DATED AS OF SEPTEMBER 12, 2024 CIBANCO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, IN ITS CAPACITY AS TRUSTEE (FIDUCIARIO) UNDER THE FIRST AMENDED AND RESTATED IRREVOCABLE ISSUING, ADMINISTRATION AND PAYMENT TRUST AGREEMENT NO. CIB/4323

DATED AS OF SEPTEMBER 12, 2024

 

CIBANCO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, IN ITS CAPACITY AS TRUSTEE

(FIDUCIARIO) UNDER THE FIRST AMENDED AND RESTATED IRREVOCABLE

ISSUING, ADMINISTRATION AND PAYMENT TRUST AGREEMENT NO. CIB/4323

(CONTRATO DE FIDEICOMISO IRREVOCABLE DE EMISIÓN, ADMINISTRATIÓN Y PAGO

NO. CIB/4323),

AS THE ISSUER TRUST,

 

OPERADORA HOTELERA G.I., S.A. DE C.V., AS OPERATOR GUARANTOR,

 

CIBANCO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, IN ITS CAPACITY AS TRUSTEE

(FIDUCIARIO) UNDER THE IRREVOCABLE MANAGEMENT TRUST AGREEMENT NO.

CIB/3224 (CONTRATO DE FIDEICOMISO IRREVOCABLE DE ADMINISTRACIÓN NO.

CIB/3224) AND CIBANCO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, IN ITS

CAPACITY AS TRUSTEE (FIDUCIARIO) UNDER THE IRREVOCABLE MANAGEMENT

TRUST AGREEMENT NO. CIB/3001 (CONTRATO DE FIDEICOMISO IRREVOCABLE DE

ADMINISTRACIÓN NO. CIB/3001), AS SUBSIDIARY GUARANTORS,

▇▇▇▇▇▇ PV, S.A. DE C.V., AS PARENT GUARANTOR,

 

THE BANK OF NEW YORK MELLON,

AS INDENTURE TRUSTEE, OFFSHORE COLLATERAL AGENT, PAYING AGENT,

TRANSFER AGENT AND REGISTRAR,

 

AND

 

BANCO ACTINVER, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, GRUPO FINANCIERO

ACTINVER,

AS ONSHORE COLLATERAL AGENT

 

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INDENTURE

 

11.000% SENIOR SECURED NOTES DUE 2031

 

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TABLE OF CONTENTS

 

EXHIBITS

SCHEDULES

INDENTURE dated as of September 12, 2024 among CIBANCO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, in its capacity as trustee (fiduciario) under the First Amended and Restated Irrevocable Issuing, Administration and Payment Trust Agreement No. CIB/4323 (Contrato de Fideicomiso Irrevocable de Emisión, Administración y Pago No. CIB/4323) (the “Issuer Trust”), OPERADORA HOTELERA G.I., S.A. DE C.V., as Operator Guarantor, CIBANCO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, in its capacity as trustee (fiduciario) under the Irrevocable Management Trust Agreement No. CIB/3224 (Contrato de Fideicomiso Irrevocable de Administración No. CIB/3224) and CIBANCO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, in its capacity as trustee (fiduciario) under the Irrevocable Management Trust Agreement No. CIB/3001 (Contrato de Fideicomiso Irrevocable de Administración No. CIB/3001), as Subsidiary Guarantors, MURANO PV, S.A. DE C.V., as Murano Parent Guarantor, THE BANK OF NEW YORK MELLON, as Indenture Trustee, Offshore Collateral Agent, Paying Agent, Transfer Agent and Registrar, and BANCO ACTINVER, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, GRUPO FINANCIERO ACTINVER, as Onshore Collateral Agent, acting exclusively on behalf and for the benefit of the Holders pursuant to Section 12.01 of this Indenture.

 

The Issuer Trust, the Initial Guarantors and the Indenture Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of the Issuer Trust’s 11.000% Senior Secured Notes due 2031 issued on the date hereof and the Holders of any Additional Notes (as defined herein):

 

ARTICLE 1

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)          in the case of a trust, beneficiary rights;

 

(b)          in the case of a corporation or a Mexican sociedad anónima, corporate stock;

 

(c)          in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(d)         in the case of a partnership, limited liability company or Mexican sociedad limitada, partnership interests (whether general or limited), shares or membership interests; and

 

(e)       any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

 

 

(a)          U.S. dollars;

 

(b)        securities issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality of the United States (provided that the full faith and credit of the United States is pledged in support thereof), having maturities of not more than one year from the date of acquisition;

 

(c)        marketable general obligations issued by any state of the United States or any political subdivision or any such state or any public instrumentality thereof maturing within one year from the date of acquisition and, at the time of acquisition, having a credit rating of at least “A” or the equivalent thereof by the Rating Agencies;

 

(d)       certificates of deposit, time deposits, Eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of not more than one year from the date of acquisition thereof issued by any commercial bank the long-term debt of which is rated at the time of acquisition thereof at least “A” or the equivalent thereof by the Rating Agencies, and having combined capital and surplus in excess of US$500 million;

 

(e)          repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b), (c) and (d) above entered into with any bank meeting the qualifications specified in clause (d) above or identified in clause (d) above;

 

(f)          commercial paper having a rating at the time of acquisition thereof at least “A-2” or the equivalent thereof by S&P and “P-2” or the equivalent thereof by ▇▇▇▇▇’▇, and in any case maturing within one year after the date of acquisition thereof; and

 

(g)        interests in any investment company or money market fund that has a rating of AAA by S&P and Aaa by ▇▇▇▇▇’▇ which invests 95% or more of its assets in instruments of the type specified in clauses (a) through (f) above.

 

Cash Equivalents may include, without limitation, those investments issued by or made with the Offshore Depositary Bank or for which the Offshore Depositary Bank or an Affiliate of the Offshore Depositary Bank serves as offeror or provides services and receives compensation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)          all cash flows generated or received by the Properties, including guest revenues, lease and sublease revenues and all insurance proceeds relating to the insurance policies of the Properties;

 

(b)        first beneficiary rights granted to the Onshore Collateral Agent with respect to the Issuer Trust, including revenues and accounts receivable transferred by the settlors to the Issuer Trust and all Accounts (including the Debt Service Reserve Account) and funds deposited therein or credited thereto;

 

(c)        first beneficiary rights granted to the Issuer Trustee with respect to the Murano 3224 Trust and the Murano 2000 Trust; provided that, in respect of the Murano 2000 Trust, the first beneficiary rights are granted solely in respect of Lot 1;

 

(d)        all of the Operator Guarantor’s rights under the Material Contracts, including the Hotel Management Agreement, the GIC I Lease Agreement and the Beach Club Lease Agreement;

 

(e)          all of the Murano 2000 Trust’s rights under the GIC I Lease Agreement;

 

(f)          all of the equity of the Operator Guarantor granted by the shareholders thereof;

 

(g)        all of the Operator Guarantor’s and the Murano 2000 Trust’s assets, including any and all existing and future assets of such Guarantor, movable assets and rights; permits and governmental authorizations, to the extent permitted under applicable law, and intellectual property related to the operation of the Properties not previously included in the Collateral;

 

(h)          a mortgage (hipoteca) granted by the Murano 2000 Trust over Lot 1; and

 

(i)          a mortgage (hipoteca) granted by the Murano 3224 Trust over Lot 2.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)          net after-tax gains or losses from asset sale transactions or abandonments or reserves relating thereto;

 

(b)          net after-tax items classified as extraordinary gains or losses;

 

(c)          the net income (but not loss) of any Person, other than such Person and any Subsidiary of such Person;

 

(d)       the net income (but not loss) of any Subsidiary of such Person to the extent that a corresponding amount could not be distributed to such Person at the date of determination as a result of any restriction pursuant to the constituent documents of such Subsidiary or any law, regulation, agreement or judgment applicable to any such distribution;

 

(e)          any increase (but not decrease) in net income attributable to minority interests in any Subsidiary of such Person;

 

(f)          any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of net profit accrued at any time following the Closing Date;

 

(g)          any gain (or loss) from foreign exchange translation or change in net monetary position; and

 

(h)          the cumulative effect of changes in accounting principles.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)        until repayment in full thereof with the proceeds of the Notes, the Indebtedness incurred under the Existing Debt Facilities Subject to Repayment;

 

(b)         the Existing Indebtedness;

 

(c)          Indebtedness incurred or created under this Indenture, including the Notes and the Note Guarantees;

 

(d)          amounts payable (including trade payables) under the Material Contracts (to the extent the same constitutes Indebtedness);

 

(e)          Permitted Refinancing Indebtedness;

 

(f)         Indebtedness of the Issuer Trust; provided, that such Indebtedness pursuant to this clause (f) may only be incurred if each of the following conditions is satisfied at the time of incurrence: (1) no Default or Event of Default shall exist and be continuing and no Rapid Amortization Event shall have occurred and be continuing, (2) (x) the Debt Service Reserve Account is supported or funded in an aggregate amount at least equal to the DSRA Reserve Requirement and (y) the Contingency Reserve Accounts are funded in an aggregate amount at least equal to the Contingency Reserve Requirement, (3) after giving pro forma effect to the incurrence of such Indebtedness, each of the Rating Agencies shall have affirmed the rating of the Notes is at least BBB- (in the case of S&P) and Baa3 (in the case of ▇▇▇▇▇’▇), (4) after giving pro forma effect to the incurrence of such Indebtedness and the use of proceeds, the Debt Service Coverage Ratio of the Issuer Trust on a consolidated basis shall (A) for the trailing four-quarter period for which financials are available be at least 1.5 to 1.0 and (B) for the projected remaining period until the Targeted Maturity Date be at least 1.5 to 1.0, and (5) (x) any assets securing such Indebtedness shall be subject to no Liens other than Liens in favor of the Secured Parties, (y) there shall be no other first place beneficiary of the Issuer Trust other than the Onshore Collateral Agent, and (z) if such asset is a hotel, such hotel shall be in operation and generating revenues, in each case of (1), (2), (3), (4) and (5) as evidenced by an Officer’s Certificate confirming the same and delivered to the Indenture Trustee on or immediately prior to the incurrence of such Indebtedness;

 

(g)         Indebtedness of the Murano Parent Guarantor incurred for the purpose of financing the development of real estate development projects owned by any Subsidiary thereof;

 

(h)         Indebtedness secured by a Permitted Lien granted by the Murano Parent Guarantor pursuant to clause (ix) of the definition of “Permitted Liens,” provided, that there is no recourse to the Murano Parent Guarantor or any other assets thereof (other than the equity, revenues or cash flows subject to such Lien); and

 

(i)          Indebtedness described in clause (x) of the definition thereof; provided, that there is no recourse to the Murano 2000 Trust or the Collateral;

 

 

 

 

(a)          Investments permitted under the Security and Account Control Agreement and the Issuer Trust Agreement;

 

(b)          Investments in cash, Cash Equivalents or U.S. dollar-denominated Government Securities;

 

(c)          Investments to the extent required by, and in accordance with, the terms of the Material Contracts;

 

(d)        promissory notes and other non-cash consideration received in connection with dispositions of assets not prohibited by the Financing Documents;

 

(e)         Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;

 

(f)      Investments constituting pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations; and

 

(g)        Investments constituting deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

 

 

 

(a)          Liens created under or pursuant to any of the Financing Documents;

 

(b)        Liens, deposits or pledges incurred or created in the ordinary course of business or under applicable Governmental Rules in connection with or to secure the performance of bids, tenders, contracts, leases, statutory obligations, surety bonds or appeal bonds;

 

(c)        mechanics’, materialmen’s, workers’, repairmen’s, employees’, warehousemen’s, carriers’ or other like Liens arising in the ordinary course of business or under Governmental Rules securing obligations incurred in connection with the Properties which are not yet due, or which are adequately bonded and which are being contested in accordance with the Permitted Contest Conditions;

 

(d)        Liens for taxes, assessments or governmental charges or other Liens arising by operation of law that are secured by a bond reasonably acceptable to the Indenture Trustee or which are not yet due or which are being contested in accordance with the Permitted Contest Conditions;

 

(e)          Liens arising out of judgments or awards that are fully covered by insurance or with respect to which an appeal or proceeding for review is being prosecuted pursuant to the Permitted Contest Conditions;

 

 

(f)          until prepayment in full, release and termination thereof from the proceeds of the Notes, ▇▇▇▇▇ created in connection with the Existing Debt Facilities Subject to Repayment;

 

(g)         solely with respect to the Murano Parent Guarantor, Liens securing Existing Indebtedness existing on the Closing Date other than the Liens described in clause (f) above;

 

(h)          solely with respect to the Murano Parent Guarantor, Liens securing Permitted Refinancing Indebtedness;

 

(i)          solely with respect to the Murano Parent Guarantor, Liens on equity of the Murano Parent Guarantor’s subsidiaries (other than the Issuer Trust or any other Property Obligor) and Liens on revenues or cash flows of the Murano Parent Guarantor (including any amounts received by the Murano Parent Guarantor as Restricted Payments upon the satisfaction of the Restricted Payment Conditions); and

 

(j)         solely with respect to the Murano 2000 Trust, mortgages on Lot 4 and/or Lot 5 or Liens on the furniture, fixtures and equipment of the Murano 2000 Trust exclusively related to Lot 4 and/or Lot 5.

 

provided, that with respect to the Issuer Trust, only ▇▇▇▇▇ referred to in clause (a), (d) and (e) of this definition shall constitute Permitted Liens.

 

 

(1)          the aggregate principal amount (or accreted value, if applicable, or if issued with original issue discount, aggregate issue price) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable, or if issued with original issue discount, aggregate issue price) of the Indebtedness renewed, refunded, refinanced, replaced, exchanged, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith);

 

(2)          such Permitted Refinancing Indebtedness has (a) a final maturity date that is either (i) no earlier than the final maturity date of the Indebtedness being renewed, refunded, refinanced, replaced, exchanged, defeased or discharged or (ii) after the final maturity date of the Notes and (b) has a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged;

 

(3)        if the Indebtedness being renewed, refunded, refinanced, replaced, exchanged, defeased or discharged is expressly, contractually subordinated in right of payment to the Notes or the Note Guarantee, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantee, as the case may be, on terms at least as favorable to the holders of Notes as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, exchanged, defeased or discharged;

 

(4)         if the Murano Parent Guarantor was the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged, such Indebtedness is incurred the Murano Parent Guarantor;

 

(5)       if the Indebtedness being renewed, refunded, refinanced, replaced, exchanged, defeased or discharged is unsecured, such Permitted Refinancing Indebtedness must be unsecured; and

 

(6)       if the Indebtedness being renewed, refunded, refinanced, replaced, exchanged, defeased or discharged is secured, such Permitted Refinancing Indebtedness must be secured by substantially the same assets (and in no case may be secured by any assets securing the Notes).

 

Permitted Refinancing Indebtedness in respect of any Indebtedness may be incurred from time to time after the termination, discharge or repayment of any such Indebtedness.

 

 

 

 

 

 

 

 

 

 

 

 

(a)          the failure of the Issuer Trust to maintain a Debt Service Coverage Ratio of at least 1.0:1.0 as of any Calculation Date;

 

(b)          termination of the Hotel Management Agreement, without execution of a Replacement Material Contract within six months of such termination;

 

(c)          the occurrence of an Event of Default; or

 

(d)          the occurrence of a Targeted Maturity Failure.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)        the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

 

 

(b)          the then outstanding principal amounts of such Indebtedness.

 

 

 

(a)          a term has the meaning assigned to it;

 

(b)          an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS;

 

(c)          “or” is not exclusive;

 

(d)          words in the singular include the plural, and in the plural include the singular;

 

(e)          provisions apply to successive events and transactions;

 

(f)       references to sections of or rules under the Securities Act or the Exchange Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time;

 

(g)        all references to the principal, premium, including Principal Premium, interest or any other amount payable pursuant to this Indenture or the Notes shall be deemed also to refer to any Additional Amounts which may be payable hereunder in respect of payments of principal, premium, including Principal Premium, interest and any other amounts payable pursuant to this Indenture or the Notes or any undertakings given in addition thereto or in substitution therefor pursuant to this Indenture or the Notes and express reference to the payment of Additional Amounts in any provisions hereof or in the Notes shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made;

 

(h)         prior to the occurrence and continuance of an Event of Default hereunder, if an action hereunder is permitted or required to be taken by the Issuer Trust and this Indenture does not otherwise specify a Person to take action on behalf of the Issuer Trust, the Operator Guarantor shall be empowered to take action on behalf of the Issuer Trust in the absence of documentation evidencing such Operator Guarantor is not empowered to take such action;

 

(i)          unsecured or unguaranteed Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness or guaranteed Indebtedness merely by virtue of its nature as unsecured or unguaranteed Indebtedness;

 

(j)        for all purposes under this Indenture, references to “principal amount” of the Notes includes any increase in the principal amount thereof (including PIK Notes) as a result of the payment of PIK Interest; and

 

(k)         unless otherwise provided in this Indenture or in any Note, the words “execute,” “execution,” “signed” and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any document to be delivered hereunder or thereunder or the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent permitted by, and as provided for in, any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything herein to the contrary, the Indenture Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Indenture Trustee pursuant to procedures approved by the Indenture Trustee. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party delivered in accordance with this Section 1.03(k) and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof.

 

ARTICLE 2

 

THE NOTES

 

 

(b)        Global Notes. Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Increases and Decreases in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions and purchases and cancellations. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Indenture Trustee or the Depositary or the Custodian at the direction of the Indenture Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.

 

(c)         Rule 144A Global Notes and Regulation S Global Notes. The Notes sold within the United States to QIBs pursuant to Rule 144A under the Securities Act shall be issued initially in the form of a Rule 144A Global Note. The Notes offered and sold in reliance on Regulation S shall be issued initially in the form of a Regulation S Global Note. The Global Notes shall be deposited with the Custodian, and registered in the name of DTC or its nominee, duly executed by the Issuer Trust and authenticated by the Indenture Trustee or the Authenticating Agent as hereinafter provided.

 

(d)         Certificated Notes. Certificated Notes issued upon transfer of a Book-Entry Interest or a Certificated Note, or in exchange for a Book-Entry Interest or a Certificated Note, shall be issued in accordance with this Indenture.

 

(e)         Book-Entry Provisions. The Applicable Procedures shall be applicable to Book-Entry Interests in the Global Notes that are held by Participants through DTC.

 

(f)          Denomination. The Notes shall be issued only in minimum denominations of US$200,000 and integral multiples of US$1,000 in excess thereof.

 

Section 2.02.       Execution and Authentication. At least one Authorized Officer must sign the Notes for the Issuer Trust by manual, facsimile or electronic signature.

 

If an Authorized Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.

 

A Note will not be valid until authenticated by the manual, facsimile or electronic signature of the authorized signatory of the Indenture Trustee or the Authenticating Agent. The signature will be conclusive evidence that the Note has been authenticated under this Indenture. Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Issuer Trust, the Issuer Trust shall deliver such Note to the Indenture Trustee for cancellation pursuant to Section 2.11 hereof.

 

The Indenture Trustee shall, upon receipt of a written order of the Issuer Trust signed by an Authorized Officer (an “Authentication Order”), authenticate or cause the Authenticating Agent to authenticate the Notes for original issue that may be validly issued under this Indenture, including any Additional Notes and PIK Notes (or increase in the principal amount of any Global Note as a result of a PIK Payment) in an aggregate principal amount to be determined at the time of issuance and specified therein for such PIK Notes (or increases in the principal amount of any Global Notes in connection with a PIK Payment). The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Issuer Trust pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.

 

The Indenture Trustee may appoint one or more authentication agents (each, an “Authenticating Agent”) acceptable to the Issuer Trust to authenticate Notes. Such an agent may authenticate Notes whenever the Indenture Trustee may do so. Each reference in this Indenture to authentication by the Indenture Trustee includes authentication by such agent. An Authenticating Agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer Trust.

 

Section 2.03.       Paying Agent, Registrar and Transfer Agent. The Issuer Trust shall maintain one or more Paying Agents for the Notes. The initial Paying Agent will be The Bank of New York Mellon and The Bank of New York Mellon hereby accepts such appointment.

 

The Issuer Trust shall also maintain a registrar (the “Registrar”) and a transfer agent (the “Transfer Agent”) for the Notes. The Issuer Trust hereby appoints The Bank of New York Mellon as the initial Registrar and The Bank of New York Mellon hereby accepts such appointment. The Issuer Trust hereby appoints The Bank of New York Mellon as the initial Transfer Agent and The Bank of New York Mellon hereby accepts such appointment. The Registrar shall maintain a register (the “Register”) for the Notes reflecting ownership of the Certificated Notes outstanding from time to time and shall make payments on and facilitate transfers of Certificated Notes on behalf of the Issuer Trust. The Transfer Agent shall perform the functions of a transfer agent.

 

The Registrar shall send, on request, a copy of the Register to the Issuer Trust after any change to the Register made by the Registrar, with such copy to be held by the Issuer Trust at its registered office.

 

The Issuer Trust may appoint other Paying Agents, registrars or transfer agents instead of, or in addition to, the Paying Agent, the Registrar or the Transfer Agent, respectively, initially appointed hereunder without prior notice to the Holders.

 

Section 2.04.    Paying Agent to Hold Money. The Issuer Trust shall require each Paying Agent (other than the Indenture Trustee in circumstances in which it is required to act as Paying Agent) to agree in writing that each Paying Agent will hold for the benefit of Holders or the Indenture Trustee all money held by the Paying Agent for the payment of principal of, premium, including Principal Premium, or Additional Amounts, if any, or interest on, the Notes, and shall notify the Indenture Trustee of any default by the Issuer Trust in making any such payment. While any such default continues, the Indenture Trustee may require a Paying Agent to pay all money held by it to the Indenture Trustee. The Issuer Trust at any time may require a Paying Agent to pay all money held by it to the Indenture Trustee. Upon payment over to the Indenture Trustee, the Paying Agent (if other than the Issuer Trust) will have no further liability for the money. If the Issuer Trust acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent and in no event shall any Paying Agent be liable for interest on any money received by it hereunder. Upon any insolvency, bankruptcy or reorganization proceedings relating to the Issuer Trust (including, without limitation, its bankruptcy, voluntary or judicial liquidation, composition with creditors, reprieve from payment, controlled management, fraudulent conveyance, general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally), the Indenture Trustee may serve as Paying Agent for the Notes. A Paying Agent shall not be obliged to pay the Holders (or make any other payment) unless and until such time as it has confirmed receipt of funds sufficient to make the relevant payment.

 

Section 2.05.       Holder Lists. The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Indenture Trustee or the Paying Agent is not the Registrar, the Issuer Trust shall furnish or cause the Registrar to furnish, to the Indenture Trustee and each Paying Agent at least seven Business Days before each Payment Date and at such other times as the Indenture Trustee or the Paying Agent may request in writing, a list of the names and addresses of the Holders in such form and as of such date as the Indenture Trustee or the Paying Agent may reasonably require.

 

Section 2.06.       Transfer and Exchange. (a) Transfer and Exchange of Global Notes. The Global Notes may not be transferred except as a whole to any Person other than to another Depositary, another Custodian or nominee of the Depositary or to a successor clearing agency or its depositary or common depositary or custodian or nominee approved by the Issuer Trust, the Guarantors and the Indenture Trustee. Global Notes may be exchanged by the Issuer Trust for Certificated Notes only:

 

(i)          if DTC notifies the Issuer Trust that it is unwilling or unable to continue to act as Depositary for the Global Notes and a successor ▇▇▇▇▇▇▇▇▇▇ is not appointed by the Issuer Trust within 90 days of such notice;

 

(ii)       if DTC ceases to be registered as a “clearing agency” under the Exchange Act and a successor Depositary is not appointed by the Issuer Trust within 90 days;

 

(iii)        the Issuer Trust, at its option, notifies the Indenture Trustee that it elects to cause the issuance of Certificated Notes; or

 

(iv)         in whole, but not in part, if the Issuer Trust or DTC so requests following an Event of Default under this Indenture.

 

Upon the occurrence of any of the preceding events, the Issuer Trust shall issue or cause to be issued Certificated Notes in such names as DTC shall instruct the Indenture Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Section 2.07 and 2.10 hereof. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a). Book-Entry Interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or Section 2.06(b)(ii)(B)(1) hereof.

 

(b)         General Provisions Applicable to Transfer and Exchange of Book-Entry Interests in the Global Notes. The transfer and exchange of Book-Entry Interests shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Transfers of Book-Entry Interests shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers and exchanges of Book-Entry Interests for Book-Entry Interests also shall require compliance with either Section 2.06(b)(i) or (ii) hereof, as applicable, as well as Section 2.06(b)(iii) hereof, if applicable:

 

(i)       Transfer of Book-Entry Interests in the Same Global Note. Book-Entry Interests in a Global Note may be transferred to Persons who take delivery thereof in the form of a Book-Entry Interest in the same Global Note in accordance with the transfer restrictions set forth in the applicable Private Placement Legend.

 

(ii)         All Other Transfers and Exchanges of Book-Entry Interests in Global Notes. A holder of a Book-Entry Interest in Global Notes may transfer or exchange such Book-Entry Interest in a transaction only if the Indenture Trustee and the Registrar or the relevant Transfer Agent (copied to the Indenture Trustee) receives either:

 

(A)         both:

 

(1)        a written order from a Participant or an Indirect Participant given in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a Book-Entry Interest in another Global Note in an amount equal to the Book-Entry Interest to be transferred or exchanged; and

 

(2)        instructions given in accordance with the Applicable Procedures containing information regarding the Participant’s account to be credited with such increase; or

 

(B)         both:

(1)         a written order from a Participant or an Indirect Participant given in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Certificated Note in an amount equal to the Book-Entry Interest to be transferred or exchanged; and

 

(2)        instructions given by the Depositary to the Registrar containing information specifying the identity of the Person in whose name such Certificated Note shall be registered to effect the transfer or exchange referred to in Section 2.06(b)(i) hereof, the principal amount of such securities and the CUSIP number, ISIN or other similar number identifying the Notes.

 

(iii)       Transfer of Book-Entry Interests to Another Global Note. A Book-Entry Interest in any Global Note may be transferred to a Person who takes delivery thereof in the form of a Book-Entry Interest in another Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) hereof and the Indenture Trustee and the Registrar receive the following:

 

(A)          if the transferee will take delivery in the form of a Book-Entry Interest in a Rule 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and

 

(B)         if the transferee will take delivery in the form of a Book-Entry Interest in a Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) and/or item (3) thereof.

 

(c)        Transfer or Exchange of Book-Entry Interests in Global Notes for Certificated Notes. If any holder of a Book-Entry Interest in a Global Note proposes to exchange such Book-Entry Interest for a Certificated Note or to transfer such Book-Entry Interest to a Person who takes delivery thereof in the form of a Certificated Note, then, upon receipt by the Indenture Trustee and the Registrar of the following documentation:

 

(i)          in the case of a transfer on or before the expiration of the Restricted Period by a holder of a Book-Entry Interest in a Regulation S Global Note, the Indenture Trustee shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in either item (1) or item (2) thereof;

 

(ii)        in the case of an exchange by a holder of a Book-Entry Interest in a Global Note of such Book-Entry Interest for a Certificated Note, the Indenture Trustee shall have received a certificate from such holder in the form of Exhibit C hereto, including the certifications in items (1) thereof;

 

(iii)      in the case of a transfer after the expiration of the Restricted Period by a holder of a Book-Entry Interest in a Regulation S Global Note, the transfer complies with Section 2.06(b) hereof;

 

(iv)        in the case of a transfer by a holder of a Book-Entry Interest in a Rule 144A Global Note to a QIB in reliance on Rule 144A, the Indenture Trustee shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(v)          in the case of a transfer by a holder of a Book-Entry Interest in a Rule 144A Global Note in reliance on Regulation S, the Indenture Trustee shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof; or

 

(vi)        in the case of a transfer by a holder of a Book-Entry Interest in a Rule 144A Global Note in reliance on Rule 144, the Indenture Trustee shall have received a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3) thereof, the Indenture Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to (g) hereof, and the Issuer Trust shall execute and, upon its receipt of an Authentication Order, the Indenture Trustee or the Authenticating Agent shall authenticate and deliver to the Person designated in the instructions a Certificated Note in the appropriate principal amount. Any Certificated Note issued in exchange for a Book-Entry Interest in a Global Note pursuant to this (c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such Book-Entry Interest shall instruct the applicable Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Registrar shall deliver such Certificated Notes to the Persons in whose names such Notes are so registered. Any Certificated Note issued in exchange for a Book-Entry Interest in a Global Note pursuant to this (c) shall bear the applicable Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

(d)         Transfer and Exchange of Certificated Notes for Book-Entry Interests in the Global Notes. If any Holder of a Certificated Note proposes to exchange such Certificated Note for a Book-Entry Interest in a Global Note or to transfer such Certificated Note to a Person who takes delivery thereof in the form of a Book-Entry Interest in a Global Note, then, upon receipt by the Indenture Trustee, the relevant Transfer Agent and the Registrar of the following documentation:

 

(i)          if the Holder of such Certificated Note proposes to exchange such Note for a Book-Entry Interest in a Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2) thereof;

 

(ii)        if such Certificated Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

 

(iii)       if such Certificated Note is being transferred in reliance on Regulation S or Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) or (3) thereof, as applicable; and

 

(iv)        if such Certificated Note is being transferred to the Issuer Trust or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3) thereof, the Indenture Trustee, or at the direction of the Indenture Trustee, the Registrar or the Paying Agent (other than the Issuer Trust) and no one else will cancel the Certificated Note, and the Indenture Trustee will increase or cause to be increased the aggregate principal amount of the appropriate Global Note.

 

(e)         Transfer and Exchange of Certificated Notes for Certificated Notes. Upon written request by a Holder of Certificated Notes and such Holder’s compliance with this Section 2.06(e), the Transfer Agent or the Registrar shall register the transfer or exchange of Certificated Notes of which registration the Issuer Trust will be informed of by the Transfer Agent or the Registrar (as the case may be). Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Transfer Agent or the Registrar the Certificated Notes duly endorsed and accompanied by a written instruction of transfer in a form satisfactory to the Transfer Agent or the Registrar duly executed by such Holder or its attorney, duly authorized to execute the same in writing. In the event that the Holder of such Certificated Notes does not transfer the entire principal amount of Notes represented by any such Certificated Note, the Transfer Agent or the Registrar shall cancel or cause to be canceled such Certificated Note and the Issuer Trust (who has been informed of such cancellation) shall execute and, upon its receipt of an Authentication Order, the Indenture Trustee or the Authenticating Agent shall authenticate and deliver to the requesting Holder and any transferee Certificated Notes in the appropriate principal amounts. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

 

Any Certificated Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Certificated Note if the Registrar receives the following:

 

(i)          if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and

 

(ii)        if the transfer will be made in reliance on Regulation S, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.

 

(f)          Legends. The following legends shall appear on the face of all Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture (or unless otherwise determined by the Operator Guarantor (on behalf of the Issuer Trust) and the Indenture Trustee to not be required by law or otherwise, in each case, based on advice of counsel).

 

(i)          Private Placement Legend. Each Global Note and each Certificated Note (and all Notes issued in exchange therefor or in substitution thereof) shall bear the applicable legend in substantially the following form:

 

(A)         For Rule 144A Global Notes and Rule 144A Certificated Notes:

 

“THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF(1) REPRESENTS THAT IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, (A) IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) OR(B) IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 903 OR 904 OF REGULATION S AND, WITH RESPECT TO (A) AND (B), EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO SUCH ACCOUNT, (2) AGREES FOR THE BENEFIT OF THE ISSUER TRUST THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN EXCEPT (A) (I) TO THE ISSUER TRUST OR ANY SUBSIDIARY THEREOF, (II) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (III) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (IV) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION COMPLYING WITH THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.

 

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE 2A(V) ABOVE, THE ISSUER TRUST RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS, OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

THIS LEGEND SHALL ONLY BE REMOVED AT THE OPTION OF THE ISSUER TRUST.

 

AS REQUIRED UNDER ARTICLE 7, SECOND PARAGRAPH, OF THE LMV AND ARTICLES 24 BIS AND 24 BIS 1 OF THE GENERAL PROVISIONS APPLICABLE TO SECURITIES ISSUERS AND OTHER SECURITIES MARKET PARTICIPANTS (DISPOSICIONES DE CARÁCTER GENERAL APLICABLES A LAS EMISORAS DE VALORES Y OTROS PARTICIPANTES DEL ▇▇▇▇▇▇▇ DE VALORES), WE WILL NOTIFY THE CNBV OF THE TERMS AND CONDITIONS OF THIS OFFERING OF THE NOTES OUTSIDE OF MEXICO, FOR STATISTICAL AND INFORMATIONAL PURPOSES ONLY. THE NOTES HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE MEXICAN NATIONAL SECURITIES REGISTRY MAINTAINED BY THE CNBV AND MAY NOT BE OFFERED OR SOLD PUBLICLY IN MEXICO. THE NOTES MAY BE OFFERED IN MEXICO ON A PRIVATE PLACEMENT BASIS, TO INVESTORS THAT QUALIFY AS INSTITUTIONAL INVESTOR OR AN ACCREDITED INVESTOR PURSUANT TO THE PRIVATE PLACEMENT EXEMPTION SET FORTH IN ARTICLE 8 OF THE LMV.”

 

(B)          For Regulation S Global Notes and Regulation S Certificated Notes:

 

“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT, PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S (“REGULATION S”) UNDER THE SECURITIES ACT), NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF THE INDENTURE REFERRED TO HEREIN. THIS LEGEND SHALL ONLY BE REMOVED AT THE OPTION OF THE ISSUER TRUST.

 

AS REQUIRED UNDER ARTICLE 7, SECOND PARAGRAPH, OF THE LMV AND ARTICLES 24 BIS AND 24 BIS 1 OF THE GENERAL PROVISIONS APPLICABLE TO SECURITIES ISSUERS AND OTHER SECURITIES MARKET PARTICIPANTS (DISPOSICIONES DE CARÁCTER GENERAL APLICABLES A LAS EMISORAS DE VALORES Y OTROS PARTICIPANTES DEL ▇▇▇▇▇▇▇ DE VALORES), WE WILL NOTIFY THE CNBV OF THE TERMS AND CONDITIONS OF THIS OFFERING OF THE NOTES OUTSIDE OF MEXICO, FOR STATISTICAL AND INFORMATIONAL PURPOSES ONLY. THE NOTES HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE MEXICAN NATIONAL SECURITIES REGISTRY MAINTAINED BY THE CNBV AND MAY NOT BE OFFERED OR SOLD PUBLICLY IN MEXICO. THE NOTES MAY BE OFFERED IN MEXICO ON A PRIVATE PLACEMENT BASIS, TO INVESTORS THAT QUALIFY AS INSTITUTIONAL INVESTOR OR AN ACCREDITED INVESTOR PURSUANT TO THE PRIVATE PLACEMENT EXEMPTION SET FORTH IN ARTICLE 8 OF THE LMV.”

 

(ii)          Global Note Legend. Each Global Note will bear a legend in substantially the following form:

 

“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. THIS NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THE INDENTURE, AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE. BENEFICIAL INTERESTS IN THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE INDENTURE.”

 

(g)         Cancellation and/or Adjustment of Global Notes. At such time as all Book-Entry Interests in a particular Global Note have been exchanged for Certificated Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Indenture Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any Book-Entry Interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a Book-Entry Interest in another Global Note or for Certificated Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Indenture Trustee or the Custodian, as applicable, at the direction of the Indenture Trustee, to reflect such reduction; and if the Book-Entry Interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a Book-Entry Interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Indenture Trustee or by the Custodian, as applicable, at the direction of the Indenture Trustee to reflect such increase.

 

(h)          General Provisions Relating to Transfers and Exchanges.

 

(i)       To permit registrations of transfers and exchanges, the Issuer Trust shall execute and, upon its receipt of an Authentication Order, the Indenture Trustee or the Authenticating Agent shall authenticate Global Notes and Certificated Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.

 

(ii)          No service charge will be made by the Issuer Trust or the Registrar to a holder of a Book-Entry Interest in a Global Note, a Holder of a Global Note or a Holder of a Certificated Note for any registration of transfer or exchange, but the Issuer Trust and/or the Indenture Trustee may require payment of a sum sufficient to cover any stamp duty, stamp duty reserve, documentary or other similar tax or governmental charge that may be imposed in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06 and 4.13 hereof).

 

(iii)      No Transfer Agent or Registrar will be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

 

(iv)      All Global Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or Certificated Notes will be the valid obligations of the Issuer Trust, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Certificated Notes surrendered upon such registration of transfer or exchange.

 

(v)          Neither the Registrar nor the Issuer Trust shall be required to register the transfer into its register kept at its registered office of any Certificated Notes: (A) for a period of 15 days prior to any date fixed for the redemption of such Certificated Notes under Article 3 hereof; (B) for a period of 15 days immediately prior to the date fixed for selection of such Certificated Notes to be redeemed in part; (C) for a period of 15 days prior to the Record Date with respect to any Payment Date, the Targeted Maturity Date or the Legal Final Maturity Date applicable to such Certificated Notes; or (D) which the Holder has tendered (and not withdrawn) for repurchase in connection with a Rapid Amortization Event Offer, a Casualty/Condemnation Offer or a Change of Control Offer.

 

(vi)        The Indenture Trustee, any Agent, the Issuer Trust and the Guarantors (and each of their respective agents) may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of, interest, premium, including Principal Premium, and Additional Amounts, if any, on such Notes and for all other purposes, and none of the Indenture Trustee, any Agent, the Issuer Trust or any Guarantor (or any of their respective agents) shall be affected by notice to the contrary.

 

(vii)       None of the Indenture Trustee, any Agent or any of their respective agents shall have any responsibility or obligation to any Beneficial Owner of an interest in a Global Note, any Participant, Indirect Participant or other member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or any nominee or participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any Participant, Indirect Participant or other participant, member, Beneficial Owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of Beneficial Owners in any Global Note shall be exercised only through DTC, subject to the Applicable Procedures. The Indenture Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by DTC with respect to its Participants, Indirect Participants and any Beneficial Owners.

 

(viii)     None of the Indenture Trustee, any Agent or any of their respective agents shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or Indirect Participants of DTC or Beneficial Owners of any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Neither the Indenture Trustee nor any of the Agents shall have any responsibility for any actions taken or not taken by DTC.

 

Section 2.07.      Replacement Notes. If any mutilated Note is surrendered to the Registrar, the Indenture Trustee or the Issuer Trust and the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer Trust shall issue and the Indenture Trustee, upon receipt of an Authentication Order, shall authenticate or cause the Authenticating Agent to authenticate a replacement Note if the Indenture Trustee’s requirements are met. If required by the Indenture Trustee or the Issuer Trust, indemnity, security and/or an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Indenture Trustee and the Issuer Trust to protect the Issuer Trust, the Indenture Trustee, any Agent from any loss that any of them may suffer if a Note is replaced. The Issuer Trust may charge the Holder for its expenses in replacing a Note, including reasonable fees and expenses of counsel.

 

Every replacement Note is an additional obligation of the Issuer Trust and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

Section 2.08.    Outstanding Notes. The Notes outstanding at any time are all the Notes authenticated by the Indenture Trustee or the Authenticating Agent except for those canceled by it, those delivered to the Indenture Trustee for cancellation, those reductions in the interest in a Global Note effected in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuer Trust or an Affiliate of the Issuer Trust holds the Note; however, Notes held by the Issuer Trust shall not be deemed to be outstanding for purposes of Section 3.07(b), Section 7.02(j), Section 7.07(d), Article 6 or Article 9 hereof.

 

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Indenture Trustee receives proof from the Issuer Trust satisfactory to it that the replaced Note is held by a protected purchaser.

 

If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.

 

If a Paying Agent (other than the Issuer Trust or an Affiliate of any thereof) holds, on a Redemption Date or maturity date, money sufficient to pay Notes payable on that date and the Indenture Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such amounts will be deemed to be no longer outstanding and will cease to accrue interest.

 

Section 2.09.     Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer Trust or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer Trust or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Indenture Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Indenture Trustee knows are so owned will be so disregarded.

 

Section 2.10.       Temporary Notes. Until certificates representing Notes are ready for delivery, the Issuer Trust may prepare and the Indenture Trustee, upon receipt of an Authentication Order, shall authenticate or cause the Authenticating Agent to authenticate temporary Notes. Temporary Notes will be substantially in the form of Exhibit A but may have variations that the Issuer Trust considers appropriate for temporary Notes to the extent acceptable to the Indenture Trustee. Without unreasonable delay, the Issuer Trust shall prepare and, upon its receipt of an Authentication Order, the Indenture Trustee or the Authenticating Agent shall authenticate definitive Notes in exchange for temporary Notes.

 

Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.

 

Section 2.11.      Cancellation. The Issuer Trust at any time may deliver Notes to the Indenture Trustee for cancellation. The Registrar, each Paying Agent and any Transfer Agent shall forward to the Indenture Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Indenture Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes shall be delivered to the Issuer Trust following a written request from the Issuer Trust. The Issuer Trust may not issue new Notes to replace Notes that it has paid or that have been delivered to the Indenture Trustee for cancellation.

 

Section 2.12.       Defaulted Interest. If the Issuer Trust defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer Trust shall notify the Indenture Trustee as soon as practicable in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuer Trust shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuer Trust (or, upon the written request of the Issuer Trust, the Indenture Trustee in the name and at the expense of the Issuer Trust) shall deliver to the Holders in accordance with Section 13.01 hereof a notice that states the special record date, the related payment date and the amount of such interest to be paid.

 

Section 2.13.       Computation of Interest. Interest on the Notes shall accrue at the rate equal to the sum of (a) 11.000% per annum payable in cash (the “Base Interest”), and (b) from the Closing Date until September 12, 2027, 2.000% per annum payable in kind (the “PIK Interest”) at a total rate of 13.000% by capitalizing such PIK Interest and increasing the principal amount of the outstanding Notes in an amount equal to such PIK Interest or by issuing PIK Notes. In connection with the payment of PIK Interest, the Issuer Trust may, without the consent of the holders (and notwithstanding any restrictions or limitations set forth in Section 4.09, Section 4.12 or Article 9 hereof), increase the outstanding principal amount of the Notes or issue PIK Notes (in each case, a “PIK Payment”). Two (2) Business Days prior to each PIK Payment, the Operator Guarantor (on behalf of the Issuer Trust) shall deliver to the Indenture Trustee a notice substantially in the form of Exhibit E hereto; provided that, failure to give or delay in giving such notice shall not affect the capitalization of such PIK Interest. Following the interest period beginning on March 13, 2027 and ending on September 12, 2027, the Notes will only accrue and bear interest on the outstanding principal amount of the Notes at the Base Interest. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

On any Payment Date on which the Issuer Trust pays PIK Interest with respect to a Global Note, the Indenture Trustee, or the Paying Agent at the direction of the Indenture Trustee, in each case, upon receipt of an Officer’s Certificate setting forth the amount by which such Global Note shall be increased as a result of the payment of such PIK Interest, shall increase the principal amount of such Global Note by an amount equal to the PIK Interest payable, rounded up to the nearest $1.00, for the relevant interest period on the principal amount of such Global Note as of the relevant Record Date for such Payment Date, to the credit of the holders on such Record Date, pro rata to the extent practicable, in accordance with their interests, and an adjustment shall be made on the books and records of the Indenture Trustee with respect to such Global Note to reflect such increase. On any Payment Date on which the Issuer pays PIK Interest by issuing certificated PIK Notes, the principal amount of any such PIK Notes issued to any holder, for the relevant interest period as of the relevant Record Date for such Payment Date, shall be rounded up to the nearest $1.00.

 

Section 2.14.      Further Issues. From time to time, subject to the Issuer Trust’s compliance with Sections 4.09 and 4.12 hereof and without notice to, or the consent of, the Holders, the Issuer Trust will be permitted to issue Additional Notes under this Indenture having substantially similar terms and conditions (except for original issue date, issue price and the first date on which interest is payable) as the Initial Notes. The Initial Notes and any Additional Notes subsequently issued under this Indenture will be treated as a single class for all purposes under this Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase, except as otherwise provided herein; provided that unless such Additional Notes are issued with a separate CUSIP number, ISIN or other identifying number (as applicable), such Additional Notes shall be fungible with the Initial Notes for U.S. federal income tax purposes.

 

Section 2.15.       CUSIP Number or ISIN. The Issuer Trust in issuing the Notes may use “CUSIP” numbers or “ISINs” and, if so, such CUSIP number or ISIN shall be included in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number or ISIN printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or exchange shall not be affected by any defect in or omission of such numbers.

 

The Issuer Trust shall promptly notify the Indenture Trustee of any change in the CUSIP number or ISIN.

 

Section 2.16.       Deposit of Moneys. No later than 10:00 a.m. (New York City time), on the Business Day prior to each Payment Date and on the Business Day immediately preceding any Rapid Amortization Event Payment Date, any Casualty/Condemnation Payment Date or any Change of Control Payment Date as applicable pursuant to Sections 4.13, 4.36 or 4.37 hereof and on the Business Day immediately following any acceleration of the Notes, the Issuer Trust shall deposit with the Paying Agent, in immediately available funds, money in U.S. dollars sufficient to make cash payments, if any, due on such day or date. Subject to actual receipt of such funds as provided by this Section 2.16 by the designated Paying Agent, such Paying Agent shall remit such payment in a timely manner to the Holders of Notes properly tendered and not withdrawn on such day or date, as the case may be, to the Persons and in the manner set forth in paragraph 2 of the Notes. The Issuer Trust shall promptly notify the Indenture Trustee and the Paying Agent of its failure to so act. Additionally, the Issuer Trust will publicly announce the results of the Rapid Amortization Event Offer, Casualty/Condemnation Offer or Change of Control Offer, as the case may be, on or as soon as practicable after the Rapid Amortization Event Payment Date, Casualty/Condemnation Payment Date or Change of Control Payment Date, as applicable.

 

Section 2.17.       Agents. (a) The rights, powers, duties and obligations and actions of each Agent under this Indenture are several and not joint or joint and several.

 

(b)        The Issuer Trust and the Agents acknowledge and agree that in the event of a Default or Event of Default, the Indenture Trustee may, by notice in writing to the Issuer Trust and the Agents, require that the Agents act as agents of, and take instructions exclusively from, the Indenture Trustee.

 

Section 2.18.      Listing. (a) The Issuer Trust intends to apply to list each series of Notes on the Euronext Dublin Market. The listing application will be subject to approval by the Euronext Dublin Market and there is no assurance that the Issuer Trust will obtain or be able to maintain a listing and quotation of the Notes on the Euronext Dublin Market. The Notes will be traded in a minimum board lot size of US$200,000 (or its equivalent in foreign currencies) as long as any of the Notes are listed on the Euronext Dublin Market and the rules of the Euronext Dublin Market so require.

 

ARTICLE 3

 

REDEMPTION AND PREPAYMENT

 

Section 3.01.      Notices to Indenture Trustee. If the Issuer Trust elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must deliver to the Indenture Trustee in accordance with Section 13.01 hereof, at least 10 days but not more than 60 days before a Redemption Date (and, in any case, concurrently with any notice given to Holders pursuant to Section 3.03 hereof), an Officer’s Certificate setting forth:

 

(a)          the clause of this Indenture pursuant to which the redemption shall occur;

 

(b)          the Redemption Date;

 

(c)          the principal amount of Notes to be redeemed;

 

(d)          the redemption price; and

 

(e)          the CUSIP number(s) or ISIN(s) of the Notes, as applicable.

 

Section 3.02.      Selection of Notes to Be Redeemed. If less than all of the Notes are to be redeemed at any time, Notes will be selected for redemption based on the policies and procedures of then applicable procedures of applicable depository (or, in the case of Certificated Notes, the Indenture Trustee (or the Registrar, as applicable) will select Notes for redemption on a pro rata basis), unless otherwise required by law or applicable stock exchange or depository requirements. No Notes of US$200,000 or less can be redeemed in part.

 

Section 3.03.       Notice of Redemption. (a) At least 10 days but not more than 60 days before a Redemption Date, the Issuer Trust shall deliver a notice of redemption to each Holder whose Notes are to be redeemed in accordance with Section 13.01 hereof, except that redemption notices may be delivered more than 60 days prior to a Redemption Date if the notice is issued in connection with a Legal Defeasance or a Covenant Defeasance or the satisfaction and discharge of this Indenture pursuant to Article 8 or Article 11 hereof. The Operator Guarantor (on behalf of the Issuer Trust) shall be responsible for determining the redemption price of the Notes in connection with any redemption, and the Indenture Trustee shall have no duty to verify any such determination.

 

(b)        If any Note is to be redeemed in part only, the notice of redemption that relates to such Note will state the portion of the principal amount of that Note that is to be redeemed. In the case of Certificated Notes, a new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder upon cancellation of the original Notes. Notes called for redemption become due on the date fixed for redemption. On and after the Redemption Date, interest ceases to accrue on such Notes or portions thereof called for redemption, unless payment is improperly withheld.

 

(c)      For Certificated Notes held on behalf of DTC, notices may be given by delivery of the relevant notices to DTC for communication to entitled account holders. For so long as the Notes are listed on the Euronext Dublin Market and the rules of the Euronext Dublin Market so require, the Operator Guarantor (on behalf of the Issuer Trust) will notify the Euronext Dublin Market of any such redemption and the principal amount of any Notes outstanding following any partial redemption of such Notes.

 

(d)        The notice shall identify the Notes to be redeemed and corresponding CUSIP number(s) or ISIN(s), as applicable, and shall state:

 

(i)          the Redemption Date;

 

(ii)         the redemption price and the amount of accrued interest, if any, and Additional Amounts, if any, to be paid;

 

(iii)        if any Global Note is being redeemed in part, the portion of the principal amount of such Global Note to be redeemed and that, after the Redemption Date upon surrender of such Global Note, the principal amount thereof will be decreased by the portion thereof redeemed pursuant thereto;

 

(iv)          if any Certificated Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed, and that, after the Redemption Date, upon surrender of such Note, a new Certificated Note or Certificated Notes in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Certificated Note;

(v)          the name and address of the Paying Agent(s) to which the Notes are to be surrendered for redemption;

 

(vi)       that Notes called for redemption must be surrendered to the relevant Paying Agent to collect the redemption price, plus accrued and unpaid interest, if any, and Additional Amounts, if any;

 

(vii)       that, unless the Issuer Trust defaults in making such redemption payment, interest, and Additional Amounts, if any, on Notes called for redemption cease to accrue on and after the Redemption Date;

 

(viii)     the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and

 

(ix)        that no representation is made as to the correctness or accuracy of the CUSIP number(s) or ISIN(s), if any, listed in such notice or printed on the Notes.

 

(e)          At the Issuer Trust’s written request, the Indenture Trustee shall give the notice of redemption in the Issuer Trust’s name and at its expense; provided, however, that the Issuer Trust shall have delivered to the Indenture Trustee, at least five days (or such shorter period as agreed by the Indenture Trustee) prior to the date on which the notice of redemption is to be given to Holders, as the case may be, an Officer’s Certificate requesting that the Indenture Trustee give such notice and setting forth the information to be stated in such notice as provided in Section 3.03(d) hereof.

 

Section 3.04.      Effect of Notice of Redemption. Any redemption or notice of redemption may, at the Operator Guarantor’s discretion, be subject to one or more conditions precedent. In addition, if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice may state that, in the Operator Guarantor’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied (provided, however, that, in no case shall the notice have been delivered less than 10 days or more than 60 days prior to the date on which such redemption (if any) occurs and such delay will be no more than 60 days after the date the notice of redemption was sent), or such redemption may not occur and such notice may be modified or rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date so delayed. In addition, such notice of redemption may be extended if such conditions precedent have not been satisfied or waived by the Operator Guarantor (on behalf of the Issuer Trust) by notice to the Holders of the Notes and the Operator Guarantor may provide in such notice that payment of the redemption or purchase price and performance of the Issuer Trust’s obligations with respect to such redemption may be performed by another Person. Notice of any satisfaction and discharge under this Indenture may be subject to a notice period of more than 60 days, at the Operator Guarantor’s discretion.

 

Section 3.05.      Deposit of Redemption Price. (a) No later than 10:00 a.m. (New York City time) on the Business Day prior to the Redemption Date, the Issuer Trust shall deposit with the Indenture Trustee or with the Paying Agent money in U.S. dollars sufficient to pay the redemption or purchase price of, and accrued interest and Additional Amounts (if any) on, all Notes to be redeemed or purchased on that date; provided, however, any funds received after 10:00 a.m. (New York City time) on such date shall be deemed to be have been received and deposited on the Business Day following receipt by the Indenture Trustee or the Paying Agent. The Indenture Trustee or the Paying Agent shall, upon written request of the Issuer Trust, promptly return to the Issuer Trust any money deposited with the Indenture Trustee or the Paying Agent, as applicable, by the Issuer Trust in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest and Additional Amounts, if any, on, all Notes to be purchased or redeemed. The Issuer Trust shall, no later than 10:00 a.m. (New York City time) on the second Business Day prior to the date on which the applicable Paying Agent receives payment, procure that the bank effecting payment for it confirms by written notice to the relevant Paying Agent that an irrevocable instruction has been given.

 

(b)          If the Issuer Trust complies with the provisions of Section 3.05(a) hereof, on and after the Redemption Date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date for the payment of interest but on or prior to the related Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption is not so paid upon surrender for redemption or purchase because of the failure of the Issuer Trust to comply with Section 3.05(a) hereof, interest shall be paid on the unpaid principal, from the Redemption Date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.

 

Section 3.06.       Notes Redeemed in Part. Upon surrender of a Certificated Note that is redeemed in part, the Issuer Trust shall issue and, upon receipt of an Authentication Order, the Indenture Trustee or the Authenticating Agent shall authenticate for (and in the name of) the Holder at the expense of the Issuer Trust a new Note equal in principal amount to the unredeemed portion of the Note surrendered; provided that any Certificated Note shall be in a principal amount of US$200,000 and integral multiples of US$1,000 in excess thereof.

 

Section 3.07.      Optional Redemption. (a) At any time prior to September 12, 2027, the Operator Guarantor (on behalf of the Issuer Trust) may on any one or more occasions redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ prior written notice to the Holders, at a redemption price equal to the greater of (1) 100.000% of the principal amount of such Notes and (2) the sum of the present value of the redemption price of the Notes to be redeemed at September 12, 2027, plus each remaining scheduled payment of interest thereon during the period between the redemption date and September 12, 2027 (exclusive of interest accrued to the Redemption Date), in each case discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points (the “Make-Whole Amount”), plus accrued and unpaid interest and any Additional Amounts due thereon up to but not including the date of redemption (subject to the rights of Holders on the relevant Record Date to receive interest due on the relevant Payment Date). The Indenture Trustee shall have no duty to calculate or verify the Make-Whole Amount. Any redemption and notice may, in the Operator Guarantor’s discretion, be subject to the satisfaction of one or more conditions precedent.

 

(b)          On or after September 12, 2027, the Issuer Trust may on any one or more occasions redeem all or a part of the Notes upon not less than 10 nor more than 60 days’ prior written notice to the Holders, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, to (but excluding) the Redemption Date and all Additional Amounts, if any, then due, on the Notes redeemed, if redeemed during the twelve-month period commencing on September 12 of any year indicated below (subject to the rights of Holders on the relevant Record Date to receive interest on the relevant Payment Date):

 

 

(c)         In addition, at any time, and from time to time, on or prior to September 12, 2027, the Operator Guarantor (on behalf of the Issuer Trust) may, at its option, use all or any portion of the Net Cash Proceeds of one or more Equity Offerings, to the extent the net cash proceeds thereof are contributed to the Trust Estate and placed directly in the Prepayment Account only for such purpose and without adding to any calculation that would otherwise permit a Restricted Payment, to redeem up to 35% of the aggregate principal amount of the Notes issued at a redemption price equal to 111.000% of the principal amount thereof plus accrued and unpaid interest, if any, to (but excluding) the Redemption Date and all Additional Amounts, if any, then due, on the Notes redeemed (subject to the rights of Holders on the relevant Record Date to receive interest on the relevant Payment Date); provided that at least 65% of the aggregate principal amount of Notes originally issued remains outstanding immediately after any such redemption. In order to effect the foregoing redemption with the proceeds of any Equity Offering, the Issuer Trust shall consummate such redemption not more than 90 days after the consummation of that Equity Offering upon not less than 10 nor more than 60 days’ notice mailed to each Holder being redeemed and otherwise in accordance with the redemption procedures set forth in this Indenture.

 

(d)         Unless the Issuer Trust defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.

 

(e)          Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.

 

(f)        To the extent that the Notes are represented by Global Notes, any payment to the Beneficial Owners holding Book-Entry Interests will be subject to the Applicable Procedures.

 

Section 3.08.    Redemption for Changes in Taxes. The Issuer Trust may redeem the Notes, in whole but not in part, at the Operator Guarantor’s option at any time prior to their maturity upon not less than 10 nor more than 60 days’ prior written notice to Holders of the Notes as provided for herein (with copies to the Indenture Trustee and the Paying Agent), at a redemption price equal to 100% of the principal amount of the Notes plus accrued and unpaid interest if any, to (but excluding) the applicable Redemption Date and all Additional Amounts, if any, then due on the Notes, if due to a Change in Tax Law:

 

(a)          the Issuer Trust, in accordance with the terms of the Notes, has, or would, become obligated to pay any Additional Amounts to the Holders of the Notes in excess of the Additional Amounts that the Issuer Trust would be required to pay if payments in respect of the Notes were subject to collection, deduction or withholding for Taxes imposed by the applicable Relevant Taxing Jurisdiction at the rate applicable on the Closing Date (which, in the case of Mexico, is a rate of 4.9% for payments of interest) (or, in the case of a jurisdiction that becomes a Relevant Taxing Jurisdiction on a date after the Closing Date, at the rate applicable on such later date); and

 

(b)          the Issuer Trust cannot avoid such obligation by taking reasonable measures available to it;

 

 

Section 3.09.      Mandatory Redemption; Open Market Purchases. Other than the redemption pursuant to Section 4.38, the Issuer Trust is not required to make mandatory redemption payments or sinking fund payments with respect to the Notes; however, the Issuer Trust shall be required to offer to purchase the Notes pursuant to Sections 4.13, 4.36 and 4.37 hereof, if and when required pursuant to the terms thereof. The Issuer Trust or its Affiliates may acquire Notes by means other than a redemption, whether by tender offer, open market purchases, privately negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Indenture.

 

ARTICLE 4

 

COVENANTS

 

Section 4.01.     Payment of Notes. The Issuer Trust shall pay or cause to be paid the principal of, premium on, if any, including Principal Premium, interest and Additional Amounts, if any, on, the Notes on the dates and in the manner provided in the Notes and this Indenture. Principal, premium, if any, interest and Additional Amounts, if any, will be considered paid on the date due if the Indenture Trustee or the Paying Agent, if other than the Issuer Trust or any Guarantor, holds as of 10:00 a.m. (New York City time) one Business Day prior to the due date money deposited by the Issuer Trust in immediately available funds and designated for and sufficient to pay all principal, premium, if any, including Principal Premium, and interest and Additional Amounts, if any, then due. If the Issuer Trust or any Guarantor acts as Paying Agent, principal, premium, if any, including Principal Premium, interest and Additional Amounts, if any, shall be considered paid on the due date if the entity acting as Paying Agent complies with Section 2.16 hereof. Principal of, interest, premium and Additional Amounts, if any, on the Notes will be payable at the Corporate Trust Office of the Paying Agent for such purposes. All payments on the Global Notes will be made by transfer of immediately available funds to an account of the Holder of the Global Notes in accordance with instructions given by that ▇▇▇▇▇▇.

 

Principal of, interest, premium, including Principal Premium, and Additional Amounts, if any, on any Certificated Notes will be payable at the Corporate Trust Office of any Paying Agent in any location required to be maintained for such purposes pursuant to Section 2.03 hereof. In addition, interest on Certificated Notes may be paid by check mailed to the person entitled thereto as shown on the Register for such Certificated Notes.

 

If an Event of Default shall occur and be continuing, the Issuer Trust shall pay cash interest (including post-petition interest in any proceeding under any Bankruptcy Code) on overdue principal, installments of interest, Principal Premium and Additional Amounts, if any (without regard to any applicable grace period) at a rate that is 3% per annum higher than the then applicable interest rate on the Notes to the extent lawful until the earlier of (a) completion of the Liquidation Procedure, (b) the repayment in full of the Notes, and (c) the date on which the Majority Holders have waived such Event of Default; provided that, to the extent another Event of Default occurs, such default interest will again commence accruing from the date of such Event of Default.

 

Section 4.02.       Maintenance of Office or Agency. The Issuer Trust shall maintain the offices and agencies specified in Section 2.03 hereof. The Issuer Trust shall give prompt written notice to the Indenture Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer Trust fails to maintain any such required office or agency or fails to furnish the Indenture Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Indenture Trustee (in accordance with Section 13.01 hereof).

 

The Issuer Trust may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Issuer Trust shall give prompt written notice to the Indenture Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

The Issuer Trust hereby designates the Corporate Trust Office of the Indenture Trustee (the address of which is specified in Section 13.01 hereof) as one such office or agency of the Issuer Trust in accordance with Section 2.03 hereof.

 

Section 4.03.      Financial Statements; Financial Certifications and Other Information.  (a) The Operator Guarantor (on behalf of itself and the Issuer Trust) and the other Guarantors shall provide the Indenture Trustee and the Servicer and, upon request by a Holder, the Indenture Trustee shall provide to any Holder (at the Issuer Trust’s expense):

 

(i)         within 120 days of the end of each Fiscal Year, (A) (x) annual audited financial statements of the Issuer Trust, (y) annual audited financial statements of the Operator Guarantor, (z) annual audited financial statements of each Subsidiary Guarantor, and (aa) annual audited consolidated financial statements of the Murano Parent Guarantor and its Subsidiaries and (B) in each case, a report on such statements by such Person’s independent auditors with recognized international standing;

 

(ii)         within 90 days of the end of each Fiscal Quarter, (x) unaudited quarterly financial statements of the Issuer Trust, (y) unaudited quarterly financial statements of the Operator Guarantor, (z) unaudited quarterly financial statements of each Subsidiary Guarantor, and (aa) unaudited quarterly consolidated financial statements of the Murano Parent Guarantor and its Subsidiaries certified by an Authorized Officer of such Person, as applicable, as fairly stating, in all material respects, the financial condition of such Person, as the case may be, as at the end of such period;

 

(iii)        concurrently with the delivery of the financial statements of the Issuer Trust and the Murano Parent Guarantor, as the case may be, referred to in (i) and (ii) above, a certificate of an Authorized Officer of the Operator Guarantor (on behalf of the Issuer Trust) and the Murano Parent Guarantor, as the case may be, certifying whether to such Authorized Officer’s knowledge, a Default or Event of Default has occurred at any time since the delivery of the prior certificate delivered pursuant to this sub-clause (iii) and, if a Default or Event of Default has occurred and is continuing, a statement specifying the nature thereof and any action taken or proposed to be taken with respect thereto to remedy the same; provided that no such certification will be required for any Default or Event of Default that has been waived or notified in prior annual certificates;

 

(iv)       within 30 days of each Calculation Date, a certificate from the Operator Guarantor (on behalf of the Issuer Trust) indicating as of such Calculation Date, the following information: (a) the Debt Service Coverage Ratio (including Revenues and Operating Expenses of the Property Obligors), (b) the weighted average occupancy of the Properties, and (c) the amount on deposit in each Account; and

 

(v)          within 60 days of the end of each Fiscal Year, an Authorized Appraisal for the Properties.

 

(b)       The Operator Guarantor (on behalf of the Issuer Trust) or the Murano Parent Guarantor, as applicable, shall provide the Indenture Trustee, at least two Business Days prior to any date on which a Restricted Payment is proposed to be made from the Lock-up Accounts, a certificate of an Authorized Officer of the Issuer Trust or the Murano Parent Guarantor, as the case may be, certifying that it is in compliance with the Restricted Payment Conditions and providing the computations of the applicable ratios in reasonable detail necessary to demonstrate satisfaction thereof. Upon request by a Holder, the Indenture Trustee will forward such certificate to such Holder (at the Issuer Trust’s expense).

 

(c)          The Operator Guarantor shall provide the Servicer (with copy to the Indenture Trustee) (i) (A) no later than (x) the 25^th day of each calendar month and (y) the 50^th day after the end of each Fiscal Year, the results of operations, profit and loss statements, (B) no later than November 2^nd of each calendar year, the proposed Annual Budget for the Properties for the next calendar year, (ii) all other information required to be delivered by the Hotel Operator to the Operator Guarantor under the Hotel Management Agreement and (iii) within 10 Business Days after any new, renewed or modified insurance policy becomes available, all certificates of insurance and copies of all insurance policies.

 

(d)         In addition, for so long as any Notes remain outstanding and during any period during which the Issuer Trust is not subject to Section 13 or 15(d) of the Exchange Act nor exempt therefrom pursuant to Rule 12g3-2(b), the Issuer Trust has agreed that the Operator Guarantor on its behalf and the Guarantors will furnish to the Holders and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

 

The Issuer Trust may, in lieu of delivering the information required pursuant to this Section 4.03 to the Indenture Trustee, post any such information on the Sponsor’s website no later than the date that the Issuer Trust is required to provide such information to the Indenture Trustee and, upon request, to the Holders. Such website may be password protected so long as the Issuer Trust (i) notifies the Indenture Trustee and the Holders of postings to the website (including through the information procedures of the depositary for the Notes) and (ii) provide the Indenture Trustee and the holders of the Notes with access to such website.

 

So long as any Notes are admitted to trading on the Euronext Dublin Market and the rules of the Euronext Dublin Market so require, the Issuer Trust will also provide a copy of all reports and press releases that the Issuer Trust will need to provide in accordance with this Indenture to the Euronext Dublin Market. The Indenture Trustee shall have no obligation to determine if and when any such reports have been filed or posted.

 

Delivery of such information and documents to the Indenture Trustee and the Servicer pursuant to this Section 4.03 is for informational purposes only and the Indenture Trustee’s and the Servicer’s receipt of such shall not constitute actual, constructive or deemed notice or knowledge of any information contained therein or determinable from information contained therein, including the Issuer Trust’s compliance with any of the covenants under this Indenture.

 

Section 4.04.       Notices of Material Events. The Operator Guarantor (on behalf of itself and the Issuer Trust) and the other Guarantors shall, as soon as reasonably practicable and in any event within 15 Business Days after it obtains knowledge of any of the following, give written notice to the Indenture Trustee and the Servicer and, upon request by a Holder, the Indenture Trustee will provide to any Holder (at the Issuer Trust’s expense) of:

 

(a)        the occurrence of any Event of Default or any Rapid Amortization Event (with a description of any action being taken or proposed to be taken with respect thereto);

 

(b)        the occurrence of any Casualty/Condemnation Event or the actual or threatened commencement of proceedings that would result in a Condemnation;

 

(c)         the filing or commencement of any action, suit or other proceeding by or before any arbitrator or Governmental Authority in which, in the sole judgment of such Person, there is a reasonable probability of an adverse determination that could result in a Material Adverse Effect;

(d)          the early termination or cancellation of any Material Contract (or any default or other event which with notice or lapse of time could result in such early termination or cancellation) or any Modification of any Material Contract;

 

(e)        any written notice of the occurrence of any event giving rise to a material claim under any insurance policy required to be maintained with respect to the Properties, with copies of any material documents relating thereto in the possession or control of such Person that could reasonably be expected to result in a Material Adverse Effect;

 

(f)          any material Lien or claim against the Collateral known to such Person (other than Permitted Liens);

 

(g)          any written notice to the Issuer Trust or any Guarantor indicating that any material Governmental Approval will not be granted or renewed or will be granted or renewed on terms that could reasonably be expected to result in a Material Adverse Effect;

 

(h)          any event or circumstance known to such Person affecting the Hotel Operator that could reasonably be expected to impair the ability of the Hotel Operator to perform its obligations under the Hotel Management Agreement and that could reasonably be expected to result in a Material Adverse Effect;

 

(i)          the occurrence of any Force Majeure Event under any Material Contracts;

 

(j)          the entry into any additional Material Contracts; and

 

(k)          any change of any senior manager or senior officer of any Guarantor.

 

Section 4.05.     Rights under Material Contracts. Each of the Issuer Trust and each Guarantor shall (i) perform and observe all of its covenants and obligations contained in the Material Contracts to which it is a party, (ii) take all reasonable and necessary action to defend any material adverse litigation to which it is a party in relation to any Material Contract (except as otherwise counseled by reputable counsel), and (iii) enforce, in accordance with customary industry standards, against the Hotel Operator each other covenant or obligation of any Material Contract to which it is a party in accordance with the terms thereof, in each case of clauses (i) through (iii) above, except to the extent that failure to do any of the foregoing could not reasonably be expected to have a Material Adverse Effect.

 

Section 4.06.       Taxes. Each of the Issuer Trust and the Guarantors shall timely pay and discharge all material Taxes for which it is responsible and make timely Tax filings prior to the date on which penalties, fines or interest attach thereto; provided that the Issuer Trust may permit any such Tax to remain unpaid if it meets the Permitted Contest Conditions.

 

Section 4.07.    Limitation on Restricted Payments. Neither the Issuer Trust nor any Guarantor shall, directly or indirectly, make any distribution of trust assets, dividend payments or other distributions on equity or Capital Stock, or payments on Indebtedness that does not rank pari passu in right of payment with the Notes or payments to any beneficiary or settlor, or any Affiliate of the Issuer Trust (any of the preceding, “Restricted Payments”); provided that:

 

(a)          the Issuer Trust shall be permitted to make Restricted Payments in cash from amounts on deposit in the Lock-up Accounts if, at the time of any such Restricted Payment (other than a Permitted Investment), the following conditions are satisfied (the “Restricted Payment Conditions”):

 

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