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GRUPO IUSACELL, S.A. DE C.V.
AND
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as TRUSTEE
10% SENIOR SECURED NOTES DUE 2013
INDENTURE
Dated as of [o], 2006
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions....................................................1
Section 1.2. Incorporation by Reference of Trust Indenture Act.............15
Section 1.3. Rules of Construction.........................................15
ARTICLE II
THE NOTES
Section 2.1. Form and Dating...............................................15
Section 2.2. Execution and Authentication..................................16
Section 2.3. Registrar and Paying Agent....................................17
Section 2.4. Paying Agent to Hold Money in Trust...........................17
Section 2.5. Holder Lists..................................................17
Section 2.6. Global Note Provisions........................................17
Section 2.7. Legends.......................................................18
Section 2.8. Transfer and Exchange.........................................18
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes....................20
Section 2.10. Temporary Notes...............................................20
Section 2.11. Cancellation..................................................21
Section 2.12. Defaulted Interest............................................21
ARTICLE III
COVENANTS
Section 3.1. Payment of Notes..............................................22
Section 3.2. Maintenance of Office or Agency...............................22
Section 3.3. Conduct of Business and Corporate Existence...................22
Section 3.4. Payment of Taxes and Other Claims.............................23
Section 3.5. Reports to Holders and Compliance Certificate.................23
Section 3.6. Maintenance of Books and Records..............................24
Section 3.7. Limitation on Incurrence of Additional Indebtedness...........24
Section 3.8. Limitation on Restricted Payments.............................24
Section 3.9. Limitation on Restricted Sales................................24
Section 3.10. Limitation on Equity Issuances................................25
Section 3.11. Limitation on Liens...........................................25
Section 3.12. Limitation on Transactions with Affiliates....................25
Section 3.13. Payment of Additional Amounts.................................26
Section 3.14. Change of Control.............................................27
Section 3.15. Further Instruments and Acts..................................29
Section 3.16. Waiver of Stay, Extension or Usury Laws.......................29
ARTICLE IV
SURVIVING ENTITY
Section 4.1. Merger, Consolidation and Sale of Assets......................29
ARTICLE V
REDEMPTION AND MARKET PURCHASES OF NOTES
Section 5.1. Optional Redemption...........................................30
Section 5.2. Election to Redeem............................................31
Section 5.3. Notice of Redemption..........................................31
Section 5.4. Selection of Notes to Be Redeemed in Part.....................32
Section 5.5. Deposit of Redemption Price...................................32
Section 5.6. Notes Payable on Redemption Date..............................32
Section 5.7. Unredeemed Portions of Partially Redeemed Note................32
Section 5.8. Market Purchases..............................................32
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Triggering Events.............................................33
Section 6.2. Events of Default.............................................34
Section 6.3. Other Remedies................................................36
Section 6.4. Waiver of Past Defaults.......................................36
Section 6.5. Control by Majority...........................................36
Section 6.6. Limitation on Suits and Exercise of Remedies..................36
Section 6.7. Rights of Holders to Receive Payment..........................37
Section 6.8. Collection Suit by Trustee....................................37
Section 6.9. Trustee May File Proofs of Claim, etc.........................37
Section 6.10. Priorities....................................................38
Section 6.11. Undertaking for Costs.........................................38
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee.............................................38
Section 7.2. Rights of Trustee.............................................40
Section 7.3. Individual Rights of Trustee..................................41
Section 7.4. Trustee's Disclaimer..........................................41
Section 7.5. Notice of Defaults............................................41
Section 7.6. Reports by Trustee to Holders.................................41
Section 7.7. Compensation and Indemnity....................................41
Section 7.8. Replacement of Trustee........................................42
Section 7.9. Successor Trustee by Merger...................................43
Section 7.10. Eligibility; Disqualification.................................43
Section 7.11. Preferential Collection of Claims Against Company.............43
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1. Legal Defeasance and Covenant Defeasance......................43
Section 8.2. Conditions to Defeasance......................................44
Section 8.3. Application of Trust Money....................................46
Section 8.4. Repayment to Company..........................................46
Section 8.5. Indemnity for U.S. Government Obligations.....................46
Section 8.6. Reinstatement.................................................46
Section 8.7. Satisfaction and Discharge....................................46
ARTICLE IX
AMENDMENTS
Section 9.1. Without Consent of Holders....................................47
Section 9.2. With Consent of Holders.......................................47
Section 9.3. Compliance with Trust Indenture Act...........................48
Section 9.4. Waivers.......................................................48
Section 9.5. Revocation and Effect of Consents and Waivers.................48
Section 9.6. Notation on or Exchange of Notes..............................49
Section 9.7. Trustee to Sign Amendments and Supplements....................49
ARTICLE X
COLLATERAL AND SECURITY
Section 10.1. The Collateral Trust Agreement................................49
Section 10.2. Suits to Protect the Collateral...............................50
Section 10.3. Possession of the Collateral..................................50
Section 10.4. Actions by the Trustee........................................50
Section 10.5. Authorization of Actions To Be Taken by the
Trustee Under the Collateral Trust Agreement .................50
Section 10.6. Authorization of Receipt and Distribution of
Funds by the Trustee..........................................50
Section 10.7. Release of Collateral; Termination of Security Interest.......51
Section 10.8. Instructions under the Collateral Trust Agreement.............51
Section 10.9. Certificates of the Company...................................51
Section 10.10. Execution of Release by Collateral Trustee....................51
Section 10.11. Recording and Opinions........................................52
ARTICLE XI
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls..................................52
Section 11.2. Notices.......................................................52
Section 11.3. Communication by Holders with Other Holders...................53
Section 11.4. Certificate and Opinion as to Conditions Precedent............53
Section 11.5. Statements Required in Certificate or Opinion.................53
Section 11.6. Rules by Trustee, Paying Agent and Registrar..................54
Section 11.7. Legal Holidays................................................54
Section 11.8. Governing Law, etc............................................54
Section 11.9. No Recourse Against Others....................................55
Section 11.10. Successors....................................................55
Section 11.11. Duplicate and Counterpart Originals...........................55
Section 11.12. Severability..................................................55
Section 11.13. Conversion of Currency........................................55
Section 11.14. Table of Contents; Headings...................................56
EXHIBIT A FORM OF FACE OF NOTE AND FORM OF REVERSE SIDE
OF NOTE
EXHIBIT B RECONCILIATION AND TIE BETWEEN THE TRUST INDENTURE
ACT OF 1939 AND THE INDENTURE
INDENTURE, dated as of [o], 2006, between Grupo Iusacell, S.A.
de C.V., a Mexican sociedad anonima de capital variable (the "Company") and Law
Debenture Trust Company of New York (the "Trustee"), as Trustee.
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
10% Senior Secured Notes due 2013 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Additional Amounts" has the meaning assigned to it in Section
3.13(a).
"Affiliate" means, with respect to any Person, a Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with such Person. For purposes of this
definition, the term control shall mean the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of
such Person, whether by ownership of share capital, by contract, by the power to
appoint or remove a majority of the members of the governing body of that Person
or otherwise.
"Agent Members" has the meaning assigned to it in Section
2.6(b).
"Authenticating Agent" has the meaning assigned to it in
Section 2.2(d).
"BMV" means the Bolsa Mexicana de Valores, S.A. de C.V. (the
Mexican Stock Exchange).
"Board of Directors" means the Company's Board of Directors or
any committee of the Company's Board of Directors authorized to act on its
behalf.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary 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, and delivered to
the Trustee.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banking institutions are authorized or required by
law to close in New York City or in Mexico.
"Capital Lease" means, with respect to any Person, any lease
of any property, which, in conformity with Mexican GAAP, is required to be
capitalized on the balance sheet of such Person.
"Capital Stock" means capital stock or other equity
participation, including shares, units or partnership interests, or warrants,
options or other rights to acquire capital stock or other equity participations,
including Preferred Stock and any debt security that is convertible into, or
exchangeable for, capital stock or other such equity participations.
"Cash" means Dollars.
"Cash Equivalents" means:
(i) U.S. Government Obligations or certificates representing
an ownership interest in U.S. Government Obligations;
(ii) (A) demand deposits, (B) time deposits and certificates
of deposit with maturities of one year or less from the date of
acquisition, (C) bankers' acceptances with maturities not exceeding one
year from the date of acquisition, and (D) overnight bank deposits, in
each case with any bank or trust company organized or licensed under
the laws of the United States or any state thereof or under the laws of
any member state of the European Union, or under the laws of any
country in which the Company has operations in each case whose head
office's senior short term debt has an Investment Grade Rating by at
least one nationally recognized statistical rating organization as
contemplated in Rule 436 under the Securities Act;
(iii) repurchase obligations with a term of not more than
seven days for underlying securities of the type described in clause
(i) above entered into with any financial institution meeting the
qualifications specified in clause (ii) above;
(iv) commercial paper rated with an Investment Grade Rating by
at least one nationally recognized statistical rating organization as
contemplated in Rule 436 under the Securities Act and maturing within
six months after the date of acquisition; and
(v) money market funds at least 95% of the assets of which
consist of investments of the type described in clauses (i) through
(iv) above.
"Cash Replacement Collateral" means Cash and Cash Equivalents
with an aggregate Replacement Collateral Value at the relevant date equal to or
greater than the Original Collateral Value, as deposited with the Collateral
Trustee free and clear of any Liens for the benefit of Holders in accordance
with terms of the Collateral Trust Agreement.
"Certificated Note" means any Note issued in fully-registered
certificated form (other than a Global Note), which shall be substantially in
the form of Exhibit A.
"Change of Control" means the occurrence of any of the
following: (i) the Xxxxxxx Group ceases to be the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of at
least 30% in the aggregate of the total voting power of the Voting Stock of the
Company, or (ii) the Xxxxxxx Group ceases to possess, directly or indirectly,
the power to elect a majority of the members of the Board of Directors; provided
that a Change of Control shall not be deemed to exist as a result of a
transaction in which a Person the long-term Indebtedness of which has an
Investment Grade Rating that the Board of Directors determines is an
internationally recognized telecommunications operator either (i) is the
beneficial owner, directly or indirectly, of at least 30% in the aggregate of
the total voting power of the Voting Stock of the Company or (ii) possesses,
directly or indirectly, the power to elect a majority of the members of the
Board of Directors.
"Change of Control Notice" means notice of a Change of Control
Offer made pursuant to Section 3.14, which shall be mailed first-class, postage
prepaid, to each Holder at its address as shown on the Note Register within 30
days following the date upon which a Change of Control occurred, with a copy to
each of the Trustee and the Collateral Trustee, which notice shall govern the
terms of the Change of Control Offer and shall state:
(i) that a Change of Control has occurred, the circumstances
or events causing such Change of Control and that a Change of Control
Offer is being made pursuant to Section 3.14(b), and that all Notes
that are timely tendered will be accepted for payment;
(ii) the Change of Control Payment, and the Change of Control
Payment Date, which date shall be the day that is 30 calendar days
subsequent to the date such notice is mailed (other than as may be
required by law);
(iii) that any Notes or portions thereof not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the
Change of Control Payment with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest from and after the Change of Control
Payment Date;
(v) that any Holder electing to have any Notes or portions
thereof purchased pursuant to a Change of Control Offer will be
required to tender such Notes, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of such Notes completed, to the
Paying Agent at the address specified in the notice prior to the close
of business on the third Business Day preceding the Change of Control
Payment Date;
(vi) that any Holder shall be entitled to withdraw such
election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control
Payment Date, a facsimile transmission or letter, setting forth the
name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing such Holder's
election to have such Notes or portions thereof purchased pursuant to
the Change of Control Offer;
(vii) that any Holder electing to have Notes purchased
pursuant to the Change of Control Offer must specify the principal
amount that is being tendered for purchase, which principal amount must
be U.S.$1.00 or an integral multiple thereof;
(viii) that any Holder of Certificated Notes whose
Certificated Notes are being purchased only in part will be issued new
Certificated Notes equal in principal amount to the unpurchased portion
of the Certificated Note or Notes surrendered, which unpurchased
portion will be equal in principal amount to U.S.$1.00 or an integral
multiple thereof;
(ix) that the Trustee will return to the Holder of a Global
Note that is being purchased in part, such Global Note with a notation
on Schedule A thereof adjusting the principal amount thereof to be
equal to the unpurchased portion of such Global Note; and
(x) any other information necessary to enable any Holder to
tender Notes and to have such Notes purchased pursuant to Section 3.14.
"Change of Control Offer" has the meaning assigned to it in
Section 3.14(b).
"Change of Control Payment" has the meaning assigned to it in
Section 3.14(a).
"Change of Control Payment Date" has the meaning assigned to
it in Section 3.14(b).
"Closing Price" with respect to a share of common stock of any
Person on any day means the last reported sale price (expressed in Dollars) on
that day or, in case no such reported sale takes place on such day, the average
of the last reported bid and asked prices (expressed in Dollars), regular way,
on that day, in either case, as reported in the consolidated transaction
reporting system with respect to securities quoted on Nasdaq or, if the shares
of common stock are not quoted on Nasdaq, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal U.S. securities exchange on which the shares of common stock are
listed or admitted to trading or, if the shares of common stock are not quoted
on Nasdaq and not listed or admitted to trading on any U.S. securities exchange,
as reported by the BMV, or if the shares of common stock are not quoted on
Nasdaq, not listed or admitted to trading on any U.S. securities exchange and
not listed on the BMV, the last quoted price (expressed in Dollars) or, if not
so quoted, the average of the high bid and low asked prices on such other
quotation system then in use, or, if on any such day the shares of common stock
are not quoted on any such quotation system, the average of the closing bid and
asked prices (expressed in Dollars) as furnished by a professional market maker
making a market in the shares of common stock or, to the extent unavailable, an
internationally recognized investment bank, in each case selected by the Board
of Directors, and reasonably acceptable to the Trustee (provided, that an
Investment Bank shall be deemed acceptable to the Trustee), for this purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means the Share Collateral and/or the Cash
Replacement Collateral.
"Collateral Trust Agreement" means the collateral trust
agreement dated as of [o], 2006 among the Company, the Collateral Trustee and
the Trustee.
"Collateral Trustee" means Banco Invex, S.A. Institucion de
Banca Multiple Invex Grupo Financiero Fiduciario and its successors and assigns.
"Common Stock" means shares of the Company's common stock,
without par value.
"Company" means the party named as such in the introductory
paragraph to this Indenture and its successors and assigns, including any
Surviving Entity that becomes such in accordance with Article IV.
"Company Order" has the meaning assigned to it in Section
2.2(c).
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, Attention: Corporate Trust Department, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Company).
"Covenant Defeasance" has the meaning assigned to it in
Section 8.1(c).
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Insolvency Law.
"Default" means any event (including a Triggering Event) that,
with the giving of any notice, the passage of time, or both, would be an Event
of Default.
"Defaulted Interest" has the meaning assigned to it in
paragraph 1 of the Form of Reverse Side of Note contained in Exhibit A.
"Dollars" and the sign "U.S.$" mean such coin or currency of
the United States of America as at the time of payment shall be legal tender for
the payment of public and private debts.
"DTC" means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depositary institution
hereinafter appointed by the Company that is a clearing agency registered under
the Exchange Act.
"Enforcement Action" means the exercise of any action, right
or remedy specified in the Notes, this Indenture or in the Collateral Trust
Agreement or permitted by applicable law with respect to the Notes, this
Indenture, or the Collateral or otherwise provided in any of the Notes, this
Indenture or the Collateral Trust Agreement, including, without limitation, to
bring or file any claim or suit or settle the entry of a judgment in respect of
the Notes or this Indenture, or to collect and apply Collateral, exercise
exclusive control over or rights with respect to Collateral, dispose of
Collateral upon foreclosure (judicially or, to the fullest extent permitted by
applicable law, non-judicially), to Incur expenses, including legal fees, in
connection with any Enforcement Action (and to demand, xxx for, collect, receive
and give acquittance for the same) and to exercise all the rights and remedies
of a secured lender under the UCC or similar law of any applicable jurisdiction
and under other applicable law (including the laws of Mexico), and of a secured
creditor under Insolvency Laws of any applicable jurisdiction, to settle,
compromise, compound, prosecute or defend any related action or proceeding, to
initiate action before any competent court of law and to sell, lease, license or
otherwise dispose or cause disposition of, and exercise all rights relating to,
or to levy or execute upon the Collateral or any part thereof.
"E.U. Country" means any member country of the European Union.
"Event of Default" has the meaning assigned to it in Section
6.2.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Notes" means the Company's U.S.$350,000,000 14.25%
Senior Notes due December 1, 2006.
"Fair Market Value" means, at the time of such determination
with respect to any (i) asset, the price (after taking into account any
liabilities relating to such assets) which could be negotiated in an
arm's-length free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of which is under any undue pressure or
compulsion to complete the transaction, and (ii) service rendered, the price for
such services which could be negotiated in an arm's-length free market
transaction between a willing service provider and a willing and able service
recipient, neither of which is under any undue pressure or compulsion to render
or receive the services. The Fair Market Value of any such asset, assets or
service shall be determined conclusively (i) if such asset or service has a Fair
Market Value equal to or less than U.S.$7,500,000, by the Company's Officer and
(ii) if such asset or service has a Fair Market Value in excess of
U.S.$7,500,000, by Board Resolution.
"Foreclosure Period" has the meaning assigned to it in Clause
Eighth(c)(4) of the Collateral Trust Agreement.
"Global Note" means any Note issued in fully-registered
certificated form to DTC (or its nominee), as depositary for the beneficial
owners thereof, which shall be substantially in the form of Exhibit A, with the
appropriate legends as specified in Section 2.7 and Exhibit A.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
financial obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation of such other Person
(whether arising by virtue of partnership arrangements, or by agreement to keep
well, to purchase assets, goods, securities or services, to take or pay, or to
maintain financial statement conditions or otherwise) or (ii) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof, in whole or in part; provided that the term "Guarantee" does
not include endorsements for collection or deposit in the ordinary course of
business or guarantees of performance that do not include any contingent payment
obligation. The term "Guarantee" used as a verb has a corresponding meaning.
"Hedging Contract" means (i) any interest rate swap agreement,
interest rate cap agreement or other agreement designed to protect against
fluctuations in interest rates or (ii) any foreign exchange forward contract,
currency swap agreement or other agreement designed to protect against
fluctuations in foreign exchange rates.
"Holder" means the Person in whose name a Note is registered
in the Note Register.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to issue, incur (by conversion, exchange or
otherwise), assume, Guarantee or otherwise become liable in respect of such
Indebtedness or other obligation.
"Indebtedness" means, with respect to the Company, without
duplication,
(i) the principal of and premium (if any) in respect of
indebtedness of the Company for borrowed money;
(ii) the principal of and premium (if any) in respect of
obligations of the Company evidenced by bonds, debentures, notes or
other similar instruments other than promissory notes or similar
instruments issued in the ordinary course of business to Guarantee the
payment of Trade Payables;
(iii) all obligations of the Company in respect of Capital
Leases;
(iv) all obligations of the Company for the deferred purchase
price of property or services, except Trade Payables, which purchase
price is due more than 270 days after the date of placing such property
in service or taking delivery and title thereto or the completion of
such services;
(v) all obligations of the Company in respect of letters of
credit, surety bonds or other similar instruments (including
reimbursement agreements with respect thereto), excluding obligations
in respect of trade letters of credit or surety bonds issued in respect
of Trade Payables, but only to the extent any such trade letter of
credit or surety bond is not drawn upon, or if drawn, such drawing is
reimbursed no later than the third Business Day following payment;
(vi) all sales of Receivables and Related Assets of the
Company together with any obligation of the Company to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or
other amounts in connection therewith (except to the extent such sales
of Receivables and Related Assets are non-recourse);
(vii) all obligations of the Company under Hedging Contracts;
(viii) all Indebtedness of others secured by any Lien on any
property or asset of the Company, whether or not such Indebtedness is
assumed by the Company, the amount of such Indebtedness being deemed to
be the lesser of the Fair Market Value of such property or asset or the
amount of Indebtedness so secured; and
(ix) all Indebtedness of other Persons Guaranteed by the
Company to the extent so Guaranteed.
"Indenture" means this Indenture as amended or supplemented
from time to time, including the Exhibits hereto.
"Insolvency Law" means any law (together with the rules and
regulations made pursuant thereto) of any jurisdiction (including any political
subdivision thereof) relating to bankruptcy, insolvency, winding up,
liquidation, reorganization, or any other similar procedure relating to the
relief of debtors.
"Interest Payment Date" means the stated due date of an
installment of interest on the Notes as specified in the Form of Face of Note
contained in Exhibit A.
"Investment Bank" means any of Deutsche Bank AG, Xxxxxxx Xxxxx
& Co., JPMorgan Chase & Co., Xxxxxx Xxxxxxx, UBS AG, Credit Suisse Group or any
of their subsidiaries, and their successors and assigns.
"Investment Grade Entity" means a Person (i) the Indebtedness
of which has an Investment Grade Rating and (ii) the common shares of which are
listed on the New York Stock Exchange, Nasdaq, the BMV or a member of the World
Federation of Exchanges.
"Investment Grade Rating" means a Rating of BBB- or higher by
S&P, Baa or higher by Xxxxx'x or any similar equivalent or higher Rating.
"Issue Date" means [o]4, 2006.
"Iusacell Celular" means Grupo Iusacell Celular, S.A. de C.V.
"Iusacell Holding Floor Collateral Coverage Ratio" means, at
the time of any Restricted Sale of Capital Stock of Iusacell Celular or any
other Special Restricted Subsidiary or issuance of Capital Stock of the Company,
a ratio equal to the greater of (i) the ratio of the market value of the
Collateral as of the Issue Date (determined by multiplying (A) the average
Closing Price per share of Common Stock for a period of ten days consisting of
the four trading days prior to the Issue Date, the Issue Date and the five
trading days after the Issue Date by (B) the number of shares of Common Stock
constituting the Collateral on the Issue Date) as compared to the principal
amount of the Notes issued on the Issue Date and (ii) the ratio of the market
value of the Collateral immediately prior to the earlier of the public
announcement or closing of the relevant Restricted Sale or issuance (determined
by multiplying (x) the average Closing Price per share of Common Stock for the
30 trading days prior to such announcement or closing by (y) the number of
shares of Common Stock constituting the Collateral as of the date of such
announcement or closing) as compared to the outstanding principal amount of the
Notes at such time. In the event that the Collateral is comprised of Stock
Replacement Collateral or Cash Replacement Collateral, the market value of the
Collateral in clause (ii) shall instead be determined using the Replacement
Collateral Value over the same periods.
"Iusacell Holding Offering Collateral Coverage Ratio" means,
at the time of any issuance of Capital Stock of the Company, the ratio of the
market value of the Collateral as of the date of such issuance (determined by
multiplying (1) the price per share of the Common Stock to be issued by (2) the
number of shares of Common Stock constituting the Collateral as of the date of
such issuance) as compared to the outstanding principal amount of the Notes at
such time. In the event that the Collateral is comprised of Stock Replacement
Collateral, the market value of the Collateral shall instead be determined using
the Replacement Collateral Value over the same periods.
"Judgment Currency" has the meaning assigned to it in Section
11.13(b).
"Legal Defeasance" has the meaning assigned to it in Section
8.1(b).
"Legal Holiday" has the meaning assigned to it in Section
11.7.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Market Purchase" means the purchase of any Notes available
for sale in the secondary market, including directly from the Holders thereof or
through broker dealers or similar intermediaries.
"Maturity Date" means December 31, 2013.
"Mexican GAAP" means generally accepted accounting principles
in Mexico, consistently applied.
"Mexico" means the United Mexican States.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors and assigns.
"Nasdaq" means The Nasdaq Stock Market, Inc. and its
successors and assigns.
"Net Cash Proceeds" means, with respect to any transaction,
the proceeds in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations when received in the form of cash or
cash equivalents, received by the Company from such transaction, net of:
(i) out-of-pocket fees and expenses relating to such
transaction (including, without limitation, legal, accounting,
underwriting, placement, brokerage and investment banking fees,
discounts and sales commissions);
(ii) taxes paid or payable in respect of such transaction
after taking into account any reduction in consolidated tax liability
due to available tax credits or deductions and any tax sharing
arrangements; and
(iii) appropriate amounts to be provided by the Company as a
reserve, in accordance with Mexican GAAP, against any liabilities
associated with such transaction and retained by the Company after such
transaction, but excluding any reserves with respect to Indebtedness.
"Note Custodian" means the custodian with respect to any
Global Note appointed by DTC, or any successor Person thereto, and shall
initially be the Trustee.
"Note Register" has the meaning assigned to it in Section
2.3(a).
"Notes" means any of the Company's 10% Senior Secured Notes
due 2013 issued and authenticated pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any
principal, interest (including, without limitation, Post-Petition Interest),
penalties, fees, indemnifications, reimbursements, damages, and other
liabilities payable under the documentation governing such Indebtedness,
including in the case of the Notes, this Indenture.
"Officer" means, when used with respect to the Company, the
president, general manager, chief financial officer, general accountant,
treasurer, any member of the Board of Directors, or any of their respective
attorneys in fact designated by the Company.
"Officers' Certificate" means, when used in connection with
any action to be taken by the Company, a certificate signed by two Officers. One
of the officers executing an Officers' Certificate in accordance with Section
3.5(c) hereof shall be the chief executive, financial or operating officer of
the Company.
"Opinion of Counsel" means an opinion in writing signed by
outside legal counsel to the Company who shall be reasonably acceptable to the
Trustee.
"Original Collateral Value" means the market value of the
Collateral immediately prior the transaction requiring the substitution of
Collateral for Cash Replacement Collateral or Stock Replacement Collateral, as
the case may be, which shall be calculated by multiplying the number of shares
of Common Stock constituting the Collateral on the earlier of the announcement
or closing of such transaction by the average Closing Price per share of Common
Stock for the 30 trading days prior to such announcement or closing, as the case
may be.
"Outstanding" means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Notes, or portions thereof, for the payment, redemption
or, in the case of a Change of Control Offer, purchase of which money
in the necessary amount has been theretofor deposited with the Trustee
or any Paying Agent (other than the Company or an Affiliate of the
Company) in trust or set aside and segregated in trust by the Company
or an Affiliate of the Company (if the Company or such Affiliate of the
Company is acting as Paying Agent) for the Holders of such Notes;
provided that, if Notes (or portions thereof) are to be redeemed or
purchased, notice of such redemption or purchase has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Notes which have been surrendered pursuant to Section
2.9 or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any
such Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a
protected purchaser in whose hands such Notes are valid obligations of
the Company; and
(iv) solely to the extent provided in Article VIII, Notes
which are subject to Legal Defeasance or Covenant Defeasance as
provided in Article VIII;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of the Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
Trustee shall disregard and deem not to be Outstanding Notes held by Persons not
permitted to be used in such determination as and to the extent provided in TIA
ss. 316.
"Paying Agent" has the meaning assigned to it in Section
2.3(a).
"Permitted Business" means any business permitted by the
Company's bylaws from time to time.
"Permitted Indebtedness" means:
(i) Indebtedness outstanding on the Issue Date;
(ii) Indebtedness Incurred pursuant to the Restructuring
(including the Notes);
(iii) Permitted Refinancing Indebtedness;
(iv) Subordinated Indebtedness; and
(v) Indebtedness Incurred on or after the Issue Date not
otherwise permitted in an aggregate principal amount at any time
outstanding not to exceed U.S.$35,000,000 (or its foreign currency
equivalent) at any time outstanding.
"Permitted Liens" means:
(i) Liens created pursuant to or required by this Indenture or
the Collateral Trust Agreement;
(ii) Liens existing on the Issue Date and Liens to secure any
Permitted Refinancing Indebtedness which is Incurred to refinance any
Indebtedness which has been secured by a Lien permitted under the
covenant described under Section 3.11; provided, that such new Liens:
(A) are no less favorable to the Holders of Notes and
are not more favorable to the lienholders with respect to such
Liens than the Liens in respect of the Permitted Refinancing
Indebtedness; and
(B) do not extend to any property or assets other
than the property or assets securing the Indebtedness
Refinanced by such Permitted Refinancing Indebtedness;
(iii) Liens on the Capital Stock of a Person in existence as
of the date that such Person becomes a Special Restricted Subsidiary;
(iv) Liens securing obligations under Hedging Contracts;
(v) rights of set-off or similar rights and remedies as to
deposit accounts or other funds maintained with a creditor depository
institution;
(vi) Liens for taxes not yet due or payable or subject to
penalties for non-payment and which are being contested in good faith
by appropriate proceedings;
(vii) Liens in favor of issuers of surety bonds or letters of
credit pursuant to the request or and for the account of such Person in
the ordinary course of its business;
(viii) Liens on property at the time the Company acquires such
property, including any acquisition by means of a merger or
consolidation of such Person with or into the Company; provided that
such Liens are not created in contemplation of such acquisition;
(ix) Liens 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) any
interlocutory or temporary attachment order or measure in connection
with an action or proceeding during the pendency of such action or
proceeding; (C) security for payment of workers' compensation,
unemployment insurance laws or similar legislation; and (D) operation
of law in favor of warehousemen, landlords, mechanics, material men,
laborers, employees or suppliers or other similar liens imposed by law
or by contract 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;
(x) Liens created or established in order to comply with any
applicable rule, regulation, order, resolution, decree, directive or
instruction of any federal, provincial or municipal government of
Mexico, or any agency or instrumentality thereof, in connection with
the conduct of a Permitted Business; and
(xi) Liens securing Indebtedness or other Obligations in an
aggregate amount not to exceed U.S.$10,000,000 (or its foreign currency
equivalent) at any one time outstanding.
"Permitted Refinancing Indebtedness" means an extension or
renewal of, replacement of, or substitution for, or issue of Indebtedness in
exchange for, or the net proceeds of which are used to repay, redeem,
repurchase, refinance, extend or refund, including by way of defeasance (all of
the above, for purposes of this clause, "refinance") the Company's then
outstanding Indebtedness Incurred or existing under Section 3.7; provided that:
(i) (A) Indebtedness so Incurred does not exceed the amount so
refinanced (plus the amount of any reasonable fees, expenses, premium,
defeasance costs and accrued but unpaid interest Incurred by the
Company in connection with such refinancing); or (B) the Indebtedness
so Incurred is used exclusively to refinance scheduled amortization
payments up to the amount of the scheduled amortization payments being
refinanced;
(ii) such Indebtedness is Incurred by the same Person which
Incurred the Indebtedness which is being refinanced, and no additional
security, collateral Guarantees or other support is provided; and
(iii) such Indebtedness shall have a Weighted Average Life to
Maturity that is equal to or greater than the Weighted Average Life to
Maturity of the Indebtedness being refinanced as of the date of
Incurrence of such Indebtedness.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Post-Petition Interest" means all interest accrued or
accruing after the commencement of any insolvency or liquidation proceeding (and
interest that would accrue but for the commencement of any insolvency or
liquidation proceeding) in accordance with and at the contract rate (including,
without limitation, any rate applicable upon default) specified in the agreement
or instrument creating, evidencing or governing any Indebtedness, whether or
not, pursuant to applicable law or otherwise, the claim for such interest is
allowed as a claim in such insolvency or liquidation proceeding.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights over any other Capital Stock of such
Person with respect to dividends, distributions or redemptions or upon
liquidation.
"Process Agent" has the meaning assigned to it in Section
11.8.
"Rating" means a credit rating by any of S&P, Xxxxx'x or any
internationally recognized statistical rating organization, including a
statistical rating organization recognized by the SEC as a "nationally
recognized statistical rating organization."
"Receivables and Related Assets" means any of the Company's
account receivable (whether now existing or arising thereafter), and any of the
Company's assets related thereto, including all collateral securing such
accounts receivable, all contracts and contract rights and all Guarantees or
other obligations in respect of such accounts receivable, proceeds of such
accounts receivable and other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable.
"Record Date" has the meaning assigned to it in the Form of
Face of Note contained in Exhibit A.
"Redemption Date" means, with respect to any redemption of
Notes, the date fixed for such redemption pursuant to this Indenture and the
Notes.
"Registrar" has the meaning assigned to it in Section 2.3(a).
"Related Proceeding" has the meaning assigned to it in Section
11.8.
"Replacement Collateral Value" means on any day (i) with
respect to Cash Replacement Collateral, the amount of the asset in respect
thereof in accordance with Mexican GAAP on such day and (ii) with respect to
Stock Replacement Collateral, the Closing Price of the common shares of the
Special Surviving Entity on such day multiplied by the number of shares of
Common Stock constituting the Stock Replacement Collateral on such day.
"Restricted Payment" has the meaning assigned to it under
Section 3.8.
"Restricted Sale" means, with respect to any Person, any
direct or indirect sale, disposition, issuance, conveyance, transfer, assignment
or other transfer of Capital Stock of such Person (except for directors'
qualifying shares or an immaterial amount of shares required to be owned by
other Persons pursuant to applicable law), other than:
(i) the disposition of all or substantially all of the
Company's assets and as permitted under Article IV or any disposition
which constitutes a Change of Control; or
(ii) dispositions resulting from the foreclosure of a
Permitted Lien.
"Restructuring" means the restructuring of the Company's
Existing Notes which was effected by means of the filing of a plan of
reorganization with a Mexican federal district court pursuant to the Mexican
Business Reorganization Act.
"S&P" means Standard & Poor's Ratings Services and its
successors and assigns.
"Xxxxxxx Group" means any of (i) Xxxxxxx X. Xxxxxxx Xxxxxx and
any relative of his up to the fourth degree of relationship, (ii) any heir or
successor by way of inheritance or testamentary gift of any Person described in
clause (i) or of any such heir or successor, and (iii) any Affiliate of any
Person described in clauses (i) or (ii), in each case as designated from time to
time by Xxxxxxx X. Xxxxxxx Xxxxxx during his life and thereafter by his nearest
living relative.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Currency" has the meaning assigned to it in Section
11.13(b).
"Share Collateral" means (i) the shares of Common Stock
deposited with the Collateral Trustee on the Issue Date as described in the
Collateral Trust Agreement and (ii) any Stock Replacement Collateral, in each
case together with any additional Common Stock deposited to be held in trust as
Collateral in accordance with Section 3.9 and Section 3.10.
"Special Record Date" has the meaning assigned to it in
Section 2.12(a).
"Special Restricted Subsidiary" means, on the Issue Date,
Iusacell Celular and, thereafter, Iusacell Celular and any Subsidiary of the
Company that becomes a Special Restricted Subsidiary in accordance with Section
3.9.
"Special Restricted Subsidiary Offering Collateral Coverage
Ratio" means, at the time of any Restricted Sale of Capital Stock of Iusacell
Celular or any other Special Restricted Subsidiary, the ratio of the market
value of the Collateral (determined by multiplying (1) the average Closing Price
per share of the Common Stock during the 30 trading days after the public
announcement of such sale or issuance by (2) the number of shares of Common
Stock constituting the Collateral at the time of issuance) as compared to the
outstanding principal amount of the Notes at such time. In the event that the
Collateral is comprised of Stock Replacement Collateral or Cash Replacement
Collateral, the market value of the Collateral shall instead be determined using
the Replacement Collateral Value over the same periods.
"Special Surviving Entity" has the meaning assigned to it in
Section 4.1.
"Stock Replacement Collateral" means common shares of the
Special Surviving Entity with an aggregate Replacement Collateral Value at the
relevant date equal to or greater than the Original Collateral Value, as
deposited with the Collateral Trustee free and clear of any Liens for the
benefit of Holders in accordance with terms of the Collateral Trust Agreement.
"Subordinated Indebtedness" means any of the Company's
Indebtedness that is subordinated in right of payment to the Notes pursuant to a
written agreement to that effect.
"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; or
(ii) any other Person (other than a corporation) in which the
Company, directly or indirectly at the date of determination thereof,
has at least a majority ownership interest.
"Surviving Entity" has the meaning assigned to it in Section
4.1.
"Taxes" means any present or future taxes, levies, imposts,
duties, charges, assessments or fees of any nature that are imposed by any
government or other taxing authority.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended, as in effect on the date of this Indenture (except as
otherwise provided in this Indenture).
"Trade Payables" means, with respect to any Person, any
accounts payable or an indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business in connection with the acquisition of any goods or services.
"Triggering Event" has the meaning assigned to it in Section
6.1(a).
"Trigger Notice" has the meaning assigned to it in Section
6.1(c).
"Trustee" means the party named as such in the introductory
paragraph of this Indenture until a successor replaces it in accordance with the
terms of this Indenture and, thereafter, means the successor.
"Trust Officer" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, who shall have
direct responsibility for the administration of this Indenture, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject.
"UCC" means the Uniform Commercial Code in effect in the State
of New York.
"Unefon" means Unefon, S.A. de C.V., or a Subsidiary or
successor of it.
"U.S." and "United States" mean the United States of America.
"U.S. Government Obligations" means obligations issued or
directly and fully Guaranteed or insured by the United States of America or by
any agent or instrumentality thereof, provided, that the full faith and credit
of the United States of America is pledged in support thereof.
"Voting Stock" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the election
of directors, managers or other voting members of the governing body of such
Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years (calculated to the nearest
one-twelfth) obtained by dividing:
(i) the then outstanding aggregate principal amount or
liquidation preference, as the case may be, of such Indebtedness into
(ii) the sum of the products obtained by multiplying:
(A) the amount of each then remaining installment,
sinking fund, serial maturity or other required payment of
principal or liquidation preference, as the case may be,
including payment at final maturity, in respect thereof, by
(B) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the
making of such payment.
"Wholly Owned Direct Subsidiary" means a Subsidiary all of the
Capital Stock of which (except for directors' qualifying shares or an immaterial
amount of shares required to be owned by other Persons pursuant to applicable
law) is owned directly by the Company.
Section 1.2 Incorporation by Reference of Trust Indenture
Act. If any provision of this Indenture limits, qualifies or conflicts with the
duties that would be imposed by any of Sections 310 to 317 of the TIA through
operation of Section 318(c) thereof on any person if this Indenture were
qualified under the TIA, such imposed duties shall control.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined in the TIA by reference to another statute or defined by Rules
or Regulations of the SEC have the meanings assigned to them by such
definitions.
Section 1.3. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with Mexican GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) references to the payment of principal of the Notes shall
include applicable premium, if any; and
(g) references to payments on the Notes shall include
Additional Amounts, if any.
ARTICLE II
THE NOTES
Section 2.1. Form and Dating.
(a) The Notes will be issued in fully-registered certificated
form without coupons, and only in denominations of U.S.$1.00 and any
integral multiple thereof. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A.
(b) The terms and provisions of the Notes, the form of which
is in Exhibit A, shall constitute, and are hereby expressly made, a part of
this Indenture, and, to the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby.
(c) The Notes may have notations, legends or endorsements as
specified in Section 2.7 or as otherwise required by law, stock exchange
rule or DTC rule or usage. The Company and the Trustee shall approve the
form of the Notes and any notation, legend or endorsement on them. Each
Note shall be dated the date of its authentication.
Section 2.2. Execution and Authentication.
(a) Two Officers shall sign the Notes for the Company by
manual or facsimile signature. If an Officer whose signature is on a Note
no longer holds that office at the time the Trustee authenticates the Note,
the Note shall be valid nevertheless.
(b) A Note shall not be valid until an authorized signatory of
the Trustee manually authenticates the Note. The signature of the Trustee
on a Note shall be conclusive evidence, and the only evidence, that such
Note has been duly and validly authenticated and issued under this
Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make
available for delivery Notes upon a written order of the Company signed by
two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company (the "Company Order"). A Company Order
shall specify the amount of the Notes to be authenticated and the date on
which the original issue of Notes is to be authenticated. The aggregate
principal amount of Notes that may be authenticated and delivered under
this Indenture is limited to U.S.$[o](1).
(d) The Trustee may appoint an agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate the Notes.
Unless limited by the terms of such appointment, any such Authenticating
Agent may authenticate Notes whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication
by the Authenticating Agent.
(e) In case a Surviving Entity has executed an indenture
supplemental hereto with the Trustee pursuant to Article IV, any of the
Notes authenticated or delivered prior to such transaction may, from time
to time, at the request of the Surviving Entity, be exchanged for other
Notes executed in the name of the Surviving Entity with such changes in
phraseology and form as may be appropriate, but otherwise identical to the
Notes surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Order of the Surviving Entity, shall authenticate and
deliver Notes as specified in such order for the purpose of such exchange.
If Notes shall at any time be authenticated and delivered in any new name
of a Surviving Entity pursuant to this Section 2.2 in exchange or
substitution for or upon registration of transfer of any Notes, such
Surviving Entity, at the option of the Holders but without expense to them,
shall provide for the exchange of all Notes at the time Outstanding for
Notes authenticated and delivered in such new name.
______________
(1) Note to draft: Amount issued on Issue Date after taking into account the
Restructuring Payment and the Mexican Rights Offering Amount.
Section 2.3. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency in the
Borough of Manhattan, City of New York, where Notes may be presented or
surrendered for registration of transfer or for exchange (the "Registrar"),
where Notes may be presented for payment (the "Paying Agent") and for the
service of notices and demands to or upon the Company in respect of the
Notes and this Indenture. The Registrar shall keep a register of the Notes
and of their transfer and exchange (the "Note Register"). The Company may
have one or more co-Registrars and one or more additional paying agents.
The term "Paying Agent" includes any additional paying agent.
(b) The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-Registrar not a party to
this Indenture, which shall incorporate the terms of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such agent.
The Company shall notify the Trustee of the name and address of each 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
therefor pursuant to Section 7.7. The Company may act as Paying Agent,
Registrar, co-Registrar or transfer agent.
(c) The Company initially appoints the Trustee at its
Corporate Trust Office as Registrar and Paying Agent in connection with the
Notes and this Indenture, until such time as another Person is appointed as
such.
Section 2.4. Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that such Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by such Paying Agent for the payment of principal of or
interest on the Notes and shall notify the Trustee in writing of any Default by
the Company in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent (other than the Trustee) to pay all money held by it to the
Trustee and to account for any funds disbursed by such Paying Agent. Upon
complying with this Section 2.4, the Paying Agent (if other than the Company)
shall have no further liability for the money delivered to the Trustee. Upon any
proceeding under any Insolvency Law with respect to the Company or any Affiliate
of the Company, if the Company or such Affiliate is then acting as Paying Agent,
the Trustee shall replace the Company or such Affiliate as Paying Agent.
Section 2.5. 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. If the Trustee is not the Registrar, or
to the extent otherwise required under the TIA, the Company shall furnish to the
Trustee, in writing at least seven Business Days before each Interest Payment
Date and at such other times as the Trustee may 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 2.6. Global Note Provisions.
(a) The Notes will be issued in the form of one or more
permanent Global Notes. Each Global Note initially shall: (i) be registered
in the name of DTC or the nominee of DTC, (ii) be delivered to the Note
Custodian, and (iii) bear the appropriate legend, as set forth in Section
2.7 and Exhibit A. Any Global Note may be represented by more than one
certificate. The aggregate principal amount of each Global Note may from
time to time be increased or decreased by adjustments made on the records
of the Note Custodian, as provided in this Indenture.
(b) Members of, or participants in, DTC ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note
held on their behalf by DTC or by the Note Custodian under such Global
Note, and DTC may be treated by the Company, the Trustee, the Paying Agent
and the Registrar and any of their agents as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee, the Paying Agent or
the Registrar or any of their agents from giving effect to any written
certification, proxy or other authorization furnished by DTC or impair, as
between DTC and its Agent Members, the operation of customary practices of
DTC governing the exercise of the rights of an owner of a beneficial
interest in any Global Note. The registered Holder of a Global Note may
grant proxies and otherwise authorize any person, including Agent Members
and persons that may hold interests through Agent Members, to take any
action that a Holder is entitled to take under this Indenture or the Notes.
(c) Except as provided below, owners of beneficial interests
in Global Notes will not be entitled to receive Certificated Notes.
Certificated Notes shall be issued to all owners of beneficial interests in
a Global Note in exchange for such interests if:
(i) DTC notifies the Company that it is unwilling or unable to
continue as depositary for such Global Note or DTC ceases to be a
clearing agency registered under the Exchange Act, at a time when
DTC is required to be so registered in order to act as
depositary, and in each case a successor depositary is not
appointed by the Company within 90 days of such notice;
(ii) the Company executes and delivers to the Trustee and
Registrar an Officers' Certificate stating that such Global Note
shall be so exchangeable; or
(iii) an Event of Default has occurred and is continuing and
the Registrar has received a request from DTC.
In connection with the exchange of an entire Global Note for
Certificated Notes pursuant to this Section 2.6(c), such Global Note shall
be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and upon Company Order the Trustee shall
authenticate and deliver, to each beneficial owner identified by DTC in
exchange for its beneficial interest in such Global Note, an equal
aggregate principal amount of Certificated Notes of authorized
denominations.
Section 2.7. Legends.
Each Global Note shall bear the legend specified therefor in
Exhibit A on the face thereof.
Section 2.8. Transfer and Exchange.
(a) Transfers of a Global Note shall be limited to transfers
of such Global Note in whole, but not in part, to nominees of DTC or to a
successor of DTC or such successor's nominee.
(b) When Notes are presented to the Registrar or a
co-Registrar with a request to register the transfer of such Notes or to
exchange such Notes for an equal principal amount of Notes of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided that any Notes presented or 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
the Registrar or co-Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing. To permit registrations of transfers
and exchanges and subject to the other terms and conditions of this Article
II, the Company will execute and upon Company Order the Trustee will
authenticate Notes at the Registrar's or co-Registrar's written request.
(i) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company or the
Trustee may require payment of a sum sufficient to cover any
transfer tax, assessments, or similar governmental charge payable
in connection therewith (other than any such transfer taxes,
assessments or similar governmental charges payable upon exchange
or transfer pursuant to Section 3.9, Section 3.10, Section 3.14,
Section 5.1 or Section 9.6).
(ii) The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Note for a period
beginning: (1) 15 days before the mailing of a notice of an offer
to repurchase or redeem Notes and ending at the close of business
on the day of such mailing or (2) 15 days before an Interest
Payment Date and ending on such Interest Payment Date.
(iii) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent,
the Registrar or any co-Registrar may deem and treat the person
in whose name a Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and
interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-Registrar
shall be affected by notice to the contrary.
(iv) All Notes issued upon any registration of transfer or
exchange pursuant to the terms of this Indenture shall evidence
the same debt and shall be entitled to the same benefits under
this Indenture as the Notes surrendered upon such registration of
transfer or exchange.
(c) The Trustee shall have no responsibility or obligation to
any beneficial owner of an interest in a Global Note, a member of, or a
participant in, DTC or other Person with respect to the accuracy of the
records of DTC or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than DTC) of any notice (including any notice of redemption) or the
payment of any amount or delivery of any Notes (or other security or
property) under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to
Holders in respect of the Notes shall be given or made only to or upon the
order of the registered Holders (which shall be DTC or its nominee in the
case of a Global Note). The Trustee may rely and shall be fully protected
in relying upon information furnished by DTC with respect to its members,
participants and any beneficial owners.
(d) The Registrar shall retain copies of all letters, notices
and other written communications received pursuant to this Article II. The
Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if
the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Company shall execute and upon Company Order the
Trustee shall authenticate a replacement Note if the requirements of
Section 8-405 of the UCC are met and the Holder satisfies any other
reasonable requirements of the Trustee and the Company. If required by the
Trustee or the Company, such Holder shall furnish an affidavit of loss and
indemnity bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, the Paying Agent, the Registrar and any
co-Registrar from any loss that any of them may suffer if a Note is
replaced, and, in the absence of notice to the Company or the Trustee that
such Note has been acquired by a protected purchaser, the Company shall
execute and upon Company Order the Trustee shall authenticate and make
available for delivery, in exchange for any such mutilated Note or in lieu
of any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, bearing a number not contemporaneously Outstanding.
(b) Upon the issuance of any new Note under this Section 2.9,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses of the Company (including the fees and expenses of the
Trustee and counsel) in connection therewith.
(c) Every new Note issued pursuant to this Section 2.9 in
exchange for any mutilated Note, or in lieu of any destroyed, lost or
stolen Note, shall constitute an original additional contractual obligation
of the Company and any other obligor upon the Notes, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.9 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
Section 2.10. Temporary Notes. Until definitive Notes are
ready for delivery, the Company may execute and upon Company Order the Trustee
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company will
prepare and execute and upon Company Order the Trustee will authenticate
definitive Notes. After the preparation of definitive Notes, the temporary Notes
will be exchangeable for definitive Notes upon surrender of the temporary Notes
at any office or agency maintained by the Company for that purpose and such
exchange shall be without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Company will execute and upon Company
Order the Trustee will authenticate and make available for delivery in exchange
therefor one or more definitive Notes representing an equal principal amount of
Notes. Until so exchanged, the Holder of temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as a Holder of definitive
Notes.
Section 2.11. Cancellation. The Company at any time may
deliver Notes to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel and dispose of cancelled Notes in accordance with its policy of disposal
or return to the Company all Notes surrendered for registration of transfer,
exchange, payment or cancellation. The Company may not issue new Notes to
replace Notes it has paid or delivered to the Trustee for cancellation for any
reason other than in connection with a transfer or exchange upon Company Order.
Section 2.12. Defaulted Interest. When any installment of
interest becomes Defaulted Interest, such installment shall forthwith cease
to be payable to the Holders in whose names the Notes were registered on
the Record Date applicable to such installment of interest. Defaulted
Interest (including any interest on such Defaulted Interest) may be paid by
the Company, at its election, as provided in Section 2.12(a) or Section
2.12(b).
(a) The Company may elect to make payment of any Defaulted
Interest (including any interest on such Defaulted Interest) to the Holders
in whose names the Notes are registered at the close of business on a
special record date for the payment of such Defaulted Interest (a "Special
Record Date"), which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Holders entitled to
such Defaulted Interest as provided in this Section 2.12(a). The Trustee
shall then fix a Special Record Date for the payment of such Defaulted
Interest, which shall be not less than 15 calendar days prior to the date
of the proposed payment and not less than 15 calendar days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be sent, first-class mail, postage prepaid, to each Holder at such Holder's
address as it appears in the registration books of the Registrar, not less
than ten calendar days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Holders in whose names the Notes are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to Section 2.12(b).
(b) Alternatively, the Company may make payment of any
Defaulted Interest (including any interest on such Defaulted Interest) in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this Section 2.12(b),
such manner of payment shall be deemed practicable by the Trustee.
(c) The Company in issuing the Notes may use "CUSIP" numbers
(if then generally in use) and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided,
however, that neither the Company nor the Trustee shall have any
responsibility for any defect in the "CUSIP" number that appears on any
Note, check, advice of payment or redemption notice, and any such notice
may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company shall promptly
notify the Trustee in writing of any change in the CUSIP number.
ARTICLE III
COVENANTS
Section 3.1. Payment of Notes.
(a) The Company shall pay the principal of and interest
(including Defaulted Interest) on the Notes in Dollars on the dates and in
the manner provided in the Notes and in this Indenture. Prior to 10:00 a.m.
New York City time on each Interest Payment Date and the Maturity Date, the
Company shall deposit with the Paying Agent in immediately available funds
Dollars sufficient to make Cash payments due on such Interest Payment Date
or Maturity Date, as the case may be. If the Company or an Affiliate of the
Company is acting as Paying Agent, the Company or such Affiliate shall,
prior to 10:00 a.m. New York City time on each Interest Payment Date and
the Maturity Date, segregate and hold in trust Dollars sufficient to make
cash payments due on such Interest Payment Date or Maturity Date, as the
case may be. Principal and interest shall be considered paid on the date
due if on such date the Trustee or the Paying Agent (other than the Company
or an Affiliate of the Company) holds in accordance with this Indenture
Dollars designated for and sufficient to pay all principal and interest
then due and the Trustee or the Paying Agent, as the case may be, is not
prohibited from paying such money to the Holders on that date pursuant to
the terms of this Indenture.
(b) Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United
States of America from principal or interest payments hereunder.
Section 3.2. Maintenance of Office or Agency.
(a) The Company shall maintain each office or agency required
under Section 2.3. The Company shall give prompt written notice to the
Trustee of any change in the location of any 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
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
(b) The Company may also from time to time designate one or
more other offices or agencies (in or outside of The City of New York)
where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind any such designation; provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in The City
of New York for such purposes. The Company shall give prompt written notice
to the Trustee of any such designation or rescission and any change in the
location of any such other office or agency.
Section 3.3. Conduct of Business and Corporate Existence.
(a) The Company shall not engage in any business other than a
Permitted Business.
(b) Subject to Article IV, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence.
Section 3.4. 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 or in default, (i) all taxes, assessments and governmental
charges levied or imposed upon the Company or for which it is otherwise liable,
or upon the income, profits or property of the Company and (ii) all lawful
claims for labor, materials and supplies, which, if unpaid, might by law become
a liability or Lien upon the property of the Company; provided, however, 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 whose amount, applicability
or validity is being contested in good faith by appropriate proceedings or where
the failure to effect such payment would not reasonably be expected to affect in
any material respect the Company's ability to comply with its obligations
hereunder.
Section 3.5. Reports to Holders and Compliance Certificate.
(a) The Company shall deliver to the Trustee:
(i) as soon as available, but in any event within 120 days
after the end of each fiscal year, a copy of the Company's
consolidated balance sheet as of the end of such year and the
related consolidated statements of income and changes in
financial position for such fiscal year, audited by independent
accountants selected by the Company;
(ii) as soon as available, but in any event within 45 days
after the end of each of the first three fiscal quarters of the
Company, a copy of the Company's unaudited consolidated balance
sheet as of the end of each such quarter and the related
unaudited consolidated statements of income and changes in the
financial position of the Company for such quarter and the
portion of the fiscal year through such date;
(iii) concurrently with the delivery of the financial
statements referred to in Section 3.5(a)(i), an Officers'
Certificate that complies with TIA ss. 314(a)(4) stating whether,
to the best of such Officers' knowledge, anything came to his or
her attention to cause him or her to believe that there existed
on the date of such statements a Triggering Event, Default or
Event of Default, and if so, specifying the nature and period of
existence thereof and what action the Company is taking or
proposes to take with respect thereto.
(iv) such additional information, documents and other
reports as is required by TIA ss. 314.
(b) All of the financial statements referred to in Section
3.5(a)(i) and Section 3.5(a)(ii) are to be complete and correct in all
material respects, prepared in reasonable detail and in accordance with
Mexican GAAP applied consistently throughout the periods reflected therein
and to be delivered in both the English and Spanish languages. Delivery of
such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such reports shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificate).
Section 3.6. Maintenance of Books and Records. The Company
shall keep adequate books and record and account in relation to its business and
activities in accordance with Mexican GAAP.
Section 3.7. Limitation on Incurrence of Additional
Indebtedness. The Company shall not Incur any Indebtedness, except for Permitted
Indebtedness.
Section 3.8. Limitation on Restricted Payments. The Company
shall not, directly or indirectly, take any of the following actions
(each, a "Restricted Payment"):
(a) declare or pay any dividend or return of capital or make
any distribution on or in respect of the Capital Stock of the Company to
holders of such Capital Stock; or
(b) purchase, redeem or otherwise acquire or retire for value
any of the Capital Stock of the Company.
Section 3.9. Limitation on Restricted Sales. The Company shall
not effect, and shall not permit Iusacell Celular or any other Special
Restricted Subsidiary to effect, any Restricted Sale of Capital Stock of
Iusacell Celular or any such other Special Restricted Subsidiary; provided,
however, that a Restricted Sale of Capital Stock of Iusacell Celular or any
other Special Restricted Subsidiary shall be permitted if:
(a) after giving effect to such Restricted Sale, the Company
shall own at least 51% of the outstanding Capital Stock of Iusacell Celular
or any such other Special Restricted Subsidiary;
(b) the majority of the members of the Board of Directors
having no personal stake in such Restricted Sale has determined that
such Restricted Sale is on an arm's length commercial basis; and
(c) such Restricted Sale is (i) to a multinational
telecommunications company, (ii) solely with respect to a Restricted
Sale of Capital Stock of Iusacell Celular, in connection with any
restructuring of the Indebtedness of Iusacell Celular after the Issue
Date, or (iii) in connection with which the Special Restricted
Subsidiary Offering Collateral Coverage Ratio at the time of such
Restricted Sale is equal to or exceeds the lesser of (1) 1.00 or the
(2) Iusacell Holding Floor Collateral Coverage Ratio at such time.
In the case of any Restricted Sale of Iusacell Celular or any
other Special Restricted Subsidiary as a result of which the Company receives
Net Cash Proceeds, 50% of such Net Cash Proceeds shall be applied by the
Company, within 180 days of receipt thereof, either (x) to redeem or repurchase
for cancellation the Notes in accordance with Article V or (y) by the Company to
invest in a Permitted Business conducted by it or by any Wholly Owned Direct
Subsidiary at the time of the Restricted Sale. Any such Wholly Owned Direct
Subsidiary that is not a Special Restricted Subsidiary as of the date of such
investment shall thereafter be considered a Special Restricted Subsidiary.
Pending such application, the Company shall hold such Net Cash Proceeds for the
benefit of Holders.
Notwithstanding the foregoing, in the event that the test in clause (c)(iii)
above is not met at the time of such Restricted Sale, the Company may, at its
option:
(1) redeem or repurchase for cancellation a portion of the
Notes in accordance with Article V; or
(2) deposit (or cause to be deposited) additional shares of
Common Stock to be held in trust pursuant to the Collateral Trust
Agreement (which shall not be deemed to be an issuance of Capital Stock
restricted under Section 3.10),
such that after giving effect to the actions described in clauses (1) or (2)
above, including any cancellation to be completed in connection with a
repurchase, the Company would be in compliance with such test.
Section 3.10. Limitation on Equity Issuances.
(a) The Company shall not issue any Capital Stock, except that
the Company may issue Common Stock (i) in connection with the exercise of
stock option grants outstanding on the Issue Date and/or (ii) at any time
that the Iusacell Holding Offering Collateral Coverage Ratio at the time of
such issuance would be greater than or equal to the lesser of (1) 1.00 or
(2) the Iusacell Holding Floor Collateral Coverage Ratio at such time.
(b) Notwithstanding the foregoing, in the event that the test
in Section 3.10(a) is not met at the time of such issuance, the Company
shall, at its option:
(i) redeem or repurchase for cancellation a portion
of the Notes in accordance with Article V; or
(ii) deposit (or cause to be deposited) additional
shares of Common Stock to be held in trust pursuant to the
Collateral Trust Agreement (which shall not be deemed to be an
issuance of Capital Stock restricted under this covenant),
such that after giving effect to the actions described in Sections
3.10(b)(i) or 3.10(b)(ii), including any cancellation to be completed in
connection with a repurchase, the Company would be in compliance with such
test.
(c) Nothing in this covenant shall restrict any issuance of
Capital Stock by any Surviving Entity pursuant to a transaction
contemplated in Article IV.
Section 3.11. Limitation on Liens. The Company shall not Incur
any Liens of any kind to secure Indebtedness against or upon any of its
properties or assets, whether owned on the Issue Date or acquired after the
Issue Date, or any proceeds therefrom, except for Permitted Liens, unless the
Company secures the Notes on an equal and ratable basis (or on a senior basis in
the case of Subordinated Indebtedness) with such Indebtedness. Notwithstanding
the preceding sentence, the Company is not restricted in any way from Incurring
any Liens on any Capital Stock owned by it other than the Capital Stock of a
Special Restricted Subsidiary.
Section 3.12. Limitation on Transactions with Affiliates. The
Company shall not, directly or indirectly, enter into, renew or extend any
transaction or arrangement including the purchase, sale, lease or exchange of
property or assets, or the rendering of any service, with any Affiliate of the
Company other than a transaction, arrangement or the rendering of any service
that is within the ordinary course of business of the Company and that is for
Fair Market Value; provided that the foregoing paragraphs shall not apply to:
(a) transactions contemplated under Clause Eighth of the
Collateral Trust Agreement;
(b) any payment of reasonable and customary fees to directors
of the Company;
(c) any transaction or payment required pursuant to Mexican
laws and regulations;
(d) any transaction or payment pursuant to any employee,
officer or director compensation or benefit plans or arrangements
entered into in the ordinary course of business;
(e) any transaction or payments made in an aggregate amount
not to exceed U.S.$5,000,000 (or its foreign currency equivalent), net
of taxes, in any fiscal year; or
(f) any transaction between the Company and any of its
Subsidiaries.
Section 3.13. Payment of Additional Amounts.
(a) The Company is required by Mexican law to deduct and to
withhold certain Taxes from payments of interest and amounts deemed
interest to investors who are not residents of Mexico for tax purposes, and
shall pay to any Holder such additional amounts ("Additional Amounts") on
those payments to the extent described in this Section 3.13. To the extent
Taxes imposed by Mexico or any political subdivision or taxing authority
thereof or therein ("Mexican Taxes") are required to be withheld or
deducted from any such payment, the Company shall pay such Additional
Amounts as may be necessary to ensure that the net amount actually received
by such Holder after such withholding or deduction is equal to the amount
that the Holder would have received had no such withholding or deduction
been required, provided, however, that no such Additional Amounts shall be
payable in respect of any such Mexican Taxes required to be deducted,
withheld or otherwise imposed above the amount resulting from a withholding
tax rate in Mexico of 4.9% (resulting in a maximum applicable gross-up of
approximately 5.1525% of the stated amount of the relevant payment). Any
reference in this Indenture or the Notes to principal, premium, interest or
any other amount payable in respect of the Notes by the Company shall be
deemed also to refer to any Additional Amounts that may be payable with
respect to such amounts under the obligations referred to in this Section
3.13.
(b) The Company shall not pay Additional Amounts to any Holder
for or on account of any of the following:
(i) any Taxes imposed solely because of the existence
of any present or former connection between such Holder and
Mexico (other than the mere receipt of a payment or the
ownership or holding of a Note);
(ii) any estate, inheritance, gift, sales, transfer
or similar tax, assessment or other governmental charge
imposed with respect to the Notes;
(iii) any Taxes imposed solely because the Holder or
any other Person fails to comply with any certification,
identification, information, documentation or other reporting
requirement if (1) such compliance is required by law,
regulation, administrative practice or an applicable treaty as
a precondition to exemption from, or reduction in the rate of,
deduction or withholding of any Taxes for which the Company is
required to pay Additional Amounts and (2) at least 30 days
prior to the first Interest Payment Date or Change of Control
Payment Date with respect to which the Company shall apply
this clause (iii), the Company shall have notified the Holder
that the Holder shall be required to comply with such
requirement;
(iv) any Taxes that are payable otherwise than by
deduction or withholding from payments on the Notes;
(v) any Taxes with respect to such Note presented for
payment more than 30 days after the date on which the payment
became due and payable or the date on which payment thereof is
duly provided for and notice thereof given to Holders,
whichever occurs later, except to the extent that the Holders
of such Note would have been entitled to such Additional
Amounts on presenting such Note for payment on any date during
such 30-day period; and
(vi) any payment on the Note to a Holder that is a
fiduciary or partnership or a person other than the sole
beneficial owner of any such payment, to the extent that a
beneficiary or settlor with respect to such fiduciary, a
member of such a partnership or the beneficial owner of the
payment would not have been entitled to the Additional Amounts
had the beneficiary, settlor, member or beneficial owner been
the Holder.
(c) Upon request, the Company shall provide the Trustee with
documentation reasonably satisfactory to the Trustee evidencing the payment
of any Taxes deducted or withheld. The Company shall make copies of such
documentation available to the Holders or the Paying Agent upon request.
(d) In the event that Additional Amounts actually paid with
respect to the Notes pursuant to the preceding paragraphs are based on
rates of deduction or withholding of withholding taxes in excess of the
appropriate rate applicable to the Holder of such Notes, and, as a result
thereof, such Holder is entitled to make a claim for a refund or credit of
such excess from the authority imposing such withholding tax, then such
Holder shall, by accepting such Notes, be deemed to have assigned and
transferred all right, title and interest to any such claim for a refund or
credit of such excess to the Company. However, by making such assignment,
the Holder makes no representation or warranty that the Company shall be
entitled to receive such claim for a refund or credit and Incurs no other
obligation with respect thereto (including Incurring any expenses
whatsoever necessary to obtain such refund).
(e) In the event of any merger or other transaction described
and permitted under Article IV that results in a Surviving Entity that is a
U.S. or E.U. Country Person, then all references to Mexico, Mexican law or
regulations, and Mexican taxing authorities under this Section 3.13 shall
be deemed to also include the United States or relevant E.U. Country, as
the case may be, and any political subdivision therein or thereof, United
States or relevant E.U. Country law or regulations, and any taxing
authority of the United States or the relevant E.U. Country or any
political subdivision therein or thereof, respectively.
Section 3.14. Change of Control.
(a) Not later than 60 days following the occurrence of a
Change of Control, each Holder shall have the right to require that the
Company purchase all or a portion (in integral multiples of U.S.$1.00) of
the Holder's Notes at a purchase price equal to 100% of the principal
amount thereof (including any capitalized interest), plus accrued and
unpaid interest thereon through the date of the purchase (subject to the
right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date) (the "Change of Control
Payment").
(b) Within 30 days following the date upon which the Change of
Control occurred, the Company shall mail, by first-class mail, to each
Holder a Change of Control Notice, with a copy to the Trustee and the
Collateral Trustee, offering to purchase the Notes as described above (a
"Change of Control Offer"). The Change of Control Notice shall state, in
addition to the things specified in the definition thereof, the purchase
date, which shall be 30 calendar days from the date the Change of Control
Notice is mailed, other than as may be required by law (the "Change of
Control Payment Date").
(c) On the Change of Control Payment Date, the Company shall,
to the extent lawful:
(i) accept for payment all Notes or portions thereof
properly tendered and not withdrawn pursuant to the Change of
Control Offer;
(ii) deposit with the Paying Agent funds in an amount
equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and not withdrawn; and
(iii) deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions
thereof being purchased by the Company.
If only a portion of a Note is purchased pursuant to a Change of Control
Offer, a new Note in a principal amount equal to the portion thereof not
purchased shall be issued in the name of the Holder thereof upon
cancellation of the original Note (or appropriate adjustments to the amount
and beneficial interests in a Global Note shall be made, as appropriate).
Notes (or portions thereof) purchased pursuant to a Change of Control Offer
shall be cancelled and cannot be reissued.
(d) The Company shall not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with
the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes validly tendered
and not withdrawn under such Change of Control Offer.
(e) Holders shall not be entitled to require the Company to
purchase their Notes in the event of a takeover, recapitalization,
leveraged buyout or similar transaction which is not a Change of Control.
(f) The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other applicable securities laws and
regulations thereunder in connection with the purchase of Notes in
connection with a Change of Control Offer. To the extent that the
provisions of any applicable securities laws or regulations conflict with
the Change of Control provisions of this Indenture, the Company shall
comply with such securities laws and regulations and shall not be deemed to
have breached its obligations under this Indenture by doing so.
(g) The Company's obligation to make an offer to purchase the
Notes as a result of the occurrence of a Change of Control may be waived or
modified at any time prior to the occurrence of such Change of Control with
the written consent of Holders holding in the aggregate at least 51% of the
outstanding principal amount of the Notes.
Section 3.15. Further Instruments and Acts. The Company shall
execute and deliver such further instruments and do such further acts as may be
required by applicable law or may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
Section 3.16. Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that will not have
and 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 Notes 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. The Company hereby expressly
waives (to the fullest extent permitted by applicable law) 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.
ARTICLE IV
SURVIVING ENTITY
Section 4.1. Merger, Consolidation and Sale of Assets.
(a) The Company shall not merge into or consolidate with any
Person, whether or not the Company is the surviving or continuing Person,
or sell, assign, transfer, lease or otherwise convey or dispose of all or
substantially all of its assets, whether by one transaction or a series of
transactions, to any Person unless:
(i) either
(1) the Company is the surviving or continuing
corporation; or
(2) the Person (if other than the Company) formed
by such consolidation or into which the Company is merged
or the Person which acquires by sale, assignment,
transfer, lease, conveyance to or other disposition its
properties and assets substantially as an entirety (the
"Surviving Entity") provides Cash Replacement Collateral
in substitution for the existing Collateral at such time
prior to, or simultaneous with, consummation of the
transaction; provided, however, that if the Surviving
Entity is Unefon or an Investment Grade Entity, such
Surviving Entity (the "Special Surviving Entity") shall
provide, at its option, either Cash Replacement
Collateral or Stock Replacement Collateral in
substitution for the existing Collateral at such time;
(ii) the Board of Directors has approved such
transaction and the other Person party to such transaction is
either:
(1) Unefon; or
(2) a Person primarily engaged in a Permitted
Business specifically related to the telecommunications
business, with a Rating at least as high as that of the
Company immediately prior to the announcement of the
transaction;
(iii) either
(1) the Company is the surviving or continuing
corporation, or
(2) the Surviving Entity:
(A) is a company, corporation,
limited partnership or limited liability
company organized and validly existing under
(i) the laws of Mexico, or (ii) the United
States of America, any State thereof or the
District of Columbia or (iii) any E.U.
Country; and
(B) expressly assumes, by
supplemental indenture (in form and
substance reasonably satisfactory to the
Trustee), executed and delivered to the
Trustee and by other documents required
under the Collateral Trust Agreement, the
due and punctual payment of the Company's
Obligations under the Notes and the
performance and observance of the covenants
of the Notes, this Indenture and the
Collateral Trust Agreement on the part of
the Company to be performed or observed;
(iv) immediately after giving effect to such
transaction, no Triggering Event, Default or Event of Default
has occurred and is continuing; and
(v) the Company or the Surviving Entity has delivered
to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that the consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition
and, if required in connection with such transaction, the
supplemental indenture, comply with the applicable provisions
of this Indenture and that all conditions precedent in this
Indenture relating to the transaction have been satisfied.
(b) Upon the occurrence of any of the transactions permitted
by the preceding paragraphs, the Surviving Entity (if not the Company)
shall succeed to and become substituted for the Company, and may exercise
every right and power of the Company, with the same effect as if it had
been named in the Notes and this Indenture. Following such transaction, the
Company shall be released from its liability as obligor on the Notes and
under this Indenture.
(c) In the event of any such sale, assignment, transfer,
lease, conveyance or disposition, the Company, as the predecessor entity,
may be dissolved, wound-up or liquidated at any time thereafter.
ARTICLE V
REDEMPTION AND MARKET PURCHASES OF NOTES
Section 5.1. Optional Redemption. The Company may redeem the
Notes, as a whole or from time to time in part, subject to the conditions and at
the redemption prices specified in the form of Notes in Exhibit A.
Section 5.2. Election to Redeem. The Company shall evidence
its election to redeem any Notes pursuant to Section 5.1 by a Board Resolution.
Section 5.3. Notice of Redemption.
(a) The Company shall give or cause the Trustee to give notice
of redemption, in the manner provided for in Section 11.2, not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of Notes
to be redeemed. If the Company itself gives the notice, it shall also
deliver a copy to the Trustee.
(b) If either (i) the Company is not redeeming all Outstanding
Notes, or (ii) the Company elects to have the Trustee give notice of
redemption, then the Company shall deliver to the Trustee, at least 45 days
prior to the Redemption Date (unless the Trustee is satisfied with a
shorter period), an Officers' Certificate requesting that the Trustee
select the Notes to be redeemed and/or give notice of redemption and
setting forth the information required by Section 5.3(c) (with the
exception of the identification of the particular Notes, or portions of the
particular Notes, to be redeemed in the case of a partial redemption). If
the Company elects to have the Trustee give notice of redemption, the
Trustee shall give the notice in the name of the Company and at the
Company's expense.
(c) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the redemption price and the amount of any
accrued interest payable as provided in Section 5.6;
(iii) whether or not the Company is redeeming all
Outstanding Notes;
(iv) if the Company is not redeeming all Outstanding
Notes, the aggregate principal amount of Notes that the
Company is redeeming and the aggregate principal amount of
Notes that will be Outstanding after the partial redemption,
as well as the identification of the particular Notes, or
portions of the particular Notes, that the Company is
redeeming;
(v) if the Company is redeeming only part of a Note,
the notice that relates to that Note will state that on and
after the Redemption Date, upon surrender of that Note, the
Holder shall receive, without charge, a new Note or Notes of
authorized denominations for the principal amount of the Note
remaining unredeemed;
(vi) that on the Redemption Date the redemption price
and any accrued interest payable to the Redemption Date as
provided in Section 5.6 will become due and payable in respect
of each Note, or the portion of each Note, to be redeemed,
and, unless the Company defaults in making the redemption
payment, that interest on each Note, or the portion of each
Note, to be redeemed, will cease to accrue on and after the
Redemption Date;
(vii) the place or places where a Holder must
surrender the Holder's Notes for payment of the redemption
price; and
(viii) the CUSIP or ISIN number, if any, listed in
the notice or printed on the Notes, and that no representation
is made as to the accuracy or correctness of such CUSIP or
ISIN number.
Section 5.4. Selection of Notes to Be Redeemed in Part.
(a) If the Company is not redeeming all Outstanding Notes, the
Trustee shall select the Notes to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not then listed on a
national securities exchange, by lot or in another fair and reasonable
manner chosen at the discretion of the Trustee. The Trustee shall make the
selection from the Outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount of the Notes to be redeemed. In the event
of a partial redemption by lot, the Trustee shall select the particular
Notes to be redeemed not less than 30 nor more than 60 days prior to the
relevant Redemption Date from the Outstanding Notes not previously called
for redemption. The Company may redeem Notes in denominations of U.S.$1.00
only in whole. The Trustee may select for redemption portions (equal to
U.S.$1.00 or any integral multiple of U.S.$1.00) of the principal of Notes
that have denominations larger than U.S.$1.00.
(b) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part, to
the portion of the principal amount of that Note which has been or is to be
redeemed.
Section 5.5. Deposit of Redemption Price. Prior to 10:00 a.m.
New York City time on the relevant Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as Paying
Agent, segregate and hold in trust as provided in Section 2.4) an amount of
Dollars in immediately available funds sufficient to pay the redemption price
of, and accrued interest on, all the Notes that the Company is redeeming on that
date.
Section 5.6. Notes Payable on Redemption Date. If the Company,
or the Trustee on behalf of the Company, gives notice of redemption in
accordance with this Article V, the Notes, or the portions of Notes, called for
redemption, shall, on the Redemption Date, become due and payable at the
redemption price specified in the notice (together with accrued interest, if
any, to the Redemption Date), and from and after the Redemption Date (unless the
Company shall default in the payment of the redemption price and accrued
interest) the Notes or the portions of Notes shall cease to bear interest. Upon
surrender of any Note for redemption in accordance with the notice, the Company
shall pay the Notes at the redemption price, together with accrued interest, if
any, to the Redemption Date (subject to the rights of Holders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date). If the Company shall fail to pay any Note called for redemption upon its
surrender for redemption, the principal shall, until paid, bear interest from
the Redemption Date at the rate borne by the Notes.
Section 5.7. Unredeemed Portions of Partially Redeemed Note.
Upon surrender of a Note that is to be redeemed in part, the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of the Note at the expense of the Company, a new Note or Notes, of
any authorized denomination as requested by the Holder, in an aggregate
principal amount equal to, and in exchange for, the unredeemed portion of the
principal of the Note surrendered, provided that each new Note will be in a
principal amount of U.S.$1.00 or integral multiple of U.S.$1.00.
Section 5.8. Market Purchases. The Company and its
Subsidiaries may at any time and from time to time purchase Notes pursuant to
Market Purchases; provided that any Notes so purchased and not sold or reissued
and held by the Company or its Subsidiaries on the 60th date after purchase
shall be surrendered to the Trustee for cancellation. The Company shall notify
the Trustee of any such cancellations simultaneously with the delivery of its
financial statements as described in Section 3.5.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Triggering Events.
(a) Each of the following is a "Triggering Event" with respect
to the Notes:
(i) the default in the payment when due of the
principal of any Notes, including the failure to make a
required payment to purchase the Notes pursuant to an optional
redemption or Change of Control Offer;
(ii) the default for 45 days or more in the payment
when due of interest (including any related Additional
Amounts) on any Notes;
(iii) the failure to perform or comply with
Section 3.7, Section 3.8, Section 3.11 and Article IV;
(iv) the failure to perform or comply with Section
3.9 and Section 3.10;
(v) the Lien created by the Collateral Trust
Agreement at any time fails to constitute a valid and
perfected Lien on the Collateral, except for any failure that
is cured within 30 days of its occurrence;
(vi) the failure to comply with any other covenant or
agreement contained in this Indenture, the Collateral Trust
Agreement or the Notes for 90 days or more after written
notice to the Company from the Trustee;
(vii) the entry by a court of competent jurisdiction
of: (1) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable
Insolvency Law, suspension of payments, concurso mercantil or
other similar law or (2) a decree or order (A) adjudging the
Company bankrupt or insolvent, or suspending payments, (B)
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable Insolvency Law, (C) appointing a
Custodian, receiver, liquidator, assignee, trustee, sindico,
conciliador, sequestrator or other similar official of the
Company or of any substantial part of the property of the
Company, or (D) ordering the winding-up or liquidation of the
affairs of the Company, and (in the case of both subclauses
(1) and (2) above) the continuance of any such decree or order
for relief or any such other decree or order unstayed and in
effect for a period of 180 consecutive calendar days;
(viii) (1) the commencement by the Company of a
voluntary case or proceeding under any applicable Insolvency
Law, concurso mercantil or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent,
(2) the consent by the Company to the entry of a decree or
order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Insolvency Law,
suspension of payments, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or
proceeding against the Company, (3) the filing by the Company
of a petition or answer or consent seeking reorganization or
relief under any applicable law, (4) the consent by the
Company to the filing of such petition or to the appointment
of or taking possession by a Custodian, receiver, liquidator,
assignee, trustee, sindico, conciliador, sequestrator or
similar official of the Company or of any substantial part of
the property of the Company, (5) the making by the Company of
an assignment for the benefit of creditors, (6) the admission
by the Company in writing of its inability to pay its debts
generally as they become due, or (7) the taking of corporate
action by the Company in furtherance of any action referred to
in clauses (1) - (6) above (evidenced by the adoption of a
corporate resolution in favor of any such actions or an action
of any of the officers of the Company that similarly binds the
Company); and
(ix) the failure by the Company to pay one or more
final, non-appealable judgments against it, aggregating
U.S.$15,000,000 (or its foreign currency equivalent) or more,
which are not paid, discharged or stayed for a period of 120
days or more after such judgment or judgments become final and
non-appealable.
(b) The Company shall deliver to the Trustee upon becoming
aware of any Triggering Event, Default or Event of Default written notice
in the form of an Officers' Certificate of such Triggering Event, Default
or Event of Default, its status and what action the Company proposes to
take in respect thereof.
(c) Upon the occurrence of a "Triggering Event" with respect
to the Notes, a written notice of such Triggering Event may be delivered (a
"Trigger Notice") to the Company, the Trustee (if applicable) and the
Collateral Trustee:
(i) if an event specified in this Section 6.1(a)(i)
or Section 6.1(a)(v) has occurred and is continuing, by any
Holder or the Trustee;
(ii) if an event specified in this Section 6.1(a)(ii)
has occurred and is continuing, by Holders of at least 33.3%
in principal amount outstanding of the Notes; provided,
however, that if such Triggering Event shall have occurred and
be continuing for more than 45 days, then by Holders of at
least 25% in principal amount outstanding of the Notes;
(iii) if an event specified in this Section
6.1(a)(iv) has occurred and is continuing for at least 120
days, by Holders of at least a majority in principal amount
outstanding of the Notes; provided, however, that if such
Triggering Event shall have occurred and be continuing for
more than 60 days, then by Holders of at least 25% in
principal amount outstanding of the Notes; or
(iv) if a Triggering Event, other than a Triggering
Event specified in Sections 6.1(a)(i), 6.1(a)(ii), 6.1(a)(iv),
6.1(a)(v), 6.1(a)(vii) or 6.1(a)(viii), has occurred and is
continuing for at least 120 days, by Holders of at least a
majority of the principal amount outstanding of the Notes;
provided, in each case, that any Trigger Notice delivered to
the Collateral Trustee by the Holders shall be accompanied by
(or promptly followed by) a written certificate from the
Trustee stating that such Trigger Notice has been delivered
pursuant to this Section 6.1.
Section 6.2. Events of Default.
(a) If a Triggering Event:
(i) other than a Triggering Event specified in
Section 6.1(a)(v), 6.1(a)(vii) or 6.1(a)(viii), has occurred
and is continuing, and a Trigger Notice has been validly
delivered to the Company and the Foreclosure Period has
concluded, then each such Triggering Event shall constitute an
event of default ("Event of Default") and the unpaid principal
(including any capitalized interest) of, and accrued and
unpaid interest (including any related Additional Amount) on,
all the Notes will become immediately due and payable, without
any other declaration or other act on the part of the Trustee
or any Holder;
(ii) specified in Section 6.1(a)(v) has occurred and
is continuing, and a Trigger Notice has been validly delivered
to the Company, then an Event of Default shall occur and the
unpaid principal (including any capitalized interest) of, and
accrued and unpaid interest (including any related Additional
Amount) on, all the Notes will become immediately due and
payable, without any further act on the part of the Trustee or
any Holder, and the Trustee and, to the extent expressly
provided in this Indenture, any Holder shall be permitted to
pursue Enforcement Actions;
(iii) specified in Section 6.1(a)(vii) or Section
6.1(a)(viii) has occurred and is continuing, then an Event of
Default shall occur (without the need for the delivery of a
Trigger Notice) and the unpaid principal (including any
capitalized interest) of, and accrued and unpaid interest
(including any related Additional Amount) on, all the Notes
will become immediately due and payable without further act on
the part of the Trustee or any Holder, and the Trustee and, to
the extent expressly provided in this Indenture, any Holder
shall be permitted to pursue Enforcement Actions;
(b) If the Notes are secured by Cash Replacement Collateral,
then in all cases, if a Triggering Event has occurred and is continuing,
and (except in the case of a Triggering Event specified in Section
6.1(a)(vii) or Section 6.1(a)(viii)) a Trigger Notice has been validly
delivered to the Company, then an Event of Default shall occur and the
unpaid principal (including any capitalized interest) of, and accrued and
unpaid interest (including any related Additional Amount) on, all the Notes
will become immediately due and payable, without any further act on the
part of the Trustee or any Holder, and the Trustee and, to the extent
expressly provided in this Indenture, any Holder shall be permitted to
pursue Enforcement Actions.
(c) At any time after the delivery of a Trigger Notice, the
same percentage of Holders that was required for the delivery of such
Trigger Notice may rescind and cancel such Trigger Notice and its
consequences (including, without limitation, any ongoing foreclosure
proceedings):
(i) if the rescission would not conflict with any
judgment or decree;
(ii) if all existing Events of Default have been
cured or waived, except nonpayment of principal or interest
that has become due solely because of the acceleration;
(iii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and
overdue principal which has become due otherwise than by such
declaration of acceleration, has been paid; and
(iv) if the Company has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its
reasonable expenses, disbursements and advances.
No rescission will affect any subsequent Triggering Event, Default or Event
of Default or impair any rights relating thereto.
Section 6.3. Other Remedies.
(a) If an Event of Default occurs and is continuing, subject
to the provisions of the Collateral Trust Agreement, the Trustee may pursue
any available remedy to collect the payment of principal of and interest on
the Notes or to enforce the performance of any provision of the Notes or
this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Notes 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 6.4. Waiver of Past Defaults. Subject to Section
6.2(c), the Holders of a majority in principal amount of the Notes may waive any
existing Default or Event of Default under this Indenture, and its consequences,
except to the extent expressly prohibited by the TIA (to the extent applicable).
Section 6.5. Control by Majority. The Holders of a majority in
principal amount of the Outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. Subject to Section 7.1
and Section 7.2, however, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture; provided, however, that the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent with
such direction.
Section 6.6. Limitation on Suits and Exercise of Remedies.
(a) Each of the Trustee and the Holders shall not exercise or
seek to exercise any Enforcement Action, or institute any action or
proceeding with respect to any Enforcement Action unless and until either
(i) the Foreclosure Period has been initiated and concluded or (ii) a
Triggering Event specified in Section 6.1(a)(v), Section 6.1(a)(vii) or
Section 6.1(a)(viii) has occurred and is continuing and then, in each case,
only to the extent expressly provided for herein or as required by the TIA;
provided, however, there shall be no limitation on the ability of the
Trustee and, to the extent expressly provided for herein, the Holders to
pursue any Enforcement Action if Cash Replacement Collateral is substituted
for Collateral in accordance with Section 4.1.
(b) Subject to a sale of Share Collateral (but not Cash
Replacement Collateral) within the Foreclosure Period, a Holder's sole
remedy in respect of the Notes shall be the distribution, as soon as
practicable after the expiration of the Foreclosure Period, by the
Collateral Trustee of the Share Collateral to the Holders on a pro rata
basis in exchange for, and in full payment and satisfaction of all
Obligations under the Notes, which shall be delivered for cancellation to
the Company; provided, however, that any delay in the distribution of the
Share Collateral to the Holders after the expiration of the Foreclosure
Period caused by an action taken by the Company or any of its Affiliates
(including the Xxxxxxx Group) with the intent to impede or otherwise
frustrate such distribution shall result in the Holders being able to
assert a claim against the Company to the fullest extent permitted by
applicable law for any damages to such Holders resulting from such delay.
(c) No Holder of any Note will have any right by virtue of or
by availing itself of any provision of this Indenture or the Notes to
institute any suit, action or proceeding in equity or at law, or otherwise,
upon or under or with respect to this Indenture or the Notes, or for any
remedy thereunder, unless such Holder is otherwise entitled to bring an
Enforcement Action at such time and:
(i) Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the
Trustee to pursue the remedy;
(ii) such Holders of the Notes provide to the Trustee
satisfactory indemnity;
(iii) the Trustee does not comply within 60 days; and
(iv) during such 60 day period the Holders of a
majority in principal amount of the Outstanding Notes do not
give the Trustee a written direction which, in the opinion of
the Trustee, is inconsistent with the request.
Section 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including, without
limitation, Section 6.6), the right of any Holder to receive payment of
principal of or interest on the Notes held by such Holder, on or after the
respective due dates, Redemption Dates or repurchase dates expressed in this
Indenture or the Notes, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.8. Collection Suit by Trustee. If an Event of
Default specified in Section 6.1(a)(i) and Section 6.1(a)(ii) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount then due and owing
(together with applicable interest on any overdue principal and, to the extent
lawful, interest on overdue interest) and the amounts provided for in Section
7.7.
Section 6.9. Trustee May File Proofs of Claim, etc.
(a) The Trustee may (irrespective of whether the principal of
the Notes is then due):
(i) 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 and the Holders under this Indenture
and the Notes allowed in any bankruptcy, insolvency,
liquidation or other judicial proceedings relative to the
Company or any Subsidiary of the Company or their respective
creditors or properties; and
(ii) collect and receive any moneys or other property
payable or deliverable in respect of any such claims and
distribute them in accordance with this Indenture.
Any receiver, trustee, liquidator, sequestrator (or other similar official)
in any such proceeding 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, taxes,
disbursements and advances of the Trustee, its agent and counsel, and any
other amounts due to the Trustee pursuant to Section 7.7.
(b) Nothing in this Indenture 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 Notes 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. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Holders proceed against the Company directly
without the Trustee in accordance with this Indenture, to Holders for their
collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
FOURTH: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may, upon notice to the Company, 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 the Company, a suit by a Holder pursuant to
Section 6.7 or a suit by Holders of more than 10% in principal amount of
Outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(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, in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(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:
(i) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.1;
(ii) 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; and
(iii) 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 Section
6.2, Section 6.4 or Section 6.5.
(d) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise Incur 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 to believe that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall
be subject to the provisions of this Article VII and to the provisions of
the TIA.
(h) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(i) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and liabilities that
might be Incurred by it in compliance with such request or direction.
Section 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may rely on any document reasonably 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 at the
direction of the Company, it may require an Officers' Certificate or an
Opinion of Counsel. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on an Officers' Certificate or
Opinion of Counsel.
(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 it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers; provided, however, that the Trustee's conduct does
not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) If the Trustee shall determine, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Notes and this
Indenture.
(h) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
(i) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
(j) The Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity or enforceability
of any Collateral or any arrangement or agreement between the Company and
any Person with respect thereto, or the perfection or priority of any
security interest created in any of the Collateral or the maintenance of
any such perfection and priority, or for or with respect to the sufficiency
of the Collateral following an Event of Default.
(k) The permissive rights of the Trustee enumerated herein
shall not be construed as duties.
Section 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or any of its Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-Registrar may do the same with like rights. However, the Trustee must comply
with Section 7.10 and Section 7.11.
Section 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, and it shall not be responsible for any statement
of the Company in this Indenture or in any document issued in connection with
the sale of the Notes or in the Notes other than the Trustee's certificate of
authentication.
Section 7.5. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if a Trust Officer has actual knowledge
thereof, the Trustee shall mail to each Holder notice of the Default or Event of
Default within 90 days after the occurrence thereof. Except in the case of a
Default or Event of Default in payment of principal of or interest on any Note
(including payments pursuant to the optional redemption or required repurchase
provisions of such Note, if any), the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of the Holders.
Section 7.6. Reports by Trustee to Holders. The Trustee shall
comply with TIA ss. 313. The Company agrees to notify promptly the Trustee
whenever the Notes become listed on any stock exchange and of any delisting
thereof.
Section 7.7. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder as the Company and the Trustee shall from time to time agree in
writing. 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 upon request for all reasonable out-of-pocket expenses Incurred
or made by it, including costs of collection, costs of preparing and
reviewing reports, certificates and other documents, costs of preparation
and mailing of notices to Holders and reasonable costs of counsel retained
by the Trustee in connection with the delivery of an Opinion of Counsel or
otherwise, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts.
(b) The Company shall indemnify the Trustee against any and
all loss, liability or expense (including reasonable attorneys' fees and
expenses) Incurred by it without negligence, willful misconduct or bad
faith on its part in connection with the acceptance and administration of
this trust and the performance of its duties hereunder, including the costs
and expenses of enforcing this Indenture (including this Section 7.7) and
of defending itself against any claims (whether asserted by any Holder, the
Company or otherwise). The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder. The
Company shall defend the claim and the Trustee may have separate counsel
and the Company shall pay the fees and expenses of such counsel, provided
that the Company shall not be required to pay such fees and expenses if it
assumes the Trustee's defense and, in the reasonable judgment of outside
counsel to the Trustee, there is no conflict of interest between the
Company and the Trustee in connection with such defense. The Company need
not reimburse any expense or indemnify against any loss, liability or
expense Incurred by the Trustee through the Trustee's own negligence,
willful misconduct or bad faith.
(c) To secure the Company's payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Notes on all money
or property held or collected by the Trustee other than money or property
held in trust to pay principal of and interest on particular Notes. The
Trustee's right to receive payment of any amounts due under this Section
7.7 shall not be subordinate to any other liability or Indebtedness of the
Company.
(d) The Company's payment obligations pursuant to this Section
7.7 shall survive the satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee. When the Trustee Incurs expenses
after the occurrence of an event described in Section 6.1(a)(vii) or
Section 6.1(a)(viii), the expenses are intended to constitute expenses of
administration under any Insolvency Law; provided, however, that this shall
not affect the Trustee's rights as set forth in this Section 7.7 or Section
6.10.
Section 7.8. Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the
Company. The Holders of a majority in principal amount of the Outstanding
Notes may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee reasonably acceptable to the Company. The Company shall
remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge
of the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of
acting.
(b) If the Trustee resigns or is removed by the Company or by
the Holders of a majority in principal amount of the Outstanding Notes and
such Holders do not reasonably promptly appoint a successor Trustee, or if
a vacancy exists in the office of the Trustee for any reason (the Trustee
in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon 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 and the retiring Trustee shall assign to the
successor Trustee its rights and obligations under the Collateral Trust
Agreement. The successor Trustee shall mail a notice of its succession to
Holders and the Collateral Trustee. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
(d) If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee or
the Holders of 10% in principal amount of the Outstanding Notes may
petition, at the Company's expense, any court of competent jurisdiction for
the appointment of a successor Trustee.
(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 the replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 shall
continue for the benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all its corporate trust business or
assets to, another corporation or banking association, the resulting,
surviving or transferee corporation or banking association without any
further act shall be the successor Trustee.
(b) In case at the time such successor or successors to the
Trustee shall succeed to the trusts created by this Indenture any of the
Notes shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case
at that time any of the Notes shall not have been authenticated, any
successor to the Trustee may authenticate such Notes either in the name of
any predecessor hereunder or in the name of the successor to the Trustee;
and in all such cases such certificates shall have the full force which it
is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
Section 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA ss. 310(a). The Trustee shall have
a combined capital and surplus of at least U.S.$50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA ss. 310(b); provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
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 ss. 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by the resolution of its
Board of Directors, at any time, elect to have either paragraph (b) or (c)
of this Section 8.1 be applied to all Outstanding Notes upon compliance
with the conditions set forth in Section 8.2.
(b) Upon the Company's exercise under paragraph (a) of this
Section 8.1 of the option applicable to this paragraph (b), the Company
shall, subject to the satisfaction of the conditions set forth in Section
8.2, be deemed to have been discharged from its obligations with respect to
all Outstanding Notes on the date all of the conditions set forth in
Section 8.2 are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the Outstanding
Notes, which shall thereafter be deemed to be Outstanding only for the
purposes of Section 8.3 and the other Sections of this Indenture referred
to in clause (i) or (ii) of this paragraph (b), and to have satisfied all
its other obligations under such Notes and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions,
which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to
receive solely from the trust fund described in Section 8.3,
and as more fully set forth in Section 8.3, payments in
respect of the principal of and interest on such Notes when
such payments are due;
(ii) the Company's obligations with respect to such
Notes under Article II and Section 3.2;
(iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's
obligations in connection therewith; and
(iv) this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) of this Section 8.1.
(c) Upon the Company's exercise under paragraph (a) of this
Section 8.1 of the option applicable to this paragraph (c), the Company
shall, subject to the satisfaction of the applicable conditions set forth
in Section 8.2, be released from its obligations under the covenants
contained in Section 3.3(a), Section 3.4, Section 3.5, Section 3.6, Section
3.7, Section 3.8, Section 3.9, Section 3.10, Section 3.11, Section 3.12,
Section 3.14, Section 3.15, Section 3.16, Section 4.1(a)(ii), Section
4.1(a)(iv) and Section 4.1(a)(v) with respect to the Outstanding Notes on
and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be
deemed not Outstanding for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be Outstanding for
all other purposes hereunder (it being understood that such Notes shall not
be deemed Outstanding for accounting purposes). For this purpose, such
Covenant Defeasance means that, with respect to the Outstanding Notes, 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 Triggering Event, a Default or an Event or Default
under or in respect of Section 6.1(a)(iii) (except as it applies to the
provisions of Article IV that are not released pursuant to this Section
8.1(c), Section 4.1(a)(i), Section 4.1(a)(iii), Section 4.1(b) and Section
4.1(c)), Section 6.1(a)(iv), Section 6.1(a)(v) and Section 6.1(a)(vi), but,
except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.
Section 8.2. Conditions to Defeasance. The Company may
exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(a) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee funds in trust, for the benefit of Holders,
Cash or U.S. Government Obligations, or a combination thereof, sufficient,
in the opinion of a recognized firm of independent certified public
accountants, to pay and discharge the principal of and each installment of
interest (and Additional Amounts) on such Notes on the stated maturity of
such principal or installment of interest in accordance with the terms of
this Indenture and of the Notes;
(b) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the United States
Internal Revenue Service a ruling; or (ii) since the Issue Date, there has
been a change in the applicable United States federal income tax law, in
either case to the effect that, and based thereon such Opinion of Counsel
shall state that, the Holders will not recognize income, gain or loss for
United States federal income tax purposes as a result of such Legal
Defeasance and will be subject to United States federal income tax on the
same amount, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit and covenant defeasance and
will be subject to United States federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Triggering Event, Default or Event of Default shall
have occurred and be continuing on the date of such deposit or will occur
as a result of such deposit or, insofar as Triggering Events or Events of
Default resulting from bankruptcy or insolvency events are concerned, at
any time during the period ending on the 121st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(e) such Legal Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest as defined in this
Indenture and for purposes of the Trust Indenture Act with respect to any
of the Company's securities;
(f) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by which
it is bound;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for
relating to either Legal Defeasance or Covenant Defeasance, as the case may
be, have been complied with and no violations under instruments or
agreements governing any of the Company's other outstanding Indebtedness
would result as a consequence of such Legal Defeasance or Covenant
Defeasance, as the case may be;
(h) the Company shall have delivered to the Trustee an Opinion
of Counsel (which shall be Mexican counsel) (subject to customary
assumptions and exclusions) to the effect that after two years following
the deposit, the trust funds deposited in accordance will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally under the laws of
Mexico; and
(i) the Company shall have paid or duly provided for payment
of all amounts then due to the Trustee pursuant to the terms of this
Indenture.
Section 8.3. Application of Trust Money. The Trustee shall
hold in trust Dollars or U.S. Government Obligations deposited with it pursuant
to this Article VIII. It shall apply the deposited money and the Dollars from
U.S. Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Notes.
Section 8.4. Repayment to Company.
(a) The Trustee and the Paying Agent shall promptly turn over
to the Company upon request any excess money or securities held by them
upon payment of all the obligations under this Indenture.
(b) Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal of or interest on the Notes
that remains unclaimed for two years, and, thereafter, Holders entitled to
the money must look to the Company for payment as general creditors.
Section 8.5. Indemnity for U.S. Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
Section 8.6. Reinstatement. If the Trustee or Paying Agent is
unable to apply any Dollars or U.S. Government Obligations in accordance with
this Article VIII 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 obligations of the Company under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such Dollars or U.S.
Government Obligations in accordance with this Article VIII; provided, however,
that, if the Company has made any payment of principal of or interest on any
Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the Dollars or U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 8.7. Satisfaction and Discharge. This Indenture will
be discharged and will cease to be of further effect (except as to surviving
rights or registration of transfer or exchange of the Notes, as expressly
provided for in this Indenture) as to all Outstanding Notes when:
(a) either:
(i) all the Notes theretofore executed, authenticated
and delivered (except lost, stolen or destroyed Notes which
have been replaced or paid and Notes for whose payment money
has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the
Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the
Trustee for cancellation have become due and payable, and the
Company has irrevocably deposited or caused to be deposited
with the Trustee Dollars or U.S. Government Obligations
sufficient to pay and discharge the entire Indebtedness on the
Notes not theretofore delivered to the Trustee for
cancellation, for principal of and interest on the Notes to
the date of deposit, together with irrevocable instructions
from the Company directing the Trustee to apply such funds to
the payment;
(b) the Company has paid all other sums payable under this
Indenture and the Notes by the Company, or the Collateral Trustee has
distributed, on a pro rata basis, Share Collateral to the Holders pursuant
to Clause Eighth(c)(10) of the Collateral Trust Agreement; and
(c) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been
complied with.
ARTICLE IX
AMENDMENTS
Section 9.1. Without Consent of Holders.
(a) The Company, the Trustee and the Collateral Trustee (in
the case of the Collateral Trust Agreement only) may amend this Indenture,
the Notes or the Collateral Trust Agreement without notice to or consent of
any Holder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article IV in respect of the
assumption by a Surviving Entity of the obligations of the
Company under the Notes and this Indenture;
(iii) to provide for uncertificated Notes in addition
to or in place of certificated Notes; provided, however, that
the uncertificated Notes are issued in registered form for
purposes of Section 163(f) of the Code;
(iv) to add Guarantees with respect to the Notes or
to secure the Notes;
(v) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power
herein conferred upon the Company;
(vi) to comply with any requirements of the SEC in
connection with qualifying this Indenture under the TIA; or
(vii) to make any change that does not, in the
opinion of the Trustee, adversely affect the rights of any
Holder in any material respect.
(b) After an amendment under this Section 9.1 becomes
effective, the Company shall mail to Holders a notice briefly describing
such amendment. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment
under this Section 9.1.
Section 9.2. With Consent of Holders.
(a) The Company, the Trustee and the Collateral Trustee (in
the case of the Collateral Trust Agreement only) may amend this Indenture,
the Notes or the Collateral Trust Agreement without notice to any Holder
but with the written consent of the Holders of at least a majority in
principal amount of the Outstanding Notes (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Notes). However, without the consent of each Holder
affected, an amendment may not:
(i) reduce the amount of Notes whose Holders must
consent to an amendment or waiver;
(ii) reduce the rate of or change or have the effect
of changing the time for payment of interest, including
Defaulted Interest, on any Notes (other than a postponement of
such interest payments for a period not to exceed three years,
which may be made with the consent of the Holders of at least
75% in principal amount of the then Outstanding Notes issued
under this Indenture);
(iii) reduce the principal of or change or have the
effect of changing the fixed maturity of any Notes, or change
the date on which any Notes may be subject to redemption, or
reduce the redemption price therefor; or
(iv) make any change in the provisions of this
Indenture entitling each Holder to receive payment of
principal of, premium, if any, and interest on such Notes on
or after the due date thereof or to bring suit to enforce such
payment, or permitting Holders of a majority in principal
amount of Outstanding Notes to waive Triggering Events,
Defaults or Events of Default.
(b) It shall not be necessary for the consent of the Holders
under this Section 9.2 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the
substance thereof.
(c) After an amendment under this Section 9.2 becomes
effective, the Company shall mail to Holders a notice briefly describing
such amendment. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment,
supplement or waiver under this Section 9.2.
Section 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Notes shall comply with the TIA as then in
effect.
Section 9.4. Waivers. The Company may omit in any particular
instance to comply with any covenant or condition contained in this Indenture if
before the time for such compliance the Holders of at least a majority in
aggregate principal amount of Outstanding Notes shall, by act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the Company's obligations and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
Section 9.5. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment, supplement or waiver by a
Holder of a Note shall bind the Holder and every subsequent Holder of that
Note or portion of the Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent or waiver is not made on the
Note. However, any such Holder or subsequent Holder may revoke the consent
or waiver as to such Holder's Note or portion of the Note if the Trustee
receives the notice of revocation before the date the amendment, supplement
or waiver becomes effective. After an amendment, supplement or waiver
becomes effective, it shall bind every Holder, except as otherwise provided
in this Article IX. An amendment, supplement or waiver shall become
effective upon receipt by the Trustee of the requisite number of written
consents under Section 9.2.
(b) The Company may, but shall not be obligated to, fix a
record date, which need not be the date provided in TIA ss. 316(c) to the
extent it would otherwise be applicable, for the purpose of determining the
Holders entitled to give their consent or take any other action described
above or required or permitted to be taken pursuant to this Indenture. If a
record date is fixed, then notwithstanding the immediately preceding
paragraph, those Persons who were Holders at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to give
such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90
days after such record date.
Section 9.6. Notation on or Exchange of Notes. If an amendment
or supplement changes the terms of a Note, the Trustee may require the Holder of
the Note to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Note regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note will execute and upon Company Order the Trustee will
authenticate a new Note that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Note shall not affect the validity of
such amendment or supplement.
Section 9.7. Trustee to Sign Amendments and Supplements. The
Trustee shall sign any amendment or supplement authorized pursuant to this
Article IX if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may
but need not sign it. In signing such amendment or supplement the Trustee shall
be entitled to receive indemnity reasonably satisfactory to it and to receive,
in addition to the documents required by Section 11.4, and (subject to Section
7.1 and Section 7.2) shall be fully protected in relying upon, such evidence as
it deems appropriate, including, without limitation, solely on an Opinion of
Counsel stating that such amendment or supplement is authorized or permitted by
this Indenture.
ARTICLE X
COLLATERAL AND SECURITY
Section 10.1. The Collateral Trust Agreement. The due and
punctual payment of the principal of, interest and additional interest, if any,
on and Additional Amounts with respect to the Notes when and as the same shall
be due and payable, whether on an Interest Payment Date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of, interest and additional interest, if any, on and Additional
Amounts with respect to the Notes and performance of all other Obligations of
the Company to the Holders or the Trustee under this Indenture and the Notes,
according to the terms hereunder or thereunder, are and will be secured as
provided in the Collateral Trust Agreement which defines the terms of the Lien
that secures the Obligations under this Indenture and the Notes and provides
that the Lien granted thereunder secures the Obligations under this Indenture
and the Notes on a first-priority basis subject to the terms of the Collateral
Trust Agreement. Each Holder, by its acceptance of a Note, consents and agrees
to all of the terms of the Collateral Trust Agreement (including the provisions
providing for the exercise of remedies and release of Collateral) as the same
may be in effect or may be amended from time to time in accordance with its
terms, and authorizes and directs the Trustee to enter into the Collateral Trust
Agreement and to perform or cause to be performed obligations and exercise
rights thereunder in accordance therewith. To the extent permitted by, and
subject to the terms of the Collateral Trust Agreement, the Company shall
deliver to the Trustee copies of all documents delivered from time to time to
the Collateral Trustee pursuant to the Collateral Trust Agreement, and will do
or cause to be done all such acts and things as may be required by the next
sentence of this Section 10.1, to assure and confirm to the Trustee the Liens
upon the Collateral contemplated hereby, by the Collateral Trust Agreement or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Obligations
secured hereby, according to the intent and purposes herein and therein
expressed. The Trustee and the Company hereby acknowledge and agree that the
Collateral Trustee holds the Collateral for the ratable benefit of the Holders
and the Trustee subject to the terms of the Collateral Trust Agreement.
Section 10.2. Suits to Protect the Collateral. Subject in all
respects to the terms and conditions of the Collateral Trust Agreement and the
limitations set forth in Section 6.6(a) hereof, the Trustee shall have power to
institute and to maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Collateral by any acts which may be unlawful or in
violation of this Indenture or the Collateral Trust Agreement, and such suits
and proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders in the Collateral and in the
principal, interest, issues, profits, rents, revenues and other income arising
therefrom, including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of, or compliance with, such enactment, rule or
order would impair the security hereunder or under the Collateral Trust
Agreement, or be prejudicial to the interests of the Holders or the Trustee.
Section 10.3. Possession of the Collateral. Subject to the
terms and conditions of this Indenture and the Collateral Trust Agreement,
unless a Triggering Event or an Event of Default has occurred and is continuing,
the Company shall be entitled to (a) direct the manner in which the Collateral
Trustee receives all cash dividends and other payments made upon or in respect
of the Collateral, and (b) exercise, through the Collateral Trustee pursuant to
the Collateral Trust Agreement, any voting and other rights in respect thereof
and generally to remain in possession of and to retain exclusive control over
the Collateral, in each case in the ordinary course of business.
Section 10.4. Actions by the Trustee. Subject in all respects
to the terms and conditions of the Collateral Trust Agreement and the
limitations set forth in Section 6.6(a) hereof, the Trustee shall have the power
to institute and maintain such suits and proceedings as it may deem expedient in
order to prevent any impairment of the Collateral by any act that may be
unlawful or in violation of this Indenture or the Collateral Trust Agreement,
and such suits and proceedings as the Trustee may deem expedient to preserve or
protect its interests and those of the Holders in the Collateral. No duty beyond
that set forth in Section 7.1 is imposed on the Trustee pursuant to this Section
10.4.
Section 10.5. Authorization of Actions To Be Taken by the
Trustee Under the Collateral Trust Agreement. (a) Subject to the provisions of
Section 6.6 and Article IX hereof and the Collateral Trust Agreement, the
Trustee may, in its sole discretion and without the consent of the Holders,
take, on behalf of the Holders, or direct, on behalf of the Holders, the
Collateral Trustee to take, all actions it deems necessary or appropriate in
order to: (i) enforce any of the terms of the Collateral Trust Agreement; and
(ii) collect and receive any and all amounts payable in respect of the
Obligations of the Company.
Section 10.6. Authorization of Receipt and Distribution of
Funds by the Trustee. The Trustee is authorized to receive any funds for the
benefit of the Holders distributed under the Collateral Trust Agreement, and to
make further distributions of such funds to the Holders according to the
provisions of this Indenture.
Section 10.7. Release of Collateral; Termination of Security
Interest.
(a) Collateral may be released from the Liens and security
interest created by the Collateral Trust Agreement at any time or from time
to time in accordance with the provisions of the Collateral Trust Agreement
and this Indenture (including upon compliance with the conditions set forth
in Section 8.2 for Legal Defeasance or Covenant Defeasance). Upon the
written request of the Company pursuant to an Officers' Certificate and an
Opinion of Counsel delivered to the Trustee certifying that all conditions
precedent hereunder have been met and the compliance with the applicable
provisions of the Collateral Trust Agreement and this Indenture and without
the consent of any Holder, the Company and the Trustee will be entitled to
releases of assets included in the Collateral from the Liens securing the
Notes in connection with the provision of Cash Replacement Collateral or
Stock Replacement Collateral pursuant to Section 4.1(a)(i)(2) or pursuant
to the Collateral Trust Agreement.
(b) The Trustee shall, at the written request of the Company,
deliver a certificate to the Collateral Trustee stating that the
Obligations of the Company hereunder have been satisfied (including,
pursuant to Clause Eighth(c)(10) of the Collateral Trust Agreement, by
means of a pro rata distribution of Share Collateral by the Collateral
Trustee to the Holders). In connection with such instruction, the Trustee
shall request the Collateral Trustee to execute, deliver or acknowledge any
necessary or proper instruments of termination, satisfaction or release to
evidence the release of all such Liens.
(c) The release of any Collateral from the terms of the
Collateral Trust Agreement and the Liens created thereby shall not be
deemed to impair the security under this Indenture in contravention of the
provisions hereof if and to the extent the Collateral is released pursuant
to the terms of the Collateral Trust Agreement and this Indenture.
Section 10.8. Instructions under the Collateral Trust
Agreement. Directions or instructions under the Collateral Trust Agreement may
be made by the Trustee acting at the written direction or with the written
consent of the Holders of at least a majority in principal amount of the then
Outstanding Notes issued under this Indenture.
Section 10.9. Certificates of the Company. To the extent
applicable, the Company shall comply (or cause compliance) with Section 313(b)
of the TIA, relating to reports, and Section 314(d) of the TIA, relating to the
release of property or securities from the lien and security interest of the
Collateral Trust Agreement and relating to the substitution therefor of any
property or securities to be subjected to the lien and security interest of the
Collateral Trust Agreement. Any certificate or opinion required by Section
314(d) of the TIA may be as an Officers' Certificate except in cases where
Section 314(d) of the TIA requires that such certificate or opinion be made by
an independent Person, which Person shall be an independent engineer, appraiser
or other expert selected or approved by the Trustee in the exercise of
reasonable care.
Section 10.10. Execution of Release by Collateral Trustee. In
the event that the Company wishes the Trustee to deliver written notice to the
Collateral Trustee requesting that the Collateral Trustee execute a release of
any Collateral from the lien of the Collateral Trust Agreement in accordance
with this Indenture and the Collateral Trust Agreement, it shall furnish the
Trustee an Officers' Certificate complying with Section 11.4(a) certifying that
all conditions precedent have been met and that no consent of the Holders is
required, together with any documents required by Section 10.9 or any other
provision of this Indenture, and deliver as required by this Indenture, an
Opinion of Counsel to the effect that such accompanying documents constitute all
the documents required by this Indenture and by Section 314(d) of the TIA or
that no such documents are so required. Upon the receipt of such documents the
Trustee shall deliver a written notice to the Collateral Trustee requesting that
it execute a release of the Collateral. The Trustee, however, shall have no duty
to confirm the legality or validity of such documents, its sole duty being to
certify that it has received such documentation which on its face conforms to
Section 314(d) of the TIA.
Section 10.11. Recording and Opinions.
(a) As required by the provisions of the Collateral Trust
Agreement, the Company shall take all action required to perfect, maintain,
preserve and protect the Lien on and security interest in the Collateral
granted by the Collateral Trust Agreement (subject only to Permitted Liens)
in such manner and in such places as may be required by law fully to
preserve and protect the rights of the Holders and the Trustee under this
Indenture and the Collateral Trust Agreement to all property comprising the
Collateral. The Company shall from time to time promptly pay all financing
statement, continuation statement and registration and/or filing fees,
charges and taxes relating to this Indenture and the Collateral Trust
Agreement, any amendments thereto and any other instruments of further
assurance required hereunder or pursuant to the Collateral Trust Agreement.
The Trustee shall have no obligation to, nor shall it be responsible for
any failure to, so register, file or record.
(b) The Company shall furnish to the Trustee within three
months after each anniversary of the Issue Date an Opinion of Counsel,
dated as of such date, stating either that (i) in the opinion of such
counsel, all action has been taken (and stating what actions, if any, are
necessary to be taken within the next calendar year) with respect to the
recording, registering, filing, re-recording, re-registering and refiling
of this Indenture and the Collateral Trust Agreement, financing statements,
continuation statements or other instruments of further assurance as is
necessary to maintain the Liens intended to be created by the Collateral
Trust Agreement and reciting the details of such action or (ii) in the
opinion of such counsel, no such action is necessary to maintain such
Liens.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision
which is required to be included in this Indenture by the TIA, the
provision required by the TIA shall control.
Section 11.2. Notices.
(a) Any notice or communication shall be in writing and
delivered in person or by facsimile or mailed by first-class mail, postage
prepaid, addressed as follows:
if to the Company:
Grupo Iusacell, S.A. de X.X.
Xxxxxx Urales Xx. 000, Xxxx 0
Xxxxxxx Xxxxx xx Xxxxxxxxxxx
Xxxxxxxxxx Xxxxxx Xxxxxxx, 00000
Xxxxxx, D.F.
Attention: Xxxx Xxxxxx Xxxxxx Xxxxxx
Phone: x00-00-0000-0000
Facsimile: x00-00-0000-0000
if to the Trustee:
Law Debenture Trust Company of New York
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Phone: x0-000-000-0000
Facsimile: x0-000-000-0000
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
(b) Any notice or communication mailed to a registered Holder
shall be mailed to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
(c) Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 11.3. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
Section 11.4. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
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 in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion, including each Officers' Certificate or Opinion of
Counsel with respect to compliance with a covenant or condition provided for in
this Indenture shall include:
(a) a statement that the individual 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 individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving an Opinion of Counsel, counsel may rely as to factual matters on an
Officers' Certificate or on certificates of public officials.
Section 11.6. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by, or a meeting of, Holders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
Section 11.7. Legal Holidays. A "Legal Holiday" is a Saturday,
a Sunday or other day on which commercial banking institutions are authorized or
required to be closed in New York City or Mexico. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
Section 11.8. Governing Law, etc.
(a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES
HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE OR
THE NOTES OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW.
(b) The Company hereby:
(i) agrees that any suit, action or proceeding
against it arising out of or relating to this Indenture or the
Notes, as the case may be, may be instituted in any Federal or
state court sitting in The City of New York;
(ii) waives to the fullest extent permitted by
applicable law, any objection which it may now or hereafter
have to the laying of venue of any such suit, action or
proceeding, and any claim that any suit, action or proceeding
in such a court has been brought in an inconvenient forum;
(iii) irrevocably submits to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding;
(iv) agrees that final judgment in any such suit,
action or proceeding brought in such a court shall be
conclusive and binding may be enforced in the courts of the
jurisdiction of which it is subject by a suit upon judgment;
and
(v) agrees that service of process by mail to the
addresses specified herein shall constitute personal service
of such process on it in any such suit, action or proceeding.
(c) The Company has agreed that service of all writs, claims,
process and summonses in any related proceeding brought against it in the
State of New York (collectively referred to as a "Related Proceeding") may
be made upon Law Debenture Corporate Services (the "Process Agent"), and
the Company irrevocably appointed the Process Agent as its agent and true
and lawful attorney in fact in its name, place and stead to accept such
service of any and all such writs, claims, process and summonses, and has
agreed that the failure of the Process Agent to give any notice to it of
any such service of process shall not impair or affect the validity of such
service or of any judgment based thereon. The Company has agreed to
maintain at all times an agent with offices in New York City to act as its
Process Agent. Nothing in this Indenture shall in any way be deemed to
limit the ability to serve any such writs, process or summonses in any
other manner permitted by applicable law.
(d) To the extent that the Company or any of its revenues,
assets or properties shall be entitled, with respect to any Related
Proceeding any time brought against it or any of its revenues, assets or
properties in the courts identified in this Section 11.8, to any immunity
from suit, from the jurisdiction of any such court, from attachment prior
to judgment, from attachment in aid of execution of judgment, from
execution of a judgment or from any other legal or judicial process or
remedy, and to the extent that in any such jurisdiction there shall be
attributed such an immunity, the Company has irrevocably agreed not to
claim and has irrevocably waived such immunity to the fullest extent
permitted by law (including, without limitation, the Foreign Sovereign
Immunities Act of 1976 of the United States). The Company has agreed that
final judgment in any such suit, action or proceeding brought in such a
court shall be conclusive and binding on it and may be enforced in any
court to the jurisdiction of which it is subject by a suit upon such
judgment, provided that service of process is effected upon it in the
manner specified in this Indenture or as otherwise permitted by law.
(e) Nothing in this Section 11.8 shall affect the right of the
Trustee or any Holder of the Notes to serve process in any other manner
permitted by law.
Section 11.9. No Recourse Against Others. An incorporator,
director, officer, employee, stockholder or member, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes,
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes. The waiver may not be effective to
waive liabilities under the federal securities laws of the United States and it
is the view of the U.S. Securities and Exchange Commission that such a waiver is
against public policy.
Section 11.10. Successors. All agreements of the Company in
this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 11.11. Duplicate and Counterpart Originals. The
parties may sign any number of copies of this Indenture. One signed copy is
enough to prove this Indenture. This Indenture may be executed in any number of
counterparts, each of which so executed shall be an original, but all of them
together represent the same agreement.
Section 11.12. Severability. In case any provision in this
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.
Section 11.13. Conversion of Currency. The Company covenants
and agrees that the following provisions shall apply to conversion of currency
in the case of the Notes and this Indenture:
(a) If, for the purpose of obtaining judgment in any court, it
is necessary to convert a sum due under this Indenture or under the Notes
from one currency into another currency, the Company has agreed and each
Holder agrees, to the fullest extent that the Company and each Holder may
effectively do so, that the rate of exchange used shall be the rate at
which, in accordance with normal banking procedures, such Holder could
purchase the first currency with such other currency in the city that is
the principal financial center of the country of issue of the first
currency on the day, two Business Days preceding the day on which final
judgment is given, which is also a day on which banks are open in Mexico.
(b) To the extent permitted by applicable law, the Company's
obligation in respect of any sum payable by the Company to a Holder shall,
notwithstanding any judgment in a currency (the "Judgment Currency"),
other than that in which such sum is denominated in accordance with the
applicable provisions of this Indenture (the "Security Currency"), be
discharged only to the extent that on the Business Day following receipt by
such Holder of any sum adjudged to be so due in the Judgment Currency, such
Holder may, in accordance with normal banking procedures, purchase the
Security Currency with the Judgment Currency. If the amount of the Security
Currency so purchased is less than the sum originally due to such Holder in
the Security Currency, determined in the manner set forth above, the
Company has agreed, as a separate obligation and notwithstanding any such
judgment, to indemnify such Holder against such loss, and if the amount of
the Security Currency so purchased exceeds the sum originally due to such
Holder, such Holder agrees to remit to the Company such excess; provided
that such Holder shall have no obligation to remit any such excess as long
as the Company shall have failed to pay such Holder any obligation due and
payable under this Indenture in which case any such excess may be applied
to such obligations of the Company under this Indenture or the Notes.
Section 11.14. Table of Contents; Headings. The table of
contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
GRUPO IUSACELL, S.A. DE C.V.
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
LAW DEBENTURE TRUST COMPANY OF
NEW YORK,
as Trustee
By:_________________________
Name:
Title:
EXHIBIT A
FORM OF NOTE
[Include the following legend for Global Notes only:
"THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK,
NEW YORK, 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF."]
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR U.S. FEDERAL
INCOME TAX PURPOSES. FOR FURTHER INFORMATION, PLEASE CONTACT XXXXXXXX
XXXXXXX COLORADO, CORPORATE COUNSEL, AT x00-00-0000-0000.
FORM OF FACE OF NOTE
No. [___] Principal Amount U.S.$[______________]
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto]
CUSIP NO. ____________
Grupo Iusacell, S.A. de C.V., a Mexican sociedad anonima de
capital variable, promises to pay to [___________], or registered assigns, the
principal sum of [__________________] Dollars [If the Note is a Global Note, add
the following, as revised by the Schedule of Increases and Decreases in Global
Note attached hereto], on December 31, 2013.
Interest Payment Dates: June 30 and December 31
Record Dates: June 15 and December 15
Additional provisions of this Note are set forth on the other
side of this Note.
GRUPO IUSACELL, S.A. DE C.V.
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Law Debenture Trust Company of New York,
as Trustee, certifies that this is
one of the Notes referred to in the
Indenture.
By: ___________________
Authorized Signatory Date: ___________________
FORM OF REVERSE SIDE OF NOTE
10% Senior Secured Notes Due 2013
Capitalized terms used herein but not defined herein shall have the meanings
given to such terms in the Indenture.
1. Interest
Grupo Iusacell, S.A. de C.V., a Mexican sociedad anonima de
capital variable (together with its successors and assigns under the Indenture,
the "Company"), promises to pay interest on the principal amount of this Note at
the rate per annum shown above.
The Company will pay interest semiannually in arrears on each
Interest Payment Date of each year commencing [December 31, 2006] [June 30,
2007].(2) Payments will be made to the persons who are Holders at the close of
business on June 15 and December 15, respectively, immediately preceding the
applicable Interest Payment Date (the "Record Date"), except that, in the case
of the first such payment, if the Issue Date occurs between June 15 and June 30
or between December 15 and December 31, then the Record Date for such first
payment will be the Issue Date and such first payment will be made to the
persons who are Holders at the close of business on the Issue Date. Interest on
the Notes will accrue from the most recent date to which interest has been paid
on the Notes or, if no interest has been paid, from and including [July 1, 2006]
[January 1, 2007].(3) The Company shall pay interest on overdue principal (plus
interest on such interest to the extent lawful), at the rate borne by the Notes
to the extent lawful. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
For any Interest Payment Date, the Company may, at its option,
elect to:
1) pay interest on the Notes entirely in Cash; or
2) capitalize up to 40% of the interest due on any Interest
Payment Date that is not otherwise paid on such date because of the
election to so capitalize, in which case the principal amount of the
Outstanding Notes will be increased by the capitalized amount on a pro rata
basis.
The Company must elect the form of interest payment with
respect to each interest period by delivering a written notice to the Trustee on
or before the date that is 15 days prior to the applicable Record Date, except
that, in the case of the first such payment, the Company must make such election
on or before the Issue Date. The Trustee will promptly deliver a corresponding
notice to the Holders. In the absence of a timely delivered notice of election,
interest on the Outstanding Notes will be payable entirely in Cash.
The Company may, on a one-time basis by providing written
notice to the Trustee at least 15 days prior to a Record Date, either:
1) reschedule in its entirety a single semi-annual interest
payment to the next scheduled Interest Payment Date, or
_____________________
(2) Pick date immediately following Issue Date.
(3) Pick date immediately preceding Issue Date.
2) capitalize in its entirety a single semi-annual interest
payment, in which case the principal amount of the Outstanding Notes will
be increased by the capitalized amount. In the event that the Company
elects to capitalize the interest, such notice will specify the amount of
interest that will be capitalized and the corresponding increase in the
principal amount of each Outstanding Note.
Following an increase in the principal amount of the
Outstanding Notes as a result of a capitalization of interest (1) capitalized
interest on the Outstanding Notes will be payable by increasing the principal
amount of the Outstanding Notes in an amount equal to the amount of capitalized
interest for the applicable period (rounded to the nearest U.S.$1.00); and (2)
the Outstanding Notes shall bear interest on such increased principal amount
from and after the date of such capitalization of interest.
The Company shall pay interest (including post-petition
interest in any proceeding under any Insolvency Law) on overdue principal and,
to the extent such payments are lawful, interest on overdue installments of
interest ("Defaulted Interest") without regard to any applicable grace periods
at the rate of 2.0% per annum in excess of the rate shown on this Note, as
provided in the Indenture.
To the extent Mexican Taxes are required to be withheld or
deducted from any such payment, the Company shall pay, as provided for in and
subject to the limitations set forth in the Indenture, such Additional Amounts
as may be necessary to ensure that the net amount actually received by the
Holder after such withholding or deduction is equal to the amount that the
Holder would have received had no such withholding or deduction been required,
provided, however, that no such Additional Amounts shall be payable in respect
of any such Mexican Taxes required to be deducted, withheld or otherwise imposed
above the amount resulting from a withholding tax rate in Mexico of 4.9%
(resulting in a maximum applicable gross-up of approximately 5.1525% of the
stated amount of the relevant payment).
2. Method of Payment
Prior to 10:00 a.m. New York City time on the date on which
any principal of or interest on any Note is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal and/or interest (subject to any capitalization of interest
permitted pursuant to the Indenture). The Company will pay interest (except
Defaulted Interest) to the Persons who are registered Holders of Notes at the
close of business on the Record Date preceding the Interest Payment Date even if
Notes are canceled, repurchased or redeemed after the Record Date and on or
before the relevant Interest Payment Date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in Dollars.
Payments in respect of Notes represented by a Global Note
(including principal and interest) will be made by the transfer of immediately
available funds to the accounts specified by DTC. The Company will make all
payments in respect of a Certificated Note (including principal and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Notes may also be made, in the case of a Holder of
at least U.S.$1,000,000 aggregate principal amount of Notes, by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the United States
if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 15 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Law Debenture Trust Company of New York (the
"Trustee") will act as Trustee, Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-Registrar without notice to
any Holder. The Company may act as Paying Agent, Registrar or co-Registrar.
4. Indenture
The Company issued the Notes under an Indenture, dated as of
[Date of Indenture] (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the TIA. Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all such terms, and Holders are referred to
the Indenture and the TIA for a statement of those terms. Each Holder by
accepting a Note, agrees to be bound by all of the terms and provisions of the
Indenture, as amended or supplemented from time to time.
The Notes are general secured obligations of the Company
limited to U.S.$? aggregate principal amount.(4) The Notes are secured as set
forth in the Indenture and the Collateral Trust Agreement.
The Indenture imposes certain limitations on, among other
things, the ability of the Company to: Incur Indebtedness, make Restricted
Payments, Incur Liens, make Restricted Sales, make equity issuances, enter into
transactions with Affiliates, or consolidate or merge or transfer or convey all
or substantially all of the Company's assets.
5. Redemption
The Company may redeem the Notes, at its option, in whole or
in part, at any time and from time to time prior to their maturity at a
redemption price equal to (but without duplication):
1) 100% of the unpaid principal amount of the Notes, including
any capitalized interest, plus
2) the interest on such principal amount accrued and unpaid
through the date of redemption, plus
3) Additional Amounts, if any, payable in respect of such
Notes.
In the case of any partial redemption, selection of the Notes
for redemption will be made in accordance with Article V of the Indenture. On
and after the redemption date, interest will cease to accrue on Notes or
portions thereof called for redemption as long as the Company has deposited with
the Paying Agent funds in satisfaction of the applicable redemption price
pursuant to the Indenture.
_________________________
(4) Note to draft: Amount issued on Issue Date after taking into account
the Restructuring Payment and the Mexican Rights Offering Amount.
6. Repurchase Provisions
Not later than 60 days following the occurrence of a Change of
Control, each Holder of Notes will have the right to require that the Company
purchase all or a portion (in integral multiples of U.S.$1.00) of the Holder's
Notes at a purchase price equal to 100% of the principal amount (including any
capitalized interest) thereof, plus accrued and unpaid interest through the date
of purchase. Within 30 days following the date upon which the Change of Control
occurred, the Company must make a Change of Control Offer pursuant to a Change
of Control Notice. As more fully described in the Indenture, the Change of
Control Notice shall state, among other things, the Change of Control Payment
Date, which shall be the day that is 30 days from the date the notice is mailed,
other than as may be required by applicable law.
7. Collateral Trustee
The Holder of this Note by its acceptance of this Note is
deemed to have appointed the Trustee as its agent for the purpose of appointing,
designating and authorizing Banco Invex, S.A. Institucion de Banca Multiple,
Invex Grupo Financiero, Fiduciario to act as Collateral Trustee pursuant to and
in accordance with the terms and conditions set forth in respect of the
Collateral Trustee in the Collateral Trust Agreement.
8. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons, and
only in denominations of principal amounts of U.S.$1.00 and any integral
multiple thereof. A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange (i) any Notes selected for redemption (except, in
the case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 days before the mailing of a notice of Notes
to be redeemed and ending on the date of such mailing or (ii) any Notes for a
period beginning 15 days before an Interest Payment Date and ending on such
Interest Payment Date.
9. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for three years, the Trustee or Paying Agent shall pay the money back
to the Company at its request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
11. Discharge Prior to Redemption or Maturity
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Company deposits with the Trustee Dollars or U.S.
Government Obligations for the payment of principal of and interest on the Notes
to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (a)
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount of the then
Outstanding Notes and (b) any default (other than with respect to nonpayment or
in respect of a provision that cannot be amended or supplemented without the
written consent of each Holder affected) or noncompliance with any provision may
be waived with the written consent of the Holders of a majority in aggregate
principal amount of the then Outstanding Notes. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, omission, defect or inconsistency, or to comply with
Article IV of the Indenture, or to provide for uncertificated Notes in addition
to or in place of certificated Notes, or to add Guarantees with respect to the
Notes or to secure the Notes, or to add additional covenants or surrender rights
and powers conferred on the Company, or to comply with any request of the SEC in
connection with qualifying the Indenture under the TIA, or to make any change
that does not, in the opinion of the Trustee, adversely affect the rights of any
Holder in any material respect.
13. Defaults and Remedies
The following events are "Triggering Events" under the Indenture:
(a) the default in the payment when due of the principal
of any Notes, including the failure to make a
required payment to purchase the Notes pursuant to an
optional redemption or Change of Control Offer;
(b) the default for 45 days or more in the payment when
due of interest (including any related Additional
Amounts) on any Notes;
(c) the failure to perform or comply with covenants
limiting (i) the Incurrence of Additional
Indebtedness, (ii) Restricted Payments, (iii) Liens
and (iv) Mergers, Consolidations, Sales and
Conveyances;
(d) the failure to perform or comply with certain
covenants limiting (i) Restricted Sales and (ii)
certain equity issuances;
(e) the Lien created by the Collateral Trust Agreement at
any time fails to constitute a valid and perfected
Lien on the Collateral, except for any failure that
is cured within 30 days of its occurrence;
(f) the failure to comply with any other covenant or
agreement contained in the Indenture, the Collateral
Trust Agreement or the Notes for 90 days or more
after written notice to the Company from the Trustee;
(g) certain events of bankruptcy or insolvency with
respect to the Company; and
(h) the failure by the Company to pay one or more final,
non-appealable judgments against it, aggregating
U.S.$15,000,000 (or its foreign currency equivalent)
or more, which are not paid, discharged or stayed for
a period of 120 days or more after such judgment or
judgments become final and non-appealable.
Upon the occurrence of a Triggering Event with respect to the Notes, a
Trigger Notice may be delivered to the Company, the Trustee (if
applicable) and the Collateral Trustee:
(a) if a Triggering Event specified in (a) or (e) above
has occurred and is continuing, by any Holder or the
Trustee;
(b) if a Triggering Event specified (b) above has
occurred and is continuing, by Holders of at least
33.3% in principal amount outstanding of the Notes;
provided, however, that if such Triggering Event
shall have occurred and be continuing for more than
45 days, then by Holders of at least 25% in principal
amount outstanding of the Notes;
(c) if a Triggering Event specified in (d) above has
occurred and is continuing for at least 120 days, by
Holders of at least a majority in principal amount
outstanding of the Notes; provided, however, that if
such Triggering Event shall have occurred and be
continuing for more than 60 days, then by Holders of
at least 25% in principal amount outstanding of the
Notes; or
(d) if a Triggering Event, other than a Triggering Event
specified in (a), (b), (d), (e) or (g) above has
occurred and is continuing for at least 120 days, by
Holders of at least a majority in principal amount
outstanding of the Notes;
provided, in each case, that any Trigger Notice delivered to
the Collateral Trustee by the Holders shall be accompanied by
a written certificate from the Trustee stating that such
Trigger Notice has been delivered pursuant to this Section
6.1.
If a Triggering Event other than a Triggering Event specified
in (e) or (g) above has occurred and is continuing, and a Trigger Notice has
been validly delivered to the Company and the Foreclosure Period has concluded,
then each such Triggering Event shall constitute an Event of Default and the
unpaid principal (including any capitalized interest) of, and accrued and unpaid
interest (including any related Additional Amount) on, all the Notes will become
immediately due and payable, without any other declaration or other act on the
part of the Trustee or any Holder.
If a Triggering Event specified in (e) above has occurred and
is continuing, and a Trigger Notice has been validly delivered to the Company,
then an Event of Default shall occur and the unpaid principal (including any
capitalized interest) of, and accrued and unpaid interest (including any related
Additional Amount) on, all the Notes will become immediately due and payable,
without any further act on the part of the Trustee or any Holder, and the
Trustee and, to the extent expressly provided in the Indenture, any Holder shall
be permitted to pursue Enforcement Actions.
If a Triggering Event specified in (g) above has occurred and
is continuing, then an Event of Default shall occur (without the need for the
delivery of a Trigger Notice) and the unpaid principal (including any
capitalized interest) of, and accrued and unpaid interest (including any related
Additional Amount) on, all the Notes will become immediately due and payable
without further act on the part of the Trustee or any Holder, and the Trustee
and, to the extent expressly provided in the Indenture, any Holder shall be
permitted to pursue Enforcement Actions.
If the Notes are secured by Cash Replacement Collateral, then
in all cases, if a Triggering Event has occurred and is continuing, and (except
in the case of a Triggering Event specified in (g) above) a Trigger Notice has
been validly delivered to the Company, then an Event of Default shall occur and
the unpaid principal (including any capitalized interest) of, and accrued and
unpaid interest (including any related Additional Amount) on, all the Notes will
become immediately due and payable, without any further act on the part of the
Trustee or any Holder and, to the extent expressly provided in the Indenture,
the Trustee shall be permitted to pursue Enforcement Actions.
Holders of a majority of outstanding Notes may direct the
time, method and place of any proceedings for any remedy available to the
Trustee, subject to limitations specified in the Indenture.
Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the
Outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest. The
exercise of remedies is also subject to the limitations contained in the
Collateral Trust Agreement.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or
member, as such, of the Company shall not have any liability for any obligations
of the Company under the Notes or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Note, each Holder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
17. Abbreviations
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
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
18. CUSIP or ISIN Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP or ISIN
numbers to be printed on the Notes and has directed the Trustee to use CUSIP or
ISIN numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
19. Governing Law
This Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
20. Exercise of Remedies.
Each of the Trustee and the Holders shall not exercise or seek
to exercise any Enforcement Action or institute any action or proceeding with
respect to any Enforcement Action unless and until either (a) the Foreclosure
Period has been initiated and concluded or (b) certain Triggering Events
specified in the Indenture have occurred and are continuing and then, in each
case, only to the extent expressly provided for in Indenture or as required by
the TIA; provided, however, there shall be no limitation on the ability of the
Trustee and, to the extent expressly provided for in the Indenture, the Holders
to pursue any Enforcement Action if Cash Replacement Collateral is substituted
for Collateral in accordance with Section 4.1 of the Indenture.
Subject to a sale of Share Collateral (but not Cash
Replacement Collateral) within the Foreclosure Period, a Holder's sole remedy in
respect of the Notes shall be the distribution, as soon as practicable after the
expiration of the Foreclosure Period, by the Collateral Trustee of the Share
Collateral to the Holders on a pro rata basis in exchange for, and in full
payment and satisfaction of all Obligations under the Notes; provided, however,
that any delay in the distribution of the Share Collateral to the Holders after
the expiration of the Foreclosure Period caused by an action taken by the
Company or any of its Affiliates (including the Xxxxxxx Group) with the intent
to impede or otherwise frustrate such distribution shall result in the Holders
being able to assert a claim against the Company to the fullest extent permitted
by applicable law for any damages to such Holders resulting from such delay.
21. Currency of Account; Conversion of Currency.
Dollars are the sole currency of account and payment for all
sums payable by the Company under or in connection with the Notes or the
Indenture, including damages. The Company will indemnify the Holders as provided
in respect of the conversion of currency relating to the Notes and the
Indenture.
22. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
The Company has agreed that any suit, action or proceeding
against the Company brought by any Holder or the Trustee arising out of or based
upon the Indenture or the Notes may be instituted in any state or federal court
in The City of New York, New York. The Company has irrevocably submitted to the
non-exclusive jurisdiction of such courts for such purpose and waived, to the
fullest extent permitted by law, trial by jury and any objection it may now or
hereafter have to the laying of venue of any such proceeding, and any claim it
may now or hereafter have that any proceeding in any such court is brought in an
inconvenient forum. The Company has appointed Law Debenture Corporate Services
as its process agent upon whom all writs, process and summonses may be served in
any suit, action or proceeding arising out of or based upon the Indenture or the
Notes which may be instituted in any state or federal court in The City of New
York, New York. To the extent that the Company has or hereafter may acquire any
immunity (sovereign or otherwise) from any legal action, suit or proceeding,
from jurisdiction of any court or from set-off or any legal process (whether
service or notice, attachment in aid or otherwise) with respect to itself or any
of its property, the Company has irrevocably waived and agreed not to plead or
claim such immunity in respect of its obligations under the Indenture or the
Notes.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
Grupo Iusacell, S.A. de X.X.
Xxxxxx Urales Xx. 000, Xxxx 0
Xxxxxxx Xxxxx xx Xxxxxxxxxxx
Xxxxxxxxxx Xxxxxx Xxxxxxx, 00000
Xxxxxx, D.F.
Attention: Xxxx Xxxxxx Xxxxxx Xxxxxx
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint agent to transfer this Note on the books of the Company.
The agent may substitute another to act for him.
Date:____________________ Your Signature:___________________
Signature Guarantee:______________________________
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Date of Amount of Amount of Principal Amount Signature of
Exchange decrease in increase in of this Global authorized
Principal Principal Note following signatory of
Amount of this Amount of this such decrease or Trustee or Note
Global Note Global Note increase Custodian
]
-------- -------------- -------------- -------------- ------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 3.14 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 3.14 of the Indenture, state the principal
amount (which must be an integral multiple of U.S.$1.00) that you want to have
purchased by the Company: U.S.$
Date: __________ Your Signature ____________________________
(Sign exactly as your name appears on the
other side of the Note)
Signature Guarantee: _______________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.
EXHIBIT B
RECONCILIATION AND TIE BETWEEN
THE TRUST INDENTURE ACT OF 1939 AND THE INDENTURE
Trust Indenture
Act Section Indenture Section
ss.310 (a) ...................................... 7.10
(b) ...................................... 7.10
(c) ...................................... Not Applicable
ss.311 (a) ...................................... 7.11
(b) ...................................... 7.11
(c) ...................................... Not Applicable
ss.312 (a) ...................................... 2.5
(b) ...................................... 11.3
(c) ...................................... 11.3
ss.313 ...................................... 7.6
ss.314 (a) ...................................... 3.5
(b) ...................................... 10.11
(c) (1) ...................................... 11.4 (a)
(c) (2) ...................................... 11.4 (b)
(c) (3) ...................................... Not Applicable
(d) ...................................... 10.8, 10.9
(e) ...................................... 11.5
ss.315 (a) ...................................... 7.1 (b)
(b) ...................................... 7.5
(c) ...................................... 7.1 (a)
(d) ...................................... 7.1 (c)
(e) ...................................... 6.11, 7.1 (f),
7.1 (i)
ss.316 (a)(1)(A) ...................................... 6.5
(a)(1)(B) ...................................... 6.4
(a)(2) ...................................... 9.2(a)(ii)
(b) ......................................6.6, 6.7, 9.2 (a)
(c) ...................................... 9.5 (b)
7.1 (i)
ss.317 (a)(1) ...................................... 6.8
(a)(2) ...................................... 6.9 (a)
(b) ...................................... 2.4
ss.318 (a) ...................................... 1.2
_________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
