AMENDMENT NO. 1
TO FISCAL AGENCY AGREEMENT
AMENDMENT NO. 1 dated as of November 21, 2003 (this "Amendment"), to
the Fiscal Agency Agreement dated as of February 6, 2003 (the "Fiscal Agency
Agreement"), between THE REPUBLIC OF PERU ("Peru") and JPMORGAN CHASE BANK (the
"Fiscal Agent"). Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Fiscal Agency Agreement.
RECITALS
WHEREAS, clause (v) of the second paragraph of Section 7.1(b) of the
Fiscal Agency Agreement provides that Peru and the Fiscal Agent may, without the
vote or consent of any holder of Bonds of any Series, amend the Fiscal Agency
Agreement or the Terms for the purpose of effecting any amendment of the Fiscal
Agency Agreement so long as such amendment does not, and will not, adversely
affect the rights or interests of any holder of Bonds of that Series; and
WHEREAS, Peru has requested and the Fiscal Agent has agreed, consistent
with such clause (v), to amend the Fiscal Agency Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, Peru and the Fiscal Agent hereby agree
as follows:
SECTION 1. Scope of Amendment. The provisions of this Amendment shall
apply only to (a) the U.S. Dollar-Denominated Global Bonds due 2033 (the "Global
Bonds 2033") to be issued by Peru on the date hereof, (b) any Bonds issued in
the future under the Fiscal Agency Agreement that form a single series with the
Global Bonds 2033, and (c) any other Bonds issued on or after the date hereof
under the Fiscal Agency Agreement, and shall not modify or otherwise affect the
terms and conditions of any currently outstanding Bonds under the Fiscal Agency
Agreement.
SECTION 2. Amendment to Article V, Events of Default. Article V of the
Fiscal Agency Agreement is hereby amended to change its title to "Events of
Default Relating to Bonds Other Than Collective Action Securities" and to insert
the following sentence immediately after the title of the Article and before
Section 5.1: "The provisions of this Article V shall apply to the Bonds of each
Series other than all Collective Action Securities (as defined in Section 6.1)."
SECTION 3. Amendment to Article VII, Amendments. Article VII of the
Fiscal Agency Agreement is hereby amended to change its title to "Amendments
Relating to Bonds Other Than Collective Action Securities" and to insert the
following sentence immediately after the title of the Article and before Section
7.1: "The provisions of this Article VII shall apply to the Bonds of each Series
other than all Collective Action Securities (as defined in Section 6.1)."
SECTION 4. Renumbering of Article VI and the Sections thereunder.
Article VI and Sections 6.1 and 6.2 of the Fiscal Agency Agreement are hereby
renumbered as Article VII and Sections 7.1 and 7.2, respectively. The
renumbering of Article VI and Sections 6.1 and 6.2 of the Fiscal Agency
Agreement is applicable to cross-references to this Article or these Sections
within the Fiscal Agency Agreement.
SECTION 5. Renumbering of Article VII and the Section thereunder.
Article VII and Section 7.1 of the Fiscal Agency Agreement are hereby renumbered
as Article VIII and Section 8.1, respectively. The renumbering of Article VII
and Section 7.1 of the Fiscal Agency Agreement is applicable to cross-references
to this Article or Section within the Fiscal Agency Agreement.
SECTION 6. Renumbering of Article VIII and the Sections thereunder.
Article VIII and Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8 and 8.9 of the
Fiscal Agency Agreement are hereby renumbered as Article X and Sections 10.1,
10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8 and 10.9, respectively. The renumbering
of Article VIII and Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8 and 8.9 of
the Fiscal Agency Agreement is applicable to cross-references to this Article or
these Sections within the Fiscal Agency Agreement.
SECTION 7. Addition of Article VI. A new Article VI is hereby added to
the Fiscal Agency Agreement, to read as follows:
"ARTICLE VI
EVENTS OF DEFAULT RELATING TO COLLECTIVE ACTION SECURITIES
SECTION 6.1 General. The provisions of this Article VI shall apply only
to (i) the U.S. Dollar-Denominated Global Bonds due 2033 (the "Global Bonds
2033") to be issued by Peru on November 21, 2003, (ii) any Bonds issued after
November 21, 2003 under this Agreement that form a single series with the Global
Bonds 2033, and (iii) any other Bonds issued on or after November 21, 2003 under
this Agreement (collectively, the "Collective Action Securities").
SECTION 6.2 Notice of Event of Default; Acceleration. (a) Each of the
following events will constitute an "Event of Default" with respect to any
Series of Bonds:
(i) if Peru fails to pay interest or principal on the Bonds of that
Series when due and such failure continues for a period of 30 days; or
(ii) if Peru does not perform any other obligation under any Bond of
that Series and such failure is incapable of remedy or is not remedied within 60
days after written notice has been given to Peru by the Fiscal Agent; or
(iii) if Peru fails to make any payment in respect of:
(A) External Indebtedness outstanding as of February 21, 2002; or
(B) Public External Indebtedness;
in an aggregate principal amount in excess of U.S.$25,000,000 (or its
equivalent in any other currency) when due, and such failure continues beyond
the applicable grace period; or
(iv) if any event or condition occurs that results in the acceleration
of the maturity of:
(A) External Indebtedness outstanding as of February 21, 2002; or
(B) Public External Indebtedness;
in an aggregate principal amount in excess of U.S.$25,000,000 (or its
equivalent in any other currency); or
(v) if Peru declares a general suspension on or moratorium with respect
to the payment of principal or interest on all or a portion of its External
Indebtedness; or
(vi) if (A) Peru contests the validity of, or its obligations under,
any Bond of that Series or, to the extent adversely affecting such Bonds, this
Agreement, (B) Peru denies any of its obligations under any Bond of that Series
or, to the extent adversely affecting such Bonds, this Agreement, or (C) any
constitutional provision, treaty, law, regulation, decree, or other official
pronouncement of Peru, or any final decision by any court in Peru having
jurisdiction, renders it unlawful for Peru to pay any amount due on any Bonds of
that Series or to perform any of its obligations under any Bonds of that Series
or, to the extent adversely affecting such Bonds, this Agreement; or
(vii) if any writ, execution, attachment or similar process is levied
against all or any substantial part of the assets of Peru in connection with any
judgment for the payment of money exceeding U.S. $25,000,000 (or its equivalent
in any other currencies), and Peru fails to satisfy or discharge such judgment,
or adequately bond, contest in good faith or receive a stay of execution or
continuance in respect of such judgment, within a period of 120 days; or
(viii) if Peru fails to maintain its membership in, and its eligibility
to use the general resources of, the International Monetary Fund.
(b) Upon the occurrence and during the continuance of an Event of
Default, the holders of at least 25% in aggregate principal amount of all Bonds
of the relevant Series then Outstanding may by written notice given to Peru
(with a copy to the Fiscal Agent) declare the Bonds of that Series held by them
to be immediately due and payable; and upon such declaration the principal
amount of Bonds of that Series and the accrued interest on such Bonds will
become immediately due and payable upon the date that such written notice is
received at the office of the Fiscal Agent, unless prior to such date all Events
of Default in respect of all Bonds of such Series have been cured. The right to
give such acceleration notice will terminate if the event giving rise to such
right has been cured before such right is exercised. Holders of Bonds of such
Series holding in the aggregate at least 50% in principal amount of the then
Outstanding Bonds of that Series may waive any existing defaults, and rescind or
annul any notice of acceleration, on behalf of all Bondholders, if (i) following
the declaration of such Bonds due and payable immediately, Peru has deposited
with the Fiscal Agent an amount sufficient to pay all overdue installments of
principal, interest and Additional Amounts in respect of such Bonds as well as
the reasonable fees and compensation of the Fiscal Agent; and (ii) all other
Events of Default have been remedied. In the event of a declaration of
acceleration because of an Event of Default set forth in clause (iii) or (iv)
above, such declaration of acceleration shall be automatically rescinded and
annulled if the event triggering such Event of Default pursuant to such clause
(iii) or (iv) shall be remedied, cured or waived by the holders of the relevant
indebtedness, within 60 days after such event.
(c) Upon the occurrence of an Event of Default under Section 6.2(a),
Peru shall give written notice promptly after becoming aware thereof to the
holder of each Bond (with a copy to the Fiscal Agent). Within 15 days after
becoming aware of the occurrence of an event which with the giving of notice or
lapse of time or both would, unless remedied, cured or waived, become an Event
of Default under clause (iii) or (iv) of Section 6.2(a), Peru shall give written
notice thereof to the holder of each Bond (with a copy to the Fiscal Agent). Any
notice required to be given pursuant to this Section 6.2(c) to each holder of a
Bond may be given by Peru directly to the Fiscal Agent, provided that Peru will
cause the Fiscal Agent promptly to give notice of each Event of Default
specified in such notice to the holders of Bonds.
SECTION 6.3 Delivery of Information; Purchase of Bonds by Peru. (a) So
long as any Bonds are Outstanding, Peru shall provide the Fiscal Agent: (i)
within 90 days after the last day of each calendar year and, in addition, within
15 days of any request by the Fiscal Agent, a certificate of an Authorized
Signatory, or such other official of Peru as may be appropriate, stating to such
official's knowledge, as of a date which shall not be more than five days before
the date of the certificate, whether an Event of Default or an event that, with
the giving of notice or lapse of time or both, would become such an Event of
Default with respect to the Bonds, exists on the date of such certificate and,
if such an Event of Default or an event that, with the giving of notice or lapse
of time or both, would become such an Event of Default exists, setting forth the
details thereof and the action which Peru is taking or proposes to take with
respect thereto; and (ii) upon any official of Peru becoming aware of the
existence of an Event of Default with respect to one or more Series of Bonds, or
the occurrence of any event that, with the giving of notice or lapse of time or
both, would become such an Event of Default, a certificate of an Authorized
Official, setting forth the details thereof and the action that Peru is taking
or proposes to take with respect thereto.
(b) Peru may at any time purchase or acquire any of the Bonds in any
manner and at any price in the open market or in privately negotiated
transactions. All Bonds which are purchased or acquired by or on behalf of Peru
may, at its discretion, be held, resold or surrendered to the Fiscal Agent for
cancellation, but any Bond so purchased by Peru may not be re-issued or resold
except in compliance with the Securities Act and other applicable law."
SECTION 8. Addition of Article IX. A new Article IX is hereby added to
the Fiscal Agency Agreement, to read as follows:
ARTICLE IX
AMENDMENTS RELATING TO COLLECTIVE ACTION SECURITIES
SECTION 9.1 General. The provisions of this Article IX shall apply only
to Collective Action Securities (as defined in Section 6.1).
SECTION 9.2 Amendment and Waivers. (a) Request for Written Consents;
Calling of Meeting; Notice and Quorum. Peru may at any time ask for written
consents from or call a meeting of holders of the Bonds of any Series at any
time and from time to time to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement or the Bonds of that Series to be made, given or taken by holders
of Bonds or to modify, amend or supplement the Terms of this Agreement as
hereinafter provided. Any such meeting shall be held at such time and at such
place as Peru shall determine and as shall be specified in a notice of such a
meeting that shall be furnished to the holders of the Bonds of that Series at
least 30 days and not more than 60 days prior to the date fixed for the meeting.
In addition, the Fiscal Agent may at any time and from time to time call a
meeting of holders of the Bonds of that Series for any such purpose, to be held
at such time and at such place as the Fiscal Agent shall determine, after
consultation with Peru, and as shall be specified in a notice of such meeting
that shall be furnished to the holders of the Bonds of that Series at least 30
days and no more than 60 days prior to the date fixed for the meeting. In case
at any time the holders of at least 10% in aggregate principal amount of the
Outstanding Bonds (as defined in Section 9.2(f)) shall have requested the Fiscal
Agent to call a meeting of the holders of Bonds of a Series for any such
purpose, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, the Fiscal Agent shall call such meeting,
to be held at such time and at such place as the Fiscal Agent shall determine,
after consultation with Peru, for such purposes by giving notice thereof. Such
notice shall be given at least 30 days and not more than 60 days prior to the
meeting. Notice of every meeting of holders of the Bonds of a Series shall set
forth in general terms the action proposed to be taken at such meeting.
To be entitled to vote at any meeting of holders of the Bonds of a
Series, a person shall be a holder of Outstanding Bonds of that Series or a
person duly appointed by an instrument in writing as proxy for such a holder. At
any meeting of holders, other than a meeting to discuss a Reserved Matter (as
defined in Section 9.2(c)), the persons entitled to vote a majority in aggregate
principal amount of the Outstanding Bonds of any Series shall constitute a
quorum, and at the reconvening of any such meeting adjourned for a lack of a
quorum, the persons entitled to vote 25% in aggregate principal amount of the
Outstanding Bonds of that Series shall constitute a quorum for the taking of any
action set forth in the notice of the original meeting. At any meeting of
holders held to discuss a Reserved Matter, the persons entitled to vote 75% in
aggregate principal amount of the Outstanding Bonds of a Series shall constitute
a quorum. The Fiscal Agent, after consultation with Peru, may make such
reasonable and customary regulations, consistent therewith, as it shall deem
advisable for any meeting of holders of Bonds of any Series with respect to the
proof of the holding of bearer Bonds of that Series and of the appointment of
proxies in respect of holders of registered Bonds of that Series, the record
date for determining the registered owners of registered Bonds of that Series
who are entitled to vote at such meeting (which date shall be set forth in the
notice calling such meeting hereinabove referred to and which shall be not less
than 15 nor more than 60 days prior to such meeting), the adjournment and
chairmanship of such meeting, the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate.
(b) Matters Other Than Reserved Matters. (i) At any meeting of holders
of the Bonds of any Series duly called and held as specified in Section 9.2(a),
upon the affirmative vote, in person or by proxy thereunto duly authorized in
writing, of the holders of at least 66?% in aggregate principal amount of the
Bonds of that Series then Outstanding represented at such meeting, or (ii) with
the written consent of the holders of at least 66?% in aggregate principal
amount of the Bonds of that Series then Outstanding, Peru and the Fiscal Agent
may modify, amend or supplement the Terms or this Agreement in any way, other
than a modification, amendment or supplement constituting a Reserved Matter, and
the holders of the Bonds of that Series may make, take or give any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement or the Bonds of that Series to be made, given or
taken by holders of the Bonds of that Series, other than a waiver or other
action constituting a Reserved Matter.
(c) Reserved Matters. (i) At any meeting of holders of the Bonds of any
Series duly called and held as specified in Section 9.2(a), upon the affirmative
vote, in person or by proxy thereunto duly authorized in writing, of the holders
of at least 75% in aggregate principal amount of the Bonds of that Series then
Outstanding, or (ii) with the written consent of the holders of at least 75% in
aggregate principal amount of the Bonds of that Series then Outstanding, Peru
and the Fiscal Agent may make any modification, amendment, supplement or waiver
of this Agreement or the Terms that would (A) change the due date for payment of
the principal of (or premium, if any) or any installment of interest on the
Bonds of that Series, (B) reduce the principal amount of the Bonds of that
Series, the portion of such principal amount which is payable upon acceleration
of the maturity of such Bonds, the interest rate thereon or the premium payable
upon redemption thereof, (C) change the coin or currency in which or the
required places at which payment with respect to interest, premium or principal
in respect of the Bonds of that Series is payable, (D) shorten the period during
which Peru is not permitted to redeem the Bonds of that Series, or permit Peru
to redeem the Bonds of that Series if, prior to such action, Peru is not
permitted to do so, (E) reduce the proportion of the principal amount of the
Bonds of that Series the vote or consent of the holders of which is necessary to
modify, amend or supplement this Agreement or the Terms or to make, take or give
any request, demand, authorization, direction, notice, consent, waiver or other
action provided hereby or thereby to be made, taken or given, or change the
definition of "Outstanding" with respect to the Bonds of that Series, (F) change
the obligation of Peru to pay additional amounts with respect to the Bonds of
that Series, (G) change the governing law provision of the Bonds of that Series,
(H) change the courts to the jurisdiction of which Peru has submitted, Peru's
obligation to appoint and maintain a Process Agent with an office in New York,
as set forth in Section 10.6(c), or Peru's waiver of immunity, in respect of
actions or proceedings brought by any holder based upon the Bonds of that
Series, as set forth in Section 10.6(e), (I) in connection with an exchange
offer for the Bonds of that Series, amend any Event of Default (as defined in
the terms of the Bonds of that series), or (J) change the status of that Series,
as set forth in Section 3(a) of the Terms. Each of the actions set forth in
clauses (A) through (J) of the preceding sentence is referred to herein as a
"Reserved Matter."
(d) Non-Material Amendments. Peru and the Fiscal Agent may, without the
vote or consent of any holder of Bonds of any Series, amend this Agreement or
the Terms for the purpose of (i) adding to the covenants of Peru for the benefit
of the holders of Bonds, or (ii) surrendering any right or power conferred upon
Peru in respect of this Agreement or the Terms, or (iii) providing security or
collateral for the Bonds of any Series, or (iv) curing any ambiguity in any
provision, or curing, correcting or supplementing any defective provision
contained herein or in the Bonds of any Series in a manner which does not
adversely affect the interest of any holder of such Bonds, or (v) effecting any
amendment of this Agreement (including, to the extent necessary, to provide for
the issuance and authentication of other Bonds and of Warrants) or of the Terms
which Peru and the Fiscal Agent mutually deem necessary or desirable so long as
any such amendment does not, and will not, adversely affect the rights or
interests of any Bond holder of that Series.
(e) Binding Nature of Amendments, Notice, Notations, etc. Any
instrument given by or on behalf of any holder of a Bond of any Series in
connection with any consent to or vote for any modification or amendment,
supplement, request, demand, authorization, direction, notice, consent, waiver
or other action shall be irrevocable once given and shall be conclusive and
binding on all subsequent holders of such Bond or any Bond issued directly or
indirectly in exchange or substitution therefor or in lieu thereof. Any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action given or made with respect to the Bonds
of any Series will be conclusive and binding on all holders of the Bonds of that
Series, whether or not they have given such consent or cast such vote or were
present at any meeting, and whether or not notation of such modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action is made upon the Bonds of that Series. Notice of
any modification or amendment of, supplement to, or request, demand,
authorization, direction, notice, consent, waiver or other action with respect
to the Bonds of any Series or this Agreement (other than for purposes of curing
any ambiguity or of curing, correcting or supplementing any defective provisions
hereof or thereof) shall be given to each holder of Bonds of that Series
affected thereby, in all cases as provided in the Terms.
Bonds of any Series authenticated and delivered after the effectiveness
of any such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action may bear a notation in the
form approved by the Fiscal Agent and Peru as to any matter provided for in such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action. New Bonds of that Series modified to
conform, in the opinion of the Fiscal Agent and Peru, to any such modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action may be prepared by Peru, authenticated by the
Fiscal Agent and delivered in exchange for Outstanding Bonds of that Series.
The Fiscal Agent may request an opinion of counsel in connection with
any amendment or supplement entered into hereunder, including any amendment or
supplement to any Bonds of any Series.
It shall not be necessary for the vote or consent of the holders of
Bonds of a Series to approve the particular form of any proposed modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action, but it shall be sufficient if such vote or
consent shall approve the substance thereof.
(f) "Outstanding" Defined. For purposes of the provisions of this
Agreement and the Bonds of any Series, any Bond of that Series authenticated and
delivered pursuant to this Agreement shall, as of any date of determination, be
deemed to be "Outstanding", except:
(i) Bonds theretofore canceled by the Fiscal Agent or delivered to the
Fiscal Agent for cancellation or held by the Fiscal Agent for reissuance
but not reissued by the Fiscal Agent;
(ii) Bonds which have been called for redemption in accordance with
their terms or which have become due and payable at maturity or otherwise
and with respect to which monies sufficient to pay the principal thereto
(and premium, if any) and any interest thereon shall have been made
available to the Fiscal Agent; or
(iii) Bonds in lieu of or in substitution for which other Bonds shall
have been authenticated and delivered pursuant to this Agreement;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Bonds of any Series are present at a meeting of
holders of Bonds of that Series for quorum purposes or have consented to or
voted in favor or any request, demand, authorization, direction, notice,
consent, waiver, amendment, modification or supplement hereunder, Bonds of that
Series owned, directly or indirectly, by Peru or any public sector
instrumentality of Peru shall be disregarded and deemed not to be Outstanding,
except that in determining whether the Fiscal Agent shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent, waiver, amendment, modification or supplement, only Bonds of that
Series which the Fiscal Agent knows to be so owned shall be so disregarded. As
used in this paragraph, "public sector instrumentality" means Banco Central de
Reserva del Peru, any department, ministry or agency of the government of Peru
or any corporation, trust, financial institution or other entity owned or
controlled by the government of Peru or any of the foregoing, and "control"
means the power, directly or indirectly, through the ownership of voting
securities or other ownership interest or otherwise, to direct the management of
or elect or appoint a majority of the board of directors or other persons
performing similar functions in lieu of, or in addition to, the board of
directors of a corporation, trust, financial institution or other entity."
SECTION 9. Form of Terms and Conditions of the Bonds. Exhibit C to the
Fiscal Agency Agreement is hereby deleted in its entirety and replaced by Annex
I to this Amendment.
SECTION 10. Effectiveness. This Amendment shall become effective as of
the date hereof upon execution by the parties hereto.
SECTION 11. Governing Law. This Amendment is governed by and must be
interpreted in accordance with the laws of the State of New York, except that
all matters governing authorization and execution of this Agreement by Peru are
governed by the laws of Peru.
SECTION 12. Counterparts. This Amendment may be signed in any number of
counterparts (which may include counterparts delivered by telecopier), with the
same effect as if the signatures thereto and hereto were upon the same
instrument. Such counterparts together constitute but one and the same
instrument.
SECTION 13. Incorporation Into Fiscal Agency Agreement. All provisions
of this Amendment shall be deemed to be incorporated in, and made part of, the
Fiscal Agency Agreement, and the Fiscal Agency Agreement, as amended and
supplemented by this Amendment, shall be read, taken and construed as one and
the same instrument.
SECTION 14. Acceptance. The Fiscal Agent accepts the Fiscal Agency
Agreement, as supplemented by this Amendment, and agrees to perform the same
upon the terms and conditions set forth therein as so supplemented.
SECTION 15. Separability. If any provision in this Amendment or in the
Terms is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
SECTION 16. Effect of Headings. The Article and Section headings in
this Amendment are for convenience only and shall not affect the construction
hereof.
SECTION 17. Amendment. Except as specifically amended or modified
hereby, the Fiscal Agency Agreement shall continue in full force and effect in
accordance with the provisions thereof. All references in any other agreement or
document to the Fiscal Agency Agreement shall, on and after the date hereof, be
deemed to refer to the Fiscal Agency Agreement as amended hereby.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
THE REPUBLIC OF PERU
By /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Directora General de Credito
Publico of the Republic of Peru
JPMORGAN CHASE BANK
By /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Treasurer
