EXHIBIT 2.8
EXECUTION COPY
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NOTE INDENTURE
DATED AS OF FEBRUARY 26, 2004
between
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.,
AS ISSUER
and
CITIBANK, N.A.,
AS NOTE TRUSTEE
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$230,000,000
6.50% Notes due 2008
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TABLE OF CONTENTS
This Table of Contents is not part of the Note Indenture to which it is attached
but is inserted for convenience only.
Page
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS...................................................................... 2
SECTION 1.1 Definitions; Construction.................................................................. 2
SECTION 1.2 Compliance Certificates and Opinions....................................................... 6
SECTION 1.3 Form of Documents Delivered to Note Trustee................................................ 7
SECTION 1.4 Acts of Holders............................................................................ 8
SECTION 1.5 Notices, etc. to Note Trustee and the Issuer............................................... 9
SECTION 1.6 Notices to Holders; Waiver................................................................. 9
SECTION 1.7 Execution in Counterparts.................................................................. 10
SECTION 1.8 Effect of Heading and Table of Contents.................................................... 10
SECTION 1.9 Successors and Assigns..................................................................... 10
SECTION 1.10 Severability Clause....................................................................... 10
SECTION 1.11 Benefits of Indenture..................................................................... 10
SECTION 1.12 Governing Law............................................................................. 10
SECTION 1.13 Judgment Currency......................................................................... 10
SECTION 1.14 Legal Holidays............................................................................ 11
SECTION 1.15 Execution of Other Documents; Conflicts................................................... 11
SECTION 1.16 Payments by the Collateral Agents......................................................... 12
SECTION 1.17 Information to Holders.................................................................... 12
ARTICLE 2 THE NOTES............................................................................................. 12
SECTION 2.1 Forms Generally............................................................................ 12
SECTION 2.2 Legends on Restricted Notes................................................................ 14
SECTION 2.3 Amount and Title........................................................................... 14
SECTION 2.4 Denominations.............................................................................. 14
SECTION 2.5 Execution and Authentication............................................................... 14
SECTION 2.6 Temporary Notes............................................................................ 15
SECTION 2.7 Registration, Registration of Transfer and Exchange........................................ 15
SECTION 2.8 Mutilated, Destroyed, Lost and Stolen Notes................................................ 20
SECTION 2.9 Payments; Interest Rights Preserved........................................................ 21
SECTION 2.10 Persons Deemed Owners..................................................................... 22
SECTION 2.11 Cancellation; Purchase by the Issuer, the Sponsors or the Shareholders or their
Respective Affiliates.................................................................. 23
SECTION 2.12 Computation of Interest................................................................... 23
SECTION 2.13 Certification Forms....................................................................... 23
SECTION 2.14 CUSIP Numbers............................................................................. 24
SECTION 2.15 Taxes..................................................................................... 24
SECTION 2.16 Rights and Liabilities of the Issuer...................................................... 25
SECTION 2.17 Allocation of Principal and Interest...................................................... 25
SECTION 2.18 Security for and Parity of Notes; Ranking................................................. 25
ARTICLE 3 REDEMPTION OF NOTES................................................................................... 26
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SECTION 3.1 Applicability of Article................................................................... 26
SECTION 3.2 Mandatory Partial Redemption of Notes...................................................... 26
SECTION 3.3 Optional Redemption........................................................................ 26
SECTION 3.4 Delivery of Notices, Certificates and Opinions............................................. 28
SECTION 3.5 Redemption of and Payment on Notes......................................................... 28
SECTION 3.6 Notes Redeemed in Part..................................................................... 29
SECTION 3.7 Cancellation of Notes...................................................................... 29
ARTICLE 4 CONCERNING THE NOTE TRUSTEE........................................................................... 29
SECTION 4.1 Duties and Responsibilities of Note Trustee; During Default; Prior to Default.............. 29
SECTION 4.2 Certain Rights and Duties of Note Trustee.................................................. 30
SECTION 4.3 Note Trustee Not Responsible for Recitals, Etc............................................. 32
SECTION 4.4 Note Trustee and Others May Hold Notes..................................................... 32
SECTION 4.5 Monies Held by Note Trustee or Paying Agent................................................ 32
SECTION 4.6 [Reserved]................................................................................. 32
SECTION 4.7 Right of Note Trustee to Rely on Officer's Certificates and Opinions of Counsel............ 32
SECTION 4.8 Persons Eligible for Appointment As Note Trustee........................................... 32
SECTION 4.9 Resignation and Removal of Note Trustee; Appointment of Successor.......................... 33
SECTION 4.10 Acceptance of Appointment by Successor Note Trustee....................................... 34
SECTION 4.11 Merger, Conversion or Consolidation of Note Trustee....................................... 34
SECTION 4.12 Maintenance of Offices and Agencies....................................................... 34
SECTION 4.13 Note Trustee Risk......................................................................... 36
SECTION 4.14 Limitation on Duty of Note Trustee in Respect of Collateral............................... 36
SECTION 4.15 Assignment of Rights, No Assumption of Duties............................................. 37
SECTION 4.16 Concerning the Note Trustee and the Collateral............................................ 37
SECTION 4.17 Reports by Trustee........................................................................ 37
SECTION 4.18 Appointment of Co-Trustee................................................................. 37
ARTICLE 5 COVENANTS; DEFAULTS, REMEDIES......................................................................... 38
SECTION 5.1 Covenants of the Issuer.................................................................... 38
SECTION 5.2 Events of Default.......................................................................... 39
SECTION 5.3 Collection of Indebtedness by Note Trustee; Note Trustee May Prove Debt.................... 39
SECTION 5.4 Application of Proceeds.................................................................... 40
SECTION 5.5 Suits for Enforcement...................................................................... 41
SECTION 5.6 Restoration of Rights on Abandonment of Proceedings........................................ 41
SECTION 5.7 Limitations on Suits by Holders............................................................ 41
SECTION 5.8 Inconsistency with Common Agreement or Intercreditor Agreement............................. 41
SECTION 5.9 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.................... 42
SECTION 5.10 Control by Holders........................................................................ 42
SECTION 5.11 Waiver of Past Event of Default or Defaults............................................... 42
SECTION 5.12 Undertaking for Costs..................................................................... 43
SECTION 5.13 Payments after an Event of Default........................................................ 43
SECTION 5.14 Actions to be taken by Note Trustee under Common Agreement and the Intercreditor
Agreement.............................................................................. 43
SECTION 5.15 Other Agreements.......................................................................... 44
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ARTICLE 6 CONCERNING THE HOLDERS................................................................................ 44
SECTION 6.1 Evidence of Action Taken by Holders........................................................ 44
SECTION 6.2 Proof of Execution of Instruments and of Holding of Notes.................................. 44
SECTION 6.3 Notes Owned by Issuer and Certain Other Persons Deemed Not Outstanding..................... 45
SECTION 6.4 Right of Revocation of Action Taken........................................................ 45
ARTICLE 7 HOLDERS' MEETINGS..................................................................................... 46
SECTION 7.1 Purposes for Which Holders' Meetings May Be Called......................................... 46
SECTION 7.2 Call of Meetings by Note Trustee........................................................... 46
SECTION 7.3 Issuer and Holders May Call Meeting........................................................ 46
SECTION 7.4 Persons Entitled to Vote at Meeting........................................................ 46
SECTION 7.5 Determination of Voting Rights; Conduct and Adjournment of Meeting......................... 47
SECTION 7.6 Counting Votes and Recording Action of Meeting............................................. 47
ARTICLE 8 SUPPLEMENTAL INDENTURES............................................................................... 48
SECTION 8.1 Supplemental Indentures Without Consent of Holders......................................... 48
SECTION 8.2 Supplemental Indenture With Consent of Holders............................................. 48
SECTION 8.3 Execution of Supplemental Indentures....................................................... 49
SECTION 8.4 Effect of Supplemental Indentures.......................................................... 49
SECTION 8.5 Reference in Notes to Supplemental Indentures.............................................. 49
ARTICLE 9 DEFEASANCE AND COVENANT DEFEASANCE;................................................................... 50
SECTION 9.1 Issuer's Option to Effect Defeasance or Covenant Defeasance................................ 50
SECTION 9.2 Defeasance and Discharge................................................................... 50
SECTION 9.3 Covenant Defeasance........................................................................ 50
SECTION 9.4 Conditions to Defeasance or Covenant Defeasance............................................ 51
SECTION 9.5 Satisfaction and Discharge of the Indenture................................................ 52
SECTION 9.6 Application of Trust Money................................................................. 52
SECTION 9.7 Return of Moneys Held by Note Trustee and Paying Agent Unclaimed for One Year.............. 52
ARTICLE 10 SPONSOR CREDIT SUPPORT............................................................................... 53
ARTICLE 11 USE OF PROCEEDS; SECURITY............................................................................ 53
SECTION 11.1 Use of Proceeds............................................................................ 53
SECTION 11.2 Security................................................................................... 53
SECTION 11.3 Certificates of the Issuer................................................................. 53
SECTION 11.4 Authorization of Actions to Be Taken by the Note Trustee Under the Security
Documents................................................................................ 53
SECTION 11.5 Authorization of Receipt of Funds by the Note Trustee Under the Security Documents......... 54
SECTION 11.6 Termination of Security Interest........................................................... 54
ARTICLE 12 CFE ASSUMPTION OF FINANCING DOCUMENTS................................................................ 54
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EXHIBITS
EXHIBIT A FORMS OF NOTES
EXHIBIT B FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR TRANSFER
FROM RESTRICTED GLOBAL NOTE TO REGULATION S GLOBAL NOTE
EXHIBIT C FORM OF TRANSFER CERTIFICATE FOR EXCHANGE OR TRANSFER
FROM RESTRICTED GLOBAL NOTE TO UNRESTRICTED GLOBAL NOTE
EXHIBIT D FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR EXCHANGE
FROM REGULATION S GLOBAL NOTE TO RESTRICTED GLOBAL NOTE
EXHIBIT E FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR EXCHANGE
OF RESTRICTED NOTE
EXHIBIT F FORM OF INSTITUTIONAL ACCREDITED INVESTOR TRANSFEREE
COMPLIANCE LETTER
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NOTE INDENTURE (this "Indenture"), dated as of February 26, 2004,
between CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V., a company
incorporated under the laws of Mexico (the "Issuer"), and Citibank, N.A., a
national banking association organized under the laws of the United States, as
Trustee hereunder (the "Note Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has been awarded a contract to develop and
construct a hydroelectric generating plant to be located in the La Yesca and
Santa ▇▇▇▇▇ del Oro municipalities of the State of Nayarit, Mexico, in
accordance with the terms, conditions and specifications set forth in the
bidding documents submitted by the Issuer for the Project and the Mixed Financed
Public Works Contract (Contrato Mixto de Obra Publica Financiada), dated March
26, 2003, entered into by the Borrower and the Comision Federal de Electricidad;
WHEREAS, in connection with the Project, the Issuer and the Sponsors
have entered into certain Financing Documents pursuant to which the Issuer will
raise funds to be used to pay Project Costs;
WHEREAS, the Note Trustee, Banco Santander Central Hispano, S.A.,
New York Branch, as Offshore Collateral Agent, Banco Santander Mexicano, S.A.,
as Onshore ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ Branch, as Facility
Administrative Agent, the Issuer, WestLB AG, New York Branch, as Intercreditor
Agent, and the Creditor Representatives and other Creditors from time to time
party thereto are entering into the Common Agreement (the "Common Agreement")
pursuant to which the parties to the Financing Documents (which include this
Indenture) set forth certain provisions regarding, inter alia, (i) the common
representations and covenants of the Issuer running in favor of the Creditors,
(ii) insurance requirements for the Project and (iii) common Defaults and Events
of Default;
WHEREAS, in order to secure the Issuer's and the Sponsors'
obligations under the Financing Documents, the Sponsors have entered into
certain Security Documents and/or agreements to provide credit support for the
benefit, directly or indirectly, of the Secured Parties;
WHEREAS, the Issuer has duly authorized the creation of an issue of
its debt securities (the "Notes") up to an aggregate principal amount of
U.S.$230,000,000; and the Issuer has duly authorized the execution and delivery
of this Indenture to provide for the authentication and delivery of the Notes by
the Note Trustee;
WHEREAS, the payment obligations of the Issuer under, and the
performance by the Issuer of the covenants and agreements contained in, this
Indenture and the Notes will have the benefit of credit support by the Sponsors
pursuant to, and to the extent set forth in, the Sponsor Credit Support;
WHEREAS, all acts necessary to make the Sponsor Credit Support valid
and binding agreements and instruments for the credit support of the Notes, in
accordance with its and their terms, have been done; and
WHEREAS, all acts necessary (i) to make this Indenture a valid and
binding agreement and instrument for the security of the Notes, in accordance
with its and their terms and (ii) to make the Notes, when executed by the Issuer
and authenticated and delivered by the Note Trustee, valid and binding
obligations of the Issuer, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, for and in
consideration of the premises and of the covenants contained herein and in the
Common Agreement and in consideration of the purchase of the Notes, it is
mutually covenanted and agreed, for the benefit of the parties hereto and the
equal and proportionate benefit of all Holders, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions; Construction. For all purposes of this
Indenture, except as otherwise expressly provided in the next paragraph or
otherwise or unless the context otherwise requires, capitalized terms used in
this Indenture, its schedules and exhibits have the meanings given in the Common
Agreement. The rules of construction set forth in Section 1.2 of the Common
Agreement are hereby incorporated herein by reference, mutatis mutandis, as if
fully set forth herein.
The following terms shall have the following meanings herein:
"Act" shall have the meaning specified in Section 1.4 hereof.
"Additional Amounts" shall have the meaning set forth in Section
2.15 hereof.
"Agent Member" shall have the meaning set forth in Section 2.7(c)
hereof.
"Applicable Procedures" shall have the meaning set forth in Section
2.7(c) hereof.
"Authenticating Agent" shall mean any Person acting as
Authenticating Agent pursuant to Section 4.12(c) hereof.
"Authorized Agent" shall mean any Paying Agent, Authenticating Agent
or Security Registrar or other agent appointed by the Note Trustee in accordance
with this Indenture to perform any function that the Indenture authorizes the
Note Trustee or such agent to perform.
"Authorized Representative" shall mean, with respect to any Person,
the person or persons authorized to act on behalf of such Person by its Board of
Directors or any other governing body of such Person.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time to
time.
"Board of Directors," when used with respect to a corporation, shall
mean either the board of directors of the corporation or any committee of that
board duly authorized to act for it hereunder.
"Board Resolution" shall mean a copy of a resolution certified by
the Secretary or an Assistant Secretary of a Person to have been adopted by the
Board of Directors or comparable governing body of such Person and to be in full
force and effect on the date of such certification, which certificate shall be
delivered to the Note Trustee.
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"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme
(or any successor securities clearing agency).
"Common Agreement" shall have the meaning specified in the recitals
hereto.
"Corporate Trust Office" shall mean (i) with respect to the Note
Trustee, the principal office of the Note Trustee at which at any particular
time corporate trust business of the Note Trustee shall be principally
administered, which at the date hereof is Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attn: Global Agency and Trust Services, or such
other office as may be designated by the Note Trustee to the Issuer and each
Holder, (ii) with respect to the Security Registrar, the principal office of the
Security Registrar at which at any particular time corporate trust business of
the Security Registrar under the laws of the State of New York shall be
principally administered, which at the date hereof is Citibank, N.A., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attn: Global Agency and Trust
Services, or such other office as may be designated by the Security Registrar to
the Issuer and each Holder.
"Defaulted Interest" shall have the meaning specified in Section 2.9
hereof.
"Depositary" shall mean (i) The Depository Trust Company, having, at
the date hereof, a principal office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, together with any Person succeeding thereto by merger, consolidation
or acquisition of all or substantially all of its assets, including
substantially all of its securities payment and transfer operations or (ii) any
other clearing agency that is registered as such under the Securities Exchange
Act of 1934 and is designated by the Issuer to act as a depositary for the Notes
(or any successor securities clearing agency so registered).
"Euroclear" shall mean Euroclear Bank S.A./N.V., as operator of the
Euroclear System.
"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934
(or any successor statute), as amended, and the rules and regulations of the
U.S. Securities and Exchange Commission U.S. Securities and Exchange Commission
promulgated thereunder.
"Global Notes" shall have the meaning set forth in Section 2.1
hereof.
"Holder" shall mean the Person in whose name a Note is registered in
the Security Register or, when the context so requires, a Person holding a
beneficial interest in a Global Note.
"IAI Notes" shall have the meaning set forth in Section 2.1 hereof.
"Institutional Accredited Investor" shall have the meaning set forth
in Section 2.1 hereof.
"Issuer Request" and "Issuer Order" shall mean, respectively, a
written request or order signed in the name of the Issuer by its Authorized
Representative and delivered to the Note Trustee.
"Make-Whole Premium" shall have the meaning set forth in Section
3.3(b) hereof.
"Mexico" shall mean the United Mexican States.
"Note Collateral" means (a) the Note Interest Account, the Note
Proceeds Account and the Note Prepayment Account (including any sub-accounts
thereof), (b) all cash, cash equivalents, securities, investments, financial
assets, Security Entitlements, payments, other amounts, and all other items of
property from time to time held, maintained or carried in, or credited to or
deposited in, any of the
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Noteholder Accounts, including Permitted Investments, (c) all rights, claims and
causes of action, if any, that the Issuer may have against any Person in respect
of the foregoing and (d) all proceeds of any or all of the foregoing.
"Noteholder Accounts" shall mean the Note Interest Account, the Note
Proceeds Account and the Note Prepayment Account.
"Noteholder Depositary Bank" means WestLB AG, New York Branch in its
capacity as Noteholder Depositary Bank under the Noteholder Depositary
Agreement.
"Noteholder Depositary Agreement" shall mean that certain Noteholder
Depositary Agreement dated as of the date hereof between the Issuer, the Note
Trustee and the Noteholder Depositary Bank, pursuant to which a number of
segregated, irrevocable offshore accounts will be established and maintained.
"Note Proceeds" means all net proceeds of the issuance and sale of
the Notes pursuant to the Note Purchase Agreement remaining after the payment of
or provision for expenses incurred in connection with such issuance and sale.
"Notes" shall mean any securities issued by the Issuer pursuant
hereto.
"Officer's Certificate" means a certificate signed by the President,
any Director, Treasurer, General Counsel or Secretary of the Issuer, delivered
to the Note Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel for any
Person (which counsel, for the purposes of any opinion to be delivered pursuant
to Article 9 hereof only, shall be of national reputation in its principal
country of operation) reasonably satisfactory to the Note Trustee.
"Other Yields" shall have the meaning set forth in Section 3.3(b)
hereof.
"Outstanding," when used with respect to Notes, shall mean, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(a) Notes theretofore canceled by the Note Trustee or delivered to
the Note Trustee for cancellation;
(b) Notes or portions thereof deemed to have been paid within the
meaning of Section 9.1 hereof; and
(c) Notes that have been exchanged for other securities or
securities in lieu of which other Notes have been authenticated and delivered
pursuant hereto other than the Notes in respect of which there shall have been
presented to the Note Trustee proof satisfactory to it that such Notes are held
by a bona fide purchaser in whose hands such Notes constitute valid obligations
of the Issuer; provided, however, that in determining whether the Holders of the
requisite principal of Notes "Outstanding" have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders, Notes owned by the Issuer, the
Sponsors, any Affiliate thereof or CFE shall be disregarded and deemed not to be
Outstanding as provided in Section 6.3 hereof, except that for the purpose of
determining whether the Note Trustee shall be protected in relying upon any
request, demand, authorization, direction, consent or waiver under the Indenture
or upon any Act taken at a meeting of Holders, only Notes which the Note Trustee
actually knows are so owned should be so disregarded.
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"Paying Agent" shall mean any Person acting as Paying Agent pursuant
to Section 4.12(b) hereof.
"Payment Date" means a day falling on May 31 or November 30 of each
year or, if such day is not a Business Day, the next succeeding Business Day.
"Place of Payment" shall mean the office or agency maintained
pursuant to Section 4.12 hereof and such other place or places, if any, where
the principal of, and premium, if any, and interest on the Notes are payable as
specified in the terms of the Notes.
"Predecessor Notes," with respect to any particular Note, shall mean
any previous Note evidencing all or a portion of the same debt as that evidenced
by such particular Note; for the purposes of this definition, the Note
authenticated and delivered under Section 2.8 hereof in lieu of a mutilated,
lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Primary Issue" shall have the meaning set forth in Section 3.3(b)
hereof.
"Project Completion" has the meaning assigned to Culminacion del
Proyecto in the Public Works Contract.
"Redemption Date" shall mean the date set for a redemption or
purchase of Notes pursuant to this Indenture.
"Redemption Price," when used with respect to the Note to be
redeemed, means the price at which it is to be redeemed or purchased pursuant to
this Indenture.
"Regular Record Date," for payment of interest on the Notes, shall
mean the 15th day (whether or not a Business Day) next preceding such Stated
Maturity, or any other date specified for such purpose in the terms established
for the Notes.
"Regulation S" shall mean Regulation S (or any successor provision)
under the Securities Act.
"Regulation S Global Notes" shall have the meaning set forth in
Section 2.1 hereof.
"Remaining Average Life" shall have the meaning set forth in Section
3.3(b) hereof.
"Responsible Officer," when used with respect to the Note Trustee,
shall mean any officer in the Corporate Trust Office of the Note Trustee
including any vice president, assistant vice president, treasurer, assistant
treasurer, trust officer or any other officer of the Note Trustee who
customarily performs functions similar to those performed by the persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Global Notes" shall have the meaning specified in
Section 2.1 hereof.
"Restricted Notes" shall have the meaning set forth in Section 2.2
hereof.
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"Rule 144A" shall mean Rule 144A (or any successor provision) under
the Securities Act, as it may be amended from time to time.
"Securities Act" shall mean the U.S. Securities Act of 1933 (or any
successor statute), as amended, and the rules and regulations of the U.S.
Securities and Exchange Commission promulgated thereunder.
"Security Register" shall have the meaning specified in Section 2.7
hereof.
"Security Registrar" shall mean any Person acting as Security
Registrar pursuant to Section 2.7 hereof.
"Special Record Date" shall have the meaning specified in Section
2.9 hereof.
"Sponsor Credit Support" shall mean, collectively, the ICA
Guarantee, the Energo Guarantee and the Nacional Guarantee.
"Stated Maturity," when used with respect to a Note or payment of
interest thereon, shall mean the date specified in such Note as the fixed date
on which the principal of such Note or payment of interest is due and payable.
"Successor Note" of any particular Note means every Note issued
after, and evidencing all or a portion of the same debt as that evidenced by,
such particular Note; and, for the purposes of this definition, the Note
authenticated and delivered under Section 2.8 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Taxes" shall have the meaning set forth in Section 2.15 hereof.
"Tax Law Change" shall have the meaning set forth in Section 3.3
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
"Unrestricted Global Notes" shall have the meaning set forth in
Section 2.1 hereof.
"U.S. Government Obligations" shall mean 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 of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 1.2 Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Indenture, upon any application or request
by the Issuer to the Note Trustee to take any
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action under any provision of this Indenture, the Issuer shall furnish to the
Note Trustee an Officer's 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 particular application or request as to which the
furnishing of specific certificates or opinions is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished; provided delivery of a
certificate shall not preclude a request for an Opinion of Counsel by the Note
Trustee.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate
or opinion or such other officer or employee of the Issuer on whom such
individual has relied in good faith has read such covenant or condition
and the definitions relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he, or such officer or employee, has made such examination or
investigation as is necessary to enable such individual to express an
informed opinion as to whether or not such covenant or condition has been
complied with;
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with; and
(e) in the case of an Officer's Certificate, a statement that
no Event of Default has occurred or is continuing.
SECTION 1.3 Form of Documents Delivered to Note Trustee. In any case
where several matters are required to be certified by or covered by an opinion
of any specified Person, it is not necessary that all such matters be certified
by or covered by the opinion of only one such Person, or that they be so
certified by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of 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 or has reason to believe
that the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Issuer stating that the information with respect to such factual
matters is in the possession of the Issuer unless such counsel knows or in the
exercise of reasonable care (without independent investigation) should know that
the certificate or opinion or representations with respect to such matters are
erroneous.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion addressed to the
Note Trustee.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent or
proxy duly appointed in writing or, alternatively, may be embodied in and
evidenced by the record of Holders voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article 6 hereof, or by a combination
of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record, or both, are delivered to the Note Trustee and, when it is
specifically required herein, to the Issuer. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting. Proof of execution of any such
instrument, or of a writing appointing any such agent or proxy, or of the
holding by any Person of a Note shall be sufficient for any purpose of this
Indenture and (subject to Section 4.2 hereof) conclusive in favor of the Note
Trustee if made in the manner provided in this Section 1.4. The record of any
meeting of Holders shall be proved in the manner provided in Section 7.6 hereof.
All such instruments and other evidence of any Act shall be retained by the Note
Trustee and made available for inspection at its Corporate Trust Office by any
Holder or prospective Holder upon reasonable request.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer, and where such execution is by
an officer of a corporation or association or of a partnership on behalf of such
corporation, association or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Note Trustee
deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date or dates of holding the same, shall be proved by the
Security Register, and the Note Trustee shall not be affected by notice to the
contrary.
(d) Until such time as written instruments shall have been delivered
with respect to the requisite percentage of principal amount of Notes for the
action contemplated by such instruments, any such instrument executed and
delivered by or on behalf of a Holder of Notes may be revoked with respect to
any or all of such Notes by written notice by such Holder or any subsequent
Holder, proven in the manner in which such instrument was proven.
(e) Notes authenticated and delivered after any Act of Holders may,
and shall if required by the Note Trustee, bear a notation in form approved by
the Note Trustee as to any action taken by such Act of Holders. If the Issuer
shall so determine, new Notes so modified as to conform, in the opinion of the
Note Trustee and the Issuer, to such action, may be prepared and executed by the
Issuer and authenticated and delivered by the Note Trustee in exchange for
Outstanding Notes.
(f) The Issuer may set any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other
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action or to vote on any action, authorized or permitted by this Indenture to be
given or taken by Holders. Promptly and in any case not later than ten days
after setting a record date, the Issuer shall notify the Note Trustee and the
Holders of such record date. If not set by the Issuer prior to the first
solicitation of a Holder made by any Person in respect of any such action, or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day prior to such first solicitation or vote,
as the case may be. With regard to any record date, the Holders on such date (or
their duly appointed agents or proxies), and only such Persons, shall be
entitled to give or take, or vote on, the relevant action, whether or not such
Holders remain Holders after such record date.
(g) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holder of the Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by any Collateral Agent
or the Issuer, as the case may be, in reliance thereon, whether or not notation
of such action is made upon such Note.
SECTION 1.5 Notices, etc. to Note Trustee and the Issuer. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the Note Trustee by any Holder, by the Issuer, or by an
Authorized Agent shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Note Trustee at its
Corporate Trust Office by first class mail, a recognized overnight courier
service or by facsimile transmission followed by first class mail or
recognized overnight courier service, or
(b) the Issuer by the Note Trustee, by any Holder or by an
Authorized Agent shall be sufficient for every purpose hereunder if in
writing and mailed, first-class postage prepaid, to the Issuer addressed
to it at the address specified under its name on the signature pages to
the Common Agreement or at any other address previously furnished in
writing to the Note Trustee by the Issuer for such purpose.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language and shall be deemed effective upon receipt.
SECTION 1.6 Notices to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder, at its address as it appears in the
Security Register, not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice for the purposes of this
Indenture. Waivers of notice by Holders shall be filed with the Note Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders, and any notice that is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the consent of the Note Trustee,
which consent shall not be unreasonably withheld, shall constitute a sufficient
notification to such Holders for every person hereunder.
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SECTION 1.7 Execution in Counterparts. This instrument may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one of the same instrument.
SECTION 1.8 Effect of Heading and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns. All covenants and agreements in
this Indenture by the Note Trustee and the Issuer shall bind and, to the extent
permitted hereby, shall inure to the benefit of and be enforceable by their
respective successors and assigns, whether so expressed or not. The Issuer may
not assign or otherwise transfer any of its respective rights under this
Indenture.
SECTION 1.10 Severability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12 Governing Law. This Indenture and the Notes shall be
governed by, and construed in accordance with the laws of the State of New York.
Each of the parties hereto hereby expressly and irrevocably submits and consents
to the jurisdiction of the State and Federal courts located in the Borough of
Manhattan, and any appellate court having jurisdiction over appeals from any of
such courts, in any action to resolve any controversy or claim arising out of
this Indenture. The Issuer irrevocably consents to the appointment of CT
Corporation System, with offices on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent to receive service of process in New York, New
York. If for any reason such agent shall cease to be available to act as such,
the Issuer agrees to appoint a new agent on the terms and for the purposes of
this provision. Furthermore, each party hereto hereby submits to the competent
courts of its corporate domicile in any action or proceeding against it in
connection with this Indenture. Nothing herein shall affect the right of any
party to bring legal action or proceedings in any other competent jurisdiction.
SECTION 1.13 Judgment Currency. This is an international transaction
in which the specification of U.S. Dollars and payment in New York City is of
the essence, and the obligations of the Issuer under this Indenture and under
the other Financing Documents to make payment to (or for the account of) each
Holder in U.S. Dollars shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any other
currency or in another place except to the extent that such tender or recovery
results in the effective receipt by such Holder in New York City of the full
amount of U.S. Dollars payable to such Holder under the Indenture and the other
Financing Documents. If for the purpose of obtaining or enforcing judgment in
any court it is necessary to convert a sum due hereunder in U.S. Dollars into
another currency (for the purposes of this Section 1.13, hereinafter the
"judgment currency"), the rate of exchange that shall be applied shall be that
at which in accordance with normal banking procedures such Holder could purchase
such U.S. Dollars in New York with the judgment currency on the Business Day
next preceding the day on which such judgment is rendered. The obligation of the
Issuer in respect of any such sum due from it to such Holder hereunder (for the
purposes of this Section 1.13, an "Entitled Person") shall, notwithstanding the
rate of exchange actually applied in rendering such judgment, be discharged only
to the extent that, on the Business Day following the receipt by such Entitled
Person of any sum adjudged to be due hereunder in the judgment currency, such
Entitled
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Person may in accordance with normal banking procedures purchase and transfer
U.S. Dollars to New York City with the amount of the judgment currency so
adjudged to be due; and the Issuer hereby, as a separate obligation and
notwithstanding any such judgment, agrees to indemnify such Entitled Person on
demand, in U.S. Dollars, for the amount (if any) by which the sum originally due
to such Entitled Person in U.S. Dollars hereunder exceeds the amount of the U.S.
Dollars so purchased and transferred.
SECTION 1.14 Legal Holidays. In any case where the Payment Date,
Redemption Date or the Stated Maturity of the Note or payment of interest
thereon, or any date on which any Defaulted Interest is proposed to be paid,
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or such Note) payment of interest and/or principal, and/or premium, if
any, and/or Additional Amounts, if any, need not be made on such date, but may
be made on the next succeeding Business Day with the same force and effect as if
made on the Payment Date, Redemption Date or at the Stated Maturity, or on the
date on which the Defaulted Interest is proposed to be paid, and, except as
provided in the terms established for such Note, if such payment is timely made,
no interest shall accrue for the period from and after such Payment Date,
Redemption Date or Stated Maturity, or date for the payment of Defaulted
Interest, as the case may be, to the date of such payment.
SECTION 1.15 Execution of Other Documents; Conflicts. (a)
Simultaneously with the execution and delivery of this Indenture, the Note
Trustee shall enter into the Common Agreement, the Intercreditor Agreement, the
Depositary Agreement and the other Financing Documents to which it is a party on
behalf of itself and all Holders of the Outstanding Notes and all future Holders
of any of the Notes. The Notes shall be entitled to the benefit of the Security
Documents, the other Note Documents, the Sponsor Credit Support, the Common
Agreement and the Intercreditor Agreement. All rights, powers and remedies
available to the Note Trustee and the Holders of the Outstanding Notes, and all
future Holders of any of the Notes, with respect to the Collateral, or otherwise
pursuant to the Security Documents, shall be subject to the Common Agreement and
the Intercreditor Agreement. In the event of any conflict or inconsistency
between the terms and provisions of this Indenture and the terms and provisions
of the Common Agreement, the Intercreditor Agreement and the Security Documents,
the terms and provisions of the Common Agreement, the Intercreditor Agreement
and the Security Documents shall govern and control.
(b) Without the consent of the Holders, the Note Trustee, when
authorized by a Board Resolution of the Issuer, at any time and from time to
time, may, subject to the Intercreditor Agreement and Section 11.01 of the
Common Agreement, consent that any Collateral Agent and/or the Note Trustee, as
the case may be, enter into one or more supplements or waivers to the Security
Documents and any other Financing Document in form satisfactory to the Note
Trustee and such Collateral Agent, to take any of the actions contemplated by
Section 8.1 hereof or for the following purposes:
(i) to evidence the succession of another entity to any party to any
such agreement, and the assumption by any such successor of the covenants
and agreements of such predecessor party therein contained or to reflect
the addition of any party thereto; or
(ii) to cure any ambiguity, to correct or supplement any provision
therein that may be defective or inconsistent with any other provision
therein or to make any other provisions with respect to matters or
questions arising therein; provided such action shall not adversely affect
the interest of the Holders in any material respect; or
(iii) to add to the covenants of the Issuer for the benefit of the
Holders or to surrender any right or power therein conferred upon the
Issuer.
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Prior to executing any such supplements or waivers the Note Trustee
shall be entitled to receive an Officer's Certificate and an Opinion of Counsel
stating that the execution of such supplements or waivers is authorized and
permitted by this Indenture.
SECTION 1.16 Payments by the Collateral Agents. The payment or
deposit of any amount or amounts required to be paid or deposited with the Note
Trustee pursuant to this Indenture shall be deemed to have been made by the
Issuer if such amount or amounts shall have been paid or deposited with the Note
Trustee by any Collateral Agent to the corresponding account, provided, any such
payment or deposit to the Note Trustee by any Collateral Agent shall be
accompanied by notification specifying the purpose for which it was made.
SECTION 1.17 Information to Holders. With respect to the information
and documents required to be delivered to the Note Trustee by the Issuer
pursuant to Rule 144A(d) under the Securities Act or pursuant to the Common
Agreement, the Note Trustee shall deliver, at the expense of the Issuer, any
such documents and information (i) to each Person in whose name a Note is
registered in the Security Register and (ii) to any beneficial holder who makes
a request to the Note Trustee (in a manner which complies with the requirements
set forth in Section 1.5 hereof) (which request may indicate that it is a
continuing request for such information until further notice from such owner of
a beneficial interest in a Global Note to the contrary) for such documents or
information. Upon request (which request may indicate that it is a continuing
request for such information until further notice from such owner of a
beneficial interest in a Global Note to the contrary) of any owner of a
beneficial interest in a Global Note or a Holder of a certificated Note, the
Issuer shall deliver all financial information required to be delivered to
Creditors pursuant to the Common Agreement directly to such owner of a
beneficial interest in a Global Note or Holder. Further, upon request (which
request may indicate that it is a continuing request for such information until
further notice from such owner of a beneficial interest in a Global Note to the
contrary) of any beneficial owner of US$5,000,000 aggregate original principal
amount or more of Notes, the Issuer shall deliver reasonable information, as
delivered to Creditors pursuant to the Common Agreement regarding the payment of
all Taxes directly to such beneficial owner for information purposes only; and
provided further that the Issuer shall make available for inspection by the
Holders of beneficial interests in the Notes at the principal executive office
of the Issuer, upon their request, reasonable information regarding the payment
of all Taxes, as defined herein.
ARTICLE 2
THE NOTES
SECTION 2.1 Forms Generally. The Notes shall be in substantially the
form set forth in this Article and in Exhibits ▇-▇, ▇-▇ ▇▇▇ ▇-▇ or in such other
form as shall, subject to Section 2.5 hereof, be established by or pursuant to a
Board Resolution of the Issuer and set forth or determined in the manner
provided in an Officer's Certificate or in one or more indentures supplemental
hereto, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor, the Code, or as may, consistently
herewith, be determined by the officers executing such Notes as evidenced by
their execution thereof.
No Notes in bearer form shall be issued. The definitive Notes shall
be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
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The Regulation S Notes, as defined herein, will bear the applicable
legends set forth in Exhibit A-1, the Restricted Notes, as defined herein, shall
bear the applicable legends as set forth in Exhibit A-2, and the IAI Notes, as
defined herein, will bear the applicable legends set forth in Exhibit A-3 and as
provided in Section 2.2 hereof.
Notes offered and sold in their initial distribution in reliance on
Regulation S under the Securities Act shall be issued in the form of one or more
Global Notes in definitive, fully registered book-entry form without interest
coupons, substantially in the form set forth in this Article and in Exhibit A-1.
Such Global Notes, together with its Successor Notes which are Global Notes
other than the Restricted Global Notes or the Unrestricted Global Notes, are
collectively herein called the "Regulation S Global Notes" and, together with
the Restricted Global Notes and Unrestricted Global Notes, the "Global Notes".
Such Global Notes shall be registered in the name of the Depositary for such
Global Notes or its nominee and deposited with the Note Trustee, at its
Corporate Trust Office, as custodian for such Depositary, duly executed by the
Issuer and authenticated by the Note Trustee as herein provided. The aggregate
principal amount of any Regulation S Global Note may from time to time be
increased or decreased by adjustments made on the records of the Note Trustee,
as custodian for the Depositary for such Global Note, as provided in Section 2.7
hereof, which adjustments shall be conclusive (absent manifest error) as to the
aggregate principal amount of any such Global Note. Except as otherwise provided
pursuant to Section 2.3 hereof or agreed by the Issuer, no Regulation S Global
Note shall be issued except as provided in this paragraph to evidence Notes
offered and sold in their initial distribution in reliance on Regulation S under
the Securities Act.
Notes offered and sold in their initial distribution in reliance on
Rule 144A shall be issued in the form of one or more Global Notes in definitive,
fully registered book-entry form without interest coupons, substantially in the
form set forth in this Article and in Exhibit A-2. Such Global Notes shall be
registered in the name of the Depositary for such Global Notes or its nominee
and deposited with the Note Trustee, at its Corporate Trust Office, as custodian
for such Depositary, duly executed on behalf of the Issuer and authenticated by
the Note Trustee as herein provided, for credit by the Depositary to the
respective accounts of beneficial owners of the Notes represented thereby (or
such other accounts as they may direct). Such Global Note, together with its
Successor Notes that are Global Notes other than the Regulation S Global Notes
as defined below, are collectively herein called the "Restricted Global Notes".
The aggregate principal amount of any Restricted Global Note may from time to
time be increased or decreased by adjustments made on the records of the Note
Trustee, as custodian for the Depositary for such Global Note, as provided in
Section 2.7 hereof, which adjustments shall be conclusive (absent manifest
error) as to the aggregate principal amount of any such Global Notes. In the
event that an interest in a Restricted Global Note shall be transferred in
accordance with Rule 144 in each case in accordance with Section 2.7(c)(v)
hereof, that portion of the Global Note so transferred representing such
interest after such transfer shall be referred to herein as an "Unrestricted
Global Note." Except as otherwise agreed by the Issuer, no Restricted Global
Note or Unrestricted Global Note shall be issued except as provided in this
paragraph to evidence Notes offered and sold in their initial distribution in
reliance on Rule 144A.
Notes offered and sold in their initial distribution to a limited
number of institutions that are accredited investors (that are not qualified
institutional buyers, as defined under Rule 144A) within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act (and institutions in which
all the equity owners are such accredited investors) (together referred to as
"Institutional Accredited Investors") in transactions exempt from registration
under the Securities Act shall be issued in definitive, fully registered
certificated form and not in the form of a Global Note or any other form
intended to facilitate book-entry trading in such Note without interest coupons,
substantially in the form set forth in this Article and in Exhibit A-3. Such
Notes, together with their Successor Notes, are herein collectively called the
"IAI Notes". Such Notes shall be delivered to such Institutional Accredited
Investors only upon the
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execution and delivery to the Issuer, the Note Trustee and the initial
purchasers, if any, by such Institutional Accredited Investors of an
Institutional Accredited Investor transferee compliance letter substantially in
the form of Exhibit F hereto. Such Notes may not be exchanged for interests in a
Global Note except as provided in Section 2.7(c)(v)(E) hereof.
SECTION 2.2 Legends on Restricted Notes. All Notes issued pursuant
to this Indenture (including Notes issued upon registration of transfer, in
exchange for or in lieu of such Notes) shall be "Restricted Notes" and, in the
case of Restricted Global Notes, the Regulation S Global Notes and the IAI
Notes, shall bear the applicable legend(s) setting forth restrictions on
transfer provided in Exhibits ▇-▇, ▇-▇ ▇▇▇ ▇-▇, respectively; provided, however,
that the term "Restricted Notes" shall not include (i) Regulation S Global Notes
or Unrestricted Global Notes, (ii) Notes as to which such restrictive legend(s)
shall have been removed pursuant to Section 2.7 hereof and (iii) Notes issued
upon registration of transfer of, in exchange for or in lieu of, Notes that are
not Restricted Notes.
SECTION 2.3 Amount and Title. The aggregate principal amount of
Notes that may be authenticated and delivered under this Indenture shall be
limited to U.S.$230,000,000. The Notes shall be known and designated as the
"6.50% Senior Notes due 2008" of the Issuer. The Stated Maturity of the
principal amount of the Notes shall be May 27, 2008, and the Notes shall each
bear interest at the rate of 6.50% per year from the date of first issuance of
the Notes under this Indenture or from the most recent Stated Maturity to which
interest has been paid, as the case may be, payable in arrears on May 31, 2004
and semiannually thereafter on May 31 and November 30 in each year, until the
principal thereof is paid or duly provided for.
SECTION 2.4 Denominations. The Notes shall be issuable only in
registered form without coupons and only in minimum denominations of
U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof.
SECTION 2.5 Execution and Authentication. The Notes shall be
executed on behalf of the Issuer by an Authorized Representative of the Issuer.
The signature of any Authorized Representative on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at the time of execution the proper officers of the Issuer shall bind the
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
Subject to Section 2.3 hereof, at any time and from time to time
after the execution and delivery of this Indenture, the Issuer may deliver Notes
executed by the Issuer to the Note Trustee for authentication, together with an
Issuer Order for the authentication and delivery of such Notes, and the Note
Trustee in accordance with the Issuer Order shall authenticate and deliver such
Notes.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Note Trustee by manual signature, and such certificate upon the
Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder. Notwithstanding the foregoing,
if the Note shall have been authenticated and delivered hereunder but never
issued and sold by the Issuer, and the Issuer shall deliver such Note to the
Note Trustee for cancellation as provided in Section 2.11 hereof, for all
purposes of this Indenture such
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Note shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.
SECTION 2.6 Temporary Notes. Pending the preparation of definitive
Notes, the Issuer may execute, and upon Issuer Order the Note Trustee shall
authenticate and deliver, temporary Notes that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers of the Issuer executing the same may determine, as
evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency of the Issuer in a
Place of Payment, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Issuer shall execute and the Note
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Notes of any authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as definitive Notes.
SECTION 2.7 Registration, Registration of Transfer and Exchange.
(a) General. The Issuer shall cause to be kept at the Corporate
Trust Office of the Note Trustee a register (the register maintained in such
office and in any other office or agency of the Issuer in a Place of Payment
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and of transfers and exchanges of
Notes. The Note Trustee is hereby appointed "Security Registrar" for the purpose
of registering Notes and transfers and exchanges of Notes as herein provided.
Notwithstanding anything to the contrary set forth herein, the Note
Trustee shall not be required and shall have no obligation to monitor compliance
with any federal or state securities laws.
Upon surrender for registration of transfer of the Notes at the
office or agency of the Issuer in a Place of Payment, the Issuer shall execute,
and the Note Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes,
of any authorized denominations and of like tenor and aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever the Notes are so surrendered for exchange, the Issuer shall execute,
and the Note Trustee shall authenticate and deliver, the Notes that the Holder
making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Issuer and the Security Registrar duly
executed, by the Holder thereof or its attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 2.6, 2.7(c)(ii), 2.8 or 3.7 hereof not involving any
transfer.
If the Notes are to be redeemed in part, the Issuer shall not be
required (A) to issue, register the transfer or exchange of such Notes during a
period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of any such Notes selected for redemption
under Section 3.5 hereof and ending at the close of business on the day of such
mailing or (B) to register the transfer or exchange of the Note so selected for
redemption in whole or in part, except the unredeemed portion of the Note being
redeemed in part.
(b) Restrictions on Transfer. Every Restricted Note and Regulation S
Global Note shall be subject to the restrictions on transfer provided in the
applicable legend(s) required to be set forth on the face of each Restricted
Note pursuant to Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit A-3, as the case may be,
and, in every case, Section 2.2 hereof, unless such restrictions on transfer
shall be waived by the written consent of the Issuer, and the Holder of each
Restricted Note, by such Holder's acceptance thereof, agrees to be bound by such
restrictions on transfer. Whenever any Restricted Note is presented or
surrendered for registration of transfer or for exchange for a Note registered
in a name other than that of the Holder, such Restricted Note must be
accompanied by an appropriately completed certificate in substantially the form
set forth in or contemplated by Section 2.13(d) hereof (which may be attached to
or set forth in the Restricted Note), appropriately completed, dated the date of
such surrender and signed by the Holder of such Restricted Note, as to
compliance with such restrictions on transfer, unless the Issuer shall have
notified the Note Trustee pursuant to this Section 2.7 that there is an
effective registration statement under the Securities Act with respect to such
Restricted Note. The Security Registrar shall not be required to accept for such
registration of transfer or exchange any Restricted Note not so accompanied by a
properly completed certificate.
If Notes are issued upon the transfer, exchange or replacement of
Notes bearing a legend or legends setting forth restrictions on transfer, or if
a request is made to remove such legend(s) on a Note, the Notes so issued shall
bear such legend(s), or such legend(s) shall not be removed, as the case may be,
unless the transferor delivers to the Issuer such satisfactory evidence (which
may include an opinion of independent counsel experienced in matters of United
States securities law as may be reasonably satisfactory to the Issuer), as may
be reasonably required by the Issuer, that neither such legend(s) nor the
restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A or Rule 144 or Regulation S
under the Securities Act or that such Notes are not restricted securities within
the meaning of Rule 144 under the Securities Act. Upon provision of such
satisfactory evidence to the Issuer, the Note Trustee, at the written direction
of the Issuer set forth in an Issuer Order, shall authenticate and deliver a
Note that does not bear such legend(s). In the absence of bad faith on its part,
the Note Trustee may conclusively rely upon such direction of the Issuer in
authenticating and delivering a Note that does not bear such legend(s).
Upon registration of transfer of or exchange of Notes that are no
longer Restricted Notes, the Issuer shall execute, and the Note Trustee shall
authenticate and deliver, a Note that does not bear restrictive legends.
As used in this Section 2.7(b), the term "transfer" encompasses any
sale, pledge or other transfer of the Notes referred to herein.
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(c) Global Notes. This Section 2.7(c) shall apply to Global Notes.
(i) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Note or a
nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Note shall constitute a single Note for
all purposes of this Indenture. The Notes may be represented by one or more
Global Notes, and such Global Notes may be Restricted Global Notes, Regulation S
Global Notes or Unrestricted Global Notes or any combination thereof.
(ii) Except as provided pursuant to clause (v)(F) of this Section
2.7(c), notwithstanding any other provision in this Indenture, no Global Note
may be exchanged in whole or in part for Notes registered, and no transfer of a
Global Note in whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Note or a nominee thereof unless such
Depositary has notified the Issuer that it is unwilling or unable to continue as
Depositary for such Global Note, or has ceased to be a "Clearing Agency"
registered under the Exchange Act, or has announced an intention permanently to
cease business or has in fact done so, or an Event of Default has occurred and
is continuing with respect to such Global Note. Owners of beneficial interests
in such Global Note will not be entitled to have any portions of such Global
Note registered in their names, will not receive or be entitled to receive
physical delivery of Notes in certificated, definitive form and will not be
considered the owners or the holders of the Global Notes (or the Notes
represented thereby) under the Indenture or the Notes. Upon the occurrence of
any of the events described in this Section 2.7(c)(ii) which entitle an owner of
beneficial interests in a Global Note to receive a certificated, definitive Note
registered in such owner's name, the Issuer will cause the appropriate
certificated Notes to be delivered. In addition, no beneficial owner of an
interest in a Global Note will be able to transfer that interest, except in
accordance with the Depositary's Applicable Procedures (in addition to those
under this Indenture). Any Global Note exchanged pursuant to this Section
2.7(c)(ii) shall be so exchanged in whole and not in part. Notwithstanding any
other provision in this Indenture, a Global Note to which the restriction set
forth in this Section 2.7(c)(ii) shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Notes registered only in the
name or names of, such Person or Persons as the Depositary for such Global Note
shall have directed, and no transfer thereof other than such a transfer may be
registered.
(iii) Subject to clause (ii) above, any exchange of a Global Note
for other Notes may be made in whole or in part, and all Notes issued in
exchange for a Global Note or any portion thereof shall be registered in such
name or names as the Depositary for such Global Note shall direct.
(iv) (A) Every Note authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Section 2.7, Section 2.6, 2.8 or 3.7 hereof or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Note, unless such Note is registered in the name of a Person other than
the Depositary for such Global Note or a nominee thereof.
(B) Owners of beneficial interests in a Global Note shall hold
such interests pursuant to the Applicable Procedures of the Depositary or its
nominee. Accordingly, any such owner's beneficial interest in a Global Note will
be shown only on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee or its Agent
Members and such owners of beneficial interests in a Global Note will not be
considered the owners or holders thereof.
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(v) Notwithstanding any other provision of this Indenture or of the
Notes, transfers of interests in a Global Note of the kind described in Section
2.1 hereof and in subclauses (B), (C), (D) and (E) of this clause (v) below
shall be made only in accordance with this clause (v), and all transfers of an
interest in a Regulation S Global Note shall comply with subclause (G) of this
clause (v). The provisions of this clause (v) providing for transfers of Notes
or beneficial interests in Global Notes to Persons who wish to take delivery in
the form of beneficial interests in a Restricted Global Note, Regulation S
Global Note or Unrestricted Global Note shall only apply if there is a
Restricted Global Note, Regulation S Global Note or Unrestricted Global Note, as
the case may be.
(A) Transfer of Global Note. A Global Note may not be transferred,
in whole or in part, to any Person other than the Depositary or a nominee
thereof, and no such transfer to any such other Person may be registered;
provided that this subclause (A) shall not prohibit any transfer of a Note
that is issued in exchange for a Global Note but is not itself a Global
Note. No transfer of a Note to any Person shall be effective under this
Indenture or the Notes unless and until such Note has been registered in
the name of such Person. Nothing in this Section shall prohibit or render
ineffective any transfer of a beneficial interest in a Global Note
effected in accordance with the other provisions of this Section
2.7(c)(v).
(B) Restricted Global Note to Regulation S Global Note. If the
holder of a beneficial interest in a Restricted Global Note wishes at any
time to transfer such interest to a person who wishes to acquire the same
in the form of a beneficial interest in a Regulation S Global Note, such
transfer may be effected, subject to the rules and procedures of the
Depositary for such Global Note, Euroclear and Clearstream, Luxembourg, in
each case to the extent applicable (the "Applicable Procedures"), only in
accordance with the provisions of this Section 2.7(c)(v)(B) and Section
2.7(c)(v)(G) below. Upon receipt by the Security Registrar at the
Corporate Trust Office of (1) written instructions given in accordance
with the Applicable Procedures from a member of, or participant in, the
Depositary for such Global Note (each, an "Agent Member") directing the
Security Registrar to credit or cause to be credited to a specified Agent
Member's account a beneficial interest in a Regulation S Global Note in a
principal amount equal to that of the beneficial interest in the
Restricted Global Note to be so transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Agent Member (and the Euroclear or Clearstream,
Luxembourg account, as the case may be) to be credited with, and the
account of the Agent Member to be debited for, such beneficial interest
and (3) an appropriately completed certificate in substantially the form
set forth in or contemplated by Section 2.13(a) hereof given by the holder
of such beneficial interest, the Security Registrar, shall instruct the
Depositary for such Notes to reduce the principal amount of the Restricted
Global Note, and to increase the principal amount of the Regulation S
Global Note, by the principal amount of the beneficial interest in the
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 for Euroclear or Clearstream, Luxembourg
or both, as the case may be) a beneficial interest in the Regulation S
Global Note having a principal amount equal to the amount by which the
principal amount of the Restricted Global Note was reduced upon such
transfer.
(C) Restricted Global Note to Unrestricted Global Note. If the
holder of a beneficial interest in a Restricted Global Note wishes at any
time to transfer such interest to a person who wishes to acquire the same
in the form of a beneficial interest in an Unrestricted Global Note, such
transfer may be effected, subject to the Applicable Procedures, only in
18
accordance with this Section 2.7(c)(v)(C). Upon receipt by the Security
Registrar, at the Corporate Trust Office, of (1) written instructions
given in accordance with the Applicable Procedures from an Agent Member
directing the Security Registrar to credit or cause to be credited to a
specified Agent Member's account a beneficial interest in an Unrestricted
Global Note in a principal amount equal to that of the beneficial interest
in the Restricted Global Note to be so transferred, (2) a written order
given in accordance with the Applicable Procedures containing information
regarding the account of the Agent Member (and, in the case of any such
transfer pursuant to Regulation S, the Euroclear or Clearstream,
Luxembourg account for which such Agent Member's account is held) to be
credited with, and the account of the Agent Member to be debited for, such
beneficial interest and (3) an appropriately completed certificate in
substantially the form set forth in or contemplated by Section 2.13(b)
hereof given by the Holder of such beneficial interest, the Security
Registrar shall instruct the Depositary for such Notes to reduce the
principal amount of the Restricted Global Note, and to increase the
principal amount of the Unrestricted Global Note, by the principal amount
of the beneficial interest in the 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 a beneficial interest in the
Unrestricted Global Note having a principal amount equal to the amount by
which the principal amount of the Restricted Global Note was reduced upon
such transfer. Thereafter, transfers of interests in such Unrestricted
Global Note shall not be subject to the foregoing requirements.
(D) Regulation S Global Note to Restricted Global Note. If the
holder of a beneficial interest in a Regulation S Global Note wishes to
transfer such interest to a Person who wishes to acquire the same in the
form of a beneficial interest in a Restricted Global Note, such transfer
may be effected, subject to the Applicable Procedures, only in accordance
with this Section 2.7(c)(v)(D). Upon receipt by the Security Registrar, at
the Corporate Trust Office, of (1) written instructions given in
accordance with the Applicable Procedures from an Agent Member directing
the Security Registrar to credit or cause to be credited to a specified
Agent Member's account a beneficial interest in the Restricted Global Note
equal to that of the beneficial interest in the Regulation S Global Note
to be so transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account of the
Agent Member to be credited with, and the account of the Agent Member (or,
if such account is held for Euroclear or Clearstream, Luxembourg, the
Euroclear or Clearstream, Luxembourg account, as the case may be) to be
debited for, such beneficial interest and (3) an appropriately completed
certificate in substantially the form set forth in or contemplated by
Section 2.13(c) hereof given by the Holder of such beneficial interest,
the Security Registrar shall instruct the Depositary for such Notes to
reduce the principal amount of the Regulation S Global Note and to
increase the principal amount of the Restricted Global Note, by the
principal amount of the beneficial interest in the Regulation S Global
Note to be so transferred, and to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest
in the Restricted Global Note having a principal amount equal to the
amount by which the principal amount of the Regulation S Global Note was
reduced upon such transfer.
(E) Restricted Note (other than a Restricted Global Note) to Global
Note. If the Holder of a Restricted Note (other than a Restricted Global
Note) wishes at any time to transfer such Note to a Person who wishes to
acquire the same in the form of a beneficial interest in a Restricted
Global Note, an Unrestricted Global Note or a Regulation S Global Note,
such transfer may be effected, subject to the Applicable Procedures, only
in accordance with this Section 2.7(c)(v)(E) and Section 2.7(c)(v)(G)
below, as applicable. Upon receipt by the Security Registrar, at the
Corporate Trust Office, of (1) the Restricted
19
Note to be transferred, (2) written instructions given in accordance with
the Applicable Procedures from an Agent Member directing the Security
Registrar to credit or cause to be credited to a specified Agent Member's
account a beneficial interest in the Restricted Global Note, the
Unrestricted Global Note or the Regulation S Global Note, as the case may
be, in a principal amount equal to the principal amount of the Restricted
Note to be so transferred, (3) a written order given in accordance with
the Applicable Procedures containing information regarding the account of
the Agent Member (and, in the case of any transfer pursuant to Regulation
S, the Euroclear or Clearstream, Luxembourg account for which such Agent
Member's account is held or, if such account is held for Euroclear or
Clearstream, Luxembourg, the Euroclear or Clearstream, Luxembourg account,
as the case may be) to be credited with such beneficial interest and (4)
an appropriately completed certificate in substantially the form set forth
in or contemplated by Section 2.13(d) hereof (which may be attached to or
set forth in the Restricted Note), the Security Registrar shall cancel the
Restricted Note, the Issuer shall execute, and the Note Trustee shall
authenticate and deliver, a new definitive Note for the principal amount
of the Restricted Note not so transferred, if any, registered in the name
of the Holder transferring such Restricted Note, and the Security
Registrar shall instruct the Depositary for such Notes to increase the
principal amount of the Restricted Global Note, the Unrestricted Global
Note or the Regulation S Global Note, as the case may be, by the principal
amount of the Restricted Note so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions a
corresponding principal amount of the Restricted Global Note, the
Unrestricted Global Note or the Regulation S Global Note. The transfer of
a Restricted Note to a Person who wishes to take delivery thereof in the
form of a beneficial interest in a Global Note other than a Restricted
Global Note may be effected only in accordance with Regulation S or Rule
144 under the Securities Act (as evidenced by the certificate delivered
pursuant to Section 2.13(d)) hereof.
(F) Other Exchanges. In the event that a Global Note or any portion
thereof is exchanged for Notes other than Global Notes (provided that no
Global Note or a portion thereof may be exchanged for IAI Notes), the
Security Registrar shall instruct the Depositary for the Global Note to
reduce the principal amount of the Global Note by the principal amount of
the Notes other than Global Notes issued upon such exchange. Such other
Notes may in turn be exchanged (on transfer or otherwise) for beneficial
interests in a Global Note (if any are then outstanding) only in
accordance with such procedures, which shall be substantially consistent
with the provisions of subclauses (A) through (E) above (including the
certification requirements intended to insure that transfers of beneficial
interests in a Global Note comply with Rule 144A, Rule 144 or Regulation S
under the Securities Act, as the case may be) and any other procedures as
may be from time to time adopted by the Issuer and the Note Trustee.
SECTION 2.8 Mutilated, Destroyed, Lost and Stolen Notes. If any
mutilated Note is surrendered to the Note Trustee, the Issuer shall execute and,
upon the Issuer's request, the Note Trustee shall authenticate and deliver a new
definitive Note, of like tenor (including the same date of issuance) and equal
face amount of principal, registered in the same manner, dated the date of its
authentication and bearing interest from the date to which interest has been
paid on such Note, in exchange and substitution for such Note upon surrender and
cancellation thereof.
If there shall be delivered to the Issuer and the Note Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of the Note and
(b) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Issuer or the Note Trustee that such Note has been acquired by a bona fide
purchaser, the Issuer shall execute
20
and, upon the Issuer's request, the Note Trustee shall authenticate and deliver
a new definitive Note, of like tenor (including the same date of issuance) and
equal face amount of principal, registered in the same manner, dated the date of
its authentication and bearing interest from the date to which interest has been
paid on such Note, in lieu of and substitution for such Note.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable (excluding any payment of principal
other than at Stated Maturity) the Issuer in its discretion may, instead of
issuing a new Note, pay such Note without surrender thereof (except in the case
of a mutilated Note) if the applicant for such payment shall furnish to the
Issuer and the Note Trustee such reasonable security or indemnity as they may
require to save each of them harmless, and in case of destruction, loss or
theft, evidence to the satisfaction of the Issuer and the Note Trustee of the
destruction, loss or theft of such Note.
Upon the issuance of any new Note under this Section, 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 fees and expenses of the Note Trustee as well as all other costs including
legal fees of the Issuer) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.9 Payments; Interest Rights Preserved. Interest on a Note
that is payable, and is punctually paid or duly provided for, on any Payment
Date shall be paid to the Person in whose name that Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest.
Any interest on a Note that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Issuer, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be set in the
following manner. The Issuer shall notify the Note Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Note and the
date of the proposed payment, and at the same time the Issuer shall remit
to the Offshore Collateral Agent an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Note Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon, the Issuer shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 25 days and not less than 10 days prior to the date of
the proposed payment and not less than 20 days after the receipt by the
Note Trustee of the notice of the
21
proposed payment (the date so fixed, the "Special Record Date"). The Note
Trustee shall promptly, in the name and at the expense of the Issuer,
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given to each Holder of Notes in the
manner set forth in Section 1.6, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Notes
(or their respective Predecessor Notes) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Issuer may make payment of any Defaulted Interest on the
Notes in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Issuer to the Note Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the Note
Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Payments in respect of the principal of and interest on the Notes
will be made at the Corporate Trust Office of the Note Trustee and subject to
any fiscal or other laws and regulations applicable thereof, at the specified
offices of any other Paying Agent appointed by the Issuer for such purpose.
Payment in respect of principal of and interest on any Payment Date with respect
to the Note will be made to the person in whose name such Note is registered on
the Regular Record Date immediately preceding the applicable Payment Date. All
payments of principal, premium, if any, and interest of Notes will be made by
U.S. Dollar check drawn on a bank in the United States of America and mailed to
such person's address registered with the Note Trustee or, in the case of a
Holder of at least $1,000,000 principal amount of Notes, by wire transfer to a
U.S. Dollar account maintained by the payee with a bank in the United States;
provided that the registered Holder so elects by giving written notice to such
effect designating such account that is received by the Note Trustee or a Paying
Agent no later than the Regular Record Date immediately preceding such Payment
Date. Unless such designation is revoked in writing, any such designation made
by such Holder with respect to such Notes will remain in effect with respect to
any future payments with respect to such Notes payable to such Holder. Principal
on the Notes, whether at maturity or upon redemption, will be payable upon
surrender of the Notes to the Corporate Trust Office of the Note Trustee or at
specified offices of any Paying Agent.
The Issuer hereby promises to pay to the Holder interest on the
unpaid principal amount of each Note of each Holder from the date of issuance to
but excluding the date such Note shall be paid in full. If any principal of the
Note or any other amount (including interest) payable hereunder is not paid in
full when due (whether at the stated due date, by acceleration or otherwise),
the Issuer hereby agrees to pay from time to time upon demand interest on the
amount past due at a rate per annum equal to the Investor Default Rate.
The Investor Default Rate shall be paid pursuant to the procedures
for payment of Defaulted Interest as set forth above.
SECTION 2.10 Persons Deemed Owners. Prior to due presentment of a
Note for registration of transfer, the Issuer, the Note Trustee and any agent of
the Issuer or the Note Trustee shall treat the Person in whose name such Note is
registered pursuant to Section 2.7 hereof as the owner of such Note for the
purpose of receiving payment of principal of and any premium and (subject to
Section 2.9 hereof) any interest on such Note and for all other purposes
whatsoever, whether or not such Note be
22
overdue, and neither the Issuer, the Note Trustee nor any agent of the Issuer or
the Note Trustee shall be affected by notice to the contrary.
SECTION 2.11 Cancellation; Purchase by the Issuer, the Sponsors or
the Shareholders or their Respective Affiliates.
(a) All Notes surrendered for payment, redemption, purchase,
repurchase, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Note
Trustee, be delivered to the Note Trustee and shall be promptly canceled by it.
The Issuer, the Sponsors, the Shareholders or their respective Affiliates may at
any time deliver to the Note Trustee for cancellation the Notes previously
authenticated and delivered hereunder which the Issuer, the Sponsors, the
Shareholders or their respective Affiliates may have acquired in any manner
whatsoever, and may deliver to the Note Trustee (or to any other Person for
delivery to the Note Trustee) for cancellation the Notes previously
authenticated hereunder which the Issuer has not issued and sold, and all Notes
so delivered shall be promptly canceled by the Note Trustee. No Notes shall be
authenticated in lieu of or in exchange for the Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. Notes submitted
to the Note Trustee for cancellation by Shareholders or Affiliates shall be
accompanied by an Officer's Certificate of the Issuer certifying that the Person
submitting such Notes is a Shareholder or an Affiliate of the Issuer, Sponsors
or the Shareholders. All canceled Notes held by the Note Trustee shall be
disposed of in accordance with the Note Trustee's procedures unless the Note
Trustee is otherwise directed by an Issuer Order to return such Notes to the
Issuer.
(b) The Issuer, the Sponsors, the Shareholders or their Affiliates
may at any time purchase any Notes in the open market or otherwise at any price
provided any Note so purchased by the Issuer must be surrendered to the Note
Trustee for cancellation in accordance with Section 2.11(a) and may not be
re-issued or re-sold.
SECTION 2.12 Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months, and, in the
case of an incomplete month, the number of days actually elapsed.
SECTION 2.13 Certification Forms.
(a) Whenever any certification is to be given by a beneficial owner
of an interest in a Restricted Global Note pursuant to Section 2.7(c)(v)(B)
hereof in connection with the transfer of a beneficial interest in a Restricted
Global Note to a Person who wishes to take delivery thereof in the form of a
beneficial interest in a Regulation S Global Note, such certification shall be
provided substantially in the form set forth in Exhibit B hereto, with only such
changes as shall be approved in writing by the Issuer.
(b) Whenever any certification is to be given by a beneficial owner
of an interest in a Restricted Global Note pursuant to Section 2.7(c)(v)(C)
hereof in connection with the transfer of a beneficial interest in a Restricted
Global Note to a Person who wishes to take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, such certification shall be
provided substantially in the form set forth in Exhibit C hereto, with only such
changes as shall be approved in writing by the Issuer.
(c) Whenever any certification is to be given by a beneficial owner
of an interest in a Regulation S Global Note pursuant to Section 2.7(c)(v)(D)
hereof in connection with the transfer of a beneficial interest in the
Regulation S Global Note to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Restricted Global Note, such certification
shall be provided
23
substantially in the form set forth in Exhibit D hereto, with only such changes
as may be approved in writing by the Issuer.
(d) Whenever any certification is to be given by the Holder of a
Restricted Note pursuant to Section 2.7(b) or 2.7(c)(v)(E) hereof in connection
with the transfer or exchange of a Restricted Note, such certification shall be
provided substantially in the form set forth in Exhibit E (which may be attached
to or set forth on the Restricted Note), with only such changes as may be
approved in writing by the Issuer.
SECTION 2.14 CUSIP Numbers. The Issuer in issuing the Notes may use
"CUSIP" or other identification numbers (if then generally in use), and, if so,
the Note Trustee shall use "CUSIP" or such other identification numbers in
notices of redemption as a convenience to Holders; provided that the Note
Trustee shall assume no responsibility for the accuracy of such numbers and any
such redemption shall not be affected by any defect in or omission of such
numbers.
SECTION 2.15 Taxes. Subject to the exceptions noted below and
Section 3.3 hereof, the Issuer shall make all payments of principal, premium, if
any, and interest in respect of the Notes and amounts payable to the Note
Trustee hereunder, and shall cause each Sponsor, as applicable, to make any
payments under the Sponsor Credit Support free and clear of, and without
withholding or deduction for or on account of, any and all tax, assessment or
other governmental charge imposed by Mexico or Russia (or any taxing authority
thereof or therein) (in each case, "Taxes"). If any additional or new Taxes are
so imposed after the date of this Indenture, the Issuer (in respect of payments
under the Notes) shall and shall cause the Sponsors (in respect of payments
under the Sponsor Credit Support) to pay such additional amounts ("Additional
Amounts") as will result in receipt by the Holders of such amounts as would have
been received by them had no such Taxes been imposed, except that no Additional
Amounts will be payable with respect to any particular Note for or on account
of:
(a) any Taxes that would not have been imposed but for (i) the
existence of any present or former connection between a Holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a
power over such Holder, if such Holder is an estate, a trust, a partnership or a
corporation) and the relevant taxing jurisdiction, other than merely the holding
or owning of such Note or receipt of interest, principal or premium, if any, in
respect of the Notes, or (ii) the presentation of a Note (where presentation is
required) for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later, except to the extent that Taxes would have
been imposed, and the holder of such Note would have been entitled to such
Additional Amounts, on presenting such Note for payment on the last day of such
30-day period;
(b) any Taxes that have been imposed by reason of the failure of a
Holder (or, if the Holder is not the beneficial owner of such Note, the
beneficial owner of such Note), (i) to comply with any certification,
identification, information or other reporting requirement concerning the
nationality, residence or identity of the Holder (or, if the Holder is not the
beneficial owner of such Note, the beneficial owner of such Note) or (ii) to
make and to deliver any declaration or similar claim (other than a claim for
refund of a tax, assessment or other governmental charge withheld by the Issuer
or a Sponsor), in each case if compliance is required by statute, regulation,
administrative practice or treaty of Mexico or Russia, as the case may be, or
any political subdivision or taxing authority within Mexico or Russia, as the
case may be, as a precondition to exemption from, or the reduction in the rate
of, deduction or withholding of such Taxes;
(c) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge;
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(d) any tax, duty, assessment or other governmental charge which is
payable otherwise than by withholding or deduction from payments of (or in
respect of) principal of, premium, if any, or interest on the Notes; or
(e) any combination of (a), (b), (c) or (d) above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, premium, if any, or any interest on, any Note or under the Sponsor
Credit Support to any Holder who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the relevant taxing jurisdiction (or any political
subdivision or taxing authority thereof or therein) to be included in the income
for tax purposes of a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or a beneficial owner who would not have been
entitled to the benefit of such Additional Amounts had it been the holder of
such Note or the beneficiary of the Sponsor Credit Support. On the Closing Date,
the Issuer shall furnish the Note Trustee and any Paying Agent that is not the
Note Trustee with an Officer's Certificate specifying the amount required to be
withheld from any payment of principal, premium, if any, and interest in respect
of the Notes and the Additional Amounts to be paid by the Issuer or any Sponsor.
Such certificate shall be deemed to be effective for any payments made on each
subsequent Payment Date, and the Issuer shall not be required to provide another
Officer's Certificate unless there has been any change in the amount of
Additional Amounts which are required to be paid, in which case an additional
Officer's Certificate will be provided at least 10 days prior to the Payment
Date on which such Additional Amounts are to be paid. The Issuer covenants to
indemnify the Note Trustee and any Paying Agent for, and to hold each of them
harmless against, any loss, liability or reasonable expense incurred without
negligence, bad faith or willful misconduct on the part of either the Note
Trustee or the Paying Agent, arising out of or in connection with actions taken
or omitted to be taken by either such party in reliance on any Officer's
Certificate furnished to either such party by the Issuer pursuant to this
Section or in reliance upon the absence of any such Officer's Certificate
required to be furnished by the Issuer which is not so furnished. The
obligations of the Issuer under this Section shall survive the resignation or
removal of the Note Trustee or Paying Agent, as the case may be, the payment of
the Notes, and the termination of this Indenture.
SECTION 2.16 Rights and Liabilities of the Issuer. All parties to
this Indenture acknowledge and agree that the Notes will be solely the corporate
obligations of the Issuer and, pursuant to the Sponsor Credit Support, the
Sponsors, and that none of them will have any recourse to any of the directors,
officers or employees of the Issuer or the Sponsors with respect to any claims,
losses, damages, liabilities, indemnities or other obligations in connection
with this Indenture, the Finance Documents, the Security Documents or any
transactions contemplated hereby or thereby.
SECTION 2.17 Allocation of Principal and Interest. Each payment of
principal of and premium, if any, and interest and Additional Amounts on each
Note shall be applied, first, to the payment of accrued but unpaid interest on
such Note (as well as any interest on overdue principal or, to the extent
permitted by applicable Law, overdue interest) to the date of such payment,
second, to the payment of the principal amount of and premium and Additional
Amounts, if any, on such Note then due (including any overdue principal)
thereunder and, third, the balance, if any, to the payment of the principal
amount of such Note remaining unpaid.
SECTION 2.18 Security for and Parity of Notes; Ranking. All Notes
issued and Outstanding hereunder rank on a parity with each other Note, and each
Note shall be secured equally and ratably by this Indenture and the Security
Documents with each other Note, without preference, priority or distinction of
any one thereof over any other by reason of difference in time of issuance or
otherwise, and each Note shall be entitled to the same benefits and security in
this Indenture and the Security
25
Documents as each other Note. The Notes shall rank at least pari passu with any
existing and future senior secured indebtedness of the Issuer and shall be
senior to all Subordinated Debt. The Issuer shall be responsible for the
continued maintenance, priority and perfection of such security interest.
ARTICLE 3
REDEMPTION OF NOTES
SECTION 3.1 Applicability of Article. Notes that are subject to
redemption or purchase before their Stated Maturity shall be redeemed or
purchased in accordance with their terms and in accordance with this Article 3.
SECTION 3.2 Mandatory Partial Redemption of Notes.
Subject to Section 3.01(b) of the Common Agreement, the Issuer shall
redeem such portion of the Outstanding Notes and in such amount as shall be
required to be redeemed pursuant to Section 3.01(b) of the Common Agreement,
less any amount paid to the holders of other Funded Debt, at a Redemption Price
equal to all unpaid principal thereof plus accrued and unpaid interest and
Additional Amounts, if any, thereon to the Redemption Date on a Redemption Date
corresponding to the date on which written instruction is received by the
Offshore Depositary Bank from the Intercreditor Agent pursuant to the Depositary
Agreement, to apply such amount to such redemption.
SECTION 3.3 Optional Redemption.
(a) Without the consent of any Holder, but subject to and in
accordance with the Common Agreement, Outstanding Notes may be redeemed by the
Issuer at any time in whole or in part, upon its giving irrevocable prior
written notice pursuant to Section 3.4 hereof, if as a result of any new laws or
any change or proposed change in, or amendment or proposed amendment to, or
expiration of, any existing laws, regulations or governmental policy having the
force of law or in the official interpretation or application thereof of (i)
Mexico (or of any political subdivision or taxing authority thereof or therein)
or any execution of or amendment to any treaty or treaties affecting taxation to
which Mexico (or any political subdivision or taxing authority thereof or
therein) is a party, with respect to payments on the Notes or under the Sponsor
Credit Support (other than the Energo Guarantee), or (ii) Russia (or of any
political subdivision or taxing authority thereof or therein) or any execution
of or amendment to any treaty or treaties affecting taxation to which Russia (or
any political subdivision or taxing authority thereof or therein) is a party,
with respect to payments under the Energo Guarantee, which change or amendment
becomes effective after the date of the original issuance of the Notes (in each
case, any such change or amendment, being herein referred to as a "Tax Law
Change"), the Issuer or any Sponsor (as the case may be) has become or will be
obligated to pay or withhold, Additional Amounts on any Payment Date (x) in
excess of Additional Amounts payable on the Notes or under the Sponsor Credit
Support (other than the Energo Guarantee) attributable to withholding taxes
imposed at a rate of 4.9% or (y) under the Energo Guarantee, provided, that if
the Tax Law Change whereby the Issuer or a Sponsor has become or will be
obligated to pay or withhold any such Additional Amounts relates to only a
portion of the Outstanding Notes, then only those Notes with respect to which
the Issuer or a Sponsor is obligated to pay such Additional Amounts (or, if the
specific Notes with respect to which such Additional Amounts are required to be
paid cannot be identified, Notes in an aggregate principal amount equal to the
Notes in respect of which such Additional Amounts are required to be paid) shall
be redeemed, such redemption to comply with the provisions of Section 3.01(a) of
the Common Agreement. The Notes redeemed pursuant to this Section 3.3(a) will be
redeemed or purchased at a Redemption Price equal to all unpaid principal
thereof plus accrued and unpaid interest and Additional Amounts, if any, thereon
to the Redemption Date
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(which Redemption Date will be determined by the Issuer subject to and in
accordance with Section 3.4 hereof and Section 3.01(a) of the Common Agreement).
Prior to the publication of any notice of redemption pursuant to
this provision, the Issuer will deliver to the Note Trustee an Officer's
Certificate stating that the Issuer is entitled to effect such redemption and
setting forth a statement of facts which certify that the conditions precedent
to the right of the Issuer so to redeem have occurred.
(b) Subject to Section 3.01(a) of the Common Agreement, the Issuer
shall have the right to redeem all or any portion of the Outstanding Notes, in
whole or in part, at a redemption price equal to the unpaid principal amount
thereof plus accrued and unpaid interest thereon to the Redemption Date
(including any Additional Amounts), plus a Make-Whole Premium (as defined
below).
"Make-Whole Premium" shall mean,
(A) an amount calculated by the Issuer as of the Redemption Date as
follows:
(i) the average life of the remaining scheduled payments of
principal in respect of the Outstanding Notes to be redeemed (the
"Remaining Average Life") shall be calculated as of the Redemption Date;
(ii) the yield to maturity shall be calculated for the United
States Treasury security having an average life equal to the Remaining
Average Life and trading in the secondary market at the price closest to
par (the "Primary Issue"); provided, however, that if no United States
Treasury security has an average life equal to the Remaining Average Life,
the yields (the "Other Yields") for the two maturities of the United
States Treasury securities having average lives most closely corresponding
to such Remaining Average Life and trading in the secondary market at the
price closest to par shall be calculated, and the yield to maturity for
the Primary Issue shall be the yield interpolated or extrapolated from
such Other Yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month;
(iii) the discounted net present value of the then remaining
scheduled payments of principal and interest (but excluding that portion
of any scheduled payment of interest that is actually due and paid on the
Redemption Date) in respect of Outstanding Notes to be redeemed shall be
calculated as of the Redemption Date using a discount factor equal to the
sum of (a) the yield to maturity of the Primary Issue, plus (b) 50 basis
points; and
(iv) the amount of premium in respect of Notes to be redeemed
shall be an amount equal to (a) the discounted net present value of such
Notes to be redeemed determined in accordance with clause (iii) above
minus (b) the unpaid principal amount of such Notes; provided, however,
that the premium shall not be less than zero; and,
(B) with respect to any Note to be redeemed, the amount obtained by
multiplying (i) the aggregate Make-Whole Premium determined as set forth above
by (ii) the ratio of the unpaid principal amount of such Note on the Redemption
Date to the aggregate unpaid principal amount of all Notes Outstanding on the
Redemption Date.
The Issuer shall make such calculations in good faith, which
calculations shall be conclusive in the absence of manifest error.
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SECTION 3.4 Delivery of Notices, Certificates and Opinions.
(a) To the extent possible, the Issuer shall promptly notify the
Note Trustee, by telephone, confirmed fax and mailed notice, of any event giving
rise or potentially giving rise to a mandatory or optional redemption as
specified in Section 3.2 or 3.3 hereof at least 30 days prior to such
redemption. Subject to the requirements set forth in clause (c) below, if the
Issuer elects to redeem the Notes pursuant to Section 3.3 hereof, the Issuer, at
least 30 days prior to the Redemption Date fixed by the Issuer, shall establish
the Redemption Date and deliver to the Note Trustee an Issuer Order specifying
the Redemption Date to be established hereunder and principal amount of Notes to
be redeemed.
(b) Except as otherwise specified in the terms of the Notes to be
redeemed, the Note Trustee shall promptly forward a copy of any notice received
by it pursuant to Section 3.4(a) hereof, at the expense of the Issuer, in the
manner provided in Section 1.6 hereof to the Holders to be redeemed at least 30
days but not more than 60 days prior to the Redemption Date, as the case may be.
All notices of redemption shall state, as applicable:
(i) the Redemption Date;
(ii) the Redemption Price, and accrued interest, if any,
specifying the Make-Whole Premium payable on redemption, if any;
(iii) if less than all of the Outstanding Notes are to be
redeemed, (i) the identification of the particular Notes to be redeemed,
or (ii) the portion of the principal amount of each Note to be redeemed,
and a statement that, on and after the Redemption Date, upon surrender of
such Note, a new Note or Notes in principal amount equal to the remaining
unpaid principal amount thereof will be issued;
(iv) that on the Redemption Date, interest thereon will cease
to accrue on and after said date; and
(v) the Place or Places of Payment where such Notes are to be
surrendered for payment of the amount in respect of such redemption.
(c) In the case of any redemption of Notes (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Notes or elsewhere in this Indenture or (ii) pursuant to an election of the
Issuer that is subject to a condition specified in the terms of such Notes, the
Issuer shall furnish the Note Trustee with an Officer's Certificate and Opinion
of Counsel addressed to the Note Trustee evidencing compliance with such
restriction or condition. If the Issuer shall not timely furnish such Officer's
Certificate and Opinion of Counsel in the case of any mandatory redemption
pursuant to Section 3.2 hereof, the Note Trustee may at the Issuer's expense
obtain such an Opinion of Counsel and such other opinions or certificates as
shall be necessary for such Opinion of Counsel.
SECTION 3.5 Redemption of and Payment on Notes. Pursuant to the
Noteholder Depositary Agreement, the Note Trustee agrees to instruct the
Noteholder Depositary Bank, with respect to all amounts received by the Note
Trustee from the Intercreditor Agent pursuant to Sections 3.01(b)(i), (ii) and
(iv) of the Common Agreement, to segregate and hold in trust all such amounts
and, upon the Note Trustee's instruction in accordance with Section 4.3 of the
Noteholder Depositary Agreement, transfer such amounts to the Note Trustee to be
applied to the redemption of the Notes on the Redemption Date. With respect to
all amounts received by the Note Trustee pursuant to Sections 3.01(a) and
(b)(iii) of the Common Agreement, the Note Trustee agrees to segregate and hold
in trust all such amounts and, subject to Section 4.3 of the Noteholder
Depositary Agreement, apply such amounts to the redemption of
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the Notes on the Redemption Date. Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such notice having been
satisfied, the Notes or portions thereof so to be redeemed shall, on the
Redemption Date become due and payable, and from and after such date such Notes
or portions thereof shall cease to bear interest. Upon surrender of any such
Note for redemption in accordance with the notice thereof received from the Note
Trustee pursuant to Section 3.4(b) hereof, the Note Trustee shall pay an amount
in respect of such Note or portion thereof as provided in such notice; provided,
however, that any payment of interest on the Note, the Stated Maturity of which
is on or prior to the Redemption Date, shall be payable to the Holder of such
Note or one or more Predecessor Notes, registered as such at the close of
business on the related Regular Record Date according to the terms of such Note
and subject to the provisions of Section 2.9 hereof.
SECTION 3.6 Notes Redeemed in Part.
(a) Any Note that is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with due endorsement by, or a
written instrument of transfer in form satisfactory to the Issuer and the Note
Trustee duly executed by, the Holder thereof or its attorney duly authorized in
writing), and the Issuer shall execute, and the Note Trustee shall authenticate
and make available for delivery to the Holder of such Note without service
charge, a new Note or Notes of any authorized denomination requested by such
Holder and of like tenor and in aggregate principal amount equal to and in
exchange for the remaining unpaid principal amount of the Note so surrendered.
(b) Except as otherwise specified in the terms of the Notes, if less
than all the Notes are to be redeemed pursuant to Section 3.2 or 3.3(b) hereof,
the particular Notes to be redeemed shall be selected by the Note Trustee pro
rata from the Outstanding Notes not previously called for redemption in whole.
The Note Trustee shall promptly notify the Issuer in writing of the Notes
selected for redemption and, in the case of the Notes to be redeemed in part,
the principal amount thereof to be redeemed.
(c) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the Notes shall relate,
in the case of the Notes redeemed or to be redeemed only in part, to the portion
of the principal amount of such Notes that has been or is to be redeemed.
SECTION 3.7 Cancellation of Notes. All Notes redeemed under any of
the provisions of this Indenture shall forthwith be canceled.
ARTICLE 4
CONCERNING THE NOTE TRUSTEE
SECTION 4.1 Duties and Responsibilities of Note Trustee; During
Default; Prior to Default. No provision of this Indenture shall be construed to
relieve the Note 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 with
respect to the Notes and after the curing or waiving of all such Events of
Default with respect to the Notes which may have occurred:
(i) the duties and obligations of the Note Trustee with
respect to the Notes shall be determined solely by the express
provisions of this Indenture and the other Financing Documents to
which it is a party, and the Note Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Indenture and the other Financing
Documents to which it is a party, and no implied
29
covenants or obligations shall be read into this Indenture and the
other Financing Documents against the Note Trustee; and
(ii) in the absence of bad faith on the part of the Note
Trustee, the Note 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 Note 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 Note Trustee, the Note Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical computations or other facts
stated therein);
(b) the Note Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Note Trustee, unless it shall be proved that the Note
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Note 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 of a majority in aggregate principal amount
of the Outstanding Notes relating to the time, method and place of
conducting any proceeding for any remedy available to the Note Trustee, or
exercising any trust or power conferred upon the Note Trustee, under this
Indenture, provided that such action is otherwise permissible under the
Common Agreement and the Intercreditor Agreement.
In case an Event of Default with respect to the Notes has occurred
(which has not been cured or waived) the Note Trustee shall, subject to the
Common Agreement and the Intercreditor Agreement, 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 person would exercise or use under the
circumstances in the conduct of his or her own affairs.
Except as otherwise specifically provided herein, (i) all references
in this Indenture to the Note Trustee shall be deemed to refer to the Note
Trustee in its capacity as Note Trustee and in its capacity as Security
Registrar and 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 Note Trustee shall be deemed to apply with the same force and
effect to the Note Trustee acting in its capacity as Security Registrar and
Paying Agent.
SECTION 4.2 Certain Rights and Duties of Note Trustee. Subject to
Section 4.1 hereof, in performing its duties and exercising its powers hereunder
and under each of the other Financing Documents to which it is a party:
(a) The Note Trustee may conclusively rely and shall be protected in
acting, or refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties or with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
from Holders holding a sufficient percentage of Notes to give such direction as
permitted by this Indenture.
(b) Any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an instrument signed in the name of
the Issuer by an Authorized Representative (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the
30
Board of Directors may be evidenced to the Note Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Issuer.
(c) The Note Trustee may consult with counsel of its choice and the
advice of counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(d) The Note Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture and may refuse to perform
any duty or exercise any such rights or powers unless it shall have been offered
security or indemnity reasonably satisfactory to it against the costs, expenses
and liabilities (including attorneys' fees) which may be incurred therein or
thereby.
(e) The Note Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture or with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it from Holders holding a
sufficient percentage of Notes to give such direction as permitted by this
Indenture absent misapplication of monies by the Note Trustee or gross
negligence or willful misconduct on the part of the Note Trustee.
(f) The Note Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture or other paper or document reasonably believed by it
to be genuine unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Notes then Outstanding;
provided, that, if the payment within a reasonable time to the Note Trustee of
the costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the reasonable opinion of the Note Trustee, not
reasonably assured to the Note Trustee by the security afforded to it by the
terms of this Indenture, the Note Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to so proceeding. The
reasonable expense of every such investigation shall be paid by the Issuer or,
if paid by the Note Trustee, shall be repaid by the Issuer upon demand.
(g) The Note Trustee may execute any of the trusts or powers
hereunder or under the other Financing Documents to which it is a party
hereunder or perform any duties hereunder or thereunder either directly or by or
through agents or attorneys, accountants, appraisers or other experts or
advisers of its selection as it may reasonably require for the purpose of
determining and discharging its rights and duties hereunder or thereunder and
shall not be responsible for any act or omission on the part of any of them
appointed with due care by the Note Trustee hereunder or thereunder.
(h) If an Event of Default known to the Note Trustee has occurred
and is continuing, the Note Trustee shall, subject to the Common Agreement and
the Intercreditor Agreement, exercise such of the rights and powers vested in it
by this Indenture and, subject to the Common Agreement and the Intercreditor
Agreement, use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(i) Every provision of this Indenture that in any way relates to the
Note Trustee is subject to this Section 4.2.
(j) The rights, privileges, protections, immunities and benefits
given to the Note Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by the Note Trustee in
each of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
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(k) The Note Trustee makes no representations as to the nature of
title nor value of the Accounts hereunder nor as to the title thereto, nor as to
the rights and interests granted or the security afforded by this Indenture or
as to the validity, execution (except by itself), enforceability, legality or
sufficiency of this Indenture and the Note Trustee shall incur no liability or
responsibility in respect of any such matters.
(l) Any Person that shall be designated as a duly authorized
representative to act in connection with any matters pertaining to this
Indenture or the Collateral shall present to the Note Trustee such documents,
including opinions of counsel, as the Note Trustee may reasonably request, in
order to demonstrate to the Note Trustee the authority of such Person to so act.
(m) Anything in this Indenture to the contrary notwithstanding, in
no event shall the Note Trustee be liable under or in connection with this
Indenture for indirect, special, incidental, punitive or consequential losses or
damages of any kind whatsoever, including but not limited to lost profits,
whether or not foreseeable, even if the Note Trustee has been advised of the
possibility thereof and regardless of the form of action in which such damages
are sought.
SECTION 4.3 Note Trustee Not Responsible for Recitals, Etc. The
recitals contained herein and in the Notes, except the Note Trustee's
certificate of authentication, shall be taken as the statements of the Issuer,
as the case may be, and the Note Trustee assumes no responsibility for the
correctness of the same. The Note Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Notes or of the offering
materials used in connection with the offering for sale or sale of the Notes.
The Note Trustee shall not be accountable for the use or application by the
Issuer of any of the Notes or of the proceeds of such Notes.
SECTION 4.4 Note Trustee and Others May Hold Notes. The Note Trustee
or any Paying Agent or Security Registrar or any other Authorized Agent of the
Note Trustee, or any Affiliate thereof, in its individual or any other capacity,
may become the owner or pledgee of Notes and may otherwise deal with the Issuer
or any other obligor on the Notes with the same rights it would have if it were
not Note Trustee, Paying Agent, Security Registrar or such other Authorized
Agent.
SECTION 4.5 Monies Held by Note Trustee or Paying Agent. All monies
received by the Note Trustee or any Paying Agent shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law.
SECTION 4.6 [Reserved]
SECTION 4.7 Right of Note Trustee to Rely on Officer's Certificates
and Opinions of Counsel. Before the Note Trustee acts or refrains from acting
with respect to any matter contemplated by this Indenture, it may require an
Officer's Certificate or an Opinion of Counsel addressed to it, which shall
conform to the provisions of Section 1.3 hereof. The Note Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion.
SECTION 4.8 Persons Eligible for Appointment As Note Trustee. The
Note Trustee hereunder shall at all times be a corporation which is eligible
pursuant to the Trust Indenture Act, having a combined capital and surplus of at
least US$100,000,000. If such corporation publishes reports of condition at
least annually, then, for the purposes of this Section 4.8, 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
32
report of condition so published. In case at any time the Note Trustee shall
cease to be eligible in accordance with this Section 4.8, the Note Trustee shall
resign immediately in the manner and with the effect specified in Section 4.9
hereof. The Note Trustee shall comply with Section 310(b) of the Trust Indenture
Act; provided that there shall be excluded from the operation of Section 3(b)(1)
of the Trust Indenture Act any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
Section 3(b)(1) of the Trust Indenture Act are met.
SECTION 4.9 Resignation and Removal of Note Trustee; Appointment of
Successor.
(a) The Note Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice to the Issuer and by
giving notice of such resignation to the Holders in the manner provided in
Section 1.6 hereof. Upon receiving such notice of resignation, the Issuer shall
promptly appoint a successor trustee or trustees by written instrument executed
by order of the Board of Directors, one copy of which instrument shall be
delivered to each of the resigning trustee and the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Holder who has been a bona fide Holder for at least
six months may, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Note Trustee shall cease to be eligible under Section
4.8 hereof and shall fail to resign after written request therefor by the
Issuer or by any Holder, or
(ii) the Note Trustee shall become incapable of acting, or
shall be adjudged bankrupt or insolvent, or a receiver of the Note Trustee
or of its property shall be appointed, or any public officer shall take
charge or control of the Note Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Note Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to each of the Note Trustee so removed and the successor Note Trustee,
or, any Holder who has been a bona fide Holder 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 Note Trustee and the appointment
of a successor Note Trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Note Trustee and appoint a
successor Note Trustee.
(c) The Holders of a majority in aggregate principal amount of the
Notes at the time Outstanding may at any time remove the Note Trustee and
appoint a successor Note Trustee by delivering to the Note Trustee so removed,
the successor Note Trustee so appointed and the Issuer the evidence provided for
in Section 6.1 hereof of the action taken by the Holders.
(d) Any resignation or removal of the Note Trustee and any
appointment of a successor Note Trustee pursuant to this Section 4.9 shall
become effective only upon acceptance of appointment by the successor Note
Trustee as provided in Section 4.10 hereof and payment to the predecessor Note
Trustee of all of its fees and expenses, including fees and expenses of counsel.
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SECTION 4.10 Acceptance of Appointment by Successor Note Trustee.
Any successor Note Trustee appointed under Section 4.8 hereof shall execute,
acknowledge and deliver to the Issuer and to its predecessor Note Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Note Trustee shall become effective and such
successor Note Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts, duties and obligations of its
predecessor Note Trustee hereunder, with like effect as if originally named as
Note Trustee herein; but, nevertheless, on the written request of the Issuer or
of the successor Note Trustee, the Note Trustee ceasing to act shall, upon
payment of any such amounts then due it pursuant to the provisions of Section
4.6 hereof, execute and deliver an instrument transferring to such successor
Note Trustee all the rights, powers and trusts of the Note Trustee so ceasing to
act. Upon request of any such successor Note Trustee, the Issuer shall execute
any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor Note Trustee all such rights and powers (subject to
surviving rights of indemnity).
Upon acceptance of appointment by a successor Note Trustee, the
Issuer shall give notice of the succession of such Note Trustee hereunder to the
Holders in the manner provided in Section 1.6 hereof. If the Issuer fails to
give such notice within 10 days after acceptance of appointment by the successor
Note Trustee, the successor Note Trustee shall cause such notice to be given at
the expense of the Issuer.
SECTION 4.11 Merger, Conversion or Consolidation of Note Trustee.
Any Person into which the Note 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 Note Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the Note
Trustee, shall be the successor of the Note Trustee and any agency hereunder
served by the Note Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such successor Note Trustee shall be eligible under the provisions of Section
4.8 hereof and Section 310(a) of the Trust Indenture Act.
SECTION 4.12 Maintenance of Offices and Agencies.
(a) There shall at all times be maintained in the Borough of
Manhattan, The City of New York, and in such other Places of Payment, if any, as
shall be specified in the terms established for the Notes, an office or agency
where Notes may be presented or surrendered for registration of transfer or
exchange and for payment of principal, premium and Additional Amounts, if any,
and interest, and where notices and demands to or upon the Note Trustee in
respect of such Notes or this Indenture may be served. Such office or agency
shall be initially at the Corporate Trust Office. Written notice of the location
of each of such other office or agency and of any change of location thereof
shall be given by the Note Trustee to the Issuer in the manner specified in
Section 1.5 hereof and to the Holders in the manner specified in Section 1.6
hereof. In the event that no such office or agency shall be maintained or no
such notice of location or of change of location shall be given, presentations,
surrenders and demands may be made and notices may be served at the Corporate
Trust Office.
(b) There shall at all times be a Security Registrar and a Paying
Agent hereunder. Any Paying Agent (other than the Note Trustee) from time to
time appointed hereunder shall execute and deliver to the Note Trustee an
instrument in which said Paying Agent shall agree with the Note Trustee, subject
to the provisions of this Section 4.12, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of,
premium and Additional Amounts, if any, and 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;
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(ii) give the Note Trustee within five days thereafter notice
of any default by any obligor upon the Notes in the making of any such
payment of principal of, premium and Additional Amounts, if any, or
interest; and
(iii) at any time during the continuance of any such default,
upon the written request of the Note Trustee, forthwith pay to the Note
Trustee all sums so held in trust by such Paying Agent.
Notwithstanding any other provision of this Indenture, any payment required to
be made to or received or held by the Note Trustee may, to the extent authorized
by written instructions of the Note Trustee, be made to or received or held by a
Paying Agent in the Borough of Manhattan, The City of New York, for the account
of the Note Trustee.
The Note Trustee at its office specified in the first paragraph of
this Indenture, is hereby appointed as Paying Agent hereunder.
(c) At any time when the Notes remain Outstanding, the Note Trustee
may appoint an Authenticating Agent or Agents with respect to the Notes which
shall be authorized to act on behalf of the Note Trustee to authenticate Notes
issued upon original issuance, exchange, registration of transfer or partial
redemption thereof or pursuant to Section 2.8 hereof, and Notes so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Note Trustee hereunder
(it being understood that wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Note Trustee or the Note Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Note Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Note Trustee
by an Authenticating Agent). If an appointment of an Authenticating Agent shall
be made pursuant to this Section 4.12(c), the Notes may have endorsed thereon,
in addition to the Note Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This Note is one of the Notes referred to in the within-mentioned
Indenture.
Citibank, N.A.,
as Note Trustee
By____________________________
Authenticating Agent
By____________________________
Authorized Signatory
(d) Any Authorized Agent shall be a bank or trust company, shall be
a Person organized and doing business under the laws of the United States or any
State thereof, with a combined capital and surplus of at least US$50,000,000,
and shall be authorized under such laws to exercise corporate trust powers,
subject to supervision by United States federal or state authorities. If such
Authorized Agent publishes reports of its condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 4.12, the combined capital and
surplus of such Authorized Agent shall be deemed to be its combined capital and
surplus as set forth in its
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most recent report of condition so published. If at any time an Authorized Agent
shall cease to be eligible in accordance with the provisions of this Section
4.12, such Authorized Agent shall resign immediately in the manner and with the
effect specified in this Section 4.12.
(e) Any Person into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, consolidation or conversion to which any Authorized Agent shall be a
party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor Person is otherwise eligible under this Section 4.12, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor Person.
(f) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Note Trustee and the Issuer. The Issuer may, and at
the request of the Note Trustee shall, at any time, terminate the agency of any
Authorized Agent by giving written notice of such termination to the Authorized
Agent and to the Note Trustee. Upon the resignation or termination of an
Authorized Agent or in case at any time any such Authorized Agent shall cease to
be eligible under this Section 4.12 (when, in either case, no other Authorized
Agent performing the functions of such Authorized Agent shall have been
appointed), the Issuer shall promptly appoint one or more qualified successor
Authorized Agents approved by the Note Trustee to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated or who
shall have ceased to be eligible under this Section 4.12. The Issuer shall give
written notice of any such appointment to all Holders pursuant to Section 1.6
hereof. If the Issuer fails to give such notice within 10 days after approval by
the Note Trustee of appointment by the Issuer of the successor Authorized Agent,
the Note Trustee shall cause such notice to be given at the expense of the
Issuer.
(g) Each Paying Agent shall comply with all applicable withholding,
information reporting and back-up withholding tax requirements under the Code
and the Treasury Regulations issued thereunder in respect of any payment on, or
in respect of, a Note.
SECTION 4.13 Note Trustee Risk. None of the provisions contained in
this Indenture shall require the Note 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 it shall have
reasonable ground for believing that the repayment of such funds or liability is
not reasonably assured to it. Whether or not expressly provided herein, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Note Trustee shall be subject to Section 4.2
hereof and, if the Notes are registered pursuant to the Securities Act, the
requirements of the Trust Indenture Act.
SECTION 4.14 Limitation on Duty of Note Trustee in Respect of
Collateral.
(a) Beyond the exercise of reasonable care in the custody thereof,
the Note Trustee shall have no duty as to any Collateral in its possession or
control or in the possession or control of any agent or bailee or any income
thereon or as to preservation of rights against prior parties or any other
rights pertaining thereto and the Note Trustee shall not be responsible for
filing any financing or continuation statements or recording any documents or
instruments in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any security interest in the Collateral. The Note
Trustee shall be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property and shall not be
liable or responsible for any loss or diminution in the value of any of the
Collateral, by reason of the act or omission of any carrier, forwarding agency
or other agent or bailee selected by the Trustee in good faith.
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(b) The Note Trustee shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity, perfection,
priority or enforceability of the Liens in any of the Collateral, whether
impaired by operation of law or by reason of any of any action or omission to
act on its part hereunder, except to the extent such action or omission
constitutes negligence, bad faith or wilful misconduct on the part of the Note
Trustee, for the validity or sufficiency of the Collateral or any Indenture or
assignment contained therein, for the validity of title to the Collateral, for
insuring the Collateral or for the payment of taxes, charges, assessments or
Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
SECTION 4.15 Assignment of Rights, No Assumption of Duties. Anything
herein contained to the contrary notwithstanding, (a) the Issuer shall remain
liable under each of the Financing Documents to which it is a party to the
extent set forth therein to perform all of its duties and obligations
thereunder, (b) the exercise by the Note Trustee of any of its rights, remedies
or powers under any Financing Documents shall not release the Issuer from any of
its duties or obligations under each of the Financing Documents to which it is a
party, and (c) the Note Trustee shall not be obligated to perform any of the
obligations or duties of the Issuer thereunder or, except as expressly provided
herein with respect to the Note Trustee, to take any action to collect or
enforce any claim for payment assigned hereunder or otherwise.
SECTION 4.16 Concerning the Note Trustee and the Collateral. The
Note Trustee shall have no duty to act outside of the United States in respect
of any Collateral located in the jurisdiction other than the United States
("Foreign Collateral") but shall at the specific request of a majority in
aggregate principal amount of the Notes ("Noteholder Request"), appoint a Person
or Persons to act on behalf of the Holders with respect to the Foreign
Collateral and direct the Collateral Agents in accordance with the Noteholder
Request.
Both before and after an Event of Default, the Note Trustee shall
have no duty to supervise or monitor any Collateral Agent or the Note Depositary
Bank or its performance, and no liability for any acts or omissions of any
Collateral Agent or the Note Depositary Bank.
SECTION 4.17 Reports by Trustee. The Note Trustee shall comply with
Section 313(a) of the Trust Indenture Act. The Issuer agrees to notify the Note
Trustee if the Notes become listed on any stock exchange and any subsequent
delisting thereof.
SECTION 4.18 Appointment of Co-Trustee. It is the purpose of this
Indenture that there shall be no violation of any law of any jurisdiction
denying or restricting the right of banking corporations or associations to
transact business as trustee in such jurisdiction. It is recognized that in case
of litigation under this Indenture, and in particular in case of the enforcement
thereof on default, or in case the Note Trustee deems that by reason of any
present or future law of any jurisdiction it may not exercise any of the powers,
rights or remedies herein granted to the Note Trustee or hold title to the
properties, in trust, as herein granted or take any action which may be
desirable or necessary in connection therewith, it may be necessary that the
Note Trustee appoint an individual or institution as a separate trustee or
co-trustee. As long as no Default or Event of Default has occurred and is
continuing, any such appointment pursuant to this Section 4.18 shall be subject
to the consent of the Issuer, which consent is not to be unreasonably withheld
and, in any event, shall be deemed to have been given by the Issuer if the
Issuer fails to communicate to the Note Trustee in writing its objection to such
proposed appointment within five Business Days of receiving notice thereof from
the Note Trustee. The following provisions of this Section are adopted to these
ends.
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In the event that the Note Trustee appoints an additional individual
or institution as a separate trustee or co-trustee, each and every remedy,
power, right, claim, demand, cause of action, immunity, estate, title, interest
and lien expressed or intended by this Indenture to be exercised by or vested in
or conveyed to the Note Trustee with respect thereto shall be exercisable by and
vest in such separate trustee or co-trustee but only to the extent necessary to
enable such separate trustee or co-trustee to exercise such powers, rights and
remedies, and only to the extent that the Note Trustee by the laws of any
jurisdiction is incapable of exercising such powers, rights and remedies and
every covenant and obligation necessary to the exercise thereof by such separate
trustee or co-trustee shall run to and be enforceable by either of them.
Should any instrument in writing from the Issuer be required by the
separate trustee or co-trustee so appointed by the Note Trustee for more fully
and certainly vesting in and confirming to him or it such properties, rights,
powers, trusts, duties and obligations, any and all such instruments in writing
shall, on request, be executed, acknowledged and delivered by the Issuer;
provided, that if an Event of Default shall have occurred and be continuing, if
the Issuer does not execute any such instrument within fifteen (15) days after
request therefor, the Note Trustee shall be empowered as an attorney-in-fact for
the Issuer to execute any such instrument in the Issuer's name and stead. In
case any separate trustee or co-trustee or a successor to either shall die,
become incapable of acting, resign or be removed, all the estates, properties,
rights, powers, trusts, duties and obligations of such separate trustee or
co-trustee, so far as permitted by law, shall vest in and be exercised by the
Note Trustee until the appointment of a new trustee or successor to such
separate trustee or co-trustee.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights and powers, conferred or imposed upon the Note
Trustee shall be conferred or imposed upon and may be
exercised or performed by such separate trustee or co-trustee;
and
(ii) No trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder.
Any notice, request or other writing given to the Note Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Section 4.18.
Any separate trustee or co-trustee may at any time appoint the Note
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Note Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE 5
COVENANTS; DEFAULTS, REMEDIES
SECTION 5.1 Covenants of the Issuer.
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(a) The Issuer covenants and agrees for the benefit of the Holders
that so long as any Note is outstanding it shall duly perform, observe and
comply with all of its obligations, covenants and agreements set forth in the
Common Agreement and the other Financing Documents all of which, together with
the schedules related thereto (as so in effect) are hereby incorporated by
reference, mutatis mutandis.
(b) The Issuer covenants and agrees that it shall, during any period
in which it is not subject to Section 13(a), 13(c) or 15(d) under the Exchange
Act, make available to any Holder in connection with any sale thereof and any
prospective purchaser of the Notes from such Holder, in each case upon request,
the information specified in, and meeting the requirements of, Rule 144A(d)(4)
under the Securities Act.
SECTION 5.2 Events of Default. Upon any Event of Default, Holders
shall have such rights as set forth in the Common Agreement, the Intercreditor
Agreement and the Noteholder Depositary Agreement. Unless the Common Agreement
or the Intercreditor Agreement otherwise specifies and subject to Section 5.10
hereof and to the terms and conditions of the Intercreditor Agreement, Holders
of not less than a majority in aggregate principal amount of Notes then
Outstanding may, directly or through the Note Trustee, exercise any rights of
Holders pursuant to the Indenture and the Common Agreement; provided, however,
that in the case of any Bankruptcy Event of Default, all Notes shall, without
any notice to the Issuer or the Note Trustee or any other act by any Holder,
become immediately due and payable and the Note Trustee shall notify the
Collateral Agents and the Intercreditor Agent of such acceleration and
immediately upon receipt of notice (or otherwise having actual knowledge) of the
occurrence of any Bankruptcy Event of Default the Collateral Agents (and the
Note Trustee with respect to the Note Collateral) and the Intercreditor Agent,
as applicable, shall engage in an Enforcement Action (as defined in the
Intercreditor Agreement) and exercise all available remedies as instructed
pursuant to the Intercreditor Agreement. Notwithstanding anything to the
contrary herein, the exercise of any remedies following a declaration of
acceleration is subject to and limited to the terms and conditions of the Common
Agreement and the Intercreditor Agreement.
SECTION 5.3 Collection of Indebtedness by Note Trustee; Note Trustee
May Prove Debt. The Issuer covenants that in addition to any amounts payable
pursuant to any enforcement action pursuant to Section 7.03 of the Common
Agreement, the Issuer shall pay to the Note Trustee such further amount as shall
be sufficient to cover the reasonable costs and expenses of collection,
including reasonable compensation to the Note Trustee and each predecessor Note
Trustee, their respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Note Trustee and each
predecessor Note Trustee, as provided in Section 4.6 hereof, except as a result
of its gross negligence or bad faith.
Until demand is made by the Note Trustee pursuant to the Common
Agreement, upon the taking of any enforcement action pursuant to Section 7.03 of
the Common Agreement, the Issuer may pay the principal of and interest on the
Notes (including Additional Amounts) to the registered Holders thereof, whether
or not the principal of and interest on such Notes (including Additional
Amounts) be overdue.
All rights of action and of asserting claims under this Indenture or
under any of the Notes may be enforced by the Note Trustee without the
possession of any of the Notes or the production thereof in any trial or other
proceedings relating thereto, and any such action or proceedings instituted by
the Note Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Note Trustee, each predecessor Note
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders in respect of which such action was taken.
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In any proceedings brought by the Note Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Note Trustee shall be a party), the Note Trustee shall be held to
represent all the Holders in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Notes parties to any such
proceedings.
SECTION 5.4 Application of Proceeds. Any moneys collected by the
Note Trustee pursuant to this Article, the Common Agreement and the
Intercreditor Agreement in respect of the Notes shall be applied in the
following order at the date or dates fixed by the Note Trustee and, in case of
the distribution of such moneys on account of principal (including Additional
Amounts), upon presentation of the several Notes in respect of which moneys have
been collected and stamping (or otherwise noting) thereon the payment, or
issuing Notes in reduced principal amounts in exchange for the presented Notes
if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses in respect of which
moneys have been collected, including all fees and expenses and
liabilities incurred, and all advances made, by the Note Trustee and each
predecessor Note Trustee, as provided in Section 4.6 hereof, except as a
result of gross negligence or willful misconduct, and all other amounts
due to the Note Trustee or any predecessor Note Trustee pursuant to
Section 4.6 hereof;
SECOND: In case the principal of the Notes shall not have become and
be then due and payable, to the payment of overdue interest (including
Additional Amounts), with interest (to the extent that such interest has
been collected by the Note Trustee) upon the overdue installments of
interest (including Additional Amounts), as well as, to the payment of an
amount equal to the Make-Whole Premium, if any, due and, as well as
payable as of the date of such distribution, such payments to be made
ratably to the Persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Notes shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon such Notes for principal and interest (including
Additional Amounts), with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Note Trustee) upon
overdue installments of interest (including Additional Amounts) at the
rate or rates of interest specified in such Notes; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid
upon such Notes, then to the payment of such principal and interest
(including Additional Amounts), without preference or priority of
principal over interest (including Additional Amounts), or of interest
over principal, or of any installment of interest over any other
installment of interest, or of the Note over any other Note, ratably to
the aggregate of such principal and accrued and unpaid interest (including
Additional Amounts); and
FOURTH: To the payment of the remainder, if any, to the Issuer, in
accordance with the Financing Documents, or to any other Person lawfully
entitled thereto.
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SECTION 5.5 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Note Trustee may in its
discretion (but is not required to), but subject to the Common Agreement and the
Intercreditor Agreement, proceed to protect and enforce the rights vested in it
by this Indenture and the Common Agreement and the Intercreditor Agreement by
such appropriate judicial proceedings as the Note Trustee shall deem most
effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture or to enforce any other legal or equitable
right vested in the Note Trustee by this Indenture or by law.
SECTION 5.6 Restoration of Rights on Abandonment of Proceedings. In
case the Note Trustee shall have proceeded to enforce any right under this
Indenture in accordance with the Common Agreement and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Note Trustee, then and in every such case the Issuer
and the Note Trustee shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Issuer, the
Note Trustee and the Holders shall continue as though no such proceedings had
been taken.
SECTION 5.7 Limitations on Suits by Holders. Subject to Section 5.8
hereof and, in all cases, the terms and conditions of the Common Agreement and
the Intercreditor Agreement, no Holder of the Note shall have any right by
virtue or by availing itself of any provision of this Indenture or of the Notes
to institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder or under the Notes, unless such
Holder previously shall have given to the Note Trustee written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than a majority in aggregate principal amount of the Notes
then Outstanding shall have made written request upon the Note Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Note Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby and the Note Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Note Trustee pursuant to Section 5.10, it being understood and
intended, and being expressly covenanted by the taker and Holder of every Note
with every other taker and Holder and the Note Trustee, that no one or more
Holders shall have any right in any manner whatever by virtue or by availing
itself of any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder of Notes, or to obtain or seek to obtain priority
over or preference to any other Holder or to enforce any right under this
Indenture or under the Notes, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders. For the protection and
enforcement of the provisions of this Section, each and every Holder and the
Note Trustee shall be entitled, subject to Section 5.8 hereof, to such relief as
can be given either at law or in equity.
SECTION 5.8 Inconsistency with Common Agreement or Intercreditor
Agreement. Each Holder of a Note acknowledges that the Note Trustee has entered
into the Common Agreement, the Intercreditor Agreement and the other Financing
Documents to which it is a party on behalf of the Holders and all future
Holders. Notwithstanding anything to the contrary expressed or implied herein,
all rights, powers and remedies available to the Note Trustee and the Holders,
and all future Holders, shall be subject to the Common Agreement, the
Intercreditor Agreement and the other Financing Documents to which it is a
party. In the event of any conflict or inconsistency between the terms and
provisions of this Indenture and the Common Agreement or the Intercreditor
Agreement, the terms of the Common Agreement or the Intercreditor Agreement, as
applicable, shall govern and control.
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SECTION 5.9 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.7 and 5.8 hereof, no right or
remedy herein conferred upon or reserved to the Note Trustee or to the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Note Trustee or of any Holder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.7 hereof and Section 5.8 hereof, every power and remedy given by this
Indenture or by law to the Note Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Note Trustee or
by the Holders.
SECTION 5.10 Control by Holders. The Holders (which term shall
include, for purposes of voting or any other request, demand, authorization,
direction, notice, consent, waiver or other action to be taken pursuant to this
Section 5.10 or any other provision hereof, any owner of a beneficial interest
in a Global Note pursuant to the rules and procedures of the Depositary with
respect to any transfer or exchange of or for beneficial interests in any Global
Note) of a majority in aggregate principal amount of the Notes at the time
Outstanding shall, subject to the Common Agreement and the Intercreditor
Agreement, have the right to direct the time, method, and place of conducting
any proceeding for any remedy available to the Note Trustee, or exercising any
trust or power conferred on the Note Trustee with respect to the Notes by this
Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 4.1 hereof) the Note Trustee shall
have the right to decline to follow any such direction if the Note Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Note Trustee in good faith by
action of its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Note Trustee shall determine that
the action or proceedings so directed would involve the Note Trustee in personal
liability or if the Note Trustee in good faith shall so determine that the
actions or forbearance specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders not joining in the giving of said
direction, it being understood that (subject to Section 4.1 hereof) the Note
Trustee shall have no duty to ascertain whether or not such actions or
forbearance are unduly prejudicial to such Holders. Notwithstanding the
foregoing, with respect to any action taken by the Holders (including with
respect to consultations, polls and voting conducted under or in respect of the
Common Agreement and the Intercreditor Agreement), the Note Trustee shall vote,
for the purposes of the Common Agreement and the Intercreditor Agreement, both
for and against such action, the actual amount of Notes Outstanding that voted
for or against such action, and shall exercise any vote with respect to the
Notes Outstanding that have not so voted in accordance with the votes of the
majority of the actual amount of Notes Outstanding that have voted.
Subject to Section 5.8 hereof, nothing in this Indenture shall impair
the right of the Note Trustee in its discretion to take any action deemed proper
by the Note Trustee and which is not inconsistent with such direction or
directions by Holders.
SECTION 5.11 Waiver of Past Event of Default or Defaults. Subject to
the terms of the Common Agreement and the Intercreditor Agreement, prior to a
declaration of the acceleration of the maturity of the Notes, the Holders of a
majority (or of such lesser percentage as may act at a meeting of Holders) in
aggregate principal amount of the Notes at the time Outstanding may on behalf of
the Holders of all the Notes waive any past default, Event of Default or
Default, except a default in respect of a
42
covenant or provision hereof that cannot be modified or amended without the
consent of each Holder affected as provided in Section 8.2 hereof. In case of
any such waiver, the Issuer, the Note Trustee and the Holders shall be restored
to their former positions and rights hereunder, respectively. Subject to the
terms of the Common Agreement and the Intercreditor Agreement, the Majority
Creditors have the right on behalf of the Creditors (including the Holders) to
consent to the waiver of certain Defaults and Events of Default.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Default or Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default, Default or Event of Default or impair any right
consequent thereon.
SECTION 5.12 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Note Trustee for any action taken, suffered or omitted by it as Note
Trustee, the filing by any party litigant in such suit other than the Note
Trustee of an undertaking to pay the costs of such suit and that such court may
in its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, the provisions of this Section shall not apply to any suit instituted
by the Note Trustee, to any suit instituted by any Holder or group of Holders
holding in aggregate more than 10% in principal amount of Outstanding Notes, or
any suit instituted by a Holder for enforcement of payment of the principal of
premium, if any, or interest on, the Note on or after the date such amount is
required to be paid.
SECTION 5.13 Payments after an Event of Default. Upon the
occurrence of an Event of Default with respect to the Notes and any subsequent
declaration by the Note Trustee, any Collateral Agent or the Intercreditor
Agent, pursuant to this Indenture, the Common Agreement or the Intercreditor
Agreement that the principal amount of all the Notes is due and payable
immediately, the Note Trustee, subject to and in accordance with the Common
Agreement and the Intercreditor Agreement, may by notice in writing: (a) to the
Issuer and any Paying Agent, require each Paying Agent to deliver all Notes and
all moneys, documents and records held by them with respect to the Notes to the
Note Trustee or as the Note Trustee otherwise directs in such notice; and (b)
require any Paying Agent to act as agent of the Note Trustee under this
Indenture and the Notes, and thereafter to hold all Notes and all moneys,
documents and records held by it in respect to such Notes to the order of the
Note Trustee.
SECTION 5.14 Actions to be taken by Note Trustee under Common
Agreement and the Intercreditor Agreement. Notwithstanding any other provision
contained herein to the contrary, in the event that any consent, approval,
waiver or other direction of the Creditors is sought by any Collateral Agent or
the Intercreditor Agent pursuant to the Common Agreement or the Intercreditor
Agreement, as the case may be, and the matter with respect to which such
consent, approval, waiver or direction is sought is a matter that the Note
Trustee is entitled to vote on under the Common Agreement or the Intercreditor
Agreement, as applicable, as representative of the Holders, the Note Trustee,
promptly upon the receipt of notice from any Collateral Agent or the
Intercreditor Agent describing the action to be voted on in accordance with the
Common Agreement or the Intercreditor Agreement, as applicable, shall promptly
notify the Holders thereof and of the decision period and duly convene a meeting
of Holders in accordance with Article 7 to canvass the Holders as to votes to be
cast by the Note Trustee in respect of such matter. Except as set forth in
Section 5.10 and the immediately following sentence, the Note Trustee shall vote
only in with instructions issued by the Holders at such meeting. If no
instructions are so issued, the Note Trustee shall vote, for the purposes of the
Common Agreement and the Intercreditor Agreement, the actual amount of Notes
Outstanding for or against such action in accordance
43
with the votes of the majority of the Creditors who have voted with respect to
such action and the Holders of such Notes shall be deemed to have voted with the
majority of such Creditors. In no event shall the Note Trustee be deemed to be a
Creditor (i) for payment of principal, interest, indemnification, contribution,
or any other similar amounts owed by any Creditor pursuant to the Common
Agreement, (ii) for purposes of declaring or waiving a Default or Event of
Default under the Common Agreement (except as a representative proceeding in
accordance with the voting procedures described above), or (iii) otherwise where
the use of such term would be manifestly inappropriate for a financial
intermediary which is not an ultimate beneficial holder of securities.
SECTION 5.15 Other Agreements. The rights, privileges and immunities
available to the Note Trustee hereunder shall be available to it in whatever
capacity it serves and whether under this Indenture, the Common Agreement, the
Intercreditor Agreement or any other document or agreement contemplated hereby.
ARTICLE 6
CONCERNING THE HOLDERS
SECTION 6.1 Evidence of Action Taken by Holders. Whenever in this
Indenture or any other Financing Document it is provided that the Holders of a
specified percentage or a majority in aggregate principal amount of the Notes
may take any action (including the making of any demand or request, the giving
of any notice, consent or waiver or the making of any other action), the fact
that at the time of taking any such action the Holders of such specified
percentage or majority have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Holders in
person or by agent or proxy appointed in writing, (b) by the record of the
Holders voting in favor thereof at any meeting of Holders duly called and held
in accordance with the provisions of Article 7 hereof or (c) by a combination of
such instrument or instruments and any such record of such a meeting of Holders,
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments and/or such record are delivered
to the Note Trustee and, where expressly required, to the Issuer.
SECTION 6.2 Proof of Execution of Instruments and of Holding of
Notes. Subject to the provisions of Sections 6.1 and 7.5 hereof, proof of the
execution of any instrument by a Holder or its agent or proxy and proof of the
holding by any person of any of the Notes shall be sufficient if made in the
following manner:
The fact and date of the execution by any such person of any instrument
referred to in Section 6.1 may be proved by the certificate of any notary public
or other officer authorized to take acknowledgments of deeds to be recorded in
any jurisdiction authorized to take acknowledgements of deeds or administer
oaths that the person executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution sworn to
before any such notary or other such officer. Where such execution is by an
officer of a corporation or association or a member of a partnership on behalf
of such corporation, association or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date of
the execution of any such instrument may also be proved in any other manner
which the Note Trustee may deem sufficient. The ownership of Notes may be proved
by the Security Register or by a certificate of the Security Registrar.
If the Issuer shall solicit from the Holders, the Note Trustee, any
Collateral Agent or the Intercreditor Agent any request, demand, authorization,
direction notice, consent, waiver or other act, the Issuer may, at its option,
by Board Resolution, fix in advance a record date for the determination of
44
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.
Any such record date shall be fixed at the Issuer's discretion. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent
and waiver or other act may be sought or given before or after the record date,
but only the Holders of record at the close of business on such record date
shall be deemed to be the Holders for the purpose of determining whether Holders
of the requisite proportion of Notes Outstanding have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other act, and for that purpose the Notes Outstanding shall be
computed as of such record date.
The Note Trustee may require such additional proof, if any, of any matter
referred to in this Section 6.2 as it shall deem necessary.
The record of any Holders' meeting shall be proved as provided in Section
7.6 hereof.
SECTION 6.3 Notes Owned by Issuer and Certain Other Persons Deemed
Not Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Notes have concurred in any request, demand, authorization,
direction, notice, consent and waiver or other act under this Indenture, the
Common Agreement or the Intercreditor Agreement, Notes that are owned by the
Issuer, a Sponsor, a Shareholder or CFE or any Affiliate of the Issuer, a
Sponsor, a Shareholder or CFE shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination except that for the
purposes of determining whether the Note Trustee shall be protected in relying
on any such request, demand, authorization, notice, direction, consent or
waiver, only Notes which the Note Trustee knows are so owned shall be so
disregarded. The Issuer shall furnish the Note Trustee, upon its request, with a
list of such Affiliates. Notes so owned which have been pledged in good faith
may be regarded as Outstanding for the purposes of this Section 6.3 if the
pledgee shall establish to the satisfaction of the Note Trustee that the pledgee
has the right to vote such Notes and that the pledgee is not an Affiliate of the
Issuer, a Sponsor or a Shareholder. In case of a dispute as to such right, any
decision by the Note Trustee, taken upon the advice of counsel, shall be full
protection to the Note Trustee.
SECTION 6.4 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Note Trustee, as provided in Section
6.1 hereof, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any Holder of a Note the serial number of which is
shown by the evidence to be included in the Notes the Holders of which have
consented to such action may, by filing written notice with the Note Trustee at
its Corporate Trust Office and upon proof of holding as provided in Section 6.2
hereof, revoke such action so far as concerns such Note. Except as aforesaid,
any such action taken by the Holder of the Note shall be conclusive and binding
upon such Holder and upon all future holders and owners of such Note, and of the
Note issued in exchange therefor or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Note or the Note issued in
exchange therefor or in place thereof. Any action taken by the Holders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Note Trustee and the Holders of all the Notes.
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ARTICLE 7
HOLDERS' MEETINGS
SECTION 7.1 Purposes for Which Holders' Meetings May Be Called. A
meeting of Holders may be called at any time and from time to time pursuant to
this Article 7 for any of the following purposes:
(a) to give any notice to the Issuer, any Collateral Agent, the
Intercreditor Agent or to the Note Trustee, or to give any directions to the
Note Trustee, or to waive or to consent to the waiving of any default hereunder
or a Default or Event of Default under the Common Agreement and its
consequences, or to take any other action authorized to be taken by Holders
hereunder or pursuant to the Common Agreement or the other applicable Financing
Documents;
(b) to remove the Note Trustee and appoint a successor Note Trustee
pursuant to Article 4 hereof;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 8.2 hereof; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Notes under any
other provision of this Indenture, the Common Agreement, the other Financing
Documents or under applicable Law.
SECTION 7.2 Call of Meetings by Note Trustee. The Note Trustee may
(and, at the request of the Intercreditor Agent, shall) at any time call a
meeting of Holders to be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Note Trustee shall determine. Notice of
every meeting of Holders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meetings shall be
given by the Note Trustee, in the manner provided in Section 1.6 hereof, not
less than 14 nor more than 180 days prior to the date fixed for the meeting, to
the Holders.
SECTION 7.3 Issuer and Holders May Call Meeting. In case the Issuer
pursuant to a resolution of its Boards of Directors, or the Holders of at least
10% in aggregate principal amount of the Notes then Outstanding, shall have
requested the Note Trustee to call a meeting of Holders by written request
setting forth in general terms the action proposed to be taken at the meeting,
and the Note Trustee shall not have made the mailing of the notice of such
meeting within 20 days after receipt of such request, then the Issuer or the
Holders of such Notes in the amount above specified may determine the time and
the place in the Borough of Manhattan, The City of New York, for such meeting
and may call such meeting to take any action authorized in Section 7.1 hereof by
giving notice thereof as provided in Section 7.2 hereof.
SECTION 7.4 Persons Entitled to Vote at Meeting. To be entitled to
vote at any meeting of Holders, a person shall be a (a) Holder of one or more
Notes with respect to which such meeting is being held or (b) person appointed
by an instrument in writing as proxy for the Holder or Holders of such Notes by
a Holder of one or more such Notes. The only persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the persons entitled to
vote at such meeting and their counsel, any representatives of the Note Trustee
and its counsel and any representatives of the Issuer and its counsel.
46
SECTION 7.5 Determination of Voting Rights; Conduct and Adjournment
of Meeting. Notwithstanding any other provisions of this Indenture, the Note
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders, in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote and such other matters concerning the
conduct of the meeting as it shall think fit. The holding of Notes shall be
proved in the manner specified in Section 6.2 hereof and the appointment of any
proxy shall be proved in the manner specified in said Section 6.2 or by having
the signature of the person executing the proxy witnessed or guaranteed by any
bank, banker, trust company or firm satisfactory to the Note Trustee.
The Note Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Holders as provided in Section 7.3 hereof, in which case the Issuer or the
Holders calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote.
Subject to the provisions of Section 6.3 hereof, at any meeting each
Holder or proxy shall be entitled to one vote for each $1,000 principal amount
of Notes held or represented by it; provided, however, that no vote shall be
cast or counted at any meeting in respect of the Note challenged as not
Outstanding and ruled by the chairman of the meeting not to be Outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Notes held by it or instruments in writing as aforesaid duly designating it as
the person to vote on behalf of other Holders. Any meeting of Holders duly
called pursuant to Section 7.2 or 7.3 hereof may be adjourned from time to time,
and the meeting may be held as so adjourned without further notice.
At any meeting, the presence of persons holding or representing Notes
with respect to which such meeting is being held in an aggregate principal
amount sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; but, if less
than a quorum be present, the persons holding or representing a majority of the
Notes represented at the meeting may adjourn such meeting with the same effect,
for all intents and purposes, as though a quorum had been present.
SECTION 7.6 Counting Votes and Recording Action of Meeting. The vote
upon any resolution submitted to any meeting of Holders shall be by written
ballots on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the serial numbers and principal amounts of the
Notes held or represented 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 Holders
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat 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
said notice was given as provided in Section 7.2 hereof. The record shall show
the serial numbers of the Notes voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting, and one of the duplicates shall be
delivered to the Issuer and the other to the Note Trustee to be preserved by the
Note Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
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ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Holders.
Without the consent of the Holders, the Issuer, when authorized by a Board
Resolution of the Issuer and the Note Trustee, at any time and from time to time
and subject to the other Financing Documents, may enter into one or more
indentures supplemental hereto in form satisfactory to the Note Trustee, for any
of the following purposes:
(a) if permitted by the Financing Documents, to evidence the succession
of another entity to the Issuer or any Sponsor, and the assumption by any such
successor of the covenants of the Issuer or any Sponsor, as applicable, in this
Indenture, the Notes, the Sponsor Credit Support and the Common Agreement;
(b) to evidence the succession of a new Note Trustee hereunder pursuant
to Section 4.10 hereof;
(c) to comply with any applicable rules or regulations of any securities
exchange on which the Notes may be listed;
(d) to cure any ambiguity, to correct or supplement any provision herein
that may be defective or inconsistent with any other provision herein; provided
such action shall not adversely affect the interest of the Holders in any
material respect;
(e) to transfer, mortgage or pledge to the Note Trustee as security for
the Notes any property or assets;
(f) to add to the covenants of the Issuer for the benefit of the
Holders;
(g) to take any other action which may be taken without the consent of
the Holders, the other Creditors or all Creditors under the Common Agreement; or
(h) to add any additional Events of Default for the benefit of the
Holders.
SECTION 8.2 Supplemental Indenture With Consent of Holders. Subject
to the terms of the Intercreditor Agreement and Section 11.01 of the Common
Agreement, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes then Outstanding, by Act of said Holders
delivered to the Issuer and the Note Trustee, the Issuer, when authorized by a
Board Resolution, may, and the Note Trustee, subject to Section 8.3 and 8.4
hereof, shall, enter into an indenture or indentures supplemental hereto for the
purpose of adding any mutually agreeable provisions to or changing in any manner
or waiving or eliminating any of the provisions of this Indenture; provided,
however, that, except as set forth in Section 8.2(b), and subject to the terms
of the Intercreditor Agreement and Section 11.01 of the Common Agreement, no
such supplemental indenture shall, without the consent of all Holders of
Outstanding Notes directly affected thereby:
(a) change the Stated Maturity of any Note or, the Stated Maturity of
any payment of interest or Additional Amounts on any Note, or the dates or
circumstances of payment of the Make-Whole Premium, if any, on, the Note, or
change the principal amount thereof or the interest thereon or any premium
payable upon the redemption thereof, or change the Place of Payment where, or
the coin or
48
currency in which, any Note or the Make-Whole Premium, if any, or the interest
or Additional Amounts thereon is payable, or impair the right to institute suit
for the enforcement of any such payment of principal or interest on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date) or such payment of the Make-Whole Premium, if any, on or after
the date such Make-Whole Premium becomes due and payable, or change the
Redemption Date or the terms of payment or redemption; or
(b) reduce the percentage in principal amount of the Outstanding Notes,
the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver provided for in this
Indenture; or
(c) modify any of the provisions of this Section 8.2 hereof; or
(d) release a Sponsor from any of its obligations under the Sponsor
Credit Support or modify the Common Agreement or any other Note Document (in
each case other than in accordance with its terms); or
(e) terminate the Lien of the Security Documents, on any Collateral or
deprive any Holder of the security afforded by the Lien of the Security
Documents, except to the extent expressly permitted by this Indenture, the
Common Agreement or any of the Security Documents.
Upon receipt by the Note Trustee of a Board Resolution of the Issuer and
such other documentation as the Note Trustee may reasonably require, and upon
the filing with the Note Trustee of evidence of the Act of said Holders, the
Note Trustee shall join in the execution of such supplemental indenture or other
instrument, as the case may be, subject to the provisions of Sections 8.3 and
8.4 hereof and the Common Agreement and the Intercreditor Agreement.
It shall not be necessary for any Act of Holders under this Section 8.2
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.3 Execution of Supplemental Indentures. The Note Trustee
may, but shall not be required to take, any action which increases its duties
and responsibilities hereunder. In executing or accepting the additional trusts
created by, any supplemental indenture permitted by this Article 8 or the
modifications thereby of the trusts created by this Indenture, the Note Trustee
shall be entitled to receive, and (subject to Section 4.1 hereof) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and the
other Financing Documents.
SECTION 8.4 Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article 8, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 8.5 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 8 may, and shall if required by the Issuer, bear a
notation in form approved by the Issuer and the Note Trustee as to any matter
provided for with respect to such Notes; and, in such case, suitable notation
may be made upon Outstanding Notes after proper presentation and demand. If the
Issuer shall so determine, new Notes so modified as to conform, in the opinion
of the Issuer and the Note Trustee, to any such supplemental
49
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Note Trustee in exchange for Outstanding Notes.
ARTICLE 9
DEFEASANCE AND COVENANT DEFEASANCE;
SATISFACTION AND DISCHARGE
SECTION 9.1 Issuer's Option to Effect Defeasance or Covenant
Defeasance. The Issuer may elect, at its option at any time, to have Section 9.2
or Section 9.3 hereof applied to the Notes, upon compliance with the conditions
set forth below in this Article.
SECTION 9.2 Defeasance and Discharge. Upon the Issuer's exercise of
its option to have this Section applied to the Notes, the Issuer shall be deemed
to have been discharged from its obligations with respect to such Notes and the
Sponsors shall be discharged from all obligations under the Sponsor Credit
Support as provided in this Section on and after the date the conditions set
forth in Section 9.4 hereof are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Issuer shall be deemed to have paid
and discharged the entire indebtedness represented by such Notes and to have
satisfied all its other obligations under such Notes and this Indenture insofar
as such Notes are concerned and the Sponsors shall be discharged from all
obligations under the Sponsor Credit Support (and the Note Trustee, at the
expense and request of the Issuer shall execute proper instruments acknowledging
the same) and all of the Collateral (including any trust over any assets of the
Issuer and the Sponsors) will be released, without requiring the consent of any
Holder, from any and all security interests held directly or held indirectly,
for the benefit of the Holders, subject to the following which shall survive
until otherwise terminated or discharged hereunder: (1) the rights of Holders of
such Notes to receive, solely from the trust fund described in Section 9.4
hereof and as more fully set forth in such Section, payments in respect of the
principal of and any Make-Whole Premium and interest on such Notes when payments
are due, (2) the Issuer's obligations with respect to such Notes under Sections
2.6, 2.7 and 2.8 hereof, (3) the rights, powers, trusts, duties, indemnities and
immunities of the Note Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Issuer may exercise its option to have this
Section applied to the Notes notwithstanding the prior exercise of its option to
have Section 9.3 hereof applied to such Notes. Notwithstanding anything to the
contrary contained herein, Defeasance hereunder shall not be deemed to release
the Issuer from any of its obligations owed to the Secured Parties (other than
the Holders and the Note Trustee) or limit any remedies of the Secured Parties
(other than the Holders and the Note Trustee).
SECTION 9.3 Covenant Defeasance. Upon the Issuer's exercise of its
option to have this Section applied to the Notes, (1) the Issuer shall be
released from its obligations under ▇▇▇▇▇▇▇
▇.▇▇(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇),(▇), (▇),(▇)
and (v), Section 6.02 and Section 6.03, inclusive, of the Common Agreement, (all
such sections of the Common Agreement the "Relevant Sections") and (2) the
occurrence of any event specified in Section 7.01(d) of the Common Agreement
(with respect to any of the Relevant Sections, shall be deemed not to be or
result in an Event of Default, in each case with respect to such Notes as
provided in this Section on and after the date the conditions set forth in
Section 9.4 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Notes and the
Sponsor Credit Support, 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
specified Section, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document and all of the
Collateral (including any trust over any assets of the Issuer or the Sponsors)
will be, without the consent of any Holder, released from any and all security
interests held,
50
directly or indirectly, for the benefit of the Holders, but the remainder of
this Indenture and such Notes and the Sponsor Credit Support with respect
thereto shall be unaffected thereby. Notwithstanding anything to the contrary
contained herein, Covenant Defeasance hereunder shall not be deemed to release
the Issuer from any of its obligations owed to the Secured Parties (other than
the Holders and the Note Trustee) or limit any remedies of the Secured Parties
(other than the Holders and the Note Trustee).
SECTION 9.4 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to the application of Section 9.2 or Section
9.3 hereof to the Notes:
(a) The Issuer or any Sponsor shall have irrevocably deposited
with the Note Trustee, in trust, for the benefit of the Holders, cash in
U.S. Dollars or U.S. Government Obligations, or a combination thereof, in
such amounts as will be sufficient, in the opinion of an internationally
recognized firm of independent public accountants, to pay the principal of
and Make-Whole Premium and Additional Amounts, if any, and interest on the
Outstanding Notes on and prior to the Stated Maturity of the principal
thereof or upon redemption;
(b) If any such deposit of money shall have been made prior to
the Stated Maturity of the principal or Redemption Date of such Notes, the
Issuer shall have delivered to the Note Trustee an Issuer Order stating
that such money shall be held by the Note Trustee, in trust, as provided
in Section 9.5 hereof;
(c) In the case of redemption of Notes, the notice requisite to
the validity of such redemption shall have been given, or irrevocable
instructions shall have been given by the Issuer to the Note Trustee to
give such notice, under arrangements satisfactory to the Note Trustee;
(d) The Issuer or any Sponsor shall have delivered to the Note
Trustee an Opinion of Counsel to the effect that the Holders of the
Outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such defeasance as set forth in this
Section 9.4 and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred, and such opinion must refer to
and be based upon a published ruling of the U.S. Internal Revenue Service
or a change in applicable U.S. federal income tax laws;
(e) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(f) Such Defeasance or Covenant Defeasance as set forth in this
Section 9.4 will not result in a breach or violation of, or constitute a
Default or Event of Default under, any Project Documents, Security
Documents, any of the other Financing Documents or any other material
agreement or instrument to which the Issuer or any Sponsor is a party or
by which it is bound;
(g) Such Defeasance or Covenant Defeasance shall not cause the
Note Trustee to have a conflicting interest with respect to any securities
of any Sponsor; and
(h) The Issuer shall have delivered to the Note Trustee an
Officer's Certificate and an Opinion of Counsel satisfactory to the Note
Trustee which, taken together, shall state that all conditions precedent
under this Indenture to such defeasance have been complied with.
In the event that Notes which shall be deemed to have been paid as
provided in this Section 9.4 do not mature and are not to be redeemed within the
60-day period commencing on the date of the deposit with the Note Trustee of
monies, the Issuer shall, as promptly as practicable, give a notice, in the
51
same manner as a notice of redemption with respect to such Notes, to the Holders
of such Notes to the effect that the Issuer is deemed to have made full payment
on such Notes and the circumstances thereof.
SECTION 9.5 Satisfaction and Discharge of the Indenture. This
Indenture shall upon an Issuer Request cease to be of further effect (except as
hereinafter expressly provided), and the Note Trustee, at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(a) the Issuer has paid and discharged, or has caused to be paid
and discharged, the entire indebtedness by (i) paying in full the
outstanding principal of, and accrued and unpaid interest, Additional
Amounts and Make-Whole Premium, if any, on, the Notes as and when payable,
(ii) depositing with the Note Trustee cash in a sufficient amount to
redeem all Outstanding Notes in accordance with their terms together with
proof that notice of redemption has been given or waived or an irrevocable
order of the Issuer directing the Note Trustee to give such notice and/or
(iii) delivering to the Note Trustee for cancellation all Outstanding
Notes; and
(b) the Issuer has delivered to the Note Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Upon satisfaction of the aforesaid conditions, the Note Trustee shall,
upon receipt of an Issuer Request, acknowledge in writing the satisfaction and
discharge of this Indenture and take all other action reasonably requested by
the Issuer to evidence the termination of any and all Liens created by or with
respect to this Indenture or the Security Documents.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Issuer and the Note Trustee under Sections
2.7, 2.8, 2.9, 2.15, Article 4 and this Article 9 hereof shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section 9.2, the Note Trustee shall assign, transfer and turn over to or upon
the order of the Issuer any and all money, securities and other property then
held by the Note Trustee for the benefit of the Holders, other than money
deposited with the Note Trustee pursuant to Section 9.4(a) hereof and interest
and other amounts earned or received thereon.
SECTION 9.6 Application of Trust Money. The money deposited with the
Note Trustee pursuant to Section 9.4 hereof shall not be withdrawn or used for
any purpose other than, and shall be held in trust for, the payment of the
principal of, and Make-Whole Premium, if any, and interest on, the Notes or
portions of principal amount thereof in respect of which such deposit was made.
SECTION 9.7 Return of Moneys Held by Note Trustee and Paying Agent
Unclaimed for One Year. Unless otherwise required by mandatory provisions of the
applicable escheat or abandoned or unclaimed property law, any moneys deposited
with or paid to the Note Trustee or any Paying Agent for the payment of
principal of, Make-Whole Premium, if any, or interest on the Note (including
Additional Amounts), other than amounts held pursuant to Section 9.1 hereof and
not applied but remaining unclaimed for one year after the date upon which such
principal, Make-Whole Premium, if any, or interest (including Additional
Amounts) shall have become due and payable, shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Issuer or a Sponsor, as the case may be, by the Note
Trustee or such Paying Agent, and the Holder of such Note shall thereafter look
only to the Issuer or the Sponsors, as the case may be, for any payment that
such Holder may be entitled to collect, and all liability of the Note Trustee or
any Paying
52
Agent with respect to such moneys shall thereupon cease, except in the event
that such payment was not made due to the gross negligence or omission of the
Note Trustee.
ARTICLE 10
SPONSOR CREDIT SUPPORT
The Notes shall have the benefit of the Sponsor Credit Support,
pursuant to each of the ICA Guarantee, the Energo Guarantee and the Nacional
Guarantee.
ARTICLE 11
USE OF PROCEEDS; SECURITY
SECTION 11.1 Use of Proceeds.
In accordance with the Noteholder Depositary Agreement, on the Closing Date the
Note Trustee shall (and the Issuer agrees that the following transfers shall be
directed by the Note Trustee) (i) cause the Note Proceeds to be transferred to
the Noteholder Depositary Bank for deposit into the Note Proceeds Account, (ii)
following the transfer and deposit pursuant to clause (i) above, direct the
Noteholder Depositary Bank to (A) transfer an amount equal to U.S.$63,288,333
from the Note Proceeds Account to the Note Interest Account and (B) apply an
amount equal to U.S.$35,215,564.89 to repay the portion attributable to the
Notes of the amount outstanding under the Interim Loan Documents from the Note
Proceeds Account to such repayment. Thereafter, amounts on deposit in the Note
Proceeds Account, the Note Interest Account and any other Note Account shall be
applied as provided in the Noteholder Depositary Agreement, the Common Agreement
and the Intercreditor Agreement.
SECTION 11.2 Security.
The due and punctual payment of the principal of, and interest and
Additional Amounts on, the Notes when and as the same shall be due and payable
on each Payment Date or at Stated Maturity, by acceleration or otherwise, and
interest on the overdue principal of and interest (to the extent permitted by
law), if any, on the Notes (and any Additional Amounts thereon) and performance
of all other Obligations of the Issuer to the Holders or the Note Trustee under
this Indenture and the other Financing Documents with respect to the Notes,
according to the terms hereunder or thereunder, shall be secured as provided in
the Security Documents.
SECTION 11.3 Certificates of the Issuer. The Issuer shall furnish to
the Note Trustee, prior to any proposed release of any portion of the Collateral
other than pursuant to the express terms of the Security Documents, (i) all
documents that would be required by Trust Indenture Act Section 314(d) if the
Indenture were qualified thereunder and (ii) an Opinion of Counsel, to the
effect that such accompanying documents constitute all documents that would be
required by Trust Indenture Act Section 314(d) if the Indenture were qualified
thereunder. The Note Trustee may, to the extent permitted by Sections 4.1 and
4.2, accept as conclusive evidence of compliance with the foregoing provisions
the appropriate statements contained in such documents and such Opinion of
Counsel.
SECTION 11.4 Authorization of Actions to Be Taken by the Note
Trustee Under the Security Documents. In accepting the Notes authenticated and
delivered by the Note Trustee hereunder, each Holder authorizes the Note Trustee
to enter into, and shall be deemed to have consented and agreed to the terms of,
the Financing Documents to which the Note Trustee is a party. Subject to the
provisions
53
of Section 4.1 and Section 4.2 and the provisions of the Common Agreement and
the Intercreditor Agreement, the Note Trustee may, without the consent of the
Holders, on behalf of the Holders, take all actions it deems necessary or
appropriate in order to (a) enforce any of the terms of any Security Document
and (b) collect and receive any and all amounts payable in respect of the
obligations of the Issuer hereunder. Subject to the Common Agreement and the
Intercreditor Agreement, the Note Trustee shall have power to institute and
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation of
any Security Document or this Indenture, and such suits and proceedings as the
Note Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders or of the Note Trustee).
SECTION 11.5 Authorization of Receipt of Funds by the Note Trustee
Under the Security Documents. The Note Trustee is authorized to receive any
funds for the benefit of the Holders disbursed under any Security Document, and
to make further distributions of such funds to the Holders according to the
provisions of this Indenture.
SECTION 11.6 Termination of Security Interest. Upon the earliest to
occur of (i) the indefeasible payment in full of all obligations of the Issuer
under this Indenture and the Notes, (ii) defeasance pursuant to Article 9 and
(iii) covenant defeasance pursuant to Article 9, the Note Trustee shall, at the
written request of the Issuer, release the Liens pursuant to this Indenture and
the Noteholder Security Agreement upon the Issuer's compliance with the
provisions of the Trust Indenture Act pertaining to release of collateral.
ARTICLE 12
CFE ASSUMPTION OF FINANCING DOCUMENTS
Subject to the Intercreditor Agreement and the Common Agreement, if an
"Event of Default of the Contractor," under and as defined in the Public Works
Contract, has occurred and is continuing, the Issuer shall have the right, but
not the obligation, to assign to CFE, and CFE shall have the right to assume,
all of the rights and obligations of the Issuer under the Notes, this Indenture
and the other Financing Documents pursuant to and in accordance with the CFE
Side Letter, provided that such assignment and assumption shall be subject to
the prior written consent of the Intercreditor Agent . Upon such assignment and
assumption, CFE shall assume the obligations of the Issuer under the Notes, this
Indenture and the other Financing Documents with the same effect as if CFE had
been named as the Issuer herein; provided that such assignment and assumption
shall not release the Issuer from any of its obligations under this Indenture or
the other Financing Documents and shall be subject to the prior written consent
of the Intercreditor Agent and following such assignment and assumption the
Issuer shall remain jointly and severally liable with CFE for the payment and
performance of all such obligations under the Notes, the Indenture and the other
Financing Documents.
54
IN WITNESS WHEREOF, the parties have caused this Note Indenture to
be duly executed by their respective officers duly authorized as of the day and
year first above written.
CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V.,
as Issuer
By: _______________________________
Name:
Title:
CITIBANK, N.A.,
as Note Trustee
By: _______________________________
Name:
Title:
Signature Page to Indenture
Exhibit A-1
to Indenture
[FORM OF REGULATION S GLOBAL NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE
BENEFIT OF THE COMPANY THAT NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION THEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF OR (Y) AT ANY TIME BY
ANY TRANSFEROR THAT WAS AN AFFILIATE OF THE COMPANY DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH OFFER, RESALE, PLEDGE OR OTHER TRANSFER, IN EITHER
CASE, OTHER THAN (1) TO THE COMPANY OR AN AFFILIATE OF THE COMPANY, (2) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (3) SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EITHER
CASE, TO WHOM NOTICE IS GIVEN THAT THE OFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (4) TO AN INSTITUTIONAL ACCREDITED
INVESTOR (WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE WITH A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE), (5)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT, OR (6) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THAT PROVIDED BY RULE 144 (IF
AVAILABLE) UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION.
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO CONSTRUCTORA
INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V. ("ISSUER") OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND THE NOTE ISSUED IN EXCHANGE
FOR THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. ("CEDE") OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 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, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE IN WHOLE AND NOT IN PART SHALL BE
LIMITED TO TRANSFERS TO DTC OR A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR
ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR REGISTERED
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
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REGISTERED DEPOSITARY AND TRANSFERS OF THIS GLOBAL NOTE IN PART SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.7
OF THE INDENTURE REFERRED TO BELOW.
A-1-2
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.
6.50% NOTES DUE 2008
No. ___ U.S.$___________
CUSIP No. P3089X AA6
ISIN No. ▇▇▇▇▇▇▇▇ AA65
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V., a
variable capital corporation duly incorporated and existing under the laws of
Mexico ("Issuer," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
Cede & Co., or its registered assigns, the principal sum of
______________________ United States dollars (U.S.$____________) on May 27, 2008
or such earlier date as this Note may be redeemed (the "Maturity Date"), and to
pay interest thereon from the most recent Payment Date to which interest has
been paid or duly provided for, or, if no interest has been paid, from the date
of issuance, in semi-annual installments on May 31 and November 30, in each
year, commencing on May 31, 2004, at the rate of 6.50% per annum, until the
principal hereof is paid or made available for payment, and (to the extent that
the payment of such interest shall be legally enforceable) at the Investor
Default Rate on any overdue principal and premium and on any overdue installment
of interest. The interest so payable, and punctually paid or duly provided for,
on any Payment Date will, as provided in the Indenture, be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the May 15 or November 15 (whether or not a Business Day), as the case may be,
next preceding such Payment Date. Any such interest not so punctually paid or
duly provided for ("Defaulted Interest") will forthwith cease to be payable to
the Holder on such Regular Record Date for the payment of such Defaulted
Interest to be fixed by the Issuer, notice whereof shall be given by the Note
Trustee to Holders not less than 10 days prior to such Special Record Date, or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payments of the principal of, and premium, if any, and interest or
Additional Amounts, if any, on this Note will be made by dollar check drawn on a
bank in the City of New York and mailed to the Holder of this Note at the
address registered with the Note Trustee or, in the case of a Holder of at least
$1,000,000 principal amount of Notes, by wire transfer to a dollar account
maintained by the Holder with a bank in the United States; provided that the
registered Holder so elects by giving written notice to such effect designating
such account which is received by the Note Trustee or a paying agent no later
than the Regular Record Date immediately preceding such payment date. Principal
on this Note, whether at maturity or upon redemption, will be payable upon the
surrender of this Note to the Corporate Trust Office of the Note Trustee or at
specified offices of any Paying Agent.
The Issuer hereby promises to pay to the Holder interest on the
unpaid principal amount of each Note of each Holder from the date of issuance to
but excluding the date such Note shall be paid in full. If principal of the Note
or any other amount (including interest) payable hereunder is not paid in full
when due (whether at the stated due date, by acceleration or otherwise), the
Issuer hereby agrees to pay from time to time upon demand interest on the amount
past due at a rate per annum equal to the Investor Default Rate.
A-1-3
The Investor Default Rate shall be paid pursuant to the procedures
for payment of Defaulted Interest as set forth above.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Note Trustee referred to on the reverse hereof, or an Authenticating Agent,
by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated: _________, ____ CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V.
By:________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION:
This is one of the Notes referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
as Note Trustee
By:___________________________
Authorized Signatory
AUTHENTICATION DATE:
A-1-4
FORM OF REVERSE
1. Notes.
This Note is one of the U.S.$230,000,000 6.50% Notes Due 2008 of the
Issuer (herein called the "Notes"), issued under a Note Indenture dated as of
February 26, 2004 (as amended, supplemented, modified and in effect from time to
time, herein called the "Indenture"), between the Issuer and Citibank, N.A., as
Note Trustee (herein called the "Note Trustee," which term includes any
successor trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Note Trustee and the Holders, and of the terms upon which the
Notes are, and are to be, authenticated and delivered. This Note is one of the
series designated on the face hereof.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
2. Mandatory and Optional Redemption.
Each Outstanding Note is subject to mandatory redemption, in whole
or in part, as may be required pursuant to Section 3.01(b) of the Common
Agreement, at a Redemption Price equal to all unpaid principal thereof plus
accrued and unpaid interest and Additional Amounts, if any, thereon to the
Redemption Date on a Redemption Date corresponding to the date on which written
instruction is received by the Offshore Depositary Bank from the Offshore
Collateral Agent (acting in accordance with written instructions from the
Intercreditor Agent) pursuant to the Depositary Agreement to apply such amount
to such redemption.
Each Outstanding Note is subject to redemption or purchase at the
Issuer's option:
(a) at any time in whole or in part, without the consent of any
Holder, but subject to and in accordance with the Common Agreement, upon its
giving irrevocable prior written notice pursuant to Section 3.4 of the
Indenture, if as a result of any new laws or any change or proposed change in,
or amendment or proposed amendment to, or expiration of, any existing laws,
regulations or governmental policy having the force of law or in the official
interpretation or application thereof of (i) Mexico (or of any political
subdivision or taxing authority thereof or therein) or any execution of or
amendment to any treaty or treaties affecting taxation to which Mexico (or any
political subdivision or taxing authority thereof or therein) is a party, with
respect to payments on the Notes or under the Sponsor Credit Support (other than
the Energo Guarantee), or (ii) Russia (or of any political subdivision or taxing
authority thereof or therein) or any execution of or amendment to any treaty or
treaties affecting taxation to which Russia (or any political subdivision or
taxing authority thereof or therein) is a party, with respect to payments under
the Energo Guarantee, which change or amendment becomes effective after the date
of original issuance of this Note (in each case, any such change or amendment,
being herein referred to as a "Tax Law Change"), the Issuer or any Sponsor (as
the case may be) has become or will be obligated to pay or withhold, Additional
Amounts on any Payment Date (x) in excess of Additional Amounts payable on the
Notes or under the Sponsor Credit Support (other than the Energo Guarantee)
attributable to withholding taxes imposed at a rate of 4.9% or (y) under the
Energo Guarantee, provided that, if the Tax Law Change whereby the Issuer or a
Sponsor has become or will be obligated to pay or withhold any such Additional
Amounts relates to only a portion of the Outstanding Notes, then only those
Notes with respect to which the Issuer or a Sponsor is obligated to pay such
Additional Amounts (or, if the specific Notes with respect to which such
Additional Amounts are required to be paid cannot be identified, Notes in an
aggregate principal amount equal to the Notes in respect of which such
Additional Amounts are
A-1-5
required to be paid) shall be redeemed in accordance with the Common Agreement.
The Note so redeemed pursuant to Section 3.3(a) of the Indenture will be
redeemed or purchased at a Redemption Price equal to all unpaid principal
thereof plus accrued and unpaid interest and Additional Amounts, if any, thereon
to the Redemption Date (which Redemption Date will be determined by the Issuer
subject to and in accordance with the Common Agreement); or
(b) in whole or in part, subject to Section 3.01(a) of the Common
Agreement, at a redemption price equal to the unpaid principal amount thereof
plus accrued and unpaid interest thereon to the Redemption Date (including any
Additional Amounts), plus the Make-Whole Premium at any time.
3. Redemption in Part.
The Note that is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuer and the Note Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the
Issuer shall execute, and the Note Trustee shall authenticate and make available
for delivery to the Holder of such Note without service charge, a new Note or
Notes of any authorized denomination requested by such Holder and of like tenor
and in aggregated principal amount equal to and in exchange for the remaining
unpaid principal amount of the Note so surrendered.
4. Make-Whole Premium.
A Make-Whole Premium is:
(a) an amount calculated by the Issuer as of the Redemption Date as
follows:
(i) the average life of the remaining scheduled payments of
principal in respect of the Outstanding Notes to be redeemed (the
"Remaining Average Life") shall be calculated as of the Redemption Date;
(ii) the yield to maturity shall be calculated for the United States
Treasury security having an average life equal to the Remaining Average
Life and trading in the secondary market at the price closest to par (the
"Primary Issue"); provided, however, that if no United States Treasury
security has an average life equal to the Remaining Average Life, the
yields (the "Other Yields") for the two maturities of the United States
Treasury securities having average lives most closely corresponding to
such Remaining Average Life and trading in the secondary market at the
price closest to par shall be calculated, and the yield to maturity for
the Primary Issue shall be the yield interpolated or extrapolated from
such Other Yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month;
(iii) the discounted net present value of the then remaining
scheduled payments of principal and interest (but excluding that portion
of any scheduled payment of interest that is actually due and paid on the
Redemption Date) in respect of Outstanding Notes to be redeemed shall be
calculated as of the Redemption Date using a discount factor equal to the
sum of (x) the yield to maturity of the Primary Issue, plus (y) 50 basis
points; and
(iv) the amount of premium in respect of Notes to be redeemed shall
be an amount equal to (a) the discounted net present value of such Notes
to be redeemed determined in accordance with clause (iii) above minus (b)
the unpaid principal amount of such Notes; provided, however, that the
premium shall not be less than zero; and
A-1-6
(b) with respect to any Note to be redeemed, the amount obtained by
multiplying (i) the aggregate Make-Whole Premium determined as set forth above
by (ii) the ratio of the unpaid principal amount of such Note on the Redemption
Date to the aggregate unpaid principal amount of all Notes outstanding on the
Redemption Date.
The Issuer shall make such calculations in good faith, which
calculations shall be conclusive in the absence of manifest error.
5. Defeasance and Covenant Defeasance.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note or certain restrictive covenants and Events of
Default with respect to this Note, in each case, upon compliance with certain
conditions set forth in the Indenture.
6. Events of Default.
Upon any Event of Default Holders will have such rights as set forth
in the Common Agreement and the Intercreditor Agreement. Unless the Common
Agreement or the Intercreditor Agreement otherwise specifies, and subject to
Section 5.10 of the Indenture, Holders of not less than a majority in aggregate
principal amount of Notes then Outstanding may, directly or through the Note
Trustee, exercise any rights of Holders pursuant to the Indenture and the Common
Agreement; provided, however, that in the case of any of the Defaults described
in clause (g) of Section 7.01 of the Common Agreement with respect to the
bankruptcy or insolvency of the Issuer, all Notes shall, without any notice to
the Issuer or the Note Trustee or any other act by any Holder, become
immediately due and payable. The exercise of any remedies following a
declaration of acceleration is subject to and limited to the terms and
conditions of the Common Agreement and the Intercreditor Agreement.
7. Meetings of Holders of the Notes and Modification.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Note Trustee with the consent of the Holders of a majority in
principal amount of the Notes at the time Outstanding.
8. Notices.
All notices shall be deemed to be sufficiently given (unless
otherwise expressly provided in the Indenture) if in writing and mailed,
first-class postage prepaid, to each Holder, at its address as it appears in the
Security Register, not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice.
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9. Inconsistency with Common Agreement.
Each Holder of a Note acknowledges that the Note Trustee has entered
into the Common Agreement and the Intercreditor Agreement on behalf of the
Holders and all future Holders. Notwithstanding anything to the contrary
expressed or implied in the Indenture, all rights, powers and remedies available
to the Note Trustee and the Holders, and all future Holders, shall be subject to
the Common Agreement and the Intercreditor Agreement. In the event of any
conflict or inconsistency between the terms and provisions of the Indenture and
the Common Agreement or the Intercreditor Agreement, the terms of the Common
Agreement or the Intercreditor Agreement, as applicable, shall govern and
control.
10. Registration and Transfer of the Notes.
The Issuer shall cause to be kept at the Corporate Trust Office of
the Note Trustee a register (the register maintained in such office and in any
other office or agency of the Issuer in a Place of Payment being sometimes
collectively referred to as the "Security Register" in the Indenture) in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Notes and of transfers and exchanges of Notes.
Upon surrender for registration of transfer of the Notes at the
office or agency of the Issuer in a Place of Payment, the Issuer shall execute,
and the Note Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denominations and of like tenor and aggregate principal amount.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes.
Prior to due presentment of a Note for registration of transfer, the
Issuer, the Note Trustee and any agent of the Issuer or the Note Trustee shall
treat the Person in whose name such Note is registered as the owner of such Note
for the purpose of receiving payment of principal of any premium and (subject to
Section 2.9 of the Indenture) any interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Issuer, the Note Trustee nor any agent of the Issuer or the Note Trustee shall
be affected by notice to the contrary.
11. Denominations.
The Notes shall be issuable only in registered form without coupons
and only in denominations of U.S.$100,000 and integral multiples of U.S.$1,000
in excess thereof.
12. Support of Issuer's Obligations; Security.
This Note is entitled to the benefits of the Sponsor Credit Support
and is, directly or indirectly, secured by certain of the Collateral pursuant to
the Security Documents.
13. CFE Assumption of Financing Documents.
Subject to the Intercreditor Agreement and the Common Agreement, if
an "Event of Default of the Contractor," under and as defined in the Public
Works Contract, has occurred and is continuing, the Issuer shall have the right,
but not the obligation, to assign to CFE, and CFE shall have the right to
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assume, all of the rights and obligations of the Issuer under this Note, the
Indenture and the other Financing Documents pursuant to and in accordance with
the CFE Side Letter, provided that such assignment and assumption shall be
subject to the prior written consent of the Intercreditor Agent. Upon such
assignment and assumption, CFE shall assume the obligations of the Issuer under
this Note, the Indenture and under the other Financing Documents with the same
effect as if CFE had been named as the Issuer herein; provided that such
assignment and assumption shall not release the Issuer from any of its
obligations under this Note, the Indenture or the other Financing Documents and
shall be subject to the prior written consent of the Intercreditor Agent and
following such assignment and assumption the Issuer shall remain jointly and
severally liable with CFE for the payment and performance of all such
obligations under this Note and the Indenture and the other Financing Documents.
14. Miscellaneous
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification or waiver of the rights and
obligations of the Issuer and the rights of the Holders under the Indenture at
anytime by the Issuer and the Note Trustee with the consent of the Holders of a
majority principal amount of the Notes at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive certain past defaults and events of default under the
Common Agreement and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of the Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the
Intercreditor Agreement and the Common Agreement, the Holder of this Note shall
not have the right to institute any proceeding with respect to the Indenture or
for the appointment of a receiver or trustee or for any other remedy thereunder,
unless such Holder shall have previously given the Collateral Agents written
notice of a continuing Event of Default with respect to the Notes, the Holders
of not less than a majority in principal amount of the Notes at the time
Outstanding shall have made written request to the Collateral Agents to
institute proceedings in respect of such Default as Trustee and offered the
Collateral Agents reasonable indemnity, and the Collateral Agents shall not have
received from the Holders of a majority in principal amount of Notes at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of an any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
15. Governing Law.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
EXCLUDING (TO THE GREATEST EXTENT A NEW YORK COURT WOULD PERMIT) ANY RULE OF LAW
THAT WOULD CAUSE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
to Indenture
[FORM OF RESTRICTED GLOBAL NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE
BENEFIT OF THE COMPANY THAT NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION THEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF OR (Y) AT ANY TIME BY
ANY TRANSFEROR THAT WAS AN AFFILIATE OF THE COMPANY DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH OFFER, RESALE, PLEDGE OR OTHER TRANSFER, IN EITHER
CASE, OTHER THAN (1) TO THE COMPANY OR AN AFFILIATE OF THE COMPANY, (2) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (3) SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EITHER
CASE, TO WHOM NOTICE IS GIVEN THAT THE OFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (4) TO AN INSTITUTIONAL ACCREDITED
INVESTOR (WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE WITH A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE), (5)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT, OR (6) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THAT PROVIDED BY RULE 144 (IF
AVAILABLE) UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION.
EACH BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE SECURITIES
EVIDENCED BY THIS GLOBAL NOTE (INCLUDING ANY PARTICIPANT IN THE DEPOSITARY
HOLDING THE GLOBAL SECURITY THAT IS SHOWN AS HOLDING SUCH AN INTEREST ON THE
RECORDS OF SUCH DEPOSITARY AND EACH BENEFICIAL OWNER THAT HOLDS THROUGH ANY SUCH
PARTICIPANT) AGREES FOR THE BENEFIT OF CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V. (THE "ISSUER") THAT (A) ANY BENEFICIAL INTEREST IN
THE SECURITIES MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE
PROVISIONS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE
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UNITED STATES, AND THAT (B) THE BENEFICIAL OWNER WILL, AND EACH SUBSEQUENT
BENEFICIAL OWNER OF THIS SECURITY IS REQUIRED TO, NOTIFY ANY PURCHASER OF ANY
BENEFICIAL INTEREST IN THE SECURITIES OF THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE.
THIS NOTE MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY
THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS NOTE
(OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR
TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER AND BENEFICIAL OWNERS OF
AN INTEREST IN ANY OF THE SECURITIES EVIDENCED BY THIS GLOBAL NOTE SHALL BE
DEEMED BY THE ACCEPTANCE OF THIS NOTE AND THE BENEFICIAL INTERESTS THEREIN TO
HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY OF NEW YORK, A NEW YORK CORPORATION ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. ("CEDE") OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT 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, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC OR NOMINEES OF DTC, OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO BELOW.
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CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.
6.50% NOTES DUE 2008
No. _________ U.S.$______________
CUSIP No. 210448 AA4
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V., a
variable capital corporation duly incorporated and existing under the laws of
Mexico (herein called the "Issuer," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay Cede & Co., or its registered assigns, the principal sum
of _________________________ United States dollars (U.S.$____________) on May
27, 2008 or such earlier date as this Note may be redeemed (the "Maturity
Date"), and to pay interest thereon from the most recent Payment Date to which
interest has been paid or duly provided for, or, if no interest has been paid,
from the date of issuance, in semi-annual installments on May 31 and November
30, in each year, commencing on May 31, 2004, at the rate of 6.50% per annum,
until the principal hereof is paid or made available for payment, and (to the
extent that the payment of such interest shall be legally enforceable) at the
Default Rate on any overdue principal and premium and on any overdue installment
of interest. The interest so payable, and punctually paid or duly provided for,
on any Payment Date will, as provided in the Indenture, be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the May 15 or November 15 (whether or not a Business Day), as the case may be,
next preceding such Payment Date. Any such interest not so punctually paid or
duly provided for ("Defaulted Interest") will forthwith cease to be payable to
the Holder on such Regular Record Date for the payment of such Defaulted
Interest to be fixed by the Issuer, notice whereof shall be given by the Note
Trustee to Holders not less than 10 days prior to such Special Record Date, or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payments of the principal of, and premium, if any, and interest or
Additional Amounts, if any, on this Note will be made by dollar check drawn on a
bank in the City of New York and mailed to the Holder at the address registered
with the Note Trustee or, in the case of a Holder of at least $1,000,000
principal amount of Notes, by wire transfer to a dollar account maintained by
the payee Holder with a bank in the United States; provided that the registered
Holder so elects by giving written notice to such effect designating such
account which is received by the Note Trustee or a paying agent no later than
the Regular Record Date immediately preceding such payment date. Principal on
this Note, whether at maturity or upon redemption, will be payable upon the
surrender of this Note to the Corporate Trust Office of the Note Trustee or at
specified offices of any Paying Agent.
The Issuer hereby promises to pay to the Holder interest on the
unpaid principal amount of each Note of each Holder from the date of issuance to
but excluding the date such Note shall be paid in full. If principal of the Note
or any other amount (including interest) payable hereunder is not paid in full
when due (whether at the stated due date, by acceleration or otherwise), the
Issuer hereby agrees to pay from time to time upon demand interest on the amount
past due at a rate per annum equal to the Investor Default Rate.
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The Investor Default Rate shall be paid pursuant to the procedures
for payment of Defaulted Interest as set forth above.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Note Trustee referred to on the reverse hereof, or an Authenticating Agent,
by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated: _________, ____ CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V.
By:___________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION:
This is one of the Notes referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
as Note Trustee
By:___________________________
Authorized Signatory
AUTHENTICATION DATE:
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FORM OF REVERSE
1. Notes.
This Note is one of the U.S.$230,000,000 6.50% Notes Due 2008 of the
Issuer (herein called the "Notes"), issued under a Note Indenture dated as of
February 26, 2004 (as amended, supplemented, modified and in effect from time to
time, herein called the "Indenture"), between the Issuer and Citibank, N.A., as
Note Trustee (herein called the "Note Trustee," which term includes any
successor trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Note Trustee and the Holders, and of the terms upon which the
Notes are, and are to be, authenticated and delivered. This Note is one of the
series designated on the face hereof.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
2. Mandatory and Optional Redemption.
Each Note is subject to mandatory redemption, in whole or in part,
as may be required pursuant to Section 3.01(b) of the Common Agreement, at a
Redemption Price equal to all unpaid principal thereof plus accrued and unpaid
interest and Additional Amounts, if any, thereon to the Redemption Date on a
Redemption Date corresponding to the date on which written instruction is
received by the Offshore Depositary Bank from the Offshore Collateral Agent
(acting in accordance with written instructions from the Intercreditor Agent)
pursuant to the Depositary Agreement to apply such amounts to such redemption.
Each Outstanding Note is subject to redemption or purchase at the
Issuer's option:
(a) at any time in whole or in part, without the consent of any
Holder, but subject to and in accordance with the Common Agreement, upon its
giving irrevocable prior written notice pursuant to Section 3.4 of the
Indenture, if as a result of any new laws or any change or proposed change in,
or amendment or proposed amendment to, or expiration of, any existing laws,
regulations or governmental policy having the force of law or in the official
interpretation or application thereof of (i) Mexico (or of any political
subdivision or taxing authority thereof or therein) or any execution of or
amendment to any treaty or treaties affecting taxation to which Mexico (or any
political subdivision or taxing authority thereof or therein) is a party, with
respect to payments on the Notes or under the Sponsor Credit Support (other than
the Energo Guarantee), or (ii) Russia (or of any political subdivision or taxing
authority thereof or therein) or any execution of or amendment to any treaty or
treaties affecting taxation to which Russia (or any political subdivision or
taxing authority thereof or therein) is a party, with respect to payments under
the Energo Guarantee, which change or amendment becomes effective after the date
of original issuance of this Note (in each case, any such change or amendment,
being herein referred to as a "Tax Law Change"), the Issuer or any Sponsor (as
the case may be) has become or will be obligated to pay or withhold, Additional
Amounts on any Payment Date (x) in excess of Additional Amounts payable on the
Notes or under the Sponsor Credit Support (other than the Energo Guarantee)
attributable to withholding taxes imposed at a rate of 4.9% or (y) under the
Energo Guarantee, provided that, if the Tax Law Change whereby the Issuer or a
Sponsor has become or will be obligated to pay or withhold any such Additional
Amounts relates to only a portion of the Outstanding Notes, then only those
Notes with respect to which the Issuer or a Sponsor is obligated to pay such
Additional Amounts (or, if the specific Notes with respect to which such
Additional Amounts are required to be paid cannot be identified, Notes in an
aggregate principal amount equal to the Notes in respect of which such
Additional Amounts are
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required to be paid) shall be redeemed in accordance with the Common Agreement.
The Note so redeemed pursuant to Section 3.3(a) of the Indenture will be
redeemed or purchased at a Redemption Price equal to all unpaid principal
thereof plus accrued and unpaid interest and Additional Amounts, if any, thereon
to the Redemption Date (which Redemption Date will be determined by the Issuer
subject to and in accordance with the Common Agreement); or
(b) in whole or in part, subject to Section 3.01(a) of the Common
Agreement, at a redemption price equal to the unpaid principal amount thereof
plus accrued and unpaid interest thereon to the Redemption Date (including any
Additional Amounts), plus the Make-Whole Premium at any time.
3. Redemption in Part.
The Note that is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuer and the Note Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the
Issuer shall execute, and the Note Trustee shall authenticate and make available
for delivery to the Holder of such Note without service charge, a new Note or
Notes of any authorized denomination requested by such Holder and of like tenor
and in aggregated principal amount equal to and in exchange for the remaining
unpaid principal amount of the Note so surrendered.
4. Make-Whole Premium.
A Make-Whole Premium is:
(a) An amount calculated by the Issuer as of the Redemption Date as
follows:
(i) the average life of the remaining scheduled payments of
principal in respect of the Outstanding Notes to be redeemed (the
"Remaining Average Life") shall be calculated as of the Redemption Date;
(ii) the yield to maturity shall be calculated for the United States
Treasury security having an average life equal to the Remaining Average
Life and trading in the secondary market at the price closest to par (the
"Primary Issue"); provided, however, that if no United States Treasury
security has an average life equal to the Remaining Average Life, the
yields (the "Other Yields") for the two maturities of the United States
Treasury securities having average lives most closely corresponding to
such Remaining Average Life and trading in the secondary market at the
price closest to par shall be calculated, and the yield to maturity for
the Primary Issue shall be the yield interpolated or extrapolated from
such Other Yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month;
(iii) the discounted net present value of the then remaining
scheduled payments of principal and interest (but excluding that portion
of any scheduled payment of interest that is actually due and paid on the
Redemption Date) in respect of Outstanding Notes to be redeemed shall be
calculated as of the Redemption Date using a discount factor equal to the
sum of (x) the yield to maturity of the Primary Issue, plus (y) 50 basis
points; and
(iv) the amount of premium in respect of Notes to be redeemed shall
be an amount equal to (a) the discounted net present value of such Notes
to be redeemed determined in accordance with clause (iii) above minus (b)
the unpaid principal amount of such Notes; provided, however, that the
premium shall not be less than zero; and
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(b) with respect to the Note to be redeemed, the amount obtained by
multiplying (i) the aggregate Make-Whole Premium determined as set forth above
by (ii) the ratio of the unpaid principal amount of such Note on the Redemption
Date to the aggregate unpaid principal amount of all Notes outstanding on the
Redemption Date.
The Issuer shall make such calculations in good faith, which
calculations shall be conclusive in the absence of manifest error.
5. Defeasance and Covenant Defeasance.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note or certain restrictive covenants and Events of
Default with respect to this Note, in each case, upon compliance with certain
conditions set forth in the Indenture.
6. Events of Default.
Upon any Event of Default Holders will have such rights as set forth
in the Common Agreement and the Intercreditor Agreement. Unless the Common
Agreement or the Intercreditor Agreement otherwise specifies, and subject to
Section 5.10 of the Indenture, Holders of not less than a majority in aggregate
principal amount of Notes then Outstanding may, directly or through the Note
Trustee, exercise any rights of Holders pursuant to the Indenture and the Common
Agreement; provided, however, that in the case of any of the Defaults described
in clause (g) of Section 7.01 of the Common Agreement with respect to the
bankruptcy or insolvency of the Issuer, all Notes shall, without any notice to
the Issuer or the Note Trustee or any other act by any Holder, become
immediately due and payable. The exercise of any remedies following a
declaration of acceleration is subject to and limited to the terms and
conditions of the Common Agreement and the Intercreditor Agreement.
7. Meetings of Holders of the Notes and Modification.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Note Trustee with the consent of the Holders of a majority in
principal amount of the Notes at the time Outstanding.
8. Notices.
All notices shall be deemed to be sufficiently given (unless
otherwise expressly provided in the Indenture) if in writing and mailed,
first-class postage prepaid, to each Holder, at its address as it appears in the
Security Register, not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice.
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9. Inconsistency with Common Agreement.
Each Holder of a Note acknowledges that the Note Trustee has entered
into the Common Agreement and the Intercreditor Agreement on behalf of the
Holders and all future Holders. Notwithstanding anything to the contrary
expressed or implied in the Indenture, all rights, powers and remedies available
to the Note Trustee and the Holders, and all future Holders, shall be subject to
the Common Agreement and the Intercreditor Agreement. In the event of any
conflict or inconsistency between the terms and provisions of the Indenture and
the Common Agreement or the Intercreditor Agreement, the terms of the Common
Agreement or the Intercreditor Agreement, as applicable, shall govern and
control.
10. Registration and Transfer of the Notes.
The Issuer shall cause to be kept at the Corporate Trust Office of
the Note Trustee a register (the register maintained in such office and in any
other office or agency of the Issuer in a Place of Payment being sometimes
collectively referred to as the "Security Register" in the Indenture) in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Notes and of transfers and exchanges of Notes.
Upon surrender for registration of transfer of the Notes at the
office or agency of the Issuer in a Place of Payment, the Issuer shall execute,
and the Note Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denominations and of like tenor and aggregate principal amount.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes.
Prior to due presentment of a Note for registration of transfer, the
Issuer, the Note Trustee and any agent of the Issuer or the Note Trustee shall
treat the Person in whose name such Note is registered as the owner of such Note
for the purpose of receiving payment of principal of any premium and (subject to
Section 2.9 of the Indenture) any interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Issuer, the Note Trustee nor any agent of the Issuer or the Note Trustee shall
be affected by notice to the contrary.
11. Denominations.
The Notes shall be issuable only in registered form without coupons
and only in denominations of U.S.$100,000 and integral multiples of U.S.$1,000
in excess thereof.
12. Support of Issuer's Obligations; Security.
This Note is entitled to the benefits of the Sponsor Credit Support
and is, directly or indirectly, secured by certain of the Collateral pursuant to
the Security Documents.
13. CFE Assumption of Financing Documents.
Subject to the Intercreditor Agreement and the Common Agreement, if an
"Event of Default of the Contractor," under and as defined in the Public Works
Contract, has occurred and is continuing, the Issuer shall have the right, but
not the obligation, to assign to CFE, and CFE shall have the right to
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assume, all of the rights and obligations of the Issuer under this Note, the
Indenture and the other Financing Documents pursuant to and in accordance with
the CFE Side Letter, provided that such assignment and assumption shall be
subject to the prior written consent of the Intercreditor Agent. Upon such
assignment and assumption, CFE shall assume the obligations of the Issuer under
this Note, the Indenture and under the other Financing Documents with the same
effect as if CFE had been named as the Issuer herein; provided that such
assignment and assumption shall not release the Issuer from any of its
obligations under this Note, the Indenture or the other Financing Documents and
shall be subject to the prior written consent of the Intercreditor Agent and
following such assignment and assumption the Issuer shall remain jointly and
severally liable with CFE for the payment and performance of all such
obligations under this Note and the Indenture and the other Financing Documents.
14. Miscellaneous
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification or waiver of the rights and
obligations of the Issuer and the rights of the Holders under the Indenture at
anytime by the Issuer and the Note Trustee with the consent of the Holders of a
majority principal amount of the Notes at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive certain past defaults and events of default under the
Common Agreement and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of the Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the
Intercreditor Agreement and the Common Agreement, the Holder of this Note shall
not have the right to institute any proceeding with respect to the Indenture or
for the appointment of a receiver or trustee or for any other remedy thereunder,
unless such Holder shall have previously given the Collateral Agents written
notice of a continuing Event of Default with respect to the Notes, the Holders
of not less than a majority in principal amount of the Notes at the time
Outstanding shall have made written request to the Collateral Agents to
institute proceedings in respect of such Default as Trustee and offered the
Collateral Agents reasonable indemnity, and the Collateral Agents shall not have
received from the Holders of a majority in principal amount of Notes at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of an any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
15. Governing Law.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
EXCLUDING (TO THE GREATEST EXTENT A NEW YORK COURT WOULD PERMIT) ANY RULE OF LAW
THAT WOULD CAUSE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
to Indenture
[FORM OF CERTIFICATED NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE
BENEFIT OF THE COMPANY THAT NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION THEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF OR (Y) AT ANY TIME BY
ANY TRANSFEROR THAT WAS AN AFFILIATE OF THE COMPANY DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH OFFER, RESALE, PLEDGE OR OTHER TRANSFER, IN EITHER
CASE, OTHER THAN (1) TO THE COMPANY OR AN AFFILIATE OF THE COMPANY, (2) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (3) SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EITHER
CASE, TO WHOM NOTICE IS GIVEN THAT THE OFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (4) TO AN INSTITUTIONAL ACCREDITED
INVESTOR (WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE WITH A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE), (5)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT, OR (6) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THAT PROVIDED BY RULE 144 (IF
AVAILABLE) UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF CONSTRUCTORA
INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V. THAT (A) THIS NOTE MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) INSIDE THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF 144A, (II) OUTSIDE THE UNITED STATES IN
A TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT
OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
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THIS NOTE MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY
THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS NOTE
(OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR
TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER AND BENEFICIAL OWNERS OF
AN INTEREST IN ANY OF THE SECURITIES EVIDENCED BY THIS NOTE SHALL BE DEEMED BY
THE ACCEPTANCE OF THIS NOTE AND THE BENEFICIAL INTERESTS THEREIN TO HAVE AGREED
TO ANY SUCH AMENDMENT OR SUPPLEMENT.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE NOTE
TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY
REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
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CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.
6.50% NOTES DUE 2008
No. ___ U.S.$___,___,___
CUSIP No. __________
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V., a
variable capital corporation duly incorporated and existing under the laws of
Mexico (herein called the "Issuer," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay Cede & Co., or its registered assigns, the principal sum
of __________________________ United States dollars (U.S.$ ___,___,___) on May
27, 2008 or such earlier date as this Note may be redeemed (the "Maturity
Date"), and to pay interest thereon from or from the most recent Payment Date to
which interest has been paid or duly provided for, or, if no interest has been
paid, from the date of issuance, in semi-annual installments on May 31 and
November 30, in each year, commencing on May 31, 2004 at the rate of 6.50% per
annum, until the principal hereof is paid or made available for payment, and (to
the extent that the payment of such interest shall be legally enforceable) at
the Default Rate on any overdue principal and premium and on any overdue
installment of interest. The interest so payable, and punctually paid or duly
provided for, on any Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 15 or November 15 (whether or not a Business
Day), as the case may be, next preceding such Payment Date. Any such interest
not so punctually paid or duly provided for ("Defaulted Interest") will
forthwith cease to be payable to the Holder on such Regular Record Date for the
payment of such Defaulted Interest to be fixed by the Issuer, notice whereof
shall be given by the Note Trustee to Holders not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payments of the principal of, and premium, if any, and interest or
Additional Amounts, if any, on this Note will be made by dollar check drawn on a
bank in the City of New York and mailed to the Holder at the address registered
with the Note Trustee or, in the case of a Holder of at least $1,000,000
principal amount of Notes, by wire transfer to a dollar account maintained by
the Holder with a bank in the United States; provided that the registered Holder
so elects by giving written notice to such effect designating such account which
is received by the Note Trustee or a paying agent no later than the Regular
Record Date immediately preceding such payment date. Principal on this Note,
whether at maturity or upon redemption, will be payable upon the surrender of
this Note to the Corporate Trust Office of the Note Trustee or at specified
offices of any Paying Agent.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
The Issuer hereby promises to pay to the Holder interest on the
unpaid principal amount of each Note of each Holder from the date of issuance to
but excluding the date such Note shall be paid in full. If principal of the Note
or any other amount (including interest) payable hereunder is not paid in full
when due (whether at the stated due date, by acceleration or otherwise), the
Issuer hereby agrees to pay from time to time upon demand interest on the amount
past due at a rate per annum equal to the Investor Default Rate.
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The Investor Default Rate shall be paid pursuant to the procedures
for payment of Defaulted Interest as set forth above.
Unless the certificate of authentication hereon has been executed by
the Note Trustee referred to on the reverse hereof, or an Authenticating Agent,
by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated: _________, ____ CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V.
By:________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION:
This is one of the Notes referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
as Note Trustee
By:___________________________
Authorized Signatory
AUTHENTICATION DATE:
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FORM OF REVERSE
1. Notes.
This Note is one of the U.S.$230,000,000 6.50% Notes Due 2008 of the
Issuer (herein called the "Notes"), issued under a Note Indenture dated as of
February 26, 2004 (as amended, supplemented, modified and in effect from time to
time, herein called the "Indenture"), between the Issuer and Citibank, N.A., as
Note Trustee (herein called the "Note Trustee," which term includes any
successor trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Note Trustee and the Holders, and of the terms upon which the
Notes are, and are to be, authenticated and delivered. This Note is one of the
series designated on the face hereof.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
2. Mandatory and Optional Redemption.
Each Note is subject to mandatory redemption, in whole or in part,
as may be required pursuant to Section 3.01(b) of the Common Agreement, at a
Redemption Price equal to all unpaid principal thereof plus accrued and unpaid
interest and Additional Amounts, if any, thereon to the Redemption Date on a
Redemption Date corresponding to the date on which written instruction is
received by the Offshore Depositary Bank from the Offshore Collateral Agent
(acting in accordance with written instructions from the Intercreditor Agent)
pursuant to the Depositary Agreement to apply such amounts to such redemption.
Each Outstanding Note is subject to redemption or purchase at the
Issuer's option:
(a) at any time in whole or in part, without the consent of any
Holder, but subject to and in accordance with the Common Agreement, upon its
giving irrevocable prior written notice pursuant to Section 3.4 of the
Indenture, if as a result of any new laws or any change or proposed change in,
or amendment or proposed amendment to, or expiration of, any existing laws,
regulations or governmental policy having the force of law or in the official
interpretation or application thereof of (i) Mexico (or of any political
subdivision or taxing authority thereof or therein) or any execution of or
amendment to any treaty or treaties affecting taxation to which Mexico (or any
political subdivision or taxing authority thereof or therein) is a party, with
respect to payments on the Notes or under the Sponsor Credit Support (other than
the Energo Guarantee), or (ii) Russia (or of any political subdivision or taxing
authority thereof or therein) or any execution of or amendment to any treaty or
treaties affecting taxation to which Russia (or any political subdivision or
taxing authority thereof or therein) is a party, with respect to payments under
the Energo Guarantee, which change or amendment becomes effective after the date
of original issuance of this Note (in each case, any such change or amendment,
being herein referred to as a "Tax Law Change"), the Issuer or any Sponsor (as
the case may be) has become or will be obligated to pay or withhold, Additional
Amounts on any Payment Date (x) in excess of Additional Amounts payable on the
Notes or under the Sponsor Credit Support (other than the Energo Guarantee)
attributable to withholding taxes imposed at a rate of 4.9% or (y) under the
Energo Guarantee, provided that, if the Tax Law Change whereby the Issuer or a
Sponsor has become or will be obligated to pay or withhold any such Additional
Amounts relates to only a portion of the Outstanding Notes, then only those
Notes with respect to which the Issuer or a Sponsor is obligated to pay such
Additional Amounts (or, if the specific Notes with respect to which such
Additional Amounts are required to be paid cannot be identified, Notes in an
aggregate principal amount equal to the Notes in respect of which such
Additional Amounts are
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required to be paid) shall be redeemed in accordance with the Common Agreement.
The Note so redeemed pursuant to Section 3.3(a) of the Indenture will be
redeemed or purchased at a Redemption Price equal to all unpaid principal
thereof plus accrued and unpaid interest and Additional Amounts, if any, thereon
to the Redemption Date (which Redemption Date will be determined by the Issuer
subject to and in accordance with the Common Agreement); or
(b) in whole or in part, subject to Section 3.01(a) of the Common
Agreement, at a redemption price equal to the unpaid principal amount thereof
plus accrued and unpaid interest thereon to the Redemption Date (including any
Additional Amounts), plus the Make-Whole Premium at any time.
3. Redemption in Part.
The Note that is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuer and the Note Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the
Issuer shall execute, and the Note Trustee shall authenticate and make available
for delivery to the Holder of such Note without service charge, a new Note or
Notes of any authorized denomination requested by such Holder and of like tenor
and in aggregated principal amount equal to and in exchange for the remaining
unpaid principal amount of the Note so surrendered.
4. Make-Whole Premium.
The Make-Whole Premium is:
(a) With respect to all of the Notes, an amount calculated by the
Issuer as of the Redemption Date as follows:
(i) the average life of the remaining scheduled payments of
principal in respect of the Outstanding Notes to be redeemed (the
"Remaining Average Life") shall be calculated as of the Redemption Date;
(ii) the yield to maturity shall be calculated for the United States
Treasury security having an average life equal to the Remaining Average
Life and trading in the secondary market at the price closest to par (the
"Primary Issue"); provided, however, that if no United States Treasury
security has an average life equal to the Remaining Average Life, the
yields (the "Other Yields") for the two maturities of the United States
Treasury securities having average lives most closely corresponding to
such Remaining Average Life and trading in the secondary market at the
price closest to par shall be calculated, and the yield to maturity for
the Primary Issue shall be the yield interpolated or extrapolated from
such Other Yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month;
(iii) the discounted net present value of the then remaining
scheduled payments of principal and interest (but excluding that portion
of any scheduled payment of interest that is actually due and paid on the
Redemption Date) in respect of Outstanding Notes to be redeemed shall be
calculated as of the Redemption Date using a discount factor equal to the
sum of (x) the yield to maturity of the Primary Issue, plus (y) 50 basis
points; and
(iv) the amount of premium in respect of Notes to be redeemed shall
be an amount equal to (a) the discounted net present value of such Notes
to be redeemed determined in accordance with
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clause (iii) above minus (b) the unpaid principal amount of such Notes;
provided, however, that the premium shall not be less than zero; and
(b) with respect to the Note to be redeemed, the amount obtained by
multiplying (i) the aggregate Make-Whole Premium determined as set forth above
by (ii) the ratio of the unpaid principal amount of such Note on the Redemption
Date to the aggregate unpaid principal amount of all Notes outstanding on the
Redemption Date.
The Issuer shall make such calculations in good faith, which
calculations shall be conclusive in the absence of manifest error.
5. Defeasance and Covenant Defeasance.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note or certain restrictive covenants and Events of
Default with respect to this Note, in each case, upon compliance with certain
conditions set forth in the Indenture.
6. Events of Default.
Upon any Event of Default Holders will have such rights as set forth
in the Common Agreement and the Intercreditor Agreement. Unless the Common
Agreement or the Intercreditor Agreement otherwise specifies, and subject to
Section 5.10 of the Indenture, Holders of not less than a majority in aggregate
principal amount of Notes then Outstanding may, directly or through the Note
Trustee, exercise any rights of Holders pursuant to the Indenture and the Common
Agreement; provided, however, that in the case of any of the Defaults described
in clause (g) of Section 7.01 of the Common Agreement with respect to the
bankruptcy or insolvency of the Issuer, all Notes shall, without any notice to
the Issuer or the Note Trustee or any other act by any Holder, become
immediately due and payable. The exercise of any remedies following a
declaration of acceleration is subject to and limited to the terms and
conditions of the Common Agreement and the Intercreditor Agreement.
7. Meetings of Holders of the Notes and Modification.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Note Trustee with the consent of the Holders of a majority in
principal amount of the Notes at the time Outstanding.
8. Notices.
All notices shall be deemed to be sufficiently given (unless
otherwise expressly provided in the Indenture) if in writing and mailed,
first-class postage prepaid, to each Holder, at its address as it appears in the
Security Register, not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice.
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9. Inconsistency with Common Agreement.
Each Holder of a Note acknowledges that the Note Trustee has entered
into the Common Agreement and the Intercreditor Agreement on behalf of the
Holders and all future Holders. Notwithstanding anything to the contrary
expressed or implied in the Indenture, all rights, powers and remedies available
to the Note Trustee and the Holders, and all future Holders, shall be subject to
the Common Agreement and the Intercreditor Agreement. In the event of any
conflict or inconsistency between the terms and provisions of the Indenture and
the Common Agreement or the Intercreditor Agreement, the terms of the Common
Agreement or Intercreditor Agreement, as applicable, shall govern and control.
10. Registration and Transfer of the Notes.
The Issuer shall cause to be kept at the Corporate Trust Office of
the Note Trustee a register (the register maintained in such office and in any
other office or agency of the Issuer in a Place of Payment being sometimes
collectively referred to as the "Security Register" in the Indenture) in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Notes and of transfers and exchanges of Notes.
Upon surrender for registration of transfer of the Notes at the
office or agency of the Issuer in a Place of Payment, the Issuer shall execute,
and the Note Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denominations and of like tenor and aggregate principal amount.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes.
Prior to due presentment of a Note for registration of transfer, the
Issuer, the Note Trustee and any agent of the Issuer or the Note Trustee shall
treat the Person in whose name such Note is registered as the owner of such Note
for the purpose of receiving payment of principal of any premium and (subject to
Section 2.9 of the Indenture) any interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Issuer, the Note Trustee nor any agent of the Issuer or the Note Trustee shall
be affected by notice to the contrary.
11. Denominations.
The Notes shall be issuable only in registered form without coupons
and only in denominations of U.S.$100,000 and integral multiples of U.S.$1,000
in excess thereof.
12. Support of Issuer's Obligations; Security.
This Note is entitled to the benefits of the Sponsor Credit Support
and is, directly or indirectly, secured by certain of the Collateral pursuant to
the Security Documents.
13. CFE Assumption of Financing Documents.
Subject to the Intercreditor Agreement and the Common Agreement, if an
"Event of Default of the Contractor," under and as defined in the Public Works
Contract, has occurred and is continuing, the Issuer shall have the right, but
not the obligation, to assign to CFE, and CFE shall have the right to
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assume, all of the rights and obligations of the Issuer under this Note, the
Indenture and the other Financing Documents pursuant to and in accordance with
the CFE Side Letter, provided that such assignment and assumption shall be
subject to the prior written consent of the Intercreditor Agent. Upon such
assignment and assumption, CFE shall assume the obligations of the Issuer under
this Note, the Indenture and under the other Financing Documents with the same
effect as if CFE had been named as the Issuer herein; provided that such
assignment and assumption shall not release the Issuer from any of its
obligations under this Note, the Indenture or the other Financing Documents and
shall be subject to the prior written consent of the Intercreditor Agent and
following such assignment and assumption the Issuer shall remain jointly and
severally liable with CFE for the payment and performance of all such
obligations under this Note and the Indenture and the other Financing Documents.
14. Miscellaneous
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification or waiver of the rights and
obligations of the Issuer and the rights of the Holders under the Indenture at
anytime by the Issuer and the Note Trustee with the consent of the Holders of a
majority principal amount of the Notes at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive certain past defaults and events of default under the
Common Agreement and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of the Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the
Intercreditor Agreement and the Common Agreement, the Holder of this Note shall
not have the right to institute any proceeding with respect to the Indenture or
for the appointment of a receiver or trustee or for any other remedy thereunder,
unless such Holder shall have previously given the Collateral Agents written
notice of a continuing Event of Default with respect to the Notes, the Holders
of not less than a majority in principal amount of the Notes at the time
Outstanding shall have made written request to the Collateral Agents to
institute proceedings in respect of such Default as Trustee and offered the
Collateral Agents reasonable indemnity, and the Collateral Agents shall not have
received from the Holders of a majority in principal amount of Notes at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of an any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
15. Governing Law.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
EXCLUDING (TO THE GREATEST EXTENT A NEW YORK COURT WOULD PERMIT) ANY RULE OF LAW
THAT WOULD CAUSE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
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EXHIBIT B
to Indenture
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RESTRICTED GLOBAL
NOTE TO REGULATION S GLOBAL NOTE
(TRANSFERS PURSUANT TO SECTION 2.7(c)(v)(B)
OF THE INDENTURE)
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Agency and Trust Services
Re: Constructora Internacional de Infraestructura, S.A. de C.V.
US$230,000,000 6.50% Notes Due 2008 (the "Notes")
Reference is hereby made to the Indenture, dated as of February 26,
2004 (the "Indenture"), between Constructora Internacional de Infraestructura,
S.A. de C.V., as issuer (the "Issuer") and Citibank, N.A., as Note Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$ principal amount of Notes (the
"Specified Notes") which are evidenced by one or more Restricted Global Notes
(CUSIP No. 210448 AA4) and held with the Depositary in the name of [Insert Name
of Transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Notes to a Person who will take delivery thereof
in the form of an equal principal amount of Notes evidenced by one or more
Regulation S Global Notes (CUSIP No. P3089X AA6), to be held with the
Depositary.
The Transferor hereby certifies that either (i) it is the sole
beneficial owner of the Specified Notes or (ii) it is acting on behalf of all
the beneficial owners of the Specified Notes and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner."
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 904 under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and accordingly the Transferor does hereby
further certify that:
(a) the offer of the Notes was not made to a person in the
United States;
(b) either:
(i) 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 and believes that
the transferee was outside the United States; or
B-1
(ii) 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;
(c) no directed selling efforts have been made by us, any of our
affiliates or any party acting on our behalf in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the Owner is not a distributor of the Securities, an affiliate
of the Issuer or any such distributor or a person acting on behalf of any
of the foregoing; and
(e) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
We acknowledge that you, the Issuer, and the other will rely upon
our confirmations, acknowledgements and agreements set forth herein, and we
agree to notify you promptly in writing if any of our representations and
warranties herein ceases to be accurate and complete.
THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the underwriters or initial
purchasers, if any, of the initial offering of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:________________________________
Name:
Title:
Dated: ______________, ____
cc: Constructora Internacional de Infraestructura, S.A. de C.V.
c/o Empresas ICA, Sociedad Controladora, S.A. de ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, D.F., Mexico,
Attention of ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ A.
B-2
EXHIBIT C
To Indenture
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RESTRICTED GLOBAL
NOTE TO UNRESTRICTED GLOBAL NOTE
(TRANSFERS PURSUANT TO SECTION 2.7(c)(v)(C)
OF THE INDENTURE)
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Agency and Trust Services
Re: Constructora Internacional de Infraestructura, S.A. de C.V.
US$230,000,000 6.50% Notes Due 2008 (the "Notes")
Reference is hereby made to the Indenture, dated as of February 26,
2004 (the "Indenture"), between Constructora Internacional de Infraestructura,
S.A. de C.V., as issuer (the "Issuer") and Citibank, N.A., as Note Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$ principal amount of Notes (the
"Specified Notes") which are evidenced by one or more Restricted Global Notes
(CUSIP No. 210448 AA4) and held with the Depositary in the name of [Insert Name
of Transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Notes to a Person who will take delivery thereof
in the form of an equal principal amount of Notes evidenced by one or more
Unrestricted Global Notes (CUSIP No. ), to be held with the Depositary.
The Transferor hereby certifies that either (i) it is the sole
beneficial owner of the Specified Notes or (ii) it is acting on behalf of all
the beneficial owners of the Specified Notes and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner."
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with either (i) Rule 144 under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and accordingly the Transferor does
hereby further certify that (A) the transfer is occurring after a holding period
of at least one year (computed in accordance with paragraph (d) of Rule 144) has
elapsed, since the Specified Notes were acquired from the Issuer or from an
affiliate (as such term is defined in Rule 144) of the Issuer, whichever is
later, and is being effected in accordance with the applicable amount, manner of
sale and notice requirements of paragraphs (e), (f) and (h) of Rule 144 or (B)
the transfer is occurring after a holding period of at least two years has
elapsed since the date Specified Notes were acquired from the Issuer or from an
affiliate (as such term is defined in Rule 144) of the Issuer, whichever is
later, and the Owner is not, and during the preceding three months has not been,
an affiliate of the Issuer, in each case in accordance with any applicable blue
sky or securities laws of any state of the United States, or (ii) Regulation S
under the Securities Act, and accordingly the Transferor does hereby further
certify that (u) the offer of the Notes was not made to a person in the United
States, (v) either (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
C-1
Transferor nor any person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (w) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of Regulation
S, as applicable, (x) the Owner is not a distributor of the Notes, an affiliate
of the Issuer or any such distributor or a person acting on behalf of any of the
foregoing; and (y) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
We acknowledge that you, the Issuer, and the other will rely upon
our confirmations, acknowledgements and agreements set forth herein, and we
agree to notify you promptly in writing if any of our representations and
warranties herein ceases to be accurate and complete.
THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the underwriters and initial
purchasers, if any, of the Notes being transferred.
[Insert Name of Transferor]
By: _______________________________
Name:
Title:
Dated: __________, ____
cc: Constructora Internacional de Infraestructura, S.A. de C.V.
c/o Empresas ICA, Sociedad Controladora, S.A. de ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, D.F., Mexico,
Attention of ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ A.
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EXHIBIT D
To Indenture
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM REGULATION S GLOBAL
NOTE TO RESTRICTED GLOBAL NOTE
(TRANSFERS PURSUANT TO SECTION 2.7(c)(v)(D)
OF THE INDENTURE)
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Agency and Trust Services
Re: Constructora Internacional de Infraestructura, S.A. de C.V.
US$230,000,000 6.50% Notes Due 2008 (the "Notes")
Reference is hereby made to the Indenture, dated as of February 26,
2004 (the "Indenture"), between Constructora Internacional de Infraestructura,
S.A. de C.V., as issuer (the "Issuer") and Citibank, N.A., as Note Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$ principal amount of Notes (the
("Specified Notes") which are evidenced by one or more Regulation S Global Notes
(ISIN No. USP3089X AA65) and held with the Depositary through [Euroclear]
[Clearstream, Luxembourg] (Common Code ) in the name of [Insert Name of
Transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in Notes to a Person who will take delivery thereof in the
form of an equal principal amount of Notes evidenced by one or more Restricted
Global Notes (CUSIP No. 210448 AA4), to be held with the Depositary.
The Transferor hereby certifies that either (i) it is the sole
beneficial owner of the Specified Notes or (ii) it is acting on behalf of all
the beneficial owners of the Specified Notes and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner."
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer is being effected pursuant to
and in accordance with Rule 144A under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor does hereby
further certify that the Notes are being transferred to a Person that the
Transferor reasonably believes is purchasing the Notes for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each 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 blue sky or securities laws of any state of the United States, and it
has taken reasonable steps to ensure that the transferee of the Specified Notes
is aware that it may be relying on Rule 144A under the Securities Act in
connection with this transfer.
We acknowledge that you, the Issuer, and the other will rely upon
our confirmations, acknowledgements and agreements set forth herein, and we
agree to notify you promptly in writing if any of our representations and
warranties herein ceases to be accurate and complete.
D-1
THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the underwriters and initial
purchasers, if any, of the Notes being transferred.
[Insert Name of Transferor]
By: _______________________________
Name:
Title:
Dated: __________, ____
cc: Constructora Internacional de Infraestructura, S.A. de C.V.
c/o Empresas ICA, Sociedad Controladora, S.A. de ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, D.F., Mexico,
Attention of ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ A.
D-2
EXHIBIT E To
Indenture
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE OF RESTRICTED NOTE
(TRANSFERS PURSUANT TO SECTION 2.7(b) OR 2.7(c)(v)(E)
OF THE INDENTURE)
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Agency and Trust Services
Re: Constructora Internacional de Infraestructura, S.A. de C.V.
US$230,000,000 6.50% Notes Due 2008 (the "Notes")
Reference is hereby made to the Indenture, dated as of February 26,
2004 (the "Indenture"), between Constructora Internacional de Infraestructura,
S.A. de C.V., as issuer (the "Issuer") and Citibank, N.A., as Note Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$ principal amount of Notes (the
"Specified Notes") presented or surrendered on the date hereof (the "Surrendered
Notes") which are registered in the name of [Insert Name of Transferor] (the
"Transferor"). The Transferor has requested a transfer of such Surrendered Notes
to a Person other than the Transferor (each such transaction being referred to
herein as a "transfer").
The Transferor hereby certifies that either (i) it is the sole
beneficial owner of the Specified Notes or (ii) it is acting on behalf of all
the beneficial owners of the Specified Notes and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner."
In connection with such request and in respect of such Surrendered
Notes, the Transferor does hereby certify that:
[CHECK ONE]
[ ] (a the Surrendered Notes are being transferred to the Issuer;
or
[ ] (b) the Surrendered Notes are being transferred pursuant to and in
accordance with Rule 144A under the U.S. Securities Act of 1933, as
amended (the "Securities Act") and, accordingly, the Transferor does
hereby further certify that the Surrendered Notes are being
transferred to a Person that the Transferor reasonably believes is
purchasing the Surrendered Notes for its own account, or for one or
more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in
each case in a transaction meeting the
E-1
requirements of Rule 144A and in accordance with any applicable blue
sky or securities laws of any state of the United States;
or
[ ] (c) the Surrendered Notes are being transferred pursuant to and in
accordance with Regulation S under the Securities Act, and
(i) the offer of the Surrendered Notes was not made to a person in
the United States;
(ii) either:
(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 and believes 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;
(iii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable;
(iv) the Owner is not a distributor of the Securities, an affiliate
of the Issuer or any such distributor or a person acting on
behalf of any of the foregoing; and
(v) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
[ ] (d) the Surrendered Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act and in accordance
with any applicable blue sky or securities laws of any state of the
United States[, and a letter in the form of Exhibit F to the
Indenture is being delivered by the proposed transferee].
E-2
This certificate and the statements contained herein are made for
your benefit and the benefit of the Issuer and the underwriters and initial
purchasers, if any, of the Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By: _______________________________
Name:
Title:
Dated ___________________, ____
cc: Constructora Internacional de Infraestructura, S.A. de C.V.
c/o Empresas ICA, Sociedad Controladora, S.A. de ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, D.F., Mexico,
Attention of ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ A.
E-3
[EXHIBIT F
to Indenture
FORM OF INSTITUTIONAL ACCREDITED
INVESTOR TRANSFEREE COMPLIANCE LETTER
Constructora Internacional de Infraestructura, S.A. de C.V.
c/o Empresas ICA, Sociedad Controladora, S.A. de ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, D.F., Mexico,
Attention of ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ A.
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Agency and Trust Services
Ladies and Gentlemen:
In connection with our proposed purchase of $ aggregate principal
amount of the US$230,000,000 6.50% Notes Due 2008 (the "Notes") of Constructora
Internacional de Infraestructura, S.A. de C.V. (the "Issuer"), we confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the
"Securities Act"), or an entity in which all of the equity owners are
accredited investors within the meaning of Rule 501(a)(1), (2) or (3)
under the Securities Act (an "Institutional Accredited Investor");
(ii) (A) any purchase of the Notes by us will be for our account or
for the account of one or more other Institutional Accredited Investors or
as fiduciary for the account of one or more trusts, each of which is an
"accredited investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment
discretion or (B) we are a "bank," within the meaning of Section 3(a)(2)
of the Securities Act, or a "saving and loan association" or other
institution described in Section 3(a)(5)(A) of the Securities Act that is
acquiring the Notes as fiduciary for the account of one or more
institutions for which we exercise sole investment discretion;
(iii) in the event that we purchase any of the Notes, we will
acquire Notes having a minimum purchase price of not less than US$100,000
for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing the Notes;
(v) we are not acquiring the Notes with a view to distribution
thereof or with any present intention of offering or selling any of the
Notes except that if in the future we, on our own behalf, or on behalf of
each account for which we acquire any Notes decide to resell, pledge or
otherwise transfer the Notes, the Notes may be offered, resold, pledged or
otherwise transferred only inside the United States in accordance with
Rule 144A under the Securities Act or outside the United States in
accordance with Regulation S under the Securities Act as provided below;
provided that
G-1
the disposition of our property and the property of any accounts for which
we are acting as fiduciary shall remain at all times within our control;
and
(vi) we have received a copy of the Offering Memorandum relating to
the offering of the Notes and acknowledge that we have had access to such
financial and other information, and have been afforded the opportunity to
ask such questions of representatives of the Issuer and the Sponsors and
receive answers hereto, as we deem necessary in connection with our
decision to purchase the Notes.
We understand that the Notes are being offered in a transaction not
involving any public offering within the United States within the meaning of the
Securities Act and that the Notes have not been and will not be registered under
the Securities Act, and we agree, on our own behalf and on behalf of each
account for which we acquire the Notes, that if in the future we decide to
resell, pledge or otherwise transfer such Notes, such Notes may be offered,
resold, pledged or otherwise transferred only (i) inside the United States to a
person who we reasonably believe is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (ii) outside the United States in a transaction in
accordance with Rule 904 under the Securities Act, (iii) pursuant to an
exemption from registration under the Securities Act provided by Rule 144
thereunder (if available) or (iv) pursuant to an effective registration
statement under the Securities Act, in each of cases (i) through (iv) in
accordance with any applicable securities laws of any State of the United States
or any other applicable jurisdiction. We understand that the Note Trustee for
the Notes will not be required to accept for registration of transfer the Notes
acquired by us, except upon presentation of evidence satisfactory to the Issuer,
the Sponsors and the transfer agent that the foregoing restrictions on transfer
have been complied with. We further understand that the Notes acquired by us
will be in the form of definitive physical certificates and that such
certificates will bear a legend reflecting the substance of this paragraph.
We acknowledge that you and others will rely upon our confirmations,
acknowledgments and agreements set forth herein, and we agree to notify you
promptly in writing if any of our representations or warranties herein ceases to
be accurate and complete.
We acknowledge that you, the Issuer, and the other will rely upon
our confirmations, acknowledgements and agreements set forth herein, and we
agree to notify you promptly in writing if any of our representations and
warranties herein ceases to be accurate and complete.
THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
Date: ______________________ ___________________________________
(Name of Purchaser)
By: _______________________________
Name:
Title:
Address:
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