EXHIBIT 2.9
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NOTEHOLDER DEPOSITARY AGREEMENT
Dated as of February 26, 2004
among
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.,
as Issuer
CITIBANK, N.A.,
as Note Trustee
and
CITIBANK, N.A.,
as Noteholder Depositary Bank
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS .............................................................................. 1
SECTION 1.1. Definitions ............................................................... 1
ARTICLE II CREATION OF ACCOUNTS .................................................................... 3
SECTION 2.1. Creation of Accounts ...................................................... 3
SECTION 2.2. Maintenance of Noteholder Accounts ........................................ 3
SECTION 2.3. Representations and Covenants regarding the Noteholder Accounts ........... 4
SECTION 2.4. Direction by Note Trustee; Note Proceeds Withdrawals ...................... 7
ARTICLE III DEPOSITS INTO NOTEHOLDER ACCOUNTS ...................................................... 7
SECTION 3.1. Deposits Into the Note Proceeds Account ................................... 7
SECTION 3.2. Deposits Into the Note Interest Account ................................... 7
SECTION 3.3. Deposits Into the Note Prepayment Account ................................. 7
SECTION 3.4. Information to Accompany Amounts Delivered to the Noteholder
Depositary Bank; Misdirected Amounts; Deposits Irrevocable .............. 8
SECTION 3.5. Books of Account; Statements .............................................. 8
ARTICLE IV ALLOCATIONS FROM NOTEHOLDER ACCOUNTS .................................................... 9
SECTION 4.1. Allocations from the Note Proceeds Account ................................ 9
SECTION 4.2. Allocations from the Note Interest Account ................................ 9
SECTION 4.3. Allocations from the Note Prepayment Account .............................. 10
SECTION 4.4. Make-Whole Premium ........................................................ 10
ARTICLE V INVESTMENTS AND VALUATION ................................................................ 10
SECTION 5.1. Investments ............................................................... 10
SECTION 5.2. Income or Gain ............................................................ 11
SECTION 5.3. Value ..................................................................... 11
SECTION 5.4. Taxes ..................................................................... 11
ARTICLE VI RIGHTS, DUTIES AND POWERS OF THE NOTEHOLDER DEPOSITARY BANK ............................. 11
SECTION 6.1. Appointment of Noteholder Depositary Bank ................................. 11
SECTION 6.2. Rights of Noteholder Depositary Bank ...................................... 11
SECTION 6.3. Resignation and Removal of Noteholder Depositary Bank ..................... 13
ARTICLE VII INDEMNIFICATION ........................................................................ 14
SECTION 7.1. Indemnification From Issuer ............................................... 14
ARTICLE VIII MISCELLANEOUS ......................................................................... 14
SECTION 8.1. Agreement for Benefit of Parties Hereto ................................... 14
SECTION 8.2. Reimbursement of Expenses ................................................. 14
SECTION 8.3. Reinstatement ............................................................. 15
SECTION 8.4. Severability .............................................................. 15
SECTION 8.5. Notices ................................................................... 15
SECTION 8.6. Successors and Assigns .................................................... 15
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SECTION 8.7. Counterparts .............................................................. 15
SECTION 8.8. Governing Law; Submission to Jurisdiction ................................. 15
SECTION 8.9. WAIVER OF JURY TRIAL ...................................................... 16
SECTION 8.10. No Impairments of Other Rights ........................................... 16
SECTION 8.11. Amendment; Waiver ........................................................ 16
SECTION 8.12. Incumbency Certificates; Authorized Persons; Reliance on Certificates .... 17
SECTION 8.13. Headings ................................................................. 17
SECTION 8.14. Entire Agreement ......................................................... 17
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This NOTEHOLDER DEPOSITARY AGREEMENT (this "Agreement"), dated as of
February 26, 2004, among CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE
C.V., a sociedad anonima de capital variable organized under the laws of Mexico
(the "Issuer"), CITIBANK, N.A., in its capacity as note trustee (in such
capacity, together with its successors and assigns, the "Note Trustee") and
CITIBANK, N.A., in its capacity as depositary bank (in such capacity, together
with its successors and assigns, the "Noteholder Depositary Bank").
PRELIMINARY STATEMENTS
1. Pursuant to the International Public Bid (Licitacion
Internacional Publica) No. 18164093-011-02, the Issuer has been awarded a
contract to develop and construct a hydroelectric generating plant to be located
in the La Yesca and Santa ▇▇▇▇▇ del Oro municipalities of the State of Nayarit,
Mexico, which construction shall be in accordance with the terms, conditions and
specifications set forth in the Bid for the Project and the Mixed Financed
Public Works Contract (Contrato Mixto de Obra Publica Financiada), dated March
26, 2003, entered into by the Issuer and the Comision Federal de Electricidad.
2. Pursuant to the Note Indenture, dated as of February 26, 2004
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Indenture") by and between the Issuer and Citibank, N.A., as Note
Trustee, and pursuant to the other Financing Documents (as defined in the
Indenture), the Holders (as defined in the Indenture) have agreed to purchase
the Issuer's Senior Secured Notes Due 2008 to help finance the Project (as
defined in the Indenture).
3. The parties hereto desire to enter into this Agreement to,
among other things, (a) appoint CITIBANK, N.A., as Noteholder Depositary Bank
hereunder and (b) set forth certain procedures for the deposit, investment and
disbursement of the Note Proceeds (as defined herein) and all receipts of, and
payments made by, the Issuer in U.S. Dollars.
NOW, THEREFORE, in consideration of the foregoing and in order to
induce the Note Trustee to enter into the Indenture and other Financing
Documents, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and further acknowledging that the
Holders and the Note Trustee intend to rely on the undertakings of the Issuer
hereunder, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
(a) For all purposes of this Agreement, except as otherwise
expressly provided herein, capitalized terms used and not otherwise defined
herein shall have the meanings set forth in the Indenture, or if not defined
herein or therein, in that certain Common Agreement, dated as of February 26,
2004, among the Issuer, WestLB AG, New
York Branch, as intercreditor agent, the lenders from time to time party
thereto, WestLB AG, New York Branch, as facility administrative agent, the Note
Trustee, Banco Santander Central Hispano, S.A., New York Branch, as offshore
collateral agent, Banco Santander Mexicano, S.A., as onshore collateral agent,
and the other creditors and creditor representatives from time to time party
thereto (the "Common Agreement"). The principles of construction set forth in
Sections 1.02 and 1.03 of the Common Agreement are incorporated herein by
reference, mutatis mutandis, as if fully set forth herein.
(b) Where the day on or by which a payment is due to be made is
not a Business Day, that payment shall be due on the next succeeding Business
Day.
(c) For all purposes of this Agreement, the terms "control",
"entitlement order", "financial asset", "investment property", "securities
account" and "deposit account" have the meanings assigned thereto in Articles 8
and 9 of the UCC as in effect on the date hereof.
(d) As used in this Agreement the following terms have the
following meanings:
"Book-Entry Security" means a security maintained in the form of
entries (including the Security Entitlements in, and the financial assets
based on, such security) in the commercial book-entry system of the
Federal Reserve System.
"Contract Proceeds Sub-Account" has the meaning assigned to such
term in Section 2.1(c).
"Federal Book-Entry Regulations" means (a) the federal regulations
contained in Subpart B ("Treasury/Reserve Automated Debt Entry System
(TRADES)" governing Book-Entry Securities consisting of U.S. Treasury
bonds, notes and bills) and Subpart D ("Additional Provisions") of 31
C.F.R. Part 357, 31 C.F.R. Sections 357.10 through Section 357.14 and
Sections 357.40 through Section 357.44 (including related defined terms in
31 C.F.R. Section 357.2) and (b) to the extent substantially identical to
the federal regulations referred to in subsection (a) above (as in effect
from time to time), the federal regulations governing other Book-Entry
Securities.
"Note Interest Account" has the meaning assigned to that term in
Section 2.1(a).
"Note Prepayment Account" has the meaning assigned to that term in
Section 2.1(c).
"Note Proceeds Account" has the meaning assigned to that term in
Section 2.1(b).
"Noteholder Accounts" has the meaning assigned to that term in
Section 2.1.
"Prepayment Sub-Account" has the meaning assigned to such term in
Section 2.1(c).
"Securities Intermediary" means a Person that (a) is a "securities
intermediary" as defined in Section 8-102(a)(14) of the UCC and (b) in
respect of any Book-Entry Security, is also a "securities intermediary" as
defined in 31 C.F.R. Section 357.2 (or, as
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applicable to such Book-Entry Security, the corresponding Federal
Book-Entry Regulations governing such Book-Entry Security).
"Security Entitlement" means (a) "security entitlement" as defined
in Section 8-102(a)(17) of the UCC (except in respect of a Book-Entry
Security) and (b) in respect of any Book-Entry Security, a "security
entitlement" as defined in 31 C.F.R. Section 357.2 (or, as applicable to
such Book-Entry Security, the corresponding Federal Book-Entry Regulations
governing such Book-Entry Security) which, to the extent required or
permitted by the Federal Book-Entry Regulations, is also a "security
entitlement" as defined in Section 8-102(a)(17) of the UCC.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York, as interpreted and construed by the courts of the State of New
York.
ARTICLE II
CREATION OF ACCOUNTS
SECTION 2.1. Creation of Accounts. The Noteholder Depositary Bank
hereby establishes and agrees to maintain and administer in accordance with the
terms of this Agreement, the following special, segregated and irrevocable
non-interest bearing trust accounts (each, a "Noteholder Account" and,
collectively, the "Noteholder Accounts"), each in the name of the Note Trustee:
(a) an account entitled "El Cajon Note Interest Account" bearing
Account No. 104942 (the "Note Interest Account");
(b) an account entitled "El Cajon Note Proceeds Account" bearing
Account No. 104944 (the "Note Proceeds Account"); and
(c) an account entitled "El Cajon Note Prepayment Account" (the
"Note Prepayment Account") consisting of two sub-accounts (such
sub-accounts, the "Contract Proceeds Sub-Account" bearing Account No.
104943 and the "Prepayment Sub-Account" bearing Account No. 104945).
References herein to the Note Prepayment Account shall be a reference to
both the Contract Proceeds Sub-Account and the Prepayment Sub-Account,
unless the context otherwise requires.
SECTION 2.2. Maintenance of Noteholder Accounts.
(a) Each Noteholder Account shall be maintained at all times in
accordance with the terms of this Agreement and the Financing Documents to which
the Note Trustee is a party until the date on which all of the Obligations from
the Issuer to the Holders and the Note Trustee have been indefeasibly paid in
full. All amounts from time to time held in or credited to each Noteholder
Account shall not constitute payment of any Obligation or any other obligation
of the Issuer until applied to the payment of such Obligation or other
obligation of the Issuer as hereinafter provided. The Noteholder Accounts shall,
until disbursed in accordance with the terms of this Agreement, constitute the
property of the Note Trustee (for the benefit of the Holders). The Note Trustee
may issue entitlement orders and other demands and instructions
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with respect to the Noteholder Accounts or any financial asset maintained or
carried therein or credited thereto. No payments shall be made out of the
Noteholder Accounts, except for the purposes and on the terms provided in this
Agreement and in the Note Documents. Payments made out of the Noteholder
Accounts shall be applied by the Note Trustee in accordance with this Agreement
and the Indenture; provided that any amounts payable to the Issuer pursuant to
clause Fourth of Section 5.4 of the Indenture shall be transferred by the
Noteholder Depositary Bank to the Offshore Depositary Bank by wire transfer for
deposit into the Dollar Revenue Account.
(b) The Noteholder Depositary Bank shall maintain books of account
on a cash basis and record therein all deposits into, and transfers to, from and
between, the Noteholder Accounts and all investment transactions effected by the
Noteholder Depositary Bank pursuant to Article IV and Article V hereof. The
Noteholder Depositary Bank shall make such books of account available during
normal business hours for inspection and audit by the Holders, the Note Trustee
and the Issuer at their expense upon reasonable prior notice.
(c) Each of the Noteholder Accounts shall at all times be in the
exclusive possession of, and under the exclusive dominion and control of, the
Noteholder Depositary Bank, acting at the written direction of the Note Trustee.
Each of the Issuer and the Note Trustee agrees that its rights to moneys held in
the Noteholder Accounts are subject to, and controlled by, the terms of this
Agreement, the Common Agreement and the Intercreditor Agreement.
(d) The Noteholder Depositary Bank agrees to maintain the location
of the Noteholder Accounts in New York, New York.
(e) The parties hereto agree that each of the Contract Proceeds
Sub-Account and the Prepayment Sub-Account shall be maintained by the Noteholder
Depositary Bank as an individual, non-interest bearing trust account bearing a
separate account number.
SECTION 2.3. Representations and Covenants regarding the Noteholder
Accounts. For purposes of this Agreement, the parties hereto confirm and agree
as follows:
(a) On the date hereof, and for so long as this Agreement remains
in effect, the Noteholder Depositary Bank confirms that it is and shall
remain a "Securities Intermediary" and shall act as such with respect to
the establishment and maintenance of the Noteholder Accounts and the
Security Entitlements carried therein.
(b) The Noteholder Depositary Bank shall maintain each of the
Noteholder Accounts as a "securities account" (within the meaning of
Section 8-501(a) of the UCC). The Noteholder Depositary Bank shall
identify the Note Trustee on its books and records as the "entitlement
holder" (within the meaning of Section 8-102(a)(7) of the UCC) of the
Security Entitlements carried in the Noteholder Accounts and the Note
Trustee may issue any entitlement orders, instructions or directions with
respect to the Noteholder Accounts, the Security Entitlements carried
therein and the financial assets credited thereto pursuant to the terms of
this Agreement.
(c) The Noteholder Depositary Bank agrees that each item of
property (including any investment property, financial assets, securities,
instruments, general
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intangibles or cash) credited to the Noteholder Accounts shall be treated
as a "financial asset" (within the meaning of Section 8-102(a)(9) of the
UCC).
(d) All property delivered or transferred to the Noteholder
Depositary Bank pursuant to this Agreement for credit to a Noteholder
Account will be promptly credited to the applicable Noteholder Account.
(e) All securities or other property underlying any financial
assets credited to any Noteholder Account shall be (i) registered in the
name of the Note Trustee or in the name of a nominee of the Note Trustee
(for the benefit of the Holders) (ii) held in the custody of the
Noteholder Depositary Bank for the purposes and on the terms set forth in
this Agreement and the Note Documents and (iii) endorsed to the Note
Trustee or in blank or credited to another securities account in the name
of the Note Trustee, and in no case shall any financial asset credited to
any Noteholder Account be registered in the name of the Issuer, payable to
the order of the Issuer, or specially endorsed to the Issuer, except (A)
to the extent the foregoing have been specially endorsed to the Noteholder
Depositary Bank or in blank and (B) to the extent provided for in clause
Fourth of Section 5.4 of the Indenture.
(f) If at any time the Noteholder Depositary Bank shall receive
any written instruction, direction or entitlement order from the Note
Trustee directing disposition, transfer, withdrawal or redemption of any
financial asset relating to any Noteholder Account or otherwise relating
to any or all of the Note Collateral, the Noteholder Depositary Bank
hereby agrees that it shall comply with such written instruction,
direction or entitlement order without further consent from the Issuer or
any other Person. If the Issuer is otherwise entitled to issue any written
instruction, direction or entitlement order in accordance with the terms
of this Agreement and such instruction, direction or entitlement order
conflicts with any written instruction, direction or entitlement order
issued by the Note Trustee, the Noteholder Depositary Bank shall follow
the orders issued by the Note Trustee.
(g) The "securities intermediary's jurisdiction" (within the
meaning of Section 8-110(e) of the UCC) of the Noteholder Depositary Bank
is and shall continue to be the State of New York.
(h) The Noteholder Depositary Bank knows of no right or claim to,
or interest in, the Noteholder Accounts or other Note Collateral
(including any "adverse claim" within the meaning of Section 8-102(a)(1)
of the UCC) by any Person other than the Note Trustee, acting on behalf of
the Holders. If any Person asserts any lien, encumbrance or adverse claim
(including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against the Noteholder Accounts or any other
Note Collateral, the Noteholder Depositary Bank shall promptly notify the
Note Trustee thereof.
(i) Other than this Agreement, the Noteholder Depositary Bank has
not entered into, and shall not enter into, any agreement with any other
Person relating to the Noteholder Accounts and/or any financial assets
from time to time credited thereto
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pursuant to which it has agreed or will agree to comply with entitlement
orders of such Person or any other Person. The Noteholder Depositary Bank
has not entered into and shall not enter into any other agreement with the
Issuer or any other Person purporting to limit or condition the obligation
of the Noteholder Depositary Bank to comply with entitlement orders
originated by the Note Trustee as set forth in paragraph (f) above.
(j) In the event that the Noteholder Depositary Bank has or
subsequently obtains by agreement, operation of law, or otherwise, a
security interest in the Noteholder Accounts or any other Note Collateral,
the Noteholder Depositary Bank hereby agrees that such security interest
shall be subordinate to the security interest of the Note Trustee.
(k) The Noteholder Depositary Bank hereby waives and releases any
lien, encumbrance, claim, right of set-off or other right it may have
against the Noteholder Accounts or any other Note Collateral (except that
the Noteholder Depositary Bank may set off the face amount of any checks
which have been credited to the Noteholder Accounts but are subsequently
returned unpaid because of uncollected or insufficient funds) and agrees
that it shall not assert any such lien, encumbrance, claim or right
against the Noteholder Accounts or any other Note Collateral.
(l) Notwithstanding anything to the contrary set forth in this
Agreement, in the event that the Noteholder Accounts are determined by any
court of law or arbitral tribunal to be "deposit accounts" (as defined in
Section 9-102(a)(29) of the UCC), rather than "securities accounts" (as
defined in Section 8-501 of the UCC), the Noteholder Depositary Bank
hereby (i) confirms that it is a "bank" within the meaning of Section
9-102(a)(8) of the UCC and that the bank's jurisdiction for purposes of
Section 9-304 of the UCC is, and shall continue to be, the State of New
York and (ii) agrees that it shall comply with instructions from the Note
Trustee directing disposition of funds in the Noteholder Accounts without
further consent from the Issuer or any other Person.
(m) Anything herein to the contrary notwithstanding, the
Noteholder Depositary Bank shall not be required to follow any instruction
that would violate applicable law, decree, regulation or order of any
Governmental Authority.
(n) The Issuer represents and warrants that it does not have (and
will not have) any legal or equitable interest in or control over the Note
Collateral.
(o) The Issuer represents and warrants that the Note Collateral
would not be part of the Issuer's estate under Section 541 of the
Bankruptcy Code.
(p) The proceeds of the Note Collateral made available to the
Issuer from time to time by the Noteholder Depositary Bank, acting at the
written direction of the Note Trustee pursuant to this Agreement and the
Note Indenture (other than amounts transferred by the Noteholder
Depositary Bank to the Offshore Collateral Agent for transfer to the
Offshore Depositary Bank pursuant to Section 2.2(a)), shall constitute an
extension of credit from the Holders to the Issuer. Any amounts credited
from time to time to the Note Prepayment Account may only be transferred
to the Note Trustee and the Holders and, until all of the Obligations from
the Issuer to the Holders and the Note
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Trustee have been indefeasibly paid in full, any amounts on deposit in the
Note Interest Account may only be transferred to the Note Trustee and the
Holders, in accordance with the Financing Documents.
SECTION 2.4. Direction by Note Trustee; Note Proceeds Withdrawals.
(a) Notwithstanding any other provision contained in this
Agreement, the Noteholder Depositary Bank agrees that it shall take all
directions, instructions or entitlement orders with respect to each of the
Noteholder Accounts or any financial asset credited thereto or carried therein
or any other Note Collateral solely from the Note Trustee.
(b) Subject to the terms and conditions of the Common Agreement,
the Note Trustee agrees to instruct the Noteholder Depositary Bank to make (and,
subject to the sufficiency of funds in the Note Proceeds Account or the Note
Interest Account, as applicable, the Noteholder Depositary Bank agrees to make)
the Note Proceeds Withdrawals requested by the Issuer in the applicable Notice
of Funding, no later than 11:00 a.m. (New York City time) on the Funding date
requested by the Issuer in accordance with the Financing Documents. The Note
Trustee shall direct the Noteholder Depositary Bank to apply the proceeds of any
Note Proceeds Withdrawal solely in accordance with this Agreement and the other
Financing Documents to which the Note Trustee is a party.
ARTICLE III
DEPOSITS INTO NOTEHOLDER ACCOUNTS
SECTION 3.1. Deposits Into the Note Proceeds Account. On the Closing
Date, the Note Trustee shall transfer the Note Proceeds to the Noteholder
Depositary Bank with instructions to the Noteholder Depositary Bank to deposit
the same into the Note Proceeds Account. The Noteholder Depositary Bank shall
deposit such amounts in accordance with such instructions.
SECTION 3.2. Deposits Into the Note Interest Account. On the Closing
Date, amounts requested by the Note Trustee to be transferred from the Note
Proceeds Account pursuant to clause first of Section 4.1(a) shall be deposited
by the Noteholder Depositary Bank in the Note Interest Account
SECTION 3.3. Deposits Into the Note Prepayment Account.
(a) Contract Proceeds Sub-Account. The Note Trustee shall transfer
to the Noteholder Depositary Bank all amounts received from the Intercreditor
Agent pursuant to Section 3.01(b)(ii) or (iv) of the Common Agreement with
instructions to the Noteholder Depositary Bank to deposit such amounts into the
Contract Proceeds Sub-Account. The Noteholder Depositary Bank shall deposit such
amounts in accordance with such instructions.
(b) Prepayment Sub-Account. The Note Trustee shall transfer to the
Noteholder Depositary Bank all amounts received from the Intercreditor Agent
pursuant to Section 3.01(b)(i) of the Common Agreement with instructions to the
Noteholder Depositary
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Bank to deposit such amounts into the Prepayment Sub-Account. The Noteholder
Depositary Bank shall deposit such amounts in accordance with such instructions.
SECTION 3.4. Information to Accompany Amounts Delivered to the
Noteholder Depositary Bank; Misdirected Amounts; Deposits Irrevocable.
(a) All amounts transferred to the Noteholder Depositary Bank
hereunder shall be accompanied by a written direction of the Note Trustee
specifying in reasonable detail the source of such amounts and the Noteholder
Account or Noteholder Accounts (including the number of such Noteholder Account
or Noteholder Accounts) into which such amounts are to be deposited.
(b) All amounts transferred to the Noteholder Depositary Bank
hereunder shall be made by federal wire transfer in immediately available funds
to Citibank, N.A., as Noteholder Depositary Bank.
(c) In the event that the Noteholder Depositary Bank receives any
amount which is inadequately or incorrectly identified as to the Account or the
Noteholder Account into which such amount is to be deposited, the Noteholder
Depositary Bank shall promptly notify the Note Trustee of such event and shall
request instructions as to the Account or the Noteholder Account into which such
amount should be deposited. The Noteholder Depositary Bank shall deposit such
amount in the Note Proceeds Account until such time as the Noteholder Depositary
Bank receives written instructions from the Note Trustee stating that such
amount should be deposited in another Account or Noteholder Account in
accordance with this Agreement or the Depositary Agreement, in which case the
Noteholder Depositary Bank promptly shall transfer such amount to the Noteholder
Account, or to the Offshore Collateral Agent for transfer to the Offshore
Depositary Bank for deposit into the Account, in each case, designated by the
Note Trustee.
(d) Any deposit made into any Noteholder Account shall be
irrevocable (except if made as a result of manifest error) and the amount of
such deposit plus any investment earnings thereon shall be held by the
Noteholder Depositary Bank and applied, invested and transferred solely as
provided herein and in the Indenture.
(e) Neither the Noteholder Depositary Bank nor the Note Trustee
shall have any obligation to verify the accuracy or the adequacy of the sources
or amounts transferred to it pursuant to this Agreement and shall be entitled to
rely on the written directions accompanying such transfers.
SECTION 3.5. Books of Account; Statements.
(a) The Noteholder Depositary Bank shall maintain books of account
on a cash basis and record therein all deposits into and transfers to, from and
between the Noteholder Accounts and all investment transactions effected by the
Noteholder Depositary Bank, pursuant to Article IV and Article V hereof. The
Noteholder Depositary Bank shall make such books of account available during
normal business hours for inspection and audit by the Note Trustee, the Issuer,
the Intercreditor Agent and their respective representatives, at their
respective expense and upon reasonable prior notice.
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(b) Not later than the fifth Business Day after the end of each
calendar month, the Noteholder Depositary Bank shall provide to the Note Trustee
(and, upon its written request, to the Issuer) a statement specifying the
monthly activity for each Noteholder Account and the amounts held in each
Noteholder Account at the close of business on the last day of such calendar
month. The Noteholder Depositary Bank shall also provide such information as the
Note Trustee may specify regarding the Note Accounts, amounts held in the Note
Accounts, Permitted Investments and any other investment made by the Noteholder
Depositary Bank pursuant hereto. The Noteholder Depositary Bank shall promptly
send copies of all statements, confirmations and other correspondence concerning
the Noteholder Accounts and any other Note Collateral to the Note Trustee (and,
upon its written request, to the Issuer).
ARTICLE IV
ALLOCATIONS FROM NOTEHOLDER ACCOUNTS
SECTION 4.1. Allocations from the Note Proceeds Account.
(a) On the Closing Date, the Note Trustee shall instruct the
Noteholder Depositary Bank to, and the Noteholder Depositary Bank shall, apply
the amounts on deposit in the Note Proceeds Account, following the deposit made
pursuant to Section 3.1, as follows:
First, an amount equal to U.S.$63,288,333 shall be transferred from
the Note Proceeds Account to the Note Interest Account; and
Second, an amount equal to U.S.$35,215,564.89 shall be applied to
the repayment of the portion attributable to the Notes of the amounts
outstanding under the Interim Loan Documents.
(b) The proceeds of the Note Collateral made available to the
Issuer from time to time by the Noteholder Depositary Bank, acting at the
written direction of the Note Trustee pursuant to this Agreement and the Common
Agreement and the Note Indenture, shall constitute an extension of credit from
the Holders to the Issuer. Amounts from time to time credited to the Note
Proceeds Account may be applied, at the direction of the Note Trustee, solely
(i) to the payment of amounts payable in respect of the Note Documents other
than principal, any Make-Whole Premium (except with respect to the proceeds of
Dollar Permitted Investments) or interest as long as amounts credited to the
Note Interest Account are sufficient to pay such interest and (ii) to the
payment of other Project Costs (except interest, fees, Taxes, Other Taxes and
other amounts payable solely in respect of the Loan Documents).
(c) On each Note Proceeds Withdrawal date, the Noteholder
Depositary Bank shall, as instructed by the Note Trustee (acting in accordance
with Section 2.02 of the Common Agreement), transfer amounts directed by the
Note Trustee from the Note Proceeds Account to the Offshore Depositary Bank for
application into the Dollar Construction Account.
SECTION 4.2. Allocations from the Note Interest Account. On each
Payment Date (unless otherwise directed by the Note Trustee acting pursuant to
the Intercreditor Agreement or the Common Agreement), a portion of the amounts
held in the Note Interest Account equal to the amount of scheduled interest on
the Notes due on such Payment Date shall
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be withdrawn from the Note Interest Account and transferred by the Noteholder
Depositary Bank directly to the Note Trustee to be applied solely for the
payment of interest due on such Payment Date in respect of the Notes. After the
date on which all Obligations from the Issuer to the Holders and the Note
Trustee have been indefeasibly paid in full, any remaining amounts in the Note
Interest Account shall be transferred by the Noteholder Depositary Bank to the
Dollar Revenue Account at the direction of the Note Trustee.
SECTION 4.3. Allocations from the Note Prepayment Account.
(a) Contract Proceeds Sub-Account. At the direction of the Note
Trustee, amounts on deposit in the Contract Proceeds Sub-Account shall be
transferred by the Noteholder Depositary Bank to the Note Trustee to be applied
solely to repay the Notes in full on the Note Maturity Date or, if the Second
Installment is received prior to the Note Maturity Date, to the prepayment of
the Notes in accordance with Sections 3.01(b) and (c) of the Common Agreement
and Section 3.2 of the Indenture, or as otherwise directed by the Note Trustee
(acting pursuant to the Intercreditor Agreement or the Common Agreement).
(b) Prepayment Sub-Account. At any time that the amount credited
to the Prepayment Sub-Account exceeds US$10,000,000 (or as otherwise directed by
the Note Trustee), the Noteholder Depositary Bank is irrevocably directed to
transfer to the Note Trustee all amounts in the Prepayment Sub-Account, which
are to be applied to the prepayment of the Notes in accordance with Sections
3.01(b) and (c) of the Common Agreement and Section 3.2 of the Indenture.
SECTION 4.4. Make-Whole Premium. Except as specified in the Common
Agreement, or with respect to the proceeds of Dollar Permitted Investments, no
amount shall be withdrawn from any Noteholder Account in order to make payment
of any Make-Whole Premium.
ARTICLE V
INVESTMENTS AND VALUATION
SECTION 5.1. Investments.
(a) Pending the application of amounts held in the Noteholder
Accounts, such amounts shall be invested by the Noteholder Depositary Bank from
time to time solely in such Dollar Permitted Investments as the Note Trustee
(acting upon the written instructions of the Issuer) shall direct. The Issuer
shall select Dollar Permitted Investments having such maturities as shall cause
each Noteholder Account to have a cash balance as of any day sufficient to cover
the transfers to be made from such Noteholder Account on such day in accordance
with this Agreement.
(b) In the event that the cash balance in any Noteholder Account
is as of any day insufficient to cover the transfers to be made from such
Noteholder Account on such day, the Note Trustee shall direct the Noteholder
Depositary Bank to cause the sale or liquidation of the Dollar Permitted
Investments held in such Noteholder Account (without regard to maturity date) in
such manner as necessary in order to obtain cash at least sufficient to make
such transfers and
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to pay any expenses and charges incurred in connection with effecting any such
sale or liquidation, which expenses and charges the Noteholder Depositary Bank
shall be authorized to pay with cash on deposit in such Noteholder Account.
Neither the Noteholder Depositary Bank nor the Note Trustee shall be liable to
any Person for any loss suffered because of any such sale or liquidation other
than by reason of its willful misconduct or gross negligence.
SECTION 5.2. Income or Gain. Any interest, investment income or gain
realized as a result of any Dollar Permitted Investments held in or credited to
the Noteholder Accounts in excess of any amount required to be on deposit
therein (net of the expenses incurred in connection with making such Dollar
Permitted Investments) shall be held in or credited to the respective Noteholder
Account and reinvested as provided herein until transferred or disbursed
pursuant to the terms hereof. Neither the Noteholder Depositary Bank nor the
Note Trustee shall have any liability for any loss resulting from any such
Dollar Permitted Investment other than by reason of its willful misconduct or
gross negligence.
SECTION 5.3. Value. Cash and securities on deposit from time to time
in the Noteholder Accounts shall be valued, as the case may be, as follows:
(a) cash shall be valued at the face amount thereof; and
(b) securities shall be valued at market value thereof.
SECTION 5.4. Taxes. It is acknowledged by the parties hereto that
all interest and other investment income earned on amounts on deposit in or
credited to the Noteholder Accounts for U.S. Federal, state and local income tax
purposes ("Income Amounts") shall be attributed to the Issuer. With respect to
such Income Amounts, the Issuer shall provide the Noteholder Depositary Bank
with an executed and completed IRS Form W-8 BEN upon the reasonable request of
the Noteholder Depositary Bank. The Noteholder Depositary Bank shall comply with
all applicable withholding, information reporting and back-up withholding tax
requirements under the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations issued thereunder in respect of the Income Amounts.
ARTICLE VI
RIGHTS, DUTIES AND POWERS OF THE NOTEHOLDER DEPOSITARY BANK
SECTION 6.1. Appointment of Noteholder Depositary Bank. The Issuer
and the Note Trustee hereby appoint CITIBANK, N.A., to act as the Noteholder
Depositary Bank under this Agreement, with such powers as are expressly
delegated to the Noteholder Depositary Bank by the terms of this Agreement and
the UCC, and CITIBANK, N.A., hereby accepts such appointment pursuant to the
terms of this Agreement.
SECTION 6.2. Rights of Noteholder Depositary Bank.
(a) The Noteholder Depositary Bank undertakes to perform such
duties and only such duties as are specifically set forth in this Agreement or
the UCC, as expressly modified by this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Noteholder Depositary
Bank. As to any matters not expressly provided for by this
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Agreement, the Noteholder Depositary Bank shall not be required to take any
action or exercise any discretion, but, subject to Sections 6.2(d), 6.2(e) and
6.2(f) hereof, shall be required to act or to refrain from acting upon
instructions of the Note Trustee and shall in all such cases be fully protected
in acting, or in refraining from acting, hereunder in accordance with the
instructions of the Note Trustee.
(b) The Note Trustee, the Issuer and the Noteholder Depositary
Bank agree, with respect to the Noteholder Accounts as follows: (i) with
reference to Section 8-504 of the UCC, the Noteholder Depositary Bank shall
credit to the Noteholder Accounts security entitlements to any financial asset
purported to be credited to the Noteholder Depositary Bank pursuant to
applicable law, (ii) with reference to Section 8-505 of the UCC, the Noteholder
Depositary Bank shall distribute any payments or other distributions actually
received by the Noteholder Depositary Bank with respect to such security
entitlements in accordance with this Agreement, and (iii) with reference to
Section 8-506 of the UCC, the Noteholder Depositary Bank shall exercise rights
with respect to the financial assets only if directed to do so by subsequent
receipt of an entitlement order complying with Section 8-507 of the UCC from the
Note Trustee and then only to the extent of such instructions. In connection to
the Noteholder Depositary Bank's duties with respect to clause (i) of the
immediately preceding sentence, the Note Trustee and the Issuer agree that the
Noteholder Depositary Bank shall have satisfied its duties thereunder and under
Section 8-504 of the UCC so long as the Noteholder Depositary Bank credits as a
security entitlement to the applicable party in accordance with this Agreement
whatever rights the Noteholder Depositary Bank purportedly has in the financial
assets credited to the Noteholder Depositary Bank but that the Noteholder
Depositary Bank shall have no duty or responsibility to any person or entity for
ensuring that applicable law has been complied with to transfer or create a
security interest in any right, title or interest in or to, or in any right
whatsoever in and to, any financial asset purportedly transferred to the
Noteholder Depositary Bank or in which any security interest in any such
financial assets has purportedly been transferred or assigned to the Noteholder
Depositary Bank. With respect to Section 8-505(a) of the UCC, the sole
responsibility of the Noteholder Depositary Bank with respect to obtaining
payments or distributions on any financial asset is to notify the Issuer and the
Note Trustee if in the actual knowledge of the Noteholder Depositary Bank any
such payment or distribution has not been received by the Noteholder Depositary
Bank.
(c) The Noteholder Depositary Bank shall be entitled to rely upon
any certificate, notice or other document (including any cable, telegram,
telecopy or telex) believed by it to be genuine and to have been signed or sent
by or on behalf of the Issuer or the Note Trustee and upon advice and statements
of legal counsel and other experts selected by the Noteholder Depositary Bank.
(d) No provision of this Agreement shall be construed to relieve
the Noteholder Depositary Bank from liability for its own grossly negligent
action, its own grossly negligent failure to act, or its own willful misconduct,
except that to the extent, but only to the extent, the following limitations on
the Noteholder Depositary Bank's liability would not prevent the Noteholder
Depositary Bank from being a "Securities Intermediary" under the UCC, the
following limitations shall apply:
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(i) the Noteholder Depositary Bank shall not be liable for any
error of judgment of an officer of the Noteholder Depositary Bank, unless
it shall be proved that such officer of the Noteholder Depositary Bank was
grossly negligent in ascertaining the pertinent facts;
(ii) the Noteholder Depositary Bank shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Note Trustee relating to the time,
method and place of conducting any proceeding for any remedy available to
the Noteholder Depositary Bank, or exercising any trust or power conferred
upon the Noteholder Depositary Bank, under this Agreement;
(iii) the Noteholder Depositary Bank shall not be liable for any
loss of profits, consequential, incidental, punitive, exemplary or
indirect damages;
(iv) the Noteholder Depositary Bank shall not be deemed to have
knowledge of the existence of any Default or Event of Default until such
time as it has received notification of such Default or Event of Default
from the Note Trustee; and
(v) no provision of this Agreement shall require the Noteholder
Depositary Bank to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(e) The Noteholder Depositary Bank shall be under no obligation to
institute any suit, or to take any remedial proceeding under this Agreement, or
to enter any appearance or in any way defend in any suit in which it may be made
defendant, or in the enforcement of any rights or powers hereunder, if the
Noteholder Depositary Bank reasonably believes that it will not be adequately
indemnified against any and all costs and expenses, outlays, and counsel fees
and other reasonable disbursements and against all liability, except liability
that is adjudicated to have resulted from its gross negligence or willful
misconduct, in connection with any actions so taken.
(f) Whether or not therein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the eligibility of or
affording protection to the Noteholder Depositary Bank shall be subject to the
provisions of this Section 6.2.
SECTION 6.3. Resignation and Removal of Noteholder Depositary Bank.
The Note Trustee may remove the Noteholder Depositary Bank upon 30 days' prior
written notice to the Issuer and the Noteholder Depositary Bank. The Noteholder
Depositary Bank shall have the right to resign upon 30 days' prior written
notice to the Issuer and the Note Trustee. Upon any such removal or resignation
of the Noteholder Depositary Bank to act hereunder, the Note Trustee shall
appoint a successor Noteholder Depositary Bank. Notwithstanding the foregoing,
no resignation, removal or replacement of the Noteholder Depositary Bank shall
be effective until a successor Noteholder Depositary Bank has been appointed and
has agreed in a manner reasonably satisfactory to the Note Trustee to act as
Noteholder Depositary Bank hereunder.
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ARTICLE VII
INDEMNIFICATION
SECTION 7.1. Indemnification From Issuer. The Issuer agrees to
indemnify and hold the Noteholder Depositary Bank and the Note Trustee and their
respective officers, directors, employees, professional advisors and Affiliates
(each an "Indemnified Person") harmless from and against any and all liabilities
(including reasonable attorney fees), obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time be imposed on, incurred by or asserted against
any Indemnified Person, in any way relating to or arising out of this Agreement,
or any investigation, litigation or other proceeding relating to this Agreement
(including, without limitation, enforcement of this Agreement); provided that
the Issuer shall not be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements incurred by or asserted against any Indemnified
Person to the extent that any of the foregoing result from such Indemnified
Person's gross negligence or willful misconduct. The indemnity obligations of
the Issuer contained in this Article VII shall continue in full force and effect
notwithstanding redemption of the Notes and full payment all of the other
Obligations owing to the Holders and the Note Trustee and notwithstanding the
discharge thereof or the satisfaction and discharge or other termination of this
Agreement or any related document or agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Agreement for Benefit of Parties Hereto. Nothing in
this Agreement, express or implied, is intended or shall be construed to confer
upon, or to give to, any person other than the parties hereto and their
respective successors and assigns, any right, remedy or claim under or by reason
of this Agreement or any covenant, condition or stipulation hereof and the
covenants, stipulations and agreements contained in this Agreement are and shall
be for the sole and exclusive benefit of the parties hereto and their respective
successors and assigns.
SECTION 8.2. Reimbursement of Expenses. The Issuer will, within five
Business Days, upon demand pay to the Note Trustee and the Noteholder Depositary
Bank the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel (and any local counsel) and of any experts and
agents (provided, however, that, so long as no Event of Default shall have
occurred, the Note Trustee and the Noteholder Depositary Bank shall not be
entitled to the payment of fees of any expert or agent in an amount greater than
U.S.$10,000 unless the payment of such fees has been approved in writing by the
Issuer prior to the hiring of such expert or agent), which the Note Trustee or
the Noteholder Depositary Bank may incur in connection with (a) the
administration of this Agreement, (b) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Note Collateral,
(c) the exercise or enforcement (whether through negotiations, legal proceedings
or otherwise) of any of the rights of the Note Trustee or the Noteholder
Depositary Bank or (d) the failure by the Issuer to perform or observe any of
the provisions hereof.
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SECTION 8.3. Reinstatement. This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the Note Trustee in respect of the Obligations is rescinded or must
otherwise be restored or returned by the Note Trustee upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Issuer or upon the
appointment of any intervenor or conservator of, or trustee or similar official
for, the Issuer or any substantial part of its assets, or otherwise, all as
though such payments had not been made.
SECTION 8.4. Severability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected and/or impaired thereby.
SECTION 8.5. Notices. All notices or other communications hereunder
shall be given in the manner set forth in the Common Agreement (a) to the Issuer
and the Note Trustee, at the addresses specified in the Indenture and (b) to the
Noteholder Depositary Bank at the address specified under its name on the
signature pages hereto. A copy of each material notice or other communication
hereunder shall be given concurrently to the Intercreditor Agent by the Person
providing such notice or other communication in the manner set forth in the
Common Agreement. The Noteholder Depositary Bank shall concurrently provide a
copy of all statements, confirmations and other correspondence required to be
provided by it pursuant to Section 3.5 hereof to the Intercreditor Agent in the
manner set forth in the Common Agreement.
SECTION 8.6. Successors and Assigns. Whenever in this Agreement any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included and all covenants, promises and
agreements in this Agreement by or on behalf of the respective parties hereto
shall bind and inure to the benefit of the respective successors and assigns of
such parties, whether so expressed or not.
SECTION 8.7. Counterparts. This Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but
all counterparts together constituting only one instrument.
SECTION 8.8. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Each of the parties hereto hereby (i) expressly and
irrevocably submits and consents to the jurisdiction of any State or Federal
court located in the Borough of Manhattan, and any appellate court having
jurisdiction over appeals from any of such courts, in any action to resolve any
controversy or claim arising out of this Agreement, (ii) agrees that all claims
in such action may be decided in any such court, (iii) waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum (iv)
irrevocably and unconditionally waives, to the fullest extent it may effectively
do so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any such court, (v) to the extent the Issuer has or hereafter may acquire any
immunity
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(sovereignty or otherwise) from any legal action, suit or proceeding, from
jurisdiction of any court or from set off or any legal process (whether service
or notice, attachment in aid or otherwise) with respect to itself or any of its
property, the Issuer irrevocably waives and agrees not to plead or claim such
immunity in respect of its Obligations under this Agreement, and (vi) consents
to the service of process by registered or certified mail (or any substantially
similar form of mail), postage prepaid and return receipt requested, or by
personal service within or without the State of New York, at the address for
notices referred to in Section 8.5. A final judgment in any such action shall be
conclusive and may be enforced in other jurisdictions. Furthermore, each party
hereby submits to the competent courts of its corporate domicile in any action
or proceeding against it in connection with this Agreement. Nothing herein shall
affect the right of any party to bring legal action or proceedings in any other
competent jurisdiction.
(c) The Issuer hereby irrevocably appoints CT Corporation System
(the "Process Agent"), with an office on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on its behalf and on behalf of
its properties, service of process that may be served in any such action.
Service upon the Process Agent shall be deemed to be personal service on the
Issuer and shall be legal and binding upon the Issuer for all purposes
notwithstanding any failure to mail copies of such legal process to the Issuer,
or any failure on the part of the Issuer to receive the same. The Issuer agrees
that it shall at all times continuously maintain an agent to receive service of
process in the State of New York on behalf of itself and its properties, and, in
the event that for any reason the Process Agent shall not serve as agent for the
Issuer to receive service of process in the State of New York on its behalf, the
Issuer shall promptly appoint a successor satisfactory to the Note Trustee so to
serve, advise the Note Trustee thereof, and deliver to the Note Trustee evidence
in writing of the successor agent's acceptance of such appointment. Nothing
herein shall affect the right of any party to effect service of process in any
other manner permitted by applicable Law.
(d) To the extent the Issuer may, in any action or proceeding
arising out of or relating to this Agreement brought in Mexico or elsewhere, be
entitled under applicable Law to require or claim that any party post security
for costs or take similar action, the Issuer hereby irrevocably waives and
agrees not to claim the benefit of such entitlement.
SECTION 8.9. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY NOTE DOCUMENT OR
ANY LOAN DOCUMENT, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR
THEREUNDER.
SECTION 8.10. No Impairments of Other Rights. Nothing in this
Agreement is intended or shall be construed to impair, diminish or otherwise
adversely affect any other rights the Note Trustee may have or may obtain
against the Issuer.
SECTION 8.11. Amendment; Waiver. No amendment or waiver of any
provision of this Agreement shall be effective unless the same shall be in
writing and effected in accordance with the provisions of the Intercreditor
Agreement and Section 11.01 of the Common Agreement and signed by the parties
hereto and any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No delay on the part
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of the Note Trustee in the exercise of any right, power or remedy shall operate
as a waiver thereof, nor shall any single or partial waiver by the Note Trustee
of any right, power or remedy preclude any further exercise thereof, or the
exercise of any other right, power or remedy. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.12. Incumbency Certificates; Authorized Persons; Reliance
on Certificates.
(a) The Issuer shall furnish to the Noteholder Depositary Bank and
the Note Trustee on or prior to the Closing Date and from time to time
thereafter as may be reasonably requested by the Noteholder Depositary Bank or
the Note Trustee duly executed incumbency certificates showing the names, titles
and specimen signatures of the persons authorized on behalf of such party to
take the actions and give the certificates, notifications, approvals and payment
instructions required by this Agreement.
(b) The Noteholder Depositary Bank and the Note Trustee shall be
entitled to rely conclusively upon the certificates delivered from time to time
by Representatives of the Issuer as to the names, incumbency, authority and
signatures of the respective persons named therein until such time as the
Noteholder Depositary Bank and the Note Trustee shall have received a
replacement certificate, in form acceptable to the Noteholder Depositary Bank
and the Note Trustee, from a Representative of the Issuer identified to the
Noteholder Depositary Bank and the Note Trustee as having authority to deliver
such certificate, setting forth the names and true signatures of the officers
and other representatives of such Person thereafter authorized to act on behalf
of the Issuer.
SECTION 8.13. Headings. The headings of the various articles,
sections and paragraphs of this Agreement are for convenience of reference only,
do not constitute a part hereof and shall not affect the meaning or construction
of any provision hereof.
SECTION 8.14. Entire Agreement. This Agreement, including the
documents referred to herein, embodies the entire agreement and understanding of
the parties hereto and supersedes all prior agreements and understandings of the
parties hereto relating to the subject matter herein contained.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers, all as of the date first
above written.
CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V.,
as Issuer
By:_____________________________________
Name:
Title:
CITIBANK, N.A.,
as Noteholder Depositary Bank
By:_____________________________________
Name:
Title:
Address for Notices:
CITIBANK, N.A.,
as Note Trustee
By:_____________________________________
Name:
Title: