Exhibit 4.1
FORM OF RESTRUCTURED LOAN FACILITY
as evidenced by
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NOTE PURCHASE AGREEMENT
DATED AS OF
APRIL 27, 2004
AMONG
BANCO XX XXXXXXX Y BUENOS AIRES S.A.,
AS ISSUER,
BARCLAYS BANK PLC,
AS DOCUMENTATION AGENT,
THE HOLDERS PARTY HERETO FROM TIME TO TIME,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS AGENT
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................................................ 2
Section 1.1. Defined Terms.................................................................... 2
Section 1.2. Terms Generally.................................................................. 26
Section 1.3. Accounting Terms; Accounting Principles.......................................... 26
ARTICLE II THE RESTRUCTURED DOLLAR NOTES...................................................................... 27
Section 2.1. Elections for Exchange of Original Dollar Loans.................................. 27
Section 2.2. The Long-Term Dollar LIBOR Notes................................................. 28
Section 2.3. The Long-Term Dollar Fixed Rate Notes............................................ 29
Section 2.4. The Medium-Term Dollar LIBOR Notes............................................... 29
Section 2.5. The Medium-Term Dollar Fixed Rate Notes.......................................... 29
Section 2.6. The Subordinated Dollar LIBOR Notes.............................................. 29
Section 2.7. The Subordinated Dollar Fixed Rate Notes......................................... 30
Section 2.8. Effect of Effective Date and Exchange............................................ 30
Section 2.9. Repayment of Long-Term Dollar Notes.............................................. 30
Section 2.10. Repayment of Medium-Term Dollar Notes............................................ 31
Section 2.11. Repayment of Subordinated Dollar Notes........................................... 31
Section 2.12. Repayment of Subordinated Dollar PIK Notes....................................... 31
Section 2.13. Evidence of Debt................................................................. 32
Section 2.14. Notes............................................................................ 32
Section 2.15. Subordination.................................................................... 34
ARTICLE III GENERAL PROVISIONS APPLICABLE TO THE RESTRUCTURED DOLLAR NOTES..................................... 32
Section 3.1. Optional Prepayment of Restructured Dollar Notes................................. 32
Section 3.2. Mandatory Prepayment of Restructured Dollar Notes................................ 35
Section 3.3. Interest......................................................................... 37
Section 3.4. Agent's Fees..................................................................... 39
Section 3.5. Alternate Rate of Interest....................................................... 39
Section 3.6. Increased Costs, Etc............................................................. 40
Section 3.7. Illegality....................................................................... 41
Section 3.8. Taxes............................................................................ 41
Section 3.9. Payments Generally; Pro Rata Treatment........................................... 43
Section 3.10. Sharing of Payments, Etc......................................................... 44
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................................... 45
Section 4.1. Organization; Powers............................................................. 45
Section 4.2. No Conflicts..................................................................... 45
Section 4.3. Due Authorization; Enforceability................................................ 46
Section 4.4. No Additional Authorization, Etc................................................. 46
Section 4.5. Compliance with Law.............................................................. 46
Section 4.6. Properties....................................................................... 46
Section 4.7. Material Litigation.............................................................. 46
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TABLE OF CONTENTS
(continued)
PAGE
Section 4.8. Civil and Commercial Law; No Immunity............................................ 46
Section 4.9. Taxes............................................................................ 46
Section 4.10. Withholding Taxes................................................................ 47
Section 4.11. Full Disclosure.................................................................. 47
Section 4.12. Proper Legal Form; Immunity...................................................... 47
Section 4.13. Pari Passu Ranking............................................................... 47
Section 4.14. Investment Company Act........................................................... 48
Section 4.15. Financial Statements............................................................. 48
Section 4.16. Transaction Documents............................................................ 48
Section 4.17. Surviving Debt................................................................... 48
Section 4.18. Existing Liens................................................................... 48
Section 4.19. Material Adverse Effect.......................................................... 48
Section 4.20. Insolvency....................................................................... 48
Section 4.21. Insurance........................................................................ 48
Section 4.22. Labor Disputes................................................................... 49
ARTICLE V CONDITIONS TO EFFECTIVENESS........................................................................ 49
Section 5.1. Conditions Precedent to Effectiveness............................................ 49
ARTICLE VI COVENANTS OF THE ISSUER............................................................................ 53
Section 6.1. Affirmative Covenants............................................................ 53
Section 6.2. Reporting Covenants.............................................................. 56
Section 6.3. Financial Covenants.............................................................. 58
Section 6.4. Negative Covenants............................................................... 58
ARTICLE VII EVENTS OF DEFAULT.................................................................................. 63
Section 7.1. Acceleration after Default....................................................... 63
Section 7.2. Events of Default................................................................ 63
ARTICLE VIII THE AGENT AND THE DOCUMENTATION AGENT.............................................................. 68
Section 8.1. Authorization and Action......................................................... 68
Section 8.2. Agents' Reliance, Etc............................................................ 68
Section 8.3. Agent, Documentation Agent and Affiliates........................................ 70
Section 8.4. Holder Credit Decision........................................................... 70
Section 8.5. Indemnification.................................................................. 71
Section 8.6. Successor Agent.................................................................. 72
Section 8.7. Documentation Agent.............................................................. 72
ARTICLE IX MISCELLANEOUS...................................................................................... 72
Section 9.1. Notices.......................................................................... 72
Section 9.2. No Waiver; Remedies; Amendments; Etc............................................. 73
Section 9.3. Costs and Expenses; Indemnity; Damage Waiver..................................... 74
Section 9.4. Assignments; Participations...................................................... 76
Section 9.5. Holders' Representation.......................................................... 79
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TABLE OF CONTENTS
(continued)
PAGE
Section 9.6. Survival......................................................................... 79
Section 9.7. Counterparts; Effectiveness...................................................... 79
Section 9.8. Severability..................................................................... 79
Section 9.9. Right of Setoff.................................................................. 80
Section 9.10. Jurisdiction; Consent to Service of Process...................................... 80
Section 9.11. WAIVER OF JURY TRIAL............................................................. 81
Section 9.12. Judgment Currency................................................................ 81
Section 9.13. Waiver of Sovereign Immunity..................................................... 82
Section 9.14. English Language................................................................. 82
Section 9.15. Headings......................................................................... 83
Section 9.16. Confidentiality.................................................................. 83
Section 9.17. GOVERNING LAW.................................................................... 83
Section 9.18. Actions Consistent with this Agreement........................................... 83
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SCHEDULES:
I Existing Bonds and Existing Bank Debt
II Escasany, Ayerza and Xxxxx Family Members
III Holder Addresses
IV Original Dollar Loan Agreements
V Real Estate
2.1 Proration and Reallocation Procedure
4.17 Surviving Debt
4.18 Existing Liens
5.1(b)(ii) Effective Date Interest Amounts
EXHIBITS:
A Form of APE
B Form of Assignment and Acceptance
C Form of Allocation Notice
D-1 Form of Argentine Note
D-2 Form of U.S. Note
E Form of Election Notice
F Form of Closing Certificate
G Form of Certificate of Incumbency and Authority
H Form of Process Agent Letter
I Form of Auditor Authorization
iv
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NOTE PURCHASE AGREEMENT, dated as of April 27, 2004 (as amended,
supplemented or otherwise modified from time to time, this "Agreement"), among
BANCO XX XXXXXXX Y BUENOS AIRES S.A., a sociedad anonima organized under the
laws of the Republic of Argentina (the "Issuer"), the holders from time to time
parties hereto (the "Holders"), DEUTSCHE BANK TRUST COMPANY AMERICAS, as agent
for the Holders (in such capacity, together with any successor Agent appointed
pursuant to Article VIII, the "Agent") and BARCLAYS BANK PLC, as Documentation
Agent (in such capacity, the "Documentation Agent").
RECITALS
WHEREAS, the Issuer desires to restructure simultaneously its existing
Debt (as defined below) under (i) the Existing Bonds (as defined below), and
(ii) the Existing Bank Debt (as defined below) including, inter alia, the
Original Dollar Loans (as defined below) (collectively, the "Restructuring");
WHEREAS, as part of the Restructuring, the Issuer and the Holders wish to
restructure in their entirety the terms and conditions applicable to the
Original Dollar Loans (i) in the form of (A) long-term Dollar-denominated notes,
(B) medium-term Dollar-denominated notes, and/or (C) subordinated
Dollar-denominated notes, and (ii) in connection therewith, to the extent
applicable, to receive (A) BODEN (as defined below), (B) Preferred Shares (as
defined below), and/or (C) cash in Dollars, and to terminate all applicable
obligations in connection with the Original Dollar Loan Agreements in accordance
with Section 2.8 hereof;
WHEREAS, the Issuer is issuing Restructured Dollar Notes (as defined
below);
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree in accordance with the terms
hereof and effective as of the Effective Date:
ARTICLE I
Definitions
Section 1.1 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"Accounting Principles" means the accounting principles generally accepted
in the Country, including without limitation the rules and regulations of the
Central Bank, in effect from time to time, establishing accounting principles
for financial institutions, including without limitation the Issuer, in the
Country, applied on a consistent basis.
"Additional Amounts" means any amounts, other than principal and interest,
owed by the Issuer to the Holders under the applicable Financing Agreements to
which the Holders are a party.
"Adjusted Principal Amount" means with respect to any of the Original
Dollar Loans, the sum of (i) the outstanding principal amount of the respective
Original Dollar Loans as of April 30, 2002, plus (ii) accrued and unpaid
interest on such respective Original Dollar Loans from and including May 1, 2002
to and including December 31, 2003 at a rate per annum equal to four and
three-quarters percent (4.75%), without giving effect to any default interest
provision provided for in the Original Dollar Agreements, as applicable.
"Affiliate" means a Person who directly or indirectly through one or more
intermediaries Controls or is Controlled by, or is under common Control with,
the Issuer.
"Affiliate Transactions" means any sale, lease, transfer, charge or other
disposition or purchase of any Property, or any contract, loan, advance, other
payment or guaranty, in each case made to or by, or entered into with or for the
benefit of, any Affiliate, any officer, any director or any employee of the
Issuer or any of its Subsidiaries (in any case, other than with any
majority-owned, consolidated Subsidiary). In the case of any commercial
contract, valuation of such Affiliate Transactions shall be done by calculating
the net present value of the net cash payments expected to be paid to the Issuer
or the relevant Subsidiary in respect of such transaction, discounted at a rate
of fifteen percent (15%) per annum.
"Agent" has the meaning assigned to such term in the preamble hereof.
"Agent's Account" means the account of the Agent maintained by the Agent
with its office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, ABA#: 000000000,
Account No. 00000000, Account Name: Xxxxx xx Xxxxxxx x Xxxxxx Xxxxx, Xxxxxxxxx:
Xxxxxxx Xxxxxxxx, Reference: Banco xx Xxxxxxx y Buenos Aires, or such other
account as the Agent shall specify in writing to the Holders and the Issuer.
"Agreement" has the meaning assigned to such term in the preamble hereof.
"Allocation Notice" has the meaning assigned to such term in Section
2.1(d) hereof.
"APE" means an out of court creditors' arrangement (Acuerdo Preventivo
Extrajudicial) under, and in accordance with, Argentine Law No 24,522, as from
time to time amended and/or supplemented.
"Applicable Law" means as to any Person, all applicable constitutions,
treaties, laws, statutes, codes, ordinances, orders, decrees, directions,
directives, rules and regulations of any Authority binding upon such Person or
to which such Person is subject.
"Argentine Note" has the meaning set forth in Section 2.14(a).
"Argentine Taxes" has the meaning assigned to such term in Section 3.8(a)
hereof.
"Assignment Agreement" means the assignment agreement to be entered into
on or prior to the Effective Date and executed and delivered by and between EBA
Holding S.A. and First Trust of New York, National Association, Representacion
Permanente en Argentina, as trustee under the Trust Agreement.
2
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Holder and an assignee and delivered to the Agent, substantially in
the form of Exhibit B.
"Auditors" means Price Waterhouse & Co., or such other "Big Four" firm of
internationally recognized independent public accountants, as the Issuer may
from time to time appoint as its auditors.
"Authority" means any national, supranational, regional or local
government or governmental, administrative, fiscal, judicial, legislative,
regulatory, executive, government-owned (directly or indirectly) or
government-controlled (directly or indirectly) body, department, commission,
authority, tribunal, agency or entity, or central bank (or any Person, whether
or not government owned and howsoever constituted or called, that exercises the
functions of a central bank).
"Authorization" means any consent, registration, filing, agreement,
notarization, certificate, license, approval, permit, authority or exemption
from, by or with any Authority, whether given by express action or deemed given
by failure to act within any specified time period, and all applicable
corporate, creditors' and shareholders' approvals or consents.
"Available Capital" means the Issuer's "Responsabilidad Patrimonial
Computable", as defined by the Central Bank in its Comunicacion "A" 2740 and its
modifications and as reflected in the Issuer's most recent monthly report titled
"Responsabilidad Patrimonial Computable" delivered to the Central Bank.
"B Loan Assignment Agreements" means, collectively, (i) all and each of
the B Loan assignment agreements, dated on or prior to the Effective Date,
executed and delivered by IFC and any participants of the Original IFC Loans who
elect to enter into this Agreement or receive Restructured Bonds rather than be
a participant in the Restructured IFC Loans and (ii) all and each of the B loan
assignment agreements, dated on or prior to the Effective Date, executed and
delivered by IIC and any participants of the Original IIC Loans who elect to
enter into this Agreement or receive Restructured Bonds rather than be a
participant in the Restructured IIC Loans.
"BODEN" means Dollar-denominated Bonos del Estado Nacional issued by the
government of the Country pursuant to Decree 905/02 of the National Executive
Branch thereof, which (i) are guaranteed by the full faith and credit of the
government of the Country, (ii) bear interest at a floating rate payable
semiannually in arrears on February 3 and August 3 of each year, and (iii) have
scheduled payment of principal in equal installments, beginning on August 3,
2005 and ending on the final maturity date of August 3, 2012.
"BODEN Tender Offer" means the offering by the Issuer to make BODEN
available up to a maximum amount of two hundred and fifty million Dollars
($250,000,000) in connection with the Restructuring, pursuant to which, inter
alia, each of the Holders, as part of the Restructuring, may exchange, subject
to prorationing as set forth in Schedule 2.1, all or part of the Adjusted
Principal Amount of their Existing Bank Debt for BODEN, if any, in an amount
specified in the Allocation Notices.
3
"BODEN Tender Offer Exchange Amount" means the amount of BODEN, if any,
received by the Holders on the Effective Date, as specified in the Allocation
Notices, in connection with the BODEN Tender Offer.
"Bond Exchange Offer" means the offer of the Issuer to holders of Existing
Bonds to, inter alia, exchange Existing Bonds by the respective participating
holders for Restructured Bonds.
"Business Day" means a day when banks are open for business in Xxx Xxxx,
Xxx Xxxx xxx Xxxxxx Xxxxx, Xxxxxxxxx and, solely for the purpose of determining
the applicable Interest Rate other than pursuant to clauses (i) and (ii) in the
definition of LIBO Rate, London, England.
"Capital Adequacy Guidelines" means capital adequacy guidelines of the
Central Bank, for Argentine banks and/or financial institutions in the Country,
as they may be modified from time to time.
"Capital Expenditure" means, for any period: (i) any payment that is made
during such period by a Person plus (ii) the aggregate amount of any Debt
incurred by such Person during such period, in each case for (or in connection
with) the rental, lease, purchase, construction or use of any Property the value
or cost of which, under the Accounting Principles, should be capitalized or
appear on such Person's balance sheet, without regard to the manner in which
such payments (or the instrument pursuant to which they are made) are
characterized by such Person or any other Person, including any costs in respect
of maintenance capital expenditures.
"Capital Stock" means with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any preferred stock, but excluding any debt securities convertible
into such equity.
"Cash Tender Offer" means the offering by the Issuer to make cash
available up to a maximum amount of fifty-six million Dollars ($56,000,000) in
connection with the Restructuring, under which, inter alia, each of the Holders,
as part of the Restructuring, may exchange, subject to prorationing as set forth
in Schedule 2.1, all or part of the Adjusted Principal Amount of their Existing
Bank Debt for cash in the amounts specified in the Allocation Notices.
"Cash Tender Offer Payment Amount" means, with respect to each Holder, the
amount payable to such Holder on the Effective Date, as notified by the Agent to
each Holder in the Allocation Notice referred to in Section 2.1(d), in
connection with such Holder's tendering of Existing Bank Debt in the Cash Tender
Offer.
"CCC" means the Commodity Credit Corporation.
"Central Bank" means the Banco Central de la Republica Argentina (the
Argentine Central Bank) and any other Authority that may replace or carry out
any part of the monetary, regulatory and supervisory functions thereof.
4
"Certificate of Incumbency and Authority" means a certificate provided to
the Agent by the Issuer in the form of Exhibit G.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement or (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Authority
after the date of this Agreement.
"Change of Control" means (i) any Person, other than one or more of the
Escasany, Ayerza and Xxxxx Family Members, (A) Controls or (B) owns, jointly or
severally, directly or indirectly, any of the Capital Stock or any of the Voting
Stock of EBA Holding S.A., (ii) the failure of EBA Holding S.A. to (A) Control
and (B) own Voting Stock which (except for those matters for which Class "A"
shares of Grupo Galicia have the right to only one vote) has the right to at
least fifty-nine point forty-two percent (59.42%) of the total votes at
shareholders meetings of Grupo Galicia; provided that such percentage may be
reduced (without constituting a "Change of Control") to a percentage of Voting
Stock which (except for those matters for which class "A" shares of Grupo
Galicia have the right to only one vote) has the right to cast a majority of the
votes at shareholders meetings of Grupo Galicia in the event that Grupo Galicia
issues equity securities by reason of any transaction not prohibited under the
terms of the Financing Agreements (including, without limitation, the issuance
of equity by the Issuer), and/or (iii) the failure of Grupo Galicia to (A)
Control the Issuer and (B) to own at least ninety-three percent (93%) of the
Capital Stock and Voting Stock of the Issuer; provided that such percentage may
be reduced (without constituting a "Change of Control") to sixty-five percent
(65%) of the Capital Stock and Voting Stock of the Issuer in the event that the
Issuer issues equity securities by reason of any transaction not prohibited
under the terms of the Financing Agreements (including, without limitation, the
issuance of equity by the Issuer). For the avoidance of doubt, any Change of
Control shall not constitute an Event of Default under this Agreement to the
extent that the conditions set forth in Section 7.2(o) hereof shall have been
satisfied.
"Charter" means with respect to the Issuer, its "estatutos sociales".
"Communications" has the meaning assigned to such term in Section 9.1(b)
hereof.
"Confidential Information" means information that the Issuer furnishes to
the Agent or any Holder in a writing designated as confidential, but does not
include any such information that is or becomes generally available to the
public other than as a result of a breach by the Agent or any Holder of its
obligations hereunder or that is or becomes available to the Agent or such
Holder from a source other than the Issuer.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of Voting Stock, by contract or otherwise, and the verb
"Control" and the terms "Controlling" and "Controlled" have the meanings
correlative to the foregoing; provided, that any controller ("veedor") appointed
by the Central Bank to oversee the operations of the Issuer shall not be
construed as "Controlling" the direction of the management and/or policies of
the Issuer.
"Country" means the Republic of Argentina.
5
"Debt" means for any Person,
(i) all Indebtedness for Borrowed Money of such Person;
(ii) all indebtedness created or arising under any conditional
sales or other title retention agreement with respect to any
Property acquired by such Person (including, without
limitation, indebtedness under any such agreement which
provides that the rights and remedies of the seller or lender
thereunder in the event of default are limited to repossession
or sale of such Property);
(iii) all obligations under leases which shall have been or should
be, in accordance with the Accounting Principles, recorded as
capitalized leases in respect of which such Person is liable
as lessee;
(iv) all direct or indirect guaranties (including, without
limitation, "avales") of such Person in respect of, and all
obligations (contingent or otherwise) of such Person to
purchase or otherwise acquire, or otherwise assure a creditor
against loss in respect of, any indebtedness referred to in
clauses (i), (ii) or (iii) above of any other Person; and
(v) all indebtedness and obligations referred to in clauses (i),
(ii), (iii) or (iv) above secured by (or for which the holder
of such indebtedness or obligation has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in
any Property of such Person, notwithstanding that such Person
has not assumed or become liable for the payment of such
indebtedness or obligation;
provided, however, that the term "Debt" shall not include (i) "Debt incurred by
the Issuer or any of its Subsidiaries in the ordinary course of business"
(hereinafter defined) but shall include any debt attributable to any
Securitization (as used herein, the term "Debt incurred by the Issuer or any of
its Subsidiaries in the ordinary course of business" shall mean and include,
without limitation, any liability or obligation of the Issuer or any of its
Subsidiaries with respect to, without limitation (A) any deposits with or funds
collected by it (but not funds borrowed or raised by it), (B) any check, note,
certificate of deposit, draft or xxxx of exchange, issued, accepted or endorsed
by it in the ordinary course of its business, (C) any transaction in which it
acts solely in a fiduciary or agency capacity, (D) any banker's acceptance, (E)
any agreement, made by it in the ordinary course of its business, to purchase or
repurchase securities or loans or currency or to participate in loans and (F)
letters of credit to the extent they are issued by the Issuer or any of its
Subsidiaries in the ordinary course of business); and (ii) any obligation of the
Issuer, existing as of the date hereof, to repay or prepay (as approved by the
Central Bank through Resolution 338/03) any amount due to Galicia Uruguay as of
the date hereof in connection with any lineas de depositos borrowed by the
Issuer through Banco xx Xxxxxxx Grand Cayman Branch.
"Default" means any event or condition which constitutes an Event of
Default or a Potential Event of Default.
6
"Default Interest Period" means any period during which any principal of
any Restructured Dollar Note that is due, or any other amount that is due under
this Agreement or any Note, is not paid, and each successive period of thirty
(30) days thereafter; provided, however, that such period shall commence as of
the date on which such principal or other amount became due and each succeeding
period thereof shall commence upon the expiration of the immediately preceding
period. For the avoidance of doubt, any such period (or any part thereof) shall
terminate on the date when all such overdue amounts are paid in full.
"Default Interest Rate" means for any Default Interest Period, a rate per
annum equal to (i) the relevant Interest Rate, plus (ii) two percent (2%).
"Derivative Transaction" means any swap agreement, cap agreement, collar
agreement, futures contract, forward contract or similar arrangement with
respect to interest rates, currencies or commodity prices.
"Documentation Agent" has the meaning assigned to such term in the
preamble hereof.
"Dollar Equivalent" means, with respect to (i) any monetary amount
denominated in Dollars, such amount, (ii) any monetary amount denominated in
Pesos, at any time for the determination thereof, the amount of Dollars obtained
by converting Pesos into Dollars at the EMTA Rate or, if such rate shall not be
available, at the rate publicly quoted by the Agent for the purchase of Dollars
with Pesos as reported at the close of business two (2) Business Days prior to
the date of determination by any of Banco Rio de la Plata S.A., Deutsche Bank
S.A. and the branch of Citibank, N.A. in the Country (or if any of such entities
shall not report such quotations, by any of HSBC Bank Argentina S.A., Bankboston
N.A. Buenos Aires Branch or XX Xxxxxx Xxxxx Bank Buenos Aires Branch,
respectively), and (iii) a currency other than Dollars or Pesos, at any time for
the determination thereof, the amount of Dollars obtained by converting such
other currency into Dollars at the average of the spot rates for the purchase of
Dollars with such other currency, as publicly quoted by the Agent in the normal
course of business at approximately 11:00 a.m. (New York City time), on the date
of determination thereof specified herein or, if the date of determination
thereof is not otherwise specified herein, in each case on the date two (2)
Business Days prior to such determination.
"Dollars" or "$" or "US$" means the lawful currency of the United States
of America.
"Economic Group" has the same meaning as "Grupo Economico" as defined by
the Central Bank in Comunicacion "A" 2140, as it may be modified from time to
time.
"Effective Date" has the meaning assigned to such term in Section 5.1
hereof.
"Effective Date Interest Amount" means with respect to any of the Original
Dollar Loans, an amount equal to the accrued and unpaid interest through and
including April 30, 2002 on the principal amount of such Original Dollar Loans
being exchanged for Restructured Dollar Notes on the Effective Date minus any
portion thereof due and payable but paid pursuant to the other Restructured
Credit Agreements on the Effective Date at a rate per annum determined pursuant
to the applicable Original Dollar Loan Agreement, in each case immediately prior
to giving effect to any of the Restructured Credit Agreements and without taking
into account any default interest provision provided for therein or herein.
7
"Election Notice" has the meaning assigned to such term in Section
5.1(a)(ii) hereof.
"EMTA" means the Emerging Markets Trading Association.
"EMTA Rate" means the rate of exchange used for the purchase of Dollars
with Pesos as quoted by the EMTA on its website at xxx.xxxx.xxx/xxxxxxxxx (or
such other worldwide web page of EMTA where the quotation is publicly published
if this web address changes) two (2) Business Days prior to the date of
determination, at 2:00 p.m. (Buenos Aires time).
"Entitled Person" has the meaning assigned to such term in Section 9.12
hereof.
"Equity Participation Tender Offer" means the offering by the Issuer to
make available (i) medium-term notes due 2010 up to a maximum amount of three
hundred million Dollars ($300,000,000) and (ii) up to one hundred and forty-nine
million (149,000,000) Preferred Shares (or Preferred Shares and the cash
equivalent, if any) in connection with the Restructuring, under which each
Holder, as part of the Restructuring, may exchange, subject to the prorationing
set forth in Schedule 2.1, all or part of the Adjusted Principal Amount of its
Existing Bank Debt for (x) Medium-Term Dollar Notes and (y) Preferred Shares (or
Preferred Shares and cash equivalent, if any) in the respective amounts
specified in the Allocation Notices.
"Escasany, Ayerza and Xxxxx Family Members" means any members of the
Escasany, Ayerza and Braun families who are holders of Class "A" Shares of EBA
Holding S.A., or their heirs, descendants and spouses who receive shares as a
result of dissolution of marriage, which holders of class "A" shares and the
Fundacion Banco xx Xxxxxxx y Buenos Aires S.A. are (to the extent applicable)
identified in the shareholders' meeting minutes, Number 1, of EBA Holding S.A.,
dated October 12, 1999, and registered in the Registro Publico de Comercio under
number 18,036, Libro VIII, Tomo de Sociedades por Acciones, Numero Correlativo
IGJ 1670663, the names of which are identified in Schedule II.
"Event of Default" has the meaning assigned to such term in Section 7.2.
"Exchange Agent" means Citibank, N.A., a national bank organized and
existing under the laws of the United States of America.
"Existing Bank Debt" means the Debt of the Issuer described under
"Existing Bank Debt" in Part B of Schedule I.
"Existing Bonds" means all and each of the notes (obligaciones
negociables) issued by, and representing Debt of, the Issuer and described under
"Existing Bonds" in Part A of Schedule I.
"Existing Liens" means all and each of the Liens on the Property of the
Issuer or any of its Subsidiaries outstanding immediately before and on the
Effective Date, as set forth on Schedule 4.18 hereto.
"FFRE" means Fondo Fiduciario para la Reconstruccion de Empresas
(Fiduciary Fund for the Restructuring of Companies).
8
"Financial Entities Act" means Argentine Law N(degree) 21,526, as amended
and/or supplemented from time to time.
"Financing Agreements" means, collectively, (i) this Agreement; and (ii)
the Notes.
"Fiscal Year" means the accounting year of the Issuer commencing each year
on January 1 and ending on the following December 31, or such other accounting
period of the Issuer as the Issuer may from time to time designate as its
accounting year.
"Fitch" means Fitch, Inc. and any successor thereto.
"Fixed Rate" means either (i) the Long-Term Dollar Fixed Rate, (ii) the
Medium-Term Dollar Fixed Rate, or (iii) the Subordinated Dollar Fixed Rate, as
the case may be.
"Fixed Rate Note" means any Restructured Dollar Note bearing interest at a
Fixed Rate.
"Foreign Currency" means any currency other than Pesos.
"Foreign Currency Assets" means all Foreign Currency amounts payable to
the Issuer and all rights to receive revenues and other payments that are
required to be paid to the Issuer in a Foreign Currency and all liquid assets
denominated in a Foreign Currency.
"Foreign Currency Debt" means Debt that is: (i) denominated in a Foreign
Currency; or (ii) payable at the option of the payee in a Foreign Currency; and
for purposes of this definition, an obligation is deemed to be denominated in a
Foreign Currency if the terms thereof or of any Applicable Law of the Country or
regulation of the Central Bank requires that payment thereof will be made to the
holder thereof in such Foreign Currency by the Issuer.
"Galicia Uruguay" means Banco Galicia Uruguay S.A.
"Grupo Galicia" means Grupo Financiero Xxxxxxx X.X.
"Grupo Galicia Agreement" means that certain agreement to be entered into
on or prior to the Effective Date among Grupo Galicia and IFC, IIC, CCC and the
Agent as the agent under this Agreement and the New Trade Debt Agreement.
"Headquarter Offices" means, to the extent that any of the real estate
owned by the Issuer set forth in Part A to Schedule V shall be used as the
central headquarters of the Issuer, the real estate used by the Issuer and
listed in Part B to Schedule V, and to the extent not so used by the Issuer as
its central headquarters, the real estate listed in Part A and Part B thereto.
"Holders" has the meaning assigned to such term in the preamble hereof.
"Holder Address" means, with respect to each Holder, such Holder's address
specified on Schedule III hereto or in the Assignment and Acceptance pursuant to
which it became a Holder, or such other office of such Holder as such Holder may
from time to time specify to the Issuer and the Agent.
9
"IFC" means the International Finance Corporation.
"IIC" means the Inter - American Investment Corporation.
"Increased Costs" means any of the amounts described in Section 3.6 and
certified in an Increased Costs Certificate.
"Increased Costs Certificate" has the meaning assigned to such term in
Section 3.6(c).
"Indebtedness for Borrowed Money" means all obligations of any Person to
pay or repay:
(i) borrowed money;
(ii) any bonds, debentures, notes, loan stock, commercial paper,
acceptance credits, bills, promissory notes or similar
instruments drawn, accepted, endorsed or issued by such Person
(including without limitation obligations incurred in
connection with the acquisition of Property);
(iii) any credit to such Person from a supplier of Property or
services under any installment purchase, deferred purchase
price or other similar arrangement with respect to Property or
services (except trade accounts that are incurred and payable
in the ordinary course of business);
(iv) or reimburse any other Person with respect to amounts paid by
such other Person under a letter of credit, bankers'
acceptance, surety bond or similar instrument;
(v) amounts raised under any transaction having the financial
effect of a borrowing and which would be classified as a
borrowing (and not as an off-balance sheet financing) under
the Accounting Principles, or as the case may be other
accounting principles applicable to such Person including,
without limitation, under leases or similar arrangements
entered into primarily as a means of financing the acquisition
of the asset leased;
(vi) the amount of such Person's obligations due and payable
pursuant to Derivative Transactions entered into in connection
with other Debt of such Person; provided, however, that for
the avoidance of double accounting and for so long as any such
Derivative Transaction is in effect, that Debt will be
computed as Indebtedness for Borrowed Money in accordance with
the terms of the relevant Derivative Transaction and not the
terms of the agreement providing for that Debt when it was
incurred; and
(vii) any premium payable on a mandatory redemption or replacement
of the foregoing obligations, when and as applicable.
"Indemnitee" has the meaning assigned to such term in Section 9.3(b).
"Indemnified Costs" has the meaning assigned to such term in Section
8.5(a).
10
"Interest Determination Date" means, except as otherwise provided in
Section 3.5, the second (2nd) Business Day before the first (1st) day of each
Interest Period
"Interest Payment Date" means January 1 and July 1 of each year.
"Interest Period" means each period of six (6) months from and including
each Interest Payment Date to but not including the next following Interest
Payment Date; provided that the first (1st) Interest Period shall be the period
from and including January 1, 2004 to but not including July 1, 2004.
"Interest Rate" means, collectively, (i) the Long-Term Dollar Fixed Rate,
(ii) the Long-Term Dollar LIBOR Note Interest Rate, (iii) the Medium-Term Dollar
Fixed Rate, (iv) the Medium-Term Dollar LIBOR Note Interest Rate, (v) the
Subordinated Dollar Fixed Rate, and (vi) the Subordinated Dollar LIBOR Note
Interest Rate.
"Investment" means any loan or advance to any Person other than in the
ordinary course of business in accordance with past banking practices, any
purchase or other acquisition of any Capital Stock (other than acquisitions
pursuant to the exercise of preemptive rights or accretion rights in order to
prevent dilution of the Issuer's equity ownership percentage in Permitted
Businesses) or Debt or the assets comprising a division or business unit or a
substantial part or all of the business of such Person, any capital contribution
to such Person or any other direct or indirect investment in such Person,
including, without limitation, any acquisition by way of a merger or
consolidation and any arrangement pursuant to which the investor incurs Debt,
but excluding the obligation of the Issuer to transfer BODEN (or any other
instrument permitted under Decree 2167/02 as of the date hereof) to Galicia
Uruguay (such BODEN having been received by the Issuer from the Central Bank as
compensation for assets of the Issuer converted into Pesos and booked at Galicia
Uruguay pursuant to Article 6 of Decree 2167/02) and any obligation of the
Issuer, existing as of the date hereof, to repay or prepay (as approved by the
Central Bank through Resolution 338/03) any amount due to Galicia Uruguay as of
the date hereof in connection with any lineas de depositos borrowed by the
Issuer through Banco xx Xxxxxxx Grand Cayman Branch.
"Issuer" has the meaning assigned to such term in the preamble hereof.
"Issuer's Successor Corporation" has the meaning assigned to such term in
Section 6.4(b) hereof.
"LIBO Rate" means, with respect to any Interest Period pertaining to a
LIBOR Note, the British Bankers' Association ("BBA") interbank offered rates for
deposits in Dollars which appears on the relevant page of Telerate Service
(currently 3750 or, if not available, on the relevant page of any other services
(such as Reuters Service or Bloomberg Financial Markets) that displays BBA rates
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period), as the rate for Dollar deposits with a
maturity comparable to such Interest Period. If for any Interest Period, the
Agent cannot determine the LIBO Rate by reference to Telerate Service or any
other service that displays BBA rates, the Agent shall notify the Issuer and the
Holders and the Agent shall instead determine the "LIBO Rate" as follows: (i) on
the second Business Day before the beginning of the relevant Interest
11
Period by calculating the arithmetic mean (rounded upward to the nearest three
(3) decimal places) of the offered rates advised to the Agent on or around 11:00
a.m., London time, for deposits in Dollars by any four (4) major banks active in
Dollars in the London interbank market, selected by the Agent; provided that if
less than four (4) quotations of such offered rates are received, the Agent may
rely on the quotations of such offered rates so received if not less than two
(2) thereof have been received; or (ii) if less than two (2) quotations are
received from the banks in London in accordance with subsection (i) above, on
the first (1st) day of the relevant Interest Period by calculating the
arithmetic mean (rounded upward to the nearest three (3) decimal places) of the
offered rates advised to the Agent on or around 11:00 a.m., New York time, for
loans in Dollars by a major bank or banks in New York, New York selected by the
Agent.
"LIBOR Note" means any Restructured Dollar Note bearing interest at the
LIBO Rate.
"Lien" means any lien, mortgage, charge, security interest, pledge,
collateral trust agreement, repurchase agreement, hypothecation, encumbrance of
any kind, fiduciary transfer or assignment by way of collateral, including
without limitation any equivalent created or arising under the laws of the
Country or the laws of the State of New York and any transfer in a
securitization transaction.
"Long-Term Bonds" means the Dollar-denominated notes (obligaciones
negociables) due 2014 to be issued by the Issuer under, and pursuant to the
terms and conditions applicable to, the Restructuring.
"Long-Term Debt" means, collectively, (i) the Long-Term Loans and (ii) the
Long-Term Bonds.
"Long-Term Dollar Applicable Margin" has the meaning assigned to such term
in Section 2.1(e).
"Long-Term Dollar Fixed Rate" means, for any Interest Period (i) three
percent (3%) per annum for the period from and including January 1, 2004 through
December 31, 2004, (ii) four percent (4%) per annum for the period from and
including January 1, 2005 through December 31, 2005, (iii) five percent (5%) per
annum for the period from and including January 1, 2006 through December 31,
2006, (iv) six percent (6%) per annum for the period from and including January
1, 2007 through December 31, 2007, and (v) seven percent (7%) per annum
thereafter.
"Long-Term Dollar Fixed Rate Holder" means, at any time, any Holder
holding any of the Long-Term Dollar Fixed Rate Notes.
"Long-Term Dollar Fixed Rate Note" means any long-term Dollar denominated
note under this Agreement bearing interest at the Long-Term Dollar Fixed Rate
or, as the context requires, the principal amount of such note outstanding from
time to time.
"Long-Term Dollar Fixed Rate Tranche" means the tranche of Long-Term
Dollar Fixed Rate Notes.
12
"Long-Term Dollar Holders" means, collectively, (i) the Long-Term Dollar
Fixed Rate Holders and (ii) the Long-Term Dollar LIBOR Holders.
"Long-Term Dollar LIBOR Holder" means, at any time, any Holder holding any
of the Long-Term Dollar LIBOR Notes.
"Long-Term Dollar LIBOR Note" means any long-term Dollar denominated note
under this Agreement bearing interest at the Long-Term Dollar LIBOR Note
Interest Rate or, as the context requires, the principal amount of such note
outstanding from time to time.
"Long-Term Dollar LIBOR Note Interest Rate" for any Interest Period, the
rate at which interest is payable on the Long-Term Dollar LIBOR Notes during
that Interest Period, determined in accordance with Section 3.3.
"Long-Term Dollar LIBOR Tranche" means the tranche of Long-Term Dollar
LIBOR Notes.
"Long-Term Dollar Notes" means, collectively, (i) the Long-Term Dollar
Fixed Rate Notes and (ii) the Long-Term Dollar LIBOR Notes.
"Long-Term Dollar Maturity Date" means January 1, 2014.
"Long-Term Loans" means, collectively, (i) the Restructured IFC Long-Term
Loans, (ii) the Long-Term Dollar Notes, (iii) the Restructured IIC Long-Term
Loans, and (iv) the Restructured CCC Long-Term Loans.
"Majority Long-Term Dollar Fixed Rate Holders" means, at any time, the
Long-Term Dollar Fixed Rate Holders whose outstanding Long-Term Dollar Fixed
Rate Notes at such time represent more than fifty percent (50%) of the aggregate
outstanding principal amount of the Long-Term Dollar Fixed Rate Notes at such
time.
"Majority Long-Term Dollar LIBOR Holders" means, at any time, the
Long-Term Dollar LIBOR Holders whose outstanding Long-Term Dollar LIBOR Notes at
such time represent more than fifty percent (50%) of the aggregate outstanding
principal amount of the Long-Term Dollar LIBOR Notes at such time.
"Majority Long-Term Dollar Holders" means, at any time, the Long-Term
Dollar Holders whose outstanding Long-Term Dollar Notes at such time represent
more than fifty percent (50%) of the aggregate outstanding principal amount of
the Long-Term Dollar Notes at such time.
"Majority Medium-Term Dollar Fixed Rate Holders" means, at any time, the
Medium-Term Dollar Fixed Rate Holders whose outstanding Medium-Term Dollar Fixed
Rate Notes at such time represent more than fifty percent (50%) of the aggregate
outstanding principal amount of the Medium-Term Dollar Fixed Rate Notes at such
time.
"Majority Medium-Term Dollar LIBOR Holders" means, at any time, the
Medium-Term Dollar LIBOR Holders whose outstanding Medium-Term Dollar LIBOR
Notes at such time
13
represent more than fifty percent (50%) of the aggregate outstanding principal
amount of the Medium-Term Dollar LIBOR Notes at such time.
"Majority Medium-Term Dollar Holders" means, at any time, the Medium-Term
Dollar Holders whose outstanding Medium-Term Dollar Notes at such time represent
more than fifty percent (50%) of the aggregate outstanding principal amount of
the Medium-Term Dollar Notes at such time.
"Majority Subordinated Dollar Fixed Rate Holders" means, at any time, the
Subordinated Dollar Fixed Rate Holders whose outstanding Subordinated Dollar
Fixed Rate Notes at such time represent more than fifty percent (50%) of the
aggregate outstanding principal amount of the Subordinated Dollar Fixed Rate
Notes at such time.
"Majority Subordinated LIBOR Holders" means, at any time, the Subordinated
Dollar LIBOR Holders whose outstanding Subordinated Dollar LIBOR Notes at such
time represent more than fifty percent (50%) of the aggregate outstanding
principal amount of the Subordinated Dollar LIBOR Notes at such time.
"Majority Subordinated Dollar Holders" means, at any time, the
Subordinated Dollar Holders whose outstanding Subordinated Dollar Notes at such
time represent more than fifty percent (50%) of the aggregate outstanding
principal amount of the Subordinated Dollar Notes at such time.
"Management" has the meaning assigned to such term in Section 6.4(l)(ii).
"Market Compensation" has the meaning assigned to such term in Section
6.4(l)(ii).
"Material Adverse Effect" means a material adverse effect on:
(i) the condition (financial or otherwise), operations, Property,
business affairs or business prospects of the Issuer and its
Subsidiaries taken as a whole;
(ii) the validity or enforceability of any of the Financing
Agreements;
(iii) the rights and remedies of, or benefits available to, any
party (other than the Issuer) under any of the Financing
Agreements; or
(iv) the ability of the Issuer to perform its obligations under
this Agreement or any other Financing Agreement in accordance
with the terms hereof or thereof.
"Material Indebtedness" has the meaning assigned to such term in Section
7.2(d).
"Medium-Term Bonds" means the Dollar-denominated notes (obligaciones
negociables) due 2010 to be issued by the Issuer under, and pursuant to the
terms and conditions applicable to, the Restructuring.
14
"Medium-Term Debt" means, collectively, (i) the Medium-Term Loans and (ii)
the Medium-Term Bonds.
"Medium-Term Dollar Fixed Rate" means the interest rate on the Medium-Term
Dollar Fixed Rate Notes specified in Section 2.1(f).
"Medium-Term Dollar Fixed Rate Holder" means, at any time, any Holder
holding any of the Medium-Term Dollar Fixed Rate Notes.
"Medium-Term Dollar Fixed Rate Note" means any medium-term Dollar
denominated note under this Agreement bearing interest at the Medium-Term Dollar
Fixed Rate or, as the context requires, the principal amount of such note
outstanding from time to time.
"Medium-Term Dollar Fixed Rate Tranche" means the tranche of Medium-Term
Dollar Fixed Rate Notes.
"Medium-Term Dollar Holders" means, collectively, (i) the Medium-Term
Dollar Fixed Rate Holders and (ii) the Medium-Term Dollar LIBOR Holders.
"Medium-Term Dollar LIBOR Holder" means, at any time, any Holder holding
any of the Medium-Term Dollar LIBOR Notes.
"Medium-Term Dollar LIBOR Note" means any medium-term Dollar denominated
note under this Agreement bearing interest at the Medium-Term Dollar LIBOR Note
Interest Rate or, as the context requires, the principal amount of such note
outstanding from time to time.
"Medium-Term Dollar LIBOR Note Interest Rate" for any Interest Period, the
rate at which interest is payable on the Medium-Term Dollar LIBOR Notes during
that Interest Period, determined in accordance with Section 3.3.
"Medium-Term Dollar LIBOR Tranche" means the tranche of Medium-Term Dollar
LIBOR Notes.
"Medium-Term Dollar Notes" means, collectively, (i) the Medium-Term Dollar
Fixed Rate Notes and (ii) the Medium-Term Dollar LIBOR Notes.
"Medium-Term Dollar Maturity Date" means January 1, 2010.
"Medium-Term Loans" means, collectively, (i) the Restructured IFC
Medium-Term Loans, (ii) the Medium-Term Dollar Notes, (iii) the Restructured IIC
Medium-Term Loans, and (iv) the Restructured CCC Medium-Term Loans.
"Merging Entity" has the meaning assigned to such term in Section 6.4(b)
hereof.
"Moody's" means Xxxxx'x Investors Service, Inc., and any successor
thereto.
"Net Cash Proceeds" means, in connection with any issuance or incurrence
of Debt, issuance of Capital Stock or other equity security, or sale, transfer,
lease or other disposition of
15
Property, as the case may be, the cash proceeds received from such issuance,
incurrence, sale, transfer, lease, or other disposition, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"New Trade Debt" means, collectively, all of the trade debt provided for
in the New Trade Debt Agreement.
"New Trade Debt Agreement" means the trade credit agreement dated as of
April 27, 2004, by and among the Issuer, the agent party thereto, the
documentation agent party thereto, the letter of credit bank party thereto and
the lenders party thereto.
"Note" has the meaning assigned to such term in Section 2.14(f) hereof.
"Notice" has the meaning assigned to such term in Section 9.1(c).
"Obligation" means, with respect to any Person, any payment, performance
or other obligation of such Person of any kind, including, without limitation,
any liability of such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 7.2(g),
(h), (i) or (j). Without limiting the generality of the foregoing, the
Obligations of the Issuer under the Transaction Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by the Issuer under any
Transaction Document and (b) the obligation of the Issuer to reimburse any
amount in respect of any of the foregoing that any Holder, in its sole
discretion, may elect to pay or advance on behalf of the Issuer.
"Offering Memorandum" the Issuer's offering memorandum dated November 5,
2003, and related pricing supplement dated December 23, 2003, as further
supplemented on March 18, 2004, and as further supplemented on April 6, 2004,
relating to the Bond Exchange Offer.
"Open Credit Exposure Ratio" means at any calculation date: (i)(A) the
total principal amounts outstanding of any loans and other banking and credit
facilities (including contingent liabilities under guarantees and documentary
credits) granted by the Issuer which are not classified as "normal" (corporate
and individual loans), "con seguimiento especial" (corporate loans) and
"cumplimiento inadecuado" (individual loans) (and any other category of loans
that is similar in scope that replaces the same after the date hereof, as
determined by the Central Bank) (as reflected in the Issuer's most recent
"Estado de Situacion de Deudores" delivered to the Central Bank), minus (B) the
total "Previsiones por Riesgo de Incobrabilidad" as reflected in the Issuer's
most recent unaudited quarterly accounts or audited quarterly accounts (in the
case of the last quarter of any Fiscal Year); divided by (ii) Available Capital.
"Original Dollar Loan Agreements" means, collectively, all and each of the
loan agreements listed on Schedule IV entered into by the Issuer and each of the
Holders, directly or indirectly, respectively pursuant to which, and subject to
the terms and conditions therein set
16
forth, each of the respective Holders granted to the Issuer certain
Dollar-denominated loans that are subject to the Restructuring.
"Original Dollar Loans" means, collectively, all and each of the
Dollar-denominated loans made by each of the Holders, directly or indirectly, to
the Issuer pursuant to the provisions of each of the Original Dollar Loan
Agreements according to their original terms and conditions and prior to the
restructuring thereof set forth in this Agreement.
"Original IFC Loan Agreements" means, collectively, (i) the investment
agreement, dated as of July 19, 1996, and amended and restated as of July 2,
1999 and (ii) the credit line agreement dated as of January 25, 1999, each
entered into by the Issuer and IFC.
"Original IFC Loans" means, collectively, all and each of the loans made
by IFC to the Issuer pursuant to the provisions of the Original IFC Loan
Agreements according to their respective original terms and conditions and prior
to the restructuring set forth in the Restructured IFC Loan Agreements.
"Original IIC Loan Agreements" means, collectively, (i) the third amended
and restated financial intermediary loan agreement dated as of June 23, 1997 and
(ii) the financial intermediary loan agreement dated as of December 21, 1998,
each entered into by the Issuer and IIC.
"Original IIC Loans" means, collectively, all and each of the loans made
by IIC to the Issuer pursuant to the provisions of the Original IIC Loan
Agreements according to their respective original terms and conditions and prior
to the restructuring set forth in the Restructured IIC Loan Agreements.
"Participant" has the meaning assigned to such term in Section 9.4(f).
"Participation Agreements" means, collectively, (i) the participation
agreements, each entered into on or before the Effective Date, executed and
delivered by and between IFC and the relevant participants to the Restructured
IFC Loan Agreements and (ii) the participation agreements, each entered into on
or before the Effective Date, executed and delivered by and between IIC and the
relevant participants to the Restructured IIC Loan Agreements.
"Permitted Businesses" means the business of banking, leasing, credit
cards, brokerage, investment, insurance or similar financial products or any
product or service closely related thereto.
"Permitted Liens" means:
(i) Existing Liens;
(ii) any Lien on any asset securing Debt incurred or assumed solely
for the purpose of financing all or any part of the cost of
acquiring such asset, which Lien attached to such asset
concurrently with or within ninety (90) days after the
acquisition thereof; provided, however, such Lien may extend
only to such asset;
17
(iii) any Lien required to be created in connection with special
lines of credit (lineas especiales de credito), advances
(adelantos) or rediscount loans (redescuentos) obtained in
accordance with applicable rules and regulations of the
Central Bank or other applicable rules and regulations
governing such special lines of credit, advances or rediscount
loans. "Lineas especiales de credito" means those lines of
credit which are granted to the Issuer by or through local or
foreign governmental entities (including, without limitation,
the Central Bank, Banco de Inversion y Comercio Exterior S.A.
("XXXX"), FFRE, Seguros de Depositos S.A. ("Sedesa"),
development banks and export credit agencies) or international
multilateral lending organizations (including, without
limitation, the International Bank for Reconstruction and
Development and the Inter-American Development Bank), directly
or indirectly, in order to promote or develop the Argentine
economy; "redescuentos" means those rediscount loans
(including but not limited to loans granted in response to
circumstances of short-term, extraordinary illiquidity) which
are granted by the Central Bank, XXXX, FFRE, Sedesa, and by
other Argentine government entities, including the ones
granted pursuant to section 16 of Argentine Law No. 25,780
during the emergency period set forth under Argentine public
emergency law No. 25,561, and those rediscount loans and
overdrafts which are granted by the Central Bank to financial
entities going through liquidity and solvency problems,
including without limitation those entities subject to a
restructuring process as contemplated in Section 35 bis of the
Financial Entities Act;
(iv) any Lien on any Property existing thereon at the time of
acquisition of such Property and not created in connection
with such acquisition;
(v) any Lien on any Property securing an extension, renewal,
refinancing or refunding of Debt secured by any Lien referred
to in (i), (ii) or (iv) above; provided, that such new Lien is
limited to the Property which was subject to the prior Lien
immediately before such extension, renewal, refinancing or
refunding; and provided further that the principal amount of
Debt secured by the prior Lien immediately before such
extension, renewal, refinancing or refunding is not increased;
(vi) any Lien in the form of a Tax or other statutory lien or any
other Lien arising by operation of law; provided, however,
that any such Lien shall be discharged within thirty (30) days
after the date it is created or arises (unless contested in
good faith by the Issuer and for which adequate reserves have
been established to the extent required by the Accounting
Principles, and which shall be discharged within thirty (30)
days after final adjudication); or
(vii) any Lien granted in a Securitization; provided that the Net
Cash Proceeds thereof shall be applied in accordance with
Section 3.2.
18
"Person" means any natural person, corporation, company, partnership,
firm, voluntary association, joint venture, trust, business trust, joint stock
company, limited liability company, unincorporated association, unincorporated
organization, Authority or any other entity whether acting in an individual,
fiduciary or other capacity and whether or not having a separate legal
personality.
"Pesos" means the lawful currency of the Country.
"Plan" means the "Galicia Capitalization and Liquidity Plan" (as
supplemented on March 22, 2002, and April 11, 2002), submitted by the Issuer to
the Central Bank, in accordance with the Financial Entities Act, on March 21,
2002.
"Potential Event of Default" means any event or circumstance which would,
with notice, lapse of time, the making of a determination, or any combination
thereof, become an Event of Default.
"Preferred Shares" means preferred shares of Grupo Galicia issued pursuant
to the equity prospectus dated April 26, 2004 which will be automatically
converted into class "B" shares of Grupo Galicia on the first (1st) anniversary
date of their issuance or, if earlier, on the occurrence of a change of control
of Grupo Galicia.
"Process Agent" has the meaning set forth in Section 9.10(a).
"Property" means any asset, revenue or other property, whether tangible or
intangible, real or personal, including without limitation any right to receive
income.
"Purchase Agreement" means the purchase agreement to be entered into on or
prior to the Effective Date and executed and delivered by and between the Issuer
and Grupo Galicia.
"Rating Agencies" means Fitch, Xxxxx'x and/or Standard & Poor's, as the
context requires.
"Register" has the meaning set forth in Section 9.4(d).
"Registration Rights Agreement" means the registration rights agreement to
be dated as of the Effective Date and executed and delivered by Grupo Galicia.
"Related Parties" means, with respect to any specified Person, (i) such
Person's directors, officers, employees and agents of such Person, and (ii) such
Person's Affiliates and the directors and officers of and such Person's
Affiliates.
"Required Holders" means the Holders whose outstanding Restructured Dollar
Notes represent more than fifty percent (50%) of the aggregate outstanding
principal amount of the Restructured Dollar Notes.
"Requirement of Law" has the meaning set forth in Section 3.7.
19
"Responsible Officer" means, with respect to any Person, the Chairman,
Chief Executive Officer, Chief Financial Officer, President, Senior Executive
Vice President, Vice President, Treasurer or Assistant Treasurer of that Person.
"Restricted Payment" has the meaning set forth in Section 6.4(c).
"Restructured Bonds" means, collectively, (i) the Long-Term Bonds, (ii)
the Medium-Term Bonds, and (iii) the Subordinated Bonds.
"Restructured CCC Loan Agreement" means the dollar loan agreement, dated
as of April 27, 2004, between the Issuer and CCC as initial sole lender and
agent.
"Restructured CCC Loans" means, collectively, (i) the Restructured CCC
Long-Term Loans, (ii) the Restructured CCC Medium-Term Loans and (iii) the
Restructured CCC Subordinated Loans.
"Restructured CCC Long-Term Loans" means all and each of the long-term
loans provided for in the Restructured CCC Loan Agreement.
"Restructured CCC Medium-Term Loans" means all and each of the medium-term
loans provided for in the Restructured CCC Loan Agreement.
"Restructured CCC Subordinated Loans" means all and each of the
subordinated loans provided for in the Restructured CCC Loan Agreement.
"Restructured Credit Agreements" means, collectively, (i) this Agreement,
(ii) the Restructured IFC Loan Agreements, (iii) the Restructured IIC Loan
Agreements, (iv) the Restructured CCC Loan Agreement and (v) the New Trade Debt
Agreement.
"Restructured Debt" means, collectively, (i) the Restructured IFC Loans,
(ii) the Restructured Dollar Notes, (iii) the Restructured IIC Loans, (iv) the
Restructured CCC Loans, (v) the Restructured Bonds and (vi) the New Trade Debt.
"Restructured Dollar Notes" means, collectively, (i) the Long-Term Dollar
Notes, (ii) the Medium-Term Dollar Notes, (iii) the Subordinated Dollar Notes
and (iv) the Subordinated Dollar PIK Notes.
"Restructured IFC Loan Agreements" means, collectively, (i) the
Restructured IFC Long-Term Loan Agreement; (ii) the Restructured IFC Medium-Term
Loan Agreement and (iii) the Restructured IFC Subordinated Loan Agreement.
"Restructured IFC Loans" means, collectively, (i) the Restructured IFC
Long-Term Loans, (ii) the Restructured IFC Medium-Term Loans, and (iii) the
Restructured IFC Subordinated Loans.
"Restructured IFC Long-Term Loan Agreement" means the amended and restated
long-term loan agreement dated as of April 27, 2004, between the Issuer and IFC.
20
"Restructured IFC Long-Term Loans" means all and each of the loans
provided for in the Restructured IFC Long-Term Loan Agreement.
"Restructured IFC Medium-Term Loan Agreement" means the amended and
restated medium-term loan agreement dated as of April 27, 2004, between the
Issuer and IFC.
"Restructured IFC Medium-Term Loans" means all and each of the loans
provided for in the Restructured IFC Medium-Term Loan Agreement.
"Restructured IFC Subordinated Loan Agreement" means the amended and
restated subordinated loan agreement dated as of April 27, 2004, between the
Issuer and IFC.
"Restructured IFC Subordinated Loans" means all and each of the loans
provided for in the Restructured IFC Subordinated Loan Agreement.
"Restructured IIC Loan Agreements" means, collectively, (i) the
Restructured IIC Long-Term Loan Agreement; (ii) the Restructured IIC Medium-Term
Loan Agreement and (iii) the Restructured IIC Subordinated Loan Agreement.
"Restructured IIC Loans" means, collectively, (i) the Restructured IIC
Long-Term Loans, (ii) the Restructured IIC Medium-Term Loans, and (iii) the
Restructured IIC Subordinated Loans.
"Restructured IIC Long-Term Loan Agreement" means the amended and restated
long-term loan agreement dated as of April 27, 2004, between the Issuer and IIC.
"Restructured IIC Long-Term Loans" means all and each of the loans
provided for in the Restructured IIC Long-Term Loan Agreement.
"Restructured IIC Medium-Term Loan Agreement" means the amended and
restated medium-term loan agreement dated as of April 27, 2004, between the
Issuer and IIC.
"Restructured IIC Medium-Term Loans" means all and each of the loans
provided for in the Restructured IIC Medium-Term Loan Agreement.
"Restructured IIC Subordinated Loan Agreement" means the amended and
restated subordinated loan agreement dated as of April 27, 2004, between the
Issuer and IIC.
"Restructured IIC Subordinated Loans" means all and each of the loans
provided for in the Restructured IIC Subordinated Loan Agreement.
"Restructuring" has the meaning assigned to such term in the recitals
hereof.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Securitization" means the sale, assignment or other transfer to a third
party by the Issuer or any Significant Subsidiary of any of the Issuer's or such
Significant Subsidiary's present or
21
future revenues or other Property where the proceeds of any debt incurred by
such third-party or further transfer by such third party of such revenues or
other Property is paid (net of expenses and reserves) to the Issuer or such
Significant Subsidiary as purchase price or consideration for such revenues or
other Property.
"Senior Debt" means, collectively, (i) the Long-Term Debt and (ii) the
Medium-Term Debt.
"Senior Dollar Notes" means, collectively, (i) the Long-Term Dollar Notes
and (ii) the Medium-Term Dollar Notes.
"Significant Subsidiary" means any Subsidiary of the Issuer in which the
Issuer's and its other Subsidiaries' proportionate share of the total assets
(after intercompany eliminations) of the Subsidiary exceeds five percent (5%) of
the total assets of the Issuer and its Subsidiaries consolidated as of the end
of the most recently completed Fiscal Year; provided that such percentage shall
be eleven percent (11%) in the case of Subsidiaries not organized under the laws
of the Country.
"Signing Date" means April 27, 2004.
"Single Group Exposure Ratio" means at any calculation date: (i) the
aggregate amount of loans and any other credit facilities (including without
limitation contingent liabilities under guarantees and documentary credits)
granted by the Issuer to any Person that is a member of an Economic Group as
reflected in the Issuer's most recent unaudited quarterly accounts or audited
quarterly accounts (in the case of the last quarter of any Fiscal Year); divided
by (ii) the Available Capital.
"SOX Act" means the U.S. Xxxxxxxx-Xxxxx Act of 2002, as amended, and the
rules and regulations promulgated thereunder from time to time.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, or any successor thereto.
"Subordinated Bonds" means the Dollar-denominated notes (obligaciones
negociables) due 2019 to be issued by the Issuer under, and pursuant to the
terms and conditions applicable to, the Restructuring.
"Subordinated Debt" means, collectively, (i) the Subordinated Loans and
(ii) the Subordinated Bonds.
"Subordinated Dollar Applicable Margin" has the meaning assigned to such
term in Section 2.1(g).
"Subordinated Dollar Fixed Rate" means, for any Interest Period, (i) six
percent (6%) per annum for the period from and including January 1, 2004 to but
not including January 1, 2014, and (ii) eleven percent (11%) per annum at any
time thereafter.
22
"Subordinated Dollar Fixed Rate Holder" means, at any time, any Holder
holding any of the Subordinated Dollar Fixed Rate Notes.
"Subordinated Dollar Fixed Rate Note" means any subordinated Dollar
denominated note under this Agreement (other than the Subordinated Dollar PIK
Notes) bearing interest in cash at the Subordinated Dollar Fixed Rate plus
interest in the form of Subordinated Dollar Fixed Rate PIK Note at the
Subordinated Dollar PIK Rate or, as the context requires, the principal amount
of such note outstanding from time to time.
"Subordinated Dollar Fixed Rate PIK Note" means a Subordinated Dollar PIK
Note issued in respect of a Subordinated Dollar Fixed Rate Note.
"Subordinated Dollar Fixed Rate PIK Note 2014" means the Subordinated
Dollar Fixed Rate PIK Note due on January 1, 2014.
"Subordinated Dollar Fixed Rate PIK Note 2019" means the Subordinated
Dollar Fixed Rate PIK Note due on the Subordinated Dollar Maturity Date.
"Subordinated Dollar Fixed Rate Tranche" means the tranche of Subordinated
Dollar Fixed Rate Notes and Subordinated Dollar Fixed Rate PIK Notes.
"Subordinated Dollar Holders" means, collectively, (i) the Subordinated
Dollar Fixed Rate Holders and (ii) the Subordinated Dollar LIBOR Holders.
"Subordinated Dollar LIBOR Holder" means, at any time, any Holder holding
any of the Subordinated Dollar LIBOR Notes.
"Subordinated Dollar LIBOR Note" means any subordinated Dollar denominated
note under this Agreement (other than the Subordinated Dollar PIK Note) bearing
interest in cash at the Subordinated Dollar LIBOR Note Interest Rate plus
interest in the form of Subordinated Dollar LIBOR PIK Notes at the Subordinated
Dollar PIK Rate or, as the context requires, the principal amount of such note
outstanding from time to time.
"Subordinated Dollar LIBOR Note Interest Rate" means for any Interest
Period, the rate at which interest is payable on the Subordinated Dollar LIBOR
Note during that Interest Period, determined in accordance with Section
3.3(a)(v).
"Subordinated Dollar LIBOR Tranche" means the tranche of Subordinated
Dollar LIBOR Notes and Subordinated Dollar LIBOR PIK Notes.
"Subordinated Dollar LIBOR PIK Note" means a Subordinated Dollar PIK Note
issued in respect of Subordinated Dollar LIBOR Notes.
"Subordinated Dollar LIBOR PIK Note 2014" means the Subordinated Dollar
LIBOR PIK Note due on January 1, 2014.
"Subordinated Dollar LIBOR PIK Note 2019" means the Subordinated Dollar
LIBOR PIK Note due on the Subordinated Dollar Maturity Date.
23
"Subordinated Dollar Notes" means, collectively, (i) the Subordinated
Dollar Fixed Rate Notes and (ii) the Subordinated Dollar LIBOR Notes.
"Subordinated Dollar Maturity Date" means January 1, 2019.
"Subordinated Dollar PIK Notes" means, collectively, (i) the Subordinated
Dollar Fixed Rate PIK Notes and (ii) the Subordinated Dollar LIBOR PIK Notes.
"Subordinated Dollar PIK Note 2014" means, collectively, (i) the
Subordinated Dollar LIBOR PIK Note 2014 and (ii) Subordinated Dollar Fixed Rate
PIK Note 2014.
"Subordinated Dollar PIK Note 2019" means, collectively, (i) the
Subordinated Dollar LIBOR PIK Note 2019 and (ii) Subordinated Dollar Fixed Rate
PIK Note 2019.
"Subordinated Dollar Note Event of Acceleration" has the meaning assigned
to such term in Section 7.2.
"Subordinated Dollar PIK Rate" means five percent (5%) per annum.
"Subordinated Loans" means, collectively, (i) the Restructured IFC
Subordinated Loans, (ii) the Subordinated Dollar Notes, (iii) the Restructured
IIC Subordinated Loans, and (iv) the Restructured CCC Subordinated Loans.
"Subscription Agreement" means the subscription agreement, to be entered
into on or prior to the Effective Date and executed and delivered by and between
First Trust of New York, National Association, Representacion Permanente en
Argentina, as trustee on behalf of the Trust and Grupo Galicia.
"Subsidiary" means any Person of which, at the time of determination, the
Issuer and/or one or more of its Subsidiaries owns or Controls directly or
indirectly more than fifty percent (50%) of the shares of such Person's capital
voting stock.
"Surviving Debt" means all Debt of the Issuer and its Subsidiaries
outstanding immediately before and after giving effect to the transactions
contemplated in this Agreement and the other Transaction Documents, as set forth
on Schedule 4.17 hereto.
"Tax Benefit" has the meaning assigned to such term in Section 3.8(f).
"Taxes" means any present or future taxes, assessments, withholding
obligations, duties, fees and other charges of whatever nature levied, imposed
and/or collected by any Authority, and all interest, penalties, or similar
liabilities with respect thereto.
"Three Month Maturity Gap" means at any calculation date: (i) all of the
Indebtedness for Borrowed Money (to the extent required to be reflected on the
Issuer's balance sheets) owed by the Issuer to any Person maturing within ninety
(90) days of that date; minus (ii) all of the Indebtedness for Borrowed Money
(to the extent required to be reflected on the Issuer's balance sheets) owed to
the Issuer by any Person maturing within ninety (90) days of that date.
24
"Trade Creditor Holder" means any Holder who is also a party to the New
Trade Debt Agreement.
"Tranches" means, collectively, (i) the Long-Term Dollar LIBOR Tranche,
(ii) the Long-Term Dollar Fixed Rate Tranche, (iii) the Medium-Term Dollar LIBOR
Tranche, (iv) the Medium-Term Dollar Fixed Rate Tranche, (v) the Subordinated
Dollar LIBOR Tranche and (vi) the Subordinated Dollar Fixed Rate Tranche.
"Transaction Documents" means:
(i) the Financing Agreements;
(ii) the Restructured IFC Loan Agreements;
(iii) the Restructured IIC Loan Agreements;
(iv) the Restructured CCC Loan Agreement;
(v) the Restructured Bonds;
(vi) the Grupo Galicia Agreement;
(vii) the Subscription Agreement;
(viii) the Purchase Agreement;
(ix) the Trust Agreement;
(x) the Assignment Agreement;
(xi) the New Trade Debt Agreement;
(xii) the Registration Rights Agreement; and
(xiii) all and any other documents, instruments, indentures, fiscal
and paying agency agreements and/or other agreements relating
to, and/or in connection with, any of the foregoing agreements
and documents.
"Transactions" means the execution, delivery and performance by the Issuer
of the Restructured Credit Agreements and the documents pursuant to which the
Bond Exchange Offer is being consummated and all other agreements or instruments
to be executed or delivered in connection therewith or any of the transactions
contemplated thereby.
"Transfer" means, with respect to any Property, a sale, conveyance,
assignment, transfer, lease, or other disposition, in whole or in part, of such
Property.
"Transfer Agreement" means the transfer agreement to be entered into on or
prior to the Effective Date between the Issuer and Grupo Galicia.
25
"Trust" means the trust created pursuant to the Trust Agreement.
"Trust Agreement" means the trust agreement, to be entered into on or
prior to the Effective Date, between the Issuer and First Trust of New York,
National Association, Representacion Permanente en Argentina, as trustee.
"Unhedged Open Foreign Exchange Position" means at any calculation date:
(i) the Issuer's Foreign Currency Debt; minus (ii) the Issuer's Foreign Currency
Assets (expressed in Dollars) and reflected in the Issuer's most recent
unaudited quarterly accounts or audited quarterly accounts (in the case of the
last quarter of any Fiscal Year).
"Uruguayan Central Bank" means the Banco Central del Uruguay (the
Uruguayan Central Bank) and any other Authority that may replace or carry out
any part of the monetary, regulatory and supervisory functions thereof.
"U.S. Note" has the meaning set forth in Section 2.14(f).
"U.S. Person" has the meaning set forth in Rule 902 of Regulation S
promulgated under the United States Securities Act of 1933, as amended.
"Voting Stock" means, with respect to a Subsidiary or an Affiliate, any
stock of the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of such Person; provided, however, that, for the purposes hereof,
stock which carries only the right to vote conditionally on the happening of an
event shall not be considered Voting Stock, whether or not such event shall have
happened.
Section 1.2. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall, unless otherwise expressly provided, be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein and therein), (b) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Section 1.3. Accounting Terms; Accounting Principles. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with the applicable Accounting Principles; provided
that if the Issuer notifies the Agent that the Issuer requests an amendment to
any provision hereof to eliminate the effect of any change
26
occurring after the date hereof in the Accounting Principles or in the
application thereof on the operation of such provision (or if the Agent notifies
the Issuer that the Required Holders request an amendment to any provision
hereof for such purposes), regardless of whether any such notice is given before
or after such change in the applicable Accounting Principles or in the
application thereof, then such provision shall be interpreted on the basis of
the Accounting Principles as in effect and applied immediately before such
change shall have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith. For the avoidance of doubt,
the Unhedged Open Foreign Exchange Position of the Issuer, for the purposes of
Section 6.3(b), shall be calculated in accordance with the Central Bank's
regulations on a bank's foreign currency exposure.
ARTICLE II
The Restructured Dollar Notes
Section 2.1. Elections for Exchange of Original Dollar Loans. (a) Each
Holder, pursuant to its Election Notice, has elected (i) to exchange the
Adjusted Principal Amount of its Original Dollar Loans for one or more of (A)
Long-Term Dollar Notes, (B) Medium-Term Dollar Notes (with respect to both the
New Trade Debt Agreement and the Equity Participation Tender Offer), (C)
Subordinated Dollar Notes, (D) Preferred Shares (or Preferred Shares and cash,
if any) pursuant to the Equity Participation Tender Offer, (E) BODEN pursuant to
the BODEN Tender Offer and/or (F) cash payment under the Cash Tender Offer, in
each case as set forth on such Holder's Election Notice, (ii) that its Long-Term
Dollar Notes shall bear interest at the Long-Term Dollar LIBOR Note Interest
Rate or Long-Term Dollar Fixed Rate, in each case as specified on such Holder's
Election Notice, (iii) that its Medium-Term Dollar Notes shall bear interest at
the Medium-Term Dollar LIBOR Note Interest Rate or Medium-Term Dollar Fixed
Rate, in each case as specified on such Holder's Election Notice, and (iv) that
its Subordinated Dollar Notes shall bear interest at the Subordinated Dollar
LIBOR Note Interest Rate or Subordinated Dollar Fixed Rate, in each case as
specified on such Holder's Election Notice.
(b) Each Holder's elections referred to in clause (a) above are subject to
the proration and reallocation procedure set forth on Schedule 2.1 and reflected
in the Election Notice, and the obligation of each Holder to exchange its
Original Dollar Loans under this Agreement is subject to the satisfaction of the
conditions precedent set forth in Section 5.1 hereof.
(c) The Issuer shall, promptly after receipt of the allocations of
Long-Term Dollar Notes, Medium-Term Dollar Notes (with respect to both the New
Trade Debt Agreement and the Equity Participation Tender Offer), Subordinated
Dollar Notes, the Preferred Shares (or Preferred Shares and cash, if any), the
BODEN Tender Offer and the Cash Tender Offer from the Exchange Agent and the
Documentation Agent, provide to the Agent, at least six (6) Business Days prior
to the Effective date (i) a copy of such allocations together with the Exchange
Agent's and Documentation Agent's calculations of any proration factor, and (ii)
Schedule 5.1(b)(ii) hereto, together with the Issuer's calculation of the
Effective Date Interest Amounts.
(d) The Agent shall, promptly after receipt of such allocations, proration
calculations, Schedule 5.1(b)(ii) and Effective Date Interest Amount
calculations, in each case as referred to in clause (c) above, and in any event
at least five (5) Business Days prior to the Effective Date,
27
provide notice to the Holders, with a copy to the Issuer, of the Holders'
respective allocations of Long-Term Dollar LIBOR Notes, Long-Term Dollar Fixed
Rate Notes, Medium-Term Dollar LIBOR Notes, Medium-Term Dollar Fixed Rate Notes,
Subordinated Dollar LIBOR Notes, Subordinated Dollar Fixed Rate Notes, Preferred
Shares (or Preferred Shares and cash, if any), BODEN Tender Offer Exchange
Amounts and Cash Tender Offer Payment Amounts, as applicable, substantially in
the form attached hereto as Exhibit C (the "Allocation Notice"), together with a
copy of such allocations, proration calculations, Schedule 5.1(b)(ii) and
Effective Date Interest Amount calculations.
(e) The Documentation Agent shall, on the date that is at least two (2)
Business Days prior to the expected Effective Date, provide written notice to
the Long-Term Dollar LIBOR Holders, with a copy to the Issuer and the Agent, of
the percentage (the "Long-Term Dollar Applicable Margin") which shall be the
margin over the LIBO Rate set forth in Section 3.3(a)(i) required to determine
the Long-Term Dollar LIBOR Note Interest Rate; it being understood and agreed
that such Long-Term Dollar Applicable Margin shall be determined by the Agent on
such date based on conversion of the Long-Term Dollar Fixed Rate into a six
(6)-month LIBO Rate floating rate equivalent, utilizing a hypothetical interest
rate swap having the same principal amount, amortization and maturity as the
Long-Term Dollar Notes based upon the arithmetic mean of the three (3) middle
quotations, expressed as a percentage, from five (5) leading dealers in interest
rate swaps.
(f) The Documentation Agent shall, on the date that is at least two (2)
Business Days prior to the expected Effective Date, provide written notice to
the Medium-Term Dollar Fixed Rate Holders, with a copy to the Issuer and the
Agent, of the percentage (the "Medium-Term Dollar Fixed Rate") which shall be
the fixed rate equivalent of the Medium-Term Dollar LIBOR Note Interest Rate; it
being understood and agreed that such Medium-Term Dollar Fixed Rate shall be
determined by the Agent on such date based on conversion of the Medium-Term
Dollar LIBOR Note Interest Rate on such date into a fixed rate equivalent,
utilizing a hypothetical interest rate swap having the same principal amount,
amortization and maturity as the Medium-Term Dollar Notes based upon the
arithmetic mean of the three (3) middle quotations, expressed as a percentage,
from five (5) leading dealers in interest rate swaps.
(g) The Documentation Agent shall, on the date that is at least two (2)
Business Days prior to the expected Effective Date, provide written notice to
the Subordinated Dollar LIBOR Holders, with a copy to the Issuer and the Agent,
of the percentage (the "Subordinated Dollar Applicable Margin") which shall be
the margin over the LIBO Rate set forth in Section 3.3(a)(v) required to
determine the Subordinated Dollar LIBOR Note Interest Rate; it being understood
and agreed that such Subordinated Dollar Applicable Margin shall be determined
by the Agent on such date based on conversion of the Subordinated Dollar Fixed
Rate into a six (6)-month LIBO Rate floating rate equivalent, utilizing a
hypothetical interest rate swap having the same principal amount, amortization
and maturity as the Subordinated Dollar Notes based upon the arithmetic mean of
the three (3) middle quotations, expressed as a percentage, from five (5)
leading dealers in interest rate swaps.
Section 2.2. The Long-Term Dollar LIBOR Notes. On the Effective Date,
subject to the terms and conditions hereof, each Holder hereby agrees to
exchange (and the same shall be deemed to have been automatically exchanged) the
portion of the Adjusted Principal Amount of
28
its Original Dollar Loans in the amount set forth in such Holder's Election
Notice, as such amount may be adjusted pursuant to the proration and
reallocation procedure set forth in Schedule 2.1, for a Long-Term Dollar LIBOR
Note in the amount set forth with respect to such Holder in the Allocation
Notice (which amount shall be equal to, subject to the proration and allocation
procedure described above, one hundred percent (100%) of the portion of the
Adjusted Principal Amount of the Original Dollar Loans of such Holder exchanged
therefor).
Section 2.3. The Long-Term Dollar Fixed Rate Notes. On the Effective Date,
subject to the terms and conditions hereof, each Holder hereby agrees to
exchange (and the same shall be deemed to have been automatically exchanged) the
portion of the Adjusted Principal Amount of its Original Dollar Loans in the
amount set forth in such Holder's Election Notice, as such amount may be
adjusted pursuant to the proration and reallocation procedure set forth on
Schedule 2.1, for a Long-Term Dollar Fixed Rate Note in the amount set forth
with respect to such Holder in the Allocation Notice (which amount shall be
equal to, subject to the proration and allocation procedure described above, one
hundred percent (100%) of the portion of the Adjusted Principal Amount of the
Original Dollar Loans of such Holder exchanged therefor).
Section 2.4. The Medium-Term Dollar LIBOR Notes. On the Effective Date,
subject to the terms and conditions hereof, each Holder participating in the
Equity Participation Tender Offer and each Trade Creditor Holder hereby agrees
to exchange (and the same shall be deemed to have been automatically exchanged)
the portion of the Adjusted Principal Amount of its Original Dollar Loans in the
amount set forth in such Holder's or Trade Creditor Holder's, as the case may
be, Election Notice, as such amount may be adjusted pursuant to the proration
and reallocation procedure set forth in Schedule 2.1, for a Medium-Term Dollar
LIBOR Note in the amount set forth with respect to such Holder or Trade Creditor
Holder, as the case may be, in the Allocation Notice (which amount shall be
equal to, subject to the proration and allocation procedure described above, one
hundred percent (100%) of the portion of the Adjusted Principal Amount of the
Original Dollar Loans of such Holder or Trade Creditor Holder, as the case may
be, exchanged therefor).
Section 2.5. The Medium-Term Dollar Fixed Rate Notes. On the Effective
Date, subject to the terms and conditions hereof, each Holder participating in
the Equity Participation Tender Offer and each Trade Creditor Holder hereby
agrees to exchange (and the same shall be deemed to have been automatically
exchanged) the portion of the Adjusted Principal Amount of its Original Dollar
Loans in the amount set forth in such Holder's or Trade Creditor Holder's, as
the case may be, Election Notice, as such amount may be adjusted pursuant to the
proration and reallocation procedure set forth in Schedule 2.1, for a
Medium-Term Dollar Fixed Rate Note in the amount set forth with respect to such
Holder or Trade Creditor Holder, as the case may be, in the Allocation Notice
(which amount shall be equal to, subject to the proration and allocation
procedure described above, one hundred percent (100%) of the portion of the
Adjusted Principal Amount of the Original Dollar Loans of such Holder or Trade
Creditor Holder, as the case may be, exchanged therefor).
Section 2.6. The Subordinated Dollar LIBOR Notes. On the Effective Date,
subject to the terms and conditions hereof, each Holder hereby agrees to
exchange (and the same shall be deemed to have been automatically exchanged) the
portion of the Adjusted Principal Amount of its Original Dollar Loans in the
amount set forth in such Holder's Election Notice, as such
29
amount may be adjusted pursuant to the proration and reallocation procedure set
forth in Schedule 2.1, for a Subordinated Dollar LIBOR Note in the amount set
forth with respect to such Holder in the Allocation Notice (which amount shall
be equal to, subject to the proration and allocation procedure described above,
one hundred percent (100%) of the portion of the Adjusted Principal Amount of
the Original Dollar Loans of such Holder exchanged therefor).
Section 2.7. The Subordinated Dollar Fixed Rate Notes. On the Effective
Date, subject to the terms and conditions hereof, each Holder hereby agrees to
exchange (and the same shall be deemed to have been automatically exchanged) the
portion of the Adjusted Principal Amount of its Original Dollar Loans in the
amount set forth in such Holder's Election Notice, as such amount may be
adjusted pursuant to the proration and reallocation procedure set forth on
Schedule 2.1, for a Subordinated Dollar Fixed Rate Note in the amount set forth
with respect to such Holder in the Allocation Notice (which amount shall be
equal to, subject to the proration and allocation procedure described above, one
hundred percent (100%) of the portion of the Adjusted Principal Amount of the
Original Dollar Loans of such Holder exchanged therefor).
Section 2.8. Effect of Effective Date and Exchange. Effective upon the
occurrence of the Effective Date and the automatic exchange of Original Dollar
Loans for Restructured Dollar Notes, each Holder hereby consents to the
termination of the Existing Bank Debt of such Holder and the replacement with
the Restructured Bank Debt, and hereby waives any notice requirements contained
in the agreements and instruments evidencing such Existing Debt relating thereto
and hereby agrees that as of the Effective Date, such agreements and instruments
evidencing such Existing Bank Debt shall be superseded in all respects with this
Agreement and such agreements and instruments shall have no further force and
effect with respect to such Holder.
Section 2.9. Repayment of Long-Term Dollar Notes. The Issuer shall repay
to the Agent for the ratable account of the Long-Term Dollar Holders the
aggregate outstanding principal amount of the Long-Term Dollar Notes in nine (9)
semi-annual consecutive installments, the first (1st) installment being due on
January 1, 2010, and with respect to each subsequent installment, on the dates
set forth below opposite each relevant date, each of which shall be in an amount
equal to the original principal amount of such Holder's Long-Term Dollar Note
multiplied by the percentage set forth below opposite such installment below
(which installments shall be reduced, as a result of the application of any
prepayments of the Long-Term Dollar Notes pursuant to Section 3.1 or Section
3.2):
Date Payment Due Amortization
---------------- ------------
January 1, 2010 11.11%
July 1, 2010 11.11%
January 1, 2011 11.11%
July 1, 2011 11.11%
January 1, 2012 11.11%
July 1, 2012 11.11%
January 1, 2013 11.11%
July 1, 2013 11.11%
January 1, 2014 11.12%
30
provided, however, that the final principal installment shall be repaid on the
Long-Term Dollar Maturity Date and in any event shall be in an amount equal to
the aggregate principal amount of the Long-Term Dollar Notes outstanding on such
date.
Section 2.10. Repayment of Medium-Term Dollar Notes. The Issuer shall
repay to the Agent for the ratable account of the Medium-Term Dollar Holders the
aggregate outstanding principal amount of the Medium-Term Dollar Notes in eight
(8) semi-annual consecutive installments, the first (1st) installment being due
on July 1, 2006, and with respect to each subsequent installment, on the dates
set forth below opposite each relevant date, each of which shall be in an amount
equal to the original principal amount of such Holder's Medium-Term Dollar Note
multiplied by the percentage set forth below opposite such installment below
(which installments shall be reduced, as a result of the application of any
prepayments of the Medium-Term Dollar Notes, pursuant to Section 3.1 or Section
3.2):
Date Payment Due Amortization
---------------- ------------
July 1, 2006 12.50%
January 1, 2007 12.50%
July 1, 2007 12.50%
January 1, 2008 12.50%
July 1, 2008 12.50%
January 1, 2009 12.50%
July 1, 2009 12.50%
January 1, 2010 12.50%
provided, however, that the final principal installment shall be repaid on the
Medium-Term Dollar Maturity Date and in any event shall be in an amount equal to
the aggregate principal amount of the Medium-Term Dollar Notes outstanding on
such date.
Section 2.11. Repayment of Subordinated Dollar Notes. The Issuer shall
repay to the Agent for the ratable account of the Subordinated Dollar Holders
the aggregate outstanding principal amount of the Subordinated Dollar Notes on
the Subordinated Dollar Maturity Date, which shall be, with respect to each such
Holder, an amount equal to the original principal amount of such Holder's
Subordinated Dollar Note (which amount shall be reduced as a result of the
application of any prepayments thereof pursuant to Section 3.1).
Section 2.12. Repayment of Subordinated Dollar PIK Notes. The Issuer shall
repay to the Agent for the ratable account of the Subordinated Dollar Holders
(i) on January 1, 2014, the aggregate outstanding principal amount of the
Subordinated Dollar PIK Note 2014, which shall be, with respect to each such
Holder, an amount equal to interest accrued on the original principal amount of
such Holder's Subordinated Dollar Note at the Subordinated Dollar PIK Rate
through but not including January 1, 2014 and (ii) on the Subordinated Dollar
Maturity Date, the aggregate outstanding principal amount of the Subordinated
Dollar PIK Note 2019, which shall be, with respect to each such Holder, an
amount equal to interest accrued on the original principal amount of such
Holder's Subordinated Dollar Note at the Subordinated Dollar PIK Rate from
January 1, 2014 through and including the Subordinated Dollar Maturity Date (it
31
being understood and agreed that the calculation of interest pursuant to this
Section shall be adjusted to reflect any prepayments of the Subordinated Dollar
Notes pursuant to Section 3.1).
Section 2.13. Evidence of Debt. (a) Each Holder shall maintain in
accordance with its usual practice an account or accounts evidencing the Debt of
the Issuer to such Holder resulting from each Restructured Dollar Note owing to
such Holder, including the amounts of principal and interest payable and paid to
such Holder from time to time hereunder.
(b) The Agent shall maintain books and records in which it shall record
(i) the amount of each Restructured Dollar Note, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Issuer to each Holder hereunder and (iii) the amount of any sum received by the
Agent hereunder for the account of the Holders and each Holder's share thereof.
(c) Absent manifest error, the entries made in the accounts maintained
pursuant to paragraph (a) of this Section or in the books and records maintained
pursuant to paragraph (b) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Holder to maintain such accounts or the Agent to maintain such
books and records or any error therein shall not in any manner affect the
obligation of the Issuer to repay the Restructured Dollar Notes in accordance
with the terms of this Agreement.
Section 2.14. Notes. (a) Each of the Restructured Dollar Notes shall be
evidenced by: (i) (A) in the case of the Long-Term Dollar Notes, pagares
evidencing each installment of principal of such Long-Term Dollar Notes, (B) in
the case of the Medium-Term Dollar Notes, pagares evidencing each installment of
principal of such Medium-Term Dollar Notes, (C) in the case of the Subordinated
Dollar Notes, pagares evidencing each installment of principal of such
Subordinated Dollar Notes, and (D) in the case of the Subordinated Dollar PIK
Notes, pagares evidencing each installment of principal of such Subordinated
Dollar PIK Notes; and (ii) (A) in the case of the Long-Term Dollar Notes,
pagares evidencing interest as calculated pursuant to Section 3.3 for such
Interest Period on such Long-Term Dollar Notes, (B) in the case of the
Medium-Term Dollar Notes, pagares evidencing interest as calculated pursuant to
Section 3.3 for such Interest Period on such Medium-Term Dollar Notes, (C) in
the case of the Subordinated Dollar Notes, pagares evidencing interest as
calculated pursuant to Section 3.3 for such Interest Period on such Subordinated
Dollar Notes, and (D) in the case of the Subordinated Dollar PIK Notes, pagares
evidencing interest as calculated pursuant to Section 3.3 for such Interest
Period on such Subordinated Dollar PIK Notes (each such xxxxxx described in this
Section 2.14(a) evidencing an installment of principal or interest, an
"Argentine Note," and collectively the "Argentine Notes"), each duly executed
and delivered by the Issuer substantially in form of Exhibit D-1 (with
applicable modifications).
(b) The Issuer hereby authorizes the issuance and delivery of each
Argentine Note issued in accordance with the terms and conditions of this
Agreement and each such Note shall: (i) be dated the date of the execution
thereof, (ii) in the case of each Argentine Note evidencing a payment of an
installment of principal, such Argentine Note shall be in a principal amount
equal to each installment of principal of the Restructured Dollar Note evidenced
thereby, (iii) in the case of each Argentine Note evidencing a payment of
interest due in an Interest Period, each
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Argentine Note shall be in a principal amount equal to all interest scheduled to
be payable on the last day of such Interest Period with respect to the
Restructured Dollar Notes, (iv) bear interest if applicable at the Default
Interest Rate, as specified in Section 3.3(c), (v) be payable on demand (a la
vista), and (vi) be non-negotiable instruments (no a la orden).
(c) On the last day of each Interest Period with respect to the LIBOR
Notes, the Issuer shall execute and deliver to each Holder an Argentine Note in
respect of the immediately succeeding Interest Period which shall have been
appropriately completed to include the information specified in subsection (b)
hereof; provided, (i) if the Issuer has paid the interest accrued during the
preceding Interest Period, the new Argentine Note or Argentine Notes shall be a
replacement of (and not in addition to) the Argentine Note or Argentine Notes
then in effect evidencing interest; (ii) if the Issuer fails to replace any
Argentine Note or Argentine Notes evidencing interest but nonetheless pays the
interest accrued during the preceding Interest Period, each affected Holder
shall be entitled to claim under such existing Argentine Note or Argentine Notes
the amount of interest that may accrue in the succeeding Interest Period or
Interest Periods; and (iii) if the Issuer fails to pay the interest accrued
during the preceding Interest Period, the Issuer shall remain obligated to
execute and deliver to each affected Holder an Argentine Note or Argentine Notes
in respect of the immediately succeeding Interest Periods, which shall be in
addition to (and not a replacement of) the Argentine Note or Argentine Notes
then in effect evidencing interest. Promptly upon the payment in full of all
amounts due under any Argentine Note or Argentine Notes evidencing interest on
the LIBOR Notes, the applicable Holder shall return such Argentine Note or
Argentine Notes to the Issuer marked "cancelled" in exchange for the replacement
Argentine Note required to be provided in accordance with this subsection (c).
(d) Promptly: (i) upon the payment in full (as a result of a scheduled
payment or prepayment, in whole or in part) of all amounts due under any
Argentine Note evidencing the installments of principal of the Restructured
Dollar Notes, the applicable Holder shall return such Argentine Notes to the
Issuer marked "cancelled", and (ii) upon the payment in part of any amounts due
under any of the Argentine Notes evidencing an installment of principal of the
Restructured Dollar Notes, the applicable Holder shall return such Argentine
Note to the Issuer marked "cancelled" in exchange for new Argentine Notes
executed and delivered by the Issuer to such Holder in a principal amount equal
to the amount of such installment of principal of the Restructured Dollar Notes
that remains outstanding after such payment.
(e) Notwithstanding the fact that each Argentine Note shall be payable on
demand, no Holder shall exercise such demand right unless a payment default or
an acceleration pursuant to Article VII has occurred and is continuing. The
issuance of the Argentine Notes is not intended to, and shall not, constitute a
novation of any of the Restructured Dollar Notes provided for hereunder.
(f) The Issuer's obligation to pay the principal of, and interest on, each
of the Restructured Dollar Notes shall also be evidenced by a promissory note
duly executed and delivered by the Issuer substantially in form of Exhibit D-2
(with applicable modifications) (each such promissory note, a "U.S. Note," and
collectively with the Argentine Notes, the "Notes"). The Issuer hereby
authorizes the issuance and delivery of each U.S. Note issued in accordance with
the terms and conditions of this Agreement and each such Note shall: (i) be
payable to the
33
order of such Holder, (ii) be dated the Effective Date and (iii) be in a stated
principal amount equal to the Long-Term Dollar LIBOR Notes, Long-Term Dollar
Fixed Rate Notes, Medium-Term Dollar LIBOR Notes, Medium-Term Dollar Fixed Rate
Notes, Subordinated Dollar LIBOR Notes, Subordinated Dollar Fixed Rate Notes,
Subordinated Dollar LIBOR PIK Notes or Subordinated Dollar Fixed Rate PIK Notes
evidenced thereby, as applicable, relating to such Holder, or, with respect to
any Holder that becomes a party hereto pursuant to an Assignment and Acceptance,
be in a stated principal amount equal to the Long-Term Dollar LIBOR Notes,
Long-Term Dollar Fixed Rate Notes, Medium-Term Dollar LIBOR Notes, Medium-Term
Dollar Fixed Rate Notes, Subordinated Dollar LIBOR Notes, Subordinated Dollar
Fixed Rate Notes, Subordinated Dollar LIBOR PIK Notes or Subordinated Dollar
Fixed Rate PIK Notes, as applicable, assigned to such Holder pursuant to such
Assignment and Acceptance and be dated the effective date of such Assignment and
Acceptance.
Section 2.15. Subordination. (g) The Issuer agrees, and each Holder by
accepting Subordinated Dollar Notes agrees, that the Debt evidenced thereby and
all other obligations in respect thereof are subordinated in right of payment to
all non-subordinated indebtedness of the Issuer in accordance with the
provisions of Communique "A" No. 2970 and other complementary regulations issued
by the Central Bank. Therefore, in the event of bankruptcy of the Issuer, the
Subordinated Dollar Notes will only have priority in payment with respect to the
shareholders of the Issuer and the Holders thereof hereby waive any general or
special privilege that they may have.
(h) The lack of payment of principal of (and premium and Additional
Amounts, if any) and interest on any or all of the Subordinated Dollar Notes
shall not be considered an event which gives rise to the cancellation of the
Issuer's authorization to operate as a financial institution, provided that: (i)
the Issuer and the Holders of Subordinated Dollar Notes agree, within the year
in which such amounts became due and payable, on the manner in which payment of
amounts due shall be made; (ii) the Issuer complies regularly with payments on
its non-subordinated indebtedness; (iii) the Issuer does not pay cash dividends
to its shareholders; and (iv) the Issuer does not pay any fees to its directors
and comptrollers (sindicos), except to those that exercise executive functions.
(i) Failure by the Issuer to comply with these provisions shall not render
the Central Bank liable in any respect.
ARTICLE III
General Provisions Applicable to the Restructured Dollar Notes
Section 3.1. Optional Prepayment of Restructured Dollar Notes. (a) Without
prejudice to the provisions of Section 3.6, Section 3.8 and Section 9.3(d), the
Issuer may prepay, subject to and in accordance with Section 6.4(g), at any time
and from time to time all or any part of the Restructured Dollar Notes without
premium or penalty, by giving an irrevocable notice to the Agent (which notice
the Agent shall promptly upon receipt thereof advise the Holders of the contents
thereof) at least five (5) Business Days before the date of prepayment
specifying the
34
type of Restructured Dollar Note, the prepayment date (which shall be a Business
Day) and principal amount of the Restructured Dollar Notes to be prepaid if, and
only if:
(i) the Issuer simultaneously (A) prepays, subject to and in accordance
with Section 6.4(g), the Long-Term Debt and (y) solely with respect
to prepayments of Medium-Term Dollar Notes, the other Medium-Term
Loans and (z) solely with respect to prepayments of Subordinated
Dollar Notes, the other Subordinated Loans, in each case on a pro
rata and pari passu basis taking into account the respective
remaining principal amounts thereof at such time outstanding and (B)
pays all accrued interest and "increased costs" (if any) related
thereto;
(ii) the Issuer pays on the date of any such prepayment all accrued
interest and Increased Costs (if any) on the amount of the
Restructured Dollar Notes to be prepaid, together with all other
amounts then due and payable under this Agreement;
(iii) for a partial prepayment, that prepayment is an amount equal to
either of (y) five million Dollars ($5,000,000) or any integral
multiple of one million Dollars ($1,000,000) in excess thereof, or
(z) the then full outstanding amount of the Restructured Dollar
Notes to be prepaid; and
(iv) the Issuer delivers to the Agent, prior to the date of such
prepayment, evidence satisfactory to the Agent in its reasonable
discretion that all necessary Authorizations, if any, with respect
to the prepayment have been obtained and a certification from a
Responsible Officer of the Issuer that all such Authorizations have
been obtained and that such prepayment is in accordance with the
terms and conditions of this Agreement and the other Transaction
Documents.
(b) Amounts of principal prepaid under this Section shall be allocated by
the Agent pro rata between the Restructured Dollar Notes being prepaid in
proportion to their respective principal amounts outstanding and ratably to the
installments thereof.
(c) Any principal amount of any of the Restructured Dollar Notes prepaid
under this Agreement may not be re-borrowed.
(d) Prepayment of any principal amount of any of the Subordinated Dollar
Notes shall be subject to (i) prior authorization by the Argentine
Superintendency of Financial Institutions (Superintendencia de Entidades
Financieras y Cambiarias) and (ii) that after giving effect to any such
prepayment, the Issuer's Available Capital remains equal to or greater than any
mandatory minimum capital requirement set forth by the Central Bank.
Section 3.2. Mandatory Prepayment of Restructured Dollar Notes. (a) If the
Issuer or any Significant Subsidiary incurs any Debt that is governed by laws
other than those of the Country in excess of an aggregate amount of twenty-five
million Dollars ($25,000,000) (or the Dollar Equivalent in any other currency)
per Fiscal Year, then the Issuer shall (and shall cause such Significant
Subsidiary to) apply fifty percent (50%) of any portion of the Net Cash Proceeds
of such transaction that are in excess of the aggregate amount specified in this
paragraph: (i) first, to prepay or redeem, as applicable, the Long-Term Dollar
Notes and the
35
other Long-Term Debt in the inverse order of maturity (together with all accrued
interest and Increased Costs, if any, on the Long-Term Dollar Notes and accrued
interest and "increased costs", if any, in respect of the other Long-Term Debt)
on a pro rata and pari passu basis taking into account the respective principal
amounts thereof at the time outstanding; and (ii) second, if the Long-Term
Dollar Notes and the other Long-Term Debt (together with all accrued interest
and Increased Costs, if any, on the Long-Term Dollar Notes and accrued interest
and "increased costs", if any, in respect of the other Long-Term Debt) have been
paid in full, to prepay or redeem, as applicable, the Medium-Term Dollar Notes
and the other Medium-Term Debt (together with all accrued interest and Increased
Costs, if any, in respect of the Medium-Term Dollar Notes and accrued interest
and "increased costs", if any, in respect of the other Medium-Term Debt) in the
inverse order of maturity on a pro rata and pari passu basis taking into account
the respective principal amounts thereof at the time outstanding; provided that
(i) the Issuer or such Significant Subsidiary shall not be required to so apply
Net Cash Proceeds received by the Issuer or such Significant Subsidiary from the
incurrence of Debt having an original maturity of one (1) year or less, and (ii)
the Issuer or any Significant Subsidiary shall apply twenty-five percent (25%)
(and not fifty percent (50%) as stated above) of the Net Cash Proceeds, from any
Securitization (whether or not such Securitization involves the incurrence of
Debt) as to which all of the material terms are governed by Argentine law and
which is issued in the Argentine market, to Debt prepayments or redemptions as
described above, and (iii) any Debt incurred in excess of twenty-five million
Dollars ($25,000,000) (or the Dollar Equivalent in any other currency) per
Fiscal Year, a portion of which is required to be used to prepay or redeem, as
applicable, Debt pursuant to this paragraph, shall always have a maturity date
and interest rate provisions that, in each case, are more beneficial to the
Issuer as compared with the Restructured Debt most similar in term and type to
the Debt so incurred).
(b) If the Issuer or any Significant Subsidiary effects a Transfer of
Property or receives Property or insurance claims payments in connection with
any Property in excess of an aggregate amount of ten million Dollars
($10,000,000) (or the Dollar Equivalent in any other currency) per Fiscal Year
(including any Capital Stock of a Person other than the Issuer) pursuant to
Section 6.4(e), then the Issuer shall (and shall cause such Significant
Subsidiary to) apply seventy-five percent (75%) of any portion of the Net Cash
Proceeds of such transaction that are in excess of the aggregate amount
specified in this paragraph: (i) first, to prepay or redeem, as applicable, the
Long-Term Dollar Notes and the other Long-Term Debt in the inverse order of
maturity (together with all accrued interest and Increased Costs, if any, on the
Long-Term Dollar Notes and accrued interest and "increased costs", if any, in
respect of the other Long-Term Debt) on a pro rata and pari passu basis taking
into account the respective principal amounts thereof at the time outstanding;
and (ii) second, if the Long-Term Dollar Notes and the other Long-Term Debt
(together with all accrued interest and Increased Costs, if any, on the
Long-Term Dollar Notes and accrued interest and "increased costs", if any, in
respect of the other Long-Term Debt) have been paid in full, to prepay or
redeem, as applicable, the Medium-Term Dollar Notes and the other Medium-Term
Debt (together with all accrued interest and Increased Costs, if any, in respect
of the Medium-Term Dollar Notes and accrued interest and "increased costs", if
any, in respect of the other Medium-Term Debt) in the inverse order of maturity
on a pro rata and pari passu basis taking into account the respective principal
amounts thereof at the time outstanding; provided that (i) the Issuer or such
Significant Subsidiary shall not be required to cause Net Cash Proceeds received
by the Issuer or such Significant Subsidiary from the Transfer of any fixed
assets, or the Transfer of any Capital Stock or Voting Stock in
36
Permitted Businesses if such Net Cash Proceeds are reinvested, by such Person,
by a date no later than six (6) months from the date of such Transfer in either
fixed assets or Permitted Businesses, respectively (it being understood that if
at the end of such six-month period no such reinvestment has been consummated,
the Issuer or such Significant Subsidiary shall immediately effect such
prepayment or redemption) and (ii) one hundred percent (100%) of any portion of
the Net Cash Proceeds (without deducting any amount or applying any basket) of
the Transfer of Headquarter Offices shall be applied to Debt prepayment or
redemptions as described above. The Net Cash Proceeds from any Securitization
(whether or not such Securitization involves the incurrence of Debt) as to which
all of the material terms are governed by Argentine law, and which is issued in
the Argentine market, shall be applied in accordance with Section 3.2(a).
(c) If the Issuer or any Subsidiary of the Issuer issues equity securities
privately (other than with respect to the capitalization of any Subordinated
Debt of the Issuer held by Grupo Galicia) or in the capital markets, then fifty
percent (50%) of any portion of the Net Cash Proceeds of such transaction shall
be applied by the Issuer: (i) first, to prepay or redeem, as applicable, the
Long-Term Dollar Notes and the other Long-Term Debt in the inverse order of
maturity (together with all accrued interest and Increased Costs, if any, on the
Long-Term Dollar Notes and accrued interest and "increased costs", if any, in
respect of the other Long-Term Debt) on a pro rata and pari passu basis taking
into account the respective principal amounts thereof at the time outstanding;
and (ii) second, if the Long-Term Dollar Notes and the other Long-Term Debt
(together with all accrued interest and Increased Costs, if any, on the
Long-Term Dollar Notes and accrued interest and "increased costs", if any, in
respect of the other Long-Term Debt) have been paid in full, to prepay or
redeem, as applicable, the Medium-Term Dollar Notes and the other Medium-Term
Debt (together with all accrued interest and Increased Costs, if any, in respect
of the Medium-Term Dollar Notes and accrued interest and "increased costs", if
any, in respect of the other Medium-Term Debt) in the inverse order of maturity
on a pro rata and pari passu basis taking into account the respective principal
amounts thereof at the time outstanding.
(d) If, pursuant to the Restructuring and after giving effect to the Cash
Tender Offer, the Issuer shall have an amount greater than five million Dollars
($5,000,000) remaining from the amount originally allocated for the consummation
of the Cash Tender Offer, the Issuer shall apply on the Effective Date
one-hundred percent (100%) of such remaining amount to prepay or redeem, as
applicable, the Long-Term Dollar Notes and the other Long-Term Debt on a pro
rata and pari passu basis taking into account the respective principal amounts
thereof at the time outstanding. Amounts of principal prepaid under this
subsection (d) shall be allocated by the Agent pro rata between the Long-Term
Dollar Notes being prepaid in proportion to their respective principal amounts
outstanding and ratably to the installments thereof.
(e) Any mandatory prepayment of the Long-Term Dollar Notes or the
Medium-Term Dollar Notes pursuant to this Section 3.2 shall be made without
premium or penalty other than as provided in Section 9.3(d) together with (i)
accrued interest to the date of such prepayment on the principal amount prepaid
and on any other amount payable pursuant to Section 3.9(f) and (ii) any
Increased Costs then payable, together with all other amounts then payable under
this Agreement.
Section 3.3. Interest. (a) Regular Interest. Subject to the provisions of
clauses (b) and (c) of this Section 3.3, the Issuer shall pay interest on the
unpaid principal amount of each
37
Restructured Dollar Note owing to each Holder until such principal amount shall
be paid in full, in arrears, on each Interest Payment Date at the following
rates per annum:
(i) Each Long-Term Dollar LIBOR Note shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum
equal to the LIBO Rate for such Interest Period plus the Long-Term
Dollar Applicable Margin.
(ii) Each Long-Term Dollar Fixed Rate Note shall bear interest for each
day during each Interest Period with respect thereto at the
Long-Term Dollar Fixed Rate.
(iii) Each Medium-Term Dollar LIBOR Note shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum
equal to the LIBO Rate for such Interest Period plus three and
one-half percent (3.5%) per annum.
(iv) Each Medium-Term Dollar Fixed Rate Note shall bear interest for each
day during each Interest Period with respect thereto at the
Medium-Term Dollar Fixed Rate.
(v) Each Subordinated Dollar LIBOR Note shall bear interest for each day
during each Interest Period with respect thereto (A) in cash at a
rate per annum equal to the LIBO Rate for such Interest Period plus
the Subordinated Dollar Applicable Margin, and (B) in the form of
(I) a Subordinated Dollar LIBOR PIK Note 2014 at the Subordinated
Dollar PIK Rate for Interest Periods through but not including
January 1, 2014 and (II) a Subordinated Dollar LIBOR PIK Note 2019
at the Subordinated Dollar PIK Rate for any Interest Period
thereafter.
(vi) Each Subordinated Dollar Fixed Rate Note shall bear interest for
each day during each Interest Period with respect thereto (A) in
cash at the Subordinated Dollar Fixed Rate, and (B) in the form of
(I) a Subordinated Dollar Fixed Rate PIK Note 2014 at the
Subordinated Dollar PIK Rate for Interest Periods through but not
including January 1, 2014 and (II) a Subordinated Dollar Fixed Rate
PIK Note 2019 at the Subordinated Dollar PIK Rate for any Interest
Period thereafter.
(vii) Each Subordinated Dollar LIBOR PIK Note shall bear interest for each
day during each Interest Period with respect thereto (A) in cash at
a rate per annum equal to the LIBO Rate for such Interest Period
plus the Subordinated Dollar Applicable Margin, and (B) in the form
of (I) a Subordinated Dollar LIBOR PIK Note 2014 at the Subordinated
Dollar PIK Rate for Interest Periods through but not including
January 1, 2014 and (II) a Subordinated Dollar LIBOR PIK Note 2019
at the Subordinated Dollar PIK Rate for any Interest Period
thereafter.
(viii) Each Subordinated Dollar Fixed Rate PIK Note shall bear interest
for each day during each Interest Period with respect thereto (A) in
cash at the Subordinated Dollar Fixed Rate, and (B) in the form of
(I) a Subordinated Dollar Fixed Rate PIK Note 2014 at the
Subordinated Dollar PIK Rate for Interest Periods through but not
including January 1, 2014 and (II) a Subordinated Dollar Fixed Rate
PIK Note 2019 at the Subordinated Dollar PIK Rate for any Interest
Period thereafter.
38
(b) Change in Interest Period. Without prejudice to the provisions of
Section 3.5, if at any time the Issuer fails to pay any amount of principal of,
or interest on, the Restructured Dollar Notes when due (whether at stated
maturity or upon acceleration or otherwise), and any part of that amount remains
unpaid on the third (3rd) Business Day immediately preceding any Interest
Payment Date falling after that amount became due, then:
(i) the Agent (acting at the prior written direction of the Required
Holders) may elect that the duration of the Interest Period
commencing on that Interest Payment Date shall be one (1) month and
shall notify the Issuer of that election; and
(ii) unless an Event of Default or Potential Event of Default has
occurred and is continuing, the Agent shall reinstate Interest
Periods of six (6) months as of the first (1st) Interest Payment
Date occurring at least three (3) Business Days after the failure to
pay such principal and/or interest is remedied in full and the Agent
shall notify the Issuer of that reinstatement.
(c) Default Interest Rate. (i) Without limiting the remedies available to
the Holders under this Agreement or otherwise (and to the maximum extent
permitted by Applicable Law), if the Issuer fails to make any payment of
principal of or interest on or any other payment provided for herein when due
(whether at stated maturity or upon acceleration or otherwise), the Issuer shall
pay interest on the amount of that payment due and unpaid at the Default
Interest Rate.
(ii) Interest at the rate referred to in clause (i) above shall accrue
from and including the date on which payment of the relevant overdue
amount became due and was not paid until and including the date of
actual payment of that amount (as well after as before judgment),
and shall be payable on demand by the Holders of the related Notes
or, if not demanded, on each Interest Payment Date falling after any
such overdue amount became due.
Section 3.4. Agent's Fees. As consideration for the services to be provide
by the Agent hereunder, the Issuer shall pay to the Agent for the Agent's own
account such fees as may from time to time be agreed between the Issuer and the
Agent in writing. The obligation of the Issuer to pay such fees (to the extent
already accrued) to the Agent shall survive the termination of this Agreement
and of the earlier resignation or removal of the Agent.
Section 3.5. Alternate Rate of Interest. If on any Interest Determination
Date (the "Affected Interest Period"):
(a) the Agent determines (which determination shall be conclusive absent
manifest error) that, by reason of changes arising after the Effective Date,
adequate and reasonable means do not exist for ascertaining the LIBO Rate for
such Interest Period; or
(b) the Agent is notified in writing by the Required Holders that the LIBO
Rate for such Interest Period, by reason of changes arising after the Effective
Date, will not adequately and fairly reflect the cost to such Holders of making
or maintaining their LIBOR Notes for such Interest Period,
39
then the Agent shall give notice thereof to the Issuer and the Holders as soon
as practicable thereafter, and the interest rate during such Interest Period
applicable to each LIBOR Note effective from the commencement of such Interest
Period shall be the sum of (i) the weighted average of the amount necessary to
compensate each Holder for its cost of obtaining, as of the commencement of such
Interest Period, funds for such Interest Period in an amount equal to the
principal amount of the applicable LIBOR Note, weighted in accordance with the
aggregate principal amount of LIBOR Notes outstanding owed to each Holder at
such time (based solely on a certificate delivered by a Responsible Officer of
each Holder to the Agent setting forth the basis of such Holder's computation of
such amount for such Holder, which certificate shall be conclusive and binding
for all purposes absent manifest error) and promptly notified in writing to the
Holders and the Issuer, plus (ii)(A) the Long-Term Dollar Applicable Margin, in
the case of each Long-Term Dollar LIBOR Note, (B) three and one-half percent
(3.5%) in the case of each Medium-Term Dollar LIBOR Note, and (C) the
Subordinated Dollar Applicable Margin, in the case of each Subordinated Dollar
LIBOR Note and each Subordinated Dollar LIBOR PIK Note. Each Holder shall
deliver such certificate to the Agent as promptly as practicable after receipt
of the Agent's notice referred to above; provided that in the event that any of
the events described in this Section 3.5 shall have occurred, the Issuer shall
have the option, at it sole discretion, to prepay, without premium or penalty,
any of the LIBOR based Restructured Dollar Notes affected thereby.
Section 3.6. Increased Costs, Etc. (a) Except with respect to Taxes which
shall be governed by Section 3.8, if any Change in Law or compliance with any
guideline or request (that was not in effect as of the date hereof or otherwise
not required) from any Authority (whether or not having the force of law) shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Holder;
(ii) impose on any Holder or the London interbank market any other
condition affecting this Agreement or LIBOR Notes held by such
Holder; or
(iii) impose on any Holder any other condition;
and the result of any of the foregoing shall be to increase the cost to such
Holder of maintaining any LIBOR Note or to reduce the amount of any sum received
or receivable by such Holder hereunder (whether of principal, interest or
otherwise) in connection with such LIBOR Notes, then the Issuer will promptly
pay to such Holder such additional amount or amounts as will compensate such
Holder for such additional costs incurred or reduction suffered.
(b) If any Holder determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Holder's capital or on the capital of such Holder's holding company, if any, as
a consequence of this Agreement or the Restructured Dollar Notes made by such
Holder to a level below that which such Holder or such Holder's holding company
could have achieved but for such Change in Law (taking into consideration such
Holder's policies and the policies of such Holder's holding company with respect
to capital adequacy), then, from time to time, the Issuer will promptly pay to
such Holder
40
such additional amount or amounts as will compensate such Holder or such
Holder's holding company for any such reduction suffered.
(c) A certificate of a Holder (an "Increased Costs Certificate") setting
forth in reasonable detail the amount or amounts necessary to compensate such
Holder or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section shall be delivered to the Issuer and shall be conclusive
absent demonstrable error.
(d) Failure or delay on the part of any Holder to demand compensation
pursuant to this Section shall not constitute a waiver of such Holder's right to
demand such compensation; provided that the Issuer shall not be required to
compensate a Holder pursuant to this Section 3.6 for any increased costs or
reductions incurred more than one hundred and eighty (180) days prior to the
date that such Holder notifies the Issuer of the Change in Law giving rise to
such increased costs or reductions and of such Holder's intention to claim
compensation therefore; provided, further, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the one hundred and
eighty (180) day period referred to above shall be extended to include the
period of retroactive effect thereof.
Section 3.7. Illegality. Notwithstanding any other provision of this
Agreement, in the event of any Change in Law or determination, order, injunction
or judgment of an arbitrator or a court or other Authority ("Requirement of
Law") binding on any Holder makes it unlawful for such Holder at its Holder
Address to purchase, own, hold or maintain its Restructured Dollar Notes, then
such Holder shall promptly notify the Issuer (by means of notice through the
Agent) thereof following which, if such Requirement of Law shall so mandate, the
Restructured Dollar Notes of such Holder shall be prepaid by the Issuer on or
before such date as shall be mandated by such Requirement of Law; provided,
however, that if it is lawful for such Holder to maintain the Restructured
Dollar Notes through the last day of the current Interest Period, such payment
shall be made on such date. Each Holder agrees that, upon the occurrence of any
event giving rise to the operation of this Section 3.7 with respect to such
Holder, it will, if requested by the Issuer, prior to any prepayment, use
reasonable efforts (subject to overall policy considerations of such Holder) to
designate another Holder Address for any Note affected by such event; provided,
however, that such designation is made on such terms that, in the sole judgment
of such Holder, such Holder and its Holder Address suffer no economic, legal or
regulatory disadvantage, with the object of mitigating or avoiding the
consequences of the event giving rise to the operation of such Section.
Section 3.8. Taxes. The Issuer covenants and agrees that:
(a) Subject to clause (c) of this Section 3.8, all payments on account of
principal of and interest on the Restructured Dollar Notes, fees and all other
amounts payable hereunder or under the Notes by the Issuer to or for the account
of the Agent and each Holder including amounts payable under clauses (b), (c)
and (e) of this Section 3.8, shall be made free and clear of, and without
deduction or withholding for or by reason of, any and all present and future
income, stamp, excise, asset, value added and any other Taxes and levies,
imposts, deductions, charges and withholdings whatsoever now or hereafter
imposed, assessed, levied or collected by the Country or any political
subdivision or taxing authority thereof or therein together with interest
thereon and penalties with respect thereto, if any, on, under or in respect of
this
41
Agreement or the Notes, principal of and interest on the Restructured Dollar
Notes, fees and all other amounts payable hereunder or under the Notes, the
registration, notarization or other formalization of any thereof, any payments
of principal, interest, charges, fees or other amounts made on, under or in
respect thereof (but excluding any tax imposed on or measured by the net income
of a Holder pursuant to the laws of the jurisdiction in which it is organized or
the jurisdiction in which the principal office of such Holder or the office
through which the Holder holds the Notes is located or any subdivision thereof
or therein) (herein collectively called "Argentine Taxes"), all of which
Argentine Taxes will be paid by the Issuer, for its own account, prior to the
date on which penalties attach thereto.
(b) The Issuer shall indemnify the Agent and each Holder against, and
reimburse the Agent and each Holder on demand for, any Argentine Taxes
(including any Argentine Taxes imposed on amounts payable under this Section
3.8(b)) imposed on or paid by the Agent or such Holder and any loss, liability,
claim or expense, including interest, penalties and legal fees, which the Agent
or such Holder may incur at any time arising out of or in connection with any
failure of the Issuer to make any payments of Argentine Taxes when due.
(c) To the extent that the Issuer is required by applicable law, decree or
regulation to deduct or withhold Argentine Taxes from any amounts payable on,
under or in respect of the Financing Agreements, the Issuer shall pay such
additional amounts as may be required, after deduction or withholding of
Argentine Taxes (including such withholding or deduction applicable to such
additional amounts), to enable the Agent and each Holder to receive from the
Issuer an amount equal to the amount stated to be payable on, under or in
respect of this Agreement and the Notes in the absence of such deduction or
withholding. Each Holder agrees that, upon the occurrence of any event giving
rise to the operation of this Section 3.8(c) with respect to such Holder, it
will, if requested by the Issuer, use reasonable efforts (subject to overall
policy considerations of such Holder) to designate another office through which
the Holder holds any Note affected by such event; provided, however, that any
such designation shall be made only on such terms that, in the sole reasonable
judgment of such Holder, such Holder and the office through which such Holder
holds any such Notes suffer no material economic, legal or regulatory
disadvantage.
(d) The Issuer shall furnish to the Agent original tax receipts in respect
of any deduction or withholding of Argentine Taxes, if available, or such other
documentation acceptable to the Agent (with the prior written direction of the
Required Holders), promptly and in any event within thirty (30) days after the
date the Issuer is required to remit such deduction or withholding to the
relevant tax authority, and the Issuer shall promptly furnish to the Agent any
other information, documents and receipts that the Agent may reasonably, from
time to time, require to establish to its satisfaction that full and timely
payments have been made of all Argentine Taxes required to be paid under this
Section 3.8.
(e) The Issuer shall pay all present and future Argentine Taxes, including
but not limited to stamp taxes, imposts, contributions, charges, deductions,
withholdings, duties and similar fees which are imposed, assessed, levied or
collected in connection with the execution, delivery, registration,
notarization, enforcement, performance or any other act related thereto, of
Financing Agreements and any documents related thereto and shall, upon written
notice from the Agent, indemnify against and reimburse the Agent and each Holder
for any such taxes, imposts,
42
contributions, charges, deductions, withholdings, duties and fees (including any
such taxes, imposts, contributions, charges, deductions, withholdings, duties
and fees imposed on amounts payable under this Section 3.8(e)).
(f) If a Holder or Participant receives a refund of, or credit or other
tax benefit with respect to, any Tax paid by the Issuer hereunder (a "Tax
Benefit"), such Holder or Participant, as the case may be, shall promptly
transfer to the Issuer an amount that the Holder or Participant shall, in its
sole reasonable discretion, determine is equal to the benefit obtained by the
Holder or the Participant as a consequence of such Tax Benefit together with any
interest paid to such Holder or Participant, as the case may be, by the relevant
Authority with respect to such Tax Benefit, if any; provided, however, that, in
the event such Holder or Participant, as the case may be, is subsequently
required by any Authority to repay such Tax Benefit, then the Issuer shall
promptly repay the amount of such Tax Benefit to such Holder or Participant, as
the case may be. Nothing in this Section 3.8(f) shall require a Holder or a
Participant to disclose any confidential information to the Issuer (including
its Tax returns).
(g) In case of an assignment or Participation, Sections 3.8(a), 3.8(b),
and 3.8(c) shall only apply to the extent that any Taxes imposed do not exceed
the Taxes imposed as of the date immediately before such assignment or
Participation, unless such assignment or Participation shall not result in a
greater payment by the Issuer than would have resulted had the Holder who
originally owned the relevant Note remained the owner thereof.
(h) Sections 3.8(a), 3.8(b), and 3.8(c) shall not apply to the extent that
the amount of Taxes deducted or withheld would have been reduced or eliminated
if the Holder or Participant had provided to the Issuer and/or any relevant
Authority any form, certificate, document or other information if (i) such form,
certificate, document, or other information is required by law, administrative
practice, or applicable treaty as a precondition to exemption or reduction in
the rate of deduction or withholding of Taxes for which the Issuer is required
to pay additional amounts pursuant to Section 3.8(c), (ii) at least thirty (30)
days prior to the first Payment Date with respect to which the Issuer shall
apply this Section 3.8(h), the Issuer shall have notified the Holder or
Participant that it will be required to comply with clause (i), above, and (iii)
as a result of complying with clause (i), the Holder or Participant will not, in
its sole reasonable judgment, suffer any material legal, economic, or regulatory
disadvantage.
Section 3.9. Payments Generally; Pro Rata Treatment. (a) The Issuer shall
make each payment required to be made by it hereunder (whether of principal,
interest or of amounts payable under Section 3.6, 3.8 or 9.3(d), or otherwise)
and under the Notes prior to 11:00 AM, New York City time, on the date when due,
in Dollars in immediately available funds, without set-off or counterclaim. All
such payments shall be made to the Agent at the Agent's Account in same day
funds. The Agent will promptly thereafter cause like funds to be distributed (i)
if such payment by the Issuer is in respect of principal, interest, or any other
Obligation then payable hereunder and under the Notes to more than one Holder,
to such Holders for the account of their respective Holder Addresses ratably in
accordance with the amounts of such respective Obligations then payable to such
Holders and (ii) if such payment by the Issuer is in respect of any Obligation
then payable hereunder to one Holder, to such Holder for the account of its
Holder Address, in each case to be applied in accordance with the terms of this
Agreement. Upon its receipt of an Assignment and Acceptance and recording of the
information contained
43
therein in the Register pursuant to Section 9.4(d), from and after the effective
date of such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Holder assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) All interest and fees hereunder shall be computed on the basis of a
year of three hundred sixty (360) days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable. Each determination by the
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) If any payment hereunder or under the Notes shall be stated to be due
on a day that is not a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest; provided that if such
extension would cause payment of principal or interest of LIBOR Notes to be made
in the next calendar month, such payment shall be on the next preceding Business
Day.
(d) The tender or payment of any amount payable under this Agreement
(whether or not by recovery under a judgment) in any currency other than Dollars
shall not novate, discharge or satisfy the obligation of the Issuer to pay in
Dollars all amounts payable under this Agreement except to the extent that (and
as of the date when) the Agent actually receives funds in Dollars in the account
specified in, or pursuant to, Section 3.9(a).
(e) The Issuer shall indemnify the Agent and the Holders against any
losses resulting from a payment being received or an order or judgment being
given under this Agreement in any currency other than Dollars or any place other
than the Agent's Account. The Issuer shall, as a separate obligation, pay such
additional amount as is necessary to enable the Agent to receive, after the
prompt conversion to Dollars at a market rate, the full amount due under this
Agreement in Dollars.
(f) Notwithstanding the provisions of Section 3.9(a) and Section 3.9(d),
the Agent may require the Issuer to pay (or reimburse the Agent and the Holders)
for any Taxes, fees, costs, expenses and other amounts payable under Section 3.8
in the currency in which they are payable, if other than Dollars.
Section 3.10. Sharing of Payments, Etc. If any Holder shall obtain at any
time any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise, other than as a result of an assignment pursuant
to Section 9.4), (a) on account of Obligations due and payable to such Holder
hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (x) the amount of such Obligations due and
payable to such Holder at such time to (y) the aggregate amount of the
Obligations due and payable to all Holders hereunder and under the Notes at such
time) of payments on account of the Obligations due and payable to all Holders
hereunder and under the Notes at such time obtained by all the Holders at such
time or (b) on account of Obligations owing (but not due and payable) to such
Holder hereunder and under the Notes at such time in excess of its ratable share
44
(according to the proportion of (x) the amount of Obligations owing (but not due
and payable) to such Holder at such time to (y) the aggregate amount of
Obligations owing (but not due and payable) to all Holders hereunder and under
the Notes at such time) of payments on account of the Obligations owing (but not
due and payable) to all Holders hereunder and under the Notes at such time
obtained by all of the Holders at such time, such Holder shall forthwith
purchase from the other Holders such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Holder to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Holder, such purchase from
each other Holder shall be rescinded and such other Holder shall repay to the
purchasing Holder the purchase price to the extent of such Holder's ratable
share (according to the proportion of (A) the purchase price paid to such Holder
to (B) the aggregate purchase price paid to all Holders) of such recovery
together with an amount equal to such Holder's ratable share (according to the
proportion of (A) the amount of such other Holder's required repayment to (B)
the total amount so recovered from the purchasing Holder) of any interest or
other amount paid or payable by the purchasing Holder in respect of the total
amount so recovered. The Issuer agrees that any Holder so purchasing an interest
or participating interest from another Holder pursuant to this Section 3.10 may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such interest or participating
interest, as the case may be, as fully as if such Holder were the direct
creditor of the Issuer in the amount of such interest or participating interest,
as the case may be.
ARTICLE IV
Representations and Warranties
The Issuer represents and warrants to the Holders and to the Agent, as of
the Signing Date and the Effective Date, except as expressly set forth herein,
that:
Section 4.1. Organization; Powers. The Issuer and each of its Subsidiaries
(i) is a company duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation, (ii) has obtained all required Authorizations
to own its assets and conduct its business as presently conducted, and (iii) has
the power, authority and legal right to enter into and perform its obligations
under the Financing Agreements to which it is a party or will, in the case of
any Financing Agreement not executed as at the date of this Agreement, when that
Financing Agreement is executed, have the power, authority and legal right to
enter into and comply with its obligations under that Financing Agreement.
Section 4.2. No Conflicts. Neither the execution, delivery or performance
of any Financing Agreement to which the Issuer is a party nor the compliance
with its terms will conflict with or result in a breach of any of the terms,
conditions or provisions of, or constitute a default or require any consent
under, any indenture, mortgage, agreement or other instrument or arrangement
(except those indentures, mortgages, agreements or other instruments or
arrangements relating to, and/or in connection with, any Surviving Debt) to
which the Issuer is a party or by which it is bound, or violate any of the terms
or provisions of the Issuer's Charter or any Authorization, judgment, decree or
order or any statute, rule or regulation (including Regulation X of the Board of
Governors of the Federal Reserve System) applicable to the Issuer
45
or result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of the Issuer or any of its Subsidiaries.
Section 4.3. Due Authorization; Enforceability. Each Transaction Document
to which the Issuer is a party has been, or will be, duly authorized and
executed by the Issuer and constitutes, or will constitute when executed, a
valid and legally binding obligation of the Issuer, enforceable in accordance
with its terms, subject to (i) applicable bankruptcy, insolvency and other
similar laws affecting creditor's rights generally, and (ii) general equitable
principles regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law.
Section 4.4. No Additional Authorization, Etc. All the Authorizations
needed by the Issuer to conduct its business and execute and comply with its
obligations under, this Agreement and each of the other Transaction Documents to
which it is a party or under which the Issuer is in any manner obligated have
been obtained (except those Authorizations from the Central Bank that may become
necessary for the Issuer to make prepayments in accordance with the provisions
hereof) and are final and in full force and effect and the Issuer has not
received any notice of proceedings relating to the revocation, cancellation,
expropriation or modification of any such Authorization.
Section 4.5. Compliance with Law. The Issuer and each of its Subsidiaries
is not in violation of any material statute or regulation of any Authority
(including social security laws and retirement and pension funds laws and all
regulations and requirements of the Argentine National Securities Commission
(Comision Nacional de Valores)), and its successors.
Section 4.6. Properties. The Issuer and each of its Subsidiaries have good
and marketable title to, or valid leasehold interests in, all its real and
personal property material to its business, in each case free and clear of all
Liens other than those Liens permitted by Section 6.4(a).
Section 4.7. Material Litigation. Neither the Issuer nor any of its
respective directors, officers or employees, is engaged in, nor, to the best of
its knowledge, threatened by, any litigation, arbitration or administrative
proceedings, (i) the outcome of which could be expected, individually or in the
aggregate, to have a Material Adverse Effect or (ii) which purports to affect
the legality, validity or enforceability of this Agreement or any other
Transaction Document or to prevent or enjoin any of the transactions
contemplated hereby or thereby.
Section 4.8. Civil and Commercial Law; No Immunity. The Issuer is subject
to civil and commercial law with respect to its obligations under the Financing
Agreements, and the execution, delivery and performance by the Issuer of the
Financing Agreements constitutes and will constitute private and commercial acts
rather than public or governmental acts. The Issuer has waived every immunity to
which it or any of its properties would otherwise be entitled 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 prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
under the laws of the Country in respect of its obligations under the Financing
Agreements.
Section 4.9. Taxes. All material tax returns and reports of the Issuer
required by law to be filed have been duly filed and all material Taxes,
obligations, fees and other governmental
46
charges upon the Issuer, or its properties, or its income or assets, which are
due and payable or to be withheld, have been paid or withheld, other than any
such liabilities that are being contested in good faith and by appropriate
proceedings, and for which adequate reserves with respect thereto have been
established to the extent required by the Accounting Principles.
Section 4.10. Withholding Taxes. There is no Tax, impost, deduction,
charge or withholding imposed by the Country or any political subdivision or
taxing authority thereof or therein on or by virtue of the execution or delivery
of this Agreement.
Section 4.11. Full Disclosure. Neither any information, financial
statement, exhibit, schedule nor any report furnished in writing by or on behalf
of the Issuer to the Agent or any Holder in connection with the negotiation of
the Financing Agreements or pursuant to the terms of the Transaction Documents
(other than any projections, estimates or information of a general economic
nature) contain, when taken as a whole, any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made therein
not misleading in light of the circumstances under which they were made. All
written information furnished after the date hereof by the Issuer to the Agent
or any Holder in connection with this Agreement and the transactions
contemplated hereby will be true, complete and accurate in all material respects
or (in the case of projections) based on estimates believed by the Issuer to be
reasonable, on the date of which such information is stated or certified. There
is no fact known to the Issuer that could reasonably be expected to have a
Material Adverse Effect that has not been disclosed herein or in a report,
financial statement, exhibit, schedule, disclosure letter or other writing
furnished to the Agent and to the Holders for use in connection with the
transactions contemplated hereby.
Section 4.12. Proper Legal Form; Immunity. This Agreement and the other
Financing Agreements are in proper legal form under the laws of the Country for
the enforcement thereof against the Issuer under the laws of the Country, and
the obligations of the Issuer under this Agreement and the other Financing
Agreements may be enforced (by judgment and levy) in accordance with their
respective terms in a proceeding at law in any competent court in the Country;
provided, however, that (i) an official Spanish translation of this Agreement or
the other Financing Agreements, as applicable, is required to bring an action
thereon in the courts of the Country and (ii) the enforcement of foreign
judgments in the Country would be recognized if the requirements of Article 517
of the Argentine Federal Code on Civil and Commercial Procedure are met,
including: (A) the judgment, which must be final in the jurisdiction where
rendered, was issued by a competent court in accordance with Argentine laws
regarding conflict of laws and jurisdiction and resulted from a personal action,
or an in rem action regarding property that was transferred into Argentina
during or after the prosecution of the foreign action; (B) the defendant against
whom enforcement of the judgment is sought was personally served with the
summons, in accordance with due process of law, and was given an opportunity to
defend against the foreign action; (C) the judgment must be valid in the
jurisdiction where rendered and its authenticity must be established in
accordance with the requirements of Argentine law; (D) the judgment does not
violate the principles of public policy of Argentine law; and (E) the judgment
is not contrary to a prior or simultaneous judgment of an Argentine court.
47
Section 4.13. Pari Passu Ranking. This Agreement and the obligations
evidenced hereby are and will at all times be direct and unconditional general
obligations of the Issuer, and rank and will at all times rank in right of
payment and otherwise at least pari passu with all other senior unsecured and
unsubordinated Debt of the Issuer (other than obligations having priority by
statute or operation of law), if any, whether now existing or hereafter
outstanding.
Section 4.14. Investment Company Act. The Issuer is not an "investment
company" subject to regulation under the U.S. Investment Company Act of 1940, as
amended.
Section 4.15. Financial Statements. The financial statements of the Issuer
for the Fiscal Years ending on December 31, 2003 and December 31, 2002, copies
of which have been furnished to each Holder:
(a) have been prepared in accordance with the Accounting Principles
applicable to the Issuer, and present fairly, in all material respects, the
financial condition of the Issuer as of the date as of which they were prepared
and the results of the Issuer's operations during the period then ended; and
(b) disclose all liabilities (contingent or otherwise) of the Issuer, and
the reserves, if any, for such liabilities and all unrealized or anticipated
liabilities and losses arising from commitments entered into by the Issuer
(whether or not such commitments have been disclosed in such financial
statements) required, pursuant to the Accounting Principles, to be disclosed
therein.
Section 4.16. Transaction Documents. All representations and warranties
made by the Issuer in the other Transaction Documents are true and correct in
all material respects as of the date hereof.
Section 4.17. Surviving Debt. As at the date hereof the Issuer has no
other Debt than (i) the Surviving Debt, as disclosed in Schedule 4.17, and (ii)
the Restructured Debt.
Section 4.18. Existing Liens. The Issuer has no outstanding Lien on any of
its assets except for Permitted Liens, and set forth in Schedule 4.18 is a
complete and accurate list of all Existing Liens, showing as of the date hereof
the lienholder thereof, the principal amount of the obligations secured thereby
and the property or assets of the Issuer or its Subsidiary subject thereto.
Section 4.19. Material Adverse Effect. Since December 31, 2003, no event
has occurred that has resulted in a Material Adverse Effect.
Section 4.20. Insolvency.
After giving effect to the consummation of the transactions contemplated
in the Transaction Documents, the Issuer will not be rendered insolvent by the
execution and delivery of the Transaction Documents or the consummation of the
transactions contemplated thereby.
Section 4.21. Insurance.
48
The Issuer maintains, with financially sound and reputable insurers,
insurance and reinsurance with respect to its assets and business operations in
at least such amounts and against at least such risks as are usually insured
against in the same general area by financial entities of established repute
engaged in the same or a similar business.
Section 4.22. Labor Disputes.
There is no strike, slowdown or work stoppage or other labor dispute
actually pending or, to the knowledge of the Issuer, threatened against or
involving the Issuer, and there are no representation proceedings pending with
any Authority in the Country involving the employees of the Issuer.
ARTICLE V
Conditions to Effectiveness
Section 5.1. Conditions Precedent to Effectiveness. This Agreement and the
obligations of each Holder to exchange its Original Dollar Loans for
Restructured Dollar Notes in accordance with the provisions of Article II shall
become effective upon the fulfillment by the Issuer, in form and substance
satisfactory to the Agent, of all and each of the following conditions (the
first Business Day on which the last of such conditions shall have been
satisfied, the "Effective Date"):
(a) The Agent (or its counsel) shall have received the following:
(i) This Agreement, duly executed and delivered by the Agent, the
Issuer and each Holder party hereto;
(ii) A completed election notice substantially in the form of Exhibit E
hereto dated on or prior to the date hereof (each such notice, an
"Election Notice") from each Holder party hereto;
(iii) A copy of each of the Restructured IFC Loan Agreements, duly
executed and delivered by IFC and the Issuer;
(iv) A copy of each of the Restructured IIC Loan Agreements, duly
executed and delivered by IIC and the Issuer;
(v) A copy of the Restructured CCC Loan Agreement, duly executed and
delivered by CCC and the Issuer;
(vi) A copy of the Grupo Galicia Agreement, duly executed and delivered
by the parties thereto;
(vii) Certified copies of the Charter and of all corporate authority for
the Issuer (including all necessary actions of the board of
directors, shareholders, or other governing body) with respect to
the Restructuring and the execution, delivery and
49
performance of all and each of the Financing Agreements to which
the Issuer is a party and the transactions contemplated thereby;
(viii) Certified copies of the resolutions of the board of directors of
the Issuer approving the Restructuring and each of the Transaction
Documents to which the Issuer is or is to be a party and the
transactions contemplated thereby, and of all documents evidencing
other necessary corporate action and governmental and other third
party approvals and consents, if any, with respect to each
Transaction Document to which the Issuer is or is to be a party.
(ix) A certificate of the Issuer that the Issuer, and each of its
Subsidiaries, (i) are not engaged in, nor, to the best of their
knowledge, after due inquiry threatened by, any litigation,
arbitration or administrative proceedings, the outcome of which
has had or could reasonably be expected to have a Material Adverse
Effect; (ii) have not requested a moratorium or suspension of
payment of debts from any court; (iii) have not instituted
proceedings or taken any form of corporate action to be
liquidated, adjudicated bankrupt or insolvent; (iv) have not
consented to the institution of bankruptcy or insolvency
proceedings against it; (v) have not filed a petition or answer or
consent seeking reorganization or relief under any Applicable Law
or consented to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of them or of any
substantial part of their respective property; (vi) have not made
a general assignment for the benefit of their respective
creditors; and the Issuer has certified to the Agent that there
shall not (y) be in effect any statute, regulation, order, decree
or judgment of any Authority that makes illegal or enjoins or
prevents the consummation of the transactions contemplated by this
Agreement or any other Transaction Document or (z) have been
commenced or, to the best knowledge of the Issuer, threatened any
action or proceeding that seeks to prevent or enjoin any
transactions contemplated by this Agreement or any other
Transaction Document;
(x) A certificate of the Issuer that no Event of Default and no
Potential Event of Default shall have occurred and be continuing
except for those that may occur if the restructuring contemplated
herein, or in any other Transaction Document, does not become
effective in accordance with the terms and conditions set forth in
the respective Transaction Documents;
(xi) Certified copies of all licenses, authorizations and approvals of,
and notices to and filings and registrations with, any Authority
(including exchange control approvals) or any third party required
in connection with the execution, delivery and performance of each
of the Financing Agreements;
(xii) A favorable written opinion (addressed to the Agent and the
Holders and dated the Effective Date) of White & Case LLP, special
New York counsel for the Issuer, in form and substance reasonably
satisfactory to the Documentation Agent;
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(xiii) A favorable written opinion (addressed to the Agent and the
Holders and dated the Effective Date) of Estudio Beccar Xxxxxx,
special Argentine counsel to the Issuer, in form and substance
reasonably satisfactory to the Documentation Agent;
(xiv) A favorable written opinion (addressed to the Holders and dated
the Effective Date) of Marval, X'Xxxxxxx & Mairal, special
Argentine counsel to the Holders, in form and substance reasonably
satisfactory to the Documentation Agent;
(xv) A favorable written opinion (addressed to the Holders and dated
the Effective Date) of Mayer, Brown, Xxxx & Maw LLP, special New
York counsel to the Holders, in form and substance reasonably
satisfactory to the Documentation Agent;
(xvi) A Certificate of Incumbency and Authority, substantially in the
form of Exhibit G hereto;
(xvii) A copy of the authorization to the Auditors referred to in Section
6.1(d); and
(xviii) Any other Transaction Documents specified by the Agent prior to
the Effective Date.
(b) Representations and Warranties. On and as of the Effective Date, the
Issuer shall have certified to the Agent and the Holders that the
representations and warranties made in Article IV are true and correct.
(c) Insurance. The Issuer shall have insured its assets and business
operations in accordance with Section 6.1(m).
(d) Notes. The Agent (or its counsel) shall have received the Notes issued
pursuant to Section 2.14 payable to each of the Holders, executed by a
Responsible Officer of the Issuer with his/her signature and in the case of each
Note held in the Country, notarized by an Argentine public notary.
(e) Payment of Accrued Interest. The Issuer shall have paid to the Agent
Account, for the benefit of each Holder, an amount equal to the Effective Date
Interest Amount of such Holder, in the amount for each Holder as set forth on
Schedule 5.1(b)(ii).
(f) Consummation of Equity Participation Tender Offer. Subject to the
proration and reallocation procedure set forth in Schedule 2.1 or any other
provision hereof, each Holder shall have received Preferred Shares in the amount
set forth opposite such Holder's name on the Allocation Notice (which amount
shall be equal to one thousand four hundred and ninety (1,490) Preferred Shares
(or Preferred Shares and cash, if any) in exchange for each one thousand Dollars
($1,000) of the Adjusted Principal Amount of Existing Bank Debt of such Holder
exchanged in the Equity Participation Tender Offer for which such Holder did not
receive Medium-Term Dollar Notes).
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(g) Consummation of BODEN Tender Offer. Subject to the proration and
reallocation procedure set forth in Schedule 2.1 or any other provision hereof,
each Holder shall have received the BODEN Tender Offer Exchange Amount set forth
opposite such Holder's name on the Allocation Notice (which amount shall be
equal to eighty-two percent (82%) of the amount of the Adjusted Principal Amount
of Existing Bank Debt of such Holder exchanged in the BODEN Tender Offer).
(h) Consummation of Cash Tender Offer. Subject to the proration and
reallocation procedure set forth in Schedule 2.1 or any other provision hereof,
each Holder shall have received the Cash Tender Offer Payment Amount set forth
opposite such Holder's name on the Allocation Notice (which amount shall be
equal to fifty point sixty-five percent (50.65%) of the amount of the Adjusted
Principal Amount of Existing Bank Debt of such Holder exchanged in the Cash
Tender Offer).
(i) Consummation of Bank Debt Restructuring. The Agent shall have
received, in form and substance satisfactory to the Agent, (i) a certificate of
a Responsible Officer of the Issuer certifying that (x) holders of at least
ninety-five percent (95%) of the aggregate principal amount of the Existing Bank
Debt and the Existing Bonds shall have agreed to restructure such obligations
pursuant to the Transaction Documents and (y) all conditions to effectiveness
under the Restructured IFC Loan Agreements, the Restructured IIC Loan
Agreements, the Restructured CCC Loan Agreement and the New Trade Debt Agreement
shall have been fulfilled or waived in accordance with the terms thereof (other
than any condition set forth therein which is conditioned upon the effectiveness
of this Agreement), and (ii) written confirmation from (A) the Issuer under the
Restructured IFC Loan Agreements confirming the effective date of each of the
Restructured IFC Loan Agreements; (B) the Issuer under the Restructured IIC Loan
Agreements confirming the effective date of each of the Restructured IIC Loan
Agreements; (C) the Issuer under the Restructured CCC Loan Agreement confirming
the effective date thereunder; and (D) the Issuer under the New Trade Debt
Agreement confirming the effective date thereunder.
(j) Consummation of Bond Exchange Offer. The Agent has received a
certificate of the Issuer certifying that the exchange contemplated in the Bond
Exchange Offer has been completed.
(k) Fees. The Issuer shall have paid all accrued expenses of the Agent,
the Documentation Agent and the Holders (including accrued fees and expenses of
counsel thereto, which invoices may include an estimate of fees and expenses)
for which detailed invoices have been received at least one (1) Business Day
prior to the Effective Date.
(l) Expenses of Steering Committee Members. The Issuer shall have paid the
expenses of each of the members of the Steering Committee accrued or to accrue
through and including the Effective Date (to the extent invoiced, which invoices
may include an estimate of expenses) (the "Steering Committee" being the ad hoc
Steering Committee comprised of IFC, IIC, Bank One, N.A., Barclays Bank PLC,
Bayerische Hypo- und Vereinsbank AG, JPMorgan Chase Bank, and the CCC).
(m) Appointment of Process Agent. The Agent shall have received, in form
and substance satisfactory to the Agent evidence that (i) a Process Agent has
been appointed to act as
52
the Issuer's agent for service of process and (ii) such Process Agent has
accepted such appointment in substantially the form of Exhibit H hereto.
(n) Luxembourg Stock Exchange. The Agent has received a copy of the
acceptance by the Luxembourg Stock Exchange of the Global Medium-Term Note
Program.
(o) Agent Certificate. The Agent shall have received a certificate of a
Responsible Officer of the Issuer certifying that the conditions set forth above
in clauses (c), (f), (g), (h) and (l) have been met.
(p) Agent Notification. The Agent has notified the Issuer that the above
conditions of effectiveness have been satisfied and of the Effective Date
hereunder.
For the avoidance of doubt, notwithstanding the foregoing, the obligations
of the Holders hereunder shall not become effective unless each of the foregoing
conditions specified in this Section 5.1 shall have been satisfied or waived
and, in the event such conditions shall not have been so satisfied or waived,
(x) the Holders' agreement to consummate the exchange of Existing Bank Debt for
Restructured Dollar Notes hereunder shall terminate and (y) the original terms
and conditions applicable to the Existing Bank Debt shall continue in full force
and effect in their entirety, in all cases as if this Agreement and all other
documents and agreements in connection herewith or in relation hereto had never
been entered into by the parties hereto; provided, however, that (A) any
payments made by the Issuer as a consequence of, in relation to, or in
connection with, this Agreement shall survive such circumstance and shall be
deemed irrevocably made and effective for the purposes for which such payments
have been made under this Agreement; and (B) all other acts carried out by the
Issuer as a consequence of, in relation to, in connection with or by virtue of,
this Agreement shall continue to be governed by the provisions hereof, if and
when applicable.
ARTICLE VI
Covenants of the Issuer
Section 6.1. Affirmative Covenants. Until all principal of and interest on
the Restructured Dollar Notes, and all other amounts owing hereunder and under
the other Financing Agreements have been paid in full, the Issuer covenants and
agrees with the Holders and the Agent that:
(a) Payment of Principal and Interest. The Issuer shall duly and
punctually pay the principal of and interest and any Additional Amounts in
accordance with the terms of the Financing Agreements.
(b) Conduct of Business and Maintenance of Existence and Approvals. The
Issuer shall, and shall cause each of its Significant Subsidiaries to, (i) take
all necessary steps to maintain in effect its corporate existence (including but
not limited to, with respect to the Issuer, the authorization from the Central
Bank to engage in the business of banking) and all registrations necessary
therefor, (ii) take all reasonable actions to maintain all rights, licenses,
permits, privileges, titles to Property, franchises and the like necessary or
desirable in the normal conduct of its business, activities or operations, (iii)
keep all its Property in good working order
53
or condition, and (iv) take all necessary steps to obtain and maintain in full
force and effect all governmental or other regulatory approvals and consents
(including the approval of the Argentine Comision Nacional de Valores) so that
it may lawfully comply with its obligations under the Financing Agreements, and
in such connection, the Issuer shall at all times comply with any Applicable
Laws and ensure that all necessary action is taken so that it may lawfully
comply with its obligations under the Financing Agreements; provided, however,
that this covenant shall not prohibit any transaction by the Issuer or any of
its Significant Subsidiaries otherwise permitted under Section 6.4(b) and this
covenant shall not require the Issuer to maintain any such right, privilege,
title to Property or franchise or to preserve the corporate existence of any
Significant Subsidiary, if the board of directors of the Issuer shall reasonably
determine that the maintenance or preservation thereof is no longer desirable in
the conduct of the business of the Issuer and its Subsidiaries taken as a whole
and that the loss thereof is not, and will not be, adverse in any material
respect to the holders of the Restructured Debt.
(c) Maintenance of Books and Records. The Issuer shall, and shall cause
its Subsidiaries to, maintain books, accounts and records in accordance with the
Accounting Principles applicable to each such Person.
(d) Authorizations. The Issuer shall: (i) authorize, substantially in the
form of Exhibit I hereto, the Auditors (whose fees and expenses shall be for the
account of the Issuer) to communicate directly with the Agent from time to time,
upon reasonable notice by the Agent (acting at the written direction of the
Required Holders), regarding the Issuer's and its Subsidiaries' accounts and
operations and furnish to the Agent a copy of such authorization; (ii) during
normal business hours, and upon reasonable notice (acting at the written
direction of the Required Holders), permit representatives of the Agent to visit
any of the premises where the business of the Issuer is conducted and to have
reasonable access to its books of account and records and to discuss the
Issuer's affairs, finances and accounts with its officers and directors and the
Auditors; and (iii) if Price Waterhouse & Co. ceases to be the auditors of the
Issuer for any reason, appoint and maintain as the auditors of the Issuer
another firm of "Big Four" internationally recognized independent public
accountants and, within thirty (30) days after such appointment, deliver to the
Agent a copy of an authorization to such firm substantially in the form of
Exhibit I.
(e) Authorizations for Payments from Central Bank. The Issuer shall use
its reasonable best efforts to obtain any Authorization or approval from the
Central Bank, if and when necessary, for purposes of making any payment in
Dollars from funds of the Issuer in the Country in respect of the Financing
Agreements (including any exchange control approvals); provided, however, that
such undertaking of the Issuer in this paragraph shall be without prejudice to
its obligation to pay on a timely basis all and any amounts falling due under
the Financing Agreements.
(f) Pari Passu Ranking. The Issuer shall ensure that at all times the
obligations of the Issuer under the Financing Agreements (other than with
respect to the Subordinated Debt) constitute the direct and unconditional
obligations of the Issuer ranking in priority of payment at least pari passu
(except for such exceptions as are or may hereafter be provided by Applicable
Law) with all other unsecured and unsubordinated Debt of the Issuer.
54
(g) Governance. The Issuer: (i) from and after the six-month anniversary
of the Effective Date, shall cause the audit committee (which shall be at all
times sufficiently and broadly empowered to perform internal audits and to
review compensation of directors and senior management of the Issuer as well as
transactions with Affiliates) of its board of directors to have at least three
(3) members, a majority of which shall be "Independent Directors" (as such term
is defined in NASDAQ Stock Market Inc. Rule 4200(a)(15) and NASDAQ Stock Market
Inc. Rule 4350(d)(2)(A)); (ii) shall comply with Section 402 of the SOX Act (as
if the SOX Act were applicable to the Issuer as a foreign private issuer) and
the rules and regulations adopted by the SEC and the Public Company Accounting
Oversight Board thereunder; (iii) shall comply with the internal control report
requirements under Section 404(a) of the SOX Act (as if the SOX Act were
applicable to the Issuer as a foreign private issuer) and the rules and
regulations adopted by the SEC and the Public Company Accounting Oversight Board
thereunder; and (iv) shall implement a code of ethics as defined in Section
406(c) of the SOX Act, which code of ethics shall be applicable to its chief
executive and senior financial officers or persons performing similar functions.
(h) Compliance with Laws and Other Agreements. The Issuer shall, and shall
cause each of its Subsidiaries to, comply with all Applicable Laws and all
covenants and other obligations contained in any agreement to which the Issuer
or any such Subsidiary is a party, except where the failure to so comply would
not reasonably be expected to have a Material Adverse Effect. Without limiting
the foregoing, the Issuer (a) shall comply with the Plan and its "matching"
regime relating to the restructuring of its liabilities with the Central Bank
pursuant to Decree No. 739/03 and Decree No. 1262/03 (as accepted by the Central
Bank in a letter to the Issuer dated February 3, 2004 and by the Unidad de
Reestructuracion del Sistema Financiero under Resolution No. 1/2003) and (b)
shall not cause or permit the Plan and such "matching" regime to be amended in a
way that would be materially adverse to the Issuer.
(i) Further Assurances. The Issuer shall, at its own cost and expense,
execute and deliver (or cause to be executed, acknowledged and delivered) to the
Agent all such other documents, instruments and agreements and do all such other
acts and things as may be reasonably required by the Agent or at the written
direction of the Required Holders, to enable the Agent to exercise and enforce
its rights under the Financing Agreements and to carry out the intent of the
Financing Agreements or otherwise to enable the Issuer to comply with its
obligations under the Financing Agreements or for the purpose of obtaining or
preserving the full benefits of this Agreement or any other Financing Agreement
and of the rights, powers and remedies herein and therein granted.
(j) Maintenance of Office or Agency. The Issuer shall maintain each office
or agency required under the Transaction Documents. The Issuer shall give prompt
written notice to the Agent of any change in the location of any such office or
agency.
(k) Payment of Taxes and Other Claim. The Issuer shall pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (i) all
material Taxes levied or imposed upon the Issuer or any Subsidiary of the Issuer
or for which it or any of them are otherwise liable, or upon the income, profits
or Property of the Issuer or any Subsidiary of the Issuer 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 Issuer or any Subsidiary of the
Issuer;
55
provided, however, that the Issuer shall not be required to pay or discharge or
cause to be paid or discharged any such Tax if the amount, applicability or
validity thereof is being contested in good faith by appropriate proceedings and
for which appropriate reserves, if necessary (in the good faith judgment of
management of the Issuer), are being maintained in accordance with the
Accounting Principles.
(l) Due Diligence. The Issuer shall conduct its business with due
diligence and efficiency and in accordance with sound financial and business
practices.
(m) Maintenance of Insurance. The Issuer shall (and shall cause each of
its Subsidiaries to) insure and keep insured at all times all of their
Properties and business operations which are of an insurable nature insured
against loss or damage with insurers reasonably believed by the Issuer to be
responsible to the extent that Property and business operations of similar
characteristics are usually insured against in the same general area by
financial entities of established repute engaged in the same or a similar
business.
Section 6.2. Reporting Covenants. Until all principal of and interest on
the Restructured Dollar Notes, and all other amounts owing hereunder and under
the other Financing Agreements have been paid in full, the Issuer covenants and
agrees with the Holders that the Issuer shall furnish or cause to be furnished
to the Agent:
(a) as soon as available but in any event not later than one hundred
twenty (120) days after the close of each Fiscal Year in the case of the
documents referred to in (i), (iii), (iv), (vii), (viii) and (ix) below, and
within one hundred eighty (180) days after the close of each Fiscal Year in the
case of the documents referred to in clauses (ii), (v) and (vi) below: (i) a
complete copy of its annual report in the English language (an "Annual Report",
which shall include a consolidated balance sheet, consolidated statement of
income, consolidated statement of changes in stockholders' equity and
consolidated statement of cash flows for such Fiscal Year and will be audited
and accompanied by a report thereon of the Auditors), (ii) a certificate from
the Auditors containing a reconciliation to U.S. generally accepted accounting
principles of net income and shareholders' equity, (iii) a management letter
from the Auditors to the Issuer or to its management commenting on, among other
things, the adequacy of the Issuer's financial control procedures and accounting
systems and management information system, together with copies of any other
communication sent by the Auditors in relation to such procedures and systems;
(iv) a certificate from the Auditors certifying that, based on its Annual
Report, the Issuer was in compliance with the covenants contained in Section 6.3
as of the end of the relevant Fiscal Year (and including calculations thereof)
or, as the case may be, detailing any non-compliance; (v) a certificate from the
Issuer, certifying that it was in compliance with Section 402 of the SOX Act (as
if the SOX Act were applicable to the Issuer as a foreign private issuer), and
setting forth all outstanding loans and other obligations between the Issuer and
Grupo Galicia, Escasany, Ayerza and Xxxxx Family Members or any Person holding
five percent (5%) or more of the Issuer's Capital Stock, or between the Issuer
and any of its Subsidiaries or Affiliates, (vi) commencing with the Fiscal Year
ended December 31, 2005, an internal control report by the Issuer containing the
information that would be required under Section 404(a) of the SOX Act (as if
the SOX Act were applicable to the Issuer as a foreign private issuer) and the
rules and regulations adopted by the SEC and the Public Company Accounting
Oversight Board thereunder, together with an attestation from the Auditors with
respect to such reporting as would be required by
56
Section 404(b) of the SOX Act (as if the SOX Act were applicable to the Issuer
as a foreign private issuer) and the rules and regulations adopted by the SEC
and the Public Company Accounting Oversight Board thereunder; (vii) a
certificate from the Issuer certifying compliance with the corporate governance
covenants contained in Section 6.1(g), (viii) a certificate from the Issuer
setting forth the organizational structure of the Issuer, listing the
percentages of Capital Stock and Voting Stock of the Issuer held by Grupo
Galicia and certifying that no Change of Control has occurred in the relevant
Fiscal Year and (ix) a certificate from the Issuer setting forth all claims,
contingencies or commitments (broken down into cash and non-cash items) of the
Issuer against its controlling shareholders or any of the Issuer's Subsidiaries
or Affiliates;
(b) as soon as available but in any event not later than sixty (60) days
after the end of each quarter of each Fiscal Year, (i) a quarterly report of the
Issuer in the English language (a "Quarterly Report", which Quarterly Report
shall include an unaudited, consolidated balance sheet, consolidated statement
of income and consolidated statement of changes in shareholders' equity for such
Fiscal Year or quarter of the Issuer and shall be subject to limited review by
the Auditors in accordance with the Accounting Principles) and (ii) a
certificate from the Auditors certifying the compliance with the covenants
contained in Section 6.3 the relevant period or, as the case may be, detailing
any non-compliance;
(c) notice of any Event of Default or Potential Event of Default promptly
(and in any event within ten (10) calendar days) of the occurrence of such Event
of Default or Potential Event of Default, accompanied by a certificate
specifying the nature of such Event of Default or Potential Event of Default,
the period of existence thereof and the action that the Issuer has taken or
proposes to take with respect thereto;
(d) promptly by facsimile or telex not less than thirty (30) days before
it takes place, notice of any meeting of its shareholders including the agenda
of the meeting;
(e) promptly, copies of all notices, reports and other communications of
the Issuer to its shareholders, and the minutes of all shareholders' meetings;
(f) promptly, such information as the Agent may from time to time
reasonably request about the Issuer and its assets;
(g) promptly, notice of any proposed material change in the business or
operations of the Issuer and of any event or condition which has had or might
reasonably be expected to have a Material Adverse Effect;
(h) as soon as the Issuer becomes aware of any litigation or
administrative proceedings before any Authority or arbitral body which might
reasonably be expected to have a Material Adverse Effect, notice which shall
specify the nature of such litigation or proceedings and the steps the Issuer is
taking or proposes to take with respect thereto;
(i) promptly after the sending or filing thereof, copies of all material
proxy statements, financial statements and reports and copies of all material
regular, periodic and special reports that the Issuer files with the Argentine
Comision Nacional de Valores or any Authority that may be substituted therefor,
or with any national securities exchange; and
57
(j) promptly upon receipt thereof, all amendments, modifications or
waivers of any provision of any of the Transaction Documents and, without
limiting the foregoing, of any document, instrument or agreement evidencing or
documenting Senior Debt of the Issuer.
Section 6.3. Financial Covenants. (a) Available Capital. The Issuer shall
maintain at all times Available Capital that complies with the Capital Adequacy
Guidelines.
(b) Unhedged Open Foreign Exchange Position. The Issuer shall maintain at
all times an Unhedged Open Foreign Exchange Position not exceeding a percentage
of Available Capital as established by the Central Bank.
(c) Three Month Maturity Gap. The Issuer shall maintain at all times a
Three Month Maturity Gap not exceeding thirty percent (30%) of the outstanding
amount of all of the Debt of the Issuer.
(d) Single Group Exposure Ratio. The Issuer shall maintain at all times a
Single Group Exposure Ratio that complies with the levels specified by the
Central Bank.
(e) Open Credit Exposure Ratio. The Issuer shall maintain at all times an
Open Credit Exposure Ratio not exceeding twenty-five percent (25%).
For the avoidance of doubt, the Issuer shall calculate the foregoing
ratios on a consolidated basis.
Section 6.4. Negative Covenants. Until the principal of and interest on
the Restructured Dollar Notes, and all other amounts owing hereunder and under
the other Financing Agreements, have been paid in full, the Issuer covenants and
agrees with the Holders that:
(a) Permitted Liens. The Issuer shall not, and shall not permit any of its
Significant Subsidiaries to, create, incur, assume or suffer to exist any Lien
(except a Permitted Lien) on or with respect to any of their respective present
or future Properties, unless, prior to or concurrently with the creation,
incurrence or assumption of such Lien, the Issuer's obligations under this
Agreement are secured equally and ratably thereby.
(b) Mergers, Consolidations, Sales and Leases. The Issuer shall not and
the Issuer shall not permit any Significant Subsidiary to, merge, consolidate or
amalgamate with or into (including the transfer to the Issuer of Property and
liabilities of other financial entity pursuant to article 35 bis of the
Financial Entities Act), or convey, sell, assign, transfer, lease or otherwise
dispose of all or substantially all of its Properties to, any Person, unless
both immediately before and after giving effect to such transaction, (i) no
Event of Default and no Potential Event of Default shall have occurred and be
continuing; (ii) any Person formed by any such merger, consolidation or
amalgamation with the Issuer or the Person which acquires by conveyance, sale,
assignment or transfer, or which leases all or substantially all of the
Properties of the Issuer substantially as an entirety (such Person may be
referred to herein as the "Issuer's Successor Corporation") shall expressly
assume the due and punctual payment of the principal of, premium, if any, and
interest on (including Additional Amounts, if any) all the Notes according to
their terms, and the due and punctual performance of all of the covenants and
obligations of the Issuer under the Financing Agreements; (iii) the Issuer's
Successor Corporation (except in
58
the case of leases), if any, succeeds to and becomes substituted for the Issuer
with the same effect as if it had been named in the Notes as the Issuer; (iv)
the Issuer has delivered to the Agent an officer's certificate and an opinion of
legal counsel, in form and substance satisfactory to the Agent, each stating
that such merger, consolidation, amalgamation, conveyance, sale, assignment,
transfer, lease or disposition and, if an amendment of or a waiver under the
Financing Agreements is required in connection with such transaction, such
amendment or waiver complies with this Section and that all conditions precedent
herein provided for relating to such transaction have been complied with; (v)
such transaction is not a transaction which would or might reasonably be
expected to have a Material Adverse Effect; (vi) to the extent that the value of
the transactions is in excess of one percent (1%) of the total consolidated
assets of the Issuer and its Subsidiaries taken as a whole: (A) after giving
effect to such transaction, the Issuer's Successor Corporation must have a local
credit rating with respect to its unsecured, non-credit enhanced Debt that is
equal to or higher than the local credit rating of the unsecured, non-credit
enhanced Debt of the Issuer immediately prior to such transaction (and, before
such transaction is consummated, two (2) of the Rating Agencies shall have
informed the Issuer in writing of such credit rating), and (B) the Person into
which the Issuer or Significant Subsidiary is merged, consolidated or
amalgamated or to which such assets are conveyed, sold, assigned, transferred,
leased or disposed (the "Merging Entity") (1) must be a financial institution;
and (2) must be organized under the laws of, and have its headquarters in, a
country that is a member of the Organisation for Economic Co-operation and
Development (OECD), Brazil, Chile or the Country, (vii) in an event of a merger,
consolidation or amalgamation, the Issuer's Successor Corporation shall be in
compliance with the covenants in Section 6.3 immediately after giving effect to
such merger, consolidation or amalgamation in accordance with pro forma
financial statements; provided that in the event any transaction provided for in
this Section 6.4(b) would trigger a Change of Control, then the Merging Entity
and the Issuer, as applicable, shall comply with the requirements of the proviso
to Section 7.2(o).
(c) Restricted Payments. (i) The Issuer shall not, and shall not permit
any Significant Subsidiary to, directly or indirectly, take any of the following
actions (each a "Restricted Payment"):
(i) declare or pay any dividends or make any distributions in
respect of shares of Capital Stock, other than dividends or
distributions payable exclusively in Capital Stock to holders
of such Capital Stock (provided that this clause (i) will not
apply to dividends made to the Issuer by any consolidated
Subsidiary so long as dividends are paid on a pro rata basis
based on ownership of Capital Stock); or
(ii) purchase, redeem or otherwise acquire any Capital Stock of the
Issuer or, unless done on a pro rata basis, any Capital Stock
of any Subsidiary of the Issuer; provided, however, beginning
the earlier of (1) January 2, 2010 if the installments of
principal required to be paid on January 1, 2010, pursuant to
Sections 2.9 through 2.12 have been paid in full or (2) upon
prepayment of at least twenty percent (20%) of the original
principal amount of the Restructured Dollar Long-Term Loans,
the Issuer can repurchase, redeem or other otherwise acquire
its Capital Stock, or any Capital Stock of its Subsidiaries,
as the case may be, upon the exercise of
59
stock options if (x) such Capital Stock represents a portion
of the exercise price under the terms of agreements, including
employment agreements, or plans approved by the board of
directors of the Issuer and (y) such repurchases, redemptions
or other acquisitions do not in the aggregate exceed two
million five hundred thousand Dollars ($2,500,000) (or the
Dollar Equivalent in any other currency) for the period from
and including January 1, 2010 through the end of the Fiscal
Year ended December 31, 2012 and five million Dollars
($5,000,000) (or the Dollar Equivalent in any other currency)
in any Fiscal Year thereafter.
(ii) Notwithstanding the foregoing subsection (i) of this Section, the
Issuer may, and may permit any Significant Subsidiary to, directly
or indirectly, make a Restricted Payment in the event that:
(i) no Event of Default or Potential Event of Default shall have
occurred and be continuing immediately prior to and after
giving effect to such Restricted Payment;
(ii) the aggregate principal amount of outstanding Senior Debt is
equal to or less than fifty percent (50%) of the aggregate
principal amount of the Senior Debt originally issued; and
(iii) for each one Dollar ($1) paid on account of such Restricted
Payment, the Issuer shall repay two Dollars ($2) of the
principal of the Long-Term Debt in inverse order of maturity.
(d) Transactions with Affiliates. The Issuer shall not, and shall not
permit any of its Subsidiaries to, enter into or permit to exist, directly or
indirectly, any Affiliate Transaction, other than Affiliate Transactions entered
into by the Issuer or any of its Subsidiaries (i) on an arm's length basis, (ii)
in the ordinary course of business, (iii) with respect to any Affiliate
Transaction with a value in excess of five million Dollars ($5,000,000) (or the
Dollar Equivalent in any other currency), as to which two "Independent
Directors" (as such term is defined in NASDAQ Stock Market Inc. Rule
4200(a)(15)) of the Issuer have certified, in a certificate provided to the
Agent, to the effect that all such Affiliate Transactions entered into by the
Issuer or any such Subsidiary in any Fiscal Year, as the case may be, were on an
arm's-length basis and in the ordinary course of business, and setting out
details of with whom Affiliate Transactions had been entered into during such
Fiscal Year, and (iv) the amount of which, taken together with all other
Affiliate Transactions then outstanding, does not exceed ten percent (10%) of
the Issuer's Available Capital then outstanding; provided, that transactions
between the Issuer and any of its majority-owned consolidated Subsidiaries shall
not be subject to the restrictions set forth herein. Without limiting the
foregoing, the Issuer shall not make any loan to (or otherwise enter into any
transaction contemplated by the definition of Debt with) any director (executive
or non-executive) of the Issuer, any direct or indirect holder of more than five
percent (5%) of any class of stock of the Issuer, or any other Person included
in the management of the Issuer, unless, in each case, (x) the board of
directors of the Issuer specifically has approved such loan or other transaction
and (y) the audit committee of the Issuer has been notified of the same.
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(e) Limitation on Asset Dispositions. The Issuer shall not, and shall not
permit any of its Significant Subsidiaries to, directly or indirectly, Transfer
any of its Property except on an arm's-length basis (other than any transfer to
Galicia Uruguay excluded by clause (ii) of the proviso at the end of the
definition of "Debt"), provided that to the extent that any Transfer is for
proceeds in excess of ten million Dollars ($10,000,000) or the asset subject to
such Transfer has a fair market value in excess of ten million Dollars
($10,000,000), then prior to such Transfer the Issuer shall provide to the Agent
an opinion as to the substantial fairness of the economic terms and conditions
(including as to price) of such Transfer from an independent, internationally
recognized, reputable investment bank or accounting firm. The Issuer shall, and
shall cause the relevant Significant Subsidiary to, to the extent applicable,
apply any Net Cash Proceeds received from any such Transfer as required pursuant
to Section 3.2.
(f) Fundamental Changes. The Issuer shall not:
(i) change its organizational documents (including its Charter) in any
manner which would be inconsistent with the provisions of this
Agreement;
(ii) change its Fiscal Year; or
(iii) change the nature of its present business or operations.
(g) Prepayment of Other Debt. The Issuer shall not and shall not permit
any of its Significant Subsidiaries to, directly or indirectly, take any of the
following actions: prepay, redeem, purchase, defease or otherwise satisfy prior
to the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Debt, unless the Issuer shall make,
within five (5) days thereafter, a prepayment or redemption of the Long-Term
Dollar Notes and the other Long-Term Debt on a pro rata and pari passu basis;
provided that the following shall be permitted: (i) regularly scheduled or
required repayments or redemptions of such Debt, (ii) mandatory prepayments or
redemptions under Section 3.2, (iii) repayments of Surviving Debt with
instruments with terms and conditions substantially similar to the Notes, (iv)
with respect to any Subordinated Debt of the Issuer, capitalization of such
Subordinated Debt into equity of the Issuer, and (v) any mandatory prepayment or
repayment of Debt owed to the Central Bank pursuant to the "matching" regime as
a result of the amortization or repayment profile of the assets relevant to such
regime pursuant to Decree 1262/03.
(h) Accounting Changes. The Issuer shall not, and shall not permit any of
its Subsidiaries to, make or permit any change in accounting policies or
reporting practices, except as required or permitted by the Accounting
Principles.
(i) Amendment, Etc., of Other Transaction Documents. The Issuer shall not
cancel or terminate any agreement, instrument or document evidencing Debt in
excess of ten million Dollars ($10,000,000) or consent to or accept any
cancellation or termination thereof, or agree to or consent to or accept in any
manner any other amendment, modification, waiver or change of any term or
condition of any such agreement, instrument or document or take any other action
that would (i) shorten the maturity or increase the amount of any payment of
principal thereof, (ii) increase the interest rate or shorten the date for
payment of interest thereon or (iii) result in any covenants or events of
default thereunder being more restrictive in any material respect to
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the Issuer than the covenants and Events of Default hereunder, except for any
such cancellation, termination, amendment, modification, waiver or change that
is made to Debt having an original maturity of one (1) year or less. For
avoidance of doubt, but only to the extent specified in clause (ii) of the
proviso at the end of the definition of Debt, certain obligations with respect
to Galicia Uruguay are excluded from the definition of Debt.
(j) Prohibited Payments. The Issuer shall not make, authorize or allow,
and shall not permit any Subsidiary, Affiliate, or other Person acting on behalf
of the Issuer or any such Subsidiary or Affiliate to make, authorize or allow,
any: offer, gift, payment, promise to pay or authorization of the payment of any
money or anything of value, that unlawfully under Applicable Laws is used or is
intended to be used with the purpose of influencing any act or decision or
omission of any Authority or employee or official thereof. In addition, the
Issuer agrees that if the Agent (pursuant to written notice of the Required
Holders) notifies the Issuer of the Agent's concern as to a possible violation
of this Section, the Issuer shall cooperate in good faith with the Agent and
with the Agent's representatives to determine whether said violation has
occurred or not. The Issuer shall respond in reasonable detail to any
notification from the Agent, and shall provide at the Agent's request, any
documentation in support of that response.
(k) Capital Expenditures; Investments. The Issuer shall not, and shall not
permit any Significant Subsidiary to, make Capital Expenditures and/or
Investments in excess, in the aggregate, of (i) twenty million Dollars
($20,000,000) (or the Dollar Equivalent in any other currency) for the period
from and including the Effective Date through the end of the Fiscal Year ended
December 31, 2004; (ii) twenty-five million Dollars ($25,000,000) (or the Dollar
Equivalent in any other currency) for the Fiscal Year ended December 31, 2005;
and (iii) thirty million Dollars ($30,000,000) (or the Dollar Equivalent in any
other currency) during any Fiscal Year thereafter; provided that,
notwithstanding the foregoing, the Issuer also may make Capital Expenditures
during the term of this Agreement in connection with the construction of the
Headquarter Office set forth in Part A of Schedule V up to an aggregate amount
of twenty-five million Dollars ($25,000,000) (or the Dollar Equivalent in any
other currency).
(l) Compensation of Directors, Etc. The Issuer shall not, and shall not
permit any Significant Subsidiary to:
(i) pay fees to the members of its board of directors during any Fiscal
Year, or enter into agreements or any other kind of transactions
pursuant to which the Issuer shall (or shall be obligated to) pay
fees, salaries, retainers or any other kind of compensation to the
members of its board of directors during any Fiscal Year, if the
aggregate amount of fees, salaries, retainers or other compensation
covered by this clause (i) during such Fiscal Year would exceed one
million five hundred thousand Dollars ($1,500,000) (or the Dollar
Equivalent in any other currency); provided that the Issuer shall be
permitted to make additional payments to members of the board who
hold executive positions of the Issuer in renumeration for their
executive functions in accordance with clause (ii) below; or
(ii) make any payment to its Management in excess of Market Compensation.
For this purpose: "Management" means full-time employees, full-time
officers or members of the board of the Issuer who hold executive
positions of the Issuer;
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and "Market Compensation" means compensation that is within the
normal range of compensation for bank executives in the Country.
(m) Waiver of Stay, Extension or Usury Laws. The Issuer covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or
forgive the Issuer from paying all or any portion of the principal of or
interest on the Restructured Dollar Notes or 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 the Financing Agreements. The Issuer hereby
expressly waives (to the extent that it may lawfully do so) all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Agent, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE VII
Events of Default
Section 7.1. Acceleration after Default. Subject to Section 7.2, if any
Event of Default occurs and is continuing (whether it is voluntary or
involuntary, or results from operation of law or otherwise), the Agent shall, at
the request, or may with the consent of, the Required Holders, by written notice
to the Issuer, require the Issuer to repay the Restructured Dollar Notes or such
part of the Restructured Dollar Notes as is specified in that notice. On receipt
of any such notice, the Issuer shall immediately repay the Restructured Dollar
Notes (or that part of the Restructured Dollar Notes specified in that notice)
and pay all interest accrued on it and any other amounts then payable under this
Agreement. The Issuer hereby waives any right it might have to further notice,
presentment, demand or protest with respect to that demand for immediate
payment.
Section 7.2. Events of Default. As long as any of the Notes remain
outstanding, if any of the following events (each, an "Event of Default") shall
occur and be continuing:
(a) default by the Issuer in the payment of any principal due on any
Senior Dollar Note and such default continues for a period of five (5) Business
Days; or
(b) default by the Issuer in the payment of any interest or any Additional
Amounts due on any Senior Dollar Note and such default continues for a period of
ten (10) calendar days; or
(c) the Issuer shall fail to duly perform or observe any other covenant or
obligation under the Financing Agreements; provided that if such failure may be
cured, then such failure shall continue for a period of thirty (30) days after
the earlier of (i) the Issuer becoming aware of such failure and (ii) written
notice as to such failure is received by the Issuer from the Agent or any holder
of the Notes; or
(d) (i) the Issuer or any of its Significant Subsidiaries shall fail to
pay individually or in the aggregate an amount greater than two million Dollars
($2,000,000) (or the Dollar Equivalent in any other currency) of any principal
of, premium or interest on or any other amount payable in respect of any Debt of
the Issuer or such Significant Subsidiary (as the case
63
may be) that is outstanding (for the purposes of this subsection, "Material
Indebtedness"), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; (ii) any event or condition
which may result in the acceleration of the maturity of any Material
Indebtedness or enables (or with notice, the lapse of time or both, would
enable) the holder of such Material Indebtedness to accelerate the maturity
thereof occurs; or (iii) any such Material Indebtedness shall be declared to be
due and payable or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to be made,
in each case prior to the stated maturity (or scheduled date of redemption)
thereof; or
(e) it becomes unlawful for the Issuer to perform any of its material
obligations under the Financing Agreements, any other Restructured Debt, or any
of its obligations thereunder ceases to be valid, binding or enforceable; or
(f) any of the Financing Agreements for any reason ceases to be in full
force and effect in accordance with its terms (except in accordance with the
termination provisions thereof) or the binding effect or enforceability thereof
shall be contested by the Issuer, or the Issuer shall deny that it has any
further liability or obligation thereunder or in respect thereof; or
(g) (i) a court having jurisdiction enters a decree or order for (A)
relief in respect of the Issuer or any Significant Subsidiary in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or (B) appointment of an administrator, receiver, trustee,
or intervener for the Issuer or any Significant Subsidiary for all or
substantially all of the Property of the Issuer or any Significant Subsidiary
and, in each case, such decree or order shall remain unstayed and in effect for
a period of thirty (30) consecutive days other than the controllers ("veedores")
appointed for the Issuer by the Central Bank under Section 34 of the Financial
Entities Act pursuant to the Plan (or the intervener appointed for Galicia
Uruguay by the Uruguayan Central Bank) or (ii) the Central Bank (A) initiates a
proceeding under Article 34 of the Financial Entities Act requesting the Issuer
or any Significant Subsidiary to submit a plan under such Article (excluding the
Issuer's current situation in relation with the Plan submitted under such
Section 34 of the Financial Entities Act) or (B) orders a temporary, total or
partial suspension of the activities of the Issuer pursuant to Article 49 of the
charter of the Central Bank; or
(h) the Issuer or any Significant Subsidiary is declared in bankruptcy by
a firm, non-appealable decision dictated by a court of competent jurisdiction
under Argentine Law N(degree) 24,522, as amended, or any applicable bankruptcy,
insolvency or other similar law or hereinafter in effect; or
(i) the Issuer or any Significant Subsidiary (i) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; provided that the institution or consummation of an APE in
connection with the restructuring of the Issuer's foreign debt shall not be an
Event of Default, (ii) consents to the appointment of or taking possession by an
administrator, receiver, trustee, or intervener for itself or any Significant
Subsidiary or for all or substantially all of the Property of the Issuer or any
Significant
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Subsidiary, other than the controllers ("veedores") appointed for the Issuer by
the Central Bank under Section 34 of the Financial Entities Act pursuant to the
Plan (or the intervener appointed in Galicia Uruguay by the Uruguayan Central
Bank) or (iii) effects any general assignment for the benefit of creditors under
the restructuring process contemplated under Section 35 bis of the Financial
Entities Act; or
(j) any event occurs which under the laws of any relevant jurisdiction has
an analogous effect to any of the events referred to in subparagraphs (g), (h)
or (i) above; or
(k) (i) an attachment, execution, seizure before judgment or other legal
process shall be levied or enforced upon any part of the Property of the Issuer
or any Significant Subsidiary (A) the loss of which Property could reasonably be
expected to result in a Material Adverse Effect, or (B) the amount sought
pursuant to the underlying legal claim related to such attachment, execution,
seizure before judgment or other legal process, if required to be paid by the
Issuer could reasonably be expected to result in a Material Adverse Effect, and
(ii) such attachment, execution, seizure before judgment or other legal process
is not within one hundred and eighty (180) days (A) discharged or (B) contested
in good faith by appropriate proceedings upon stay of execution of the
enforcement thereof or upon posting a bond in connection therewith; or
(l) a moratorium is agreed or declared in respect of any Debt of the
Issuer or of any Significant Subsidiary or any restriction or requirement, in
each case, not in effect on the date hereof is imposed, whether by legislative
enactment, decree, regulation, order or otherwise, which limits the availability
or the transfer of foreign exchange by the Issuer or such Significant Subsidiary
for the purpose of performing any material obligation under any agreement
evidencing or documenting Debt to which the Issuer or such Significant
Subsidiary is a party; or
(m) (i) any Authority having jurisdiction over the Issuer or any
Significant Subsidiary of the Issuer or any of their respective Property shall
condemn, nationalize, seize, compulsorily purchase or otherwise expropriate all
or any substantial part of the Property of the Issuer or any Significant
Subsidiary or the share capital of the Issuer or any Significant Subsidiary, or
shall have assumed custody or control of such Property or other assets or of the
business or operations of the Issuer or any Significant Subsidiary or of the
share capital of the Issuer or any Significant Subsidiary, or shall have taken
any action for the winding up or dissolution or disestablishment of the Issuer
or any Significant Subsidiary or any action that would prevent the Issuer or any
Significant Subsidiary or any of their respective officers from carrying on any
of their respective businesses or operations or a substantial part thereof for a
period of longer than thirty (30) days and the result of any such action shall
materially prejudice the ability of the Issuer to perform its obligations under
the Financing Agreements or, in the case of the Issuer or any Significant
Subsidiary, under any other agreements evidencing or documenting Debt of the
Issuer or of any Significant Subsidiary or (ii) any Authority having
jurisdiction over the Issuer or any of its Property condemns, nationalizes,
seizes, compulsorily purchases or expropriates five percent (5%) or more of the
assets of the Issuer and its Subsidiaries considered as one enterprise; or
(n) any governmental or other consent, license, approval (including any
foreign exchange approval) or authorization which is necessary under any
Applicable Law for the execution, delivery or performance of any agreement,
document or instrument evidencing
65
documenting Debt issued in connection with the restructuring of the Issuer's
Debt or to make any such agreement legal, valid, enforceable or shall be
withdrawn or shall cease to be in full force and effect or shall be modified in
a manner unacceptable to the Required Holders; or
(o) a Change of Control shall occur, provided, however, a Change of
Control shall not constitute an Event of Default if:
(i) the unsecured, non-credit enhanced Debt of the acquiror of ownership
or Control has an international credit rating (Foreign Currency
(Dollars)) of at least "investment grade" by two (2) of the Rating
Agencies;
(ii) the unsecured, non-credit enhanced Debt of the acquiror of ownership
or Control has an equal to or higher international credit rating
(Foreign Currency (Dollars)) than the Issuer immediately prior to
the Change of Control, as determined by two (2) of the Rating
Agencies;
(iii) the Issuer has received letters from two (2) of the Rating Agencies
prior to the Change of Control stating that the international credit
rating (Foreign Currency (Dollars)) of the Issuer after the Change
of Control will be higher than immediately prior to the Change of
Control;
(iv) the acquiror of ownership or Control is either (x) organized under
the laws of, and has its headquarters in, a country that is a member
of the Organisation for Economic Co-operation and Development
("OECD"), Brazil or Chile or (y) Controlled by a company organized
under the laws of, and has its headquarters in, a country that is a
member of the OECD, Brazil or Chile; and
(v) the acquiror of ownership or Control is a financial institution; or
(p) any material representation or warranty confirmed or made by the
Issuer in any Financing Agreement or in connection with the execution and
delivery of any Financing Agreement (including any certificate, financial
statement or other document delivered to the Agent) is untrue or incorrect in a
material respect; or
(q) Grupo Galicia shall fail to duly perform or observe any covenant or
obligation under the Grupo Galicia Agreement, the Purchase Agreement, the
Registration Rights Agreement or the Subscription Agreement; provided that if
such failure may be cured, then such failure shall continue for a period of
thirty (30) days after the earlier of (i) Grupo Galicia becoming aware of such
failure and (ii) written notice as to such failure is received by Grupo Galicia
from the Agent; or
(r) any material representation or warranty confirmed or made by Grupo
Galicia in the Grupo Galicia Agreement, the Purchase Agreement, the Registration
Rights Agreement or the Subscription Agreement is untrue or incorrect in a
material respect;
then, except as otherwise provided in the next succeeding paragraph in respect
of the Subordinated Dollar Notes, (a) as soon as practicable after a Responsible
Officer of the Agent obtains (i) written notice thereof from a Responsible
Officer of a Holder or the Issuer or (ii)
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actual knowledge thereof in its capacity as an Agent hereunder, the Agent shall
give written notice thereof to the Long-Term Dollar Holders and Medium-Term
Dollar Holders and (1) (other than with respect to an Event of Default of the
type described in subsections (g) through (i) above) the Majority Long-Term
Dollar Holders and the Majority Medium-Term Dollar Holders may by written notice
to the Issuer and to the Agent, declare the principal amount of such
Restructured Dollar Notes and the interest accrued with respect to each relevant
Tranche and all other amounts (including Additional Amounts) payable to be due
and payable immediately, or (2) if an Event of Default of the type described in
subsections (g) through (i) above shall occur, the principal of (and Additional
Amounts, if any) and any accrued interest on all outstanding Long-Term Dollar
Notes and Medium-Term Dollar Notes shall become immediately due and payable
without the need of any notice to the Issuer or the Agent, as the case may be;
provided, however, that after any such acceleration of (x) Long-Term Dollar
Notes, the Majority Long-Term Dollar Holders may rescind and annul such
acceleration with respect to the Long-Term Dollar Notes if all Events of
Default, other than the non-payment of accelerated principal, have been cured or
waived as provided in the Financing Agreements and (y) and Medium-Term Dollar
Notes, the Majority Medium-Term Dollar Holders may rescind and annul such
acceleration with respect to the Medium-Term Dollar Notes if all Events of
Default, other than the non-payment of accelerated principal, have been cured or
waived as provided in the Financing Agreements.
For Argentine regulatory purposes as set forth in Central Bank
Comunicacion "A" 2970, Holders holding Subordinated Dollar Notes shall have no
right to accelerate repayment of the Subordinated Dollar Notes except under an
Event of Default with respect to the Issuer described under subsection (h)
(excluding Significant Subsidiaries) above (such "Event of Default" in respect
of the Subordinated Dollar Notes, shall also be a "Subordinated Dollar Note
Event of Acceleration") that has occurred and is continuing. In such situation,
all Subordinated Dollar Notes shall, without any notice to the Issuer or any
other act by any Holder holding any Subordinated Dollar Notes, become
immediately due and payable. Holders holding the Subordinated Dollar Notes shall
have no right to accelerate repayment of Subordinated Dollar Notes in the case
of any Event of Default except in the case of an Event of Default which would
constitute a Subordinated Dollar Note Event of Acceleration. Upon any such
acceleration, the principal of the Subordinated Dollar Notes so affected and the
interest accrued thereon and all other amounts (including, without limitation,
Additional Amounts, if any) payable with respect to the Subordinated Dollar
Notes so affected shall become and be immediately due and payable once all other
nonsubordinated liabilities of the Issuer have been fully paid. Holders of
Subordinated Dollar Notes expressly waive any general or special privilege they
may have. The distribution of the liquidation proceeds shall be made pro rata
among all holders of subordinated debt of the Issuer and the remaining
liabilities accepted (verificados) in the bankruptcy proceeding.
The foregoing provisions shall be without prejudice to the rights of each
individual Holder or holder of Notes to initiate an action against the Issuer
for the payment of any principal and any interest (and Additional Amounts, if
any) past due on any Note, as the case may be.
No course of dealing and no delay in exercising, or omission to exercise,
any right, power or remedy accruing to all Holders and all holders of Notes upon
any default under the Financing Agreements or any other agreement shall impair
any such right, power or remedy or be construed
67
to be a waiver thereof or an acquiescence therein; nor shall the action of any
Holder or holder of Notes in respect of any such default, or any acquiescence by
it therein, affect or impair any right, power or remedy of all Holders and all
holders of Notes in respect of any other default. The rights and remedies
provided herein are cumulative and not exclusive of any remedies provided by
law.
ARTICLE VIII
The Agent and the Documentation Agent
Section 8.1. Authorization and Action. Each of the Holders party hereto
hereby appoints and authorizes the Agent and the Documentation Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement and the other Financing Agreements as are delegated to the
Agent or the Documentation Agent, as the case may be, by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Financing
Agreements (including, without limitation, enforcement or collection of the
Notes), the Agent and the Documentation Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting, including without imitation as set forth in Section 8.5) upon the
instructions of the Required Holders, and such instructions shall be binding
upon all Holders; provided, however, that neither the Agent nor the
Documentation Agent shall be required to take any action that exposes the Agent
or the Documentation Agent, as the case may be, to personal liability or that is
contrary to this Agreement or applicable law. The Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Holders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all of the Holders and each subsequent
holder of any interest in Notes. Neither the Agent nor any of its directors,
officers, employees or agents shall have any responsibility to the Issuer on
account of the failure of or delay in performance or breach by any Holder or the
Documentation Agent of any of its obligations hereunder or to any Holder on
account of the failure of or delay in performance or breach by any other Holder
or the Documentation Agent or the Issuer of any of their respective obligations
hereunder or under any other Transaction Document or in connection herewith or
therewith, except for any failure, delay or breach of any such Person
constituting gross negligence or willful misconduct. The Agent agrees to give to
each Holder prompt notice of each notice given to it by the Issuer pursuant to
the terms of this Agreement or delivered by the Issuer to the Agent with express
instructions for delivery to the Holders.
Section 8.2. Agents' Reliance, Etc. (a) Neither the Agent or the
Documentation Agent nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with the Financing Agreements, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, each of the Agent and the Documentation Agent: (i)
may treat the payee of any Note as the holder thereof until the Agent receives
and accepts an Assignment and Acceptance entered into by the Holder that is the
payee of such Note, as assignor, and an assignee, as provided in Section 9.4;
(ii) may consult with legal counsel (including, without limitation, counsel for
the Issuer), independent public accountants and other experts selected by
68
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to the Issuer and shall not
be responsible to the Issuer for any statements, warranties or representations
(whether written or oral) made in or in connection with the Financing
Agreements; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Financing Agreement on the part of the Issuer or to inspect the property
(including, without limitation, the books and records) of the Issuer; (v) shall
not be responsible to any Holder for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Financing Agreement or any other instrument or
document furnished pursuant thereto; or (vi) shall incur no liability under or
in respect of any Financing Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telegram, telecopy
or telex) believed by it to be genuine and signed or sent by the proper party or
parties.
(b) Each of the Agent and the Documentation Agent undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. Neither the Agent nor the Documentation Agent shall have any duties
or responsibilities except those expressly set forth in this Agreement or be a
trustee for or have any fiduciary obligation to any party hereto.
(c) The duties and obligations of the Agent and the Documentation Agent
shall be determined solely by the express provisions of this Agreement, and no
implied covenants or obligations shall be read into this Agreement against the
Agent or the Documentation Agent.
(d) In the absence of willful misconduct, bad faith or gross negligence
on the part of the Agent or the Documentation Agent, as the case may be, the
Agent or the Documentation Agent, as the case may be, may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Agent or the
Documentation Agent, as the case may be, which conform to the requirements of
this Agreement.
(e) None of the provisions of this Agreement shall require the Agent or
the Documentation Agent, as the case may be, to expend or risk its own funds or
otherwise to incur any liability, financial or otherwise, in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or indemnity satisfactory to it against such risk or liability is not assured to
it.
(f) Whenever in the administration of the provisions of this Agreement
the Agent or the Documentation Agent, as the case may be, shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering any action to be taken hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
willful misconduct, gross negligence or bad faith on the part of the Agent, or
the Documentation Agent, as the case may be, be deemed to be conclusively proved
and established by a written notice from the applicable Holders and delivered to
the Agent or the Documentation Agent, as the case may be, and such written
notice, in the absence of willful misconduct, gross negligence or bad faith on
the part of the Agent or the Documentation Agent, as the case may be,
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shall be full warrant to the Agent or the Documentation Agent, as the case may
be, for any action taken, suffered or omitted by it under the provisions of this
Agreement upon the faith thereof.
(g) Neither the Agent nor the Documentation Agent shall be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
entitlement order, approval or other paper or document other than as otherwise
specified in this Agreement.
(h) The Agent and the Documentation Agent, as the case may be, may
execute any of their respective powers hereunder or perform any of their
respective duties hereunder either directly or by or through agents, attorneys,
custodians or nominees appointed with due care, and shall not be responsible for
any willful misconduct or gross negligence on the part of any agent, attorney,
custodian or nominee so appointed.
(i) Any corporation into which the Agent or the Documentation Agent, as
the case may be, may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Agent or the Documentation Agent, as the case may be,
shall be a party, or any corporation succeeding to the business of the Agent or
the Documentation Agent, as the case may be, shall be the successor of the Agent
or the Documentation Agent, as the case may be, hereunder without the execution
or filing of any paper with any party hereto or any further act on the part of
any of the parties hereto except where an instrument of transfer or assignment
is required by law to effect such succession, anything herein to the contrary
notwithstanding.
(j) In no event shall the Agent or the Documentation Agent be liable for
special, punitive, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Agent or the
Documentation Agent has been advised of the likelihood of such loss or damage
and regardless of the form of action.
Section 8.3. Agent, Documentation Agent and Affiliates. With respect to
any Restructured Dollar Notes that may be issued to it, (a) each of the Agent
and the Documentation Agent, as the case may be, shall have the same rights and
powers under the Financing Agreements as any other Holder and may exercise the
same as though it were not an Agent and (b) the term "Holder" or "Holders"
shall, unless otherwise expressly indicated, include the Agent and the
Documentation Agent, as the case may be, in its individual capacity. Each of the
Agent and the Documentation Agent, as the case may be, and their respective
Affiliates, may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, the Issuer, any of its Subsidiaries and any Person
that may do business with or own securities of the Issuer or any such
Subsidiary, all as if the Agent was not Agent and as if the Documentation Agent
was not Documentation Agent and without any duty to account therefor to the
Holders.
Section 8.4. Holder Credit Decision. (a) Each Holder acknowledges that it
has, independently and without reliance upon any Agent, the Documentation Agent
or any other Holder (and their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates) and based on the financial statements
referred to in Section 4.15 and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
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this Agreement. Each Holder also acknowledges that it will, independently and
without reliance upon any Agent, the Documentation Agent or any other Holder
(and their respective officers, directors, employees, agents, attorneys-in-fact
or affiliates) and based on such documents and information as it shall deem
appropriate at the time, continue to make its own decisions (including credit
decisions) in taking or not taking action under this Agreement.
(b) The relationship between the Agent and each of the Holders is that
of an independent contractor. The use of the term "Agent" is for convenience
only and is used to describe, as a form of convention, the independent
contractual relationship between such Agent and each of the Holders. Nothing
contained in this Agreement or the other Transaction Documents shall be
construed to create a trust or other fiduciary relationship between Agent and
any of the Holders.
Section 8.5. Indemnification. (a) Each Holder severally agrees to
indemnify the Agent and the Documentation Agent (and their respective officers,
directors, employees and agents) (to the extent not promptly reimbursed by the
Issuer) from and against such Holder's ratable share (determined as provided
below) of any and all liabilities, taxes (but excluding any tax imposed on or
measured by the net income of the Agent pursuant to the laws of the jurisdiction
in which it is organized or the jurisdiction in which the principal office of
the Agent is located or any subdivision thereof), obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Agent or the Documentation Agent or any of their respective
officers, directors, employees or agents in any way relating to or arising out
of a Financing Agreement, any other Transaction Document or any action taken or
omitted by the Agent or the Documentation Agent under a Financing Agreement or
any other Transaction Document (collectively, the "Indemnified Costs");
provided, however, that no Holder shall be liable for any portion of such
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's or the
Documentation Agent's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Holder agrees to reimburse the Agent and the
Documentation Agent promptly upon demand for its ratable share of any costs and
expenses (including reasonable fees and expenses of counsel) payable by the
Issuer under Section 9.3, to the extent that the Agent or the Documentation
Agent, as the case may be, is not promptly reimbursed for such costs and
expenses by the Issuer. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 8.5 applies
whether any such investigation, litigation or proceeding is brought by any
Holder or any other Person.
(b) For purposes of this Section 8.5, the Holders' respective ratable
shares of any amount shall be determined according to the aggregate principal
amount of the Restructured Dollar Notes outstanding at the time that the action
or inaction resulting in the incurrence by the Agent or the Documentation Agent,
as the case may be, of Indemnified Costs and owing to the respective Holders at
the time that the action or inaction resulting in the Agent's or the
Documentation Agent's, as the case may be, Indemnified Costs were incurred.
Without prejudice to the survival of any other agreement of any Holder
hereunder, the agreement and obligations of each Holder contained in this
Section 8.5 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Financing
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Agreements, the termination of the Financing Agreements and the removal or
resignation of the Agent or the Documentation Agent, as the case may be.
Section 8.6. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Holders and the Issuer and may be removed at any
time with or without cause by the Required Holders. Upon any such resignation or
removal, the Required Holders shall have the right (and so long as no Default
shall have occurred and be continuing, subject to the Issuer's consent, which
consent shall not be unreasonably withheld) to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Holders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation or the Required Holders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Holder Parties, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States or of any State thereof and having a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations under the Financing Agreements. If within forty-five (45) days
after written notice is given of the retiring Agent's resignation or removal
under this Section 8.6 no successor Agent shall have been appointed and shall
have accepted such appointment, then on such forty-fifth (45th) day (a) the
retiring Agent's resignation or removal shall become effective, (b) the retiring
Agent shall thereupon be discharged from its duties and obligations under the
Financing Agreements and (c) the Required Holders shall thereafter perform all
duties of the retiring Agent under the Financing Agreements until such time, if
any, as the Required Holders appoint a successor Agent as provided above. After
any retiring Agent's resignation or removal hereunder as Agent shall have become
effective, the provisions of this Article VIII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
Section 8.7. Documentation Agent. Notwithstanding anything to the contrary
in this Agreement, after the Effective Date, the Documentation Agent shall have
no further obligation under or in connection with this Agreement.
ARTICLE IX
Miscellaneous
Section 9.1. Notices. (a) All notices and other communications provided
for hereunder shall be either (x) in writing (including telecopier
communication) and mailed, telecopied or delivered or (y) as and to the extent
set forth in Section 9.1(b) and in the proviso to this Section 9.1(a), if to the
Issuer, at its address at Banco xx Xxxxxxx y Buenos Aires S.A., Tte. Gral. Xxxx
X. Xxxxx 407, 2(0) Piso, (C1038AAI) Buenos Aires, Argentina, Attention: Xxxxxx
Xxxxx, Telecopy: (x00 00) 0000-0000, with a copy to White & Case LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx
Xxxxxxxxx, Telecopy: (x0 000) 000-0000; if to any Holder party hereto as of the
Effective Date, at its address for notices specified opposite its name on
Schedule III hereto; if to any other Holder, at its address for notices
specified in the Assignment and Acceptance pursuant to which it became a Holder,
with a copy to Mayer, Brown, Xxxx & Maw LLP, 000 X. XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxx
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Xxxxxxx, Telecopy: (x0 000) 000-0000; if to the Agent, at its address at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx, Telecopy: (212)
797-8614; and if to the Documentation Agent, at its address at 000 Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxx, Telecopy: (212)
412-5660; or, as to the Issuer, the Agent or the Documentation Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Issuer and the Agent,
provided that materials required to be delivered pursuant to Section 6.2 shall
be delivered to the Agent as specified in Section 9.1(b) or as otherwise
specified to the Issuer by the Agent. All such notices and communications shall,
when mailed or telecopied, be effective when deposited in the mails or
transmitted by telecopier, respectively, except that notices and communications
to the Agent pursuant to Article III or Section 9.4 shall not be effective until
received by the Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
(b) So long as the Agent or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 6.2 may be delivered to
the Agent in an electronic medium in a format reasonably acceptable to the Agent
by e-mail at xxxxxxx.xxxxxxxx@xx.xxx with a copy to be delivered by facsimile or
mail. The Issuer agrees that the Agent may make such materials, as well as any
other written information, documents, instruments and other material relating to
the Issuer, any of its Subsidiaries or any other materials or matters relating
to this Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the "Communications") available to the Holders.
(c) Each Holder agrees that notice to it (as provided in the next
sentence) (a "Notice") delivering any materials referred to in (b) above by
e-mail shall constitute effective delivery of such information, documents or
other materials to such Holder for purposes of this Agreement; provided that if
requested by any Holder the Agent shall deliver a copy of the Communications to
such Holder by telecopier. Each Holder agrees (i) to notify the Agent in writing
of such Holder's e-mail address to which a Notice may be sent by electronic
transmission (including by electronic communication) on or before the date such
Holder becomes a party to this Agreement (and from time to time thereafter to
ensure that the Agent has on record an effective e-mail address for such Holder)
and (ii) that any Notice may be sent to such e-mail address.
Section 9.2. No Waiver; Remedies; Amendments; Etc. (a) No failure or delay
by the Agent or any Holder in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agent and
the Holders under this Agreement are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Issuer therefrom shall in any
event be effective unless the same shall have been obtained in accordance with
Section 9.2(b), and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.
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(b) No amendment or waiver of any provision of this Agreement or the
Notes or any other Financing Agreement, nor consent to any departure by the
Issuer therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Holders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall
(1) waive any of the conditions specified in Section 5.1, (2) change the number
of Holders or the percentage of the aggregate unpaid principal amount of the
Restructured Dollar Notes that shall be required for the Holders or any of them
to take any action hereunder, (3) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (4) postpone any date
scheduled for any payment of principal of, or interest on, the Notes pursuant to
Sections 2.9, 2.10, 2.11, 2.12 or 3.3 or any date fixed for payment of fees or
other amounts payable hereunder, (5) limit the payment or indemnification
obligations of the Issuer under any of the Financing Agreements, (6) amend,
modify or waive any of the provisions of Section 3.10 or this Section 9.2 or the
definition of "Required Holders" or any other provision hereof specifying the
number or percentage of Holders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, or (7)
change Section 3.10 in a manner that would alter the pro rata sharing of
payments required thereby, unless, in each case in this proviso, in writing and
signed by the Agent and each Holder adversely affected thereby; provided
further, that no amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Holders required above to take such
action, adversely affect the rights or duties of the Agent under this Agreement
or the other Financing Agreements. Notwithstanding any provision of this
Agreement, if at any time the Issuer or any Affiliate of the Issuer shall become
a Holder hereunder, the Issuer and such Affiliate shall not be entitled to vote
on any matter hereunder and its Restructured Dollar Notes shall be excluded for
calculation purposes of the percentage of the relevant Restructured Dollar Notes
held by Holders.
Section 9.3. Costs and Expenses; Indemnity; Damage Waiver. (a) The Issuer
agrees to pay on demand (i) all reasonable costs and expenses of the Agent and
the Documentation Agent (including (A) all due diligence, transportation,
computer, duplication, audit, search, filing and recording fees and expenses and
(B) the reasonable fees and expenses of counsel for the Agent and the
Documentation Agent in connection with: (1) advising the Agent and/or the
Documentation Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Transaction
Documents, (2) negotiations with the Issuer or with other creditors of the
Issuer or any of its Subsidiaries arising out of any Default or any events or
circumstances that could reasonably be expected to give rise to a Default, (3)
presenting claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally and
any proceeding ancillary thereto and (4) the administration by the Agent of the
indebtedness provided for in this Agreement or otherwise in connection with any
amendment, supplement or notification to, or waiver under, any of the
Transactions Documents, or in connection with the fulfillments of its duties
under the Transaction Documents; and (ii) all costs and expenses of the Agent in
connection with the enforcement of the Financing Agreements, whether in any
action, suit or litigation, or any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally, or whether in connection with
any workout, restructuring or negotiations in respect of the Restructured Dollar
Notes (including, in each case, the reasonable fees and expenses of counsel for
the Agent with respect thereto).
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(b) The Issuer agrees to indemnify, defend and save and hold harmless
the Agent, the Documentation Agent, each Holder, and each Related Party of any
of the foregoing Persons (each such Person being called an "Indemnitee") from
and against, and shall pay on demand, any and all claims, losses, damages,
liabilities and related expenses (including reasonable fees and expenses of any
counsel for any Indemnitee) that are incurred by or asserted against any
Indemnitee, in each case arising out of, in connection with, or by any reason of
(i) the Restructured Dollar Notes, the execution or delivery of the Transaction
Documents or any agreement or instrument contemplated thereby or any transaction
contemplated thereby or the performance by the Issuer or Grupo Galicia of their
respective obligations under the Transaction Documents or the failure of the
Issuer or Grupo Galicia to perform its obligations under any Transaction
Document or (ii) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnitee's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.3(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Issuer, Grupo Galicia,
their respective directors, shareholders or creditors or an Indemnitee, whether
or not any Indemnitee is otherwise a party thereto and whether or not the
transactions contemplated under this Agreement are consummated. The obligations
of the Issuer under Section 9.3(a) and (b) shall survive the termination of the
Financing Agreements and the earlier resignation or removal of the Agent.
(c) To the extent permitted by Applicable Law, the Issuer agrees not to
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions or any Restructured Dollar Note.
(d) If any payment of principal of any LIBOR Note is made by the Issuer
to or for the account of a Holder other than on the last day of the Interest
Period for such Note, as a result of acceleration of the maturity of the Notes
pursuant to Article VII or for any other reason, or if the Issuer fails to make
any payment or prepayment of a LIBOR Note for which a notice of prepayment has
been given or that is otherwise required to be made, whether pursuant to
Sections 2.9, 2.10, 2.11, 2.12, 3.1, 3.2, 7.1 or otherwise, the Issuer shall,
upon demand by such Holder (with a copy of such demand to the Agent) (which
demand shall also set forth an explanation of each such costs, expenses and
losses), pay to the Agent for the account of such Holder any amounts required to
compensate such Holder for any additional costs, expenses or losses that it has
reasonably incurred as a result of such payment or such failure to pay or
prepay, as the case may be, including any premium, penalty or expense incurred
to liquidate or obtain third party deposits or borrowings in order to make,
maintain or fund all or any part of the Restructured Dollar Notes.
(e) If the Issuer fails to pay when due any costs, expenses or other
amounts payable by it under any Financing Agreements to any Person, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of the Issuer by any
75
Holder, in its sole discretion, and such Holder thereupon shall be subrogated to
the rights of such Person.
(f) All amounts due under this Section shall be payable promptly, and in
no event later than thirty (30) days after written demand therefor.
Section 9.4. Assignments; Participations. (a) Each Holder may assign to
one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of the Restructured Dollar Notes held by
it together with the Note or Notes held by it in connection with the
Restructured Dollar Notes subject to such assignment); provided, however, that
(i) except in the case of an assignment to a Person that, immediately prior to
such assignment, was a Holder or an assignment of all of a Holder's rights and
obligations under this Agreement, the aggregate amount of each Tranche of
Restructured Dollar Notes being assigned to such assignee pursuant to such
assignment (determined as of the effective date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than one million
Dollars ($1,000,000) (or (x) a lesser amount if such amount is such Holder's
entire amount of the Tranche being transferred or (y) such lesser amount as
shall be approved by the Issuer), (ii) the parties to each such assignment shall
execute and deliver to the Agent, for its acknowledgment and recording in the
Register, an Assignment and Acceptance, together with the Note or Notes subject
to such assignment and a processing and recordation fee of three thousand five
hundred Dollars ($3,500), (iii) to the extent any modifications are required to
the form of Assignment and Acceptance or additional documentation is required by
the Agent, the parties to each such assignment shall have agreed to reimburse
the Agent for any fees, costs and expenses (including, without limitation, the
fees and expenses of counsel) to the extent necessary or appropriate incurred by
the Agent in connection with the foregoing, and (iv) the parties to each such
assignment shall execute and deliver to the Agent such agreements and documents
(in addition to those required hereunder) as may be satisfactory to the Agent.
(b) Upon such execution, delivery, acknowledgment and recording of the
relevant Assignment and Acceptance, from and after the effective date specified
in such Assignment and Acceptance, unless a later date is specified therein (i)
the assignee thereunder shall constitute a Holder hereunder and (ii) the Holder
assignor thereunder shall, to the extent of the rights and obligations hereunder
that have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 3.6, 3.8 and 9.3 to
the extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the remaining portion
of an assigning Holder's rights and obligations under this Agreement, such
Holder shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Holder assignor thereunder and each assignee thereunder confirm to and agree
with each other and the other parties thereto and hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Holder makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any
Financing Agreement or the execution, legality, validity, enforceability,
genuineness, value and sufficiency of any Financing Agreement or any other
instrument or document furnished pursuant thereto; (ii) such assigning Holder
makes no representation or
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warranty and assumes no responsibility with respect to the financial condition
of the Issuer or the performance or observance by the Issuer of any of its
obligations under any Financing Agreement or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.15 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Holder or any other Holder and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Financing Agreements as are delegated to the Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto; (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Holder and (vii) such assignee
makes each of the representations and warranties set forth in Section 9.5
hereof. An assignee shall not be entitled to receive any greater payment under
Section 3.6 or 3.8 than the Holder assignor would have been entitled to receive
with respect to its rights and obligations under this Agreement assigned to such
assignee, unless the assignment is made with the Issuer's prior written consent,
or in the case of a payment under Section 3.8, unless such assignment shall not
result in a greater payment by the Issuer than would have resulted had the
Holder who originally owned the relevant Note remained the owner thereof (in
which case the Issuer's prior written consent is not required).
(d) The Agent shall maintain at its address referred to in Section 9.1 a
copy of each Assignment and Acceptance delivered to and acknowledged by it and a
register for the recordation of the names and addresses of the Holder and
principal amount of the Restructured Dollar Notes owing under each Tranche to,
each Holder from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Issuer, the Agent and each Holder shall treat each Person whose name is recorded
in the Register as a Holder hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Issuer or the Agent or any
Holder at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Holder and an assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit B hereto, (i) acknowledge
delivery of such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Issuer. In the case of any assignment by a Holder, within five (5) Business Days
after its receipt of such notice, the Issuer, at its own expense, shall execute
and deliver to the Agent in exchange for the surrendered Note or Notes a new
Note or Notes to the order of such assignee in an amount equal to the
Restructured Dollar Notes assumed by it under each Tranche pursuant to such
Assignment and Acceptance and, if any assigning Holder has retained any
Restructured Dollar Notes hereunder, a new Note or Notes to the order of such
assigning Holder in an amount equal to the Restructured Dollar Notes retained by
it hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, as
applicable, or equal to the portion of interest scheduled to be paid on the last
day of the
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following Interest Period in the case of a Note or Note evidencing interest,
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit D-1 (with applicable
modifications), in the case of any Argentine Note, and Exhibit D-2 (with
applicable modifications), in the case of any U.S. Note.
(f) Subject to Section 9.5, each Holder may sell participations to one
or more Persons (other than the Issuer or any of its Affiliates) (a
"Participant") in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Restructured Dollar Notes owing to it together with the Note or Notes (if any)
held by it evidencing such Restructured Dollar Notes); provided, however, that
(i) such Holder's obligations under this Agreement shall remain unchanged, (ii)
such Holder shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Holder shall remain the holder of
any such Note or Notes for all purposes of this Agreement, (iv) the Issuer, the
Agent and the other Holders shall continue to deal solely and directly with such
Holder in connection with such Holder's rights and obligations under this
Agreement and (v) no Participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Financing
Agreement, or any consent to any departure by the Issuer therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation. The Issuer agrees that each Participant shall be entitled to the
benefits of Sections 3.6, 3.8 and 9.3 to the same extent as if it were a Holder
and had acquired its interest by assignment, and to the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.9 as though
it were a Holder; provided, however, that a Participant shall not be entitled to
receive any greater payment under Section 3.6 or 3.8 than the applicable Holder
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Issuer's prior written consent. The parties to any such
participation shall execute and deliver to the Agent such agreements and
documents as it may deem satisfactory.
(g) Any Holder may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 9.4, disclose
to the assignee or Participant or proposed assignee or participant any
information relating to the Issuer furnished to such Holder by or on behalf of
the Issuer; provided, however, that, prior to any such disclosure, the assignee
or participant or proposed assignee or participant shall agree to preserve,
subject to customary limitations and exceptions, the confidentiality of any
Confidential Information received by it from such Holder.
(h) Notwithstanding any other provision set forth in this Agreement, any
Holder may at any time create a security interest in all or any portion of its
rights under this Agreement (including the Restructured Dollar Notes owing to it
and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(i) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) the
78
Issuer may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Holder (and any attempted
assignment or transfer by the Issuer without such consent shall be null and
void) and (ii) no Holder may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section 9.4. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (f) of this
Section 9.4) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Agent and the Holders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
Section 9.5. Holders' Representation. Each Holder (including any assignee
of a Holder) represents, warrants and covenants to the Issuer that such Holder
is acquiring the Restructured Dollar Notes owing to it and the Note or Notes
held by it for its own account and not with a view to assignment, participation
or transfer other than in a manner that will not violate United States
securities laws or the securities laws of any other applicable jurisdiction.
Section 9.6. Survival. All covenants, agreements, representations and
warranties made by the Issuer herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Restructured Dollar Notes, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Agent or any Holder
may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Note or any fee or any other amount payable under this Agreement is outstanding
and unpaid. Without prejudice to the survival of any other agreement of the
Issuer hereunder, the provisions of Sections 3.6, 3.8, and 9.3 of this Agreement
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby or the payment in full of principal,
interest and all other amounts payable hereunder and under any of the other
Financing Agreement.
Section 9.7. Counterparts; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto on separate counterparts), each
of which when so executed shall constitute an original, and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement. From and after
the Effective Date, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Issuer shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Holders. This
Agreement and the other Financing Agreements represent the entire agreement of
the Issuer, the Agent and the Holders with respect to the subject matter hereof
and thereof, and there are no promises, undertakings, representations or
warranties by the Agent or any Holder relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Financing Agreements.
Section 9.8. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
79
invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof, and the
invalidity, illegality or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 9.9. Right of Setoff. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Article VII to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Article VII, the
Agent and each Holder and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and otherwise apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other Debt at any
time owing by the Agent, such Holder or such Affiliate to or for the credit or
the account of the Issuer against any of and all the Obligations of the Issuer
now or hereafter existing under the Financing Agreements, irrespective of
whether the Agent or such Holder shall have made any demand under this Agreement
or such Note or Notes and although such Obligations may be unmatured. If such
Obligations are in different currencies, the Agent, Holder or Affiliate, as
applicable, may convert either the Issuer's Obligations or the Agent, Holder or
Affiliate's, as the case may be, Debt, at a market rate of exchange in its usual
course of business for the purpose of the set-off. The Agent and each Holder
agrees promptly to notify the Issuer after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity or such set-off and application. The rights of the Agent and each
Holder and each of their respective Affiliates under this Section 9.9 are in
addition to other rights and remedies (including other rights of set-off) that
the Agent, such Holder and their respective Affiliates may have.
Section 9.10. Jurisdiction; Consent to Service of Process. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Transaction Documents to which it
is a party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the fullest extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Agent or any Holder
may otherwise have to bring any action or proceeding relating to this Agreement,
the Notes or any of the other Financing Agreements in the courts of any
jurisdiction. The Issuer irrevocably and unconditionally waives any right to
claim a lack of jurisdiction should any Financing Agreement be enforced in the
Country. The Issuer hereby irrevocably appoints CT Corporation System (the
"Process Agent") with an office on the date hereof at 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx, as its agent to receive on behalf of the
Issuer and its property service of copies of the summons and complaint and any
other process which may be served in any such action or proceeding arising out
of or relating to this Agreement or any other Financing Agreement governed by
New York law. Such service may be made by mailing or delivering a copy of such
process to the Issuer in care of the Process Agent at the Process Agent's above
address, and the Issuer hereby irrevocably authorizes and
80
directs the Process Agent to accept such service on its behalf. As an
alternative method of service, the Issuer also irrevocably consents to the
service of any and all process in any such action or proceeding by sending
copies of such process by mail to the Issuer at its address specified in Section
9.1. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
(B) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement, the Notes or
any Financing Agreement to which it is a party in any court referred to in
subparagraph (a) of this Section 9.10. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
Section 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE NOTES, THE OTHER FINANCING AGREEMENTS OR THE
ACTIONS OF THE AGENT OR ANY HOLDER IN THE NEGOTIATION, ADMINISTRATION, OR
PERFORMANCE THEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.12. Judgment Currency. The Issuer's obligations hereunder to
make payments in Dollars shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than Dollars, except to the extent that on the Business Day following
receipt of any sum adjudged to be so due in the judgment currency and the payee
may in accordance with normal banking procedures purchase Dollars in the amount
originally due to the payee with the judgment currency. If for the purpose of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in Dollars into another currency (in this Section 9.12 called "judgment
currency"), the rate of exchange that shall be applied shall be that at which in
accordance with normal banking procedures the Holder could purchase such Dollars
in New York City with the judgment currency on the Business Day next preceding
the day on which such judgment is rendered. The obligation of the Issuer in
respect of any such sum due from it to any Person hereunder (in this Section
9.12 called an "Entitled Person") shall, notwithstanding the rate of exchange
actually applied in rendering such judgment, be discharged only to the extent
that on the Business Day following receipt by such Entitled Person of any sum
adjudged to be due hereunder in the judgment currency such Entitled Person may
in accordance with normal banking procedures purchase and transfer Dollars to
New York City with the amount of the judgment so adjudged to be due; and the
Issuer hereby, as a
81
separate obligation and notwithstanding any such judgment, agrees to indemnify
such Entitled Person against, and to pay such Entitled Person on demand, in
Dollars, the amount (if any) by which the sum originally due to such Entitled
Person in Dollars hereunder exceeds the amount of the Dollars so purchased and
transferred and, if the amount of Dollars so purchased and transferred exceeds
the sum originally due to such Entitled Person in Dollars hereunder, such
Entitled Person shall remit to the Issuer such excess; provided, that such
Entitled Person shall have no obligation to remit such excess so long as the
Issuer shall have failed to pay such Entitled Person any Obligations due and
payable under this Agreement and the Notes, in which case such excess may be
applied to such Obligations of the Issuer hereunder in accordance with the terms
of this Agreement. The Issuer waives the right to invoke any defense of payment
impossibility (including any defense under Section 1198 of the Argentine Civil
Code).
Section 9.13. Waiver of Sovereign Immunity. The Issuer, in respect of
itself, its Subsidiaries, their respective process agents, and their properties
and revenues, hereby irrevocably agrees that, to the extent that the Issuer, its
Subsidiaries or any of their respective properties and revenues has or may
hereafter acquire any right of immunity of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise, and whether characterized as sovereign
immunity or otherwise), whether in the United States, the Country or elsewhere,
to enforce or collect upon the Notes, this Agreement, the other Financing
Agreements, or any other liability or obligation of the Issuer of any of its
Subsidiaries related to or arising from the transactions contemplated by this
Agreement or the other Financing Agreements, including immunity from service of
process, immunity from jurisdiction or judgment of any court or tribunal,
immunity from execution of a judgment, and immunity of any of its property from
attachment prior to any entry of judgment, or from attachment in aid of
execution upon a judgment, the Issuer, for itself and on behalf of its
Subsidiaries, hereby expressly and irrevocably waives any such immunity in
respect of its obligations under this Agreement, the Notes, and the other
Financing Agreements, and, agrees, without limiting the generality of the
foregoing, (i) that the waivers set forth in this Section 9.13 shall have the
fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of
the United States and are intended to be irrevocable for purposes of such Act,
and (ii) not to assert any such right or claim in any such proceeding, whether
in the United States, the Country or elsewhere.
Section 9.14. English Language. This Agreement (other than the form of
Argentine Notes) has been negotiated and executed in the English language. The
English language version of this Agreement (other than the form of Argentine
Notes) and each other Financing Agreement (other than the Argentine Notes) shall
control and be conclusive as to the meaning of any terms and provisions hereof
or thereof except in connection with the enforcement thereof in the Country as
may be required by Argentine law. All agreements, documents, certificates,
reports or notices to be delivered or communications to be given or made by any
party hereto pursuant to the terms of any Financing Agreement shall be in the
English language or, if originally written in another language, shall be
accompanied by an accurate English translation upon which the other parties
hereto shall have the right to rely for all purposes of this Agreement and the
other Financing Agreements.
82
Section 9.15. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.16. Confidentiality. Neither the Agent nor any Holder shall
disclose any Confidential Information to any Person without the consent of the
Issuer, other than (a) to the Agent's or such Holder's Related Parties (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature thereof and instructed to keep such Confidential
Information confidential) and to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any
applicable law, rule or regulation or judicial process, (c) as requested or
required by any state, Federal or foreign authority or examiner regulating such
Holder and (d) to any rating agency when required by it, provided that, prior to
any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Issuer received
by it from such Holder. Notwithstanding anything herein to the contrary, the
Agent, each Holders and their respective Related Parties, may disclose to any
and all persons, without limitation of any kind, the U.S. tax treatment and tax
structure of the transactions contemplated hereunder and under the other
Transaction Documents, and all materials of any kind (including opinions or
other tax analysis) that are provided to the Agent or any Holder, as the case
may be, relating to such U.S. tax treatment and tax structure.
Section 9.17. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO ITS CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 AND SECTION 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Section 9.18. Actions Consistent with this Agreement. Notwithstanding
anything to the contrary set forth in the Notes, each Holder hereby agrees not
to take any action (enforcement or otherwise) pursuant to the Notes that would
be inconsistent with the terms of this Agreement.
[signature pages follows]
83
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BANCO XX XXXXXXX Y BUENOS AIRES S.A.,
as Issuer
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
Note Purchase Agreement
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Agent
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Note Purchase Agreement
BARCLAYS BANK PLC, as Documentation Agent
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
Note Purchase Agreement
HOLDERS:
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxx Xxxxx de la Noue
-----------------------------------
Name: Xxxx Xxxxx de la Noue
Title: FVP Head of Mercosur and
Venezuela
By: /s/ X. Xxxxxxx
-----------------------------------
Name: X. Xxxxxxx
Title: Head of Mexico, Central
America and Caribbean
S-1 Note Purchase Agreement
NEDERLANDSE FINANCIERINGS-
MAATSCHAPPIJ VOOR
ONTWIKKELINGSLANDEN N.V.
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Head Regional Department
Latin America & the Caribbean
By: /s/ X. Xxxxxxxxxxx
----------------------------------------
Name: X. Xxxxxxxxxxx
Title: Manager IMR
Note Purchase Agreement
RZB Finance LLC
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: First Vice President
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Group Vice President
Note Purchase Agreement
SCHEDULE I
EXISTING BONDS AND EXISTING BANK DEBT
A. EXISTING BONDS
APPROXIMATE AGGREGATE
AMOUNT OUTSTANDING AS
INSTRUMENT DESCRIPTION OF APRIL 27, 2004
---------- ----------- ----------------------------
(IN MILLIONS OF U.S.DOLLARS)
STEP UP FLOATING RATE Floating Rate Notes issued under the Indenture, dated as of 136.92
NOTES DUE 2002 (FRN) August 5, 1997, among the Issuer, UBS AG (formerly SBC
Warburg Inc.), as Lead Manager, Citicorp Trust Company
Limited, London, as Trustee and Citibank N.A., London, as
Paying and Issue Agent.
9% NOTES DUE 2003 Notes issued under the Indenture, dated as of November 8, 192.24
(YANKEE BOND) 1993, among the Issuer, The Bank of New York, as Trustee,
co-registrar, principal Paying Agent and Registrar.
B. EXISTING BANK DEBT
APPROXIMATE AGGREGATE
AMOUNT OUTSTANDING AS
TYPE OF INDEBTEDNESS DESCRIPTION OF APRIL 27, 2004
-------------------- ----------- ----------------------------
(IN MILLIONS OF U.S.DOLLARS)
INTERNATIONAL FINANCE Investment Agreement, dated as of July 19, 1996, the Credit A LOAN 15.00
CORPORATION ("IFC") Line Agreement dated as of January 25, 1999, and the A-1 30.00
Amended and Restated Investment Agreement, dated as of July A-2 20.00
2, 1999, between the Issuer and the IFC.
Investment Agreement, dated as of July 19, 1996, and the B LOAN 245.00
Amended and Restated Investment Agreement, dated as of July
2, 1999, among the Issuer, International Finance
Corporation and Dresdner Bank AG, New York Branch, as
Arrangers, Dresdner Bank AG, New York Branch, as Issuing
Bank, the Lenders party thereto and Bankers Trust Company
as Depositary and Administrative Agent.
INTER-AMERICAN INVESTMENT Financial Intermediary Loan Agreement, dated as of March 5, A LOAN 3.64
CORPORATION ("IIC") 1993, and the Amended and Restated Financial Intermediary EXT. B LOAN 3.89
Loan Agreements, dated as of April 5, 1994, March 15, 1996 2ND EXT.B LOAN 25.33
and June 23, 1997, among the Issuer and the Inter-American
Investment Corporation.
Financial Intermediary Loan Agreement, dated December 21, A LOAN 8.82
1998, among the Issuer and the IIC. B LOAN 27.82
Schedule 1-1
NETHERLANDS DEVELOPMENT Loan Agreement, dated as of September 12, 1995, among the 2.00
FINANCE COMPANY ("FMO") Issuer and the FMO (Netherlands Development Finance
Company).
Loan Agreement, dated as of February 29, 1996, among the 4.17
Issuer and the FMO (Netherlands Development Finance
Company).
Loan Agreement, dated as of September 11, 1998, among the 13.13
Issuer and the FMO (Netherlands Development Finance
Company).
COMMODITY CREDIT CORPORATION Loans under the Export Credit Guarantee Program GSM-102 of 102.18
("CCC") the CCC, United States Department of Agriculture, among
the Issuer and certain U.S. Banks.
USCP Loans under the Reimbursement and Credit Agreement, dated 82.00
as of September 22, 2000, as amended, among the Issuer,
HSBC Bank USA, as Issuing Bank, the lenders party thereto,
Bank of America, N.A., as Administrative Agent, and Bank of
America Securities LLC and HSBC Securities (USA) Inc., as
joint Arrangers.
Loans under the Reimbursement and Credit Agreement, dated 250.00
as of February 23, 2001, among the Issuer, Bayerische
Hypo-und Vereinsbank AG, acting through its New York
Branch, as Issuing Bank, the lenders party thereto, The
Chase Manhattan Bank N.A., as Administrative Agent, and
X.X. Xxxxxx, a division of Chase Securities Inc., as
Arranger.
STEP UP FLOATING RATE NOTES Floating Rate Notes issued under the Note Purchase 44.44
DUE 2005 Agreement, dated as of December 18, 2000, among the Issuer,
Banco Santander Central Hispano S.A., acting through its
New York Branch, as Administrative and PRI
Agent, and the Initial Purchasers listed
therein.
Floating Rate Notes issued under the Note Purchase 10.67
Agreement, dated as of June 7, 2001, among the Issuer,
Banco Santander Central Hispano S.A., acting through its
New York Branch, as Administrative and PRI Agent, and the
Initial Purchasers listed therein.
FINANCIAL LOAN Loan requested under SWIFT message, dated as of May 9, 0.80
2001, between the Issuer and Eagle National Bank of Miami,
Miami, Florida.
Loan requested under SWIFT message, dated as of June 5, 2.00
2001, between the Issuer and International Finance Bank,
Miami, Florida.
S-2 Note Purchase Agreement
NDF Several Non Delivery Forward between the Issuer and 12.27
American Express Bank, New York
Several Non Delivery Forward between the Issuer and J.P. 20.78
Xxxxxx Xxxxx, New York
SWAP SWAP REQUESTED UNDER SWIFT MESSAGE, BETWEEN THE ISSUER AND 1.26
BANK OF NOVA SCOTIA.
DOCUMENTARY LETTER OF CREDIT Documentary Letter of Credit issued by the Issuer on May 3, 20.00
2001, for the account of Enron Trading Limited, Xxxxxx
Town, Grand Cayman Islands, British West Indies, in favor
of Enron Metals and Commodity Limited, London, UK. and
confirmed by Banco Bilbao Vizcaya Argentaria, New York, USA.
Documentary Letter of Credit issued by the Issuer on June 10.00
5, 2001, for the account of Enron Trading Limited, Xxxxxx
Town, Grand Cayman Islands, British West Indies, in favor
of Enron Metals and Commodity Limited, London, UK. and
confirmed by Banco Bilbao Vizcaya Argentaria, New York, USA.
Documentary Letter of Credit issued by the Issuer on July 2.00
2, 2001, for the account of Xxxxxxx de Venezuela C.A.,
Caracas, Venezuela, in favor of Xxxxxxx Agricola S.A.,
Turks and Caicos Islands, British West Indies and confirmed
by Fortis Bank (Nederland) N.V. Rotterdam, The Netherlands.
Documentary Letter of Credit issued by the Issuer on July 2.30
3, 2001, for the account of Xxxxxxx de Venezuela C.A.,
Caracas, Venezuela in favor of Xxxxxxx Agricola S.A., Turks
and Caicos Islands, British West Indies and confirmed by
Bank One International Corporation, Dallas, TX, USA.
Documentary Letter of Credit issued by the Issuer on July 2.20
3, 2001, for the account of Xxxxxxx de Venezuela C.A.,
Caracas, Venezuela in favor of Xxxxxxx Agricola S.A., Turks
and Caicos Islands, British West Indies and confirmed by
KBC Bank N.V., Antwerp, Belgium.
Documentary Letter of Credit issued by the Issuer on July 5.50
3, 2001, for the account of Xxxxxxx de Venezuela C.A.,
Caracas, Venezuela in favor of Xxxxxxx Agricola S.A., Turks
and Caicos Islands, British West Indies and confirmed by
Sumitomo Bank, Ltd., New York USA.
S-3 Note Purchase Agreement
Documentary Letter of Credit issued by the Issuer on July 2.00
5, 2001, for the account of Xxxxxxx de Venezuela C.A.,
Caracas, Venezuela in favor of Xxxxxxx Agricola S.A., Turks
and Caicos Islands, British West Indies and confirmed by
Xxxxxxx Kantonalbank, Zurich, Switzerland.
Documentary Letter of Credit issued by the Issuer on July 1.00
5, 2001, for the account of Xxxxxxx de Venezuela C.A.,
Caracas, Venezuela in favor of Xxxxxxx Agricola S.A., Turks
and Caicos Islands, British West Indies and confirmed by
Xxxxxxx Kantonalbank, Zurich, Switzerland.
Documentary Letter of Credit issued by the Issuer on July 5.00
5, 2001, for the account of Xxxxxxx de Venezuela C.A.,
Caracas, Venezuela in favor of Xxxxxxx Agricola S.A., Turks
and Caicos Islands, British West Indies and confirmed by
Banco Bilbao Vizcaya Argentaria, Milan, Italy.
Documentary Letter of Credit issued by the Issuer on July 5.00
13, 2001, for the account of Cargill de Venezuela C.A.,
Caracas, Venezuela, in favor of Xxxxxxx International
S.A., Geneva, Switzerland and confirmed by US Bank,
Minneapolis, MN, USA.
Documentary Letter of Credit issued by the Issuer on July 10.00
20, 2001, for the account of Xxxxxxx de Venezuela C.A.,
Caracas, Venezuela, in favor of Xxxxxxx International
S.A., Geneva, Switzerland and confirmed by Bank of Nova
Scotia, Toronto, Canada.
S-4 Note Purchase Agreement
SCHEDULE II
ESCASANY, AYERZA AND XXXXX FAMILY MEMBERS
SHAREHOLDER DATE OF BIRTH
Xxxxxxx Xxxx Xxxxxxxx June 30, 1950
Xxxx Xxxxxx May 27, 1939
Xxxxxxxx Xxxxx February 4, 1948
Xxxxx Xxxxxx Xxxxxxxx September 14, 1948
Xxxxx Xxxxx January 30, 1937
Xxxxxxxx Xxxxx September 16, 1942
Xxxxxx Xxxxxx Xxxxxxxx December 12, 1943
Xxxxx Xxxxx September 17, 1946
Xxxxxx Xxxxx November 30, 1973
Xxxxxx Xxxxx xx Xxxxxxxxx September 22, 1944
Xxxx Xxxxx Xxxxxxx December 5, 1976
Xxxxx Xxxxx Xxxxxxx January 8, 1976
Xxxxx Xxxxx Malenchini December 28, 1961
Xxxxx Xxxxx Xxxxxxxxxx November 4, 1963
Xxxxxxxx Xxxxxxxx xx Xxxxxxx August 31, 1961
Xxxxxx Xxxxxxxx xx Xxxxxx December 19, 1962
Xxxxxxxxx Xxxxxxxx de Aduriz April 29, 1965
Xxxxx Xxxxx Xxxxxx xx Xxxxxxxxx October 19, 1936
Xxxxxxxx Xxxxx Xxxxxx June 24, 1933
Xxxxx Xxxxxx Xxxxxx February 2, 1935
Xxxxxxxxx Xxxx Xxxxx Xxxxx 26, 1971
Fundacion Banco xx Xxxxxxx y Buenos Aires S.A. N/A
Schedule II-1
SCHEDULE III
HOLDER ADDRESSES
HOLDER PRINCIPAL ADDRESS NOTICE INFORMATION
------ ----------------- ------------------
Natexis Banques Populaires 00 xxx Xxxxx Xxxxxxxxx 00 xxx Xxxxx Xxxxxxxxx
00000 Xxxxx 00000 Xxxxx
Xxxxxx France
Attn: Xxxxxxxxx Xxxxxx /
Xxxx Xxxxx de la Noue
Phone: 00 0 00 00 00 00 /
31 1 58 19 37 82
Fax: 00 0 00 00 00 00
E-mail: xxxxxxxxx.xxxxxx@xxxx.xx /
xxxxxxxxxxxxxxxxx@xxxx.xx
Nederlandse Xxxx van Xxxxxxxxxx 00 P.O. Box 93060
Financierings-Maatschappij voor 0000 XX Xxx Xxxxx 0000 XX The Hague
Ontwikkelingslanden N.V. The Netherlands The Netherlands
Attn: Jan A. Portegies, Senior Investment
Officer Latin America and the Caribbean
Phone: 00 00 000 00 00
Fax: 00 00 000 00 00
RZB Finance LLC 1133 Avenue of the Americas 1133 Avenue of the Americas
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 New York, Xxx Xxxx 00000
XXX XXX
Attn: Xxxxx Xxxxx Xxxxx, Account Officer
Xxxx Xxxxxx and Xxxxxx Xxxxx,
Administive Contacts
Phone: Gapay - 000 000-0000
Weiner - 000 000-0000
Kamel - 000 000-0000
Fax: 000 000-0000 or 000 000-0000
E-mail: xxxxxx@xxxxxxxxxx.xxx
xxxxxxx@xxxxxxxxxx.xxx
xxxxxx@xxxxxxxxxx.xxx
Schedule III-1
SCHEDULE IV
ORIGINAL DOLLAR LOAN AGREEMENTS
AGGREGATE AMOUNT
OUTSTANDING AS OF
TYPE OF INDEBTEDNESS DESCRIPTION APRIL 27, 2004
-------------------- ----------- -----------------------------
(IN MILLIONS OF U.S. DOLLARS)
NETHERLANDS DEVELOPMENT Loan Agreement, dated as of September 12, 1995, among the 2.00
FINANCE COMPANY ("FMO") Issuer and the FMO (Netherlands Development Finance
Company).
Loan Agreement, dated as of February 29, 1996, among the 4.17
Issuer and the FMO (Netherlands Development Finance
Company).
Loan Agreement, dated as of September 11, 1998, among the 13.13
Issuer and the FMO (Netherlands Development Finance
Company).
USCP Loans under the Reimbursement and Credit Agreement, dated 250.00
as of February 23, 2001, among the Issuer, Bayerische
Hypo-und Vereinsbank AG, acting through its New York
Branch, as Issuing Bank, the lenders party thereto, The
Chase Manhattan Bank N.A., as Administrative Agent, and
X.X. Xxxxxx, a division of Chase Securities Inc., as
Arranger.
Schedule IV-1
SCHEDULE V
REAL ESTATE
PART A.
STREET ADDRESS
Tte. Gral. Xxxx X. Xxxxx 000/000
Xxxxxx Xxxxx, Xxxxxxxxx
TOTAL
PART B.
STREET ADDRESS
Tte. Gral. Xxxx X. Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxx
Florida 349/359/361/365 Xxxxxx Xxxxx xx Xxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Florida 000 Xxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Tte. Gral. Xxxx X. Xxxxx 000/000/000
Xxxxxx Xxxxx, Xxxxxxxxx
Xx. xx Xxxx 000
Xxxxxx Xxxxx, Xxxxxxxxx
Xxx Xxxxxx 000 Xxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
X. Xxxxxxxx 000/000/000
Xxxxxx Xxxxx, Xxxxxxxxx
Schedule V-1
SCHEDULE 2.1
PRORATION AND REALLOCATION PROCEDURE
Reference is hereby made to that certain (i) Pricing Supplement, dated
December 23, 2003, of Banco xx Xxxxxxx y Buenos Aires S.A. (the "Issuer")
regarding the offers and solicitation of authorizations to execute an Acuerdo
Preventivo Extrajudicial described therein, as supplemented by the Supplement to
the Pricing Supplement, dated March 18, 2004 and the Second Supplement to the
Pricing Supplement, dated April 6, 2004 (as supplemented, the "Pricing
Supplement"), (ii) Summary of Terms and Conditions of Proposed Restructuring
Transactions, dated March 9, 2004 (the "Term Sheet"), related to the bank debt
restructuring of the Issuer and (iii) the Election Notice provided pursuant to
the terms of this Agreement. Capitalized terms used in this Schedule but not
otherwise defined herein or in this Agreement shall have the respective meanings
assigned thereto in the Pricing Supplement or, if not so defined therein, the
Term Sheet.
Each of the elections made by Holders participating in the Simultaneous
Exchange and/or the Alternative Simultaneous Exchange, shall be prorated on the
terms and conditions set forth in the Section entitled "The Offers -- Proration"
in the Pricing Supplement, provided that for purposes of each of the Holders who
participate in the Alternative Simultaneous Exchange, it shall be understood
that each such Holder shall have the option to elect each of the alternative
options provided for in the Election Notice (notwithstanding anything to the
contrary set forth in the Pricing Supplement) and the prorationing of each of
the Alternative Simultaneous Exchange options available to Holders shall be made
on a pro rata basis, after taking into account all Bondholders and Bank
Creditors that participate in such relevant option.
Schedule 2.1-1
SCHEDULE 4.17
SURVIVING DEBT
(IN MILLIONS OF U.S. DOLLARS)
Outstanding
Principal Final First Second Third Fourth
Creditor Amount Maturity Installment Installment Installment Installment
-------- ------ -------- ----------- ----------- ----------- -----------
7.875% Notes Due 2007 72.6 3/08/2007 3/08/2005 3/08/2006 3/08/2007 --
(NY Restructured Debt)
7th Series Floating Rate Notes Due 43.2 3/08/2007 3/08/2005 3/08/2006 3/08/2007 --
2007 (NY Restructured Debt)
Loan from Seguro de Depositos Sociedad 64.5 3/05/2007 15/06/2004 15/12/2004 15/06/2005 15/12/2005
Anonima (SEDESA)
Loan from Banco de la Nacion 23.9 3/05/2005 3/15/2004 3/11/2004 3/05/2005 --
Argentina in its capacity of trustee
of the Fondo Fiduciario de Asistencia
a Entidades Financieras y de Seguro.
Loan from Banco de la Nacion 11.5 7/12/2008 7/12/2004 7/12/2005 7/12/2006 7/12/2007
Argentina in its capacity of trustee of the
Fondo Fiduciario de Asistencia a
Entidades Financieras y de Seguro.
Discount Bank (1) 0.5 20/12/2005 20/12/2005 -- -- --
Deutsche Bank AG (2) 8.0 3/02/2007 3/02/2005 3/02/2006 3/02/2007 --
Barclays Bank PLC (3) 1.7 3/02/2007 3/02/2005 3/02/2006 3/02/2007 --
BCRA - Hedge Bond 862.1 (*) (*) (*) (*) (*)
(Principal + Adjustments)
BCRA - Rediscounts to cover lack of 1986.3 (*) (*) (*) (*) (*)
liquidity
Fifth Sixth Seventh
Creditor Installment Installment Installment
-------- ----------- ----------- -----------
7.875% Notes Due 2007 -- -- --
(NY Restructured Debt)
7th Series Floating Rate Notes Due -- -- --
2007 (NY Restructured Debt)
Loan from Seguro de Depositos Sociedad 15/06/2006 15/12/2006 03/05/2007
Anonima (SEDESA)
Loan from Banco de la Nacion -- -- --
Argentina in its capacity of trustee
of the Fondo Fiduciario de Asistencia
a Entidades Financieras y de Seguro.
Loan from Xxxxx xx xx Xxxxxx 0/00/0000 -- --
Xxxxxxxxx in its capacity of trustee of the
Fondo Fiduciario de Asistencia a
Entidades Financieras y de Seguro.
Discount Bank (1) -- -- --
Deutsche Bank AG (2) -- -- --
Barclays Bank PLC (3) -- -- --
BCRA - Hedge Bond (*) (*) (*)
(Principal + Adjustments)
BCRA - Rediscounts to cover lack of (*) (*) (*)
liquidity
Schedule 4.17-1
Banco Santander Central Hispano S.A.(4) 10.3 (5) (5) (5) (5) (5)
KBC Bank NV (4) 4.9 (5) (5) (5) (5) (5)
Bank One, N.A. (4) 3.0 (5) (5) (5) (5) (5)
Banco Espanol de Credito S.A. (4) 2.0 (5) (5) (5) (5) (5)
Bayerische Hypo-und Vereinsbank A.G.(4) 5.1 (5) (5) (5) (5) (5)
Banco Santander Central Hispano S.A.(4) (5) (5) (5)
KBC Bank NV (4) (5) (5) (5)
Bank One, N.A. (4) (5) (5) (5)
Banco Espanol de Credito S.A. (4) (5) (5) (5)
Bayerische Hypo-und Vereinsbank A.G.(4) (5) (5) (5)
* See Letter from Banco Central de la Republica Argentina to Banco xx Xxxxxxx y
Buenos Aires S.A. (the "Bank"), dated February 3, 2004, for the final maturity
and amortization schedule.
(1) Time Deposit placed with the Bank by Discount Bank. The Time Deposit was
converted, at the option of Discount Bank, to a bullet line of credit with a
final maturity of not less than four years rather than the alternative of a
pesification at a rate of US$1 to Ps.1.40.
(2) Debt assumed by the Bank as part of the restructuring of the Bank New York
branch, pursuant to an agreement dated May 31, 2002, among the Bank, the Bank's
New York branch and Banco Latinoamericano de Exportaciones, S.A., which was
afterwards assigned to Deutsche Bank AG.
(3) Debt assumed by the Bank as part of the restructuring of the Bank's New York
branch, pursuant to an agreement dated May 31, 2002, among the Bank, the Bank's
New York branch and Barclays Bank PLC.
(4) The original debt is as of the date hereof outstanding and will be
restructured upon settlement of the Restructuring (as described in footnote (5)
below).
(5) The outstanding principal amount will be paid in twelve monthly equal
installments beginning one month after the settlement date of the Restructuring.
Accrued and unpaid interest up to and including April 30, 2002, pursuant to the
original loan document, will be paid by the Bank on the settlement date of the
Restructuring. Interest accruing from and including May 1, 2002 to and including
December 31, 2003, shall be capitalized and added to the principal balance on
the settlement date of the Restructuring. Interest accruing from and including
January 1, 2004 to and including the settlement date of the restructuring
accrues as provided for in the restructuring agreement and is payable in arrears
by the Bank one month after the settlement of the Restructuring. Interest
accruing after the settlement date of the Restructuring shall accrue at a rate
as provided for in the restructuring agreement.
Schedule 4.17-2
SCHEDULE 4.18
EXISTING LIENS
MARCH 31, 2004
AR $ THOUSANDS US $ THOUSANDS*
DEPOSITS GRANTED AS COLLATERAL (1) 44,058 15,432
COLLATERAL SPECIAL ACCOUNTS (2) 68,642 24,043
DEPOSITS IN THE ARGENTINE CENTRAL BANK, FROZEN UNDER
ARGENTINE CENTRAL BANK REGULATIONS 1,614 565
SECURED LOANS GRANTED AS COLLATERAL OF FFAEFYS ASSISTANCE 188,994 66,198
SECURITIES GRANTED AS COLLATERAL FOR BCRA ASSISTANCE 6,847,162 2,398,306
P.G.T.F. 3% VTO.09/05/05 (cje.BT02) 2 1
BONOS DEL GOB. NAC. EN $ 2% XXX 00 (XXXXX) 00 00
P.G.T.F. 3% VTO.21/07/06 (cje.BT03) 269 94
P.G.T.F. 4% VTO.15/04/10 (cje.PRO6) 2,081 729
P.G.T.F. 4% VTO.21/05/08 (cje.TY05F) 863 302
P.G.T.F. 4% VTO.15/04/10 (cje.PRO10) 442 155
P.G.T.F. 4% VTO.15/05/09 (cje.TY06F) 874 306
P.G.T.F. 4% VTO.28/12/13 (cje.PRO4) 5,820 2,039
P.G.T.F. 4% VTO.19/06/09 (cje.VEJ1DP) 1,555,915 544,979
P.G.T.F. 4% VTO.19/12/11 (cje.GD08D) 1,928,856 675,606
P.G.T.F. 4% VTO.01/01/13 (cje.PRE6) 20 7
P.G.T.F. 5% VTO.21/02/12 (cje.GF12D) 692,353 242,505
P.G.T.F. 5% VTO.07/04/12 (cje.GLO09) 1,056 370
B.G. 2% VTO 04/02/18(cje.PR.PROV.$) 160,604 56,254
B.G. 2% VTO 04/02/18(cje.PR.PROV.U$S) 2,497,941 874,936
Schedule 4.18-1
NUMBER OF SHARES
SHARES GRANTED AS COLLATERAL IN FAVOR OF THE INTERNATIONAL WITH TRANSFER TOTAL
FINANCE CORPORATION, THE INTER-AMERICAN BANK AND A SYNDICATE AR $ THOUSANDS US $ THOUSANDS* RESTRICTIONS NUMBER OF SHARES
Correo Argentino 27,460 9,618 12,462,021 12,462,021
SHARES OF EQUITY INVESTMENTS 51,554 18,055
Aguas Argentinas (3) 6,673 2,337 3,759,766 13,166,401
Aguas Provinciales de Santa Fe (3) 5,260 1,842 3,662,500 7,500,000
Inversora Diamante (4) 3,961 1,387 1,606,117 5,248,750
Inversora Nihuiles (4) 2,950 1,033 1,184,093 6,321,047
Electrigal (4) 2,782 974 1,222,407 2,396,875
Aguas Cordobesas (3) 2,468 864 900,000 3,250,000
CONTROLLED COMPANIES' RESTRICTED ASSETS
Galicia Valores S.A. - Shares of Xxxxxxx de Valores de Xx.Xx.
S.A. used to secure insurance covering its transactions. 4,496 1,575
Tarjetas Cuyanas - Time deposit to secure a collection
agreement signed with the Revenue Board of the Province
of Xxxxxxx. 542 190
Banco Galicia (Cayman) Limited - an attachment was levied
on the entity's receivables from Banco Galicia Uruguay,
which should have been transferred to the Entity in
payment of the second installment of a credit. 2,895 1,014
(*) At an exchange rate of Ps.2.855 per US$1.00.
(1) Banco xx Xxxxxxx y Buenos Aires S.A. (the "Bank") has deposited US$15,432 in
escrow as a guarantee for obligations toward third parties (VISA, Banelco,
Master Card) and for an appraisal for the sale of portfolio.
(2) The Bank has opened accounts with the Argentine Central Bank the funds of
which are used as collateral for transactions involving electronic clearing
houses, checks for settling debts and other similar transactions which, as of
March 31, 2004 amounted to US$24,043.
(3) Transfers of shares are subject to prior approval of national or provisional
authorities under the terms of concession contracts.
(4) Transfers of shares are subject to prior internal company approval.
Schedule 4.18-2
SCHEDULE 5.1(b)(ii)
EFFECTIVE DATE INTEREST AMOUNTS
ACCRUED AND UNPAID
INTEREST THROUGH
AND INCLUDING APRIL
ORIGINAL DOLLAR LOANS 30, 2002
--------------------- -------------------
(in U.S. Dollars)
NEDERLANDSE Loan Agreement, dated as of September 12, 1995, among the Issuer 13,416.67
FINANCIERINGS-MAATSCHAPPIJ and the FMO (Netherlands Development Finance Company).
VOOR ONTWIKKELINGSLANDEN
N.V. (A/K/A NETHERLANDS
DEVELOPMENT FINANCE
COMPANY) ("FMO")
Loan Agreement, dated as of February 29, 1996, among the Issuer 96,118.61
and the FMO (Netherlands Development Finance Company).
Loan Agreement, dated as of September 11, 1998,among the Issuer 119,720.05
and the FMO (Netherlands Development Finance Company).
NATEXIS BANQUES POPULAIRES Loans under the Reimbursement and Credit Agreement, dated as of 42,520.83
February 23, 2001, among the Issuer, Bayerische Hypo-und
Vereinsbank AG, acting through its New York Branch, as Issuing
Bank, the lenders party thereto, The Chase Manhattan Bank N.A.,
as Administrative Agent, and X.X. Xxxxxx, a division of Chase
Securities Inc., as Arranger.
RZB FINANCE LLC Loans under the Reimbursement and Credit Agreement, dated as of 42,520.83
February 23, 2001, among the Issuer, Bayerische Hypo-und
Vereinsbank AG, acting through its New York Branch, as Issuing
Bank, the lenders party thereto, The Chase Manhattan Bank N.A.,
as Administrative Agent, and X.X. Xxxxxx, a division of Chase
Securities Inc., as Arranger.
Schedule 5.1(b)(ii)-1
EXHIBIT A
FORM OF APE
(SPANISH VERSION)
En la ciudad de Buenos Aires, a los xxxx del mes de de 200_, se celebra el
presente Acuerdo Preventivo Extrajudicial (el "APE") para la reestructuracion de
deuda, entre:
1. Banco xx Xxxxxxx y Buenos Aires S.A., con domicilio legal en Tte. Gral Xxxxx
000, 0xx xxxx, Xxxxxx xx Xxxxxx Xxxxx, Xxxxxxxxx Argentina, representado por el
Sr. [__], de acuerdo con la documentacion que se adjunta al presente en Anexo I
(el "Banco"); y
2. (a) Citibank, N.A., con domicilio legal en 0 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxx, representado por el Sr. [__] en su caracter de representante, de
acuerdo con la documentacion que se adjunta al presente en Anexo I (el
"Representante"), de los titulares de Obligaciones Negociables al 9% con
vencimiento en 2003 y las Obligaciones Negociables a Tasa Variable Creciente con
vencimiento en 2002 emitidas por el Banco (en conjunto, las "Instrumentos de
deuda bancaria") (en conjunto, los "Obligacionistas Participantes"), en cada
caso, que han ofrecido canjear sus Obligaciones Negociables en virtud de la
Oferta de Canje de Obligaciones Negociables (definida mas abajo), han autorizado
la celebracion del presente APE por parte del Representante en su nombre, y han
otorgado al Representante el correspondiente Poder al efecto (definido mas
abajo);
(b) los bancos y organismos de credito multilaterales que adhieran al APE
enviando al Banco un ejemplar firmado del presente, a mas tardar en la Fecha de
Presentacion del APE (definida mas abajo) (los "Bancos Participantes");
(c) los acreedores por financiaciones de comercio exterior que adhieran al APE
enviando al Banco un ejemplar firmado del presente, a mas tardar en la Fecha de
Presentacion del APE (los "Acreedores de Comercio Exterior Participantes"); y
(d) los acreedores de la Deuda Clase "A" (definida mas abajo) que adhieran al
APE enviando al Banco un ejemplar firmado del presente, a mas tardar en la Fecha
de Presentacion del APE (los "Acredores Clase "A" Participantes" y junto con los
Obligacionistas Participantes, los Bancos Participantes, y los Acreedores de
Comercio Exterior Participantes, los "Acreedores Participantes" y, conjuntamente
con el Banco, las "Partes").
CONSIDERANDOS
(i) POR CUANTO, a la fecha de celebracion del presente APE (la "Fecha de
Celebracion"), el Banco declara que mantiene (a) con todos los titulares de
Instrumentos de deuda bancaria (los "Obligacionistas"), la deuda descripta en
Anexo II al presente (la "Deuda con los Obligacionistas Existentes"); (b) con
todos los bancos y organismos multilaterales de credito que son acreedores (los
"Bancos"), la deuda bancaria quirografaria que se detalla en Anexo III al
presente (la "Deuda Bancaria Existente"); (c) con los acreedores de comercio
exterior (los "Acreedores de Comercio Exterior") la deuda existente por
financiacion de operaciones de comercio exterior que se describe en Anexo IV al
presente (la "Deuda Existente de Comercio Exterior"); y (d) con los acreedores
Clase "A" (definidos mas abajo) (los "Acreedores Clase "A") la deuda existente
que se detalla en Anexo V al presente (la "Deuda Existente Clase "A", y junto
con la Deuda con los Obligacionistas Existentes, la Deuda Bancaria Existente, y
la Deuda Existente de Comercio Exterior, la "Deuda Existente a Reestructurar").
A la Fecha de Celebracion, el Banco declara que la Deuda Existente a
Reestructurar alcanza la suma de capital total de US$ [__] millones.
(ii) POR CUANTO, a partir del mes de diciembre de 2001, el Banco experimento las
consecuencias financieras adversas generadas por, entre otros factores, el
dictado de xx Xxx No. 25.561 de Emergencia Publica y Reforma del Regimen
Cambiario y los subsiguientes decretos y regulaciones que dieron lugar a la
devaluacion del peso argentino (el "Peso") frente a las monedas extranjeras.
(iii) POR CUANTO, en este contexto, el Banco implemento un proceso de
reestructuracion de acuerdo con lo dispuesto por xx Xxx No. 21.526 y sus
modificatorias (la "Ley de Entidades Financieras"), y presento un plan de
regularizacion, posteriormente modificado (el "Plan de Capitalizacion y Liquidez
xx Xxxxxxx"), ante el Banco Central de la Republica Argentina (el "BCRA"), en el
cual se dispone la reestructuracion de la Deuda Existente a Reestructurar, y que
contempla la exitosa reestructuracion de la Deuda Existente a Reestructurar como
componente esencial del mismo.
Exhibit A-1
(iv) POR CUANTO, en el contexto del Decreto Xx. 000/00, xxx Xxxxxxx Xxx.
1262/03, y de las Comunicaciones "A" 3941 y "A" 3940 del BCRA, con fecha 27 de
noviembre de 2003 dicho organismo aprobo los terminos y condiciones de
reestructuracion de la Deuda Existente a Reestructurar.
(v) POR CUANTO, como parte de la reestructuracion de deuda, el Banco ha
propuesto reestructurar las Instrumentos de deuda bancaria a traves de un canje
voluntario de Instrumentos de deuda bancaria, como se describe en el Suplemento
de Precio de fecha 23 de diciembre de 2003 y en la Addenda a dicho Suplemento de
Xxxxxx xxx 00 xx Xxxxx xx 0000 (xx "Oferta de Canje de Obligaciones
Negociables"). En virtud de la Propuesta de Reestructuracion, el Banco ha
solicitado una Carta de aceptacion (definida mas abajo) cuyos terminos contienen
una autorizacion al Banco para firmar el APE y un Poder (definido mas abajo) en
virtud del cual se faculta al Representante a suscribir el presente APE y a
asistir a las Asambleas (definida mas abajo) en nombre de cada uno de los
Obligacionistas Participantes. El plazo para presentar las Instrumentos de deuda
bancaria para participar en la Oferta de Canje de Obligaciones Negociables
vencio el dia de 2004 (la "Fecha de Vencimiento"), habiendose presentado
validamente para su canje un % [__] del capital total de las Instrumentos de
deuda bancaria, en virtud de los terminos de la Oferta de Canje de Obligaciones
Negociables.
(vi) POR CUANTO, como parte de la xxxxxxxxxxxxxxxx xx xxxxx, xx Xxxxx Xxxxxxxx
Existente, la Deuda Existente de Comercio Exterior y la Deuda Existente Clase
"A" se reestructuraran a traves de distintos acuerdos voluntarios de
reestructuracion privada celebrados con los Bancos, los Acreedores de Comercio
Exterior y los Acreedores Clase "A", respectivamente, descriptos en los Anexos
III, IV y V (respectivamente, el "Acuerdo y Documentacion de Reestructuracion de
Deuda Bancaria", "Acuerdo y Documentacion de Reestructuracion de Deuda de
Comercio Exterior" y "Acuerdo y Documentacion de Reestructuracion de Deuda Clase
"A", y junto con la Oferta de Canje de Obligaciones Negociables, la "Propuesta
de Reestructuracion"). En virtud de la referida reestructuracion de deuda, el
Banco ha solicitado a los Bancos, Acreedores de Comercio Exterior y Acreedores
Clase "A" que suscriban el presente APE.
(vii) POR CUANTO, la Propuesta de Reestructuracion contempla el ejercicio por
parte del Banco de su derecho a llevar adelante un procedimiento de APE (el
"Procedimiento de APE) de acuerdo con lo dispuesto en los articulos 69 a 76 de
xx Xxx de Quiebras No. 24.522 y sus modificatorias (la "Ley de Quiebras"), con
el objeto de extender los efectos de la Oferta de Canje de Obligaciones
Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria,
el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y
el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A", a los
titulares de Deuda Existente a Reestructurar que no hubieran participado en la
Propuesta de Reestructuracion.
(viii) POR CUANTO, la Propuesta de Reestructuracion se encontrara en plena
vigencia con respecto a los acreedores que hubieran participado en los mismos,
independientemente de la Homologacion Judicial (definida mas abajo) del presente
APE, que no constituye una condicion para el perfeccionamiento de la misma.
(ix) POR CUANTO, a traves del presente APE el Banco pretende alcanzar la
reestructuracion integral de su deuda externa, lo que incluye celebrar un
acuerdo de reestructuracion con todos los Acreedores Afectados (definidos mas
abajo) bajo la Deuda Existente a Reestructurar.
(x) POR CUANTO, dado que las propuestas de reestructuracion presentadas a los
tenedores de Obligaciones Negociables y a los Bancos tienen terminos economicos
sustancialmente equivalentes, los tenedores de Obligaciones Negociables y los
Bancos se agruparon en la misma categoria de acreedores financieros. Asimismo,
dado que cada una de las propuestas de reestructuracion presentadas a los
Acreedores de Comercio Exterior y a los Acreedores Clase "A" poseen sus terminos
y condiciones particulares, cada uno de ellos constituye una categoria distinta
de acreedores financieros.
(xi) POR CUANTO, el presente APE contempla, de acuerdo con lo dispuesto por el
articulo 76 de xx Xxx de Quiebras, que si el Tribunal de Quiebras (definido mas
abajo) homologa la presentacion aqui prevista, (a) los titulares de las
Instrumentos de deuda bancaria que no hubieran participado en la Oferta de Canje
de Obligaciones Negociables y los Bancos que no hubieran participado en el
Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria se veran obligados
a canjear sus Xxxxxxxxxxxx xx xxxxx xxxxxxxx x Xxxxx Xxxxxxxx Existente,
respectivamente, por Unidades (como se las define mas abajo), que el Banco
considerara que dichos titulares han optado por recibir en la Primera Etapa
(definida en el Anexo II) de la Oferta de Canje de Obligaciones Negociables, (b)
los Acreedores de Comercio Exterior que no hubieran participado en el Acuerdo y
Documentacion de Reestructuracion de Deuda de Comercio Exterior se veran
obligados a canjear su Deuda Existente de Comercio Exterior por unidades
sustancialmente en los terminos ofrecidos en la Oferta de Canje de Obligaciones
Negociables en terminos similares a los del Acuerdo y Documentacion de
Reestructuracion de Deuda de Comercio Exterior; y (c) los Acreedores Clase "A"
que no hubieran participado en el Acuerdo y Documentacion de Reestructuracion de
Deuda Clase "A" se veran obligados a aceptar la reestructuracion de su Deuda
Existente Clase "A" del modo previsto en el Acuerdo y Documentacion de
Reestructuracion de Deuda de Comercio Exterior.
POR TODO ELLO, las Partes acuerdan celebrar el presente APE de acuerdo con los
terminos de los articulos 69 a 76 y disposiciones relacionadas de xx Xxx de
Quiebras.
Exhibit A-2
SECCION I
Definiciones.
Clausula 1.1
"Creditos Administrativos" significa el xxxxx xx xxxxxx judiciales a pagar,
determinado por el Tribunal de Quiebras, asi como los honorarios y costos
legales relacionados con la administracion del proceso judicial relacionado con
el Procedimiento de APE y la proteccion de los activos del Banco que gozan de
prioridad en virtud del articulo 240 de xx Xxx de Quiebras, incluyendo todos los
creditos, costos, honorarios y gastos incurridos por el Representante de los
Acreedores Participantes como consecuencia del Procedimiento de APE.
"Acreedores Afectados" significa (i) en el caso de cualquier serie de
Instrumentos de deuda bancaria, todos los titulares de las Instrumentos de deuda
bancaria; (ii) en el caso de la Deuda Bancaria Existente, todos los titulares de
Deuda Bancaria Existente; (iii) en el caso de la Deuda Existente de Comercio
Exterior, todos los titulares de Deuda Existente de Comercio Exterior; y (iv) en
el caso de Deuda Existente Clase "A", todos los titulares de Deuda Existente
Clase "A".
"APE" tendra el significado previsto en el parrafo introductorio del presente.
"Fecha de Presentacion del APE" significa la fecha en la que este APE se
presente ante el Tribunal de Quiebras en virtud de lo dispuesto por el articulo
72 de xx Xxx de Quiebras, lo cual xxxxxx ocurrir (i) dentro de los 3 Xxxx
Habiles Judiciales anteriores a la Fecha de Liquidacion, o (ii) con
posterioridad a la Fecha de Liquidacion.
"Procedimiento de APE" tendra el significado previsto en los Considerandos del
presente.
"Ley de Quiebras" tendra el significado previsto en los Considerandos del
presente.
"BCRA" tendra el significado previsto en los Considerandos del presente.
"Observacion del BCRA" significa cualquier observacion formal del BCRA con
respecto a la capacidad del Banco de utilizar un Procedimiento de APE en virtud
de la legislacion argentina.
"Estado de Situacion Patrimonial" significa el listado de activos y pasivos del
Banco a la Fecha de Celebracion, certificado por contador publico independiente,
de acuerdo con lo dispuesto por el articulo 72, inciso 1, de xx Xxx de Quiebras.
"Banco" tendra el significado previsto en el parrafo introductorio del presente.
"Bancos" tendra el significado previsto en el parrafo introductorio del
presente.
"Listado de Libros del Banco" significa el listado de todos los libros
utilizados por el Banco dentro de su operatoria, con la indicacion del ultimo
folio utilizado a la Fecha de Celebracion de acuerdo a lo dispuesto en el
articulo 72, inciso 4 de xx Xxx de Quiebras.
"Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria" tendra el
significado previsto en los Considerandos del presente, segun el detalle
incluido en Anexo III.
"Tribunal de Quiebras" significa un tribunal argentino en lo comercial que sea
competente respecto del Procedimiento de APE.
"BCBA" significa la Bolsa de Comercio de Buenos Aires.
"CNV" significa la Comision Nacional de Valores.
"BCC" significa la Bolsa de Comercio de Cordoba.
"Homologacion Judicial" significa la homologacion del presente APE por parte del
Tribunal de Quiebras, de acuerdo con lo dispuesto en el articulo 76 de xx Xxx de
Quiebras.
"Fecha de Homologacion Judicial" significa la fecha en la cual ocurra la
Homologacion Judicial (sin tener en cuenta cualquier impugnacion o recurso
presentado contra dicha Homologacion Judicial, tal como ello xx xxxxx en los
Articulos 51, 60 y concordantes de xx Xxx de Quiebras.
Exhibit A-3
"Listado de Acreedores" significa el listado de acreedores del Banco a la Fecha
de Celebracion, certificado por contador publico independiente, de acuerdo con
lo dispuesto en el articulo 72, inciso 0 xx xx Xxx xx Xxxxxxxx.
"Xxxxxxx xx xx Xxxxx Existente a Reestructurar de los Acreedores Participantes"
significa el detalle del total de la Deuda Existente a Reestructurar de los
Acreedores Participantes, y el porcentaje de Acreedores Afectados que dichos
Acreedores Participantes representan, de acuerdo a lo dispuesto en el articulo
72, inciso 5 de xx Xxx de Quiebras.
"Fecha de Celebracion" tendra el significado previsto en los Considerandos del
presente.
"Deuda Bancaria Existente" tendra el significado previsto en los Considerandos
del presente.
"Deuda con los Obligacionistas Existentes" tendra el significado previsto en los
Considerandos del presente.
"Instrumentos de deuda bancaria" tendra el significado previsto en el parrafo
introductorio del presente.
"Deuda Existente a Reestructurar" tendra el significado previsto en los
Considerandos del presente.
"Deuda Existente de Comercio Exterior" tendra el significado previsto en los
Considerandos del presente.
"Deuda Existente Clase "A"" tendra el significado previsto en los Considerandos
del presente.
"Fecha de Vencimiento" tendra el significado previsto en los Considerandos del
presente.
"Ley de Entidades Financieras" tiene el significado otorgado en los
Considerandos del presente.
"Plan de Capitalizacion y Liquidez xx Xxxxxxx" tendra el significado previsto en
los Considerandos del presente.
"Acciones Preferidas de Grupo Galicia" tendra el significado previsto en Anexo
II al presente.
"Listado de Acciones Judiciales y Procesos Administrativos" significa el listado
de acciones, juicios o procesos judiciales, arbitrales, administrativos y xxxxx
procesos pendientes contra el Banco o que afecten a este, ante cualquier
tribunal, organismo o autoridad gubernamental, o arbitro, de acuerdo a lo
dispuesto en el articulo 72, inciso 3 de xx Xxx de Quiebras.
"Dia Habil Judicial" significa un dia (excepto sabado o domingo) en el que
funcionen los Tribunales en Buenos Aires.
"Carta de aceptacion" significa la carta electronica de transmision y
autorizacion otorgada por cada uno de los Obligacionistas Participantes al
Representante para presentar las Instrumentos de deuda bancaria en virtud de la
Oferta de Canje de Obligaciones Negociables. La Carta de aceptacion contiene
ademas una autorizacion a firmar el APE.
"MAE" significa el Xxxxxxx Abierto Electronico S.A.
"Asambleas" significa las asambleas de titulares de las Instrumentos de deuda
bancaria que el Banco pueda convocar o solicitar que convoque el Tribunal de
Quiebras, antes o despues de la Fecha de Presentacion del APE, a los efectos de
confirmar la suscripcion del APE y la solicitud al Tribunal de Quiebras de
extender los efectos del APE a los Acreedores No Participantes.
"Nuevas Obligaciones Negociables" significa, conjuntamente, las Obligaciones
Negociables a Largo Plazo, las Obligaciones Negociables Subordinadas, y las
Obligaciones Negociables a Mediano Plazo - todas ellas definidas en Anexo II.
"Bancos No Participantes" tendra el significado previsto en la Clausula 2.1(b)
del presente.
"Acreedores No Participantes" significa los titulares de Deuda Existente a
Reestructurar, que aunque no suscriban el presente APE, y con sujecion a la
Homologacion Judicial, quedaran obligados en virtud de los terminos del APE, de
acuerdo con lo dispuesto por el articulo 76 de xx Xxx de Quiebras.
"Xxxxxxxx de los Acreedores No Participantes" tendra el significado previsto en
la Clausula 3.2 del presente.
"Obligacionistas No Participantes" tendra el significado previsto en la Clausula
2.1(b) del presente.
Exhibit A-4
"Acreedores de Comercio Exterior No Participantes" tendra el significado
previsto en la Clausula 2.1(b) del presente.
"Acreedores de Comercio Exterior "A" No Participantes" tendra el significado
previsto en la Clausula 2.1(b) del presente.
"Obligacionistas" tendra el significado previsto en los Considerandos del
presente.
"Oferta de Canje de Obligaciones Negociables" tendra el significado previsto en
los Considerandos del presente.
"Prospecto" significa el prospecto de fecha 5 de noviembre de 2003, cuya copia
se adjunta en Anexo II.
"Bancos Participantes" tendra el significado previsto en el parrafo
introductorio del presente, incluyendo a los sucesores, cesionarios o
beneficiarios de transferencias efectuadas por cualquiera de ellos.
"Obligacionistas Participantes" tendra el significado previsto en el parrafo
introductorio del presente, incluyendo a los sucesores, cesionarios o
beneficiarios de transferencias efectuadas por cualquiera de ellos.
"Acreedores Participantes" significa, conjuntamente, los Obligacionistas
Participantes, los Bancos Participantes, los Acreedores de Comercio Exterior
Participantes, y los Acreedores Clase "A" Participantes.
"Acreedores Clase "A" Participantes" tendra el significado previsto en el
parrafo introductorio del presente, incluyendo a los sucesores, cesionarios o
beneficiarios de transferencias efectuadas por cualquiera de ellos.
"Acreedores de Comercio Exterior Participantes" tendra el significado previsto
en el parrafo introductorio del presente, incluyendo a los sucesores,
cesionarios o beneficiarios de transferencias efectuadas por cualquiera de
ellos.
"Partes" tendra el significado previsto en el parrafo introductorio del
presente.
"Peso" tendra el significado previsto en los Considerandos del presente.
"Poder" es la autorizacion otorgada por cada Obligacionista Participante a favor
del Representante, facultandolo a suscribir el presente APE en nombre de dicho
Obligacionista Participante de acuerdo con xx Xxx de Quiebras, y a asistir a las
Asambleas y votar en ellas en nombre del mandante. Cada Poder, incluido en Anexo
I, ha sido validamente autenticado de acuerdo a los requisitos aplicables bajo
ley argentina (certificacion por escribano publico, apostilla o autenticacion
equivalente).
"Periodo Previo a la Homologacion Judicial" significa el periodo trancurrido
entre la Fecha de Presentacion del APE ante el Tribunal de Quiebras y la fecha
de su Homologacion Judicial.
"Suplemento de Precio" significa el suplemento de precio respecto de las Nuevas
Obligaciones Negociables, de fecha 23 de diciembre de 2003, cuya copia se
adjunta en Anexo II.
"Representante" tendra el significado previsto en el parrafo introductorio del
presente.
"Propuesta de Reestructuracion" tendra el significado previsto en los
Considerandos del presente.
"Ley deTitulos Valores" tiene el significado establecido en la Clausula 7.3 del
presente.
"Fecha de Liquidacion" significa la fecha en la cual se completen las
transacciones contempladas bajo (i) la Oferta de Canje de Obligaciones
Negociables, (ii) el Acuerdo y Documentacion de Reestructuracion de Deuda
Bancaria, (iii) el Acuerdo y Documentacion de Reestructuracion de Deuda de
Comercio Exterior, (iv) el Acuerdo y Documentacion de Reestructuracion de Deuda
Clase "A" (en el sentido que la Fecha de Liquidacion para todos los Acreedores
Participantes ocurrira el mismo dia), no quedando pendientes acciones alguna
para el perfeccionamiento de dichas transacciones.
"Acreedores Clase "A"" tendra el significado previsto en el parrafo
introductorio del presente.
"Acreedores de Comercio Exterior" tendra el significado previsto en el parrafo
introductorio del presente.
"Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A"" tendra el
significado previsto en los Considerandos del presente.
"Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior"
tendra el significado previsto en los Considerandos del presente.
"Acreedores No Afectados" tendra el significado previsto en la Clausula 2.4 del
presente.
"Unidades" tiene el significado estipulado en el Acuerdo y Documentacion de
Reestructuracion de Deuda Bancaria.
"Xxxxxxxx" tendra el significado previsto en la Clausula 3.1 del presente.
Interpretacion.
Clausula 1.2. A todos los efectos del presente APE, a menos que se dispusiera
expresamente algo distinto en el presente, o a menos que el contexto exigiera
otra cosa: (a) los terminos definidos en el APE tendran los significados aqui
previstos, e incluiran el plural y el singular, y viceversa; (b) las palabras
representativas de un genero incluiran al otro; (c) cualquier referencia a una
Exhibit A-5
"Seccion", "Clausula" o "Anexo" seran referencias a una Seccion, Clausula o
Anexo del presente; (d) todas las referencias al presente APE y las expresiones
"en el presente", "del presente", "al presente" o "en virtud del presente", y
expresiones similares, haran referencia al presente APE en su totalidad, y no a
una Seccion, Clausula, Anexo u otra subdivision en particular; (e) cualquier
referencia a "incluye" o "incluyendo" significa "incluyendo de manera no
taxativa"; y (f) cualquier referencia a acuerdos o contratos, incluyendo el
presente APE, hara referencia a los mismos y a sus respectivos anexos, apendices
y adjuntos, y a sus posibles modificaciones y suplementos.
SECCION II
Homologacion Judicial del APE
Clausula 2.1. (a) Es intencion del Banco que la Propuesta de Reestructuracion
reestructure solamente la Deuda Existente a Reestructurar. Para efectuar dicha
reestructuracion, el Banco ha implementado: (i) la Oferta de Canje de
Obligaciones Negociables, (ii) el Acuerdo y Documentacion de Reestructuracion de
Deuda Bancaria; (iii) el Acuerdo y Documentacion de Reestructuracion de Deuda de
Comercio Exterior; y (iv) el Acuerdo y Documentacion de Reestructuracion de
Deuda Clase "A".
(b) A fin de extender los efectos de la reestucturacion de la Deuda Existente a
Reestructurar a los tenedores que no hubieran participado en la Oferta de Canje
de Obligaciones Negociables (los "Obligacionistas No Participantes"), a los
Bancos que no hubieran participado en el Acuerdo y Documentacion de
Reestructuracion de Deuda Bancaria (los "Bancos No Participantes"), los
Acreedores de Comercio Exterior que no hubieran participado en el Acuerdo y
Documentacion de Reestructuracion de Deuda de Comercio Exterior (los "Acreedores
de Comercio Exterior No Participantes") y a los Acreedores Clase "A" que no
hubieran participado en el Acuerdo y Documentacion de Reestructuracion de Deuda
Clase "A" (los "Acreedores Clase "A" No Participantes"), los Acreedores
Participantes acuerdan que el Banco podra solicitar la Homologacion Judicial del
presente APE a fin de obligar:
(i) a los Obligacionistas No Participantes y a los Bancos No Participantes a
aceptar - a cambio de la porcion respectiva de su Deuda Existente a
Reestructurar - Unidades que el Banco considerara que dichos titulares han
optado por recibir en la Primera Etapa (definida en el Anexo II) de la
Oferta de Canje de Obligaciones Negociables descripta en Anexo II;
(ii) a los Acreedores de Comercio Exterior No Participantes a aceptar - a
cambio de la porcion respectiva de su Deuda Existente a Reestructurar -
Unidades sustancialmente en los terminos ofrecidos en la Oferta de Canje
de Obligaciones Negociables en terminos similares a los del Acuerdo y
Documentacion de Reestructuracion de Deuda de Comercio Exterior; y
(iii) a los Acreedores Clase "A" que no hubieran participado en el Acuerdo y
Documentacion de Reestructuracion de Deuda Clase "A" a aceptar la
reestructuracion de su Deuda Existente Clase "A" del modo previsto en el
Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior.
Clausula 2.2. A los efectos del Procedimiento de APE, los Acreedores
Participantes reconocen y aceptan que los Obligacionistas Participantes y los
Bancos Participantes formaran parte de la misma clase de acreedores, dado que
los terminos economicos de las propuestas a ellos presentadas son
sustancialmente identicos; y que los Acreedores de Comercio Exterior y los
Acreedores Clase "A" constituiran clases separadas de acreedores.
Clausula 2.3. (a) Los Acreedores Participantes reconocen que el Banco tiene
derecho a presentar el APE en la Fecha de Presentacion del APE, a su solo
criterio y sujeto a que obtenga las mayorias descriptas en la Clausula 2.3 (b)
anterior, a fin de obtener la Homologacion Judicial del APE de acuerdo con lo
dispuesto por los articulos 69 a 76 y disposiciones relacionadas de xx Xxx de
Quiebras.
(b) A la Fecha de Presentacion del APE, el Banco declara que:
(i) los Acreedores Participantes representaran la mayoria absoluta
de los Acreedores Afectados, representando por lo menos el 95%
de la Deuda Existente a Reestructurar pendiente de pago a esa
fecha;
(ii) dentro de la clase formada por los Obligacionistas
Participantes y los Bancos Participantes, el Banco habra
obtenido las mayorias previstas bajo ley Argentina;
(iii) dentro de la clase formada por los Acreedores de Comercio
Exterior Participantes, el Banco habra obtenido las mayorias
previstas bajo ley Argentina; y
(iv) dentro de la clase formada por los Acreedores Clase "A"
Participantes, el Banco habra obtenido las mayorias previstas
bajo ley Argentina.
A los efectos de determinar las referidas mayorias, (i) de acuerdo con lo
dispuesto en el parrafo 3 del articulo 00 xxx xx xx Xxx xx Xxxxxxxx, (X) los
titulares de Obligaciones Negociables al 9% con vencimiento en 2003 se agruparon
en los que estan a favor del
Exhibit A-6
APE y los que se oponen al mismo, y los titulares de Obligaciones Negociables a
Tasa Flotante Creciente con vencimiento en 2002 se agruparon en los que estan a
favor del APE y los que se oponen al mismo, y (B) cada grupo se trato como un
Acreedor Afectado, de modo tal que se considero que cada tramo de Obligaciones
Negociables al 9% con vencimiento en 2003 y de Obligaciones Negociables a Tasa
Flotante Creciente con vencimiento en 2002 estaba en poder de dos Acreedores
Afectados; y (ii) cada Banco que era parte en el Acuerdo y Documentacion de
Reestructuracion de Deuda Bancaria, cada Acreedor de Comercio Exterior que era
parte en el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio
Exterior, y cada Acreedor Clase "A" que era parte en el Acuerdo y Documentacion
de Reestructuracion de Deuda Clase "A", se trato como un Acreedor Afectado
separado.
(c) De acuerdo con los requisitos previstos en el articulo 72 de xx Xxx de
Quiebras, los siguientes documentos, debidamente certificados por contador
publico independiente, seran presentados por el Banco (juntamente con el APE y
otros documentos) ante el Tribunal de Quiebras en la Fecha de Presentacion del
APE: (i) el Estado de Situacion Patrimonial; (ii) el Listado de Acreedores;
(iii) el Listado de Acciones Judiciales y Procesos Administrativos; (iv) el
Listado de Libros del Banco; y (v) el Detalle de la Deuda Existente a
Reestructurar de los Acreedores Participantes.
Clausula 2.4. Los Acreedores Participantes reconocen y acuerdan que en virtud
del APE el Banco (i) no tiene intencion de modificar los terminos de sus
obligaciones con los acreedores que no xxxx Acreedores Afectados, como por
ejemplo (de manera no taxativa) los acreedores de la deuda originalmente
correspondiente a su Sucursal Nueva York y posteriormente canjeada por deuda del
Banco en xxxxx de 2002 (los "Acreedores No Afectados", cuyas categorias de
acreedores se adjuntan como Anexo VI, declarando y garantizando el Banco que se
trata de una lista verdadera y completa de las categorias de acreedores a la
fecha del presente), (ii) que es intencion del Banco cumplir sus obligaciones
con los Acreedores No Afectados de acuerdo con los actuales terminos de las
mismas y sus modificaciones, y de acuerdo con las leyes argentinas aplicables, y
que el Banco se reserva el derecho de realizar el pago total a cualquier
Acreedor No Afectado en la fecha de vencimiento de sus respectivas acreencias,
en el giro normal de las operaciones del Banco. No obstante lo antedicho, si el
Tribunal de Quiebras solicitara al Banco obtener el consentimiento de los
Acreedores No Afectados para suscribir el presente APE, el Banco por el presente
se compromete a hacer sus mejores esfuerzos para cumplir con dicha solicitud del
Tribunal de Quiebras, y (iii) continuara llevando a cabo sus negocios bajo la
autoridad y supervision del BCRA, cuya autoridad y poderes de supervision y
regulatorios sobre el Banco se mantendran sin cambios en todo momento.
SECCION III
Dispensas del incumplimiento de ciertos compromisos asumidos por el Banco en
virtud de la Deuda Existente a Reestructurar.
Clausula 3.1. Las Partes acuerdan que, al producirse la liquidacion de la Oferta
de Canje de Obligaciones Negociables, el Acuerdo y Documentacion de
Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de
Reestructuracion de Deuda de Comercio Exterior y el Acuerdo y Documentacion de
Reestructuracion de Deuda Clase "A", ellas estaran sujetas a las renuncias
previstas bajo dichos documentos y a los terminos y condiciones alli previstos (
la "Xxxxxxxx").
Clausula 3.2. Si el presente APE resultara homologado judicialmente, se
considerara que los Acreedores No Participantes han convenido que, contra
entrega de la contraprestacion prevista en el presente con respecto a los
Acreedores No Participantes, el Banco (i) quedara liberado de, y se considerara
que los Acreedores No Participantes han dispensado, el incumplimiento de
cualquier otro termino o condicion de la Deuda Existente a Reestructurar con los
Acreedores No Participantes, incluyendo supuestos de incumplimiento que existan
o puedan xxxxx existido antes o al momento de la contraprestacion prevista en
este APE con respecto a los Acreedores No Participantes; y (ii) quedara liberado
de todos los pasivos del Banco con respecto a los Acreedores No Participantes
(la "Xxxxxxxx de los Acreedores No Participantes").
SECCION IV
Vigencia de la reestructuracion de la Deuda Existente a Reestructurar.
Clausula 4.1. Las Partes acuerdan que los terminos y condiciones de la Propuesta
de Reestructuracion entraran en vigencia en la Fecha de Liquidacion.
Clausula 4.2. En el caso de el APE no fuera homologado por el Tribunal de
Quiebras, ya sea porque este APE no fue presentado al Tribunal de Quiebras por
el Banco o por cualquier otro motivo, el presente APE seguira siendo vinculante
respecto de los Acreedores Participantes y el Banco, y todos los actos y
acuerdos realizados en virtud de la Oferta de Canje de Obligaciones Negociables,
el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y
Documentacion de Reestructuracion de Deuda de Comercio Exterior y/o el Acuerdo y
Documentacion de Reestructuracion de Deuda Clase "A" seguiran en plena vigencia,
generando derechos y obligaciones para los sucesores, derechohabientes,
herederos y representantes personales de los Acreedores Participantes y el
Banco.
Exhibit A-7
SECCION V
Efectos de la Homologacion Judicial respecto de los Acreedores No Participantes.
Clausula 5.1. De acuerdo con lo dispuesto por el articulo 76 de xx Xxx de
Quiebras, si se otorgara la Homologacion Judicial, las Partes acuerdan que el
presente APE sera vinculante para todos los Acreedores Afectados, inclusive los
Acreedores No Participantes.
Clausula 5.2. La Propuesta de Reestructuracion que se extendera a los Acreedores
No Participantes implicara la cancelacion y extincion de todas las obligaciones
del Banco en virtud de la Deuda Existente a Reestructurar correspondiente a
dichos Acreedores No Participantes, y el canje o reestructuracion obligatoria de
dicha Deuda Existente a Reestructurar, segun corresponda, de acuerdo a lo
dispuesto en esta Seccion V.
Clausula 5.3. Los terminos y condiciones reestructurados con respecto a los
Acreedores No Participantes entraran en vigencia entre el Banco y estos, a
partir de la Fecha de Homologacion Judicial.
Clausula 5.4. Con sujecion a la Homologacion Judicial, el Banco llevara a cabo
los siguientes actos con respecto a cada Acreedor No Participante:
(I) OBLIGACIONISTAS NO PARTICIPANTES Y BANCOS NO PARTICIPANTES
El Banco entregara a los Obligacionistas No Participantes y a los Bancos No
Participantes, Unidades por una suma de capital total equivalente al 100% del
capital de sus Xxxxxxxxxxxx xx xxxxx xxxxxxxx x Xxxxx Xxxxxxxx Existente, con
mas los intereses devengados e impagos, de acuerdo a lo previsto en la Oferta de
Canje de Obligaciones Negociables descripta en el Anexo II y el Acuerdo y
Documentacion de Reestructuracion de Deuda Bancaria descripto en el Anexo III.
(II) ACREEDORES DE COMERCIO EXTERIOR NO PARTICIPANTES
El Banco entregara a los Acreedores de Comercio Exterior No Participantes,
Unidades sustancialmente en los terminos ofrecidos en la Oferta de Canje de
Obligaciones Negociables por una suma de capital total equivalente al 100% del
capital de su Deuda Existente de Comercio Exterior, con mas los intereses
devengados e impagos, de acuerdo a lo previsto en la Oferta de Canje de
Obligaciones Negociables descripta en el Anexo II.
(III) ACREEDORES CLASE "A" NO PARTICIPANTES
El Banco reestructurara la Deuda Existente Clase "A" del modo previsto en el
Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior
descripto en el Anexo V.
Clausula 5.5. Se considerara que todos los Acreedores No Participantes que
reciban las contraprestaciones previstas en este APE, de acuerdo a lo que
resuelva el Tribunal de Quiebras, efectuan las Declaraciones y Garantias
incluidas en la Seccion VII del presente.
SECCION VI
Declaraciones y Garantias del Banco.
El Banco por el presente declara y garantiza a las xxxxx Partes, a la fecha del
presente, lo siguiente:
Clausula 6.l. Consentimientos. No se requiere ningun consentimiento, aprobacion,
autorizacion, notificacion, orden o inscripcion por parte de ninguna autoridad
gubernamental o regulatoria ni de ningun tribunal, a fin de perfeccionar las
operaciones previstas en el APE, con excepcion de (i) la ausencia de una
Observacion del BCRA (como se la define abajo) respecto del APE; (ii) la
Homologacion Judicial; (iii) la aprobacion de la CNV de la oferta publica de las
Nuevas Obligaciones Negociables y las Acciones Preferidas de Grupo Galicia (como
se la define abajo) y la autorizacion para negociar las Nuevas Obligaciones
Negociables en la BCC y el MAE y la autorizacion para negociar las Acciones
Preferidas de Grupo Galicia en la BCBA, la BCC y el MAE; y (iv) la ratificacion
del APE por parte de los accionistas del Banco, en el plazo de 30 xxxx contados
a partir de la Fecha de Presentacion del APE.
Clausula 6.2. Conflictos. La celebracion y otorgamiento del APE por parte del
Banco, el cumplimiento de sus obligaciones en virtud del presente y el
perfeccionamiento de las operaciones aqui previstas, no entraran en conflicto
con, ni provocaran un incumplimiento de, los terminos, condiciones y
disposiciones del acta constitutiva o los estatutos del Banco, ni de ninguna ley
o xxxxx aplicable. Adicionalmente, a esta fecha, todos los actos efectuados por
el Banco para la celebracion y presentacion de este APE, han sido efectuados de
modo compatible con el derecho de los Acreedores Participantes a recibir un
trato igualitario.
Exhibit A-8
Clausula 6.3. Exigibilidad de la Propuesta de Reestructuracion. La Propuesta de
Reestructuracion y las consideraciones alli previstas constituyen obligaciones
legitimas, validas y vinculantes del Banco, exigibles de acuerdo con los
terminos de la correspondiente documentacion, excepto en la medida en que su
exigibilidad pudiera verse limitada por leyes de quiebra, insolvencia, concurso,
moratoria o leyes similares que afecten los derechos de los acreedores en
general, y por los principios generales de equidad (ya sea que su cumplimiento
se exija en virtud del sistema de derecho estricto o del common law).
SECCION VII
Declaraciones y Garantias de los Acreedores Participantes.
Clausula 7.l. Con respecto a la reestructuracion. A la Fecha de Homologacion
Judicial, cada Acreedor Participante renuncia a cualquier derecho que pudiera
tener en virtud de la legislacion argentina de (i) oponerse a la validez de las
operaciones previstas en el presente y en la Oferta de Canje de Obligaciones
Negociables, en el Acuerdo y Documentacion de Reestructuracion de Deuda
Bancaria, en el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio
Exterior, y en el Acuerdo y Documentacion de Reestructuracion de Deuda Clase
"A", incluyendo el derecho a interponer una accion revocatoria respecto de los
pagos efectuados por el Banco en tal sentido, y (ii) iniciar acciones de
responsabilidad contra los directores, sindicos o funcionarios jerarquicos del
Banco como consecuencia de las referidas operaciones, excepto que dicha accion
derive de una conducta dolosa del director, sindico o funcionario jerarquico del
Banco o del incumplimiento de los estatuso del Banco o de cualquier ley o
regulacion. Las renuncias y/o consentimientos previstos en el presente no seran
aplicables a cualquir acto u omision del banco que constituya un incumplimiento
de cualquier obligacion del Banco bajo la Oferta de Canje de Obligaciones
Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria,
el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y
el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A".
Clausula 7.2. Con respecto al levantamiento de inhibiciones sobre la disposicion
de los activos del Banco. Cada uno de los Acreedores Participantes reconoce que,
al celebrar el presente APE, se considerara que el mismo aprueba cualquier
solicitud del Banco para levantar o eliminar cualquier medida de inhibicion
general sobre la disposicion de los activos del Banco que pudiera xxxxx sido
impuesta por el Tribunal de Quiebras en relacion con el APE durante el Periodo
Previo a la Homologacion Judicial, al producirse la Homologacion Judicial y
hasta la fecha en que el Tribunal de Quiebras formalmente declare que el Banco
xx xxxx cumplimiento a todas sus obligaciones en virtud del APE, de acuerdo con
lo dispuesto por el articulo 59 de xx Xxx de Quiebras. Las renuncias y/o
consentimientos previstos en el presente no seran aplicables a cualquir acto u
omision del banco que constituya un incumplimiento de cualquier obligacion del
Banco bajo la Oferta de Canje de Obligaciones Negociables, el Acuerdo y
Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion
de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y Documentacion
de Reestructuracion de Deuda Clase "A"
Clausula 7.3. Con respecto a las Nuevas Obligaciones Negociables y a las
Acciones Preferidas de Grupo Galicia. Cada uno de los Acreedores Participantes
reconoce y acuerda, y el Banco declara, que (i) ni el APE ni las Nuevas
Obligaciones Negociables y las Acciones Preferidas de Grupo Galicia que el Banco
xxxxxx entregar en la correspondiente Fecha de Liquidacion, han sido inscriptos
en virtud de xx Xxx de Titulos Valores de 1933 de EE.UU. y sus modificatorias
(la "Ley de Titulos Valores"), ni en virtud de ninguna ley de titulos valores
estadual de ese pais, y (ii) cualesquiera titulos valores emitidos en virtud del
APE y/o la Propuesta de Reestructuracion, seran entregados por el Banco,
unicamente (a) en los Estados Unidos, a "compradores institucionales
calificados" en los terminos de la Xxxxx 000X xx xx Xxx xx Xxxxxxx Xxxxxxx, en
una operacion privada basada en una exencion de los requisitos de inscripcion de
dicha Ley, y (b) fuera de los Estados Unidos, en operaciones en el exterior
basadas en la Regulacion S dictada en virtud de xx Xxx de Titulos Valores.
Clausula 7.4. Con respecto a la ratificacion del APE. Cada uno de los
Obligacionistas Participantes por el presente reconoce que, en virtud de su
Carta de Transmision y Autorizacion, ha autorizado al Banco a firmar el APE.
Clausula 7.5. Valido otorgamiento del Poder. Cada Obligacionista Participante ha
otorgado validamente al Representante el Poder para llevar adelante los actos
alli contemplados.
Clausula 7.6. Efectos del Canje de Obligaciones Negociables, el Acuerdo y
Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion
de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y Documentacion
de Reestructuracion de Deuda Clase "A". Cada uno de los Acreedores Participantes
por el presente reconoce que si (a) no se otorgara la Homologacion Judicial; (b)
se declarara posteriormente la nulidad del APE, o (c) existiera alguna
Observacion del BCRA con respecto al Procedimiento de APE, o (d) el Banco
decidiera no seguir adelante con el Procedimiento de APE, o (e) no se
implementara el APE, entonces, la Oferta de Canje de Obligaciones Negociables,
el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y
Documentacion de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y
Documentacion de Reestructuracion de Deuda Clase "A", seguiran siendo validos,
vinculantes, definitivos y exigibles de acuerdo con sus terminos, y no se veran
afectados en modo alguno por el APE.
Clausula 7.7. Con respecto al Representante. Cada Obligacionista Participante
reconoce y acuerda que el Representante (a) actua en virtud del presente
unicamente en su caracter de apoderado de cada Obligacionista Participante, (b)
no asume ninguna obligacion o relacion fiduciaria con respecto al Obligacionista
Participante, (c) no tendra ningun xxxxx x xxxxxxxxxx con
Exhibit A-9
excepcion de aquellos especificamente previstos en el presente, y (d) actuara
como Representante de los Obligacionistas Participantes en virtud del APE,
unicamente a los efectos de recibir y enviar notificaciones e instrucciones en
virtud del presente.
Clausula 7.8. Inexistencia de invitaciones. Se considera que cada uno de los
Obligacionistas No Participantes declara y garantiza no xxxxx recibido
invitacion alguna en el Procedimiento de APE por parte de Citi group Global
Markets Inc. en su caracter de principal colocador de las ofertas y la
invitacion a aceptar el APE prevista en la Oferta de Canje de Obligaciones
Negociables, ni de ninguna de sus afiliadas, con la salvedad de que, si un
Obligacionista No Participante no pudiera efectuar dicha certificacion, antes de
que el mismo pueda recibir las Nuevas Obligaciones Negociables como consecuencia
del APE, el Banco le exigira que envie una carta certificando que el mismo es
una persona: (1) que no se encuentra en los "Estados Unidos" en los terminos de
la Xxxxx 903(a)(1) de la Regulacion S dictada en virtud de xx Xxx de Titulos
Valores, y no es una "persona estadounidense" en los terminos de la Xxxxx 902
(o) de la Regulacion S dictada en virtud de xx Xxx de Titulos Valores, o (2) que
es un dealer u otro fiduciario profesional constituido o, en el caso de personas
fisicas, residente en los Estados Unidos, que posee una cuenta discrecional o
similar, con excepcion de un acervo hereditario o fideicomiso, en beneficio o
por cuenta de una persona no estadounidense. El Banco podra exigir declaraciones
adicionales a los efectos de dar cumplimiento a las leyes de otras
jurisdicciones.
SECCION VIII
Extincion y Cumplimiento.
Clausula 8.1. Extincion del APE. El APE quedara extinguido en la primera de las
siguientes fechas: (a) en la fecha en que el tribunal de apelacion dicte
sentencia definitiva e inapelable rechazando la homologacion del APE; (b) en la
fecha en que el Tribunal de Quiebras o el BCRA declare la liquidacion del Banco;
(c) cuando el Banco deje de cumplir o viole cualquier compromiso o acuerdo
contenido en el presente APE, y tal incumplimiento continuara por un periodo de
30 (treinta) xxxx consecutivos luego de notificacion escrita cursada al Banco en
los terminos de la Clausula 9.4.; y (d) cuando cualquier autoridad gubernamental
hubiera nacionalizado o en general expropiado todo o una parte sustancial de los
activos o bienes del Banco, o el capital accionario de este, o hubiera asumido
la custodia o el control de dichos activos o bienes o de la operatoria del Banco
o su capital accionario, o hubiera tomado cualquier medida que impidiera al
Banco o a sus funcionarios llevar a cabo la operatoria de la entidad o una parte
sustancial de la misma, durante un plazo superior a sesenta (60) xxxx corridos,
y el resultado de dichas medidas afectare de manera sustancial la capacidad del
Banco de cumplir sus obligaciones en virtud del APE.
Las Partes acuerdan que este APE se extinguira automaticamente si la Fecha de
Liquidacion no ocurre en o antes del tercer Dia Habil Judicial posterior a la
Fecha de Presentacion del APE (si la Fecha de Presentacion del Ape ocurre).
EN CASO DE EXTINCION DEL APE, LAS PARTES DEJARAN DE ESTAR OBLIGADAS POR LOS
TERMINOS DEL MISMO, CON LA SALVEDAD DE QUE LOS EFECTOS DE LOS ACTOS Y ACUERDOS
REALIZADOS EN VIRTUD DE LA OFERTA DE CANJE DE OBLIGACIONES NEGOCIABLES, EL
ACUERDO Y DOCUMENTACION DE REESTRUCTURACION DE DEUDA BANCARIA, EL ACUERDO Y
DOCUMENTACION DE REESTRUCTURACION DE DEUDA DE COMERCIO EXTERIOR, Y/O EL ACUERDO
Y DOCUMENTACION DE REESTRUCTURACION DE DEUDA CLASE "A", CONTINUARAN EN PLENA
VIGENCIA, GENERANDO DERECHOS Y OBLIGACIONES PARA LOS ACREEDORES PARTICIPANTES Y
EL BANCO.
Clausula 8.2. Retiro o falta de perfeccionamiento. El Banco se reserva el
derecho de retirar y dejar sin efecto el presente APE en cualquier momento luego
de su celebracion y antes de la Homologacion Judicial, y, en xxx xxxx, de
presentar otras solicitudes de APE. En todos los casos, los efectos de los actos
y acuerdos realizados en virtud de la Oferta de Canje de Obligaciones
Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria,
el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y
el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A" continuaran en
plena vigencia, generando derechos y obligaciones para los Acreedores
Participantes y el Banco.
Clausula 8.3 Cumplimiento. Este APE sera considerado como xxxxxxxx, en el caso
que la Homologacion Judicial se obtuviere, luego de la entrega de las
contraprestaciones establecidas bajo el presente APE a favor de los Acreedores
No Participantes y su confirmacion por el Tribunal de Quiebras bajo el Articulo
59 de xx Xxx de Quiebras. Luego de dicho cumplimiento, las Partes cesaran de
estar sujetas a los terminos del presente, previendose sin embargo que los
efectos de los actos y acuerdos asumidos de acuerdo a la Oferta de Canje de
Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de
Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de
Comercio Exterior, y el Acuerdo y Documentacion de Reestructuracion de Deuda
Clase "A", permaneceran en plena vigencia, seran ejecutables contra y otorgaran
beneficios a, los Acreedores Participantes y al Banco.
Clausula 8.4. Ejecucion. A mayor abundamiento, se entiende por el presente que
la celebracion de este APE por o por cuenta de los Acreedores Participantes o la
presentacion de este APE ante el Tribunal de Quiebras no constituye una renuncia
o de cualquier forma un impedimento para que los Acreedores Participantes puedan
ejercer cualquiera de sus derechos bajo la Oferta de Canje de Obligaciones
Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria,
el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y
el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A" o bajo los
documentos que los evidencien o fueren relacionados a ellos, o bajo xx xxx
aplicable, ante el incumplimiento del Banco de cualquiera de sus obligaciones
bajo los mismos.
Exhibit A-10
SECCION IX
Disposiciones Generales.
Clausula 9.1. Obligaciones de indemnizacion. Las obligaciones o derechos del
Banco de defender, indemnizar, reembolsar o limitar la responsabilidad de sus
directores, sindicos, funcionarios o empleados presentes o pasados en virtud del
acta constitutiva o estatuto del Banco, su politica de indemnizacion al
personal, las leyes argentinas aplicables o cualquier acuerdo especifico,
respecto de cualquier reclamo, demanda, causa, accion o proceso contra los
mismos basado en actos u omisiones relacionados con los servicios que aquellos
prestaran al Banco antes de la Fecha de Presentacion del APE, seguiran vigentes
luego de la Homologacion Judicial y no se veran afectados por esta, y no
quedaran dispensados, independientemente de si dicha defensa, indemnizacion,
reembolso o limitacion de responsabilidad se refieren a actos acaecidos antes o
despues de la fecha de Homologacion Judicial.
Clausula 9.2. Pago de Creditos Administrativos. (a) Los Acreedores Afectados
reconocen y acuerdan que durante el Periodo Previo a la Homologacion Judicial
(i) en relacion con la celebracion, otorgamiento y cumplimiento del presente
APE, el Banco incurrira en Creditos Administrativos, y (ii) el Banco tiene
derecho a pagar dichos Creditos Administrativos de acuerdo con la decision
judicial correspondiente, los terminos de cualquier acuerdo relacionado con los
mismos, o en terminos menos favorables para los titulares de un Credito
Administrativo segun lo convenido entre el Banco y los titulares de dicho
Credito Administrativo.
Clausula 9.3. Sucesores y derechohabientes. Los derechos, beneficios y
obligaciones de cualquier persona fisica o juridica que se mencione o a la que
xx xxxx referencia en el APE, seran vinculantes respecto de cualquier heredero,
sucesor, cesionario o derechohabiente de dicha persona.
Clausula 9.4. Domicilios. A todos los efectos derivados del APE, las Partes
constituyen domicilio en los indicados en el parrafo introductorio del presente
o bajo los espacios correspondientes a sus firmas abajo, donde se enviaran
validamente todas las notificaciones y comunicaciones que pudieran corresponder,
incluyendo notificaciones judiciales y/o extrajudiciales. Dichos domicilios
continuaran en vigencia hasta tanto cualquiera de las partes notifique lo
contrario expresamente por escrito.
Clausula 9.5. Derecho aplicable; jurisdiccion y competencia. Las leyes
argentinas regiran todos los aspectos de este APE, incluyendo su forma y
contenido, el proceso de solicitud y aprobacion, y los efectos de su aprobacion
y de cualquier sentencia definitiva sobre la Deuda Existente a Reestructurar. A
todos los efectos legales derivados del presente, las partes se someten a la
jurisdiccion y competencia de los tribunales ordinarios en lo comercial de la
ciudad de Buenos Aires, renunciando a cualquier otro fuero o jurisdiccion que
pudiera corresponder.
EN XX XX XX CUAL las partes suscriben el presente en ejemplares del mismo tenor
y a un solo efecto, en el lugar y fecha arriba indicados.
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
Nombre: Nombre:
Cargo: Cargo:
REPRESENTANTE DE LOS OBLIGACIONISTAS PARTICIPANTES
Nombre:
Cargo:
BANCO / ACREEDOR DE COMERCIO EXTERIOR
Nombre:
Cargo:
Exhibit A-11
LISTADO DE ANEXOS
Anexo I Documentacion del Banco y el Representante.
Anexo II Descripcion de la deuda representada por las Instrumentos de
deuda bancaria y Terminos y Condiciones Basicos del Canje de
Obligaciones Negociables, Deuda de los Obligacionistas Participantes
y porcentaje que la misma representa respecto de la Deuda Existente
a Reestructurar. Copia del Prospecto, del Suplemento de Precio y de
la Addenda al Suplemento de Precio.
Anexo III Descripcion de la Deuda Bancaria Existente y Terminos y
Condiciones Basicos del Acuerdo y Documentacion de Xxxxxxxxxxxxxxxx
xx Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx Existente y el procentaje que la
misma representa respecto de la Deuda Existente a Reestructurar.
Anexo IV Descripcion de la Deuda Existente de Comercio Exterior y Terminos
y Condiciones Basicos del Acuerdo y Documentacion de
Reestructuracion de Deuda de Comercio Exterior, Deuda de Comercio
Exterior y porcentaje que la misma representa respecto de la Deuda
Existente a Reestructurar.
Anexo V Descripcion de la Deuda Existente Clase "A" y Terminos y
Condiciones Basicos del Acuerdo y Documentacion de Reestructuracion
de Deuda Clase "A", Deuda Clase "A" y el porcentaje que la misma
representa respcto de la Deuda Existente a Reestructurar.
Anexo VI Categorias de Acreedores No Afectados.
Exhibit A-12
(ENGLISH VERSION)
In the City of Buenos Aires, on the [_] day of the month of [___] of 200_, this
out-of-court composition agreement with creditors (Acuerdo Preventivo
Extrajudicial) (the "APE" or the "APE Agreement") for the restructuring of debt
is entered into, by and between:
1. BANCO XX XXXXXXX Y BUENOS AIRES S.A., with legal domicile at Tte. Gral. Xxxxx
000, 0xx xxxxx, Xxxx xx Xxxxxx Xxxxx, Xxxxxxxxx Xxxxxxxx, represented by Mr.
[________], in accordance with the documentation that is attached to this APE
Agreement as Exhibit I (the "Bank"); and
2. (a) CITIBANK, N.A., with legal domicile at 0 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxx, represented by Mr. [___________] in its capacity as representative, in
accordance with the documentation that is attached to this APE Agreement as
Exhibit I (the "Representative"), of the holders of the notes with an interest
rate of 9% due in 2003 and step-up floating rate notes due 2002 issued by the
Bank (together the "Existing Notes") (collectively the "Participating
Noteholders"), in each case that have tendered their existing Notes for exchange
under the Notes Exchange Offer (as defined below) and have authorized the
execution of this APE Agreement by the Representative on their behalf and
granted the Representative the corresponding Power of Attorney (as defined
below);
(b) the bank and multilateral agency creditors that will adhere to this APE
Agreement by sending to the Bank, on or before the APE Filing Date (as defined
below), an executed copy of this APE Agreement (the "Participating Banks");
(c) the trade finance creditors that will adhere to this APE Agreement by
sending to the Bank, on or before the APE Filing Date, an executed copy of this
APE Agreement (the "Participating Trade Finance Creditors"); and
(d) the creditors of the Existing Trade "A" Debt (as defined below) that will
adhere to this APE Agreement by sending to the Bank, on or before the APE Filing
Date, an executed copy of this APE Agreement (the "Participating Trade "A"
Creditors" and together with the Participating Noteholders, the Participating
Banks, and the Participating Trade Finance Creditors, the "Participating
Creditors", and together with the Bank, the "Parties").
RECITALS
(i) WHEREAS, on the date of execution of this APE Agreement (the "Execution
Date"), the Bank declares that it maintains (a) with all holders of
Existing Notes (the "Noteholders"), the debt described in Exhibit II of
this APE Agreement (the "Existing Noteholders Debt"); (b) with all the
bank and multilateral agency creditors (the "Banks"), the unsecured bank
debt detailed in Exhibit III of this APE Agreement (the "Existing Bank
Debt"); (c) with all the trade finance creditors (the "Trade Finance
Creditors") the existing trade debt described in Exhibit IV of this APE
Agreement (the "Existing Trade Finance Debt"); and (d) with all creditors
of Existing Trade "A" Debt (as defined below) (the "Trade "A" Creditors")
the existing trade debt described in Exhibit V of this APE Agreement (the
"Existing Trade "A" Debt" and together with the Existing Noteholders Debt,
the Existing Bank Debt, and the Existing Trade Finance Debt, the "Existing
Restructuring Debt"). As of the Execution Date, the Bank declares that the
Existing Restructuring Debt amounts to US$[____] million in aggregate
principal amount.
(ii) WHEREAS, since December 2001, the Bank experienced adverse financial
consequences created by, among other factors, the approval of the Public
Emergency and Foreign Exchange System Reform Law, Law No. 25,561 and
Exhibit A-13
subsequent decrees and regulations that resulted in the devaluation of the
Argentine peso (the "Peso") against foreign currencies,
(iii) WHEREAS, within this context, the Bank implemented a restructuring
process, in accordance with Law No. 21,526, as amended (the "Financial
Institutions Law"), and submitted a regularization plan, as amended (the
"Galicia Capitalization and Liquidity Plan"), to the Central Bank of the
Argentine Republic (the "Argentine Central Bank"), which provides for the
restructuring of the Bank's Existing Restructuring Debt and contemplates
the successful restructuring of the Existing Restructuring Debt as an
essential component thereof.
(iv) WHEREAS, within the context of Decree No. 739/03 and 1262/03, and
Argentine Central Bank Communique "A" 3941 and Communique "A" 3940, the
terms and conditions for restructuring of the Existing Restructuring Debt
were approved by the Argentine Central Bank on November 27, 2003.
(v) WHEREAS, as part of the debt restructuring, the Bank has proposed to
restructure the Existing Notes through a voluntary exchange of Existing
Notes, as further described in the Pricing Supplement of the Bank dated
December 23, 2003 and the Supplement to such Pricing Supplement, dated
March 18, 2004 (the "Notes Exchange Offer"). Under the Restructuring
Proposal, the Bank has requested a Letter of Transmittal and Authorization
(as defined below) which contained an authorization for the Bank to file
the APE and a Power of Attorney (as defined below), authorizing the
Representative to execute this APE Agreement on their behalf and appear on
behalf of each of the Participating Noteholders at Meetings (as defined
below). The period for tendering the Existing Notes to participate in the
Notes Exchange Offer has expired on [__], 2004 (the "Expiration Date") and
[__]% of the aggregate principal amount of all Existing Notes has been
validly tendered for exchange and not revoked pursuant to the terms of the
Notes Exchange Offer.
(vi) WHEREAS, as part of the debt restructuring, the Existing Bank Debt, the
Existing Trade Finance Debt and the Existing Trade "A" Debt is being
restructured through different voluntary restructuring arrangements
entered into with the Banks, Trade Finance Creditors and Trade "A"
Creditors, respectively, which are attached hereto as Exhibit III, IV and
V, respectively (the "Bank Debt Restructuring Arrangement and
Documentation", "Trade Finance Debt Restructuring Arrangement and
Documentation" and "Trade "A" Debt Restructuring Arrangement and
Documentation", respectively, and together with the Notes Exchange Offer,
the "Restructuring Proposal"). Under such debt restructuring, the Bank has
requested the Banks, Trade Finance Creditors and Trade "A" Creditors to
execute this APE Agreement.
(vii) WHEREAS, the Restructuring Proposal provides for the exercise by the Bank
of its right to file, in accordance with sections 69 to 76 of the
Argentine Bankruptcy Law No. 24,522, as amended (the "Argentine Bankruptcy
Law"), an APE procedure (the "APE Procedure") in order to extend the
effects of the Notes Exchange Offer, the Bank Debt Restructuring
Arrangement and Documentation, the Trade Finance Debt Restructuring
Arrangement and Documentation, and the Trade "A" Debt Restructuring
Arrangement and Documentation to those creditors holding Existing
Restructuring Debt that did not participate in the Restructuring Proposal.
(viii) WHEREAS, the Restructuring Proposal shall be in full force and effect
with respect to the creditors that participated therein, independently
from the Court Endorsement (as defined below) of this APE Agreement, which
is not a condition to their consummation.
(ix) WHEREAS, the Bank seeks through this APE Agreement to reach a
comprehensive restructuring of its foreign debt, which includes having a
restructuring agreement with all of its Affected Creditors (as defined
below) under the Existing Restructuring Debt.
(x) WHEREAS, given that the restructuring proposals submitted to the holders
of Existing Notes and the Banks have substantially equivalent economic
terms, the holders of Existing Notes and the Banks were grouped in the
same
Exhibit A-14
category of financial creditors. Additionally, since each of the
restructuring proposals submitted to the Trade Finance Creditors and to
the Trade "A" Creditors have its particular terms and conditions, each of
them constitute an additional separate category of financial creditors.
(xi) WHEREAS, this APE Agreement contemplates, in accordance with Section 76 of
the Argentine Bankruptcy Law, that if the filing provided herein is
endorsed ("homologado") by the Bankruptcy Court (as defined below), (a)
the holders of the Existing Notes that did not participate in the Notes
Exchange Offer and the Banks that did not participate in the Bank Debt
Restructuring Arrangement and Documentation would be compelled to exchange
their Existing Notes and Existing Bank Debt, respectively, for Units (as
defined below), which the Bank will deem such holders to have elected to
receive in the First Step Exchange Offer (as defined in Exhibit II) in the
Notes Exchange Offer, (b) the Trade Finance Creditors that did not
participate in the Trade Finance Debt Restructuring Arrangement and
Documentation would be compelled to exchange their Existing Trade Finance
Debt for units substantially in the terms offered in the Notes Exchange
Offer on terms similar to those of the Trade Finance Debt Restructuring
Arrangement and Documentation; and (c) the Trade "A" Creditors that did
not participate in the Trade "A" Debt Restructuring Arrangement and
Documentation would be compelled to accept the restructuring of their
Existing Trade "A" Debt in the manner contemplated in the Trade Finance
Debt Restructuring Arrangement and Documentation.
NOW, THEREFORE, the Parties agree to enter into this APE Agreement in accordance
with Sections 69 through 76 and related provisions of the Argentine Bankruptcy
Law.
ARTICLE I.
Definitions.
Section 1.1
"Administrative Claims" means the amount of any court tax payable determined by
the Bankruptcy Court, as well as any legal fee and costs related to the
administration of the court proceedings related to the APE Procedure and the
preservation of the Bank's assets that is entitled to priority under Section 240
of the Argentine Bankruptcy Law, including all claims, costs, fees and expenses
incurred by the Representative of the Participating Creditors as a consequence
of the APE Procedure.
"Affected Creditors" means (i) in the case of any series of Existing Notes, all
holders of the Existing Notes; (ii) in the case of the Existing Bank Debt, all
holders of Existing Bank Debt; (iii) in the case of the Existing Trade Finance
Debt, all holders of Existing Trade Finance Debt; and (iv) in the case of the
Existing Trade "A" Debt, all holders of Existing Trade "A" Debt.
"APE" has the meaning specified in the introductory paragraph herein.
"APE Agreement" has the meaning specified in the introductory paragraph herein.
"APE Filing Date" means the date on which this APE Agreement is filed with the
Bankruptcy Court pursuant to Section 72 of the Argentine Bankruptcy Law, which
shall occur (i) within 3 Judicial Business Days prior to the Settlement Date, or
(ii) after the Settlement Date.
"APE Procedure" has the meaning specified in the Recitals herein.
"Argentine Bankruptcy Law" has the meaning specified in the Recitals herein.
"Argentine Central Bank" has the meaning specified in the Recitals herein.
"Argentine Central Bank Objection" means any formal objection by the Argentine
Central Bank to the ability of the Bank to avail itself of an APE Procedure
under Argentine law.
Exhibit A-15
"Assets and Liabilities Statement" means the list of the Bank's assets and
liabilities as of the Execution Date, as certified by an independent public
accountant pursuant to Section 72, subsection 1 of the Argentine Bankruptcy Law.
"Bank" has the meaning specified in the introductory paragraph herein.
"Banks" has the meaning specified in the introductory paragraph herein.
"Bank's Books List" means the list of all the books used by the Bank within its
business, with the indication of their last used folio as of the Execution Date
as provided in Section 72, subsection 4 of the Argentine Bankruptcy Law.
"Bank Debt Restructuring Arrangement and Documentation" has the meaning
specified in the Recitals herein and that are further detailed herein under
Exhibit III.
"Bankruptcy Court" means a commercial Argentine court with competent
jurisdiction over the APE Procedure.
"BASE" means the Buenos Aires Stock Exchange (Bolsa de Comercio de Buenos
Aires).
"CNV" means the Argentine Securities Commission ("Comision Nacional de
Valores").
"Cordoba Stock Exchange" means the Bolsa de Comercio de Cordoba.
"Court Endorsement" means the endorsement (homologacion) of this APE Agreement
by the Bankruptcy Court in accordance with Section 76 of the Argentine
Bankruptcy Law.
"Court Endorsement Date" means the date when the Court Endorsement occurs
(without taking into consideration any opposition or recourse filed against such
Court Endorsement, as set forth in Sections 51, 60 and others of the Argentine
Bankruptcy Law).
"Creditors List" means the list of the Bank's creditors, as of the Execution
Date as certified by an independent public accountant pursuant to Section 72,
subsection 2 of the Argentine Bankruptcy Law.
"Detail of Participating Creditors Existing Restructuring Debt" means the detail
of the aggregate principal amount of the Participating Creditors Existing
Restructuring Debt and the percentage of Affected Creditors that the
Participating Creditors account for, pursuant to Section 72, subsection 5 of the
Argentine Bankruptcy Law.
"Execution Date" has the meaning specified in the Recitals herein.
"Existing Bank Debt" has the meaning specified in the Recitals herein.
"Existing Noteholders Debt" has the meaning specified in the Recitals herein.
"Existing Notes" has the meaning specified in the introductory paragraph herein.
"Existing Restructuring Debt" has the meaning specified in the Recitals herein.
"Existing Trade Finance Debt" has the meaning specified in the Recitals herein.
"Existing Trade "A" Debt" has the meaning specified in the Recitals herein.
"Expiration Date" has the meaning specified in the Recitals herein.
"Financial Institutions Law" has the meaning specified in the Recitals herein,
"Galicia Capitalization and Liquidity Plan" has the meaning specified in the
Recitals herein.
"Grupo Galicia Preferred Shares" has the meaning specified under Exhibit II
herein.
"Judicial Actions and Administrative Proceedings List" means the list of
actions, suits or judicial, arbitral, other administrative or other proceedings
before any court or governmental agency, authority or body or any arbitrator
against or affecting the Bank, pursuant to Section 72, subsection 3 of the
Argentine Bankruptcy Law.
"Judicial Business Day" means any day (other than a Saturday or Sunday) on which
the courts in Buenos Aires are open.
"Letter of Transmittal and Authorization" means the electronic letter of
transmittal and authorization granted by each of the Participating Noteholders
to the Representative in order to tender the Existing Notes under the Notes
Exchange Offer. The Letter of Transmittal and Authorization also contains an
authorization for the Bank to pursue the APE.
"MAE" means the Xxxxxxx Abierto Electronico S.A.
Exhibit A-16
"Meetings" means any meetings of holders of the Existing Notes that the Bank may
call or request the Bankruptcy Court to call, prior or after the APE Filing
Date, in order to confirm the execution of this APE Agreement and to petition to
the Bankruptcy Court to extend the effect of the APE Agreement to
Non-Participating Creditors.
"New Notes" means, collectively, the Long Term Notes, Subordinated Notes and
Medium Term Notes as these terms are defined in Exhibit II.
"Non-Participating Banks" has the meaning specified in Section 2.1(b) hereof.
"Non-Participating Creditors" shall mean the holders of Existing Restructuring
Debt, that even though do not execute this APE Agreement, subject to the Court
Endorsement, will be obligated pursuant to the terms of the APE Agreement in
accordance with Section 76 of the Argentine Bankruptcy Law.
"Non-Participating Creditors' Waiver" has the meaning specified in Sections 3.2
herein.
"Non-Participating Noteholders" has the meaning specified in Section 2.1(b)
herein.
"Non-Participating Trade Finance Creditors" has the meaning specified in Section
2.1(b) herein.
"Non-Participating Trade "A" Creditors" has the meaning specified in Section 2.1
(b) herein.
"Noteholders" has the meaning specified in the Recitals herein.
"Notes Exchange Offer" has the meaning specified in the Recitals herein.
"Offering Memorandum" shall mean the offering memorandum dated November 5, 2003,
a copy of which is attached hereto as Exhibit II.
"Participating Banks" has the meaning specified in the introductory paragraph
herein, including their successor, assignee or transferee of such person or
entity.
"Participating Noteholders" has the meaning specified in the introductory
paragraph herein, including their heirs, successors, assigns, transferees or
assignees of such individual or entity.
"Participating Creditors" means, collectively, the Participating Noteholders,
the Participating Banks, the Participating Trade Finance Creditors, and the
Participating Trade "A" Creditors.
"Participating Trade "A" Creditors" has the meaning specified in the
introductory paragraph herein, including their heirs, successors, assigns,
transferees or assignees of such individual or entity.
"Participating Trade Finance Creditors" has the meaning specified in the
introductory paragraph herein, including their heirs, successors, assigns,
transferees or assignees of such individual or entity.
"Parties" has the meaning specified in the introductory paragraph herein.
"Peso" has the meaning specified in the Recitals herein.
"Power of Attorney" is the authorization granted by each Participating
Noteholder in favor of the Representative authorizing the Representative to
execute this APE Agreement on behalf of such Participating Noteholder in
accordance with the Argentine Bankruptcy Law and to attend and vote at any
Meetings on their behalf. Each Power of Attorney, included in Exhibit I, has
been validly authenticated under Argentine law requirements (public notary
certification, apostille or equivalent authentication).
"Pre-Endorsement Period" means the period of time that runs from the APE Filing
Date with the Bankruptcy Court until the date of the Court Endorsement.
"Pricing Supplement" means the pricing supplement in respect of the New Notes
dated December 23, 2003, a copy of which is included in Exhibit II.
"Representative" has the meaning specified in the introductory paragraph herein.
"Restructuring Proposal" has the meaning specified in the recitals herein.
"Securities Act" has the meaning specified in Section 7.3 herein.
"Settlement Date" means the date in which the transactions contemplated under
the (i) Notes Exchange Offer, (ii) Bank Debt Restructuring Arrangement and
Documentation-, (iii) Trade Finance Debt Restructuring Arrangement and
Documentation, (iv)
Exhibit A-17
Trade "A" Debt Restructuring Arrangement and Documentation (on the understanding
that the Settlement Date for all Participating Creditors shall occur on the same
date); are completed, and there are no pending actions to perfect such
transactions.
"Trade "A" Creditors" has the meaning specified in the Recitals herein.
"Trade Finance Creditors" has the meaning specified in the Recitals herein.
"Trade "A" Debt Restructuring Arrangement and Documentation" has the meaning
specified in the Recitals herein.
"Trade Finance Debt Restructuring Arrangement and Documentation" has the meaning
specified in the Recitals herein.
"Unaffected Creditors" has the meaning specified in Section 2.4 herein.
"Units" has the meaning specified in the Bank Debt Restructuring Arrangement and
Documentation.
"Waiver" has the meaning specified in Section 3.1 herein.
Interpretation.
Section 1.2. For all purposes of this APE Agreement, except as otherwise
expressly provided herein or unless the context otherwise requires: (a) the
terms defined in this APE Agreement have the meaning herein specified and
include the plural as well as the singular, and vice- versa; (b) words importing
gender include all genders; (c) any reference to an "Article" or "Section" or
"Exhibit" refers to an Article, Section or Exhibit, as the case may be, of this
APE Agreement; (d) all references to this APE Agreement and the phrases
"herein", "hereof", "hereto" and "hereunder" and other words of similar import
refer to this APE Agreement as a whole, and not to any particular Article,
Section, Exhibit or and other kind of subdivision; (e) any references to
"includes" or "including" shall mean "including, but not limited to"; and (f)
any reference to agreements or contracts, including this APE Agreement, refers
to such agreements or contracts, together with all the exhibits, appendixes and
attachments thereto and as such agreements or contracts may be amended,
restated, supplemented or otherwise modified from time to time.
ARTICLE II
Judicial Endorsement of the APE Agreement.
Section 2.1. (a) The Bank intends that the Restructuring Proposal shall
restructure only the Existing Restructuring Debt. In order to effect such
restructuring, the Bank shall implement: (i) the Notes Exchange Offer, (ii) the
Bank Debt Restructuring Arrangement and Documentation; (iii) the Trade Finance
Debt Restructuring Arrangement and Documentation; and (iv) the Trade "A" Debt
Restructuring Arrangement and Documentation.
(b) In order to extend the effects of the restructuring of the Existing
Restructuring Debt to the holders that did not participate in the Notes Exchange
Offer (the "Non-Participating Noteholders"), to the Banks that did not
participate in the Bank Debt Restructuring Arrangement and Documentation (the
"Non-Participating Banks"), to the Trade Finance Creditors that did not
participate in the Trade Finance Debt Restructuring Arrangement and
Documentation (the "Non- Participating Trade Finance Creditors") and to the
Trade "A" Creditors that did not participate in the Trade "A" Debt Restructuring
Arrangement and
Exhibit A-18
Documentation (the "Non-Participating Trade "A" Creditors"), the Participating
Creditors agree that the Bank will seek Court Endorsement of this APE Agreement
in order to compel:
(i) the Non-Participating Noteholders and the Non-Participating Banks to
accept - in exchange for their respective portion of Existing
Restructuring Debt - Units which the Bank will deem such holders to
have elected to receive in the First Step Exchange Offer (as such
term is defined in Exhibit II) had they participated in the Notes
Exchange Offer described in Exhibit II herein
(ii) the Non-Participating Trade Finance Creditors to accept - in
exchange for their respective portion of Existing Restructuring
Debt- Units substantially on the terms offered in the Notes Exchange
Offer on terms similar to those of the Trade Finance Debt
Restructuring Arrangement and Documentation; and
(iii) the Trade "A" Creditors that did not participate in the Trade "A"
Debt Restructuring Arrangement and Documentation would be compelled
to accept the restructuring of their Existing Trade "A" Debt in the
manner contemplated in the Trade Finance Debt Restructuring
Arrangement and Documentation.
Section 2.2. For purposes of the APE Procedure, the Participating Creditors
acknowledge and accept that the Participating Noteholders and the Participating
Banks shall be part of the same category of creditors, given the fact that the
economic terms of the proposals offered to them are substantially similar; and
that the Trade Finance Creditors and the Trade "A" Creditors shall constitute,
each of them, a separate and individual category of creditors.
Section 2.3. (a) The Participating Creditors acknowledge that the Bank has the
right to file the APE Agreement on the APE Filing Date, at its sole discretion
subject to obtaining the majorities described in Section 2.3 (b) below, in order
to seek the Court Endorsement of this APE Agreement in accordance with Sections
69 through 76 and related provisions of the Argentine Bankruptcy Law.
(b) The Bank represents that, as of the APE Filing Date:
(i) the Participating Creditors shall represent an absolute majority of
the Affected Creditors accounting for at least 95% of the aggregate
principal amount of the then outstanding Existing Restructuring
Debt;
(ii) within the category conformed by the Participating Noteholders and
the Participating Banks, the Bank shall have obtained the majorities
required under Argentine Law;
(iii) within the category conformed by the Participating Trade Finance
Creditors, the Bank shall have obtained the majorities required
under Argentine Law; and
(iv) within the category conformed by the Participating Trade "A"
Creditors, the Bank shall have obtained the majorities required
under Argentine Law.
For purposes of determining such majorities, (i) in compliance with paragraph 3
of Section 45 bis of the Argentine Bankruptcy Law, (A) holders of the Notes with
an interest rate of 9% due 2003 were grouped into those who support this APE
Agreement and those who oppose this APE Agreement, and holders of the Step-Up
Floating Rate Notes due 2002 were grouped into those
Exhibit A-19
who support this APE Agreement and those who oppose this APE Agreement, and (B)
each such group was treated as one Affected Creditor such that each tranche of
Notes with an interest rate of 9% due in 2003 and Step-Up Floating Rate Notes
due 2002 was deemed held by two Affected Creditors; and (ii) each Bank that was
a party to the Bank Debt Restructuring Arrangement and Documentation, each Trade
Finance Creditor that was a party to the Trade Finance Debt Restructuring
Arrangement and Documentation, and each Trade "A" Creditor that was a party to
the Trade "A" Debt Restructuring Arrangement and Documentation were treated as
separate Affected Creditor.
(c) In compliance with the requirements set forth under Section 72 of the
Argentine Bankruptcy Law, the following documents duly certified by an
independent public accountant will be filed by the Bank (jointly with the APE
Agreement and other documents) before the Bankruptcy Court, on the APE Filing
Date: (i) the Assets and Liabilities Statement; (ii) the Creditors List; (iii)
the Judicial Actions and Administrative Proceedings List; (iv) the Bank's Books
List; and (v) the Detail of the Participating Creditors Existing Restructuring
Debt.
Section 2.4. The Participating Creditors acknowledge and agree that the Bank,
pursuant to the APE Agreement: (i) does not intend to amend the terms of its
obligations with unsecured creditors other than the Affected Creditors, such as
(but not limited to) the creditors of the debt originally held by its New York
Branch and exchanged for the Bank's debt in July 2002 (the "Unaffected
Creditors", a list of which categories of creditors is attached hereto as
Exhibit VI, which the Bank hereby represents and warrants is true and complete
list of such categories as of the date hereof), (ii) the Bank intends to honor
its obligations with the Unaffected Creditors in accordance with their existing
terms, as amended, and in accordance with applicable Argentine law and reserves
the right to pay any Unaffected Creditor in full on the date that any credit of
the Unaffected Creditors becomes due in the ordinary course of the Bank's
business. Notwithstanding the foregoing, if the Bankruptcy Court requests the
Bank to obtain the consent of the Unaffected Creditors to execute this APE
Agreement, the Bank hereby compromises to make its best efforts to fulfill such
requirement, and (iii) shall continue to carry its business under the authority
and supervision of the Argentine Central Bank, which authority and supervisory
and regulatory powers towards the Bank should remain unaffected at all times.
ARTICLE III
Waivers for the non-compliance of certain covenants assumed by the Bank under
the Existing Restructuring Debt.
Section 3.1. The Parties agree that upon the settlement of the Notes Exchange
Offer, the Bank Debt Restructuring Arrangement and Documentation, the Trade
Finance Debt Restructuring Arrangement and Documentation and the Trade "A" Debt
Restructuring Arrangement and Documentation, they shall be bound by the waivers
provided under such documents and pursuant to the terms and conditions provided
therein (together, the "Waiver").
Section 3.2. If this APE Agreement is judicially endorsed, the Non-Participating
Creditors will be deemed to have agreed that, upon delivery of the consideration
provided in this APE Agreement with respect to the Non-Participating Creditors,
the Bank will be (i) discharged from, and the Non-Participating Creditors will
be deemed to have waived, the breach and/or non compliance of any and all
covenants, and any breach of any other terms and conditions of the Existing
Restructuring Debt with the Non-Participating Creditors, including events of
default that exist or may have existed on or prior to delivery of the
consideration provided in this APE Agreement with respect to the
Non-Participating Creditors; and (ii) discharged and released of all liabilities
of the Bank with respect to all the Non-Participating Creditors (together, the
"Non- Participating Creditors' Waiver").
Exhibit A-20
ARTICLE IV
Effectiveness of the restructuring of the Existing Restructuring Debt.
Section 4.1. The Parties agree that the terms and conditions of the
Restructuring Proposal will become effective on the Settlement Date.
Section 4.2. In the event that the APE Agreement is not endorsed by the
Bankruptcy Court either because the Bank does not file this APE Agreement with
the Bankruptcy Court or otherwise, this APE Agreement will still be binding as
to the Participating Creditors and the Bank and all the acts and agreements
entered into pursuant the Notes Exchange Offer, the Bank Debt Restructuring
Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement
and Documentation and/or the Trade "A" Debt Restructuring Arrangement and
Documentation shall remain in full force and effect and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Participating Creditors and the Bank.
ARTICLE V
Effect of Court Endorsement on Non-Participating Creditors.
Section 5.1. In accordance with Section 76 of the Argentine Bankruptcy Law, if
the Court Endorsement is granted, the Parties agree that this APE Agreement
shall be binding upon all Affected Creditors, including all Non-Participating
Creditors.
Section 5.2. The Restructuring Proposal that shall be extended to the
Non-Participating Creditors shall imply the cancellation, termination and
discharge of all of the obligations of the Bank under the Existing Restructuring
Debt held by such Non-Participating Creditors and the mandatory exchange or
restructuring of said Existing Restructuring Debt, as the case may be, as
provided in this Article V.
Section 5.3. The restructured terms and conditions with respect to the
Non-Participating Creditors will become effective between the Bank and the
Non-Participating Creditors as from the Court Endorsement Date.
Section 5.4. Subject to the Court Endorsement, the Bank shall execute the
following actions with respect to each Non-Participating Creditor:
(I) NON-PARTICIPATING NOTEHOLDERS AND NON-PARTICIPATING BANKS
The Bank shall deliver to the Non-Participating Noteholders and the
Non-Participating Banks Units in an aggregate principal amount equivalent to
100% of the principal amount of their Existing Notes and Existing Bank Debt plus
the accrued and unpaid interests as provided under the Notes Exchange Offer
described in Exhibit II and the Bank Debt Restructuring Agreement and
Documentation, as described in Exhibit III.
Exhibit A-21
(II) NON-PARTICIPATING TRADE FINANCE CREDITORS
The Bank shall deliver to the Non-Participating Trade Finance Creditors Units
substantially in the terms offered in the Notes Exchange Offer in an aggregate
principal amount equivalent to 100% of the principal amount of their Existing
Trade Finance Debt plus the accrued and unpaid interests as provided under the
Notes Exchange Offer described in Exhibit II.
(III) NON PARTICIPATING TRADE "A" CREDITORS
The Bank shall restructure the Existing Trade "A" Debt in the manner
contemplated in the Trade Finance Debt Restructuring Arrangement and
Documentation described in Exhibit V.
Section 5.5. All Non-Participating Creditors receiving the considerations set
forth under this APE Agreement, as ruled by the Bankruptcy Court, shall be
deemed to make the Representations and Warranties set forth in Article VII
herein.
ARTICLE VI
Representations and Warranties of the Bank.
The Bank hereby represents and warrants to the other Parties, as of the date
hereof:
Section 6.l. No Consents. No consent, approval, authorization, notice or order
of, or filing with, any governmental agency or regulatory authority or any
court, is required for the consummations of the transactions contemplated by
this APE Agreement other than (i) the absence of an Argentine Central Bank
Objection (as defined below) to this APE Agreement; (ii) the Court Endorsement;
(iii) the approval by the CNV of the public offering of the New Notes and the
Grupo Galicia Preferred Shares (as defined below) and the authorization to list
the New Notes (as defined below) in the Cordoba Stock Exchange and the MAE and
the authorization to trade the Grupo Galicia Preferred Shares in the BASE,
Cordoba Stock Exchange and the MAE; and (iv) the ratification by the Bank's
shareholders of this APE Agreement within 30 days of the APE Filing Date.
Section 6.2. No Conflicts. The execution and delivery of this APE Agreement by
the Bank does not, and the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby will not, conflict with,
result in a violation or breach of, any of the terms, conditions and provisions
of the certificate or articles of incorporation of bylaws (estatutos) or
agreements of the Bank or any applicable laws and regulations. Additionally, as
of this date, all acts undertaken by the Bank for the execution and filing of
this APE Agreement have been effected in a manner consistent with the statutory
rights of any Affected Creditors to be treated equally and ratably.
Section 6.3. Enforceability of the Restructuring Proposal. The Restructuring
Proposal and the considerations set forth therein and herein constitute legal,
valid and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms of the corresponding documentation, except insofar as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
ARTICLE VII
Exhibit A-22
Representations and Warranties by the Participating Creditors.
Section 7.1. Regarding the Restructuring. As of the Court Endorsement Date, each
of the Participating Creditor waives any rights that it may have pursuant to
Argentine law to (i) challenge the validity of the transactions provided for
herein and in the Notes Exchange Offer, the Bank Debt Restructuring Arrangement
and Documentation, the Trade Finance Debt Restructuring and Documentation and
the Trade "A" Debt Restructuring Arrangement and Documentation, including the
right to claw back ("accion revocatoria") any payment made by the Bank in
connection therewith, and (ii) file any action against any director, syndic or
senior officer of the Bank ("accion de responsabilidad") in connection with or
as a result of any of the aforementioned transactions, except that such action
derives from willful misconduct of the director, syndic or senior officer of the
Bank or from their violation to the by-laws of the Bank or to any law or
regulation. The waivers and/or consents provided herein shall not apply to any
acts or omissions of the Bank that constitute a breach of any of the obligations
of the Bank under the Notes Exchange Offer, Bank Debt Restructuring Arrangement
and Documentation, Trade Finance Debt Restructuring Arrangement and
Documentation and Trade "A" Debt Restructuring Arrangement and Documentation.
Section 7.2. Regarding the Removal of Any Injunction on Disposition of the
Bank's Assets. Each of the Participating Creditors acknowledges that, by its
execution of this APE Agreement, it shall be deemed to have consented to any
relief that the Bank may seek to remove or vacate any general injunction on the
disposition of the Bank's assets that may have been imposed by the Bankruptcy
Court in connection with this APE Agreement during the Pre-Endorsement Period,
upon the Court Endorsement and until the date on which the Bankruptcy Court
formally declares that the Bank has fully performed its obligations under this
APE Agreement in accordance with Section 59 of the Argentine Bankruptcy Law. The
waivers and/or consents contained herein shall not apply to any acts or
omissions of the Bank that constitute a breach of any of the obligations of the
Bank under the Notes Exchange Offer, Bank Debt Restructuring Arrangement and
Documentation, Trade Finance Debt Restructuring Arrangement and Documentation
and Trade "A" Debt Restructuring Arrangement and Documentation.
Section 7.3. Regarding the New Notes and Grupo Galicia Preferred Shares. Each
Participating Creditor acknowledges and agrees and the Bank represents that (i)
neither this APE Agreement nor the New Notes and Grupo Galicia Preferred Shares
to be delivered by the Bank on the corresponding Settlement Date has been
registered under the United States Securities Xxx 0000, as amended ("Securities
Act"), or under any U. S. State securities law, and (ii) any securities issued
pursuant to the APE and/or the Restructuring Proposal will be delivered by the
Bank, only (a) in the United States, to "qualified institutional buyers" as that
term is defined in Rule 144A under the Securities Act, in a private transaction
in reliance upon exemption from the registration requirements of the Securities
Act and (b) outside the United States in offshore transactions in reliance upon
Regulation S under the Securities Act.
Section 7.4. Regarding Ratification of this APE Agreement. Each of the
Participating Noteholders does hereby acknowledge that pursuant to its Letter of
Transmittal and Authorization it has authorized the Bank to pursue the APE.
Section 7.5. Valid grant of Power of Attorney. Each Participating Noteholder has
validly granted the Power of Attorney to the Representative, to take on its
behalf the actions therein contemplated.
Section 7.6. Effects of the Notes Exchange, the Bank Debt Restructuring
Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement
and Documentation, and Trade "A" Debt Restructuring Arrangement and
Documentation. Each
Exhibit A-23
of the Participating Creditors hereby acknowledges that if: (a) the Court
Endorsement is not granted, (b) this APE Agreement is subsequently declared null
and void or (c) there is an Argentine Central Bank Objection to the APE
Procedure, (d) the Bank decides to withdraw the APE Procedure, or (e) this APE
Agreement is not implemented, then the Notes Exchange Offer, the Bank Debt
Restructuring Arrangement and Documentation, the Trade Finance Debt
Restructuring Arrangement and Documentation, and the Trade "A" Debt
Restructuring Arrangement and Documentation shall continue to be valid, binding,
definitive and enforceable in accordance with their terms and shall not be
affected in any way by this APE Agreement.
Section 7.7. Regarding the Representative. Each Participating Noteholder
acknowledges and agrees that the Representative: (a) is acting hereunder solely
in its capacity as attorney-in-fact on behalf of each such Participating
Noteholder, (b) does not assume any obligation or relationship of trust, for or
with such Participating Noteholder, and (c) shall have no duties or obligations
other than those specifically set forth herein, and (d) shall act as
Representative of the Participating Noteholders under this APE Agreement solely
for purposes of receiving and sending notices and instructions hereunder.
Section 7.8. No Solicitation. Each Non-Participating Noteholder shall be deemed
to represent and warrant that it has not been solicited in the APE Procedure by
Citigroup Global Markets Inc. as dealer manager for the offers and the APE
solicitation provided for in the Notes Exchange Offer or by any of its
affiliates, provided however, that if such Non-Participating Noteholder cannot
make such certification, before such Non-Participating Noteholder can receive
the New Notes as a result of the APE Agreement, the Bank shall require such
Non-Participating Noteholder return a letter of inquiry certifying that he/she
is a person: (1) who is not in the "United States" as contemplated by Rule
903(a)(1) of Regulation S under the Securities Act, and is not a "U.S. person"
as defined in Rule 902 (o) of Regulation S under the Securities Act or (2) who
is a dealer or other professional fiduciary organized, incorporated or, if an
individual, resident in the United States holding a discretionary account or
similar account, other than an estate or trust, for the benefit or account of a
non "U.S. person". The Bank may require additional representations to comply
with the laws of other jurisdictions.
ARTICLE VIII
Termination and Fulfillment.
Section 8.1. Termination of this APE Agreement. This APE Agreement shall
terminate upon the earlier of: (a) the date upon which the court of appeals
shall have entered a final non-appealable order rejecting the endorsement of
this APE Agreement; (b) the date upon which the Bankruptcy Court or the
Argentine Central Bank declares the liquidation of the Bank; (c) the Bank shall
fail to perform or breach any covenant or agreement contained in this APE
Agreement and such failure and default shall continue unremedied for a period of
thirty (30) consecutive days after written notice shall have been given to the
Bank pursuant to Section 9.4; and (d) any government or governmental authority
shall have condemned, nationalized, seized, or otherwise expropriated all or any
substantial portion of the assets or property of the Bank, or the share capital
of the Bank, or shall have assumed custody or control of such assets or property
or of the business or operations of the Bank or the share capital of the Bank,
or shall have taken any action that would prevent the Bank or its officers from
carrying on its business or operations or a substantial part thereof for a
period exceeding sixty (60) consecutive days and the result of any such action
shall materially prejudice the ability of the Bank to perform its obligations
under this APE Agreement.
The Parties agree that this APE Agreement shall automatically terminate if the
Settlement Date does not occur on or prior to the third Judicial Business Day
after the APE Filing Date (if the APE Filing Date occurs).
Exhibit A-24
Upon such termination, the Parties hereto shall cease to be bound by the terms
hereof, provided however that the effects of the acts and agreements entered
pursuant to the Notes Exchange Offer, the Bank Debt Restructuring Arrangement
and Documentation, the Trade Finance Debt Restructuring Arrangement and
Documentation, and/or the Trade "A" Debt Restructuring Arrangement and
Documentation shall remain in full force and effect and shall be binding upon
and inure to the benefit of the Participating Creditors and the Bank.
Section 8.2. Withdrawal or Non-Consummation. The Bank reserves the right to
withdraw and terminate this APE Agreement at any time after its execution and
prior to the Court Endorsement and, in such case, to file other APE
applications. In all cases, the effects of the acts and agreements entered
pursuant to the Notes Exchange Offer, the Bank Debt Restructuring arrangement
and Documentation, the Trade Finance Debt Restructuring Arrangement and
Documentation, and the Trade "A" Debt Restructuring Arrangement and
Documentation shall remain in full force and effect and shall be binding upon
and inure to the benefit of the Participating Creditors and the Bank.
Section 8.3. Fulfillment. This APE Agreement shall be considered as fulfilled,
in the event that the Court Endorsement is obtained, upon delivery of the
considerations set forth under this APE Agreement to the Non-Participating
Creditors and its confirmation by the Bankruptcy Court under Section 59 of the
Argentine Bankruptcy Law. Upon such fulfillment, the Parties hereto shall cease
to be bound by the terms hereof, provided however that the effects of the acts
and agreements entered pursuant to the Notes Exchange Offer, the Bank Debt
Restructuring Arrangement and Documentation, the Trade Finance Debt
Restructuring Arrangement and Documentation, and/or the Trade "A" Debt
Restructuring Arrangement and Documentation shall remain in full force and
effect and shall be binding upon and inure to the benefit of the Participating
Creditors and the Bank.
Section 8.4. Enforcement of rights. For the avoidance of doubt, it is hereby
understood that the execution of this APE Agreement by or on behalf of the
Participating Creditors or the filing of this APE Agreement with the Bankruptcy
Court does not constitute a waiver or otherwise an impediment of the ability of
the Participating Creditors to enforce any of its rights under the Notes
Exchange Offer, the Bank Debt Restructuring Arrangement and Documentation, the
Trade Finance Debt Restructuring Arrangement and Documentation, and the Trade
"A" Debt Restructuring Arrangement and Documentation or instruments evidencing
or related to these documents or under applicable law upon failure by the Bank
to comply with any obligation thereunder.
ARTICLE IX
Miscellaneous.
Section 9.1. Indemnification Obligations. Any obligations or rights of the Bank
to defend, indemnify, reimburse or limit the liability of its present and former
directors, syndics, officers or employees pursuant to the Bank's certificate of
incorporation, bylaws, employee indemnification policy, applicable Argentine law
or specific agreement in respect of any claims, complaints, suits, causes of
action or proceedings against such directors, syndics, officers or employees
based on any act or omission related to such present or former directors',
syndics', officers' and employees' service with, for, or on behalf of the Bank
prior to the date of the filing of this APE Agreement will survive the Court
Endorsement and remain unaffected thereby, and will not be discharged,
irrespective of whether such defense, indemnification, reimbursement or
limitation of liability is owed in connection with an occurrence before or after
the date of the Court Endorsement.
Exhibit A-25
Section 9.2. Payment of Administrative Claims. (a) The Affected Creditors
acknowledge and agree that during the Pre-Endorsement Period (i) in connection
with the execution, delivery and performance of this APE Agreement, the Bank
will incur Administrative Claims and (ii) the Bank is entitled to pay such
Administrative Claims in accordance with the applicable court resolution, the
terms of any agreement relating thereto or on such less favorable terms to the
holders of any such Administrative Claim as agreed upon between the Bank and the
holders of such Administrative Claim.
Section 9.3. Successors and Assigns. The rights, benefits and obligations of any
person or legal entity named or referenced in this APE Agreement shall be
binding upon and will inure to the benefit of any heir, successor, transferee or
assignee of such person or entity.
Section 9.4. Domiciles. To all effects derived from this APE Agreement, the
Parties set up domicile at the addresses specified in the introductory paragraph
hereof or under its signature below, where all relevant notices and
communications sent will be deemed valid, including judicial and/or
extra-judicial notices. Those domiciles will continue to be effective unless
otherwise expressly notified in writing by the relevant Party.
Section 9.5. Applicable Law and Jurisdiction. The laws of Argentina will govern
all aspects of this APE Agreement, including its required form and content, the
application and approval process, and the effect of its approval and final
judicial order on the Existing Restructuring Debt. To all judicial effects
derived herefrom, the Parties submit to the jurisdiction of the ordinary
commercial courts of the City of Buenos Aires, waiving any other venue or
jurisdiction that may be applicable.
IN WITNESS WHEREOF_____, identical counterparts are signed to a single effect in
the place and date first above written.
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
_________________________________________
Name: Name:
Title: Title:
[REPRESENTATIVE OF PARTICIPATING NOTEHOLDERS]
_________________________
Name:
Title:
Domicile:
[BANK/TRADE FINANCE CREDITOR/TRADE CREDITOR]
_________________________
Name:
Title:
Exhibit A-26
Domicile:
Exhibit A-27
LIST OF EXHIBITS
Exhibit I Bank and Representative Documentation.
Exhibit II Description of Existing Notes Debt and Basic Terms and Conditions of
the Notes Exchange, Participating Noteholders' Debt and the percentage it
accounts of the total debt of the Existing Restructuring Debt. Copy of Offering
Memorandum, the Pricing Supplement and the Supplement to the Pricing Supplement.
Exhibit III Description of Existing Bank Debt and Basic Terms and Conditions of
the Bank Debt Restructuring Arrangement and Documentation, Existing Bank Debt
and the percentage it accounts of the total debt of the Existing Restructuring
Debt.
Exhibit IV Description of Existing Trade Finance Debt and Basic Terms and
Conditions of the Finance Trade Debt Restructuring Arrangement and
Documentation, Trade Finance Debt and the percentage it accounts of the total
debt of the Existing Restructuring Debt.
Exhibit V Description of Existing Trade "A" Debt and Basic Terms and Conditions
of the Trade "A" Debt Restructuring Arrangement and Documentation, Trade "A"
Debt and the percentage it accounts of the total debt of the Existing
Restructuring Debt.
Exhibit VI Categories of Unaffected Creditors.
Exhibit A-28
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Note Purchase Agreement dated as of April 27,
2004 (as amended, supplemented or otherwise modified from time to time, the
"Note Purchase Agreement"; the terms defined therein, unless otherwise defined
herein, being used herein as therein defined) among BANCO XX XXXXXXX Y BUENOS
AIRES S.A., a sociedad anonima organized under the laws of the Republic of
Argentina (the "Issuer"), the Holders party thereto from time to time, the
Documentation Agent party thereto, and DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Agent for the Holders.
Each "Assignor" referred to on Schedule 1 hereto (each, an "Assignor") and
each "Assignee" referred to on Schedule 1 hereto (each, an "Assignee") agrees
severally with respect to all information relating to it and its assignment
hereunder and on Schedule 1 hereto as follows:
(1) Such Assignor hereby sells and assigns, without recourse except as to
the representations and warranties made by it herein, to such Assignee, and such
Assignee hereby purchases and assumes from such Assignor, an interest in and to
such Assignor's rights and obligations under the Note Purchase Agreement as of
the date hereof equal to the applicable percentage interest specified on
Schedule 1 hereto of the applicable Restructured Dollar Notes under the Note
Purchase Agreement. After giving effect to such sale and assignment, such
Assignee's Restructured Dollar Notes and the amount of the Restructured Dollar
Notes owing to such Assignee will be as set forth on Schedule 1 hereto.
(2) Such Assignor (i) represents and warrants that its name set forth on
Schedule 1 hereto is its legal name, that it is the legal and beneficial owner
of the interest or interests being assigned by it hereunder and that such
interest or interests are free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any
Financing Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, any Financing Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Issuer or the
performance or observance by the Issuer of any of its obligations under any
Financing Agreement or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Note or Notes held by such Assignor and requests
that the Agent exchange such Note or Notes for a new Note or Notes payable to
the order of such Assignee in an amount equal to the Restructured Dollar Notes
assumed by such Assignee pursuant hereto or new Notes payable to the order of
such Assignee in an amount equal to the Restructured Dollar Notes assumed by
such Assignee pursuant hereto and such Assignor in an amount equal to
Restructured Dollar Notes retained by such Assignor under the Note Purchase
Agreement, respectively, as specified on Schedule 1 hereto.
(3) Such Assignee (i) confirms that it has received a copy of the Note
Purchase Agreement, together with copies of the financial statements referred to
in Section 4.15 thereof and such other documents and information as it has
deemed appropriate to make its own credit
Exhibit B-1
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon any Agent, any Assignor or
any other Holder and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Note Purchase Agreement; (iii) represents and
warrants that its name set forth on Schedule 1 hereto is its legal name; (iv)
represents and warrants that it is (x) a "Qualified Institutional Buyer as
defined in Rule 144A under the Securities Act, and a "Qualified Purchaser," as
defined under Section 2(a)(51) of the Investment Company Act of 1940, as amended
or (y) an institutional "accredited investor" as defined in Regulation D under
the Securities Act or (z) is not a U.S. Person; (v) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Financing Agreements as are delegated to such Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (vi) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Note Purchase Agreement
are required to be performed by it as a Holder; and (vii) makes each of the
representations and warranties set forth in Section 9.5 of the Note Purchase
Agreement.
Each Holder (including any assignee of a Holder) represents, warrants and
covenants to the Issuer that such Holder is acquiring the Restructured Dollar
Notes owing to it and the Note or Notes held by it for its own account and not
with a view to assignment, participation or transfer other than in a manner that
will not violate United States securities laws or the securities laws of any
other applicable jurisdiction
(4) Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent for acceptance and recording by the Agent. The effective
date for this Assignment and Acceptance (the "Effective Date") shall be the date
of acceptance hereof by the Agent, unless otherwise specified on Schedule 1
hereto.
(5) Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) such Assignee shall be a "Holder" pursuant to the Note Purchase
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Holder thereunder and (ii) such Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Note Purchase Agreement (other
than its rights and obligations under the Financing Agreements that are
specified under the terms of such Financing Agreements to survive the payment in
full of the Obligations of the parties under the Financing Agreements to the
extent any claim thereunder relates to an event arising prior to the Effective
Date of this Assignment and Acceptance) and, if this Assignment and Acceptance
covers all of the remaining portion of the rights and obligations of such
Assignor under the Note Purchase Agreement, such Assignor shall cease to be a
party thereto.
(6) Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Note Purchase
Agreement and the Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest and commitment fees with
respect thereto) to such Assignee. Such Assignor and such Assignee shall make
all appropriate adjustments in payments under the Note Purchase Agreement and
the Notes for periods prior to the Effective Date directly between themselves.
Exhibit B-2
(7) This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to its
conflicts of law principles (except for Section 5-1401 and Section 5-1402 of the
New York General Obligations Law).
(8) This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart hereof by telecopier shall be effective as delivery of an original
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee have caused Schedule 1
to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
Effective Date (if other than date of acceptance by Agent):_________ __,
____
ASSIGNOR
_________________________, as Assignor
[Type or print legal name of Assignor]
By:_________________________________________
Title:______________________________________
Dated: _________ __, ____
Exhibit B-3
ASSIGNEE
_________________________, as Assignee
[Type or print legal name of Assignee]
By:_________________________________________
Title:______________________________________
Dated: _________ __, ____
Holder Address:
Acknowledged this ____day of ___________, ____.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Agent
By ______________________________
Title:
Exhibit B-4
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
ASSIGNOR:
LONG-TERM DOLLAR LIBOR NOTES
Outstanding principal amount of Long-Term Dollar
LIBOR Notes payable to Assignor $
Percentage interest assigned %
Outstanding principal amount of Long-Term Dollar
LIBOR Notes assigned $
Principal amount of Long-Term Dollar LIBOR Notes
payable to Assignor after giving effect to
assignment $
LONG-TERM DOLLAR FIXED RATE NOTES
Outstanding principal amount of Long-Term Dollar
Fixed Rate Notes payable to Assignor $
Percentage interest assigned %
Outstanding principal amount of Long-Term Dollar
Fixed Rate Notes assigned $
Principal amount of Long-Term Dollar Fixed Rate
Notes payable to Assignor after giving
effect to assignment $
MEDIUM-TERM DOLLAR LIBOR NOTES
Outstanding principal amount of Medium-Term Dollar
LIBOR Notes payable to Assignor $
Percentage interest assigned %
Outstanding principal amount of Medium-Term
Dollar LIBOR Notes assigned $
Principal amount of Medium-Term Dollar LIBOR
Notes payable to Assignor after giving
effect to assignment $
MEDIUM-TERM DOLLAR FIXED RATE NOTES
Outstanding principal amount of Medium-Term Dollar
Fixed Rate Notes payable to Assignor $
Percentage interest assigned %
Outstanding principal amount of Medium-Term
Dollar Fixed Rate Notes assigned $
Principal amount of Medium-Term Dollar Fixed Rate
Notes payable to Assignor after giving
effect to assignment $
SUBORDINATED DOLLAR LIBOR NOTES
Exhibit B-5
Outstanding principal amount of Subordinated Dollar
LIBOR Notes payable to Assignor $
Percentage interest assigned %
Outstanding principal amount of Subordinated
Dollar LIBOR Notes assigned $
Principal amount of Subordinated Dollar LIBOR
Notes payable to Assignor after giving
effect to assignment $
SUBORDINATED DOLLAR FIXED RATE NOTES
Outstanding principal amount of Subordinated Dollar
Fixed Rate Notes payable to Assignor $
Percentage interest assigned %
Outstanding principal amount of Subordinated
Dollar Fixed Rate Notes assigned $
Principal amount of Subordinated Dollar Fixed
Rate Notes payable to Assignor after giving
effect to assignment $
SUBORDINATED DOLLAR LIBOR PIK NOTE
Outstanding principal amount of Subordinated Dollar
LIBOR PIK Note payable to Assignor $
Percentage interest assigned %
Outstanding principal amount of Subordinated
Dollar LIBOR PIK Note assigned $
Principal amount of Subordinated Dollar LIBOR PIK
Note payable to Assignor after giving effect
to assignment $
SUBORDINATED DOLLAR FIXED RATE PIK NOTE
Outstanding principal amount of Subordinated Dollar
Fixed Rate PIK Note payable to Assignor $
Percentage interest assigned %
Outstanding principal amount of Subordinated
Dollar Fixed Rate PIK Note assigned $
Principal amount of Subordinated Dollar Fixed
Rate PIK Note payable to Assignor after
giving effect to assignment $
ASSIGNEE:
LONG-TERM DOLLAR LIBOR NOTES
Percentage interest assumed %
Outstanding principal amount of Long-Term Dollar
LIBOR Notes assumed $
Exhibit B-6
Principal amount of Long-Term Dollar LIBOR Notes
payable to Assignee $
LONG-TERM DOLLAR FIXED RATE NOTES
Percentage interest assumed %
Outstanding principal amount of Long-Term Dollar
Fixed Rate Notes assumed $
Principal amount of Long-Term Dollar Fixed Rate
Notes payable to Assignee $
MEDIUM-TERM DOLLAR LIBOR NOTES
Percentage interest assumed %
Outstanding principal amount of Medium-Term
Dollar LIBOR Notes assumed $
Principal amount of Medium-Term Dollar LIBOR
Notes payable to Assignee $
MEDIUM-TERM DOLLAR FIXED RATE NOTES
Percentage interest assumed %
Outstanding principal amount of Medium-Term
Dollar Fixed Rate Notes assumed $
Principal amount of Medium-Term Dollar Fixed Rate
Notes payable to Assignee $
SUBORDINATED DOLLAR LIBOR NOTES
Percentage interest assumed %
Outstanding principal amount of Subordinated
Dollar LIBOR Notes assumed $
Principal amount of Subordinated Dollar LIBOR
Notes payable to Assignee $
SUBORDINATED DOLLAR FIXED RATE NOTES
Percentage interest assumed %
Outstanding principal amount of Subordinated
Dollar Fixed Rate Notes assumed $
Principal amount of Subordinated Dollar Fixed
Rate Notes payable to Assignee $
SUBORDINATED DOLLAR LIBOR PIK NOTE
Percentage interest assumed %
Outstanding principal amount of Subordinated
Dollar LIBOR PIK Note assumed $
Principal amount of Subordinated Dollar LIBOR PIK
Note payable to Assignee $
SUBORDINATED DOLLAR FIXED RATE PIK NOTE
Percentage interest assumed %
Exhibit B-7
Outstanding principal amount of Subordinated
Dollar Fixed Rate PIK Note assumed $
Principal amount of Subordinated Dollar Fixed
Rate PIK Note payable to Assignee $
Exhibit B-8
EXHIBIT C
FORM OF ALLOCATION NOTICE
To the Holders party to the
Note Purchase Agreement referred to below
_________, 200_
RE: BANCO XX XXXXXXX Y BUENOS AIRES S.A.
NOTE PURCHASE AGREEMENT - ALLOCATIONS
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of April 27,
2004 (the "Note Purchase Agreement"), among Banco xx Xxxxxxx y Buenos Aires S.A.
(the "Issuer"), the holders party thereto from time to time (the "Holders"),
Barclays Bank PLC, as Documentation Agent, and Deutsche Bank Trust Company
Americas, as Agent (the "Agent"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Note
Purchase Agreement.
This Allocation Notice is delivered pursuant to Section 2.1(d) of the Note
Purchase Agreement. The principal amount of each Holder's Long-Term Dollar LIBOR
Notes, Long-Term Dollar Fixed Rate Notes, Medium-Term Dollar LIBOR Notes,
Medium-Term Dollar Fixed Rate Notes, Subordinated Dollar LIBOR Notes,
Subordinated Dollar Fixed Rate Notes, Preferred Shares (or Preferred Shares and
the cash equivalent, if any), BODEN Tender Offer Exchange Amounts and Cash
Tender Offer Payment Amounts are set forth in the table below.
Enclosed for your reference are the Exchange Agent's allocations of
Long-Term Dollar Notes, Medium-Term Dollar Notes, Subordinated Dollar Notes, the
Equity Participation Tender Offer, the BODEN Tender Offer and the Cash Tender
Offer and calculations of any proration factor, delivered to the Agent by the
Issuer pursuant to Section 2.1(c) of the Note Purchase Agreement.
Also enclosed is Schedule 5.1(b)(ii) (Effective Date Interest Amounts) to
the Note Purchase Agreement and the Issuer's calculations thereof, delivered to
the Agent by the Issuer pursuant to Section 2.1(c) of the Note Purchase
Agreement.
Sincerely,
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Agent
By:
Name:
Title:
Enclosures
Exhibit C-1
cc. [_______], Banco xx Xxxxxxx y Buenos Aires S.A. Xxxxxxxxx Xxxxxxxxx,
White & Case LLP
Exhibit C-2
NOTE PURCHASE AGREEMENT - ALLOCATIONS
Aggregate
Adjusted Principal
Amount of Medium-
Holder's Existing Long-Term Long-Term Medium-Term Term Dollar
Bank Debt Dollar LIBOR Dollar Fixed Dollar LIBOR Fixed Rate
Holder Exchanged Notes Rate Notes Notes Notes
------ --------- ----- ---------- ----- -----
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
US$ US$ US$ US$ US$
BODEN
Tender Cash Tender
Subordinated Subordinated Offer Offer
Dollar LIBOR Dollar Fixed Preferred Exchange Payment
Holder Notes Rate Notes Shares Amounts Amounts
------ ----- ---------- ------ ------- -------
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
US$ US$ US$ US$
Exhibit X-0
XXXXXXX X-0
XXXX XX XXXXXXXXX NOTES(1)
XXXXXX
US$ [______________]
Buenos Aires, [__] de [______] de 20[____]
Por igual valor recibido, pagaremos incondicionalmente a la vista a [NAME
OF LENDER], sin protesto, NO A LA ORDEN, la cantidad de Dolares Estadounidenses
[_____________] millones (US$[____________]).
En caso de falta de pago a la fecha de presentacion de este Xxxxxx, el
monto adeudado bajo el presente devengara un interes punitorio del [_]% ([__]
por ciento) anual hasta la fecha del efectivo pago. En caso xx xxxx, los
intereses punitorios se capitalizaran mensualmente y seran considerados a partir
de dicha capitalizacion como capital a todos los efectos que pudieran
corresponder.
Todos los pagos a efectuar en virtud de este xxxxxx xxxxx efectuados
indefectiblemente en Dolares Estadounidenses. Renunciamos en forma incondicional
e irrevocable a invocar la teoria de la imprevision y onerosidad sobreviniente
(Articulo 1198, parrafo segundo, del Codigo Civil de la Republica Argentina), u
otras defensas y/o derechos relativos a la imposibilidad de pago en Dolares
Estadounidenses (incluyendo caso fortuito y fuerza mayor).
Todos los montos adeudados en virtud del presente Xxxxxx xxxxx pagados
libres de, y sin deducciones por, impuestos, tasas, gastos, derechos, y/o
retenciones, presente o futuros, de cualquier naturaleza o tipo, xxxx estos de
jurisdiccion nacional o provincial de la Argentina, o impuestos cobrados por
cualquier autoridad impositiva de la Argentina. En caso de ser aplicable algun
impuesto, tasa, cargo, gasto, derecho y/o retencion de la indole mencionada,
este sera pagado exclusivamente por nosotros.
En nuestro caracter de suscriptores, hacemos constar expresamente que
ampliamos el plazo de presentacion para el pago de este xxxxxx hasta xxxx (10)
anos a contar desde la fecha.
Renunciamos expresamente e irrevocablemente a oponer la "excepcion de
arraigo" prevista en el articulo 348 del C.P.C.C.N.
Este xxxxxx estara sujeto a las leyes de la Republica Argentina, en
particular, al Decreto Ley N(0) 5965/63 y, en caso de ejecucion judicial, a los
tribunales Ordinarios en lo Comercial de la Ciudad de Buenos Aires. A los
efectos de la notificacion de cualquier accion o reclamo iniciado por el tenedor
contra el suscriptor con motivo de este Xxxxxx, xx validez, interpretacion,
cumplimiento y/o incumplimiento por cualquier persona y para cualesquiera otros
efectos derivados de este Xxxxxx, por el presente constituimos domicilio en la
calle [___________], Ciudad Autonoma de Buenos Aires. En el supuesto que este
xxxxxx o cualquiera de sus clausulas
----------
1 Separate Argentine Notes to be prepared for principal and interest,
pursuant to Section 2.14.
Exhibit D-1-1
no fueren considerados un xxxxxx bajo los terminos del Decreto Ley N(0) 5965/63
o aptas para ser contenidas en un xxxxxx, respectivamente, el xxxxxx o la
clausula en cuestion, segun corresponda, seran considerados como un
reconocimiento de deuda por nosotros con efectos de titulo ejecutivo que trae
aparejada su ejecucion en los terminos de los articulos 520 y 523 del Codigo
Procesal Civil y Comercial de la Nacion a cuyos efectos se procede a certificar
la firma del suscriptor con el fin de otorgarle fecha cierta al presente
instrumento.
Lugar de pago: [ADDRESS OF LENDER].
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
Por: _________________________________
Nombre:
Cargo:
Exhibit D-1-2
EXHIBIT D-2
FORM OF U.S. NOTES
US$[__________] Dated: _______________
New York, New York
FOR VALUE RECEIVED, the undersigned, BANCO XX XXXXXXX Y BUENOS AIRES S.A.,
a sociedad anonima organized under the laws of the Republic of Argentina (the
"Issuer"), HEREBY PROMISES TO PAY to the order of [NAME OF HOLDER] or its
registered assigns (the "Holder"), the principal amount of US$[_________]
pursuant to the terms of that certain the Note Purchase Agreement, dated as of
April 27, 2004, among the Issuer, Barclays Bank PLC, as documentation agent,
Deutsche Bank Trust Company Americas, as agent, and the noteholders party
thereto (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Agreement"). Terms defined in the Agreement, unless
otherwise defined herein, are being used herein as therein defined. In the event
of any conflict between the terms specified herein and in the Agreement, the
terms of the Agreement shall govern.
The Issuer promises to pay interest on the unpaid principal amount of the
Holder's [Long-Term Dollar LIBOR Note][Long-Term Dollar Fixed Rate
Note][Medium-Term Dollar LIBOR Note][Medium-Term Dollar Fixed Rate
Note][Subordinated Dollar LIBOR Note][Subordinated Dollar Fixed Rate
Note][Subordinated Dollar PIK LIBOR Note][Subordinated Dollar PIK Fixed Rate
Note] from the date of such [Long-Term Dollar LIBOR Note][Long-Term Dollar Fixed
Rate Note][Medium-Term Dollar LIBOR Note][Medium-Term Dollar Fixed Rate
Note][Subordinated Dollar LIBOR Note][Subordinated Dollar Fixed Rate
Note][Subordinated Dollar PIK LIBOR Note][Subordinated Dollar PIK Fixed Rate
Note] until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Deutsche Bank Trust Company Americas, as Agent, at the
Agent's Account in same day funds.
This U.S. Note is one of the U.S. Notes referred to in, and is entitled to
the benefits of, the Agreement. The Agreement, among other things contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
The Issuer waives diligence, presentment, protest, demand and notice of
every kind and, to the full extent permitted by law, the right to plead any
statute of limitations as a defense to any demand hereunder that is made in
accordance with the terms of the Agreement.
This U.S. Note shall be governed by, and construed in accordance with, the
law of the State of New York.
IN WITNESS WHEREOF, the Issuer has caused this U.S. Note to be duly
executed and delivered as of the date and year first above written.
Exhibit X-0-0
XXXXX XX XXXXXXX X XXXXXX XXXXX X.X.
By: ____________________________________
Name:
Title:
Exhibit D-2-2
EXHIBIT E
ELECTION BALLOT
Banco xx Xxxxxxx y Buenos Aires S.A. Barclays Bank PLC, as Docum entation Agent
Tte, Gral. X.X. Xxxxx 407 Piso 2 000 Xxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxx (1038) Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
x0(000) 000-0000 (Direct)
Ladies and Gentlemen: x0(000) 000-0000 (Switchboard)
x0(000) 000-0000 or 5661 (Fax)
xxxxx.xxxxx@xxxxxx.xxx
This Election Ballot is delivered by the undersigned lender in connection with
the bank debt restructuring of Banco xx Xxxxxxx y Buenos Aires S.A. (the
"Borrower") as outlined in the Summary of Terms and Conditions of Proposed
Restructuring Transactions, dated March 9, 2004 (the "Term Sheet"). As part of
its bank debt restructuring, the Borrower is offering to exchange the
outstanding principal amount of its existing bank debt listed below for the Par
Package, which at a lender's election may be exchanged for any one or more of
Cash Tender Offer, BODEN Tender Offer, Long Term Instrument Tender Offer, Equity
Participation Tender Offer and New Money Option, as set forth below. Capitalized
terms used here in that are not otherwise defined shall have the meaning
assigned to such terms in the Term Sheet.
I - Aggregate Principal Amount of lender's existing debt elected to be
exchanged for Par Package in the INITIAL EXCHANGE: US$___________*
Please indicate which loan facility the lender's existing debt is
issued under:
Assigned participation of IFC Loan Agreement ......................... US$_____________
Assigned participation of IIC Loan Agreement ......................... US$_____________
CCC Export Guarantee Program ......................................... US$_____________
Santander Central Hispano/MIGA facilities ............................ US$_____________
Bank of America lead Commercial Paper Program ........................ US$_____________
XX Xxxxxx lead commercial Paper Program .............................. US$_____________
Other: (Describe_____________________) ............................... US$_____________
* THE PRINCIPAL AMOUNT WILL BE INCREASED BY ACCRUED AND UNPAID INTEREST,
CALCULATED AT 4.75% PER ANNUM, FROM MAY 1, 2002 THROUGH DECEMBER 31, 2003. THE
DOCUMENTATION AGENT WILL ASSUME THAT SUCH ACCRUED AND UNPAID INTEREST WILL BE
TENDERED IN THE SAME PROPORTIONS AS THE PRINCIPAL AMOUNT OF OUTSTANDING DEBT.
II - If you are electing to participate in the SIMULTANEOUS EXCHANGE,
indicate aggregate principal amount of existing debt elected to be
exchanged for any one or more of the various options. The dollar
amounts should equal in the aggregate, the dollar amount tendered in
the initial Exchange and indicated in Section I above. If you are
electing to participate in the ALTERNATIVE SIMULTANEOUS EXCHANGE, fill
in the percentages of the various options that you wish to receive if
your choice(s) under the Simultaneous Exchange are oversubscribed. The
percentages you fill in should add up to 100%. PLEASE NOTE THAT ANY
AMOUNT NOT ACCEPTED FOR EXCHANGE INTO THE OPTION OF YOUR CHOICE BECAUSE
SUCH OPTION IS OR BECOMES OVERSUBSCRIBED WILL BE EXCHANGED FOR PAR
PACKAGE.
SIMULTANEOUS EXCHANGE ALTERNATIVE SIMULTANEOUS EXCHANGE
-------------------------------------------------------- --------------------------------------------------------------
AMOUNT ELECTED TO BE EXCHANGED FOR: AMOUNT ELECTED TO BE EXCHANGED FOR:
LONG
CASH BODEN TERM EQUITY NEW
TENDER TENDER INSTRUMENT PARTICIPATION MONEY
OFFER OFFER TENDER OFFER TENDER OFFER OPTION
CASH TENDER OFFER US$________________ X _______% _______% _______% _______%
BODEN TENDER OFFER US$________________ _______% X _______% _______% _______%
LONG TERM INSTRUMENT TENDER OFFER US$________________ _______% _______% X _______% _______%
EQUITY PARTICIPATION TENDER OFFER US$________________ _______% _______% _______% X _______%
NEW MONEY OPTION US$________________ _______% _______% _______% _______% X
III - Indicate type of instruments you would like to receive: [ ] BONDS UNDER AN INDENTURE [ ] NOTE UNDER A LOAN-STYLE AGREEMENT
If you elected to receive your New Instruments IN THE FORM OF BONDS
UNDER AN INDENTURE, complete the following for purposes of delivery of
the New Instruments:
Euroclear/Clearstream Account Number:_______________
Custodial Bank Name:________________________________ Custodial Bank Contact Person:__________
Custodial Bank Contact Telephone Number:____________ Email Address:__________________________
Exhibit E-1
If you elected to receive your New Instruments IN THE FORM OF NOTES UNDER
A LOAN-STYLE AGREEMENT, indicate the interest rate election for all of
your instruments to be received:
LONG TERM INSTRUMENT [ ] FLOATING RATE [ ] FIXED RATE
MEDIUM TERM INSTRUMENT [ ] FLOATING RATE [ ] FIXED RATE
SUBORDINATED INSTRUMENT [ ] FLOATING RATE [ ] FIXED RATE
IV - If you elected the NEW MONEY OPTION, indicate the type of trade
financing to provide:
[ ] LETTER OF CREDIT [ ] ADVANCES FOR TRADE LINES [ ] BOTH
V - If you elected to receive your New Instruments IN THE FORM OF BONDS
UNDER AN INDENTURE of if you elected to participate in the EQUITY
PARTICIPATION TENDER OFFER, you must certify whether you are:
[ ] a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act (a QIB);*
[ ] not in the United States (as contemplated in Rule 903(a)(1) of
Regulation S under the Securities Act) and are not a U.S. person
(as defined in Rule 902(o) of Regulation S under the
Securities Act) (each a "Regulation S investor"), or
[ ] a dealer or other professional fiduciary organized,
incorporated, or (if an individual) resident in the United
States holding a discretionary account or similar account (other
than an estate or trust) for the benefit or account of a
non-U.S. person (as contemplated by Rule 903(a)(1) or Regulation
S under the Securities Act) (each a "Regulation S investor").
*IF YOU ARE A QIB THAT ELECTED TO PARTICIPATE IN THE EQUITY
PARTICIPATION TENDER OFFER, YOU MUST EXECUTE AND DELIVER TO GRUPO
GALICICA IN INVESTOR LETTER WHICH MAY BE OBTAINED FROM THE
DOCUMENTATION AGENT, AND WHICH SETS FORTH CERTAIN ADDITIONAL
REPRESENTATIONS, RESTRICTIONS AND PROCEDURES REGARDING THE TRANSFER
OF ANY PREFERRED SHARES HELD BY YOU. YOU WILL RECEIVE "RESTRICTED"
PREFERRED SHARES, WHICH WILL BE DELIVERED IN DEFINITIVE FORM ONLY
IN THE NAME AND TO THE ADDRESS YOU INDICATE TO THE DOCUMENTATION
AGENT.
VI - If you elected to participate in the EQUITY PARTICIPATION TENDER OFFER,
you hereby acknowledge that the Borrower shall; (1) transfer Subordinated
Instruments that would otherwise be delivered to you as part of the Par
Package to the trust (the "Trust") established pursuant to a trust
agreement, to be entered into on or prior to the Expiration Date, between
First Trust of New York, N.A., Argentine Parmanent Representation acting
solely as trustee (the "Trustee"), and the Borrower, as settlor, in order
that the Trustee (1) subscribes the Preferred Shares pursuant to an
assignment agreement to be entered into on or prior to the Expiration
Date, among the Trustee, EBA Holding S. A. and other shareholders of Grupo
Galicia, and to a subscription agreement to be entered into on or prior to
the Expiration Date, between the Trustee and Grupo Galicia, and (2)
transfers the relevant Preferred Shares to you as beneficiary of the
Trust, and (ii) sell to Grupo Galicia the remaining Subordinated
Instruments that would be delivered to you as part of the Par Package, at
no more than US$ 0.73 per Subordinated Instrument, pursuant to the terms
of a purchase agreement, to be entered into on or prior to the Expiration
Date, between the Borrower and Grupo Galicia, and transfer such cash to
you in exchange for the Preferred Shares you would otherwise have
received.
VII - By submitting the Election Ballot, and subject to and effective upon
delivery by the Borrower of the New Instruments, cash, BODEN and Preferred
Shares, as the case may be, in the Bank Exchange in exchange for the
Restructured Debt tendered herewith, except as set forth in the loan
agreement or note purchase agreement relating to the New Instruments, you
hereby:
(i) irrevocably sell, assign and transfer to or upon the Borrower's
order or the order of its nominee, all right, title and interest in
and to, and any and all claims in respect of or arising or having
arisen as a result of your status as a holder of, all Restructured
Debt tendered hereby, such that hereafter you shall have no
contractual or other rights or claims in law or equity against the
Borrower or any fiduciary, trustee, agent or other person connected
with the Restructured Debt arising under, from or in connection with
such Restructured Debt;
(ii) waive any and all rights with respect to the Restructured Debt
tendered hereby (including, without limitation, any existing, past
or continuing defaults and their consequences in respect of such
Restructured Debt); and
(iii) release and discharge the Borrower, its affiliates and the agents
under any existing loan facility of the Borrower, and any agents of
the new loand facilities or note purchase facilities pursuant to
which the New Instruments will be delivered, from any and all claims
you may have, now or in the future, arising out of or related to the
Restructured Debt tendered hereby, including, without limitation,
any claims that you are entitled to receive any accrued interest or
any other payment with respect to the existing debt tendered hereby
or to participate in any redemption or defeasance of the
Restructured Debt tendered hereby.
VIII - Please indicate if you vote in favor of the APE: [ ] In favor of APE [ ] Not in favor of APE
If you vote in favor of the APE, please return to the Documentation Agent
the signature page to the APE with this Election Ballot.
_______________________________, 2004
The Documentation Agent will determine, in its sole discretion, all questions as
to the validity, form, eligibility (including the time of receipt), assignment
and acceptance of any Election Ballot and its determination shall be final and
binding on all parties. The Documentation Agent reserves the absolute right to
reject any and all tenders of Restructured Debt via Election Ballot determined
by it not to be in the proper form of the acceptance of or payment for which may
be unlawful. No tender of Restructured Debt will be deemed to have been validly
made until all defects and irregularities have been cured or waived. Unless
wanted, all defects or irregularities in connection with tenders must be cured
within such time as the Documentation Agent shall determine. Upon notice from
the Documentation Agent (which may be delivered by telephone, fax, letter or
email), the Participating Creditor shall have one business day to respond to
such notice. Silence may be interpreted by the Documentation Agent as a grant or
power to the Documentation Agent to, in its sole discretion, determine the
reasonable response to the notice. The Documentation Agent is not obligated to
give notice of defects or irregularities in tenders, nor shall the Documentation
Agent incur any liability for failure to give or for delay in giving any such
notice.
_____________________________________, as Lender
(Name of Lender)
By ____________________________________________________
Name:
Title:
By ____________________________________________________
Name:
Title:
Address: ______________________________________________
_______________________________________________________
_______________________________________________________
Telephone: ____________________________________________
-2-
Exhibit E-2
EXHIBIT F
FORM OF CLOSING CERTIFICATE
OFFICER'S CERTIFICATE
I, [_______________], the [________________] of Banco xx Xxxxxxx y
Buenos Aires S.A., a sociedad anonima organized under the laws of the Republic
of Argentina (the "Company"), do hereby certify on behalf of the Company that:
1. This Certificate is furnished pursuant to (i) the Amended and
Restated Long-Term Loan Agreement, dated as of April 27, 2004 between the
Company and the International Finance Corporation ("IFC") (the "IFC Long-Term
Loan Agreement"), (ii) the Amended and Restated Medium-Term Loan Agreement,
dated as of April 27, 2004 between the Company and IFC (the "IFC Medium-Term
Loan Agreement"), (iii) the Amended and Restated Subordinated Loan Agreement,
dated as of April 27, 2004 between the Company and IFC (the "IFC Subordinated
Loan Agreement"), (iv) the Amended and Restated Long-Term Loan Agreement, dated
as of April 27, 2004 between the Company and the Inter-American Investment
Corporation ("IIC") (the "IIC Long-Term Loan Agreement"), (v) the Amended and
Restated Medium-Term Loan Agreement, dated as of April 27, 2004 between the
Company and IIC (the "IIC Medium-Term Loan Agreement"), (vi) the Amended and
Restated Subordinated Loan Agreement, dated as of April 27, 2004 between the
Company and IIC (the "IIC Subordinated Loan Agreement"), (vii) the Note Purchase
Agreement, dated as of April 27, 2004 among the Company, Barclays Bank PLC, as
documentation agent ("NPA Documentation Agent"), Deutsche Bank Trust Company
Americas, as agent ("NPA Agent"), and the noteholders party thereto (the "Note
Purchase Agreement"), (viii) the Dollar Loan Agreement, dated as of April 27,
2004 between the Company and the Commodity Credit Corporation, as initial sole
lender and agent ("CCC") (the "CCC Loan Agreement"), and (ix) the Trade Credit
Agreement dated as of April 27, 2004, by and among the Company, Barclays Bank
PLC, as documentation agent ("TCA Documentation Agent"), Deutsche Bank Trust
Company Americas, as agent ("TCA Agent"), the issuing bank party thereto and the
lenders party thereto (the "Trade Credit Agreement", and collectively with the
IFC Long-Term Agreement, the IFC Medium-Term Agreement, the IFC Subordinated
Loan Agreement, the IIC Long-Term Agreement, the IIC Medium-Term Agreement, the
IIC Subordinated Loan Agreement, the Note Purchase Agreement and the CCC Loan
Agreement, the "Agreements"). Unless otherwise defined herein, capitalized terms
used in this Certificate shall have the respective meanings set forth in the
Agreements.
2. A true and complete copy of the Charter of the Company,
together with all amendments to date, certified by the Inspeccion General de
Justicia, is attached hereto as Exhibit A. The Charter is in full force and
effect on this date. No action has been taken by the board of directors of the
Company or, to my knowledge, the stockholders of the Company for the purpose of
effecting any further amendment to or modification of such Charter.
Exhibit F-1
3. True and correct copies of resolutions duly adopted by the
board of directors of the Company on [_______], 2004, at meetings at which a
quorum was present and acting throughout, are attached hereto as Exhibit B (the
"Resolutions"). Such Resolutions constitute the only actions taken by the
Company's board of directors or any committee thereof relating to the execution,
delivery or performance of the Agreements and any other Transaction Documents,
have not been amended, modified or rescinded and are in full force and effect on
the date hereof.
4. On or prior to the date hereof, the Company has obtained, and
provided to the IFC, IIC, the NPA Documentation Agent, the NPA Agent, CCC, the
TCA Documentation Agent and the TCA Agent copies of all Authorizations required
in connection with the execution, delivery and performance of each of the
Financing Agreements (with respect to each Agreement) (except Authorizations
from the Central Bank that may become necessary for the Company to make
prepayments in accordance with the provisions of the Agreements).
5. On the date hereof, the Company, and each of its Subsidiaries,
(i) are not engaged in, nor, to the best of their knowledge, after due inquiry
threatened by, any litigation, arbitration or administrative proceedings, the
outcome of which has had or could reasonably be expected to have a Material
Adverse Effect; (ii) have not requested a moratorium or suspension of payment of
debts from any court; (iii) have not instituted proceedings or taken any form of
corporate action to be liquidated, adjudicated bankrupt or insolvent; (iv) have
not consented to the institution of bankruptcy or insolvency proceedings against
it; (v) have not filed a petition or answer or consent seeking reorganization or
relief under any Applicable Law or consented to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of them or of any substantial part of their
respective property; and (vi) have not made a general assignment for the benefit
of their respective creditors.
6. On the date hereof, (i) there is not in effect any statute,
regulation, order, decree or judgment of any Authority that makes illegal or
enjoins or prevents the consummation of the transactions contemplated by the
Agreements or any other Transaction Document and (ii) no action or proceeding
has been commenced or, to the best knowledge of the Company, threatened, that
seeks to prevent or enjoin any transactions contemplated by the Agreements or
any other Transaction Document.
7. On the date hereof, the representations and warranties of the
Company set forth in the Agreements are true and correct with the same effect as
though such representations and warranties had been made on and as of the date
hereof.
8. On the date hereof, no Event of Default and no Potential Event
of Default has occurred and is continuing except for those that may occur if the
restructuring contemplated by the Agreements, or in any other Transaction
Document, does not become effective in accordance with the terms and conditions
set forth in the respective Transaction Documents.
9. On the date hereof, the exchange contemplated in the Bond
Exchange Offer has been completed.
Exhibit F-2
10. On the date hereof, the Company's assets and business
operations have been insured in accordance with the Agreements.
11. The Effective Date of each of the Agreements is the date
hereof.
Exhibit F-3
IN WITNESS WHEREOF, I have hereunto signed my name as of this ____
day of May, 2004.
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
By: _____________________________
Name: _____________________________
Title: _____________________________
I, _____________________________, do hereby certify that:
1. I am the duly elected, qualified and acting
_____________________________ of the Company.
2. _____________________________ is the duly elected, qualified
and acting _____________________________ of the Company, and the signature
appearing above is such person's true and genuine signature.
In Witness Whereof, I have hereunto signed my name as of this ___
day of May, 2004.
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
By: ____________________________
Name: ____________________________
Title: ____________________________
Exhibit F-4
EXHIBIT G
FORM OF CERTIFICATE OF INCUMBENCY AND AUTHORITY
Deutsche Bank Trust Company Americas
Attn.: Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Officers' Certificate
Dear Sirs,
With reference to the Note Purchase Agreement among us, Barclays
Bank PLC, as documentation agent ("Documentation Agent"), Deutsche Bank Trust
Company Americas, as agent ("Agent"), and the holders party thereto ("Holders"),
dated as of April 27, 2004 (the "Note Purchase Agreement"), I, the undersigned
[Chairman/Director/Senior Executive Vice President] of Banco xx Xxxxxxx y Buenos
Aires S.A. (the "Company"), duly authorized to do so, hereby certify that the
following are the names, offices and true specimen signatures of the persons
[each] [any two] of whom are, and will continue to be, authorized:
(a) to sign any certification provided for in the Note Purchase
Agreement and other agreement or document in connection therewith or in relation
thereto; and
(b) to take any other action required or permitted to be taken,
done, signed or executed under the Note Purchase Agreement or any other
agreement or document to which any of the Documentation Agent, the Agent and any
of the Holders and the Company may be parties.
*Name Office Specimen Signature
---- ------ ------------------
--------------------- -------------------- -----------------------
--------------------- -------------------- -----------------------
--------------------- -------------------- -----------------------
--------------------- -------------------- -----------------------
-------------------------
* Designations may be changed by the Issuer at any time by issuing a new
Certificate of Incumbency and Authority authorized by the Board of
Directors of the Issuer where applicable.
Exhibit G-1
You may assume that any such person continues to be so authorized
until you receive authorized written notice from the Company that they, or any
of them, is no longer so authorized.
Yours truly,
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
By ______________________________________________
[Chairman/Director/Senior Executive Vice
President]
Exhibit G-2
EXHIBIT H
FORM OF PROCESS AGENT LETTER
[CT Corp Letterhead]
April 27, 2004
Banco xx Xxxxxxx y Buenos Aires S.A.
Tte. Gral. Xxxx X. Xxxxx 407, 2 degrees Piso
(C1038AAI) Buenos Aires
Argentina
Re: BANCO XX XXXXXXX Y BUENOS AIRES S.A.
Gentlemen:
Reference is made to (a) the Note Purchase Agreement (the "Note
Purchase Agreement"), dated April 27, 2004 among Banco xx Xxxxxxx y Buenos Aires
S.A. (the "Issuer"), Barclays Bank PLC, as Documentation Agent and Deutsche Bank
Trust Company Americas, as Agent and (b) the Notes issued pursuant to the Note
Purchase Agreement (the "Notes") (collectively, the "Financing Agreements").
Pursuant to Section 9.10 of the Agreement, "the Issuer hereby
irrevocably appoints CT Corporation System (the "Process Agent") with an office
on the date hereof at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx
Xxxxxx, as its agent to receive on behalf of the Issuer and its property service
of copies of the summons and complaint and any other process which may be served
in any such action or proceeding arising out of or relating to this Agreement or
any other Financing Agreement governed by New York law. Such service may be made
by mailing or delivering a copy of such process to the Issuer in care of the
Process Agent at the Process Agent's above address, and the Issuer hereby
irrevocably authorizes and directs the Process Agent to accept such service on
its behalf."
The Process Agent hereby accepts such irrevocable appointment as
agent and agrees that it (i) shall maintain an office in the City of New York
and shall inform the Issuer promptly in writing of any change of its address in
the City of New York (such address presently being 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 10011), (ii) shall perform its obligations as agent in accordance with
the applicable provisions of the Note Purchase Agreement, (iii) shall forward
promptly, by courier, to the Issuer, at its address set forth in the attachment
hereto, a copy of any legal process, summons, notice or document received by the
Process Agent in its capacity as agent of the Issuer, and (iv) shall not
terminate its agency under the Note Purchase Agreement until January 1, 2020, or
if all of the obligations of the Issuer under the Note Purchase Agreement have
been satisfied prior to January 1, 2020, one calendar year after such
obligations have been satisfied.
By its acceptance hereof, the Process Agent and its successors agree
to discharge the above-mentioned obligations and will not refuse fulfillment of
such obligations under the Note Purchase Agreement and under this letter
agreement.
CT CORPORATION SYSTEM
By:_________________________________
Name:
Title:
Exhibit H-1
SCHEDULE TO GALICIA PROCESS AGENT LETTER
Address for notices:
BANCO XX XXXXXXX Y BUENOS AIRES S.A.
Tte. General Xxxx X. Xxxxx 407, 2 degrees Piso
(C1038AAI) Buenos Aires
Republic of Argentina
Facsimile: (x00 00) 0000-0000
Attention: Xxxxxx Xxxxx
with a copy to:
WHITE & CASE LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (x0 000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxxx
Exhibit H-2
EXHIBIT I
FORM OF AUDITOR AUTHORIZATION
[BANCO DE GALICIA'S LETTERHEAD]
[NAME OF AUDITING COMPANY]
[ADDRESS]
Dear [SHORT NAME OF AUDITING COMPANY],
Relating to [SHORT NAME OF AUDITING COMPANY]'s auditing of Banco xx Xxxxxxx y
Buenos Aires S.A. ("Client"), the Client authorizes [SHORT NAME OF AUDITING
COMPANY] ("Auditors"), to meet and communicate directly upon the written request
of any representative of the International Finance Corporation, the
Inter-American Investment Corporation, the Commodity Credit Corporation, the
Agent under the Trade Credit Agreement, dated April 27, 2004 or the Agent under
the Note Purchase Agreement, dated April 27, 2004 ("Recipients"), regarding the
Client's accounts, operations, affairs and finances; provided, however, that we
are given prior written notice of, and are entitled to participate in, any
meetings or oral communication between the Auditors, on the one hand, and any
officer or representative of the Recipients on the other. The Client
acknowledges and agrees that it acquires no new rights against the Auditors as a
result of the Recipients' review.
Regarding the Auditors' cooperation, neither the Auditors, its affiliated firms
nor any of the Auditors' nor such affiliated firms' respective directors,
officers, managers, partners, participating principals, national directors,
employees, representatives or similar persons will have any liability of any
kind, and shall have no liability for any consequential, special, incidental or
exemplary damages; the foregoing shall apply regardless of the theory of relief
asserted (including negligence of the Auditors or others) and even if the
Auditors is advised of the possibility of such damage or loss.
Client also acknowledges that it (and not the Auditors) is solely responsible
for determining the applicability of any tax advisor privilege, attorney-client
privilege or other privilege or similar rule (e.g., the work product rules) to
the above-mentioned information and for otherwise managing the establishment and
maintenance of any such privilege or protection and for considering possible
waiver thereof (and for involving legal counsel as necessary). The Client
further acknowledges that the Auditors reserves the right to withhold from
disclosure any information that the Auditors in its discretion determines is
proprietary or confidential to the Auditors.
Very truly yours,
Banco xx Xxxxxxx y Buenos Aires S.A. "Client"
By: ____________________________________________________
(Authorized Officer)
________________________________________________________
Title Date
Exhibit I-1
Acknowledged and Agreed:
[NAME OF AUDITING COMPANY]
By: __________________________
Name:
Title:
Exhibit I-2
