
Section 1.11. Separability Clause..................................................... 23
Section 1.12. Benefits of Indenture................................................... 23
Section 1.13. Governing Law........................................................... 23
Section 1.14. No Recourse Against Others.............................................. 24
Section 1.15. Independence of Covenants............................................... 24
Section 1.16. Exhibits................................................................ 24
Section 1.17. Counterparts............................................................ 24
Section 1.18. Duplicate Originals..................................................... 24
ARTICLE TWO
NOTE FORMS
Section 2.01. Form and Dating......................................................... 24
ARTICLE THREE
THE NOTES
Section 3.01. Title and Terms......................................................... 25
Section 3.02. Registrar and Paying Agent.............................................. 25
Section 3.03. Execution and Authentication............................................ 26
Section 3.04. Temporary Notes......................................................... 27
Section 3.05. Transfer and Exchange................................................... 27
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes............................. 28
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Section 3.07. Payment of Interest; Interest Rights Preserved.......................... 29
Section 3.08. Persons Deemed Owners................................................... 29
Section 3.09. Cancellation............................................................ 30
Section 3.10. Computation of Interest................................................. 30
Section 3.11. Legal Holidays.......................................................... 30
Section 3.12. CUSIP and ISIN Numbers.................................................. 30
Section 3.13. Paying Agent To Hold Money in Trust..................................... 31
Section 3.14. Treasury Notes.......................................................... 31
Section 3.15. Deposits of Monies...................................................... 31
Section 3.16. Book-Entry Provisions for Global Notes.................................. 31
Section 3.17. Special Transfer Provisions............................................. 32
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Holdings' Option To Effect Defeasance or Covenant Defeasance............ 34
Section 4.02. Legal Defeasance........................................................ 34
Section 4.03. Covenant Defeasance..................................................... 35
Section 4.04. Conditions to Legal Defeasance or Covenant Defeasance................... 35
Section 4.05. Deposited Money and U.S. Government Obligations To Be Held in Trust;
Other Miscellaneous Provisions........................................ 37
Section 4.06. Reinstatement........................................................... 37
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default....................................................... 38
Section 5.02. Acceleration of Maturity, Rescission and Annulment...................... 39
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee......... 40
Section 5.04. Trustee May File Proofs of Claims....................................... 40
Section 5.05. Trustee May Enforce Claims Without Possession of Notes.................. 41
Section 5.06. Application of Money Collected.......................................... 41
Section 5.07. Limitation on Suits..................................................... 42
Section 5.08. Unconditional Right of Holders To Receive Accreted Value,
Premium and Interest.................................................. 42
Section 5.09. Restoration of Rights and Remedies...................................... 42
Section 5.10. Rights and Remedies Cumulative.......................................... 43
Section 5.11. Delay or Omission Not Waiver............................................ 43
Section 5.12. Control by Majority..................................................... 43
Section 5.13. Waiver of Past Defaults................................................. 43
Section 5.14. Undertaking for Costs................................................... 44
Section 5.15. Waiver of Stay, Extension or Usury Laws................................. 44
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ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities..................................... 44
Section 6.02. Notice of Defaults...................................................... 45
Section 6.03. Certain Rights of Trustee............................................... 45
Section 6.04. Trustee Not Responsible for Recitals, Dispositions
of Notes or Application of Proceeds Thereof.......................... 46
Section 6.05. Trustee and Agents May Hold Notes; Collections; Etc..................... 47
Section 6.06. Money Held in Trust..................................................... 47
Section 6.07. Compensation and Indemnification of Trustee and Its Prior Claim......... 47
Section 6.08. Conflicting Interests................................................... 48
Section 6.09. Corporate Trustee Required; Eligibility................................. 48
Section 6.10. Resignation and Removal; Appointment of Successor Trustee............... 48
Section 6.11. Acceptance of Appointment by Successor.................................. 49
Section 6.12. Merger, Conversion, Amalgamation, Consolidation
or Succession to Business............................................. 50
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND HOLDINGS
Section 7.01. Preservation of Information; Holdings to Furnish
Trustee Names and Addresses of Holders................................ 50
Section 7.02. Communications of Holders............................................... 51
Section 7.03. Reports by Trustee...................................................... 51
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. Merger and Consolidation................................................ 51
Section 8.02. Successor Substituted................................................... 52
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and
Waivers Without Consent of Holders.................................... 52
Section 9.02. Supplemental Indentures, Agreements
and Waivers with Consent of Holders................................... 53
Section 9.03. Execution of Supplemental Indentures, Agreements and Waivers............ 54
Section 9.04. Effect of Supplemental Indentures....................................... 54
Section 9.05. Conformity with Trust Indenture Act..................................... 54
Section 9.06. Reference in Notes to Supplemental Indentures........................... 54
Section 9.07. Record Date............................................................. 55
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Section 9.08. Revocation and Effect of Consents....................................... 55
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest............................. 55
Section 10.02. Maintenance of Office or Agency........................................ 55
Section 10.03. Money for Note Payments To Be Held in Trust............................ 56
Section 10.04. Corporate Existence.................................................... 57
Section 10.05. Payment of Taxes and Other Claims...................................... 57
Section 10.06. Maintenance of Properties.............................................. 57
Section 10.07. Insurance.............................................................. 57
Section 10.08. Books and Records...................................................... 58
Section 10.09. SEC Reports............................................................ 58
Section 10.10. Change of Control...................................................... 58
Section 10.11. Limitation on Indebtedness............................................. 61
Section 10.12. Statement by Officers as to Default.................................... 63
Section 10.13. Limitation on Restricted Payments...................................... 64
Section 10.14. Limitation on Affiliate Transactions................................... 65
Section 10.15. Limitation on Sales of Assets and Subsidiary Stock..................... 66
Section 10.16. Limitation on Liens.................................................... 68
Section 10.17. Limitation on Sale/Leaseback Transactions.............................. 69
Section 10.18. Limitation on Asset Swaps.............................................. 69
Section 10.19. Limitation on Restrictions on Distributions
from Restricted Subsidiaries......................................... 70
Section 10.20. Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries........................................... 71
Section 10.21. Compliance Certificates and Opinions................................... 71
Section 10.22. Amendment of Affiliation Agreement..................................... 71
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of Indenture................................ 72
Section 11.02. Application of Trust Money............................................. 72
ARTICLE TWELVE
REDEMPTION
Section 12.01. Notices to the Trustee................................................. 73
Section 12.02. Selection of Notes To Be Redeemed...................................... 73
Section 12.03. Notice of Redemption................................................... 73
Section 12.04. Effect of Notice of Redemption......................................... 74
Section 12.05. Deposit of Redemption Price............................................ 74
Section 12.06. Notes Redeemed or Purchased in Part.................................... 74
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Exhibit A-1 - Form of Series A Note
Exhibit A-2 - Form of Series B Note
Exhibit B - Form of Legend for Book-Entry Securities
Exhibit C - Form of Certificate To Be Delivered in Connection with Transfers
Pursuant to Regulation S
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INDENTURE, dated as of August 12, 1998, between Telemundo Holdings,
Inc., a corporation incorporated under the laws of the State of Delaware
("Holdings"), as issuer, and Bank of Montreal Trust Company, as trustee (the
---------
"Trustee").
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RECITALS
Holdings has duly authorized the creation of an issue of (i) 11 1/2%
Senior Discount Notes Due 2008, Series A (the "Initial Notes"), and (ii) 11 1/2%
-------------
Senior Discount Notes Due 2008, Series B, to be issued in exchange for the
Initial Notes pursuant to the Registration Rights Agreement (the "Exchange
--------
Notes" and, together with the Initial Notes, the "Notes", treated as a single
----- -----
class of securities under this Indenture), of substantially the tenor and amount
hereinafter set forth, and to provide therefor Holdings has duly authorized the
execution and delivery of this Indenture.
All things necessary have been done to make the Notes, when executed
by Holdings, and authenticated and delivered hereunder and duly issued by
Holdings, the valid obligations of Holdings and to make this Indenture a valid
agreement of each of Holdings and the Trustee in accordance with the terms
hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders (as hereinafter defined) of the Notes, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
-----------
"Accreted Value" means, as of any date (the "Specified Date"), the
-------------- --------------
amount provided below for each $1,000 principal amount at maturity of Notes:
(i) if the Specified Date occurs on one of the following dates
(each, a "Semi-Annual Accrual Date"), the Accreted Value will equal the
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amount set forth below for such Semi-Annual Accrual Date:
SEMI-ANNUAL ACCRUAL DATE ACCRETED VALUE
------------------------ --------------
February 15, 1999................................... $ 604.61
August 15, 1999..................................... $ 639.38
February 15, 2000................................... $ 676.14
August 15, 2000..................................... $ 715.02
February 15, 2001................................... $ 756.13
August 15, 2001..................................... $ 799.61
February 15, 2002................................... $ 845.59
August 15, 2002..................................... $ 894.21
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February 15, 2003................................... $ 945.63
August 15, 2003..................................... $1,000.00
(ii) if the Specified Date occurs before the first Semi-Annual
Accrual Date, the Accreted Value will equal the sum of (a) the original
issue price of a Note and (b) an amount equal to the product of (1) the
Accreted Value for the first Semi-Annual Accrual Date less such original
issue price multiplied by (2) a fraction, the numerator of which is the
number of days from the Issue Date to the Specified Date, using a 360-day
year of twelve 30-day months, and the denominator of which is the number of
days elapsed from the Issue Date to the first Semi-Annual Accrual Date,
using a 360-day year of twelve 30-day months;
(iii) if the Specified Date occurs between two Semi-Annual Accrual
Dates, the Accreted Value will equal the sum of (a) the Accreted Value for
the Semi-Annual Accrual Date immediately preceding such Specified Date and
(b) an amount equal to the product of (1) the Accreted Value for the
immediately following Semi-Annual Accrual Date less the Accreted Value for
the immediately preceding Semi-Annual Accrual Date multiplied by (2) a
fraction, the numerator of which is the number of days from the immediately
preceding Semi-Annual Accrual Date to the Specified Date, using a 360-day
year of twelve 30-day months, and the denominator of which is 180; or
(iv) if the Specified Date occurs after the last Semi-Annual Accrual
Date, the Accreted Value will equal $1,000.
"Acquired Indebtedness" means Indebtedness of any Person existing at
---------------------
the time such Person becomes a Restricted Subsidiary or at the time it merges or
consolidates with Holdings or any Restricted Subsidiary or assumed in connection
with the acquisition of assets from such Person and not Incurred by such Person
in connection with, or in anticipation or contemplation of, such Person becoming
a Restricted Subsidiary or such merger, consolidation or acquisition.
"Acquired Person" means, with respect to any specified Person, any
---------------
other Person which merges with or into or becomes a Subsidiary of such specified
Person.
"Acquisition" means (i) any capital contribution (by means of
-----------
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by Holdings or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Capital Stock of any other Person by Holdings or any Restricted Subsidiary, in
either case, pursuant to which such Person shall become a Restricted Subsidiary
or shall be consolidated, merged with or into Holdings or any Restricted
Subsidiary or (ii) any acquisition by Holdings or any Restricted Subsidiary of
the assets of any Person which constitute substantially all of an operating unit
or division or a line of business of such Person or which is otherwise outside
of the ordinary course of business.
"Additional Assets" means (i) any property or assets (other than
-----------------
Indebtedness and Capital Stock) in a Related Business, (ii) the Capital Stock of
a Person that becomes a Restricted Subsidiary as a result of the acquisition of
such Capital Stock by Holdings or another Restricted Subsidiary or (iii) Capital
Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary; provided, however, that any such Restricted Subsidiary
described in clause (ii) or (iii) above is primarily engaged in a Related
Business.
"Additional Interest" has the meaning set forth in the Registration
-------------------
Rights Agreement.
-3-
"Affiliate" of any specified Person means any other Person, directly
---------
or indirectly, Controlling or Controlled by or under direct or indirect common
Control with such specified Person.
"Affiliation Agreement" means the Umbrella Affiliation Agreement, the
---------------------
Cable Payments Agreement and the Station Affiliation Agreements, each as amended
from time to time in accordance with Section 10.22 hereof.
"amend" means amend, supplement, modify, restate, amend and restate,
-----
renew or extend, including successively; and "amended," "amending" and
------- --------
"amendment" have meanings correlative thereto.
----------
"Apollo" means Apollo Investment Fund III, L.P., Apollo Advisors II,
------
L.P. and Apollo Management, L.P. (the "Original Apollo Entities") and any Person
------------------------
with respect to which the investment decisions, decisions as to the exercise of
voting or consensual rights and other material decisions are ultimately
controlled by substantially the same individual or individuals at the time
controlling such decisions as to any of the Original Apollo Entities (including,
without limitation, such individual or individuals themselves).
"Asset Disposition" means any sale, lease, transfer or other
-----------------
disposition (or series of related sales, leases, transfers or dispositions) by
Holdings or any Restricted Subsidiary, including any disposition by means of a
merger or consolidation (each referred to for the purposes of this definition as
a "disposition"), of (i) any shares of Capital Stock of a Restricted Subsidiary
-----------
(other than directors' qualifying shares or shares required by applicable law to
be held by a Person other than Holdings or a Restricted Subsidiary), (ii) all or
substantially all the assets (other than Capital Stock of an Unrestricted
Subsidiary) of any division or line of business of Holdings or any Restricted
Subsidiary, or (iii) any other assets (other than Capital Stock of an
Unrestricted Subsidiary) of Holdings or any Restricted Subsidiary outside of the
ordinary course of business of Holdings or such Restricted Subsidiary (other
than, in the case of (i), (ii) and (iii) above, (x) a disposition by a
Restricted Subsidiary to Holdings or by Holdings or a Restricted Subsidiary to a
Restricted Subsidiary and (y) for purposes of Section 10.15 only, a disposition
that constitutes a Restricted Payment permitted by Section 10.13 or a
disposition specifically excepted from the definition of Restricted Payments);
provided, however, that Asset Disposition shall not include (a) a transaction or
series of related transactions for which Holdings or its Restricted Subsidiaries
receive aggregate consideration less than or equal to $1.0 million, (b) the
sale, lease, conveyance, disposition or other transfer of all or substantially
all of the assets of Holdings as permitted under Section 8.01; (c) Asset Swaps
permitted under Section 10.18; (d) a disposition of Temporary Cash Investments;
(e) the Network Sale; and (f) any transaction constituting a Change of Control.
"Asset Swap" means the execution of a definitive agreement, subject
----------
only to governmental approval and other customary closing conditions, that
Holdings in good faith believes will be satisfied, for a substantially
concurrent purchase and sale, or exchange, of Productive Assets between Holdings
or any Restricted Subsidiary and another Person or group of Persons; provided
that any amendment to or waiver of any closing condition which individually or
in the aggregate is material to the Asset Swap will be deemed to be a new Asset
Swap; provided, however, that the cash and other assets to be received by
Holdings or such Restricted Subsidiary which do not constitute Productive Assets
do not constitute more than 25% of the total consideration to be received by
Holdings or such Restricted Subsidiary in such Asset Swap.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
-----------------
as at the time of determination, the present value (discounted at the interest
rate borne by the Notes, compounded annually) of the total obligations of the
lessee for rental payments during the remaining term of the lease included in
such Sale/Leaseback Transaction (including any period for which such lease has
been extended) or until the earliest date on which the lessee may terminate such
lease without penalty.
-4-
"Average Life" means, as of the date of determination, with respect to
------------
any Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Bank Credit Agreement" means the Credit Agreement, dated as of August
---------------------
4, 1998 among Holdings, TLMD Acquisition Co., as borrower, Credit Suisse First
Boston, as administrative agent, collateral agent and issuing bank, Canadian
Imperial Bank of Commerce, as documentation agent, and the lenders party
thereto, together with the related documents thereto (including, without
limitation, any guarantees, agreements and security documents), in each case, as
such agreements, in whole or in part, may be amended, increased (but only so
long as such increase is permitted under the terms of this Indenture) or
Refinanced in whole or in part by one or more separate agreements.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code or any similar
--------------
federal or state law relating to bankruptcy, insolvency, receivership, winding-
up, liquidation, reorganization or relief of debtors or the law of any other
jurisdiction relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law.
"Bankruptcy Order" means any court order made in a proceeding pursuant
----------------
to or within the meaning of any Bankruptcy Law, containing an adjudication of
bankruptcy or insolvency, or providing for liquidation, receivership, winding-
up, dissolution, reorganization, or appointing a Custodian of a debtor or of all
or any substantial part of a debtor's property, or providing for the staying,
arrangement, adjustment or composition of indebtedness or other relief of a
debtor.
"Bastion" means Bastion Capital Fund, L.P., Bastion Partners L.P. and
-------
Bastion Management Corp. (the "Original Bastion Entities") and/or any other
-------------------------
Person with respect to which the investment decisions as to the exercise of
voting or consensual rights and other material decisions are ultimately
controlled by substantially the same individual or individuals at the time
controlling such decisions as to any of the Original Bastion Entities
(including, without limitation, such individual or individuals themselves.)
"Board of Directors" means the Board of Directors of Holdings or any
------------------
committee thereof duly authorized to act on behalf of such Board of Directors.
"Board Resolution" means a copy of a resolution certified by the
----------------
Secretary or an Assistant Secretary of Holdings to have been duly adopted by the
Board of Directors of Holdings and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means each day which is not a Legal Holiday.
------------
"Cable Payments Agreement" means the Memorandum of Agreement dated the
------------------------
Issue Date between the Network Company and Telemundo regarding certain cable
payments, as amended from time to time in accordance with Section 10.22 hereof.
"Capital Lease Obligations" means an obligation that is required to be
-------------------------
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due
-5-
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
-------------
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity and
excluding any Network Rights (as defined in the Stockholders Agreement).
"Change of Control" has the meaning given such term in Section 10.10
-----------------
hereof.
"Change of Control Offer" means an offer to purchase all outstanding
-----------------------
Notes pursuant to Section 10.10 hereof.
"Chicago Joint Venture Agreement" means the Amended and Restated
-------------------------------
Partnership Agreement of Video 44, dated as of February 26, 1996, by and among
Essaness Theatres Corporation, Telemundo of Chicago, Inc. and Video 44
Acquisition Corp., Inc., as in effect on the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Consolidated EBITDA" for any period means the sum of Consolidated Net
-------------------
Income plus the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Expense, (b) all income tax
expense of Holdings and the Restricted Subsidiaries, (c) depreciation expense,
(d) amortization expense, (e) Merger related expenses and (f) all other non-cash
items reducing such Consolidated Net Income (excluding any non-cash item to the
extent it represents an accrual of, or reserve for, cash disbursement for any
subsequent period) less all non-cash items increasing such Consolidated Net
Income (such amount calculated pursuant to this clause (f) not to be less than
zero), in each case for such period. Notwithstanding the foregoing, the
provision for taxes based on the income or profits of, and the depreciation and
amortization of, a Subsidiary of Holdings shall be added to Consolidated Net
Income to compute EBITDA only to the extent (and in the same proportion) that
the net income of such Subsidiary was included in calculating Consolidated Net
Income and only if a corresponding amount would be permitted at the date of
determination to be paid as a dividend to Holdings by such Subsidiary without
prior approval (that has not been obtained), pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees, orders, statutes,
rules and governmental regulations applicable to such Subsidiary or its
stockholders.
"Consolidated Interest Expense" means, for any period, the total
-----------------------------
interest expense, net of interest income, of Holdings and its consolidated
Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, plus, to the extent not included in such total interest
expense, and to the extent Incurred by Holdings or any Restricted Subsidiary,
(i) interest expense attributable to Capital Lease Obligations, (ii)
amortization of debt discount, (iii) capitalized interest, (iv) non-cash
interest expense, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (vi) net
costs associated with Hedging Obligations (including amortization of fees),
(vii) Preferred Stock dividends in respect of all Preferred Stock held by
Persons other than Holdings or a Restricted Subsidiary and (viii) interest
accruing on any Indebtedness of any other Person to the extent such Indebtedness
is guaranteed by Holdings or any Restricted Subsidiary minus, to the extent
included, (x) any amortization or write-off or deferred financing costs of
Holdings and the Restricted Subsidiaries during such period and (y) any charge
related to any penalty or premium paid in connection with Refinancing any
Indebtedness of Holdings or any Restricted Subsidiary prior to its Stated
Maturity.
-6-
"Consolidated Leverage Ratio" means the ratio of (a) the Total
---------------------------
Consolidated Indebtedness as of the date of calculation (the "Determination
-------------
Date") to (b) the Consolidated EBITDA for the most recent four consecutive
----
fiscal quarters for which financial information is available immediately
preceding such Determination Date (the "Measurement Period"). For purposes of
------------------
calculating Consolidated EBITDA for the Measurement Period immediately prior to
the relevant Determination Date, (I) any Person that is a Restricted Subsidiary
on the Determination Date (or would become a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such Consolidated EBITDA) will be deemed to have been a
Restricted Subsidiary at all times during such Measurement Period, (II) any
Person that is not a Restricted Subsidiary on such Determination Date (or would
cease to be a Restricted Subsidiary on such Determination Date in connection
with the transaction that requires the determination of such Consolidated
EBITDA) will be deemed not to have been a Restricted Subsidiary at any time
during such Measurement Period or after the end of such period and on or prior
to such Determination Date, and (III) if Holdings or any Restricted Subsidiary
shall have in any manner (x) acquired (through an Acquisition or the
commencement of activities constituting an operating business or asset) or (y)
disposed of (by way of an Asset Disposition or the Network Sale or the
termination or discontinuance of activities constituting such operating business
or asset) any operating business or asset during such Measurement Period or
after the end of such period and on or prior to such Determination Date, such
calculation will be made on a pro forma basis as if, in the case of an
Acquisition or the commencement of activities constituting such operating
business or asset, all such transactions had been consummated on the first day
of such Measurement Period and, in the case of an Asset Disposition or the
Network Sale or termination or discontinuance of activities constituting such
operating business or asset, all such transactions had been consummated prior to
the first day of such Measurement Period (it being understood that in
calculating Consolidated EBITDA the exclusions set forth in clauses (i) through
(vi) of the definition of Consolidated Net Income shall apply to an Acquired
Person as if it were a Restricted Subsidiary).
"Consolidated Net Income" means, for any period, the net income of
-----------------------
Holdings and its consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided, however, that there shall
not be included in such Consolidated Net Income: (i) any net income of any
Person if such Person is not a Restricted Subsidiary, except that (A) subject to
the exclusion contained in clause (iv) below, Holdings' equity in the net income
of any such Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such Person
during such period (or, in the case of Video 44, in respect of such period
pursuant to the Chicago Joint Venture Agreement) to Holdings or a Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution paid to a Restricted Subsidiary, to the
limitations contained in clause (iii) below) and (B) Holdings' equity in a net
loss of any such Person for such period shall be included in determining such
Consolidated Net Income up to the aggregate amount invested by Holdings or any
Restricted Subsidiary in such Person; (ii) any net income (or loss) of any
Person acquired by Holdings or a Subsidiary of Holdings in a pooling of
interests transaction for any period prior to the date of such acquisition;
(iii) any net income of any Restricted Subsidiary to the extent that such
Restricted Subsidiary is subject to restrictions (other than the Permitted
Restrictions), directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to
Holdings, except that (A) subject to the exclusion contained in clause (iv)
below, Holdings' equity in the net income of any such Restricted Subsidiary for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Restricted Subsidiary
during such period to Holdings or another Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other distribution
paid to another Restricted Subsidiary, to the limitation contained in this
clause) and (B) Holdings' equity in a net loss of any such Restricted Subsidiary
for such period shall be included in determining such Consolidated Net Income;
(iv) any gain or loss realized upon the sale or other disposition of any assets
of Holdings or its consolidated Subsidiaries (including pursuant to any sale-
and-leaseback arrangement) which is not sold or otherwise disposed of in the
ordinary course of business and any gain or loss realized upon
-7-
the sale or other disposition of any Capital Stock of any Person; (v)
extraordinary gains or losses; and (vi) the cumulative effect of a change in
accounting principles.
"Control" means the possession, directly or indirectly, of the power
-------
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" have meanings correlative thereto.
----------- ----------
"Corporate Trust Office" means the principal office of the Trustee at
----------------------
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at any other time
at such other address as the Trustee may designate from time to time by notice
to Holdings and the Noteholders.
"Cumulative Consolidated Interest Expense" means, as at any date of
----------------------------------------
determination, Consolidated Interest Expense during the period (taken as a
single accounting period) commencing on the Issue Date and ending on the last
day of the most recent fiscal quarter immediately preceding the date of
determination for which consolidated financial information of Holdings is
available.
"Cumulative EBITDA" means, as at any date of determination, the
-----------------
positive cumulative Consolidated EBITDA realized during the period (taken as a
single accounting period) commencing on the Issue Date and ending on the last
day of the most recent fiscal quarter immediately preceding the date of
determination for which consolidated financial information of Holdings is
available or, if such cumulative Consolidated EBITDA for such period is
negative, the negative amount by which cumulative Consolidated EBITDA is less
than zero.
"Currency Agreement" means with respect to any Person any foreign
------------------
exchange contract, currency swap agreement or other similar agreement to which
such Person is a party or a beneficiary.
"Custodian" means any receiver, interim receiver, receiver and
---------
manager, receiver-manager, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
-------
or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
----------
their respective successors.
"Disqualified Stock" means, with respect to any Person, any Capital
------------------
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Disqualified Stock, or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the 91st day following the
Stated Maturity of the Notes; provided, however, that any Capital Stock that
would not constitute Disqualified Stock but for provisions thereof giving
holders thereof the right to require such Person to redeem such Capital Stock
upon the occurrence of an "asset sale" or "change of control" occurring prior to
the Stated Maturity of the Notes shall not constitute Disqualified Stock if the
"asset sale" or "change of control" provisions applicable to such Capital Stock
are not more favorable to the holders of such Capital Stock than the provisions
of Section 10.10 and Section 10.15.
-8-
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Exchange Notes" means the 11 1/2% Senior Discount Notes Due 2008,
--------------
Series B, to be issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement.
"Exchange Offer" has the meaning specified in the Registration Rights
--------------
Agreement.
"GAAP" means generally accepted accounting principles in the United
----
States of America as in effect from time to time applied on a consistent basis
for all applicable periods, including those set forth (i) in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants, (ii) in statements and pronouncements of the
Financial Accounting Standards Board, (iii) in such other statements by such
other entity as approved by a significant segment of the accounting profession,
and (iv) in the rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in periodic
reports required to be filed pursuant to Section 13 of the Exchange Act,
including opinions and pronouncements in staff accounting bulletins and similar
written statements from the accounting staff of the SEC.
"Global Notes" means one or more permanent global notes in registered
------------
form representing the aggregate principal amount of Notes sold in reliance on
Rule 144A and Regulation S under the Securities Act.
"guarantee" means any obligation, contingent or otherwise, of any
--------
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness of such Person (whether arising by virtue of agreements to
keep-well, to purchase assets, goods, securities or services, to take-or-pay or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, however, that the term "guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "guarantee" used as a verb (and the participle formed
therefrom) shall have a correlative meaning. The term "guarantor" shall mean
any Person guaranteeing any obligation.
"Hedging Obligations" of any Person means the obligations of such
-------------------
Person determined in accordance with GAAP pursuant to any Interest Rate
Agreement or Currency Agreement.
"Holder" or "Noteholder" means the Person in whose name a Note is
------ ----------
registered on the Registrar's books.
"Holdings" means the person named as "Holdings" in the first paragraph
--------
of this Indenture, until a successor person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Holdings" shall
mean such successor person.
"Holdings Request" or "Holdings Order" means a written request or
---------------- --------------
order signed in the name of Holdings by any one of its Chairman of the Board,
its Vice-Chairman, its Chief Executive Officer, its President or a Vice
President, and by its Secretary or an Assistant Secretary or its Treasurer or an
Assistant Treasurer, and delivered to the Trustee.
"Incur" means issue, assume, guarantee, incur or otherwise become
-----
liable for Indebtedness; provided, however, that any Indebtedness of a Person
existing at the time such Person becomes a Subsidiary
-9-
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be Incurred by such Subsidiary at the time it becomes a Subsidiary; and
"Incurrence" has a correlative meaning thereto. Neither the accrual of interest
nor the accretion of principal of a non-interest bearing or other discount
security shall be deemed the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
------------
determination (without duplication), (i) the principal of and premium (if any)
in respect of (A) indebtedness of such Person for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable; (ii) all Capital
Lease Obligations of such Person and all Attributable Debt in respect of
Sale/Leaseback Transactions entered into by such Person; (iii) all obligations
of such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (iv) all
obligations of such Person for the reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit transaction (other than
obligations with respect to letters of credit securing obligations (other than
obligations described in clauses (i) through (iii) above) entered into in the
ordinary course of business of such Person to the extent such letters of credit
are not drawn upon, or, if and to the extent drawn upon, such drawing is
reimbursed no later than the tenth Business Day following receipt by such Person
of a demand for reimbursement following payment on the letter of credit); (v)
the amount of all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock or, with respect to any
Subsidiary of such Person, any Preferred Stock (but excluding, in each case, any
accrued dividends); (vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons for the payment
of which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
guarantee (exclusive of endorsements of negotiable instruments in the ordinary
course of business) but only to the extent of the lesser of the amount of such
obligations and the maximum liability of such Person for the payment of such
obligations; (vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property or asset of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; and (viii) to the
extent not otherwise included in this definition, Hedging Obligations of such
Person (it being understood that Indebtedness shall not include ordinary course
payment obligations (not described in the foregoing clauses (i) through (viii))
pursuant to a Local Marketing Agreement). For purposes of the preceding
sentence, the maximum fixed repurchase price of any Disqualified Stock that does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Stock as if such Disqualified Stock were repurchased
on any date on which Indebtedness shall be required to be determined pursuant to
this Indenture; provided, however, that if such Disqualified Stock is not then
permitted to be repurchased, the repurchase price shall be the book value of
such Disqualified Stock. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such
date; provided, however, that for purposes of calculating the amount of any non-
interest bearing or other discount security, such indebtedness shall be deemed
to be the principal amount thereof that would be shown on the balance sheet of
the issuer dated such date prepared in accordance with GAAP.
"Indenture" means this instrument as originally executed (including
---------
all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
-10-
"Indenture Obligations" means the obligations of Holdings under this
---------------------
Indenture or under the Notes, to pay principal of, premium, if any, and interest
on the Notes when due and payable, whether at maturity, by acceleration, call
for redemption or repurchase or otherwise, and all other amounts due or to
become due under or in connection with this Indenture or the Notes and the
performance of all other obligations to the Trustee (including, but not limited
to, payment of all amounts due the Trustee under Section 6.07 hereof) and the
Holders of the Notes under this Indenture and the Notes, according to the terms
thereof.
"Initial Notes" means the 11 1/2% Senior Discount Notes Due 2008,
-------------
Series A, of Holdings.
"Initial Purchasers" means Credit Suisse First Boston Corporation and
------------------
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.
"interest" means, with respect to the Notes, the sum of any cash
--------
interest and any Additional Interest on the Notes.
"Interest Payment Date" means, when used with respect to any Note, the
---------------------
Stated Maturity of an installment of interest on such Note, as set forth in such
Note.
"Interest Rate Agreement" means any interest rate swap agreement,
-----------------------
interest rate cap agreement or other financial agreement or arrangement designed
solely to protect Holdings or any Restricted Subsidiary against fluctuations in
interest rates.
"Investment" in any Person means any direct or indirect advance, loan
----------
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the Person making the
advance or loan) or other extensions of credit (including by way of guarantee or
similar arrangement or negotiable instruments held for collection) or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any
purchase or acquisition of Capital Stock, Indebtedness or other similar
instruments issued by such Person.
"Issue Date" means August 12, 1998, the date of original issuance of
----------
the Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
-------------
institutions in the State of New York are authorized or required by law to
close. If a payment date is a Legal Holiday, payment shall be made on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record
shall not be affected.
"Liberty" means Liberty Media Corporation and its successors, Tele-
-------
Communications Inc. and its successors, and their respective Affiliates.
"Lien" means any mortgage, pledge, security interest, encumbrance,
----
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Local Marketing Agreement" means a local marketing arrangement, sale
-------------------------
agreement, time brokerage agreement, management agreement or similar arrangement
pursuant to which a Person: (a) obtains the right to sell at least a majority
of the advertising inventory of a television station on behalf of a third party;
(b) purchases at least a majority of the air time of a television station to
exhibit programming and sell advertising time; (c) manages the selling
operations of a television station with respect to at least a majority of the
advertis-
-11-
ing inventory of such station; (d) manages the acquisition of programming for a
television station; (e) acts as a program consultant for a television station;
or (f) manages the operation of a television station generally.
"Maturity Date" means, with respect to any Note, the date specified in
-------------
such Note as the fixed date on which the principal of such Note is due and
payable.
"Merger" means the merger of TLMD Acquisition Co., a wholly owned
------
Subsidiary of Holdings, with and into Telemundo, with Telemundo surviving the
merger and becoming a wholly owned Subsidiary of Holdings.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"Net Available Cash" from an Asset Disposition means cash payments
------------------
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other
noncash form) in each case net of (i) all legal, title and recording tax
expenses, brokerage commissions, underwriting discounts or commissions or sales
commissions and other reasonable fees and expenses (including, without
limitation, fees and expenses of counsel, accountants and investment bankers)
related to such Asset Disposition or converting to cash any other proceeds
received, and any relocation and severance expenses as a result thereof, and all
federal, state, provincial, foreign and local taxes attributable to such Asset
Disposition, (ii) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition or made in order to obtain a necessary
consent to such Asset Disposition or to comply with applicable law, (iii) all
distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition
and (iv) appropriate amounts provided by the seller as a reserve, in accordance
with GAAP, against any liabilities associated with the property or other assets
disposed of in such Asset Disposition and retained by Holdings or any Restricted
Subsidiary after such Asset Disposition, including, without limitation, pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Disposition. Further, with respect to an Asset
Disposition by a Subsidiary which is not a Wholly Owned Restricted Subsidiary,
Net Available Cash shall be reduced pro rata for the portion of the equity of
such Subsidiary which is not owned by Holdings.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
-----------------
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees and expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Network Company" means Telemundo Network Group LLC, a Delaware
---------------
limited liability company, and its successors.
"Network Sale" means the sale by Telemundo of its network operations
------------
to the Network Company pursuant to the Network Sale Agreement.
"Network Sale Agreement" means the Purchase Agreement dated as of the
----------------------
Issue Date among Telemundo, Telemundo Network, Inc. and the Network Company.
"Non-U.S. Person" has the meaning assigned to such term in Regulation
---------------
S.
-12-
"Notes" has the meaning specified in the recitals of this Indenture.
-----
"Offering Circular" means the Offering Circular, dated August 7, 1998,
-----------------
relating to, among other things, the offering and placement of the Initial
Notes.
"Officer" means, with respect to Holdings, the Chairman of the Board,
-------
a Vice Chairman, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer, a Vice President, the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer.
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board, a Vice Chairman, the President, the Chief Executive Officer, the
Chief Operating Officer, the Chief Financial Officer or a Vice President, and by
the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer,
of Holdings, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who may be
------------------
counsel for Holdings or the Trustee, and who shall be reasonably acceptable to
the Trustee.
"Outstanding" means, as of the date of determination, all Notes
-----------
theretofore authenticated and delivered under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than Holdings or any Affiliate thereof) in trust or
set aside and segregated in trust by Holdings or any Affiliate thereof (if
Holdings or such Affiliate shall act as Paying Agent) for the Holders of
such Notes; provided, however, that if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) Notes with respect to which Holdings has effected defeasance or
covenant defeasance as provided in Article Four, to the extent provided in
Sections 4.02 and 4.03 hereof; and
(d) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Notes are held by a bona fide purchaser
in whose hands the Notes are valid obligations of Holdings;
provided, however, that in determining whether the Holders of the requisite
principal amount at maturity of Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by Holdings or any other obligor upon the Notes or any Affiliate of
Holdings or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes that a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Holdings shall notify the
Trustee, in writing, when it repurchases or otherwise acquires Notes and of the
aggregate principal amount at maturity of such Notes so repurchased or otherwise
acquired. Notes so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is not
Holdings or any other obligor upon the Notes or any Affiliate of Holdings or
such other obligor. If the Paying Agent holds, in its capacity as
-13-
such, on any Maturity Date or Redemption Date money sufficient to pay all
accrued interest and principal with respect to such Notes payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant to
the terms of this Indenture, then on and after that date such Notes cease to be
Outstanding and interest on them ceases to accrue. Notes may also cease to be
Outstanding to the extent expressly provided in Article Four.
"Permitted Holders" means (i) Apollo, (ii) Bastion, (iii) Liberty,
-----------------
(iv) Sony Pictures and (v) any transferee of the shares of Capital Stock of
Holdings (or any rights to purchase any such Capital Stock) owned by Station
Partners on the date of this Indenture in accordance with the express provisions
of the Stockholders Agreement.
"Permitted Investment" means (i) any Investment in Holdings or any
--------------------
Restricted Subsidiary or a Person that will, upon the making of such Investment,
become a Restricted Subsidiary; provided, however, that the primary business of
such Person is a Related Business; (ii) an Investment in any Person, if as a
result of such Investment such other Person is merged or consolidated with or
into, or transfers or conveys all or substantially all its assets to, Holdings
or any Restricted Subsidiary; provided, however, that such Person's primary
business is a Related Business; (iii) Temporary Cash Investments; (iv)
receivables owing to Holdings or any Restricted Subsidiary, if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms; provided, however, that such trade terms
may include such concessionary trade terms as Holdings or any such Restricted
Subsidiary deems reasonable under the circumstances; (v) payroll, travel and
similar advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made
in the ordinary course of business; (vi) loans or advances to officers and
employees made in the ordinary course of business consistent with past practices
of Holdings or such Restricted Subsidiary; (vii) stock, obligations or
securities received in settlement of debts created in the ordinary course of
business and owing to Holdings or any Restricted Subsidiary or in satisfaction
of judgments or pursuant to a plan of reorganization or similar arrangement upon
the bankruptcy or insolvency of trade debtors or customers of Holdings or any
Restricted Subsidiary or upon the foreclosure, perfection or enforcement of a
Lien in favor of Holdings or any Restricted Subsidiary that arose in the
ordinary course of business of Holdings or such Restricted Subsidiary; (viii) an
Investment in any Person to the extent such Investment represents the non-cash
portion of the consideration received for an Asset Disposition as permitted
pursuant to Section 10.15; (ix) an Investment in a joint venture, any Person
engaged in a Related Business or any Unrestricted Subsidiary; provided that the
aggregate amount of all such Investments outstanding at any time shall not
exceed $35 million; (x) Hedging Obligations entered into in compliance with the
terms of this Indenture; (xi) an Investment held by any Person on the date such
Person becomes a Restricted Subsidiary so long as such Investments were not made
in contemplation of such acquisition; (xii) an Investment in any Person with
which Holdings or any Restricted Subsidiary has entered into, or has an
agreement that, subject to consummation of such agreement, entitles Holdings or
any Restricted Subsidiary to enter into a Local Marketing Agreement and in any
Person created by such a Local Market Agreement; provided that the aggregate
amount of all such Investments, together with the aggregate amount of
Indebtedness Incurred pursuant to clause (b)(12) of Section 10.11, shall not
exceed $10 million at any time outstanding; (xiii) any Investment made with
Qualified Stock or acquired as a capital contribution to Holdings; and (xiv) any
Investment required by Section 3.5(a) of the Chicago Joint Venture Agreement.
"Permitted Liens" means, with respect to any Person, (a) Liens
---------------
incurred or pledges or deposits by such Person under workers' compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits or cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, per-
-14-
formance bonds and other obligations of a like nature incurred in the ordinary
course of business, or deposits as security for contested taxes or import duties
or for the payment of rent, in each case incurred in the ordinary course of
business; (b) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in good
faith by appropriate proceedings; (c) Liens arising out of judgments or awards
against such Person with respect to which such Person shall then be proceeding
with an appeal or other proceedings for review or time for appeal has not yet
expired; (d) Liens for taxes, assessments or other governmental charges not yet
subject to penalties for non-payment or which are being contested in good faith
by appropriate proceedings; (e) Liens in favor of issuers of surety bonds or
letters of credit issued pursuant to the request of and for the account of such
Person in the ordinary course of its business; provided, however, that such
letters of credit do not constitute Indebtedness; (f) survey exceptions,
encumbrances, easements or reservations of or rights of others for licenses,
rights of way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real
properties or Liens incidental to the conduct of the business of such Person or
to the ownership of its properties which were not incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person; (g) Liens securing an Interest Rate Agreement so long
as the related Indebtedness is, and is permitted under this Indenture to be,
secured by a Lien on the same property securing the Interest Rate Agreement; (h)
Liens securing Currency Agreements so long as the related Indebtedness is, and
is permitted under this Indenture to be, secured by a Lien on the same property
securing such Currency Agreement; (i) Liens in favor of Holdings and its Wholly
Owned Restricted Subsidiaries; (j) Liens relating to any license of intellectual
property entered into in the ordinary course of business (including programming
agreements); (k) Liens pursuant to Local Marketing Agreements and not securing
any Indebtedness; (l) minor imperfections of, or encumbrances on, title that do
not impair the value of property for its intended use; and (m) Liens, leases and
subleases of real property which do not interfere with the ordinary conduct of
the business of such Person, and which are made on customary and usual terms
applicable to similar properties.
"Permitted Restrictions" means (i) the encumbrances or restrictions
----------------------
contained in the Bank Credit Agreement as in effect on the date of this
Indenture or as thereafter amended in a manner no less favorable to the Holders
in any material respect as determined in good faith by the Board of Directors of
Holdings and (ii) any encumbrance or restriction contained in any other
agreement governing Indebtedness of any Restricted Subsidiary permitted under
this Indenture which encumbrance or restriction does not prohibit (except upon a
default or event of default thereunder) the payment of dividends in an amount
sufficient to cover scheduled payments of cash interest on the Notes.
"Person" means any individual, corporation, limited liability company,
------
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Physical Notes" means any certificate for the Notes registered in the
--------------
name of the Holder thereof and not subject to the book-entry provisions of
Section 3.16.
"Preferred Stock," as applied to the Capital Stock of any corporation,
---------------
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of a Note means the principal of the Note plus the
---------
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
-15-
"Private Exchange Notes" has the meaning specified in the Registration
----------------------
Rights Agreement.
"Private Placement Legend" shall mean the first paragraph of the
------------------------
legend initially set forth in the Notes in the form set forth in Exhibit A-1.
-----------
"Productive Assets" means assets used or useful in the ownership or
-----------------
operation of a Related Business of Holdings or any Restricted Subsidiary,
including any and all licenses, franchises and assets related thereto.
"Public Equity Offering" means an underwritten public offering of
----------------------
common stock of Holdings pursuant to an effective registration statement under
the Securities Act that yields not less than $25.0 million in gross proceeds,
which for purposes of the provisions described under Section 2 of the Notes only
shall be a primary offering for the account of Holdings.
"Purchase Money Indebtedness" means any Indebtedness incurred in the
---------------------------
ordinary course of business by a Person to finance the cost (including the cost
of construction) of an item of assets, the amount of which Indebtedness does not
exceed the sum of (i) 100% of the lesser of such cost or the fair market value
of such assets, as determined in good faith by the Board of Directors of
Holdings, and (ii) reasonable fees and expenses of such Person incurred in
connection therewith.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
----------------------------- ---
specified in Rule 144A.
"Qualified Stock" means any Capital Stock of Holdings that is not
---------------
Disqualified Stock.
"redeem" means redeem, repurchase, defease or otherwise acquire or
------
retire for value; and "redemption" and "redeemed" have correlative meanings
thereto.
"Redemption Date" means, with respect to any Note or part thereof to
---------------
be redeemed, the date fixed by Holdings for such redemption pursuant to this
Indenture and the Notes.
"Redemption Price" means, with respect to any Note or part thereof to
----------------
be redeemed, the price fixed for such redemption pursuant to the terms of this
Indenture and the Notes, plus accrued and unpaid interest thereon, if any, to
the Redemption Date.
"Refinance" means refinance, renew, extend, replace, defease or
---------
refund, in whole or in part, including successively; and "Refinancing" and
-----------
"Refinanced" have correlative meanings thereto.
-----------
"Refinancing Indebtedness" means Indebtedness that Refinances any
------------------------
Indebtedness of Holdings or any Restricted Subsidiary existing on the Issue Date
or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (ii) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced and (iii) such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; provided, further,
however, that Refinancing Indebtedness shall not include (x) Indebtedness of a
Restricted Subsidiary that Refinances Indebtedness of Hold-
-16-
ings or (y) Indebtedness of Holdings or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated as of the Issue Date between Holdings and the Initial
Purchasers, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"Regular Record Date" means the record date specified on the face of
-------------------
the Notes.
"Regulation S" means Regulation S under the Securities Act (including
------------
any successor regulation thereto), as it may be amended from time to time.
"Regulation S Note" means a Physical Note issued pursuant to Section
-----------------
3.17 in transfers in accordance with Regulation S.
"Related Business" means any business related, ancillary or
----------------
complementary to the businesses of Holdings, Telemundo or any of its
Subsidiaries or the Network Company on the Issue Date.
"Responsible Officer" means, when used with respect to the Trustee,
-------------------
any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary or
Assistant Treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge and familiarity with the
particular subject.
"Restricted Note" means a Note that constitutes a "restricted
---------------
security" within the meaning of Rule 144(a)(3) under the Securities Act or a
Regulation S Note; provided, however, that the Trustee shall be entitled to
request and conclusively rely on an Opinion of Counsel with respect to whether
any Note constitutes a Restricted Note.
"Restricted Payment" with respect to any Person means (i) the
------------------
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such Person), other than dividends or
distributions payable solely in Qualified Stock and dividends or distributions
payable to Holdings or a Restricted Subsidiary, and other than pro rata
dividends or other distributions made by a Subsidiary that is not a Wholly Owned
Subsidiary to minority stockholders (or owners of an equivalent interest in the
case of a Subsidiary that is an entity other than a corporation), (ii) the
purchase, redemption or other acquisition or retirement for value of any Capital
Stock of Holdings held by any Person or of any Capital Stock of a Restricted
Subsidiary held by any Affiliate of Holdings (other than a Restricted
Subsidiary), including the exercise of any option to exchange any Capital Stock
(other than into Qualified Stock), (iii) with respect to Holdings, the purchase,
repurchase, redemption, defeasance or other acquisition or retirement for value,
prior to scheduled maturity, scheduled repayment or scheduled sinking fund
payment of any Subordinated Obligations (other than the purchase, repurchase or
other acquisition of Subordinated Obligations purchased in anticipation of
satisfying of a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of acquisition), or (iv)
the making of any Investment in any Person (other than a Permitted Investment),
including by designation of any Subsidiary as an Unrestricted Subsidiary.
-17-
"Restricted Subsidiary" means any Subsidiary of Holdings that is not
---------------------
an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act (including any
---------
successor regulation thereto), as it may be amended from time to time.
"Sale/Leaseback Transaction" means an arrangement relating to property
--------------------------
now owned or hereafter acquired whereby Holdings or a Restricted Subsidiary
transfers such property to a Person and Holdings or a Restricted Subsidiary
leases it from such Person.
"SEC" means the Securities and Exchange Commission.
---
"Secured Indebtedness" means any Indebtedness of Holdings secured by a
--------------------
Lien.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated by the SEC thereunder.
"Sharing Agreement" means the agreement expected to be entered into
-----------------
between Holdings and the Network Company, pursuant to which they will share
certain facilities, equipment and administrative services, as in effect from
time to time.
"Significant Subsidiary" means any Restricted Subsidiary that would be
----------------------
a "Significant Subsidiary" of Holdings within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Sony Pictures" means Sony Pictures Entertainment Inc. and its
-------------
successors, Sony Corporation of America and its successors, and their respective
Affiliates.
"Special Record Date" means, with respect to the payment of any
-------------------
Defaulted Interest, a date fixed by the Trustee pursuant to Section 3.07 hereof.
"Stated Maturity" means, with respect to any security, the date
---------------
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Station Affiliation Agreements" means the several Station Affiliation
------------------------------
Agreements dated the Issue Date between Telemundo Network Group LLC and certain
Subsidiaries of Telemundo and any other agreement in substantially the same form
with respect to future television stations of Telemundo or any Restricted
Subsidiary, each as amended from time to time in accordance with Section 10.22
hereof.
"Stockholders Agreement" means the Agreement dated as of the Issue
----------------------
Date among Holdings, Apollo, Bastion, Station Partners, Liberty and Sony
Pictures, as in effect on such date.
"Subordinated Obligation" means any Indebtedness of Holdings (whether
-----------------------
outstanding on the Issue Date or thereafter incurred) which is subordinate or
junior in right of payment to the Notes pursuant to a written agreement to that
effect.
-18-
"Subsidiary" means, in respect of any Person, any corporation,
----------
association, limited liability company, limited or general partnership or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person, (ii) such Person and one or more
Subsidiaries of such Person, or (iii) one or more Subsidiaries of such Person.
"S&P" means Standard & Poor's Ratings Group.
---
"Telemundo" means Telemundo Group, Inc., a Delaware corporation.
---------
"Temporary Cash Investments" means any of the following: (i) any
--------------------------
investment in direct obligations of the United States of America or any agency
thereof or obligations guaranteed by the United States of America or any agency
thereof; (ii) investments in time deposit accounts, demand deposits, Eurodollar
deposits, certificates of deposit and money market deposits maturing within 365
days of the date of acquisition thereof issued by a bank or trust company which
is organized under the laws of the United States of America, any state thereof
or any foreign country recognized by the United States, and which bank or trust
company has capital, surplus and undivided profits aggregating in excess of
$50,000,000 (or the foreign currency equivalent thereof) or any money-market
fund sponsored by a registered broker dealer or mutual fund distributor; (iii)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (i) above entered into with a bank
meeting the qualifications described in clause (ii) above; (iv) investments in
commercial paper, maturing not more than 180 days after the date of acquisition,
issued by a corporation (other than an Affiliate of Holdings) organized and in
existence under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of which
any investment therein is made of "P-2" (or higher) according to Moody's or "A-
2" (or higher) according to S&P; (v) investments in securities with maturities
of six months or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A" by S&P
or "A" by Moody's; and (vi) investments in money market funds that make
investments in instruments of the type described in clauses (i) through (v)
above in accordance with the regulations of the SEC under the Investment Company
Act of 1940, as amended.
"Total Consolidated Indebtedness" means, as at any date of
-------------------------------
determination, an amount equal to the aggregate amount of all Indebtedness of
Holdings and the Restricted Subsidiaries outstanding on a consolidated basis as
of such date of determination, after giving pro forma effect to any Incurrence
of Indebtedness and the application of the proceeds, including the repayment of
any Indebtedness, therefrom giving rise to such determination.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
------------------- ---
as amended.
"Trustee" means the person named as the "Trustee" in the first
-------
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Umbrella Affiliation Agreement" means the Memorandum of Agreement
------------------------------
dated the Issue Date between the Network Company and Telemundo regarding, among
other things, revenue sharing, as amended from time to time in accordance with
Section 10.22 hereof.
-19-
"Unrestricted Notes" means one or more Notes that do not and are not
------------------
required to bear the Private Placement Legend in the form set forth in Exhibit
-------
A-1, including, without limitation but with certain exceptions, the Exchange
---
Notes.
"Unrestricted Subsidiary" means (i) any Subsidiary of Holdings that at
-----------------------
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors of Holdings in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. Video 44 shall be deemed to have been
designated an Unrestricted Subsidiary as of the Issue Date. The Board of
Directors of Holdings may designate any Subsidiary of Holdings (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or
Indebtedness of, or holds any Lien on any property of, Holdings or any other
Subsidiary of Holdings that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
10.13. The Board of Directors of Holdings may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that immediately
after giving effect to such designation (x) if such Unrestricted Subsidiary at
such time has Indebtedness, Holdings could Incur $1.00 of additional
Indebtedness under paragraph (a) of Section 10.11 and (y) no Default shall have
occurred and be continuing. Any such designation by the Board of Directors of
Holdings shall be evidenced by Holdings to the Trustee by promptly filing with
the Trustee a copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means securities that are (x) direct
---------------------------
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
"Video 44" means Video 44, an Illinois general partnership formed
--------
under the Chicago Joint Venture Agreement.
"Voting Stock" of a Person means all classes of Capital Stock or other
------------
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary all
----------------------------------
the Capital Stock of which (other than directors' qualifying shares and shares
held by other Persons to the extent such shares are required by applicable law
to be held by a Person other than Holdings or a Restricted Subsidiary) is owned
by Holdings or one or more Wholly Owned Restricted Subsidiaries.
-20-
Section 1.02. Other Definitions.
-----------------
Defined in
Term Section
---- -----------
"Act" 1.05
"Affiliate Transaction" 10.14
"Agent Member" 3.16
"Asset Disposition Offer" 10.15
"Asset Disposition Offer Purchase Date" 10.15
"Change of Control Date" 10.10
"Change of Control Payment Date" 10.10
"covenant defeasance" 4.03
"Defaulted Interest" 3.07
"Defeased Notes" 4.01
"Distribution Compliance Period" 3.17
"Event of Default" 5.01
"insolvent person" 4.04
"legal defeasance" 4.02
"Note Register" 3.05
"Other Debt" 10.15
"Paying Agent" or "Agent" 3.02
"Receipt Date" 10.15
"Registrar" 3.02
"Successor Company" 8.01
Incorporation by Reference
--------------------------
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference herein and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" means the Trustee; and
"obligor" on the Notes means Holdings or any other obligor on the
Notes.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by the Trust Indenture Act reference to another statute
or defined by SEC rule under the Trust Indenture Act have the meanings so
assigned to them.
-21-
Section 1.03. Rules of Construction.
---------------------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(e) all references to "$" or "dollars" refer to the lawful currency
of the United States of America; and
(f) the words "include," "included" and "including" as used herein
are deemed in each case to be followed by the phrase "without limitation."
Section 1.04. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of Holdings may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of Holdings stating that the information with respect to
such factual matters is in the possession of Holdings, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated, with
proper identification of each matter covered therein, and form one instrument.
Section 1.05. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more in-
-22-
struments of substantially similar tenor signed by such Holders in person or by
an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to
Holdings. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution (as provided below in
subsection (b) of this Section 1.05) of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01 hereof) conclusive in favor of the Trustee and
Holdings, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind every future Holder
of the same Note or the Holder of every Note issued upon the transfer thereof or
in exchange therefor or in lieu thereof to the same extent as the original
Holder, in respect of anything done, suffered or omitted to be done by the
Trustee, any Paying Agent or Holdings in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 1.06. Notices, etc., to the Trustee and Holdings.
------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by Holdings shall be sufficient for
every purpose hereunder if made, given, furnished or filed, in writing, to
or with the Trustee at Wall Street Plaza, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, or to any other address previously furnished in writing to the
Holders and Holdings by the Trustee; or
(b) Holdings by the Trustee or by any Holder shall be sufficient for
every purpose (except as otherwise expressly provided herein) hereunder if
in writing and mailed, first-class postage prepaid, to Holdings addressed
to it c/o Telemundo Group, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., or at any other address
previously furnished in writing to the Trustee by Holdings.
Section 1.07. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at the address of such Holder as
it appears in the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
when mailed to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually received by such
Holder. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the
-23-
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.08. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
Section 1.09. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein, the cross-reference table and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 1.10. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by Holdings shall bind
its successors and assigns, whether so expressed or not. All covenants and
agreements in this Indenture by the Trustee shall bind its successors and
assigns, whether so expressed or not.
Section 1.11. Separability Clause.
-------------------
In case any provision in this Indenture or in the Notes issued
pursuant hereto shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.12. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Notes issued pursuant hereto,
express or implied, shall give to any person (other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders) any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
-24-
Section 1.14. No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of, premium, if any, or
interest on any of the Notes or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of Holdings in this Indenture, or in any of the Notes or because of
the creation of any Indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer, director, employee, affiliate or controlling
person of Holdings or any successor Person or affiliate thereof. Each Holder,
by accepting the Notes, waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
Section 1.15. Independence of Covenants.
-------------------------
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default if such action is taken or condition exists.
Section 1.16. Exhibits.
--------
All exhibits attached hereto are by this reference made a part hereof
with the same effect as if herein set forth in full.
Section 1.17. Counterparts.
------------
This Indenture may be executed in any number of counterparts and by
telecopier, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 1.18. Duplicate Originals.
-------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
ARTICLE TWO
NOTE FORMS
Section 2.01. Form and Dating.
---------------
The Notes and the Trustee's certificate of authentication with respect
thereto shall be in substantially the forms set forth, or referenced, in Exhibit
-------
A-1 and Exhibit A-2, respectively, annexed hereto, with such appropriate
--- -----------
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any applicable law or with the rules of the Depositary,
any clearing agency or any securities exchange or as may, consistent herewith,
be determined by the officers executing such Notes, as evidenced by their
execution thereof.
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The definitive Notes shall be printed, typewritten, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its issuance and shall show the
date of its authentication. The terms and provisions contained in the Notes
shall constitute, and are expressly made, a part of this Indenture.
ARTICLE THREE
THE NOTES
Section 3.01. Title and Terms.
---------------
The aggregate principal amount at maturity of the Notes which may be
authenticated and delivered under this Indenture is limited to $218,838,000
aggregate principal amount at maturity, except for Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Section 3.03, 3.04, 3.05, 3.06, 9.06, 10.10 or 10.15
hereof.
The Notes will mature on August 15, 2008. The Notes will accrete at a
rate of 11 1/2% per annum to 100% of the principal amount at maturity by August
15, 2003. Except as set forth in the Registration Rights Agreement, no cash
interest will accrue on the Notes prior to August 15, 2003. Cash interest will
accrue on the Notes at a rate per annum of 11 1/2% from August 15, 2003, or from
the most recent Interest Payment Date to which interest has been paid. Interest
on any overdue principal, interest (to the extent lawful) or premium, if any,
shall be payable on demand.
Section 3.02. Registrar and Paying Agent.
--------------------------
Holdings shall maintain an office or agency (which shall be located in
the Borough of Manhattan in The City of New York, State of New York) where Notes
may be presented for registration of transfer or for exchange (the "Registrar"),
---------
an office or agency (which shall be located in the Borough of Manhattan in The
City of New York, State of New York) where Notes may be presented for payment
(the "Paying Agent" or "Agent") and an office or agency where notices and
------------ -----
demands to or upon Holdings in respect of the Notes and this Indenture may be
served. The Registrar shall keep a register of the Notes and of their transfer
and exchange. Holdings may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" or "Agent" includes any
------------ -----
additional paying agent. Holdings may act as its own Paying Agent, except for
the purposes of payments on account of principal on the Notes pursuant to
Sections 10.10 and 10.15 hereof.
Holdings shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the Trust Indenture Act. The agreement shall implement the provisions of this
Indenture that relate to such Agent. Holdings shall notify the Trustee of the
name and address of any such Agent. If Holdings fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 6.07 hereof.
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Holdings initially appoints the Trustee as the Registrar and Paying
Agent and agent for service of notices and demands in connection with the Notes.
Holdings initially appoints The Depository Trust Company as Depositary
with respect to the Global Notes.
Section 3.03. Execution and Authentication.
----------------------------
The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A-1 hereto. The Exchange Notes
-----------
and the Trustee's certificate of authentication relating thereto shall be
substantially in the form of Exhibit A-2 hereto. The Notes may have such
-----------
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with any applicable law or with the rules of the
Depositary, any clearing agency or any securities exchange or as may, consistent
herewith, be determined by the officers executing such Notes, as evidenced by
their execution thereof. Holdings shall approve the final form of the Notes.
Each Note shall be dated the date of issuance and shall show the date of its
authentication.
The terms and provisions contained in the Notes annexed hereto as
Exhibits A-1 and A-2 shall constitute, and are hereby expressly made, a part of
------------ ---
this Indenture and, to the extent applicable, Holdings and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
The Notes shall be issued initially in the form of one or more Global
Notes, substantially in the form set forth in Exhibit A-1, deposited with the
-----------
Trustee, as custodian for the Depositary, duly executed by Holdings and
authenticated by the Trustee as hereinafter provided and shall bear the legend
set forth in Exhibit B. The aggregate principal amount of the Global Notes may
---------
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary, as hereinafter provided.
Notes issued in exchange for interests in a Global Note pursuant to
Section 3.17 hereof may be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A-1.
-----------
Two Officers shall sign, or one Officer shall sign and one Officer
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for Holdings by manual or
facsimile signature.
If an Officer whose signature is on a Note was an Officer at the time
of such execution but no longer holds that office or position at the time the
Trustee authenticates the Note, the Note shall nevertheless be valid.
The Trustee shall authenticate (i) Initial Notes for aggregate
principal amount at maturity of the Notes not to exceed $218,838,000 aggregate
principal amount at maturity at any time, (ii) Private Exchange Notes from time
to time only in exchange for a like principal amount at maturity of Initial
Notes and (iii) Unrestricted Notes from time to time only in exchange for (A) a
like principal amount at maturity of Initial Notes or (B) a like principal
amount at maturity of Private Exchange Notes, in each case upon a written order
of an authorized Officer of Holdings. Each such written order shall specify the
amount of Notes to be authenticated and the date on which the Notes are to be
authenticated, whether the Notes are to be Initial Notes, Private
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Exchange Notes or Unrestricted Notes and whether (subject to this Section 3.03)
the Notes are to be issued as Physical Notes or Global Notes and such other
information as the Trustee may reasonably request. The aggregate principal
amount at maturity of the Notes outstanding at any time may not exceed
$218,838,000 except as provided in Section 3.06 hereof.
Notwithstanding the foregoing, all Notes issued under this Indenture
shall vote and consent together on all matters (as to which any of such Notes
may vote or consent) as one class and no series of Notes will have the right to
vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably acceptable
to Holdings to authenticate Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with Holdings and Affiliates of Holdings.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 principal amount at maturity and any
integral multiple thereof.
Section 3.04. Temporary Notes.
---------------
Until definitive Notes are prepared and ready for delivery, Holdings
may execute and upon a Holdings Order the Trustee shall authenticate and deliver
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes, in any authorized denominations, but may have variations that
Holdings reasonably considers appropriate for temporary Notes as conclusively
evidenced by Holdings' execution of such temporary Notes.
If temporary Notes are issued, Holdings will cause definitive Notes to
be prepared without unreasonable delay but in no event later than the date that
the Exchange Offer is consummated. After the preparation of definitive Notes,
the temporary Notes shall be exchangeable for definitive Notes upon surrender of
the temporary Notes at the office or agency of Holdings designated for such
purpose pursuant to Section 10.02 hereof, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, Holdings shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Notes of like tenor and of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
Section 3.05. Transfer and Exchange.
---------------------
Holdings shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.02 hereof being sometimes
referred to herein as the "Note Register") in which, subject to such reasonable
-------------
regulations as the Registrar may prescribe, Holdings shall provide for the
registration of Notes and of transfers and exchanges of Notes. The Trustee is
hereby initially appointed Registrar for the purpose of registering Notes and
transfers of Notes as herein provided.
Subject to Sections 3.16 and 3.17, when Notes are presented to the
Registrar or a co-Registrar with a request from the Holder of such Notes to
register the transfer or exchange for an equal principal amount at maturity of
Notes of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if all applicable legal requirements
are satisfied; provided, however, that every Note pre-
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sented or surrendered for registration of transfer or exchange shall be duly
endorsed or be accompanied by a written instrument of transfer or exchange in
form satisfactory to Holdings and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. Whenever any Notes are so
presented for exchange, Holdings shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive. No service charge shall be made to the Noteholder for any
registration of transfer or exchange. Holdings may require from the Noteholder
payment of a sum sufficient to cover any transfer taxes or other governmental
charge that may be imposed in relation to a transfer or exchange, but this
provision shall not apply to any exchange pursuant to Section 3.04, 9.06, 10.10,
10.15 or 12.02 hereof (in which events Holdings will be responsible for the
payment of all such taxes which arise solely as a result of the transfer or
exchange and do not depend on the tax status of the Holder). The Trustee shall
not be required to exchange or register the transfer of any Note for a period of
15 days immediately preceding the first mailing of notice of redemption of Notes
to be redeemed or of any Note selected, called or being called for redemption or
repurchase except, in the case of any Note where public notice has been given
that such Note is to be redeemed in part, the portion thereof not to be
redeemed.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of Holdings, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Notes may be effected only through a book-entry system maintained by
the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book-
entry system.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes.
-------------------------------------------
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note of any series claims that the Note has been lost, destroyed or wrongfully
taken, Holdings shall execute and, upon a Holdings Order, the Trustee shall
authenticate and deliver, a replacement Note of like tenor and principal amount,
bearing a number not contemporaneously outstanding if the Holder of such Note so
requests before Holdings has notice that the Note has been acquired by a
protected purchaser, furnishes to Holdings and to the Trustee evidence
reasonably acceptable to them of the ownership and the destruction, loss or
theft of such Note and an indemnity bond shall be posted by such Holder,
sufficient in the judgment of Holdings or the Trustee, as the case may be, to
protect Holdings, the Trustee or any Agent from any loss that any of them may
suffer if such Note is replaced. Holdings may charge such Holder for Holdings'
expenses in replacing such Note (including (i) expenses of the Trustee charged
to Holdings and (ii) any tax or other governmental charge that may be imposed)
and the Trustee may charge Holdings for the Trustee's expenses in replacing such
Note. If a Note is replaced pursuant to this Section 3.06, it ceases to be
Outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
Every replacement Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of Holdings, whether or not the destroyed, lost or stolen
Note shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
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Section 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the then applicable interest rate borne by the Notes, to
the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
------------------
the Holder on the Regular Record Date; and such Defaulted Interest may be paid
by Holdings, at its election in each case, as provided in subsection (a) or (b)
below:
(a) Holdings may elect to make payment of any Defaulted Interest to
the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. Holdings shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date
of the proposed payment, and at the same time Holdings shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as provided in
this subsection (a). Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify Holdings in
writing of such Special Record Date. In the name and at the expense of
Holdings, the Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at its address as it appears in
the Note Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered on such Special Record Date and shall no
longer be payable pursuant to the following subsection (b).
(b) Holdings may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if, after written notice given by Holdings to
the Trustee of the proposed payment pursuant to this subsection (b), such
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 3.08. Persons Deemed Owners.
---------------------
Prior to due presentment for registration of transfer of any Note,
Holdings, the Trustee and any agent of Holdings or the Trustee may treat the
Person in whose name any Note is registered in the Note Register as the owner of
such Note for the purpose of receiving payment of principal of, premium, if any,
and (subject to
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Section 3.07 hereof) interest on such Note and for all other purposes
whatsoever, whether or not such Note shall be overdue, and neither Holdings, the
Trustee nor any agent of Holdings or the Trustee shall be affected by notice to
the contrary.
Section 3.09. Cancellation.
------------
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall be delivered to the Trustee and, if not already
canceled, shall be promptly canceled by it. Holdings may at any time deliver to
the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which Holdings may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly canceled by the Trustee. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer or exchange, redemption or payment. The Trustee and no
one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation. No Notes shall be authenticated
in lieu of or in exchange for any Notes canceled as provided in this Section
3.09, except as expressly permitted by this Indenture. All canceled Notes held
by the Trustee shall be destroyed and certification of their destruction
delivered to Holdings. The Trustee shall provide Holdings a list of all Notes
that have been canceled from time to time as requested by Holdings.
Section 3.10. Computation of Interest.
-----------------------
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 3.11. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, date
established for the payment of Defaulted Interest or Stated Maturity of any Note
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Notes) payment of principal, premium, if any, or interest
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date, date established for the payment of Defaulted Interest or at
the Stated Maturity, as the case may be. In such event, no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date, Redemption Date, date established for the payment of Defaulted
Interest or Stated Maturity, as the case may be, to the next succeeding Business
Day and, with respect to any Interest Payment Date, interest for the period from
and after such Interest Payment Date shall accrue with respect to the next
succeeding Interest Payment Date.
Section 3.12. CUSIP and ISIN Numbers.
----------------------
Holdings in issuing the Notes may use "CUSIP" and "ISIN" numbers (if
then generally in use), and if so, the Trustee shall use the CUSIP or ISIN
numbers, as the case may be, in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP or ISIN
number, as the case may be, printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. Holdings shall promptly notify the Trustee in writing of any change in
the CUSIP or ISIN number of any type of Notes.
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Section 3.13. Paying Agent To Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment of
Accreted Value, premium, if any, or interest on the Notes, and shall notify the
Trustee of any default by Holdings in making any such payment. Money held in
trust by the Paying Agent need not be segregated except as required by law and
in no event shall the Paying Agent be liable for any interest on any money
received by it hereunder. Holdings at any time may require the Paying Agent to
pay all money held by it to the Trustee and account for any funds disbursed and
the Trustee may at any time during the continuance of any Event of Default, upon
a Holdings Order to the Paying Agent, require such Paying Agent to pay forthwith
all money so held by it to the Trustee and to account for any funds disbursed.
Upon making such payment, the Paying Agent shall have no further liability for
the money delivered to the Trustee.
Section 3.14. Treasury Notes.
--------------
In determining whether the Holders of the requisite principal amount
at maturity of Outstanding Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Notes owned by Holdings or any
other obligor upon the Notes or any Affilate of Holdings or such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that a Responsible Officer of the Trustee actually knows to be so owned shall be
so disregarded. Holdings shall notify the Trustee, in writing, when it
repurchases or otherwise acquires Notes and of the aggregate principal amount at
maturity of such Notes so repurchased or otherwise acquired.
Section 3.15. Deposits of Monies.
------------------
Prior to 12:00 Noon New York City time on each Interest Payment Date,
Redemption Date, Change of Control Payment Date, Asset Disposition Offer
Purchase Date and Stated Maturity, Holdings shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date, Redemption Date, Change of Control
Payment Date, Asset Disposition Offer Purchase Date and Stated Maturity, as the
case may be, in a timely manner which permits the Paying Agent to remit payment
to the Holders on such Interest Payment Date, Redemption Date, Change of Control
Payment Date, Asset Disposition Offer Purchase Date and Stated Maturity, as the
case may be.
Section 3.16. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) The Global Notes initially shall (i) be registered in the name of
the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) bear legends as set forth in
Exhibit B. Members of, or participants in, the Depositary (each an "Agent
--------- -----
Member") shall have no rights under this Indenture with respect to any Global
------
Note held on their behalf by the Depositary, or the Trustee as its custodian, or
under the Global Note, and the Depositary may be treated by Holdings, the
Trustee and any agent of Holdings or the Trustee as the absolute owner of the
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent Holdings, the Trustee or any agent of Holdings or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in whole,
but not in part, to the Depositary, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be
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transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depositary and the provisions of Sections 3.03 and 3.17
hereof. In addition, Physical Notes shall be transferred to all beneficial
owners, in exchange for their beneficial interests in Global Notes if (i) the
Depositary notifies Holdings that it is unwilling or unable to continue as
Depositary for any Global Note, or if at any time it ceases to be a "Clearing
Agency" registered under the Exchange Act, and in either case a successor
Depositary is not appointed by Holdings within 90 days, (ii) Holdings in its
discretion at any time determines not to have all of the Notes represented by
Global Notes or (iii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depositary to issue Physical
Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount at maturity of the Global Note in an amount equal to the
principal amount at maturity of the beneficial interest in the Global Note to be
transferred, and Holdings shall execute, and the Trustee shall authenticate and
deliver, one or more Physical Notes of like tenor and principal amount of
authorized denominations.
(d) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to
be surrendered to the Trustee for cancellation, and Holdings shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in the Global Notes,
an equal aggregate principal amount at maturity of Physical Notes of like tenor
of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to subparagraph (b), (c) or
(d) of this Section 3.16 shall, except as otherwise provided by Section 3.17
hereof, bear the Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
Section 3.17. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-U.S. Persons. The following additional
-----------------------------
provisions shall apply with respect to the registration of any proposed transfer
of an Initial Note to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Initial Note,
whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is after the second anniversary of the Issue Date;
provided, however, that neither Holdings nor any Affiliate of Holdings has
held any beneficial interest in such Note, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date and such transfer
can otherwise be lawfully made under the Securities Act without registering
such Initial Notes thereunder or (y) the proposed transferor has delivered
to the Registrar a certificate substantially in the form of Exhibit C
---------
hereto;
(ii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of (x)
written instructions given in accordance with the Depositary's and the
Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, together with any required
legal opinions and certifications, the Registrar shall register the
transfer and reflect on its books and records the date and a decrease in
the principal
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amount of the Global Note from which such interests are to be transferred
in an amount equal to the principal amount of the Notes to be transferred;
and
(iii) until the 41st day after the Issue Date (the "Distribution
------------
Compliance Period"), an owner of a Regulation S Note may not transfer such
-----------------
interest to a transferee that is a U.S. person or for the account or
benefit of a U.S. person within the meaning of Rule 902(o) of the
Securities Act.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of an Initial Note to a QIB
(excluding Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Initial Note,
whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is after the second anniversary of the Issue Date;
provided, however, that neither Holdings nor any Affiliate of Holdings has
held any beneficial interest in such Note, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date and such transfer
can otherwise be lawfully made under the Securities Act without registering
such Initial Note thereunder or (y) such transfer is being made by a
proposed transferor who has checked the box provided for on the form of
Note stating, or has otherwise advised Holdings and the Registrar in
writing, that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who has signed the certification provided for on
the form of Note stating, or has otherwise advised Holdings and the
Registrar in writing, that it is purchasing the Note 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 Holdings 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
foregoing representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) if the proposed transferee is an Agent Member and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the 144A Global Note, upon receipt by the
Registrar of written instructions given in accordance with the Depositary's
and the Registrar's procedures, the Registrar shall register the transfer
and reflect on its book and records the date and an increase in the
principal amount at maturity of the 144A Global Note in an amount equal to
the principal amount at maturity of Physical Notes to be transferred, and
the Trustee shall cancel the Physical Note so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
written instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the
principal amount of the Global Note from which interests are to be
transferred in an amount equal to the principal amount of the Notes to be
transferred and (B) an increase in the principal amount of the 144A Global
Note in an amount equal to the principal amount of the Global Note to be
transferred.
(c) Private Placement Legend. Upon the registration of transfer,
------------------------
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to Holdings and the Trustee to the
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effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (ii) such Note has been sold pursuant to an effective registration
statement under the Securities Act.
(d) General. By its acceptance of any Note bearing the Private
-------
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and under the heading "Transfer Restrictions" in the Offering Circular
and agrees that it will transfer such Note only as provided in this Indenture
and the Private Placement Legend and the restrictions set forth under the
heading "Transfer Restrictions" in the Offering Circular.
(e) Other Transfers. If a Holder proposes to transfer a Note
---------------
constituting a Restricted Note pursuant to any exemption from the registration
requirements of the Securities Act other than as provided for by Section 3.17(a)
and (b) hereof, the Registrar shall only register such transfer or exchange if
such transferor delivers an Opinion of Counsel satisfactory to Holdings and the
Registrar that such transfer is in compliance with the Securities Act and the
terms of this Indenture; provided, however, that Holdings may, based upon the
opinion of its counsel, instruct the Registrar by a Holdings Order not to
register such transfer in any case where the proposed transferee is not a QIB or
a Non-U.S. Person.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.16 hereof or this Section
3.17. Holdings 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 prior written notice to the Registrar.
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Holdings' Option To Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
----------
Holdings may, at its option by Board Resolution, at any time, with
respect to the Notes, elect to have either Section 4.02 or Section 4.03 hereof
be applied to all of the Outstanding Notes (the "Defeased Notes"), upon
--------------
compliance with the conditions set forth below in this Article Four.
Section 4.02. Legal Defeasance.
----------------
Upon Holdings' exercise under Section 4.01 hereof of the option
applicable to this Section 4.02, Holdings shall be deemed to have been
discharged from its obligations with respect to the Defeased Notes on the date
the conditions set forth below are satisfied (hereinafter, "legal defeasance").
----------------
For this purpose, such defeasance means that Holdings shall be deemed to have
paid and discharged the entire indebtedness represented by the Defeased Notes,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 4.05 and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
of Holdings, and, upon Holdings Request, shall execute proper instruments
acknowledging the same), except for the following, which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
Defeased Notes to receive, solely from the trust fund described in Section 4.04
hereof and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such
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Notes when such payments are due; (b) Holdings' obligations with respect to such
Defeased Notes under Sections 3.04, 3.05, 3.06, 10.02 and 10.03 hereof; (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, the Trustee's rights under Sections 4.05 and 6.07
hereof; (d) Article Twelve (except that no deposit of the Redemption Price will
be required); and (e) this Article Four. Subject to compliance with this Article
Four, Holdings may exercise its option under this Section 4.02 notwithstanding
the prior exercise of its option under Section 4.03 hereof with respect to the
Notes.
Section 4.03. Covenant Defeasance.
-------------------
Upon Holdings' exercise under Section 4.01 hereof of the option
applicable to this Section 4.03, Holdings shall be released from its obligations
under any covenant or provision contained in Sections 10.05 through 10.22 hereof
and any covenant added pursuant to Section 9.01(b) hereof and the provisions of
Section 8.01 shall not apply, with respect to the Defeased Notes, on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
--------
defeasance"), and the Defeased Notes shall thereafter be deemed not to be
----------
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the Defeased Notes, Holdings may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Article, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.01(iii)(y), (iv) , (v), (vi), (vii) (with respect
only to Significant Subsidiaries), (viii) (with respect only to Significant
Subsidiaries), (ix), (x), (xi) and the limitations contained in clauses (iii)
and (iv) of Section 8.01 hereof, but, except as specified above, the remainder
of this Indenture and such Defeased Notes shall be unaffected thereby.
Section 4.04. Conditions to Legal Defeasance or Covenant Defeasance.
-----------------------------------------------------
The following shall be the conditions to application of either Section
4.02 or Section 4.03 hereof to the Defeased Notes:
(1) Holdings shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.09 hereof who shall agree to comply with the provisions of
this Article Four applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (a) money in
an amount, or (b) U.S. Government Obligations which through the scheduled
payment of principal, premium, if any, and interest in respect thereof in
accordance with their terms will provide, not later than the due date of
any payment, money in an amount, or (c) a combination thereof, in any such
case, sufficient without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the
entire Indebtedness in respect of, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal
of, premium, if any, and interest on the Defeased Notes at the Stated
Maturity of such principal or installment of principal, premium, if any, or
interest or (if Holdings has made irrevocable arrangements satisfactory to
such Trustee for the giving of notice of redemption by such Trustee in the
name and at the expense of Holdings) any Redemption Date thereof specified
by Holdings, as the case may be, in accordance with the terms of this
Indenture and the Notes; provided, however, that the Trustee shall have
been irrevocably instructed
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to apply such cash or the proceeds of such U.S. Government Obligations to
said payments with respect to the Notes;
(2) No Default (other than any Default resulting from the Incurrence
of Indebtedness all or a portion of the proceeds of which will be used to
defease the Notes pursuant to this Article Four concurrently with such
Incurrence) with respect to the Outstanding Notes shall have occurred and
be continuing on the date of such deposit or, insofar as Section 4.02
hereof is concerned, at any time during the period ending on the ninety-
first day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period) no Default under Section 5.01(vii) or (viii) shall have occurred
and be continuing;
(3) Such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest in violation of Section 6.08 hereof
and for purposes of the Trust Indenture Act with respect to any securities
of Holdings;
(4) Such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which Holdings is a party or
by which it is bound;
(5) In the case of an election under Section 4.02 hereof, Holdings
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
Holdings has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date hereof, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders
of the Outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, legal defeasance
and discharge to be effected with respect to the Notes and will be subject
to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit, legal defeasance
and discharge had not occurred;
(6) In the case of an election under Section 4.03 hereof, Holdings
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of the deposit and
covenant defeasance to be effected with respect to the Notes and will be
subject to federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit and covenant
defeasance had not occurred;
(7) Holdings shall have delivered to the Trustee, an Opinion of
Counsel to the effect that, immediately following the ninety-first day
after the deposit, the trust funds established pursuant to this Article
should not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally under any applicable U.S. Federal or state law;
(8) Holdings shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by Holdings pursuant to its
election under Section 4.02 or 4.03 hereof was not made by Holdings with
the intent of preferring the Holders over the other creditors of Holdings
or with the intent of defeating, hindering, delaying or defrauding
creditors of Holdings or others;
(9) Holdings shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (i) all conditions
precedent (other than conditions requiring the passage of
-37-
time) provided for relating to either the legal defeasance under Section
4.02 or the covenant defeasance under Section 4.03 (as the case may be)
have been complied with as contemplated by this Section 4.04 and (ii) if
any other Indebtedness of Holdings shall then be outstanding or committed,
such legal defeasance or covenant defeasance will not violate the
provisions of the agreements or instruments evidencing such Indebtedness;
and
(10) Such legal defeasance or covenant defeasance shall not
result in a trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940, as
amended, unless such trust shall be registered under the Act or exempt from
registration thereunder.
Opinions required to be delivered under this Section may have such
qualifications as are customary for opinions of the type required and reasonably
acceptable to the Trustee.
Section 4.05. Deposited Money and U.S. Government Obligations To Be
Held in Trust; Other Miscellaneous Provisions.
-----------------------------------------------------
Subject to the proviso of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 4.05, the "Trustee") pursuant to Section 4.04 in respect of the Defeased
-------
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (other than Holdings) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
Holdings shall pay and indemnify the Trustee, its officers, directors
and agents and hold such persons harmless against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 4.04 or the principal, premium, if any, and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Defeased Notes.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to Holdings from time to time upon a Holdings
Request any money or U.S. Government Obligations held by it as provided in
Section 4.04 which, in the opinion of an internationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent legal defeasance or covenant
defeasance.
Section 4.06. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 4.02 or 4.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations of Holdings under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 4.02 or
4.03 hereof, as the case may be, until such time as the Trustee or Paying Agent
is permitted to apply all such money and U.S. Government Obligations in
accordance with Section 4.02 or 4.03 hereof, as the case may be; provided,
however, that if Holdings makes any payment of Accreted Value, premium, if any,
or interest on any Note following the reinstatement of its obligations, Holdings
shall be subro-
-38-
gated to the rights of the Holders of such Notes to receive such payment from
the money and U.S. Government Obligations held by the Trustee or Paying Agent.
Any money deposited with the Trustee or any Paying Agent, or then held
by Holdings, in trust for the payment of the principal or Accreted Value of,
premium, if any, or interest on any Note and remaining unclaimed for two years
after such principal or Accreted Value, premium, if any, or interest has become
due and payable shall be paid to Holdings upon receipt of a Holdings Request
therefor, or (if then held by Holdings) will be discharged from such trust; and
the Holder of such Note will thereafter, as an unsecured general creditor, look
only to Holdings for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of Holdings as
trustee thereof, will thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of Holdings cause to be published once, at the option of Holdings in The
New York Times or The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specific therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be repaid to Holdings.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) a default in the payment of interest on the Notes when due,
continued for 30 days;
(ii) a default in the payment of principal of any Note when due at
its Stated Maturity, upon optional redemption, upon required repurchase,
upon acceleration or otherwise;
(iii) the failure by Holdings to comply with its obligations under
(x) Section 8.01 or (y) Section 10.22;
(iv) the failure by Holdings to comply for 30 days after notice with
any of its obligations under Section 10.10 (other than a failure to
purchase Notes) or under Sections 10.11, 10.13, 10.14, 10.15, 10.18, 10.19
or 10.20;
(v) the failure by Holdings to comply for 60 days after notice with
its other agreements contained in this Indenture;
(vi) Indebtedness of Holdings or any Significant Subsidiary is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $10.0 million and
such non-payment continues or such acceleration is not rescinded within ten
days after notice thereof;
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(vii) Holdings or any Significant Subsidiary of Holdings pursuant
to or under or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the making of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any case against it;
(c) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(d) makes a general assignment for the benefit of its
creditors;
(e) files an answer or consent seeking reorganization or
relief;
(f) shall admit in writing its inability to pay its debts
generally as they become due; or
(g) consents to the filing of a petition in bankruptcy;
(viii) a court of competent jurisdiction in any involuntary case or
proceeding enters a Bankruptcy Order against Holdings or any Significant
Subsidiary, and such Bankruptcy Order remains unstayed and in effect for 60
consecutive days;
(ix) any judgment or decree (not covered by insurance or an
indemnity by a person other than Holdings or a Restricted Subsidiary, which
indemnitor is solvent) for the payment of money in excess of $10.0 million
is entered against Holdings or any Significant Subsidiary, remains
outstanding for a period of 60 days following such judgment and is not
discharged, bonded, waived or stayed within 30 days after notice;
(x) the Umbrella Affiliation Agreement shall cease to be in full
force and effect; or
(xi) any one or more Station Affiliation Agreements shall cease to
be in full force and effect and such cessation shall be materially adverse
to Holdings; provided, however, that no such cessation shall be deemed
materially adverse to Holdings if the Board of Directors of Holdings shall
have determined in good faith that such cessation is not materially adverse
to Holdings (such determination of the Board of Directors of Holdings to
include the affirmative vote of at least two members who have been
designated as independent directors pursuant to the Stockholders
Agreement).
However, a default under clause (iv) or (v) will not constitute an Event of
Default until the Trustee or the Holders of 25% in principal amount at maturity
of the Outstanding Notes notify Holdings and, if applicable, the Trustee of the
default and Holdings does not cure such default within the time specified after
receipt of such notice.
Section 5.02. Acceleration of Maturity, Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than under Section 5.01(vii) or (viii)
relating to Holdings) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount at maturity of the Outstanding
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Notes may declare the Accreted Value of and accrued but unpaid interest on all
the Notes to be due and payable. Upon such a declaration, such Accreted Value
and interest shall be due and payable immediately. If an Event of Default under
Section 5.01(vii) or (viii) relating to Holdings occurs and is continuing, the
Accreted Value of and interest on all the Notes will ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders.
After a declaration of acceleration or any ipso facto acceleration as
related to clause (vii) or (viii) of Section 5.01, the Holders of a majority in
principal amount at maturity of the Outstanding Notes may, by notice to the
Trustee, rescind such declaration of acceleration and its consequences if all
existing Events of Default, other than nonpayment of the Accreted Amount of the
Notes that has become due solely as a result of such acceleration, have been
cured or waived and if the rescission of acceleration would not conflict with
any judgment or decree.
In the event of a declaration of acceleration because an Event of
Default set forth in clause (vi) of Section 5.01 has occurred and is continuing,
such declaration of acceleration shall be automatically rescinded and annulled
if (A) either (x) the holders of the Indebtedness which is the subject of such
Event of Default have waived such failure to pay at final maturity or have
rescinded the acceleration in respect of such Indebtedness within 60 days of
such maturity or declaration of acceleration, as the case may be, and no other
Event of Default has occurred during such 60-day period that has not been cured
or waived, or (y) such Indebtedness shall have been discharged or the maturity
thereof shall have been extended such that it is not then due and payable, or
the underlying default has been cured (and any acceleration based thereon of
such other Indebtedness has been rescinded), within 60 days of such maturity or
declaration of acceleration, as the case may be, and (B) no judgment or decree
for the payment of the money due on the Notes has been obtained by the Trustee
as provided in the Indenture.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
Subject to the provisions of this Indenture relating to the duties of
the Trustee, in case an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or powers under this
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense.
Section 5.04. Trustee May File Proofs of Claims.
---------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to Holdings or any other obligor upon the Notes or
the property of Holdings or of such other obligor or their creditors, the
Trustee (irrespective of whether the Accreted Value of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on Holdings for
the payment of overdue Accreted Value or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Accreted Value,
premium, if any, and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, fees, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
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(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, in any such judicial proceeding, is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee as administrative expenses associated with any such proceeding, and in
the event that the Trustee shall consent to the making of such payments directly
to Holders, any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 hereof.
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Notes.
------------------------------------------------------
All rights of action and claims under this Indenture, or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, fees, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Notes in respect of which such judgment has been
recovered.
Section 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, premium, if
any, or interest, upon presentation of the Notes and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.07;
Second: to Holders for interest accrued on the Notes, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Notes for interest;
Third: to Holders of Accreted Value and premium, if any, owing under
the Notes, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for Accreted Value; and
Fourth: the balance, if any, to Holdings.
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The Trustee, upon prior written notice to Holdings, may fix a record
date and payment date for any payment to Noteholders pursuant to this Section
5.06.
Section 5.07. Limitation on Suits.
-------------------
No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount at
maturity of the Outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity or
security reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity or security has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount at maturity of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or any Note to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture or any Note, except
in the manner provided in this Indenture and for the equal and ratable benefit
of all the Holders.
Section 5.08. Unconditional Right of Holders To Receive Accreted
Value, Premium and Interest.
--------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
cash payment of the Accreted Value of, premium, if any, and (subject to Section
3.07 hereof) interest on such Note on the respective due dates therefor (or, in
the case of redemption, on the respective Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture or any Note and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case Holdings, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to
-43-
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative.
------------------------------
Except as provided in Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 5.12. Control by Majority.
-------------------
The Holders of a majority in aggregate principal amount at maturity of
the Outstanding Notes shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided, however, that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or any Note or expose the Trustee to personal
liability;
(b) the Trustee may refuse to follow any direction that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that
would involve the Trustee in personal liability; and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount
at maturity of the Outstanding Notes may on behalf of the Holders of all the
Notes waive any past Default hereunder and its consequences, except a Default:
(a) in the payment of the principal of, premium on or interest on any
Outstanding Note; or
(b) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected thereby.
-44-
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Note by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.14 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount at maturity of the
Outstanding Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the Accreted Value of, premium, if any, or interest on any
Note on or after the due dates therefor (or, in the case of redemption, on or
after the respective Redemption Dates).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Holdings covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive Holdings from paying all or any portion of the Accreted
Value of, premium, if any, or interest on the Notes contemplated herein or in
the Notes or which may affect the covenants or the performance of this
Indenture; and Holdings (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by provision hereof are
specifically required to be furnished to
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the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) During the existence of an Event of Default, the Trustee is
required to exercise such rights and powers vested in it under this Indenture
and use the same degree of care and skill in its exercise thereof as a prudent
person would exercise under the circumstances in the conduct of such person's
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.01.
Section 6.02. Notice of Defaults.
------------------
If a Default occurs and is continuing and is known to the Trustee, the
Trustee shall mail to each Holder notice of the Default within 90 days after it
occurs. Except in the case of a Default in the payment of Accreted Value of,
premium or interest on any Note, the Trustee may withhold notice if and so long
as the board of directors, the executive committee or a committee of its
Responsible Officers determines that withholding notice is not opposed to the
interest of the Holders.
Section 6.03. Certain Rights of Trustee.
-------------------------
Subject to Section 6.01 hereof and the provisions of Section 315 of
the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of Holdings mentioned herein shall be
sufficiently evidenced by a Holdings Request or Holdings Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution thereof;
(c) with respect to legal matters relating to this Indenture and the
Notes, the Trustee may consult with counsel and any advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to it against the
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costs, expenses and liabilities which might be incurred by the Trustee in
compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than
any liabilities arising out of its own negligence or willful misconduct;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, other
evidence of indebtedness or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in aggregate
principal amount at maturity of the Notes then Outstanding; provided,
however, that, if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require indemnity satisfactory to
it against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by Holdings
or, if paid by the Trustee or any predecessor Trustee, shall be repaid by
Holdings upon demand; provided, further, the Trustee in its discretion may
make such further inquiry or investigation into such facts or matters as it
may deem fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of Holdings, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodian or nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder;
(h) except with respect to Section 10.01, the Trustee shall have no
duty to inquire as to the performance of Holdings' covenants in Article
Ten. In addition, the Trustee shall not be deemed to have knowledge of any
Default except (i) any Event of Default occurring pursuant to Sections
5.01(i), 5.01(ii) and 10.01 or (ii) any Default of which the Trustee shall
have received written notification or a Responsible Officer obtained actual
knowledge; and
(i) if the Trustee is acting in the capacity of Registrar and/or
Paying Agent, then the rights afforded to the Trustee under this Section
6.03 shall also be afforded to such Registrar and/or Paying Agent.
Section 6.04. Trustee Not Responsible for Recitals, Dispositions
of Notes or Application of Proceeds Thereof.
--------------------------------------------------
The recitals contained herein and in the Notes, except the Trustee's
certificate of authentication, shall be taken as the statements of Holdings, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or of the
Notes except that the Trustee represents that it is duly authorized to execute
and deliver this Indenture, authenticate the Notes and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1, if any, to be supplied to Holdings are true and
accurate subject to the qualifications set forth therein. The Trustee shall not
be accountable for the use or application by Holdings of Notes or the proceeds
thereof.
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Section 6.05. Trustee and Agents May Hold Notes; Collections; Etc.
---------------------------------------------------
The Trustee, any Paying Agent, Registrar or any other agent of
Holdings, in its individual or any other capacity, may become the owner or
pledgee of Notes, with the same rights it would have if it were not the Trustee,
Paying Agent, Registrar or such other agent and, subject to Section 6.08 hereof
and Sections 310 and 311 of the Trust Indenture Act, may otherwise deal with
Holdings and receive, collect, hold and retain collections from Holdings with
the same rights it would have if it were not the Trustee, Paying Agent,
Registrar or such other agent.
Section 6.06. Money Held in Trust.
-------------------
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required herein or by law. The Trustee shall not be under any liability for
interest on any moneys received by it hereunder.
Section 6.07. Compensation and Indemnification of Trustee and Its
Prior Claim.
----------------------------------------------------
Holdings covenants and agrees: (a) to pay to the Trustee from time to
time, and the Trustee shall be entitled to, compensation as agreed to by the
parties from time to time for all services rendered by it hereunder (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); (b) to reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, fees, disbursements and
advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation, fees and
the expenses and disbursements of its counsel and of all agents and other
persons not regularly in its employ), except any such expense, disbursement or
advance as may arise from its negligence or bad faith; and (c) to indemnify the
Trustee and any of its officers, directors, employees and agents and each
predecessor Trustee for, and to hold it harmless against any loss, liability or
expense (including attorneys' fees and expenses incurred in defending
themselves) incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including enforcement of this Section
6.07.
To secure Holdings' payment obligations in this Section 6.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture so long as any amounts payable by Holdings pursuant
to this Section 6.07 remain outstanding and are not contested in good faith by
Holdings.
The obligations of Holdings under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination of
this Indenture under bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Notes upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Notes, and the Notes are hereby subordinated to such
senior claim. If the Trustee renders services and incurs expenses following an
Event of Default under Section 5.01(vii) or (viii) hereof, the parties hereto
and the Holders by their acceptance of the Notes hereby agree that such expenses
are intended to constitute expenses of administration under any bankruptcy law.
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The Trustee shall comply with the provisions of Section 313(b)(2) of
the Trust Indenture Act to the extent applicable.
Section 6.08. Conflicting Interests.
---------------------
The Trustee shall be subject to and comply with the provisions of
Section 310(b) of the Trust Indenture Act; provided, however, that there shall
be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of Holdings are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Act Sections 310(a)(1), (2) and
(5) and which shall have, or which shall be a wholly owned Subsidiary of a bank
holding company which has, a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of any Federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor
Trustee.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice thereof to Holdings at least 20
Business Days prior to the date of such proposed resignation; provided such
trustee shall agree to cooperate with Holdings with respect to the appointment
of a successor trustee and ongoing matters. Upon receiving such notice of
resignation, Holdings shall, after all monies due and owing have been paid to
the Trustee, promptly appoint a successor trustee by written instrument executed
by authority of the Board of Directors, a copy of which shall be delivered to
the resigning Trustee and a copy to the successor Trustee. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 20 Business Days after the giving of such notice of resignation, the
resigning Trustee may, or any Holder who has been a bona fide Holder of a Note
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper, appoint a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders
of a majority in aggregate principal amount of the Outstanding Notes, delivered
to the Trustee and to Holdings.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act in accordance with Section 6.08
hereof after written request therefor by Holdings or by any Holder who has
been a bona fide Holder of a Note for at least six months;
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(2) the Trustee shall cease to be eligible under Section 6.09
hereof and shall fail to resign after written request therefor by Holdings
or by any Holder who has been a bona fide Holder of a Note for at least six
months; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose or
rehabilitation, conservation or liquidation
then, in any case, (i) Holdings by a Board Resolution may remove the Trustee, or
(ii) subject to Section 5.14, the Holder of any Note who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
Holdings, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in aggregate principal amount at maturity of the
Outstanding Notes delivered to Holdings, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee and supersede the successor Trustee appointed by Holdings. If no
successor Trustee shall have been so appointed by Holdings or the Holders of the
Notes and accepted appointment in the manner hereinafter provided, the Holder of
any Note who has been a bona fide Holder for at least six months may, subject to
Section 5.14, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) Holdings shall use reasonable efforts to give notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Notes as their names and addresses appear in the Note
Register. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to Holdings and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee as if originally named as Trustee hereunder; but,
nevertheless, on the written request of Holdings or the successor Trustee, upon
payment of amounts due to it pursuant to Section 6.07, such retiring Trustee
shall duly assign, transfer and deliver to the successor Trustee all moneys and
property at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor Trustee all the rights, powers, duties
and obligations of the retiring Trustee. Upon request of any such successor
Trustee, Holdings shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to the provisions of Section 6.07.
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No successor Trustee with respect to the Notes shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under this
Article.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.11, the successor shall give notice thereof to the Holders of the
Notes, by mailing such notice to such Holders at their addresses as they shall
appear on the Note Register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 6.10.
If Holdings fails to give such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of Holdings.
Section 6.12. Merger, Conversion, Amalgamation, Consolidation
or Succession to Business.
-----------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or amalgamated, or any corporation resulting
from any merger, conversion, amalgamation or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided that such corporation
shall be eligible under this Article Six to serve as Trustee hereunder.
In case at the time such successor to the Trustee under this Section
6.12 shall succeed to the trusts created by this Indenture any of the Notes
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Notes so authenticated; and, in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee under this
Section 6.12 may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Notes or in
this Indenture; provided that the certificate of the Trustee shall have been
authenticated.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND HOLDINGS
Section 7.01. Preservation of Information; Holdings to Furnish
Trustee Names and Addresses of Holders.
------------------------------------------------
(a) The Trustee shall preserve the names and addresses of the
Noteholders and otherwise comply with TIA Section 312(a). If the Trustee is not
the Registrar, Holdings shall furnish or cause the Registrar to furnish to the
Trustee before each Interest Payment Date, and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Noteholders.
(b) Holdings will furnish or cause to be furnished to the Trustee:
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(i) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date; and
(ii) at such other times as the Trustee may reasonably request
in writing, within 30 days after receipt by Holdings of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Registrar, no
such list need be furnished pursuant to this Subsection 7.01(b).
Section 7.02. Communications of Holders.
-------------------------
Holders may communicate with other Holders with respect to their
rights under this Indenture or under the Notes pursuant to Section 312(b) of the
Trust Indenture Act. Holdings and the Trustee and any and all other persons
benefited by this Indenture shall have the protection afforded by Section 312(c)
of the Trust Indenture Act.
Section 7.03. Reports by Trustee.
------------------
Within 60 days after August 1 of each year commencing with the first
August 1 following the date of this Indenture, the Trustee shall mail to all
Holders, as their names and addresses appear in the Note Register, a brief
report dated as of such date, in accordance with, and to the extent required
under Section 313 of the Trust Indenture Act. At the time of its mailing to
Holders, a copy of each such report shall be filed by the Trustee with Holdings,
the SEC and with each stock exchange on which the Notes are listed. Holdings
shall notify the Trustee when the Notes are listed on any stock exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. Merger and Consolidation.
------------------------
Holdings shall not consolidate with or merge with or into any other
Person, and Holdings shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, sell, convey, transfer or lease, in one transaction
or a series of transactions, all or substantially all of the assets of Holdings
and the Restricted Subsidiaries, taken as a whole, to any Person, unless: (i)
either Holdings shall be the surviving Person or the resulting, surviving or
transferee Person (the "Successor Company") shall be a Person organized and
-----------------
existing under the laws of the United States of America, any State thereof or
the District of Columbia and the Successor Company (if not Holdings) shall
expressly assume, by an indenture supplemental thereto, executed and delivered
to the Trustee, in form reasonably satisfactory to the Trustee, all the
obligations of Holdings under the Notes, this Indenture and the Registration
Rights Agreement; (ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor Company
or any Subsidiary as a result of such transaction as having been Incurred by
such Successor Company or such Subsidiary at the time of such transaction), no
Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction, the Successor Company would be able to Incur an
additional $1.00 of Indebtedness pursuant to
-52-
paragraph (a)(x) of Section 10.11 (if Holdings shall not be the Successor
Company, all references to Holdings or any Restricted Subsidiary in the
definitions used to calculate the Consolidated Leverage Ratio shall be to the
Successor Company and its Subsidiaries (other than any Unrestricted
Subsidiary)); and (iv) Holdings shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with this
Indenture.
Section 8.02. Successor Substituted.
---------------------
The Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, Holdings under this Indenture, but, in
the case of a conveyance, transfer or lease, Holdings shall not be released from
the obligation to pay the principal of, premium and interest on the Notes.
Notwithstanding clauses (ii) and (iii) of Section 8.01, (x) any
Restricted Subsidiary may consolidate or merge with and into or transfer all or
part of its properties and assets to Holdings or another Restricted Subsidiary
and (y) Holdings may consolidate or merge with and into Telemundo.
If the Successor Company shall have succeeded to and been substituted
for Holdings, such Successor Company may cause to be signed, and may issue
either in its own name or in the name of Holdings prior to such succession any
or all of the Notes issuable hereunder which theretofore shall not have been
signed by Holdings and delivered to the Trustee; and, upon the order of such
Successor Company, instead of Holdings, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Notes which previously shall have been signed and delivered by
the Officers of Holdings to the Trustee for authentication, and any Notes which
such Successor Company thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Notes so issued and so endorsed shall in
all respects have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued and endorsed in accordance with the terms
of this Indenture as though all such Notes had been issued and endorsed at the
date of the execution hereof.
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and
Waivers Without Consent of Holders.
---------------------------------------
Without the consent of any Holder, Holdings, when authorized by the
Board of Directors as evidenced by a Board Resolution, and the Trustee, at any
time and from time to time, may amend, waive, modify or supplement this
Indenture or the Notes for any of the following purposes:
(a) to evidence the succession of another person to Holdings, and the
assumption by any such successor of the covenants of Holdings in the Notes;
(b) to add to the covenants of Holdings for the benefit of the
Holders, or to surrender any right or power herein conferred upon Holdings,
herein or in the Notes;
(c) to cure any ambiguity, omission, defect or inconsistency;
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(d) to comply with the requirements of the SEC in connection with the
qualification of this Indenture under the Trust Indenture Act, as
contemplated by Section 9.05 hereof or otherwise;
(e) to evidence and provide for the acceptance of appointment under
this Indenture of a successor Trustee;
(f) to mortgage, pledge, hypothecate or grant a security interest in
any property or assets in favor of the Trustee for the benefit of the
Holders as security for the payment and performance of the Indenture
Obligations;
(g) to make any other change that does not adversely affect the
rights of any Holder;
(h) to add guarantees with respect to the Notes; or
(i) to provide for uncertificated Notes in addition to or in place of
certificated Notes (provided that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of
the Code).
Section 9.02. Supplemental Indentures, Agreements
and Waivers with Consent of Holders.
------------------------------------
With the written consent of the Holders of not less than a majority of
the aggregate principal amount at maturity of the Outstanding Notes delivered to
Holdings and the Trustee, Holdings when authorized by a Board Resolution,
together with the Trustee, may amend, waive, modify or supplement any other
provision of this Indenture or the Notes; provided, however, that no such
amendment, waiver, modification or supplement may, without the written consent
of the Holder of each Outstanding Note affected thereby:
(i) reduce the amount of Notes whose Holders must consent to an
amendment;
(ii) reduce the rate of or extend the time for payment of interest
on any Note;
(iii) reduce the principal or Accreted Value of or change the Stated
Maturity of any Note;
(iv) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed as described under
Section 2 of the Notes;
(v) make any Note payable in money other than that stated in the
Notes;
(vi) impair the right of any Holder to receive payment of principal
of and interest on such Holder's Notes on or after the due dates therefor
or to institute suit for the enforcement of any payment on or with respect
to such Holder's Notes;
(vii) make any change in the amendment provisions which require each
Holder's consent or in the waiver provisions; or
(viii) subordinate the Notes in right of payment to any other
Indebtedness.
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Upon the written request of Holdings accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture or other
agreement, instrument or waiver, and an Officers' Certificate and an Opinion of
Counsel upon which the Trustee may rely as conclusive evidence that such change,
agreement, supplement or waiver is permitted by this Indenture and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid, the
Trustee shall join with Holdings in the execution of such supplemental indenture
or other agreement, instrument or waiver.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture or other
agreement, instrument or waiver, but it shall be sufficient if such Act shall
approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures, Agreements and
----------------------------------------------------
Waivers.
-------
In executing or accepting the additional trusts created by any
supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and may rely upon, an
Opinion of Counsel and an Officers' Certificate from each obligor under the
Notes entering into such supplemental indenture, agreement, instrument or
waiver, each stating that the execution of such supplemental indenture,
agreement, instrument or waiver (a) is authorized or permitted by this Indenture
and (b) does not violate the provisions of any agreement or instrument
evidencing any other Indebtedness of Holdings or any other Subsidiary of
Holdings. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture, agreement, instrument or waiver which affects the
Trustee's own rights, duties or immunities under this Indenture, the Notes or
otherwise.
Section 9.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture and/or the Notes, if applicable, shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture and/or the Notes, if applicable, as the case may be, for all purposes;
and every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
After an amendment under this Indenture becomes effective, Holdings
shall mail to the Holders a notice briefly describing such amendment. However,
the failure to give such notice to all Holders, or any defect therein, will not
impair or affect the validity of the amendment.
Section 9.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06. Reference in Notes to Supplemental Indentures.
---------------------------------------------
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If Holdings shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the Board
of Directors, to any such supplemental indenture may be prepared and executed by
Holdings and authenticated and delivered by the Trustee upon a Holdings Order in
exchange for Outstanding Notes.
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Section 9.07. Record Date.
-----------
Holdings may, but shall not be obligated to, fix, a record date for
the purpose of determining the Holders entitled to consent to any supplemental
indenture, agreement or instrument or any waiver, and shall promptly notify the
Trustee of any such record date. If a record date is fixed those persons who
were Holders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to consent to such supplemental indenture,
agreement or instrument or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 90 days after such record
date.
Section 9.08. Revocation and Effect of Consents.
---------------------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if a notation of the consent is not made on any
Note. However, any such Holder, or subsequent Holder, may revoke the consent as
to his Note or portion of a Note if the Trustee receives written notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver shall become effective in accordance with its terms and
thereafter bind every Holder.
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
------------------------------------------
Holdings shall duly and punctually pay the principal of, premium, if
any, and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
Section 10.02. Maintenance of Office or Agency.
-------------------------------
Holdings shall maintain in the Borough of Manhattan in The City of New
York, State of New York, an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon Holdings in
respect of the Notes and this Indenture may be served. The office of the
Trustee at its Corporate Trust Office will be such office or agency of Holdings,
unless Holdings shall designate and maintain some other office or agency for one
or more of such purposes. Holdings will give prompt written notice to the
Trustee of any change in the location of any such office or agency. If at any
time Holdings shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and Holdings hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
Holdings may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York, State of New York)
where the Notes may be presented or surrendered for any or all such purposes,
and may from time to time rescind such designation; provided, however, that no
such designation or rescission shall in any manner relieve Holdings of its
obligation to maintain an office or agency in
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ of New York for such purposes. Holdings will give
prompt written notice to the Trustee of any such designation or rescission and
any change in the location of any such other office or agency.
Section 10.03. Money for Note Payments To Be Held in Trust.
-------------------------------------------
If Holdings shall at any time act as its own Paying Agent, it will, on
or before each due date of the Accreted Value of, premium, if any, or interest
on any of the Notes, segregate and hold in trust for the benefit of the Holders
entitled thereto a sum sufficient to pay the Accreted Value , premium, if any,
or interest so becoming due until such sums shall be paid to such persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
If Holdings is not acting as Paying Agent, Holdings will, on or before
each due date of the Accreted Value of, premium, if any, or interest on, any
Notes, deposit with a Paying Agent a sum in same day funds sufficient to pay the
Accreted Value, premium, if any, or interest so becoming due, such sum to be
held in trust for the benefit of the Holders entitled to such principal, premium
or interest, and (unless such Paying Agent is the Trustee) Holdings will
promptly notify the Trustee of such action or any failure so to act.
If Holdings is not acting as Paying Agent, Holdings will cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent will agree with the Trustee, subject to
the provisions of this Section 10.03, that such Paying Agent will:
(a) hold all sums held by it for the payment of the Accreted Value
of, premium, if any, or interest on Notes in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by Holdings (or any other
obligor upon the Notes) in the making of any payment of Accreted Value of,
premium, if any, or interest on the Notes;
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and liabilities
of such Paying Agent.
Holdings may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Holdings Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by Holdings or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by Holdings or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent will be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by Holdings, in trust for the payment of the principal or Accreted Value of,
premium, if any, or interest on any Note and remaining unclaimed for two years
after such principal or Accreted Value, premium, if any, or interest has become
due and payable shall be paid to Holdings upon receipt of a Holdings Request
therefor, or (if then held by Holdings) will be discharged from such trust; and
the Holder of such Note will thereafter, as an unsecured general creditor, look
only to Holdings for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of Holdings as
trustee thereof, will thereupon cease; provided, however, that the
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Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of Holdings cause to be published once, at the option of
Holdings in The New York Times or The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining shall be repaid to Holdings.
Section 10.04. Corporate Existence.
-------------------
Subject to Article Eight, Holdings shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory), licenses and franchises of Holdings
and each of the Restricted Subsidiaries; provided, however, that Holdings will
not be required to preserve any such right, license or franchise or the
corporate or other existence of a Restricted Subsidiary if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of Holdings and the Restricted Subsidiaries as a
whole and that the loss thereof is not adverse in any material respect to the
Holders; provided, further, that the foregoing will not prohibit a sale,
transfer or conveyance of a Subsidiary of Holdings or any of its assets in
compliance with the terms of this Indenture.
Section 10.05. Payment of Taxes and Other Claims.
---------------------------------
Holdings shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed (i) upon Holdings or any of its
Restricted Subsidiaries or (ii) upon the income, profits or property of Holdings
or any of the Restricted Subsidiaries and (b) all material lawful claims for
labor, materials and supplies, which, if unpaid, could reasonably be expected to
become a Lien upon the property of Holdings or any of the Restricted
Subsidiaries; provided, however, that Holdings will not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim (x) whose amount, applicability or validity is being contested in good
faith by appropriate proceedings properly instituted and diligently conducted or
(y) if the failure to so pay, discharge or cause to be paid or discharged could
not reasonably be expected to have a material adverse effect on the condition
(financial or other), business, properties, results of operations or prospects
of Holdings and the Restricted Subsidiaries, taken as a whole.
Section 10.06. Maintenance of Properties.
-------------------------
Holdings shall cause all material properties owned by Holdings or any
of the Restricted Subsidiaries or used or held for use in the conduct of their
respective businesses to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
Holdings may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 10.06 will prevent Holdings or any of its
Restricted Subsidiaries from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of Holdings or the
Restricted Subsidiary so concerned, desirable in the conduct of its business or
the business of any of the Restricted Subsidiaries and is not disadvantageous in
any material respect to the Holders.
Section 10.07. Insurance.
---------
To the extent available at commercially reasonable rates, Holdings
shall at all times keep all of its and the Restricted Subsidiaries' properties
which are of an insurable nature insured with insurers, believed by
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Holdings in good faith to be financially sound and responsible, against loss or
damage to the extent that property of similar character is usually and
customarily so insured by corporations similarly situated and owning like
properties.
Section 10.08. Books and Records.
-----------------
Holdings shall keep proper books of record and account, in which full
and correct entries will be made of all financial transactions and the assets
and business of Holdings and each Restricted Subsidiary and each Restricted
Affiliate of Holdings in material compliance with GAAP.
Section 10.09. SEC Reports.
-----------
Notwithstanding that Holdings may not be required to remain subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, Holdings
shall file with the SEC (unless the SEC will not accept such a filing, in which
case, Holdings shall provide such documents to the Trustee) and provide within
15 days to the Trustee and make available to the Holders such annual reports and
such information, documents and other reports as are specified in Sections 13
and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to
such Sections, such information, documents and other reports to be so filed and
provided at the times specified for the filing of such information, documents
and reports under such Sections. In addition, for so long as any Notes remain
outstanding, Holdings shall furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act, and, to any
beneficial holder of Notes, if not obtainable from the SEC, information of the
type that would be filed with the SEC pursuant to the foregoing provisions, upon
the request of any such holder.
Section 10.10. Change of Control.
-----------------
Upon the occurrence of any of the following events (each a "Change of
---------
Control"), each Holder shall have the right to require that Holdings purchase
-------
all or any part of such Holder's Notes at a purchase price in cash equal to 101%
of the Accreted Value thereof, plus accrued and unpaid interest, if any, at the
date of purchase, if such purchase occurs prior to August 15, 2003, or 101% of
the aggregate principal amount thereof, plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive accrued and unpaid interest due on the relevant
Interest Payment Date), if such purchase occurs thereafter:
(i) prior to a Public Equity Offering, the Permitted Holders cease
to beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act) in the aggregate Capital Stock representing more than 50% of the
outstanding equity and the aggregate voting power represented by the
outstanding Capital Stock of Holdings, whether as a result of the issuance
of securities, merger or consolidation, transfer of securities or
otherwise;
(ii) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined above, except that for purposes of
this clause (ii) such person shall be deemed to have beneficial ownership
of all shares that such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the total voting power of the then
outstanding Voting Stock of Holdings, and the Permitted Holders
beneficially own (as defined in clause (i) above) in the aggregate Voting
Stock representing a lesser percentage of the total voting power of the
Voting Stock of Holdings;
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(iii) during any period of two consecutive years after the initial
Public Equity Offering, individuals who at the beginning of such period
constituted the Board of Directors of Holdings (together with any new
directors whose election by such Board of Directors was made pursuant to
the Stockholders Agreement or whose nomination for election by the
shareholders of Holdings was approved by a vote of the majority of the
directors of Holdings then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Directors then in office;
(iv) Holdings consolidates with, or merges with or into, another
Person or Holdings and/or one or more Restricted Subsidiaries sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the assets of Holdings and the Restricted
Subsidiaries, taken as a whole, in one transaction or series of related
transactions, to any Person (other than a Wholly Owned Restricted
Subsidiary of Holdings), or any Person consolidates with, or merges with or
into, Holdings, in any such event other than pursuant to a transaction in
which the Person or Persons that beneficially owned (as defined in clause
(ii) above), directly or indirectly, Voting Stock representing a majority
of the total voting power of the Voting Stock of Holdings immediately prior
to such transaction or series of related transactions beneficially own (as
defined in clause (ii) above), directly or indirectly, Voting Stock
representing a majority of the total voting power of the Voting Stock of
the surviving or transferee Person;
(v) Sony Pictures ceases to beneficially own (as defined in Rules
13d-3 and 13d-5 under the Exchange Act) Capital Stock of Holdings
representing at least 15% of the outstanding equity represented by the
outstanding Capital Stock of Holdings, whether as a result of the issuance
of securities, merger or consolidation, transfer of securities or
otherwise; provided, however, that any transfer by Sony Pictures necessary
in order to comply with restrictions imposed upon the ownership by Sony
Pictures of the Capital Stock of Holdings by any federal or state court or
regulatory authority or agency with applicable jurisdiction that would, but
for this proviso, result in a Change of Control under this clause (v), will
not result in a Change of Control so long as (x) Liberty continues to own
Capital Stock of Holdings representing at least 20% of the outstanding
equity represented by the outstanding Capital Stock of Holdings and (y)
Sony Pictures continues to own Capital Stock of the Network Company
representing 25% of the equity and the aggregate voting power represented
by the outstanding Capital Stock of the Network Company;
(vi) Liberty ceases to beneficially own (as defined in Rules 13d-3
and 13d-5 under the Exchange Act) Capital Stock of Holdings representing at
least 15% of the outstanding equity represented by the outstanding Capital
Stock of Holdings, whether as a result of the issuance of securities,
merger or consolidation, transfer of securities or otherwise; provided,
however, that any transfer by Liberty necessary in order to comply with
restrictions imposed upon the ownership by Liberty of the Capital Stock of
Holdings by any federal or state court or regulatory authority or agency
with applicable jurisdiction that would, but for this proviso, result in a
Change of Control under this clause (vi), will not result in a Change of
Control so long as (x) Sony Pictures continues to own Capital Stock of
Holdings representing at least 20% of the outstanding equity represented by
the outstanding Capital Stock of Holdings and (y) Liberty continues to own
Capital Stock of the Network Company representing 25% of the equity and the
aggregate voting power represented by the outstanding Capital Stock of the
Network Company;
(vii) Liberty and Sony Pictures together cease to beneficially own
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act) Capital Stock
of the Network Company representing at least
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50% of the equity of the Network Company, whether as a result of the
issuance of securities, merger or consolidation, transfer of securities or
otherwise; or
(viii) following the Merger, Telemundo shall not be a wholly owned
Subsidiary of Holdings (other than by virtue of a merger or consolidation
with Holdings).
For the purposes of this definition of Change of Control, "equity"
shall be determined after giving effect to the exercise of all options, warrants
or other rights to acquire or purchase Capital Stock and the conversion or
exchange of all securities convertible into or exchangeable for Capital Stock,
less any exercise, conversion or exchange price therefor.
Within 30 days following the date on which a Change of Control occurs
(the "Change of Control Date"), unless Holdings has mailed a notice of
----------------------
redemption with respect to all the Outstanding Notes pursuant to Section 12.03,
notice of a Change of Control Offer shall be mailed by Holdings to the Holders
of Notes at their last registered addresses with a copy to the Trustee and the
Paying Agent. The Change of Control Offer shall remain open from the time of
mailing of the notice thereof until 5:00 p.m., New York City time, on the
Business Day preceeding the date on which the purchase price for the Notes will
be paid by Holdings (the "Change of Control Payment Date") (which shall be no
------------------------------
earlier than 30 days nor later than 60 days from the date such notice is
mailed). The notice, which shall govern the terms of the Change of Control
Offer, shall include such disclosures as are required by law and shall state:
(a) that the Change of Control Offer is being made pursuant to this
Section 10.10 and that all Notes validly tendered into the Change of
Control Offer will be accepted for payment;
(b) the purchase price (including the amount of accrued interest, if
any) for each Note, the Change of Control Payment Date and the date on
which the Change of Control Offer expires;
(c) that any Note not validly tendered for payment will continue to
increase in Accreted Value or accrue interest in accordance with the terms
thereof;
(d) that, unless Holdings shall default in the payment of the
purchase price, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to increase in Accreted Value or accrue interest
after the Change of Control Payment Date;
(e) that any Holder electing to have a Note puchased pursuant to any
Change of Control Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, or transfer by book-entry transfer, to Holdings, a
depositary, if appointed by Holdings, or a Paying Agent at the address
specified in the notice on or prior to 5:00 p.m., New York City time, on
the Business Day preceding the Change of Control Payment Date;
(f) that Holders of Notes will be entitled to withdraw their election
if the Paying Agent receives, not later than 5:00 p.m., New York City time,
on the Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holders, the
principal amount of Notes the Holders delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is withdrawing
his election to have such Notes purchased;
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(g) that Holders whose Notes are purchased only in part will be
issued Notes of like tenor equal in Accreted Value and principal amount at
maturity to the unpurchased portion of the Notes surrendered;
(h) the instructions that Holders must follow in order to tender
their Notes; and
(i) a description of the transaction or transactions constituting
such Change of Control.
On the Change of Control Payment Date, Holdings will (i) accept for
payment Notes or portions thereof tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent money, in immediately available funds,
sufficient to pay the purchase price of all Notes or portions thereof so
tendered and accepted and (iii) deliver to the Trustee the Notes so accepted
together with an Officers' Certificate setting forth the Notes or portions
thereof tendered to and accepted for payment by Holdings. The Paying Agent will
promptly mail or deliver to the Holders of Notes so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Note of like tenor equal in Accreted
Value and principal amount to any unpurchased portion of the Note surrendered.
Upon surrender and cancellation of a Physical Note that is purchased in part
pursuant to the Change of Control Offer, Holdings shall promptly issue and the
Trustee shall authenticate and mail (or cause to be transferred by book entry)
to the surrendering Holder of such Physical Note, a new Physical Note equal in
Accreted Value and principal amount at maturity to the unpurchased portion of
such surrendered Physical Note; provided that each such new Physical Note shall
be in a principal amount at maturity of $1,000 or an integral multiple thereof.
Any Notes not so accepted shall be promptly mailed or delivered by Holdings to
the Holder thereof. Holdings will publicly announce the results of the Change
of Control Offer not later than the first Business Day following the Change of
Control Payment Date.
If Holdings is required to make a Change of Control Offer, Holdings
will comply with all applicable tender offer laws and regulations, including, to
the extent applicable, Section 14(e) and Rule 14e-1 under the Exchange Act and
any other applicable securities laws and regulations. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 10.10, Holdings will comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 10.10 by virtue thereof.
Holdings will not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control Offer made by Holdings and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
The provisions under this Indenture relating to Holdings' obligation
to make an offer to purchase the Notes as a result of a Change of Control may be
waived or modified with the written consent of the Holders of a majority in
principal amount of the Notes then Outstanding.
Section 10.11. Limitation on Indebtedness.
--------------------------
(a) Holdings shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness; provided,
however, that (x) Holdings or any Restricted Subsidiary (other than Telemundo or
any of its Subsidiaries) may Incur Indebtedness if at the time of such
Incurrence and after giving effect thereto, the Consolidated Leverage Ratio is
less than or equal to 8.5 to 1.0 and (y) Telemundo or any of its Subsidiaries
may Incur Indebtedness if at the time of such Incurrence and after giving effect
thereto, the Con-
-62-
solidated Leverage Ratio is less than or equal to 7.0 to 1.0 (for purposes of
this clause (y), all references to Holdings or any Restricted Subsidiary in the
definitions used to calculate the Consolidated Leverage Ratio shall be to
Telemundo and its Subsidiaries (other than any Unrestricted Subsidiary)).
(b) Notwithstanding the foregoing paragraph (a), Holdings or any
Restricted Subsidiary, as applicable, may Incur any or all of the following
Indebtedness:
(1) Indebtedness of Holdings or any Restricted Subsidiary Incurred
under the Bank Credit Agreement in an aggregate amount not to exceed an
aggregate principal amount of $350 million at any time outstanding, less
the aggregate amount of any scheduled amortization payments or mandatory
prepayments made on term loans thereunder;
(2) the Notes, the Exchange Notes or any Indebtedness (including the
Exchange Notes) the proceeds of which are used to Refinance the Notes or
the Exchange Notes;
(3) Indebtedness of Telemundo or any of its Subsidiaries outstanding
on the Issue Date (other than Indebtedness referred to in clause (1) or (2)
of this Section 10.11(b));
(4) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to paragraph (a) of this Section 10.11 or pursuant to clause (2)
or (3) of this Section 10.11(b) or this clause (4);
(5) (i) Indebtedness of any Restricted Subsidiary owed to and held by
Holdings or any Restricted Subsidiary and (ii) Indebtedness of Holdings
owed to and held by any Restricted Subsidiary which is unsecured and
subordinated in right of payment to the payment and performance of
Holdings' obligations under the Notes; provided, however, that an
incurrence of Indebtedness that is not permitted by this clause (5) shall
be deemed to have occurred upon (x) any sale or other disposition of any
Indebtedness of Holdings or any Restricted Subsidiary referred to in this
clause (5) to any Person other than Holdings or any Restricted Subsidiary
or (y) any Restricted Subsidiary that holds Indebtedness of Holdings or
another Restricted Subsidiary ceasing to be a Restricted Subsidiary;
(6) Hedging Obligations consisting of Interest Rate Agreements or
Currency Agreements directly related to Indebtedness permitted to be
Incurred by Holdings or a Restricted Subsidiary pursuant to this Indenture;
(7) Capital Lease Obligations, Acquired Indebtedness, Purchase Money
Indebtedness and Attributable Debt with respect to Sale/Leaseback
Transactions, and Refinancing Indebtedness thereof, in an aggregate
principal amount not exceeding $25 million at any one time outstanding;
(8) Indebtedness of Holdings or any Restricted Subsidiary Incurred or
Incurrable in respect of reimbursement obligations related to letters of
credit, banker's acceptances or similar facilities entered into in the
ordinary course of business;
(9) Indebtedness of Holdings or any Restricted Subsidiary in respect
of bid, performance, surety and appeal bonds and obligations provided in
the ordinary course of business;
(10) Indebtedness of Telemundo of Chicago, Inc. and Video 44
Acquisition Corp., Inc., pursuant to Section 3.5(a) of the Chicago Joint
Venture Agreement;
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(11) any guarantee by Holdings of any Indebtedness (not prohibited
under this Indenture) of any Wholly Owned Restricted Subsidiary, and any
guarantee by any Wholly Owned Restricted Subsidiary of any Indebtedness
(not prohibited under this Indenture) of Holdings or any Wholly Owned
Restricted Subsidiary;
(12) Indebtedness of any Restricted Subsidiary Incurred in the
ordinary course of business under any Local Marketing Agreement in an
aggregate amount, together with the aggregate amount of Investments
pursuant to clause (xii) of the definition of "Permitted Investment," not
to exceed $10 million at any one time outstanding; and
(13) other Indebtedness in an aggregate principal amount not to exceed
$35 million at any one time outstanding.
(c) Notwithstanding the foregoing, Holdings shall not incur any
Indebtedness pursuant to the foregoing paragraph (b) of this Section 10.11 if
the proceeds thereof are used, directly or indirectly, to refinance any
Subordinated Obligations unless such Indebtedness shall be subordinated to the
Notes to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 10.11,
(i) in the event that an item of Indebtedness meets the criteria of more than
one of the types of Indebtedness described above, Holdings, in its sole
discretion, will classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of the above clauses and
(ii) an item of Indebtedness may be divided and classified in more than one of
the types of Indebtedness described above. A guarantee of Indebtedness
permitted by this covenant to be Incurred by Holdings or a Restricted Subsidiary
otherwise permitted to be Incurred pursuant to this covenant is not considered a
separate Incurrence for purposes of this covenant.
Section 10.12. Statement by Officers as to Default.
-----------------------------------
Holdings will deliver to the Trustee, within 120 days after the end of
each fiscal year of Holdings ending after the date hereof, a written statement
signed by the chairman or a chief executive officer, the principal financial
officer or principal accounting officer of Holdings, stating (i) that a review
of the activities of Holdings during the preceding fiscal year has been made
under the supervision of the signing officers with a view to determining whether
Holdings has kept, observed, performed and fulfilled its obligations under this
Indenture, and (ii) that, to the best knowledge of each officer signing such
certificate, Holdings has kept, observed, performed and fulfilled each and every
covenant and condition contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions, conditions and
covenants hereof (or, if a Default shall have occurred, describing all such
Defaults of which such officers may have knowledge, their status and what action
Holdings is taking or proposes to take with respect thereto). When any Default
under this Indenture has occurred and is continuing, or if the Trustee or any
Holder or the trustee for or the holder of any other evidence of Indebtedness of
Holdings or any Restricted Subsidiary gives any notice or takes any other action
with respect to a claimed default, Holdings will promptly notify the Trustee of
such Default, notice or action and will deliver to the Trustee by registered or
certified mail or by telegram, or facsimile transmission followed by hard copy
by registered or certified mail an Officers' Certificate specifying such event,
notice or other action within 30 days after the occurrence thereof and what
action Holdings is taking or proposes to take with respect thereto.
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Section 10.13. Limitation on Restricted Payments.
---------------------------------
(a) Holdings shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make a Restricted Payment if at the time
Holdings or such Restricted Subsidiary makes, and after giving effect to, the
proposed Restricted Payment: (i) a Default shall have occurred and be
continuing (or would result therefrom); (ii) Holdings is not able to incur an
additional $1.00 of Indebtedness pursuant to paragraph (a)(x) of Section 10.11;
or (iii) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum of:
(A) (x) the Cumulative EBITDA less (y) 1.4 times Cumulative
Consolidated Interest Expense, each as determined at the time of
such Restricted Payment;
(B) the aggregate Net Cash Proceeds (including Net Cash Proceeds
received upon the conversion of non-cash proceeds) received by
Holdings from capital contributions or the issuance or sale of
Qualified Stock subsequent to the Issue Date or any options,
warrants or rights to purchase Qualified Stock, together with the
aggregate cash received by Holdings at the time of exercise of
such options, warrants or rights (other than any such issuance or
sale to a Subsidiary of Holdings);
(C) the amount by which Indebtedness of Holdings is reduced on
Holdings' balance sheet upon the conversion or exchange (other
than by a Subsidiary of Holdings) of any Indebtedness of Holdings
or a Restricted Subsidiary issued subsequent to the Issue Date
for Qualified Stock (less the amount of any cash, or the fair
value of any other property, distributed by Holdings upon such
conversion or exchange), whether pursuant to the terms of such
Indebtedness or pursuant to an agreement with a creditor to
engage in an equity for debt exchange; and
(D) an amount equal to the sum of (i) the net reduction in
Investments in Unrestricted Subsidiaries or Investments
constituting Restricted Payments resulting from interest on debt,
dividends, repayments of loans or advances or other transfers of
assets or proceeds from the disposition of Capital Stock or other
distributions or payments, in each case to Holdings or any
Restricted Subsidiary from, or with respect to an Investment in,
Unrestricted Subsidiaries, and (ii) the portion (proportionate to
Holdings' equity interest in such Subsidiary) of the fair market
value of the net assets of an Unrestricted Subsidiary at the time
such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing sum shall not
exceed, in the case of any Unrestricted Subsidiary, the aggregate
amount of Investments previously made (and treated as a
Restricted Payment) by Holdings or any Restricted Subsidiary in
such Unrestricted Subsidiary subsequent to the Issue Date and the
aggregate amount of Investments in such Person constituting
Restricted Payments.
(b) The provisions of the foregoing paragraph (a) of this Section
10.13 shall not prohibit:
(i) any purchase or redemption of Capital Stock of Holdings or any
Restricted Subsidiary or Subordinated Obligations of Holdings made by
exchange for, or out of the proceeds of the substantially concurrent
issuance and sale of, Qualified Stock (other than any such issuance and
sale to a Subsidiary of Holdings) or out of the proceeds of a substantially
concurrent capital contribution to Holdings; provided, however, that (x)
such purchase, capital contribution or redemption shall be ex-
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cluded in the calculation of the amount of Restricted Payments and (y) the
Net Cash Proceeds from such sale of Capital Stock or capital contribution
shall be excluded from clause (iii)(B) of paragraph (a) of this Section
10.13;
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations in whole or
in part (including premium, if any, and accrued and unpaid interest) made
by exchange for, or out of the proceeds of the substantially concurrent
sale of, Indebtedness of Holdings which is permitted to be Incurred
pursuant to Section 10.11; provided, however, that such purchase,
repurchase, redemption, defeasance or other acquisition or retirement for
value shall be excluded in the calculation of the amount of Restricted
Payments;
(iii) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this covenant; provided, however, that such dividend shall be included
in the calculation of the amount of Restricted Payments if not already
taken into consideration for determining such amount upon the declaration
thereof; and
(iv) the redemption of Capital Stock of Holdings from present or
former directors, officers or employees of Holdings and its Subsidiaries or
their estates or beneficiaries pursuant to the terms of an employee benefit
plan or employment or other agreement; provided that the aggregate amount
of all such repurchases shall not exceed $3 million in any fiscal year and
$10 million since the Issue Date plus the aggregate cash proceeds received
by Holdings from any reissuance of such Capital Stock to directors,
officers and employees of Holdings and its Subsidiaries; provided, further,
that such redemption shall be excluded in the calculation of the amount of
Restricted Payments.
Section 10.14. Limitation on Affiliate Transactions.
------------------------------------
(a) Holdings shall not, and shall not permit any Restricted
Subsidiary to, enter into any transaction (including the purchase, sale, lease
or exchange of any property or the rendering of any service) with or for the
benefit of any Affiliate of Holdings (an "Affiliate Transaction") unless the
---------------------
terms thereof (1) are no less favorable to Holdings or such Restricted
Subsidiary than those that could be obtained at the time of such transaction in
a comparable transaction in arm's-length dealings with a Person who is not such
an Affiliate, (2) if such Affiliate Transaction involves an amount in excess of
$2.5 million, (i) are set forth in writing and (ii) have been approved by a
majority of the members of the Board of Directors of Holdings having no material
personal financial stake in such Affiliate Transaction and (3) if such Affiliate
Transaction involves an amount in excess of $10.0 million, have been determined
by a nationally recognized investment banking firm or nationally recognized
independent appraisal firm qualified to perform such task to be fair to Holdings
or such Restricted Subsidiary, as the case may be, from a financial point of
view.
(b) The provisions of the foregoing paragraph (a) of this Section
10.14 shall not prohibit (i) any Permitted Investment or Restricted Payment
permitted to be made pursuant to Section 10.13, or any payment or transaction
specifically excepted from the definition of Restricted Payment, (ii)
transactions exclusively between or among Holdings and one or more Restricted
Subsidiaries or exclusively between or among Restricted Subsidiaries; (iii)
customary directors' fees, indemnification and similar arrangements, employee
salaries, bonuses or employment agreements, compensation or retirement or
employee benefit arrangements and incentive arrangements with any officer,
director or employee of Holdings or any Restricted Subsidiary entered into in
the ordinary course of business; (iv) agreements (and transactions pursuant to
agreements), in effect on the Issue Date, including, without limitation, the
Affiliation Agreement, the Network Sale Agreement and the Stockholders Agreement
(but excluding the Sharing Agreement), as such agreements are in effect on such
date
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or as thereafter amended in a manner not materially adverse to Holdings in
the good faith judgment of the Board of Directors; (v) issuances of Qualified
Stock; or (vi) loans and advances to officers, directors and employees of
Holdings or any Restricted Subsidiary for travel, entertainment, moving and
other relocation expenses, in each case made in the ordinary course of business
and consistent with past business practices in an aggregate principal amount not
to exceed $2 million at any one time outstanding.
(c) The provisions of clauses (2) and (3) of the foregoing paragraph
(a) of this Section 10.14 shall not be applicable to any transaction between
Holdings and/or one or more Restricted Subsidiaries, on the one hand, and one or
more Affiliates of Holdings, on the other hand, for the provision of goods and
services in the ordinary course of business of Holdings and the Restricted
Subsidiaries and in the ordinary course of business of such Affiliate or
Affiliates (including any such transaction pursuant to the Sharing Agreement).
Section 10.15. Limitation on Sales of Assets and Subsidiary Stock.
--------------------------------------------------
(a) Holdings shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Disposition unless
(i) Holdings or such Restricted Subsidiary receives consideration at the time of
such Asset Disposition at least equal to the fair market value (including the
value of all non-cash consideration), as determined in good faith by the Board
of Directors of Holdings, of the shares and assets subject to such Asset
Disposition, and at least 75% of the consideration thereof received by Holdings
or such Restricted Subsidiary is in the form of cash or cash equivalents and
(ii) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied by Holdings (or such Restricted Subsidiary, as the case
may be) (A) first, to the extent Holdings elects (or is required by the terms of
any Indebtedness), to prepay, repay or redeem (and permanently reduce the
commitments under) Indebtedness under the Bank Credit Agreement or Indebtedness
of any Restricted Subsidiary within one year from the later of the date of such
Asset Disposition or the receipt of such Net Available Cash (the "Receipt Date")
------------
and/or to acquire Additional Assets; provided, however, that Holdings shall be
required to commit such Net Available Cash to the acquisition of Additional
Assets within nine months from the later of the date of such Asset Disposition
or the Receipt Date and shall be required to consummate the acquisition of such
Additional Assets within fifteen months from the Receipt Date; provided,
further, that if the other party to such acquisition refuses or fails, after the
first anniversary of the Receipt Date, to consummate such acquisition, Holdings
shall apply such Net Available Cash, within fifteen months from the Receipt
Date, as provided in the first part of this clause (A) or clause (B); (B)
second, to the extent of the balance of such Net Available Cash after
application in accordance with clause (A), to make an offer (an "Asset
-----
Disposition Offer") pursuant to paragraph (b) below (x) to the Holders to
-----------------
purchase Notes pursuant to and subject to the conditions contained in this
Indenture and (y) if applicable, to the holders of other Indebtedness of
Holdings that ranks pari passu with the Notes (the "Other Debt") and that by its
----------
terms requires Holdings to make an offer to purchase such Other Debt upon
consummation of an Asset Disposition, to purchase such Other Debt on a pro rata
basis with the Notes; and (C) third, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (A) and (B) to any
other application or use not prohibited by this Indenture. Notwithstanding the
foregoing provisions of this paragraph, Holdings and the Restricted Subsidiaries
shall not be required to apply the Net Available Cash in accordance with this
paragraph until the aggregate Net Available Cash from all Asset Dispositions
which is not applied in accordance with this paragraph exceeds $10.0 million (at
which time, the entire unutilized Net Available Cash, and not just the amount in
excess of $10.0 million, shall be applied pursuant to this paragraph).
For the purposes of this Section 10.15, the following are deemed to be
cash or cash equivalents: (x) the express assumption of Indebtedness of
Holdings or any Restricted Subsidiary and the release of Holdings or such
Restricted Subsidiary from all liability on such Indebtedness in connection with
such Asset Disposition; (y) securities received by Holdings or any Restricted
Subsidiary from the transferee that are con-
-67-
verted by Holdings or such Restricted Subsidiary into cash within 180 days of
closing the transaction; and (z) Temporary Cash Investments.
(b) In the event of an Asset Disposition that requires the purchase
of the Notes and, if applicable, Other Debt pursuant to clause (a)(ii)(B) of
this Section 10.15, Holdings will be required to purchase (i) Notes tendered
pursuant to an offer by Holdings for the Notes at a purchase price of 100% of
their aggregate Accreted Value, plus accrued and unpaid interest, if any, at the
date of purchase, if such purchase occurs prior to August 15, 2003, or 100% of
their aggregate principal amount, plus accrued but unpaid interest, if any, to
the date of purchase, if such purchase occurs thereafter, and (ii) if
applicable, Other Debt to the extent required thereby and provided there is a
permanent reduction in the principal amount thereof, in each case, in accordance
with the procedures (including prorating in the event of oversubscription) set
forth in this Indenture.
(c) Notice of an Asset Disposition Offer shall be mailed by Holdings
not more than 20 Business Days after the obligation to make such Asset
Disposition Offer arises to the Holders of Notes at their last registered
addresses with a copy to the Trustee and the Paying Agent. The Asset
Disposition Offer shall remain open from the time of mailing for at least 20
Business Days and until 5:00 p.m., New York City time, on the date fixed for
purchase of Notes validly tendered and not withdrawn, which date shall be not
later than the 30th Business Day following the mailing of such Asset Disposition
Offer (the "Asset Disposition Offer Purchase Date"). The notice, which shall
-------------------------------------
govern the terms of the Asset Disposition Offer, shall include such disclosures
as are required by law and shall state:
(i) that the Asset Disposition Offer is being made pursuant to this
Section 10.15 and that the Asset Disposition Offer shall remain open for a
period of 20 Business Days or such longer period as may be required by law;
(ii) the purchase price (including the amount of accrued interest,
if any) for each Note, the Asset Disposition Offer Purchase Date and the
date on which the Asset Disposition Offer expires;
(iii) that any Note not tendered for payment will continue to
increase in Accreted Value or accrue interest in accordance with the terms
thereof;
(iv) that, unless Holdings shall default in the payment of the
purchase price, any Note accepted for payment pursuant to the Asset
Disposition Offer shall cease to increase in Accreted Value or accrue
interest after the Asset Disposition Offer Purchase Date;
(v) that Holders electing to have Notes purchased pursuant to an
Asset Disposition Offer will be required to surrender their Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m., New
York City time, on the Asset Disposition Offer Purchase Date and must
complete any form letter of transmittal proposed by Holdings and acceptable
to the Trustee and the Paying Agent;
(vi) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Asset Disposition Offer Purchase Date, a facsimile
transmission or letter setting forth the name of the Holders, the principal
amount of Notes the Holders delivered for purchase, the Note certificate
number (if any) and a statement that such Holder is withdrawing his
election to have such Notes purchased;
-68-
(vii) that Holders whose Notes are purchased only in part will be
issued Notes of like tenor equal in principal amount to the unpurchased
portion of the Notes surrendered;
(viii) the instructions that Holders must follow in order to tender
their Notes; and
(ix) a description of the transaction or transactions resulting in
such Asset Disposition Offer.
On the Asset Disposition Offer Purchase Date, Holdings will (i) accept
for payment Notes or portions thereof tendered pursuant to the Asset Disposition
Offer, (ii) deposit with the Paying Agent money, in immediately available funds,
sufficient to pay the purchase price of all Notes or portions thereof so
tendered and accepted and (iii) deliver to the Trustee the Notes so accepted
together with an Officers' Certificate setting forth the Notes or portions
thereof tendered to and accepted for payment by Holdings. The Paying Agent will
promptly mail or deliver to the Holders of Notes so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Note of like tenor equal in principal
amount to any unpurchased portion of the Note surrendered. Any Notes not so
accepted shall be promptly mailed or delivered by Holdings to the Holder
thereof. Holdings will publicly announce the results of the Asset Disposition
Offer not later than the first Business Day following the Asset Disposition
Offer Purchase Date.
(d) Holdings shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
covenant. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, Holdings shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this clause by virtue thereof.
Section 10.16. Limitation on Liens.
-------------------
Holdings shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or permit to exist any Lien upon any of its
property or assets, now owned or hereafter acquired, securing any obligation
unless concurrently with the creation of such Lien effective provision is made
to secure the Notes equally and ratably with such obligation for so long as such
obligation is so secured; provided, that, if such obligation is a Subordinated
Obligation, the Lien securing such obligation shall be subordinated and junior
to the Lien securing the Notes with the same or lesser relative priority as such
Subordinated Obligation shall have been with respect to the Notes. The
preceding restriction shall not require Holdings or any Restricted Subsidiary to
secure the Notes if the Lien consists of the following:
(a) Liens created by this Indenture or otherwise securing the Notes,
Liens securing Indebtedness Incurred under the Bank Credit Agreement and
Liens on assets of Telemundo or any of its Subsidiaries existing as of the
Issue Date;
(b) Permitted Liens;
(c) Liens securing any Indebtedness of any Restricted Subsidiary
permitted to be Incurred pursuant to this Indenture;
(d) Liens to secure Purchase Money Indebtedness issued by Holdings or
a Restricted Subsidiary; provided, however, that (a) the Indebtedness
secured by such Liens shall have been permitted to be
-69-
Incurred under Section 10.11 and (b) such Liens shall not encumber any
property of Holdings or any Restricted Subsidiary other than the property
acquired or any improvement or accessions on or proceeds of such property
and shall attach to such property within 180 days of the acquisition or
completion of construction of such property;
(e) Liens on the assets or property of a Restricted Subsidiary
existing at the time such Restricted Subsidiary becomes a Restricted
Subsidiary and not incurred as a result of (or in connection with or in
anticipation of) such Restricted Subsidiary becoming a Restricted
Subsidiary; provided, however, that such Liens do not extend to or cover
any other property of Holdings or any other Restricted Subsidiary;
(f) Liens deemed to exist by virtue of the buyout provisions
contained in Sections 6 and 7 of the Chicago Joint Venture Agreement;
(g) Liens on property at the time of acquisition thereof by Holdings
or any Restricted Subsidiary provided such Liens were not given as a result
of, in connection with or in anticipation of such acquisition;
(h) Liens securing Capital Lease Obligations, Acquired Indebtedness
and Attributable Debt Incurred pursuant to clause (b)(7) of Section 10.11;
(i) Liens securing Indebtedness Incurred to Refinance Indebtedness
which has been secured by a Lien permitted under this Indenture and is
permitted to be Refinanced under this Indenture; provided, however, that
such Liens do not extend to or cover any property of Holdings or any
Restricted Subsidiary not securing the Indebtedness so Refinanced; or
(j) Liens on assets of Holdings or any Restricted Subsidiary securing
Indebtedness in an aggregate amount not to exceed $10 million.
Section 10.17. Limitation on Sale/Leaseback Transactions.
-----------------------------------------
Holdings shall not, and shall not permit any Restricted Subsidiary to,
enter into any Sale/Leaseback Transaction with respect to any property unless
(i) Holdings or such Restricted Subsidiary would be (A) in compliance with
Section 10.11 immediately after giving effect to such Sale/Leaseback Transaction
and (B) entitled to create a Lien on such property securing the Attributable
Debt with respect to such Sale/Leaseback Transaction without securing the Notes
pursuant to Section 10.16, (ii) the net proceeds received by Holdings or any
Restricted Subsidiary in connection with such Sale/Leaseback Transaction are at
least equal to the fair market value (as determined by the Board of Directors)
of such property and (iii) Holdings or such Restricted Subsidiary applies the
proceeds of such transaction in compliance with Section 10.15.
Section 10.18. Limitation on Asset Swaps.
-------------------------
Holdings will not, and will not permit any Restricted Subsidiary to,
engage in any Asset Swaps, unless:
(i) at the time of entering into the agreement with respect thereto
and immediately after giving effect to the proposed Asset Swap, no Default
shall have occurred and be continuing;
-70-
(ii) the respective fair market values of the Productive Assets (to
be determined in good faith by the Board of Directors of Holdings and to be
evidenced by a resolution of such Board of Directors set forth in an
Officer's Certificate delivered to the Trustee) being purchased and sold by
Holdings or any Restricted Subsidiary are substantially the same at the
time of entering into such agreement; and
(iii) the cash payments, if any, received by Holdings or such
Restricted Subsidiary in connection with such Asset Swap are treated as Net
Available Cash received from an Asset Disposition.
Section 10.19. Limitation on Restrictions on Distributions
from Restricted Subsidiaries.
-----------------------------
Holdings shall not, and shall not permit any Restricted Subsidiary to,
create or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary (a) to
pay dividends or make any other distributions on its Capital Stock to Holdings
or a Restricted Subsidiary or pay any Indebtedness owed to Holdings, (b) to make
any loans or advances to Holdings or (c) to transfer any of its property or
assets to Holdings, except: (i) any Permitted Restriction; (ii) any encumbrance
or restriction pursuant to any agreement in effect at or entered into on the
date of this Indenture as such agreement is in effect on such date; (iii) any
encumbrance or restriction with respect to a Person pursuant to an agreement
relating to any Indebtedness Incurred by such Person prior to the date on which
such Person became a Restricted Subsidiary and not Incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary; (iv) any encumbrance or restriction pursuant to an
agreement effecting Refinancing Indebtedness Incurred pursuant to an agreement
referred to in clause (ii) or (iii) above or this clause (iv) or contained in
any amendment to an agreement referred to in clause (ii) or (iii) above or this
clause (iv); provided, however, that the encumbrances and restrictions with
respect to any such Restricted Subsidiary contained in any such refinancing
agreement or amendment are no less favorable to the Holders in any material
respect as determined in good faith by the Board of Directors of Holdings than
encumbrances and restrictions with respect to such Restricted Subsidiary
contained in such agreements; (v) any such encumbrance or restriction (A)
consisting of customary non-assignment provisions in leases to the extent such
provisions restrict the subletting, assignment or transfer of the lease or the
property leased thereunder or in purchase money financings or (B) by virtue of
any Indebtedness, transfer, option or right with respect to, or any Lien on, any
property or assets of Holdings or any Restricted Subsidiary not otherwise
prohibited by this Indenture; (vi) in the case of clause (c) above, restrictions
contained in security agreements or mortgages securing Indebtedness of a
Restricted Subsidiary to the extent such restrictions restrict the transfer of
the property subject to such security agreements or mortgages; (vii)
encumbrances or restrictions imposed by operation of any applicable law, rule,
regulation or order; (viii) any restriction with respect to assets imposed
pursuant to an agreement entered into for the sale or disposition of such assets
pending the closing of such sale or disposition; (ix) customary non-assignment
provisions in licenses of intellectual property entered into in the ordinary
course of business (including programming agreements) and in Local Marketing
Agreements; (x) Capitalized Lease Obligations that are otherwise permitted
hereunder; provided, however, that such encumbrance or restriction does not
extend to any property other than that subject to the underlying lease; (xi) any
restriction imposed by Liens permitted under this Indenture; and (xii) any
encumbrance or restriction relating to an agreement relating to the acquisition
of assets or property so long as such encumbrances and restrictions relate
solely to the assets so acquired (and any improvements thereon).
-71-
Section 10.20. Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries.
---------------------------
Holdings shall not sell or otherwise dispose of any shares of Capital
Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
shares of its Capital Stock except (i) to Holdings or a Wholly Owned Restricted
Subsidiary; (ii) directors' qualifying shares or shares required by applicable
law to be held by a person other than Holdings or a Restricted Subsidiary; (iii)
the sale of all of the Capital Stock of a Restricted Subsidiary in accordance
with Section 10.15; (iv) in the case of issuance of Capital Stock by a non-
Wholly Owned Restricted Subsidiary if, after giving effect to such issuance,
such Restricted Subsidiary remains a Restricted Subsidiary; or (v) shares of
Capital Stock in any Restricted Subsidiary the assets of which are limited to a
low-power television station, the station license therefor and assets directly
related thereto.
Section 10.21. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by Holdings to the Trustee to take any
action under any provision of this Indenture, Holdings will furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenants compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with, and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which the furnishing
of such documents, certificates and/or opinions is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture will include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether such covenant or condition has
been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 10.22. Amendment of Affiliation Agreement.
----------------------------------
Holdings shall not amend the Affiliation Agreement except in a manner
that the Board of Directors of Holdings determines in good faith is not
materially adverse to Holdings (such determination of the Board of Directors of
Holdings to include the affirmative vote of at least two members who have been
designated as independent directors pursuant to the Stockholders Agreement).
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ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of Indenture.
---------------------------------------
The Indenture will cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of the Notes, as
expressly provided for in the Indenture) as to all outstanding Notes when: (i)
either (a) all the Notes theretofore authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid) have been delivered
to the Trustee for cancellation or (b) all Notes not theretofore delivered to
the Trustee for cancellation have become due and payable, will become due and
payable within one year or are to be called for redemption within one year under
irrevocable arrangements reasonably satisfactory to the Trustee for the giving
of notice of redemption by the Trustee and Holdings has irrevocably deposited or
caused to be deposited with the Trustee an amount in United States dollars
sufficient to pay and discharge the entire indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for the Accreted Value
of, premium, if any, and interest to the date of deposit or maturity or
redemption date; (ii) Holdings has paid or caused to be paid all other sums then
due and payable under the Indenture by Holdings; and (iii) Holdings has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel each
stating that all conditions precedent under the Indenture relating to the
satisfaction and discharge of the Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of Holdings to the Trustee under Sections 4.05 and 6.07 and, if
money shall have been deposited with the Trustee pursuant to subclause (1)(b) of
this Section 11.01, the obligations of the Trustee under Section 11.02 and the
last paragraph of Section 10.03 shall survive.
Section 11.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 11.01 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including Holdings acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the Accreted Value of, premium,
if any, and interest on the Notes for whose payment such money has been
deposited with the Trustee.
Any money deposited with the Trustee or any Paying Agent, or then held
by Holdings, in trust for the payment of the principal or Accreted Value of,
premium, if any, or interest on any Note and remaining unclaimed for two years
after such principal or Accreted Value, premium, if any, or interest has become
due and payable shall be paid to Holdings upon receipt of a Holdings Request
therefor, or (if then held by Holdings) will be discharged from such trust; and
the Holder of such Note will thereafter, as an unsecured general creditor, look
only to Holdings for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of Holdings as
trustee thereof, will thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of Holdings cause to be published once, at the option of Holdings in The
New York Times or The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specific therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be repaid to Holdings.
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ARTICLE TWELVE
REDEMPTION
Section 12.01. Notices to the Trustee.
----------------------
If Holdings elects to redeem Notes pursuant to Section 2 of the
Initial Notes or the Exchange Notes, it shall notify the Trustee of the
Redemption Date and principal amount of Notes to be redeemed. Holdings shall
notify the Trustee of any redemption at least 45 days before the Redemption Date
(unless a shorter period is acceptable to the Trustee) by an Officers'
Certificate, stating that such redemption will comply with the provisions hereof
and of the Notes.
Section 12.02. Selection of Notes To Be Redeemed.
---------------------------------
In the event that less than all of the Notes are to be redeemed at any
time, selection of such Notes for redemption will be made by the Trustee in
compliance with any applicable requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not then
listed on a national securities exchange (or if the Notes are so listed but the
exchange does not impose requirements with respect to the selection of debt
securities for redemption), on a pro rata basis, by lot or by such method as the
Trustee in its sole discretion shall deem fair and appropriate;
provided, however, that no Notes of a principal amount at maturity of $1,000 or
less shall be redeemed in part. The Trustee shall promptly notify Holdings and
the Registrar in writing of the Notes selected for redemption and, in the case
of any Notes selected for partial redemption, the principal amount at maturity
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall relate,
in the case of any Note redeemed or to be redeemed only in part, to the portion
of the principal amount of such Note which has been or is to be redeemed.
Section 12.03. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed, at the address of such Holder
appearing in the Note Register maintained by the Registrar. All notices of
redemption shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price, including the amount of accrued and unpaid
interest, if any, to be paid;
(c) that, unless Holdings defaults in making the redemption payment,
Accreted Value on Notes called for redemption ceases to increase and
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such Notes
is to receive payment of the Redemption Price plus accrued and unpaid
interest on the Notes through the Redemption Date, upon surrender to the
Paying Agent of the Notes redeemed;
(d) if any Note is to be redeemed in part, the portion of the
principal amount at maturity (equal to $1,000 or any integral multiple
thereof) of such Note to be redeemed and that on and after the
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Redemption Date, upon surrender for cancellation of such Note to the Paying
Agent, a new Note or Notes in the aggregate Accreted Value and principal
amount at maturity equal to the unredeemed portion thereof will be issued
without charge to the Noteholder;
(e) that Notes called for redemption (other than a Global Note) must
be surrendered to the Paying Agent to collect the Redemption Price and the
name and address of the Paying Agent; and
(f) the CUSIP or ISIN number, if any, relating to such Notes.
Notice of redemption of Notes to be redeemed at the election of
Holdings shall be given by Holdings or, at Holdings' written request, by the
Trustee in the name and at the expense of Holdings.
Section 12.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed, Notes called for redemption
become due and payable on the Redemption Date and at the Redemption Price. Upon
surrender to the Paying Agent, such Notes called for redemption shall be paid at
the Redemption Price plus accrued interest, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date will
be payable on the relevant Interest Payment Dates to the Holders of record at
the close of business on the relevant record dates referred to in the Notes.
Section 12.05. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, Holdings shall deposit with the
Paying Agent an amount of money in same day funds sufficient to pay the
Redemption Price of, and any accrued interest on, all the Notes or portions
thereof which are to be redeemed on that date, other than Notes or portions
thereof called for redemption on that date which have been delivered by Holdings
to the Trustee for cancellation. The Trustee or the Paying Agent shall promptly
return to Holdings any money deposited with the Trustee or the Paying Agent by
Holdings in excess of the amounts necessary to pay the Redemption Price of all
Notes to be redeemed.
If Holdings complies with the preceding paragraph, then, unless
Holdings defaults in the payment of such Redemption Price, Accreted Value or
interest on the Notes to be redeemed will cease to increase or accrue, as the
case may be, on and after the applicable Redemption Date, whether or not such
Notes are presented for payment, and the Holders of such Notes shall have no
further rights with respect to such Notes except for the right to receive the
Redemption Price, plus accrued and unpaid interest, if any, on the Notes through
the Redemption Date, upon surrender of such Notes. If any Note called for
redemption shall not be so paid upon surrender thereof for redemption, the
Accreted Value, premium, if any, and, to the extent lawful, accrued interest
thereon shall, until paid, bear interest from the Redemption Date at the rate
provided in the Notes.
Section 12.06. Notes Redeemed or Purchased in Part.
-----------------------------------
Upon surrender to the Paying Agent of a Note which is to be redeemed
in part, Holdings shall execute and the Trustee shall authenticate and deliver
to the Holder of such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder in aggregate Accreted Value
and principal amount equal to, and in exchange for, the unredeemed portion of
the principal of the Note so surrendered that is not redeemed.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first written above.
TELEMUNDO HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK OF MONTREAL TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President