EXHIBIT B
FISCAL AGENCY AGREEMENT
between
REPUBLIC OF PERU
as Issuer
and
[ ]
as Fiscal Agent, Principal Paying Agent and Registrar
Dated as of [ ]
TABLE OF CONTENTS
Page
ARTICLE I
GENERAL
SECTION 1.1. Certain Terms Defined........................................................1
SECTION 1.2. New York Time................................................................3
ARTICLE II
AGENTS
SECTION 2.1. Appointment of Agents........................................................3
ARTICLE III
ISSUE, EXECUTION, FORM AND REGISTRATION OF BONDS
SECTION 3.1. Bonds Issuable in Series.....................................................4
SECTION 3.2. Execution and Authentication.................................................6
SECTION 3.3. Form, Denomination and Date of Bonds.........................................7
SECTION 3.4. Registration, Transfer and Exchange of Bonds.................................9
SECTION 3.5. Mutilated, Defaced, Destroyed, Stolen and Lost Bonds; Cancellation and
Destruction of Bonds........................................................10
ARTICLE IV
PAYMENTS
SECTION 4.1. Payments....................................................................12
SECTION 4.2. Cancellation................................................................13
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.1. Notice of Event of Default; Acceleration....................................14
SECTION 5.2. Delivery of Information;
Purchase of Bonds by Peru...................................................16
ARTICLE VI
CONCERNING THE AGENTS
SECTION 6.1. Agents......................................................................16
SECTION 6.2. Maintenance of Agents.......................................................19
ARTICLE VII
AMENDMENTS
SECTION 7.1. Amendments and Waivers......................................................20
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1. Officials, Officers, and Directors of Peru Exempt from Individual
Liability...................................................................24
SECTION 8.2. Provisions of Agreement for the Sole Benefit of Parties and Bondholders.....24
SECTION 8.3. Successors and Assigns of Peru Bound by Agreement...........................24
SECTION 8.4. Notices and Demands on Peru, Fiscal Agent and Bondholders...................24
SECTION 8.5. Payments Due on Non-Business Days...........................................25
SECTION 8.6. Governing Law; Consent to Jurisdiction; Waiver of Immunities................25
SECTION 8.7. Separability................................................................27
SECTION 8.8. Counterparts................................................................27
SECTION 8.9. Effect of Headings..........................................................27
EXHIBIT A Form of Global Bond
EXHIBIT B Form of Definitive Bond
EXHIBIT C Form of Terms and Conditions
EXHIBIT D Form of Authorization
EXHIBIT E Form of Transfer
FISCAL AGENCY AGREEMENT dated as of [ ], between the Republic
of Peru ("Peru") and [ ] (the "Bank") as fiscal agent, principal paying agent,
transfer agent and registrar.
W I T N E S S E T H:
WHEREAS, Peru has filed with the Securities and Exchange
Commission (the "Commission") a registration statement No. [ ] under
Schedule B to the Securities Act of 1933, as amended, providing for the issuance
from time to time thereunder of debt securities ("Securities"), warrants
("Warrants") and units ("Units"), in an aggregate amount of up to [ ];
WHEREAS, it is the intention of the parties hereto that this
Agreement shall specify the terms and conditions under which Securities in the
form of Bonds (as defined herein) shall be issued; and in the event Peru
determines to issue Warrants, Units or Securities other than in the form of
Bonds, the Fiscal Agent and Peru may amend this Agreement to give effect
thereto, to provide for the form and provisions of such Warrants, Units or
Securities other than in the form of Bonds or may enter into a separate
agreement, as mutually agreed at such time;
WHEREAS, it is also the intention that each issuance of Bonds
(and other Securities as may be issued and authenticated hereunder) shall be
treated as a separate series of Securities (each, a "Series"), and all of the
provisions hereof shall apply with the same force and effect to each such
separate Series;
WHEREAS, all things have been, and will be, done as necessary
to make the Securities, when executed and delivered by Peru and authenticated
and delivered as provided in this Agreement, the valid, binding and legal
obligations of Peru, and to constitute hereby a valid Agreement according to its
terms.
NOW, THEREFORE:
In consideration of the premises and the purchases of
Securities by the holders thereof, Peru and the Fiscal Agent mutually covenant
and agree for the equal and proportionate benefit of the respective holders from
time to time of Securities as follows:
ARTICLE I
GENERAL
SECTION 1.1. Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Agreement and of any supplemental agreement hereto shall have
the respective meanings specified in this Section 1.1. The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as the
singular.
"Additional Amounts" shall have the meaning set forth in
Section 6 of the Terms.
"Agreement" means this instrument as amended or supplemented
from time to time as herein provided.
"Authorized Official" means a duly authorized representative
of the Minister of Economy and Finance of Peru.
"Authorized Signatory" means a senior official of the Ministry
of Economy and Finance of Peru.
"Bond" or "Bonds" means any Securities consisting of bonds,
notes, debentures and/or other evidences of indebtedness of Peru authenticated
and delivered under this Agreement.
"Bondholder" means the registered holder of Bonds of one or
more Series acting separately with respect to each such Series of Bonds.
"Business Day" means any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇.
"Closing Date" with respect to any Bonds means the date on
which such Bonds will be issued.
"Custodian" means the Person selected with the consent of Peru
to act as custodian of Bonds of any Series for the Depository pursuant to a
custody agreement or any similar successor agreement.
"Depository" means, with respect to the Bonds issued in the
form of a Global Bond, DTC or such other Person as shall be designated as
Depository by Peru unless a successor Depository shall have been appointed
pursuant to the applicable provision of this Agreement, and thereafter
"Depository" shall mean or include each Person who is then a Depository
hereunder.
"DTC" means The Depository Trust Company of The City of New
York, a New York corporation.
"Event of Default" means any event or condition specified as
such in Section 4 of the Terms unless otherwise specified by Peru and the Fiscal
Agent in an amendment hereto entered into in connection with an issuance of
Bonds or other Securities.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"External Indebtedness" shall have the meaning set forth in
Section 3(c)(i) of the Terms.
"Officer's Certificate" means, as the context requires, a
certificate signed by the appropriate Authorized Official or Officials in the
case of Peru.
"Person" means an individual, a corporation, a partnership, a
joint venture, a firm, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
department or instrumentality thereof.
"Public External Indebtedness" shall have the meaning set
forth in Section 3(c)(ii) of the Terms.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Terms" shall have the meaning set forth in Section 3(b).
"Underwriters" means those Underwriters named from time to
time in an Underwriting Agreement among Peru and the Underwriters named therein
relating to an issuance of Bonds.
SECTION 1.2. New York City Time. All times referred to in this Agreement or the
Bonds are local time in The City of New York, United States of America, except
as may otherwise be specified.
ARTICLE II
AGENTS
SECTION 2.1. Appointment of Agents. (a) Peru hereby appoints the Bank, acting
through its office at [ ], as the fiscal agent in respect of the Bonds upon the
terms and subject to the conditions set forth herein and in the Terms and the
Bank hereby accepts such appointment. The Bank, as well as any successor or
successors as such fiscal agent qualified and appointed in accordance with
Section 6.2 hereof, is herein called the "Fiscal Agent." The Fiscal Agent shall
have the powers and authority granted to and conferred upon it herein and in the
Terms, and such further powers and authority, acceptable to it, to act on behalf
of Peru as Peru may hereafter grant to or confer upon it. The Fiscal Agent shall
keep a copy of this Agreement available for inspection during normal business
hours at its office in The City of New York.
(b) Peru hereby appoints the Bank, acting through its office
at [ ], as registrar in respect of the Bonds, upon the terms and subject to the
conditions set forth herein and in the Terms and the Bank hereby accepts such
appointment. The Bank, as well as any successor or successors as such registrar
qualified and appointed in accordance with Section 6.2 hereof, is herein called
the "Registrar." The Registrar shall have the powers and authority granted to
and conferred upon it herein and in the Terms, and such further powers and
authority, acceptable to it, to act on behalf of Peru as Peru may hereafter
grant to or confer upon it.
(c) Peru hereby appoints the Bank, acting through its office
at [ ], as principal paying agent and transfer agent in respect of the Bonds
upon the terms and subject to the conditions set forth herein and in the Terms
and the Bank hereby accepts such appointment. The Bank, as well as any successor
or successors as such principal paying agent qualified and appointed in
accordance with Section 6.2 hereof, is herein called the "Paying Agent." The
Paying Agent shall have the powers and authority granted to and conferred upon
it herein and in the Terms, and such further powers and authority, acceptable to
it, to act on behalf of Peru as Peru may hereafter grant to or confer upon it.
The Paying Agent, the Fiscal Agent and the Registrar are sometimes herein
referred to severally as an "Agent" and, collectively, as the "Agents." The
other paying agents and transfer agents appointed from time to time by Peru as
provided herein and in the Terms are referred to respectively as "paying agents"
and "transfer agents." Peru has initially appointed [ ] (the "Luxembourg Paying
Agent"), as an additional paying agent and transfer agent for the Bonds and the
Fiscal Agent hereby confirms that the Luxembourg Paying Agent accepts such
appointment.
ARTICLE III
ISSUE, EXECUTION, FORM AND REGISTRATION OF BONDS
SECTION 3.1. Bonds Issuable in Series. (a) Peru may issue Bonds in one or more
separate Series from time to time. The aggregate principal amount of the Bonds
of all Series (and other Securities) which may be authenticated and delivered
under this Agreement from and after the date hereof and which may be outstanding
at any time is not limited by this Agreement. The terms of each Series of Bonds
delivered to the Fiscal Agent for authentication on original issuance pursuant
to Section 3.2 of this Agreement shall from time to time be established by Peru
in a certificate (the "Authorization") substantially in the form set forth in
Exhibit D hereto and executed on behalf of Peru, which shall set forth the
following (as applicable):
(i) designation: the specific designation of the Bonds of such Series
(which shall distinguish the Bonds from all other Series);
(ii) aggregate principal amount: any limit on the aggregate principal amount
of the Series of Bonds which may be authenticated and delivered under
this Agreement (except for Bonds authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Bonds of such Series pursuant to the provisions of this Agreement or of
the Bonds of such Series);
(iii) price: the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Bonds of such Series will be
issued;
(iv) interest rates, etc.: the rate or rates (which may be fixed or
floating) per annum at which the Bonds of such Series shall bear
interest, if any, or the manner in which such rate or rates will be
determined (including any provisions for the increase or decrease of
such rate or rates upon the occurrence of specified events), the date
or dates from which such interest, if any, shall accrue, the interest
payment dates on which such interest shall be payable and the record
dates for the determination of holders of the Bonds of such Series to
whom interest is payable;
(v) payment dates, etc.: the date or dates on which the principal and
premium, if any, of the Bonds of such Series is payable;
(vi) index features, etc.: the manner in which the amount of payments of
principal, premium, if any, or any interest on such Bonds is to be
determined and if such determination is to be made with reference to
any index, formula or other method;
(vii) place of payment, etc.: the place or places where, and the manner in
which the principal of, and premium, if any, and any interest on the
Bonds of such Series are payable;
(viii) form of bonds: the form of Bonds of such Series (global or certificated
and registered or bearer) and in the case of a global bond (each a
"Global Security"), the Depositary for such Global Security;
(ix) guarantee: the guarantor, if any, of Bonds of such Series and the terms
and conditions of such guarantee, including whether such guarantee is a
partial or full guarantee;
(x) sinking fund, etc.: the obligation, if any, of Peru to redeem, purchase
or repay Bonds of such Series pursuant to any sinking fund or analogous
provisions and the price or prices at which, the period or periods
within which, and the terms and conditions upon which Bonds shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(xi) optional redemption features: the price or prices at which, the period
or periods within which and the terms and conditions upon which Bonds
of such Series may be redeemed, in whole or in part, at the option of
Peru or otherwise;
(xii) repayment features: any provisions that entitle holders of the Bonds of
such Series to early repayment of all or a portion of such Bonds at
their option;
(xiii) currency: the currency or currencies in which the Bonds of such Series
are denominated and in which Peru will make payments;
(xiv) governing law: the law of the jurisdiction governing the Bonds of such
Series;
(xv) denominations: the authorized denominations of the Bonds of such
Series;
(xvi) covenants and events of default: any covenants or agreements of Peru
and events which give rise to the right of a holder of a Bond of such
Series to accelerate the maturity of such Bond other than such
covenants, agreements or events specified herein;
(xvii) conversion or exchange features: any terms and conditions upon which
the holders of the Bonds of such Series shall be able to exchange or
convert such Bonds;
(xviii) listing: the stock exchanges, if any, on which the Bonds of such Series
will be listed; and
(xix) other terms: any other terms of the Bonds of such Series.
The Authorization shall be delivered to the Fiscal Agent and
copies thereof shall be held on file and made available for inspection at the
corporate trust office of the Fiscal Agent in The City of New York, and at the
offices of any paying agents for the Bonds of the Series to which the
Authorization relates.
The Bonds of a Series may be issuable pursuant to Warrants (if
so provided in the Terms of such Bonds) and the Fiscal Agent may act as Warrant
Agent or in any similar capacity in connection therewith. In the event that the
Fiscal Agent is to act as Warrant Agent in connection with an issue of Warrants,
Peru and the Fiscal Agent agree to amend this Agreement in order to provide for
the issuance of such Warrants or to enter into a separate Warrant Agreement, as
mutually agreed at such time.
(b) All Bonds authenticated hereunder shall have the terms and
conditions set forth in the Terms and Conditions of the Bonds (the "Terms")
substantially as set forth in Exhibit C hereto with such interest rate, maturity
date and other terms and conditions as are in addition to, or in substitution
for, the provisions of the Terms as shall be specified in writing to the Fiscal
Agent by delivery of the Authorization. The definitive form of Bonds issued
hereunder shall be prepared by or on behalf of Peru and submitted to the Fiscal
Agent in connection with the consummation of an issuance of Bonds on each
Closing Date and the terms thereof shall control in the event of any
inconsistency with the terms of this Agreement or form of Bonds attached hereto.
SECTION 3.2. Execution and Authentication. (a) Upon the execution and delivery
of this Agreement, or from time to time thereafter, Bonds in an aggregate
principal amount not in excess of the aggregate principal amount specified in
the Bonds of such Series in accordance with the Authorization thereof may be
executed by Peru and delivered to the Fiscal Agent for authentication. The
Fiscal Agent shall manually authenticate and deliver the Bonds to, or upon the
written order of, Peru, without any further action by Peru. Any Bond that is
required to be authenticated by the Fiscal Agent pursuant to this Section 3.2
may be authenticated by a duly appointed signatory of the Fiscal Agent. The
Fiscal Agent shall at all times act as the sole authenticating agent for the
authentication of the Bonds. No Bond will be entitled to any benefit under this
Agreement or be valid for any purpose, unless it has been authenticated as
provided in this Agreement and there appears on such Bond a certificate of
authentication executed by the Fiscal Agent by manual signature, and such
certificate upon any Bond will be conclusive evidence, and the only evidence,
that such Bond has been duly authenticated and delivered hereunder and is
entitled to the benefit of this Agreement.
(b) The Bonds must be executed on behalf of Peru by an
Authorized Official. Such signature may be the manual or facsimile signature of
the present or any future such Authorized Official. If any Authorized Official
of Peru ceases to be such Authorized Official before the Bond so signed is
authenticated and delivered by the Fiscal Agent or disposed of by Peru, such
Bond nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Bond has not ceased to be such Authorized Official of
Peru; and any Bond may be signed on behalf of Peru by such person as, at the
actual date of the execution of such Bond, is the proper Authorized Official of
Peru, even though at the date of the execution and delivery of this Agreement
such person is not such an Authorized Official. From time to time Peru will
furnish the Agents with a certificate as to the incumbency and specimen
signatures of persons who are then Authorized Officials. Until the Agents
receive a subsequent certificate from Peru, the Agents will be entitled to rely
on the last such certificate delivered to them for purposes of determining the
Authorized Officials.
SECTION 3.3. Form, Denomination and Date of Bonds. (a) Unless otherwise provided
in the applicable Authorization, the Bonds will be issued only in fully
registered form, without interest coupons, substantially in the form of Exhibit
A hereto (the "Global Bonds") or Exhibit B hereto (the "Definitive Bonds"). As
set forth in Sections 3.3(i) and (j), Definitive Bonds may be issued in exchange
for beneficial interests in the Global Bond or Global Bonds. The authorized
denominations of the Bonds of a Series shall be as provided in the Terms. The
Bonds of a Series shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plans as the officers of Peru executing
the same may determine with the approval of the Fiscal Agent.
(b) Any of the Bonds of a Series may be issued with
appropriate insertions, omissions, substitutions and variations, and may have
imprinted or otherwise reproduced thereon such marks of identification,
endorsement, legend or legends not inconsistent with the provisions of this
Agreement or the Authorization of such Series as may be required to comply with
any law or with any rules or regulations pursuant thereto, or with the rules of
any securities market in which the Bonds are admitted to trading, or to conform
to general usage. All Bonds of a particular Series shall otherwise be
substantially identical except as to denomination and as otherwise provided
herein or in the Authorization of such Series.
(c) Each Bond shall be dated the date of its authentication by
the Fiscal Agent.
(d) The Global Bond will be deposited by the Fiscal Agent with
the Depository or on behalf of the Depository with the Custodian, in either case
in the name of a participant in the Depository.
(e) The Depository for the Global Bond will credit on its book
entry registration and transfer system the respective principal amounts of the
Bonds represented by such Global Bond to the accounts of Persons that have
accounts with such Depository ("Participants"). The accounts to be credited
shall be designated by the Underwriters with respect to such Global Bond.
Ownership of beneficial interests in a Global Bond will be limited to
Participants or Persons that may hold interests through Participants. Ownership
of beneficial interests in a Global Bond will be shown on, and the transfer of
that ownership will be effected only through, records maintained by the
Depository (with respect to interests of Participants) and records of
Participants (with respect to interests of Persons who hold through
Participants). Owners of beneficial interests in a Global Bond (other than
Participants) will not receive written confirmation from the applicable
Depository of their purchase. Each beneficial owner is expected to receive
written confirmation providing details of the transaction, as well as periodic
statements of its holdings, from the Depository (if such beneficial owner is a
Participant) or from the Participant through which such beneficial owner entered
into the transaction (if such beneficial owner is not a Participant). The laws
of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, pledge or transfer beneficial interests in the Global
Bond.
(f) So long as the Depository for the Global Bond, or its
nominee, is the registered owner of such Global Bond, such Depository or such
nominee, as the case may be, will be considered the sole owner or holder of the
Bonds represented by such Global Bond for all purposes under this Agreement.
Except as specified below or in the Terms specific to the Bonds of a Series,
owners of beneficial interests in a Global Bond will not be entitled to have any
of the individual Bonds represented by such Global Bond registered in their
names, and will not receive or be entitled to receive physical delivery of any
such Bonds in definitive form and will not be considered the owners or holders
thereof under such Bonds or this Agreement. Accordingly, each Person owning a
beneficial interest in a Global Bond must rely on the procedures of the
Depository for such Global Bond and, if such Person is not a Participant, on the
procedures of the Participant through which such Person owns its interest, to
exercise any rights of a holder under the Bonds or this Agreement. Peru
understands that under existing industry practices, if Peru requests any action
of holders, or an owner of a beneficial interest in such Global Bond desires to
take any action which a holder is entitled to take under this Agreement, the
Depository for such Global Bond would authorize the Participants holding the
relevant interests to take such action, and such Participants would authorize
beneficial owners owning through such Participants to take such action or would
otherwise act upon the instructions of beneficial owners holding through them.
(g) Payments of principal of and any premium and any interest
on Bonds registered in the name of the Depository or its nominee will be made to
the Depository or its nominee, as the case may be, as the holder of the Global
Bond representing such Bonds. Peru expects that the Depository for a series of
Global Bonds or its nominee, upon receipt of any payment of principal, premium
or interest in respect of a Global Bond will credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Bond as shown on the records of such
Depository. Peru also expects that payments by Participants to owners of
beneficial interests in such Global Bond held through such Participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name". Such payments will be the responsibility of such Participants.
None of Peru, any paying agent or the Fiscal Agent, in its capacity as registrar
for such Bonds, will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial interests in a
Global Bond or for maintaining, supervising or reviewing any records relating to
such beneficial interests.
(h) A Global Bond may be deposited with such other Depository
as Peru may from time to time designate, and shall bear such legends as may be
appropriate. Any Depository designated pursuant to this Section 3.3 must, at the
time of its designation and at all times while it serves as Depository, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
(i) If at any time Peru notifies the Depository that it will
no longer be the Depository for the Bonds, or if the Depository notifies Peru
that it is unwilling, unable or no longer qualified to continue acting as the
Depositary to the Bonds, or that it has ceased to be a clearing agency
registered under the Exchange Act at a time when it is required to be so
registered, and Peru does not appoint a successor Depository within 90 days,
Peru's election pursuant to this Section 3.3 that such Bonds be represented by
one or more Global Bonds shall no longer be effective and Peru will execute, and
the Fiscal Agent, upon receipt of an Officer's Certificate of Peru for the
authentication and delivery of Definitive Bonds, and upon receipt of an adequate
supply of Definitive Bonds, will authenticate and deliver, without charge,
Definitive Bonds in authorized denominations in an aggregate principal amount
equal to the principal amount of such Global Bonds in exchange for such Global
Bonds.
(j) Peru, at any time and at its sole discretion, may
determine to terminate the book-entry system through the Depository and make
Definitive Bonds available to Bondholders or their nominees. In either such
event, Peru hereby agrees to execute and the Fiscal Agent, upon receipt from
Peru of an adequate supply of Definitive Bonds, will authenticate and deliver,
in exchange for such Global Bond, Definitive Bonds (and if the Fiscal Agent has
in its possession Definitive Bonds previously executed by Peru, the Fiscal Agent
will authenticate and deliver such Bonds), in authorized denominations, in an
aggregate principal amount equal to the principal amount of such Global Bond.
(k) Upon the exchange of the Global Bond or Global Bonds for
Definitive Bonds, the Global Bond or Global Bonds shall be canceled by the
Fiscal Agent as set forth in Section 3.5(c).
(l) Definitive Bonds will only be issued in exchange for
interests in a Global Bond pursuant to Sections 3.3(i) and (j) hereof.
SECTION 3.4. Registration, Transfer and Exchange of Bonds. (a) The Registrar
shall maintain at its corporate trust office in the City of New York a register
of Bonds (the "Register") for the registration of Bonds and the transfers and
exchanges thereof. The Register will show the amount of the Bonds, the date of
issue, all subsequent transfers and changes of ownership in respect thereof and
the names, tax identifying numbers and addresses of the registered holders of
the Bonds. The Register shall also include customary notations, including,
without limitation, whether particular Bonds have been paid or canceled, and, in
the case of mutilated, destroyed, lost or stolen Bonds, whether such Bonds have
been replaced. In the case of the replacement of any of the Bonds, the Register
will include notations of the Bond so replaced, and the Bond issued in
replacement thereof. In the case of the cancellation of any of the Bonds, the
Register will include notations of the Bond so canceled and the date on which
such Bond was canceled. The Registrar shall at all reasonable times during
office hours make the Register available to Peru or any person authorized by
Peru in writing for inspection and for the taking of copies thereof or extracts
therefrom, and at the expense of Peru, the Registrar shall deliver to such
persons, lists of holders of Bonds and their addresses and, in the case of Peru
or a person authorized by Peru only, their holdings of Bonds, in each case as
they may request. The Register shall be in written form in the English language
or in any other form capable of being converted into such form within a
reasonable time.
(b) The holder of any Definitive Bond may transfer the same in
whole or in part (in an amount equal to the authorized denomination or any
integral multiple thereof) by surrendering such Bond at the office of the Fiscal
Agent in The City of New York or at the office of any paying agent, together
with an executed instrument of assignment and transfer substantially in the form
of Exhibit E to this Agreement. In exchange for any Definitive Bond properly
presented for transfer, the Fiscal Agent shall, within three Business Days of
such request if made at the office of the Fiscal Agent in The City of New York
or within ten Business Days if made at the office of a paying agent (other than
the Fiscal Agent), authenticate and deliver at the relevant office to the
transferee or send by first class mail (at the risk of the transferee) to such
address as the transferee may request, a Definitive Bond or Bonds, as the case
may require, for like aggregate principal amount and of such authorized
denomination or denominations as may be requested. The presentation for transfer
of any Definitive Bond shall not be valid unless made at the office of the
Fiscal Agent in The City of New York or at the office of a paying agent by the
registered holder in person, or by a duly authorized attorney-in-fact. Peru
shall ensure that the Fiscal Agent shall be provided with an adequate supply of
Definitive Bonds for authentication and delivery pursuant to the terms of this
Section 3.4.
(c) At the option of the holder, a Definitive Bond or Bonds
may at any time be presented for exchange into an equal aggregate principal
amount of Definitive Bonds in different authorized denominations, but only at
the office of the Fiscal Agent in The City of New York or at the office of a
paying agent (other than the Fiscal Agent) together with a written request for
the exchange. Subject to this Section 3.4 whenever one or more Definitive Bonds
shall be surrendered for exchange for a Definitive Bond or Bonds, the Fiscal
Agent shall authenticate and deliver within three Business Days if such request
is made at the office of the Fiscal Agent in The City of New York, or within ten
Business Days if such request is made at the office of a paying agent, a
Definitive Bond or Bonds for a like aggregate principal amount and of such
authorized denomination or denominations as may be requested. Peru shall ensure
that the Fiscal Agent shall be provided with an adequate supply of Definitive
Bonds for authentication and delivery pursuant to the terms of this Section 3.4.
(d) All new Bonds authenticated by the Fiscal Agent and
delivered by the Fiscal Agent or any transfer agent upon registration of
transfer or in exchange for Bonds of other denominations shall be so dated that
neither gain nor loss of interest shall result from such registration of
transfer or exchange.
(e) All Bonds surrendered for registration of transfer or
exchange shall be delivered to the Registrar. The Registrar shall cancel and
destroy all such Bonds surrendered for registration of transfer or exchange and
shall promptly deliver a certificate of destruction, stating the serial numbers,
U.S. dollar value (or equivalent value in the currency or currencies in which
the Bonds of such series are denominated) and total number of all Bonds
destroyed hereunder, to Peru.
(f) Transfer, registration and exchange of any Bond or Bonds
will be permitted and executed as provided in the Terms and this Section 3.4,
and the costs and expenses of effecting any exchange or registration of transfer
will be borne as provided in the Terms, subject to such reasonable regulations
as Peru, the Registrar and the transfer agents may prescribe.
SECTION 3.5. Mutilated, Defaced, Destroyed, Stolen and Lost Bonds; Cancellation
and Destruction of Bonds. (a) Peru shall execute and deliver to the Fiscal Agent
Bonds in such amounts and at such times as to enable the Fiscal Agent to fulfill
its responsibilities under this Agreement and the Bonds.
(b) The Fiscal Agent is hereby authorized, in accordance with
Section 7 of the Terms, to authenticate and deliver or cause to be authenticated
and delivered from time to time Bonds in exchange for or in lieu of Bonds that
have become mutilated or defaced, or destroyed, lost or stolen. Each Bond
authenticated and delivered in exchange for or in lieu of any such Bond will
carry all the rights to principal and interest that were carried by such Bond
before such mutilation or defacement, or destruction, loss or theft.
(c) In the case of a mutilated, defaced, destroyed, lost or
stolen Bond, indemnity satisfactory to the Fiscal Agent and Peru will be
required of the owner of such Bond before a replacement Bond will be issued. All
expenses (including the reasonable legal fees and expenses of Peru and the
Fiscal Agent) associated with obtaining such indemnity and in issuing the new
Bond will be borne by the owner of the mutilated, defaced, destroyed, lost or
stolen Bond.
(d) In the case of the replacement of any of the Bonds, the
Fiscal Agent will keep a record of the Bonds so replaced, and the Bonds issued
in replacement thereof. In the case of the cancellation of any of the Bonds
(including upon repayment), the Fiscal Agent will keep a record of the Bonds so
canceled and the date on which such Bonds were canceled.
(e) All Bonds issued upon any transfer or exchange of Bonds
shall be valid obligations of the Republic, evidencing the same debt, and
entitled to the same benefits under this Agreement, as the Bonds surrendered
upon such transfer or exchange.
ARTICLE IV
PAYMENTS
SECTION 4.1. Payments. (a) In order to provide for the payment of the principal
of and interest on the Bonds (including Additional Amounts pursuant to Section 6
of the Terms) of any Series as such principal or interest will become due and
payable pursuant to the Terms, Peru hereby agrees to pay to the Fiscal Agent, by
10:00 A.M., New York City time, on the Business Day prior to each Payment Date
and the Maturity Date (as defined in the Terms) (or the date on which the
principal of and interest on the Bonds becomes due as a result of the
acceleration of the Bonds pursuant to Section 4 of the Terms), an amount in
immediately available funds in U.S. dollars that (together with any amounts then
held by the Fiscal Agent and available for that purpose) must be sufficient to
pay the entire amount of interest on the Bonds due on such Payment Date
(including any Additional Amounts) or principal of and interest on the Bonds due
on the Maturity Date, as the case may be, in U.S. dollars on such date with
respect to all the Bonds (or all or any portion thereof accelerated pursuant to
Section 4 of the Terms).
Peru shall confirm to the Fiscal Agent by telex not later than
12:00 noon, New York City time, two Business Days before the day payment is due
to be made to the Fiscal Agent that it has issued irrevocable payment
instructions for the transfer of the relevant sum due to the account of the
Fiscal Agent, and Peru hereby authorizes and directs the Fiscal Agent from such
funds to make, or cause to be made, payment of the principal of, and any
interest on, as the case may be, the Bonds as set forth in this Agreement and in
the Terms. The Fiscal Agent shall make amounts received by it available to the
Paying Agent and the Fiscal Agent and the Paying Agent shall hold such funds in
trust, for the benefit of the persons entitled thereto, and apply them to the
payment of the amount then due in respect of the Bonds (including any Additional
Amounts) on such Payment Date or Maturity Date, as the case may be. Neither the
Paying Agent nor any other paying agent shall be required to use its own funds
in making any payment on the Bonds. All sums payable hereunder shall be paid to
such account of the Fiscal Agent and with such bank located in The City of New
York. Payments to holders of Bonds must be made by the Paying Agent in
accordance with Section 2 of the Terms.
(b) At least 10 days prior to the date of payment of the
principal of or interest on the Bonds of a Series, if at such time such payment
will be subject to deduction or withholding for or on account of any tax,
assessment or other governmental charge, Peru shall furnish the Fiscal Agent,
the Paying Agent and each other paying agent with a certificate of an Authorized
Signatory of Peru instructing the Fiscal Agent, the Paying Agent and each other
paying agent whether such payment will be made without deduction or withholding
for or on account of any tax, assessment or other governmental charge. In the
absence of any such certificate the Fiscal Agent may assume that no such
deduction or withholding will be required. If any such deduction or withholding
will be required, then such certificate must specify, by country, the amount, if
any, required to be withheld on such payment to holders of such Bonds and that
Peru will pay or cause to be paid to the Fiscal Agent (or, if applicable,
directly to the Payment Agent or another paying agent or agents) Additional
Amounts, if any, required by the Terms to be paid. Peru agrees to indemnify the
Fiscal Agent, the Paying Agent and each other paying agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
gross negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by them in reliance on any certificate furnished
pursuant hereto.
(c) Anything in this Section 4.1 to the contrary
notwithstanding, Peru may at any time, for the purpose of obtaining a
satisfaction and discharge of this Agreement or for any other reason, pay or
cause to be paid to the Fiscal Agent all sums held in trust by Peru or any
paying agent hereunder, as required by this Section 4.1, such sums to be held by
the Fiscal Agent upon the trusts herein contained.
SECTION 4.2. Cancellation. All Bonds delivered to the Fiscal Agent (or any other
Agent appointed by Peru pursuant to Section 2 hereof) for payment or
registration of transfer or exchange as provided herein or in the Bonds shall be
marked "canceled" and, in the case of any other such Agent, forwarded to the
Fiscal Agent. All canceled Bonds shall be destroyed by the Fiscal Agent or such
other person as may be jointly designated by Peru and the Fiscal Agent, which
shall thereupon furnish certificates of such destruction, stating the serial
numbers, U.S. dollar value and total number of all Bonds destroyed hereunder, to
Peru.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.1. Notice of Event of Default; Acceleration. (a) Each of the following
events will constitute an "Event of Default" with respect to any Series of
Bonds:
(i) if Peru fails to pay interest or principal on the Bonds of that Series
when due and such failure continues for a period of 30 days; or
(ii) if Peru does not perform any other obligation under any Bond of that
Series and such failure is incapable of remedy or is not remedied within 60 days
after written notice has been given to Peru by the Fiscal Agent; or
(iii) if Peru fails to make any payment in respect of:
(A) External Indebtedness outstanding as of February 21, 2002; or
(B) Public External Indebtedness;
in an aggregate principal amount in excess of U.S.$25,000,000 (or
its equivalent in any other currency) when due, and such failure
continues beyond the applicable grace period; or
(iv) if any event or condition occurs that results in the acceleration of
the maturity of:
(A) External Indebtedness outstanding as of February 21, 2002; or
(B) Public External Indebtedness;
in an aggregate principal amount in excess of U.S.$25,000,000 (or
its equivalent in any other currency); or
(v) if Peru declares a general suspension on or moratorium with respect to
the payment of principal or interest on all or a portion of its External
Indebtedness; or
(vi) if (A) Peru contests the validity of, or its obligations under, any
Bond of that Series or, to the extent adversely affecting such Bonds, this
Agreement, (B) Peru denies any of its obligations under any Bond of that Series
or, to the extent adversely affecting such Bonds, this Agreement, or (C) any
constitutional provision, treaty, law, regulation, decree, or other official
pronouncement of Peru, or any final decision by any court in Peru having
jurisdiction, renders it unlawful for Peru to pay any amount due on any Bonds of
that Series or to perform any of its obligations under any Bonds of that Series
or, to the extent adversely affecting such Bonds, this Agreement; or
(vii) if any writ, execution, attachment or similar process is levied
against all or any substantial part of the assets of Peru in connection with any
judgment for the payment of money exceeding U.S.$25,000,000 (or its equivalent
in any other currencies), and Peru fails to satisfy or discharge such judgment,
or adequately bond, contest in good faith or receive a stay of execution or
continuance in respect of such judgment, within a period of 120 days; or
(viii) if Peru fails to maintain its membership in, and its eligibility to
use the general resources of, the International Monetary Fund.
(b) Upon the occurrence and during the continuance of an Event of Default.
(A) in the case of any Event of Default described in clause (ii),
(iii), (iv), (vi), (vii) or (viii), the holders of at least 25% in
aggregate principal amount of all Bonds of the relevant Series (other than
Bonds held by Peru) then Outstanding may by written demand given to Peru
(with a copy to the Fiscal Agent) declare the Bonds of that Series held by
it to be immediately due and payable; or
(B) in the case of any Event of Default described in clauses (i) or
(v), each holder of Bonds of that Series may by written demand given to
Peru (with a copy to the Fiscal Agent) declare the Bonds of that Series
held by it to be immediately due and payable;
and upon such declaration the principal amount of Bonds of that Series and the
accrued interest on such Bonds will become immediately due and payable upon the
date that such written notice is received at the office of the Fiscal Agent,
unless prior to such date all Events of Default in respect of all Bonds of such
Series have been cured. The right to give such acceleration notice will
terminate if the event giving rise to such right has been cured before such
right is exercised. Holders of Bonds of such Series holding in the aggregate at
least 66 2/3% in principal amount of the then Outstanding Bonds of that Series
may waive any existing defaults, and rescind or annul any notice of
acceleration, on behalf of all Bondholders, if (i) following the declaration of
such Bonds due and payable immediately, Peru has deposited with the Fiscal Agent
an amount sufficient to pay all overdue installments of principal, interest and
Additional Amounts in respect of such Bonds as well as the reasonable fees and
compensation of the Fiscal Agent; and (ii) all other Events of Default have been
remedied. In the event of a declaration of acceleration because of an Event of
Default set forth in clause (iii) or (iv) above, such declaration of
acceleration shall be automatically rescinded and annulled if the event
triggering such Event of Default pursuant to such clause (iii) or (iv) shall be
remedied, cured or waived by the holders of the relevant indebtedness, within 60
days after such event.
(c) Upon the occurrence of an Event of Default under Section
5.1(a), Peru shall give written notice promptly after becoming aware thereof to
the holder of each Bond (with a copy to the Fiscal Agent). Within 15 days after
becoming aware of the occurrence of an event which with the giving of notice or
lapse of time or both would, unless remedied, cured or waived, become an Event
of Default under clause (iii) or (iv) of Section 5.1(a), Peru shall give written
notice thereof to the holder of each Bond (with a copy to the Fiscal Agent). Any
notice required to be given pursuant to this Section 5.1(c) to each holder of a
Bond may be given by Peru directly to the Fiscal Agent, provided that Peru will
cause the Fiscal Agent promptly to give notice of each Event of Default
specified in such notice to the holders of Bonds.
SECTION 5.2. Delivery of Information; Purchase of Bonds by Peru. (a) So long as
any Bonds are Outstanding, Peru shall provide the Fiscal Agent: (i) within 90
days after the last day of each calendar year and, in addition, within 15 days
of any request by the Fiscal Agent, a certificate of an Authorized Signatory, or
such other official of Peru as may be appropriate, stating to such official's
knowledge, as of a date which shall not be more than five days before the date
of the certificate, whether an Event of Default or an event that, with the
giving of notice or lapse of time or both, would become such an Event of Default
with respect to the Bonds, exists on the date of such certificate and, if such
an Event of Default or an event that, with the giving of notice or lapse of time
or both, would become such an Event of Default exists, setting forth the details
thereof and the action which Peru is taking or proposes to take with respect
thereto; and (ii) upon any official of Peru becoming aware of the existence of
an Event of Default with respect to one or more Series of Bonds, or the
occurrence of any event that, with the giving of notice or lapse of time or
both, would become such an Event of Default, a certificate of an Authorized
Official, setting forth the details thereof and the action that Peru is taking
or proposes to take with respect thereto.
(b) Peru may at any time purchase or acquire any of the Bonds
in any manner and at any price in the open market or in privately negotiated
transactions. All Bonds which are purchased or acquired by or on behalf of Peru
may, at its discretion, be held, resold or surrendered to the Fiscal Agent for
cancellation, but any Bond so purchased by Peru may not be re-issued or resold
except in compliance with the Securities Act and other applicable law.
ARTICLE VI
CONCERNING THE AGENTS
SECTION 6.1. Agents. Each of the Agents and Peru accepts, and the rights of the
holders from time to time of any Series of Bonds will be subject to, the
obligations set forth in this Agreement and in the Terms, including without
limitation:
(a) Each of the Agents is entitled to the compensation to be
agreed upon with Peru for all services rendered by it, and Peru shall promptly
pay such compensation and shall reimburse each of the Agents for reasonable and
documented out-of-pocket expenses incurred by it in connection with the services
rendered by it under this Agreement. Peru shall also indemnify each of the
Agents and each other paying agent and transfer agent for, and shall hold them
harmless against, any loss, liability, cost, claim, action, demand or expense
(including the reasonable costs and expenses of defending against any claim of
liability) incurred without gross negligence, bad faith or willful misconduct on
their part arising out of or in connection with their acting as such Agent or a
paying agent or transfer agent hereunder, as the case may be, or performing any
other duties pursuant to the terms and conditions hereof or of the Bonds of any
Series. The obligations of Peru under this subsection (a) survive the payment of
the Bonds of any Series and the resignation or removal of such Agent, paying
agent or transfer agent, as the case may be, and the termination of this
Agreement.
Peru shall indemnify the Agents and other paying agents and
transfer agents promptly upon receipt by Peru of a demand therefore supported by
reasonable evidence of such loss, liability, cost, claim, action, demand or
expense. Each of the Agents, paying agent and transfer agent shall indemnify and
hold harmless Peru against all losses, liabilities, costs, claims, actions,
demands or expenses (including the costs and expenses of defending against any
claim or liability) arising out of or relating to the gross negligence, bad
faith or willful misconduct of such Agent, paying agent or transfer agent, as
the case may be, or its respective directors, officers, employees or agents. In
no case shall an indemnifying party be liable under this indemnity with respect
to any claim against an indemnified party unless such indemnifying party shall
have been given notice by the indemnified party, as provided in Section 8.4
hereof, of the written assertion of a claim against such indemnified party or of
any other action commenced against such indemnified party, promptly after such
indemnified party shall have received any such written assertion or notice of
commencement of action. An indemnified party shall not settle any claim for
which it may be entitled to indemnity hereunder without the prior written
consent of the indemnifying party, and such consent shall not be unreasonably
withheld.
(b) In acting under this Agreement and in connection with the
Bonds of any Series, each of the Agents and each other paying agent and transfer
agent is acting solely as agent of Peru and does not assume any responsibility
for the correction of the recitals in the Bonds of any Series (except for the
correctness of the statement in the certificate of authentication thereon) or
any obligation towards or relationship of agency or trust for or with any of the
owners or holders of the Bonds of any Series except that all funds held by such
Agent or any paying agent for the payment of the principal of, interest on and
any Additional Amounts in respect of a Series of Bonds will, subject to
subsection (f) below, be held in trust by such Agent or such paying agent, as
the case may be, and applied as set forth herein and in the Terms. All money
paid to the Fiscal Agent or the Paying Agent under Section 4.1(a) of this
Agreement shall be held by it in a segregated account separate from the other
assets of the Fiscal Agent or the Paying Agent, as the case may be, and held on
a fiduciary basis for the benefit of the registered holders of Bonds of a Series
to be applied by the Paying Agent to payments due on such Bonds at the time and
in the manner provided for in this Agreement and the Terms.
(c) Each of the Agents and each other paying agent and
transfer agent may consult with counsel (who shall be licensed to practice law
in the State of New York, provided that such counsel may rely, as to any matters
of Peruvian law, on the opinion of Peruvian counsel satisfactory to such counsel
and such Agent), and any reasonable advice or written opinion of such counsel
shall constitute full and complete authorization and protection, and no
liability will be incurred by it, in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in accordance with such
advice or opinion.
(d) Each of the Agents and each other paying agent and
transfer agent will be protected and will incur no liability for or in respect
of any action reasonably taken or omitted to be taken or thing suffered by it in
reliance upon any Bond of any Series, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it in
good faith to be genuine and to have been presented or signed by the proper
party or parties.
(e) Each of the Agents and each other paying agent and
transfer agent, and each of their officers, directors and employees, in its
individual capacity or any other capacity, may become the owner of, or acquire
any interest in, any Bonds or other obligations of Peru with the same rights
that it would have had if it were not such Agent or such other paying agent or
transfer agent or an officer, director or employee thereof, as the case may be,
and may engage or be interested in any financial or other transaction with Peru
and may act on, or as depository, trustee or agent for, any committee or body of
holders of Bonds of any Series or other obligations of Peru, as freely as if it
were not such Agent or such other paying agent or transfer agent or an officer,
director or employee thereof, as the case may be.
(f) All moneys paid by or on behalf of Peru to the Paying
Agent or any other paying agent for the payment of any amount due under a Bond
of any Series that remain unclaimed at the end of two years after such amount
has become due and payable will be repaid to Peru unless otherwise required by
applicable law, and the holders of such Bonds will thereafter look only to Peru
for any payment to which such holders may be entitled. Upon such repayment, all
liability of the Paying Agent and any other paying agent with respect thereto
will cease, without, however, limiting in any way the obligation of Peru in
respect of the amount so repaid.
(g) Any recitals contained in this Agreement and in the Terms
(except in the certificate of authentication of a duly authorized officer or a
duly appointed signatory of the Fiscal Agent) will be taken as the statements of
Peru, and the Agents and each other paying agent and transfer agent assume no
responsibility for the correctness of the same. None of the Agents nor any other
paying agent or transfer agent makes any representation as to the validity or
sufficiency of this Agreement or the Terms. None of the Agents nor any other
paying agent or transfer agent is accountable for the use or application by Peru
of the proceeds of any Bonds authenticated and delivered by or on behalf of the
Fiscal Agent in conformity with the provisions of this Agreement.
(h) The Agents and each other paying agent and transfer agent
shall perform such duties and only such duties as are specifically set forth in
this Agreement and in the Terms, and no implied duties or obligations will be
read into this Agreement or the Terms against the Agents or any such other
paying agent or transfer agent. None of the Agents is under any obligation to
take any action hereunder that may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it, and shall promptly give notice to Peru of
such a decision not to take action.
(i) Except as otherwise specifically provided in this
Agreement or in the Terms, any order, certificate, notice, request, direction or
other communication from Peru made or given under any provision of this
Agreement will be sufficient if signed by an Authorized Official. From time to
time Peru will furnish the Agents with a certificate as to the incumbency and
specimen signatures of persons who are then Authorized Officials. Until the
Agents receive a subsequent certificate from Peru, the Agents and each other
paying agent and transfer agent are entitled to rely on the last such
certificate delivered to them for purposes of determining the Authorized
Officials.
(j) Except as provided in this Agreement or in the Terms, none
of the Agents has any duty or responsibility in case of any default by Peru in
the performance of its obligations (including, without limiting the generality
of the foregoing, any duty or responsibility to accelerate all or any of the
Bonds of any Series or to initiate or to attempt to initiate any proceedings at
law or otherwise or to make any demand for the payment thereof upon Peru).
SECTION 6.2. Maintenance of Agents. (a) Peru agrees that, so long as any of the
Bonds of any Series are outstanding, or until moneys for the payment of all of
the principal of, interest on and any Additional Amounts in respect of all
Outstanding Bonds are made available at the offices of the Paying Agent or, as
to moneys remaining unclaimed, are returned to Peru as provided in Section
6.1(f), whichever occurs earlier, there will at all times be a fiscal agent in
respect of the Bonds, agents for the payment of the principal of, interest on
and any Additional Amounts in respect of the Bonds and a registrar for transfer
and exchange of the Bonds in accordance with Sections 2 and 7 of the Terms. Peru
shall keep the Agents advised of the names and locations of all paying and
transfer agents; provided that, unless Peru otherwise notifies the Agents in
writing, such paying and transfer agents will consist only of those set forth in
Section 2 of the Terms. The Fiscal Agent shall arrange with all such paying and
transfer agents for the payment, from funds furnished by Peru to the Fiscal
Agent pursuant to this Agreement.
(b) Each of the Agents may at any time resign by giving
written notice of its resignation to Peru specifying the date on which its
resignation will become effective, subject to the conditions set forth below;
provided that such date must be at least 90 days after the receipt of such
notice by Peru unless Peru agrees to accept shorter notice. Upon receiving such
notice of resignation, Peru shall promptly appoint a successor to such Agent by
written instrument in duplicate signed on behalf of Peru, one copy of which must
be delivered to the resigning Agent and one copy to the successor Agent. Such
resignation will become effective only upon the acceptance of appointment by the
successor to such Agent as provided in Section 6.2(d). Peru may, at any time and
for any reason upon at least 30 days' written notice to that effect (provided
that no such notice shall expire less than 10 days before or 10 days after the
first day of any interest period or the Maturity Date) remove any Agent and
appoint a successor Agent by written instrument in duplicate signed on behalf of
Peru, one copy of which must be delivered to the Agent being removed and one
copy to the successor Agent. Any removal of an Agent and any appointment of a
successor Agent will become effective upon acceptance of appointment by the
successor to such Agent as provided in Section 6.2(d). Upon resignation or
removal, such Agent will be entitled to the payment by Peru of its compensation
for the services rendered under this Agreement and to the reimbursement of all
reasonable out-of-pocket expenses incurred in connection with the services
rendered by it hereunder.
(c) In case at any time any of the Agents resigns, or is
removed, or becomes incapable of acting, or is adjudged a bankrupt or insolvent,
or files a voluntary petition in bankruptcy, or makes an assignment for the
benefit of its creditors, or consents to the appointment of a receiver of all or
any substantial part of its property, or admits in writing its inability to pay
or meet its debts as they mature, or any court enters an order approving any
petition filed by or against it under the provisions of any applicable
bankruptcy or insolvency law or appointing a receiver of it or of all or any
substantial part of its property, or if any public officer takes charge or
control of it or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, Peru must appoint a successor to such Agent by an
instrument in writing. If a successor to such Agent is appointed and such
successor accepts the appointment, the Agent so superseded will cease to be such
Agent hereunder. If, after 90 days, no successor to such Agent is so appointed,
or if so appointed, the successor has not accepted its appointment as
hereinafter provided, any holder of a Bond of any Series, on behalf of itself
and all others similarly situated, or such Agent may petition any court of
competent jurisdiction for the appointment of a successor to such Agent.
(d) Any successor Agent appointed hereunder shall execute and
deliver to its predecessor and to Peru an instrument accepting such appointment
hereunder, and thereupon such successor Agent, without any further act, deed, or
conveyance will become vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as such Agent hereunder, and such predecessor, upon payment of
its compensation and out-of-pocket expenses then unpaid, shall pay over to such
successor Agent all moneys (including interest accrued with respect to such
amounts) or other property at the time held by it under this Agreement.
(e) Any corporation or bank into which any Agent may be merged
or converted, or with which any Agent is consolidated, or any corporation or
bank resulting from any merger, conversion or consolidation to which the Agent
is a party, or any corporation or bank to which such Agent sells or otherwise
transfers all or substantially all of its assets and business, or any
corporation or bank succeeding to the corporate trust business of such Agent
will be the successor to such Agent hereunder, without the execution or filing
of any document or any further act on the part of the parties hereto.
ARTICLE VII
AMENDMENTS
SECTION 7.1. Amendments and Waivers. (a) Request for Written Consents; Calling
of Meeting; Notice and Quorum. Peru may at any time ask for written consents
from or call a meeting of holders of the Bonds of any Series at any time and
from time to time to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Agreement or
the Bonds of that Series to be made, given or taken by holders of Bonds or to
modify, amend or supplement the Terms or this Agreement as hereinafter provided.
Any such meeting shall be held at such time and at such place as Peru shall
determine and as shall be specified in a notice of such a meeting that shall be
furnished to the holders of the Bonds of that Series at least 30 days and not
more than 60 days prior to the date fixed for the meeting. In addition, the
Fiscal Agent may at any time and from time to time call a meeting of holders of
the Bonds of that Series for any such purpose, to be held at such time and at
such place as the Fiscal Agent shall determine, after consultation with Peru,
and as shall be specified in a notice of such meeting that shall be furnished to
the holders of the Bonds of that Series at least 30 days and no more than 60
days prior to the date fixed for the meeting. In case at any time the holders of
at least 10% in aggregate principal amount of the Outstanding Bonds (as defined
in Section 7.1(d)) shall have requested the Fiscal Agent to call a meeting of
the holders of Bonds of a Series for any such purpose, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, the Fiscal Agent shall call such meeting, to be held at such time and
at such place as the Fiscal Agent shall determine, after consultation with Peru,
for such purposes by giving notice thereof. Such notice shall be given at least
30 days and not more than 60 days prior to the meeting. Notice of every meeting
of holders of the Bonds of a Series shall set forth in general terms the action
proposed to be taken at such meeting.
To be entitled to vote at any meeting of holders of the Bonds
of a Series, a person shall be a holder of Outstanding Bonds of that Series or a
person duly appointed by an instrument in writing as proxy for such a holder.
The persons entitled to vote a majority in principal amount of the Outstanding
Bonds of that Series shall constitute a quorum. In the absence of a quorum, a
meeting shall be adjourned for a period of at least 20 days. At the reconvening
of any meeting adjourned for a lack of a quorum, the persons entitled to vote
25% in principal amount of the Outstanding Bonds of that Series shall constitute
the quorum for the taking of any action set forth in the notice of the original
meeting. Notice of the reconvening of any meeting may be given only once, but
must be given at least 10 and not more than 15 days prior to the meeting. At any
meeting where there is a quorum present, holders of at least 66 2/3% in
principal amount of the Bonds of the relevant Series represented and voting at
the meeting may approve the modification or amendment of, or a waiver of
compliance for, any provision of such Bonds except for specified matters
requiring the consent of each bondholder as set forth above. Modifications,
amendments or waivers made at such a meeting will be binding on all current and
future bondholders.
The Fiscal Agent, after consultation with Peru, may make such
reasonable and customary regulations consistent herewith as it shall deem
advisable for any meeting of holders of the Bonds of any Series with respect to
the proof of the appointment of proxies in respect of holders of Bonds of that
Series, the record date for determining the registered owners of Bonds of that
Series who are entitled to vote at such meeting (which date shall be designated
by the Fiscal Agent and set forth in the notice calling such meeting hereinabove
referred to and which shall be not less than 15 nor more than 60 days prior to
such meeting; provided that nothing in this paragraph shall be construed to
render ineffective any action taken by holders of the requisite principal amount
of Outstanding Bonds of that Series on the date such action is taken), the
adjournment and chairmanship of such meeting, 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 deem appropriate.
(b) Voting and Consents. (i) At any meeting of holders of the
Bonds of any Series duly called and held as specified above, upon the
affirmative vote, in person or by proxy thereunto duly authorized in writing, of
the holders of at least 66 2/3% in aggregate principal amount of the Bonds of
that Series then Outstanding represented at such meeting, or (ii) with the
written consent of the holders of at least 66 2/3% in aggregate principal amount
of the Bonds of that Series then Outstanding, Peru and the Fiscal Agent may
modify, amend or supplement the Terms or this Agreement in any way, and the
holders of such Bonds may make, take or give any request, demand, authorization,
direction, notice, consent, waiver (including waiver of future compliance or
past default) or other action given or taken by holders of such Bonds; provided,
however, that no such action, modification, amendment or supplement, however
effected, shall apply, without the written consent of the holder of each Bond of
the Series affected thereby, to the Bonds of that Series owned or held by such
holder with respect to the following matters: (A) change the due date for the
payment of the principal of, or any installment of interest on, the Bonds of
that Series; (B) reduce the principal amount of or interest on the Bonds of that
Series, or the portion of such principal amount which is payable upon
acceleration of the maturity of the Bonds of that Series or the interest rate
thereon; (C) change the obligation of Peru to pay Additional Amounts as provided
in the Terms; (D) change the currency in which payment of interest or principal
in respect of the Bonds of that Series is payable; or (E) impair the right to
institute suit for the enforcement of any payment in respect of the Bonds of
that Series. In addition, no such action, modification, amendment or supplement
may, without the written consents of all holders of Bonds of that Series, reduce
the above-stated percentage of the principal amount of Outstanding Bonds of that
Series the vote or consent of the holders of which is necessary to modify, amend
or supplement this Agreement or the terms and conditions of such Bonds or to
make, take or give any request, demand, authorization, direction, notice,
consent, waiver or other action provided hereby or thereby to be made, taken or
given. In addition, and notwithstanding the foregoing, at any meeting of holders
of Bonds of any Series duly called and held as specified above, upon the
affirmative vote, in person or by proxy hereunto duly authorized in writing, of
the holders of at least 66 2/3% in aggregate principal amount of the Bonds of
that Series then Outstanding, or by written consent of the holders of at least
66 2/3% in aggregate principal amount of the Bonds of that Series then
Outstanding, holders of such Bonds may rescind or annul a declaration of the
acceleration of the principal amount thereof. Notwithstanding the foregoing,
Peru, with the agreement of the holder of any particular Bond of that Series,
may amend any provision of such Bond and any such amendment shall not affect the
rights and obligations of Peru or of a holder under any other Bond.
Peru and the Fiscal Agent may, without the vote or consent of
any holder of Bonds of any Series, amend this Agreement or the Terms for the
purpose of (i) adding to the covenants of Peru for the benefit of the holders of
Bonds, or (ii) surrendering any right or power conferred upon Peru in respect of
this Agreement or the Terms, or (iii) providing security or collateral for the
Bonds of any Series, or (iv) curing any ambiguity in any provision, or curing,
correcting or supplementing any defective provision contained herein or in the
Bonds of any Series in a manner which does not adversely affect the interest of
any holder of such Bonds, or (v) effecting any amendment of this Agreement
(including, to the extent necessary, to provide for the issuance and
authentication of other Bonds and of Warrants) or of the Terms which Peru and
the Fiscal Agent mutually deem necessary or desirable so long as any such
amendment does not, and will not, adversely affect the rights or interests of
any Bond holder of that Series.
It shall not be necessary for the vote or consent of the
holders of the Bonds of a Series to approve the particular form of any proposed
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action, but it shall be sufficient if such vote
or consent shall approve the substance thereof.
The Fiscal Agent may request an opinion of counsel in
connection with any amendment or supplement entered into hereunder.
(c) Binding Nature of Amendments, Notices, Notations, etc. Any
instrument given by or on behalf of any holder of a Bond of any Series in
connection with any consent to or vote for any such modification, amendment,
supplement, request, demand, authorization, direction, notice, consent, waiver
or other action shall be irrevocable once given and shall be conclusive and
binding on all subsequent holders of such Bond or any Bond issued directly or
indirectly in exchange or substitution therefor or in lieu thereof. Any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action taken, made or given in accordance with
Section 7.1 hereof shall be conclusive and binding on all holders of the Bonds
of that Series, whether or not they have given such consent or cast such vote or
were present at any meeting, and whether or not notation of such modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action is made upon such Bonds. Notice of any
modification or amendment of, supplement to, or request, demand, authorization,
direction, notice, consent, waiver or other action with respect to such Bonds or
this Agreement (other than for purposes of curing any ambiguity or of curing,
correcting or supplementing any defective provision hereof or thereof) shall be
given to such holder of the Bonds affected thereby, in all cases as provided in
the Terms.
Bonds authenticated and delivered after the effectiveness of
any such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action may bear a notation in the
form approved by the Fiscal Agent and Peru as to any matter provided for in such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action. New Bonds modified to conform, in the
opinion of the Fiscal Agent and Peru, to any such modification, amendment,
supplement, request, demand, authorization, direction, notice, consent, waiver
or other action taken, made or given in accordance with Section 7.1 hereof may
be prepared by Peru, authenticated by the Fiscal Agent and delivered in exchange
for Outstanding Bonds.
(d) "Outstanding" Defined. For purposes of the provisions of
this Agreement and the Bonds, any Bond authenticated and delivered pursuant to
this Agreement shall, as of any date of determination, be deemed to be
"Outstanding," except:
(1) Bonds theretofore canceled by the Fiscal Agent or
delivered to the Fiscal Agent for cancellation;
(2) Bonds which have become due and payable at maturity or
otherwise, and with respect to which, in each case, monies
sufficient to pay the principal thereof and any interest thereon
shall have been paid or duly provided for; and
(3) Bonds in lieu of or in substitution for which other
Bonds shall have been authenticated and delivered pursuant to
this Agreement.
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Bonds of a Series are present at a meeting of
holders of Bonds of that Series for quorum purposes or have consented to or
voted in favor of any request, demand, authorization, direction, notice,
consent, waiver, amendment, modification or supplement hereunder, Bonds of that
Series owned by Peru must be disregarded and deemed not to be Outstanding; but
in determining whether the Fiscal Agent shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver,
amendment, modification or supplement, only Bonds that the Fiscal Agent knows to
be so owned will be so disregarded.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1. Officials, Officers, and Directors of Peru Exempt from Individual
Liability. No recourse under or upon any obligation, covenant or agreement
contained in this Agreement, or in any Bond, or because of any indebtedness
evidenced thereby, shall be had against any official, officer or government
employee of Peru or of any successor of any thereof, either directly or through
Peru or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Bonds by the holders thereof and as part of the
consideration for the issue of the Bonds.
SECTION 8.2. Provisions of this Agreement for the Sole Benefit of Parties and
Bondholders. Nothing in this Agreement or in the Bonds, expressed or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the holders of the Bonds, any
legal or equitable right, remedy or claim under this Agreement or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
holders of the Bonds.
SECTION 8.3. Successors and Assigns of Peru Bound by this Agreement. All the
covenants, stipulations, promises and agreements in this Agreement contained by
or on behalf of Peru shall bind its successors and assigns, whether so expressed
or not.
SECTION 8.4. Notices and Demands on Peru, Fiscal Agent and Bondholders. (a) All
notices under this Agreement must be sent by facsimile transmission (in such
case confirmed by courier) or by courier, postage prepaid, addressed to the
following entities hereto as follows:
Address
The Republic of Peru: [Address]
Attention: [ ]
Telephone: [ ]
Telecopier: [ ]
The Fiscal Agent: [Address]
Attention: [ ]
Telephone: [ ]
Telecopier: [ ]
or at any other address of which any of the foregoing may have notified the
others in writing. Any such notice will be effective on receipt. The Fiscal
Agent shall deliver a copy of any notice received on behalf of Peru in
connection with this Agreement or any Series of Bonds (excluding notices given
regarding the transfer or exchange of Bonds) to Peru in accordance with the
terms of this Section 8.4(a). All communications hereunder must be in the
English language.
If the Fiscal Agent shall receive any notice or demand
addressed to Peru by the holder of a Bond, the Fiscal Agent shall promptly
forward such notice or demand to Peru.
(b) Where this Agreement provides for notice to holders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if given in accordance with Section 11 of the Terms. Where this Agreement
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. Waivers of notice by holders
shall be filed with the Fiscal Agent, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
SECTION 8.5. Payments Due on Non-Business Days. In any case where the Payment
Date shall not be a Business Day (or, in the case of a Luxembourg Paying Agent,
is a day in which banks in Luxembourg are required or authorized by law to
close), then payment of principal or interest (including Additional Amounts) may
be made on the next succeeding Business Day (or, in the case of a Luxembourg
Paying Agent, the next succeeding day in which banks in Luxembourg are not
required or authorized by law to close). Any payment made on a date other than
the Payment Date as set forth in the Bonds pursuant to this Section 8.5 shall
have the same force and effect as if made on the Payment Date, and no interest
shall accrue for the period from and after such Payment Date.
SECTION 8.6. Governing Law; Consent to Jurisdiction; Waiver of Immunities. (a)
This Agreement is governed by and must be interpreted in accordance with the
laws of the State of New York, except that all matters governing authorization
and execution of this Agreement by Peru are governed by the laws of Peru.
(b) In connection with any suit, action or proceeding against
it or its properties assets or revenues arising out of or relating to the
Agreement or the Bonds (a "Related Proceeding"), Peru agrees (i) to submit to
the exclusive jurisdiction of any New York State or U.S. Federal court sitting
in New York City, and any appellate court thereof (the "Specified Courts"); (ii)
that all claims in respect of such Related Proceeding may be heard and
determined in such Specified Courts; (iii) that any judgment obtained in the
Specified Courts arising out of any Related Proceeding may be enforced or
executed in any other court of competent jurisdiction whatsoever; and (iv) that
any judgment obtained in any such other court as a result of such enforcement or
execution may be enforced or executed in any such other court of competent
jurisdiction (all such courts other than Specified Courts being called herein
"Other Courts"), by means of a suit on the judgment or in any other manner
provided by law, provided that in order to enforce or execute any such judgment
ordering any payment by Peru, Peruvian courts will require that such payments be
included in the Budget Law corresponding to the fiscal year on which such
payment is to be due (but Peru will use its best efforts to cause such payment
to be included in such Budget Law).
(c) Peru agrees that CT Corporation, presently located at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, 13th floor, New York, New York, will act as its process agent
(the "Process Agent") and that Peru will maintain at all times an agent with
offices in New York to act as its Process Agent. The Process Agent will receive
on behalf of Peru and its property all writs, process and summonses in any
Related Proceeding or any suit, action or proceeding to enforce or execute any
judgment referred to in Section 8.6(b) above (a "Related Judgment") brought
against it in such Specified Courts. Failure of the Process Agent to give any
notice to it of any such service of process shall not impair or affect the
validity of such service or of any judgment based thereon. Nothing in the
Agreement or the Terms shall in any way be deemed to limit the ability to serve
any such writs, process or summonses in any other manner permitted by applicable
law.
(d) Peru irrevocably consents to and waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of venue of any Related Proceeding brought in the Specified Courts or to
the laying of venue of any suit, action or proceeding brought solely for the
purpose of enforcing or executing any Related Judgment in the Specified Courts
or Other Courts, and further irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of any Related
Proceeding or any such suit, action or proceeding in any such court.
(e) To the extent that Peru or any of its revenues, assets or
properties may be entitled to any sovereign or other immunity under any law,
Peru agrees not to claim and to waive such immunity to the fullest extent
permitted by the laws of such jurisdiction. This waiver covers Peru's sovereign
immunity and immunity from prejudgment attachment, post-judgment attachment and
attachment in aid, but does not extend to the attachment of revenues, assets and
property of Peru located in Peru unless permitted under Peruvian law.
Additionally, in accordance with Peruvian law currently in effect, Peru's waiver
of immunity will not extend to property that is (i) used by a diplomatic or
consular mission of Peru; (ii) of a military character and under the control of
a military authority or defense agency of Peru; (iii) public property; (iv)
shares of Peruvian public sector entities or shares of Peruvian private sector
entities owned or controlled by Peru or by a Peruvian public sector entity, or
revenues collected from the sale of such shares, to the extent such shares or
revenues are exempt by Peruvian law from attachment or execution; or (v) funds
deposited in Peru's accounts held in the Peruvian financial system.
Peru, however, reserves the right to plead sovereign immunity
under the U.S. Foreign Sovereign Immunities Act of 1976 (the "Immunities Act")
with respect to actions brought against it under U.S. federal securities laws or
any state securities law. Without an effective waiver of immunity by Peru with
respect to such actions, it would be impossible to obtain a U.S. judgment in
such an action against Peru unless a court were to determine that Peru is not
entitled under the Immunities Act to sovereign immunity with respect to such
action. In addition, execution upon property of Peru located in the United
States to enforce a judgment obtained under the Immunities Act may not be
possible except in the limited circumstances specified in the Immunities Act.
Even if a U.S. judgment could be obtained against Peru in any
such action, it may not be possible to enforce in Peru a judgment based on such
a U.S. judgment.
Peru also consents generally for the purposes of the State
Immunity Act of 1978 of the United Kingdom to the giving of any relief or the
issue of any process in connection with any Related Proceeding or Related
Judgment.
SECTION 8.7. Separability. If any provision in this Agreement or in the Terms is
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions will not in any way be affected or impaired thereby.
SECTION 8.8. Counterparts. This Agreement may be signed in any number of
counterparts (which may include counterparts delivered by telecopier), with the
same effect as if the signatures thereto and hereto were upon the same
instrument. Such counterparts together constitute but one and the same
instrument.
SECTION 8.9. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
* * * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
THE REPUBLIC OF PERU
as Issuer
By:
----------------------
Name:
Title:
[ ]
as Fiscal Agent
By:
----------------------
Name:
Title:
EXHIBIT A
[FORM OF GLOBAL BOND]
[Insert legends relating to limitations on the transferability in such form as
may be required by the Depository]
COMMON CODE: CUSIP:
ISIN:
GLOBAL BOND
THE REPUBLIC OF PERU
____-Denominated Bonds due ____
This global Bond is in respect of an issue of ____-Denominated Bonds
due ____ (the "Bonds") of the Republic of Peru ("Peru"), limited to an aggregate
principal amount of ______________ [United States dollars] ([U.S.$]____________)
[other currency] and issued pursuant to a Fiscal Agency Agreement (the "Fiscal
Agency Agreement") dated as of [ ], between Peru and [ ], as Fiscal Agent,
Principal Paying Agent and Registrar (the "Fiscal Agent," "Paying Agent" and
"Registrar"). Unless the context otherwise requires, the terms used herein shall
have the meanings specified in the Fiscal Agency Agreement and the Terms and
Conditions of the Bonds attached hereto (the "Terms").
Peru, for value received, hereby promises to pay to Cede & Co., or
registered assigns, on ____________ upon surrender hereof, the principal sum of
______________________________ [United States dollars] ([U.S.$]____________)
[other currency] on __________, and to pay interest at the rate of [[ ]% per
annum] [to be determined in accordance with the provisions hereinafter set
forth] from the date hereof on said principal amount in accordance with the
Terms until such principal amount is paid or made available for payment, such
interest to be paid [semiannually] [specify other frequency] in arrears on each
Payment Date, commencing on the Payment Date on [ ]. The interest payable on any
such Payment Date will, subject to certain conditions set forth in the Terms, be
paid to the person in whose name this Bond is registered on the 15th day
preceding such Payment Date, whether or not such day is a Business Day. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the person in whose name this Bond is registered on such date and may
either be paid to the person in whose name this Bond is registered at the close
of business on a subsequent record date for the payment of such defaulted
interest to be fixed by Peru or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which this
Bond may be listed. The Terms, except as otherwise provided herein, shall be
binding on Peru and the holder hereof as if fully set forth herein.
[Insert floating interest rate provisions, if applicable]
[The statements set forth in the legend, if any, set forth above are an
integral part of the terms of this Bond and by acceptance hereof each holder of
this Bond agrees to be subject to and bound by the terms and provisions set
forth in such legend.]
This Bond will not be valid or become obligatory for any purpose until
the certificate of authentication hereon has been manually signed by or on
behalf of the Fiscal Agent.
This Bond is governed by and must be interpreted in accordance with the
laws of the State of New York, except that all matters governing authorization
and execution of this Bond by Peru are governed by the laws of Peru.
IN WITNESS WHEREOF, THE REPUBLIC OF PERU has caused this global Bond to
be duly executed.
THE REPUBLIC OF PERU
By:
---------------------
Name:
Title:
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds described in the within-mentioned Fiscal
Agency Agreement.
--------------------,
as Fiscal Agent
By:
---------------------
Name:
Title:
EXHIBIT B
[FORM OF DEFINITIVE BOND]
COMMON CODE: CUSIP:
ISIN:
DEFINITIVE BOND
THE REPUBLIC OF PERU
____-Denominated Bonds due ____
This Definitive Bond is in respect of an issue of ____-Denominated
Bonds due ____ (the "Bonds") of the Republic of Peru ("Peru"), limited to an
aggregate principal amount of ______________ [United States dollars]
([U.S.$]____________) [other currency] and issued pursuant to a Fiscal Agency
Agreement (the "Fiscal Agency Agreement") dated as of [ ], between Peru and [ ],
as Fiscal Agent, Principal Paying Agent and Registrar (the "Fiscal Agent,"
"Paying Agent" and "Registrar"). Unless the context otherwise requires, the
terms used herein shall have the meanings specified in the Fiscal Agency
Agreement and the Terms and Conditions of the Bonds attached hereto (the
"Terms").
Peru, for value received, hereby promises to pay to ____________, or
registered assigns, on ____________ upon surrender hereof, the principal sum of
___________________________ [United States dollars] ([U.S.$]____________) [other
currency], on __________, and to pay interest at the rate of [[ ]% per annum]
[to be determined in accordance with the provisions hereinafter set forth] from
the date hereof on said principal amount in accordance with the Terms until such
principal amount is paid or made available for payment, such interest to be paid
[semiannually] [specify other frequency] in arrears on each Payment Date,
commencing on the Payment Date on [ ]. The interest payable on any such Payment
Date will, subject to certain conditions set forth in the Terms, be paid to the
person in whose name this Definitive Bond is registered on the 15th day
preceding such Payment Date, whether or not such day is a Business Day. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the person in whose name this Definitive Bond is registered on such
date and may either be paid to the person in whose name this Definitive Bond is
registered at the close of business on a subsequent record date for the payment
of such defaulted interest to be fixed by Peru or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which this Definitive Bond may be listed.
[Insert floating interest rate provisions if applicable]
Reference is made to the further provisions set forth under the Terms.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
[The statements set forth in the legend, if any, set forth above are an
integral part of the terms of this Definitive Bond and by acceptance hereof each
holder of this Definitive Bond agrees to be subject to and bound by the terms
and provisions set forth in such legend.]
This Definitive Bond will not be valid or become obligatory for any
purpose until the certificate of authentication hereon has been manually signed
by or on behalf of the Fiscal Agent.
This Definitive Bond is governed by and must be interpreted in
accordance with the laws of the State of New York, except that all matters
governing authorization and execution of this Definitive Bond by Peru are
governed by the laws of Peru.
IN WITNESS WHEREOF, THE REPUBLIC OF PERU has caused this Definitive
Bond to be duly executed.
THE REPUBLIC OF PERU
By:
--------------------------
Name:
Title:
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Definitive Bonds described in the within-mentioned
Fiscal Agency Agreement.
--------------------------,
as Fiscal Agent
By:
--------------------------
Name:
Title:
EXHIBIT C
[FORM OF TERMS AND CONDITIONS]
1. General. This Bond is one of a duly authorized issue of series of
debt securities of the Republic of Peru ("Peru"), designated as its [title of
securities] (the "Bonds"), limited to the aggregate principal amount of [U.S.$]
[other currency] __________ (except as otherwise provided in Section 12 below)
issued pursuant to a Fiscal Agency Agreement (the "Fiscal Agency Agreement")
dated as of [ ], between Peru and [ ], the Fiscal Agent, Principal Paying Agent
and Registrar (the "Fiscal Agent," "Paying Agent" and the "Registrar"
(collectively, the "Agents"), which terms include its successors and assigns as
such Fiscal Agent, Paying Agent and Registrar). Capitalized terms used but not
defined herein shall have the meanings given to them in the Fiscal Agency
Agreement. [References herein to "U.S.$," "$," "U.S. dollars" or "dollars" are
to United States dollars.]
(a) The holders of the Bonds will be entitled to the benefits of, be
bound by, and be deemed to have notice of, all the provisions of the Fiscal
Agency Agreement. Copies of the Fiscal Agency Agreement are on file and may be
inspected during normal business hours on any weekday (Saturdays, Sundays and
public holidays excepted) at the principal office of the Fiscal Agent in New
York and at the offices of the Registrar and the paying agents referred to
below.
(b) The Bonds are issuable in definitive, fully registered form,
without coupons. The Bonds are issuable in [the] authorized denomination[s] of
[currency/U.S.$] ______ [and [any integral multiple thereof] [integral multiples
of [currency/U.S.$] _____ above that amount]]. The Bonds, and transfer thereof,
must be registered as provided in Section 7 below and in the Fiscal Agency
Agreement. A person in whose name a Bond is registered may (to the fullest
extent permitted by law) be treated at all times, by all persons and for all
purposes as the absolute owner of such Bond regardless of any notice of
ownership, theft or loss or of any writing thereon.
(c) The Bonds will mature on [ ] (the "Maturity Date").
(d) As used herein, the following terms have the meanings set forth
below:
"Business Day" means any day other than a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies are authorized
or obligated by law to close in ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ [If the
Bonds are denominated in a currency other than U.S. dollars, insert: and in
[name of financial center of the country in whose currency the securities are
denominated] or a day on which banking institutions in [name of non-U.S.
financial center] are not carrying out transactions in [name of non-U.S.
currency]].
"Payment Date" means [ ] and [ ] of each year, commencing [ ] and
ending on [ ]; provided that if any such day is not a Business Day, then the
applicable Payment Date shall be the next following Business Day.
2. Payments and Paying Agents. (a) Principal of and interest on the
Bonds will be payable in U.S. dollars. Principal of each Bond and interest
payable on the Maturity Date will be payable in U.S. dollars in immediately
available funds to the person in whose name such Bond is registered on the
Maturity Date, upon presentation and surrender of the Bond at the corporate
trust office of the Fiscal Agent in The City of New York or, subject to
applicable laws and regulations, at the office of any paying agent. Interest on
each Bond (other than interest payable on the Maturity Date) will be payable to
the person in whose name such Bond is registered at the close of business on the
Record Date (as defined below) for the relevant Payment Date. Peru will make
payments of principal and interest on the Bonds by providing the Fiscal Agent
the amount of such payment, in U.S. dollars in immediately available funds, on
or before the Payment Date, and directing the Fiscal Agent to make a wire
transfer of such amount in U.S. dollars to DTC or its nominee as the registered
owner of the Bonds, which will receive the funds for distribution to the
beneficial owners of the Bonds; provided that Peru may, subject to applicable
laws and regulations, make payments of principal and interest on the Bonds by
mailing, or directing the Fiscal Agent to mail, from funds made available by
Peru for such purpose, a check to the person entitled thereto, on or before the
due date for the payment at the address that appears on the security register
maintained by the Fiscal Agent on the applicable record date. The Record Date
with respect to any Payment Date will be the 15th day prior to such date (each
such day, a "Record Date"), whether or not such day is a Business Day.
None of Peru, the Fiscal Agent or any paying agent will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests in the Bonds or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
(b) In the event that the maturity of the Bonds is accelerated in
accordance with Section 4 below, holders of the Bonds will be permitted to
elect, by providing notice to Peru, with a copy to the Fiscal Agent, on the date
of acceleration or on any date thereafter prior to payment, to receive the
amount payable in respect of the Bonds at such time in the currency of Peru.
(c) Any payment of principal or interest required to be made on a
Payment Date that is not a Business Day (or, in the case of a Luxembourg Paying
Agent, is a day on which banks in Luxembourg are required or authorized by law
to close) need not be made on such day, but may be made on the next succeeding
Business Day (or, in the case of a Luxembourg Paying Agent, on the next
succeeding day on which banks in Luxembourg are not required and not authorized
by law to close) with the same force and effect as if made on such Payment Date,
and no interest will accrue with respect to such payment for the period from and
after such Payment Date.
(d) So long as any of the Bonds are outstanding, Peru shall maintain a
paying agent and a transfer agent in a western European city for payment on and
transfers of the Bonds (which will be Luxembourg, so long as the Bonds are
listed on the Luxembourg Stock Exchange and the rules of such Exchange so
require), a Registrar having a specified office in The City of New York and a
paying agent having a specified office in The City of New York. Peru has
initially appointed [ ] as paying agent and transfer agent for the Bonds and [ ]
as Registrar and Paying Agent. Subject to the foregoing, Peru shall have the
right at any time to terminate any such appointment and to appoint any other
paying agents or transfer agents in such other places as it may deem appropriate
upon notice in accordance with Section 11 below.
(e) Pending payment of principal or interest on the Bonds that becomes
due, the Fiscal Agent shall hold in trust, for the benefit of the beneficial
owners of the Bonds, the amounts transferred by Peru to the Fiscal Agent for
such purpose. Any moneys held by the Fiscal Agent in respect of the Bonds and
remaining unclaimed for two years after such amounts shall have become due and
payable must be returned by the Fiscal Agent to Peru and the holders of such
Bonds shall thereafter look only to Peru for any payment to which such holders
may be entitled. The Bonds will become void unless presented for payment within
five years after the Maturity Date (or such shorter period as shall be
prescribed by applicable law).
(f) All notifications, opinions, determinations, certificates,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions hereof (in the absence of willful default, bad
faith or manifest error) will be binding on Peru, the Fiscal Agent, the
Registrar, the Paying Agent, each other paying agent and all holders of Bonds.
3. Status and Negative Pledge. (a) The Bonds will be direct, general,
unconditional, unsubordinated and unsecured obligations of Peru. Peru has
pledged its full faith and credit for the due and punctual payment of all
amounts due in respect of the Bonds. The Bonds will rank pari passu, without any
preference among themselves, with all other existing and future unsecured and
unsubordinated obligations of Peru relating to External Indebtedness.
(b) So long as any of the Bonds remain outstanding, Peru shall not
create or permit to subsist any Security Interest in the whole or any part of
its present or future revenues or assets to secure Public External Indebtedness
of Peru, unless the Bonds are secured equally and ratably with such Public
External Indebtedness; provided, however, that Peru may create or permit to
subsist:
(i) Security Interests created prior to February 7, 2002;
(ii) Security Interests securing Public External Indebtedness
incurred in connection with a Project Financing, provided that the
Security Interest is solely in assets or revenues of the project for
which the Project Financing was incurred;
(iii) Security Interests securing Public External Indebtedness
incurred or assumed by Peru to finance or refinance the acquisition of
the assets in which such Security Interest has been created or
permitted to subsist and any Security Interests existing on such
assets at the time of their acquisition;
(iv) Security Interests securing Public External Indebtedness
arising in the ordinary course to finance export, import or other
trade transactions, which Public External Indebtedness matures (after
giving effect to all renewals and refinancing thereof) not more than
one year after the date on which such Public External Indebtedness was
originally incurred;
(v) Security Interests securing Public External Indebtedness
which, together with all other Public External Indebtedness secured by
Security Interests (excluding Public External Indebtedness secured by
other permitted Security Interests), does not exceed U.S.$25,000,000
principal amount (or its equivalent in other currencies) in the
aggregate;
(vi) Security Interests arising by operation of a currently
existing law in connection with Public External Indebtedness,
including without limitation any right of set-off with respect to
demand or time deposits maintained with financial institutions and
bankers' liens with respect to property held by financial institutions
(in each case deposited with or delivered to such financial
institutions in the ordinary course of the depositor's activities);
(vii) Security Interests created in connection with the
transactions contemplated by Peru's 1996 financing plan dated June 5,
1996, and its implementing documentation, including Security Interests
to secure obligations under the collateralized bonds issued under the
1996 financing plan (the Fixed Rate Bonds due 2027 ("Par Bonds"), the
Floating Rate Bonds due 2027 ("Discount Bonds") and the Front-Loaded
Interest Reduction Bonds due 2017 ("FLIRBs")) and any Security
Interest securing obligations of Peru outstanding as of June 5, 1996,
to the extent required to be equally and ratably secured with any such
bonds;
(viii) Security Interests issued upon surrender or cancellation
of the Par Bonds, the Discount Bonds or the FLIRBs, or the principal
amount of any Public External Indebtedness outstanding as of June 5,
1996, in each case, to the extent such Security Interest is created to
secure Public External Indebtedness on a basis comparable to the Par
Bonds, the Discount Bonds and the FLIRBs;
(ix) Security Interests on shares of, or other assets of, any
present or former Peruvian public sector entity created or granted by
Peru in connection with, or in anticipation of, the privatization of
such entity; and
(x) any renewal or extension of any Security Interest stated
above.
(c) The following terms shall have the meanings specified below:
(i) "External Indebtedness" means obligations of, or guaranteed
(whether by contract, statute or otherwise) by, Peru for borrowed
money or evidenced by bonds, debentures, notes or similar instruments
denominated or payable, or which, at the option of the holder thereof,
may be payable, in a currency other than the currency of Peru or by
reference to a currency other than the currency of Peru (other than
any such obligations originally issued or incurred within Peru).
(ii) "Public External Indebtedness" means any External
Indebtedness that (i) is in the form of, or represented by, bonds,
notes or other securities that are, or were intended at the time of
issuance to be, quoted, listed or traded on any securities exchange or
other securities market (including without limiting the generality of
the foregoing, securities for resale pursuant to Rule 144A under the
Securities Act (or any successor law or regulation of similar effect))
and (ii) has an original maturity of more than one year or are
combined with a commitment so that the original maturity of one year
or less may be extended at the option of Peru to a period in excess of
one year.
(iii) "Project Financing" means any financing of all or part of
the costs of the acquisition, construction or development of any
project if the person or persons providing such financing expressly
agree to limit their recourse to the project financed and the revenues
derived from such project as the principal source of repayment for the
moneys advanced.
(iv) "Security Interest" means any security interest, including
without limitation, any lien, pledge, mortgage, deed of trust or
charge, or any encumbrance or preferential arrangement that has the
practical effect of constituting a security interest.
(d) The obligations of Peru set forth in Section 5.2(a) of the Fiscal
Agency Agreement are hereby incorporated by reference and made a part of, as
though set forth in, this Bond for the benefit of (and shall be directly
enforceable by) the holder of this Bond.
4. Events of Default. (a) Each of the following events will constitute
an "Event of Default" under the Bonds:
(i) if Peru fails to pay interest or principal on the Bonds when
due and such failure continues for a period of 30 days; or
(ii) if Peru does not perform any other obligation under any Bond
and such failure is incapable of remedy or is not remedied within 60
days after written notice has been given to Peru by the Fiscal Agent;
or
(iii) if Peru fails to make any payment in respect of:
(A) External Indebtedness outstanding as of February 21,
2002; or
(B) Public External Indebtedness;
in an aggregate principal amount in excess of
U.S.$25,000,000 (or its equivalent in any other currency) when
due, and such failure continues beyond the applicable grace
period; or
(iv) if any event or condition occurs that results in the
acceleration of the maturity of:
(A) External Indebtedness outstanding as of February 21,
2002; or
(B) Public External Indebtedness;
in an aggregate principal amount in excess of
U.S.$25,000,000 (or its equivalent in any other currency); or
(v) if Peru declares a general suspension on or moratorium with
respect to the payment of principal of or interest on all or a portion
of its External Indebtedness; or
(vi) if (A) Peru contests the validity of, or its obligations
under, any Bond or, to the extent adversely affecting the Bonds, the
Fiscal Agency Agreement, (B) Peru denies any of its obligations under
any Bond or, to the extent adversely affecting the Bonds, the Fiscal
Agency Agreement, or (C) any constitutional provision, treaty, law,
regulation, decree, or other official pronouncement of Peru, or any
final decision by any court in Peru having jurisdiction, renders it
unlawful for Peru to pay any amount due on the Bonds or to perform any
of its obligations under any Bond or, to the extent adversely
affecting the Bonds, the Fiscal Agency Agreement; or
(vii) if any writ, execution, attachment or similar process is
levied against all or any substantial part of the assets of Peru in
connection with any judgment for the payment of money exceeding
U.S.$25,000,000 (or its equivalent in any other currencies), and Peru
fails to satisfy or discharge such judgment, or adequately bond,
contest in good faith or receive a stay of execution or continuance in
respect of such judgment, within a period of 120 days; or
(viii) if Peru fails to maintain its membership in, and its
eligibility to use the general resources of, the International
Monetary Fund.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(A) in the case of any Event of Default described in clause
(ii), (iii), (iv), (vi), (vii) or (viii), the holders of at least
25% in aggregate principal amount of all Bonds (other than Bonds
held by Peru) then Outstanding may by written demand given to
Peru (with a copy to the Fiscal Agent) declare the Bonds held by
it to be immediately due and payable; or
(B) in the case of any Event of Default described in clauses
(i) or (v), each holder of Bonds may by written demand given to
Peru (with a copy to the Fiscal Agent) declare the Bonds held by
it to be immediately due and payable;
and upon such declaration the principal amount of such Bonds and the accrued
interest on such Bonds will become immediately due and payable upon the date
that such written notice is received at the office of the Fiscal Agent, unless
prior to such date all Events of Default in respect of all Bonds have been
cured. The right to give such acceleration notice will terminate if the event
giving rise to such right has been cured before such right is exercised. Holders
of Bonds holding in the aggregate at least 66 2/3% in principal amount of the
then Outstanding Bonds may waive any existing defaults, and rescind or annul any
notice of acceleration, on behalf of all bondholders, if (i) following the
declaration of the Bonds due and payable immediately, Peru has deposited with
the Fiscal Agent an amount sufficient to pay all overdue installments of
principal, interest and Additional Amounts in respect of the Bonds as well as
the reasonable fees and compensation of the Fiscal Agent; and (ii) all other
Events of Default have been remedied. In the event of a declaration of
acceleration because of an Event of Default set forth in clause (iii) or (iv)
above, such declaration of acceleration shall be automatically rescinded and
annulled if the event triggering such Event of Default pursuant to such clause
(iii) or (iv) shall be remedied, cured or waived by the holders of the relevant
indebtedness, within 60 days after such event.
(c) Upon the occurrence of an Event of Default under Section 4(a), Peru
shall give written notice promptly after becoming aware thereof to the holder of
each Bond (with a copy to the Fiscal Agent). Within 15 days after becoming aware
of the occurrence of an event which with the giving of notice or lapse of time
or both would, unless remedied, cured or waived, become an Event of Default
under clause (iii) or (iv) of Section 4(a), Peru shall give written notice
thereof to the holder of each Bond (with a copy to the Fiscal Agent). Any notice
required to be given pursuant to this Section 4(c) to each holder of a Bond may
be given by Peru directly to the Fiscal Agent, provided that Peru will cause the
Fiscal Agent promptly to give notice of each Event of Default specified in such
notice to the holders of Bonds.
5. Purchase of the Bonds by Peru. Peru may at any time purchase or
acquire any of the Bonds in any manner and at any price. Bonds that are
purchased or acquired by Peru may, at Peru's discretion, be held, resold or
surrendered to the Fiscal Agent for cancellation, but any Bond so purchased by
Peru may not be re-issued or resold except in compliance with the Securities Act
and other applicable law.
6. Additional Amounts. (a) The payment by Peru of principal of or
interest on the Bonds will be made without withholding or deduction for or on
account of any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by Peru, any political subdivision
thereof or any taxing authority in Peru. If Peru is required by law to make any
such withholding or deduction, it will pay such additional amounts ("Additional
Amounts") as may be necessary in order to ensure that the net amounts receivable
by the holders of Bonds after such withholding or deduction shall equal the
amount that would have been receivable in respect of the Bonds in the absence of
such withholding or deduction; except that no such additional amounts shall be
payable with respect to any Bond to or on behalf of a holder who is liable for
taxes or duties in respect of such Bond (i) by reason of such holder having some
connection with Peru other than the mere holding of such Bond or the receipt of
principal of or interest on any Bond; (ii) by reason of the failure to comply
with any reasonable certification, identification or other reporting requirement
concerning the nationality, residence, identity or connection with Peru, or any
political subdivision or taxing authority thereof or therein, of the holder of a
Bond or any interest therein or rights in respect thereof, if compliance is
required by Peru, or any political subdivision or taxing authority thereof or
therein, pursuant to applicable law or to any international treaty in effect, as
a precondition to exemption from such deduction or withholding; or (iii) by
reason of the failure of such holder to present such holder's Bond for payment
within 30 days after the principal of or interest on any Bond is first made
available to payment to the holder.
(b) Whenever in this Bond there is mentioned, in any context, the
payment of the principal of or interest on any Bond, such mention shall be
deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
(c) No Additional Amounts shall be payable in respect of any Bond to a
holder that is a fiduciary or partnership or other than the sole beneficial
owner of such Bond, to the extent the beneficiary or settlor with respect to
such fiduciary or a member of such partnership or a beneficial owner would not
have been entitled to receive payment of the Additional Amounts had such
beneficiary, settlor, member or beneficial owner been the holder of such Bond.
7. Replacement, Exchange and Transfer. (a) If any Bond becomes
mutilated or is defaced, destroyed, lost or stolen, the Fiscal Agent shall
authenticate and deliver a new Bond, on such terms as Peru and the Fiscal Agent
may require, in exchange and substitution for the mutilated or defaced Bond or
in lieu of and in substitution for the destroyed, lost or stolen Bond. In every
case of mutilation, defacement, destruction, loss or theft, the applicant for a
substitute Bond must furnish to Peru and the Fiscal Agent such indemnity as Peru
and the Fiscal Agent may require and evidence to their satisfaction of the
destruction, loss or theft of such Bond and of the ownership thereof. In every
case of mutilation or defacement of a Bond, the holder must surrender to the
Fiscal Agent the Bond so mutilated or defaced. In addition, prior to the
issuance of any substitute Bond, Peru may require the payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Fiscal Agent) connected therewith. If any Bond that has matured
or is about to mature becomes mutilated or defaced or is apparently destroyed,
lost or stolen, Peru may pay or authorize payment of such Bond without issuing a
substitute Bond.
(b) Upon the terms and subject to the conditions set forth in the
Fiscal Agency Agreement, a Bond or Bonds may be exchanged for a Bond or Bonds of
equal aggregate principal amount in such same or different authorized
denominations as may be requested by the holder, by surrender of such Bond or
Bonds at the office of the Registrar, or at the office of any transfer agent,
together with a written request for the exchange. Any registration of transfer
or exchange shall be effected upon Peru being satisfied with the documents of
title and identity of the person making the request and subject to such
reasonable regulations as Peru may from time to time agree with the Fiscal
Agent.
(c) Upon the terms and subject to the conditions set forth in the
Fiscal Agency Agreement, a Bond may be transferred in whole or in part by the
holder or holders surrendering the Bond for registration of transfer at the
office of the Registrar in The City of New York or at the office of any transfer
agent, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to Peru and the Registrar or any such transfer agent, as the
case may be, duly executed by the holder or holders thereof or its
attorney-in-fact or attorneys-in-fact duly authorized in writing.
(d) No service charge will be imposed upon the holder of a Bond in
connection with exchanges for Bonds of a different denomination or for
registration of transfers thereof, but Peru and the Fiscal Agent may charge the
party requesting any registration of transfer, exchange or registration of Bonds
a sum sufficient to reimburse it for any stamp or other tax or other
governmental charge required to be paid in connection with such transfer,
exchange or registration.
8. Amendments and Waivers. (a) Section 7.1 of the Fiscal Agency
Agreement, which Section is hereby incorporated mutatis mutandi by reference
herein, provides, among other things, that, (i) with the consent of the holders
of at least 66 2/3% in aggregate principal amount of the Bonds then Outstanding
present at a meeting duly called pursuant thereto or (ii) by written consent of
the holders of at least 66 2/3% in aggregate principal amount of the Bonds then
Outstanding, Peru and the Fiscal Agent may modify, amend or supplement the terms
of the Bonds or the Fiscal Agency Agreement, in any way, and the holders of
Bonds may make, take or give any request, demand, authorization, direction,
notice, consent, waiver (including waiver of future compliance or past default)
or other action provided by the Fiscal Agency Agreement or the Bonds to be made,
given or taken by holders of the Bonds; provided, however, that no such action,
modification, amendment or supplement, however effected, shall apply, without
the written consent of the holder of each Bond affected thereby, to the Bonds
owned or held by such holder with respect to the following matters: (A) change
the due date for the payment of the principal of, or any installment of interest
on, the Bonds; (B) reduce the principal amount of or interest on the Bonds, or
the portion of such principal amount which is payable upon acceleration of the
maturity of the Bonds or the interest rate thereon; (C) change the obligation of
Peru to pay Additional Amounts as described under Section 6(a) hereof; (D)
change the currency in which payment of interest or principal in respect of the
Bonds is payable; or (E) impair the right to institute suit for the enforcement
of any payment in respect of the Bonds. In addition, no such action,
modification, amendment or supplement may, without the written consent of all
holders of Bonds, reduce the above-stated percentage of the principal amount of
Outstanding Bonds the vote or consent of the holders of which is necessary to
modify, amend or supplement the Fiscal Agency Agreement or the terms and
conditions of the Bonds or to make, take or give any request, demand,
authorization, direction, notice, consent, waiver or other action provided
hereby or thereby to be made, taken or given, or reduce the percentage in
principal amount of Outstanding Bonds that constitute the quorum required at any
meeting of holders of the Bonds at which a resolution is adopted. In addition,
and notwithstanding the foregoing, at any meeting of holders of the Bonds duly
called and held as provided herein and in the Fiscal Agency Agreement, upon the
affirmative vote, in person or by proxy thereunto duly authorized in writing, of
the holders of not less than 66 2/3% in aggregate principal amount of the Bonds
then Outstanding, or by written consent of the holders of not less than 66 2/3%
in aggregate principal amount of the Bonds then Outstanding, holders of Bonds
may rescind or annul a declaration of the acceleration of the principal amount
thereof.
(b) Peru and the Fiscal Agent may, without the vote or consent of any
holder of Bonds, amend the Fiscal Agency Agreement or the Bonds for the purpose
of (a) adding to the covenants of Peru for the benefit of the holders of Bonds,
or (b) surrendering any right or power conferred upon Peru in respect of the
Fiscal Agency Agreement or the Bonds, or (c) providing security or collateral
for the Bonds, or (d) curing any ambiguity in any provision, or curing,
correcting or supplementing any defective provision contained herein or in the
Fiscal Agency Agreement in a manner which does not adversely affect the interest
of any Bond holder, or (e) effecting any amendment of the Fiscal Agency
Agreement (including, to the extent necessary to provide for the issuance of
other Bonds and of Warrants) or the Bonds which Peru and the Fiscal Agent
mutually deem necessary or desirable so long as any such amendment does not, and
will not, adversely affect the rights or interests of any Bond holder.
(c) It shall not be necessary for the vote or consent of the holders of
Bonds to approve the particular form of any proposed modification, amendment,
supplement, request, demand, authorization, direction, notice, consent, waiver
or other action, but it shall be sufficient if such vote or consent shall
approve the substance thereof. Any such modification, amendment, supplement,
request, demand, authorization, direction, notice, consent, waiver or other
action taken, made or given in accordance with Section 8(a) hereof shall be
conclusive and binding on all holders of Bonds, whether or not they have given
such consent or cast such vote, or were present at any meeting and whether or
not notation of such modification, amendment, supplement, request, demand,
authorization, direction, notice, consent, waiver or other action is made upon
the Bonds.
(d) Any notice of meeting of holders of Bonds shall set forth the time
and place of such meeting and in general terms the action proposed to be taken
at such meeting, and shall be given to each holder as provided in Section 11
hereof.
9. Governing Law. This Bond is governed by and must be interpreted in
accordance with the laws of the State of New York [other jurisdiction], except
that all matters governing authorization and execution of the Bonds by Peru are
governed by the laws of Peru.
10. Jurisdiction. (a) In the Fiscal Agency Agreement, Peru has agreed
that in connection with any suit, action or proceeding against it or its
properties, assets or revenues arising out of or relating to the Fiscal Agency
Agreement or the Bonds (a "Related Proceeding"), Peru shall submit to the
exclusive jurisdiction of any New York State or U.S. federal court sitting in
New York City, and any appellate court thereof (the "Specified Courts"). Peru
has also agreed that (i) all claims in respect of such Related Proceeding may be
heard and determined in such Specified Courts; (ii) any judgment obtained in the
Specified Courts arising out of any Related Proceeding may be enforced or
executed in any other court of competent jurisdiction whatsoever; and (iii) any
judgment obtained in any such other court as a result of such enforcement or
execution may be enforced or executed in any such other court of competent
jurisdiction (all such courts other than Specified Courts being called herein
"Other Courts"), by means of a suit on the judgment or in any other manner
provided by law; provided that in order to enforce or execute any such judgment
ordering any payment by Peru, Peruvian courts will require that such payments be
included in the Budget Law corresponding to the fiscal year on which such
payment is to be due (but Peru will use its best efforts to cause such payment
to be included in such Budget Law). Peru has irrevocably submitted to the
exclusive jurisdiction of the Specified Courts solely for the purpose of any
Related Proceeding and, for enforcing or executing any judgment arising in
connection with a Related Proceeding as described above (a "Related Judgment"),
of the Specified Courts and each Other Court.
(b) Peru has agreed that CT Corporation, presently located at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, 13th floor, New York, New York, will act as its process agent
(the "Process Agent") and that Peru will maintain at all times an agent with
offices in New York to act as its Process Agent. The Process Agent will receive
on behalf of Peru and its property all writs, process and summonses in any
Related Proceeding or any suit, action or proceeding to enforce or execute any
Related Judgment brought against it in such Specified Courts. Failure of the
Process Agent to give any notice to Peru of any such service of process shall
not impair or affect the validity of such service or of any judgment based
thereon. Nothing in the Fiscal Agency Agreement or herein shall in any way be
deemed to limit the ability to serve any such writs, process or summonses in any
other manner permitted by applicable law.
(c) Peru has irrevocably consented to and waived, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue in any Related Proceeding brought in the Specified Courts or to the
laying of venue of any suit, action or proceeding brought solely for the purpose
of enforcing or executing any Related Judgment in the Specified Courts or Other
Courts, and has further irrevocably waived, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of any Related
Proceeding in a Specified Court or any such suit, action or proceeding to
enforce or execute a Related Judgment in any Other Court.
(d) To the extent that Peru or any of its revenues, assets or
properties may be entitled to any sovereign or other immunity from jurisdiction
or any other legal process under any law, Peru has agreed not to claim and to
waive such immunity to the fullest extent permitted by the laws of such
jurisdiction. This waiver covers Peru's sovereign immunity and immunity from
prejudgment attachment, post-judgment attachment and attachment in aid of
execution, but does not extend to the attachment of revenues, assets and
property of Peru located in Peru unless permitted under Peruvian law.
Additionally, in accordance with Peruvian law currently in effect, Peru's waiver
of immunity does not extend to property that is (i) used by a diplomatic or
consular mission of Peru; (ii) of a military character and under the control of
a military authority or defense agency of Peru; (iii) public property; (iv)
shares of Peruvian public sector entities or shares of Peruvian private sector
entities owned or controlled by Peru or by a Peruvian public sector entity, or
revenues collected from the sale of such shares, to the extent such shares or
revenues are exempt by Peruvian law from attachment or execution; or (v) funds
deposited in Peru's accounts held in the Peruvian financial system.
Peru, however, has reserved the right to plead sovereign immunity under
the U.S. Foreign Sovereign Immunities Act of 1976 (the "Immunities Act") with
respect to actions brought against it under U.S. federal securities laws or any
state securities law. Without an effective waiver of immunity by Peru with
respect to such actions, it would be impossible to obtain a U.S. judgment in
such an action against Peru unless a court were to determine that Peru is not
entitled under the Immunities Act to sovereign immunity with respect to such
action. In addition, execution upon property of Peru located in the United
States to enforce a judgment obtained under the Immunities Act may not be
possible except in the limited circumstances specified in the Immunities Act.
Even if a U.S. judgment could be obtained against Peru in any such
action, it may not be possible to enforce in Peru a judgment based on such a
U.S. judgment.
Peru has also consented generally for the purposes of the State
Immunity Act of 1978 of the United Kingdom to the giving of any relief or the
issue of any process in connection with any Related Proceeding or Related
Judgment.
11. Notices. Notices will be mailed to holders of Bonds at their
registered addresses and will be deemed to have been given on the date of such
mailing. All notices to holders of the Bonds will be published, if and so long
as the Bonds are listed on the Luxembourg Stock Exchange and the rules of such
exchange so require, in a daily newspaper of general circulation in Luxembourg.
It is expected that such publication will be made in the Luxemburger Wort. If
publication as aforesaid is not practicable, notice will be validly given if
made in accordance with the rules of the Luxembourg Stock Exchange.
12. Further Issues. Peru may, from time to time, without the consent of
the holders of the Bonds, create and issue additional bonds having the same
terms and conditions as the Bonds, except for the issue date, issue price and
the amount of the first payment of interest, which additional bonds may be
consolidated and form a single series with the outstanding Bonds.
FISCAL AGENT, PAYING AGENTS, TRANSFER AGENTS AND REGISTRAR
Fiscal Agent
[ADDRESS]
Principal Paying Agent, Transfer Agent and Registrar
[ADDRESS]
Paying Agents and Transfer Agents
[ADDRESS] [ADDRESS]
Paying Agent and Transfer Agent in Luxembourg
[ADDRESS]
Listing Agent
[ADDRESS]
EXHIBIT D
AUTHORIZATION
I, [ ], [title] of the Republic of Peru ("Peru"), pursuant to
Section 3.1 of the Fiscal Agency Agreement dated as of [ ], (the "Fiscal Agency
Agreement") between Peru and [ ], as fiscal agent (the "Fiscal Agent"), certify
that there is hereby established a Series of Bonds to be delivered under the
Fiscal Agency Agreement, which Series of Bonds shall have the terms set forth in
the form of Bond attached hereto as Annex A and described in the Prospectus
Supplement dated [ ] (the "Prospectus Supplement"), pertaining to the [title of
securities] (the "Bonds") and the related Prospectus dated [ ], pertaining to
Securities and Warrants of Peru (the "Prospectus"), which Prospectus Supplement
and Prospectus are attached hereto as Annex B, which terms shall include the
following:
[Insert terms of Bonds, as applicable]
Aggregate Principal Amount: [ ]
Issue Price: [ ]
Issue Date: [ ]
Maturity Date: [ ]
Specified Currency: [ ]
Authorized Denominations: [ ]
Form: [ ]
Interest Rate: [ ]
Interest Payment Dates: [ ]
Regular Record Dates: [ ]
Guarantor: [ ]
Form of Guarantee: [ ]
Optional Early Redemption: ____ Yes ____ No
Optional Early Repayment: ____ Yes ____ No
Indexed Note: ____ Yes ____ No
Foreign Currency Note: ____ Yes ____ No
Underwriters: [ ]
Purchase Price: [ ]
Method of Payment: [ ]
Listing: [ ]
Securities Offered:
CUSIP: [ ]
ISIN: [ ]
Common Code: [ ]
Fiscal Agent, Principal Paying
Agent, Transfer Agent, Registrar and
Authenticating Agent: [ ]
Luxembourg Paying and Transfer
Agent: [ ]
Further Issues: [ ]
Governing Law: [ ]
[Other terms:] [ ]
Capitalized terms not otherwise defined herein are used as defined in
the Fiscal Agency Agreement.
This Authorization shall be governed by, and construed in accordance
with, the law of the State of New York.
IN WITNESS WHEREOF, I have executed this Certificate as of the [ ] day
of [ ], 200[ ].
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Name:
Title:
EXHIBIT E
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby transfers to
(PRINT NAME AND ADDRESS OF TRANSFEREE)
[U.S.$]_______ principal amount of this Bond, and all rights with respect
thereto, and irrevocably constitutes and appoints __________________ as attorney
to transfer this Bond on the books kept for registration thereof, with full
power of substitution.
Dated
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Certifying Signature
Signed
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Note:
(i) The signature on this transfer form must correspond to the name as
it appears on the face of this Bond.
(ii) A representative of the Bondholder should state the capacity in
which he or she signs (e.g., executor).
(iii) The signature of the person effecting the transfer shall conform
to any list of duly authorized specimen signatures supplied by the
registered holder or shall be certified by a recognized bank, notary
public or in such other manner as the Paying Agent, acting in its
capacity as transfer agent or the Fiscal Agent, acting in its capacity
as registrar, may require.