AUTOPISTAS DEL SOL S.A., as Issuer
JPMORGAN CHASE BANK, as Trustee,
Co-Registrar and Principal Paying Agent
AND
JPMORGAN CHASE BANK, as Registrar,
Paying Agent and Transfer Agent
-------------------------------------------
INDENTURE
Dated as of -, 2004
Relating to
DEBT SECURITIES
(Issuable in Series)
-------------------------------------------
CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
---------------------- -----------
Section 310 (a)(1) .................................. 7.10
(a)(2) .................................. 7.10
(a)(3) .................................. N.A.
(a)(4) .................................. N.A.
(a)(5) .................................. 7.10
(b) .................................. 7.08; 7.10;
10.01
(c) .................................. N.A.
Section 311 (a) .................................. 7.11
(b) .................................. 7.11
(c) .................................. N.A.
Section 312 (a) .................................. 2.05
(b) .................................. 10.03
(c) .................................. 10.03
Section 313 (a) .................................. 7.06
(b)(1) .................................. 7.06
(b)(2) .................................. 7.06
(c) .................................. 7.06
(d) .................................. 7.06
Section 314 (a) .................................. 4.16; 4.15
(b) .................................. N.A.
(c)(1) .................................. 10.04
(c)(2) .................................. 10.04
(c)(3) .................................. N.A.
(d) .................................. N.A.
(e) .................................. 10.05
(f) .................................. N.A.
Section 315 (a) .................................. 7.01(b)
(b) .................................. 7.05; 10.01
(c) .................................. 7.01(a)
(d) .................................. 7.01(c)
(e) .................................. 6.11
(i)
Section 316 (a) .................................. 2.09
(a)(1)(A) .................................. 6.05
(a)(1)(B) .................................. 6.04
(a)(2) .................................. N.A.
(b) .................................. 6.07
Section 317 (a)(1) .................................. 6.08
(a)(2) .................................. 6.09
(b) .................................. 2.04
Section 318 (a) .................................. 10.02
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
(ii)
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions...................................................................... 1
Section 1.02. Other Definitions................................................................ 11
Section 1.03. Incorporation by Reference of Trust Indenture Act................................ 12
Section 1.04. Rules of Construction............................................................ 12
ARTICLE 2
THE DEBT SECURITIES
Section 2.01. Form and Dating.................................................................. 13
Section 2.02. Aggregate Principal Amount; Title and Terms...................................... 15
Section 2.03. Execution and Authentication..................................................... 17
Section 2.04. Registrar and Paying Agent....................................................... 17
Section 2.05. Paying Agent to Hold Money and Assets in Trust; Payments Considered Paid......... 18
Section 2.06. Holder Lists..................................................................... 19
Section 2.07. Replacement Debt Security........................................................ 19
Section 2.08. Outstanding Debt Securities...................................................... 19
Section 2.09. Treasury Debt Securities......................................................... 19
Section 2.10. Temporary Debt Securities........................................................ 20
Section 2.11. Cancellation..................................................................... 20
Section 2.12. Defaulted Interest............................................................... 20
Section 2.13. Deposit of Moneys................................................................ 20
Section 2.14. CUSIP Number..................................................................... 21
Section 2.15. Registration, Registration of Transfer and Exchange.............................. 21
Section 2.16. Book-Entry Provisions for Global Debt Securities; Transfer and Exchange
of Global Debt Securities and Certificate Debt Securities........................ 21
Section 2.17. Special Transfer Provisions...................................................... 25
ARTICLE 3
REDEMPTION AND REPURCHASE
Section 3.01. Right of Redemption; Notices to Trustee.......................................... 26
Section 3.02. Selection of Debt Securities to Be Redeemed...................................... 27
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TABLE OF CONTENTS
(continued)
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Section 3.03. Notice of Redemption............................................................. 27
Section 3.04. Effect of Notice of Redemption................................................... 28
Section 3.05. Deposit of Redemption Price...................................................... 28
Section 3.06. Debt Securities Redeemed in Part................................................. 29
Section 3.07. Purchase of Debt Securities by the Company....................................... 29
ARTICLE 4
COVENANTS
Section 4.01. Payment of Debt Securities....................................................... 29
Section 4.02. Maintenance of Office or Agency.................................................. 29
Section 4.03. Payment of Additional Amounts.................................................... 30
Section 4.04. Limitation on Additional Indebtedness............................................ 30
Section 4.05. Limitation on Liens.............................................................. 31
Section 4.06. Limitation on Sale and Leaseback Transactions.................................... 31
Section 4.07. Limitation on Creation of Subsidiaries........................................... 32
Section 4.08. Proceeds of Asset Sales.......................................................... 32
Section 4.09. Limitations on Transactions with Affiliates...................................... 32
Section 4.10. Limitation on Investments, Loans and Advances.................................... 32
Section 4.11. Limitation on Business Activities................................................ 33
Section 4.12. Corporate Existence.............................................................. 33
Section 4.13. Payment of Taxes and Other Claims................................................ 33
Section 4.14. Compliance Certificate........................................................... 33
Section 4.15. Limitation on Dividends.......................................................... 34
Section 4.16. Reports.......................................................................... 34
Section 4.17. Waiver of Stay, Extension or Usury Laws.......................................... 34
Section 4.18. Maintenance of Properties and Insurance.......................................... 34
Section 4.19. Compliance with Laws............................................................. 35
Section 4.20. Investment Company Act........................................................... 35
Section 4.21. Notices of Default............................................................... 35
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Consolidations, Merger and Sales of Assets....................................... 35
ii
TABLE OF CONTENTS
(continued)
Page
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Section 5.02. Successor Corporation Substituted................................................ 36
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.01. Events of Default................................................................ 36
Section 6.02. Acceleration..................................................................... 38
Section 6.03. Other Remedies................................................................... 38
Section 6.04. Waiver of Past Defaults.......................................................... 39
Section 6.05. Control by Majority.............................................................. 39
Section 6.06. Limitation on Suits.............................................................. 39
Section 6.07. Rights of Holders to Receive Payment............................................. 40
Section 6.08. Collection Suit by Trustee....................................................... 40
Section 6.09. Trustee May File Proofs of Claim................................................. 40
Section 6.10. Priorities....................................................................... 40
Section 6.11. Undertaking for Costs............................................................ 41
ARTICLE 7
THE TRUSTEE
Section 7.01. Duties of Trustee................................................................ 41
Section 7.02. Rights of Trustee................................................................ 42
Section 7.03. Individual Rights of Trustee..................................................... 43
Section 7.04. Trustee's Disclaimer............................................................. 43
Section 7.05. Notice of Default................................................................ 43
Section 7.06. Reports by Trustee to Holders.................................................... 44
Section 7.07. Compensation and Indemnity....................................................... 44
Section 7.08. Replacement of Trustee........................................................... 45
Section 7.09. Successor Trustee by Merger, Etc................................................. 46
Section 7.10. Eligibility; Disqualification.................................................... 46
Section 7.11. Preferential Collection of Claims Against the Company............................ 46
Section 7.12. Conditions of Agent's Obligations................................................ 47
Section 7.13. Resignation and Appointment of Successor Agent................................... 48
Section 7.14. Trustees Priority of Payment..................................................... 49
iii
TABLE OF CONTENTS
(continued)
Page
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ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01. Defeasance....................................................................... 50
Section 8.02. Termination of Obligations upon Cancellation of the Debt Securities.............. 53
Section 8.03. Compliance with Trust Indenture Act.............................................. 53
Section 8.04. Survival of Certain Obligations.................................................. 53
Section 8.05. Acknowledgment of Discharge by Trustee........................................... 53
Section 8.06. Application of Trust Assets...................................................... 53
Section 8.07. Repayment to the Company; Unclaimed Money........................................ 54
Section 8.08. Reinstatement.................................................................... 54
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders....................................................... 54
Section 9.02. With Consent of Holders.......................................................... 55
Section 9.03. Compliance with Trust Indenture Act.............................................. 56
Section 9.04. Revocation and Effect of Consents................................................ 56
Section 9.05. Notation on or Exchange of Debt Securities....................................... 57
Section 9.06. Trustee to Sign Amendments, Etc.................................................. 57
Section 9.07. Holders' Meetings................................................................ 57
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices.......................................................................... 59
Section 10.02. Trust Indenture Act Controls..................................................... 61
Section 10.03. Communications by Holders........................................................ 61
Section 10.04. Certificate and Opinion as to Conditions Precedent............................... 61
Section 10.05. Statements Required in Certificate or Opinion.................................... 61
Section 10.06. Rules by Trustee, Paying Agent, Registrar........................................ 62
Section 10.07. Governing Law.................................................................... 62
Section 10.08. No Adverse Interpretation of Other Agreements.................................... 62
Section 10.09. No Recourse Against Others....................................................... 62
Section 10.10. Successors....................................................................... 62
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(continued)
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Section 10.11. Severability..................................................................... 62
Section 10.12. Table of Contents, Headings, Etc................................................. 62
Section 10.13. Benefits of Indenture............................................................ 63
Section 10.14. Independence of Covenants........................................................ 63
Section 10.15. Counterparts..................................................................... 63
Section 10.16. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.............. 63
Section 10.17. Judgment Currency................................................................ 64
Section 10.18. Foreign Exchange Restrictions.................................................... 64
EXHIBITS
A Form of Debt Securities
B Form of Legend for Global Debt Security
C Form of Private Placement Legend
D Form of Transfer Certificate for Transfer from Rule 144A Global
Security to Regulation S Global Security
E Form of Transfer Certificate for Transfer from Regulation S Global
Security to Rule 144A Global Security
F Form of Transfer Certificate for Transfer from Certificated Debt
Security to Rule 144A Global Security
G Form of Transfer Certificate for Transfer from Certificated Debt
Security to Regulation S Global Security
H Form of Transfer Certificate for Transfer from Certificated Debt
Security to Certificated Debt Security
-----------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
v
INDENTURE, dated as of -, 2004, between AUTOPISTAS DEL SOL
S.A., a sociedad anonima existing under the laws of the Republic of Argentina,
and registered with the Public Registry of Commerce on February 4, 1994 under
No. 950, Book 114, Volume "A" of Sociedades Anonimas, with its current domicile
at Xx. Xxxxxxx X. Xxxx 000 0xx Xxxxx, (X0000XXX), Buenos Aires, Argentina (the
"Company"), as Issuer, JPMORGAN CHASE BANK, as trustee (the "Trustee")
Co-Registrar and Principal Paying Agent, and JPMORGAN CHASE BANK, as Registrar,
Paying Agent and Transfer Agent.
RECITALS OF THE COMPANY
WHEREAS, from time to time the Company may duly authorize the
creation of an issue of negotiable obligations to be issued in accordance with
the Negotiable Obligations Law (the "Debt Securities") in one or more series in
such minimum amount, if any, as may be set forth from time to time; and
WHEREAS, all things necessary to be done by the Company to
make the Debt Securities, when executed by the Company and authenticated and
delivered by the Trustee hereunder and duly issued by the Company upon payment
therefor by the purchasers thereof, the valid obligations of the Company, and to
make this Indenture a valid agreement of the Company, in accordance with their
and its terms, respectively, have been done.
RECITAL OF THE TRUSTEE
WHEREAS, the Trustee has agreed to act as Trustee,
Co-Registrar and Principal Paying Agent under this Indenture on the following
terms and conditions.
NOW THEREFORE
In consideration of these premises, the Company and the
Trustee mutually covenant and agree for the benefit of the Holders from time to
time of the Debt Securities as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Accrued Bankruptcy Interest" means all interest accruing
subsequent to the occurrence of any events specified in Section 6.01(f) or (g)
or which would have accrued but for any such event.
"Acquired Indebtedness" means Indebtedness of the Company
assumed in connection with an Asset Acquisition by the Company, other than
Indebtedness incurred in connection with, or in anticipation of, such Asset
Acquisition.
"Affiliate" means, with respect to any specified Person, any
other Person which, directly or indirectly, controls, is controlled by or is
under direct or indirect common control with, such specified Person. For the
purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, including, where a Person (i) holds a
sufficient equity interest in a corporation or a limited liability company to
permit the Person either to elect a majority of the Board of Directors or to
control the management of the entity, (ii) is directly or indirectly the general
partner of a limited partnership or (iii) is the managing partner of a
partnership, and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing, provided that, any Person owning or
controlling 10% or more of the voting securities of the Company will be deemed
to be an Affiliate.
"Agent" means any Registrar, Paying Agent, transfer agent or
co-Registrar of the Debt Securities appointed from time to time by the Company
hereunder (collectively, the "Agents").
"Applicable Procedures" means the applicable procedures in
effect from time to time of DTC, Euroclear and Clearstream, Luxembourg, in each
case to the extent applicable.
"Argentina" means the Republic of Argentina.
"Argentine GAAP" means generally accepted accounting
principles in Argentina in accordance with accounting principles adopted by the
Professional Council of Economic Sciences of the Autonomous City of Buenos Aires
and in accordance with the accounting regulations adopted by the CNV applicable
to all public companies in Argentina.
"Argentine Personal Assets Tax" means the personal assets tax
("impuesto a los bienes personales") set forth under Argentine Law 23,966, as
amended and implemented from time to time.
"Asset Acquisition" means (i) any capital contribution (by
means of transfers of cash or other property to others or payments for property
or services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, by the Company in any other Person, in either case
pursuant to which such Person shall be merged with or into the Company, or (ii)
any acquisition by the Company of the assets of any Person which constitute
substantially all of an operating unit or business of such Person.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease, assignment or other transfer or disposition by the
Company, in one transaction or a series of related transactions, of (i)
substantially all of the assets of the Company representing a division or line
of business, (ii) any of the revenues of the Company, or (iii) other assets or
rights of the Company outside of the ordinary course of business, in each case,
other than isolated transactions which do not exceed U.S.$500,000 in aggregate
annually. For the purposes of this definition, the term "Asset Sale" shall not
include any disposition of properties and assets of the Company that is governed
under and complies with the requirements set forth in the covenant described
under Section 5.01 or any sale by the Company of its Capital Stock.
"Attributable Debt" means in respect of a sale and leaseback
arrangement, as at the time of determination, the greater of (i) the fair value
of the property subject to such arrangement (as determined in good faith by the
Board of Directors) or (ii) the present value
2
(discounted at the interest rate borne by the Debt Securities, compounded
annually) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such arrangement (including any period
for which such lease has been extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar U.S.
federal or state or Argentine, or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the
board of directors of such Person or any committee of the board of directors of
such Person duly authorized, with respect to any particular matter, to exercise
the power of the board of directors of such Person.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by an Officer of such Person to have been duly adopted
by the Board of Directors of such Person and to be in full force and effect on
the date of such certification.
"Business Day" means a day other than a Saturday, a Sunday or
a day on which banking institutions in New York City are not required to be
open.
"Capital Stock" means capital stock or other equity
participations, including partnership interests, or warrants, options or other
rights to acquire capital stock or other equity participations (but excluding
any debt security that is convertible into, or exchangeable for, capital stock
or other such equity participations).
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement conveying the right
to use) any property (whether real, personal or mixed) that is required to be
classified and accounted for as a capital lease obligation under Argentine GAAP,
and, for the purpose of this Indenture, the amount of such obligation at any
date shall be the capitalized amount thereof at such date, determined in
accordance with Argentine GAAP.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of 180 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of 180 days or less of any financial institution
that is a member of the U.S. Federal Reserve System having combined capital and
surplus and undivided profits of not less than U.S.$500.0 million; (iii)
commercial paper with a maturity of 180 days or less issued by a corporation
(except an Affiliate of the Company) organized under the laws of any state of
the United States of America or the District of Columbia and rated at least A-1
by S&P or at least P-1 by Xxxxx'x; (iv) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within one year from the date of acquisition:
provided that the terms of such agreements comply with the guidelines set forth
in the United States Federal Financial Agreements of Depositary Institutions
with Securities Dealers and Others, as adopted by the United States Comptroller
of the Currency; (v) Argentine peso deposits in any of the ten largest banks
(based on assets as of the prior year end) organized under the law of Argentina;
(vi) time deposits with financial institutions having a combined capital and
surplus
3
of at least U.S.$50,000,000; (vii) investments in money market funds all of the
assets of which consist of securities of the types described in the foregoing
clauses (i) through (vi); and (viii) marketable debt or equity securities, held
for not more than 15 days, that are directly or indirectly listed on any United
States stock exchange or quotation system.
"Certificated Debt Securities" means certificated Debt
Securities in fully-registered definitive form.
"Clearstream, Luxembourg" means Clearstream Banking, societe
anonyme or the successor to its securities clearance and settlement operations.
"CNV" means the Comision Nacional de Valores of Argentina.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" with respect to any Person organized under the
laws of Argentina means acciones ordinarias of such Person and with respect to
any other Person, means such class of shares, quotas or other equity interests
as constitute the common equity capital of such Person, regardless of how such
claims may be denominated.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
such successor.
"Company Certificate" means, with respect to any Person, a
certificate signed by two or more Directors or two or more Officers or a
combination of Director(s) and Officer(s) of such Person appearing in an
incumbency certificate provided to the Trustee.
"Company Order" means a written order or request signed in the
name of the Company by its Chairman or Vice Chairman, and by another Officer,
and delivered to the Trustee.
"Concession" means the concession granted by Argentina to the
Company for the upgrade and operation of the Acceso Norte-City of Buenos Aires
toll highway in accordance with the provisions of Argentine Law No. 17,520, as
amended by Argentine Law No. 23,696 and Resolution No. 1485/92 of the Ministry
of Economy and Public Works and Services of Argentina and implemented through
the Concession Agreement dated September 27, 1993 between the Ministry of
Economy and Public Works and Services of Argentina on behalf of Argentina and
the shareholders of the Company, which was ratified by the Company on May 26,
1994 and further approved by the Republic of Argentina pursuant to Decree No.
1,167/94, as further amended.
"Concession Redemption" means the Company ceases to be the
holder of the Concession or the Concession ceases to be in full force and
effect.
"Construction Contract" means the "Contrato de Locacion de
Obra" dated April 30, 1997 among the Company and the Consortium then consisting
of Iglys S.A., IECSA S.A., Dragados Obras y Proyectos S.A. and Dycasa Sociedad
Anonima and the termination agreement entered into among the Company and the
Consortium on November 12, 2002, and any amendment or renewal thereof entered
into from time to time, pursuant to which (a) remaining
4
obligations of the Company and the Consortium under the Contrato de Locacion de
Obra were cancelled and (b) unpaid amounts owed by the Company to the Consortium
under the Contrato de Locacion de Obra and to be paid to the Consortium pursuant
to the termination agreement were established.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered.
"Currency Agreement" means, in respect of a Person, any
foreign exchange contract, currency swap agreement, currency option or other
similar financial agreement or arrangement to which such Person is a party or a
beneficiary.
"Current Ratio" means, at any time, the ratio of current
assets to current liabilities of any Person, as measured in accordance with
Argentine GAAP, based on such Person's most recently published quarterly
financial statements.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Debt Securities" has the meaning specified in the recitals of
the Company of this Indenture.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means, with respect to Debt Securities issued in
the form of one or more Global Debt Securities, The Depository Trust Company or
another Person designated as depositary by the Company, which must be a clearing
agency registered under the Exchange Act.
"Director" means a Person duly appointed as a member of the
Board of Directors of the Company.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable), or upon the happening of any
event, carries the right to any mandatory dividend or distribution payment
(other than a right that is expressly subject to compliance by the Company with
its obligations under this Indenture), matures or is mandatorily redeemable, in
whole or in part, pursuant to a sinking fund obligation or otherwise, is
exchangeable for Indebtedness, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the Maturity Date.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"Fair Market Value" or "Fair Value" means, with respect to any
asset or property, the price which could be negotiated in an arm's length
transaction, for cash, between a willing
5
seller and a willing buyer, neither of whom is related to the other or is under
undue pressure or compulsion to complete the transaction. Fair Market Value
shall be determined by the Board of Directors of the Company acting in good
faith and shall be evidenced by a Board Resolution.
"Global Debt Security" means a Debt Security evidencing all or
a part of the Debt Securities of any series, issued to the Depositary or its
nominee in accordance with Section 2.03 and bearing the legend prescribed in
Exhibit B.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means the registered holder of one or more series of
Debt Securities acting separately with respect to each such series of Debt
Securities.
"Indebtedness" means, with respect to any Person, (i) any
liability, contingent or otherwise, of such Person (a) for money borrowed or
raised (whether or not the recourse of the lender is to the whole of the assets
of such Person or only to a portion thereof), (b) evidenced by a note, debenture
or similar instrument or letters of credit (including a purchase money
obligation or other obligation relating to the deferred purchase price of
property), or (c) any amount appearing on such Person's balance sheet as a
liability for a Capitalized Lease Obligation; (ii) any obligation of others of
the kind described in the preceding clause (i) which such Person has guaranteed
or which is otherwise its legal liability; (iii) any obligation secured by a
Lien to which the property or assets of such Person are subject, whether or not
the obligations secured thereby shall have been assumed by or shall otherwise be
such Person's legal liability; and (iv) any and all deferrals, renewals,
extensions and refundings of, or amendments, modifications or supplements to,
any liability of the kind described in any of the preceding clause (i), (ii) or
(iii).
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Installment Payment Date" means, with respect to Debt
Securities of any series the dates (other than the Maturity Date) on which
payments of principal are due on the Debt Securities of such series.
"Interest Payment Date" means, with respect to Debt
Securities, the Stated Maturity of an installment of interest on Debt Securities
of such series.
"Interest Rate Agreement" means, with respect to any Person,
any interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement or other financial agreement or arrangement designed to protect
such Person against fluctuations in interest rates with respect to Indebtedness
of such Person.
"Investment" means, with respect to any Person, a direct or
indirect loan or other extension of credit or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), or any purchase or acquisition by
such Person of any Capital Stock, bonds, notes, debentures or other securities
or evidences of Indebtedness issued by, any other Person; provided that no
Person
6
shall be deemed to have made an Investment if the only thing of value
tendered by such Person in the applicable transaction is Capital Stock (other
than Disqualified Stock) of such Person.
"Issue Date" means, with respect to Debt Securities of any
series, the original date of issuance and purchase of the Debt Securities of
such series as specified in or pursuant to the relevant Board Resolution,
Company Certificate or indenture supplemental hereto with respect thereto.
"Leverage Ratio" means, with respect to any Person, at any
time, the ratio of the Total Indebtedness of such Person to the Net Worth of
such Person, as measured in accordance with Argentine GAAP based on such
Person's most recently published quarterly financial statements.
"Lien" means, with respect to any Person, any mortgage, deed
of trust, pledge, lien, lease, encumbrance, easement, restriction, covenant,
right-of-way, charge or adverse claim affecting title or resulting in an
encumbrance against real or personal (tangible or intangible) property or any
interest therein of such Person, or a security interest of any kind, including,
without limitation, any conditional sale or other title retention agreement, any
lease in the nature thereof, any option, right of first refusal or other similar
agreement to sell, in each case securing obligations of such Person, and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code or the applicable Argentine law of any jurisdiction other than
to reflect ownership by a third party of property leased to such Person or any
of its subsidiaries under a lease that is not in the nature of a conditional
sale or title retention agreement.
"Management Agreement" means the agreement dated April 1,
1997, as amended, as in effect on the Issue Date among the Company and the
Consortium then consisting of Impregilo International Infraestructures N.V.,
Iglys S.A., Grupo Dragados S.A., Dycasa Sociedad Anonima and Sideco Americana
S.A., and any amendment or renewal thereof entered into from time to time.
"Maturity Date" when used with respect to Debt Securities of
any series, means the date on which the principal of the Debt Securities of such
series becomes due and payable as therein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise, as
specified in or pursuant to the relevant Board Resolution, the Company
Certificate or the indenture supplemental hereto with respect thereto.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Negotiable Obligations Law" means the Negotiable Obligations
Law of Argentina, Law No. 23,576 as amended by Law No. 23,962.
"Net Proceeds" means (i) in the case of any sale of Capital
Stock by the Company, the aggregate net proceeds received by the Company, after
payment of expenses, commissions and the like incurred in connection therewith,
whether such proceeds are in cash or in property (valued at the Fair Market
Value thereof determined at the time of receipt), and (ii) in the case of any
exchange, exercise, conversion or surrender of outstanding securities of any
kind for or into Capital Stock of the Company which does not constitute
Disqualified Stock, the net book value of such outstanding securities on the
date of such exchange, exercise, conversion or
7
surrender (plus any additional amount required to be paid by the holder to the
Company upon such exchange, exercise, conversion or surrender, less any and all
payments made to the holders, e.g., on account of fractional shares, and less
all expenses incurred by the Company in connection therewith).
"Net Worth" means, with respect to any Person at any date of
determination, the equity represented by the shares of such Person's Capital
Stock (other than Disqualified Stock) at such date, as determined in accordance
with Argentine GAAP.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S under the Securities Act.
"Officer" means, with respect to any Person, the Chairman or
Vice-Chairman of the Board of Directors, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, any Executive Vice President,
the President, any Vice President or the General Counsel of such Person.
"Opinion of Counsel" means a written opinion from legal
counsel (who may be the Company's own internal legal counsel or counsel to the
Company) which and who are reasonably acceptable to the Trustee, complying with
the requirements of Section 10.04 and Section 10.05 as they relate to the giving
of an Opinion of Counsel. The cost of obtaining such Opinion of Counsel shall be
borne by the Company and shall not be an expense of the Trustee.
"Paying Agent" has the meaning provided in Section 2.04(a),
except that for the purposes of Articles 4 and 8, the Paying Agent shall not be
the Company or any of its Affiliates.
"Permitted Affiliate Transaction" means (i) up to
U.S.$2,000,000 in any calendar year in aggregate payments (including out of
pocket costs and expenses) under the Management Agreement and/or the Technical
Assistance Contract or any amendment or renewal to either of them, and (ii) up
to U.S.$1,000,000 in any calendar year in aggregate payments under the
Construction Contract; provided that no Default with respect to the Company's
payment of principal of or interest on the Debt Securities of any series shall
have occurred and be continuing.
"Permitted Business" means the management, operation,
maintenance and improvement of toll roads in Argentina.
"Permitted Capital Expenditures" means, for any year, capital
expenditures and non-expensed maintenance and other expenses undertaken pursuant
to the Concession or any other regulatory requirements, and any additional
capital expenditures and non-expensed maintenance and other expenses undertaken
pursuant to any new concession awarded to the Company.
"Permitted Liens" means: (i) any Lien existing as of the Issue
Date; (ii) any Lien arising by reason of (a) any judgment, decree or order of
any court, so long as such Lien is being contested in good faith and any
appropriate legal proceedings which may have been duly initiated for the review
of such judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have expired,
(b) taxes or
8
other assessments, governmental charges or levies not yet delinquent or which
are being contested in good faith, (c) security for payment of workers'
compensation or other insurance or obligations arising from other social
security laws, (d) security for the performance of tenders, contracts (other
than contracts for the payment of money) or leases, (e) deposits to secure
public or statutory obligations, or in lieu of surety or appeal bonds or to
secure permitted contracts for the purchase or sale of any currency, in each
case entered into in the ordinary course of business, (f) operation of law in
favor of carriers, warehousemen, landlords, mechanics, materialmen, laborers,
employees or suppliers, incurred in the ordinary course of business for sums
which are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection thereof,
and (g) security for surety or appeal bonds; (iii) easements, rights-of-way,
zoning and similar covenants and restrictions and other similar encumbrances or
title defects which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of the
Company; (iv) leases and subleases of real property which do not interfere with
the ordinary conduct of the business of the Company, and which are made on
customary and usual terms applicable to similar properties; (v) Liens securing
Acquired Indebtedness; provided that such Liens do not extend to or cover any
property or assets of the Company other than the property or assets so acquired;
(vi) Liens securing Indebtedness which is incurred to refinance Indebtedness
which has been secured by a Lien permitted herein and is permitted to be
refinanced pursuant to Article 4; provided that such Liens do not extend to or
cover any property or assets of the Company not securing the Indebtedness so
refinanced; (vii) Liens securing Capitalized Lease Obligations, purchase money
mortgages or pledges or other purchase money Liens upon any property acquired,
constructed or improved by the Company after the Issue Date which are acquired
or held by such entity in the ordinary course of business and are securing
solely the purchase, construction or improvement price or lease rental of such
property or are Indebtedness incurred solely for the purpose of financing the
acquisition or lease of such property (but only to the extent the Indebtedness
secured by such Liens shall otherwise be permitted under the covenants set forth
in Article 4); (viii) any interest or title of a lessor or sublessor, or any
Lien in favor of a landlord, arising under any real or personal property lease
under which the Company is a lessee, sublessee or subtenant (other than any
interest, title or Lien securing any Capitalized Lease Obligation); (ix) Liens
securing Indebtedness permitted under clause (ii) of Section 4.04 and (x) other
Liens securing Indebtedness if the Indebtedness secured by the Lien, plus
Attributable Debt in connection with Sale-Leaseback Transactions permitted in
clause (a) of Section 4.06 (excluding Indebtedness secured by Liens permitted by
(i) through (vi) and (viii) and (ix) above), at the time of determination does
not exceed U.S.$5,000,000 in the aggregate.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Shareholders" means Abertis Infraestructuras S.A.,
Grupo Dragados S.A., Dycasa Sociedad Anonima and Impregilo International
Infraestructures N.V., or any of their successors.
"Private Placement Legend" means the legend in the form set
forth in Exhibit C.
9
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 10 of Regulation S-X under the Securities Act
(including, if applicable, the retirement of Indebtedness out of the Net
Proceeds of a transaction giving rise to the requirement of such pro forma
calculation), provided that such calculation may be made using Argentine GAAP
financial information.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"Record Date" for the interest payable on any Interest Payment
Date on the Debt Securities of or within any series means the date specified for
that purpose as contemplated by Section 2.02.
"Redemption Date," when used with respect to any Debt
Security, means the date fixed by the Company for such redemption on which such
Debt Security is to be redeemed in whole or in part, pursuant to this Indenture
and such Debt Security.
"Redemption Price," when used with respect to any Debt
Security to be redeemed, means the price fixed for such redemption pursuant to
the terms of this Indenture and Debt Security.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Debt Security" means a Rule 144A Global Security,
or a Certificated Debt Security, which carries the Private Placement Legend.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., and its successors.
"Sale-Leaseback Transaction" means any direct or indirect
arrangement, or series of related arrangements, with any Person or to which any
Person is a party, providing for the leasing to the Company of any property for
an aggregate term exceeding three years, whether owned by the Company at the
Issue Date or later acquired, which has been or is to be sold or transferred by
the Company to such Person or to any other Person from whom funds have been or
are to be advanced by such Person on the security of such property.
"SEC" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Section 3(a)(9)" means Section 3(a)(9) under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity" means (i) with respect to the Debt
Securities of any series, the date specified in the Debt Securities of such
series as the fixed date on which the final
10
installment of principal of such security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest on the Debt
Securities of any series, the date specified in the Debt Securities of such
series as the fixed date on which such installment is due and payable.
"Subsidiary" means (i) a corporation a majority of whose
Capital Stock with voting power, under ordinary circumstances, to elect
directors is at the time directly or indirectly owned by the Company, by a
Subsidiary of the Company or by the Company and a Subsidiary of the Company or
(ii) any other Person (other than a corporation) in which the Company or a
Subsidiary of the Company, directly or indirectly, at the date of determination
thereof, has at least a majority ownership interest. On the Issue Date, the
Company will not have any Subsidiaries.
"Supervisory Committee" means, with respect to any Person, the
supervisory committee of such Person or any committee of the supervisory
committee of such Person duly authorized, with respect to any particular matter,
to exercise the power of the supervisory committee of such Person.
"Technical Assistance Contract" means the Technical Assistance
Contract, dated June 28, 2001, as in effect on the Issue Date between the
Company and Xxxxx Concesiones de Infraestructuras S.A., and any amendment or
renewal thereof entered into from time to time.
"TIA" means the Trust Indenture Act of 1939 (U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture, except as
provided in Section 10.03; provided, however, that in the event that the TIA is
amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Total Indebtedness" means, at the time of determination, an
amount equal to the aggregate amount of all Indebtedness of the Company
outstanding as of the date of determination determined in accordance with
Argentine GAAP.
"Trustee" means the party named as such in this Indenture
until a successor replaces such party in accordance with the provisions of this
Indenture, and thereafter means such successor.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters or to
whom a matter concerning this Indenture may be referred.
"United States Legal Tender" means money of the United States
that at the time of payment is legal tender for payment of public and private
debts.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Additional Amounts"........................... 4.03
"Affiliate Transaction"........................ 4.09
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Defined in
Term Section
---- -------
"Agent for Service"............................ 10.16(a)
"Agent Member"................................. 2.16(a)
"Co-Registrar"................................. 2.04(a)
"Covenant Defeasance".......................... 8.01(c)
"Defeasance"................................... 8.01(b)
"Event of Default"............................. 6.01
"Incur"........................................ 4.04(a)
"Investment Company Act"....................... 4.20
"Judgment Currency"............................ 11.17
"Permitted Indebtedness"....................... 4.04(a)
"Register"..................................... 2.04(a)
"Registrar".................................... 2.04(a)
"Regulation S Global Securities"............... 2.01(e)
"Rule 144A Global Securities".................. 2.01(d)
"Surviving Entity"............................. 5.01(b)
"Taxes" ....................................... 4.03
"United States Government Obligations"......... 8.01(d)(1)
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. (a) Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
(b) "Commission" means the SEC.
(c) "indenture securities" means any series of Debt
Securities.
(d) "indenture security holder" means a Holder.
(e) "indenture to be qualified" means this Indenture.
(f) "indenture trustee" or "institutional trustee" means the
Trustee.
(g) "obligor" on the indenture securities means the Company or
any other obligor on any series of Debt Securities.
(h) All other TIA terms used in this Indenture that are
defined by the TIA, defined by the TIA in reference to another statute or
defined by SEC rule and not otherwise defined herein have the meanings assigned
to them therein.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
12
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words in the
plural include the singular;
(d) provisions apply to successive events and transactions;
(e) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(f) unless otherwise specified herein, all accounting terms
used herein shall be interpreted and all accounting determinations hereunder
shall be made in accordance with Argentine GAAP, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
Argentine GAAP.
ARTICLE 2
THE DEBT SECURITIES
SECTION 2.01. Form and Dating. (a) Each series of Debt
Securities and the Trustee's certificate of authentication thereof shall be
substantially in the forms of Exhibit A annexed hereto, except as otherwise
established by or pursuant to a Board Resolution, a Company Certificate or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon, not
inconsistent with this Indenture, as may be required to comply with any
applicable law or rule or regulation, this Indenture, any rule of any securities
exchange on which such Debt Securities may be listed, or of any governmental
agency or any depositary thereof, and subject to the prior approval of the CNV
where applicable, or as may, consistently herewith, be determined by the
officers of the Company executing such Debt Securities, as evidenced by their
execution of such Debt Securities. If the forms of Debt Securities of any series
are established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the secretary of the
Board of Directors of the Company and delivered to the Trustee at or prior to
the delivery of the Company Certificate contemplated by Section 2.02 for the
authentication and delivery of such Debt Securities. Any portion of the text of
any Debt Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of such Debt Security. The Company shall approve
the form of each series of Debt Securities and any notation, legend or
endorsement on them. Each Debt Security shall be dated the date of its issuance
and shall show the date of its authentication.
(b) The terms and provisions contained in the forms of Debt
Securities annexed hereto as Exhibit A shall constitute, and are hereby
expressly made, a part of this Indenture.
(c) Unless otherwise specified pursuant to Section 2.02, Debt
Securities of any series shall be issuable only in registered form without
coupons and only in denominations of U.S.$1.00 principal amount and any integral
multiple thereof.
13
(d) Unless otherwise specified pursuant to Section 2.02, Debt
Securities of any series originally offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more permanent Global Debt
Securities ("Rule 144A Global Securities") in registered form, substantially in
the form set forth in Exhibit A, deposited with the Trustee, as custodian for
the Depositary and shall bear the legends set forth in Exhibits B and C. The
aggregate principal amount of any Global Debt Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, as hereinafter provided.
(e) Unless otherwise specified pursuant to Section 2.02, Debt
Securities of any series originally offered and sold in offshore transactions in
reliance on Regulation S or originally sold pursuant to the exemption from
registration in Section 3(a)(9) shall be issued in the form of one or more
permanent Global Debt Securities ("Regulation S Global Securities") in
registered form, substantially in the form set forth in Exhibit A, deposited
with the Trustee, as custodian for the Depositary and shall bear the legends set
forth in Exhibit B.
(f) Unless otherwise specified pursuant to Section 2.02, Debt
Securities of any series originally offered and sold in reliance on the
exemption from registration in Section 4(2) of the Securities Act to persons who
are not "Qualified Institutional Buyers" as defined in Rule 144A shall be issued
in the form of one or more Certificated Debt Securities in registered form,
substantially in the form set forth in Exhibit A and shall bear the legend set
forth in Exhibit C. Upon such issuance, the Registrar shall register such
Certificated Debt Security in the name of the owner and deliver the certificates
for such Certificated Debt Securities to such owner.
(g) The Regulation S Global Securities and the Rule 144A
Global Securities of any series will be exchangeable or transferable for
Certificated Debt Securities only if (i) the Depositary notifies the Company
that it is unwilling or unable to continue as depositary for such Global Debt
Securities or the Depositary ceases to be a "Clearing Agency" registered under
the Exchange Act, and a successor depositary is not appointed by the Company
within 90 days, or (ii) an Event of Default has occurred and is continuing in
respect of Debt Securities of such series and Holders who hold more than 25% in
aggregate principal amount of the Debt Securities of such series at the time
outstanding represented by Global Debt Securities advise the Trustee through the
Depositary in writing that the continuation of a book-entry system through the
Depositary (or a successor thereto) with respect to the Global Debt Securities
is no longer required. Upon the occurrence of any of the events described in the
preceding sentence, the Company will cause the appropriate Certificated Debt
Securities to be delivered. In the case of Certificated Debt Securities issued
in exchange for the Rule 144A Global Securities, such Certificated Debt
Securities shall bear the legend set forth in Exhibit C. Upon the registration
of transfer, exchange or replacement of Debt Securities bearing the legend set
forth in Exhibit C, or upon specific request for removal of such legend, the
Company shall deliver only Debt Securities that bear such legend, or shall
refuse to remove such legend, as the case may be, unless there is delivered to
the Company and the Trustee a certificate in the form of Exhibit D or Exhibit G,
together with such satisfactory evidence as may reasonably be required by the
Company, which may include an opinion of United States counsel acceptable to the
Trustee, that neither the legend nor the restrictions on transfer set forth
therein are required to ensure compliance with the provisions of the Securities
Act.
14
SECTION 2.02. Aggregate Principal Amount; Title and Terms.
(a) The aggregate principal amount of Debt Securities that may
be authenticated and delivered under this Indenture is unlimited.
(b) The Debt Securities may be issued in one or more series.
Prior to the issuance of Debt Securities of any series, there shall be (i)
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions, (ii) subject to Section 2.01, set forth in, or
determined in the manner provided in, a Company Certificate, or (iii) if the
Debt Securities to be issued are of a series not theretofore created,
established in one or more indentures supplemental hereto, any or all of the
following, as applicable (each of which, if so provided, may be determined from
time to time by the Company with respect to unissued Debt Securities of the
series and set forth in such Debt Securities of the series when issued from time
to time):
(i) the form, if other than as determined pursuant to
Section 2.01 hereof, and title of the Debt Securities of the series
(which shall distinguish the Debt Securities of the series from all
other series of Debt Securities);
(ii) the coin or currency (including composite currency)
in which the Debt Securities of any series shall be denominated and
payable, and any limit upon the aggregate principal amount of the Debt
Securities of the series that may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Debt Securities of the series pursuant to Section, 2.07, 2.10 or
2.16);
(iii) the date or dates, or the method by which such date
or dates will be determined or extended, on which the principal of the
Debt Securities of the series is payable;
(iv) the rate or rates (which may be fixed or variable) at
which the Debt Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or
dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment Dates on
which such interest shall be payable and the Record Dates, if any, for
the interest payable on any Debt Security on any Interest Payment Date,
or the method by which such date or dates shall be determined, and the
basis upon which interest shall be calculated;
(v) the place or places, if any, other than the location
specified in Section 2.04, where the principal of (and premium, if any,
on) and any interest on Debt Securities of the series shall be payable
or the method of such payment, if by wire transfer, mail or other means
(other than as specified in Section 2.04), any Debt Securities of the
series may be surrendered for registration of transfer, where Debt
Securities of the series may be surrendered for conversion or exchange
and, if different than the location specified in Section 10.01, the
place or places where notices or demands to or upon the Company in
respect of the Debt Securities of the series and this Indenture may be
served;
15
(vi) the period or periods within which, the price or
prices at which, the currency in which, and other terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or
in part, at the option of the Company, if the Company is to have that
option, pursuant to any sinking fund or otherwise;
(vii) the right, if any, of the Company to redeem the Debt
Securities of any series and the obligation, if any, of the Company to
redeem, repurchase or repay the Debt Securities of any series at the
option of the Holder thereof and the price or prices at which, the
period or periods within which and other terms and conditions upon
which the Debt Securities of any series may or shall be redeemed,
repurchased or repaid, in whole or in part, pursuant to such right or
obligation, if other than as contemplated herein;
(viii) if applicable, whether the Debt Securities of the
series will become convertible into or exchangeable for other of the
Company's securities, and if so, the terms of conversion or exchange;
(ix) the denominations in which any Debt Securities of the
series shall be issuable if other than specified herein;
(x) the identity of the trustee for such Debt Securities
and, if other than the Trustee, the identity of each Registrar and/or
Paying Agent, any qualifications of the trustee or any co-trustee with
respect to the Debt Securities of the series in addition to the
qualifications otherwise specified in this Indenture and any
obligations or duties of the trustee or any co-trustee with respect to
the Debt Securities of the series in addition to the obligations and
duties otherwise specified in this Indenture;
(xi) the percentage of the principal amount at which such
Debt Securities will be issued and, if other than the principal amount
thereof, the portion of the principal amount of Debt Securities of the
series that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 6.02 or the method by which such
portion shall be determined;
(xii) whether the amount of payments of principal of (and
premium, if any, on) or interest on the Debt Securities of the series
may be determined with reference to an index, formula or other method,
and the manner in which such amounts shall be determined;
(xiii) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to Debt
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Defaults or covenants set
forth herein;
(xiv) the form of Debt Securities of the series (global or
certificated and registered or bearer) and in the case of a global
bond, the Depositary of such global security;
(xv) the Person to whom any interest on any Registered
Debt Security of the series shall be payable, if other than the Person
in whose name such Debt Security is
16
registered at the close of business on the Record Date for such
interest, and the extent to which, or the manner in which, any interest
payable on a temporary Global Debt Security on an Interest Payment Date
will be paid if other than in the manner provided in Section 2.04;
(xvi) whether and under what circumstances the Company will
pay Additional Amounts as contemplated by Section 4.03 on the Debt
Securities of the series to any Holder in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Debt Securities rather than pay such
Additional Amounts (and the terms of any such option), in each case,
other than in the manner provided in Section 4.03 and in Section 3.01;
and
(xvii) any other terms, conditions, rights and preferences
(or limitations on such rights and preferences) relating to Debt
Securities of the series (which terms shall not be inconsistent with
the requirements of the TIA or the provisions of this Indenture).
(c) Not all Debt Securities of any one series need be issued
at the same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Debt Securities of such series.
(d) Unless otherwise specified in the indenture supplement
pursuant to which the Debt Securities of a series are established, the Debt
Securities shall be subject to redemption for tax and other reasons as provided
in Article 3, and shall be subject to defeasance at the option of the Company as
provided in Article 8.
SECTION 2.03. Execution and Authentication. (a) A Director and
a member of the Supervisory Committee of the Company shall sign Debt Securities
of any series for the Company by facsimile or manual signature. If a Person
whose signature is on a Debt Security as an Officer or a Director no longer
holds that office at the time the Trustee authenticates the Debt Security, the
Debt Security shall be valid nevertheless.
(b) A Debt Security shall not be valid until the Trustee
manually signs the certificate of authentication on the Debt Security. The
signature shall be conclusive evidence that the Debt Security has been
authenticated under this Indenture.
(c) The Trustee shall authenticate Debt Securities for
original issue upon written order of the Company signed by an Officer of the
Company. The order shall specify the amount of Debt Securities to be
authenticated, the date on which the issue of Debt Securities is to be
authenticated and to whom such Debt Securities are to be delivered.
SECTION 2.04. Registrar and Paying Agent. (a) The Company
shall maintain an office or agency where Debt Securities may be presented for
registration of transfer or for exchange in Argentina ("Registrar") and at least
one additional such office (the "Co-Registrar") in New York, New York and
offices or agencies where Debt Securities may be presented for payment (each, a
"Paying Agent"). The Company shall at all times maintain at least one Paying
Agent in Buenos Aires, Argentina and at least one Paying Agent in New York, New
York. The Registrar shall keep a register of the Debt Securities and of their
ownership, transfer and exchange (the "Register"). The Company may have one or
more additional Co-
17
Registrars and one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. The Company may change the Principal
Paying Agent, any Paying Agent, Transfer Agent, Registrar or Co-Registrar;
provided that the Company shall promptly give notice to the Holders of any such
change (i) by mailing such notice to the Holder's address as it appears on the
Register maintained by the Registrar with a copy mailed to the Trustee and (ii)
by publication, but only to the extent required under applicable Argentine law,
in accordance with Section 10.02 hereof.
(b) The Register shall be in written form in the Spanish
language or in any other form capable of being converted into such form within a
reasonable time. Each Co-Registrar shall keep a true and accurate duplicate of
the Register in the English language and the Registrar may enter into an
appropriate agreement with each Co-Registrar for coordination of their duties
hereunder.
(c) The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall give prompt written notice to the Trustee of the name and address
of any such Agent and any change in the address of such Agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation in accordance with Section 7.07.
(d) The Company initially appoints JPMorgan Chase Bank as
Registrar and as Transfer and Paying Agent, and as representative of the Trustee
in Argentina and the Trustee as Co-Registrar and as Principal Paying Agent.
Except as otherwise provided in this Indenture, the Company may act as Registrar
and/or Paying Agent.
SECTION 2.05. Paying Agent to Hold Money and Assets in Trust;
Payments Considered Paid. (a) The Company shall require each Paying Agent
appointed pursuant to the terms hereof but not a party to this Indenture to
agree in writing that such Paying Agent agrees to each and every term set forth
herein with respect to Paying Agents and shall hold in trust for the benefit of
Holders and the Trustee all money and assets held by the Paying Agent for the
payment of principal of or interest on the Debt Securities of any series
(whether such money or assets have been paid to it by the Company or any other
obligor on the Debt Securities of such series), and the Company and the Paying
Agent shall notify the Trustee in writing of any default by the Company (or any
other obligor on the Debt Securities of such series) in making any such payment.
If the Company acts as Paying Agent, it shall segregate the money and assets and
hold them as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money and assets held by it to the Trustee and account for any
funds disbursed, and the Trustee may at any time during the continuance of any
default in the payment of principal of or interest on the Debt Securities of
such series pursuant to Section 6.01(a) and (b), upon written request to a
Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent
shall have no further liability for the money so paid over to the Trustee.
(b) Notwithstanding any provision herein to the contrary, an
installment (including, without limitation, any redemption of Debt Securities of
any series pursuant to Article 3) of principal of or interest on Debt Securities
of any series shall be considered paid on the date due if the Trustee or Paying
Agent (other than the Company or Affiliate of the
18
Company) holds on that date money in immediately available funds designated for
and sufficient to pay the installment and provided that the Trustee or Paying
Agent is not legally prohibited from making any payment of such installment on
Debt Securities of such series.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. The Company shall not have any
responsibility for the accuracy of such list. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee on or before the Record Date
preceding each Interest Payment Date and in the case of a Installment Payment
Date, 15 days prior to such Installment Payment Date and at such other times as
the Trustee may reasonably request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders.
SECTION 2.07. Replacement Debt Security. If a mutilated Debt
Security is surrendered to the Trustee or if the Company and the Trustee receive
an affidavit of the Holder or other evidence to their satisfaction that a Debt
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Debt Security of the same
series. If required by the Trustee or the Company, an indemnity bond sufficient
in the judgment of both to protect the Company, the Trustee and any Agent from
any loss which any of them may suffer if a Debt Security is replaced must be
delivered. The Company and the Trustee may charge such Holder for their
reasonable expenses directly related to replacing a Debt Security. Every
replacement Debt Security is an additional obligation of the Company and shall
be entitled to the benefits of this Indenture.
SECTION 2.08. Outstanding Debt Securities. (a) The Debt
Securities of any series outstanding at any time shall be all Debt Securities of
such series that have been authenticated by the Trustee, except for those Debt
Securities of such series cancelled by it, those delivered to it for
cancellation and those described in this Section 2.08 as not outstanding. A Debt
Security does not cease to be outstanding because the Company or one of the
Company's Affiliates holds such Debt Security, except as set forth in this
Section 2.08.
(b) If a Debt Security is replaced pursuant to Section 2.07,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Debt Security is held by a protected purchaser.
(c) If the Paying Agent (other than the Company or an
Affiliate of the Company) holds, on a Redemption Date or maturity date, money
sufficient to pay Debt Securities of any series payable on that date and
provided that the Paying Agent is not legally prohibited from making any payment
of such installment on such Debt Securities, then on and after that date such
Debt Securities cease to be outstanding, and interest on them ceases to accrue.
SECTION 2.09. Treasury Debt Securities. In determining whether
the Holders of the required principal amount of Debt Securities of a series have
concurred in any direction, amendment, supplement, waiver or consent, Debt
Securities of such series owned by the Company or an Affiliate of the Company
shall be deemed not to be outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, amendment, supplement, waiver or consent, only Debt Securities of
such series which a Trust Officer knows are so owned shall be so deemed not to
be outstanding. The Company
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shall notify the Trustee, in writing, when it or any of its Affiliates
repurchases or otherwise acquires Debt Securities, of the aggregate principal
amount of such Debt Securities so repurchased or otherwise acquired.
SECTION 2.10. Temporary Debt Securities. Until definitive Debt
Securities of any series are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Debt Securities. Temporary Debt Securities
shall be substantially in the form of definitive Debt Securities but may have
variations that the Company considers appropriate for temporary Debt Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Debt Securities in exchange for temporary Debt
Securities. Until such exchange, such temporary Debt Securities of the series
for which they are issued shall be entitled to the same rights, benefits and
privileges as the definitive Debt Securities of the series for which they are
issued.
SECTION 2.11. Cancellation. The Company at any time may
deliver Debt Securities to the Trustee for cancellation. Each of the Registrar,
the Co-Registrar and any Paying Agent shall cancel and forward to the Trustee
any Debt Securities surrendered to it for transfer, exchange, redemption or
payment. Unless otherwise instructed by the Company, the Trustee may destroy
cancelled Debt Securities in accordance with its customary procedures and
deliver a certificate of destruction to the Company. The Company may not issue
new Debt Securities to replace Debt Securities it has paid or delivered to the
Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults in a
payment of interest on the Debt Securities of any series, it shall pay the
Default Interest (including, to the extent permitted by law, Accrued Bankruptcy
Interest), plus, to the extent permitted by law, any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. Such record date shall be the fifteenth calendar day next preceding
the date fixed by the Company for the payment of defaulted interest, whether or
not such day is a Business Day. At least 15 days before the subsequent special
record date, the Company shall mail (or cause to be mailed) to each of the
Holders a notice that states the record date, the payment date and the amount of
defaulted interest to be paid. Notwithstanding the foregoing, any interest which
is paid prior to the expiration of the 30-day period set forth in Section
6.01(a) shall be paid to Holders as of the regular record date for the Interest
Payment Date for which interest has not been paid. Notwithstanding the
foregoing, the Company may make payment of any defaulted interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debt Securities of such series may be listed, and upon such notice
as may be required by such exchange.
SECTION 2.13. Deposit of Moneys. Prior to 12:00 Noon, New York
City time, on the Business Day immediately preceding each Interest Payment Date,
Principal Payment Date and other date on which amounts shall be due and payable
hereunder, the Company shall have deposited with the Trustee as Principal Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such date, in a timely manner which permits the Trustee to remit
payment to the Holders on such date. The principal and interest on Global Debt
Securities shall be payable to the Depositary or its nominee, as the case may
be, as the sole registered owner and the sole holder of the Global Debt
Securities of such series represented thereby. The principal and interest on
Certificated Debt Securities of any series shall be payable in the manner set
forth in such Debt Securities.
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SECTION 2.14. CUSIP Number. The Company in issuing the Debt
Securities of any series may use a "CUSIP" number(s), and if so, the Trustee
shall use the CUSIP number(s) in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number(s)
printed in the notice or on the Debt Securities of such series and that reliance
may be placed only on the other identification numbers printed on the Debt
Securities of such series.
SECTION 2.15. Registration, Registration of Transfer and
Exchange. (a) When Certificated Debt Securities of any series are presented to
the Registrar or Co-Registrar with a request from the Holder of Debt Securities
of such series to register the transfer or to exchange them for an equal
principal amount of Debt Securities of such series of other authorized
denominations, the Registrar or Co-Registrar, as the case may be, shall register
the transfer or make the exchange as requested; provided that every Debt
Security presented and surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and any certifications required hereunder, duly
executed by the Holder thereof or the Holder's attorneys duly authorized in
writing.
(b) To permit registrations of transfers and exchanges, the
Company shall issue and execute, and the Trustee shall authenticate new Debt
Securities of any series evidencing such transfer or exchange at the Registrar's
or Co-Registrar's written request. No service charge shall be made to the Holder
for any registration of transfer or exchange, but the Company or the Trustee may
require from the transferring or exchanging Holder payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charges
payable upon exchanges pursuant to Section 2.07 or 2.10 and exchanges in respect
of portions of Debt Securities of such series not redeemed pursuant to Section
3.06).
(c) The Company shall not be required to register the transfer
of or to exchange Debt Securities of any series during a period beginning at the
opening of business on 15 days before the day of mailing of notice of redemption
of Debt Securities of such series under Section 3.03 hereof or to register the
transfer of or exchange any Debt Security of such series so selected for
redemption in whole or in part.
SECTION 2.16. Book-Entry Provisions for Global Debt
Securities; Transfer and Exchange of Global Debt Securities and Certificated
Debt Securities. (a) Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Debt Securities of any series held on their behalf by the Depositary, or the
Trustee as its custodian, or under the Global Debt Securities of such series,
and the Depositary or its nominee, as the case may be, may be treated by the
Company, the Trustee and any Agent of the Company or the Trustee as the absolute
owner of the Global Debt Securities of such series for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any Agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any Debt
Security.
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(b) Transfers of any Global Debt Security shall be limited to
transfers in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests (or portions thereof) of beneficial owners in any
Global Debt Security may be transferred or exchanged for beneficial interests in
a Global Debt Security in accordance with the rules and procedures of the
Depositary and the provisions of this Section 2.16 and Section 2.17. In
addition, a Certificated Debt Security shall be transferred to all beneficial
owners in exchange for their beneficial interests in Global Debt Security only
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Debt Security or the Depositary ceases to
be a "Clearing Agency" under the Exchange Act, and a successor depositary is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and with respect to such Debt Securities
of any series and Holders who hold more than 25% in aggregate principal amount
of the Debt Securities of such series at the time outstanding represented by the
Global Debt Securities of any series advise the Trustee through the Depositary
in writing that the continuation of a book-entry system through the Depositary
(or a successor thereto) with respect to the Global Debt Securities of such
series is no longer required.
(c) In connection with any transfer or exchange of a
beneficial interest or a portion of the beneficial interest in any Global Debt
Securities to beneficial owners pursuant to subsection (b), the Registrar shall
(if one or more Certificated Debt Securities are to be issued) reflect on its
books and records the date and a decrease in the principal amount of the Global
Debt Security in an amount equal to the principal amount of the beneficial
interest in the Global Debt Security to be transferred or exchanged, and the
Company shall authenticate and deliver, one or more Certificated Debt Securities
of like amount.
(d) In connection with the transfer of any Global Debt
Security as an entirety to beneficial owners pursuant to subsection (b), any
Global Debt Security shall be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in writing in exchange for
its beneficial interest in such Global Debt Security, an equal aggregate
principal amount of Certificated Debt Securities of such series of authorized
denominations. The principal amount of Certificated Debt Securities of such
series to which any beneficial owner shall be entitled shall be identified to
the Trustee or the transfer agent, as the case may be, by the Depositary in
writing.
(e) Any Certificated Debt Security delivered in exchange for
an interest in a Rule 144A Global Security pursuant to subsection (b) shall bear
the legend regarding transfer restrictions applicable to such securities set
forth in Exhibit C.
(f) The Holder of any Global Debt Security may grant proxies
and otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Debt Securities of such series.
(g) Notwithstanding any other provisions of this Indenture or
of the Debt Securities, transfers of a Certificated Debt Security or interests
in a Global Debt Security of such series shall be made only in accordance with
this subsection (g). The provisions of this subsection (g) providing for
transfers of Certificated Debt Securities or beneficial interests in
22
Global Debt Securities to Persons who wish to take delivery in the form of
beneficial interests in a Rule 144A Global Security or Regulation S Global
Security shall only apply if there is a Rule 144A Global Security or Regulation
S Global Security, as the case may be.
(1) Transfer of Global Debt Security. A Global Debt
Security may not be transferred, in whole or in part, to any Person
other than the Depositary or a nominee thereof, and no such transfer to
any such Person may be registered; provided that this paragraph (1)
shall not prohibit any transfer of a Debt Security that is issued in
exchange for a Global Debt Security but is not itself a Global Debt
Security. No transfer of a Debt Security to any Person shall be
effective under this Indenture or the Debt Security unless and until
the Debt Securities of such series have been registered in the name of
such Person. Nothing in this Section 2.16 shall prohibit or render
ineffective any transfer of a beneficial interest in a Global Debt
Security effected in accordance with the other provisions of this
Section 2.16(g).
(2) Rule 144A Global Security to Regulation S Global
Security. If an owner of an interest in the Rule 144A Global Security
wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of an interest in the Regulation S
Global Security, such owner may, subject to the Applicable Procedures
and to the requirements of this Section 2.16, exchange or transfer or
cause the exchange or transfer of such interest for an equivalent
beneficial interest in such Regulation S Global Security. Upon receipt
by the Trustee, as Transfer Agent, at its office in The City of New
York of (i) instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Trustee to credit or
cause to be credited a beneficial interest in such Regulation S Global
Security in an amount equal to the interest in the Rule 144A Global
Security to be transferred, (ii) a written order given in accordance
with the Applicable Procedures containing information regarding the
Depositary account to be credited with such increase and (iii) a
certificate of the transferor substantially in the form of Exhibit D
hereto, the Trustee, as Transfer Agent, shall instruct the Depositary
or its nominee to increase or reflect on its records an increase in the
aggregate amount represented by the Regulation S Global Security by the
aggregate amount of such interest in the Rule 144A Global Security, to
decrease or reflect on its records a decrease in the aggregate amount
represented by the interest in the Rule 144A Global Security being
transferred and to credit or cause to be credited to the account of the
person specified in such instructions a beneficial interest in such
Regulation S Global Security equal to the interest in the Rule 144A
Global Security so transferred.
(3) Regulation S Global Security to Rule 144A Global
Security. If an owner of an interest in a Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of an interest in a Rule 144A Global
Security, such owner may, subject to the Applicable Procedures and to
the requirements of this Section 2.16, exchange or transfer or cause
the exchange or transfer of such interest for an equivalent beneficial
interest in the Rule 144A Global Security. Upon receipt by the Trustee,
as Transfer Agent, at its office in The City of New York of (i)
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Trustee to credit or cause to be credited a
beneficial interest in the Rule 144A Global Security in an amount equal
to the interest in the Regulation S Global Security to be transferred,
(ii) a written order given in accordance with the
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Applicable Procedures containing information regarding the Depositary
account to be credited with such increase, and (iii) a certificate of
the transferor substantially in the form of Exhibit E hereto, the
Trustee, as Transfer Agent, shall instruct the Depositary or its
nominee to increase or reflect on its records an increase in the
aggregate amount represented by the Rule 144A Global Security by the
aggregate amount of such interest in a Regulation S Global Security, to
decrease or reflect on its records a decrease in the aggregate amount
represented by the interest in the Regulation S Global Security being
transferred and to credit or cause to be credited to the account of the
person specified in such instructions a beneficial interest in such
Rule 144A Global Security equal to the interest in the Regulation S
Global Security so transferred.
(4) Certificated Debt Security to Rule 144A Global
Security. If an owner of a Certificated Debt Security wishes at any
time to transfer such Security (or any portion thereof) to a Person who
wishes to take delivery thereof in the form of an interest in a Rule
144A Global Security, such owner may, subject to the Applicable
Procedures and to the requirements of Section 2.15 and this Section
2.16, exchange or transfer or cause the exchange or transfer of such
interest for an equivalent beneficial interest in the Rule 144A Global
Security. Upon receipt by the Trustee, as Transfer Agent, at its office
in The City of New York of (i) the Certificated Debt Security, duly
endorsed as provided in Section 2.15, (ii) instructions from the owner
of the Certificated Debt Security directing the Registrar to credit or
cause to be credited a beneficial interest in the Rule 144A Global
Security equal to the principal amount (or portion thereof) of such
Certificated Debt Security to be transferred, and, if the entire
principal amount of such Certificated Debt Security is not being
transferred to issue one or more Certificated Debt Securities to the
transferor in an amount equal to the principal amount not transferred,
and (iii) a certificate of the transferor substantially in the form of
Exhibit F hereto, the Trustee, as Transfer Agent, shall cancel the
Certificated Debt Security delivered to it, instruct the Depositary or
its nominee to increase or reflect on its records an increase in the
aggregate amount represented by the Rule 144A Global Security in
accordance with the foregoing, credit or cause to be credited to the
account of the person specified in such instructions a beneficial
interest in such Rule 144A Global Security equal to the interest in the
Certificated Debt Security so transferred and, if applicable, issue to
the Certificated Debt Security transferor one or more Certificated Debt
Securities in accordance with the foregoing.
(5) Certificated Debt Security to Regulation S Global
Security. If an owner of a Certificated Debt Security wishes at any
time to transfer such Security (or any portion thereof) to a Person who
wishes to take delivery thereof in the form of an interest in a
Regulation S Global Security, such owner may, subject to the Applicable
Procedures and to the requirements of Section 2.15 and this Section
2.16, exchange or transfer or cause the exchange or transfer of such
interest for an equivalent beneficial interest in the Regulation S
Global Security. Upon receipt by the Trustee, as Transfer Agent, at its
office in The City of New York of (i) the Certificated Debt Security,
duly endorsed as provided in Section 2.15, (ii) instructions from the
owner of the Certificated Debt Security directing the Registrar to
credit or cause to be credited a beneficial interest in the Regulation
S Global Security equal to the principal amount (or portion thereof) of
such Certificated Debt Security to be transferred, and, if the entire
principal amount of such
24
Certificated Debt Security is not being transferred to issue one or
more Certificated Debt Securities to the transferor in an amount equal
to the principal amount not transferred, and (iii) a certificate of the
transferor substantially in the form of Exhibit G hereto, the Trustee,
as Transfer Agent, shall cancel the Certificated Debt Security
delivered to it, instruct the Depositary or its nominee to increase or
reflect on its records an increase in the aggregate amount represented
by the Regulation S Global Security in accordance with the foregoing,
credit or cause to be credited to the account of the person specified
in such instructions a beneficial interest in such Regulation S Global
Security equal to the interest in the Certificated Debt Security so
transferred and, if applicable, issue to the Certificated Debt Security
transferor one or more Certificated Debt Securities in accordance with
the foregoing.
(6) Certificated Debt Security to Certificated Debt
Security. If an owner of a Certificated Debt Security wishes at any
time to transfer such Security (or any portion thereof) to a Person who
wishes to take delivery thereof in the form of a Certificated Debt
Security, such owner may, subject to the requirements of Section 2.15
and this Section 2.16, exchange or transfer or cause the exchange or
transfer of such Security (or interest in a position thereof) for
another Certificated Debt Security. Upon receipt by the Trustee, as
Transfer Agent, at its office in The City of New York of (i) the
Certificated Debt Security, duly endorsed as provided in Section 2.15,
(ii) instructions from the owner of the Certificated Debt Security
directing the Registrar to issue one or more Certificated Debt
Securities equal to the principal amount (or portion thereof) of such
Certificated Debt Security to be transferred, and, if the entire
principal amount of such Certificated Debt Security is not being
transferred to issue one or more Certificated Debt Securities to the
transferor in an amount equal to the principal amount not transferred,
and (iii) a certificate of the transferor substantially in the form of
Exhibit H hereto, the Trustee, as Transfer Agent, shall cancel the
Certificated Debt Security delivered to it, issue to the transferee a
Certificated Debt Security equal to the Certificated Debt Security (or
portion thereof) so transferred and, if applicable, issue to the
Certificated Debt Security transferor one or more Certificated Debt
Securities in accordance with the foregoing.
SECTION 2.17. Special Transfer Provisions. (a) The Holder of a
Restricted Debt Security, by such Holder's acceptance thereof, agrees to be
bound by the restrictions on transfer provided in the legend required to be set
forth on the face of such Restricted Debt Security pursuant to Exhibit C and
Section 2.01, unless such restrictions on transfer shall be waived by the
written consent of the Company.
(b) If any Debt Security is issued upon the registration of
transfer, exchange or replacement of a Debt Security bearing a legend or legends
setting forth restrictions on transfer, or if a request is made to remove such a
legend or legends on a Debt Security, the Debt Security so issued shall bear
such legends, or such legends shall not be removed, as the case may be, unless
the transferor delivers to the Company such satisfactory evidence (which may
include an opinion of independent counsel experienced in matters of United
States securities law as may be reasonably satisfactory to the Company), as may
be reasonably required by the Company, that neither such legends nor the
restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A or Regulation S under the
Securities Act or that such Debt Security is not a "Restricted Debt Security"
within the meaning of Rule 144 under the Securities Act. Upon provision of such
satisfactory evidence to the Company, the
25
Trustee, at the written direction of the Company set forth in a Company Order,
shall authenticate and deliver a Debt Security that does not bear such legends.
In the absence of bad faith on its part, the Trustee may conclusively rely upon
such direction of the Company in authenticating and delivering a Debt Security
that does not bear such legends.
ARTICLE 3
REDEMPTION AND REPURCHASE
SECTION 3.01. Right of Redemption; Notices to Trustee. (a) (i)
Debt Securities of any series may be redeemed, at the option of the Company, as
a whole, but not in part, at any time, upon giving notice to Holders not less
than 30 days or more than 60 days prior to the date fixed for redemption (which
notice shall be irrevocable and shall be given in the manner described in
Section 10.01), at a Redemption Price equal to 100% of the principal amount
thereof, together with interest accrued to the date fixed for redemption and any
Additional Amounts, if any, payable with respect thereof, if the Company
determines and certifies to the Trustee immediately prior to the giving of such
notice that (A) it has or will become obligated to pay Additional Amounts in
respect of the Debt Securities of such series in accordance with Section 4.03 as
a result of any change in or amendment to the laws (or any regulations or
rulings promulgated thereunder) of Argentina or any political subdivision or
taxing authority thereof or therein affecting taxation or any change in the
official position regarding the application or interpretation of such laws,
regulations or rulings (including a holding by a court of competent
jurisdiction) which change, amendment, application or interpretation becomes
effective on or after the date of issuance of the Debt Securities of such
series, and (B) such obligation cannot be avoided by the Company taking
reasonable measures available to it.
(ii) No notice of redemption shall be given pursuant to
Section 3.01(a)(i) earlier than 60 days prior to the earliest date on
which the Company would be obligated to pay such Additional Amounts if
a payment in respect of the Debt Securities of such series were then
due. Prior to the giving of any notice of redemption pursuant to
Section 3.01(a)(i), the Company shall deliver to the Trustee a Company
Certificate (together with a copy of an independent Opinion of Counsel
to the effect that the Company will become obligated to pay Additional
Amounts as a result of a change, amendment, official interpretation or
application set forth in Section 3.01(a)(i)), stating that the Company
is entitled to such redemption in accordance with the terms set forth
in this Indenture and setting forth in reasonable detail a statement of
the facts relating thereto.
(b) Subject to Section 2.09, the Company may at any time
purchase Debt Securities of any series in the open market or otherwise at any
price; provided that the Debt Securities of such series are immediately
surrendered to the Trustee for cancellation.
(c) The Company may redeem all or any portion of the Debt
Securities of any series, upon the terms and at the redemption prices set forth
therein. Any redemption of the Debt Securities of any series at the election of
the Company or otherwise shall be made pursuant to the provisions of Sections
3.02 through 3.06 hereof.
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(d) If the Company elects, and is permitted by the terms
hereof, to credit against any redemption of any Debt Securities not previously
delivered to the Trustee for cancellation, it shall deliver such Debt Securities
with the notice to the Trustee.
SECTION 3.02. Selection of Debt Securities to Be Redeemed. If
less than all of the Debt Securities of any series are to be redeemed, the
Trustee shall select the Debt Securities of such series to be so redeemed in
compliance with the requirements of the principal securities exchange, if any,
on which the Debt Securities of such series are listed or, if the Debt
Securities of such series are not listed on a securities exchange, on a pro rata
basis, by lot or in such other fair and reasonable manner chosen at the sole
discretion of the Trustee.
(a) The Trustee shall make the selection from the Debt
Securities of such series outstanding and not previously called for redemption.
Debt Securities in denominations of U.S.$1.00 principal amount may be redeemed
only in whole. The Trustee may select for redemption portions (equal to
U.S.$1,000 principal amount or any integral multiple thereof) of the principal
amount of Debt Securities that have denominations larger than U.S.$1,000
principal amount. Provisions of this Indenture that apply to Debt Securities
called for redemption also apply to portions of Debt Security called for
redemption. The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Security
selected for partial redemption, the principal amount of each certificate
selected for redemption.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a Redemption Date, the Company shall give a notice of
redemption (by mail and publication) in the manner described in Section 10.01 to
each Holder whose Debt Securities are to be redeemed. Notice shall be given to
such Holders in accordance with Section 10.01; provided, however, that for so
long as such Debt Securities are represented in their entirety by Global Debt
Securities, then notice shall be given (i) by mailing such notice to such
Holder's address as it appears on the Register with a copy mailed to the Trustee
and (ii) publication, but only to the extent required under applicable Argentine
law.
(a) The notice shall identify the Debt Securities to be
redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accrued
interest, if any, to be paid;
(iii) the name and address of the Paying Agent;
(iv) that, subject to Section 2.13, such Debt Securities
called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price;
(v) that, unless the Company defaults in making the
redemption payment, interest on such Debt Securities called for
redemption will cease to accrue on and after the Redemption Date and
the only remaining right of such Holders is to receive payment
27
of the Redemption Price upon surrender to the Paying Agent of such Debt
Securities to be redeemed (subject to the first proviso of the second
sentence of Section 3.04 hereof);
(vi) if any of such Debt Securities is being redeemed in
part, the portion of the principal amount (equal to U.S.$1.00 or any
integral multiple thereof) of such Debt Security to be redeemed and
that, on and after the Redemption Date, upon surrender of such Debt
Security, a new Debt Security or Debt Securities of such series in
principal amount equal to the unredeemed portion thereof will be
issued;
(vii) the provision of such Debt Securities pursuant to
which the such Debt Securities called for redemption are being
redeemed;
(viii) the aggregate principal amount of such Debt
Securities that are being redeemed; and
(ix) Subject to Section 2.14 hereof, the CUSIP number of
such Debt Securities.
(b) At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, the Debt Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price and shall cease to
bear interest from and after the Redemption Date (unless the Company shall
default in the payment of the Redemption Price or accrued interest). Upon
surrender to the Paying Agent, such Debt Securities shall be paid at the
Redemption Price, plus accrued interest to the Redemption Date; provided that if
the Redemption Date is after a regular interest payment record date and on or
prior to the Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Debt Securities registered on the relevant record date;
and provided further that if a Redemption Date is not a Business Day, payment
shall be made on the next succeeding Business Day and no interest shall accrue
for the period from such Redemption Date to such succeeding Business Day.
SECTION 3.05. Deposit of Redemption Price. On or prior to
12:00 Noon, New York City time, on the Business Day immediately preceding each
Redemption Date, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the Redemption Price of and accrued
interest on the Debt Securities to be redeemed on that date other than those
Debt Securities or portions thereof called for redemption on that date which
have been delivered by the Company to the Trustee for cancellation.
(a) On and after any Redemption Date, if money sufficient to
pay the Redemption Price of and accrued interest on the Debt Securities called
for redemption shall have been made available in accordance with Section
3.05(a), such Debt Securities called for redemption will cease to bear interest
and the only right of the Holders of such Debt Securities will be to receive
payment of the Redemption Price of and, subject to the first proviso in Section
3.04, accrued and unpaid interest on such Debt Security. If any Debt Security
called for redemption shall not be so paid, interest will be paid from the
Redemption Date until such redemption payment is made, on the unpaid principal
amount at maturity of such Debt Security and any interest not paid on such
28
unpaid principal amount at maturity, in each case, at the rate and in the manner
provided in such Debt Securities.
SECTION 3.06. Debt Securities Redeemed in Part. Upon surrender
of a Debt Security in certificated form that is redeemed in part, the Company
shall issue and the Trustee shall authenticate a new Debt Security of the same
series equal in principal amount to the unredeemed portion of the Debt Security
surrendered. Global Debt Securities shall be marked down to reflect any
redemptions in accordance with Applicable Procedures.
SECTION 3.07. Purchase of Debt Securities by the Company. The
Company may at any time purchase Debt Securities of any series in the open
market, or by tender or private agreement at any price. Any Debt Securities so
purchased may be held for the account of the Company or may be resold by the
Company or may be delivered by the Company to the Trustee for cancellation.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Debt Securities. (a) The Company
shall pay, or cause to be paid, the principal of and interest on the Debt
Securities of any series on the dates and in the manner provided in the Debt
Securities of such series and this Indenture (including any redemption or
repurchase of Debt Securities of such series pursuant to Article 3). Principal
and interest shall be considered paid on the date due if the Trustee or Paying
Agent (other than the Company or any Affiliate of the Company) holds on that
date money in immediately available funds designated for and sufficient to pay
such principal or interest, as the case may be. The Company agrees with the
Trustee to deposit said funds with the Trustee or Paying Agent in accordance
with Sections 2.13 and 3.05 hereof.
(b) The Company shall pay interest (including Accrued
Bankruptcy Interest) on overdue principal and on overdue installments of
interest, in each case at the rate per annum specified in the particular Debt
Securities, to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency. The Company
shall maintain an office or agency where Debt Securities of any series may be
surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Company in respect of the
Debt Securities of such series and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee as set forth in
Section 10.01. The Company may also from time to time designate one or more
other offices or agencies where the Debt Securities of any series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations. The Company shall give prompt written notice to the
Trustee of such designation if different from the agencies provided for herein
or rescission and of any change in the location of any such other office or
agency. The Company hereby initially designates the Corporate Trust Office set
forth in Section 10.01 as such office of the Company.
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SECTION 4.03. Payment of Additional Amounts. All payments by
the Company in respect of any Debt Securities shall be made without withholding
or deduction for or on account of any present or future taxes, duties,
assessments or other governmental charges of whatsoever nature, including
penalties, interest and any other liabilities related thereto, imposed or levied
by or on behalf of Argentina or any political subdivision or authority thereof
or therein having power to tax ("Taxes"), unless we are compelled by law to
deduct or withhold such Taxes. In such event, the Company shall pay such
additional amounts ("Additional Amounts") as may be necessary to ensure that the
net amounts received by Holders of such Debt Securities after such withholding
or deduction of Taxes shall equal the respective amounts of principal and
interest that would have been receivable in respect of the such Debt Securities
in the absence of such withholding or deduction, except that no such Additional
Amounts shall be payable in respect of any Debt Securities (a) presented for
payment of principal more than 30 days after the later of (i) the date on which
such payment first became due and (ii) if the full amount payable has not been
received in New York City by the Trustee on or prior to such date, the date on
which, the full amount having been so received, notice to that effect shall have
been given to such Holders by the Trustee, except to the extent that such Holder
would have been entitled to such Additional Amounts on presenting such Debt
Securities for payment on the last day of the applicable 30-day period, (b) if
any Taxes are imposed or withheld by reason of the failure to comply by the
Holder or beneficial owner with a timely request of us addressed to such Holder
to provide information, documents or other evidence concerning the nationality,
residence, identity or connection with Argentina of such Holder or beneficial
owner which is required by a statute, treaty, regulation or administrative
practice of Argentina as a precondition to exemption from all or part of such
Taxes, (c) held by or on behalf of such Holder or beneficial owner who is liable
for Taxes in respect of such Debt Securities by reason of having some connection
with Argentina (or any political subdivision or authority thereof) other than
the mere purchase, holding or disposition of any such Debt Securities, or the
receipt of principal or interest in respect thereof, or (d) any combination of
(a), (b) or (c), nor shall Additional Amounts be paid with respect to any
payment of the principal of, or any interest on, any Debt Security to any Holder
who is a fiduciary or partnership or other than the sole beneficial owner of
such payment to the extent that a beneficiary or settler or beneficial owner
would not have been entitled to any Additional Amounts had such beneficiary or
settler or beneficial owner been the Holder. The Company will also (x) make such
withholding or deduction compelled by applicable law and (y) remit the full
amount deducted or withheld to the relevant authority in accordance with
applicable law. The Company will furnish copies of receipts evidencing the
payment of any Taxes so deducted or withheld to the Trustee within 60 days after
the date of such withholding or deduction. The Trustee will make such evidence
available to any Holders upon request.
SECTION 4.04. Limitation on Additional Indebtedness. (a) So
long as any of the Debt Securities of any series are outstanding, the Company
shall not create, incur, assume or issue, directly or indirectly, guarantee or
in any manner become, directly or indirectly, liable for or with respect to the
payment of ("Incur"), or suffer to exist, any Indebtedness, except for
Indebtedness falling within at least one of the following categories
(collectively, "Permitted Indebtedness"):
(i) Indebtedness under the Debt Securities of any series
and the Indenture with respect to such Debt Securities;
30
(ii) Indebtedness of the Company outstanding on the Issue
Date after giving effect to the issuance of the Debt Securities of any
series;
(iii) Acquired Indebtedness permitted to be incurred
pursuant to Article 4;
(iv) purchase money Indebtedness in an aggregate principal
amount not in excess of U.S.$1,000,000 annually;
(v) any replacements, renewals, refinancings and
extensions of the Indebtedness described in clauses (i) through (iv)
hereof; provided that any such replacement, renewal, refinancing and
extension (A) shall not provide for any mandatory redemption,
amortization or sinking fund requirement in an amount greater than or
at a time prior to the amounts and times specified in the Indebtedness
being replaced, renewed, refinanced or extended, (B) shall not exceed
the principal amount (plus accrued interest and prepayment premium, if
any) of the Indebtedness being replaced, renewed, refinanced or
extended, and (C) in the case of any Indebtedness replacing, renewing,
refinancing or extending Indebtedness which is pari passu to the Debt
Securities, any such replacing, renewing, refinancing or extending
Indebtedness is made pari passu to the Debt Securities or subordinated
to the Debt Securities, and, in the case of any Indebtedness replacing,
renewing, refinancing or extending Indebtedness is subordinated to the
Debt Securities to the same extent as the Indebtedness being replaced,
renewed, refinanced or extended; and
(vi) Indebtedness not otherwise permitted to be
incurred pursuant to clauses (i) through (v) above, which, together
with any other outstanding Indebtedness incurred pursuant to this
clause (vi), has an aggregate principal amount not in excess of
U.S.$10,000,000 at any time outstanding.
(b) The Company will not, directly or indirectly, in any event
incur any Indebtedness that by its terms (or by the terms of any agreement
governing such Indebtedness) is subordinated in right of payment to any other
Indebtedness of the Company unless such Indebtedness is also by its terms (or by
the terms of any agreement governing such Indebtedness) made expressly
subordinate in right of payment to the Debt Securities pursuant to subordination
provisions that are substantively identical to the subordination provisions of
such Indebtedness (or such agreement) that are most favorable to the holders of
any other Indebtedness of the Company (other than obligations preferred by
statute or operation of law).
SECTION 4.05. Limitation on Liens. The Company shall not
create, incur, assume or suffer to exist any Lien (other than a Permitted Lien)
of any kind upon any of its properties, assets or revenues now owned or
hereafter acquired unless the Debt Securities also are equally and ratably
secured by such Lien.
SECTION 4.06. Limitation on Sale and Leaseback Transactions.
The Company will not enter into any Sale-Leaseback Transaction unless at least
one of the following conditions is satisfied:
31
(a) under the provision described in clause (x) of the
definition of Permitted Lien, the Company could create a Lien on the property to
secure Indebtedness at least equal in amount to the Attributable Debt in
connection with the Sale-Leaseback Transaction; or
(b) the Company within 90 days of the effective date of the
Sale-Leaseback Transaction makes an optional prepayment in cash of any of its
long-term senior Indebtedness (which may include the Debt Securities) at least
equal in amount to the Attributable Debt in connection with the Sale-Leaseback
Transaction; provided, however, that the long-term senior Indebtedness prepaid
is not owed to the Company or an Affiliate of the Company; provided further,
however, that, in connection with any such prepayment, the Company shall cause
the related loan commitment, if any, to be permanently reduced in an amount
equal to the principal amount so prepaid.
SECTION 4.07. Limitation on Creation of Subsidiaries. The
Company shall not create any Subsidiaries.
SECTION 4.08. Proceeds of Asset Sales. The Company shall not
consummate any Asset Sale unless (i) the consideration in respect of such Asset
Sale is at least equal to the Fair Market Value of the assets sold or otherwise
disposed of (which shall be as determined by the Company's Board of Directors
unless such sale is in excess of U.S.$5,000,000 in which case a fairness opinion
from a nationally recognized investment banking firm will be required), (ii) at
least 85% of the value of the consideration therefrom received by the Company is
in the form of cash or Cash Equivalents or the assumption by the Person
acquiring the assets in such Asset Sale of Indebtedness of the Company with the
effect that the Company shall not have any obligation with respect to such
Indebtedness, and (iii) immediately before and immediately after giving effect
to such Asset Sale, no Default or Event of Default shall have occurred and be
continuing or be anticipated to occur.
SECTION 4.09. Limitations on Transactions with Affiliates. The
Company shall not enter into or permit to exist any transaction (including,
without limitation, the purchase, sale, lease or exchange of any property, the
rendering of any service or the lending of any funds) with or for the benefit of
any of its Affiliates (an "Affiliate Transaction"), except in good faith and on
terms that are fair and reasonable to the Company and no less favorable to the
Company than those that could have been obtained in a comparable transaction on
an arm's length basis from a Person that is not an Affiliate. Affiliate
Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other
aggregate market value in any fiscal year in excess of U.S.$1,000,000 must be
approved prior to the consummation thereof by the Board of Directors of the
Company and evidenced by a Board Resolution stating that such Board of Directors
has, in good faith, determined that such transaction complies with the foregoing
provisions. The foregoing restrictions will not apply to Permitted Affiliate
Transactions.
SECTION 4.10. Limitation on Investments, Loans and Advances.
The Company will not make any Investments, except:
(a) Investments represented by accounts receivable created or
acquired in the ordinary course of business;
32
(b) advances to employees in the ordinary course of business;
and
(c) cash or Cash Equivalents.
SECTION 4.11. Limitation on Business Activities. The Company
shall not engage in any business other than a Permitted Business.
SECTION 4.12. Corporate Existence. Except as otherwise
permitted by Article 5, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the rights (charter and statutory) and franchises of the Company; provided
that the Company shall not be required to preserve, with respect to itself, any
right or franchise, if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct or the
business of the Company.
SECTION 4.13. Payment of Taxes and Other Claims. The Company
shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to taxes)
levied or imposed upon it or properties of it and (b) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
its property; provided that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim if either (x) the amount, applicability or validity thereof is being
contested in good faith by appropriate proceedings and an adequate reserve has
been established therefor to the extent required by Argentine GAAP or (y) the
failure to make such payment or effect such discharge (together with all other
such failures) would not have a material adverse effect on the financial
condition or results of operations of the Company.
SECTION 4.14. Compliance Certificate. (a) The Company shall
deliver to the Trustee, within 120 days after the end of the Company fiscal
year, a Company Certificate stating that a review of its activities during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
the Officer's knowledge the Company during such preceding fiscal year has kept,
observed, performed and fulfilled each and every such covenant and no Default or
Event of Default occurred during such fiscal year and at the date of such
certificate there is no Default or Event of Default that has occurred and is
continuing or, if such signers do know of such Default or Event of Default, the
certificate shall describe the Default or Event of Default and its status with
particularity. The Company Certificate shall also notify the Trustee in writing
should the Company elect to change the manner in which it fixes its fiscal
year-end.
(b) The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year a written statement by the Company's
independent auditors stating (i) that their audit examination has included a
review of the terms of this Indenture and the Debt Securities as they relate to
accounting matters, and (ii) whether, in connection with their audit
examination, any Default has come to their attention and if such a Default has
come to their attention, specifying the nature and period of existence thereof.
33
SECTION 4.15. Limitation on Dividends. The Company shall not
declare or pay any dividend or any other distribution on Capital Stock of the
Company or any payment made to the direct or indirect holders (in their
capacities as such) of Capital Stock of the Company (other than dividends or
distributions payable solely in Capital Stock (other than Disqualified Stock) in
options, warrants or other rights to purchase Capital Stock (other than
Disqualified Stock)).
SECTION 4.16. Reports. (a) For so long as any of the Debt
Securities remain outstanding and are "restricted securities" within the meaning
of Rule 144(a)(3) of the Securities Act, the Company agrees to provide, at its
own expense, to any Holder or any prospective transferee of any such Holder any
information concerning the Company (including financial statements) necessary in
order to permit such Holder to sell or transfer such Holder's Debt Securities in
compliance with Rule 144A under the Securities Act, including making available
to any prospective purchaser of Debt Securities, any Holder upon request, or to
any beneficial owner of Debt Securities in connection with any sale thereof, the
information required by Rule 144A(d)(4) under the Securities Act.
(b) In addition, the Company shall at its own expense and at
all times comply with any applicable periodic reporting requirements of the CNV,
the Buenos Aires Stock Exchange and the Xxxxxxx Abierto Electronico S.A. as in
effect from time to time.
SECTION 4.17. Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Debt Securities as contemplated herein,
wherever, enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture; and (to the extent that it
may lawfully do so) the Company hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 4.18. Maintenance of Properties and Insurance. (a) The
Company shall cause all properties used or useful to the conduct of its business
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
its judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company; provided that nothing in this Section 4.18 shall
prevent the Company from discontinuing the operation or maintenance of any of
such properties, or disposing of any of them, if such discontinuance or disposal
is either (i) in the ordinary course of business, (ii) in the good faith
judgment of the Board of Directors of the Company desirable in the conduct of
the business of the Company, or (iii) is otherwise permitted by this Indenture.
(b) The Company shall provide for itself insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of the
34
Company are adequate and appropriate for the conduct of the business of the
Company in a prudent manner, with reputable insurers, in such amounts, with such
deductibles, and by such methods as shall be either (i) consistent with past
practices of the Company or (ii) customary, in the reasonable, good faith
opinion of the Company, for corporations similarly situated in the industry,
unless the failure to provide such insurance (together with all other such
failures) would not have a material adverse effect on the financial condition or
results of operations of the Company.
SECTION 4.19. Compliance with Laws. The Company shall comply
with all applicable statutes, rules, regulations, orders and restrictions of any
governmental department, commission, board, regulatory authority, bureau, agency
and instrumentality in respect of the conduct of its business and the ownership
of its property, except such as are being contested in good faith and by
appropriate proceedings and except for such noncompliances as would not in the
aggregate have a material adverse effect on the financial condition or results
of operations of the Company.
SECTION 4.20. Investment Company Act. The Company shall not
become an "investment company" (within the meaning of the United States
Investment Company Act of 1940, as amended (the "Investment Company Act"))
subject to registration or regulation under the Investment Company Act, or a
company "controlled by" (within the meaning of the Investment Company Act) an
"investment company" subject to registration or regulation under the Investment
Company Act.
SECTION 4.21. Notices of Default. The Company shall promptly
notify the Trustee by facsimile (receipt confirmed telephonically and promptly
thereafter confirmed by mail in writing) of the occurrence of any Event of
Default, or any condition or event which with the giving of notice, lapse of
time or satisfaction of any other condition or any combination of the foregoing
would, unless cured or waived, become an Event of Default. Each notice given
pursuant to this Section 4.21 shall be accompanied by a certificate of the Chief
Financial Officer of the Company setting forth the details of the occurrence
referred to therein and stating what action the Company proposed to take with
respect thereto.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. Consolidations, Merger and Sales of Assets. The
Company shall not consolidate with or merge with or into any other Person or
sell, assign, convey, lease or transfer all or substantially all of its
properties and assets in a single transaction or through a series of
transactions, if such transaction or series of transactions would result in a
sale, conveyance, lease, transfer or other disposition of all or substantially
all of the properties and assets of the Company, unless:
(a) such other Person is an Affiliate of the Company;
(b) the resulting, surviving or transferee Person (the
"Surviving Entity") is (i) the Company or (ii) a sociedad anonima organized
under the laws of the Republic of Argentina;
35
(c) the Surviving Entity shall have expressly assumed, by a
supplemental indenture executed and delivered to the Trustee, in form and
substance reasonably satisfactory to the Trustee, all of the obligations of the
Company under this Indenture and the Debt Securities;
(d) immediately after giving effect to such transaction or
series of transactions, on a pro forma basis, no Default or Event of Default
shall have occurred and be continuing under this Indenture;
(e) the Surviving Entity shall immediately after giving effect
to such transaction or series of transactions on a pro forma basis (including,
without limitation, giving effect to any Indebtedness incurred or anticipated to
be incurred in connection with or in respect of the transaction or series of
transactions) (i) have a Net Worth equal to or greater than the Net Worth of the
Company immediately prior to such transaction or series of transactions, (ii)
have a Current Ratio equal to or greater than the Current Ratio of the Company
immediately prior to such transaction or series of transactions, and (iii) have
a Leverage Ratio equal to or less than the Leverage Ratio of the Company
immediately prior to such transaction or series of transactions; and
(f) the Surviving Entity shall have delivered to the Trustee
under this Indenture a Company Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction or series
of transactions, such supplemental indenture, complies with this Section 5.01
and that all conditions precedent in this Indenture relating to the transaction
or series of transactions have been satisfied.
SECTION 5.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any transfer of assets in accordance with Section
5.01, the Surviving Entity formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such Surviving Entity had been named
as the Company herein. When a Surviving Entity assumes all of the obligations of
the Company hereunder and under the Debt Securities and agrees to be bound
hereby and thereby, the predecessor shall be released from such obligations.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. "Event of Default," wherever
used herein with respect to Debt Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) the Company defaults in the payment of interest on
any Debt Securities of such series when the same becomes due and
payable and such Default continues for a period of 30 days or more; or
36
(b) the Company defaults in the payment of the principal
of, or premium, if any, on any of the Debt Securities of such series
when the same becomes due and payable at maturity, upon acceleration,
redemption, or otherwise; or
(c) the Company defaults in the performance of, or
breaches, any covenant set forth herein or under the Debt Securities of
such series (other than defaults specified in clause (a) and (b)
above), and such Default continues for a period of 30 days after
written notice to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Debt Securities of such series; or
(d) there shall be a default under any bond, debenture,
or other evidence of Indebtedness of the Company or under any mortgage,
indenture or other instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness of the
Company, whether such Indebtedness now exists or shall hereafter be
created, if both (i) such default either (1) results from the failure
to pay any payment when due on such Indebtedness or (2) relates to an
obligation other than the obligation to make payments on such
Indebtedness and results in the holder or holders of such Indebtedness
causing such Indebtedness to become due prior to its stated maturity
and (ii) the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure
to make payments thereon or the maturity of which has been so
accelerated, aggregates U.S.$5,000,000 or more at any one time; or
(e) final judgments for the payment of money which in the
aggregate at any one time exceeds U.S.$5,000,000 shall be rendered
against the Company or any of its property by a court of competent
jurisdiction and shall remain undischarged and unbonded for a period
(during which execution shall not be effectively stayed) of 60 days
after such judgment becomes final and nonappealable; or
(f) the Company shall (i) apply for or consent to the
appointment of a receiver, trustee, liquidator or the like for itself
or of its property, (ii) admit in writing its inability to pay its
debts generally as they mature, (iii) make a general assignment for the
benefit of its creditors, (iv) be adjudicated bankrupt or insolvent,
(v) file a voluntary petition in bankruptcy or a petition or an answer
seeking reorganization or an arrangement with creditors or a judicial
or extrajudicial "concurso preventivo de acreedores" or "acuerdo
preventivo extrajudicial" or seeking to take advantage of any
applicable insolvency law with respect to all or a substantial part of
the Company's indebtedness, (vi) file any answer admitting the material
allegation of a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding or (vii) take any corporate
action for the purpose of effecting any of the foregoing or the
equivalent thereof under the laws of Argentina; or
(g) without its application, approval or consent, a
proceeding shall be instituted in any court of competent jurisdiction
seeking in respect of the Company adjudication in bankruptcy,
reorganization, dissolution, winding-up, liquidation, a composition or
arrangement with creditors, a readjustment of debt, the appointment of
a trustee, receiver, liquidator or the like of the Company or of all or
any of its assets or other like relief in respect of the Company under
any applicable bankruptcy or insolvency law, and such proceeding shall
not be contested by the Company in good faith; or
37
(h) any authorization, consent, approval, license, filing
or registration now or hereafter necessary to enable the Company to
perform its obligations under this Indenture, or any law, rule or
regulation necessary for a Holder to enforce the Company's obligations
under this Indenture in accordance with the terms of this Indenture,
shall be revoked, withdrawn, withheld or modified or shall cease to
remain in full force and effect, or it shall become unlawful for the
Company to perform any of its material obligations hereunder; or
(i) any condemnation, seizure, compulsory purchase or
expropriation by any governmental authority or agency of substantially
all of the assets of the Company; or
(j) a general moratorium shall be agreed or declared in
respect of the payment or performance of the obligations of the Company
(which does not expressly exclude the Debt Securities of such series);
or
(k) there shall occur a Concession Redemption.
SECTION 6.02. Acceleration. (a) If an Event of Default (other
than an Event of Default specified in clause (f), (g), (j) or (k) of Section
6.01) occurs and is continuing, then the Holders of at least 25% in aggregate
principal amount of the outstanding Debt Securities of any series may, by
written notice, and the Trustee upon the request of the Holders of not less than
25% in aggregate principal amount of the outstanding Debt Securities of such
series shall, declare the principal of, premium, if any, accrued interest and
any other amounts (including, Additional Amounts, if any), on all the Debt
Securities of such series to be immediately due and payable. Upon any such
declaration such amounts shall become due and payable immediately. If an Event
of Default specified in clause (f), (g), (j) or (k) of Section 7.01 occurs and
is continuing, then the principal of, premium, if any, accrued interest and any
other amounts on all the Debt Securities shall automatically become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
(b) After a declaration of acceleration of Debt Securities of
any series, the Holders of a majority in aggregate principal amount of
outstanding Debt Securities of such series may, by notice to the Trustee,
rescind such declaration of acceleration if all existing Events of Default with
respect to the Debt Securities of such series have been cured or waived, other
than nonpayment of principal of, premium, if any, and accrued interest on the
Debt Securities of such series, that has become due solely as a result of the
acceleration thereof, and if the rescission of acceleration would not conflict
with any judgment or decree. Past defaults under this Indenture (except a
default in the payment of the principal of, premium, if any, or interest on the
Debt Securities of any series issued hereunder or in respect of a covenant or
provision which cannot be modified or amended without the consent of all Holders
of the Debt Securities of such series) may be waived by the Holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
such series.
SECTION 6.03. Other Remedies. (a) If an Event of Default
occurs and is continuing with respect to the Debt Securities of any series, the
Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of, premium, if any, or interest on the Debt
Securities of such series or to enforce the performance of any provision of the
Debt Securities of such series or this Indenture.
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(b) The Trustee may maintain a proceeding even if it does not
possess any of the Debt Securities of such series or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections
6.07 and 9.02 and to the extent permitted by applicable law, the Holders of a
majority in aggregate principal amount at maturity of the outstanding Debt
Securities of any series by notice to the Trustee may waive an existing Default
or Event of Default and its consequences, except a Default in the payment of
principal of, premium, if any, or interest on any of the Debt Securities of such
series as specified in clauses (a) and (b) of Section 6.01.
SECTION 6.05. Control by Majority. Subject to the provisions
of Section 7.02(f), the Holders of a majority in aggregate principal amount at
maturity of the outstanding Debt Securities of any series may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust, or power conferred on it including, without
limitation, any remedies provided for in Section 6.03. The Trustee may refuse to
follow any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another Holder of
the Debt Securities of such series, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 6.06. Limitation on Suits. (a) A Holder may not pursue
any remedy with respect to this Indenture or the Debt Securities of such series
unless:
(i) the Holder of Debt Securities of such series gives to
the Trustee notice of a continuing Event of Default;
(ii) the Holder or Holders of at least 25% in aggregate
principal amount at maturity of the outstanding Debt Securities of such
series make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to
be incurred in compliance with such request;
(iv) the Trustee does not comply with the request within
15 days after receipt of the request and the offer of satisfactory
indemnity; and
(v) during such 15-day period the Holder or Holders of a
majority in aggregate principal amount at maturity of the outstanding
Debt Securities of such series do not give the Trustee a direction
which, in the opinion of the Trustee, is inconsistent with the request.
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(b) A Holder of Debt Securities of any series may not use this
Indenture to prejudice the rights of another Holder of Debt Securities of such
series or to obtain a preference or priority over such other Holder of Debt
Securities of such series.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of, premium, if any, and accrued interest on, a
Debt Security of any series, on or after the respective due dates expressed in
such Debt Securities of such series, or to bring suit (including any "accion
ejecutiva individual" pursuant to Article 29 of the Negotiable Obligations Law)
for the enforcement of any such payment on or after such respective date, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default in payment of principal or interest specified in clause (a) or (b) of
Section 6.01 occurs and is continuing with respect to Debt Securities of any
series, the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company or any other obligor on the Debt Securities of
such series for the whole amount of principal and accrued interest remaining
unpaid, together with interest on overdue principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the Debt Securities of
such series and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 7.07 hereof.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relating to the Company or any other obligor upon the Debt
Securities, any of their respective creditors or any of their respective
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same, and any custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.06. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities of any series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Priorities. (a) If the Trustee collects any
money pursuant to this Article 6, it shall pay out the money in the following
order:
First: to the Trustee for amounts due under Section 7.07;
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Second: to Holders for amounts due and unpaid for principal,
premium, if any, and interest, on the Debt Securities in respect of
which such amounts have been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Debt Securities for principal, premium, if any, and interest,
respectively; and
Third: to the Company.
(b) The Trustee, upon notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit
by a Holder or Holders of more than 10% in aggregate principal amount of the
outstanding Debt Securities of any series.
ARTICLE 7
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. Duties of Trustee. (a) With respect to the
Holders of Debt Securities of any series, if an Event of Default has occurred
and is continuing with respect to the Debt Securities of such series, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as a
prudent Person would exercise or use under the circumstances in the conduct of
the Trustee's own affairs.
(b) Except during the continuance of an Event of Default with
respect to Debt Securities of any series:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee.
(ii) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This Section 7.01(c) does not limit the effect of
Section 7.01(b).
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Sections 6.02 or 6.05.
(4) No provision of this Indenture shall require the
Trustee or any Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not herein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
Section 7.01(a), (b) and (c).
(e) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree with the Company in
writing by separate agreement. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
SECTION 7.02. Rights of Trustee. Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require a Company Certificate or an Opinion of
Counsel, which shall conform to Sections 10.04 and 10.05. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith and that it believes to be authorized or
within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be
42
entitled, upon reasonable notice to the Company, to examine the books, records,
and premises of the Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of Debt Securities of any series pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by it in compliance with such request, order
or direction.
(g) Except as otherwise specifically provided herein, (i) all
references to the Trustee shall be deemed to refer to the Trustee in its
capacity as Trustee and in its capacity as Agent, and (ii) every provision of
this Indenture relating to the conduct or affecting the liability or offering
protection, immunity or indemnity to the Trustee shall be deemed to apply with
the same force and effect to the Trustee acting in its capacity as Agent.
(h) The Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture, unless the Trustee's conduct constitutes negligence.
(i) The Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Debt Securities of any series,
unless either (i) a Trust Officer shall have actual knowledge of such Default or
Event of Default or (ii) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or by any Holder.
(j) The permissive rights of the Trustee enumerated herein
shall not be construed as duties unless so specified herein.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Debt
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. (a) The Trustee makes no
representation as to the validity, sufficiency or adequacy of this Indenture,
any offering materials or the Debt Securities, it shall not be accountable for
the Company's use of the proceeds from the Debt Securities, and it shall not be
responsible for any statement in the Debt Securities other than the Trustee's
certificate of authentication.
(b) The Trustee shall have received from the Company prior to
authenticating any Debt Securities under this Indenture Opinions of Counsel
pursuant to Sections 10.04 and 10.05 stating that all conditions precedent
provided for in the Indenture have been complied with and that, assuming due
authentication and delivery by the Trustee, the Notes have been duly authorized,
executed and delivered by the Company and will constitute legal, valid and
binding obligations of the Company.
SECTION 7.05. Notice of Default. If a Default or an Event of
Default occurs and is continuing with respect to the Debt Securities of any
series and if it is known to a
43
Trust Officer, the Trustee shall mail to each Holder of Debt Securities of such
series, as their names and addresses appear on the Holder list described in
Section 2.06, notice of such uncured Default or Event of Default within 90 days
after a Trust Officer obtains actual knowledge that such Default or Event of
Default has occurred. Except in the case of a Default or an Event of Default in
payment of principal of, premium, if any, or interest on, the Debt Securities of
such series, the Trustee may withhold the notice if and so long as its Board of
Directors, the executive committee of its Board of Directors or a committee of
its Directors and/or Trust Officers in good faith determines that withholding
such notice is in the interest of the Holders of Debt Securities of such series.
SECTION 7.06. Reports by Trustee to Holders. (a) This Section
7.06 shall not be operative as a part of this Indenture until this Indenture is
qualified under the TIA, and, until such qualification, this Indenture shall be
construed as if this Section 7.06 were not contained.
(b) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall, to the extent that any
of the events described in TIA Section 313(a) has occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such May 15 that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Sections 313(b) and 313(c).
(c) A copy of each report at the time of its mailing to
Holders shall be mailed to the Company and filed with the Commission and each
securities exchange, if any, on which the Debt Securities are listed.
(d) The Company shall promptly notify the Trustee in writing
if the Debt Securities of any series become listed on any securities exchange.
SECTION 7.07. Compensation and Indemnity. (a) As compensation
for the Trustee's services hereunder, the Company agrees to pay to the Trustee
such amount as may be agreed upon in writing from time to time by the Company
and the Trustee.
(b) In addition, the Company shall pay to each of the Agents
from time to time such compensation as shall have been agreed upon in writing
for its services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee and each Agent upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the agents and counsel of the
Trustee and each such Agent, as the case may be.
(c) The Company shall indemnify each of the Trustee and each
Agent and its respective officers, directors, employees and agents for, and hold
each harmless against, any loss, liability, damage or expense incurred by it,
except to the extent such loss, liability, damage or expense is due to the
negligence or bad faith of such Person, arising out of or in connection with the
acceptance or administration of this trust or the performance or exercise of its
rights, powers or duties hereunder, including the reasonable costs and expenses
(including reasonable fees and expenses of counsel) of defending itself against
any claim or liability in connection with the exercise or performance of any of
its rights, powers or the performance of any of its duties
44
hereunder. The Trustee or the Agent, as the case may be, shall notify the
Company promptly of any claim asserted against the Trustee or the Agent, as the
case may be, or any of its officers, directors, employees and agents, as the
case may be, for which any such Person may seek indemnity. The Company shall
defend the claim and the Trustee or the Agent, as the case may be, shall
cooperate in the defense. The Trustee or the Agent, as the case may be, or any
of its officers, directors, employees and agents, as the case may be, may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
written consent.
(d) To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the Debt Securities on all
assets or money held or collected by the Trustee, in its capacity as Trustee or
as Paying Agent, except assets or money held in trust to pay principal of or
interest on any particular Debt Securities. The obligations of the Company under
this Section 7.07 shall survive the termination of this Indenture, the payment
of the Debt Securities and the resignation or removal of the Trustee or any
Agent.
(e) When the Trustee incurs expenses or renders services after
the occurrence of an Event of Default specified in clause (f) or clause (g) of
Section 6.01 in respect of Debt Securities of any series, such expenses and the
compensation for such services in respect of the Debt Securities of such series
are intended to constitute expenses of administration under any Bankruptcy Law.
(f) If the Company is required by law to deduct any Argentine
withholding taxes from or in respect of any sum payable hereunder, the sum
payable hereunder shall be increased by the amount necessary so that after
making all the necessary deductions the Trustee will receive an amount equal to
the sum it would have received had no such deductions been made.
SECTION 7.08. Replacement of Trustee. (a) The Trustee may
resign with respect to the Debt Securities of any series by so notifying the
Company. The Holders of a majority in aggregate principal amount at maturity of
the outstanding Debt Securities of any series may remove the Trustee with
respect to the Debt Securities of such series by so notifying the Company and
the Trustee in writing and may appoint a successor trustee in respect of the
Debt Securities of such series with the Company's consent. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(b) If, with respect to Debt Securities of any series, the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall notify each Holder of Debt Securities of such
series of such event and shall promptly appoint a successor Trustee with respect
to the Debt Securities of such series. Within one year after such
45
successor Trustee takes office, the Holders of a majority in aggregate principal
amount at maturity of the outstanding Debt Securities of such series may appoint
a successor Trustee in respect of the Debt Securities of such series to replace
the successor Trustee in respect of the Debt Securities of such series appointed
by the Company.
(c) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided in Section 7.07 and payment
of its fees and charges the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder of Debt Securities of the relevant
series.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in aggregate principal amount of the
outstanding Debt Securities of the relevant series may petition any court of
competent jurisdiction for the appointment of a successor Trustee in respect of
the Debt Securities of such series.
(e) If the Trustee fails to comply with Section 7.10, any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 4.03 and Section 7.07
shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting,
surviving or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise eligible hereunder,
be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. This Indenture
shall always have a Trustee who satisfies the requirement of TIA Sections
310(a)(1) and 310(a)(5) and Article 13 of the Negotiable Obligation Laws. The
Trustee (or in the case of a corporation included in a bank holding company
system, the related bank holding company) shall have a combined capital and
surplus of at least U.S.$100,000,000 as set forth in its most recent published
annual report of condition. In addition, if the Trustee is a corporation
included in a bank holding company system, the Trustee, independently of such
bank holding company, shall meet the capital requirements of TIA Section
310(a)(2). The Trustee shall comply with TIA Section 310(b); provided that there
shall be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other Debt Securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against the
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA
46
Section 311(b). A Trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated.
SECTION 7.12. Conditions of Agent's Obligations. Each Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights of the Holders of Debt Securities and owners of beneficial interests
therein are subject:
(a) Agency. In acting under this Indenture and in
connection with the Debt Securities, each Agent is acting solely as
agent of the Company and does not assume any responsibility for the
correctness of the recitals herein or in any Debt Securities or any
obligation or relationship of agency or trust, for or with any of the
beneficial owners or Holders of any Debt Securities. The Agents make no
representation as to the validity or sufficiency of this Indenture, any
offering materials or any Debt Securities. The Agents shall not be
accountable for the use or application by the Company of any of any
Debt Securities or of the proceeds thereof.
(b) Advice of Counsel. Each Agent may consult with its
respective counsel or other counsel (which may be an employee of or
counsel to the Company) satisfactory to it, and the written opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, omitted or suffered by them hereunder in
good faith and in accordance with such opinion.
(c) Reliance. Each Agent appointed by the Company
pursuant to this Indenture shall be protected and shall incur no
liability for or in respect of any action taken or omitted or thing
suffered by it in reliance upon any Debt Security, written notice,
direction, consent, certificate, affidavit, statement, or other paper
or document delivered to and believed by it, in good faith, to be
genuine and to have been passed upon or signed by the proper parties.
(d) Interest in Debt Securities, Etc. Each Agent and its
respective officers, directors and employees may become the owners of,
or acquire any interest in, any Debt Security, with the same rights
that it would have if it were not such Agent or such person and may
engage or be interested in any financial or other transaction with the
Company, and may act on, or as depositary, trustee or agent for, any
committee or body of Holders or owners of Debt Securities or interests
therein or other obligations of the Company as freely as if it were not
such Agent or such Person.
(e) Non-liability for Interest. Subject to any written
agreement between the Company and any Paying Agent to the contrary,
each of the Paying Agents shall not be under any liability for interest
on, or to invest, monies at any time received by it pursuant to any of
the provisions of this Indenture or the Debt Securities of any series.
(f) Certifications. Whenever in the administration of
this Indenture any Agent shall deem it to be desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such Agent (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon a
certificate signed by an Officer and delivered to such Agent.
47
(g) No Implied Obligations. The duties and obligations of
each Agent shall be determined solely by the express provisions of this
Indenture, and each Agent shall not be liable except for the
performance of such of its duties and obligations as are specifically
set forth in this Indenture and no implied covenants or obligations
shall be read against such Agent. No provision of this Indenture shall
require any Agent to expend or risk its own funds or incur any
liability or to perform any duty or exercise any right or power under
this Indenture unless it receives an offer of security and indemnity
reasonably satisfactory to it against any cost, expense or liability
(including counsel fees) that might be incurred by performing any such
duty or exercising any such right or power.
SECTION 7.13. Resignation and Appointment of Successor Agent.
(a) Resignation. Each Agent may at any time resign in respect of the Debt
Securities of any series by giving written notice to the Company of such
intention on its part, specifying the date on which its desired resignation
shall become effective; provided that such date shall not be less than 30 days
from the date on which such notice is given, unless the Company agrees to accept
shorter notice. Each Agent hereunder may be removed in respect of the Debt
Securities of any series at any time by the filing with it of an instrument in
writing signed on behalf of the Company and specifying such removal and the date
when it shall become effective. Notwithstanding the dates of effectiveness of
resignation or removal, as the case may be, of the Registrar, Co-Registrar, any
Paying Agent or any Transfer Agent (if such Paying Agent or Transfer Agent, as
the case may be, is the only Paying Agent located in the place where, by the
terms of any such Debt Security or this Indenture, the Company is required to
maintain a Paying Agent or Transfer Agent, as the case may be) to be specified
in accordance with the preceding sentences, such resignation or removal shall
take effect only upon the appointment by the Company, as hereinafter provided,
of a successor to such Agent in respect of the Debt Securities of such series.
Upon an Agent's resignation or removal, such Agent shall be entitled to payment
by the Company pursuant to Section 7.07 hereof of compensation for services
rendered in respect of the Debt Securities of such series and to reimbursement
of out-of-pocket expenses incurred hereunder in respect of the Debt Securities
of such series.
(b) Successors. In case at any time the Registrar, the
Co-Registrar, any Paying Agent or any Transfer Agent (if such Paying Agent or
Transfer Agent, as the case may be, is the only Paying Agent or Transfer Agent
in respect of the Debt Securities of such series, as the case may be, located in
the place where by the terms of the Debt Securities of any series or this
Indenture the Company is required to maintain a Paying Agent or Transfer Agent,
as the case may be) shall, in respect of the Debt Securities of such series,
resign, or shall be removed, or shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or shall file a voluntary petition in bankruptcy
or make an assignment for the benefit of its creditors or consent to the
appointment of a receiver of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they severally
mature, or if a receiver of it or of all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered approving any
petition filed by or against it under the provisions of applicable receivership,
bankruptcy, insolvency, reorganization or other similar legislation, or if any
public officer shall take charge or control of it or of its property or affairs,
for the purpose of rehabilitation, conservation or liquidation, a successor
Co-Registrar, Registrar, Paying Agent or Transfer Agent, as the case may be,
qualified as aforesaid, shall be appointed, in respect of the
48
Debt Securities of such series, by the Company by an instrument in writing,
filed with the successor Co-Registrar, Registrar, Paying Agent or Transfer
Agent, as the case may be, and the predecessor Co-Registrar, Registrar, Paying
Agent or Transfer Agent, as the case may be. Upon the appointment as aforesaid
of a successor Co-Registrar, Registrar, Paying Agent or Transfer Agent and
acceptance by such successor of such appointment, the Co-Registrar, Registrar,
Paying Agent or Transfer Agent so succeeded shall cease to be such Agent
hereunder. If no successor Co-Registrar, Registrar, Paying Agent or Transfer
Agent shall have been so appointed by the Company and shall have accepted
appointment as hereinafter provided and, in the case of such other Paying Agent
or Transfer Agent, if such other Paying Agent or Transfer Agent is the only
Paying Agent or Transfer Agent located in a place where, by the terms of the
Debt Securities of any series or this Indenture, the Company is required to
maintain a Paying Agent or Transfer Agent in respect of the Debt Securities of
such series, then any Holder of Debt Securities of such series who has been a
bona fide Holder for at least six months, on behalf of himself and all others
similarly situated, may appoint such successor, in respect of the Debt
Securities of such series, or any such Holder of Debt Securities of such series
or the resigning Agent may petition any court of competent jurisdiction for the
appointment of a successor Agent in respect of the Debt Securities of such
series. The Company shall give prompt written notice to each Agent of the
appointment of any successor Agent in respect of the Debt Securities of such
series.
(c) Acknowledgement. Any successor Agent appointed hereunder
in respect of Debt Securities of any series shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Agent, without any further
act, deed or conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such predecessor with like
effect as if originally named as such Agent hereunder in respect of the Debt
Securities of such series, and such predecessor, upon payment of its
compensation and reimbursement of its disbursements then unpaid in respect of
the Debt Securities of such series shall thereupon become obligated to transfer,
deliver and pay over, and such successor shall be entitled to receive, all
monies, securities, books, records or other property on deposit with or held by
such predecessor as such Agent hereunder in respect of the Debt Securities of
such series.
(d) Merger, Consolidation, Etc. Any corporation into which any
Agent hereunder may be merged, or any corporation resulting from any merger,
conversion or consolidation to which any Agent shall be a party, or any
corporation to which any Agent shall sell or otherwise transfer all or
substantially all the assets and corporate trust business of such Agent shall be
the successor to such Agent under this Indenture without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
SECTION 7.14. Trustees Priority of Payment. Subject to any
other rights available to the Trustee under any applicable law, when the Trustee
incurs expenses or renders services after the occurrence of an Event of Default
in respect of the Debt Securities of any series involving any general suspension
of payment or moratorium or any similar proceeding affecting or relating to the
debt or solvency of the Company, the parties hereto and the Holders and owners
of beneficial interests in the Debt Securities of such series, by acceptance of
the Debt Securities of such series or such interests, hereby agree that such
expenses and the compensation for such services are intended to constitute
expenses of administration under any applicable law governing such insolvency
proceeding. The Trustee, to the extent permitted by applicable law,
49
shall be entitled to payment of such expenses and compensation prior to
disbursement of any sums to a party seeking payment of any claim arising out of
this Indenture or the Debt Securities of such series, and the lien granted to
the Trustee in Section 7.07(d) shall attach to such payment. The Trustee's
rights under this Section 7.14 shall survive the resignation or removal of the
Trustee in respect of Debt Securities of any series, the payment of the Debt
Securities of such series and the termination of this Indenture.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance. (a) The Company may, at its option
by Board Resolution, at any time, with respect to the Debt Securities of any
series, elect to have either Section 8.01(b) or Section 8.01(c) be applied to
the outstanding Debt Securities of any series upon compliance with the
conditions set forth in Section 8.01(d).
(b) Upon the Company's exercise under Section 8.01(a) of the
option applicable to this Section 8.01(b), the Company shall be deemed to have
been released and discharged from its obligations with respect to the
outstanding Debt Securities of any series on the date the conditions set forth
below in Section 8.01(d) are satisfied (hereinafter, "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding Debt
Securities of such series, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 and the other Sections of and matters
under this Indenture referred to in (i) and (ii) below, and to have satisfied
all its other obligations under the Debt Securities of such series and this
Indenture insofar as the Debt Securities of such series are concerned (and the
Trustee, at the expense of the Company, shall promptly execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of Debt Securities of such series to receive solely from the trust fund
described in Section 8.01(d) below and as more fully set forth in Section
8.01(d), payments in respect of the principal of and interest on the Debt
Securities of such series when such payments are due, (ii) the Company's
obligations under Sections 2.06, 2.07, 2.15, 2.16 and 2.18, 4.02, 4.03, 7.07 and
this Section 8.01 (for purposes of applying Section 4.03, if the Trustee is
required by law to withhold or deduct any amount for or on account of Argentine
withholding taxes from payment made from any trust fund described in Section
8.02(d)(1) under or with respect to the Debt Securities of such series, such
payment shall be made by the Company and the Company shall be deemed to have
been so required to withhold or deduct), (iii) obligations listed in Section
8.03, and (iv) the Company's right of redemption pursuant to Section 3.01;
provided that the change or amendment referred to therein occurs after the
Defeasance is exercised by the Company in accordance with this Section 8.01, in
which case the Company may redeem the Debt Securities of such series in
accordance with Section 3.01 by complying with Article 3 and depositing with the
Trustee in accordance with Section 3.05, an amount of money sufficient, together
with all amounts held in trust pursuant to Section 8.01(d)(1) to pay the
Redemption Price of all the Debt Securities of such series to be redeemed.
Subject to compliance with this Section 8.01, the Company may exercise its
option under this Section 9.01(b) notwithstanding the prior exercise of its
option under Section 9.01(c) below with respect to the Debt Securities of such
series.
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(c) Upon the Company's exercise under Section 8.01(a) of the
option applicable to this Section 8.01(c), the Company shall be released and
discharged from its obligations under any covenant contained in Article 5 and in
Sections 4.04 through 4.20 with respect to the outstanding Debt Securities of
such series on and after the date the conditions set forth below in Section
8.01(d) are satisfied (hereinafter, "Covenant Defeasance"), and the Debt
Securities of such series shall thereafter be deemed to be not "outstanding" for
the purpose of any direction, waiver, consent or declaration or act of Holders
of Debt Securities of such series (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, Covenant Defeasance means
that, with respect to the outstanding Debt Securities of such series, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01(c) in respect of the Debt
Securities of such series, nor shall any event referred to in Section 6.01(d) or
Section 6.01(e) thereafter constitute a Default or an Event of Default in
respect of the Debt Securities of such series but, except as specified above,
the remainder of this Indenture and the Debt Securities of such series shall be
unaffected thereby.
(d) The following shall be the conditions to application of
either Section 8.01(b) or Section 8.01(c) to the outstanding Debt Securities of
any series:
(1) The Company shall have irrevocably deposited in trust
with the Trustee, pursuant to an irrevocable trust and security
agreement in form and substance satisfactory to the Trustee, United
States Legal Tender or direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America
for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged ("United States
Government Obligations") maturing as to principal and interest in such
amounts and at such times as are sufficient, without consideration of
the reinvestment of such interest and after payment by the Company to
the appropriate governmental authority of all Argentine federal and
local taxes and United States federal, state and local taxes, if any,
or other charges or assessments in respect thereof payable by the
Trustee, in the opinion of the chief financial officer of the Company
expressed in a written certification thereof (in form and substance
reasonably satisfactory to the Trustee) delivered to the Trustee, to
pay the principal of, premium, if any, and interest on the outstanding
Debt Securities of such series on the dates on which any such payments
are due and payable in accordance with the terms of this Indenture and
of the Debt Securities;
(2) such deposits shall not cause the Trustee to have a
conflicting interest as defined in and for purposes of the TIA;
(3) no Default or Event of Default in respect of the Debt
Securities of such series (i) shall have occurred or be continuing on
the date of such deposit or (ii) shall occur on or before the 91st
calendar day after the date of such deposit;
(4) the Company is not an "insolvent person" within the
meaning of Argentine Bankruptcy Law on the date of such deposit or at
any time during the period
51
ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be satisfied until the
expiration of such period);
(5) such deposit will not result in a Default under this
Indenture or a breach or violation of, or constitute a default under,
any other instrument or agreement to which the Company is a party or by
which it or its property is bound;
(6) the Company shall deliver to the Trustee an Opinion
of Counsel, in form and substance reasonably satisfactory to the
Trustee, to the effect that Holders of the Debt Securities of such
series will not recognize income, gain or loss for United States
federal income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to United States
federal income tax in the same amounts and in the same manner and at
the same times as would have been the case if such deposit and
defeasance had not occurred;
(7) the deposit shall not result in the Company, the
Trustee or the trust becoming or being deemed to be an "investment
company" under the Investment Company Act;
(8) the Company shall deliver to the Trustee an Opinion
of Counsel to the effect that Holders of the Debt Securities of such
series shall have a perfected security interest under applicable law in
United States Legal Tender or United States Government Obligations
deposited pursuant to clause (1) above;
(9) the Company shall have delivered to the Trustee an
Opinion of Counsel, in form and substance reasonably satisfactory to
the Trustee, to the effect that, after the passage of 90 days following
the deposit, the trust funds will not be subject to any claims of the
Company or the creditors, or any receiver, liquidator, trustee in
bankruptcy or other Person exercising similar rights or powers under
any applicable bankruptcy, insolvency, reorganization or similar law
affecting creditors' rights generally; and
(10) the Company has delivered to the Trustee a Company
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the Defeasance or Covenant
Defeasance, as applicable, contemplated by this Section 8.01 have been
complied with; provided that no deposit under clause (1) above with
respect to a defeasance pursuant to Section 8.01(b) shall be effective
to terminate the obligations of the Company under the Debt Securities
of such series or this Indenture with respect to the Debt Securities of
such series prior to 90 days following any such deposit.
(e) In the event all or any portion of the Debt Securities of
any series are to be redeemed through such irrevocable trust, the Company must
make arrangements satisfactory to the Trustee, at the time of such deposit, for
the giving of the notice of such redemption or redemptions by the Trustee in the
name and at the expense of the Company. In connection with the issuance of Debt
Securities the proceeds of which will be used to redeem all the Debt Securities
of such series then outstanding, none of Sections 4.04, 4.06 or 4.09 shall be
violated by the issuance of the Debt Securities of such series to the extent the
Company complies with all of the provisions of this Section 8.01(d) other than
Section 9.01(d)(2).
52
SECTION 8.02. Termination of Obligations upon Cancellation of
the Debt Securities. In addition to the Company's rights under Section 8.01, the
Company may terminate all of its obligations under this Indenture with respect
to the Debt Securities of any series. (subject to Section 8.03) when:
(a) all the Debt Securities of such series theretofore
authenticated and delivered (other than the Debt Securities of such
series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.07) have been delivered to
the Trustee for cancellation;
(b) the Company has paid or caused to be paid all other
sums payable hereunder and under the Debt Securities of such series by
the Company; and
(c) the Company has delivered to the Trustee a Company
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the satisfaction and discharge
of this Indenture with respect to the Debt Securities of such series
have been complied with.
SECTION 8.03. Compliance with Trust Indenture Act. From the
date on which this Indenture is qualified under the TIA, every amendment, waiver
or supplement of this Indenture or the Debt Securities shall comply with the TIA
as then in effect.
SECTION 8.04. Survival of Certain Obligations. Notwithstanding
the satisfaction and discharge of this Indenture with respect to the Debt
Securities of any series and of the Debt Securities of any series referred to in
Section 8.01 or 8.02, all of the provisions offering protection, immunity or
indemnity to the Trustee and any Agent shall survive and the respective
obligations of the Company and the Trustee under Sections 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 2.09, 2.10, 2.11, 2.12, 2.13, 2.14, 4.01, 4.02, 4.03, 6.07,
7.07, 7.08, 8.05, 8.06 and 8.07 shall survive until the Debt Securities of such
series are no longer outstanding, and thereafter the obligations of the Company
and the Trustee under Sections 4.03, 7.07, 8.05, 8.06 and 8.07 shall survive.
SECTION 8.05. Acknowledgment of Discharge by Trustee. Subject
to Section 8.07, after (a) the conditions of Section 8.01 or 8.02 have been
satisfied with respect to the Debt Securities of any series, (b) the Company has
paid or caused to be paid all other sums payable hereunder with respect to the
Debt Securities of such series by the Company and (c) the Company has delivered
to the Trustee a Company Certificate and an Opinion of Counsel, each stating
that all conditions precedent referred to in clause (a) above relating to the
satisfaction and discharge of this Indenture with respect to the Debt Securities
of such series have been complied with, the Trustee upon written request shall
acknowledge in writing the discharge of the Company's obligations under this
Indenture with respect to the Debt Securities of such series except for those
surviving obligations specified in Section 9.03.
SECTION 8.06. Application of Trust Assets. The Trustee shall
hold any United States Legal Tender or United States Government Obligations
deposited with it in the irrevocable trust established pursuant to Section 8.01
in respect of Debt Securities of any series. The Trustee shall apply the
deposited United States Legal Tender or the United States Government
Obligations, together with earnings thereon, through the Paying Agent (other
than
53
the Company), in accordance with this Indenture and the terms of the irrevocable
trust agreement established pursuant to Section 8.01, to the payment of
principal of and interest on the Debt Securities of such series. The United
States Legal Tender or United States Government Obligations so held in trust and
deposited with the Trustee in compliance with Section 8.01 shall not be part of
the trust estate under this Indenture, but shall constitute a separate trust
fund for the benefit of all Holders entitled thereto.
SECTION 8.07. Repayment to the Company; Unclaimed Money. Upon
termination of the trust established pursuant to Section 8.01 in respect of Debt
Securities of any series, the Trustee and the Paying Agent shall promptly pay to
the Company upon request any excess United States Legal Tender or United States
Government Obligations held by them in respect of the Debt Securities of such
series. Additionally, if money for the payment of principal or interest remains
unclaimed for one year, the Trustee and the Paying Agents will pay such
unclaimed money to the Company at its written request and all liability of the
Trustee and such Paying Agents with respect to such unclaimed money shall cease.
After payment to the Company, Holders entitled to such payment must look to the
Company for such payment as general creditors unless an applicable abandoned
property law designates another Person.
SECTION 8.08. Reinstatement. If the Trustee or Paying Agent is
unable to apply any United States Legal Tender or United States Government
Obligations deposited pursuant to Section 8.01 in respect of Debt Securities of
any series in accordance with Section 8.05 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Debt Securities of such
series and the Debt Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.01 until such time as the
Trustee or Paying Agent is permitted to apply all such United States Legal
Tender or United States Government Obligations in accordance with Section 8.01.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company, when
authorized by a Board Resolution, and the Trustee, together, may amend, waive or
supplement this Indenture or the Debt Securities of any series without notice to
or consent of any Holder or any Holder of Debt Securities of such series, as the
case may be:
(a) to cure any ambiguity, defect or inconsistency;
provided that such amendment or supplement does not materially
adversely affect the rights of any Holder;
(b) to comply with Article 5;
(c) to provide for uncertificated Debt Securities of any
series in addition to or in place of certificated Debt Securities of
such series;
(d) to make any other change that does not materially
adversely affect the rights of Holders of Debt Securities of any
series; or
54
(e) to comply with any requirements of the SEC in
connection with the qualification of this Indenture under the TIA;
provided that the Company has delivered to the Trustee an Opinion of Counsel and
a Company Certificate, each stating that such amendment or supplement complies
with and is permitted by the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders. (a) Subject to Section
6.07 and to the extent permitted by applicable law, the Company, when authorized
by a Board Resolution, and the Trustee, together, with the written consent of
the Holder or Holders of at least a majority in aggregate principal amount of
the outstanding Debt Securities of any series obtained at a meeting of such
Holders duly convened pursuant to Section 9.07, may amend, waive or supplement
the provisions of this Indenture which affect the Debt Securities of such series
or modify the rights of the Holders of Debt Securities of such series under this
Indenture. Subject to Section 6.07, the Holder or Holders of a majority in
aggregate principal amount of the outstanding Debt Securities of any series may
waive compliance by the Company with any provision of this Indenture in respect
of the Debt Securities of such series or the Debt Securities of such series
without notice to any other Holder of Debt Securities of such series. Without
the consent of each Holder of Debt Securities of such series affected, however,
no amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may:
(1) change the principal amount at maturity of the Debt
Securities of such series whose Holders must consent to an amendment,
supplement or waiver of any provision of this Indenture or the Debt
Security of such series;
(2) reduce the rate or extend the time for payment of
interest or Additional Amounts on any Debt Securities of such series;
(3) reduce the principal amount of any Debt Security of
such series;
(4) change the Maturity Date of any Debt Security of such
series, or alter the provisions of Section 4.03 or any of the
redemption provisions of the Debt Securities of such series in a manner
adverse to any Holder of Debt Securities of such series;
(5) make any changes in the provisions concerning waivers
of Defaults or Events of Default by Holders of the Debt Securities of
such series or the rights of Holders of Debt Securities of such series
to recover the principal of, interest on, or redemption payment with
respect to, any Debt Security of such series;
(6) make any changes in Section 6.04, 6.07 or this third
sentence of this Section 9.02;
(7) make the principal of, or the interest on any Debt
Security of such series payable in money other than as provided for in
this Indenture and the Debt Securities of such series as in effect on
the date hereof; or
(8) affect the ranking of the Debt Securities of such
series in a manner adverse to the Holders of Debt Securities of such
series.
55
(b) It shall not be necessary for the consent of the Holders
of Debt Securities of any series under this Section 9.02 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
(c) After an amendment, supplement or waiver in respect of
Debt Securities of any series under this Section 9.02 becomes effective, the
Company shall mail to the Holders of Debt Securities of such series affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03. Compliance with Trust Indenture Act. From the
date on which this Indenture is qualified under the TIA, every amendment, waiver
or supplement of this Indenture or of Debt Securities of any series shall comply
with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents. (a) Until an
amendment, waiver or supplement in respect of Debt Securities of any series
becomes effective, a consent to it by a Holder of Debt Securities of such series
is a continuing consent by such Holder and every subsequent Holder of such Debt
Security or portion of such Debt Security that evidences the same debt as such
consenting Holder's Debt Security, even if notation of the consent is not made
on any Debt Security of such series. However, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Debt Security or portion of
such Holder's Debt Security by written notice to the Trustee and the Company
received before the date on which the Trustee receives a Company Certificate
certifying that the Holders of the requisite principal amount at maturity of
Debt Securities of such series have consented (and not theretofore revoked such
consent) to the amendment, supplement or waiver.
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders of Debt Security of any
series entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the last sentence of the immediately
preceding paragraph, those Persons who were Holders of Debt Securities of such
series at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or
not such Persons continue to be Holders of Debt Securities of such series after
such record date. No such consent shall be valid or effective for more than 90
days after such record date.
(c) After an amendment, supplement or waiver in respect of
Debt Securities of any series becomes effective, it shall bind every Holder of
Debt Securities of such series; provided that any such waiver shall not impair
or affect the right of any Holder of Debt Securities of such series to receive
payment of principal of and interest on a Debt Security of such series, on or
after the respective due dates expressed in such Debt Security, or to bring suit
for the enforcement of any such payment on or after such respective dates
without the consent of such Holder.
(d) The applicability of this clause is restricted only to
such decisions in respect to which a meeting of Holders of Debt Securities of
any series as provided in Section 9.06 of this Indenture is not required under
Argentine law.
56
SECTION 9.05. Notation on or Exchange of Debt Securities. If
an amendment, supplement or waiver changes the terms of Debt Security of any
series, the Trustee may require the Holder of such Debt Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on such Debt
Security about the changed terms and return it to such Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for such Debt
Security shall issue and the Trustee shall authenticate a new Debt Security that
reflects the changed terms.
SECTION 9.06. Trustee to Sign Amendments, Etc. The Trustee
shall execute any amendment, supplement or waiver authorized pursuant to this
Article 9; provided that the Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which affects the Trustee's own rights,
duties or immunities under this Indenture. The Trustee shall be entitled to
receive, in addition to the documents required by Section 10.04, and shall be
fully protected in relying upon, an Opinion of Counsel and a Company Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture.
SECTION 9.07. Holders' Meetings. (a) The Company or the
Trustee may at any time call a meeting of the Holders of the Debt Securities of
any series for the purpose of considering and acting upon any proposed
amendment, supplement or waiver in respect of the Debt Securities of such series
to be authorized pursuant to this Article 9 or any other matter of interest to
the Holders of the Debt Securities of such series. The meeting will be held
simultaneously in Buenos Aires and in New York City and may be held in any
additional city that the Company and the Trustee may determine by any means of
telecommunication which permits the participants to hear and speak to each
other, and such simultaneous meeting shall be deemed to constitute a single
meeting for purposes of the quorum and voting percentages applicable to such
meeting. In addition, the Company or the Trustee shall upon the written request
of the Holders of at least 5% in aggregate principal amount of the outstanding
Debt Securities of any series call such a meeting of the Holders of the Debt
Securities of such series. In the event the Company or the Trustee shall fail to
call a meeting requested by the Holders of the Debt Securities of such series as
provided in the immediately preceding sentence, the meeting may he called by the
CNV or by a competent court. If a meeting is being held pursuant to a request of
Holders of the Debt Securities of any series, the agenda for such meeting shall
be that set forth in the request made by such Holders and such meeting shall be
convened within 40 days from the date such request is received by the Company or
the Trustee. Notice of any meeting of Holders of the Debt Securities of any
series, setting forth the date, time and place of such meeting and the agenda
therefor (which shall describe in general terms the action proposed to be taken
at such meeting), shall be given as specified in Section 10.01 at least twice,
the first such notice to be given not less than 20 nor more than 40 days prior
to the date fixed for the meeting and, in addition, shall be published on five
different days, not less than 10 days nor more than 30 days prior to the date
fixed for the meeting, in the Official Gazette of the Republic of Argentina
(Boletin Oficial de la Republica Argentina) and in another widely circulated
newspaper in the Republic of Argentina. To be entitled to vote at a meeting of
Holders of the Debt Securities of any series a Person shall be (i) a Holder of
one or more of the Debt Securities of such series as of the relevant record date
determined pursuant to this Indenture or (ii) a Person appointed by an
instrument in writing as proxy by such a Holder of Debt Securities of such
series of one or more Debt Securities of such series; provided that a Person
appointed as chairman of a
57
meeting may not be appointed as proxy. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their financial
and legal counsels, any representatives of the Company and its financial and
legal counsels, any representatives of the Trustee and its financial and legal
counsels and any representative of the CNV and each stock exchange, if any, on
which the Debt Securities of such series are listed, if the rules of such
exchange so require.
(b) The Persons entitled to vote 51% in aggregate principal
amount of the Debt Securities of any series at the time outstanding shall
constitute a quorum at any such meeting of Holders of Debt Securities of such
series. No business shall be transacted in the absence of a quorum, unless a
quorum is present when the meeting is called to order. In the absence of a
quorum, within thirty minutes of the time appointed for any such meeting, the
meeting may, to the extent permitted by law, be adjourned for a period of not
less than 10 days nor more than 30 days, as determined by the chairman of the
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided above and, in addition, published in the Official Gazette of the
Republic of Argentina and in another widely circulated newspaper in the Republic
of Argentina, except that such notice need be published only for three days
beginning not less than eight days prior to the date on which such meeting is
scheduled to be reconvened. The Persons entitled to vote 51% in aggregate
principal amount of the Debt Securities of such series at the time outstanding
shall constitute a quorum at any such reconvened adjourned meeting. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage in
aggregate principal amount of Debt Securities of such series outstanding that
shall constitute a quorum at such meeting.
(c) Any Holder of Debt Securities of any series who has
executed an instrument in writing appointing a Person as proxy who is present at
a meeting of Holders of Debt Securities of such series shall be deemed to be
present for the purposes of determining a quorum and be deemed to have voted;
provided that such Holder shall be considered as present or voting only with
respect to the matters covered by such instrument in writing. Any resolution
passed or decision taken at any meeting of Holders of Debt Securities of such
series duly held in accordance with this Section 9.06 shall, if otherwise in
compliance with this Indenture, be binding on all the Holders of Debt Securities
of such series whether or not present or represented at the meeting.
(d) The appointment of any proxy shall be proved by having the
signature of the Person executing the proxy guaranteed or certified by any
notary public, bank, trust company or judicially certified in the manner
provided under Argentine law. The following Persons may not act as proxies:
members of the Board of Directors or of the Supervisory Committee of the
Company, and managers and other employees of the Company. The holding of Debt
Securities shall be proved by the Register maintained in accordance with Section
2.15 or by a certificate or certificates of the Trustee; provided that the
holding of a beneficial interest in a Global Debt Security shall be proved by a
certificate or certificates of the Depositary.
(e) A representative of the Trustee shall act as the chairman
of a meeting of Holders of Debt Securities of any series. If the Trustee fails
to designate its own representative to act as chairman of such meeting, the
Trustee shall designate a representative of the Holders of Debt Securities of
such series to so act, and if no representative shall have been so designated,
the Company shall designate a Person to act as chairman of such meeting. If the
Company fails
58
to designate such a Person, the CNV or the competent court shall designate a
Person to act as chairman. The secretary of such meeting shall be elected by
vote of the Holders of a majority in aggregate principal amount of the Debt
Securities of such series present or represented at such meeting. At any meeting
of Holders of Debt Securities of any series, each Holder of Debt Securities of
such series or such Holder's proxy shall be entitled to one vote for each
U.S.$1,000 principal amount of Debt Securities of such series held by such
Holder or so represented by such Holder; provided that no vote shall be cast or
counted at any meeting in respect of any Debt Security of such series challenged
as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote except as a
Holder of Debt Securities of such series or such Holder's proxy. Any meeting of
Holders of Debt Securities of any series duly called at which a quorum is
present may be adjourned one time and the meeting may be held as so adjourned
without further notice.
(f) The vote upon any resolution submitted to any meeting of
Holders of Debt Securities of any series shall be by written ballot on which
shall be subscribed the signatures of the Holders of Debt Securities of such
series or proxies and on which shall be inscribed the serial number or numbers
of the Debt Securities of such series held or represented by them. The chairman
of such meeting shall appoint two inspectors of votes who shall count all votes
cast at such meeting, for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate of
all votes cast at such meeting. A record in duplicate of the proceedings of any
meeting of Holders of Debt Securities of any series shall be prepared by the
secretary of such meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more Persons having knowledge of the facts setting
forth a copy of the notice of such meeting and showing that said notice was
published as provided above. The record shall be signed and verified by the
permanent chairman and secretary of such meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at such meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
(g) Decisions in respect of Debt Securities of any series
shall be made by the affirmative vote of 51% of the Holders in aggregate
principal amount of Debt Securities of such series at the time outstanding
present or represented at a meeting of the Holders of Debt Securities of such
series at which a quorum is present; provided, however, that the unanimous
affirmative vote of the Holders of Debt Securities of such series shall be
required to adopt a valid decision on any of the matters specified in clauses
(1) through (8) of Section 9.02 as requiring the consent of each Holder of each
outstanding Debt Security of such series affected thereby.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. (a) Any notice or communication
desired or required to be given hereunder or under the Debt Securities shall be
in writing and delivered in person or mailed by first class mail addressed if to
the Company or the Trustee as follows or telecopied (receipt confirmed):
59
If to the Company:
Autopistas del Sol X.X.
Xxxx Xxxxxxxxxxxx 0000
(X0000XXX) Xxxxxxxx
Xxxxxx Xxxxx
Xxxxxxxxx
Facsimile No.: (54) (00) 0000-0000
Attn: Chief Financial Officer
If to the Trustee:
JPMorgan Chase Bank
4 New York Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
Attn: Institutional Trust Services
If to the Trustee's representative in Argentina:
JPMorgan Chase Bank
Xx. Xxxxxxxxxx 000
(X0000XXX) Xxxxxx Xxxxx
Xxxxxxxxx
Facsimile No.: (54) (00) 0000-0000
Attn: Institutional Trust Services
The parties hereto by written notice to the other parties may designate
additional or different addresses for subsequent notices or communications.
(b) Any notice or communication mailed to a Holder shall be
mailed to such Holder at the Holder's address as it appears on the Register
maintained by the Registrar and shall be sufficiently given to such Holder if so
mailed within the time prescribed. Copies of any such communication or notice to
a Holder shall also be mailed to the Trustee.
(c) Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to any other
Holders. Except for a notice to the Trustee, which is deemed to be given only
when received, if a notice or communication is mailed in the manner provided
above, it is deemed to be duly given hereunder or under the Debt Securities,
whether or not received by the addressee.
(d) All notices to the Holders will be published to the extent
required under applicable Argentine law, in Spanish (1) in the Official Gazette
of Argentina, (2) in a leading newspaper having general circulation in
Argentina, and (3) in the Bulletin of the Buenos Aires Stock Exchange so long as
the Debt Securities of any series are listed on the Buenos Aires Stock Exchange.
Notices will be deemed to have been given on the date of publication as
aforesaid or, if published on different dates, on the date of the latest such
publication. In addition, all notices
60
will be given to the relevant clearing systems for delivery to owners of
beneficial interest in the Debt Securities through DTC and the Depositary for
Euroclear and Clearstream, Luxembourg. In addition, the Company will be required
to cause all such other publications of such notices as may be required from
time to time by applicable Argentine and United States law and, if applicable,
securities exchange regulations.
SECTION 10.02. Trust Indenture Act Controls. (a) The
provisions of TIA Sections 310 through 317 that impose duties on any Person
(including the provisions automatically deemed to be included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
(b) If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Section 10.02(a), the imposed duties shall
control.
SECTION 10.03. Communications by Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Debt Securities. The Company, the
Trustee, the Registrar and any other Person shall have the protection of TIA
Section 312(c).
SECTION 10.04. Opinions as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, including the issuance of any Debt Securities hereunder, the
Company shall furnish to the Trustee:
(a) a Company Certificate (in form and substance satisfactory
to the Trustee) stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel of the Company (in form and
substance satisfactory to the Trustee) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(c) an Opinion of Counsel (in form and substance satisfactory
to the Trustee) stating that, in the opinion of such counsel, all such
conditions precedent have been complied with (which counsel, as to factual
matters, may rely on an Opinion of Counsel of the Company).
SECTION 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture, other than the Company Certificate
required by Section 4.14, shall include in substance:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, such
Person has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
61
(d) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with; provided that
with respect to matters of fact an Opinion of Counsel may rely on a Company
Certificate or certificates of public officials.
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders of
any series of Debt Securities. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 10.07. Governing Law. THIS INDENTURE AND THE DEBT
SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK EXCLUDING (TO
THE GREATEST EXTENT A NEW YORK COURT WOULD PERMIT) ANY RULE OF LAW THAT WOULD
CAUSE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK; PROVIDED, HOWEVER, THAT THE NEGOTIABLE OBLIGATIONS LAW SHALL GOVERN THE
REQUIREMENTS FOR THE DEBT SECURITIES TO QUALIFY AS OBLIGACIONES NEGOCIABLES
THEREUNDER WHILE SUCH LAW, TOGETHER WITH THE ARGENTINE BUSINESS COMPANIES LAW
NO. 19,550, AS AMENDED, AND OTHER APPLICABLE ARGENTINE LAW AND REGULATIONS SHALL
GOVERN THE CORPORATE POWER AND AUTHORITY OF THE COMPANY TO EXECUTE AND DELIVER
THE DEBT SECURITIES, THE AUTHORIZATION AND PUBLIC OFFERING OF THE DEBT
SECURITIES BY THE CNV, IF ANY, AND CERTAIN MATTERS RELATING TO MEETINGS OF
HOLDERS OF THE DEBT SECURITIES, INCLUDING QUORUM, MAJORITY AND CONVENING
REQUIREMENTS.
SECTION 10.08. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
SECTION 10.09. No Recourse Against Others. Except as otherwise
provided in Article 34 of the Negotiable Obligations Law, a director, officer,
employee, stockholder or incorporator, as such, of the Company shall not have
any liability for any obligations of the Company under the Debt Securities or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Holder by accepting a Debt Security waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Debt Securities.
SECTION 10.10. Successors. All agreements of the Company in
this Indenture and the Debt Securities shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 10.11. Severability. In case any provision in this
Indenture or in any series of Debt Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and a Holder
shall have no claim therefor against any party hereto.
SECTION 10.12. Table of Contents, Headings, Etc. The Table of
Contents, and headings of the Articles, Sections and Subsections of this
Indenture have been inserted for
62
convenience of reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 10.13. Benefits of Indenture. Nothing in this
Indenture or in the Debt Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 10.14. Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if any
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
SECTION 10.15. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.16. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities. (a) By the execution and delivery of this Indenture, the
Company (i) acknowledges that it has, by separate written instrument, designated
and appointed CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Agent for Service") (and any successor entity), as its authorized agent
upon which process may be served in any suit or proceeding arising out of or
relating to this Indenture or the Debt Securities that may be instituted in any
federal or state court in the Borough of Manhattan, City of New York, State of
New York or brought under federal or state securities laws, and acknowledges
that the Agent for Service has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding, and (iii) agrees
that service of process upon the Agent for Service and written notice of said
service to the Company in accordance with Section 10.01 shall be deemed in every
respect to be effective service of process upon the Company in any such suit or
proceeding. The Company further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment of the Agent for Service
in full force and effect so long as any of the Debt Securities shall be
outstanding; provided that the Company may (and, to the extent the Agent for
Service ceases to be able to be served on the basis contemplated herein, shall),
by written notice to the Trustee and the Holders in accordance with Section
10.01, designate such additional or alternative agent for service of process
under this Section 10.16 that (A) maintains an office located in the Borough of
Manhattan, City of New York, State of New York and (B) is either (x) counsel for
the Company or (y) a corporate service company that acts as agent for service of
process for other Persons in the ordinary course of its business. Such written
notice shall identify the name of such agent for service of process and the
address of the office of such agent for service of process in the Borough of
Manhattan, City of New York, State of New York. Nothing herein shall affect the
right of the Trustee or any Holder to serve process or to commence legal
proceedings or otherwise proceed against the Company in Argentina in any other
manner permitted by law. The Company hereby waives irrevocably, to the extent
permitted by law, any objection to the laying of venue in New York, New York,
and any claim of inconvenient forum in respect of any such action in New York,
New York to which it might
63
otherwise be entitled in any actions arising out of or based on this Indenture
or the Debt Securities.
(b) To the extent that the Company has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, it hereby irrevocably waives such immunity in respect of its
obligations under this Indenture and the Debt Securities or the separate written
instrument referenced in the first paragraph of this Section 10.16.
SECTION 10.17. Judgment Currency. The Company agrees to
indemnify the Trustee and each Holder against any loss incurred by any of them
as a result of any judgment or order being given or made for any amount due
under this Indenture or the Debt Securities and such judgment or order being
expressed and paid in a currency (the "Judgment Currency") other than United
States dollars and as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the spot rate of
exchange in The City of New York at which any such Person on the date of payment
of such judgment or order is able to purchase United States dollars with the
amount of the Judgment Currency actually received by such Person. The foregoing
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "spot rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of,
or conversion into, United States dollars.
SECTION 10.18. Foreign Exchange Restrictions. Under the terms
and conditions of the Debt Securities, in the event of any foreign exchange
restriction or prohibition in Argentina, any and all payments in respect of the
Debt Securities will be made in United States dollars through (i) the sale of
Bonos Externos de la Republica Argentina or of any other public or private bond
issued in United States dollars in Argentina or (ii) any other legal mechanism
of the acquisition of United States dollars in any exchange market. All costs,
including any taxes, relative to such operations to obtain United States dollars
will be borne by the Company.
* * * * * * *
64
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
AUTOPISTAS DEL SOL S.A.
By:_________________________________
Name:
Title
JPMORGAN CHASE BANK, as Trustee,
Co-Registrar and Principal Paying Agent
By:________________________________
Name:
Title
JPMORGAN CHASE BANK, as Registrar,
Paying Agent and Transfer Agent
By:________________________________
Name:
Title
65
EXHIBIT A
[FORM OF DEBT SECURITY]
[ADD LEGEND IN EXHIBIT C IF A RESTRICTED NOTE]
[ADD LEGEND IN EXHIBIT B IF A GLOBAL DEBT SECURITY]
AUTOPISTAS DEL SOL S.A.
Incorporated in Buenos Aires, Republic of Argentina,
with Limited Liability ("sociedad anonima")
under the Laws of The Republic of Argentina
with a Term of Duration Expiring on February 4, 2024, and
Registered with the Public Registry of Commerce
on February 4, 1994 under No. 950,
book 114, Volume A of Sociedades Anonimas,
and with Domicile at
Av. Xxxxxxx X. Xxxx 000, 0xx Xxxxx (X0000XXX), Xxxxxx Xxxxx, Xxxxxxxxx
Paid in Capital at -: Pesos -
No. U.S.$
CUSIP No.:
ISIN:
Common Code:
AUTOPISTAS DEL SOL S.A., a sociedad anonima existing under the
laws of the Republic of Argentina, (the "Company," which term includes any
successor corporation), for value received promises to pay to - or registered
assigns, the principal sum of U.S.$ - million, on -, or such other amount as
shall be the principal amount from time to time of this Debt Security in
accordance with the terms of the within-mentioned Indenture.
Interest Payment Dates: - and -, commencing on -.
Record Dates: - and -, respectively.
Reference is made to the further provisions of this Debt
Security contained herein, which will for all purposes have the same effect as
if set forth at this place.
The issuance of the Debt Securities has been authorized by the
Argentine Comision National de Valores (the "CNV") by Resolution No. - dated -.
Such authorization means only that the Company has complied with the information
requirements established by the CNV. This Debt Security is a negotiable
obligation ("obligacion negociable") under, and has been issued pursuant to and
in compliance with, all applicable requirements of the Negotiable Obligations
Law of the Republic of Argentina, Law No. 23,576, as amended ("Ley de
Obligaciones Negociables"), and other applicable Argentine laws and regulations.
A-1
This Debt Security has been issued pursuant to a resolution of
an Extraordinary General Meeting of the shareholders of the Company adopted on -
and resolutions of the Board of Directors of the Company adopted on -.
[Signatures Follow]
A-2
IN WITNESS WHEREOF, the Company has caused this Debt Security
to be signed by its duly appointed Director and Member of the Supervisory
Committee.
Dated:
AUTOPISTAS DEL SOL S.A.
By: ___________________________
Name:
Title:
A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of Autopistas del Sol S.A.
issued under the within-mentioned Indenture.
Dated:
JPMORGAN CHASE BANK, as Trustee
By: ____________________________
Authorized Officer
A-4
AUTOPISTAS DEL SOL S.A.
Debt Securities
Argentine Negotiable Obligations Law: Indenture.
This Debt Security is an obligacion negociable under Argentine
Law No. 23,576, as amended (Ley de Obligaciones Negociables) (the "Negotiable
Obligations Law"), and is one of a duly authorized issue of Debt Securities of
the Company designated as its -% Debt Securities due - (hereinafter called the
"Debt Securities") limited in aggregate principal amount to U.S.$ - and issued
under an Indenture, dated as of - (herein called the "Indenture"), among the
Company, -, as Trustee, Co-Registrar and Principal Paying Agent (herein called
the "Trustee"), and -, as Registrar, Paying Agent and Transfer Agent, to which
Indenture and all Indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company and the Holders of the Debt Securities and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered.
1. Interest.
Autopistas del Sol S.A., a sociedad anonima existing under the
laws of the Republic of Argentina (the "Company"), promises to pay interest on
the principal amount of the Debt Securities at a rate of -% per annum from - to
-. The Company will pay interest on - and - of each year (each, an "Interest
Payment Date"), commencing on -. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and
interest on overdue installments of interest, to the extent lawful, at a rate
equal to 1.00% per annum ("Default Interest").
2. Principal.
Subject to paragraphs 6, 7 and 8, principal will be payable at
maturity on -.
3. Method of Payment.
The Company shall pay interest on the Debt Securities (except
Default Interest) to the Persons who are the registered Holders at the close of
business on the Record Date immediately preceding the relevant Interest Payment
Date, even if the Debt Securities are canceled on registration of transfer or
registration of exchange after such Record Date. The Company shall pay
principal, premium, if any, and interest in United States Legal Tender. Payments
of principal of, premium, if any, and interest on the Debt Securities shall be
made in accordance with the foregoing and subject to applicable laws and
regulations, by check drawn on a bank in The City of New York mailed on or
before the due date for such payment to the person entitled thereto at such
person's address appearing on the Register, or, in the case of the final payment
of principal hereunder upon maturity, redemption, repurchase or otherwise, by
check drawn on a bank in The City of New York delivered to the Person entitled
thereto upon surrender of the Debt Securities to any Paying Agent; provided,
however, that any payments shall be made,
A-5
in the case of a Holder of at least U.S.$250,000 aggregate initial principal
amount of Debt Securities, by transfer to an account maintained by the payee
with a bank located in The City of New York if such Holder so elects by giving
notice in writing to any Paying Agent, not less than 15 days (or such fewer days
as such Paying Agent may accept at its discretion) prior to the date of the
payments to be obtained, of such election and of the account to which payments
are to be made.
If the due date for payment of any principal or interest in
respect of any Debt Securities is not a business day at the place in which it is
presented for payment, the Holder thereof will not be entitled to payment of the
amount due until the next succeeding business day at such place and will not be
entitled to any further interest or other payment in respect of any such delay.
4. Paying Agent and Registrar.
Initially, - will act as Registrar, Paying Agent and Transfer
Agent, and as representative of the Trustee in Argentina. Initially, - will act
as Co-Registrar and Principal Paying Agent. The Company may change any Paying
Agent, Registrar or Co-Registrar; provided that the Company shall promptly give
notice to such Holder of any such change (i) by mailing such notice to Holder's
address as it appears on the Register maintained by the Registrar with a copy
mailed to the Trustee and (ii) by publication, but only to the extent required
under applicable Argentine law, in accordance with Section 10.01 of the
Indenture. The Company may, subject to certain exceptions, act as Registrar
and/or Paying Agent.
5. Indenture.
The Company issued the Debt Securities under the Indenture.
Capitalized terms herein are used as defined in the Indenture, unless otherwise
defined herein. The terms of the Debt Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture, until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Debt Securities are subject to all such terms, and Holders of Debt
Securities are referred to the Indenture and the TIA for a statement of them.
The Debt Securities will constitute direct, unconditional,
unsubordinated and unsecured obligations of the Company and will rank pari passu
in right of payment with all of the Company's other present and future
unsubordinated and unsecured obligations, except as such obligations may be
preferred by mandatory provisions of applicable law.
6. Redemption at the Option of the Company and Repurchase.
The Debt Securities will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 calendar days' notice, at a Redemption Price equal to 100% of the outstanding
principal amount thereof, together with accrued and unpaid interest and
Additional Amounts, if any, to the Redemption Date, subject to the right of
Holders of record on the relevant Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date.
A-6
The Company may at any time purchase Debt Securities in the
open market, or by tender or private agreement at any price. Any Debt Securities
so purchased may be held for the account of the Company or may be resold by the
Company or may be delivered by the Company to the Trustee for cancellation.
7. Redemption at the Option of the Company for Changes in Argentine Tax
Laws.
The Debt Securities are subject to redemption in certain
circumstances in accordance with Article 3 of the Indenture in whole, but not in
part, at the option of the Company at any time at a Redemption Price equal to
100% of the outstanding principal amount thereof, together with accrued and
unpaid interest, if any, to but not including the Redemption Date and any
Additional Amounts payable with respect thereto as a result of certain changes
in or amendments to the laws of Argentina affecting taxation as set forth in
Section 3.01(a) of the Indenture.
8. Concession Redemption.
Upon a Concession Redemption, the Company will redeem all the
Debt Securities at a Redemption Price equal to 100% of the principal amount
thereof, together with accrued and unpaid interest and Additional Amounts, if
any, to but not including the Redemption Date.
9. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Debt Securities
to be redeemed. Notice shall be given to Holders in accordance with Section
10.01 of the Indenture; provided, however, that for so long as the Debt
Securities are represented in their entirety by Global Debt Securities, then
notice shall be given (i) by mailing such notice to such Holder's address as it
appears on the Register with a copy mailed to the Trustee and (ii) publication,
but only to the extent required under applicable Argentine law. Debt Securities
in denominations larger than U.S.$1,000 principal amount may be redeemed in
part.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Debt Securities called for
redemption shall have been deposited with the Paying Agent for redemption of
such Debt Securities, then, such Debt Securities will cease to bear interest and
the only right of the Holders of such Debt Securities will be to receive payment
of the Redemption Price.
10. Denomination; Transfer; Exchange.
The Debt Securities are in fully-registered form, without
coupons, in denominations of U.S.$1.00 and multiples of U.S.$1.00 thereof. The
Registrar shall register the transfer of or exchange of Debt Securities in
accordance with the Indenture. The Registrar may require a Holder to, among
other things, furnish appropriate endorsements and transfer documents and
certifications and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted or required by the Indenture. The
Registrar need not register the transfer of or exchange of any Debt Securities
or portions thereof selected for redemption.
A-7
11. Persons Deemed to Be Owners.
The registered Holder of a Debt Security shall be treated as
the owner of it for all purposes.
12. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for one year, the Trustee and the Paying Agents will pay such
unclaimed money to the Company at its written request. Upon such payment, all
liability of the Trustee and such Paying Agents with respect to such money shall
cease.
13. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S.
dollars or United States Government Obligations sufficient to pay the principal
of and interest on the Debt Securities to redemption or maturity and complies
with the other provisions of the Indenture relating thereto, the Company will be
discharged from certain provisions of the Indenture and the Debt Securities.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Debt
Securities may be amended or supplemented with the consent (obtained at a
Meeting of Holders duly convened pursuant to Section 9.07 of the Indenture) of
the Holders of at least a majority in aggregate principal amount of the Debt
Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent (obtained at a
meeting of Holders' of the Debt Securities duly convened pursuant to Section
9.07 of the Indenture) of the Holders of a majority in aggregate principal
amount of the Debt Securities then outstanding. Without notice to or consent of
any Holder, the parties thereto may amend or supplement the Indenture or the
Debt Securities to, among other things, cure any ambiguity, defect or
inconsistency (provided that such amendment or supplement does not materially
adversely affect the rights of any Holder), provide for uncertificated Debt
Securities in addition to or in place of certificated Debt Securities, comply
with Article 5 of the Indenture or comply with any requirements of the
Commission in connection with the qualification of the Indenture under the TIA,
or make any other change that does not materially adversely affect the rights of
any Holder of a Debt Security.
15. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company to, among other things, incur additional Indebtedness or Liens, make
payments in respect of its Capital Stock and merge or consolidate with any other
Person and sell, lease, transfer or otherwise dispose of substantially all of
its properties or assets. The imitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations. Set forth below are certain covenants of
the Company as set forth in the Indenture:
A-8
Limitation on Additional Indebtedness. Section 4.04 of the
Indenture provides that the Company shall not create, incur, assume or issue,
directly or indirectly, guarantee or in any manner become, directly or
indirectly, liable for or with respect to the payment of ("Incur"), or suffer to
exist, any Indebtedness, except for Permitted Indebtedness. The Company will
not, directly or indirectly, in any event Incur any Indebtedness which by its
terms (or by the terms of any agreement governing such Indebtedness) is
subordinated in right of payment to any other Indebtedness of the Company unless
such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate in right of payment to
the Debt Securities pursuant to subordination provisions that are substantively
identical to the subordination provisions of such Indebtedness (or such
agreement) that are most favorable to the holders of any other Indebtedness of
the Company (other than obligations preferred by statute or operation of law).
Limitation on Liens. Section 4.05 of the Indenture provides
that the Company shall not create, incur, assume or suffer to exist any Lien
(other than a Permitted Lien) of any kind upon any of its property, assets or
revenues now owned or hereafter acquired unless the Debt Securities also are
equally and ratably secured by such Lien.
Limitation on Sale and Leaseback Transactions. Section 4.06 of
the Indenture provides that the Company will not enter into any Sale-Leaseback
Transaction unless at least one of the following conditions is satisfied: (i)
under the provision described in clause (xi) of the definition of Permitted
Lien, the Company could create a Lien on the property to secure Indebtedness at
least equal in amount to the Attributable Debt in connection with the
Sale-Leaseback Transaction; or (ii) the Company within 90 days of the effective
date of the Sale-Leaseback Transaction makes an optional prepayment in cash of
any of its long-term senior Indebtedness (which may include the Debt Securities)
at least equal in amount to the Attributable Debt in connection with the
Sale-Leaseback Transaction; provided, however, that the Indebtedness prepaid is
not owed to the Company or an Affiliate of the Company; provided further,
however, that, in connection with any such prepayment, the Company shall cause
the related loan commitment, (if any), to be reduced permanently in an amount
equal to the principal amount so prepaid.
Limitation on Creation of Subsidiaries. Section 4.07 of the
Indenture provides that the Company may not create any Subsidiaries.
Proceeds of Asset Sales. Section 4.08 of the Indenture
provides that the Company shall not consummate any Asset Sale unless (i) the
consideration in respect of such Asset Sale is at least equal to the Fair Market
Value of the assets sold or otherwise disposed of (which shall be as determined
by the Company's Board of Directors unless such Asset Sale is in excess of
U.S.$5,000,000 in which case a fairness opinion from a nationally recognized
investment banking firm will be required), (ii) at least 85% of the value of the
consideration therefrom received by the Company is in the form of cash or Cash
Equivalents or the assumption by the Person acquiring the assets in such Asset
Sale of Indebtedness of the Company with the effect that the Company shall not
have any obligation with respect to such Indebtedness and (iii) immediately
before and immediately after giving effect to such Asset Sale, no Default or
Event of Default shall have occurred and be continuing or be anticipated to
occur.
A-9
Limitations on Transactions with Affiliates. Section 4.09 of
the Indenture provides that the Company shall not enter into or permit to exist
any transaction (including, without limitation, the purchase, sale, lease or
exchange of any property, the rendering of any service or the lending of any
funds) with or for the benefit of any of its Affiliates (an "Affiliate
Transaction"), except in good faith and on terms that are fair and reasonable to
the Company and no less favorable to the Company than those that could have been
obtained in a comparable transaction on an arm's length basis from a Person that
is not an Affiliate. Affiliate Transactions (and each series of related
Affiliate Transactions which are similar or part of a common plan) involving
aggregate payments or other aggregate market value in any fiscal year in excess
of U.S.$1,000,000 must be approved prior to the consummation thereof by the
Board of Directors of the Company and evidenced by a Board Resolution stating
that such Board of Directors has, in good faith, determined that such
transaction complies with the foregoing provisions. The foregoing restrictions
will not apply to Permitted Affiliate Transactions.
Limitation on Investments, Loans and Advances. Section 4.10 of
the Indenture provides that the Company will not make any Investments, except:
(i) Investments represented by accounts receivable created or acquired in the
ordinary course of business; (ii) advances to employees in the ordinary course
of business; and (iii) cash or Cash Equivalents.
Limitations on Dividends. Section 4.15 of the Indenture
provides that the Company shall not declare or pay any dividend or any other
distribution on Capital Stock of the Company or any payment made to the direct
or indirect holders (in their capacities as such) of Capital Stock of the
Company (other than dividends or distributions payable solely in Capital Stock
(other than Disqualified Stock) in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Stock)) at any time that any Debt
Securities are outstanding.
Reports. For so long as the Debt Securities remain outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company agrees to provide, at its own expense, to any Holder
or any prospective transferee of any such Holder any information concerning the
Company (including financial statements) necessary in order to permit such
Holder to sell or transfer Debt Securities in compliance with Rule 144A under
the Securities Act, including making available to Holders and to any prospective
purchaser of Debt Securities, upon request by a Holder, or to any beneficial
owner of Debt Securities in connection with any sale thereof, the information
required by Rule 144A(d)(4) under the Securities Act. In addition, the Company
shall at its own expense and at all times comply with any applicable periodic
reporting requirements of the CNV, the Buenos Aires Stock Exchange and the
Xxxxxxx Abierto Electronico S.A., as in effect from time to time. The Company
shall also comply with the other provisions of Section 314(a) of the TIA, to the
extent applicable.
Limitation on Consolidations, Mergers and Sales of Assets.
Section 5.01 of the Indenture provides that the Company shall not consolidate
with or merge with or into any other person or sell, assign, convey, lease or
transfer all or substantially all of its properties and assets in a single
transaction or through a series of transactions, if such transaction or series
of transactions would result in a sale, conveyance, lease, transfer or other
disposition of all or substantially all of the properties and assets of the
Company, unless, (i) such other Person is an Affiliate of the Company; (ii) the
resulting, surviving or transferee person (the "Surviving Entity") is (x) the
Company or (y) a sociedad anonima organized under the laws of the Republic
A-10
of Argentina; (iii) the Surviving Entity shall have expressly assumed, by a
supplemental indenture executed and delivered to the Trustee, in form and
substance reasonably satisfactory to the Trustee, all of the obligations of the
Company under the Indenture and the Debt Securities; (iv) immediately after
giving effect to such transaction or series of transactions, on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing
under the Indenture; (v) the Surviving Entity shall immediately after giving
effect to such transaction or series of transactions on a pro forma basis
(including, without limitation, giving effect to such Indebtedness incurred or
anticipated to be incurred in connection with or in respect of the transaction
or series of transactions) (A) have a Net Worth equal to or greater than the Net
Worth of the Company immediately prior to such transaction or series of
transactions, (B) have a Current Ratio equal to or greater than the Current
Ratio of the Company immediately prior to such transaction or series of
transactions and (C) have a Leverage Ratio equal to or less than the Leverage
Ratio of the Company immediately prior to such transaction or series of
transactions; and (vi) the surviving entity shall have delivered to the Trustee
under the Indenture a Company Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction or series
of transactions, such supplemental indenture, complies with this Section 5.01
and that all conditions precedent in the Indenture relating to the transaction
or series of transactions have been satisfied.
16. Successors.
When a successor corporation assumes all of the obligations of
the Company under the Indenture and under the Debt Securities and agrees to be
bound hereby and thereby, the predecessor shall be released from such
obligations.
17. Defaults and Remedies.
If an Event of Default (other than an Event of Default
specified in clause (f), (g), (h) or (k) of Section 6.01 of the Indenture)
occurs and is continuing, then the Holders of at least 25% in aggregate
principal amount of the outstanding Debt Securities may, by written notice, and
the Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the outstanding Debt Securities shall, declare the principal
of, premium, if any, accrued interest and any other amounts (including,
Additional Amounts and Default Interest, if any), on all the Debt Securities to
be immediately due and payable. Upon any such declaration such amounts shall
become due and payable immediately. If an Event of Default specified in clause
(f), (g), (h) or (k) of Section 6.01 of the Indenture occurs and is continuing,
then the principal of, premium, if any, accrued interest and any other amounts
(including Additional Amounts and Default Interest, if any) on all the Debt
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. Holders
may not enforce the Indenture or the Debt Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the Debt
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Debt Securities then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may, subject to
certain exceptions set forth in the Indenture, withhold from Holders notice of
any continuing Default or Event of Default if it determines that withholding
notice is in their interest.
A-11
18. Rights of Holders to Receive Payment.
Notwithstanding any other provision of the Indenture or this
Debt Security, the right of any Holder to receive payment of principal of,
premium, if any, and accrued interest on, a Debt Security on or after the
respective due dates expressed in such Debt Security, or to bring suit
(including any "accion ejecutiva individual" pursuant to Article 29 of the
Negotiable Obligations Law of Argentina) for the enforcement of any such payment
on or after such respective date, shall not be impaired or affected without the
consent of the Holder.
19. Individual Rights of Trustee.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Debt Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.
20. No Recourse Against Others.
No director, officer, employee, stockholder or incorporator,
as such, of the Company shall have any liability for any obligations of the
Company under the Debt Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creations. Each Holder by
accepting a Debt Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Debt Securities.
21. Authentication.
This Debt Security shall not be valid until the Trustee
manually signs the certificate of authentication on this Debt Security.
22. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), J TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
23. CUSIP Numbers.
The Company will cause CUSIP numbers to be printed on the Debt
Securities as a convenience to the Holders of the Debt Securities. No
representation is made as to the accuracy of such numbers as printed on the Debt
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to the Chief
Financial Officer, Autopistas de Sol S.A. -- Ruta Panamericana 2451, (B1609JVF)
Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx, telephone number (54) (00) 0000-0000.
A-12
24. Governing Law.
The Indenture and the Debt Securities shall be governed by the
laws of the State of New York excluding (to the greatest extent a New York court
would permit) any rule of law that would cause application of the laws of any
jurisdiction other than the State of New York; provided, however, that the
Negotiable Obligations Law shall govern the requirements for the Debt Securities
to qualify as obligaciones negociables thereunder while such law, together with
the Argentine Business Companies Law no. 19,550, as amended, and other
applicable Argentine law and regulations shall govern the corporate power and
authority of the Company to execute and deliver the Debt Securities, the
authorization and public offering of the Debt Securities by the CNV, and certain
matters relating to meetings of Holders, including quorum, majority and
convening requirements.
A-13
ASSIGNMENT FORM
I or we assign and transfer this Debt Security to
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee)
_______________________________________________________________________________
(Insert Social Security or other identifying number of assignee)
and irrevocably appoint_______________________________________________________
agent to transfer this Debt Security on the books of the Company. The agent may
substitute another to act for him or her.
Dated: _______________ Signed:_______________________________________
(Sign exactly as name appears on the
other side of this Debt Security)
Signature Guarantee:___________________________
Participant in a recognized
Signature Guarantee
Medallion Program (or other
signature guarantor program
reasonably acceptable to
the Trustee)
A-14
EXHIBIT B
FORM OF LEGEND FOR GLOBAL DEBT SECURITIES
Any Global Debt Security authenticated and delivered hereunder
shall bear a legend (which would be in addition to any other legends required in
the case of a Restricted Debt Security) in substantially the following form:
THIS DEBT SECURITY IS A GLOBAL DEBT SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS DEBT SECURITY IS NOT EXCHANGEABLE FOR DEBT SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED N THE INDENTURE,
AND NO TRANSFER OF THIS DEBT SECURITY (OTHER THAN A TRANSFER OF THIS
DEBT SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
EXHIBIT C
FORM OF PRIVATE PLACEMENT LEGEND
THIS DEBT SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES, EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS
ACTING IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT
DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT OR (B) IT IS ACQUIRING
THIS DEBT SECURITY IN AN OFFSHORE TRANSACTION (WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES THAT IT WILL NOT
(WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(K) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS DEBT
SECURITY) OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS DEBT SECURITY
OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE
SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES
ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR
(E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
C-1
EXHIBIT D
Form of Transfer Certificate for
Transfer from Rule 144A Global Security
to Regulation S Global Security
(Transfers pursuant to Section 2.16 of the Indenture)
JPMorgan Chase Bank
as Trustee
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Autopistas del Sol S.A.
-% Debt Securities (the "Debt Securities")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of - (the
"Indenture") among Autopistas del Sol S.A. (the "Company"), as Issuer, JPMorgan
Chase Bank, as Trustee, Co-Registrar and Principal Paying Agent, and JPMorgan
Chase Bank, as Registrar, Paying Agent and Transfer Agent. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to U.S.$- aggregate principal amount of
Debt Securities which are evidenced by a Rule 144A Global Security (CUSIP No.-,
ISIN-) and held with the Depositary in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Rule 144A Global Security to a person who will take delivery
thereof in the form of an equal aggregate principal amount of Debt Securities
evidenced by a Regulation S Global Security of the same series and of like tenor
as the Debt Securities (CUSIP No.-, ISIN-).
In connection with such request and in respect of such Debt
Securities, the Transferor does hereby certify that such transfer has been
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby further certify that:
(1) the offer of the Debt Securities was not made to a
person in the United States;
(2) either (a) at the time the buy order was originated,
the transferee was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the transferee was
outside the United States or (b) the transaction was executed in, on or
through the facilities of a Designated Offshore Securities Market and
neither the Transferor nor any person acting on its behalf knows that
the transaction was prearranged with a buyer in the United States;
D-1
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined herein or in the Indenture have the meanings set forth in
Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_______________________________
Name:
Title:
Dated: ______________________
cc: Autopistas del Sol S.A.
D-2
EXHIBIT E
Form of Transfer Certificate for
Transfer from Regulation S Global Security
to Rule 144A Global Security
(Transfers pursuant to Section 2.16 of the Indenture)
__________,_____
JPMorgan Chase Bank
as Trustee
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Autopistas del Sol S.A.
-% Debt Securities (the "Debt Securities")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of- (the
"Indenture") among Autopistas del Sol S.A. (the "Company"), as Issuer, JPMorgan
Chase Bank, as Trustee, Co-Registrar and Principal Paying Agent, and JPMorgan
Chase Bank, as Registrar, Paying Agent and Transfer Agent. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to U.S.$- aggregate principal amount of
Debt Securities which are evidenced by a Regulation S Global Security (CUSIP
No.-, ISIN -) and held with the Depositary through Euroclear or Clearstream,
Luxembourg or both (Common Code -) in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Regulation S Global Security to a person who will take delivery
thereof in the form of an equal aggregate principal amount of Debt Securities
evidenced by a Rule 144A Global Securities of the same series and of like tenor
as the Debt Securities (CUSIP No. -, ISIN -). The Transferor has informed such
person that he is obtaining an interest in a Debt Securities that is subject to
restrictions on transfer and that each subsequent transferee should be so
informed.
In connection with such request and in respect of such Debt
Securities, the Transferor does hereby certify that such transfer has been
effected pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby further certify that the Debt Securities are being
transferred to a person that the Transferor reasonably believes is purchasing
the Debt Securities for its own account, or for one or more accounts with
respect to which such person
E-1
exercises sole investment discretion, and such person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, in each case in a transaction meeting the requirements of Rule
144A and in accordance with any applicable securities laws of any state of the
United States.
The Transferor further certifies that it is not an "affiliate"
of the Company within the meaning of the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:________________________________
Name:
Title:
Dated: ________________
cc: Autopistas del Sol S.A.
E-2
EXHIBIT F
Form of Transfer Certificate for
Transfer from Certificated Debt Security
to Rule 144A Global Security
(Transfers pursuant to Section 2.16 of the Indenture)
__________,_____
JPMorgan Chase Bank
as Trustee
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Autopistas del Sol S.A.
-% Debt Securities (the "Debt Securities")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of- (the
"Indenture") among Autopistas del Sol S.A. (the "Company"), as Issuer, JPMorgan
Chase Bank, as Trustee, Co-Registrar and Principal Paying Agent, and JPMorgan
Chase Bank, as Registrar, Paying Agent and Transfer Agent. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to U.S.$- aggregate principal amount of
Debt Securities which are held in the name of [insert name of transferor] (the
"Transferor"), certificate number [insert certificate number]. The Transferor
has requested a transfer of such Debt Securities to a person who will take
delivery thereof in the form of an equal aggregate principal amount of Debt
evidenced by a beneficial interest in a Rule 144A Global Security (CUSIP No. -,
ISIN -). The Transferor has informed such person that he is obtaining an
interest in a Debt Securities that is subject to restrictions on transfer and
that each subsequent transferee should be so informed.
In connection with such request and in respect of such Debt
Securities, the Transferor does hereby certify that such transfer has been
effected pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby further certify that the Debt Securities are being
transferred to a person that the Transferor reasonably believes is purchasing
the Debt Securities for its own account, or for one or more accounts with
respect to which such person exercises sole investment discretion, and such
person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act, in each case in a
F-1
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
The Transferor further certifies that it is not an "affiliate"
of the Company within the meaning of the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:_________________________________
Name:
Title:
Dated: ________________
cc: Autopistas del Sol S.A.
F-2
EXHIBIT G
Form of Transfer Certificate for
Transfer from Certificated Debt Security
to Regulation S Global Security
(Transfers pursuant to Section 2.16 of the Indenture)
JPMorgan Chase Bank
as Trustee
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Autopistas del Sol S.A.
-% Debt Securities (the "Debt Securities")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of - (the
"Indenture") among Autopistas del Sol S.A. (the "Company"), as Issuer, JPMorgan
Chase Bank, as Trustee, Co-Registrar and Principal Paying Agent, and JPMorgan
Chase Bank, as Registrar, Paying Agent and Transfer Agent. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to U.S.$- aggregate principal amount of
Debt Securities which are held in the name of [insert name of transferor] (the
"Transferor"), certificate number [insert certificate number]. The Transferor
has requested a transfer of such Debt Securities to a person who will take
delivery thereof in the form of an equal aggregate principal amount of Debt
evidenced by a beneficial interest in a Regulation S Global Security (CUSIP No.
-, ISIN -). The Transferor has informed such person that he is obtaining an
interest in a Debt Securities that is subject to restrictions on transfer and
that each subsequent transferee should be so informed.
In connection with such request and in respect of such Debt
Securities, the Transferor does hereby certify that such transfer has been
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby further certify that:
(1) the offer of the Debt Securities was not made to a
person in the United States;
(2) either (a) at the time the buy order was originated,
the transferee was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the transferee was
outside the United States or (b) the transaction was executed in, on or
through the facilities of a Designated Offshore Securities Market and
neither the Transferor nor any person acting on its behalf knows that
the transaction was prearranged with a buyer in the United States;
G-1
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined herein or in the Indenture have the meanings set forth in
Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_______________________________
Name:
Title:
Dated: _______________
cc: Autopistas del Sol S.A.
G-2
EXHIBIT H
Form of Transfer Certificate for
Transfer from Certificated Debt Security
to Certificated Debt Security
(Transfers pursuant to Section 2.16 of the Indenture)
JPMorgan Chase Bank
as Trustee
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Autopistas del Sol S.A.
-% Debt Securities (the "Debt Securities")
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of - (the
"Indenture") among Autopistas del Sol S.A. (the "Company"), as Issuer, JPMorgan
Chase Bank, as Trustee, Co-Registrar and Principal Paying Agent, and JPMorgan
Chase Bank, as Registrar, Paying Agent and Transfer Agent. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to U.S.$- aggregate principal amount of
Debt Securities which are held in the name of [insert name of transferor] (the
"Transferor"), certificate number [insert certificate number]. The Transferor
has requested a transfer of such Debt Securities to the undersigned. The
Transferor has informed such person that he is obtaining an interest in a Debt
Securities that is subject to restrictions on transfer and that each subsequent
transferee should be so informed.
Upon transfer, the transferred Debt Securities should be
registered in the name of the new owner as follows:
Name: ____________________________
Address: __________________________
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
H-1
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
[Insert Name of Transferor]
By:_______________________________
Name:
Title:
Dated: _______________
cc: Autopistas del Sol S.A.
H-2
AUTOPISTAS DEL SOL S.A., as Issuer
JPMORGAN CHASE BANK, as Trustee,
Co-Registrar and Principal Paying Agent
AND
JPMORGAN CHASE BANK, as Registrar,
Paying Agent and Transfer Agent
-------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of -, 2004
to INDENTURE
Dated as of -, 2004
Relating to
10-Year Step-Up Notes due 2014
--------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION
Section 1.01. Incorporation of Definitions.......................................................... 2
Section 1.02. Definitions........................................................................... 2
Section 1.03. Other Definitions..................................................................... 4
Section 1.04. Rules of Construction................................................................. 4
ARTICLE 2
THE 10-YEAR NOTES
Section 2.01. Form and Dating....................................................................... 5
Section 2.02. Maximum Aggregate Principal Amount; Title and Terms................................... 5
Section 2.03. Certificated or Global Notes in Registered Form....................................... 5
Section 2.04. Further Issues of 10-Year Notes....................................................... 6
Section 2.05. Waiver and Release.................................................................... 6
ARTICLE 3
REDEMPTION AND REPURCHASE
Section 3.01. Mandatory Redemption.................................................................. 6
Section 3.02. Purchase of 10-Year Notes by the Company.............................................. 7
ARTICLE 4
COVENANTS
Section 4.01. Limitation on Liens................................................................... 7
Section 4.02. Limitation on Sale and Leaseback Transactions......................................... 8
Section 4.03. Limitation on Dividends............................................................... 8
Section 4.04. Offer to Purchase upon Change of Control.............................................. 9
Section 4.05. Limitation on Additional Indebtedness................................................. 10
ARTICLE 5
10-YEAR NOTES RESERVE ACCOUNT
Section 5.01. Grant of Security Interest............................................................ 12
Section 5.02. Terms of the 10-Year Notes Reserve Account............................................ 12
i
TABLE OF CONTENTS
(continued)
PAGE
Section 5.03. Release of Reserve Account Funds From the 10-Year Notes Reserve Account............... 13
Section 5.04. Representations, Warranties and Covenants Specific to the 10-Year Notes Reserve
Account............................................................................... 14
Section 5.05. Jurisdiction.......................................................................... 14
ARTICLE 6
MISCELLANEOUS
Section 6.01. Supplemental Indenture................................................................ 14
Section 6.02. Governing Law......................................................................... 15
Section 6.03. No Adverse Interpretation of Other Agreements......................................... 15
Section 6.04. No Recourse Against Others............................................................ 15
Section 6.05. Successors............................................................................ 15
Section 6.06. Severability.......................................................................... 15
Section 6.07. Table of Contents, Headings, Etc...................................................... 15
Section 6.08. Benefits of First Supplemental Indenture.............................................. 15
Section 6.09. Independence of Covenants............................................................. 16
Section 6.10. Counterparts.......................................................................... 16
Section 6.11. Concerning the Trustee................................................................ 16
EXHIBITS
A Form of 10-Year Step-Up Note
B Form of Legend for Global Notes
C Form of Private Placement Legend
D Form of Original Issue Discount Legend
----------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
ii
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of -, 2004, is
among AUTOPISTAS DEL SOL S.A., a sociedad anonima existing under the laws of the
Republic of Argentina, and registered with the Public Registry of Commerce on
February 4, 1994 under No. 950, Book 114, Volume "A" of Sociedades Anonimas,
with its current domicile at Xx. Xxxxxxx X. Xxxx 000 0xx Xxxxx, (X0000XXX),
Buenos Aires, Argentina (the "Company"), as Issuer, JPMORGAN CHASE BANK, as
trustee (the "Trustee"), Co-Registrar and Principal Paying Agent, and in its
individual capacity for the purposes of Article 5 herein (the "Bank"), and
JPMORGAN CHASE BANK, as Registrar, Paying Agent and Transfer Agent, under the
Indenture, dated as of -, 2004, among the Company, JPMORGAN CHASE BANK, as
Trustee, Co-Registrar and Principal Paying Agent, and JPMORGAN CHASE BANK, as
Registrar, Paying Agent and Transfer Agent (the "Indenture," as supplemented and
amended by this First Supplemental Indenture, the "10-Year Notes Indenture").
RECITALS
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the issuance of the Company's Debt Securities to be
issued from time to time in one or more series as might be determined by the
Company under the Indenture, without limitation on the aggregate principal
amount of Debt Securities that may be authenticated and delivered as provided in
the Indenture;
WHEREAS, Section 2.02 of the Indenture provides for the
issuance from time to time of Debt Securities of the Company, issuable for the
purpose and subject to the limitations contained in the Indenture;
WHEREAS, the Company has duly authorized the creation of a new
series of Debt Securities, consisting of an unlimited aggregate principal amount
of Debt Securities known as its 10-Year Step-Up Notes due 2014 (the "10-Year
Notes"). The 10-Year Notes shall be issued at 100% of their principal amount as
payment for previously outstanding indebtedness of the Company pursuant to the
terms of an acuerdo preventivo extrajudicial the Company filed with a commercial
court in the city of Buenos Aires on August 8, 2003 (the "APE"). The form and
substance of each such issue of the 10-Year Notes and the terms, provisions and
conditions of the 10-Year Notes shall be set forth as provided in this First
Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee and the
Bank execute and deliver this First Supplemental Indenture; all requirements
necessary to make this First Supplemental Indenture a valid instrument in
accordance with its terms, and to make the 10-Year Notes, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been performed; and the execution and delivery of this First
Supplemental Indenture have been duly authorized in all respects.
NOW THEREFORE, in consideration of these premises, the Company
and the Trustee mutually covenant and agree for the benefit of the Holders from
time to time of the 10-Year Notes as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION
SECTION 1.01. Incorporation of Definitions. For all
purposes of this First Supplemental Indenture, capitalized terms used but not
defined herein shall have the meanings specified in the Indenture. If any term
is defined in this First Supplemental Indenture and in the Indenture, such term
shall have the meaning assigned to it in this First Supplemental Indenture.
SECTION 1.02. Definitions.
"5-Year Notes" means, together, the Debt Securities
constituting the Company's 5-Year Listed Discount Notes due 2009 and the 5-Year
Unlisted Discount Notes due 2009, each issued on the Issue Date.
"5-Year Notes Indenture" means the Indenture, as supplemented
by the 5-Year Notes supplemental indenture, dated as of 2009, among the Company,
JPMorgan Chase Bank, as the Trustee, Co-Registrar and Principal Paying Agent,
and in its individual capacity as the Bank, and JPMorgan, as Registrar, Paying
Agent and Transfer Agent, pursuant to which the 5-Year Notes are issued.
"5-Year Notes Reserve Account" means the non-interest bearing
trust account established in the 5-Year Notes Indenture by the Company with the
Bank to secure the payment of the scheduled interest obligations of the Company
for the 5-Year Notes.
"10-Year Notes" has the meaning set forth in the Recitals
hereto.
"10-Year Notes Indenture" has the meaning set forth in the
Recitals hereto.
"APE" has the meaning set forth in the Recitals hereto.
"Bank" means the party named as such in this First
Supplemental Indenture until a successor replaces it pursuant to the 10-Year
Notes Indenture and thereafter means such successor.
"Cash Tender Offer" means the cash tender offer conducted by
the Company for its 9.35% Series A Senior Notes due 2004, 10.25% Series B Senior
Notes due 2009 and certain of its bank debt, that closed on July 24, 2003.
"Change of Control" means (i) the direct or indirect sale,
lease, exchange or other transfer of all or substantially all of the assets of
the Company to any Person or entity or group of Persons or entities acting in
concert as a partnership or other group (a "Group of Persons") other than a
Principal Shareholder and/or any of its Affiliates, (ii) a Person or Group of
Persons (other than a Principal Shareholder and/or any of its Affiliates) will,
as a result of a tender or exchange offer, open market purchases, privately
negotiated purchases or otherwise, have become the direct or indirect beneficial
owner (within the meaning of Rule 13d-3 under the Exchange Act) of Capital Stock
of the Company representing 50% or more of the combined voting power of the then
outstanding securities of the Company ordinarily having the right to vote in the
election of directors, or (iii) Argentina or any of its instrumentalities
(including, without limitation,
2
departments, districts and municipalities), including government-owned
corporations or public entities, will own Capital Stock of the Company
representing 50% or more of the combined voting power of the then outstanding
securities of the Company ordinarily having the right to vote in the election of
directors.
"Company" means the party named as such in this First
Supplemental Indenture until a successor replaces it pursuant to the 10-Year
Notes Indenture and thereafter means such successor.
"Debt Principal Amortization" means, for any period, any
amounts required to be paid toward the amortization, prepayment or redemption of
principal on outstanding debt.
"EBITDA" means, with respect to any period, the Net Income of
the Company for such period, (A) increased (to the extent deducted in
calculating Net Income) by the sum of: (i) Income Taxes for that period; (ii)
Financial and Holding Results for that period, to the extent negative; (iii) all
depreciation expense of the Company for that period; (iv) amortization expense
of the Company for that period; (v) any other extraordinary non-cash charges of
the Company for that period, to the extent deducted in determining the Net
Income of the Company, and (B) reduced (without duplication) by the sum of (i)
Financial and Holding Results for that period, to the extent positive, (ii)
amortization of negative goodwill for that period, (iii) non-cash royalty
revenues for that period and (iv) other non-cash income, net (if positive) for
that period, all determined in accordance with Argentine GAAP.
"Financial and Holding Results" means, for any period,
financial and holding results as determined in accordance with Argentine GAAP.
"First Supplemental Indenture" means this First Supplemental
Indenture as it may be amended or supplemented from time to time.
"Global Note" means a 10-Year Note evidencing all or a part of
the 10-Year Notes, as the case may be, issued to the Depositary or its nominee
in accordance with Section 2.03 and bearing the legend prescribed in Exhibit B.
"Income Taxes" means, for any period, all income taxes
(including minimum notional income taxes) of the Company paid or accrued in
accordance with Argentine GAAP for such period (other than income taxes
attributable to extraordinary, unusual or non-recurring gains or losses).
"Indenture" has the meaning specified in this First
Supplemental Indenture.
"Installment Payment Date" means each - and -, beginning on -
and ending on -.
"Issue Date" means the date on which the 10-Year Notes are
originally issued.
"Maturity Date" means -, 2014.
"Net Income" means, for any period, the net income (loss) of
the Company determined in accordance with Argentine GAAP.
3
"Record Date" means each -, -, - and -.
"Solicitation Statement" means the Solicitation Statement,
dated May 15, 2003, as amended or supplemented from time to time, pursuant to
which the Company solicited powers of attorney to execute a consent to the APE.
"Trustee" means the party named as such in this First
Supplemental Indenture until a successor replaces such party in accordance with
the provisions of the 10-Year Notes Indenture, and thereafter means such
successor.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the State of New York.
SECTION 1.03. Other Definitions.
Defined in
Term Section
---- ----------
"10-Year Notes Reserve Account"................................. 5.01
"Certificated Notes"............................................ 2.03(c)
"Change of Control Date"........................................ 4.04(a)
"Change of Control Offer"....................................... 4.04(a)
"Change of Control Payment Date"................................ 4.04(a)
"Change of Control Purchase Price".............................. 4.04(a)
"Regulation S Global Notes"..................................... 2.03(b)
"Reserve Account Funds"......................................... 5.02(d)
"Reserve Account Investments"................................... 5.02(e)
"Reserve Repayment" ............................................ 5.03(a)
"Rule 144A Global Notes"........................................ 2.03(a)
"Secured Obligations"........................................... 5.01
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words in the
plural include the singular;
(d) provisions apply to successive events and transactions;
(e) "herein," "hereof" and other words of similar import refer
to this First Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(f) unless otherwise specified herein, all accounting terms
used herein shall be interpreted and all accounting determinations hereunder
shall be made in accordance with
4
Argentine GAAP, and all financial statements required to be delivered hereunder
shall be prepared in accordance with Argentine GAAP.
ARTICLE 2
THE 10-YEAR NOTES
SECTION 2.01. Form and Dating. (a) Each 10-Year Note shall
be substantially in the form set forth in Exhibit A and contain the terms and
provisions provided for therein and incorporated by reference herein, which
shall for all purposes relevant to the 10-Year Notes issued hereunder replace in
its entirety the form of Debt Security set forth in Exhibit A to the Indenture.
If any provision of the 10-Year Notes Indenture limits, qualifies or conflicts
with any term or provision of the 10-Year Notes, such provision in the 10-Year
Notes shall control.
(b) Each of the 10-Year Notes shall be issued only in
fully-registered form, without coupons, in denominations of U.S.$1.00 and
multiples of U.S.$1.00 in excess thereof.
SECTION 2.02. Maximum Aggregate Principal Amount; Title
and Terms. (a) The 10-Year Notes shall constitute a series of Debt Securities of
the Company having an initial aggregate principal that is not limited. Upon
receipt of a written order of the Company for the authentication and delivery of
the 10-Year Notes and satisfaction of the requirements of Section 2.03 of the
Indenture, the Trustee shall authenticate 10-Year Notes for original issuance in
the principal amount set forth in such written order.
(b) The 10-Year Notes shall bear interest on the outstanding
principal amount at a rate of (a) 3.00% per annum from - to -, (b) 3.50% per
annum from - to -, and (c) 5.00% per annum from - to -. Interest on the 10-Year
Notes shall be payable in arrears on each Interest Payment Date to the person in
whose name such 10-Year Note (or any predecessor 10-Year Notes) is registered at
the close of business in The City of New York on the immediately preceding
Record Date. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
(c) The Company shall pay interest on overdue principal and
interest on overdue installments of interest, to the extent lawful, at a rate
equal to 1.00% per annum.
(d) Each 10-Year Note and the Trustee's certificates of
authentication thereon shall be substantially in the form set forth in Exhibit
A, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by the 10-Year Notes Indenture,
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon, not inconsistent with the 10-Year Notes
Indenture, as may be required to comply with any applicable law or rule or
regulation, the 10-Year Notes Indenture, any rule of any securities exchange on
which any of the 10-Year Notes may be listed, or of any governmental agency or
any depositary thereof, and subject to the prior approval of the CNV where
applicable, or as may, consistently herewith, be determined by the officers of
the Company executing such 10-Year Notes, as evidenced by their execution of the
10-Year Notes.
SECTION 2.03. Certificated or Global Notes in Registered
Form. (a) 10-Year Notes offered and sold in reliance on Rule 144A of the
Securities Act shall be issued
5
initially in the form of one or more permanent Global Notes ("Rule 144A Global
Notes") in registered form, substantially in the form set forth in Exhibit A,
deposited with the Trustee, as custodian for the Depositary and shall bear the
legends set forth in Exhibits B and C. The aggregate principal amount of any
Rule 144A Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary.
(b) 10-Year Notes offered and sold in offshore transactions in
reliance on Regulation S of the Securities Act or sold pursuant to the exemption
from registration under Section 3(a)(9) of the Securities Act shall be issued in
the form of one or more permanent Global Notes ("Regulation S Global Notes") in
registered form, substantially in the form set forth in Exhibit A, deposited
with the Trustee, as custodian for the Depositary and shall bear the legend set
forth in Exhibit C. The aggregate principal amount of any Regulation S Global
Note may from time to time be decreased or increased by adjustments made on the
records of the Trustee, as custodian for the Depositary.
(c) 10-Year Notes offered and sold in reliance on the
exemption from registration in Section 4(2) of the Securities Act to persons who
are not "Qualified Institutional Buyers" as defined in Rule 144A shall be issued
in the form of one or more Certificated Debt Securities ("Certificated Notes")
in registered form, substantially in the form set forth in Exhibit A and shall
bear the legend set forth in Exhibit C. Upon such issuance, the Registrar shall
register such Certificated Debt Security in the name of the owner of such
security and deliver the certificates for such Certificated Debt Securities to
such owner.
SECTION 2.04. Further Issues of 10-Year Notes. The Company
may from time to time without the consent of the Holders create and issue
further notes, bonds or debentures having the same terms and conditions as the
10-Year Notes in all respects (or in all respects except for payment of interest
scheduled and paid prior to such time), so that such further issue may be
consolidated and form a single series with the outstanding 10-Year Notes.
SECTION 2.05. Waiver and Release. As part of the
consideration for issuance of the 10-Year Notes, each Holder of 10-Year Notes,
by accepting 10-Year Notes, waives any rights that it may have pursuant to
Argentine law to claw back (accion revocatoria) or bring action against any
Director or Officer of the Company (accion de responsabilidad), and releases
such Director or Officer from any liability, arising out of payments made by the
Company as a result of the consummation of the Cash Tender Offer in accordance
with the Offer to Purchase, dated May 15, 2003, as the same may have been
amended.
ARTICLE 3
REDEMPTION AND REPURCHASE
SECTION 3.01. Mandatory Redemption. On each Installment
Payment Date, the Company shall redeem U.S.$ - million principal amount of
10-Year Notes at a Redemption Price equal to 100% of the principal amount
thereof, together with accrued and unpaid interest and Additional Amounts, if
any, to but not including the applicable Installment Payment Date.
6
SECTION 3.02. Purchase of 10-Year Notes by the Company.
For purposes of this First Supplemental Indenture and the 10-Year Notes
Indenture, Section 3.07 of the Indenture is hereby amended in its entirety as
follows:
"SECTION 3.07. Purchase of 10-Year Notes by
the Company. The Company may at any time during the first six
months immediately following the Issue Date and thereafter
following the maturity or earlier redemption of the 5-Year
Notes purchase 10-Year Notes in the open market, or by tender
or private agreement at any price. Any 10-Year Notes so
purchased must be delivered by the Company to the Trustee for
cancellation."
ARTICLE 4
COVENANTS
SECTION 4.01. Limitation on Liens. For purposes of this
First Supplemental Indenture and the 10-Year Notes, the definition of "Permitted
Liens" in Section 1.01 of the Indenture is hereby amended to read in its
entirety as follows:
""Permitted Liens" means: (i) Liens on the 5-Year
Notes Reserve Account and on the 10-Year Notes Reserve
Account, (ii) any Lien existing as of the Issue Date; (iii)
any Lien arising by reason of (a) any judgment, decree or
order of any court, so long as such Lien is being contested in
good faith and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment,
decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall
not have expired, (b) taxes or other assessments, governmental
charges or levies not yet delinquent or which are being
contested in good faith, (c) security for payment of workers'
compensation or other insurance or obligations arising from
other social security laws, (d) security for the performance
of tenders, contracts (other than contracts for the payment of
money) or leases, (e) deposits to secure public or statutory
obligations, or in lieu of surety or appeal bonds or to secure
permitted contracts for the purchase or sale of any currency,
in each case entered into in the ordinary course of business,
(f) operation of law in favor of carriers, warehousemen,
landlords, mechanics, materialmen, laborers, employees or
suppliers, incurred in the ordinary course of business for
sums which are not yet delinquent or are being contested in
good faith by negotiations or by appropriate proceedings which
suspend the collection thereof, and (g) security for surety or
appeal bonds; (iv) easements, rights-of-way, zoning and
similar covenants and restrictions and other similar
encumbrances or title defects which, in the aggregate, are not
substantial in amount, and which do not in any case materially
detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business
of the Company; (v) leases and subleases of real property
which do not interfere with the ordinary conduct of the
business of the Company, and which are made on customary and
usual terms applicable to similar properties; (vi) Liens
securing Acquired Indebtedness, provided that such Liens do
not extend to or cover any property or assets of the Company
other than the property or assets so acquired; (vii) Liens
securing Indebtedness which is
7
incurred to refinance Indebtedness which has been secured by a
Lien permitted herein and is permitted to be refinanced
pursuant to Article 4; provided that such Liens do not extend
to or cover any property or assets of the Company not securing
the Indebtedness so refinanced; (viii) Liens securing
Capitalized Lease Obligations, purchase money mortgages or
pledges or other purchase money Liens upon any property
acquired, constructed or improved by the Company after the
Issue Date which are acquired or held by such entity in the
ordinary course of business and are securing solely the
purchase, construction or improvement price or lease rental of
such property or are Indebtedness incurred solely for the
purpose of financing the acquisition or lease of such property
(but only to the extent the Indebtedness secured by such Liens
shall otherwise be permitted under the covenants set forth in
Article 4); (ix) any interest or title of a lessor or
sublessor, or any Lien in favor of a landlord, arising under
any real or personal property lease under which the Company is
a lessee, sublessee or subtenant (other than any interest,
title or Lien securing any Capitalized Lease Obligation); (x)
Liens securing Indebtedness permitted under clause (ii) of
Section 4.04 and (xi) other Liens securing Indebtedness if the
Indebtedness secured by the Lien, plus Attributable Debt in
connection with Sale-Leaseback Transactions permitted in
clause (a) of Section 4.06 (excluding Indebtedness secured by
Liens permitted by (i) through (vii) and (ix) and (x) above),
at the time of determination does not exceed U.S.$5,000,000 in
the aggregate."
SECTION 4.02. Limitation on Sale and Leaseback
Transactions. For purposes of this First Supplemental Indenture and the 10-Year
Notes, clause (a) of Section 4.06 of the Indenture is hereby amended in its
entirety to read as follows:
"(a) under the provision described in clause (xi) of
the definition of Permitted Lien, the Company could create a
Lien on the property to secure Indebtedness at least equal in
amount to the Attributable Debt in connection with the
Sale-Leaseback Transaction; or".
SECTION 4.03. Limitation on Dividends. For the purposes of
this First Supplemental Indenture and the 10-Year Notes, Section 4.15 of the
Indenture is hereby amended as follows:
"SECTION 4.15. Limitation on Dividends. "The
Company shall not declare or pay any dividend or any other
distribution on Capital Stock of the Company or any payment
made to the direct or indirect holders (in their capacities as
such) of Capital Stock of the Company (other than dividends or
distributions payable solely in Capital Stock (other than
Disqualified Stock) in options, warrants or other rights to
purchase Capital Stock (other than Disqualified Stock)) (i) at
any time, if any 5-Year Notes are outstanding, and (ii)
thereafter, at any time that the Company's ratio of
Indebtedness, as of the date of the Company's most recent
quarterly balance sheet, to EBITDA for the four quarters
immediately preceding such balance sheet date is greater than
4.5 to 1; provided that the aggregate amount of dividends
declared or paid in any calendar year shall not exceed the
aggregate principal amount of 10-Year Notes redeemed or
repurchased in that calendar year."
8
SECTION 4.04. Offer to Purchase upon Change of Control.
(a) Upon the occurrence of a Change of Control (the date of each such
occurrence, a "Change of Control Date"), the Company shall notify the Holders
(by mail and publication) in the manner described in Section 10.01 of the
Indenture of such occurrence and shall make to all of the Holders an offer to
purchase (a "Change of Control Offer") for cash, on a Business Day (a "Change of
Control Payment Date") not later than 60 days following the Change of Control
Date, all of such Holder's 10-Year Notes then outstanding at a purchase price
(the "Change of Control Purchase Price") equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the Change of Control
Payment Date. The Company will not be required to make a Change of Control Offer
following a Change of Control if (i) a third party makes a Change of Control
Offer that would be in compliance with the provisions described in this
paragraph if it were made by the Company and (ii) such third party has purchased
all the 10-Year Notes validly tendered and not withdrawn pursuant to such Change
of Control Offer.
(b) Notice of a Change of Control Offer shall be mailed by the
Company (or caused to be mailed by the Company), with a copy to the Trustee, not
less than 30 days nor more than 60 days before the Change of Control Payment
Date to each Holder at its last registered address. The Change of Control Offer
shall remain open from the time of mailing for at least 20 Business Days and
until 5:00 p.m., New York City time, on the Business Day next preceding the
Change of Control Payment Date. The notice, which shall govern the terms of the
Change of Control Offer, shall include such disclosures as are required by law
and shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.04 and that all 10-Year Notes tendered for
repurchase will be accepted for payment;
(2) the purchase price (including the amount of accrued
interest on each 10-Year Note) and the Change of Control Payment Date;
(3) that any 10-Year Note not surrendered in accordance
with clause (5) below for payment will continue to be outstanding and
accrue interest;
(4) that any 10-Year Note surrendered for payment in
accordance with clause (5) below pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control
Payment Date unless the Company defaults in making payment therefore of
the repurchase price plus accrued and unpaid interest, if any;
(5) that Holders electing to have a 10-Year Note
purchased pursuant to a Change of Control Offer will be required to
surrender such 10-Year Note, with the form entitled "Option of Holder
to Elect Purchase" on the last page of such 10-Year Note completed, to
the Paying Agent at the address specified in the notice no later than
5:00 p.m. New York City time on the Business Day immediately prior to
the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m. New
York City time on the Business Day immediately prior to the Change of
Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount at
maturity of the 10-Year Note such Holder delivered for purchase and a
statement that such Holder is
9
withdrawing its election to have such 10-Year Note purchased, and
promptly thereafter the Paying Agent shall redeliver such withdrawn
10-Year Notes to the Holder;
(7) that a Holder who has not surrendered such Holder's
10-Year Notes for purchase in accordance with clause (5) above pursuant
to such Change of Control Offer by 5:00 p.m. New York City time on the
Business Day prior to the Change of Control Payment Date will have no
continuing right to require the Company to repurchase such Holder's
10-Year Notes;
(8) that Holders whose 10-Year Notes are tendered for
purchase in part only will be issued new 10-Year Notes equal in
principal amount at maturity to the principal amount at maturity of the
unpurchased portion of such 10-Year Notes surrendered; and
(9) the circumstances and relevant facts regarding such
Change of Control.
(c) On the Change of Control Payment Date, the Company shall
(i) accept for payment 10-Year Notes or portions thereof tendered pursuant to
the Change of Control Offer, (ii) by 12:00 Noon New York City time on the
Business Day immediately preceding the Change of Control Payment Date, deposit
with the Paying Agent immediately available funds sufficient to pay the purchase
price of all 10-Year Notes or portions thereof so tendered and (iii) deliver or
cause to be delivered to the Trustee, 10-Year Notes so accepted together with a
Company Certificate identifying the 10-Year Notes or portions thereof tendered
for payment. The Paying Agent shall promptly deliver to Holders of 10-Year Notes
so accepted payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail or make available to such Holders a new
10-Year Note equal in principal amount at maturity to the principal amount at
maturity of any unpurchased portion of such 10-Year Note surrendered. The
Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date. For purposes of
this Section 4.04, the Trustee shall act as the Paying Agent.
(d) The Company shall comply, to the extent applicable, with
any tender offer rules under the Exchange Act which may then be applicable,
including, but not limited to, Rule l4e-l thereunder, and any other applicable
United States and Argentine laws, rules or regulations in connection with the
repurchase of 10-Year Notes pursuant to a Change of Control Offer. To the extent
that the provisions of any laws, rules or regulations conflict with the
provisions of this Section 4.04, the Company shall comply with the applicable
laws, rules and regulations and shall not be deemed to have breached its
obligations under this Section 4.04 by virtue thereof.
SECTION 4.05. Limitation on Additional Indebtedness. For
purposes of this First Supplemental Indenture and the 10-Year Notes, Section
4.04 of the Indenture is hereby amended in its entirety to read as follows:
SECTION 4.04. Limitation on Additional
Indebtedness. (a) So long as any of the 5-Year Notes are
outstanding, the Company shall not create, incur, assume or
issue, directly or indirectly, guarantee or in any manner
become, directly or indirectly, liable for or with respect to
the payment of ("Incur"), or suffer to exist, any
Indebtedness, except for Indebtedness falling within at least
one of the following categories (collectively, "Permitted
Indebtedness"):
10
(i) Indebtedness under the 5-Year Notes and the
10-Year Notes and the indentures with respect to such 5-Year
Notes and 10-Year Notes;
(ii) Indebtedness of the Company outstanding as
of the date of the most recent amendment of or supplement to
the Solicitation Statement as described therein;
(iii) Acquired Indebtedness pursuant to a
transaction permitted to be incurred pursuant to Article 4;
provided that prior to the maturity or earlier redemption of
the 5-Year Notes, such Acquired Indebtedness may not exceed
10% of the Total Indebtedness of the Company as of the last
audited balance sheet of the Company;
(iv) purchase money Indebtedness in an aggregate
principal amount not in excess of U.S.$1,000,000 annually;
(v) any replacements, renewals, refinancings and
extensions of the Indebtedness described in clauses (ii)
through (iv) hereof; provided that any such replacement,
renewal, refinancing and extension (A) shall not provide for
any mandatory redemption, amortization or sinking fund
requirement in an amount greater than or at a time prior to
the amounts and times specified in the Indebtedness being
replaced, renewed, refinanced or extended, (B) shall not
exceed the principal amount (plus accrued interest and
prepayment premium, if any) of the Indebtedness being
replaced, renewed, refinanced or extended, and (C) in the case
of any Indebtedness replacing, renewing, refinancing or
extending Indebtedness which is pari passu to the 5-Year Notes
and 10-Year Notes, any such replacing, renewing, refinancing
or extending Indebtedness is made pari passu to the 5-Year
Notes and 10-Year Notes or subordinated to the 5-Year Notes
and 10-Year Notes, and, in the case of any Indebtedness
replacing, renewing, refinancing or extending Indebtedness is
subordinated to the 5-Year Notes and 10-Year Notes to the same
extent as the Indebtedness being replaced, renewed, refinanced
or extended;
(vi) 10% of the aggregate principal amount of any
5-Year Notes or 10-Year Notes cancelled or redeemed on or
prior to the date of determination; and
(vii) Indebtedness not otherwise permitted to be
incurred pursuant to clauses (i) through (vi) above, which,
together with any other outstanding Indebtedness incurred
pursuant to this clause (vii), has an aggregate principal
amount not in excess of U.S.$10,000,000 at any time
outstanding.
(b) So long as any of the 5-Year Notes are
outstanding, the Company may incur any Indebtedness described
in clause (vi) of Section 4.04(a) only on a subordinated basis
and such Indebtedness must by its terms (or by the terms of
any agreement governing such Indebtedness) be made expressly
subordinated in right of payment of principal and interest and
in right of timing of any payment of principal to the 5-Year
Notes pursuant to subordination
11
provisions that are substantively identical to the
subordination provisions of Indebtedness (or such agreement)
of the Company that are most favorable to the holders thereof
(other than obligations preferred by statute or operation of
law)."
ARTICLE 5
10-YEAR NOTES RESERVE ACCOUNT
SECTION 5.01. Grant of Security Interest. As collateral
security for the full and prompt payment or performance when due of all of the
interest obligations of the Company on each Interest Payment Date for the
10-Year Notes (the "Secured Obligations"), the Company has established with the
Bank under the 5-Year Notes Indenture the 10-Year Notes Reserve Account (the
"10-Year Notes Reserve Account") and grants to the Trustee a continuing
first-priority Lien (which constitutes a Permitted Lien) upon and security
interest in, and pledges and assigns to the Trustee all of the right, title and
interest of the Company in and to the 10-Year Notes Reserve Account, all cash,
securities, financial assets and other property held therein or credited thereto
and all proceeds, income, and profits thereof. From the date hereof and
continuing until the maturity or earlier redemption of the 5-Year Notes, the
10-Year Notes Reserve Account shall be maintained with and managed by the Bank,
and the Bank shall act with respect thereto only in accordance with the 10-Year
Notes Indenture.
SECTION 5.02. Terms of the 10-Year Notes Reserve Account.
(a) From the date hereof and until maturity or earlier redemption of the 5-Year
Notes, a 10-Year Notes Reserve Account shall be established and maintained by
the Company with the Bank in the name "Autopistas del Sol S.A., subject to the
lien and security interest in favor of JPMorgan Chase Bank, as Trustee for the
10-Year Notes" (or in the event a successor Trustee is appointed under the
10-Year Notes Indenture, a similar account shall be established consistently
showing the name of such Trustee), which account shall be under the sole control
of the Trustee in accordance with the 10-Year Notes Indenture. The Bank shall at
all times comply with "instructions" (within the meaning of Section 9-104 of the
UCC) or "entitlement orders" (within the meaning of Section 8-106 of the UCC)
with respect to the 10-Year Notes Reserve Account from the Trustee without
further consent of the Company or any other Person.
(b) So long as any 5-Year Note is outstanding, the Company
shall have no right to withdraw, or to instruct any Person to withdraw, on its
behalf any money from the 10-Year Notes Reserve Account. No passbook,
certificate of deposit or other similar instrument evidencing the 10-Year Notes
Reserve Account shall be issued, and the Trustee shall retain all contracts,
receipts and other papers governing or evidencing the 10-Year Notes Reserve
Account. All right, title and interest in and to any proceeds, income and
profits of the 10-Year Notes Reserve Account shall vest in the Trustee and shall
constitute part of the 10-Year Notes Reserve Account. The Company shall take
such actions at its sole expense as shall be required to ensure that the Trustee
has, from the date of any deposit as aforesaid, a first-priority Lien (subject
to Permitted Liens) on the 10-Year Notes Reserve Account and all deposits and
any other property therein for the benefit of the Trustee. The Company shall
have no obligation under the 10-Year Notes Indenture to transfer or deposit any
amounts into the 10-Year Notes Reserve Account.
(c) The Bank hereby waives any security interest with respect
to the 10-Year Notes Reserve Account and shall not exercise any right of set-off
or recoupment or similar right
12
that it may otherwise have against the 10-Year Notes Reserve Account to satisfy
obligations of the Company to the Trustee or to the Bank in any other capacity.
(d) The Bank shall hold monies deposited in the 10-Year Notes
Reserve Account (the "Reserve Account Funds") in trust for, and shall not
commingle such amounts with, any other amounts held on behalf of the Trustee or
any other Person.
(e) The 10-Year Notes Reserve Account shall be a
non-interest-bearing trust account of the type customarily maintained by the
Bank. The Bank is hereby authorized and directed to invest any Reserve Account
Funds into one or more of the following securities (the "Reserve Account
Investments") as instructed by the Company, in writing, from time to time: (i)
securities issued by the U.S. Government (or agencies or instrumentalities
thereof) or securities which are fully guaranteed or insured by the U.S.
Government (or agencies or instrumentalities thereof) and which mature in less
than one (1) year; (ii) certificates of deposit issued by, or a money market
account with, a commercial bank or trust company having total capital and
surplus of at least U.S.$100,000,000 and which mature within 180 days; (iii) a
money market mutual fund registered under the Investment Company Act which
invests solely in cash and securities described in clauses (i) and/or (iv); or
(iv) commercial paper issued by any corporation organized and existing under the
laws of the United States of America or any state thereof, which matures no more
than one (1) year after the date issued and which, at the time of the
acquisition thereof, has a rating of at least "A-2" from S&P or at least "P-2"
from Xxxxx'x. Notwithstanding anything to the contrary set forth in the 10-Year
Notes Indenture, in the absence of a written direction of the Company, any
Reserve Account Funds deposited in the 10-Year Notes Reserve Account shall be
invested by the Bank solely in money market deposit accounts. The Trustee shall
not have any responsibility to the Company or the Holders for any losses arising
in respect of any Reserve Account Funds on deposit in the 10-Year Notes Reserve
Account, except to the extent that such loss or liability arises from the
Trustee's negligence or willful misconduct. The Bank agrees to credit all
Reserve Account Investments to the 10-Year Notes Reserve Account. The Bank
agrees with the Trustee and the Company that all property credited to the
10-Year Notes Reserve Account shall be treated as a "financial asset" within the
meaning of Section 8-102 of the UCC.
SECTION 5.03. Release of Reserve Account Funds From the
10-Year Notes Reserve Account. (a) To the extent that the Reserve Account Funds
and the value of the Reserve Account Investments equal or exceed an amount equal
to the next twelve months of scheduled interest payments on the 10-Year Notes
(the "Reserve Repayment") and so long as, to the knowledge of the Trustee, no
Event of Default has occurred and is continuing, the Trustee shall release such
excess Reserve Account Funds to the Company or liquidate Reserve Account
Investments, each in accordance with the Company's instructions to the Trustee
specified in a Company Certificate. For the purpose of calculating whether the
amount of Reserve Account Funds on deposit in the 10-Year Notes Reserve Account
equals or exceeds the Reserve Repayment, the Reserve Account Investments shall
be given a value equal to principal of and scheduled payments (including
interest payments) with respect to any Reserve Account Investments.
(b) To the extent that any Reserve Account Funds or Reserve
Account Investments remain following the maturity or earlier redemption of the
5-Year Notes, the Trustee shall release such Reserve Account Funds or liquidate
Reserve Account Investments to the
13
Company, each in accordance with the Company's instructions to the Trustee
specified in a Company Certificate.
(c) In the event the Company fails to make an interest payment
(in part or in full) on the 10-Year Notes as required by the 10-Year Notes
Indenture, the Trustee shall apply any Reserve Account Funds or liquidate, at
its discretion, Reserve Account Investments held by it in the 10-Year Notes
Reserve Account to the satisfaction of such unpaid interest obligations. Such
application by the Trustee shall not give rise to an Event of Default under the
10-Year Notes Indenture or the 10-Year Notes.
(d) If an Event of Default has occurred and is continuing
under the 10-Year Notes, and, if such Event of Default is required to be
notified to the Trustee pursuant to Section 6.02 of the Indenture, and the
Trustee has received written notice thereof from the Company or the Holders of
25% of the aggregate principal amount of the 10-Year Notes, the Trustee shall
apply any Reserve Account Funds and Reserve Account Investments held by it in
the 10-Year Notes Reserve Account to the satisfaction of any unpaid interest
payment obligations of the Company under the 10-Year Notes.
SECTION 5.04. Representations, Warranties and Covenants
Specific to the 10-Year Notes Reserve Account. The Company represents, warrants
and covenants that the Lien on the 10-Year Notes Reserve Account granted
pursuant to Section 5.01 is and will remain a valid, binding and enforceable
Lien and security interest, securing the Company's scheduled interest payment
obligations on the 10-Year Notes, ranking prior and superior to all other Liens
thereon (other than Permitted Liens), and covenants that it shall take all
necessary action to cause and maintain a perfected first-priority Lien (subject
to Permitted Liens) in the 10-Year Notes Reserve Account, and to allow the
Trustee to exercise its rights, remedies, power and privileges to or with
respect to the 10-Year Notes Reserve Account. The Company represents and
warrants that as of the date hereof, all filings and other actions necessary or
desirable for the purpose of registering notice of, perfecting and establishing
the first-priority of such Lien (subject to Permitted Liens) and security
interest have been duly made or taken. The Company agrees that at any time upon
the reasonable request of the Trustee, the Company will, at the Company's sole
expense, execute, acknowledge, deliver, record and/or file such documents or
instruments as are required by applicable law and in form reasonably
satisfactory to the Trustee, and do such acts and things as may be reasonably
necessary, desirable or proper to carry out more effectively the purposes of
such Lien and security interest or to further assure, evidence, preserve or
protect the perfection, ranking or other benefits thereof.
SECTION 5.05. Jurisdiction. For purposes of Sections
8-110, 9-304 and 9-305 of the UCC, New York shall be the "bank's jurisdiction"
and the "securities intermediary's jurisdiction," in each case in connection
with the 10-Year Notes Reserve Account.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Supplemental Indenture. This First
Supplemental Indenture constitutes an integral part of the Indenture and shall
be construed in connection with
14
and as part of the Indenture. If any provision of this First Supplemental
Indenture conflicts with any provision of the Indenture, the provisions of this
First Supplemental Indenture shall control.
SECTION 6.02. Governing Law. THIS FIRST SUPPLEMENTAL
INDENTURE AND THE 10-YEAR NOTES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK EXCLUDING (TO THE GREATEST EXTENT A NEW YORK COURT WOULD PERMIT) ANY
RULE OF LAW THAT WOULD CAUSE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT THE NEGOTIABLE OBLIGATIONS
LAW SHALL GOVERN THE REQUIREMENTS FOR THE 10-Year Notes TO QUALIFY AS
OBLIGACIONES NEGOCIABLES THEREUNDER WHILE SUCH LAW, TOGETHER WITH THE ARGENTINE
BUSINESS COMPANIES LAW NO. 19,550, AS AMENDED, AND OTHER APPLICABLE ARGENTINE
LAW AND REGULATIONS SHALL GOVERN THE CORPORATE POWER AND AUTHORITY OF THE
COMPANY TO EXECUTE AND DELIVER THE 10-Year Notes, THE AUTHORIZATION AND PUBLIC
OFFERING OF THE 10-YEAR NOTES BY THE CNV, AND CERTAIN MATTERS RELATING TO
MEETINGS OF HOLDERS OF THE 10-Year Notes, INCLUDING QUORUM, MAJORITY AND
CONVENING REQUIREMENTS.
SECTION 6.03. No Adverse Interpretation of Other
Agreements. This First Supplemental Indenture may not be used to interpret
another indenture, loan or debt agreement of the Company, and any such
indenture, loan or debt agreement may not be used to interpret this First
Supplemental Indenture.
SECTION 6.04. No Recourse Against Others. Except as
otherwise provided in Article 34 of the Negotiable Obligations Law, a Director,
officer, employee, stockholder or incorporator, as such, of the Company shall
not have any liability for any obligations of the Company under the 10-Year
Notes or this First Supplemental Indenture or for any claim based on, in respect
of or by reason of such obligations or their creations. Each Holder by accepting
a 10-Year Note waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the 10-Year Notes.
SECTION 6.05. Successors. All agreements of the Company in
this First Supplemental Indenture and the 10-Year Notes shall bind its
successors. All agreements of the Trustee in this First Supplemental Indenture
shall bind its successors.
SECTION 6.06. Severability. In case any provision in this
First Supplemental Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and a Holder
shall have no claim therefor against any party hereto.
SECTION 6.07. Table of Contents, Headings, Etc. The Table
of Contents, and headings of the Articles, Sections and Subsections of this
First Supplemental Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 6.08. Benefits of First Supplemental Indenture.
Nothing in this First Supplemental Indenture or in the 10-Year Notes, express or
implied, shall give to any
15
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
First Supplemental Indenture.
SECTION 6.09. Independence of Covenants. All covenants and
agreements in this First Supplemental Indenture shall be given independent
effect so that if any particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
SECTION 6.10. Counterparts. This First Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.11. Concerning the Trustee. The Trustee shall
not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this First Supplemental Indenture or for or in respect of the
Recitals hereto all of which are made solely by the Company.
* * * * * * *
16
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first written above.
AUTOPISTAS DEL SOL S.A.
By: ________________________________
Name:
Title:
JPMORGAN CHASE BANK, as Trustee,
Co-Registrar and Principal Paying Agent
By: ________________________________
Name:
Title:
JPMORGAN CHASE BANK, as Registrar,
Paying Agent and Transfer Agent
By: ________________________________
Name:
Title:
JPMORGAN CHASE BANK, as Bank
By: ________________________________
Name:
Title:
17
EXHIBIT A
[FORM OF 10-YEAR STEP-UP NOTE]
[ADD LEGEND IN EXHIBIT C IF A RESTRICTED NOTE]
[ADD LEGEND IN EXHIBIT B IF A GLOBAL NOTE]
AUTOPISTAS DEL SOL S.A.
Incorporated in Buenos Aires, Republic of Argentina,
with Limited Liability ("sociedad anonima")
under the Laws of The Republic of Argentina
with a Term of Duration Expiring on February 4, 2024, and
Registered with the Public Registry of Commerce
on February 4, 1994 under No. 950,
book 114, Volume A of Sociedades Anonimas,
and with Domicile at
Av. Xxxxxxx X. Xxxx 000, 0xx Xxxxx (X0000XXX), Xxxxxx Xxxxx, Xxxxxxxxx
Paid in Capital at -: Pesos -
10-YEAR STEP-UP NOTES
Certificate No. U.S.$
CUSIP No.:
ISIN:
Common Code:
AUTOPISTAS DEL SOL S.A., a sociedad anonima existing under the
laws of the Republic of Argentina, (the "Company," which term includes any
successor corporation), for value received promises to pay to - or registered
assigns, the principal sum of U.S.$- million on -, or such other amount as shall
be the principal amount from time to time of this 10-Year Step-Up Note in
accordance with the terms of the within-mentioned 10-Year Notes Indenture.
Interest Payment Dates: -, -, - and -, commencing on [the
Issue Date].
Record Dates: -, -, - and -, respectively.
Reference is made to the further provisions of this 10-Year
Step-Up Note contained herein, which will for all purposes have the same effect
as if set forth at this place.
The issuance of the 10-Year Step-Up Notes has been authorized
by the Argentine Comision National de Valores (the "CNV") by Resolution No. -
dated -. Such authorization means only that the Company has complied with the
information requirements established by the CNV. This 10-Year Step-Up Note is a
negotiable obligation ("obligacion negociable") under, and has been issued
pursuant to and in compliance with, all applicable requirements of the
Negotiable Obligations Law of the Republic of Argentina, Law No. 23,576, as
amended ("Ley de Obligaciones Negociables"), and other applicable Argentine laws
and regulations.
A-1
This 10-Year Step-Up Note has been issued pursuant to a
resolution of an Extraordinary General Meeting of the shareholders of the
Company adopted on - and resolutions of the Board of Directors of the Company
adopted on -.
[Signatures Follow]
A-2
IN WITNESS WHEREOF, the Company has caused this 10-Year
Step-Up Note to be signed by its duly appointed Director and Member of the
Supervisory Committee.
Dated:
AUTOPISTAS DEL SOL S.A.
By: ________________________________
Name:
Title:
A-3
CERTIFICATE OF AUTHENTICATION
This is one of the 10-Year Step-Up Notes due - of Autopistas
del Sol S.A. issued under the within-mentioned 10-Year Notes Indenture.
Dated:
JPMORGAN CHASE BANK, as Trustee
By: _______________________________
Authorized Officer
A-4
AUTOPISTAS DEL SOL S.A.
10-Year Step-Up Notes
Argentine Negotiable Obligations Law: Indenture.
This 10-Year Step-Up Note is an obligacion negociable under
Argentine Law No. 23,576, as amended (Ley de Obligaciones Negociables) (the
"Negotiable Obligations Law"), and is one of a duly authorized issue of Debt
Securities of the Company designated as its 10-Year Step-Up Notes due -
(hereinafter called the "10-Year Notes") limited in aggregate principal amount
to U.S.$ - million and issued under an Indenture, dated as of - (herein called
the "Indenture"), as supplemented and amended by a first supplemental indenture,
dated as of - (the "First Supplemental Indenture" and, together with the
Indenture, the "10-Year Notes Indenture"), each among the Company, JPMorgan
Chase Bank, as Trustee, Co-Registrar and Principal Paying Agent (herein called
the "Trustee"), and JPMorgan Chase Bank, as Registrar, Paying Agent and Transfer
Agent, to which 10-Year Notes Indenture and all 10-Year Notes Indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company
and the Holders of the 10-Year Notes and of the terms upon which the 10-Year
Notes are, and are to be, authenticated and delivered.
1. Interest.
Autopistas del Sol S.A., a sociedad anonima existing under the
laws of the Republic of Argentina (the "Company"), promises to pay interest on
the outstanding principal amount of the 10-Year Notes at a rate of (a) 3.00% per
annum from August 8, 2003 to -, (b) 3.50% per annum from - to -, and (c) 5.00%
per annum from - to -. The Company will pay interest on -, -, - and - of each
year (each, an "Interest Payment Date"), commencing on [the Issue Date].
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and
interest on overdue installments of interest, to the extent lawful, at a rate
equal to 1.00% per annum ("Default Interest").
2. Principal.
Subject to paragraphs 6, 7, 8 and 10, principal will be
payable at maturity on -.
3. Method of Payment.
The Company shall pay interest on the 10-Year Notes (except
Default Interest) to the Persons who are the registered Holders at the close of
business on the Record Date immediately preceding the relevant Interest Payment
Date, even if the 10-Year Notes are canceled on registration of transfer or
registration of exchange after such Record Date. The Company shall pay
principal, premium, if any, and interest in United States Legal Tender. Payments
of principal, premium, if any, and interest on the 10-Year Notes shall be made
in accordance with the foregoing and subject to applicable laws and regulations,
by check drawn on a bank in The City of New York mailed on or before the due
date for such payment to the person
A-5
entitled thereto at such person's address appearing on the Register, or, in the
case of the final payment of principal hereunder upon maturity, redemption,
repurchase or otherwise, by check drawn on a bank in The City of New York
delivered to the Person entitled thereto upon surrender of the 10-Year Notes to
any Paying Agent; provided, however, that any payments shall be made, in the
case of a Holder of at least U.S.$250,000 aggregate initial principal amount of
10-Year Notes, by transfer to an account maintained by the payee with a bank
located in The City of New York if such Holder so elects by giving notice in
writing to any Paying Agent, not less than 15 days (or such fewer days as such
Paying Agent may accept at its discretion) prior to the date of the payments to
be obtained, of such election and of the account to which payments are to be
made.
If the due date for payment of any principal or interest in
respect of any 10-Year Note is not a business day at the place in which it is
presented for payment, the Holder thereof will not be entitled to payment of the
amount due until the next succeeding business day at such place and will not be
entitled to any further interest or other payment in respect of any such delay.
4. Paying Agent and Registrar.
Initially, JPMorgan Chase Bank will act as Registrar, Paying
Agent and Transfer Agent, and as representative of the Trustee in Argentina.
Initially, JPMorgan Chase Bank will act as Co-Registrar and Principal Paying
Agent. The Company may change any Paying Agent, Registrar or Co-Registrar;
provided that the Company shall promptly give notice to each Holder of any such
change (i) by mailing such notice to such Holder's address as it appears on the
Register maintained by the Registrar with a copy mailed to the Trustee and (ii)
by publication, but only to the extent required under applicable Argentine law,
in accordance with Section 10.01 of the Indenture. The Company may, subject to
certain exceptions, act as Registrar and/or Paying Agent.
5. Indenture.
The Company issued the 10-Year Notes under the 10-Year Notes
Indenture. Capitalized terms herein are used as defined in the 10-Year Notes
Indenture, unless otherwise defined herein. The terms of the 10-Year Notes
include those stated in the 10-Year Notes Indenture and those made part of the
10-Year Notes Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the 10-Year
Notes Indenture, until such time as the 10-Year Notes Indenture is qualified
under the TIA, and thereafter as in effect on the date on which the 10-Year
Notes Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the 10-Year Notes are subject to all such terms, and Holders of
10-Year Notes are referred to the 10-Year Notes Indenture and the TIA for a
statement of them.
Except to the extent of the balance held in the 10-Year Notes
Reserve Account to secure certain payments under the 10-Year Notes, the 10-Year
Notes will constitute direct, unconditional, unsubordinated and unsecured
obligations of the Company and will rank pari passu in right of payment with all
of the Company's other present and future unsubordinated and
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unsecured obligations, except as such obligations may be preferred by mandatory
provisions of applicable law.
6. Redemption at the Option of the Company and Repurchase.
The 10-Year Notes will be subject to redemption at the option
of the Company, in whole or in part, following the maturity or earlier
redemption of the 5-Year Notes, upon not less than 30 nor more than 60 calendar
days' notice, at a Redemption Price equal to 100% of the outstanding principal
amount thereof, together with accrued and unpaid interest and Additional
Amounts, if any, to the Redemption Date, subject to the right of Holders of
record on the relevant Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date.
The Company may at any time during the first six months
immediately following the Issue Date and thereafter following the maturity or
earlier redemption of the 5-Year Notes purchase 10-Year Notes in the open
market, or by tender or private agreement at any price.
Any 10-Year Notes so purchased or redeemed must be delivered
by the Company to the Trustee for cancellation.
7. Redemption at the Option of the Company for Changes in Argentine Tax
Laws.
The 10-Year Notes are subject to redemption in certain
circumstances in accordance with Article 3 of the Indenture in whole, but not in
part, at the option of the Company at any time at a Redemption Price equal to
100% of the outstanding principal amount thereof, together with accrued and
unpaid interest, if any, to but not including the Redemption Date, and any
Additional Amounts payable with respect thereto as a result of certain changes
in or amendments to the laws of Argentina affecting taxation as set forth in
Section 3.01(a) of the Indenture.
8. Mandatory Redemption.
Commencing on - and on each - and - through -, the Company
shall redeem U.S.$ - million principal amount of 10-Year Notes at a Redemption
Price equal to 100% of the principal amount thereof, together with accrued and
unpaid interest and Additional Amounts, if any, to but not including the
Redemption Date.
Upon a Concession Redemption, the Company will redeem all the
10-Year Notes at a Redemption Price equal to 100% of the principal amount
thereof, together with accrued and unpaid interest and Additional Amounts, if
any, to but not including the Redemption Date.
9. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of 10-Year Notes to
be redeemed. Notice shall be given to Holders in accordance with Section 10.01
of the Indenture; provided, however, that for so long as the 10-Year Notes are
represented in their entirety by Global Notes, then notice shall be given (i) by
mailing such notice to such Holder's address as it appears on the Register with
a
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copy mailed to the Trustee and (ii) publication, but only to the extent required
under applicable Argentine law. 10-Year Notes in denominations larger than
U.S.$1,000 principal amount may be redeemed in part.
Except as set forth in the 10-Year Notes Indenture, from and
after any Redemption Date, if monies for the redemption of the 10-Year Notes
called for redemption shall have been deposited with the Paying Agent for
redemption of such 10-Year Notes, then, such 10-Year Notes will cease to bear
interest and the only right of the Holders of such 10-Year Notes will be to
receive payment of the Redemption Price.
10. Change of Control Offer.
Upon the occurrence of a Change of Control of the Company, the
Company is required to offer to repurchase all of the outstanding 10-Year Notes
pursuant to a Change of Control Offer at a purchase price equal to 101% of
principal amount thereof plus accrued and unpaid interest, if any, to but not
including the date of purchase.
11. Denominations; Transfer; Exchange.
The 10-Year Notes are in fully-registered form, without
coupons, in denominations of U.S.$1.00 and multiples of U.S.$1.00 in excess
thereof. The Registrar shall register the transfer of or exchange of 10-Year
Notes in accordance with the 10-Year Notes Indenture. The Registrar may require
a Holder to, among other things, furnish appropriate endorsements and transfer
documents and certifications and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted or required by
the 10-Year Notes Indenture. The Registrar need not register the transfer of or
exchange of any 10-Year Notes or portions thereof selected for redemption.
12. Persons Deemed to Be Owners.
The registered Holder of a 10-Year Note shall be treated as
the owner of it for all purposes.
13. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for one year, the Trustee and the Paying Agents will pay such
unclaimed money to the Company at its written request. Upon such payment, all
liability of the Trustee and such Paying Agents with respect to such money shall
cease.
14. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S.
dollars or United States Government Obligations sufficient to pay the principal
of and interest on the 10-Year Notes to redemption or maturity and complies with
the other provisions of the 10-Year Notes Indenture relating thereto, the
Company will be discharged from certain provisions of the 10-Year Notes
Indenture and the 10-Year Notes.
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15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the 10-Year Notes Indenture or
the 10-Year Notes may be amended or supplemented with the consent (obtained at a
meeting of Holders of 10-Year Notes duly convened pursuant to Section 9.07 of
the Indenture) of the Holders of at least a majority in aggregate principal
amount of the 10-Year Notes then outstanding, and any existing Default or Event
of Default or compliance with any provision may be waived with the consent
(obtained at a meeting of Holders of 10-Year Notes duly convened pursuant to
Section 9.07 of the Indenture) of the Holders of a majority in aggregate
principal amount of the 10-Year Notes then outstanding. Without notice to or
consent of any Holder of 10-Year Notes, the parties thereto may amend or
supplement the 10-Year Notes Indenture or the 10-Year Notes to, among other
things, cure any ambiguity, defect or inconsistency (provided that such
amendment or supplement does not materially adversely affect the rights of any
Holder of 10-Year Notes), provide for uncertificated 10-Year Notes in addition
to or in place of certificated 10-Year Notes, comply with Article 5 of the
Indenture or comply with any requirements of the Commission in connection with
the qualification of the 10-Year Notes Indenture under the TIA, or make any
other change that does not materially adversely affect the rights of any Holder
of a 10-Year Note.
16. Restrictive Covenants.
The 10-Year Notes Indenture imposes certain limitations on the
ability of the Company to, among other things, incur additional Indebtedness or
Liens, make payments in respect of its Capital Stock and merge or consolidate
with any other Person and sell, lease, transfer or otherwise dispose of
substantially all of its properties or assets. The limitations are subject to a
number of important qualifications and exceptions. The Company must annually
report to the Trustee on compliance with such limitations. Set forth below are
certain covenants of the Company as set forth in the 10-Year Notes Indenture:
Limitation on Additional Indebtedness. Section 4.04 of the
Indenture provides that the Company shall not create, incur, assume or issue,
directly or indirectly, guarantee or in any manner become, directly or
indirectly, liable for or with respect to the payment of ("Incur"), or suffer to
exist, any Indebtedness, except for Permitted Indebtedness. The Company may
incur any Indebtedness described in Section 4.04(a)(vi) of the Indenture only on
a subordinated basis and such Indebtedness must by its terms (or by the terms of
any agreement governing such Indebtedness) be made expressly subordinated in
right of payment of principal and interest and in right of timing of any payment
of principal to the 5-Year Notes pursuant to subordination provisions that are
substantively identical to the subordination provisions of such Indebtedness (or
such agreement) that are most favorable to the holders of any other Indebtedness
of the Company (other than obligations preferred by statute or operation of
law).
Limitation on Liens. Section 4.05 of the Indenture provides
that the Company shall not create, incur, assume or suffer to exist any Lien
(other than a Permitted Lien) of any kind upon any of its property, assets or
revenues now owned or hereafter acquired unless the 10-Year Notes also are
equally and ratably secured by such Lien.
Limitation on Sale and Leaseback Transactions. Section 4.06 of
the Indenture provides that the Company will not enter into any Sale-Leaseback
Transaction unless at least one
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of the following conditions is satisfied: (i) under the provision described in
clause (xi) of the definition of Permitted Lien, the Company could create a Lien
on the property to secure Indebtedness at least equal in amount to the
Attributable Debt in connection with the Sale-Leaseback Transaction; or (ii) the
Company within 90 days of the effective date of the Sale-Leaseback Transaction
makes an optional prepayment in cash of any of its long-term senior Indebtedness
(which may include the 10-Year Notes) at least equal in amount to the
Attributable Debt in connection with the Sale-Leaseback Transaction; provided,
however, that the Indebtedness prepaid is not owed to the Company or an
Affiliate of the Company; provided further, however, that, in connection with
any such prepayment, the Company shall cause the related loan commitment, if
any, to be reduced permanently in an amount equal to the principal amount so
prepaid.
Limitation on Creation of Subsidiaries. Section 4.07 of the
Indenture provides that the Company may not create any Subsidiaries.
Proceeds of Asset Sales. Section 4.08 of the Indenture
provides that the Company shall not consummate any Asset Sale unless (i) the
consideration in respect of such Asset Sale is at least equal to the Fair Market
Value of the assets sold or otherwise disposed of (which shall be as determined
by the Company's Board of Directors, unless such Asset Sale is in excess of
U.S.$5,000,000, in which case a fairness opinion from a nationally recognized
investment banking firm will be required), (ii) at least 85% of the value of the
consideration therefrom received by the Company is in the form of cash or Cash
Equivalents or the assumption by the Person acquiring the assets in such Asset
Sale of Indebtedness of the Company with the effect that the Company shall not
have any obligation with respect to such Indebtedness and (iii) immediately
before and immediately after giving effect to such Asset Sale, no Default or
Event of Default shall have occurred and be continuing or be anticipated to
occur.
Limitations on Transactions with Affiliates. Section 4.09 of
the Indenture provides that the Company shall not enter into or permit to exist
any transaction (including, without limitation, the purchase, sale, lease or
exchange of any property, the rendering of any service or the lending of any
funds) with or for the benefit of any of its Affiliates (an "Affiliate
Transaction"), except in good faith and on terms that are fair and reasonable to
the Company and no less favorable to the Company than those that could have been
obtained in a comparable transaction on an arm's length basis from a Person that
is not an Affiliate. Affiliate Transactions (and each series of related
Affiliate Transactions which are similar or part of a common plan) involving
aggregate payments or other aggregate market value in any fiscal year in excess
of U.S.$1,000,000 must be approved prior to the consummation thereof by the
Board of Directors of the Company and evidenced by a Board Resolution stating
that such Board of Directors has, in good faith, determined that such
transaction complies with the foregoing provisions. The foregoing restrictions
will not apply to Permitted Affiliate Transactions.
Limitation on Investments, Loans and Advances. Section 4.10 of
the Indenture provides that the Company will not make any Investments, except:
(i) Investments represented by accounts receivable created or acquired in the
ordinary course of business; (ii) advances to employees in the ordinary course
of business; and (iii) cash or Cash Equivalents.
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Limitations on Dividends. Section 4.15 of the Indenture
provides that the Company shall not declare or pay any dividend or any other
distribution on Capital Stock of the Company or any payment made to direct or
indirect holders (in their capacities as such) of Capital Stock of the Company
(other than dividends or distributions payable solely in Capital Stock (other
than Disqualified Stock) in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Stock)) (a) at any time, if any 5-Year
Notes are outstanding, and (ii) thereafter at any time that the Company's ratio
of Indebtedness, as of the date of the Company's most recent quarterly balance
sheet, to EBITDA for the four quarters immediately preceding such balance sheet
date is greater than 4.5 to 1; provided that the aggregate amount of dividends
declared or paid in any calendar year shall not exceed the aggregate principal
amount of 10-Year Notes redeemed or repurchased in that calendar year.
Reports. Section 4.16 of the Indenture provides that for so
long as any of the 10-Year Notes remain outstanding and are "restricted
securities" within the meaning of Rule 114(a)(3) under the Securities Act, the
Company agrees to provide, at its own expense, to any Holder or any prospective
transferee of any such Holder any information concerning the Company (including
financial statements) necessary in order to permit such Holder to sell or
transfer 10-Year Notes in compliance with Rule 144A under the Securities Act,
including making available to Holders and to any prospective purchaser of the
10-Year Notes, upon request by a Holder, or to any beneficial owner of the
10-Year Notes in connection with any sale thereof, the information required by
Rule 144A(d)(4) under the Securities Act. In addition, the Company shall at its
own expense and at all times comply with any applicable periodic reporting
requirements of the CNV, the Buenos Aires Stock Exchange and the Xxxxxxx Abierto
Electronico S.A., as in effect from time to time. The Company shall also comply
with the other provisions of Section 314(a) of the Trust Indenture Act, to the
extent applicable.
Limitation on Consolidations, Mergers and Sales of Assets.
Section 5.01 of the Indenture provides that the Company shall not consolidate
with or merge with or into any other person or sell, assign, convey, lease or
transfer all or substantially all of its properties and assets in a single
transaction or through a series of transactions, if such transaction or series
of transactions would result in a sale, conveyance, lease, transfer or other
disposition of all or substantially all of the properties and assets of the
Company, unless (i) such other Person is an Affiliate of the Company, (ii) the
resulting, surviving or transferee person (the "Surviving Entity") is (x) the
Company or (y) a sociedad anonima organized under the laws of the Republic of
Argentina; (iii) the Surviving Entity shall have expressly assumed, by a
supplemental indenture executed and delivered to the Trustee, in form and
substance reasonably satisfactory to the Trustee, all of the obligations of the
Company under the Indenture and the 10-Year Notes; (iv) immediately after giving
effect to such transaction or series of transactions, on a pro forma basis, no
Default or Event of Default shall have occurred and be continuing under the
Indenture; (v) the Surviving Entity shall immediately after giving effect to
such transaction or series of transactions on a pro forma basis (including,
without limitation, giving effect to such Indebtedness incurred or anticipated
to be incurred in connection with or in respect of the transaction or series of
transactions) (A) have a Net Worth equal to or greater than the Net Worth of the
Company immediately prior to such transaction or series of transactions, (B)
have a Current Ratio equal to or greater than the Current Ratio of the Company
immediately prior to such transaction or series of transactions and (C) have a
Leverage Ratio equal to or less than the Leverage Ratio of the Company
immediately prior to such transaction or series of transactions;
A-11
and (vi) the surviving entity shall have delivered to the Trustee under the
Indenture a Company Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction or series of
transactions, such supplemental indenture, complies with this Section 5.01 and
that all conditions precedent in the Indenture relating to the transaction or
series of transactions have been satisfied.
17. Successors.
When a successor corporation assumes all of the obligations of
the Company under the 10-Year Notes Indenture and under the 10-Year Notes and
agrees to be bound hereby and thereby, the predecessor shall be released from
such obligations.
18. Defaults and Remedies.
If an Event of Default (other than an Event of Default
specified in clause (f), (g), (h) or (k) of Section 6.01 of the Indenture)
occurs and is continuing, then the Holders of at least 25% in aggregate
principal amount of the outstanding 10-Year Notes may, by written notice, and
the Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the outstanding 10-Year Notes shall, declare the principal
of, premium, if any, accrued interest and any other amounts (including,
Additional Amounts and Default Interest, if any), on all the 10-Year Notes to be
immediately due and payable. Upon any such declaration such amounts shall become
due and payable immediately. If an Event of Default specified in clause (f),
(g), (h) or (k) of Section 6.01 of the Indenture occurs and is continuing, then
the principal of, premium, if any, accrued interest and any other amounts
(including Additional Amounts and Default Interest, if any) on all the 10-Year
Notes shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. Holders may
not enforce the Indenture or the 10-Year Notes except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the 10-Year
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the 10-Year Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may, subject to
certain exceptions set forth in the Indenture, withhold from Holders notice of
any continuing Default or Event of Default if it determines that withholding
notice is in their interest.
19. Rights of Holders to Receive Payment.
Notwithstanding any other provision of the Indenture or this
10-Year Note, the right of any Holder to receive payment of principal of,
premium, if any, and accrued interest on, a 10-Year Note on or after the
respective due dates expressed in such Note, or to bring suit (including any
"accion ejecutiva individual" pursuant to Article 29 of the Negotiable
Obligations Law of Argentina) for the enforcement of any such payment on or
after such respective date, shall not be impaired or affected without the
consent of the Holder.
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20. Individual Rights of Trustee.
The Trustee under the 10-Year Notes Indenture, in its
individual or any other capacity, may become the owner or pledgee of 10-Year
Notes and may otherwise deal with the Company or its Affiliates with the same
rights it would have if it were not Trustee.
21. No Recourse Against Others.
No director, officer, employee, stockholder or incorporator,
as such, of the Company shall have any liability for any obligations of the
Company under the 10-Year Notes or the 10-Year Notes Indenture or for any claim
based on, in respect of or by reason of such obligations or their creations.
Each Holder by accepting a 10-Year Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the
10-Year Notes.
22. Authentication.
This 10-Year Note shall not be valid until the Trustee
manually signs the certificate of authentication on this 10-Year Note.
23. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), J TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
24. CUSIP Numbers.
The Company will cause CUSIP numbers to be printed on the
10-Year Notes as a convenience to the Holders of the 10-Year Notes. No
representation is made as to the accuracy of such numbers as printed on the
10-Year Notes and reliance may be placed only on the other identification
numbers printed hereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the 10-Year Notes Indenture. Requests may be made
to the Chief Financial Officer, Autopistas de Sol X.X.--Xxxx Xxxxxxxxxxxx 0000,
(X0000XXX) Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx, telephone number (54) (11)
5789-8700.
25. Governing Law.
The 10-Year Notes Indenture and the 10-Year Notes shall be
governed by the laws of the State of New York excluding (to the greatest extent
a New York court would permit) any rule of law that would cause application of
the laws of any jurisdiction other than the State of New York; provided,
however, that the Negotiable Obligations Law shall govern the requirements for
the 10-Year Notes to qualify as obligaciones negociables thereunder while such
law, together with the Argentine Business Companies Law no. 19,550, as amended,
and other applicable Argentine law and regulations shall govern the corporate
power and authority of the
A-13
Company to execute and deliver the 10-Year Notes, the authorization and public
offering of the 10-Year Notes by the CNV, and certain matters relating to
meetings of Holders, including quorum, majority and convening requirements.
A-14
ASSIGNMENT FORM
I or we assign and transfer this 10-Year Note to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee)
and irrevocably appoint ________________________________________________________
agent to transfer this 10-Year Note on the books of the Company.
The agent may substitute another to act for him or her.
Dated: _______________ Signed: __________________________________________
(Sign exactly as name appears on the other
side of this 10-Year Note)
Signature Guarantee: _____________________________
Participant in a recognized
Signature Guarantee Medallion
Program (or other signature
guarantor program reasonably
acceptable to the Trustee)
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this 10-Year Note purchased by the Company
pursuant to Section 4.04 of the First Supplemental Indenture, check the box: [ ]
If you wish to have a portion of this 10-Year Note purchased
by the Company pursuant to Section 4.04 of the First Supplemental Indenture,
state the principal amount at maturity (such amount must be an authorized
denomination): U.S.$__________
Date: _______________ Signature: _______________________________________
(Sign exactly as name appears on the
other side of this 10-Year Note)
Signature Guarantee: _____________________________
Participant in a recognized
Signature Guarantee Medallion
Program (or other signature
guarantor program reasonably
acceptable to the Trustee)
A-16
EXHIBIT B
FORM OF LEGEND FOR GLOBAL NOTES
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS
NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED N THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
EXHIBIT C
FORM OF PRIVATE PLACEMENT LEGEND
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES, EXCEPT IN ACCORDANCE
WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR
WHICH IT IS ACTING IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH
RESPECT TO EACH SUCH ACCOUNT OR (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND
(2) AGREES THAT IT WILL NOT (WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(K) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS
NOTE) OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL
INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.
C-1
EXHIBIT D
FORM OF ORIGINAL ISSUE DISCOUNT LEGEND
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR U.S. FEDERAL INCOME
TAX PURPOSES. FOR INFORMATION ABOUT THE ISSUE PRICE, THE AMOUNT OF OID, THE
ISSUE DATE AND THE YIELD TO MATURITY, PLEASE CONTACT THE FINANCIAL MANAGER AT
AUTOPISTAS DEL SOL S.A., RUTA PANAMERICANA, XXXXXX XXXXX 0000, X0000XXX,
XXXXXXXX, XXXXXX XXXXX, XXXXXXXXX, TEL. (5411) 0000-0000.
D-1
