Exhibit T3C
INDENTURE
among
BANCO RIO DE LA PLATA S.A.,
as Issuer
THE BANK OF NEW YORK
as Trustee, Co-Registrar and Co-Paying Agent
and
BANQUE INTERNATIONALE A LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
Dated as of May 19, 2000
Euro Medium Term Note Program
TABLE OF CONTENTS
Page
Section
1. General6
2. Trustee and Agents7
3. Certificates and Opinions7
4. Issuance of Notes9
5. Execution and Authentication; Pricing Supplements; Filing of Reports10
6. Form of Notes; Book Entry Provisions; Title18
7. Registration; Transfer and Exchange of Notes21
8. Definitive Notes29
9. Payments31
10. Mutilation or Loss of Notes; Record of Replacement or cancellation;
Repurchases33
11. The Trustee and the Agents35
12. Determination of Interest Rates and Currency Equivalents38
13. Corporate Trustee Required; Eligibility39
14. Disqualification of Trustee; Conflicting Interests39
15. Duties and Responsibilities of the Trustee; During Default; Prior
to Default39
16. Resignation and Removal of Trustee; Appointment of Successor41
17. Acceptance of Appointment by Successor Trustee42
18. Merger, Conversion, Consolidation or Succession to Business of Trustee42
19. Preferential Collection of Claims Against Issuer42
20. Resignation of Agents and Appointment of Successors42
21. Amendments Without the Consent of Holders44
22. Amendments With the Consent of Holders45
23. Redemption51
24. Acceleration of Maturity; Rescission and Annulment53
25. Collection of Indebtedness and Suits for Enforcement by Trustee54
26. Trustee May File Proofs of Claim55
27. Control by Holders of SEC Registered Notes56
28. Waiver of Past Defaults57
29. Unconditional Right of Holders to Receive Principal, Premium and
Interest57
30. Notices57
31. Reports by the Trustee58
32. Reports by the Issuer58
33. Payment of Taxes59
34. Disclosure of Names and Addresses of Holders59
35. Defeasance and Covenant Defeasance59
36. Subordination62
37. Money for Note Payments to Be Held in Trust67
38. Governing Law68
39. Conflict with Trust Indenture Act69
40. Jurisdiction69
41. Counterparts70
42. Rights and Remedies Cumulative70
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EXHIBIT A - FORM OF TERMS AND CONDITIONS
EXHIBIT B - FORM OF TEMPORARY GLOBAL NOTE
EXHIBIT C - FORM OF PERMANENT GLOBAL NOTE
EXHIBIT D - FORM OF REGISTERED GLOBAL NOTE
EXHIBIT E - FORM OF DEFINITIVE REGISTERED NOTE
EXHIBIT F - FORM OF DEFINITIVE BEARER NOTE
EXHIBIT G - FORM OF COUPON
EXHIBIT H - FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED
GLOBAL NOTE, TEMPORARY GLOBAL NOTE OR PERMANENT GLOBAL NOTE TO
REGULATION S GLOBAL NOTE
EXHIBIT I - FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED
GLOBAL NOTE OR PERMANENT GLOBAL NOTE TO UNRESTRICTED GLOBAL
NOTE
EXHIBIT J - FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION S
GLOBAL NOTE, TEMPORARY GLOBAL NOTE OR PERMANENT GLOBAL NOTE TO
RESTRICTED GLOBAL NOTE
EXHIBIT K - FORM OF CLEARING SYSTEM CERTIFICATE
EXHIBIT L - FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP
EXHIBIT M - TRUSTEE COMPENSATION
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THIS INDENTURE, dated as of May 19, 2000, among Banco Rio de
la Plata S.A., (the "Bank" or the "Issuer"), a bank incorporated with limited
liability, located in the city of Buenos Aires, Argentina ("Buenos Aires"),
incorporated under the laws of the Republic of Argentina on June 20, 1908, with
a term of duration expiring on July 31, 2008 and registered with the Public
Registry of Commerce on May 14, 1968 under number 1215, Page (folio) 64, Book
66, Volume A of National By-laws, having its domicile at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
(▇▇▇▇) ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, The Bank of New York, a New York banking
corporation, as Trustee (the "Trustee"), co-registrar ("Co-Registrar"), and
principal paying agent (the "Principal Paying Agent") and Banque Internationale
a Luxembourg S.A., a bank duly incorporated and existing under the laws of
Luxembourg, as paying agent and transfer agent (a "Paying Agent" and a "Transfer
Agent", as the case may be).
WHEREAS, the Bank has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of up
to US$1,000,000,000 (or its equivalent in another currency or composite
currency) in aggregate principal amount of its Obligaciones Negociables (herein
referred to as the "Notes") at any time outstanding, to be issued in one or more
series as provided in this Indenture;
WHEREAS, this Indenture complies with the provisions of the
Trust Indenture Act (as defined herein) that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions;
WHEREAS, the Trustee has agreed to act as Trustee under this
Indenture on the following terms and conditions; and
WHEREAS, the Trustee has reviewed the English translation of
the resolutions of the shareholders of the Bank adopted on December 3, 1999 and
of the resolutions of the Board of Directors of the Bank adopted on January 20,
2000 authorizing the issuance from time to time of the Notes and has reviewed
the Exhibit N;
WHEREAS, on September 30, 1999 the Bank had a total share
capital issued and authorized of 335,268,000 Pesos and the Bank's net worth was
1,172,832,000 Pesos;
NOW, THEREFORE, in consideration of the premises and the
purchase of the Notes by the Noteholders (as defined herein), it is mutually
agreed, for the equal and proportionate benefit of all Noteholders as follows:
DEFINITIONS
In this Indenture, the following terms shall have the
following meanings, except as otherwise expressly provided or unless the context
otherwise requires:
"Affiliate", when used with respect to any specified legal or
natural person, means any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
person except that no natural person shall be deemed to be controlled by any
other person. For purposes of this definition, "control" when used with respect
to any specified person, means the power to direct the management and policies
of such person, directly or indirectly, whether through the ownership of voting
securities, by contract or
otherwise; and the terms "controlling" and "controlled" shall have the meanings
correlative to the foregoing.
"Agent" means any dealer, selling agent or similar entity
named in any underwriting, subscription, distribution or similar agreement
executed in connection with any issuance and sale of Notes.
"Applicable Procedure" means the applicable rules and
procedures of DTC, Euroclear and Cedel, in each case to the extent applicable.
"Argentina" means the Republic of Argentina.
"Authorized Officers" means a member of the Supervisory
Commission of the Bank and a Director of the Bank along with such other officers
of the Bank as may be duly authorized by the Board of Directors to take actions
under this Indenture.
"Bank" means Banco Rio de la Plata S.A.
"Bearer Series" means any Series of Notes issued in bearer
form.
"Block Voting Instruction" has the meaning set forth in
Section 22.
"Board Resolution" means a copy of a resolution certified by
the Secretary of the Board of Directors to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Board of Directors" means either the Directorio of the Issuer
or any committee of such Directorio duly authorized to act for it in respect
hereof.
"Business Day", has the meaning set forth in Section 5(d).
"Cede" means Cede & Co.
"Cedel" means Cedel Bank, Societe Anonyme.
"CNV" means the Argentine Comision Nacional de Valores.
"Commission" means the United States Securities and Exchange
Commission.
"Common Depositary" has the meaning set forth in Section 6(a).
"Conditions" has the meaning set forth in Section 1(a).
"Co-Registrar" means the Trustee, acting as a registrar for
the Notes.
"Dealers" has the meaning set forth in Section 1(b).
"Defaulted Bearer Note" has the meaning set forth in Section
4(e).
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"Defaulted Registered Note" has the meaning set forth in
Section 4(e).
"Definitive Note" means a Note substantially in the form of
Exhibit E or F hereto, as such Exhibits may be supplemented or amended from time
to time pursuant to the applicable provisions of this Indenture.
"DTC" means The Depository Trust Company.
"Euro" means European Currency Unit.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Event of Acceleration" has the meaning set forth in Section
24(a).
"Event of Default" has the meaning set forth in Section 24(a).
"Event of Non-Payment" has the meaning set forth in Section
24(d).
"Exchange Act" has the meaning set forth in Section 5(g)(i).
"Exchange Date" has the meaning set forth in Section 7(b)(ix).
"Holder", or "Noteholder" means, in the case of a definitive
Bearer Note or a coupon, the bearer of such Note or coupon; in the case of a
Registered Global Note or a definitive registered Note, the person in whose name
such Note is registered; and in the case of a Temporary Global Note or Permanent
Global Note, the bearer of such Note.
"Interest Commencement Date" has the meaning set forth in
Section 5(e)(vii).
"Issue Date" has the meaning set forth in Section 5(e)(ii).
"Issue Price" has the meaning set forth in Section 5(e)(iii).
"Issuer" means Banco Rio de la Plata S.A.
"Legend" has the meaning set forth in Section 7(g).
"Negotiable Obligations Law" has the meaning set forth in
Section 13.
"Note" means any Note authenticated and delivered under this
Agreement and includes any Temporary Global Note, Permanent Global Note,
Registered Global Note and Definitive Note (including, in each case, any
Subordinated Note).
"Offering Circular" means the English and Spanish language
offering circulars relating to the Notes dated April 10, 2000, as they may be
amended, supplemented or replaced from time to time by the Issuer.
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"Officers' Certificate" means a certificate signed by the
Chairman of the Board or the Executive Vice Chairman, and a member of the
Supervisory Commission, of the Bank, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may, but need not, be counsel for the Issuer, and who shall be acceptable to the
Trustee.
"Outstanding", has the meaning set forth in Section 22(i).
"Paying Agent" has the meaning set forth in Section 2(b).
"Payment Date" has the meaning set forth in Section 9(a).
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pricing Supplement", has the meaning set forth in Section
5(d)(ii).
"Procedures Memorandum" means the Operating and Administrative
Procedures Memorandum, as it may be executed between the Issuer and the relevant
Dealer with the approval of the Trustee.
"Program" has the meaning set forth in Section 1(a).
"Record Date" has the meaning set forth in Section 7(c).
"Reference Banks" has the meaning set forth in Section 12(e).
"Register" has the meaning set forth in Section 7(a).
"Registered Global Note" has the meaning set forth in Section
6(d).
"Registered Note" has the meaning set forth in Section 1(a).
"Registered Series" means any Series of Notes issued in
registered form.
"Registrar" has the meaning set forth in Section 2(b). For
purposes of this Indenture the term "Registrar" shall be deemed to include any
applicable Co-Registrar, unless the context otherwise requires.
"Regulation S" has the meaning set forth in Section 6(a).
"Regulation S Global Note" has the meaning set forth in
Section 6(b).
"Responsible Officer", when used with respect to the Trustee,
means any officer within the corporate trust department (or any successor
department) of the Trustee, including, without limitation, any vice president,
any assistant vice president, any assistant secretary or any assistant
treasurer, or any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means,
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with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Global Note" has the meaning set forth in Section
6(d).
"Restricted Period", has the meaning set forth in Section
6(b).
"Rule 144A" has the meaning set forth in Section 6(d).
"SEC Registered Note" means any Note registered under the
Securities Act.
"SEC Registered Global Note" has the meaning set forth in
Section 6(c).
"Securities Act" has the meaning set forth in Section 4(c).
"Senior Indebtedness" means all amounts due on and obligations
in connection with any of the following, whether outstanding at the date of this
Indenture or thereafter incurred or created: (a) indebtedness, obligations and
other liabilities (contingent or otherwise) of the Issuer, Obligaciones
Negociables other than the Subordinated Notes, for money borrowed, or evidenced
by bonds, debentures, notes or similar instruments; (b) reimbursement
obligations and other liabilities (contingent or otherwise) of the Issuer with
respect to letters of credit, bankers' acceptances issued for the account of the
Issuer or with respect to interest rate protection agreements or currency
exchange or purchase agreements or similar agreements; (c) obligations and
liabilities (contingent or otherwise) in respect of leases by the Issuer as
lessee which, in conformity with generally accepted accounting principles, are
accounted for as capitalized lease obligations on the balance sheet of the
Issuer; (d) all direct or indirect guarantees or similar agreements in respect
of, and obligations or liabilities (contingent or otherwise) to purchase or
otherwise acquire or to perform or otherwise to assure a creditor against loss
of the Issuer in respect of, indebtedness, obligations or liabilities of the
nature described in clauses (a) through (c); (e) any indebtedness described in
clauses (a) through (d) secured by any mortgage, pledge, lien or other
encumbrance existing on property which is owned or held by the Issuer,
regardless of whether the indebtedness secured thereby shall have been assumed
by the Issuer; (f) any and all deferrals, renewals, extensions and refundings
of, or amendments, modifications or supplements to, any indebtedness, obligation
or liability of the kind described in clauses (a) through (e); (g) deposits of
any kind; and (h) other obligations incurred in the ordinary course of banking
business; unless in any case in the instrument creating or evidencing such
indebtedness, obligation, liability, guaranty, assumption, deferral, renewal,
extension or refunding, it is provided that such indebtedness is pari passu
with, or subordinated to, the Subordinated Notes.
"Series" has the meaning set forth in Section 1(b).
"Specified Currency" has the meaning set forth in Section
5(e)(v).
"Stated Maturity", when used with respect to any Note or any
installment of principal thereof or interest thereon, means the date specified
in such Note or a coupon representing such installment of interest as the fixed
date on which the principal of such Note or such installment of principal or
interest is due and payable.
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"Stock Exchange" has the meaning set forth in Section
5(e)(xxvi).
"Subordinated Global Note" has the meaning set forth in
Section (5)(e)(xxviii).
"Temporary Global Note" has the meaning set forth in Section
6(a).
"Tranche" has the meaning set forth in Section 1(b).
"Transfer Agent" has the meaning set forth in Section 2(b).
"Trust Indenture Act" means the United States Trust Indenture
Act of 1939, as amended, and any reference herein to the Trust Indenture Act or
a particular provision thereof shall mean such Act or provision as the case may
be, as amended or replaced from time to time or as supplemented from time to
time by rules or regulations adopted by the Commission under or in furtherance
of the purposes of such Act or provision, as the case may be.
"Trustee" has the meaning set forth in Section 2(a).
"Unrestricted Global Note" has the meaning set forth in
Section 6(b).
"US Dollar" or "US$" means the lawful currency of the United
States.
"Voting Certificate" has the meaning set forth in Section
22(f).
Terms and expressions defined in the Conditions or the Pricing
Supplement applicable to any Notes of any Series and not otherwise defined in
this Indenture shall have the same meanings in this Indenture, except where the
context otherwise requires. Any reference herein to Euroclear and/or Cedel will,
whenever the context so permits, be deemed to include a reference to any
additional or alternative clearance system (including, in the case of Notes
listed on the Paris Bourse, Societe Interprofessionnelle pour la Compensation
des Valeurs Mobilieres and the intermediares financiers habilites authorized to
maintain accounts therein (together, "SICOVAM")) approved by the Issuer, the
relevant Dealer(s) and the Trustee.
1. General. (a) Pursuant to a shareholders' meeting held on December 3,
1999, the Issuer has established a program (the "Program") for the issuance of
its Medium Term Notes. The Notes, which may be issued in bearer form if
permitted by applicable law and regulations, ("Bearer Notes") or in registered
form ("Registered Notes"), shall contain or incorporate by reference therein the
Terms and Conditions of the Notes (as the same may be amended from time to time,
the "Conditions") substantially as set forth in Exhibit A hereto.
(b) The Notes shall be issued in any Specified Currency,
subject to any laws or regulations applicable to such currency or composite
currency, as may be agreed upon by the Issuer and the relevant dealer or dealers
(the "Dealers") and indicated in the applicable Pricing Supplement and shall be
issued in tranches. Notes that are identical in all respects (including as to
Issue Date but without regard to whether they are issued in registered and/or
bearer form) shall constitute a "Tranche", and any Tranches of Notes that are
(i) expressed to be consolidated and form a single series and (ii) identical in
all respects, (except for their respective Issue Dates, Interest Commencement
Dates and/or Issue Prices and except for whether they are issued in
6
registered and/or bearer form) shall constitute a "Series". Each Note shall be
dated the date of its authentication. The Notes shall have such maturities as
may be specified in the relevant Pricing Supplement, subject to any applicable
laws and regulations. The Notes shall be in the denominations specified in the
applicable Pricing Supplement, subject to any applicable laws and regulations.
2. Trustee and Agents. (a) The Bank of New York has been named as
Trustee under this Indenture and in respect of the Notes upon the terms and
subject to the conditions herein set forth, and hereby agrees to serve in such
capacity. The Bank of New York and any successor or successors as such Trustee
qualified and appointed in accordance with Section 16 hereof, are herein
referred to as the "Trustee". The Trustee shall have the powers and authority
granted to and conferred upon it in the Notes and hereby and in the Trust
Indenture Act. All of the terms and provisions with respect to such powers and
authority contained in the Notes are subject to and governed by the terms and
provisions hereof.
(b) The Issuer may, at its discretion, appoint one or more
agents (each, a "Paying Agent" and collectively, the "Paying Agents") for the
payment (subject to applicable laws and regulations) of the principal of and any
interest (and any Additional Amounts, as defined in the Conditions) on the
Notes, and one or more agents (each a "Transfer Agent" and collectively, the
"Transfer Agents") for the transfer and exchange of Notes at such place or
places as the Issuer may determine; provided, however, that the Issuer shall
maintain, so long as any of the Notes are Outstanding or until monies for the
payment of all principal of and interest (and any Additional Amounts) on all
Outstanding Notes shall have been made available at the offices of the Trustee,
a Co-Registrar, a Paying Agent and a Transfer Agent in the City of New York
(which may be the Trustee), a Paying Agent and a Transfer Agent with a specified
office in a European city, a Registrar and a Paying Agent in Buenos Aires, so
long as any Notes are listed on the Luxembourg Stock Exchange and the rules of
the Luxembourg Stock Exchange so require, a Paying Agent and a Transfer Agent
with a specified office in Luxembourg and so long as any Notes are listed on any
other Stock Exchange, a Paying Agent with a specified office for such place as
may be required by the rules and regulations of such Stock Exchange. The Issuer
hereby initially appoints the Trustee at its office in the City of New York as
the Principal Paying Agent, the Co-Registrar and a Transfer Agent, and the
Trustee, by its execution hereof, hereby accepts such appointment. The Issuer
shall be the Registrar (the "Registrar"). The Issuer hereby initially appoints
Banque Internationale a Luxembourg S.A. at its office at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Grand Duchy of Luxembourg to act as a Paying Agent
and a Transfer Agent and Banque Internationale a Luxembourg S.A., by its
execution hereof, hereby accepts such appointment. The Issuer shall promptly
notify the Trustee in writing of the name and address of any other Paying Agent
or Transfer Agent appointed by it and of the country or countries in which a
Paying Agent or Transfer Agent may act in that capacity, and shall notify the
Trustee of the resignation or termination of any such Paying Agent or Transfer
Agent. Subject to the provisions of Section 20 hereof, the Issuer may vary or
terminate the appointment of any such Paying Agent or Transfer Agent at any time
and from time to time upon giving notice, as specified in Section 20, to such
Paying Agent or Transfer Agent, as the case may be, and to the Trustee.
3. Certificates and Opinions. (a) Upon any application or request
by the Issuer to the Trustee to take any action under any provision of this
Indenture, the Issuer shall furnish to the
7
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture 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 is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
(b) The Issuer shall deliver to the Trustee, within 90 days
after the end of each fiscal year, and within 60 days after the end of each
fiscal quarter (other than the fourth fiscal quarter), of the Issuer ending
after the date hereof a Certificate from the principal executive officer and the
principal financial officer or principal accounting officer, stating whether or
not to the best knowledge of the signers thereof the Issuer is in default in the
performance and observance of any of the terms, provisions and conditions of
Condition 11, and if the Issuer shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
(c) The Issuer shall deliver to the Trustee, as soon as
possible and in any event within ten days after the Issuer becomes aware or
should reasonably become aware of the occurrence of an Event of Default, Event
of Acceleration or Event of Non-Payment or any event which, with notice or the
lapse of time or both, would constitute an Event of Default, Event of
Acceleration or Event of Non-Payment, an Officers' Certificate setting forth the
details of such Event of Default, Event of Acceleration or Event of Non-Payment
or any such event, the period of existence thereof and the action which the
Issuer has taken or proposes to take with respect thereto.
(d) The Issuer shall deliver to the Trustee within 90 days
after the end of each fiscal year a written statement by the Issuer's
independent public accountants stating (A) that their audit examination has
included a review of the terms of this Indenture and the Notes as they relate to
accounting matters, and (B) whether, in connection with their audit examination,
any event which, with notice or the lapse of time or both, would constitute an
Event of Default, Event of Acceleration or Event of Non-Payment has come to
their attention and, if any such event has come to their attention, specifying
the nature and period of the existence thereof.
(e) Every certificate or opinion with respect to compliance
with a covenant or condition provided for in this Indenture shall include: (1) a
statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto; (2) 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; (3) a statement that, in the opinion of each such individual, such
examination or investigation as is necessary to enable such individual to
express an informed opinion as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are
8
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
4. Issuance of Notes. (a) Not later than the time specified in the
Procedures Memorandum, if applicable, the Issuer shall in respect of each
Tranche of each Series of Notes to be issued under this Indenture notify the
Trustee by telefax as to all such information as the Trustee may require for it
to carry out its functions as contemplated by this Section and the Procedures
Memorandum, and in particular the details required for it to complete the
relevant Temporary Global Note and/or Permanent Global Note or, as the case may
be, Regulation S Global Note and/or Restricted Global Note or SEC Registered
Global Note and the settlement details as required by the Procedures Memorandum
or in the relevant Pricing Supplement. The Issuer shall not agree on any Issue
Date unless it is a Business Day on which, Euroclear, Cedel and/or DTC, as
applicable, are operating.
(b) Each Tranche of a Bearer Series will initially be
represented by a Temporary Global Note substantially in the form of Exhibit B to
this Indenture (duly completed), exchangeable in whole or in part for interests
in a Permanent Global Note substantially in the form set out in Exhibit C to
this Indenture (duly completed). Notwithstanding the foregoing, Bearer Notes
with a maturity of not more than 365 days may initially be represented by one or
more Permanent Global Notes.
(c) Each Tranche of a Registered Series will have issued in
respect of it (i) in the case of Notes sold in an "offshore transaction" within
the meaning of Regulation S under the Securities Act, a Regulation S Global Note
(which shall, upon termination of the Restricted Period, be referred to herein
as an "Unrestricted Global Note"), (ii) in the case of Notes resold to
"qualified institutional buyers" within the meaning of Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), a Restricted Global
Note, and/or (iii) in the case of Notes registered under the Securities Act, a
SEC Global Registered Note. Each Regulation S Global Note, Unrestricted Global
Note, Restricted Global Note and SEC Registered Global Note shall be in
substantially the form (duly completed) set out in Exhibit D to this Indenture.
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(d) In respect of a Tranche of a Bearer Series, upon receipt
by the Trustee of the information from the Issuer referred to in Section 4(a)
enabling it to do so, and of the confirmation from the relevant Dealer(s), the
Trustee shall (i) complete (A) a Temporary Global Note in an aggregate principal
amount equal to the aggregate principal amount of the relevant Tranche and (B) a
related Permanent Global Note, (ii) authenticate each such Note by manual
signature (or arrange for each such Note to be authenticated on its behalf by
manual signature), and (iii) cause each such Note to be delivered to the Common
Depositary not later than the time specified in the Procedures Memorandum, if
applicable. In addition, the Trustee shall comply with all applicable provisions
of the Procedures Memorandum, if applicable.
In respect of a Tranche of a Registered Series, upon receipt
by the Trustee of the information from the Issuer referred to in Section 4(a)
enabling it to do so, and of the confirmation from the relevant Dealer(s), the
Trustee (or its agent on its behalf) shall complete a Regulation S Global Note
representing Notes sold in an "offshore transaction" within the meaning of
Regulation S under the Securities Act, and/or a Restricted Global Note
representing Notes resold pursuant to, and in reliance on, Rule 144A under the
Securities Act, which, in each case, shall bear the appropriate Legend (required
by Section 7(g)), and/or a SEC Registered Global Note representing Notes
registered under the Securities Act, together in aggregate principal amount
equal to the aggregate principal amount of the applicable Tranche. The Trustee
(or its agent on its behalf) shall, after checking that the Regulation S Global
Note, the Restricted Global Note and/or the SEC Registered Global Note, as
applicable, correctly reflects the relevant details contained in the Register,
authenticate it or them and deliver it or them to the Trustee as custodian for
DTC. In addition, the Trustee shall comply with all provisions of the Procedures
Memorandum, if applicable.
(e) If, on the relevant settlement date of a non-syndicated
issue, the relevant purchaser of a Bearer Note does not pay the subscription
price due from it in respect of such Note (the "Defaulted Bearer Note") and, as
a result, the Defaulted Bearer Note remains in the Trustee's distribution
account with Euroclear or Cedel after such Settlement Date (rather than being
credited to the purchaser's account against payment), then the Trustee shall
continue to hold the Defaulted Bearer Note on behalf of and to the order of the
Issuer.
If, on the relevant settlement date of a non-syndicated issue,
the purchaser of a registered Note does not pay the subscription price due from
it in respect of such Note (the "Defaulted Registered Note"), then the Trustee
shall notify the Co-Registrar and the custodian and such Defaulted Registered
Note shall not be entered in the Register and shall not be credited to the
purchaser's participation account with DTC.
(f) Pursuant to Argentine Law No. 24,587, effective November
22, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ companies are no longer allowed to issue securities in
bearer form. Accordingly, as long as the provisions of such law are applicable,
the Issuer will only issue Notes under the Indenture in registered form.
5. Execution and Authentication; Pricing Supplements; Filing of
Reports. (a) Upon the execution and delivery of this Indenture, or from time to
time thereafter, the Issuer may issue Notes in an aggregate principal amount not
in excess of, at any time Outstanding, US$1,000,000,000, or its equivalent in
other currencies or composite currency. The equivalent
10
in U.S. dollars of a currency or composite currency in which a Note is issued
shall be determined by the Issuer at the time of issuance of such Note and shall
not be affected by subsequent changes in exchange rates. The Issuer may only
increase such maximum aggregate principal amount outstanding by appropriate
corporate action, and upon execution of an indenture supplemented hereto by each
of the Issuer and the Trustee, by the filing of such documents with the CNV;
provided that such documents are required to be authorized by the CNV. (The
Trustee shall be entitled to rely, and shall be protected in so relying, on an
Officers' Certificate as to whether such documents are required to be authorized
by the CNV). Such increase and such indenture supplemental hereto shall not
require the consent of Holders.
(b) The Notes and coupons (if any) shall be executed on behalf
of the Issuer by a Director and a Syndic of the Issuer. Such signature shall be
the manual or, if approved by the CNV, the facsimile signature of a Director or
Syndic. If any Director or Syndic of the Issuer shall cease to be a Director or
Syndic before the Note (with signed coupons attached, if any) so signed shall be
authenticated and delivered by or on behalf of the Trustee or disposed of by the
Issuer, such Note nevertheless may be authenticated and such Note or coupon
delivered or disposed of as though the person who signed such Note or coupon had
not ceased to be a Director or Syndic of the Issuer; and any Note or coupon may
be signed on behalf of the Issuer by such person as, at the actual date of the
execution of such Note or coupon, shall be a Director or Syndic of the Issuer,
although at the date of the execution and delivery of this Indenture such person
was not such a Director or Syndic.
(c) The Trustee is hereby authorized to authenticate and
deliver, or cause to be authenticated and delivered, each Note upon the written
order of an Authorized Officer of the Issuer (which order shall specify the name
and address of the party to whom delivery is to be made) without any further
action by the Issuer. Any Note that is required to be authenticated by the
Trustee pursuant to this Section 5 shall be authenticated by an authorized
signatory of the Trustee. Until a Note has been authenticated, it shall have no
force and effect.
(d) In accordance with the provisions of the Procedures
Memorandum, if applicable, upon the conclusion of any agreement between the
Issuer and a Dealer or Dealers for the sale by the Issuer and the purchase by
such Dealer or Dealers of any Tranche of Notes, the Issuer shall, as soon as
practicable but in any event not later than the times provided in the Procedures
Memorandum, if applicable:
(i) confirm by telecopy the terms of such agreement to
the Trustee;
(ii) cause a pricing supplement for such Tranche
substantially in the form of Annex C to the Procedures Memorandum (a "Pricing
Supplement"), and in the case of a Tranche of Notes to be listed on a Stock
Exchange, cause the relevant Pricing Supplement to be forwarded by the Trustee
to the Listing Agent for delivery to any Stock Exchange on which the Notes are
to be listed; and
(iii) instruct the Trustee to complete, authenticate and
deliver the relevant Notes.
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For purposes of this Indenture, "Business Day" means a day on
which commercial banks and foreign exchange markets are open for business in
London and The City of New York, and (a) in relation to Notes denominated in a
Specified Currency other than Euro, which is a day on which commercial banks and
foreign exchange markets settle payments in the principal financial center of
the country of the relevant Specified Currency and (b) in relation to Notes
denominated in Euro, which day is not designated as an Euro non-settlement day
by the Euro Banking Association.
(e) There shall be set forth in the relevant Pricing
Supplement, as applicable:
(i) the Series number and the Tranche number;
(ii) the date on which the Notes will be issued (the
"Issue Date");
(iii) the aggregate principal amount of the Notes (the
"Principal Amount") and the price (generally expressed as a percentage of the
Principal Amount) at which the Notes will be issued (the "Issue Price");
(iv) the denominations of the Notes (the "Authorized
Denomination(s)");
(v) the specified currency (which shall include Argentine
pesos, Australian dollars, Austrian shillings, Canadian dollars, Danish krone,
Deutsche marks, Dutch guilders, Euro, Finnish markka, French francs, Hong Kong
dollars, Irish pounds, Italian lire, New Zealand dollars, Norwegian krone,
Portuguese escudos, Swedish kronor, Swiss francs, US$ dollars, Japanese yen or
such other currency or currencies as may be agreed between the Issuer and the
relevant Dealer(s)) in which the Notes will be denominated and, in the case of
Dual Currency Notes (as defined below), the currency or currencies in which
payment of interest and/or repayment or redemption in respect of the Notes is to
be made (each a "Specified Currency");
(vi) the interest and/or payment basis (the
"Interest/Payment Basis") of the Notes, which may be one or more of the
following:
(a) Notes bearing interest on a fixed rate basis
("Fixed Rate Notes");
(b) Notes bearing interest on a floating rate
basis ("Floating Rate Notes");
(c) Notes issued on a non-interest bearing basis
("Zero Coupon Notes");
(d) Notes in respect of which principal and/or
interest is calculated by reference to an index and/or a formula ("Indexed
Notes");
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(e) Notes in respect of which principal and/or
interest is or may be payable in one or more Specified Currencies other than the
Specified Currency in which they are denominated ("Dual Currency Notes"); or
(f) Notes which are to be issued on a partly paid
basis ("Partly Paid Notes");
(vii) in the case of interest-bearing Notes, the date, if
other than the Issue Date, from which such Notes bear interest (the "Interest
Commencement Date");
(viii) in the case of Notes other than Floating Rate
Notes, the date on which such Notes (unless previously redeemed or purchased and
cancelled) will be redeemed (the "Maturity Date");
(ix) in the case of Floating Rate Notes, the month and
year in which such Notes (unless previously redeemed or purchased and cancelled)
will be redeemed (the "Redemption Month");
(x) the amount at which each Note will be redeemed (the
"Final Redemption Amount"), generally expressed as a percentage of the Principal
Amount and/or in the case of Indexed Notes, as specified in accordance with (xv)
below;
(xi) in the case of Notes redeemable in installments:
(a) the date on which each installment is payable
(each an "Installment Date"); and
(b) the amount, generally expressed as a
percentage of the Principal Amount, of each such installment (each an
"Installment Amount");
(xii) in the case of Fixed Rate Notes:
(a) the rate, generally expressed as a percentage
rate per annum, at which the Notes bear interest (the "Fixed Rate of Interest"),
which may remain the same throughout the life of the Notes or increase and/or
decrease;
(b) the date(s) in each year on which interest is
payable throughout the life of the Notes (each a "Fixed Interest Payment Date");
(c) where the period from the Interest
Commencement Date to the first Fixed Interest Payment Date differs from the
period between subsequent Fixed Interest Payment Dates, the amount of the first
payment of interest (the "Initial Broken Amount");
(d) where the Maturity Date is not a Fixed
Interest Payment Date, the amount of the final payment of interest (the "Final
Broken Amount"); and
(e) any other terms relating to the particular
method of computing interest for such Notes;
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(xiii) in the case of Floating Rate Notes:
(a) the number of months or other period from (and
including) the Interest Commencement Date to (but excluding) the first Floating
Interest Payment Date (as defined in Condition 5(b)(i)) and from (and including)
that and each successive Floating Interest Payment Date thereafter to (but
excluding) the next following Floating Interest Payment Date (each an "Interest
Period"), which may or may not be the same number of months or other period
throughout the life of the Notes;
(b) whether the applicable Rate of Interest will
be calculated by reference to the Screen Rate Determination pursuant to
Condition 5(b)(ii) or the ISDA Rate pursuant to Condition 5(b)(iii);
(c) the reference rate (the "Reference Rate"),
being a variable rate, which may be LIBOR, a rate determined by reference to
Argentine financial instruments or some other rate and the method of computing
the variable rate of interest for such Reference Rate (the "Reference Basis") by
which the rate of interest (the "Rate of Interest") will be determined, in each
case, if different from that set out in Condition 5(b);
(d) the margin(s) (the "Margin(s)"), if any
(expressed as a percentage per annum), over or under the Reference Rate by which
the Rate of Interest is determined (which Margin may remain the same throughout
the life of the Notes or increase and/or decrease), specifying whether any such
Margin(s) is/are to be added to, or subtracted from, the Reference Date;
(e) the appropriate pages of the screen (if
applicable) or the appropriate pages of the Euro screen (if any) for the purpose
of Condition 5(b)(ii)(E)(1) or, as the case may be, Condition 6(c)(I);
(f) the dates on which the Rate of Interest is to
be determined (each an "Interest Determination Date") for the purposes of
Condition 5(b)(ii)(E)(2) which, if not specified in the applicable Pricing
Supplement, will be the second Business Day prior to the commencement of the
relevant Interest Period;
(g) the Minimum Rate of Interest, if any, at which
the Notes will bear interest, which may remain the same through the life of the
Notes or increase and/or decrease; and/or
(h) the Maximum Rate of Interest, if any, at which
the Notes will bear interest, which may remain the same throughout the life of
the Notes or increase and/or decrease;
(xiv) in the case of Zero Coupon Notes:
(a) the accrual yield in respect of such Notes
(the "Accrual Yield") expressed as a percentage rate per annum;
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(b) the reference price attributed to the Notes on
issue (the "Reference Price"); and
(c) any other formula or basis of determining the
amount payable;
(xv) in the case of Indexed Notes:
(a) the index (the "Index") to which amounts
payable in respect of principal and/or interest are linked and/or the formula
(the "Formula") to be used in determining the amounts of principal and/or
interest due;
(b) the party responsible for calculating the
amount of principal and/or interest due (if not the Trustee); and
(c) the provisions regarding calculation of
principal and/or interest in circumstances where such calculation by reference
to the Index and/or the Formula is impossible and/or impracticable;
(xvi) in the case of Dual Currency Notes:
(a) the exchange rate(s) or basis of calculating
the exchange rate(s) to be used in determining the amounts of principal and/or
interest due (the "Rate of Exchange");
(b) the party responsible for calculating the
amount of principal and/or interest due (if not the Trustee);
(c) the provisions regarding calculating of
principal and/or interest in circumstances where such calculation by reference
to the Rate of Exchange is impossible and/or impracticable; and
(d) the person at whose option any Specified
Currency or Currencies is or are to be payable;
(xvii) in the case of Partly Paid Notes:
(a) the amount of each installment (expressed as a
percentage of the principal amount of each Note) of the Issue Price for such
Notes;
(b) the due date(s) for any subsequent
installments of the Issue Price;
(c) the date (if any) after which the Issuer shall
cancel any relevant Partly Paid Notes should payment of any subsequent
installment(s) together with accrued interest not be made on or prior to such
dated;
15
(d) the rate(s) of interest to accrue on the first
and any subsequent installment(s) after the due date for payment of any such
installment(s); and
(e) any other relevant information;
(xviii) whether the Notes are to be redeemable at the
option of the Issuer (other than for taxation reasons) and/or the Noteholders
and, if so:
(a) each date upon which redemption may occur
(each an "Optional Redemption Date");
(b) each redemption amount for the Notes (each an
"Optional Redemption Amount") and/or the method, if any, of calculating the
same; and
(c) in the case of Notes redeemable by the Issuer
in part, (1) the minimum principal amount, if any, of the Notes permitted to be
so redeemed at any time (the "Minimum Redemption Amount") and any greater
principal amount of the Notes permitted to be so redeemed at any time (each a
"Higher Redemption Amount"), if any, and (2) the method of selecting the Notes
or portions thereof to be so redeemed (e.g., pro rata, by lot or as otherwise
selected by the Trustee in accordance with applicable law and any applicable and
any applicable stock exchange regulations);
(xix) the redemption amount (the "Early Redemption
Amount") in respect of the Notes payable on redemption for taxation reasons or
following an Event of Default, Event of Acceleration or Event of Non-Payment
and/or the method, if any, of calculating the same if required to be specified
by, or if different from that set out in Condition 7(g);
(xx) whether talons for future interest coupons are to be
attached to definitive Bearer Notes on issue and, if so, the date on which such
talons mature;
(xxi) details of the relevant stabilizing dealer, if any;
(xxii) any additional selling restrictions that are
required;
(xxiii) details of any other relevant terms of such Notes
or special conditions and of any modifications to the Conditions of the Notes;
(xxiv) applicable definition of "Business Day" if
different from that set out in Section 5(d) hereof;
(xxv) as applicable, the relevant Euroclear and Cedel
common code, ISIN, CINS and/or CUSIP numbers;
(xxvi) details of any additional or alternative clearance
system approved by the Issuer and the Trustee and, if the relevant Notes are
listed on the Luxembourg Stock Exchange, the Paris Bourse or any other
securities exchange (each a "Stock Exchange"), details concerning such Stock
Exchange;
16
(xxvii) whether the Notes are convertible automatically
or at the option of the Issuer and/or the Noteholders into Notes of another
Interest/Payment Basis and, if so, the date(s) upon which such conversion will
occur or such option(s) may be exercised, and the Interest/Payment Basis and
other relevant terms;
(xxviii) whether the Notes are to be subordinated to all
Senior Indebtedness of the Issuer, including deposits (such Notes being referred
to as "Subordinated Notes");
(xxix) whether the Notes are to be secured (such Notes
being referred to as "Secured Notes").
(xxx) whether the Notes are to be listed on any Stock
Exchange;
(xxxi) the form of the Notes;
(xxxii) the intended use of proceeds of the Notes, if
other than as stated in the Offering Circular under the caption "Use of
Proceeds";
(xxxiii) (the method of distribution of the Notes;
(xxxiv) the name(s) of the Dealer(s) or syndicate of
Dealers that are to offer and sell the Notes to be issued;
(xxxv) whether the Notes are to be registered under the
Securities Act or are to be sold in reliance on an exemption from the
registration provisions thereof (naming such exemption);
(xxxvi) in the case of any Notes listed on the Paris
Bourse, any information required by the Paris Bourse; and
(xxxvii) any other information that the Issuer and the
Dealers deem necessary or advisable to include in such Pricing Supplement.
(f) Upon receipt of a written request from the Issuer, the
Trustee shall (on behalf of the Issuer and on the basis of the information and
documentation the Trustee has in its possession) use all reasonable efforts to
submit such reports or information in its possession required from time to time
by any applicable law, regulation or guideline promulgated by any relevant
governmental authority (including, without limitation, bank regulatory
authorities) in respect of the issue and purchase of Notes denominated in the
applicable currency of such governmental authority.
(g) with respect to SEC Registered Notes, the Issuer shall:
(i) furnish to the Trustee, within 15 days after the
Issuer is required to file the same with or furnish the same to the Commission:
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer may
17
be required to file with or furnish to the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"); or, if the Issuer is not required to file information, documents or
reports pursuant to either of such Sections, then it shall furnish to the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such information as is required to be
furnished to the Commission pursuant to Rule 12g3-2(b) under the Exchange Act;
(ii) furnish to the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations;
(iii) transmit to all holders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, within 30 days
after the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed or furnished by the Issuer pursuant
to paragraphs (i) and (ii) of this Section 5(g) as may be required by rules and
regulations prescribed from time to time by the Commission; and
(iv) furnish to the Trustee written notice of the
occurrence of any Event of Default, Event of Acceleration, Event of Non-Payment
or event which, with the giving of notice or the passage of time, would become
an Event of Default, Event of Acceleration or Event of Non-Payment, within 5
Business Days of its becoming aware of any such Event of Default, Event of
Acceleration, Event of Non-Payment or event.
6. Form of Notes; Book Entry Provisions; Title.
(a) Temporary Global Note; Permanent Global Note. Notes of a
Tranche to be issued in bearer form if permitted by applicable Argentine law and
regulations, and sold in transactions outside the United States in reliance on
Regulation S ("Regulation S") under the Securities Act shall initially be issued
in the form of a temporary global Note in bearer form, without interest coupons,
substantially in the form of Exhibit B hereto (a "Temporary Global Note"), which
shall be deposited on behalf of the subscribers for the Notes represented
thereby with a common depositary (the "Common Depositary") for Cedel and
Euroclear, duly executed by the Issuer and authenticated by or on behalf of the
Trustee in the manner set forth in Section 5 hereof for credit on the Issue Date
to the accounts as they may direct. Interests in a Temporary Global Note will be
exchangeable, in whole or in part, for interests in a permanent global Note in
bearer form without interest coupons, representing Notes of the same Series,
substantially in the form of Exhibit C hereto (a "Permanent Global Note"), after
the date 40 days after the completion of the distribution (as determined by the
Issuer (based solely on information certified by the relevant Dealers)) of all
Notes of the Tranche of which such Notes are a part issued prior to such
determination, upon certification of non-US beneficial ownership, in accordance
with the provisions of such Temporary Global Note and this Indenture. Interests
in a Permanent Global Note will be exchangeable for definitive Bearer Notes in
accordance with the provisions of such Permanent Global Note and this Indenture
(including Section 8(a) hereof). Notwithstanding the foregoing, Bearer Notes
with a maturity of not more than 365 days may initially be represented by one or
more Permanent Global Notes.
18
(b) Regulation S Global Note; Unrestricted Global Note. Notes
to be issued in registered form and sold in transactions outside the United
States in reliance on Regulation S shall be issued in the form of a permanent
global Note in fully registered form without interest coupons (the "Regulation S
Global Note"), substantially in the form of Exhibit D hereto, with such legends
as may be applicable thereto, which global Note and the applicable Pricing
Supplement shall be deposited on or prior to the Issue Date of the relevant
Tranche of such Series on behalf of the subscribers for the Notes represented
thereby with the Trustee, as custodian for DTC, and registered in the name of
Cede as DTC's nominee, such global Note to be duly executed by the Issuer and
authenticated by or on behalf of the Trustee in the manner set forth in Section
5 hereof for credit on the Issue Date of such Tranche to the accounts of the
relevant Dealers at Euroclear and Cedel or such other accounts as they may
direct. Until and including the 40th day after the completion of the
distribution (as determined by the Issuer (based solely on information certified
by the relevant Dealers)) of all Notes of the Tranche of which such Notes are a
part issued prior to such determination and notified by the Issuer to the
Trustee and each of Euroclear, Cedel and DTC (the "Restricted Period"),
interests in such global Note may only be held by the agent members of Euroclear
and/or Cedel. Until such time as the Restricted Period shall have terminated,
such global Note shall be referred to herein as the "Regulation S Global Note".
After such time as the Restricted Period shall have terminated, such global Note
shall be referred to herein as the "Unrestricted Global Note". The aggregate
principal amount of the Regulation S Global Note and the Unrestricted Global
Note may from time to time be increased or reduced by adjustments made on the
records of the Trustee, as custodian for DTC, or DTC or its nominee as the case
may be, as hereinafter provided.
(c) SEC Registered Global Note. Registered Notes to be
registered under the Securities Act shall be issued in the form of a permanent
global Note in fully registered form without interest coupons (the "SEC
Registered Global Note"), substantially in the form of Exhibit D hereto, which
global Note and the applicable Pricing Supplement shall be deposited on or prior
to the Issue Date of the relevant Tranche of such Series on behalf of the
subscribers of the Notes represented thereby with the Trustee, as custodian for
DTC, and registered in the name of Cede as DTC's nominee, such global Note to be
duly executed by the Issuer and authenticated by or on behalf of the Trustee, in
the manner set forth in Section 5 hereof, for credit on the Issue Date of such
Tranche to the accounts of the relevant Dealers at DTC or such other accounts as
they may direct. The aggregate principal amount of the SEC Registered Global
Note may from time to time be reduced by adjustments made on the records of the
Trustee, as custodian for DTC, or DTC or its nominee, as the case may be, as
hereinafter provided.
(d) Restricted Global Note. Notes to be issued in registered
form and sold in reliance on Rule 144A under the Securities Act ("Rule 144A")
shall be issued in the form of a permanent global Note in fully registered form
without interest coupons (the "Restricted Global Note" and, together with the
Regulation S Global Note, the Unrestricted Global Note and the SEC Registered
Global Note, the "Registered Global Notes" and each individually, a "Registered
Global Note"), substantially in the form set forth in Exhibit D hereto, with
such legends as may be applicable thereto, which global Note and the applicable
Pricing Supplement shall be deposited on or prior to the Issue Date of the
relevant Tranche of such Series on behalf of the subscribers for the Notes
represented thereby with the Trustee, as custodian for DTC, and registered in
the name of Cede as DTC's nominee, such global Note to be duly executed by the
Issuer and authenticated by or on behalf of the Trustee in the manner set forth
in Section 5
19
hereof, for credit on the Issue Date of such Tranche to the accounts of the
relevant Dealers at DTC or such other accounts as they may direct. The aggregate
principal amount of the Restricted Global Note may from time to time be
increased or reduced by adjustments made on the records of the Trustee, as
custodian for DTC, or DTC or its nominee, as the case may be, as hereinafter
provided.
(e) Book-Entry Provisions.
(i) DTC Book-Entry Provisions. This Section 6(e)(i) shall
apply only to Registered Global Notes.
For each Series comprising any Notes to be issued in
registered form, the Issuer shall execute and the Trustee shall, in accordance
with Section 5 hereof, authenticate and deliver initially one or more Registered
Global Notes that (a) shall be registered in the name of DTC or Cede, as DTC's
nominee, (b) shall be held by the Trustee as custodian for DTC or pursuant to
DTC's instructions and (c) shall bear legends substantially to the following
effect:
"Unless this Global Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Issuer or its agent for registration of transfer, exchange or payment,
and any Global Note issued is registered in the name of Cede & Co. ("Cede") or
such other entity as is requested by an authorized representative of DTC (and
any payment hereon is made to Cede or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede (or such other entity as is requested by an authorized
representative of DTC), has an interest herein".
"Transfers of this Global Note shall be limited to transfers
in whole, but not in part, to nominees of DTC or to a successor thereof or such
successor's nominee, except that transfers of portions of this Global Note may
be made in accordance with the restrictions set forth in Section 7(b) and
Section 8 of the Indenture referred to in this Global Note".
So long as DTC or its nominee is the registered owner or
holder of a Registered Global Note, DTC or its nominee, as the case may be, will
be considered the sole owner or holder of the Notes represented by such
Registered Global Note for purposes of this Indenture and the Notes. Members of,
or participants in, DTC and account holders and participants in Euroclear and/or
Cedel shall have no rights under this Indenture with respect to any Registered
Global Note held on their behalf by DTC, and DTC may be treated by the Issuer,
the Trustee, the Registrar, the Co-Registrar, any Paying Agent, any Transfer
Agent and any agent of such entities as the absolute owner of such Registered
Global Note for all purposes whatsoever.
(ii) Offshore Book-Entry Provisions. This Section
6(e)(ii) shall apply only to Regulation S Global Notes or Unrestricted Global
Notes deposited on behalf of the subscribers for the Notes represented thereby
with the Trustee as custodian for DTC for credit to their respective accounts
(or to such other accounts as they may direct) at DTC in accordance with the
terms and conditions hereof and of the Notes and, insofar as interests in such
Regulation
20
S Global Note or Unrestricted Global Note are held through Euroclear's or
Cedel's participant account at DTC by the agent members of Euroclear or Cedel,
to their respective accounts at Euroclear or Cedel.
The provisions of the "Operating Procedures of the Euroclear
System", the "Terms and Conditions Governing Use of Euroclear", the "Management
Regulations", the "Instructions to Participants" and any other rules and
regulations adopted from time to time of Euroclear and Cedel, respectively,
shall be applicable to such Regulation S Global Note or Unrestricted Global Note
insofar as interests in such Regulation S Global Note or Unrestricted Global
Note are held by the agent members of Euroclear or Cedel. Account holders or
participants in DTC and/or Euroclear and Cedel shall have no rights under this
Indenture with respect to such Regulation S Global Note or Unrestricted Global
Note, and the nominee of DTC may be treated by the Issuer, the Trustee, the
Registrar, the Co- Registrar, any Paying Agent, any Transfer Agent or any agent
of such entities as the owner of such Regulation S Global Note or Unrestricted
Global Note for all purposes whatsoever.
(iii) Provisions Applicable to All Global Notes.
Notwithstanding the foregoing provisions of this Section 7(e), nothing herein
shall prevent the Issuer, the Trustee, the Registrar, the Co-Registrar, any
Paying Agent, any Transfer Agent or any agent of such entities from giving
effect to any written certification, proxy or other authorization furnished by
DTC, Euroclear or Cedel, as the case may be, or impair, as between DTC,
Euroclear or Cedel, as the case may be, and their respective agent members, the
operation of customary practices governing the exercise of the rights of a
holder of any Global Note. The Trustee, the Registrar, the Co-Registrar, any
Paying Agent, any Transfer Agent or any agent of any of such entities may
conclusively rely and shall be protected in so relying on the records of DTC,
Euroclear or Cedel, as applicable, as to the identity of owners of beneficial
interests in each Global Note and the principal amounts beneficially owned.
(f) Title. Title to Bearer Notes shall pass by delivery.
Title to Registered Notes shall pass only by registration in the Register
maintained by the Registrar pursuant to Section 7(a).
(g) Identification. Each Global Note shall be assigned, as
applicable, a different common code, ISIN, CINS and/or CUSIP number. Where a
further Tranche of Notes of the same Series is issued, the Notes of such Tranche
shall be assigned, as applicable, a common code, ISIN, CINS and/or CUSIP number
that is or are different from the common code, ISIN, CINS and/or CUSIP number
assigned to the Notes of any other Tranche of such Series at least until the
expiration of the Restricted Period in respect of such Tranche of Notes.
7. Registration; Transfer and Exchange of Notes, (a) Subject to any
applicable laws and such reasonable regulations as it may prescribe, the Issuer
as registrar (the "Registrar") shall keep books (the "Register") at ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ 480 (1036) Buenos Aires, Argentina for the registration of ownership,
exchange, and transfer of registered Notes. The Co-Registrar shall also maintain
a record of all registrations of ownership, exchange and transfer of registered
Notes. The Co-Registrar shall give prompt notice to the Registrar and the
Registrar shall likewise give prompt notice to the Co-Registrar of any
registration of ownership, exchange or transfer of registered Notes. Included in
the books and records for the registered Notes shall be
21
notations as to whether such registered Notes have been paid, exchanged or
transferred and cancelled or lost, stolen, mutilated or destroyed and whether
such registered Notes have been replaced. In the case of the replacement of any
of the registered Notes, the Registrar and the Co-Registrar shall keep a record
of the registered Note so replaced and the registered Note issued in replacement
thereof. In the case of the cancellation of any of the registered Notes, the
Registrar and the Co-Registrar shall keep a record of the registered Note so
cancelled and the date on which such registered Note was cancelled. The costs
and expenses of effecting any exchange or registration of transfer except for
the expense of delivery by other than regular mail (if any) and except for the
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith shall be borne by the Issuer.
Upon presentation for exchange or transfer of any registered
Note at the office of either the Registrar or Co-Registrar accompanied by a
written instrument of transfer or exchange in a form approved by the Issuer (it
being understood that, until notice to the contrary is given to holders of
registered Notes, the Issuer shall be deemed to have approved the form of
instrument of transfer or exchange, if any, printed on any such Note), executed
by the registered holder or his attorney-in-fact duly authorized in writing, and
upon completion of any certification required by the terms of this Indenture,
such registered Note shall be transferred or exchanged upon the Register, and
one or more new registered Notes shall be authenticated and issued in the name
of the holder (in the case of exchanges only) or a registered Note shall be
effective under this Indenture or the registered Notes unless and until such
registered Note has been registered in the name of such Person in the Register.
Furthermore, the transfer or exchange of any registered Note shall not be
effective under this Indenture or the registered Notes unless the request for
such transfer or exchange is made by the registered holder or by a duly
authorized attorney-in-fact at the office of the Trustee, the Registrar or the
Co-Registrar or of a Transfer Agent.
(b) Registered Global Notes; Temporary Global Notes;
Permanent Global Notes. Notwithstanding any provision to the contrary herein, so
long as a Registered Global Note remains Outstanding and is held by or on behalf
of DTC, transfers of interests between Registered Global Notes, in whole or in
part, shall only be made in accordance with this Section 7(b) and, so long as a
Temporary Global Note or Permanent Global Note remains Outstanding and is held
by or on behalf of the Common Depositary, exchanges of such Temporary Global
Note for a Permanent Global Note, in whole or in part, or of a Temporary Global
Note or a Permanent Global Note for an interest in a Registered Global Note, in
whole or in part, shall only be made in accordance with this Section 7(b).
(i) Transfers of Registered Global Notes in Whole.
Subject to clauses (ii) through (iv) and clause (viii) of this Section 7(b)
transfers of a Registered Global Note shall be limited to transfers of such
Registered Global Note in whole, but not in part, to nominees of DTC or to a
successor of DTC or such successor's nominee.
(ii) Restricted Global Note to Regulation S Global Note.
If Notes of a single Tranche are issued in the form of a Regulation S Global
Note and a Restricted Global Note, and if a holder of a beneficial interest in
the Restricted Global Note wishes at any time to transfer its interest in such
Restricted Global Note to a person who wishes to take delivery thereof in the
form of an interest in the Regulation S Global Note, such holder may, subject to
the rules and procedures of DTC, Cedel and Euroclear, in each case to the extent
applicable, and
22
the provisions of this Section 7(b)(ii), transfer or cause the transfer of such
interest for a beneficial interest in such Regulation S Global Note. Upon
receipt by the Trustee of (1) instructions given in accordance with the rules
and procedures of DTC from an agent member of DTC directing the Trustee to debit
or cause to be debited from the account of such agent member a beneficial
interest in the Restricted Global Note in an aggregate principal amount equal to
that being transferred and to credit or cause to be credited to a specified
account of the agent member of DTC for Euroclear or Cedel, or both, as the case
may be, a beneficial interest in the Regulation S Global Note in an aggregate
principal amount equal to that of the beneficial interest in the corresponding
Restricted Global Note to be transferred, (2) a written order given by the
holder of such beneficial interest in accordance with the rules and procedures
of DTC containing information regarding the Euroclear or Cedel account to be
credited with such increase and the name of such account, and (3) a certificate
in the form of Exhibit H hereto given by the holder of such beneficial interest
to be transferred, the Trustee shall instruct DTC, its nominee or the custodian
for DTC, as applicable, to reduce or reflect on its records a reduction of such
Restricted Global Note by the aggregate principal amount of the beneficial
interest in such Restricted Global Note to be so transferred by debiting or
causing to be debited the account of the agent member giving such instructions
and the Trustee shall instruct DTC, its nominee or the custodian for DTC, as
applicable, concurrently with such reduction, to increase or reflect on its
records an increase of the principal amount of such Regulation S Global Note by
the aggregate principal amount of the beneficial interest in such Restricted
Global Note to be so transferred, and to credit or cause to be credited to the
account of the person specified in such instructions (which shall be the agent
member of DTC for Euroclear or Cedel, or both, as the case may be) a beneficial
interest in the Regulation S Global Note equal to the reduction in the principal
amount of such Restricted Global Note.
(iii) Restricted Global Note to Unrestricted Global Note.
If Notes of a single Tranche are issued in the form of a Regulation S Global
Note and a Restricted Global Note, and if a holder of a beneficial interest in
the Restricted Global Note wishes at any time to transfer its interest in such
Restricted Global Note to a person who wishes to take delivery thereof in the
form of an interest in the Unrestricted Global Note, such holder may, subject to
the rules and procedures of DTC, Cedel and Euroclear, in each case to the extent
applicable, and the provisions of this Section 7(b)(iii), transfer or cause the
transfer of such interest for a beneficial interest in such Unrestricted Global
Note. Upon receipt by the Trustee of (1) instructions given in accordance with
the rules and procedures of DTC from an agent member of DTC directing the
Trustee to debit or cause to be debited from the account of such member a
beneficial interest in the Restricted Global Note in an aggregate principal
amount equal to that being transferred and to credit or cause to be credited to
a specified account of an agent member of DTC a beneficial interest in the
Unrestricted Global Note, in an aggregate principal amount equal to that of the
beneficial interest in the corresponding Restricted Global Note to be
transferred, (2) a written order given by the holder of such beneficial interest
in accordance with the rules and procedures of DTC containing information
regarding the participant account of DTC to be credited with such increase, and
(3) a certificate in the form of Exhibit I hereto given by the holder of such
beneficial interest to be transferred, the Trustee shall instruct DTC, its
nominee or the custodian for DTC, as applicable, to reduce or reflect on its
records a reduction of such Restricted Global Note by the aggregate principal
amount of the beneficial interest in such Restricted Global Note to be so
transferred by debiting or causing to be debited the account of the agent member
giving such instructions, and the Trustee shall instruct DTC, its nominee or the
custodian for DTC, as
23
applicable, concurrently with such reduction, to increase or reflect on its
records an increase of the principal amount of such Unrestricted Global Note by
the aggregate principal amount of the beneficial interest in such Restricted
Global Note to be so transferred, and to credit or cause to be credited to the
account of the agent member specified in such instructions a beneficial interest
in such Unrestricted Global Note equal to the reduction in the principal amount
of such Restricted Global Note.
(iv) Regulation S Global Note or Unrestricted Global Note
to Restricted Global Note. If Notes of a single Tranche are issued in the form
of a Restricted Global Note and a Regulation S Global Note and if a holder of a
beneficial interest in the Regulation S Global Note or (after the applicable
Restricted Period) the Unrestricted Global Note wishes at any time to transfer
its interest in such Regulation S Global Note or Unrestricted Global Note to a
person who wishes to take delivery thereof in the form of an interest in the
Restricted Global Note, such holder may, subject to the rules and procedures of
DTC, Euroclear and Cedel, in each case to the extent applicable, and the
provisions of this Section 7(b)(iv), transfer or cause the transfer of such
interest for a beneficial interest in the Restricted Global Note. Upon receipt
by the Trustee of (1) instructions from the agent member of DTC for Euroclear or
Cedel or (only in the case of an Unrestricted Global Note) any other agent
member of DTC, as the case may be, directing the Registrar or Co-Registrar to
debit or cause to be debited from the account of such agent member a beneficial
interest in the Regulation S Global Note or the Unrestricted Global Note, as the
case may be, in an aggregate principal amount equal to that being transferred
and to credit or cause to be credited to a specified account of an agent member
a beneficial interest in the Restricted Global Note in an aggregate principal
amount equal to that of the beneficial interest in the corresponding Regulation
S Global Note or the Unrestricted Global Note, as the case may be, to be so
transferred, such instructions to contain information regarding the agent
member's account with DTC to be credited with such increase, and (2) with
respect to a transfer of an interest in the Regulation S Global Note (but not
the Unrestricted Global Note) for an interest in the corresponding Restricted
Global Note, a certificate in the form of Exhibit J hereto given by the holder
of such beneficial interest, the Trustee shall instruct DTC, its nominee, or the
custodian for DTC, as applicable, to reduce or reflect on its records a
reduction of such Regulation S Global Note or Unrestricted Global Note, as the
case may be, by the aggregate principal amount of the beneficial interest in
such Regulation S Global Note or Unrestricted Global Note, as the case may be,
to be so transferred by debiting or causing to be debited the account of the
agent member giving such instructions, and the Trustee shall instruct DTC, its
nominee or the custodian for DTC, as applicable, concurrently with such
reduction, to increase or reflect on its records an increase of the principal
amount of such Restricted Global Note by the aggregate principal amount of the
beneficial interest in such Regulation S Global Note or Unrestricted Global
Note, as the case may be, to be so transferred, and to credit or cause to be
credited to the account of the agent member of DTC specified in such
instructions a beneficial interest in such Restricted Global Note equal to the
reduction in the principal amount of the corresponding Regulation S Global Note
or the corresponding Unrestricted Global Note, as the case may be.
(v) Temporary Global Note or Permanent Global Note to
Regulation S Global Note. If Notes of a single Tranche are issued in the form of
a Temporary Global Note or a Permanent Global Note and a Regulation S Global
Note, and if a holder of a beneficial interest in the Temporary Global Note or
Permanent Global Note, as the case may be, wishes at any time
24
to transfer its interest in such Temporary Global Note or Permanent Global Note,
as the case may be, to a person who wishes to take delivery thereof in the form
of an interest in the Regulation S Global Note, such holder may, subject to the
rules and procedures of DTC, Cedel and Euroclear, in each case to the extent
applicable, and the provisions of this Section 7(b)(v), transfer or cause the
transfer of such interest for a beneficial interest in such Regulation S Global
Note. Upon receipt by the Trustee of (1) instructions given in accordance with
the rules and procedures of Cedel and Euroclear, from the Common Depositary for
Euroclear and Cedel on behalf of such holder of a beneficial interest, directing
the Trustee to debit or cause to be debited the Temporary Global Note or
Permanent Global Note, as the case may be, to reflect a reduction in aggregate
principal amount thereof equal to that being transferred and directing the
Trustee to credit or cause to be credited to a specified account of the agent
member of DTC for Euroclear or Cedel, or both, as the case may be, a beneficial
interest in the Regulation S Global Note in an aggregate principal amount equal
to that of the beneficial interest in the corresponding Temporary Global Note or
Permanent Global Note to be transferred, (2) a written order given by the holder
of such beneficial interest in accordance with the rules and procedures of DTC,
Cedel and Euroclear, in each case to the extent applicable, containing
information regarding the Euroclear or Cedel account to be credited with such
increase and the name of such account, and (3) a certificate in the form of
Exhibit H hereto given by the holder of such beneficial interest, the Trustee
shall endorse or cause to be endorsed the Temporary Global Note or Permanent
Global Note, as the case may be, to reduce such Temporary Global Note or
Permanent Global Note by the aggregate principal amount of the beneficial
interest in such Temporary Global Note or Permanent Global Note to be so
transferred, and the Trustee shall instruct DTC, its nominee or the custodian
for DTC, as applicable, concurrently with such reduction, to increase or reflect
on its records an increase of the principal amount of such Regulation S Global
Note by the aggregate principal amount of the beneficial interest in such
Temporary Global Note or Permanent Global Note to be so transferred, and to
credit or cause to be credited to the account of the person specified in such
instructions (which shall be the agent member of DTC for Euroclear or Cedel, or
both, as the case may be) a beneficial interest in the Regulation S Global Note
equal to the reduction in the principal amount of such Temporary Global Note or
Permanent Global Note, as the case may be.
(vi) Permanent Global Note to Unrestricted Global Note.
If Notes of a single Tranche are issued in the form of a Temporary Global Note
or a Permanent Global Note and a Regulation S Global, and if (A) a holder of a
beneficial interest in any Permanent Global Note for which beneficial interests
in such Temporary Global Note have been exchanged wishes at any time or (B) a
holder of a beneficial interest in any Permanent Global Note originally issued
as a Permanent Global Note wishes at any time after 40 days after the completion
of the distribution (as determined by the Issuer (based solely on information
certified by the relevant Dealers)) of all Notes of the Tranche of which such
Notes are a part issued prior to such determination, of all Notes of the Tranche
of which such Notes are a part, in either such case to transfer its interest in
any such Permanent Global Note to a person who wishes to take delivery thereof
in the form of an interest in the Unrestricted Global Note, such holder may,
subject to the rules and procedures of DTC, Cedel and Euroclear, in each case to
the extent applicable, and the provisions of this Section 7(b)(vi), transfer or
cause the transfer of such interest for an equivalent beneficial interest in
such Unrestricted Global Note. Upon receipt by the Trustee of (1) instructions
given in accordance with the rules and procedures of Cedel and Euroclear from
the Common Depositary on behalf of such holder of a beneficial interest,
directing the Trustee to debit or cause to be debited the Permanent Global Note
to reflect a reduction in the aggregate
25
principal amount thereof equal to that being transferred and directing the
Trustee to credit or cause to be credited to a specified account of the agent
member of DTC a beneficial interest in the Unrestricted Global Note in an
aggregate principal amount equal to that of the beneficial interest in the
corresponding Permanent Global Note to be transferred, and (2) a written order
given by the holder of such beneficial interest in accordance with the rules and
procedures of DTC, Cedel and Euroclear, in each case to the extent applicable,
containing information regarding the Euroclear or Cedel account to be credited
with such increase and the name of such account, the Trustee shall endorse or
cause to be endorsed the Permanent Global Note to reduce such Permanent Global
Note by the aggregate principal amount of the beneficial interest in such
Permanent Global Note to be so transferred, and the Trustee shall instruct DTC,
its nominee or the custodian for DTC, as applicable, concurrently with such
reduction, to increase or reflect on its records an increase of the principal
amount of such Unrestricted Global Note by the aggregate principal amount of the
beneficial interest in such Permanent Global Note to be so transferred, and to
credit or cause to be credited to the account of the agent member specified in
such instructions (which shall be the agent member of DTC) a beneficial interest
in the Unrestricted Global Note equal to the reduction in the principal amount
of such Permanent Global Note.
(vii) Temporary Global Note or Permanent Global Note to
Restricted Global Note. If Notes of a single Tranche are issued in the form of a
Restricted Global Note and a Temporary Global Note or Permanent Global Note and
if a holder of a beneficial interest in the Temporary Global Note or any
Permanent Global Note originally issued as a Permanent Global Note or for which
beneficial interests in such Temporary Global Note have been exchanged wishes at
any time to transfer its interest in such Temporary Global Note or Permanent
Global Note to a person who wishes to take delivery thereof in the form of an
interest in the Restricted Global Note, such holder may, subject to the rules
and procedures of DTC, Euroclear and Cedel, in each case to the extent
applicable, and the provisions of this Section 7(b)(vii), transfer or cause the
transfer of such interest for an equivalent beneficial interest in the
Restricted Global Note. Upon receipt by the Trustee of (1) instructions given in
accordance with the rules and procedures of Cedel and Euroclear from the Common
Depositary on behalf of such holder or a beneficial interest, directing the
Trustee to debit or cause to be debited the Temporary Global Note or the
Permanent Global Note, as the case may be, to reflect a reduction in the
aggregate principal amount thereof equal to that being transferred and directing
the Trustee to credit or cause to be credited to a specified account of an agent
member of DTC a beneficial interest in the Restricted Global Note in an
aggregate principal amount equal to the beneficial interest in the corresponding
Temporary Global Note or the Permanent Global Note to be transferred, such
instructions to contain information regarding the agent member's account with
DTC to be credited with such increase, and (2) with respect to a transfer of an
interest in (A) the Temporary Global Note or (B) prior to the expiration of 40
days after the completion of the distribution (as determined by the Issuer
(based solely on information certified by the relevant Dealers)) of all Notes of
the Tranche of which such Notes are a part issued prior to such determination,
the Permanent Global Note, in either such case for an interest in the
corresponding Restricted Global Note, a certificate in the form of Exhibit J
hereto given by the holder of such beneficial interest, the Trustee shall
endorse or cause to be endorsed the Temporary Global Note or Permanent Global
Note, as the case may be, to reduce such Temporary Global Note or Permanent
Global Note by the aggregate principal amount of the beneficial interest in such
Temporary Global Note or Permanent Global Note to be so transferred, and the
Trustee shall instruct DTC, its nominee or the custodian for DTC, as applicable,
concurrently with such reduction, to increase or reflect on
26
its records an increase of the principal amount of such Restricted Global Note
by the aggregate principal amount of the beneficial interest in such Temporary
Global Note or Permanent Global Note, as the case may be, to be so transferred,
and to credit or cause to be credited to the account of the agent member
specified in such instructions a beneficial interest in such Restricted Global
Note equal to the reduction in the principal amount of the corresponding
Temporary Global Note or Permanent Global Note, as the case may be.
(viii) Other Transfers or Exchanges. In the event that a
Registered Global Note is exchanged for definitive registered Notes without
interest coupons pursuant to Section 8 hereof, such Notes may be exchanged or
transferred for one another only in accordance with such procedures as are
substantially consistent with the provisions of clauses (ii) through (vii) above
(including the certification requirements intended to ensure that such exchanges
or transfers comply with Rule 144, Rule 144A or Regulation S under the
Securities Act, as the case may be) and as may be from time to time adopted by
the Issuer.
(ix) Temporary Global Note to Permanent Global Note.
Interests in a Temporary Global Note as to which the Trustee has received from
Euroclear or Cedel, as the case may be, a certificate substantially in the form
of Exhibit K to the effect that Euroclear or Cedel, as applicable, has received
a certificate substantially in the form of Exhibit L from the holder of a
beneficial interest in such Note, will be exchanged, on and after the 40th day
after the completion of the distribution (as determined by the Issuer (based
solely on information certified by the relevant Dealers)) of all Notes of the
Tranche of which such Notes are a part issued prior to such determination (the
"Exchange Date"), for interests in a Permanent Global Note representing Notes of
the same Series. The Trustee shall effect such exchange by delivering to the
Common Depositary for credit to the respective accounts of the holders of
beneficial interests in such Notes (if and to the extent that Euroclear or Cedel
has delivered to the Trustee the necessary certifications substantially in the
form of Exhibit K), a duly executed and authenticated Permanent Global Note,
representing the aggregate principal amount of beneficial interests in the
Temporary Global Note initially exchanged for beneficial interests in the
Permanent Global Note unless a Permanent Global Note representing Notes of such
Series shall have previously been so delivered, in which case the Trustee shall
endorse or cause to be endorsed such Permanent Global Note to reflect the
increase in the principal amount thereof. The delivery to the Trustee by
Euroclear or Cedel of the certificate or certificates referred to above may be
relied upon by the Issuer and the Trustee as conclusive evidence that the
certificate or certificates referred to therein has or have been delivered to
Euroclear or Cedel pursuant to the terms of this Indenture and the Temporary
Global Note. Upon any exchange of interests in a Temporary Global Note for
interests in a Permanent Global Note, the Trustee shall endorse or cause to be
endorsed the Temporary Global Note to reflect the reduction in the principal
amount represented thereby by the amount so exchanged and shall endorse or cause
to be endorsed the Permanent Global Note to reflect the corresponding increase
in the amount represented thereby. Until so exchanged in full and except as
provided therein, the Temporary Global Note shall in all respects be entitled to
the same benefits under this Indenture as the Permanent Global Note and
definitive Bearer Notes authenticated and delivered hereunder. Except as
provided therein, the Permanent Global Note shall in all respects be entitled to
the same benefits under this Indenture as definitive Bearer Notes authenticated
and delivered hereunder.
27
(c) No transfer between a Note of one Series and the Note of
another Series shall be permitted. Neither the Registrar nor the Co-Registrar
shall register the transfer of or exchange of interests in a Registered Global
Note for a definitive registered Note or the transfer of or exchange of a
registered Note during the period commencing on the 15th day prior to the due
date for any payment of principal of or interest on such Note and ending on the
due date for any payment of principal of or interest on such Note (such 15th day
being the "Record Date").
(d) In no event may the Registrar or the Co-Registrar
register the transfer of or exchange of (i) interests in an SEC Registered
Global Note for interests in any other Registered Global Note, any Temporary
Global Note or any Permanent Global Note, or (ii) interests in a registered Note
for interests in a Bearer Note.
(e) Registration of transfer and exchange of any Note or
Notes shall be permitted and executed as provided in the Conditions, this
Section 7 and Section 8, and the costs and expenses of effecting any
registration of transfer or exchange will be borne as provided in the
Conditions, subject to such reasonable regulations as the Issuer, the Registrar,
the Co-Registrar and the Transfer Agents may prescribe and provided that the
Registrar, the Co-Registrar and the Transfer Agents may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith and any other amounts required to be paid by the provisions hereof or
of the Notes.
(f) All registered Notes surrendered for registration of
transfer or exchange shall be delivered to the Trustee or a Transfer Agent. All
Bearer Notes surrendered for exchange shall be delivered to a Transfer Agent
located outside the United States. The Trustee or the Transfer Agents, as
applicable, shall cancel all such Notes surrendered for transfer or exchange and
upon such cancellation or exchange provide a certificate to the Issuer
evidencing such cancellation or exchange. Any Transfer Agent appointed pursuant
to Section 2 hereof shall provide to the Trustee, the Registrar or the
Co-Registrar such information as the Trustee, the Registrar or the Co-Registrar
may require in connection with the delivery by such Transfer Agent of Notes upon
transfer or exchange of Notes.
(g) If registered Notes are issued upon the transfer,
exchange or replacement of registered Notes not bearing the legends required by
the form of Registered Global Note attached as Exhibit D hereto or the form of
definitive registered Note attached as "Exhibit E" hereto, as the case may be
(collectively, the "Legend"), the Notes so issued shall not bear the Legend. If
registered Notes are issued upon the transfer, exchange or replacement of
registered Notes bearing the Legend, or if a request is made to remove the
Legend on a registered Note, the registered Notes so issued shall bear the
Legend, or the Legend shall not be removed, as the case may be, unless there is
delivered to the Issuer and the Trustee such satisfactory evidence, which may
include an opinion of counsel licensed to practice law in the State of New York,
as may be reasonably required by the Issuer that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that any
transfer thereof is made in a transaction exempt from the registration
requirements of the Securities Act. Upon provision of such satisfactory
evidence, the Trustee, at the written direction of the Issuer, shall
authenticate and deliver a registered Note that does not bear the Legend. If the
Legend is removed from the face of a registered Note and such Note is
subsequently held by the Issuer or an affiliate of the Issuer, the Issuer shall
notify in writing the Trustee, the Transfer Agent, the Registrar and the
Co-Registrar of such fact and shall
28
deliver or cause to be delivered to the Trustee such registered Note and the
Legend shall be reinstated. For purposes of this Section 7(g), the term
"affiliate" shall have the meaning given that term in Rule 144(a)(1) under the
Securities Act.
8. Definitive Notes.
(a) Conditions for Issuance. Interests in a Registered Global
Note deposited with the Trustee as custodian for DTC pursuant to Section 6(b),
6(c) or 6(d) shall be transferred to the beneficial owners thereof in the form
of definitive registered Notes only if such transfer complies with Section 7(b)
and Section 7(c) and (i) DTC notifies the Issuer that it is unwilling or unable
to continue as depositary for such Registered Global Note or at any time ceases
to be a "clearing agency" registered under the Exchange Act, and a successor
depositary so registered is not appointed by the Issuer within 90 days of such
notice, or (ii) the Issuer determines that the Registered Global Note with
respect to any Series of Notes shall be exchanged in full for definitive
registered Notes. Definitive registered Notes shall be issued without coupons in
amounts of US$250,000 (or the equivalent thereof in the currency in which such
Note is denominated rounded to the nearest 1,000 units of such currency) and
higher integral multiples US$50,000 (or the equivalent thereof in the currency
in which such Note, is denominated rounded to the nearest 1,000 units of such
currency) or in such denominations as may be specified in the applicable Pricing
Supplement, subject to compliance with all applicable legal and regulatory
requirements. Interests in a Permanent Global Note deposited with the Common
Depositary in accordance with Section 6(a) shall be transferred to the
beneficial owners thereof in the form of definitive Bearer Notes substantially
in the form of Exhibit F hereto, with interest coupons, if any, attached,
substantially in the form of Exhibit G hereto, only if (x) Euroclear or Cedel,
as applicable, has been closed for a continuous 30-day period or announced an
intention permanently to cease business, or (y) the holder of a beneficial
interest in such Permanent Global Note notifies the Issuer and the Trustee in
writing of its intention to exchange such beneficial interest in the Permanent
Global Note for definitive Bearer Notes, or (z) the Issuer determines that the
Permanent Global Note shall be exchanged in full for definitive Bearer Notes. If
any holder of a beneficial interest makes a request as described in clause (y)
above, the Issuer, as soon as practicable but in no event later than 60 days
after the date of such request, shall be required to exchange the Permanent
Global Note in full for Notes in definitive bearer form which, absent
instructions to the contrary to Euroclear or Cedel, as the case may be, from the
relevant holder or holders of beneficial interests in such Permanent Global
Note, will continue to be held by Euroclear or Cedel, as the case may be, for
the account of such holders, in accordance with their standard procedures.
Thereafter, any beneficial interest in a Temporary Global Note of the same
Series as a Permanent Global Note exchanged for definitive Bearer Notes in the
manner described in the immediately preceding sentence, will only be exchanged
(upon certification as set forth on Section 7(b)(ix) hereof) for definitive
Bearer Notes which will be delivered by the Trustee, subject to receipt of such
definitive Bearer Notes from the Bank, to the Common Depositary for Euroclear or
Cedel, as the case may be, for the account or accounts of the relevant holder or
holders of such definitive Bearer Notes. Any such definitive Bearer Notes will
not be exchangeable for interests in any Permanent Global Note. Definitive
Bearer Notes will be issued in amounts of US$1,000 (or the equivalent thereof in
the currency in which such Note is denominated rounded to the nearest 1,000
units of such currency), or in such denominations as may be specified in the
applicable Pricing Supplement, subject to compliance with all applicable legal
and regulatory requirements.
29
(b) Issuance. If interests in any Registered Global Note are
to be transferred to the beneficial owners thereof in the form of definitive
registered Notes pursuant to this Section 8, such Registered Global Note shall
be surrendered by DTC to the Trustee to be so transferred, without charge. If
interests in any Permanent Global Note are to be transferred to the beneficial
owners thereof in the form of definitive Bearer Notes pursuant to this Section
8, such Permanent Global Note shall be surrendered by the Common Depositary to
the Trustee's office in London located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
located outside the United States to be so transferred, without charge. The
Trustee shall authenticate and deliver, upon such transfer of interests in such
Registered Global Note or Permanent Global Note, an equal aggregate principal
amount of definitive registered Notes or definitive Bearer Notes, as applicable.
The Definitive Notes transferred pursuant to this Section 8 shall be executed,
authenticated and delivered only in the denominations specified in paragraph (a)
above or in the applicable Pricing Supplement, and definitive registered Notes
shall be registered in such names as DTC shall direct in writing. The Trustee
shall have at least 30 days from the date of its receipt of Definitive Notes and
registration information to authenticate and deliver such Definitive Notes. Any
definitive registered Note delivered in exchange for an interest in a Restricted
Global Note shall, except as otherwise provided by Section 7(g), bear, and be
subject to, the Legend. In the event of the occurrence of any of the events
specified in paragraph (a) above, the Issuer will promptly make available to the
Trustee a reasonable supply of Definitive Notes. The Issuer shall bear the costs
and expenses of printing or preparing any Definitive Notes.
(c) Transfer of Definitive Registered Notes. Subject to
Section 7(b)(viii), the holder of any definitive registered Note may transfer
the same in whole or in part, in an amount equivalent to an authorized
denomination, by surrendering at the office of the Trustee or any Transfer Agent
such Note with the form of transfer endorsed on it duly completed and executed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Issuer by, the holder thereof or his attorney-in-fact duly authorized in
writing. In exchange for any definitive registered Note properly presented for
transfer, the Trustee shall promptly authenticate and deliver or cause to be
authenticated and delivered within three Business Days of receipt by the Trustee
of such form of transfer and definitive registered Note to be transferred, to
the transferee at the office of the Trustee, or send by mail (at the risk of the
transferee) to such address as the transferee may request, definitive registered
Notes for the same aggregate principal amount as was transferred. In the case of
the transfer of any definitive registered Note in part, the Trustee shall also
promptly authenticate and deliver or cause to be authenticated and delivered; to
the transferor at the office of the Trustee, or send by mail (at the risk of the
transferor) to such address as the transferor may request, definitive registered
Notes for the aggregate principal amount that was not transferred. No transfer
of any definitive registered Note shall be made unless the request for such
transfer is made by the registered holder or by a duly authorized
attorney-in-fact at the office of the Trustee or any Transfer Agent.
(d) Exchange of Definitive Notes. At the option of the holder
on request, confirmed in writing and subject to applicable laws and regulations
and to the Conditions, definitive registered Notes or definitive Bearer Notes
may be exchanged for definitive registered Notes of any authorized denominations
and of equal aggregate principal amount, upon surrender of such Notes to be
exchanged at the office of the Trustee or any Transfer Agent. Whenever any such
Note is so surrendered for exchange, together with a written request for
exchange, the Trustee shall promptly authenticate and deliver Notes which the
holder making the exchange is
30
entitled to receive. Registered Notes may not be exchanged for Bearer Notes.
Bearer Notes of one denomination may not be exchanged for Bearer Notes of
another denomination.
9. Payments. (a) In order to provide for the payment of principal of and
interest (including Additional Amounts as defined in and pursuant to Condition
9) on Notes as the same shall become due and payable, the Issuer hereby agrees
to provide to the Trustee by 10:00 a.m. (New York City time) one Business Day
prior to any date of payment, and in the case of currencies other than US$
dollars, two Business Days prior to any date of payment (each, a "Payment
Date"), an amount in immediately available funds in the currency in which such
Notes are denominated, which (together with any amounts then held by the Trustee
and available for that purpose) shall be sufficient to pay the entire amount of
principal of and interest on (including any Additional Amounts) or redemption
amount becoming due on such Payment Date with respect to the Notes. Any
overnight interest which may be agreed in a separate writing between the Issuer
and the Trustee to be paid by the Trustee and which shall accrue, in accordance
with such separate writing, on amounts received by the Trustee from the Issuer
prior to any Payment Date, up to but not including such Payment Date, shall be
for the Issuer's account.
(b) The Issuer hereby authorizes the Trustee from funds so
provided to it to make or cause to be made payment of the principal of and
interest on (including any Additional Amounts) the Notes. Payment of any
interest on the Notes will be made by check drawn on a bank in the principal
financial center of the country issuing the relevant currency to the person
entitled thereto as provided in the Conditions; provided that payment of any
interest on the Notes may be made (in the case of registered Notes, to a holder
of at least US$1,000,000 in principal amount thereof or, in the case of
registered Notes not denominated in US$ dollars, the US$ dollar equivalent
thereof rounded to the nearest 1,000 Units of such) by wire transfer of funds to
an account maintained by the payee with a bank in the principal financial center
of the country issuing the relevant currency; provided that, in the case of
registered Notes, such holder so elects by giving written notice to the Trustee
or, in the case of any payment of principal in respect of registered Notes or
any payment due on Bearer Notes or Coupons, to the Paying Agent to whom such
Note or Coupon shall be presented and surrendered for payment designating such
account with wire transfer instructions satisfactory to the Trustee or Paying
Agent, as the case may be, no later than the Record Date immediately preceding
the relevant Payment Date, and in the case of Bearer Notes, no later than 15
days preceding the relevant Payment Date. Unless such designation is revoked in
writing to the person to whom given, in the case of registered Notes, at least
15 days prior to a Record Date and, in the case of Bearer Notes, at least 15
days prior to a Payment Date, any such designation made by such holder with
respect to such Notes shall remain in effect with respect to any future payments
with respect to such Notes payable to such holder. The Issuer shall pay the
administrative costs imposed by banks in connection with making payments by wire
transfer. The Trustee shall act as a Paying Agent and shall make amounts
received by it available to the other Paying Agents to the extent required to
make payments and the Paying Agents shall hold such funds in trust and apply
them to the payment of such principal and interest (including any Additional
Amounts) on such Payment Date. Neither the Trustee nor any Paying Agent shall be
required to use its own funds in making any payment on the Notes. All sums
payable to the Trustee hereunder shall be paid to such account and with such
bank as the Trustee may from time to time notify the Issuer not less than 5
Business Days
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before any such sum is due and payable, or at such other location as is mutually
acceptable to the Issuer and the Trustee.
(c) In any case where a Payment Date is a day on which
banking institutions are authorized or obligated by law to close at any place of
presentation, then the relevant payment need not be made on such date but may be
made on the next day on which banking institutions are not authorized or
obligated by law to close at such place, with the same force and effect as if
made on the date for such payment, and no interest shall accrue with respect to
such payment for the period from and after such date.
(d) All payments in respect of Bearer Notes represented by a
Temporary Global Note will be made to Euroclear or Cedel only with respect to
that portion of the Temporary Global Note in respect of which Euroclear or Cedel
shall have delivered to the Trustee a certificate or certificates substantially
in the form of Exhibit K. All payments in respect of the Notes represented by a
Permanent Global Note will be made to Euroclear or Cedel in accordance with the
terms of such Permanent Global Note. All payments and distributions in respect
of any Bearer Note shall be made on presentation and surrender thereof (or of
the applicable coupon in the case of interest) at the office of any Paying Agent
outside the United States or its territories or possessions in accordance with,
and subject to, the Conditions.
(e) Payments of principal of and interest on (including any
Additional Amounts) the Notes shall be made in the manner set forth in the
Notes. If payment is made in respect of the principal of any Notes represented
by a Registered Global Note or Permanent Global Note, the Trustee shall endorse
or cause to be endorsed such Registered Global Note or Permanent Global Note to
reflect the reduction of the principal amount evidenced thereby, whereupon the
principal amount of such Registered Global Note or Permanent Global Note shall
be reduced for all purposes by the amount so endorsed and appropriate debits
shall be made by DTC, Euroclear and Cedel, as applicable to the accounts of
agent members of DTC, Euroclear and Cedel, as applicable. Payments in respect of
principal of the Notes of each Series due on the Maturity Date for such Series
shall be made only against the surrender of such Notes.
(f) At least ten Business Days prior to the first Payment
Date on which any payment of principal of or any interest on such Notes shall be
subject to deduction or withholding for or on account of any Argentine Taxes (as
defined in Condition 9), and at least ten Business Days prior to each date, if
any, of payment of principal or interest thereafter if there has been any change
with respect to such matters, the Issuer will furnish the Trustee and each
Paying Agent with a certificate of an Authorized Officer of the Issuer
instructing the Trustee and each such Paying Agent whether such payment of
principal of or any interest on such Notes shall be made after deduction or
withholding for or on account of any Argentine Taxes. If any such deduction or
withholding shall be required, then such certificate shall specify the rate of
withholding and the amount, if any, required to be withheld on such payment to
holders of such Notes required to be withheld will be paid by the Issuer to the
appropriate governmental authority, with interest or penalty as may be required,
and the Issuer shall pay or cause to be paid to such Paying Agent Additional
Amounts, if any, required by Condition 9 to be paid. In the absence of any such
certificate the Trustee and each Paying Agent may assume that no such deduction
or withholding shall be required. The Issuer agrees to indemnify the Trustee and
each Paying Agent for, and to hold each harmless against, any loss, liability of
expense incurred
32
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by them in reliance on any certificate furnished
pursuant to this Section 9(f) or not furnished. Any certificate required by this
Section 9(f) to be provided to the Trustee and each Paying Agent shall be deemed
to be duly provided if telecopied to, and received by, the Trustee.
(g) The Issuer shall provide to the Trustee, pursuant to
Condition 9, the original official receipt evidencing payment by the Issuer of
Argentine Taxes or, in the absence thereof, a duplicate original or a true and
complete copy thereof. The Issuer shall also provide to each Paying Agent and
any withholding agent under relevant tax regulations, upon the request of such
entity, copies of each such original official receipt received by the Issuer.
Each such Paying Agent and withholding agent shall retain each such receipt (or
duplicate or copy thereof) received by it, and each Paying Agent and the Trustee
shall retain any certificate referred to in Section 9(f) hereof, for so long as
any Note is Outstanding and in no event for less than four years after its
receipt, and for such additional period thereafter as such certificate may
become material in the administration of applicable tax laws as is indicated by
the Issuer in writing to the Trustee and the Paying Agent.
(h) If on any Payment Date in respect of a Note denominated
in US$ Dollars or a Specified Currency other than the Argentine peso any
restrictions or prohibitions of access to the Argentine foreign exchange market
exists such that US$ dollars or such Specified Currency, as the case may be, is
unavailable, the Issuer agrees to pay all amounts payable under the Notes in the
currency of such Notes either (i) by purchasing, with Argentine pesos, any
series ▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇" (US$ Dollar-denominated
Argentine Government Bonds, or "Bonex") or any other securities or public or
private bonds issued in Argentina, and transferring and selling such instruments
outside Argentina for the currency of such Notes, or (ii) by means of any other
legal procedure existing in Argentina, on any due date for payment under the
Notes, for the purchase of the Specified Currency of such Notes. All costs and
taxes payable in connection with the procedures referred to in (i) and (ii)
above shall be borne by the Issuer.
10. Mutilation or Loss of Notes; Record of Replacement or
cancellation; Repurchases. (a) The Issuer shall execute and deliver to the
Trustee Notes and coupons in such amounts and at such times as to enable the
Trustee to fulfill its responsibilities under this Indenture and the Notes.
(b) If any Note or coupon shall become mutilated or defaced
or be destroyed, lost or stolen, the Issuer may execute and the Trustee may,
upon the holder agreeing to provide such indemnity as shall be required under
paragraph (c) of this Section 10 and in the absence of notice to the Issuer or
the Trustee that such Note or coupon has been acquired by a bona fide purchaser
(as defined in Section 8-302 of the New York Uniform Commercial Code, as
amended), authenticate and deliver a new Note (with appropriate coupons
attached) or a new coupon, as applicable, on such terms as the Issuer and the
Trustee may require, in exchange and substitution for the mutilated or defaced
Note or the Note to which the mutilated or defaced coupon was attached or in
lieu of and in substitution for the destroyed, lost or stolen Note or the Note
to which the destroyed, lost or stolen coupon was attached. Each Note and coupon
authenticated and delivered and each coupon delivered for or in lieu of any such
Note or coupon
33
shall carry all the rights to interest accrued and unpaid and to accrue which
were carried by such Note or coupon before such mutilation or defacement, or
destruction, loss or theft.
(c) In the case of a mutilated, defaced, destroyed, lost or
stolen Note or coupon, indemnity satisfactory to the Trustee and the Issuer will
be required of the owner of such Note or coupon and evidence to the satisfaction
of the Trustee and the Issuer of the destruction, loss or theft of such Note or
coupon and of the ownership thereof before a replacement Note will be issued. In
the case of mutilation or defacement of a Note or coupon the holder shall
surrender to the Trustee such mutilated or defaced Note or coupon. In connection
with the issuance of any Note or coupon in substitution for the mutilated,
defaced, destroyed, lost or stolen Note or coupon, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the
reasonable fees and expenses of the Trustee and its counsel and counsel to the
Issuer) connected therewith. If any Note that has matured or will mature within
30 days or any coupon that has become due and payable or will become due and
payable within 30 days shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Issuer may pay, in its sole discretion, or
authorize payment of the same without issuing a substitute Note or coupon, as
applicable.
(d) In the case of the replacement of any of the Notes or
coupons, the Trustee shall keep a record of the Notes or coupons so replaced (in
the case of Notes, by serial number, and in the case of coupons, by number of
coupons and by maturity), and the Notes or coupons issued in replacement
thereof. In the case of the cancellation of any of the Notes or coupons
(including upon repayment), the Trustee shall keep a record (in the case of
Notes, by serial number, and in the case of coupons, by number of coupons and by
maturity) of the Notes or coupons so cancelled and the date on which such Notes
or coupons were cancelled.
Upon replacement of registered Notes bearing the Legend
regarding transfer restrictions, the Trustee shall deliver only replacement
Notes that bear such Legend unless the conditions for removal of such Legend set
forth in Section 7(g) hereof are met.
(e) If any Bearer Note or coupon shall at any time be lost,
stolen or destroyed in such a way as to become unidentifiable, the applicant
seeking replacement of the Bearer Note or coupon must execute a notarized
certificate providing, among other things, the identity of the applicant, a
description of the Bearer Note or coupon, the manner in which the Bearer Note or
coupon was acquired and, if possible, the date of acquisition, the date when the
last payment was collected and, if lost or stolen, how such loss or theft took
place. The applicant must provide such certificate to the Issuer within 24 hours
of its execution. The Issuer shall promptly (within one Business Day of receipt
thereof) provide notice thereof to the Trustee. Such notification to the Issuer
shall serve to suspend any rights under the original Bearer Note or coupon by
any other claimant. The Issuer shall publicize notice of such certification in
two widely circulated newspapers in Buenos Aires for two consecutive days. Any
payments due on such Bearer Note or coupon shall be deposited in an account
maintained for the purpose by the Trustee in a bank located in the jurisdiction
where the Issuer is domiciled as designated by the Issuer and will be made
available to the applicant (net of any expenses associated with publication of
notice of such Bearer Note or coupon) on the first Payment Date in respect of
such Bearer Note or coupon occurring after the expiration of one year from the
date of the certification; provided that, if no
34
Notes of the same Series as such Bearer Note are Outstanding, such payments may
be made on a date other than a Payment Date.
(f) The Issuer and its affiliates, if any, may, pursuant to
and to the extent permitted by applicable law, at any time purchase Notes by
tender or in the open market or on exchange or by private agreement at any
price. Any Note purchased by the Issuer or any affiliate of the Issuer may be
delivered to or to the order of the Trustee for cancellation and any Notes so
delivered shall be cancelled by or at the order of the Trustee.
(g) All Notes and coupons surrendered for payment,
redemption, transfer, exchange or substitution or purchased by the Issuer and
surrendered for cancellation shall be cancelled by the Trustee, the Paying
Agents and the Transfer Agents and, if cancelled by the Paying Agents and the
Transfer Agents, delivered to or at the order of the Trustee. All cancelled
Notes shall be destroyed by or on behalf of the Trustee, which shall then
provide the Issuer with a certificate of the destruction of such Notes.
11. The Trustee and the Agents. Each of the Trustee, the Co-Registrar
and each Paying Agent and Transfer Agent accepts its obligations set forth
herein and in the Notes upon the terms and conditions hereof and thereof (and in
the case of the Trustee, the provisions of the Trust Indenture Act), including
the following, to all of which the Issuer agrees and to all of which the rights
of the holders from time to time of the Notes shall be subject:
(a) Compensation and Indemnity. The Issuer agrees to pay to
the Trustee the amounts set forth in Exhibit M hereto, payable annually, or such
other compensation as shall from time to time be agreed upon in writing for all
services rendered by it hereunder. Each of the Co-Registrar and each Paying
Agent and Transfer Agent shall be entitled to the compensation agreed upon in
writing with the Issuer for all services rendered by it. The Issuer agrees
promptly to pay all such compensation and to reimburse each of the Trustee, the
Co-Registrar and each Paying Agent and Transfer Agent for reasonable and duly
documented or invoiced out-of-pocket expenses (including reasonable fees and
expenses of its counsel) incurred by it in connection with the services rendered
by it hereunder. The Issuer agrees to indemnify each of the Trustee, the
Co-Registrar, the Paying Agents and the Transfer Agents for, and to hold each of
them harmless against, any loss, liability, cost, claim, action, demand or
expense incurred by it without negligence or bad faith on its part arising out
of or in connection with its acceptance or its administration of its duties
under this Indenture, as well as the reasonable and duly documented or invoiced
costs and expenses of defending against any claim of liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
obligations of the Issuer under this Section 11(a) shall survive the payment of
the Notes, the resignation or removal of the Trustee, the Co-Registrar, the
Paying Agents and the Transfer Agents, as the case may be, and the termination
of this Indenture.
(b) Interest in the Notes, etc. Each of the Trustee, the
Co-Registrar and each Paying Agent and Transfer Agent, and each of their
officers, directors and employees, may become the owner of, or acquire any
interest in, any Notes or other obligations of the Issuer with the same rights
that it would have had if it were not the Trustee, the Co-Registrar or such
Paying Agent or Transfer Agent or such person, as the case may be, and, subject
to Sections 14 and 19 hereunder, may engage or be interested in any financial or
other transaction with the Issuer and
35
may act on, or as depositary, Trustee or agent for, any committee or body of
holders of Notes or owners of beneficial interests in the Notes or other
obligations of the Issuer as freely as if it were not the Trustee, the
Co-Registrar or such Paying Agent or Transfer Agent or such person.
(c) Non-Liability for Interest. Other than as may be provided
in any agreement between the Issuer and the Trustee to the contrary, neither the
Trustee nor any Paying Agent shall have any liability for interest on the Notes,
or have a duty to invest monies at any time received by it pursuant to any of
the provisions of this Indenture or the Notes.
(d) Notice of an Event of Default, Event of Acceleration or
Event of Non-Payment. Within 90 days after a Responsible Officer of the Trustee
obtains actual knowledge of the occurrence of any default hereunder or under the
Notes, the Trustee shall notify each Noteholder of any such occurrence in
accordance with Condition 17 and in each case, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium and Additional Amounts,
if any) or interest on any Note, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Noteholders.
(e) Agent for Purpose of Determining Interest Rate. The
Trustee, unless otherwise specified in the applicable Pricing Supplement, shall
act as the agent of Issuer for the purpose of determining the interest rate
applicable to the Notes in accordance with the Conditions and the provisions of
this Indenture.
(f) Certain Duties and Responsibilities of the Trustee, the
Registrar, the Co-Registrar, any Paying Agent or any Transfer Agent. The duties
and responsibilities of the Trustee shall be provided by the Trust Indenture
Act. Subject to the provisions of the Trust Indenture Act, no provision of this
Indenture shall require any of the Trustee, the Registrar, the Co-Registrar, any
Paying Agent or any Transfer Agent 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. 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, the
Registrar, the Co-Registrar, any Paying Agent or any Transfer Agent shall be
subject to the provisions of this Section. In addition, the Trustee covenants
and agrees to comply with all applicable withholding, information reporting and
backup withholding requirements under the Internal Revenue Code of 1986, as
amended, and the Treasury regulations issued thereunder in respect of any
payment on, or in respect of, a Note.
(g) Certain Rights of the Trustee, the Registrar, the
Co-Registrar, each Paying Agent and each Transfer Agent. Subject to the
provisions of Section 11(f):
(i) each of the Trustee, the Registrar, the Co-Registrar,
each Paying Agent and each Transfer Agent may rely and shall be protected in
acting or refraining from
36
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;
(ii) any request or direction of the Issuer mentioned
herein shall be sufficiently evidenced by a written request or order of the
Issuer signed by any two Authorized Officers of the Issuer and any resolution of
the Board of Directors of the Issuer may be sufficiently evidenced by a Board
Resolution;
(iii) whenever in the administration of this Indenture
the Trustee, the Registrar, the Co- Registrar, any Paying Agent or any Transfer
Agent shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee, the Registrar,
the Co-Registrar, any Paying Agent or any Transfer Agent (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon a Certificate of two Authorized Officers of the Issuer (an "Officers'
Certificate");
(iv) each of the Trustee, the Registrar, the
Co-Registrar, each Paying Agent and each Transfer Agent may consult with counsel
and the written advice of such counsel or any opinion of recognized 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;
(v) 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 Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(vi) none of the Trustee, the Registrar, the
Co-Registrar, any Paying Agent or any Transfer Agent shall 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, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, the Registrar, the Co-Registrar, any Paying Agent or
any Transfer Agent, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee,
the Registrar, the Co-Registrar, any Paying Agent or any Transfer Agent shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records or premises of the Issuer, personally or by agent or
attorney and to attend and give its opinion at the meetings of shareholders and
the Board of Directors of the Issuer; and
(vii) each of the Trustee, the Registrar, the
Co-Registrar, any Paying Agent and any Transfer Agent may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and each of the Trustee, the Registrar, the
Co-Registrar, any Paying Agent and any Transfer Agent shall not be responsible
for any misconduct or negligence on the part of any agent or attorney if it
appoints such agent or attorney with due care.
37
(h) No Notice of Defaults. The Trustee shall not be deemed to
have or be charged with knowledge of any default or Event of Default with
respect to the Notes of any Series for which it is acting as Trustee unless (i)
a Responsible Officer of the Trustee shall have actual knowledge of such default
or Event of Default, or (ii) written notice of such default or Event of Default
shall have been given to the Trustee by the Issuer or any other obligor on such
Notes or by any Noteholder.
(i) Other Capacities. Except as otherwise specifically
provided herein, (i) all references in this Indenture to the Trustee shall be
deemed to refer to the Trustee in its capacity as Trustee and in its capacities
as Co- Registrar and Co-Paying Agent, and (ii) every provision of this Indenture
relating to the conduct or affecting the liability or offering protection,
immunity or indemnity to the Trustee shall be deemed to apply with the same
force and effect to the Trustee acting in its capacities as Paying Agent and
▇▇-▇▇▇▇▇▇▇▇▇.
▇▇. Determination of Interest Rates and Currency Equivalents. (a) On
each date on which the interest rate applicable to the Notes is to be determined
in accordance with the Conditions, the Trustee shall at, or as soon as
practicable after, the specified time on such date establish the Interest Period
and determine the Rate of Interest and the Interest Amount in the manner set out
in the Conditions and the applicable Pricing Supplement and shall as soon as
practicable thereafter but in any event not later than the fourth Business Day
thereafter notify the Issuer and each Paying Agent of the Interest Period, Rate
of Interest and Interest Amount and no later than the first Business Day in the
relevant Interest Period (subject to any earlier notice date
required by the applicable Stock Exchange), notify the applicable Stock Exchange
of the Interest Period, Rate of Interest and Interest Amount (so long as Notes
of such Tranche are listed on such Stock Exchange and the rules of such Stock
Exchange so require).
(b) Without prejudice to the foregoing obligations of the
Trustee, if the Trustee does not or cannot for any reason determine the Rate of
Interest it shall promptly give notice of such failure or inability to each such
aforesaid person and in addition take such further action (if any) consequential
thereon as may be specified by the Conditions and the applicable Pricing
Supplement.
(c) The Trustee shall cause the relevant Rate of Interest,
Interest Period and Interest Amount so determined by it, and any further
information required to be notified to Noteholders with respect thereto, to be
notified to Noteholders in accordance with the Conditions as soon as practicable
after their determination and in no event later than the final time or date
specified for such publication by the Conditions and the applicable Pricing
Supplement.
(d) If any or all of the Notes become immediately due and
payable in accordance with the Conditions, the Interest Period, Rate of Interest
and Interest Amount with respect to such Notes shall nevertheless continue to be
determined by the Trustee, subject to the Conditions, and notified to the
persons specified in Section 12(a) until such Notes have been paid in full, but,
unless otherwise specified in the Conditions and the applicable Pricing
Supplement, no publication thereof need to be made.
(e) Where, in accordance with the Conditions and the
applicable Pricing Supplement, the Interest Rate is to be determined in
accordance with rates quoted or provided by
38
specified banks (the "Reference Banks") and pursuant to any Pricing Supplement
the Issuer is required to maintain Reference Banks, the Issuer will maintain
such Reference Banks. If Reference Banks are changed, the Issuer shall promptly
notify the Trustee in writing upon any change in the identity of any of the
Reference Banks.
(f) For purposes hereof, the Trustee shall determine the US$
dollar equivalent of the principal amount of each issue of Notes denominated in
another currency, each issue of Dual Currency Notes and each issue of Indexed
Notes as follows:
(A) the US$ dollar equivalent of Notes
denominated in a currency other than US$ dollars shall be determined by the
Trustee as of 02:30 p.m. London time on the Issue Date for such Notes by
reference to a page being displayed on the Reuter Monitor Money Rates Service or
the appropriate Associated Press-Dow ▇▇▇▇▇ Telerate Service or such other
service as is agreed between the Trustee and the Issuer from time to time;
(B) the US$ dollar equivalent of Dual Currency
Notes and Indexed Notes shall be determined in the manner specified above by
reference to the original principal amount of such Notes; and
(C) the principal amount of Zero Coupon Notes
and other Notes issued at a discount shall be deemed to be the net proceeds
received by the Issuer for the relevant issue.
The Trustee shall promptly notify the Issuer of each
determination made as aforesaid.
13. Corporate Trustee Required; Eligibility. (a) There shall at all
times be a Trustee hereunder which shall be eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and Article 13 of Argentine Law No.
23,576, as amended (the "Negotiable Obligations Law"), and shall have a combined
capital and surplus of at least US$250,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of 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, it shall resign immediately in the manner and with
the effect hereinafter specified in this Indenture.
14. Disqualification of Trustee; Conflicting Interests. If the Trustee
has or shall acquire any conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such conflicting interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
15. Duties and Responsibilities of the Trustee; During Default; Prior to
Default. With respect to the holders of Notes of any Series issued hereunder,
the Trustee, prior to the occurrence of an Event of Default (or, with respect to
Subordinated Notes, an Event of Acceleration or an Event of Non-Payment) with
respect to the Notes of such Series and after the curing or waiving of all
Events of Defaults, Events of Acceleration or Events of Non-Payment
39
which may have occurred with respect to the Notes of such Series, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default (or, with respect to Subordinated Notes, an
Event of Acceleration or an Event of Non-Payment) with respect to the Notes of
such Series has occurred (which has not been cured or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
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:
(a) prior to the occurrence of an Event of Default (or, an
Event of Non-Payment) with respect to the Notes of any Series and after the
curing or waiving of all such Events of Default, Events of Acceleration or
Events of Non-Payment with respect to the Notes of such Series which may have
occurred:
(i) the duties and obligations of the Trustee with
respect to the Notes of such Series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically required
to be furnished to 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) each of the Trustee, the Registrar, the Co-Registrar,
each Paying Agent and each Transfer Agent shall not be liable for any error of
judgment made in good faith by, in the case of the Trustee, a Responsible
Officer or Responsible Officers of the Trustee and, in the case of the
Registrar, the Co-Registrar, each Paying Agent and each Transfer Agent, any
officer of such Registrar, the Co-Registrar, Paying Agent or Transfer Agent, as
the case may be, unless, with respect to any such person only, it shall be
proved that such person was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture.
(d) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable
40
ground for believing that the repayment of such funds or adequate indemnity
against such liability is not reasonably assured to it.
16. Resignation and Removal of Trustee; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Section shall become effective until the acceptance of
appointment by the successor Trustee under Section 17.
(b) The Trustee may resign at any time by giving written
notice thereof to the Issuer. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by vote of the
holders of a majority in principal amount of the Outstanding Notes, delivered to
the Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of Section 310(b) of the Trust Indenture Act after written request therefor by
the Issuer or by any Noteholder who has been a bona fide Noteholder of a Note
for at least six months, or
(2) the Trustee shall cease to be eligible under Section
13 and shall fail to resign after written request therefor by the Issuer or by
any such Noteholder, 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 its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any case, (i) the Issuer by a Board resolution may remove the Trustee,
or (ii) subject to Section 315(e) of the Trust Indenture Act any Noteholder who
has been a bona fide Noteholder 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.
(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, the Issuer, 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 vote
of the Noteholders of a majority in principal amount of the Outstanding Notes
delivered to the Issuer and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Issuer.
If no successor Trustee shall have been so appointed by the Issuer or the
Noteholders and accepted appointment in the manner hereinafter provided, any
Noteholder who has been a bona fide Noteholder 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.
41
(f) The Issuer shall 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 United States first-class mail, postage prepaid,
to all Noteholders as their names and addresses appear in the Register. Each
notice shall include the name of the successor Trustee and the address of its
corporate trust office.
17. Acceptance of Appointment by Successor Trustee. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer
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; but, on the request of the Issuer or the successor
Trustee, such retiring Trustee shall upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Indenture.
18. Merger, Conversion, Consolidation or Succession to Business of
Trustee. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Notes shall have been authenticated, but not
delivered, by the Trustee then in office, any successor, by merger, conversion
or consolidation to such authenticating Trustee, may adopt such authentication
and deliver the Notes so authenticated with the same effect as if such successor
Trustee had itself authenticated such Notes.
19. Preferential Collection of Claims Against Issuer. If and when the
Trustee shall be or become a creditor of the Issuer (or any other obligor under
the Notes), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Issuer (or any such
other obligor).
20. Resignation of Agents and Appointment of Successors. (a) The
Registrar (if other than the Issuer), the Co-Registrar, any Paying Agent and any
Transfer Agent may at any time resign by giving written notice of its
resignation shall become effective, subject to the conditions set forth below;
provided that such date shall be at least 90 days after the receipt of such
notice by the Issuer, unless the Issuer agrees to accept shorter notice, and may
not be a date within twenty-one calendar days before or after an interest
payment date. The Issuer may, at any time and for any reason, remove the
Registrar (if other than the Issuer), the Co-Registrar and any Paying Agent or
Transfer Agent by the filing with it of any instrument signed on behalf of the
42
Issuer and specifying such removal and the date when it shall become effective.
Notwithstanding the dates of effectiveness of resignation or removal, as the
case may be, except in the case of the resignation or removal of a Paying Agent
or Transfer Agent which is not the only Paying Agent or Transfer Agent, as the
case may be, in a place where, by the terms of the Notes and this Indenture the
Issuer is required to maintain a Paying Agent or a Transfer Agent, such
resignation or removal shall take effect only upon the appointment by the
Issuer, as provided below, of a successor Registrar, Co-Registrar, Paying Agent
or Transfer Agent, and the acceptance of such appointment by the successor
Registrar, successor Co-Registrar, successor Paying Agent or successor Transfer
Agent, as applicable. Upon its resignation or removal, the Registrar,
Co-Registrar, Paying Agent or Transfer Agent shall be entitled to the payment by
the Issuer of its compensation for the services rendered hereunder and to the
reimbursement of all reasonable and duly documented out-of-pocket expenses
incurred in connection with the services rendered by it hereunder.
(b) In case at any time the Registrar (if other than the
Issuer), the Co-Registrar (or any Paying Agent if such Paying Agent is the only
Paying Agent located in a place where, by the terms of the Notes and this
Indenture, the Issuer is required to maintain a Paying Agent, or any Transfer
Agent if such Transfer Agent is the only Transfer Agent located in a place
where, by the terms of the Notes and this Indenture, the Issuer is required to
maintain a Transfer Agent) shall resign, or shall be removed, or shall become
incapable of acting, or be adjudged a bankrupt or insolvent, or shall file a
voluntary petition in bankruptcy, or shall make an assignment for the benefit of
its creditors, or shall consent to the appointment of a receiver of all or any
substantial part of its property, or shall admit in writing its inability to pay
or meet its debts as they mature, or if an order of any court shall be entered
approving any petition filed by or against it under the provisions of any
applicable bankruptcy or insolvency law, or if a receiver of it or of all or any
substantial part of its property shall be appointed, or if any public officer
shall take charge or control of it or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, a successor to such Registrar,
Co- Registrar, Paying Agent or Transfer Agent, as applicable, shall be appointed
by the Issuer by an instrument in writing. Upon the appointment of a successor
Registrar, Co-Registrar, Paying Agent or Transfer Agent, as applicable, and
acceptance by it of such appointment, the Registrar, Co-Registrar, Paying Agent
or Transfer Agent so superseded shall cease to be such Registrar, Co-Registrar,
Paying Agent or Transfer Agent hereunder. If no such successor shall have been
so appointed, or if so appointed, shall not have accepted appointment as
hereinafter provided, any Noteholder who has been a bona fide Noteholder for at
least six months, on behalf of itself and all others similarly situated, or the
Registrar, the Co-Registrar, the Paying Agent or the Transfer Agent, as
applicable, may petition any court of competent jurisdiction for the appointment
of a successor.
(c) Any successor Registrar, Co-Registrar, Paying Agent, or
Transfer Agent appointed hereunder shall execute, acknowledge and deliver to its
predecessor and to the Issuer an instrument accepting such appointment
hereunder, and thereupon such successor Registrar, Co-Registrar, Paying Agent or
Transfer Agent, without any further act, deed or conveyance, shall become vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as the Registrar,
Co-Registrar, a Paying Agent or a Transfer Agent hereunder, and such
predecessor, upon payment of its compensation and out-of-pocket expenses then
unpaid, shall transfer over to such successor Registrar, Co-Registrar,
43
Paying Agent or Transfer Agent, as applicable, all monies or other property at
the time held by it hereunder.
(d) Any corporation or bank into which the Registrar,
Co-Registrar or any Paying Agent or Transfer Agent may be merged, or any
corporation resulting from any merger or consolidation to which the Registrar,
Co-Registrar or any Paying Agent or Transfer Agent shall be a party, or any
corporation to which the Registrar, Co- Registrar or any Paying Agent or
Transfer Agent shall sell or otherwise transfer all or substantially all of its
corporate trust business, shall be the successor to the Registrar, the
Co-Registrar, such Paying Agent or such Transfer Agent, as the case may be,
without the execution or filing of any document or any further act on the part
of the parties hereto.
21. Amendments Without the Consent of Holders. Without the consent of
any holders, the Issuer, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the
Issuer in accordance with the Conditions and the assumption by any such
successor of the covenants of the Issuer herein and in the Notes; or
(b) to add to the covenants of the Issuer for the benefit of
the holders, or to surrender any right or power herein conferred upon the
Issuer; or
(c) To comply with any requirements of the Commission in
order to effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(d) to comply with any requirements of the Central Bank of
the Argentine Republic in connection with the offer and sale of Subordinated
Notes by the Issuer, provided such action pursuant to this clause (e) shall not
adversely affect the interests of the holders of any Series of Notes in any
material respect;
(e) to cure any ambiguity, to correct any provision herein
(including the Notes and the Conditions) which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided such action pursuant to this Clause
(f) shall not adversely affect the interests of the holders in any material
respect;
(f) to correct or supplement any provision herein as
requested by any securities exchange in order to obtain the listing thereon of
the Notes;
(g) to comply with any requirement of the CNV, any stock
exchange or regulatory entity in order to affect and maintain the qualification
of this Indenture; or
(h) to make any modification, or grant any waiver or
authorization of any breach or proposed breach of any of the terms and
conditions of the Notes, or any other provisions of this Indenture in any manner
which does not adversely affect the interest of any holders in any material
respect.
44
22. Amendments With the Consent of Holders. (a) Modifications and
amendments to the Notes of the relevant Series (including the Conditions) and of
this Indenture as it applies to such Notes may be made, and future compliance
therewith or past default by the Issuer may be waived with respect to the Notes
of such Series, by the adoption of a resolution at a meeting of the Noteholders
of such Series held in accordance with the provisions below and in the
Conditions. The Trustee or the Issuer shall, upon the request of the Holders of
at least 5% in aggregate principal amount of the Notes at the time Outstanding
or of Notes of any Series at the time Outstanding, or the Issuer or the Trustee
at its discretion, may call a meeting of the Noteholders or the holders of Notes
of any Series at any time and from time to time, to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by the Notes or the Notes of any Series to be made, given or
taken by the holders of such Notes. The meetings will be held in Buenos Aires;
provided, however, that the Issuer or the Trustee may determine to hold any such
meetings in The City of New York and/or in London. In any case, meetings shall
be held at such time at such place in any such city as the Issuer or the Trustee
shall determine. Any resolution passed at a meeting convened in London or The
City of New York shall be binding on all Noteholders or all holders of Notes of
any Series, as the case may be (whether present or not at such meeting), only
upon ratification by a meeting of such Noteholders held in Buenos Aires in
accordance with the Negotiable Obligations Law. Subject as aforesaid, any
resolution duly passed will be binding on all Noteholders or all holders of
Notes of any Series, as the case may be (whether or not they were present at the
meeting at which such resolution was passed). If a meeting is being held
pursuant to a request of Noteholders, the agenda for the meeting shall be as
determined in the request and such meeting shall be convened within 40 days from
the date such request is received by the Trustee or the Issuer, as the case may
be. Notice of any meeting of Noteholders or holders of Notes of any Series
(which shall include the date, place and time of the meeting, the record date
for the determination of the holders of Registered Notes entitled to attend and
vote at the meeting the agenda therefor and the requirements to attend) shall be
given not less than ten days nor more than 30 days prior to the date fixed for
the meetings in the Official Gazette of Argentina and also in the manner
provided in Condition 17, and any publication thereof shall be five consecutive
business days in each place of publication.
(b) Decisions shall be made by the affirmative vote of the
holders of at least 66 2/3% in aggregate principal amount of the Notes or the
Notes of any Series, as the case may be, at the time Outstanding present or
represented at a meeting of such holders at which a quorum is present; provided,
however, that the unanimous consent or the unanimous affirmative vote of the
Noteholders or the holders of Notes of any Series, as the case may be, shall be
required to adopt a valid decision on
(i) changing the Stated Maturity of the principal of, or
any installments of interest on, any Note;
(ii) reducing or cancelling the principal amount of or
interest on or Additional Amounts payable with respect to any Note; or
(iii) altering the currency of payment of any Note; or
45
(iv) reducing the percentage in principal amount of the
Outstanding Notes, the consent of the holders of which is required for the
adoption of a resolution or the quorum required at any meeting of Noteholders or
holders of Notes of any Series at which a resolution is adopted or the
percentage in principal amount of Outstanding Notes or Notes of any Series, the
holders of which are entitled to request the calling of a Noteholders' meeting.
The quorum at any meeting called to adopt a resolution shall
be persons holding or representing 60% in aggregate principal amount of the
Notes or the Notes of any Series, as the case may be, at the time Outstanding;
provided, however, that at any such reconvened meeting adjourned for lack of the
requisite quorum, the quorum will be persons holding or representing 30% in
aggregate principal amount of the Notes or the Notes of any Series, as the case
may be, at the time Outstanding. Except as provided above, any modifications,
amendments or waivers to the terms and conditions of the Notes will be
conclusive and binding on all Noteholders or all holders of Notes of any Series,
as the case may be, whether or not they have given such consent or were present
at any meeting, and whether or not notation of such modifications, amendments or
waivers is made upon the Notes or the Notes of any Series if duly passed at a
meeting convened and held in accordance with the provisions of the Negotiable
Obligations Law. The Issuer shall, by or pursuant to a Board Resolution, fix a
Record Date for the determination of the holders of the Registered Notes
entitled to vote at any meeting of Noteholders.
Any Noteholder may attend the meeting either personally or by
proxy. Any holder of Bearer Notes who intends to attend a Noteholders' meeting
must deposit its Notes, Voting Certificates or Block Voting Instructions with
the Issuer or the Trustee, for its registration on the book of attendance at the
meeting, at least three Business Days prior to the date of such meeting. Holders
of Registered Notes who intend to attend a Noteholders' meeting must notify the
Registrar of their intention to do so at least three Business Days prior to the
date of such meeting. The receipts of such deposit issued by the Issuer or the
Trustee or the notification mentioned above will entitle such holders to attend
the meeting.
For purposes of any meeting of the Noteholders, each US$1.00
(or its equivalent in a Specified Currency determined as set forth in paragraph
(j) of this Section 22) of face value of the Outstanding Notes or Notes of any
Series will entitle the Noteholder to one vote. Notes held for the account of
the Issuer or any of its affiliates will not be considered Outstanding and such
holder(s) will not participate in taking any actions under the terms of the
Notes, that in determining whether the Trustee shall be protected in relying
upon any action taken at any meeting of Noteholders or upon any request, demand,
authorization, direction, notice, consent, waiver or other act given or taken by
the holders of the Notes, only those Notes that a Responsible Officer of the
Trustee knows are held for the account of the Issuer or any of its affiliates
shall not be considered Outstanding.
(c) In the case of SEC Registered Notes, if the Issuer shall
solicit from the holders of such Notes any request, demand, authorization,
direction, notice, consent, waiver or other act, the Issuer may, at its option,
by or pursuant to a Board Resolution, fix in advance a record date for the
determination of holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other act, but the Issuer shall have no
obligation to do so. Notwithstanding Section 316(c) of the Trust Indenture Act,
such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the
46
date 30 days prior to the first solicitation of holders generally in connection
therewith and not later than the date such solicitation is completed unless
otherwise specified herein. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other act may be
given before or after such record date, but only the holders of record of such
Notes at the close of business on such record date shall be deemed to be
Noteholders for the purposes of determining whether holders of the requisite
proportion of Outstanding SEC Registered Notes or of any Series of Outstanding
SEC Registered Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other act, and for
that purpose the Outstanding SEC Registered Notes or Outstanding SEC Registered
Notes of any Series shall be computed as of such record date; provided that no
such authorization, agreement or consent by the holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than 11 months after the record date.
(d) The appointment of any proxy shall be proved by having
the signature of the person executing the proxy witnessed or guaranteed.
The following persons may not be appointed proxies: (i) a
Director, Member of the Supervisory Committee or employee of the Issuer, (ii) a
person holding at the time of the meeting 20% or more of the issued and
outstanding shares of common stock of the Issuer or, (iii) any person who under
Argentine law may not be appointed a director or member of the Supervisory
Committee.
(e) The holding of a registered Note shall be proved by the
Register maintained in accordance with Section 7 or by a certificate or
certificates of the Registrar in its capacity as such.
(f) The holding of a Bearer Note shall be proved by the
production of such Note or by a certificate executed by any trust company, bank,
banker, clearing system or recognized securities dealer satisfactory to the
Issuer, wherever situated, if such certificate shall be deemed by the Issuer to
be satisfactory. Each such certificate shall be dated and shall state that on
the date thereof a Note bearing a specified identifying number was deposited
with, to the order of, or exhibited to such trust company, bank, banker,
clearing system or recognized security dealer by the person named in such
certificate. Any such certificate may be issued in respect of one or more Notes
specified therein. The holding by the person named in any such certificate of
any Note specified therein shall be presumed to continue from the date of such
certificate until the conclusion of the meeting or any adjournment of such
meeting unless at the time of any determination of such holding (i) another
certificate bearing a later date issued in respect of the same Note shall be
produced, (ii) the Note specified in such certificate shall be produced by some
other person, or (iii) the Note specified in such certificate shall have ceased
to be Outstanding.
"Voting Certificate" means a certificate in the English
language or, in the case of a meeting held in Buenos Aires, in the Spanish and
English languages, issued by a Paying Agent and dated in which it is stated:
47
(i) that on that date Notes (not being Notes in respect
of which a Block Voting Instruction has been issued and is Outstanding in
respect of the meeting or action specified in such Voting Certificate or any
adjournment of such meeting) bearing specified serial numbers were either
deposited with the Paying Agent or (to the satisfaction of such Paying Agent)
are held to its order or under its control or blocked by a depositary holding
the same and that such Notes will not be released (physically or for
registration of transfer, as the case may be) until the earlier of:
(A) the conclusion of the meeting or action
specified in such Voting Certificate or any adjournment of such meeting; and
(B) the surrender of the Voting Certificate to the
Paying Agent which issued it; and
(ii) that the bearer of the Voting Certificate is
entitled to attend and vote at such meeting or any adjournment of it, or in
connection with such action, in respect of the Notes represented by such Voting
Certificate.
"Block Voting Instruction" means a document in the English
language, or in the case of a meeting in Buenos Aires, in the Spanish and
English languages, issued by a Paying Agent and dated in which:
(i) it is certified that Notes (not being Notes in
respect of which a Voting Certificate has been issued and is Outstanding in
respect of the meeting or action specified in such Block Voting Instruction or
any adjournment of such meeting) have been deposited with such Paying Agent or
(to the satisfaction of such Paying Agent) are held to its order or under its
control or blocked by a depositary holding the same and that such Notes will not
be released (physically or for registration of transfer, as the case may be)
until the earlier of:
(A) the conclusion of the meeting or action
specified in such Block Voting Instruction or any adjournment of such meeting;
and
(B) the surrender (not less than two Business Days
or three Business Days in the case of a Buenos Aires meeting, before the time
fixed for such meeting or action or adjournment) of the relevant receipts to the
Paying Agent which issued the same in respect of each such deposited Note which
is to be released or (as the case may require) such deposited Note ceasing, with
the agreement of the Paying Agent, to be held to its order or under its control
or blocked, and in each such case the giving of notice by such Paying Agent to
the Issuer (not later than 24 hours, or 48 hours in the case of a meeting in
Buenos Aires, before the time fixed for such meeting or action or adjournment)
of the amendment required to such Block Voting Instruction to reflect such
release or cessation;
(ii) it is certified that each person that has so
deposited Notes, or an agent on its behalf, has instructed such Paying Agent
that the votes attributable to Notes should be cast in a particular way in
relation to the resolution to be put to such meeting or any adjournment of it,
or in connection with such action, and that all such instructions are, during
the period of 48 hours before, or 72 hours in the case of a meeting in Buenos
Aires, the time fixed
48
for such meeting or adjourned meeting or action and during such meeting or
action, neither revocable nor subject to amendment;
(iii) the total number and the serial numbers and
denominations of the Notes subject to such Block Voting Instruction are listed,
distinguishing with regard to each such resolution or action between those in
respect of which instructions have been so given (A) to vote for, and (B) to
vote against, the resolution or action; and
(iv) any person named in such Block Voting Instruction is
authorized and instructed by such Paying Agent to vote in respect of the Notes
so listed in accordance with the instructions referred to in (ii) above as set
out in such Block Voting Instruction.
A holder of a Bearer Note may obtain a Voting Certificate from
a Paying Agent or require a Paying Agent to issue a Block Voting Instruction by
requesting the same from a Paying Agent in accordance with the requirements set
forth above not later than two Business Days or three Business Days in the case
of a meeting in Buenos Aires, before the time fixed for any meeting or action.
Voting Certificates and Block Voting Instructions shall be valid until the
relevant Notes are released pursuant to the provisions set forth above and until
then the holder of any such Voting Certificate or, as the case may be, the proxy
named in any such Block Voting Instruction shall, for all purposes in connection
with any meeting or action of holders of the Notes, be deemed to be the holder
of the Notes to which such Voting Certificate or Block Voting Instruction
relates and the Paying Agent with which (or to the order of which) any Notes
have been deposited shall be deemed for such purposes not to be the holder of
those Notes.
(g) In the case of any meeting, the Issuer shall appoint a
temporary chairman of the meeting in accordance with the provisions of the
Negotiable Obligations Law, which provides that such temporary chairman may be a
representative of the Noteholders, a syndic of the Issuer, a representative of a
controlling authority of the Issuer or a designee by a judicial authority.
Thereafter, in the case of a meeting called by the Issuer, the Issuer shall
appoint a permanent chairman and a permanent secretary for such meeting. In the
case of any other meeting, a permanent chairman and a permanent secretary of the
meeting shall be elected by vote of persons entitled to vote a majority in
aggregate principal amount of the Notes represented at the meeting. At any
meeting each such Noteholder or proxy shall be entitled to one vote as set forth
in paragraph (b) of this Section 22; provided that no vote shall be cast or
counted at any meeting in respect of any Note challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote except as a Noteholder or proxy. Any meeting
of such Noteholders duly called at which a quorum is present may be adjourned
from time to time by vote of such Noteholders of a majority in aggregate
principal amount of the Notes represented and voting at such meeting, and the
meeting shall be so adjourned without further notice (except, so long as the
Notes are listed on a Stock Exchange, as may be required under the rules of such
Stock Exchange), provided, however, that any meeting held in Buenos Aires in
accordance with the Negotiable Obligations Law may be so adjourned only once and
for a period of no more than 30 days.
(h) The vote upon any resolution submitted to any meeting of
Noteholders or holders of Notes of any Series shall be by written ballot on
which shall be subscribed the signatures of the Noteholders or the holders of
Notes of any Series or proxies of such
49
Noteholders and on which shall be inscribed an identifying number or numbers or
to which shall be attached a list of identifying numbers of the Notes entitled
to be voted by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Noteholders or holders
of Notes of any Series shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors of
votes on any vote taken by ballot and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was published or mailed. The record shall be signed and
verified by the permanent chairman and secretary of the meeting and one shall be
delivered to each of the Issuer and the Trustee, the latter to have attached
thereto the ballots voted at the meeting and to be preserved by the Trustee.
Absent manifest error, any record so signed and verified shall be conclusive
evidence of the matters therein stated.
(i) For purposes of the provisions of this Indenture and the
Notes, any Note authenticated and delivered pursuant to this Indenture shall, as
of any date of determination, be deemed to be "Outstanding", except:
(i) Notes theretofore cancelled by the Trustee, the
Registrar, the Co-Registrar, any Paying Agent or any Transfer Agent or delivered
to the Trustee for cancellation;
(ii) Notes which have been called for redemption in
accordance with their terms or which their terms or which have become due and
payable at maturity or otherwise and with respect to which monies sufficient to
pay the principal thereof and any interest and Additional Amounts thereon shall
have been paid to the holder thereof or duly provided for; and
(iii) Notes paid pursuant to Section 10(c) as such Notes
shall have become due and payable and Notes in lieu of or in substitution for
which other Notes shall have been authenticated and delivered pursuant to this
Indenture;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Notes or Outstanding Notes of any Series are
present at a meeting of holders of such Notes for quorum purposes or have
consented to or voted in favor of any request, demand, authorization, direction,
notice, consent, waiver, amendment or modification hereunder, and for the
purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (i) the principal amount of any Note issued on an original issue
discount basis ("Original Issue Discount Note") that may be counted in making
such determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof, (ii)
the principal amount of any Note denominated in a Specified Currency other than
Dollars that may be counted in making such determination or calculation and that
shall be deemed Outstanding for such purpose shall be equal to the Dollar
equivalent of such Note, determined as set forth in paragraph (j) of this
Section 22, (iii) the principal amount of any Indexed Note that may be counted
in making such determination or calculation and that shall be deemed outstanding
for such purpose shall be equal to the principal face amount of such Indexed
Note at original issuance, unless otherwise provided
50
in a Pricing Supplement with respect to such Note, and (iv) Notes owned by the
Issuer or any Affiliate of the Issuer shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
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
the Issuer or an Affiliate of the Issuer.
(j) For purposes of calculating the aggregate principal amount
of Notes or Notes of a Series for the purposes of this Section 22, in the case
of a Note denominated in a Specified Currency other than US$ Dollars, the US$
dollar equivalent of such Note shall be calculated at the exchange rates
prevailing in New York City at the close of business on the Business Day
preceding the day of such meeting, as determined by the Trustee, or in the case
of written consents or notices, on such date as the Issuer shall designate for
such purpose.
(k) If and whenever the Issuer shall have issued and have
Outstanding Notes of more than one Series, the foregoing provisions of this
Section 22 shall have effect subject to the following modifications:
(i) a resolution which in the opinion of the Trustee
affects the Notes of only one Series shall be deemed to have been duly passed if
passed at a separate meeting of the holders of the Notes of that Series;
(ii) a resolution which in the opinion of the Trustee
affects the Notes of more than one Series but does not give rise to a conflict
of interest between the holders of Notes of any of the Series so affected shall
be deemed to have been duly passed if passed at a single meeting of the holders
of the Notes of all the Series so affected;
(iii) a resolution which in the opinion of the Trustee
affects the Notes of more than one Series and gives or may give rise to a
conflict of interest between the holders of the Notes of one Series or group of
Series so affected and the holders of the Notes of another Series or group of
Series so affected shall be deemed to have been duly passed only if passed at
separate meetings of the holders of the Notes of each Series or group of Series
so affected; and
(iv) to all such meetings all the preceding provisions of
this Section 22(k) shall apply to the same extent as though references therein
to Notes, Noteholders and holders were references to the Notes of the Series or
groups of Series in question or to the holders of such Notes, as the case may
be.
Upon the request of the Issuer and at the Issuer's expense,
the Trustee shall request from DTC a listing of participants that have an
interest in (a) the Regulation S Global Note or the Unrestricted Global note (as
the case may be), (b) the SEC Registered Global Note and (c) the Restricted
Global Note.
23. Redemption. The Notes may not be redeemed prior to their
Maturity Date except under the circumstances specified in the Conditions. If,
under the circumstances described in the
51
Conditions, any Notes are to be redeemed prior to maturity, the provisions of
Condition 7 and the following provisions shall be applicable:
(a) If the Trustee shall receive a notice from a holder
pursuant to Condition 7(e) requiring the Issuer to redeem some or all of the
Notes held by such holder, the Trustee shall promptly provide a copy of such
notice to the Issuer.
(b) Not more than 60 and not less than 30 days prior to any
date designated for the redemption of Notes pursuant to Condition 7(d) (or as
otherwise specified in the applicable Pricing Supplement), the Issuer shall give
written notice to the Trustee that such Notes will be redeemed on the date of
redemption specified in such notice. The Trustee will notify the Noteholders at
least 15 days prior to the date fixed for any such redemption. Notice given
hereunder shall be irrevocable.
(c) Not more than 60 and not less than 30 days prior to any
date designated for the redemption of Notes pursuant to Condition 7(b), the
Issuer shall give written notice to the Trustee that such Notes will be redeemed
on the date of redemption specified in such notice. At the time of the giving of
notice of redemption pursuant to this subsection (c), the Issuer shall deliver
to the Trustee a certificate stating that the Issuer is entitled to effect such
redemption and setting forth a statement of facts showing that the condition or
conditions precedent to the right of the Issuer to redeem the Notes have
occurred and an opinion of counsel to the effect that the Issuer has or will
become obligated to pay Additional Amounts in respect of Argentine Taxes as
provided in the Conditions. The Trustee shall notify the Noteholders at least 15
days prior to the date fixed for any such redemption.
(d) Upon receipt of notice from the Issuer pursuant to
subsection (b) or (c) above, the Trustee shall cause to be published or to be
mailed, on behalf of the Issuer, a notice of redemption of the relevant Notes at
such times and in such manner as provided in the Conditions. Such notice shall
specify the (A) date fixed for redemption, (B) the redemption price, (C) the
place or places of payment, (D) that payment will be made, in the case of
Definitive Notes, upon presentation and surrender of the Notes to be redeemed
(or a portion thereof in the case of a partial redemption of a Registered Note)
together, in the case of a definitive Bearer Note, with all appurtenant coupons,
if any, maturing subsequent to the date fixed for redemption, and in the case of
any Registered Global Notes or Permanent Global Notes, upon presentation for
endorsement or surrender, and (E) that on and after such date interest on the
principal amount being redeemed shall cease to accrue. Such notice shall state
that the conditions precedent to such redemption have occurred and shall
describe the same. All notices of redemption of Notes shall be made in the name
and at the expense of the Issuer.
(e) The Trustee shall promptly furnish to each Paying Agent a
copy of each notice of redemption.
(f) If notice of redemption has been lodged with the Trustee
by a holder as provided in Condition 7(e) or given to the holders of the Notes
of any Series as provided in Section 23(d) hereof, the Notes specified in such
notice shall become due and payable on the date specified in such notice (and,
in the case of a notice given to holders as provided in Section 23(d) hereof, at
the place or places stated in such notice) at the applicable redemption price,
52
together with accrued interest, if any, to the date fixed for redemption and on
and after such date interest on the Notes to be redeemed shall cease to accrue
and any unmatured coupons appertaining to Floating Rate Notes shall become void
and no payment shall be made in respect thereof. On presentation and surrender
of such Notes at such place or places of payment, such Notes shall be paid and
redeemed by the Issuer at the applicable redemption price, together with accrued
interest, if any, to the date fixed for redemption.
24. Acceleration of Maturity; Rescission and Annulment. (a) If an Event
of Default (as defined in the Conditions), other than an Event of Default
specified in clause (xi) or (xii) of Condition 11 occurs and is continuing, then
and in every such case the Trustee or the holders of not less than 25% in
aggregate principal amount of the Outstanding Notes of any Series may declare
the principal amount (or, if the Notes of such Series are Original Issue
Discount Notes or Indexed Notes such portion of the principal amount as may be
specified in the terms of such Series) of all the Notes of such Series to be due
and payable immediately, by a notice in writing to the Issuer (and to the
Trustee if given by Noteholders), and upon any such declaration such principal
amount and any accrued interest shall become immediately due and payable. If an
Event of Default specified in clause (xi) or (xii) of Condition 11 occurs (an
"Event of Acceleration"), the principal (or, if the Notes of such Series are
Original Issue Discount Notes or Indexed Notes, such portion of the principal
amount as may be specified in the terms of such Series) of, premium and
Additional Amounts, if any, and any accrued interest on all the Notes of such
Series then Outstanding shall become immediately due and payable.
(b) Holders of Subordinated Notes shall have no right to
accelerate repayment of Subordinated Notes in the case of any Event of Default
except an Event of Default which would constitute an Event of Acceleration.
(c) At any time after an Event of Acceleration has occurred or
a declaration of acceleration with respect to Notes of any Series (or of all
Series, as the case may be) has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Section provided, a decision made by the affirmative vote of the holders of 66
2/3% in aggregate principal amount of the Outstanding Notes of that Series (or
of all Series, as the case may be), present or represented at a meeting of such
Noteholders at which a quorum is present, may rescind and annul such declaration
and its consequences if:
(i) the Issuer has paid or deposited with the Trustee a
sum sufficient to pay in the currency in which the Notes of such Series are
payable:
(w) all overdue interest on all Outstanding Notes
of that Series (or of all Series, as the case may be) and any related coupons;
(x) all unpaid principal of, premium, if any, and
Additional Amounts, if any, on any Outstanding Notes of that Series (or of all
Series, as the case may be) which have become due otherwise than by such
declaration of acceleration, and interest on such unpaid principal at the rate
or rates prescribed therefor in such Notes;
(y) to the extent that payment of such interest is
lawful, interest on overdue interest at the rate or rates prescribed therefor in
such Notes; and
53
(z) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(ii) all Events of Default, Events of Acceleration or
Events of Non-Payment with respect to Notes of that Series (or of all Series, as
the case may be), other than the non-payment of amounts of principal of (or
premium, if any, on) or interest on Notes of that Series (or of all Series, as
the case may be) which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 28.
No such rescission shall affect any subsequent default
or impair any right consequent thereon.
The foregoing provisions shall be without prejudice to
the rights of each individual Noteholder to initiate an action against the
Issuer for the payment of any principal, premium, if any, Additional Amounts
and/or interest past due on any Note, as the case may be, as established by
Article 29 of the Negotiable Obligations Law.
(d) In the event of a failure by the Issuer to (i) pay any
principal due on any Subordinated Note or (ii) pay any interest, any premium, or
any Additional Amount due on any Subordinated Note (each, an "Event of
Non-Payment") and such default continues for a period of 30 Business Days, the
Issuer shall, upon demand of the Trustee, for the benefit of the holders of such
unpaid Subordinated Notes, pay to the holders thereof the whole amount then due
and payable on such unpaid Subordinated Notes, with interest on the overdue
amount (to the extent such interest shall be legally enforceable) at the rate or
rates provided by such Subordinated Notes. The foregoing shall be without
prejudice to the rights of each individual holder of Subordinated Notes to
initiate an action against the Issuer for the payment of any principal and/or
interest past due on any Subordinated Note, in accordance with Section 25
hereof.
25. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer covenants that if:
(a) default is made in the payment of any installment of
interest on any Note and any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days; or
(b) default is made in the payment of the principal of (or
premium or Additional Amounts, if any) on any Note when due in accordance with
the terms thereof,
then the Issuer will, upon demand of the Trustee, pay to the Trustee for the
benefit of the holders of such Notes and coupons, the whole amount then due and
payable on such Notes and coupons for principal (and premium or Additional
Amounts, if any) and interest, and interest on any overdue principal (and
premium or Additional Amounts, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
54
If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as Trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Issuer and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Issuer,
wherever situated.
Any Noteholder may institute proceedings directly against the
Issuer in accordance with the provisions of the Negotiable Obligations Law for
the payment of past due principal, premium, interest or Additional Amounts, if
any, but from the date such proceedings are instituted, the holder of such Notes
shall cease to have any rights under the trust created by these presents,
whether in relation to trust moneys (including moneys recovered by the Trustee
prior to the institution of such proceedings) or otherwise. The Trustee shall be
entitled to assume (and it is the intention of the parties that it will assume)
that no such proceedings have been instituted, unless it has express notice to
the contrary.
No Note which has been the subject of proceedings under the
Negotiable Obligations Law may be presented to a Paying Agent, Registrar or
Co-Registrar for payment or replacement but in such circumstances the Issuer
shall make separate arrangements for payment directly to the holder of each such
Note. If any Noteholder, having instituted proceedings directly against the
Issuer, subsequently disposes of the Note forming the subject matter of such
proceedings, the cessation of the rights under the trust created by these
presents occurring upon the institution of such proceedings shall inure in
relation to the purchaser of such Note. Upon notification by the Issuer of any
such proceedings, the Trustee shall give notice to the Paying Agents, the
Registrar and Co-Registrar of the serial numbers of those Notes forming the
subject matter of such proceedings and the Paying Agents and Registrar and
Co-Registrar shall make such serial numbers available to any Noteholder or
potential Noteholder upon its request.
If an Event of Default, Event of Acceleration or Event of
Non-Payment with respect to Notes of any Series (or of all Series, as the case
may be) occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the holders of Notes of such
Series (or of all Series, as the case may be) by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
26. Trustee May File Proofs of Claim. (a) In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer or the property of the Issuer or its creditors, the Trustee
(irrespective of whether the principal 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 the Issuer for the payment of
overdue principal, premium or Additional Amounts, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), or such portion of the principal amount of any
series of Original Issue Discount Notes or Indexed Notes as may be specified in
the terms of such Series, and interest
55
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, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, Trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Noteholder 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
Noteholders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee hereunder under Section
11(a).
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Noteholder thereof or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
27. Control by Holders of SEC Registered Notes. With respect to SEC
Registered Notes, the holders of not less than 25% in principal amount of the
Outstanding Notes of a Series of SEC Registered 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 that such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture and provided, further, that the
Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith by a
Responsible Officer of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forbearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of holders so affected not joining in the giving of said direction, it
being understood that the Trustee shall have no duty to ascertain whether or not
such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by holders of Notes.
56
28. Waiver of Past Defaults. The holders of not less than 66 2/3% in
principal amount of the Outstanding Notes of any Series may on behalf of the
holders of all the Notes of such Series waive any past default, except in a
default in respect of a covenant or provision hereof that cannot be modified or
amended without the unanimous affirmative vote of each Noteholder affected as
provided in Section 22.
Upon any such waiver, any such default shall cease to exist,
and any Event of Default, Event of Acceleration or Event of Non-Payment 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, Event of Acceleration or Event of Non-Payment or impair any
right consequent thereon.
29. Unconditional Right of Holders to Receive Principal, Premium and
Interest. Notwithstanding any other provision in this Indenture, any Noteholder
shall have the absolute and unconditional right to receive payment, as provided
herein and in such Note, of the principal of (and premium, if any, on) and
(subject to Section 9) interest on, such Note or payment of such coupon at the
respective times expressed in such Note or coupon (including, in the case of
redemption, on the 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 Noteholder.
30. Notices. All notices hereunder shall be given by facsimile,
with receipt confirmed by telephone (if possible), with a written copy mailed by
United States first-class mail, addressed to the following parties hereto as
follows:
The Issuer and Registrar Banco Rio de la Plata S.A.
(1036) Buenos Aires, Argentina
Telephone: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
Fax: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇
The Trustee, Co-Registrar The Bank of New York
and Principal Paying Agent ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust
Trustee Administration
Transfer and Paying Agent Banque Internationale a Luxembourg S.A.
2 Boulevard Royal
P.O. Box 2205
L - 2953 - Luxembourg
Grand ▇▇▇▇ of Luxembourg
Telephone: ▇▇▇-▇▇▇▇-▇
Fax: ▇▇▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
New Issues Department
57
or at any other address of which any of the foregoing or any successor thereto
or additional paying agent or transfer agent shall have notified the others in
writing. Any such notice shall be effective on receipt. The Trustee shall
deliver a copy of any notice received on behalf of the Issuer in connection with
this Indenture or the Notes (excluding notices given regarding the transfer or
exchange of Notes) to the Issuer in accordance with the terms of this Section
30. Notices to Noteholders shall be given in accordance with Condition 17.
31. Reports by the Trustee. (a) If required by Section 313(a) of the
Trust Indenture Act, within 60 days after May 15, of each year commencing with
the first May 15 following the first issuance of SEC Registered Notes pursuant
to Section 4, the Trustee shall transmit, pursuant to Section 313(c) of the
Trust Indenture Act, a brief report dated as of such May 15 with respect to any
of the events specified in said Section 313(a) which may have occurred since the
later of the immediately preceding March 1 and the date of this Indenture.
(b) The Trustee shall transmit those reports required by
Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
32. Reports by the Issuer. The Issuer, in accordance with the
provisions of Section 314(a) of the Trust Indenture Act, shall:
(i) file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Issuer is not required to file information, documents or reports pursuant
to either of such Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a Stock Exchange,
which is a national securities exchange under the Exchange Act, as may be
prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Issuer, as the case may be, with the conditions and covenants
of this Indenture as may be required from time to time by such rules and
regulations; and
(iii) transmit within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to paragraphs (i) and (ii)
of this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
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33. Payment of Taxes. The Issuer shall pay all stamp and other similar
documentary duties, if any, which may be imposed by the Republic of Argentina or
the United States of America or any political subdivision thereof or taxing
authority of or in the foregoing with respect to the execution or delivery of
this Indenture or the initial issuances of Series of the Notes.
34. Disclosure of Names and Addresses of Holders. Every holder of Notes
or coupons, by receiving and holding the same, agrees with the Issuer and the
Trustee that none of the Issuer or the Trustee or any agent of either of them
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the holders in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the Trust
Indenture Act.
35. Defeasance and Covenant Defeasance.
(a) Issuer's Option to Effect Defeasance or Covenant
Defeasance. The Issuer may at its option by Board Resolution, at any time, elect
to have either Section 35(b) or Section 35(c) applied to the Outstanding Notes
of one or more Series upon compliance with the conditions set forth below in
this Section 35.
(b) Defeasance and Discharge. Upon the Issuer's exercise of
the option provided in Section 35(a) applicable to this Section, the Issuer
shall be deemed to have been discharged from its obligations with respect to the
Outstanding Notes of the applicable Series on the date the conditions set forth
below are satisfied (hereinafter, "Defeasance"). For this purpose, such
defeasance means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Notes of the applicable
Series 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 the Issuer, 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 such Notes to receive, solely from the
trust fund described in Section 35(d) and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and
interest on such Notes when such payments are due; (B) the Issuer's obligations
with respect to such Notes under Sections 6, 7 and 10; (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder; and (D) this Section 35.
Subject to compliance with this Section 35, the Issuer may exercise its option
under this Section 35(b) notwithstanding the prior exercise of its option under
Section 35(c).
(c) Covenant Defeasance. Upon the Issuer's exercise of the
option provided in Section 35(a) applicable to this Section with respect to the
Notes of one or more Series, (A) the Issuer shall be released from its
obligations under Condition 10 (except for "Notification" and clauses (i) and
(iii) of "Mergers, Consolidations, Sales and Leases") with respect to the Notes
of such Series, (B) the occurrence of an event specified in Condition 11(iii)
(with respect to clause (ii) of the "Mergers, Consolidations, Sales and Leases"
covenant) and Condition 11(iv) (with respect to any of the covenants referred to
in (A) above) shall not be deemed to be an Event of Default, an Event of
Acceleration or an Event of Non-Payment with respect to the Notes of such Series
on and after the date the conditions set forth below are satisfied (hereinafter,
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"covenant defeasance"). For this purpose, such covenant defeasance means that
the Issuer may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Condition or clause, whether
directly or indirectly by reason of any reference elsewhere herein to any such
Condition or clause or by reason of any reference in any such Condition or
clause to any other provision herein or in any other document, but the remainder
of this Indenture and such Notes shall be unaffected thereby.
(d) Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 35(b) or
Section 35(c) to the then Outstanding Notes of the applicable Series:
(i) The Issuer shall irrevocably have deposited or caused
to be deposited with the Trustee (or another Trustee satisfying the requirements
of Section 13 who shall agree to comply with the provisions of this Section 35
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) US$
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying Trustee) to pay and
discharge, the principal of (and premium, if any,) and each installment of
interest on such Notes on the Stated Maturity of such principal or installment
of interest in accordance with the terms of this Indenture and of such Notes.
For this purpose, "US$ Government Obligations" means securities that are (x)
direct obligations of the United States of America for the 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 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 US$ Government
Obligation or a specific payment of principal of or interest on any such US$
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 US$ Government Obligation or the specific payment of principal of
or interest on the US$ Government Obligation evidenced by such depository
receipt.
(ii) In the case of an election under Section 35(b) with
respect to the Notes of any Series, the Issuer shall have delivered to the
Trustee a written Opinion of Counsel stating that (x) the Issuer has received
from, or there has been published by, the United States Internal Revenue Service
a ruling, or (y) since the date of this Indenture there has been a change in the
applicable United States 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 of the applicable Series will not recognize income, gain or
loss for United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal
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income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred.
(iii) In the case of an election under Section 35(c), the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that the holders of the Outstanding Notes of the applicable Series will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such deposit and covenant defeasance and will be subject to United
States 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.
(iv) No Event of Default, Event of Acceleration or Event
of Non-Payment or event which with notice or lapse of time or both would become
an Event of Default, Event of Acceleration or Event of Non-Payment shall have
occurred and be continuing on the date of such deposit or will occur as a result
of such deposit or, insofar as Conditions 11(ix) and 11(x) are concerned, at any
time during the period ending on the 121st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(v) Such defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest as defined in Section 14 and
for purposes of the Trust Indenture Act with respect to any securities of the
Issuer.
(vi) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Issuer is a party or by which it is bound.
(vii) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 35(b) or the covenant defeasance under Section 35(c) (as the case may
be) have been complied with and no violations under instruments or agreements
governing any other outstanding indebtedness of the Issuer would result.
(viii) The Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Issuer's exercise of its election
under Section 35(b) or Section 35(c), as the case may be, will not result in any
of the Issuer, the Trustee or the trust created by the Issuer's deposit of funds
in connection with the exercise of its election thereunder becoming or being
deemed to be an investment company as defined in the United States Investment
Company Act of 1940, as amended.
(ix) The Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that after the 91st day (or with respect to any
trust funds for the benefit of any Person who may be deemed an "insider" for
purposes of Title 11 of the United States Code, after one year) following the
deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally.
(x) The Issuer shall have paid or duly provided for
payment of all amounts then due to the Trustee pursuant to the terms of the
Indenture.
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(e) Deposited Money and US$ Government Obligations to be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 37, all money and US$ Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying Trustee,
collectively with the Trustee, for purposes of this Section 35(e), the
"Trustee") pursuant to Section 35(d) in respect of the Notes of any Series 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 (including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the holders of such Notes, of all sums due and to
become due thereon in respect of principal (and premium and Additional Amounts,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the US$ Government
Obligations deposited pursuant to Section 35(d) or the principal 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 Outstanding Notes of the
applicable Series.
Anything in this Section 35 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuer from time to time upon request
signed by an Authorized Officer any money or US$ Government Obligations held by
it as provided in Section 35(d) which, in the opinion of a nationally 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 defeasance or
covenant defeasance.
(f) Reinstatement. If the Trustee or a Paying Agent is unable
to apply any money in accordance with Section 35(b) or Section 35(c) by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Issuer's
obligations under this Indenture and the Notes of the applicable Series shall be
revived and reinstated as though no deposit had occurred pursuant to this
Section 35 until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 35(b) or Section 35(c); provided,
however, that if the Issuer makes any payment of principal of (and premium and
Additional Amounts, if any) or interest on any Note following the reinstatement
of its obligations, the Issuer shall be subrogated to the rights of the holders
of such Notes to receive such payment from the money held by the Trustee or the
Paying Agent.
(g) Notwithstanding anything to the contrary herein, in no
event may the Issuer effect any defeasance or covenant defeasance of any
undefeased Note constituting Senior Indebtedness remains Outstanding hereunder.
36. Subordination. (a) The Issuer covenants and agrees, and each
holder of a Subordinated Note, by his acceptance thereof, likewise covenants and
agrees, that, to the extent and subject to the provisions set forth in this
Section, the indebtedness represented by the Subordinated Notes and the payment
of the principal of (and premium and Additional Amounts, if any) and interest on
each and all of the Subordinated Notes are hereby expressly made
62
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
(b) In the event of bankruptcy of the Issuer then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth, before the holders of the Subordinated Notes are entitled to
receive any payment on account of principal of (or premium or Additional
Amounts, if any) or interest on the Subordinated Notes, and to that end the
holders of Senior Indebtedness shall be entitled to receive, for application to
the payment thereof, any payment or distribution of any kind or character,
whether in cash, property or securities, which may be payable or deliverable in
respect of the Subordinated Notes in any such bankruptcy of the Issuer.
In the event that the Trustee or the holder of any
Subordinated Note shall have received, following an event of bankruptcy of the
Issuer, any payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall, at or prior to the time of such payment or distribution, have been made
known to a Responsible Officer of the Trustee or, as the case may be, such
holder, then and in such event, notwithstanding the foregoing provisions of this
Section 36(b), such payment or distribution shall be paid over or delivered
forthwith to the Trustee in bankruptcy, receiver, liquidating, Trustee,
custodian, "sindico", assignee, agent or other Person making payment or
distribution of assets of the Issuer for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Section 36 only, the words "cash,
property or securities" shall not be deemed to include shares of stock of the
Issuer as reorganized or readjusted, or securities of the Issuer or any other
corporation provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness which may at the
time be outstanding to substantially the same extent as, or to a greater extent
than, the Subordinated Notes are so subordinated as provided in this Section 36.
The consolidation of the Issuer with, or the merger of the Issuer into, another
Person or the liquidation or dissolution of the Issuer following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Condition 10(f) shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Issuer
for the purposes of this Section 36 if the Person formed by such consolidation
or into which the Issuer is merged or which acquires by conveyance or transfer
such properties and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions set forth in Condition 10(f) hereof.
(c) In the event that any Subordinated Notes become due and
payable before their Stated Maturity, whether as a result of optional redemption
by the Issuer or otherwise, then and in such event the holders of the Senior
Indebtedness outstanding at the time such Subordinated Notes so become due and
payable shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of all Senior Indebtedness, or provision shall be
63
made for such payment in money or money's worth before the holders of
Subordinated Notes are entitled to receive any payment by the Issuer on account
of the principal of (or premium or Additional Amounts, if any) or interest on
the Subordinated Notes or on account of the purchase or other acquisition of
Subordinated Notes.
In the event that, notwithstanding the foregoing, the Issuer
shall make any payment to the Trustee or the holder of any Subordinated Note
prohibited by the foregoing provisions of this Section 36(c), and if such fact
shall, at or prior to the time of such payment, have been made known to a
Responsible Officer of the Trustee or, as the case may be, such holder, then and
in such event such payment shall be paid over and delivered forthwith to the
Issuer.
The provisions of this Section 36(c) shall not apply to any
payment with respect to which Section 36(b) hereof would be applicable.
(d) In the event of (a) any failure to pay when due, whether
by acceleration or otherwise (taking into account any applicable grace period),
any principal (or premium or Additional Amounts, if any) or interest in an
aggregate amount equal to or in excess of US$10,000,000 in respect of any Senior
Indebtedness or (b) the entering of a final, non-appealable judgment against the
Issuer in an amount equal to or in excess of US$10,000,000 relating to any
Senior Indebtedness, then, in either case, no payment shall be made by the
Issuer on account of principal (or premium and Additional Amounts, if any) or
interest on the Subordinated Notes or on account of the purchase or other
acquisition of the Subordinated Notes; provided that the foregoing restriction
shall be of no effect in the event that any failure so to pay principal
(including premium and Additional Amounts) or interest in respect of Senior
Indebtedness shall have been cured or waived or payment of such amounts is being
contested in good faith by appropriate proceedings, any such acceleration of
Senior Indebtedness shall have been rescinded or annulled or any such judgment
shall have been satisfied and discharged and failure to make payment when due on
the Subordinated Notes pursuant to this Section 36(d) shall constitute an Event
of Default but shall not constitute an Event of Acceleration in respect of the
Subordinated Notes.
In the event that, notwithstanding the foregoing, the Issuer
shall make any payment to the Trustee or the holder of any Subordinated Note
prohibited by the foregoing provisions of this Section 36(d), and if such fact
shall, at or prior to the time of such payment, have been made known to a
Responsible Officer of the Trustee or, as the case may be, such holder, then and
in such event such payment shall be paid over and delivered forthwith to the
Issuer.
The provisions of this Section 36(d) shall not apply to any
payment with respect to which Section 36(b) hereof would be applicable.
(e) Nothing contained in this Section 36 or elsewhere in this
Indenture or in any of the Notes shall prevent (a) the Issuer, at any time
except during the pendency of any bankruptcy, proceeding, dissolution, a
liquidation or other winding up, assignment for the benefit of creditors or
other marshalling of assets and liabilities of the Issuer referred to in
Condition 11 or under the conditions described in Section 36(c) or 36(d) hereof,
from making payments at any
64
time of principal of (and premium and Additional Amounts, if any) or interest on
the Subordinated Notes, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the principal of
(and premium and Additional Amounts, if any) or interest on the Subordinated
Notes or the retention of such payment by the holders, if, at the time of such
deposit no Responsible Officer of the Trustee had knowledge that such payment or
application would have been prohibited by the provisions of this Section 36.
(f) Subject to the payment in full of all Senior Indebtedness,
the holders of the Subordinated Notes shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium and Additional Amounts, if any) and interest on the
Subordinated Notes shall be paid in full. For purposes of such subrogation, no
payments or cash, property or securities to which the holders of the
Subordinated Notes or the Trustee would be entitled except for the provisions of
this Section 36, and no payments pursuant to the provisions of this Section 36
to the holders of Senior Indebtedness by holders of the Subordinated Notes or
the Trustee, shall, among the Issuer, its creditors other than holders of Senior
Indebtedness of the Subordinated Notes, shall be deemed to be a payment or
distribution by the Issuer to or on account of the Senior Indebtedness.
(g) The provisions of this Section 36 are and are intended
solely for the purpose of defining the relative rights of the holders of the
Subordinated Notes on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Section 36 or elsewhere in this Indenture
or in the Subordinated Notes is intended to or shall (a) impair, as among the
Issuer, its creditors other than holders of Senior Indebtedness and the holders
of the Subordinated Notes, the obligation of the Issuer, which is absolute and
unconditional (and which, subject to the rights under this Section 36 of the
holders of Senior Indebtedness, is intended to rank equally with all other
general obligations of the Issuer), to pay to the holders of the Subordinated
Notes the principal of (and premium and Additional Amounts, if any) and interest
on the Subordinated Notes as and when the same shall become due and payable in
accordance with their terms, or (b) affect the relative rights against the
Issuer of the holders of the Subordinated Notes and creditors of the Issuer
other than the holders of Senior Indebtedness, or (c) prevent the Trustee or the
holder of any Subordinated Note from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Section 36 of the holders of Senior Indebtedness to receive
cash, property and securities otherwise payable or deliverable to the Trustee or
such holder.
(h) Each holder of a Subordinated Note by his acceptance
thereof authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in this
Section 36 and appoints the Trustee his attorney-in-fact for any and all such
purpose.
(i) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Issuer or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Issuer with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
65
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the holders of the
Subordinated Notes, without incurring responsibility to the holders of the
Subordinated Notes and without impairing or releasing the subordination provided
in this Section 36 or the obligations hereunder of the holders of the
Subordinated Notes to the holders of Senior Indebtedness, do any one or more of
the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend
or supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (iii) release any Person liable in any
manner for the collection of Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Issuer and any other Person.
(j) The Issuer shall give prompt written notice to the Trustee
of any fact known to it which would prohibit the making of any payment to or by
the Trustee in respect of the Subordinated Notes. Notwithstanding the provisions
of this Section 36 or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Subordinated
Notes, unless and until a Responsible Officer of the Trustee shall have received
written notice thereof from the Issuer or a holder of Senior Indebtedness or
from any Trustee therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 15, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if a
Responsible Officer of Trustee shall not have received the notice provided for
in this Section 36(j) at least two Business Days prior to the date upon which by
the terms thereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium and Additional
Amounts, if any) or interest on any Subordinated Note)), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date. Only
notice given in the manner provided for in Section 30 shall be deemed to be
effectively given under this Section 36.
Subject to Section 15, the Trustee shall be entitled to rely
on the delivery to a Responsible Officer of the Trustee of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a Trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a Trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Section 36, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Section 36, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
66
(k) Upon any payment or distribution of assets of the Issuer
referred to in this Section 36, the Trustee, subject to the provisions of
Section 15, and the holders of the Subordinated Notes shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the Trustee in bankruptcy, receiver, liquidation Trustee,
custodian, "sindico", assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the Trustee or the
holders of Subordinated Notes, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness and other indebtedness of the Issuer, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Section 36.
(l) The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness and shall not be liable to any such
holders if it shall in good faith mistakenly pay or distribute to holders of
Subordinated Notes or to the Issuer or to any other Person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Section 36 or otherwise.
(m) The Trustee in its individual capacity shall be entitled
to all the rights set forth in this Section 36 with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
Nothing in this Section 36 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 11 hereof.
(n) In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Issuer and be then acting hereunder,
the term "Trustee" as used in this Section 36 shall in such case (unless the
context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Section 36 in addition to or in place of the
Trustee.
37. Money for Note Payments to Be Held in Trust. If the Issuer shall at
any time act as its own Paying Agent, it will, on or before each due date of the
principal of (and premium and Additional Amounts, if any) or interest on any of
the Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium and Additional
Amounts, 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.
Whenever the Issuer shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium and Additional
Amounts, if any) or interest on any Notes, deposit with the Trustee a sum
sufficient to pay the principal (and premium and Additional Amounts, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium, Additional Amounts or interest, and
(unless such Paying Agent is the Trustee) the Issuer will promptly notify the
Trustee of its action or failure so to act.
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The Issuer will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in writing in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium and Additional Amounts, if any) or interest on Notes in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Notes) in the making of any payment of principal (and
premium and Additional Amounts, if any) or interest; and
(3) 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.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Issuer 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 the Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall 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 the Issuer, in trust for the payment of the principal of (and
premium and Additional Amounts, if any) or interest on any Note and remaining
unclaimed for three years after such principal (and premium and Additional
Amounts, if any) or interest has become due and payable shall be paid to the
Issuer upon written request of an Authorized Officer, or (if then held by the
Issuer) shall be discharged from such trust; and the holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer as Trustee thereof,
shall thereupon cease; provided, however that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, (i) in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the City of New York, and (ii) in a newspaper published in the Spanish
language and of general circulation in the Republic of Argentina, 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 will be repaid to the Issuer.
38. Governing Law. The Negotiable Obligations Law governs the
requirements for the Notes to qualify as Obligaciones Negociables thereunder
while such law, together with Argentine Law No. 19,550, as amended, and other
applicable Argentine laws and regulations, govern the capacity and corporate
authorizations of the Issuer to execute and deliver the Notes and the
authorization of the CNV for the establishment of the Program and the public
offering of the Notes in Argentina. As to all other matters, this Indenture and
the Notes shall be governed
68
by, and shall be construed in accordance with, the law of the State of New York,
United States of America.
39. Conflict with Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern trust indentures qualified
under such Act, the latter provision 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, such provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
40. Jurisdiction. (a) Each party hereto irrevocably submits to the
jurisdiction of the United States District Court for the Southern District of
New York, the Supreme Court of the State of New York, New York County and any
appellate court from either thereof for the purpose of any suit, action or
proceeding against it arising out of or related to this Indenture or the Notes
"Related Proceedings"). Each party hereto irrevocably waives, to the fullest
extent permitted by law, any objection which it may have to the laying of the
venue of any such Related Proceedings brought in such a court and any claim that
any such Related Proceedings have been brought in an inconvenient forum. The
Issuer agrees that a final non-appealable judgment in any Related Proceedings
brought in such a court (a "Related Judgment") shall be conclusive and binding
upon the Issuer and may be enforced in any court to the jurisdiction of which it
is subject by a suit upon such Related Judgment; provided that service of
process is effected upon the Issuer in the manner specified below or as
otherwise permitted by law.
So long as any Note or coupon remains Outstanding, the Issuer shall at
all times have an authorized agent in the City of New York, the Borough of
Manhattan (the "Authorized Agent") upon whom process may be served in connection
with any Related Proceedings. Service of process upon such agents in accordance
with applicable law and written notice of such service mailed or delivered to
the Issuer shall, to the fullest extent permitted by applicable law, be deemed
in every respect effective service of process upon the Issuer in any Related
Proceedings.
(b) The Issuer hereby irrevocably appoints CT Corporation
System, with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its
Authorized Agent in the State of New York. The Issuer covenants and agrees that
service of all writs, process and summons in any Related Proceeding or any
action or proceeding to enforce or execute any Related Judgment brought against
it in the State of New York may be made upon its Authorized Agent at the address
specified above, and the issue hereby authorizes and directs its Authorized
Agent to accept such service on its behalf. Such appointments shall be
irrevocable so long as any of the Notes remain outstanding or until the
appointment, similarly irrevocable, of a successor Authorized Agent reasonably
acceptable to the Trustee and such successor's acceptance of such appointment
but in no event beyond the maturity of the Notes (unless an Event of Default,
Event of Acceleration or Event of Non-Payment shall have occurred and be
continuing at such date). The Issuer will take any and all action, including the
filings of any and all documents and instruments, that may be necessary to
continue such appointment or appointments in full force and effect as aforesaid.
Service of process upon an Authorized Agent with respect to any legal action or
proceeding brought in the relevant jurisdiction by the Trustee, Registrar,
Co-Registrar, any Paying Agent, any Transfer Agent or any holder shall be
deemed, in every respect, effective
69
service of process upon the Issuer in such jurisdiction if written notice of
such service is sent or delivered to the Issuer pursuant to Section 30.
(c) Nothing in this Section shall affect the right of any
party to serve legal process in any other manner permitted by law or affect the
right of any party to bring any action or proceeding against any other party or
its property in the courts of other jurisdictions.
41. Counterparts. This Indenture may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Such counterparts
shall together constitute but one and the same instrument.
42. Rights and Remedies Cumulative. No right or remedy herein conferred
upon or reserved to any Noteholder, the Trustee, the Registrar, the Co-Registrar
or any Paying Agent or any Transfer Agent 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.
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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 above written.
BANCO RIO DE LA PLATA S.A.
By: ______________________
Name:
Title:
By: ______________________
Name:
Title:
THE BANK OF NEW YORK
By: ______________________
Name:
Title:
BANQUE INTERNATIONALE A
LUXEMBOURG S.A.
By: ______________________
Name:
Title:
71
EXHIBIT A
TERMS AND CONDITIONS OF THE NOTES
The following are the terms and conditions of the Notes (the
"Conditions") that (subject to completion and amendment) will be applicable to
each Series and/or Tranche of Notes, provided that the applicable Pricing
Supplement in relation to any Series and/or Tranche of Notes may specify other
Conditions that shall, to the extent so specified or to the extent inconsistent
with these Conditions, replace the following Conditions for the purposes of such
Tranche of Notes. The Conditions, as modified by the relevant Pricing
Supplement, shall be attached to and incorporated by reference into each Note in
global form and endorsed upon each Note in definitive form.
1. General
The program (the "Program") for the issuance of medium-term notes (the
"Notes") has been authorized by a resolution of an ordinary meeting of
stockholders passed on December 3, 1999 and by resolution of the Board of
Directors of the Bank passed on January 20, 2000. The Notes will be issued
pursuant to an indenture (the "Indenture") dated as of May 19, 2000 among the
Bank, The Bank of New York, as Trustee (the "Trustee", which term includes any
successor as Trustee under the Indenture), Co-Registrar (the "Co-Registrar") and
Principal Paying Agent (the "Principal Paying Agent") and Banque Internationale
a Luxembourg S.A., as a Paying Agent and a transfer agent (a "Transfer Agent").
The Bank will act as Registrar and Paying Agent in Argentina (the Principal
Paying Agent and all other Paying Agents, including any successor or additional
paying agents, are collectively referred to herein as the "Paying Agents"). The
Trustee has appointed Banco ▇▇ ▇▇▇▇▇▇▇ y Buenos Aires S.A., presently at Tte.
Gral. ▇. ▇. ▇▇▇▇▇ N(0) ▇▇▇, (▇▇▇▇), ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, as it agent (the
"Trustee's Representative") in Buenos Aires to receive notices on its behalf in
Argentina from holders of the Notes (the "Holders"). No Note will become valid
or enforceable for any purpose unless and until such Note has been authenticated
by or on behalf of the Trustee.
The terms of the Notes are those stated in the Indenture and the Notes.
The following summary of the terms and conditions of the Notes and the Indenture
are subject to, and qualified in their entirety by reference to the applicable
provisions of the Notes and the Indenture. Wherever particular sections,
articles or defined terms of the Indenture are referred to herein, such
sections, articles or defined terms shall be as specified in the Indenture.
Capitalized terms not otherwise defined below or elsewhere in the Notes shall
have the respective meanings given such terms in the Indenture. The Holders of
the Notes will be entitled to the benefits of, be bound by, and be deemed to
have notice of, all of the provisions of the Indenture and the Notes. Copies of
the Indenture will be available for inspection and copying during normal
business hours at the offices of the Trustee, the Trustee's Representative, the
Registrar, the Co-Registrar and the Paying Agents.
The Notes will be issued in tranches (each a "Tranche", as defined
below), and each Tranche will be the subject of a Pricing Supplement prepared by
or on behalf of the Bank, a copy of which may be obtained at the specified
office of the Trustee and each of the Paying Agents and, in the case of a
Tranche in relation to which application has been made for listing on the
▇-▇
▇▇▇▇▇▇▇▇▇▇ Stock Exchange and/or the Paris Bourse, a copy of which will be
delivered to the Luxembourg Stock Exchange and/or the Commission des Operations
de Bourse (as applicable).
The aggregate principal amount at maturity of the Notes proposed to be
issued, when added to the aggregate principal amount at maturity of all Notes
outstanding (as defined in the Indenture) on the proposed Issue Date of the
Notes proposed to be issued under the Program, will not exceed US$1,000,000,000.
For purposes of determining the aggregate principal amount at maturity of all
Notes outstanding (i) the US$ dollars shall be calculated as at the Issue Date
of such Notes by reference to the rate of exchange that is the spot rate for the
sale US$ dollars against the purchase of the relevant currency in the New York
foreign exchange market as quoted by any leading bank agreed to by the Bank and
the relevant Dealer(s), or if such Issue Date is not a day on which banks and
foreign exchange markets are open for business in New York (a "New York Business
Day"), the preceding New York Business Day (the "Exchange Rate"); (ii) the US$
dollar equivalent of Indexed Notes and Dual Currency Notes shall be calculated
by reference to the Exchange Rate and the original principal amount at maturity
of the relevant Notes on the Issue Date of such Notes; and (iii) the US$ dollar
equivalent of Zero Coupon Notes and other Notes issued at a discount or premium
shall be calculated by reference to the Exchange Rate and the principal amount
of such Notes issued at a discount or premium on the Issue Date of such Notes.
Words and expressions defined in the Indenture or used in the
applicable Pricing Supplement shall have the same meanings where used in these
Conditions unless the context otherwise requires or unless otherwise stated. In
these Conditions, Notes that are identical in all respects (including as to
Issue Date but without regard to whether they are otherwise issued in registered
and/or bearer form) shall constitute a "Tranche", and any Tranches of Notes that
(i) are expressed to be consolidated and form a single series and (ii) are
identical in all respects (except for their respective Issue Dates, Interest
Commencement Dates and/or Issue Prices and except for whether they are issued in
registered and/or bearer form) shall constitute a "Series".
2. Form, Denomination and Title
Notes of each Tranche of each Series to be issued in bearer form, if
permitted by applicable Argentine law and regulations ("Bearer Notes" comprising
a "Bearer Series") and sold in transactions outside the United States in
reliance on Regulation S ("Regulation S") under the US Securities Act of 1933,
as amended (the "Securities Act"), will initially be represented by interests in
a temporary global Note in bearer form (a "Temporary Global Note"), without
interest coupons, which will be deposited with a common depositary for Euroclear
and Cedel on or before the issue date of such Notes. Interests in a Temporary
Global Note will be exchangeable, in whole or in part, for interests in a
permanent Global Note in bearer form, without interest coupons, representing
Notes of the same Series (a "Permanent Global Note") on or after the date 40
days after the completion of the distribution (as determined by the Bank (based
solely on information certified by the relevant Dealers)) of all Notes of the
Tranche of which such Notes are a part issued prior to such determination (the
"Exchange Date"), upon certification of non-US beneficial ownership as set forth
in such Temporary Global Note and the Indenture. Notwithstanding the foregoing,
if indicated in the applicable Pricing Supplement, Bearer Notes with a maturity
of not more than 365 days may initially be represented by one or more Permanent
Global Notes.
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Any reference herein to Euroclear and/or Cedel shall, whenever the
context so permits, be deemed to include a reference to any additional or
alternative clearance system (including, in the case of Notes listed on the
Paris Bourse, Societe Interprofessionnelle pour la Compensation des Valeurs
Mobilieres and the intermediares financiers habilites authorized to maintain
accounts therein (together, "SICOVAM")), approved by the Bank, the relevant
Dealer(s) and the Trustee.
If an interest payment date for any Bearer Notes occurs while such
Notes are represented by a Temporary Global Note, the related interest payment
will be made against presentation of the Temporary Global Note only to the
extent that certification of non-US$ beneficial ownership (in the form set out
in the Indenture) has been received by Euroclear or Cedel, and Euroclear or
Cedel, as the case may be, have provided a corresponding certificate to the
Trustee. No payments of interest will be made on a Temporary Global Note after
the Exchange Date. Payments of principal of or interest (if any) on a Permanent
Global Note will be made through Euroclear and Cedel against presentation or
surrender, as the case may be, or the Permanent Global Note without any
requirement for certification.
The following legend will appear on all Temporary Global Notes,
Permanent Global Notes and any other Bearer Notes (except on certain Notes
having a maturity of not more than one year) and on any coupons: "Any United
States person who holds this obligation will be subject to limitations under the
United States federal income tax laws including the limitations provided in
sections 165(j) and 1287(a) of the Internal Revenue Code of 1986, as amended".
Notes of each Tranche of each Series to be issued in registered form
("Registered Notes" comprising a "Registered Series") and which are sold in
transactions outside the United States in reliance on Regulation S will be
represented initially by interests in a permanent global Note in fully
registered form (a "Regulation S Global Note"), without interest coupons, which
will be deposited with the Trustee, as custodian for, and registered in the name
of a nominee of, The Depositary Trust Company ("DTC") on its issue date for the
accounts of Euroclear and Cedel. Prior to the date 40 days after the completion
of the distribution (as determined by the Bank (based solely on information
certified by the relevant Dealers)) of all Notes of the Tranche of which such
notes are a part issued prior to such determination, beneficial interests in the
Regulation S Global Note may be held only through agent members of Euroclear
and/or Cedel. Notes of each Tranche of each Registered Series registered under
the Securities Act with the Commission (a "SEC Registered Global Note") and
Notes of each Tranche of each Registered Series sold in reliance on Rule 144A
under the Securities Act (the "Restricted Global Note" and, together with the
Regulation S Global Note and the SEC Registered Global Note, the "Registered
Global Notes") will be represented by separate permanent global Notes, without
interest coupons, which will be deposited with the Trustee as custodian for, and
registered in the name of a nominee of, DTC on or prior to their respective
issue dates.
Each Registered Note will be numbered serially with an identifying
number that will be recorded in the registered (the "Register") to be kept by
the Registrar. Title to Registered Notes will pass by and upon registration in
the Register. Title to Bearer Notes will pass by delivery. In these Conditions,
"Noteholder" and "Holder" means, in the case of a Registered Note, the person in
whose name a Note is registered in the Register, and in the case of a Bearer
Note, the bearer of such Note. The Holder of any Note will (except as otherwise
required by law) be treated as its
A-3
absolute owner for all purposes (whether or not it is overdue and regardless of
any notice of ownership, trust or any interest in it, any writing on it, or its
theft or loss), and no person will be liable for so treating the Holder.
Notwithstanding the foregoing, upon the occurrence of an Event of
Default, Event of Acceleration or Event of Non-Payment (each as defined in
Condition 11), each person that is shown by the records of Euroclear or Cedel as
entitled to a particular principal amount of Notes represented by a Permanent
Global Note shall be entitled to file any claim, take any action or institute
any proceeding to enforce, directly against the Bank, the obligations of the
Bank hereunder to pay any amount due in respect of such Notes; provided,
however, that the Holder of any such Permanent Global Note shall not have filed
a claim, taken any action or instituted proceedings to enforce the same in
respect of such Note. For purposes of the foregoing sentence, the securities
account records of Euroclear and Cedel shall, in the absence of manifest error,
be conclusive evidence of the identity of such persons and of the principal
amount of Notes represented by any such Permanent Global Note.
Bearer Notes and definitive Registered Notes (as defined herein) will
be issued in the denominations specified in Condition 3.
If any Bearer Note or coupon shall at any time be lost, stolen or
destroyed in such a way as to become unidentifiable, the applicant seeking
replacement of the Bearer Note or coupon must execute a notarized certificate
providing, among other things, the identity of the applicant, a description of
the Bearer Note or coupon, the manner in which the Bearer Note or coupon was
acquired and, if possible, the date of acquisition, the date when the last
payment was collected and, if lost or stolen, how such loss or theft took place.
The applicant must provide such certificate to the Issuer within 24 hours of its
execution. The Issuer shall promptly (within one Business Day of receipt
thereof) provide notice thereof to the Trustee. Such notification to the Issuer
shall serve to suspend any rights under the original Bearer Note or coupon by
any other claimant. The Issuer shall publicize notice of such certification in
two widely circulated newspapers in Buenos Aires for two consecutive days. Any
payments due on such Bearer Note or coupon shall be deposited in an account
maintained for the purpose by the Trustee in a bank located in the jurisdiction
where the Issuer is domiciled as designated by the Issuer and will be made
available to the applicant (net of any expenses associated with publication of
notice of such Bearer Note or coupon) on the first Payment Date in respect of
such Bearer Note or coupon occurring after the expiration of one year from the
date of the certification; provided that, if no Notes of the same Series as such
Bearer Note are Outstanding, such payments may be made on a date other than a
Payment Date.
The Notes may be issued (a) to bear interest on a fixed rate basis
("Fixed Rate Notes"), (b) to bear interest on a floating rate basis ("Floating
Rate Notes"), (c) on a non-interest bearing basis ("Zero Coupon Notes") or (d)
in any combination thereof as specified in the applicable Pricing Supplement.
Notes may also be issued with principal and/or interest payable in one or more
currencies different from the currency in which such Notes are denominated
("Dual Currency Notes"), or linked to an index and/or a formula ("Indexed
Notes"). Dual Currency Notes and Indexed Notes may be issued to bear interest on
a fixed or floating rate basis or on a non-interest bearing basis or a
combination of such basis, in which case provisions relating to Fixed Rate
Notes, Floating Rate Notes, Zero Coupon Notes or a combination thereof,
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respectively, shall, where the context so admits, apply to such Dual Currency or
Indexed Notes. References in these Conditions to a Note being denominated in a
Specified Currency (as defined below) shall, unless the context otherwise
requires, include a reference to such Note being payable in that Specified
Currency.
3. Transfer of Registered and Bearer Notes and Issue of Definitive Notes
Transferees of interests in one Registered Global Note may take
delivery in the form of interests in another Registered Global Note of the same
Series, subject to the certification requirements set forth in the Indenture;
provided, however, that transfer between Notes registered under the Securities
Act with the Commission ("SEC Registered Notes") and other Registered Notes are
not permitted. Transferees of interests in a Global Note in bearer form may take
delivery in the form of interests in a Registered Global Note of the same
Series, subject to certification requirements set forth in the Indenture.
If (i) DTC notifies the Bank that it is unwilling or unable to continue
as a depositary or at any time ceases to be a "clearing agency" registered under
the US Securities Exchange Act of 1934, as amended (the "Exchange Act"), and a
successor depositary so registered is not appointed by the Bank within 90 days
of such notice or (ii) the Bank determines that the Registered Global Note will
be exchanged for Notes in definitive registered form, interests in Registered
Global Notes will be issued in fully registered definitive form (a "definitive
Registered Note") without coupons in amounts of US$250,000 (or the equivalent
thereof in the currency in which such Note is denominated rounded to the nearest
1,000 units of such currency) and higher integral multiples of US$50,000 (or the
equivalent thereof in the currency in which such Note is denominated rounded to
the nearest 1,000 units of such currency) or in such denominations as may be
specified in the applicable Pricing Supplement, subject to compliance with all
applicable legal and regulatory requirements. A definitive Registered Note will
be issued to each Holder in respect of its registered holding or holdings of
Notes.
A definitive Registered Note may be transferred in whole or in part in
an authorized denomination upon the surrender of the Note, together with the
form of transfer endorsed on it duly completed and executed, at the specified
office of the Trustee or any Transfer Agent, subject to certification
requirements set forth in the Indenture. In the case of a transfer of part only
of a definitive Registered Note, a new definitive Registered Note in respect of
the balance not transferred will be issued to the transferor. Each new
definitive Registered Note to be issued upon transfer of Notes will, within 3
Business Days (as defined herein) of receipt of such form of transfer by the
Trustee with the Note to be so transferred, be delivered to the Transferee at
the office of the Trustee or mailed at the risk of the Holder entitled to the
Note in respect of which the relevant definitive Registered Note is issued to
such address as may be specified in such form of transfer.
Definitive Bearer Notes with interest coupons, if any, attached will be
issued in exchange for beneficial interests in Permanent Global Notes (i) on the
request of a Holder, or (ii) if Euroclear or Cedel has been closed for a
continuous 30 day period or has announced an intention to permanently cease
business, or (iii) if the Bank determines that the Permanent Global Note will be
exchanged in full for Notes in definitive bearer form. Definitive Bearer Notes
will be issued in amounts of US$1,000 (or the equivalent thereof in the currency
in which such Note is
A-5
denominated rounded to the nearest 1,000 units of such currency), or in such
denominations as may be specified in the applicable Pricing Supplement, subject
to compliance with all applicable legal and regulatory requirements.
Transfers of Notes will be effected without charge by or on behalf of
the Bank, the Trustee or the Transfer Agents, but upon payment (or the giving of
such indemnity as the Trustee or the relevant Transfer Agent may require) in
respect of any tax or other governmental charges that may be imposed in relation
to it. All transfers and exchanges of Notes will be made subject to the
provisions concerning transfer and exchanges of Notes set forth in the
Indenture. Registered Notes may not be exchanged for Bearer Notes. At the option
of a Holder on written request and subject to applicable laws and regulations,
definitive Registered Notes or Bearer Notes of a Series may be exchanged for
definitive Registered Notes of the same Series of any authorized denominations
and of equal aggregate principal amount upon surrender of the relevant Notes
with the form of transfer endorsed thereon duly executed.
No Holder may require the exchange of interests in a Registered Global
Note for a definitive Registered Note or the Transfer of a Registered Note to be
registered during the period commencing on the 15th day prior to the due date
for any payment of principal or interest on that Note and ending on such due
date (such 15th day being the "Record Date"). Unless otherwise specified in the
applicable Pricing Supplement, the first payment of interest on any Note of a
Tranche issued between a Record Date and the due date for any payment of
interest will be made on the payment date next succeeding the payment date
related to such Record Date.
4. Status of the Notes
The Notes may be direct, unsecured and unconditional obligations of the
Bank and, except for such exceptions as are or may be provided by applicable
Argentine law, ranking at least pari passu in priority of payment with all other
present and future unsecured and unsubordinated obligations of the Bank;
provided, however, that if specified in the applicable Pricing Supplement, Notes
issued under the Program may be (i) subordinated to all Senior Indebtedness (as
defined below) of the Bank, including the Bank's deposits (such Notes being
referred to herein as "Subordinated Notes"), or (ii) may be secured.
Argentine Law No. 24,485, in effect since April 18, 1995 as amended by
Argentine Law No. 24,627, provides that in the event of judicial liquidation or
bankruptcy of a bank, all depositors, regardless of the type, amount or currency
of their deposits, whether individuals or legal entities, would have a general
and absolute priority right over all creditors, with the exception of certain
labor creditors and those creditors secured by a pledge or mortgage, to be paid
out of 100% of the proceeds of the liquidation or the assets of a failed bank.
In addition, depositors of any type of deposits have a special priority right
over all other creditors of a bank, with the exception of certain labor
creditors, to be paid out of: (i) any funds of such bank which may be held by
the Central Bank as reserves; (ii) any other funds of such bank existing at the
date the license of such bank is revoked; or (iii) any proceeds which may result
from the mandatory transfer of certain assets of such bank as determined by the
Central Bank. Such payments are to be made in the following order of priority:
(a) deposits up to Ps.5,000 per person or its equivalent in foreign currency;
(b) all deposits with maturities of more than 90 days; and (c) all other
deposits on a pro rata basis.
A-6
Subordination of Notes
Any indebtedness of the Bank evidenced by Subordinated Notes, including
principal (and premium and Additional Amounts, if any) and interest, will be
subordinated to all Senior Indebtedness in the events described below. The
Indenture provides (with respect to the subordination of Notes) that, in the
event of (i) any failure to pay when due (which has not been cured or waived),
whether by acceleration or otherwise (taking into account any applicable grace
period), any principal (or premium or Additional Amounts, if any) or interest in
an aggregate amount equal to or in excess of US$10,000,000 in respect of any
Senior Indebtedness, or (ii) the entering of any final, non-appealable judgment
(and until such judgment has been satisfied and discharged) in an amount of
US$10,000,000 or more against the Bank in respect of any Senior Indebtedness,
then, in either case, no payment shall be made by the Bank on account of
principal (or premium or Additional Amounts, if any) or interest on the
Subordinated Notes or on account of the purchase or other acquisition of the
Subordinated Notes. Such failure to make payment when due on the Subordinated
Notes, even though required by the Indenture, will constitute an Event of
Default but will not constitute an Event of Acceleration (as defined in
Condition 11) in respect of the Subordinated Notes. In the event of the
bankruptcy of the Bank, all Senior Indebtedness shall be entitled to be paid in
full before any payment shall be made on account of the principal of (or premium
or Additional Amounts, if any) or interest on the Subordinated Notes. In the
event of any such bankruptcy, after payment in full of all sums owing on Senior
Indebtedness, the holders of Subordinated Notes, together with the holders of
any obligations of the Bank ranking on a parity with the Subordinated Notes duly
admitted in the bankruptcy proceeding, are entitled to be paid, pro rata from
the remaining assets of the Bank, the unpaid principal of (and premium and
Additional Amounts, if any) and interest on, the Subordinated Notes and such
other obligations, before any payment or other distribution, whether in cash,
property, or otherwise, will be made on account of any capital stock. The Bank
has an absolute and unconditional obligation to pay the principal of (and
premium and Additional Amounts, if any) and interest on, the Subordinated Notes
in accordance with their terms. The Subordinated Notes will not be deposits, are
ineligible as collateral for a loan to the Bank or granted by the Bank or for
guarantees assumed by the Bank for the benefit of third parties or for potential
subordinated liabilities assumed by the Bank for the account of third parties,
are unsecured and do not have the benefit of any general or special lien on the
Bank's assets.
"Senior Indebtedness" is defined as all amounts due on and obligations
in connection with any of the following, whether outstanding at the rate of
execution of the Indenture or thereafter incurred or created:
(a) indebtedness, obligations and other liabilities (contingent or
otherwise) of the Bank, including Obligaciones Negociables other than the
Subordinated Notes, for money borrowed, or evidenced by bonds, debentures, notes
or similar instruments;
(b) reimbursement obligations and other liabilities (contingent or
otherwise) of the Bank with respect to letters of credit, bankers' acceptances
issued for the account of the Bank or with respect to interest rate, protection
agreements or currency exchange or purchase agreements or similar agreements;
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(c) obligations and liabilities (contingent or otherwise) in respect of
leases by the Bank as lessee which, in conformity with generally accepted
accounting principles, are accounted for as capitalized lease obligations on the
balance sheet of the Bank;
(d) all direct or indirect guarantees or similar agreements in respect
of and obligations or liabilities (contingent or otherwise) to purchase or
otherwise acquire or to perform or otherwise assure a creditor against loss of
the Bank in respect of, indebtedness, obligations or liabilities of the nature
described in clauses (a) through (c);
(e) any indebtedness described in clauses (a) through (d) secured by
any mortgage, pledge, lien or other encumbrance existing on property which is
owned or held by the Bank, regardless of whether the indebtedness secured
thereby shall have been assured by the Bank;
(f) any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any indebtedness, obligation or
liability of the kind described in clauses (a) through (e);
(g) deposits of any kind; and
(h) other obligations incurred in the ordinary course of banking
business;
unless in any case in the instrument creating or evidencing such indebtedness,
obligation, liability, guaranty, assumption, deferral, renewal, extension or
refunding, it is provided that such indebtedness is pari passu with, or
subordinated to, the Subordinated Notes.
5. Interest
(a) Interest on Fixed Rate Notes
(i) Each Fixed Rate Note bears interest from and including the
Issue Date or the Interest Commencement Date, if different from the Issue Date,
at the Fixed Interest Rate(s) per annum specified in the applicable Pricing
Supplement, payable in arrears on the Fixed Interest Payment Date(s) in each
year and on the Maturity Date so specified if such Maturity Date does not fall
on a Fixed Interest Payment Date. If any Fixed Interest Payment Date (or
Maturity Date upon which a payment of interest is due) would otherwise fall on a
day that is not a Business Day (as defined below), the interest otherwise
payable on such day and no additional interest shall accrue as a result of such
postponement of payment. The first payment of interest will be made on the Fixed
Interest Payment Date immediately following the Issue Date or the Interest
Commencement Date, as the case may be, and, if the first anniversary of the
Issue Date or the Interest Commencement Date, as the case may be, is not a Fixed
Interest Payment Date, will be in an amount equal to the Initial Broken Amount
specified in the applicable Pricing Supplement. If the Maturity Date is not a
Fixed Interest Payment Date, interest from and including the preceding Fixed
Interest Payment Date (or the Interest Commencement Date, as the case may be) to
but excluding the Maturity Date will amount to the Final Broken Amount specified
in the applicable Pricing Supplement.
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(ii) Interest shall be computed on the basis of a 360-day year
consisting of 12 months of 30 days each (or such other basis as may be specified
in the applicable Pricing Supplement) and, in the case of an incomplete month,
the number of days elapsed.
(b) Interest on Floating Rate Notes
(i) Floating Interest Payment Date. Each Floating Rate Note
bears interest from the Issue Date or the Interest Commencement Date, if
different from the Issue Date, and such interest will be payable on each
interest payment date (each a "Floating Interest Payment Date") that (except as
otherwise mentioned in these Conditions) falls the number of months (or such
period(s) specified as the Interest Period(s) in the applicable Pricing
Supplement) after the preceding Floating Interest Payment Date or, in the case
of the first Floating Interest Payment Date, after the Issue Date or the
Interest Commencement Date, as the case may be. Interest will be reset monthly,
quarterly, semi-annually, annually or with such other frequency, as specified in
the relevant Pricing Supplement. If any Floating Interest Payment Date would
otherwise fall on a day that is not a Business Day, it shall be postponed to the
next day which is a Business Day (and interest will accrue to but excluding such
Business Day) unless it would thereby fall into the next calendar month, in
which event the Floating Interest Payment Date shall be brought forward to the
immediately preceding Business Day and, thereafter, each subsequent Floating
Interest Payment Date shall be the last Business Day of each subsequent Interest
Period.
In these Conditions, "Business Day" means a day on which
commercial banks and foreign exchange markets are open for business in London
and the City of New York and (a) in relation to Notes denominated in a Specified
Currency other than the Euro, which is a day on which commercial banks and
foreign exchange markets settle payments in the principal financial center of
the country of the relevant Specified Currency, and (b) in relation to Notes
denominated in Euros, which day is not designated as an Euro non-settlement day
by the Euro Banking Association.
(ii) Screen Rate Determination. Where Screen Rate
Determination is specified in the applicable Pricing Supplement, the rate of
interest (the "Rate of Interest") payable from time to time in respect of the
relevant Tranche of Floating Rate Notes denominated in any currency (the
"Specified Currency") (other than Euro, which will be determined in accordance
with the provisions of Condition 6(c)) will be determined on the basis of the
following provisions:
(a) The Rate of Interest for each Interest Period shall,
subject as provided below, be:
(1) the rate, or
(2) if at least two rates appear, the arithmetic mean
(rounded, if necessary, to the nearest fourth decimal place (0.00005 being
rounded upwards)) of the offered rates,
for deposits in the Specified Currency for a period equal to the Interest Period
that appears or appear, as the case may be, on the appropriate page of the
screen (as defined below) as at 11:00
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a.m., London time, on the relevant Interest Determination Date (as defined
below) plus or minus (as appropriate) the Margin, if any, as determined by the
Trustee.
(b) If, on any Interest Determination Date, no such offered
rate appears, or, in the case of a screen that normally displays at least two
rates for any relevant period, fewer than two of such offered rates appear at
such time or if the offered rate or rates which appears or appear, as the case
may be, as at such time do not apply to a period equal to the relevant Interest
Period, the Rate of Interest for such Interest Period shall, subject as provided
below, be the arithmetic mean (rounded, if necessary, to the nearest fourth
decimal place (0.00005 being rounded upwards)) of the rates at which the Trustee
is advised by all Reference Banks (as defined below) that deposits in the
Specified Currency for a period equal to such Interest Period are offered by the
Reference Banks to leading banks in the London interbank market as at 11:00
a.m., London time on the Interest Determination Date plus or minus (as
appropriate) the Margin, if any, all as determined by the Trustee.
(c) If on any such Interest Determination Date to which
subparagraph (B) above applies, two or three of the Reference Banks advise the
Trustee of such rates, the Rate of Interest for the next Interest Period shall,
subject as provided below, be determined as in subparagraph (B) above on the
basis of the rates of those Reference Banks advising such rates.
(d) If on any such Interest Determination Date to which
subparagraph (B) above applies only one or none of the Reference Banks advises
the Trustee of such rates, the Rate of Interest for the next Interest Period
shall, subject as provided below, be the Reserve Interest Rate. The "Reserve
Interest Rate" shall be the rate per annum that the Trustee determines to be
either (x) the arithmetic mean (rounded, if necessary, to the nearest fourth
decimal place (0.00005 being rounded upwards)) of the lending rates for the
Specified Currency that banks selected by the Trustee in the principal financial
center of the country of the Specified Currency are quoting on the relevant
Interest Determination Date for the next Interest Period to the Reference Banks
or those of them (being at least two in number) to which such quotations are, in
the opinion of the Trustee, being so made plus or minus (as appropriate) the
Margin, if any, or (y) in the event that the Trustee can determine no such
arithmetic mean, the lowest lending rate for the Specified Currency that banks
selected by the Trustee in the principal financial center of the country of the
Specified Currency are quoting on such Interest Determination Date to leading
European banks for the next Interest Period plus or minus (as appropriate) the
Margin, if any; provided that if the banks selected as aforesaid by the Trustee
are not quoting as mentioned above, the Rate of Interest shall be the Rate of
Interest in effect for the last preceding Interest Period to which subparagraphs
(A), (B) and (C) above shall have applied (minus or plus (as appropriate), where
a different Margin is to be applied to the next Interest Period from that which
applied to the last preceding Interest Period, the Margin relating to that last
preceding Interest Period, the Margin relating to that last preceding Interest
Period, plus or minus (as appropriate) the Margin for the next Interest Period).
(e) (1) The expression "the appropriate page of the screen"
means such page, whatever its designation, on which London interbank offered
rates or, if there is only one such rate, that rate for deposits in the
Specified Currency offered by prime banks that are for the time being displayed
on the Reuters Monitor Money Rates Services or the appropriate Dow ▇▇▇▇▇
Telerate Monitor as specified in the applicable Pricing Supplement.
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(2) Unless otherwise specified in the applicable Pricing
Supplement, the expression "the Interest Determination Date" means the second
Business Day prior to the commencement of the relevant Interest Period.
(iii) ISDA Determination. Where ISDA Determination is specified in the
applicable Pricing Supplement, the Rate of Interest payable for the relevant
Tranche of Floating Rate Notes for each Interest Period will be the relevant
rate (the "ISDA Rate") determined on the same basis as the floating rate under a
notional interest rate swap transaction in the relevant Specified Currency
governed by an agreement incorporating the 1991 ISDA Definitions (the "ISDA
Definitions"), as published by the International Swaps and Derivatives
Association, Inc. ("ISDA") plus or minus (as appropriate) the Margin, if any, as
determined by the Trustee. The ISDA Rate shall be determined by the Trustee in
accordance with the following provisions:
(x) On the second Market Day or such other day that is the convention
for a Specified Currency prior to the Issue Date (an "ISDA Rate Determination
Date"), the Trustee will determine the ISDA Rate by reference to the Floating
Rate (as defined in the ISDA Definitions) in accordance with clause (y) below.
(y) The ISDA Rate will be the equivalent of the rate determined if the
Bank had entered into an interest rate swap transaction governed by an agreement
in the form of the Interest Rate and Currency Exchange Agreement (an "ISDA
Agreement") published by ISDA and evidenced by a Confirmation (as defined in the
ISDA Agreement) incorporating the ISDA Definitions with the Holder of the
relevant Note under which:
(a) the Bank was the Floating Rate Payer;
(b) the Trustee was the Calculation Agent;
(c) the Issue Date or the Interest Commencement Date was the
Effective Date;
(d) the aggregate principal amount of the Notes of the Tranche
of which such Note is a part was the Notional Amount;
(e) the applicable Interest Period for such Note was the
Designated Maturity;
(f) the Floating Interest Payment Dates for such Note were the
Floating Rate Payer Payment Dates; and
(g) all other items were as specified in the applicable
Pricing Supplement.
For purposes of this Condition 5(b)(iii), "Floating Rate
Payer", "Calculation Agent", "Effective Date", "Notional Amount", "Designated
Maturity", "Floating Rate Payer Payment Dates" and "Market Day" have the
meanings given to those terms in the ISDA Definitions.
(iv) Determination of Rate of Interest and Computation of Interest
Amount. The Trustee will, as soon as practicable after 11:00 a.m., London time
(or, if appropriate, such other
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time as is customary in the principal financial center of the country of the
Specified Currency) on each Interest Determination Date, determine the Rate of
Interest and compute the amount of interest payable in respect of each
Authorized Denomination (each an "Interest Amount") for the relevant Interest
Period. Each Interest Amount shall be computed by applying the Rate of Interest
to an Authorized Denomination, multiplying such sum by the actual number of days
in the Interest Period concerned divided by 360 (or such other denominator
determined by the Trustee to be customary for such computation) and rounding the
resultant figure to the nearest cent (or its approximate equivalent in the
relevant other Specified Currency), half a cent (or its approximate equivalent
in the relevant other Specified Currency) being rounded upwards. The
determination of the Rate of Interest and computation of each Interest Amount by
the Trustee shall (in the absence of manifest error) be final and binding upon
all parties.
(v) Minimum Interest Rate and Maximum Interest Rate. If the applicable
Pricing Supplement specifies a Minimum Interest Rate, then the Rate of Interest
shall in no event be less than such minimum, and if a Maximum Interest Rate is
specified, then the Rate of Interest shall in no event exceed such maximum.
(vi) Notification of Rate of Interest and Interest Amount. The Trustee
will cause the Rate of Interest and the Interest Amount for each Interest Period
and the relevant Floating Interest Payment Date to be notified to the Bank and
to the relevant stock exchange (in the case of Notes listed on a stock exchange)
and to be published in accordance with the provisions of Condition 17 as soon as
possible but in any event not later than the fourth Business Day after their
determination and in the case of Notes listed on the Luxembourg Stock Exchange,
shall notify the Luxembourg Stock Exchange not later than the first Business Day
of the Interest Period. Each Interest Amount and the Floating Interest Payment
Date so notified may subsequently be amended (or appropriate alternative
arrangements made by way of adjustment) without publication as aforesaid in the
event of an extension or shortening of the Interest Period. Any such amendment
will be promptly notified by the Trustee to the relevant stock exchange.
(vii) Reference Banks. The initial Reference Banks (four or more) will
be the principal London offices of the banks specified in the applicable Pricing
Supplement. The Bank reserves the right to change any of the Reference Banks.
The Bank has agreed that, as long as any Floating Rate Note remains outstanding,
in the event that any bank is unable or unwilling to continue to act as a
Reference Bank or the designation of a Reference Bank is terminated, the Bank
shall designate the London office of some other prime bank engaged in
transactions in the London interbank market to act as such in its place.
(c) Zero Coupon Notes
Where a Zero Coupon Note becomes due and payable prior to the
Maturity Date, the amount due and payable shall be the Amortized Face Amount of
such Note as determined in accordance with the provisions of Condition
7(g)(iii). Any outstanding principal amount of such Note not paid when due shall
bear interest from the Maturity Date at a rate per annum equal to the Accrual
Yield set forth in the relevant Pricing Supplement. Such interest shall continue
to accrue (to the extent permitted by applicable law as well after as before
judgment) until the earlier of (i) the day on which all sums due in respect of
such Note up to that day are received by or on behalf of the Holder of such
Note, and (ii) the day on which the Trustee has notified the
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Holder thereof (either in accordance with the provisions of Condition 17 or
individually) of receipt of all sums due in respect thereof up to that date.
(d) Indexed Notes and Dual Currency Notes
In the case of Indexed Notes or Dual Currency Notes, if the
Rate of Interest or amount of interest or payment in respect of principal (at
maturity or otherwise) is to be determined by reference to an index and/or
formula or, as the case may be, an exchange rate, the Rate of Interest or amount
of interest or payment in respect of principal (at maturity or otherwise)
payable shall be determined by the computation agent specified in the applicable
Pricing Supplement in the manner specified in the applicable Pricing Supplement.
(e) Partly-Paid Notes
In the case of Partly-Paid Notes (other than Partly-Paid Notes
that are Zero Coupon Notes) interest will accrue as aforesaid on the paid-up
principal amount of such Notes and otherwise as specified in the applicable
Pricing Supplement.
(f) Accrual of Interest
Interest will be paid subject to and in accordance with the
provisions of Condition 8. Interest will cease to accrue on each Note (or, in
the case of the redemption of only part of a Note, that part of such Note) on
the due date, for redemption thereof unless, upon due presentation thereof,
payment of principal is improperly withheld or refused, in which event interest
will continue to accrue (to the extent permitted by law as well after as before
any judgment) until whichever is the earlier of (a) the day on which all sums
due in respect of such Note up to that day are received by or on behalf of the
Holder of such Note, and (b) the day on which the Trustee has notified the
Holder thereof (either in accordance with the provisions of Condition 17 or
individually) of receipt of all sums due in respect thereof up to that date.
6. Currency of Notes
(a) General
Notes may be denominated in any currency including, without
limitation, Argentine pesos, Australian dollars, Austrian schillings, Canadian
dollars, Danish krone, Deutsche marks, Dutch guilders, Euro, Finnish markka,
French francs, Hong Kong dollars, Irish pounds, Italian lire, New Zealand
dollars, Norwegian krone, Portuguese escudos, Swedish kronor, Swiss francs, US$
dollars and Japanese yen or such other currency or currencies as may be agreed
between the Bank and the relevant Dealer(s)), subject to compliance with all
applicable legal or regulatory requirements. For these purposes, the Euro is
deemed to be a currency.
(b) Composition of the Euro
Subject to the provisions of this Condition 6, the value and
composition of the European Currency Unit (the "Euro") for Notes denominated in
Euro will be equal to the value and composition of the Euro that is from time to
time used as the unit of account of the European
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Union (the "EU"). Certain changes as to the nature of the composition of the
Euro may be made by the EU in conformity with the provisions of the Treaty on
EU. References with the provisions of the Treaty on the Euro shall be deemed to
be to the Euro as so changed.
(c) Rate of Interest on Euro Floating Rate Notes
The Rate of Interest payable from time to time in respect of
each Tranche of Floating Rate Notes denominated in Euro will be determined on
the basis of the following provisions unless otherwise provided in the
applicable Pricing Supplement:
(a) The Rate of Interest for each Interest Period shall,
subject as provided below, be:
(1) the rate, or
(2) if at least two rates appear, the arithmetic mean
(rounded, if necessary, to the nearest fourth
for Euro deposits for a period equal to the Interest Period that appears or
appear, as the case may be, on the appropriate page of the Euro screen (as
defined below) as at 11:00 a.m., London time, on the relevant Interest
Determination Date plus or minus (as appropriate) the Margin, if any, as
determined by the Trustee.
(b) If, on any Interest Determination Date, no such rate
appears, or, in the case of an Euro screen that normally displays at least two
rates for any relevant period, fewer than two of such offered rates appear at
such time or if the offered rate or rates which appears or appear, as the case
may be, as at such time do not apply to a period equal to the relevant Interest
Period, the Rate of Interest for such Interest Period shall, subject as provided
below, be the arithmetic mean (rounded, if necessary, to the nearest fourth
decimal place (0.00005 being rounded upwards)) of the rates at which the Trustee
is advised by the Reference Banks that Euro deposits of a duration equal to such
Interest Period are offered by the Reference Banks to leading banks in the
London interbank market at 11:00 a.m., London time, on the Interest
Determination Date plus or minus (as appropriate) the Margin, if any, all as
determined by the Trustee.
(c) If on any such Interest Determination Date to which
subparagraph (B) above applies two or three of the Reference Banks advise the
Trustee of such rates, the Rate of Interest for the next Interest Period shall,
subject as provided below, be determined as in subparagraph (B) above on the
basis of the rates of those Reference Banks advising such rates.
(d) If on any such Interest Determination Date to which
subparagraph (B) above applies only one or none of the Reference Banks advises
the Trustee of such rates, the Trustee will request each of the Reference Banks
to inform the Trustee of its offered rate for making deposits in each of the
then component currencies of the Euro (the "Relevant Currencies") with leading
banks in the London interbank market for such Interest Period as at 11:00 a.m.,
London time, on such Interest Determination Date (provided that, in the event
that the Euro is then used neither as the unit of account nor as the currency of
the EU, the component currencies of the Euro shall be those provided for under
Condition 6(e) below). The Rate of Interest for such Interest Period shall,
subject as provided below, be the arithmetic mean
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(rounded, if necessary, to the nearest fourth decimal place (0.00005 being
rounded upwards)) of the respective offered rates so communicated by the
Reference Banks or any two of them (if only such Reference Banks provide such
rates), weighted in the manner provided in subparagraph (G) below, plus or minus
(as appropriate) the Margin, if any, all as determined by the Trustee, provided
that, in the event that on any Interest Determination Date the Reference Banks
or any two of them (if only such Reference Banks provide such rates) communicate
such rates for fewer than all of the Relevant Currencies but the Relevant
Currencies for which such rates are communicated have an aggregate value that
amounts to 95 percent or more of the value of one Euro in terms of the US$
dollar on such Interest Determination Date, then the Rate of Interest for such
Interest Period shall nevertheless be computed pursuant to this subparagraph (D)
on the basis of such communicated rates.
(e) If on any such Interest Determination Date the Reference
Banks or any two of them (if only such Reference Banks provide rates)
communicate rates pursuant to subparagraph (D) above for Relevant Currencies
having an aggregate value that amounts to less than 95 percent of the value of
one Euro in terms of the US$ dollar on such Interest Determination Date, then,
with respect to each of the Relevant Currencies for which rates are not so
communicated, the Trustee shall (if a representative rate can reasonably be
determined) determine such rates as the Trustee (after consultation with the
Bank) deems to be most representative of the rate at which deposits in such
Relevant Currency are being offered between prime banks selected by it in the
relevant interbank market as of such Interest Determination Date for a period
equivalent to such Interest Period. The Rate of Interest for such Interest
Period shall, except as provided below, be the arithmetic mean (rounded, if
necessary, to the nearest fourth decimal place (0.00005 being rounded upwards))
of the respective rates so communicated (for those Relevant Currencies for which
rates have been communicated by the Reference Banks) and of the respective rates
determined by the Trustee pursuant to this subparagraph (E) (for the remaining
Relevant Currencies), weighted in the manner provided in subparagraph (G) below,
plus or minus (as appropriate) the Margin, if any, all as determined by the
Trustee. If on any Interest Determination Date the Relevant Currencies for which
rates are communicated by the Reference Banks and the Relevant Currencies for
which rates are determined by the Trustee pursuant to this subparagraph (E) have
an aggregate value that amounts to 95 percent or more of the value of one Euro
in terms of the US$ dollar on such Interest Determination Date, the Rate of
Interest for such Interest Period shall be computed pursuant to this
subparagraph (E) on the basis of such rates.
(f) If the Trustee is unable to determine the Rate of Interest
for an Interest Period in accordance with subparagraph (A), (B), (C), (D) or (E)
above, the Rate of Interest for such Interest Period shall be the Rate of
Interest in effect for the last preceding Interest Period to which subparagraph
(A), (B), (C), (D) or (E) above shall have applied (minus or plus (as
appropriate), where a different Margin is to be applied to the relevant Interest
Period from that which applied to the last preceding Interest Period, the Margin
relating to that last preceding Interest Period, plus or minus (as appropriate)
the Margin for the relevant Interest Period).
(g) For the purposes of this paragraph (c), the weighing to be
given to a Relevant Currency or the percentage that it bears to one Euro shall
be determined by the Trustee by reference to the proportion that the amount of
such Relevant Currency included in one Euro bears to one Euro and computed on
the basis of the US$ dollar equivalent of each of the Relevant
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Currencies as at the Interest Determination Date in question. Such US$ dollar
equivalent shall be determined by the Trustee in the manner provided in
paragraph (e), except that for the purposes of this paragraph (c) any reference
therein to a Day of Valuation (as defined in paragraph (e)) shall be deemed to
refer to the relevant Interest Determination Date, all decisions or choices to
be made by the Computation Agent (as defined in paragraph (e)) thereunder shall
be made by the Trustee and, if the Euro is being used as the unit of account of
the EU on such Interest Determination Date, the components of the Euro shall be
the currency amounts that are components of the Euro on such date.
(h) If the applicable Pricing Supplement specifies a Minimum
Interest Rate, then the Rate of Interest shall in no event be less than such
minimum, and if a Maximum Interest Rate is specified, then the Rate of Interest
shall in no event exceed such maximum.
(i) In this paragraph (c) the expression "the appropriate page
of the Euro screen" means such page, whatever its designation, on which London
interbank offered rates or, if there is only one such rate, that rate for Euro
deposits of prime banks that are for the time being displayed on the Reuters
Monitor Money Rates Services or the appropriate Dow ▇▇▇▇▇ Telerate Monitor, as
specified in the applicable Pricing Supplement.
The provisions of Condition 5(b)(i), (iii), (iv) 5(e) and 5(f)
shall apply to each Tranche of Floating Rate Notes denominated in Euro. Words
and expressions defined in Condition 5 shall have the same meanings where used
in this Condition unless the context otherwise requires or unless otherwise
stated.
(d) Payments of Euro Notes
Payments in respect of the Notes denominated in Euro will be
made in accordance with Condition 8 except as otherwise expressly provided
herein and therein. Payments in Euro will be made, notwithstanding the amount of
Notes held by such Holder, by credit or transfer to an Euro account specified by
the Holder, and payments in a component currency (if so determined in accordance
with the provisions of paragraph (e) below) will be made in the Chosen Currency
(as defined below) at the option of the Holder by check drawn on, or (to the
extent permitted by Condition 8) by transfer to an account specified by the
Holder with, a bank in the principal financial center of the country of the
Chosen Currency.
(e) Payment in a Component Currency
The following provisions shall apply only with respect to
Notes denominated in Euro.
With respect to each due date for the payment of principal or
interest on which the Euro is used neither as the unit of account nor as the
currency of the EU, the Trustee shall, without liability on its part and without
having regard to the interests of individual Noteholders or holders of coupons
(if any) and after consultation with the Bank, if practicable, choose a currency
(the "Chosen Currency") that was a component of the Euro when the Euro was most
recently used as the unit of Account of the EU in which all payments due on that
due date with respect to Notes and coupons (if any) shall be made. Notice of the
Chosen Currency selected by the Trustee shall, where practicable, be published
by the Trustee in accordance with the
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provisions of Condition 17. The amount of each payment in the Chosen Currency
shall be computed on the basis of the equivalent of the Euro in that currency,
determined as set out in this Condition 6(e), as of the fourth Luxembourg
business day (as defined below) prior to the date on which such payment is due.
Without prejudice to the preceding paragraph, on the first
Luxembourg business day on which the Euro is used neither as the unit of account
nor as the currency of the EU, the Trustee shall without liability on its part
and without having regard to the interests of individual Noteholders or holders
of coupons (if any) and after consultation with the Bank, if practicable, choose
a currency (also a "Chosen Currency") that was a component of the Euro when the
Euro was most recently used as the unit of account of the EU in which all
payments with respect to Notes and coupons (if any) having a due date prior
thereto but not yet presented for payment are to be made. The amount of each
payment in such Chosen Currency shall be computed on the basis of the equivalent
of the Euro in the currency, determined as set out in this Condition 6(e), as of
such first Luxembourg business day.
The equivalent of the Euro in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined in accordance with this
Condition 6(e) by the computation agent (the "Computation Agent"), being a
leading bank having its head office in Europe appointed by the Bank, and notice
of whose appointment is given to the Holders of Notes in accordance with the
provisions of Condition 17. The component currencies of the Euro for this
purpose (the "Components") shall be the currency amounts that were Components of
the Euro as of the last date on which the Euro was used as the unit of account
of the EU. The equivalent of the Euro in the Chosen Currency shall be computed
by first aggregating the US$ dollar equivalents of the Components, and then,
using the rate used for determining the US$ dollar equivalent of the Component
in the Chosen Currency as set forth below, computing the equivalent in the
Chosen Currency of such aggregate amount in US$ dollars.
The US$ dollar equivalent of each of the Components shall be
determined by the Computation Agent on the basis of the middle spot delivery
quotations prevailing at 2:30 p.m., Luxembourg time, on the Day of Valuation, as
obtained by the Computation Agent from one or more leading banks, as selected by
the Computation Agent, in the country of issue of the Component in question.
If the official unit of any Component is altered by way of
combination or subdivision, the number of units of that Component shall be
divided or multiplied in the same proportion. If two or more Components are
consolidated into a single currency, the amounts of those Components shall be
replaced by an amount in such single currency equal to the sum of the amounts of
the consolidated Components expressed in such single currency. If any Component
is divided into two or more currencies, the amount of that Component shall be
replaced by amounts of such two or more currencies, each of which shall be equal
to the amount of the former Component divided by the number of currencies into
which that Component was divided.
If no direct quotations are available for a Component as of a
Day of Valuation from any of the banks selected by the Computation Agent for
this purpose because foreign markets are closed in the country of issue of that
Component or for any other reason, the most recent direct quotations for that
Component currency obtainable by the Computation Agent shall
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be used in computing the equivalents of the Euro on such Day of Valuation;
provided, however, that such most recent quotations may be used only if they
were prevailing in the country of issue not more than two Luxembourg business
days before such Day of Valuation. Beyond such period of two Luxembourg business
days, the Computation Agent shall determine the US$ dollar equivalent of such
Component on the basis of cross rates derived from the middle spot delivery
quotations for such component currency and for the US$ dollar prevailing at 2:30
p.m., Luxembourg time, on such Day of Valuation, as obtained by the Computation
Agent from one or more leading banks, as selected by the Computation Agent in a
country other than the country of issue of such Component. Within such period of
two Luxembourg business days, the Computation Agent shall determine the US$
dollar equivalent of such Component on the basis of such cross rates if the
Computation Agent, if there is more than one market for dealing in any Component
by reason of foreign exchange regulations or any other reason, the market to be
referred to in respect of such Component shall be that upon which a non-resident
issuer of securities denominated in such Component would purchase such Component
in order to make payments in respect of such securities.
All determinations made by the Computation Agent or the
Trustee for the purpose of this Condition 6(e) shall be at its sole discretion
and shall, in the absence of manifest error, be conclusive for all purposes and
binding on the Bank and all relevant holders and holders of coupons (if any) and
all beneficial owners of interests in the Notes. Holders and beneficial owners
of interests in Notes shall not be entitled to make any claim whatsoever against
the Bank on account of or in relation to such determinations regardless of any
errors or omissions with respect thereto that may be made by the Computation
Agent or the Trustee, as the case may be.
For the purposes of this Condition 6(e), the expression
"Luxembourg business day" means a day on which banks and foreign exchange
markets are open for business in Luxembourg.
(f) Payment in Other Specified Currencies
Payments in respect of Notes denominated in a Specified
Currency other than US$ Dollars will be made in accordance with Condition 8
except as otherwise expressly provided herein and therein. A Holder shall
receive payments on such Notes in US$ dollars unless such Holder elects to
receive payment in the relevant Specified Currency. Two Business Days prior to
each date on which a payment of principal or interest (if any) in respect of any
Notes denominated in a Specified Currency other than US$ dollars is due (each
date on which such a payment is due, a "Payment Date"), the Bank will make
available to the Trustee in the relevant Specified Currency the aggregate amount
of principal and interest due on such Payment Date on the relevant Notes.
Upon notification by the Trustee (prior to 2:00 p.m., New York
City time on the third Business Day preceding any Payment Date) of the aggregate
amount of principal and interest in the relevant Specified Currency payable to
Holders of Notes who are to receive payment in US$ dollars, the Exchange Rate
Agent will, as near as practicable to 11:00 a.m., New York City time but no
later than 2:00 p.m., New York City time, on the second Business Day prior to
each Payment Date, arrange for the conversion of such aggregate amount into US$
dollars for settlement, and payment to the Trustee, on the Payment Date. Such
conversion shall
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be based upon the highest firm bid quotation for the purchase of US$ dollars
with such aggregate amount received by the Exchange Rate Agent as near as
practicable to 11:00 a.m., but no later than 2:00 p.m., New York City time, on
such second Business Day, based on bids solicited from three recognized foreign
exchange dealers (one of whom may be the Exchange Rate Agent) in New York City
selected by it and approved by the Bank. If such bid quotations are not
available, payment will be made in the relevant Specified Currency. All costs of
exchange will be borne by the relevant Holders.
If payment in respect of a Note is required to be made in a
Specified Currency other than US$ dollars and such currency is unavailable on
the date payment is due as a result of the imposition of exchange controls or
other circumstances beyond the Bank's control, then all payments in respect of
such Note shall be made by the Bank in US$ dollars until such currency is again
available or so used. The amounts so payable on any payment date in such
currency shall be converted into US$ dollars on the basis of the Market Exchange
Rate on the second Business Day prior to such payment date. The "Market Exchange
Rate" shall mean (i) the noon buying rate in the City of New York for cable
transfers in such currency as certified for customs purposes by the Federal
Reserve Bank of New York, or (ii) in the event the Federal Reserve Bank of New
York does not certify a noon buying rate for such currency, on the basis of the
rate quoted or published by the relevant central bank as the rate for buying
such currency in US$ dollars, or (iii) if no such rate is quoted or published,
the rate determined by the Trustee based on a quotation or an average of
quotations given to the Trustee by commercial banks that conduct foreign
exchange operations or based on such other method as the Trustee may reasonably
determine to calculate such Market Exchange Rate. In the event that the Market
Exchange Rate is not available on the second Business Day prior to the payment
date, the rate at which the amount due shall be converted into US$ dollars shall
be such rate as may be agreed to at such time by the Bank and the Trustee. The
making of any payment in respect of any Note in US$ dollars under the foregoing
circumstances will not, unless otherwise provided in the applicable Pricing
Supplement, constitute an Event of Default, Event of Acceleration or Event of
Non-Payment under such Note.
All determinations made by the Exchange Rate Agent or the
Trustee for purposes of this Condition 6(f) shall be at its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
binding on the Bank and all relevant holders and holders of coupons (if any) and
all beneficial owners of interests in the Notes. Holders and beneficial owners
of interests in Notes shall not be entitled to make any claim whatsoever against
the Bank on account of or in relation to such determinations regardless of any
errors or omissions with respect thereto that may be made by the Computation
Agent or the Trustee, as the case may be.
(g) Foreign Exchange Restrictions
In the event that on any payment date in respect of any Notes
denominated in a Specified Currency other than the Argentine peso, any
restrictions or prohibition of access to the Argentine foreign exchange market
exists, the Bank agrees to pay all amounts payable under the Notes in the
currency of such Notes either (i) by purchasing, with Argentine pesos, any
series ▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇" (US$ dollar denominated
Argentine government Bonds, or "Bonex") or any other securities or public or
private bonds issued in Argentina and transferring and selling such instruments
outside Argentina for the currency of such Notes, or (ii)
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by means of any other legal procedure existing in Argentina, on any due date for
payment under the Notes, for the purchase of the Specified Currency of such
Notes. All costs and taxes payable in connection with the procedures referred to
in (i) and (ii) above shall be borne by the Bank.
7. Redemption and Purchase
The Notes shall not be subject to redemption by the Bank or the Holder
of a Note except as specified in the applicable Pricing Supplement, and as
provided in this Condition 7, and subject to compliance with all applicable laws
and regulations.
(a) At Maturity
Unless otherwise specified in the applicable Pricing
Supplement and unless previously redeemed, or purchased and cancelled, each Note
will be redeemed by the Bank at its final redemption amount specified in the
applicable Pricing Supplement in the relevant Specified Currency (subject to the
provisions of Condition 6) on the Maturity Date (in case of a Note other than a
Floating Rate Note) or on the Floating Interest Payment Date falling in the
Redemption Month specified in the applicable Pricing Supplement (in the case of
a Floating Rate Note).
(b) Redemption for Tax Reasons
The Notes may be redeemed at the option of the Bank in whole,
but not in part, at any time (in the case of a Note other than a Floating Rate
Note) or on any Floating Interest Payment Date (in the case of a Floating Rate
Note), on giving not less than 30 nor more than 60 days' notice to the Trustee
and, in accordance with Condition 17, not less than 15 nor more than 60 days'
notice to the Holders (which notice shall be irrevocable), if:
(i) on the occasion of the next payment due under the Notes,
the Bank has or will become obliged to pay Additional Amounts (as defined in
Condition 9) as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of Argentina or any political
subdivision or any authority thereof or therein having power to tax, or any
change in the application, administration or official interpretation of such
laws, regulations or rulings, including the holding of a court of competent
jurisdiction, which change or amendment becomes effective on or after the date
of the agreement obligating the Bank to issue the first Tranche of Notes under
the Program, or in the absence of any such agreement, the Issue Date of the
first Tranche of the Notes; and
(ii) such obligation cannot be avoided by the Bank taking
reasonable measures available to it, provided that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the Bank
would be obliged to pay such Additional Amounts were a payment in respect of the
Notes then due. Prior to the distribution of any notice of redemption pursuant
to this Condition, the Bank shall deliver to the Trustee a certificate signed by
two Directors of the Bank stating that the Bank is entitled to effect such
redemption and setting forth a statement of facts showing that the conditions
precedent to the right of the Bank so to redeem have occurred, and an opinion of
independent legal advisers of recognized standing to the effect that the Bank
has or will become obliged to pay such Additional Amounts as a result of such
change or amendment.
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Notes redeemed pursuant to this Condition 7(b) will be
redeemed at their Early Redemption Amount (as defined in Condition 7(g) below),
together with any accrued but unpaid interest and any Additional Amounts (as
defined in Condition 9) to the date fixed for redemption.
(c) Pricing Supplement
The Pricing Supplement applicable to each Note will indicate
that either:
(i) such Note cannot be redeemed prior to its Maturity Date
or, in the case of a Floating Rate Note, the Floating Interest Payment Date
falling in the relevant Redemption Month (in each case except as otherwise
provided in paragraph (b) above and in Condition 11); or
(ii) such Note will be redeemable at the option of the Bank
and/or the Holder of such Note prior to such Maturity Date or, as the case may
be, the Floating Interest Payment Date falling in the relevant Redemption Month
in accordance with the provisions of paragraphs (d) and/or (e) below on the date
or dates and at the amount or amounts specified in the applicable Pricing
Supplement.
(d) Redemption At the Option of the Bank
If so specified in the applicable Pricing Supplement, the Bank
may, on giving (unless otherwise specified in the applicable Pricing Supplement)
not more than 60 nor less than 30 days' notice to the Trustee (which notice
shall be irrevocable), redeem all or only some of the Notes then outstanding on
the Optional Redemption Date(s) and at the Optional Redemption Amount(s)
specified in the applicable Pricing Supplement together, if applicable, with
accrued interest. The Trustee will notify the Holders at least 15 days prior to
the Optional Redemption Date. In the case of a partial redemption of Definitive
Notes, the Notes to be repaid will be selected by the Trustee pro rata,
individually by lot or as otherwise selected by the Trustee in accordance with
applicable law and any applicable stock exchange regulations not more than 60
days prior to the date fixed for redemption and a list of the Notes called for
redemption will, in the case of Bearer Notes, be published in accordance with
the provisions of Condition 17 and, in the case of Registered Notes, be notified
to such Holders, not less than 15 days prior to such date. In the case of a
partial redemption of Notes that are represented by a Registered Global Note or
a Permanent Global Note, the relevant Notes will be redeemed in accordance with
the rules of DTC, Euroclear and/or Cedel, as applicable.
(e) At the Option of the Holders
If so specified in the applicable Pricing Supplement, upon the
Holder of any Note giving to the Trustee in accordance with the provisions of
Condition 17 not more than 60 nor less than 30 days' notice (or as otherwise
specified in the Pricing Supplement and as agreed to by the Trustee) (which
notice shall be irrevocable) the Bank will redeem subject to, and in accordance
with, the terms specified in the applicable Pricing Supplement in whole, but not
in part, the Note on the Optional Redemption Date and at the Optional Redemption
Amount specified in the applicable Pricing Supplement together, if applicable,
with accrued interest.
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(f) Notices to Redeem
Notices to redeem Notes shall be sent in accordance with the
provisions of Condition 17 and shall specify the dates fixed for redemption, the
applicable redemption price, the place or places of payment, that payment will
be made, in the case of Definitive Notes, upon presentation and surrender of the
Notes to be redeemed (or portion thereof in the case of a partial redemption of
a Registered Note), together, in the case of a definitive Bearer Note, with all
appurtenant coupons, if any, maturing subsequent to the date fixed for
redemption and in the case of any Registered Global Notes or Permanent Global
Notes, upon presentation for endorsement or surrender, and that on and after
such date interest thereon will cease to accrue. If the redemption is pursuant
to Condition 7(b) hereof, such notice shall also state that the Bank has
confirmed that the conditions precedent to such redemption have occurred and
state that the Bank has elected to redeem all the Notes subject to the
conditions of Condition 7(b).
(g) Early Redemption Amounts
For the purposes of Condition 7(b), and unless otherwise
specified in the applicable Pricing Supplement, Notes (other than Indexed Notes)
will be redeemed at an amount (the "Early Redemption Amount") computed as
follows:
(i) in the case of Notes issued at an Issue Price of 100
percent of their principal amount, at their principal amount in the relevant
Specified Currency, together with, in the case of Fixed Rate Notes, interest
accrued to the date fixed for redemption;
(ii) in the case of Notes (other than Zero Coupon Notes)
issued with an Issue Price greater or less than 100 percent of their principal
amount, at the amount set forth in the applicable Pricing Supplement; or
(iii) in the case of Zero Coupon Notes, at an amount (the
"Amortized Face Amount") equal to:
(a) the sum of (x) the Reference Price specified in
the applicable Pricing Supplement, and (y) the product of the Accrual Yield
specified in the applicable Pricing Supplement (compounded annually) being
applied to the Reference Price form (and including) the Issue Date to (but
excluding) the date fixed for redemption pursuant to Condition 7(b), (d) or (e)
above or (as the case may be) the date upon which such Note becomes due and
repayable as provided in Condition 11; or
(b) if the amount payable in respect of any Zero
Coupon Note upon redemption of such Note pursuant to Condition 7(b), (d) or (e)
above or upon its becoming due and repayable as provided in Condition 11 is not
paid when due, the amount due and repayable in respect of such Note shall be the
Amortized Face Amount of such Note computed as provided above, except that
subparagraph (A) shall have effect as though the references in subparagraph (A)
to the date fixed for redemption or the date upon which the Zero Coupon Note
becomes due and repayable were replaced by references to the date (the
"Reference Date") that is the earlier of:
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(1) the day on which all sums due in respect
of such Note up to that day are received by or on behalf of the Holder of such
Note; and
(2) the date on which the full amount of the
moneys repayable has been received by the Trustee and notice to that effect has
been given (either in accordance with the provisions of Condition 17 or
individually).
The computation of the Amortized Face Amount in accordance
with subparagraph (B) will continue to be made, to the extent permitted by
applicable law after as well as before judgment, until the Reference Date unless
the Reference Date falls on or after the Maturity Date, in which case the amount
due and repayable shall be the principal amount of such Note together with
interest at a rate per annum equal to the Accrual Yield and computed in
accordance with the provisions of Condition 5(c).
(h) Indexed Notes
Where the amount payable in respect of principal of an Indexed
Note upon redemption (the "Redemption Amount") is determined by reference to an
index and/or a formula, the Redemption Amount shall be de determined in
accordance with the index and/or the formula specified in the applicable Pricing
Supplement, and each such Indexed Note shall, unless previously redeemed or
purchased and cancelled as provided below, be redeemed at the applicable
Redemption Amount on the Maturity Date or the Floating Interest Payment Date in
the relevant Redemption Month, as the case may be. Where the amount payable on
an Indexed Note on early redemption in respect of principal only, principal and
interest or interest only (the "Early Redemption Amount") is to be determined in
whole or in part by reference to an index and/or a formula, the applicable
Pricing Supplement will set out details of the computation of the Early
Redemption Amount.
(i) Purchase of Notes by the Bank
The Bank may, to the extent permitted by applicable law, at
any time or from time to time purchase Notes in the open market, on an exchange,
or by tender or by private agreement at any price. Any purchase of Notes of a
Series by tender shall be made available to all Holders of Notes of such Series
alike. Any Note so purchased may be held by or for the account of the Bank and
may be cancelled by the Bank; provided, however, that for purposes of
determining whether the Holders of the requisite principal amount of Outstanding
Notes are present at a meeting of Holders for quorum purposes or have consented
to or voted in favor of any request, demand, authorization, direction, notice,
consent, waiver, amendment or modification under the Indenture and for the
purpose of making the calculations required by Section 313 of the Trust
Indenture Act, Notes owned by the Bank or any Affiliate of the Bank shall be
disregarded and deemed not to be Outstanding.
8. Payments and Paying Agents
Payments of principal and interest, if any, payable at maturity or upon
redemption in respect of Registered Notes will be made in the currency in which
such Notes are denominated (subject to Condition 6) by check drawn on, or, to
the extent permitted by this Condition 8, by wire transfer to an account
maintained by the Holder with, a bank in the principal financial
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center of the country issuing the relevant currency against presentation and
surrender of such Note at the specified office of any of the Paying Agents.
Payments of interest in respect of Registered Notes (other than interest payable
at maturity or upon redemption) will be made to the persons shown on the
Register at the close of business on the Record Date. Payments of interest in
respect of each Registered Note will be made in the currency in which the Notes
are denominated (subject to Condition 6) by check drawn on a bank in the
principal financial center of the country issuing the relevant currency and
mailed to the Holder (or to the first named of joint holders) of such Note at
such Holder's address appearing in the Register maintained by the Registrar.
Upon written application by any Holder of at least US$1,000,000 principal amount
of Registered Notes (or in the case of Registered Notes not denominated in US$
dollars, the US$ dollar equivalent thereof rounded to the nearest 1,000 units of
such currency as at the payment date) to the specified office of the Trustee,
with appropriate wire transfer instructions, not later than the Record Date
immediately preceding the relevant payment date, such payment of interest may be
made in the currency in which the Notes are denominated (subject to Condition 6)
by wire transfer to an account maintained by the Holder with a bank in the
principal financial center of the country issuing the relevant currency.
Except in the case of Notes denominated in a Specified Currency other
than US$ dollars where the beneficial holder thereof has elected to receive
payment in such Specified Currency, payments of principal and interest, if any,
in respect of a Registered Global Note shall be made to DTC or its nominee as
the registered Holder of such Note. Payments of principal and interest, if any,
in respect of a Temporary or Permanent Global Note shall be made by the Trustee
to a common depositary for Euroclear and Cedel, but in the case of a Temporary
Global Note only upon receipt by the Trustee of written certification as to the
non-US$ beneficial ownership thereof as set forth in the Indenture. Each of
Euroclear and Cedel will undertake to credit all amounts received by it with
respect to such principal or interest to the respective accounts of the
beneficial owners of interests therein on the date on which such amounts are
paid to it. Any such amounts so received by Euroclear or Cedel and not so paid
by them shall be returned to the Trustee immediately prior to the expiration of
two years after their receipt thereof. Neither the Bank, the Trustee, the
Registrar, the Co- Registrar, any Paying Agent nor any Transfer Agent will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership of interests in such Notes or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Payments of principal and interest, if any, payable at maturity or upon
redemption in respect of Bearer Notes will be made in the currency in which such
Notes are denominated (subject to Condition 6) by check drawn on, or to the
extent permitted by this Condition 8, by wire transfer to an account maintained
by the Holder with, a bank in the principal financial center of the country
issuing the relevant currency against presentation and surrender of such Notes
at the specified office of any of the Paying Agents outside the United States.
Payments of interest in respect of definitive Bearer Notes (other than interest
payable at maturity or upon redemption) will be made against surrender of the
relevant coupons at the specified office of any of the Paying Agents outside the
United States or its possessions. Payments of interest in respect of each
definitive Bearer Note will be made in the currency in which such Note is
denominated (subject to Condition 6) by check drawn on a bank in the principal
financial center of the country issuing the relevant currency. Upon written
application by any Holder of at least US$1,000,000 principal amount of Bearer
Notes (or in the case of Bearer Notes not denominated in US$
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dollars, the US$ dollar equivalent thereof rounded to the nearest 1,000 units of
such currency as at the payment date) to the specified office of the Paying
Agent to whom such Note or coupon, as the case may be, shall be presented and
surrendered for payment with appropriate wire transfer instructions not later
than 15 days preceding the relevant payment date, such payment of interest may
be made in the currency in which such Note is denominated (subject to Condition
6) by wire transfer to an account maintained by the Holder with a bank in the
principal financial center of the country issuing the relevant currency,
provided that such payment shall only be made against presentation and surrender
of the relevant coupons at the specified office of any of the Paying Agents
outside the United States. As used in this paragraph and in the following
paragraph, the term "United States" means the United States of America,
including the States and the District of Columbia, its territories, its
possessions and other areas subject to its jurisdiction.
If payment in respect of definitive Bearer Notes denominated in US$
dollars at the offices of all Paying Agents outside the United States becomes
illegal or is effectively precluded because of the imposition of exchange
controls or similar restrictions on the full payment or receipt of such amounts
due in US$ dollars, the Bank will appoint an office or agent in the United
States at which such payment will be made.
Definitive Bearer Notes shall be presented for payment upon repayment
prior to maturity together with all unmatured coupons appertaining thereto,
failing which, in the case of Fixed Rate Notes, the amount of any missing
unmatured coupon will be deducted from the sum due for payment, or, in the case
of Floating Rate Notes or other Notes, the surrender of any such missing
unmatured coupon or coupons may be waived by the Bank and the Paying Agent if
they are furnished with such security or indemnity as they may require to save
each of them and each other Paying Agent of the Bank harmless. If a deduction is
made from the redemption price in the case of any such missing unmatured coupon
and thereafter, but prior to five years after the redemption date, the bearer of
such coupon shall surrender such coupon at a place specified for redemption,
such bearer shall be entitled to receive the amount so deducted. Except as
provided in the preceding sentence, any unmatured coupons, whether attached to
or missing from any Notes surrendered for redemption, will become void at the
redemption date for such Notes.
Subject to Condition 9, all payments are subject in all cases to any
applicable tax or other laws and regulations. No commissions or expenses shall
be charged to the Holders in respect of such payments.
If the due date for payment of any amount in respect of any Note is not
a business day at any place of presentation, then the Holder will not be
entitled to payment at such place of the amount due until the next following
business day at such place and, except as provided in Condition 5(b)(i), will
not be entitled to any further interest or other payment in respect of any such
delay.
A beneficial owner of Notes held in the book-entry settlement system of
DTC denominated in a Specified Currency must notify the DTC Participant through
which its interest is held on or prior to the applicable Record Date (in the
case of a payment of interest), and on or prior to the sixteenth day prior to
the Maturity Date (in the case of Fixed Rate Notes or Zero Coupon Notes) or the
final Floating Interest Payment Date (in the case of Floating Rate Notes), in
the case of a payment of principal or premium, of such beneficial owner's
election to receive
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all or a portion of such payment in such currency. Such DTC Participant must
notify DTC of such election prior to the third Business Day after such Record
Date. DTC will notify the Trustee of such election on or prior to the fifth
Business Day after such Record Date. If complete instructions are received by a
DTC Participant from the relevant Holder and forwarded by the DTC Participant to
DTC, and by DTC to the Trustee, on or prior to such dates, the beneficial owner
will receive payments in such currency. In the case of a beneficial owner of
interests in a Regulation S Global Note, such owner electing to receive payments
of principal or any premium or interest in such Specified Currency must notify
Euroclear or Cedel, as the case may be, at least seven days prior to the Record
Date, in the case of a payment of interest, and at least seven days prior to the
Maturity Date or the final Floating Interest Payment Date, in the case of a
payment of principal or premium (if any).
The initial Paying Agents and Transfer Agents and their respective
initial specified offices are set forth herein. The Bank reserves the right at
any time to vary or terminate the appointment of any Paying Agent and to appoint
additional or other Paying Agents; provided, however, that while Notes are
outstanding it will at all times maintain a Trustee and provided further,
however, that while Notes are outstanding or until monies for the payment of all
principal of and interest (and any Additional Amounts) on all outstanding Notes
shall have been made available at the offices of the Trustee, it will at all
times maintain (i) a Co-Registrar, Paying Agent and Transfer Agent in New York
City (which may be the Trustee), (ii) a Registrar and Paying Agent in Buenos
Aires, Argentina, (iii) a Transfer Agent and Paying Agent with a specified
office in a European city, (iv) so long as any Notes are listed on the
Luxembourg Stock Exchange and the rules of the Exchange so require, a Paying
Agent and Transfer Agent with a specified office in Luxembourg, and (v) so long
as any Notes are listed on any other stock exchange, a Paying Agent with a
specified office for such place as may be required by the rules and regulations
of such stock exchange.
All moneys paid by or on behalf of the Bank to any Paying Agent for the
payment of the principal of or interest on any Note that remain unclaimed at the
end of two years after such principal or interest shall have become due and
payable will be repaid to the Bank and the holder of such Note will thereafter
look only to the Bank for payment. Upon such repayment, all liability of any
Paying Agent with respect thereto shall cease, without, however, limiting in any
way the obligation of the Bank in respect of the amount so repaid.
9. Additional Amounts
All payments by the Bank in respect of the Notes (and any coupons
thereon) will be made without withholding or deduction for or on account of any
present or future taxes, duties, levies, withholdings or transfer amounts or
other governmental charges of whatever nature in effect on the date of the
Indenture or imposed or established in the future by or on behalf of Argentina
or any political subdivision or authority thereof or therein having power to tax
("Argentine Taxes"), unless such withholding or deduction is required by law. In
such event, the Bank will pay such additional amounts ("Additional Amounts") as
shall be necessary in order that the net amounts received by the Holders of the
Notes (or coupons) after such withholding or deduction shall equal the amounts
which would otherwise have been receivable by them in respect of payments on
such Notes (or coupons) in the absence of such withholding or deduction, except
that no such Additional Amounts shall be payable:
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(i) to or on behalf of a Holder or beneficial owner of a Note that is
liable for Argentine Taxes in respect of such Note by reason of having some
present or former connection with Argentina otherwise than by the mere holding
or owning of such Note or by the receipt of income or any payments in respect
thereof;
(ii) in respect of any estate, asset, inheritance, gift, sales,
transfer or personal property tax or any similar tax, assessment or governmental
charges;
(iii) in respect of any taxes, duties, assessments or other
governmental charges that are payable otherwise than by deduction or withholding
from payments on the Notes;
(iv) to or on behalf of a Holder in respect of Argentine Taxes that
would not have been imposed but for the failure of such Holder to present a Note
or coupon for payment (where presentation is required) more than 30 days after
the Relevant Date (as defined below), except to the extent that the Holder would
have been entitled to an Additional Amount on presenting the same for payment on
such 30th day. As used herein, the "Relevant Date" means the date on which such
payment first becomes due, except that, if the full amount of the moneys payable
has not been duly received by the Trustee on or prior to such due date, it means
the date on which, the full amount of such moneys having been so received,
notice to that effect is duly given to the Holders in accordance with Condition
17; or
(v) to the extent of Argentine Taxes which would not have been imposed
but for any failure to comply with certification, information or other reporting
requirements concerning the nationality, residence or identity of the holder or
beneficial owner of such Note requested by the Issuer at least thirty (30) days
prior to the applicable Payment Date, if such compliance is required by statute
or regulation of Argentina or of any political subdivision or taxing authority
thereof as therein as a precondition to relief or exemption from such Argentine
Taxes.
References to payments in respect of the Notes in this Offering
Circular shall be deemed also to refer to any Additional Amounts that may be
payable as set forth in such Notes and described above.
10. Covenants
Under the terms of the Notes, the Bank will covenant and agree that as
long as any of the Notes remain outstanding:
(a) Negative Pledge
The Bank will not, and will not permit any of its Subsidiaries
(as defined below) to, create or suffer to exist any Encumbrance (defined to
mean any mortgage, pledge, lien, security interest or other charge or
encumbrance including, without limitation, any equivalent created or arising
under the laws of Argentina) upon or with respect to any of their present or
future Property (defined to include any asset, revenue or any other property,
whether tangible or intangible, real or personal, including, without limitation,
any right to receive income), in each case to secure Indebtedness (as defined
below) unless the Notes are equally and ratably secured to the satisfaction of
the Trustee, except:
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(i) any Encumbrance on any Property existing on the date of
the Indenture;
(ii) any Encumbrance on any asset securing Indebtedness
incurred or assumed solely for the purpose of financing all or any part of the
cost of acquiring such asset (the "Purchase Money Financing"), which Encumbrance
attached to such asset concurrently with or within ninety days after the
acquisition thereof;
(iii) any Encumbrance required to be created in connection
with special lines of credit (lineas especiales de credito) or rediscount loans
(redescuentos) obtained in accordance with applicable rules and regulations of
the Central Bank of the Republic of Argentina (the "Central Bank"), the Bank of
Investments and Foreign Commerce ("Banco de Inversion y Comercio Exterior S.A."
or "▇▇▇▇") or such other applicable rules and regulations governing such special
lines of credit or rediscount loans. "Lineas especiales de credito" means those
lines of credit which are granted to the Bank by or through local or foreign
governmental entities (including, without limitation, the Central Bank,
development banks and export credit agencies) or international multilateral
lending organizations (including, without limitation, the International Bank for
Reconstruction and Development and the Inter-American Development Bank),
directly or indirectly, in order to promote or develop the Argentine economy;
"redescuentos" means those rediscount loans granted in response to circumstances
of short-term, extraordinary illiquidity by the Central Bank and by other
Argentine government entities;
(iv) any Encumbrance on any Property existing thereon at the
time of acquisition of such Property and not created in connection with such
acquisition;
(v) any Encumbrance on any Property securing an extension,
renewal or refunding of Indebtedness secured by an Encumbrance referred to in
(i), (ii) or (iv) above provided that such new Encumbrance is limited to the
Property which was subject to the prior Encumbrance immediately before such
extension, renewal or refunding and provided that the principal amount of
Indebtedness secured by the prior Encumbrance immediately before such extension,
renewal or refunding is not increased;
(vi) any Encumbrance in the form of a tax or other statutory
lien, provided that any such lien shall be discharged within thirty days after
the date it is created or arises (unless contested in good faith by the Bank, in
which case it shall be discharged within thirty days after final adjudication);
or
(vii) any other Encumbrance on assets of the Bank or any
Subsidiary provided that the Indebtedness secured by such Encumbrance, together
with all other indebtedness of the Bank or any Subsidiary secured by any
Encumbrance under this clause (vii), shall have an aggregate market value at the
time of the creation of such Encumbrance no greater than 10% (ten percent) of
the total assets of the Bank and its Subsidiaries as set forth in the Bank's
most recent consolidated financial statements.
Notwithstanding the foregoing, this provision shall not prohibit the
Bank and its Subsidiaries from complying with US$ and state capital adequacy and
other similar requirements.
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As used herein, the term "Indebtedness" shall mean, for any Person
(defined to mean any individual, corporation, partnership, joint venture, trust,
unincorporated organization or government or any agency or political subdivision
thereof), (A) all indebtedness of such Person for borrowed money or for the
deferred purchase price of any Property or services, (B) all indebtedness
created or arising under any conditional sales or acquired by such Person
(including, without limitation, indebtedness under any such agreement which
provides that the rights and remedies of the seller or lender thereunder in the
event of default are limited to repossession or sale of such Property), (C) all
obligations under leases which shall have been or should be, in accordance with
generally accepted accounting principles in Argentina, recorded as capitalized
leases in respect of which such Person is liable as lessee, (D) all direct or
indirect guaranties (including, without limitation, "avales") of such Person in
respect of, and all obligations (contingent or otherwise) of such Person to
purchase or otherwise acquire, or otherwise assure a creditor against loss in
respect of, any indebtedness referred to above in clause (A), (B) or (C) of any
other Person, and (E) all indebtedness and obligations referred to above in
clause (A), (B), (C) or (D) secured by (or for which the holder of such
indebtedness or obligation has an existing right, contingent or otherwise, to be
secured by) any Encumbrance upon or in any Property of such Person,
notwithstanding that such Person has not assumed or become liable for the
payment of such indebtedness or obligation; provided, however, that the term
"Indebtedness" shall not include Indebtedness incurred by the Bank or any
Subsidiary in the "ordinary course of business" (hereinafter defined). As used
herein, the term "Indebtedness incurred by the Bank or any Subsidiary in the
ordinary course of business" shall mean and include any liability or obligation
of the Bank or any Subsidiary with respect to (1) any deposits with or funds
collected by it (but not funds borrowed or raised by it), (2) any check, note,
certificate of deposit, draft or ▇▇▇▇ of exchange, issued, accepted or endorsed
by it in the ordinary course of its business, (3) any transaction in which it
acts solely in a fiduciary or agency capacity, (4) any banker's acceptance, (5)
any agreement, made by it in the ordinary course of its business, to purchase or
repurchase securities or loans or currency or to participate in loans, and (6)
letters of credit to the extent they are issued by the Bank or any Subsidiary in
the ordinary course of business.
As used herein, the term "Subsidiary" shall mean any corporation of
which, at the time of determination, the Bank and/or one or more of its
Subsidiaries owns or controls directly or indirectly more than 50% of the shares
of voting stock; voting stock, when used with reference to any Subsidiary, means
stock of the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or Trustees of such corporation, provided that, for the purposes hereof, stock
which carries only the right to vote conditionally on the happening of an event
shall not be considered voting stock whether or not such event shall have
happened.
(b) Financial Statements
The Bank will furnish or cause to be furnished to the Trustee,
(i) as soon as available but in any event not later than 120 days after the
close of each of its fiscal years, a complete copy of a report of the Bank in
the English language (an "Annual Report"), and (ii) as soon as available but in
any event not later than 90 days after the end of each of the first three
quarters of each of its fiscal years, a complete copy of a report of the Bank in
the English language (a "Quarterly Report"), which Annual Report and Quarterly
Report shall include a balance sheet, statement of income, statement of changes
in stockholders' equity and statement of
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cash flows for such fiscal year or quarter of the Bank, as the case may be, and
which, in the case of the Annual Report, will be audited by and accompanied by
(A) a report thereon of an independent certified public accountant selected by
the Bank and (B) a reconciliation to US$ generally accepted accounting
principles of net income and shareholders' equity and, in the case of each
Quarterly Report, will be subject to limited review by an independent certified
public accountant selected by the Bank.
(c) Notification
The Bank will give notice to the Trustee, as soon as possible
and in any event within ten days after the Bank becomes aware or should
reasonably become aware of the occurrence of any Event of Default, Event of
Acceleration or Event of Non-Payment or an event that would give rise to an
Event of Default, Event of Acceleration or Event of Non-Payment upon the giving
of notice or the lapse of time or both, accompanied by a certificate specifying
the nature of such Event of Default, Event of Acceleration or Event of
Non-Payment or other such event, the period of existence thereof and the action
that the Bank has taken or proposes to take with respect thereto.
(d) Insurance
The Bank will, and will cause each of its Subsidiaries to,
maintain insurance with financially sound, responsible and reputable insurance
companies in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning and/or operating properties
similar to those owned and/or operated by the Bank or such Subsidiary, as the
case may be, in the same general areas in which the Bank or such Subsidiary owns
and/or operates its properties.
(e) Maintenance of Existence
The Bank will, and will cause each of its Subsidiaries to (i)
maintain in effect its corporate existence (including the Bank's authorization
from the Central Bank to engage in the business of banking) and all
registrations necessary therefor and (ii) take all reasonable actions to
maintain all rights, privileges, titles to Property, franchises and the all
necessary or desirable in the normal conduct of its business, activities or
operations and (iii) keep all its Property in good working order or condition;
provided, however, that this covenant shall not prohibit any transaction by the
Bank or any of its Subsidiaries otherwise permitted under Covenant 110(f)
"Mergers, Consolidations, Sales and Leases" and this covenant shall not require
the Bank to maintain any such right, privilege, title to Property or franchise
or to preserve the corporate existence of any Subsidiary, if the Board of
Directors of the Bank shall determine that the maintenance or preservation
thereof is no longer desirable in the conduct of the business of the Bank and
its Subsidiaries taken as a whole and that the loss thereof is not, and will not
be, adverse in any material respect to the Holders.
(f) Mergers, Consolidations, Sales and Leases
The Bank will not, and will not permit any of its Subsidiaries
to, merge, consolidate or amalgamate with or into, or convey, transfer or lease
its Properties and assets substantially as an entirety to, any Person, unless
immediately after giving effect to such
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transaction (i) no Event of Default, Event of Acceleration or Event of Non-
Payment and no event which, after notice or lapse of time or both, would become
an Event of Default, Event of Acceleration or Event of Non-Payment, shall have
occurred and be continuing, (ii) any corporation formed by any such merger,
consolidation or amalgamation with the Bank or the Person which acquires by
conveyance or transfer, or which leases, the Properties and assets of the Bank
substantially as an entirety (the "Bank's successor corporation") shall
expressly assume the due and punctual payment of the principal of, premium, if
any, and interest on (including Additional Amounts, if any) all the Notes
according to their terms, and the due and punctual performance of all of the
covenants and obligations of the Bank under the Notes and the Indenture, and
(iii) the Bank's successor corporation (except in the case of leases), if any,
succeeds to and becomes substituted for the Bank with the same effect as if it
had been named in the Notes as the Bank.
(g) Compliance with Laws and Other Agreements
The Bank will, and will cause each of its Subsidiaries to,
comply with all applicable laws, rules, regulations, orders and directions of
any Governmental Agency (as defined below) having jurisdiction over it or its
business and all covenants and other obligations contained in any agreements to
which the Bank or any such Subsidiary is a party, except where the failure to so
comply would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, operations, business affairs or business
prospects of the Bank and its Subsidiaries taken as a whole.
As used herein, the term "Governmental Agency" shall mean any
public legal entity or public agency of Argentina or the United States, whether
created by federal, state or local government, or any other legal entity now
existing or hereafter created, or now or hereafter owned or controlled, directly
or indirectly, by any public legal entity or public agency of Argentina
(including the Central Bank) or the United States.
(h) Maintenance of Books and Records
The Bank will, and will cause each of its Subsidiaries to,
maintain books, accounts and records in accordance with generally accepted
accounting principles as applied in Argentina and the accounting standards of
the Central Bank.
(i) Further Assurances
The Bank will, at its own cost and expense, execute and
deliver to the Trustee all such other documents, instruments and agreements and
do all such other acts and things as may be reasonably required, in the opinion
of the Trustee, to enable the Trustee to exercise and enforce its rights under
the Indenture and under the documents, instruments and agreements required under
the Indenture and to carry out the intent of the Indenture.
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11. Events of Default, Events of Acceleration and events of Non-Payment
Events of Default
As long as any of the Notes remain outstanding, if any of the following
events (each an "Event of Default") shall occur and be continuing:
(i) default by the Bank in the payment of any principal due on the
Notes; or
(ii) default by the Bank in the payment of any interest, any premium,
or any Additional Amounts due on any Note and such default continues for a
period of 30 business days; or
(iii) default by the Bank or any of its Subsidiaries in the performance
or observance of any term, covenant or obligation contained in Condition 10(f)
"Mergers, Consolidations, Sales and Leases"; or
(iv) default in the performance or observance of any other term,
covenant or obligation of the Bank or any of its Subsidiaries in the Notes or
the Indenture, not otherwise expressly defined as an Event of Default in (i),
(ii) or (iii) above, for a period of more than 30 days after there has been
given, by registered or certified mail, to the Bank by the Trustee, or to the
Bank and the Trustee by any Holder, a written notice specifying such default or
breach and requiring it to be remedied; or
(v) the Bank or any of its Subsidiaries shall (A) default in the
payment of the principal of, premium or prepayment charge (if any) or interest
on, any note, bond, coupon or other instrument evidencing indebtedness for money
borrowed or raised in an amount of US$5,0 million or more, other than the Notes,
issued, assumed or guaranteed by it, when and as the same shall become due and
payable, if such default shall continue for more than the period of grace, if
any, originally applicable thereto and the time for payment of such amount has
not been effectively extended (provided, however, that in the case of any such
indebtedness constituting interbank loans of up to seven days, any such default
must continue for a minimum of 15 days beyond the time payment thereof was
originally due before the default in the payment of any amount in respect
thereof shall constitute an Event of Default hereunder), or (B) default in the
observance of any other terms and conditions relating to any such indebtedness
for money borrowed or raised, if the effect of such default is to cause such
indebtedness to become due prior to its stated maturity; or
(vi) any government or governmental authority shall have condemned,
nationalized, seized, or otherwise expropriated all or any substantial part of
the Property or other assets of the Bank or any Significant Subsidiary (defined
to mean a Subsidiary of the Bank which is material to the condition, financial
or otherwise, or to the earnings, operations, business affairs or business
prospects of the Bank and its Subsidiaries taken as a whole) or the share
capital of the Bank or any such Significant Subsidiary, or shall have assumed
custody or control of such Property or other assets or of the business or
operations of the Bank or any such Significant Subsidiary or of the share
capital of the Bank or any such Significant Subsidiary, or shall have taken any
action for the dissolution or disestablishment of the Bank or any such
Significant Subsidiary or any action that would prevent the Bank or any such
Significant Subsidiary or its
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officers from carrying on its business or operations or a substantial part
thereof for a period of longer than 90 days and the result of any such action
shall materially prejudice the ability of the Bank to perform its obligations
under the Notes; or
(vii) it becomes unlawful for the Bank to perform any of its
obligations under the Indenture or the Notes, or any of its obligations
thereunder ceases to be valid, binding or enforceable; or
(viii) the Indenture for any reason ceases to be in full force and
effect in accordance with its terms or the binding effect or enforceability
thereof shall be contested by the Bank, or the Bank shall deny that it has any
further liability or obligation thereunder or in respect thereof; or
(ix) a resolution is passed or adopted by the directors or stockholders
of the Bank or by the Central Bank, or a judgment of a court of competent
jurisdiction is made, that the Bank be wound up or dissolved otherwise than for
the purposes of or pursuant to a merger, consolidation or amalgamation (within
the meaning of these words under the law of Argentina) otherwise permitted under
and in accordance with the terms of Condition 10(f) "Mergers, Consolidation,
Sales and Leases" and any winding up, dissolution or liquidation proceedings
resulting from the taking of such corporate action remains undismissed for 30
days; or
(x) an attachment, execution, seizure before judgment or other legal
process is levied or enforced upon any part of the Property of the Bank or any
subsidiary of the Bank which Property is material to the condition, financial or
otherwise, or to the earnings, operations, business affairs or business
prospects of the Bank and its Subsidiaries taken as a whole and (A) such
attachment, execution, seizure before judgment or other legal process is not
discharged within 60 days thereof or (B) if such attachment, execution, seizure
before judgment or other legal process shall not have been discharged within
such 60-day period, the Bank or such Subsidiary, as the case may be, shall not
have within such 60-day period contested such attachment, execution, seizure
before judgment or other legal process in good faith by appropriate proceedings
upon stay of execution of the enforcement thereof or upon posting a bond in
connection therewith; provided, however, that in no event shall the grace period
provided by subclause (B) of this subparagraph extend beyond the 90th day after
the initiation of such proceedings; or
(xi) (a) a court having jurisdiction enters a decree or order for (i)
relief in respect of the Bank or any Significant Subsidiary in an involuntary
case under Argentine Law No. 21,526, as amended, Argentine Law No. 24,522 or any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect or, (ii) appointment of an administrator, receiver, Trustee or intervenor
for the Bank or any Significant Subsidiary for all or substantially all of the
Property of the Bank or any Significant Subsidiary and, in each case, such
decree or order shall remain unstayed and in effect for a period of thirty
consecutive days, or (b) the Central Bank (i) initiates a proceeding under
Article 34 of Argentine Law No. 21,526, as amended, requesting the Bank to
submit a plan under such Article, or (ii) orders a temporary, total or partial
suspension of the activities of the Bank pursuant to Article 49 of the charter
of the Central Bank; or
A-33
(xii) the Bank or any Significant Subsidiary (i) commences a voluntary
case under Argentine Law No. 21,526, as amended, Argentine Law No. 24,522 or any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) consents to the appointment of or taking possession by an
administrator, receiver, Trustee or intervenor for the Bank or any Significant
Subsidiary for all or substantially all of the property of the Bank or any
Significant Subsidiary, or (iii) effects any general assignment for the benefit
of creditors; or
(xiii) a moratorium is agreed or declared in respect of any
indebtedness of the Bank, or of any Significant Subsidiary of the Bank, or any
Governmental Agency condemns, seizes, compulsorily purchases or expropriates
five percent or more of the assets of the Bank and its Subsidiaries considered
as one enterprise; or
(xiv) any event occurs which under the laws of any relevant
jurisdiction has an analogous effect to any of the events referred to in
subparagraph (xi) or (xii) above;
then, if such an Event of Default (other than an Event of Default of the type
described in subparagraph (xi) or (xii) above) shall occur and be continuing,
and, with respect to Subordinated Notes, subject to the subordination provisions
of the Indenture and the provisions set forth below under the captions "Events
of Acceleration in Respect of Subordinated Notes" and "Events of Non-Payment in
Respect of Subordinated Notes", either the Trustee or the Holders of at least
25% in aggregate principal amount of the Outstanding Notes of any Series may by
written notice to the Bank, and, in the case of Holders, to the Trustee, declare
the principal amount (or, if the Notes of such Series are Original Discount
Notes or Indexed Notes such portions of the principal amount as may be specified
in the terms of such Series) of all Notes of such Series to be due and payable
immediately, and if an Event of Default of the type described in subparagraph
(xi) or (xii) above shall occur, the principal of (and premium and Additional
Amounts, if any) and any accrued interest on all outstanding Notes shall become
immediately due and payable without the need of any notice to the Bank or the
Holders, as the case may be; provided, however, that after any such acceleration
of Notes of a Series, the Holders of 66 2/3% in aggregate principal amount of
Notes of that Series at the time outstanding may, under certain circumstances,
rescind and annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal, have been cured or waived as provided in
the Indenture. For information as to waiver of defaults, see "Modifications,
Waivers and Amendments; Meeting of Holders".
Events of Acceleration in Respect of Subordinated Notes
An "Event of Acceleration" in respect of Subordinated Notes shall occur
only if an Event of Default specified in clauses (xi) or (xii) occurs. In such
event, the Bank will promptly notify, and provide copies of such notice to, the
Trustee of the occurrence of such Event of Acceleration. The Trustee will
promptly mail such copies of the notice to the Holders of the Notes.
If an Event of Acceleration occurs and is continuing, then the
principal amount of each Series of Subordinated Notes (or, if the Notes of such
Series are Original Issue Discount Notes or Indexed Notes, such portion of the
principal amount as may be specified in the terms of such Series), together with
any premium, Additional Amounts, if any, and accrued interest thereon,
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shall become immediately due and payable, but upon certain conditions, as set
forth in the Indenture, any such acceleration of Subordinated Notes of a Series
may be annulled by the holders of a majority in principal amount of outstanding
Subordinated Notes of such Series. Under Argentine bankruptcy law, the
Subordinated Notes will be automatically accelerated as a matter of law upon the
occurrence of an Event of Acceleration. There is no right of acceleration in
respect of Subordinated Notes in the case of a default in the payment of
principal (or premium or Additional Amounts, if any) or interest on any of the
Notes or the non-performance of any other obligation of the Bank under the
Indenture or any of the Notes or under any other debt obligation of the Bank.
Events of Non-payment in Respect of Subordinated Notes
In the event of a failure by the Bank to (i) pay any principal due on
any Subordinated Note, or (ii) pay any interest, premium or Additional Amount
due on any Subordinated Note (each an "Event of Non-Payment"), and such default
continues for a period of 30 business days, the Bank shall, upon demand of the
Trustee, for the benefit of the holders of such unpaid Subordinated Notes, pay
to the holders thereof the whole amount then due and payable on such unpaid
Subordinated Notes, with interest on the overdue amount (to the extent such
interest shall be legally enforceable) at the rate or rates provided by such
Subordinated Notes. If the Bank fails to pay any such amount upon such demand,
the Trustee may, among other things, institute a judicial proceeding for the
collection thereof.
The foregoing provisions shall be without prejudice to the rights of
each individual holder of Notes to initiate an action against the Bank for the
payment of any principal (and premium and Additional Amounts, if any) and any
interest past due on any Note, as the case may be, as established by Article 29
of the Negotiable Obligations Law.
12. Reports to Holders and the Trustee
The Trustee shall transmit (or in the case of definitive Bearer Notes,
make available) to Holders such information, documents and reports, and such
summaries thereof, concerning the Trustee and its actions under the Indenture as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with any stock exchange
upon which such Notes are listed, with the Commission and (except with respect
to reports received from the Bank) the Bank. The Bank will notify the Trustee
when any Notes are listed on any stock exchange. In the case of SEC Registered
Notes, in addition to any information required to be provided under Condition
10(b) hereof, the Bank shall provide to the Trustee any information, documents
or reports required to be filed with or furnished to the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act within 15 days after the same is
so required to be filed with or furnished to the Commission.
13. Modifications, Waivers and Amendments; Meeting of Holders
(a) Meetings of Noteholders. The Trustee or the Bank shall, upon the
request of the Holders of at least 5.0% in aggregate principal amount of the
Notes at the time outstanding or of the Notes of any Series at the time
outstanding, or the Bank or the Trustee at its discretion, may,
A-35
call a meeting of the Holders or the Holders of Notes of any Series at any time
and from time to time, to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by the Notes or the
Notes of any Series to be made, given or taken by the Holders of such Notes,
including the modification of any of these Conditions. The meetings will be held
in Buenos Aires; provided, however, that the Bank or the Trustee may determine
to hold any such meetings in the City of New York and/or London. In any case,
meetings shall be held at such time and at such place in any such city as the
Bank or the Trustee shall determine. Any resolution passed at a meeting convened
in London or the City of New York shall be binding on all Holders or all Holders
of Notes of any Series, as the case may be (whether present or not at such
meeting), only upon ratification by a meeting of such Holders held in Buenos
Aires in accordance with the Negotiable Obligations Law. The Indenture contains
provisions for Holders present or represented at meetings of Holders convened in
London or the City of New York to appoint representatives at meetings of Holders
in Buenos Aires. Subject as aforesaid, any resolution duly passed will be
binding on all Holders or all Holders of Notes of any Series, as the case may be
(whether or not they were present at the meeting at which such resolution was
passed. If a meeting is being held pursuant to a request of Holders, the agenda
for the meeting shall be as determined in the request and such meeting shall be
convened within 40 days from the date such request is received by the Trustee or
the Bank, as the case may be. Notice of any meeting of Holders or Holders of
Notes of any Series (which shall include the date, place and time of the
meeting, the agenda therefor and the requirements to attend) shall be given not
less than ten days nor more than 30 days prior to the date fixed for the meeting
in the Official Gazette of Argentina and also in the manner provided above under
"Notices" and any publication thereof shall be for five consecutive business
days in each place of publication.
(b) Modification and Waiver. Decisions shall be made by the affirmative
vote of the Holders of 66 2/3% in aggregate principal amount of the Notes or the
Notes of any Series, as the case may be, at the time outstanding present or
represented at a meeting of such Holders at which a quorum is present; provided,
however, that the unanimous consent or the unanimous affirmative vote of the
Holders or of the Holders of Notes of any Series, as the case may be, shall be
required to adopt a valid decision on: (i) changing the stated maturity of the
principal of or any installments of interest on any Note; (ii) reducing or
cancelling the principal amount of or interest on or Additional Amounts payable
with respect to any Note; (iii) altering the currency of payment of any Note; or
(iv) reducing the percentage in principal amount of outstanding Notes, the
consent of the Holders of which is required for the adoption of a resolution or
the quorum required at any meeting of Holders or Holders of Notes of any Series
at which a resolution is adopted or the percentage in principal amount of
outstanding Notes or Notes of any Series, the Holders of which are entitled to
request the calling of a Holders' meeting. For those purposes, Notes known to a
Responsible Officer of the Trustee to be held for the account of the Bank or any
Affiliate of the Bank shall not be considered outstanding. The quorum at any
meeting called to adopt a resolution will be persons holding or representing
60.0% in aggregate principal amount of the Notes or the Notes of any Series, as
the case may be, at the time outstanding; provided, however, that at any such
reconvened meeting adjourned for lack of the requisite quorum, the quorum will
be persons holding or representing 30.0% in aggregate principal amount of the
Notes or the Notes of any Series, as the case may be, at the time outstanding.
Except as provided above, any modifications, amendments or waivers to the terms
and conditions of the Notes will be conclusive and binding on all Holders or all
Holders of Notes of any Series, as the case may be, whether or not they have
given such consent or were present at
A-36
any meeting, and whether or not notation of such modifications, amendments or
waivers is made upon the Notes or the Notes of any Series if duly passed at a
meeting convened and held in accordance with the provisions of the Negotiable
Obligations Law.
For purposes of any meeting of the Holders, each US$1.00 (or its
equivalent in the Specified Currency) of face value of the outstanding Notes or
Notes of any Series will entitle the Holder to one vote. Notes known to a
Responsible Officer of the Trustee to be held for the account of the Bank or any
person directly or indirectly controlling or controlled by or under common
control with the Bank will not be considered outstanding and such Holder(s) will
not participate in taking any actions under the terms of the Notes.
14. Replacement of Notes
If any Note or coupon shall become mutilated or defaced or be
destroyed, lost or stolen, the Bank may execute and the Trustee may, upon the
Holder agreeing to provide such indemnity as shall be required and in the
absence of notice to the Bank or the Trustee that such Note or coupon has been
acquired by a bona fide purchaser (as defined in Section 8-302 of the New York
Uniform Commercial Code, as amended), authenticate and deliver a new Note (with
appropriate coupons attached) or a new coupon, as applicable, on such terms as
the Bank and the Trustee may require, in exchange and substitution for the
mutilated or defaced Note or the Note to which the mutilated or defaced coupon
was attached or in lieu of and in substitution for the destroyed, lost or stolen
Note or the Note to which the destroyed, lost or stolen coupon as attached. In
every case of mutilation, defacement, destruction, loss or theft, the applicant
for a substitute Note or coupon shall furnish to the Bank and the Trustee such
indemnity as the Bank and the Trustee may require and evidence to their
satisfaction of the destruction, loss or theft of such Note or coupon and of the
ownership thereof. In every case of mutilation or defacement of a Note or
coupon, the Holder shall surrender to the Trustee the Note or coupon so
mutilated or defaced. In addition, prior to the issuance of any substitute Note
or coupon, the Bank may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the reasonable fees and expenses of the Trustee and
its counsel and counsel to the Bank) connected therewith. If any Note that has
matured or will mature within 30 days or any coupon that has become due and
payable or will become payable within 30 days shall become mutilated or defaced
or be apparently destroyed, lost or stolen, the Bank may pay, in its sole
discretion, or authorize payment of the same without issuing a substitute Note
or coupon, as applicable.
15. Governing Law
Argentine Law No. 23,576, as amended, governs the requirements for the
Notes to qualify as Obligaciones Negociables thereunder while such law, together
with Argentine Law No. 19,550, as amended, and other applicable Argentine laws
and regulations, govern the capacity and corporate authorizations of the Bank to
execute and deliver the Notes and the authorization of the CNV for the
establishment of the Program and the public offering of the Notes in Argentina.
As to all other matters, the Indenture and the Notes are governed by, and shall
be construed in accordance with, the law of the State of New York, United States
of America.
A-37
16. Descriptive Headings
The descriptive headings appearing in these Conditions are for
convenience of reference only and shall not alter, limit or define the
provisions hereof.
17. Notices
The Bank is required to give notice to the Trustee of any event which
requires notice to be given to the Holders in sufficient time for the Trustee to
provide such notice to the Holders in the manner provided in the Indenture. All
notices regarding the Notes shall be given by the Trustee.
All notices to Holders of Registered Notes will be deemed to have been
duly given upon the mailing by United States first-class mail, postage prepaid,
of such notices to each such Holder at its address as it appears in the
Register, in each case not earlier than the earliest date and not later than the
latest date prescribed in the Indenture for the giving of such notice. Any
notice so mailed shall be deemed to have been given on the date of such mailing.
In addition, notices to Noteholders will be published as follows: (i) in a
leading newspaper having general circulation in Buenos Aires (which is expected
to be La Nacion) and, to the extent required by law, in the Official Gazette of
Argentina; (ii) as long as any Notes are listed on the Luxembourg Stock Exchange
and the rules of that exchange so require, in a leading newspaper having general
circulation in Luxembourg (which is expected to be the Luxemburger Wort); (iii)
as long as any Notes are listed on the Paris Bourse and the rules of that
exchange so require, in a French language daily newspaper of general circulation
in Paris (which is expected to be L'Agence Economique et Financiere); (iv) as
long as any Notes are listed on the Buenos Aires Stock Exchange and the rules of
that exchange so require, in the Bulletin of the Buenos Aires Stock Exchange;
(v) as long as any Notes are listed on any other stock exchange, as required by
such stock exchange; (vi) as long as any Bearer Notes are outstanding, in a
leading English language newspaper having general circulation in London (which
is expected to be the Financial Times); and (vii) otherwise in accordance with
the provisions of the Negotiable Obligations Law. Notices will be deemed to be
validly given to Holders of Bearer Notes on the date of the first publication in
all such newspapers in accordance with the preceding sentence or, if such
publication is on different dates or more than once, on the last day on which
publication has been made in a leading newspaper having general circulation in
Buenos Aires (and the Official Gazette of Argentina, to the extent publication
therein is required by law).
Notwithstanding the foregoing, so long as a Temporary Global Note or
Permanent Global Note representing Notes of a Tranche or a Series, respectively,
is held on behalf of Euroclear and Cedel, there may be substituted for such
publication in such newspapers the delivery of the relevant notice to Euroclear
and Cedel for communication by them to the holders of interests in the relevant
Temporary Global Note or Permanent Global Note, subject, in the case of Notes
listed thereon, to the prior authorization of the Luxembourg Stock exchange, and
unless otherwise required by law, as notified to the Trustee in writing by the
Bank. Neither the failure to give notice nor any defect in any notice given to
any particular Holder of a Note shall affect the sufficiency of any notice with
respect to other Notes.
A-38
Notice to be given by any Holder shall be in writing and given by
forwarding the same, together with the related Note or Notes, to the Trustee or
any Paying Agent. While any Notes are represented by a global Note, such notice
may be given by any holder of an interest in such global Note to the Trustee or
any such Paying Agent via DTC, Euroclear and/or Cedel, as the case may be, in
such manner as the Trustee or Paying Agent, as the case may be, and DTC,
Euroclear and/or Cedel, as the case may be, may approve for such purpose.
The Trustee, the Registrar, the Co-Registrar, any Paying Agent, any
Transfer Agent or any agent of any of such entities may conclusively rely on the
records of DTC, Euroclear or Cedel, as applicable, as to the identity of owners
of beneficial interests in each global Note and the principal amounts
beneficially owned.
18. Prescription
Claims against the Bank for the payment of principal or interest in
respect of the Notes will be prescribed unless made within three years of the
due date for payment of such principal or interest.
19. Consent to Service of Process; Jurisdiction
The Bank, the Trustee and the Exchange Rate Agent have each submitted
to the jurisdiction of the United States District Court for the Southern
District of New York, the Supreme Court of the State of New York, New York
County, any appellate court from either thereof for purposes of any legal suit,
action or proceeding against it arising out of or related to the Indenture, the
Exchange Rate Agency Agreement or the Notes. The Bank has appointed CT
Corporation System with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
as its authorized agent upon which process may be served in any such suit,
action or proceeding.
20. Currency Indemnity
The Specified Currency in which Notes of a Tranche or Series are
designated as payable is the sole currency of account and payment for all sums
payable by the Bank under or in connection with such Notes, including damages.
Any amount received or recovered in a currency other than such Specified
Currency (whether as a result of, or of the enforcement of, a judgment or order
of a court of any jurisdiction, in the winding-up or dissolution of the Bank or
otherwise) by any Holder in respect of any sum expressed to be due to it from
the Bank shall only constitute a discharge of the Bank to the extent of the
Specified Currency amount which the recipient is able to purchase with the
amount so received or recovered in that other currency on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so). If that Specified
Currency amount is less than the Specified Currency amount expressed to be due
to the recipient under any Note, the Bank shall indemnify such recipient against
any loss sustained by it as a result. In any event, the Bank shall indemnify the
recipient against the cost of making any such purchase. For purposes of this
paragraph, it will be sufficient for the Holder to certify in a satisfactory
manner (indicating the sources of information used) that it would have suffered
a loss had an actual purchase of the Specified Currency been made with the
amount so received in that other currency on the date of receipt or recovery
(or, if a purchase of the Specified Currency on such
A-39
date had not been practicable on the first date on which it would have been
practicable, it being required that the need for a change of date be certified
in the manner mentioned above). These indemnities constitute a separate and
independent obligation form the Bank's other obligations, shall give rise to a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by any Holder and shall continue in full force and effect
despite any other judgment, order, claim or proof for a liquidated amount in
respect of any sum due under any Note or any other judgment or order.
21. Further Issues
The Bank may from time to time, subject to the authorization of the
CNV, without the consent of the Holders of any outstanding Notes or coupons (if
any) appertaining thereto, create and issue further Notes having the same terms
and conditions as such outstanding Notes or that are the same in all respects
except for their Issue Dates, Interest Commencement Dates and/or Issue Prices
(regardless in either case of whether any such Notes are issued in registered
and/or bearer form), so that the same shall be consolidated and form a single
Series with such outstanding Notes.
A-40
EXHIBIT B
FORM OF TEMPORARY GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES FEDERAL INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165 (j) AND 1287 (a) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
THIS NOTE IS A TEMPORARY GLOBAL NOTE, WITHOUT COUPONS, EXCHANGEABLE FOR A
PERMANENT GLOBAL NOTE, WITHOUT COUPONS, WHICH IS IN TURN EXCHANGEABLE FOR
DEFINITIVE NOTES WITH COUPONS. INTERESTS IN THIS NOTE ARE ALSO EXCHANGEABLE FOR
INTERESTS IN A GLOBAL NOTE IN REGISTERED FORM. THE RIGHTS ATTACHING TO THIS
TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
THIS NOTE IS NOT ENTITLED TO A LIEN ON THE ASSETS OF THE ISSUER ("GARANTIA
FLOTANTE" OR "ESPECIAL", AS DEFINED UNDER ARGENTINE LAW), NOR IS IT SECURED BY
ANY OTHER MEANS OR GUARANTEED BY ANY OTHER FINANCIAL INSTITUTION. FURTHERMORE,
THIS NOTE HAS NO PRIORITY RIGHT OF PAYMENT IN CASE OF THE BANKRUPTCY, WINDING UP
OR LIQUIDATION OF THE ISSUER, AS THE PROVISIONS OF SECTION 49 (C) OF ARGENTINE
LAW No. 21,526, AS AMENDED, ARE NOT APPLICABLE.
TO BE INCLUDED IF NOTES ARE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR US$ TAX
PURPOSES - THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
US$ FEDERAL INCOME TAX PURPOSES. THE FOLLOWING INFORMATION IS PROVIDED SOLELY
FOR PURPOSES OF APPLYING THE FEDERAL INCOME TAX OID RULES TO THIS NOTE:
Issue Price: US$$ _______ per $ 1,000 of principal amount
Original Issue Discount: US$ ______ per US$$ 1,000 of principal amount
Yield to Maturity: ___ ____%
Issue Date: _________________ __, 20__
BANCO RIO DE LA PLATA S.A.
a bank with limited liability located in the city of Buenos Aires, Argentina
incorporated under the laws of the Republic of Argentina on June 20, 1908, with
a term of duration expiring on July 31, 2008 and registered with the Public
Registry of Commerce on May 14, 1968 under number 1215, Page (folio) 64, Book
66, Volume A of National By-laws, having its domicile at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
(▇▇▇▇) ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
US$ 1,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
TEMPORARY GLOBAL NOTE
representing
ISIN Number: _________________
Common Code: _________________
Series Number: _________________
Principal Amount: _________________
BANCO RIO DE LA PLATA S.A. (the "Issuer"), for value received,
hereby promises to pay to the bearer, upon surrender hereof on the date or dates
specified in the Conditions attached hereto (as defined below), unless earlier
redeemed in accordance with the terms hereof, the principal amount of this
Temporary Global Note stated above (or such lesser amount as shall be the
outstanding principal amount of this Temporary Global Note shown in Part I and
Part II of Schedule A hereto) and to pay interest, if any, in arrears on the
principal amount of this Temporary Global Note outstanding at the rate and on
the dates specified in the Conditions attached hereto. Interest, if any, shall
accrue from and including the most recent date to which interest has been paid
or duly provided for or, if no interest has been paid or duly provided for, from
the Issue Date or the Interest Commencement Date (as defined in the Conditions)
of this Temporary Global Note, as applicable, until payment of said principal
amount has been made or duly provided for, in the manner and upon the terms
specified in the Indenture and in the Conditions.
This Temporary Global Note is issued in respect of an issue of
Medium Term Notes of the Issuer (the "Notes") of the Tranche indicated in the
pricing supplement relating to the Notes attached hereto (the "Pricing
Supplement") and is governed by the provisions of an Indenture (the "Indenture")
dated as of May 19, 2000 among the Issuer and The Bank of New York, as Trustee,
Co-Registrar and Principal Paying Agent, The Bank of New York S.A., as Registrar
and a Paying Agent, Banque Internationale a Luxembourg S.A. as a Paying Agent
and a Transfer Agent, and by the Terms and Conditions of the Notes attached
hereto (as supplemented or amended by the Pricing Supplement, the "Conditions").
The Conditions are incorporated herein by reference and shall be a part of this
Temporary Global Note as though set forth in full at this place. Terms used but
not defined herein have the meanings set forth in the Conditions and the
Indenture unless the context otherwise requires. In the event of any conflict
between the provisions stated herein or the Terms and Conditions of the Notes
and the terms and conditions set forth in the attached Pricing Supplement, the
terms and conditions in the attached Pricing Supplement will prevail.
Prior to the Exchange Date (as defined below), payments (if
any) on this Temporary Global Note will only be made to the bearer hereof to the
extent that there is presented by Cedel or Euroclear to the Trustee, at its
office in London, a certificate, substantially in the form set out in Exhibit K
to the Indenture, to the effect that it has received from or in respect of a
person entitled to a Note (as shown by its records) a certificate from such
person in or substantially in the form of Exhibit L to the Indenture. After the
Exchange Date the holder of this Temporary Global Note will not be entitled to
receive any payment hereon; until this Temporary Global Note is exchanged in
full for a Permanent Global Note, this Temporary Global Note shall in all other
respects be entitled to the same benefits as the Definitive Notes under the
Conditions and the Indenture.
B-2
After the date (the "Exchange Date") that is 40 days after the
completion of the distribution (as determined by the Issuer (based solely on
information certified by the relevant Dealers) of all Notes of the Tranche of
which such Notes are a part issued prior to such determination, interests in
this Temporary Global Note may be exchanged (free of charge) for interests in a
Permanent Global Note representing Notes of the same Series in the form of
Exhibit C to the Indenture upon presentation of this Temporary Global Note by
the bearer hereof at the office in London of the Trustee (or at such other place
outside the United States of America, its territories and possessions as the
Trustee may agree). The Permanent Global Note shall be so issued and delivered
in exchange for only that portion of this Temporary Global Note in respect of
which there shall have been presented to the Trustee by Euroclear or Cedel a
certificate, substantially in the form set out in Exhibit K to the Indenture, to
the effect that it has received from or in respect of a person entitled to a
Note (as shown by its records) a certificate from such person in or
substantially in the form of Exhibit L to the Indenture. Interests in this
Temporary Global Note may also be exchanged, subject to the limitations and
conditions set forth in the Indenture, for interests in one or more Registered
Global Notes of the same Series.
On an exchange of the whole of this Temporary Global Note,
this Temporary Global Note shall be surrendered to the Trustee at its office in
London or at such other place outside of the United States as the Trustee shall
agree. On an exchange of part only of this Temporary Global Note, details of
such exchange shall be entered by or on behalf of the Trustee in Part II of
Schedule A hereto and the relevant space in Part II of Schedule A hereto
recording such exchange shall be signed by or on behalf of the Trustee. If,
following the issue of a Permanent Global Note in exchange for some of the Notes
represented by this Temporary Global Note, further Notes of this Tranche are to
be exchanged pursuant to this paragraph, such exchange may be effected, without
the issue of a new Permanent Global Note, by the Trustee or its agent enforcing
Part I of Schedule A of the Permanent Global Note previously issued to reflect
an increase in the aggregate principal amount of such Permanent Global Note by
an amount equal to the aggregate principal amount of the additional Notes of
this Tranche to be exchanged.
Upon redemption of any Note represented by this Temporary
Global Note, this Temporary Global Note shall be endorsed on Part I of Schedule
A hereto to reflect the reduction of the principal amount evidenced hereby.
Interests in this Temporary Global Note will be transferable in accordance with
the rules and procedures for the time being of Euroclear or Cedel.
The Negotiable Obligations Law governs the requirements for
the Notes to qualify as Obligaciones Negociables thereunder while such law,
together with Argentine Law No. 19,550, as amended, and other applicable
Argentine laws and regulations, govern the capacity and corporate authorizations
of the Issuer to execute and deliver the Notes and the authorization of the CNV
for the establishment of the Program and the public offering of the Notes in
Argentina. As to all other matters, this Temporary Global Note shall be governed
by, and construed in accordance with, the law of the State of New York, United
States of America.
This Note is not a deposit guaranteed pursuant to the deposit
insurance system established by Argentine Law No. 24,485, as amended. This Note
has no special or general priority right of payment in case of bankruptcy,
liquidation or winding up of the Issuer, as the
B-3
provisions of Section 49(d) and (e) of Argentine Law No. 21,526, as amended, are
not applicable. In addition, this Note is not entitled to a lien on the assets
of the Issuer ("Garantia Flotante" or "Especial", as defined under Argentine
law), nor is it secured by any other means or guaranteed by any other financial
institution.
This Temporary Global Note shall not be valid or obligatory
for any purpose until the certificate of authentication hereon shall have been
duly authenticated by or on behalf of the Trustee.
B-4
IN WITNESS WHEREOF, BANCO RIO DE LA PLATA S.A. has caused this
Temporary Global Note to be duly executed by manual or facsimile signature.
Dated as of: Date of Issue
BANCO RIO DE LA PLATA S.A.
By: _________________________
Name:
Title: Director
By: _________________________
Name:
Title: Syndic
B-5
CERTIFICATE OF AUTHENTICATION
This is one of the Temporary Global Notes described in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
As Trustee
By: ___________________________
Authorized Signatory
SCHEDULE A
SCHEDULE OF REDEMPTIONS AND EXCHANGES FOR NOTES REPRESENTED
BY A PERMANENT GLOBAL NOTE OR A REGISTERED GLOBAL NOTE
The following redemptions and exchanges of a part of this Temporary Global Note
for Notes represented by a Permanent Global Note or a Registered Global Note
have been made:
Part of principal amount
of this Temporary Global
Note redeemed or exchanged
for Notes of the Series Remaining principal amount
represented by a Permanent of this Temporary Global
Date redemption or exchange Global Note or a Note following such Notation made by or on
made Registered Global Note redemption or exchange behalf of the Trustee
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
-------------------------- -------------------------- -------------------------- --------------------------
EXHIBIT C
FORM OF PERMANENT GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES FEDERAL INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165 (j) AND 1287 (a) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
THIS NOTE IS A PERMANENT GLOBAL NOTE, WITHOUT COUPONS, EXCHANGEABLE FOR
DEFINITIVE NOTES WITH COUPONS. INTERESTS IN THIS NOTE ARE ALSO EXCHANGEABLE FOR
INTERESTS IN A GLOBAL NOTE IN REGISTERED FORM. THE RIGHTS ATTACHING TO THIS
PERMANENT GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
THIS NOTE IS NOT ENTITLED TO A LIEN ON THE ASSETS OF THE ISSUER ("GARANTIA
FLOTANTE" OR "ESPECIAL", AS DEFINED UNDER ARGENTINE LAW), NOR IS IT SECURED BY
ANY OTHER MEANS OR GUARANTEED BY ANY OTHER FINANCIAL INSTITUTION. FURTHERMORE,
THIS NOTE HAS NO PRIORITY RIGHT OF PAYMENT IN CASE OF THE BANKRUPTCY, WINDING UP
OR LIQUIDATION OF THE ISSUER, AS THE PROVISIONS OF SECTION 49 (C) OF ARGENTINE
LAW NO. 21.526, AS AMENDED, ARE NOT APPLICABLE.
TO BE INCLUDED IF NOTES ARE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR US$ TAX
PURPOSES. THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR US$
FEDERAL INCOME TAX PURPOSES. THE FEDERAL INCOME TAX OID RULES TO THIS NOTE:
Issue Price: US$$_____ per $1,000 of principal amount
Original Issue Discount: US$$.____ per US$$1,000 of principal amount
Yield to Maturity: ___.___%
Issue Date: _______ __, 20__
BANCO RIO DE LA PLATA S.A.
a bank with limited liability located in the city of Buenos Aires, Argentina,
incorporated under the laws of the Republic of Argentina on June 20, 1908, with
a term of duration expiring on July 31, 2008 and registered with the Public
Registry of Commerce on May 14, 1968 under number 1215, Page (folio) 64, Book
66, Volume A of National By-laws, having its domicile at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 480,
(1036) Buenos Aires, Argentina.1
----------------
1 Not required for certain Notes having a maturity of not more than one year.
US$ 1,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
PERMANENT GLOBAL NOTE
representing
ISIN Number: ____________________________
Common Code: ____________________________
Series Number: ____________________________
Principal Amount: ____________________________
BANCO RIO DE LA PLATA S.A. (The "Issuer"), for value received,
hereby promises to pay to the bearer, upon surrender hereof on the date or dates
specified in the Conditions attached hereto (as defined below), unless earlier
redeemed in accordance with the terms hereof, the principal amount of this
Permanent Global Note stated above (or such amount as shall be the Outstanding
principal amount of this Permanent Global Note shown in Part I and Part II of
Schedule A hereto) and to pay interest, if any, in arrears on the principal
amount of this Permanent global Note outstanding at the rate and on the dates
specified in the Conditions. Interest, if any, shall accrue from and including
the most recent date to which interest has been paid or duly provided for or, if
no interest has been paid or duly provided for, form the Issue Date or the
Interest Commencement Date (as defined in the Conditions) of this Permanent
Global Note, as applicable, until payment of such principal amount has been made
or duly provided for, in the manner and upon the terms specified in the
Indenture and in the Conditions.
This Permanent Global Note is issued in respect of an issue of
Medium Term Notes of the Issuer (the "Notes") of the Series indicated in the
pricing supplements, relating to the Notes of each Tranche forming a part of
such Series attached hereto (each, a "Pricing Supplement") and is governed by
the provisions of an Indenture (the "Indenture") dated as of May 19, 2000 among
the Issuer and The Bank of New York, as Trustee, Co-Registrar and Principal
paying Agent, The Bank of New York S.A. as Registrar and a Paying Agent, and
Banque Internationale a Luxembourg S.A., as a Paying Agent and a Transfer Agent,
and, with respect to each Tranche of Notes represented hereby, by the Terms and
Conditions of the Notes of such Tranche attached hereto (in each case as
supplemented or amended by the Pricing Supplement relating to the Notes of such
Tranche, the "Conditions"). The Conditions are incorporated herein by reference
and shall be a part of this Permanent Global Note as though set forth in full at
this place. Terms used but not defined herein have the meanings set forth in the
Conditions and the Indenture unless the context otherwise requires. In the event
of any conflict between the provisions stated herein or the Terms and Conditions
of a Tranche of Notes and the Terms and conditions set forth in the attached
Pricing Supplement for such Tranche of Notes, the terms and conditions in the
applicable Pricing Supplement will prevail.
The notes of the Series represented by this Permanent Global
Note were originally represented (unless this Permanent Global Note was issued
in respect of Notes with a maturity of 365 days or less) by one or more
Temporary Global Notes. Unless any such Temporary Global Note was exchanged in
whole on the issue hereof, interests in such Temporary Global Note may be
further exchanged, on the terms and conditions set out therein, for interests in
this Permanent Global Note. If such exchange occurs following the issue hereof,
the Trustee or its agent shall
C-2
endorse Part I of Schedule A hereto to reflect the increase in the aggregate
principal amount of this Permanent Global Note due to each such exchange,
whereupon the principal amount hereof shall be increased for all purposes by
such amount.
Interests in this Permanent Global Note will be transferable
in accordance with the rules and procedures for the time being of Euroclear or
Cedel.
Interests in this Permanent Global Note may be exchanged for
Definitive Notes subject to the provisions of the Indenture and Condition 3.
Interests in this Permanent Global Note may also be exchanged, subject to the
limitations and conditions set forth in the Indenture, for interests in one or
more Registered Global Notes of the same Series.
Upon redemption of any Note represented by this Permanent
Global Note, this Permanent Global Note shall be endorsed on Part II of Schedule
A hereto to reflect the reduction of the principal amount evidenced hereby.
Interests in this Permanent Global Note will be transferable in accordance with
the rules and procedures for the time being of Euroclear or Cedel.
The Negotiable Obligations Law governs the requirements for
the Notes to qualify as Obligaciones Negociables thereunder while such law,
together with Argentine Law No. 19,550, as amended, and other applicable
Argentine laws and regulations, govern the capacity and corporate authorizations
of the Issuer to execute and deliver the Notes and the authorization of the CNV
for the establishment of the Program and the public offering of the Notes in
Argentina. As to all other matters, this Permanent Global Note shall be governed
by, and construed in accordance with, the law of the State of New York, United
States of America.
This Note is not a deposit guaranteed pursuant to the deposit
insurance system established by Argentine Law No. 24,485, as amended. This Note
has no special or general priority right of payment in case of bankruptcy,
liquidation or winding up of the Issuer, as the provisions of Section 49(d) and
(e) of Argentine Law No. 21,526, as amended, are not applicable. In addition,
this Note is not entitled to a lien on the assets of the Issuer ("Garantia
Flotante" or "Especial", as defined under Argentine law), nor is it secured by
any other means or guaranteed by any other financial institution.
This Permanent Global Note shall not be valid or obligatory
for any purpose until the certificate of authentication hereon shall have been
duly authenticated by or on behalf of the Trustee.
C-3
IN WITNESS WHEREOF, BANCO RIO DE LA PLATA S.A. has caused this
Permanent Global Note to be duly executed by manual or facsimile signature.
Dated as of: Date of Issue
BANCO RIO DE LA PLATA S.A.
By: ___________________________
Name:
Title: Director
By: ___________________________
Name:
Title: Syndic
C-4
CERTIFICATE OF AUTHENTICATION
This is one of the Permanent Global Notes described in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By: ____________________________
Authorized Signatory
SCHEDULE A
SCHEDULE OF REDEMPTIONS AND EXCHANGES
The following exchanges of Notes represented by one or more Temporary Global
Notes for Notes of the same Series represented by this Permanent Global Note and
redemptions and exchanges of the whole or a part of the Notes of the Series
represented by this Permanent Global Note for Definitive Notes have been made:
Increase or reduction of
the principal amount of
this Permanent Global Note Principal amount Permanent
due to redemption or Global Note following such Notation made by or on
Date of redemption or exchange exchanges increase or reduction behalf of the Trustee
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EXHIBIT D
FORM OF REGISTERED GLOBAL NOTE
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. ("CEDE") OR SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE TO CEDE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE HEREOF, CEDE, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE,
EXCEPT THAT TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE MAY BE MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN SECTION 7 (b) AND SECTION 8 OF THE INDENTURE
REFERRED TO IN THIS GLOBAL NOTE.
INCLUDE IF NOTE IS A RESTRICTED GLOBAL NOTE OR NOTE ISSUED IN EXCHANGE THEREFOR
(UNLESS, PURSUANT TO SECTION 7 (g) OF THE INDENTURE, THE ISSUER DETERMINES THAT
THE FOLLOWING LEGEND MAY BE REMOVED) - THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER JURISDICTION.
BY ACCEPTANCE OF THIS NOTE BEARING THE ABOVE LEGEND, WHETHER UPON ORIGINAL
ISSUANCE OR SUBSEQUENT TRANSFER, EACH HOLDER OF THIS NOTE ACKNOWLEDGES THE
RESTRICTIONS ON THE TRANSFER OF THIS NOTE SET FORTH ABOVE AND AGREES THAT IT
SHALL TRANSFER THIS NOTE ONLY AS PROVIDED HEREIN AND IN THE INDENTURE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ON SATISFACTION OF THE
CONDITIONS SPECIFIED IN SECTION 7 (g) OF THE INDENTURE.
THIS NOTE IS NOT ENTITLED TO A LIEN ON THE ASSETS OF THE ISSUER ("GARANTIA
FLOTANTE" OR ESPECIAL", AS DEFINED UNDER ARGENTINE LAW), NOR IS IT SECURED BY
ANY OTHER MEANS OR GUARANTEED BY ANY OTHER FINANCIAL INSTITUTION. FURTHERMORE,
THIS NOTE HAS NO PRIORITY RIGHT OF PAYMENT IN CASE OF THE BANKRUPTCY, WINDING UP
OR LIQUIDATION OF
THE ISSUER, AS THE PROVISIONS OF SECTION 49 (c) OF ARGENTINE LAW NO. 21,526, AS
AMENDED, ARE NOT APPLICABLE.
TO BE INCLUDED IF NOTES ARE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR US$ TAX
PURPOSES - THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
US$ FEDERAL INCOME TAX PURPOSES. THE FOLLOWING INFORMATION IS PROVIDED SOLELY
FOR PURPOSES OF APPLYING THE FEDERAL INCOME TAX OID RULES TO THIS NOTE:
Issue price: US$$___ per US$$1,000 of principal amount
Original Issue Discount: US$$___ per US$$1,000 of principal amount
Yield to Maturity: ___.___%
Issue Date: ____ __, 20_
No. RG-
CUSIP No. (Restricted Global Note)
(SEC Registered Global Note)
CINS No. (Regulation S Global Note)
BANCO RIO DE LA PLATA S.A.
a bank with limited liability located in the city of Buenos Aires, Argentina,
incorporated under the laws of the Republic of Argentina on June 20, 1908, with
a term of duration expiring on July 31, 2008 and registered with the Public
Registry of Commerce on May 14, 1968 under number 1215, Page (folio) 64, Book
66, Volume A of National By-laws, having its domicile at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
(▇▇▇▇) ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
US$ 1,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
REGISTERED GLOBAL NOTE
representing
Series Number: _________________________
Principal Amount: _________________________
BANCO RIO DE LA PLATA S.A. (the "Issuer"), for value received,
hereby promises to pay to CEDE & CO., as nominee for The Depository Trust
Company, or its registered assigns, upon surrender hereof on the date or dates
specified in the Conditions attached hereto (as defined below), unless earlier
redeemed in accordance with the terms hereof, the principal amount of this
Registered Global Note stated above (or such amount as shall be the Registered
Global Note shown in the Schedules hereto), and to pay interest, if any, in
arrears on the principal amount of this Registered Global Note outstanding at
the rate and on the dates specified in the conditions. Interest, if any, shall
accrue from and including the most recent date to which interest has been paid
or duly provided for or, if no interest has been paid or duly provided for, from
the Issue Date or the Interest Commencement Date (as defined in the
D-2
Conditions) of this Registered Global Note, as applicable, until payment of said
principal amount has been made or duly provided for, in the manner and upon the
terms specified in the Indenture and in the Conditions.
This Registered Global Note is issued in respect of an issue
of Medium Term Notes of the Issuer (the "Notes") of the Series indicated in the
pricing supplements relating to the Notes of each Tranche forming a part of such
Series attached hereto (each, a "Pricing Supplement") and is governed by the
provisions of an Indenture (the "Indenture") dated as of May 19, 2000 among the
Issuer and The Bank of New York, as Trustee, Co-Registrar and Principal Paying
Agent, The Bank of New York, S.A., as Registrar and a Paying Agent, and Banque
Internationale a Luxembourg S.A., as a Paying Agent and a Transfer Agent, and,
with respect to each Tranche of Notes represented hereby, by the Terms and
Conditions supplemented or amended by the Pricing Supplement relating to the
Notes of such Tranche, the "Conditions"). The Conditions are incorporated herein
by reference and shall be a part of this Registered Global Note as though set
forth in full at this place. Terms used but not defined herein have the meanings
set forth in the Conditions and the Indenture unless the context otherwise
requires. In the event of any conflict between the provisions stated herein or
the Terms and Conditions of a Tranche of Notes and the terms and conditions set
forth in the attached Pricing Supplement for such Tranche of Notes, the terms
and conditions in the applicable Pricing Supplement will prevail.
The interest payable on this Note on any Interest Payment Date
(as defined in the Conditions) will, subject to certain conditions set forth in
the Conditions, be paid to the person (the "registered holder") in whose name
this Note is registered at the close of business on the Record Date (as defined
in the Conditions) preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the registered holder on such Record Date and may be paid to the person in whose
name this record date for the payment of such interest to be fixed by the
Issuer, notice whereof shall be given to registered holders of Notes not less
than ten days prior to such subsequent record date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which this Note may be listed, and upon such notice as may be
required by such exchange.
Interests in this Registered Global Note are exchangeable or
transferable in whole or in part for interests in a Restricted Global Note if
this Note is a Regulation S Global Note or an Unrestricted Global Note, or for
interests in a Regulation S Global Note or an Unrestricted Global Note if this
Note is a Restricted Global Note (each as defined in the Indenture), in each
case of the same Series, only if such exchange or transfer complies with
Sections 7 (b) (ii), (iii) and (iv) of the Indenture. Interests in this
Registered Global Note are exchangeable in whole or in part for duly executed
and issued definitive registered Notes in the form of Exhibit E to the
Indenture, with the applicable legends as marked therein, subject to the
provisions of the Indenture and Condition 3.
The statements set forth in the legend, if any, set forth
above are an integral part of the terms of this Registered Global Note and by
acceptance hereof each holder of this Registered Global Note agrees to be
subject to and bound by the terms and provisions set forth in such legend.
D-3
The Negotiable Obligations Law governs the requirements for
the Notes to qualify as Obligaciones Negociables thereunder while such law,
together with Argentine Law No. 19,550, as amended, and other applicable
Argentine laws and regulations, govern the capacity and corporate authorizations
of the Issuer to execute and deliver the Notes and the authorization of the CNV
for the establishment of the Program and the public offering of the Notes in
Argentina. As to all other matters, this Registered Global Note shall be
governed by, and construed in accordance with, the law of the State of New York,
United States of America.
This Note is not a deposit guaranteed pursuant to the deposit
insurance system established by Argentine Law No. 24,485, as amended. This Note
has no special or general priority right of payment in case of bankruptcy,
liquidation or winding up of the Issuer, as the provisions of Section 49(d) and
(e) of Argentine Law No. 21,526, as amended, are not applicable. In addition,
this Note is not entitled to a lien on the assets of the Issuer ("Garantia
Flotante" or "Especial", as defined under Argentine law), nor is it secured by
any other means or guaranteed by any other financial institution.
This Registered Global Note shall not be valid or obligatory
for any purpose until the certificate of authentication hereon shall have been
duly authenticated by or on behalf of the Trustee.
D-4
IN WITNESS WHEREOF, BANCO RIO DE LA PLATA S.A. has caused this
Registered Global Note to be duly executed by manual or facsimile signature.
Dated as of: Date of Issue
BANCO RIO DE LA PLATA S.A.
By: _____________________________
Name:
Title: Director
By: _____________________________
Name:
Title: Syndic
D-5
CERTIFICATE OF AUTHENTICATION
This is one of the Registered Global Notes described in the within-mentioned
Indenture:
THE BANK OF NEW YORK,
as Trustee
By: _____________________________
Authorized Signatory
EXHIBIT E
FORM OF DEFINITIVE REGISTERED NOTE
FORM OF FACE OF DEFINITIVE REGISTERED NOTE
No. _____________________
CUSIP No: _____________________ (Restricted Note (SEC Registered Note)
CINS No. _____________________ (Regulation S Note)
INCLUDE IF NOTE IS A RESTRICTED NOTE OR NOTE ISSUED IN EXCHANGE THEREFOR
(UNLESS, PURSUANT TO SECTION 7(g) OF THE INDENTURE, THE ISSUER DETERMINES THAT
THE FOLLOWING LEGEND IS NOT REQUIRED) - THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER JURISDICTION.
BY ACCEPTANCE OF THIS NOTE BEARING THE ABOVE LEGEND, EACH HOLDER OF THIS NOTE
ACKNOWLEDGES THE RESTRICTIONS ON THE TRANSFER OF THIS NOTE SET FORTH ABOVE AND
AGREES THAT IT SHALL TRANSFER THIS NOTE ONLY AS PROVIDED HEREIN AND IN THE
INDENTURE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ON SATISFACTION OF THE
CONDITIONS SPECIFIED IN SECTION 7(g) OF THE INDENTURE.
THIS NOTE IS NOT ENTITLED TO A LIEN ON THE ASSETS OF THE ISSUER (GARANTIA
FLOTANTE" OR "ESPECIAL", AS DEFINED UNDER ARGENTINE LAW), NOR IS IT SECURED BY
ANY OTHER MEANS OR GUARANTEED BY ANY OTHER FINANCIAL INSTITUTION. FURTHERMORE,
THIS NOTE HAS NO PRIORITY RIGHT OF PAYMENT IN CASE OF THE BANKRUPTCY, WINDING UP
OR LIQUIDATION OF THE ISSUER, AS THE PROVISIONS OF SECTION 39(C) OR ARGENTINE
LAW No. 21,526, AS AMENDED, ARE NOT APPLICABLE.
TO BE INCLUDED IF NOTES ARE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR US$ TAX
PURPOSES - THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
US$ FEDERAL INCOME TAX PURPOSES. THE FOLLOWING INFORMATION IS PROVIDED SOLELY
FOR PURPOSES OF APPLYING THE FEDERAL INCOME TAX OID RULES TO THIS NOTE.
Issue Price: US$ ______ per us$1,000 of principal amount
Original Issue Discount: US$ ______ per US$1,000 of principal amount
Yield to Maturity: ___ ___%
Issue Date: _________ ___,20:__)
Series Number: ___________________
Principal Amount: ___________________2
BANCO RIO DE LA PLATA S.A.
a bank with limited liability located in the city of Buenos Aires, Argentina,
incorporated under the laws of the Republic of Argentina on June 20, 1908, with
a term of duration expiring on July 31, 2008 and registered with the Public
Registry of Commerce on May 14, 1968 under number 1215, Page (folio) 64, Book
66, Volume A of National By-laws, having its domicile at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
(▇▇▇▇) ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
US$ 1,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
BANCO RIO DE LA PLATA S.A. (the "Issuer"), for value received,
hereby promises to pay to ______, or its registered assigns, upon surrender
hereof, on ______, 20___, the principal amount of ______ (______), and to pay
interest, if any, from the date hereof on said principal amount in arrears at
the rate or rates determined in accordance with the Terms and Conditions of the
Notes endorsed on the reverse hereof attached hereto (as supplemented or amended
by the Pricing Supplement endorsed on the reverse hereof attached hereto, the
"Conditions") on each Interest Payment Date (as defined in the Conditions),
until payment of such principal amount has been made or duly provided for.
Interest, if any, shall accrue from and including the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from the Issue Date or the Interest Commencement Date (as
defined in the Conditions) of this Note, as applicable, until payment of said
principal amount has been made or duly provided for.
This Note is issued in respect of an issue of Medium Term
Notes of the Issuer (the "Notes") of the Series indicated in the Conditions and
is governed by the provisions of an Indenture (the "Indenture") dated as of May
19, 2000 among the Issuer and The Bank of New York, as Trustee, Co-Registrar and
Principal Paying Agent, The Bank of New York, S.A., as Registrar and a Paying
Agent, and Banque Internationale a Luxembourg S.A., as a Paying Agent and a
Transfer Agent, and by the Conditions. Reference is made to the further
provisions set forth in the Conditions. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
The interest payable on this Note on any Interest Payment Date
(as defined in the Conditions) will, subject to certain conditions set forth in
the Conditions, be paid to the person (the "registered holder") in whose name
this Note is registered at the close of business on the Record Date (as defined
in the Conditions) preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the registered holder on such Record Date and may be paid to the person in whose
name this Note is registered at the close of business on a subsequent record
date for the payment of such interest to be fixed by the Issuer, notice whereof
shall be given to registered holders of Notes not less than
-------------------
2 Amounts equivalent to US$ ______ (or the equivalent thereof in the
currency in which this Note is denominated) and higher integral
multiples of US$ (or the equivalent thereof in the currency in which
this Note is denominated).
E-2
ten days prior to such subsequent record date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which this Note may be listed, and upon such notice as may be
required by such exchange.
The statements set forth in the legend, if any, set forth
above are an integral part of the terms of this Note and by acceptance hereof
each holder of this Note agrees to be subject to and bound by the terms and
provisions set forth in such legend.
The Negotiable Obligations Law governs the requirements for
the Notes to qualify as Obligaciones Negociables thereunder while such law,
together with Argentine Law No. 19,550, as amended, and other applicable
Argentine laws and regulations, govern the capacity and corporate authorizations
of the Issuer to execute and deliver the Notes and the authorization of the CNV
for the establishment of the Program and the public offering of the Notes in
Argentina. As to all other matters, this Note shall be governed by and construed
under the laws with, the law of the State of New York, the United States of
America.
This Note is not a deposit guaranteed pursuant to the deposit
insurance system established by Argentine Law No. 24,485, as amended. This Note
has no special or general priority right of payment in case of bankruptcy,
liquidation or winding up of the Issuer, as the provisions of Section 49(d) and
(e) of Argentine Law No. 21,526, as amended, are not applicable. In addition,
this Note is not entitled to a lien on the assets of the Issuer ("Garantia
Flotante" or "Especial", as defined under Argentine law), nor is it secured by
any other means or guaranteed by any other financial institution.
This Note shall not be valid or obligatory for any purpose
until the certificate of authentication hereon shall have been duly
authenticated by or on behalf of the Trustee.
E-3
IN WITNESS WHEREOF, BANCO RIO DE LA PLATA S.A. has caused this
Note to be duly executed by manual or facsimile signature.
Dated:
BANCO RIO DE LA PLATA S.A.
By: ______________________
Name:
Title: Director
By: ______________________
Name:
Title: Syndic
E-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: ______________________
FORM OF REVERSE OF DEFINITIVE REGISTERED NOTE
Terms and Conditions in the form set forth in Exhibit A, as
supplemented or amended by the relevant Pricing Supplement, to be endorsed
hereon.
Form of Transfer of Definitive Registered Notes
______, being the registered holder of this Note, hereby
transfers to ______, ______ in principal amount of this Note and irrevocably
requests and authorizes The Bank of New York in its capacity as Co-Registrar in
relation to the Banco Rio de la Plata S.A. Medium Term Notes (or any successor
to The Bank of New York in its capacity as such) to effect the relevant transfer
by means of appropriate entries in the register kept by it.
Dated:
Signed: _________________________
Note:
(i) the signature to this assignment must correspond with the
name as it appears upon the face of the within Note in every particular without
alteration or enlargement or any change whatever;
(ii) a representative of the registered holder should state
the capacity in which he signs, e.g., executor;
(iii) the signature of the transferor must be certified by a
notary or in such other manner as specified in the regulations issued governing
transfers.
Dated:
By: _________________________
EXHIBIT F
FORM OF DEFINITIVE BEARER NOTE
FORM OF FACE OF DEFINITIVE BEARER NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME FEDERAL TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
THIS NOTE IS NOT ENTITLED TO A LIEN ON THE ASSETS OF THE ISSUER ("GARANTIA
FLOTANTE" OR "ESPECIAL", AS DEFINED UNDER ARGENTINE LAW), NOR IS IT SECURED BY
ANY OTHER MEANS OR GUARANTEED BY ANY OTHER FINANCIAL INSTITUTION. FURTHERMORE,
THIS NOTE HAS NO PRIORITY RIGHT OF PAYMENT IN CASE OF THE BANKRUPTCY, WINDING UP
OR LIQUIDATION OF THE ISSUER, AS THE PROVISIONS OF SECTION 49(C) OF ARGENTINE
LAW NO. 21.526, AS AMENDED, ARE NOT APPLICABLE.
TO BE INCLUDED IF NOTES ARE ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR US TAX
PURPOSES- THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR US
INCOME TAX PURPOSES. THE FEDERAL INCOME TAX OID RULES TO THIS NOTE:
Issue Price: US$$_____ per $1,000 of principal amount
Original Issue Discount: US$$.____ per US$$ 1,000 of principal amount
Yield to Maturity: ___ ____%
Issue Date: _________________ __, 20__
BANCO RIO DE LA PLATA S.A.
a bank with limited liability located in the city of Buenos Aires, Argentina
incorporated under the laws of the Republic of Argentina on June 20, 1908, with
a term of duration expiring on July 31, 2008 and registered with the Public
Registry of Commerce on May 14, 1968 under number 1215, Page (folio) 64, Book
66, Volume A of National By-laws, having its domicile at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
(▇▇▇▇) ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Series Number: ________________
Principal Amount: ________________3
----------------
3 Amounts equivalent to US$1,000 or as otherwise indicated in the Pricing
Supplement (or the equivalent thereof in the currency in which this
Note is denominated rounded to the nearest 1,000 Units of such
currency).
US$ 1,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
BANCO RIO DE LA PLATA S.A. (the "Issuer"), for value received,
hereby promises, all in accordance with and subject to the Terms and Conditions
of the Notes endorsed on the reverse hereof attached hereto (as supplemented or
amended by the Pricing Supplement endorsed on the reverse hereof attached
hereto, the "Conditions") to pay to the bearer upon surrender hereof at the
specified office of the Trustee or any of the Paying Agents set out below (or
any other or further Paying Agents and/or specified offices from time to time
designated for that purpose by notice duly given in accordance with the
Conditions) on ______, 20 ___, or such earlier date as the same may become
payable in accordance with the Conditions, the principal amount of ______
(______) or such other redemption amount as may be specified in the Conditions
and to pay in arrears on the dates specified in the Conditions interest on such
principal amount at the rate or rates specified therein.
This Note is issued in respect of an issue of Medium Term
Notes of the Issuer (the "Notes") of the Series indicated in the Conditions and
is governed by the provisions of an Indenture (the "Indenture") dated as of May
19, 2000 among the Issuer and The Bank of New York, as Trustee, Co-Registrar and
Principal Paying Agent, The Bank of New York, S.A., as Registrar and a Paying
Agent, and Banque Internationale a Luxembourg S.A., as a Paying Agent and a
Transfer Agent, and by the Conditions. Reference is made to the further
provisions set forth in the Conditions. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
The statements set forth in the legend, if any, set forth
above are an integral part of the terms of this Note and by acceptance hereof
each holder of this Note agrees to be subject to and bound by the terms and
provisions set forth in such legend.
The Negotiable Obligations Law governs the requirements for
the Notes to qualify as Obligaciones Negociables thereunder while such law,
together with Argentine Law No. 19,550, as amended, and other applicable
Argentine laws and regulations, govern the capacity and corporate authorizations
of the Issuer to execute and deliver the Notes and the authorization of the CNV
for the establishment of the Program and the public offering of the Notes in
Argentina. As to all other matters, this Note shall be governed by, and
construed in accordance with, the law of the State of New York, United States of
America.
This Note is not a deposit guaranteed pursuant to the deposit
insurance system established by Argentine Law No. 24,485, as amended. This Note
has no special or general priority right of payment in case of bankruptcy,
liquidation or winding up of the Issuer, as the provisions of Section 49(d) and
(e) of Argentine Law No. 21,526, as amended, are not applicable. In addition,
this Note is not entitled to a lien on the assets of the Issuer ("Garantia
Flotante" or "Especial", as defined under Argentine law), nor is it secured by
any other means or guaranteed by any other financial institution.
This Note shall not be valid or obligatory for any purpose
until the certificate of authentication hereon shall have been duly
authenticated by or on behalf of the Trustee.
F-2
IN WITNESS WHEREOF, BANCO RIO DE LA PLATA S.A. has caused this
Note to be duly executed by manual or facsimile signature and has caused duly
executed coupons to be attached hereto.
Dated:
BANCO RIO DE LA PLATA S.A.
By: ______________________
Name:
Title: Director
By: ______________________
Name:
Title: Syndic
F-3
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By: _____________________________
Authorized Signatory
FORM OF REVERSE OF DEFINITIVE BEARER NOTE
Terms and Conditions in the form set forth in Exhibit A, as
supplemented or amended by the relevant Pricing Supplement, to be endorsed
hereon.
At the foot of the Conditions:
TRUSTEE AND PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
PAYING AGENTS
BANQUE INTERNATIONALE A LUXEMBOURG S.A.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Grand Duchy of Luxembourg
EXHIBIT G
FORM OF COUPON
FORM OF FACE OF COUPON
No. ___________________
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME FEDERAL TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
BANCO RIO DE LA PLATA S.A.
US$ 1,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
If the Note to which this coupon relates is a Fixed Rate Note:
This is a coupon for ______ due on ______.
If the Note to which this coupon relates is a Floating Rate Note: This is a
coupon for the amount of interest due on the Interest Payment Date falling in
______.
This coupon is payable to bearer (subject to the terms and
conditions endorsed on attached hereto the title of Note to which this coupon
appertains and the Pricing Supplement referred to therein, which shall be
binding upon the bearer of this coupon whether or not it is attached to such
Note) against surrender of this coupon at the specified offices of the Principal
Paying Agent or any of the other paying agents set out on the reverse hereof (or
any other or further paying agent and/or specified office from time to time
designated for the purpose by notice duly given in accordance with such terms
and conditions).
For Floating Rate Notes: If the Note to which this coupon
appertains shall become due and payable before the maturity date of this coupon,
this coupon shall become void and no payment shall be made in respect hereof.
BANCO RIO DE LA PLATA S.A.
By: _______________________________
Name:
Title:
FORM OF REVERSE OF COUPON
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
LONDON BRANCH
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
PAYING AGENTS
BANQUE INTERNATIONALE A LUXEMBOURG S.A.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Grand Duchy of Luxembourg
EXHIBIT H
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL
NOTE, TEMPORARY GLOBAL NOTE OR PERMANENT GLOBAL NOTE
TO REGULATION S GLOBAL NOTE
(transfers pursuant to
Section 7(b)(ii) and (v) of the Indenture)
The Bank of New York
as Co-Registrar and Transfer Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Re: Banco Rio de la Plata S.A.
Medium Term Notes (the "Notes")
Reference is hereby made to the Indenture dated as of May 19,
2000 (the "Indenture") among Banco Rio de la Plata S.A. (the "Issuer") and The
Bank of New York as Trustee, Co-Registrar and Principal Paying Agent, The Bank
of New York, S.A., as Registrar and a Paying Agent, and Banque Internationale a
Luxembourg S.A., as a Paying Agent and a Transfer Agent. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture or
Regulation S under the U.S. Securities Act of 1933, as amended.
This letter relates to ______ principal amount of Notes
represented by a beneficial interest in (i) the Restricted Global Note (CUSIP
No. o) held with DTC or a custodian therefor, (ii) the Temporary Global Note
(ISIN Code o) (Common Code o) held with the Common Depositary, or (iii) the
Permanent Global Note (ISIN Code o) (Common Code o) held with the Common
Depositary by or on behalf of transferor as beneficial owner (the "Transferor").
The Transferor has requested a transfer of its beneficial interest to a person
who will take delivery thereof in the form of a beneficial interest in an equal
principal amount in the Regulation S Global Note (CUSIP) (CINS) No. o) to be
held with Euroclear Cedel4 (ISIN Code o) (Common Code o) through CTC.
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Notes and pursuant to
and in accordance with Regulation S under the Securities Act, and accordingly
the Transferor does hereby certify that:
(1) the offer of the Notes was not made to a person in the
United States;
(2) (A) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside the United
States, or
----------------
4 Select appropriate depositary.
(B) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial
interest being transferred as described above was held with DTC through
Euroclear Cedel (Common Code o) (ISIN Code o).
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer and the Dealers.
Insert Name of Transferor
By: __________________________
Name:
Title:
Date: ______, 20_
H-2
EXHIBIT I
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL
NOTE TO UNRESTRICTED GLOBAL NOTE
(transfers pursuant to
Section 7(b)(iii) of the Indenture)
The Bank of New York
as Co-Registrar and Transfer Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Re: Banco Rio de la Plata S.A.
Medium Term Notes (the "Notes")
Reference is hereby made to the Indenture dated as of May 19,
2000 (the "Indenture") among Banco Rio de la Plata S.A. (the "Issuer") and The
Bank of New York as Trustee, Co-Registrar and Principal Paying Agent, The Bank
of New York, S.A., as Registrar and a Paying Agent, and Banque Internationale a
Luxembourg S.A., as a Paying Agent and a Transfer Agent. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture or
Regulation S under the U.S. Securities Act of 1933, as amended.
This letter relates to ______ principal amount of Notes
represented by a beneficial interest in (i) the Restricted Global Note (CUSIP
No. o) held with DTC or a custodian therefor, (ii) the Permanent Global Note
(ISIN Code o) (Common Code o) held with the Common Depositary by or on behalf of
transferor as beneficial owner (the "Transferor"). The Transferor has requested
a transfer of its beneficial interest to a person who will take delivery thereof
in the form of a beneficial interest in an equal principal amount in the
Unrestricted Global Note (CUSIP) (CINS) No. o).
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Notes and (i) with
respect to transfers made in reliance on Regulation S under the Securities Act,
and accordingly the Transferor does hereby certify that:
(i) (1) the offer of the Notes was not made to a
person in the United States;
(2) (A) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside the United
States, or
(B) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable;
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act;
or, (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Notes are being transferred in a transaction permitted by
Rule 144 under the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer and the Dealers.
Insert Name of Transferor
By: ___________________________
Name:
Title:
Date: ______, 20_
I-2
EXHIBIT J
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S GLOBAL NOTE, TEMPORARY GLOBAL
NOTE OR PERMANENT GLOBAL NOTE
TO RESTRICTED GLOBAL NOTE
(transfers pursuant to
Section 7(b)(iv) and (vii) of the Indenture)
The Bank of New York
as Co-Registrar and Transfer Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Re: Banco Rio de la Plata S.A.
Medium Term Notes (the "Notes")
Reference is hereby made to the Indenture dated as of May 19,
2000 (the "Indenture") among Banco Rio de la Plata S.A. (the "Issuer") and The
Bank of New York as Trustee, Co-Registrar and Principal Paying Agent, The Bank
of New York, S.A., as Registrar and a Paying Agent, and Banque Internationale a
Luxembourg S.A., as a Paying Agent and a Transfer Agent. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to ______ principal amount of Notes which
are held in the form of (i) the Regulation S Global Note (CUSIP No. o) (Common
Code o) through DTC, (ii) the Temporary Global Note (ISIN Code o) (Common Code
o) held with the Common Depositary by or, (iii) the Permanent Global Note (ISIN
Code o) (Common Code o) held with the Common Depositary by or on behalf of
transferor as beneficial owner (the "Transferor". The Transferor has requested a
transfer of its beneficial interest in the Notes to person who will take
delivery thereof in the form of a beneficial interest in an equal principal
amount in the Restricted Global Note (CUSIP No. o).5
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act to a transferee that the
Transferor reasonably believes is purchasing the Notes for its own account or an
account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "Qualified Institutional
Buyer" within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer and the Dealers.
----------------
5 Select appropriate depositary.
Insert Name of Transferor
By: _____________________________
Name:
Title:
Date: ______, 20_
J-2
EXHIBIT K
FORM OF CLEARING SYSTEM CERTIFICATE
(For Notes not Registered under the Securities Act)
Re: BANCO RIO DE LA PLATA S.A.
____% Floating Rate
Zero Coupon Other Notes
Due ________________, 19_____,
Series ______ (the "Securities")
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture relating to the
Securities as of the date hereof, ______ principal amount of the Securities (i)
is owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States persons"), (ii) is owned by United States persons that
(a) are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c) ("financial institutions"))
purchasing for their own account or for resale, or (b) acquired the Notes
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution has agreed, on its own behalf or through its agent, that we may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign
financial institutions described in clause (iii) above whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Rule
903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), then this is also to certify with respect to the principal
amount of Securities set forth above that, except as set forth below, we have
received in writing, by tested telex or by electronic transmission, from our
Member Organizations entitled to portions of such principal amount,
certifications with respect to each such portion, substantially to the effect
set forth in the Indenture.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) any portion of the Temporary Global Note excepted in such
certifications, and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange (or, if relevant, exercise
of any rights or collection of any interest) are no longer true and cannot be
relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: ________________, 20__
Yours faithfully,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, Brussels office, as
operator of the Euroclear System
Cedel Bank, Societe Anonyme
By: _______________________
K-2
EXHIBIT L
FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP (For Notes not
registered under the Securities Act)
Re: BANCO RIO DE LA PLATA S.A.
____% Floating Rate
Zero Coupon Other Notes
Due ________________, 19_____,
Series ______ (the "Securities")
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States persons"), (ii) are owned by United States person(s) that
(a) are foreign branches of United States financial institution (as defined in
U.S. Treasury Regulations Section 1.165-12(c) ("financial institutions"))
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is to further certify
that such financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), then this is also to certify that, except as set forth below,
the Securities are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Securities in transactions which did not require
registration under the Securities Act. As used in this paragraph the terms "U.S.
person" has the meaning given to it by Regulation S under the Securities Act.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $ ______ of
such interest in the above securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________________, 20__6
By: ____________________________________________
As, or as agent for, the beneficial owner(s)
of the Securities to which this certificate
relates.
----------------
6 Not earlier than 15 days prior to the certification event to which the
certification relates.
L-2
EXHIBIT M
TRUSTEE COMPENSATION
FOR FILING WITH CNV:
$10,000 for the first year.
$5,000 for each year after the first year.
or such other amounts as may be agreed upon in writing between the Issuer and
The Bank of New York.
FOR OTHER COPIES:
The Trustee's compensation hereunder shall be as described in the version of
this Indenture filed with the CNV.
EXHIBIT N
The notice of issuance published in the Argentine Official Gazette dated
February 3, 2000 contains the following information:
(a) Date of the shareholders' meeting and the Board of Directors' meeting
which approved the issuance and the terms and conditions of the Notes:
December 3, 1999 and January 20, 2000.
(b) Denomination of the Issuer: Banco Rio de la Plata S.A.
Domicile of the Issuer: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 480, (1036) Buenos Aires,
Argentina.
Date of incorporation: June 20, 1908.
City of incorporation: Buenos Aires, Argentina.
Information regarding the registration with the Public Registry of
Commerce of Argentina: Number 1215, Page (folio) 64, Book 66, Volume A
of National By-laws.
(c) Corporate purposes and principal activity: Banking operations in
accordance with Argentine applicable laws and regulations.
(d) Total share capital issued and authorized as of September 30, 1999:
$335,268,000.
(e) Net-worth as of September 30, 1999: $ 1,172,836,000.
(f) Amount of the Program: US$1,000,000,000.
(g) Amount of Notes issued by the Issuer: Global Program for the Issuance
of Notes up to an amount of US$1,500,000,000 under which the following
series of Notes are outstanding: Series 7(degree), August 21, 1998 for
an amount of US$300,000,000 (due date: August 21, 2001), Series
8(degree), 1999 (due date: April 4, 2000) for an amount of
US$100,000,000 and Series 10(degree)dated December 17, 1999 (due date
July 14, 2000) for an amount of Euros 10,000,000 and the United States
Commercial Paper Program approved by the ordinary Shareholders'
meetings dated November 26, 1993 and December 13, 1996 under which the
following series and/or classes of Notes are outstanding: Class No. 15,
dated March 10, 1999 for an amount of US$300,000,000 (due date: 1
year), Class No. 16, dated June 8, 1999 for an amount of US$80,000,000
(due date: February 3, 2000), Class No. 17, dated June 9, 1999 for an
amount of US$70,000,000 (due date: February 4, 2000), Class No. 19 for
an amount of US$25,000,000 (due date: April 5, 2000), Class No. 20 for
an amount of US$25,000,000 (due date: April 10, 2000), Class No. 22 for
an amount of US$25,000,000 (due date: April 11, 2000), Class No. 23
dated December 2, 1999 for an amount of US$75,000,000 (due date: March
9, 2000) and Class No. 24 for an amount of US$75,000,000, dated
December 3, 1999 (due date: March 9, 2000). The Bank has not issued
debentures. As of September 30, 1999, the Issuer had an amount of
guaranteed debt of $ 8,134,000 (guarantees granted for direct
obligations for rediscounts of the Argentine Central Bank and loans of
Banco de Inversion y Comercio Exterior). The Bank has no priviledged
debt.
(h) Nature of the guarantee: The Notes may be secured or not. The Bank may
issue subordinated Notes, as specified in the applicable Pricing
Supplement.
(i) Maturities: Minimum: 31 days. Maximum: the period which may be agreed
between the relevant Dealer and the Bank, subject to any applicable
legal or regulatory requirement, including the CNV General Resolution
No. 290, as amended.
(j) The Notes issued under the Program may bear interest at a fixed rate,
variable rate, may be indexed notes, zero-coupon notes, dual currency
notes, or any other interest that may be specified in the applicable
Pricing Supplement.
(k) In the opportunity of the issuance of each Series and/or Classes of
Notes under the Program, the Board of Directors shall decide the
application of the funds resulting from the issuance and sale of the
Notes to one or more of the following uses: (i) working capital in
Argentina; (ii) investments in tangible assets in Argentina; (iii)
refinancing of debt; (iv) contributions to the capital of a controlled
or related company, provided that the later uses of the proceeds of
such contribution for the purposes specified in precedent clauses; or
(v) granting of loans to companies and/or individuals for any of the
above described uses, in accordance with technical relations and other
rules and regulations stated in Communication "A" 1907 of the Argentine
Central Bank and in accordance with technical relations and other rules
and regulations stated in Communication "A" 1907 of the Argentine
Central Bank and in accordance with Section 36, paragraph 2 of the
Negotiable Obligations Law.
N-2