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EXHIBIT T3C
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CENTRAL TERMICA GUEMES S.A.,
THE BANK OF NEW YORK,
Trustee, Co-Registrar and
Principal Paying Agent,
BANCO RIO DE LA PLATA S.A.,
as Registrar [and Paying Agent] and
[KREDIETBANK S.A. LUXEMBOURGEOISE],
Luxembourg [Co-Registrar] and Paying Agent
____________________________
INDENTURE
Dated as of September 19, 2000
____________________________
US$54,000,000
Variable Rate Notes due 2010
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TABLE OF CONTENTS
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RECITALS
Parties 1
Recitals of the Company 1
Recitals of the Trustee 1
Article 1. DEFINITIONS 2
Section 1.1. Definitions 2
Article 2. NOTE FORMS 10
Section 2.1. Forms Generally 10
Section 2.2. Form of Face of Note 10
Section 2.3. Form of Reverse of Note 12
Section 2.4. Form of Trustee's Certificate of Authentication 17
Article 3. THE NOTES 17
Section 3.1. Title and Terms 17
Section 3.2. Authentication, Delivery and Date of Notes 20
Section 3.3. Execution of Notes 20
Section 3.4. Certificate of Authentication 20
Section 3.5. Denomination and Registration; Book Entry System; Certificated Notes 21
Section 3.6. Payment of Interest; Interest Rights Preserved 21
Section 3.7. Computation of Interest 22
Section 3.8. Registration of Transfer and Exchange 22
Section 3.9. Restrictive Legends 23
Section 3.10. Transfer Restrictions 24
Section 3.11. Mutilated, Defaced, Destroyed, Lost and Stolen Notes 24
Section 3.12. Cancellation of Notes; Destruction Thereof 25
Section 3.13. Persons Deemed Owners 25
Section 3.14. CUSIP, CINS and INIS Numbers 25
Article 4. COVENANTS 26
Section 4.1. Payment of Principal and Interest 26
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Section 4.2. Maintenance of Office or Agency 26
Section 4.3 Maintenance of Existence 26
Section 4.4. Maintenance of Properties 26
Section 4.5. Payment of Taxes and Other Claims 27
Section 4.6. Compliance with Laws and Other Agreements 27
Section 4.7. Maintenance of Books and Records 27
Section 4.8. Maintenance of Insurance 27
Section 4.9. Permitted Liens 27
Section 4.10. Permitted Indebtedness 27
Section 4.11. Financial Reporting 27
Section 4.12. Mergers, Consolidations, Sales and Leases 28
Section 4.13. Further Assurances 28
Article 5. HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE 29
Section 5.1. Company to Furnish Trustee Information as to Names and Addresses of Holders 29
Section 5.2. Preservation of Information; Communications to Holders 29
Section 5.3. Reports by the Company 29
Article 6. REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT 29
Section 6.1. Event of Default Defined; Acceleration of Maturity 29
Section 6.2. Acceleration of Maturity; Rescission and Annulment 31
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee 31
Section 6.4. Application of Moneys Collected 33
Section 6.5. Restoration of Rights on Abandonment of Proceedings 34
Section 6.6. Limitations on Suits by Holders 34
Section 6.7. Unconditional Right of Holders to Receive Principal, Additional Amounts and Interest 34
Section 6.8. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default 35
Section 6.9. Control by Holders 35
Section 6.10. Waiver of Past Defaults 35
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Section 6.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances 36
Section 6.12. Undertaking for Costs 36
Section 6.13. Currency Indemnity 37
Article 7. CONCERNING THE TRUSTEE 37
Section 7.1. Duties and Responsibilities of the Trustee; During Default; Prior to Default 37
Section 7.2. Certain Rights of the Trustee 38
Section 7.3. Trustee Not Responsible for Recitals, Disposition of Notes or Application 39
of Proceeds Thereof
Section 7.4. May Hold Notes; Collections, etc 40
Section 7.5. Moneys Held by Trustee 40
Section 7.6. Compensation and Indemnification of Trustee and Its Prior Claim 40
Section 7.7. Right of Trustee to Rely on Officers' Certificate, etc 40
Section 7.8. Qualification of Trustee; Conflicting Interests 41
Section 7.9. Corporate Trustee Required; Eligibility 41
Section 7.10. Resignation and Removal; Appointment of Successor Trustee 41
Section 7.11. Acceptance of Appointment by Successor Trustee 42
Section 7.12. Merger, Conversion, Consolidation or Succession to Business of Trustee 43
Section 7.13. Preferential Collection of Claims Against Company 44
Section 7.14. Appointment of Authenticating Agent 44
Article 8. CONCERNING THE HOLDERS 45
Section 8.1. Evidence of Acts of Holders 45
Section 8.2. Proof of Execution of Instruments and of Holding of Notes 45
Section 8.3. Holders to Be Treated as Owners 46
Section 8.4. Notes Owned by Company Deemed Not Outstanding 46
Article 9. SUPPLEMENTAL INDENTURES AND MEETINGS OF HOLDERS 47
Section 9.1. Supplemental Indentures Without Vote of Holders 47
Section 9.2. Supplemental Indentures with Vote of Holders 47
Section 9.3. Execution of Supplemental Indentures 48
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Section 9.4. Effect of Supplemental Indentures 48
Section 9.5. Reference in Notes to Supplemental Indentures 48
Section 9.6. Meetings of Holders; Modification and Waiver 48
Article 10. CONSOLIDATION, MERGER, SALE OR CONVEYANCE 50
Section 10.1. Successor Substituted 50
Article 11. SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS 50
Section 11.1. Satisfaction and Discharge of Indenture 50
Section 11.2. Application of Trust Money 51
Section 11.3. Repayment of Moneys Held by Paying Agent 51
Section 11.4. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Three Years 51
Article 12. MISCELLANEOUS PROVISIONS 52
Section 12.1. Incorporators, Shareholders, Officers and Directors of Company Exempt from Individual
Liability 52
Section 12.2. Provisions of Indenture for the Sole Benefit of Parties and Holders 52
Section 12.3. Successors and Assigns of Company Bound by Indenture 52
Section 12.4. Notices, etc., to Trustee, Co-Registrar, Paying Agents, Registrar, Luxembourg 52
Co-Registrar, Company and Holders; Waiver
Section 12.5. Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein 53
Section 12.6. Payments Due on Saturdays, Sundays and Holidays 54
Section 12.7. Conflict with Trust Indenture Act 54
Section 12.8. Governing Law 54
Section 12.9. Consent to Jurisdiction and Service of Process 55
Section 12.10. Counterparts 55
Section 12.11. Effect of Headings 56
Section 12.12 Severability 56
Article 13. REDEMPTION OF NOTES 56
Section 13.1. Tax Redemption 56
Section 13.2. Optional Redemption 57
Section 13.3. Deposit of Redemption Price 58
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Section 13.4. Notes Payable on Redemption Date 58
SIGNATURES 59
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INDENTURE dated as of September 19, 2000 (this "Indenture") among
CENTRAL TERMICA GUEMES S.A., a corporation (sociedad anonima) organized under
the laws of the Republic of Argentina (the "Company"), THE BANK OF NEW YORK, a
New York banking corporation, as Trustee (the "Trustee"), Co-Registrar ("Co-
Registrar") and Principal Paying Agent (the "Principal Paying Agent"), BANCO RIO
DE LA PLATA S.A., a corporation duly organized and existing under the laws of
the Republic of Argentina, as Registrar (the "Registrar") and [Paying Agent] and
[KREDIETBANK S.A. LUXEMBOURGEOISE], a corporation duly organized and existing
under the laws of Luxembourg, as Luxembourg Co-Registrar (the "Luxembourg Co-
Registrar") and Paying Agent (each of BANCO RIO DE LA PLATA S.A., and
[Kredietbank S.A. Luxembourgeoise], in its capacity as Paying Agent,
individually a "Paying Agent" and collectively the "Paying Agents").
RECITALS OF THE COMPANY:
WHEREAS, the Company has duly authorized the creation and offering of
an issue of its Variable Rate Notes due 2010 in the aggregate principal amount
of US$54,000,000 (the "Notes") of substantially the tenor and amount hereinafter
set forth, and to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture;
WHEREAS, in connection with the Company's court-supervised
reorganization (concurso preventivo) under Argentine law, in the commercial
court of Salta, Argentina (the "Court"), the Company will issue and deliver the
Notes to restructure its debt in accordance with the Company's plan of financial
restructuring supervised by the Court and the provisions of the Argentine
Negotiable Obligations Law (as defined below) in exchange, in part, for the
Company's outstanding 12% Notes due 2001 in an aggregate principal amount of
US$60,000,000 (the "Old Notes"); and
WHEREAS, pursuant to such plan of financial restructuring, the
Company's obligations and liabilities in respect of the Old Notes will expire as
of the date of the issuance of the Notes and the Company shall have no further
liability in respect thereof to any holder of the Old Notes or such holder's
transferees, successors or assigns; and
WHEREAS, all necessary actions to ensure that the Notes, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, have been taken to make this Indenture a valid Indenture and agreement
according to its terms;
RECITALS OF THE TRUSTEE:
WHEREAS, the Trustee has agreed to act as trustee under this Indenture
on the following terms and conditions set forth herein;
WHEREAS, the Trustee has reviewed a certified English translation of
the resolutions of the holders of the Company's Old Notes adopted on August 9,
2000 and of the resolutions of the Board of Directors of the Company adopted on
June 23, 2000 authorizing the issuance of the Notes and hereby confirms that the
that the terms and conditions
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of such Notes accurately reflect the terms of said resolutions; and
WHEREAS, the Trustee has agreed to act as trustee under this Indenture
on the terms and conditions set forth herein;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders from time to time of the Notes as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. For all purposes of this Indenture, except
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as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(1) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with Argentine GAAP (whether or not
such is indicated herein), and, except as otherwise herein expressly
provided, the term Argentine GAAP with respect to any computation required
or permitted hereunder shall mean Argentine GAAP at the date of such
computation; and
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning set forth in Section 8.1.
---
"Additional Amounts" means additional amounts as may be necessary in
------------------
order that the net amounts receivable by each Holder after any withholding or
deduction in respect of such Taxes shall equal the respective amounts of
principal and interest, which would have been receivable in respect of the Notes
in the absence of such withholding or deduction.
"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person.
"Applicable Procedures" has the meaning set forth in Section 3.10
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hereof.
"Argentina" means the Republic of Argentina.
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"Argentine Companies Law" means collectively Argentine Law No. ____,
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as amended from time to time.
"Argentine GAAP" means generally accepted accounting principles as
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applied in Argentina.
"Argentine Government" means the Government of Argentina.
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"Argentine Negotiable Obligations Law" means collectively Argentine
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Law No. 23,576, as amended by Argentine Laws No. 23,962 and 24,435, and as
further amended from
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time to time.
"Authenticating Agent" means any Person authorized by the Trustee to
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act on behalf of the Trustee to authenticate Notes.
"Authorized Officers" means a member of the Supervisory Committee of
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the Company and a Director of the Company or other duly authorized and empowered
officer of the Company.
"Board of Directors" means the board of directors of the Company.
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"Board Resolution" means a copy of a resolution of the Board of
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Directors certified by a notary public to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Bonex" means External Bonds (Bonos Externos) of Argentina of any
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series.
"Business Day" means, with respect to each place of payment, a day on
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which banks are open for business and carrying out transactions in Dollars in
The City of New York, The City of Buenos Aires or the city of the Paying Agent
effecting the payment.
"CEDEL" means Cedel societe anonyme or any successor securities
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clearing agency.
"Certificated Note" means any Note in fully registered definitive
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form.
"CNV" means the Argentine National Securities Commission (Comisin
---
Nacional de Valores).
"Company" means the Person named as the "Company" in the first
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paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter,
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
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signed in the name of the Company by its President, Vice President, Secretary or
Chief Executive Officer, or other duly authorized and empowered officer of the
Company, and delivered to the Trustee.
"Company's successor Corporation" means any corporation formed by any
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merger or consolidation described in Section 10.1 hereof with the Company or the
Person which acquires by conveyance or transfer, or which leases, the Properties
of the Company substantially as an entirety.
"Co-Registrar" means The Bank of New York.
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"Corporate Trust Office" means the office of the Trustee at which the
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corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Indenture is located at 101 Barclay Street, Floor 21W, New York, New York 10286.
"corporation" means a sociedad anonima, corporation, association,
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company or business trust.
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"Court" shall have the meaning ascribed to it in the recitals of this
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Indenture.
"Default" means any event which is, or after notice or lapse of time
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or both would become, an Event of Default.
"Depository" means, when used with respect to the Notes issuable or
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issued in whole or in part in the form of one or more Global Securities, the
Person designated as depository by the Company pursuant to Section 3.5 hereof
which must be a clearing agency registered under the Exchange Act.
"Dollars" and the symbol "US$" each mean dollars of the United States
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of America.
"DTC" means The Depository Trust Company.
---
"DTC Restricted Global Security" means a global security representing
------------------------------
Notes which are sold in reliance upon Rule 144A under the Securities Act.
"DTC Unrestricted Global Security" means a global security
--------------------------------
representing Notes which are sold in transactions outside the United States in
reliance upon Regulation S under the Securities Act.
"Euroclear" means the Euroclear System.
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"Event of Default" means any of the events specified in Section 6.1
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hereof which shall have occurred and be continuing.
"Exchange Act" refers to the United States Securities Exchange Act of
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1934, as from time to time amended, and any successor act thereto.
"Global Securities" means the DTC Restricted Global Securities and the
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DTC Unrestricted Global Securities.
"Governmental Agency" means any public legal entity or public agency
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of Argentina or the United States, whether, created by federal, state or local
government, or any other legal entity now existing or hereafter created, or now
or hereafter owned or controlled, directly or indirectly, by any public legal
entity or public agency of Argentina or the United States.
"Holder", "holder of Notes" or other similar terms means a Person in
------ ---------------
whose name a Note is registered in the Register.
"Indebtedness" means any obligation (whether present or future, actual
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or contingent) for the payment or repayment of money which has been borrowed.
"Indenture" meant this instrument as originally executed (including
---------
all exhibits and schedules hereto) or as it may from time to time be
supplemented or amended by one or
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more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
---------------------
interest on the Notes.
"Lien" means mortgage, charge, pledge, lien or other form of
----
encumbrance or security interest.
"Luxembourg Co-Registrar" means [Kredietbank S.A. Luxembourgeoise].
-----------------------
"Maturity", when used with respect to any Note, means the date on
--------
which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Note" and "Notes" have the meaning set forth in the first recital of
---- -----
this Indenture, or, as the case may be, Notes that have been authenticated and
delivered under this Indenture.
"Officers' Certificate" means a certificate signed by the President or
---------------------
a Vice President and by the Controller or the Secretary of the Company and
delivered to the Trustee.
"Old Notes" have the meaning set forth in the recitals of this
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Indenture.
"Opinion of Counsel" means a written opinion of counsel, who may be
------------------
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of the date
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of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
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(1) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Notes, or portions thereof, for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the holders of such Notes; provided that, if such Notes
are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(3) Notes which have been paid pursuant to Section 3.9 hereof or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
provided that in determining whether the holders of the requisite principal
amount of the
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Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Notes owned by the Company or any other
obligor upon the Notes or any Subsidiary or Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Notes which the Trustee actually knows to be so owned shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is not
the Company or any other obligor upon the Notes or any Subsidiary or Affiliate
of the Company or of such other obligor.
"Participants" means institutions that have accounts with the
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Depository or its nominee.
"Paying Agent" means each Person named as Paying Agent in the first
------------
paragraph of this Indenture, any successor thereof, and any Person authorized by
the Company to pay the principal of or interest on any Notes on behalf of the
Company, including the Principal Paying Agent.
"Permitted Indebtedness" means:
----------------------
(1) Indebtedness evidenced by the Notes; and
(2) Indebtedness outstanding from time to time under
(a) a credit facility or facilities, or
(b) an issue or issues of commercial paper or other short-
term securities with a maturity of less than 365 days,
in an aggregate principal amount not exceeding US$15,000,000 or its
equivalent (as reasonably determined by the Company);
(3) Indebtedness incurred by any joint venture in which the Company
has an interest and which Indebtedness is fully non-recourse to the
Company;
(4) Indebtedness secured by any asset acquired by the Company and
existing on the date of such acquisition; and
(5) Indebtedness incurred or assumed solely for the purpose of
financing all or any part of the cost of acquiring an asset and secured
solely by such asset.
"Permitted Lien" means:
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(1) any Lien created on any asset securing Indebtedness incurred or
assumed solely for the purpose of financing all or any part of the cost of
acquiring such asset, which Lien attaches to such asset concurrently with
or within 90 days after the
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acquisition thereof;
(2) any Lien created on any assets securing Indebtedness incurred in
relation to the construction, improvement or development, in whole or in
part, of (a) assets used in generation and/or transmission and/or
distribution and/or sale of electrical energy and (b) electricity
generating plants and/or electricity distribution facilities and/or
electricity transmission facilities, where in any case such Lien is in
respect of such assets or electricity generating plant, electricity
distribution facility or electricity transmission facility, as the case may
be, constructed, improved or developed;
(3) any Lien on any asset existing at the date of acquisition of such
asset and not created in contemplation of such acquisition;
(4) any Lien securing an extension, renewal or refinancing of
Indebtedness secured in accordance with any of paragraphs (1) to (3) above,
provided that (a) the Lien is created with respect to the asset which
secured the Indebtedness being so extended, renewed or refinanced, and (b)
the principal amount of Indebtedness secured by the Lien prior to such
extension, renewal or refinancing is not increased;
(5) any Lien arising by operation of law; and
(6) any Lien arising in the ordinary course of business of the
Company or its Subsidiaries.
"Person" means any individual, corporation, partnership, joint
------
venture, association, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Predecessor Note" of any particular Note means every previous Note
----------------
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.9 hereof in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Note.
"Principal Paying Agent" means the Person named as the "Principal
----------------------
Paying Agent" in the first paragraph of this Indenture, and any successor
Principal Paying Agent.
"Property" means any asset, revenue or other property, whether
--------
tangible or intangible, real or personal, including without limitation any right
to receive income.
"Redeemable Stock" means any class or series of capital stock that by
----------------
its terms or otherwise is required to be redeemed prior to the Stated Maturity
of the Notes, or is redeemable at the option of the holder thereof at any time
prior to the Stated Maturity of the Notes.
"Redemption Date", when used with respect to any Note to be redeemed,
---------------
means
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the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be redeemed,
----------------
means the price at which it is to be redeemed pursuant to this Indenture.
"Register" means the books for the exchange, registration and
--------
registration of transfer of Notes.
"Registrar" means Banco Rio de la Plata S.A., until a successor
---------
Registrar shall have become such pursuant to the applicable provisions of this
Indenture, and, thereafter "Registrar" shall mean such successor Registrar.
"Regular Record Date" for the interest payable on any Interest Payment
-------------------
Date means the March 4 or September 4 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means
-------------------
any vice president, any assistant secretary, any assistant treasurer, and any
trust officer or assistant, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Period" has the meaning set forth in Section 3.10 hereof.
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"SEC" means the United States Securities and Exchange Commission, as
---
from time to time constituted, or, if at any time after the execution of this
instrument the SEC is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Securities Act" refers to the United States Securities Act of 1933,
--------------
as from time to time amended, and any successor act thereto.
"Significant Subsidiary" means a Subsidiary of the Company which is
----------------------
material to the condition, financial or otherwise, or to the earnings,
operations, business affairs or business prospects of the Company and its
Subsidiaries taken as a whole.
"Special Record Date" means a date fixed by the Trustee for the
-------------------
payment of Defaulted Interest.
"Stated Maturity", when used with respect to any Note or any
---------------
installment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
"Subsidiary" means any corporation or other business entity of which
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the Company owns or controls (either directly or through another or other
Subsidiaries) more than 50% of the issued share capital or other ownership
interest, in each case having ordinary voting
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power to elect directors, managers or trustees of such corporation or other
business entity (whether or not capital stock or other ownership interest or any
other class or classes shall or might have voting power upon the occurrence of
any contingency).
"Supervisory Committee" means the committee of statutory auditors
---------------------
appointed by the shareholders of the Company.
"Taxes" means any present or future taxes, duties, levies, or other
-----
governmental charges of whatever nature.
"Transfer Agent" means any Person authorized by the Company to
--------------
effectuate the exchange or transfer of any Note on behalf of the Company
hereunder.
"Trustee" means the Person named as the "Trustee" in the first
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paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the United States Trust Indenture Act of
-------------------
1939, as from time to time amended, and any successor act thereto.
"U.S. GAAP" means generally accepted accounting principles as applied
---------
in the United States.
"U.S. Government Obligations" means securities that are (x) direct
---------------------------
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the United States Securities Act of 1933, as amended) as custodian with respect
to any such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
"Vice President", when used with respect to the Company or the
--------------
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock", when used with reference to a Subsidiary, means 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 corporation; provided that, for the purposes hereof, stock which carries
only the right to vote conditionally on the happening of
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an event shall not be considered Voting Stock whether or not such event shall
have happened.
ARTICLE 2.
NOTE FORMS
Section 2.1. Forms Generally. The Notes and the Trustee's
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certificates of authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes.
The definitive Notes shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules under any applicable
securities laws or of any securities exchange on which the Notes may be listed
and subject to the prior approval of the CNV where applicable, all as determined
by a duly authorized officer of the Company executing such Notes, as evidenced
by his or her execution of such Notes.
Section 2.2. Form of Face of Note.
--------------------
[THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED
STATES. THE OFFER, SALE, PLEDGE OR TRANSFER OF THIS NOTE MAY BE SUBJECT TO
CERTAIN CONDITIONS AND RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR
OTHERWISE ACQUIRING THIS NOTE, ACKNOWLEDGES THAT THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT AND AGREES FOR THE BENEFIT OF THE ISSUER
THAT THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OF THE STATES,
TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE OFFER AND SALE OF
NOTES.]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO ANOTHER NOMINEE OF DTC OR TO A SUCCESSOR OF DTC OR A NOMINEE OF
SUCH SUCCESSOR.*
-
* This legend shall be borne by the Global Security.
-
CENTRAL TERMICA GUEMES S.A.
16
<PAGE>
VARIABLE RATE NOTE DUE 2010
No. R-1 US$__________
------
CUSIP/CINS/ISIN** No.
--
** Notes represented by the Global Security shall bear a CINS or CUSIP number
--
and an ISIN number.
_____________
Central Termica Guemes S.A., a corporation (sociedad anonima)
organized under the laws of the Republic of Argentina, for value received,
hereby promises to pay to __________, or registered assigns, the principal sum
of _______ Dollars on September 19, 2010 (or on such earlier date as the
principal sum may become repayable in accordance with the terms and conditions
set forth in the Indenture), and to pay interest thereon from September 19, 2000
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, payable semiannually in arrears on March 19 and September 19
of each year, commencing March 19, 2001 at the rate of 2.0% per annum to and
including the first anniversary of this Note, 2.5% per annum thereafter to and
an including the second anniversary of this Note, 3.0% per annum thereafter to
and including the third anniversary of this Note, and 5.0% per annum thereafter,
until the principal hereof is paid or duly provided for, all subject to and in
accordance with, the terms and conditions of the Indenture (as defined below).
The interest so payable and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on March 4 or September 4 (whether or not a Business Day), as
the case may be, immediately preceding such Interest Payment Date. Capitalized
terms not defined in this Note shall have the meanings assigned thereto in the
Indenture.
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date, and
such defaulted interest, and (to the extent lawful) interest on such defaulted
interest at the rate borne by this Note, may be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Notes not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
The principal of this Note shall be payable at the Corporate Trust
office of The Bank of New York in The City of New York and at the office of
Banco Rio de la Plata S.A., Buenos Aires, Argentina, and, subject to any fiscal
or other laws and regulations applicable thereto, at the specified offices of
any other Paying Agents appointed by the Company. Payments of principal of this
Note shall be made against surrender of this Note. Payments in respect of
interest on each Interest Payment Date with respect to this Note will be made to
the Person in whose name such Note is registered on the Regular Record Date
immediately preceding such Interest Payment Date by Dollar check drawn on a bank
in The City of New York or, in case of the holder of at least US$1,000,000
principal amount of Notes, by wire transfer to a Dollar account maintained by
the payee with a bank in the United States or in Argentina, provided that the
registered holder so elects by giving written notice to such effect designating
such account, which is received by the Trustee or a Paying Agent no later than
the March 4 or September 4, as the case may be, immediately preceding such
Interest Payment Date. Unless such designation is revoked, any such designation
made by the Holder with respect to this Note shall remain in effect with respect
to any future payments with respect to this Note payable
17
<PAGE>
to such Holder. The Company shall pay any administrative costs imposed by banks
in connection with making payments by wire transfer.
Interest on this Note shall be computed on the basis of a 360-day year
consisting of 12 months of 30 days and, in the case of an incomplete month, the
number of days actually elapsed.
All payments of principal and interest hereunder shall be made
exclusively in Dollars or in such coin or currency of the United States as at
the time of payment shall be legal tender for the payment of public and private
debts.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CENTRAL TERMICA GUEMES S.A.
By______________________________________
Name:
Title:
Section 2.3. Form of Reverse of Note. This Note is a negotiable
-----------------------
obligation under the Argentine Negotiable Obligations Law and is one of a duly
authorized issue of Notes of the Company designated as its Variable Rate Notes
due 2010, limited in aggregate principal amount to US$54,000,000, issued and to
be issued under the Indenture dated as of September 19, 2000 (herein called the
"Indenture") among the Company, The Bank of New York, as Trustee, Co-Registrar
and Principal Paying Agent, and Banco Rio de la Plata S.A., as Registrar and
Paying Agent, and [Kredietbank S.A. Luxembourgeoise], as Luxembourg Co-Registrar
and Paying Agent, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. All terms used in this Note which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
The Notes constitute the direct, unsecured and unsubordinated
obligations of the Company and will rank pari passu without any preference among
themselves. The payment obligations of the Company under the Notes will at all
times rank at least equally in priority of payment with all other present and
future unsecured and unsubordinated obligations of the Company from time to time
outstanding.
Form, Denomination and Registration
-----------------------------------
The Notes shall be issued only in registered form without coupons and
in denominations of US$1,000 or integral multiples thereof. No service charge
will be made for
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<PAGE>
any registration of transfer or exchange of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Global Securities
-----------------
The Notes will be represented by one or more global securities
(individually, a "Global Security"), except for Certificated Notes that may be
issued under circumstances described in the Indenture. Each Global Security will
be deposited with, or on behalf of, The Depository Trust Company, as depository
("DTC"or the "Depository") and will be registered in the name of the nominee of
the Depository.
Principal and interest payments on each Global Security will be made
to the Depository or its nominee, as the case may be, as the registered owner of
such Global Security. None of the Company, any Paying Agent or the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global
Security, or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Except as set forth below, a Global Security may not be transferred
except as a whole by the Depository to another nominee of the Depository or to a
successor of the Depository, or a nominee of such successor.
Certificated Notes; Transfer and Exchange
-----------------------------------------
Owners of beneficial interests in Global Securities will be entitled
or required, as the case may be, under the circumstances described below, to
receive physical delivery of Certificated Notes. The Notes are not issuable in
bearer form.
Beneficial interests in a Global Security will be exchangeable or
transferable, as the case may be, for Certificated Notes if (1) the Depository
notifies the Company that it is unwilling or unable to continue as depository
for such Global Security, or the Depository ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depository is not appointed
by the Company within 90 days, or (2) an Event of Default has occurred and is
continuing with respect to such Notes. Upon the occurrence of either of the
events described in the preceding sentence, the Company will cause the
appropriate Certificated Notes to be delivered to the owners of beneficial
interests in a Global Security. Certificated Notes will be exchangeable or
transferable in whole or in part for interests in other Certificated Notes.
Subject to certain restrictions set forth in the Indenture, a
Certificated Note may be exchanged or transferred in whole by the Holder or
Holders surrendering such Certificated Note for registration of transfer or
exchange at the office of the Registrar, the Co-Registrar or the Luxembourg Co-
Registrar, with the transfer or exchange form attached thereto duly executed by,
or accompanied by a written instrument of transfer or exchange in form
satisfactory to, the Company and the Registrar, the Co-Registrar or the
Luxembourg Co-Registrar, as the case may be, duly executed by, the Holder or
Holders thereof or his or their
19
<PAGE>
attorney or attorneys-in-fact duly authorized in writing.
Prior to due presentment of a Certificated Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Certificated Note is registered as the
owner hereof for all purposes, whether or not such Certificated Note be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All Certificated Notes issued upon any exchange of Certificated Notes
or registration of transfer shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits, as the Certificated
Notes surrendered upon exchange or registration of transfer.
Payments and Paying Agent
-------------------------
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, interest or
Additional Amounts, if any, on any Note and remaining unclaimed for three years
after such principal, interest or Additional Amounts, if any, has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the company cause to be published once, (1) in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in The City of New York, (2) in a newspaper published in the
Spanish language and of general circulation in Argentina, and (3) in the
Luxemburger Wort or another newspaper of general circulation in Luxembourg,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining shall be repaid to the
Company.
If the due date for payment of any principal or interest in respect of
any Note is not a Business Day at the place in which it is presented for
payment, the Holder thereof will not be entitled to payment of the amount due
until the next succeeding Business Day at such place and will not be entitled to
any further interest or other payment in respect of any such delay.
In the event of any foreign exchange restriction or prohibition in
Argentina, any and all payments in respect of the Notes shall be made, to the
extent permitted by such restriction or prohibition, in Dollars through (1) the
sale of Bonex or of any other public or private bond issued in Dollars in
Argentina, or (2) any other legal mechanism for the acquisition of Dollars in
any exchange market. All costs, including any taxes, relative to such operations
to obtain Dollars shall be borne by the Company.
The Company or any of its Subsidiaries may at any time or from time to
time purchase Notes in the open market, or by tender or by private agreement at
any price. Any
20
<PAGE>
purchase by tender shall be made available to all Holders of Notes alike. All
Notes so purchased may be held for the account of the Company or may be resold
by the Company or may be canceled by the Company.
Optional Redemption
-------------------
The Company may redeem the Notes, in whole or in part, at any time and
from time to time, after the date thereof, at the option of the Company, upon
prior written notice as provided for in the Indenture, at a redemption price
equal to the principal amount of the Notes, called for redemption, plus accrued
interest to the Redemption Date (subject to the right of Holders of record on
the relevant record date to receive interest due on the related interest payment
date).
Redemption for Tax Reasons
--------------------------
If at any time after the date of the Indenture as a result of any
change in, or amendment to, the laws or regulations of Argentina or of any
political subdivision thereof or of any authority therein or thereof having
power to tax or as a result of any change in the application or official
interpretation of such laws or regulations, which change or amendment becomes
effective after the date of the Indenture, the Company becomes obligated to pay
any Additional Amounts (other than Additional Amounts arising out of the payment
by the Company or on its behalf of any personal property tax in respect of the
Notes) and such obligation cannot be avoided by the Company's taking reasonable
measures available to it, then the Notes will be redeemable as a whole (but not
in part), at the option of the Company, at any time in the manner and subject to
the conditions set forth in the Indenture. If (1) the Company becomes
responsible, prior to the maturity of the Notes, for the payment of any personal
property tax in respect of the Notes at a rate at least equal to the current
applicable rate as provided in Argentine Law 24,468, (2) such personal property
tax payable by the Company in respect of the Notes for any year represents more
than 50% of the total personal property tax in respect of the Notes that would
be payable in respect of the outstanding Notes if the holders of all of such
Notes were foreign legal entities subject to such tax, and (3) such obligation
cannot be avoided by the Company's taking reasonable measures available to it,
then the Notes will be redeemable as a whole (but not in part), at the option of
the Company, at any time in the manner and subject to the conditions set forth
in the Indenture.
Payments of Additional Amounts, Etc.
------------------------------------
All payments in respect of the Notes, including without limitation
payments of principal and interest shall be made by the Company without
withholding or deduction for or on account of any present or future taxes
(whether in respect of personal property or otherwise), duties, levies, or other
governmental charges of whatever nature in effect on the date of the Indenture
or imposed or established in the future by or on behalf of Argentina or any
authority in Argentina. In the event any such taxes or liabilities are so
imposed or established, the Company shall, subject to certain exceptions as
provided in the Indenture, pay such Additional Amounts as may be necessary in
order that the net amounts receivable by the Holders after any withholding or
deduction in respect of such tax or liability shall equal the respective amounts
of principal and
21
<PAGE>
interest which would have been receivable in respect of the Notes in the absence
of such withholding or deduction.
The Company irrevocably waives any right it may have under Argentine
law to seek reimbursement (whether by deduction from payments of principal,
interest or Additional Amounts with respect to the Notes or otherwise) from any
holder of Notes of any amounts the Company may have had to pay for personal
property tax in respect of the Notes.
Events of Default
-----------------
If an Event of Default occurs and is continuing, then the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Notes may declare the principal amount of all the Notes to be due
and payable immediately, by a notice in writing to the Company, and upon any
such declaration such principal amount and any accrued interest shall become
immediately due and payable, except that if certain Events of Default occur, the
principal of, and any accrued interest on the Notes then Outstanding shall
become immediately due and payable.
Governing Law and Enforceability
--------------------------------
The Argentine Negotiable Obligations Law governs the requirements for
the Notes to qualify as Negotiable Obligations (Obligaciones Negociables)
thereunder, while such law, together with Companies Law No. 19,550 of Argentina,
as amended, and other applicable Argentine laws govern the capacity and
corporate authorization of the Company to execute and deliver this Note and the
Indenture. Notwithstanding the foregoing, this Note and the Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
United States.
Pursuant to the Indenture, the Company has consented to the non-
exclusive jurisdiction of any court of the State of New York or any United
States federal court sitting in the Borough of Manhattan, New York City, New
York, United States, and any appellate court from any thereof, and has waived
any immunity from the jurisdiction of such courts over any suit, action or
proceeding that may be brought in connection with the Indenture or the Notes;
and the Company has irrevocably waived, to the fullest extent permitted by law,
any objection to any suit, action, or proceeding that may be brought in
connection with the Indenture or the Notes in such courts whether on the grounds
of venue, residence or domicile or on the ground that any such suit, action or
proceeding has been brought in an inconvenient forum. Notwithstanding the
foregoing, any suit, action or proceeding brought in connection with the
Indenture or the Notes may be instituted in any competent court in Argentina.
Currency Indemnity
------------------
Dollars is the sole currency of account and payment for all sums
payable by the Company under or in connection with this Note, including damages.
Any amount received or recovered in a currency other than Dollars (whether as a
result of, or of the enforcement of, a judgment or order of a court of any
jurisdiction, in the winding up or dissolution of the Company
22
<PAGE>
or otherwise) by any Holder of this Note in respect of any sum expressed to be
due to it from the Company shall only constitute a discharge of the Company to
the extent of the U.S. Dollar amount which the recipient is able to purchase
with the amount so received or recovered in that other currency on the date of
that receipt or recovery (or, if it is not practicable to make that purchase on
that date, on the first date on which it is practicable to do so). If the U.S.
Dollar amount is less than the U.S. Dollar amount expressed to be due to the
recipient under this Note, the Company shall indemnify such recipient against
any loss sustained by it as a result. In any event, the Company shall indemnify
the recipient against the cost of making any such purchase. For the purposes of
this provision, it will be sufficient for the Holder to certify in a
satisfactory manner (indicating the sources of information used) that it would
have suffered a loss had an actual purchase of Dollars been made with the amount
so received in that other currency on the date of receipt or recovery (or, if a
purchase of Dollars on such date had not been practicable, on the first date on
which it would have been practicable, it being required that the need for a
change of date be certified in the manner mentioned above). These indemnities
constitute a separate and independent obligation from the Company's other
obligations, shall give rise to a separate and independent cause of action,
shall apply irrespective of any waiver granted by any Holder and shall continue
in full force and effect despite any other judgment, order, claim or proof for a
liquidated amount in respect of any sum due under this Note or any other
judgment or order.
Section 2.4. Form of Trustee's Certificate of Authentication. This
-----------------------------------------------
is one of the Notes referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By___________________________
Authorized Signatory
ARTICLE 3.
THE NOTES
Section 3.1. Title and Terms. The aggregate principal amount of
---------------
Notes which may be authenticated and delivered under this Indenture is limited
to US$54,000,000, except for Notes authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Notes pursuant to
Section 3.8, 3.9, 9.6 or 13.2 hereof.
The Notes shall be known and designated as the "Variable Rate Notes
due 2010" of the Company. Their Stated Maturity shall be September 19, 2010 and
they shall bear interest from September 19, 2000 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, as
the case may be, payable semiannually in arrears on March 19 and September 19,
commencing March 19, 2001, at the rate of 2.0% per annum to and including the
first anniversary of this Indenture, 2.5% per annum thereafter to and including
the second anniversary
23
<PAGE>
of this Indenture, 3.0% per annum thereafter to and including the third
anniversary of this Indenture, and 5.0% per annum thereafter, until the
principal thereof is paid or made available for payment.
The Notes will constitute the direct, unsecured and unsubordinated
obligations of the Company and will rank pari passu without any preference among
themselves. The payment obligations of the Company under the Notes will at all
times rank at least equally in priority of payment with all other present and
future unsecured and unsubordinated obligations of the Company from time to time
outstanding.
The principal of, interest and Additional Amounts, if any, on the
Notes shall be payable at the Corporate Trust Office of the Principal Paying
Agent in The City of New York and at the office of Banco Rio de la Plata, S.A.,
in Buenos Aires and, subject to fiscal or other laws and regulations applicable
thereto, specified offices of any other Paying Agent appointed by the Company
for such purpose; provided, however, that at the option of the Company payment
of interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Register or, in the case of a holder
of at least US$1,000,000 principal amount of Notes, by wire transfer to a Dollar
account maintained by the payee with a bank in the United States or in
Argentina, provided that the Holder so elects by giving written notice to such
effect designating such account which is received by the Trustee or a Paying
Agent no later than the March 4 or September 4, as the case may be, immediately
preceding such Interest Payment Date. Unless such designation is revoked, any
such designation made by such Holder with respect to such Notes will remain in
effect with respect to any future payments with respect to such Note payable to
such Holder.
In the event of any foreign exchange restriction or prohibition in
Argentina, any and all payments in respect of the Notes shall be made, to the
extent permitted by such restriction or prohibition, in Dollars through (1) the
sale of Bonex or of any other public or private bond issued in Dollars in
Argentina, or (2) any other legal mechanism for the acquisition of Dollars in
any exchange market. All costs, including any taxes, relative to such operations
to obtain Dollars shall be borne by the Company.
All payments in respect of the Notes, including, without limitation,
payments of principal and interest shall be made by the Company without
withholding or deduction for or on account of any Taxes in effect on the date of
this Indenture or imposed or established in the future by or on behalf of
Argentina or any authority in Argentina. In the event any such taxes or
liabilities are so imposed or established, the Company shall pay certain
Additional Amounts as may be necessary in order that the net amounts receivable
by the Holders after any withholding or deduction in respect of such tax or
liability shall equal the respective amounts of principal and interest which
would have been receivable in respect of the Notes in the absence of such
withholding or deduction; except that no such Additional Amounts shall be
payable with respect to any withholding or deduction on any Note to, or to a
third party on behalf of, a Holder for or on account of any such taxes or
liabilities whatever that have been imposed by reason of (1) the Holder being a
resident of Argentina or having some connection with Argentina other than the
mere holding of such Note or the receipt of principal or interest in respect
thereof; or (2) the presentation by the Holder of a Note for payment on a date
more than 30 days after the date on which such payment became due and payable or
the date on which payment thereof is duly provided for, whichever occurs later,
except to the extent that the Holder would have been entitled to such Additional
Amounts on presenting such Note for payment on the last date of such period of
30 days. Furthermore, no Additional Amounts shall be paid with respect to any
24
<PAGE>
payment on a Note to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent that a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or
beneficial owner would not have been entitled to receive the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the Holder.
Whenever in this Indenture there is a reference, in any context, to
the payment of the principal of or interest on, or in respect of, any Note, such
payment shall be deemed to include the payment of Additional Amounts provided
for in this Section to the extent that, in such context, Additional Amounts are,
were or would be payable in respect of such payment pursuant to the provisions
of such Section and express mention of the payment of Additional Amounts (if
applicable) in any provision hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
In addition, the Company shall pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest and penalties,
payable in Argentina or the United States or any political subdivision thereof
or taxing authority of or in the foregoing in respect of the creation, issue and
offering of the Notes. The Company shall also indemnify each holder of a Note
from and against all court taxes or other taxes and duties, including interest
and penalties, imposed on or paid by such Holder in any jurisdiction in
connection with any action permitted to be taken by such Holder to enforce the
obligations of the Company under the Notes.
The Company irrevocably waives any right it may have under Argentine
law to seek reimbursement (whether by deduction from payments of principal,
interest or Additional Amounts with respect to the Notes or otherwise) from any
holder of Notes of any amounts the Company may have had to pay for personal
property tax in respect of the Notes.
At least 10 Business Days prior to each Interest Payment Date, any
Redemption Date or the Maturity of the Notes, the Company shall furnish upon
written request to the Principal Paying Agent and each other Paying Agent to
whom the Company has provided funds directly pursuant to Section 3.6 hereof a
certificate of an Authorized Officer specifying the amount required to be
deducted or withheld on payments of principal of or interest on the Notes due on
such date of payment for or on account of any Taxes and certifying that such
amount will be withheld and paid by the Company. The Company covenants to
indemnify the Principal Paying Agent and the other Paying Agents for, and to
hold each harmless against, any loss, liability or expense reasonably incurred
without negligence, bad faith or willful misconduct on their part, arising out
of or in connection with actions taken or not taken by any of them in reliance
on any certificate furnished to them pursuant to this paragraph or the failure
to furnish any such certificate. The obligations of the Company under the
preceding sentence shall survive payment of all the Notes, the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee,
Registrar, Co-Registrar, Luxembourg Co-Registrar or any Paying Agent.
Any certificate required by this Section to be provided to the
Principal Paying Agent and any other Paying Agent shall be deemed to be duly
provided if telecopied to and received by the Principal Paying Agent and such
other Paying Agent. Upon request, the Company shall provide the Principal Paying
Agent with documentation reasonably satisfactory to the Principal Paying Agent
evidencing the payment of Taxes in respect of which the Company has paid any
Additional Amounts. Copies of such documentation shall be made available to the
Holders or the other Paying Agents, as applicable, upon request therefor.
The Notes may be redeemed at the option of the Company as provided in
Article Thirteen.
25
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Section 3.2. Authentication, Delivery and Date of Notes. At any time
------------------------------------------
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Notes; and the Trustee in accordance with such Company Order
shall authenticate and deliver such Notes as in this Indenture provided and not
otherwise.
Each Note shall be dated the date of its authentication.
Section 3.3. Execution of Notes. All Notes shall be executed manually
------------------
or by facsimile on behalf of the Company by a duly authorized officer of the
Company and by a Director of the Company. Notes bearing the manual or facsimile
signatures of a duly authorized officer of the Company shall bind the Company,
notwithstanding that such individuals or either of them have ceased to hold such
positions prior to the authentication and delivery of such Notes, or did not
hold such offices at the date of such Notes. The Notes may also have such
additional provisions, omissions, variations or substitutions as are not
inconsistent with the provisions of this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with this Indenture, any law or any rules
made pursuant thereto or with the rules of any securities exchange, Governmental
Agency or depositary thereof or as may, consistently herewith, be determined by
the Authorized Officers executing such Notes, as conclusively evidenced by their
execution of such Notes. All Notes shall be otherwise substantially identical
except as to denomination and as provided herein.
Section 3.4. Certificate of Authentication. Only such Notes as shall
-----------------------------
bear thereon a certificate of authentication substantially in the form provided
for herein, executed by the Trustee by the manual signature of one of its
authorized signatories, shall be entitled to any benefits under this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Note executed by the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
Section 3.5. Denomination and Registration; Book Entry System;
-------------------------------------------------
Certificated Notes. The Notes shall be issuable only in registered form without
------------------
coupons and only in denominations of US$1,000 or integral multiples thereof. No
service charge shall be made for any registration of transfer or exchange of
Notes, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
The Notes shall be represented by a Global Security. The Global Security
shall be deposited with, or on behalf of, DTC, as Depository and shall be
registered in the name of the nominee of the Depository.
All payments on a Global Security will be made to the Depository or its
nominee, as the case may be, as the registered owner and holder of such Global
Security and the Company will be fully discharged by payment to DTC from any
responsibility or liability in respect of each amount so paid. Upon receipt of
any such payment in respect of a Global Security, DTC will credit Participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown on the
records of DTC. The transfer and exchange of interests in a Global Security
shall be effected through the Depository in accordance with this Indenture and
the Applicable Procedures.
Unless and until it is exchanged in whole or in part for Certificated Notes
under the circumstances described below in this Section, a Global Security may
not be transferred
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except as a whole by the Depository to another nominee of the Depository or to a
successor of the Depository or a nominee of such successor.
Owners of beneficial interests in Global Securities shall be entitled or
required, as the case may be, under the circumstances described below in this
Section, to receive physical delivery of Certificated Notes. The Notes shall not
be issuable in bearer form.
Interests in a Global Security shall be exchangeable or transferable, as
the case may be, for Certificated Notes if (1) the Depository notifies the
Company that it is unwilling or unable to continue as depositary for such Global
Security, or the Depository ceases to be a "clearing agency" registered under
the Exchange Act, and a successor depositary is not appointed by the Company
within 90 days, or (2) an Event of Default has occurred and is continuing with
respect to such Notes. Upon the occurrence of either of the events described in
the preceding sentence, the Company shall cause the appropriate Certificated
Notes to be delivered. Such Certificated Notes shall be registered in such names
and in such authorized denominations as the Depository, pursuant to instructions
from its Participants or otherwise, shall instruct the Trustee or the Registrar.
Certificated Notes shall be exchangeable or transferable in whole or in part for
interests in other Certificated Notes as described in Section 3.8 hereof.
Section 3.6. Payment of Interest; Interest Rights Preserved. The
----------------------------------------------
person in whose name any Note is registered at the close of business on any
Regular Record Date shall be entitled to receive the interest, if any, payable
on such Interest Payment Date notwithstanding any transfer or exchange of such
Note subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such Interest Payment Date, in which case such defaulted
interest shall be paid to the persons in whose names Outstanding Notes are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Company to
the Holders not less than 15 days preceding such subsequent record date.
The Company shall provide to the Principal Paying Agent in funds
available on the day prior to each date on which a payment or principal of or
any interest on the Notes shall become due, as set forth in the text of the
Notes, such amount in Dollars as is necessary to make such payment, and the
Company hereby authorizes and directs the Principal Paying Agent from funds so
provided to it to make or cause to be made payment of the principal of and any
interest, as the case may be, on the Notes as set forth herein and in the text
of said Notes; provided that payment of interest on the Notes may be made
directly by the Company, by Dollar check drawn on a bank in The City of New York
mailed to the Person entitled thereto as provided in the text of the Notes.
Payments of any interest on the Notes may be made, in the case of a registered
holder of at least US$1,000,000 aggregate principal amount of Notes, by wire
transfer to a Dollar account maintained by such holder with a bank in the United
States or in Argentina; provided that such Holder elects payment by wire
transfer by giving written notice to the Trustee or a Paying Agent to such
effect designating such account no later than the March 4 or September 4, as the
case may be, immediately preceding such Interest Payment Date, or such other
date as the Principal Paying Agent may elect in its discretion. Unless such
designation is revoked, any such designation made by such Holder with respect to
such Notes shall remain in effect with respect to any future payments of
interest with respect to such Notes payable to such Holder. The Company shall
pay any administrative costs imposed by banks in connection with making
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payments by wire transfer. The Principal Paying Agent shall arrange directly
with any other Paying Agent who may have been appointed by the Company pursuant
to the provisions of this Indenture for the payment from funds so paid by the
Company to the Principal Paying Agent of the principal of and any interest on
the Notes as set forth herein and in the text of said Notes. Notwithstanding the
foregoing, the Company may provide directly to another Paying Agent funds for
the payment of the principal or any interest on any of the Notes pursuant to an
agreement with respect to such funds containing substantially the same terms and
conditions set forth in this Section 3.6; and the Principal Paying Agent shall
have no responsibility with respect to any funds so provided by the Company to
any such other Paying Agent.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 3.7. Computation of Interest. Interest on the Notes shall be
-----------------------
computed on the basis of a 360-day year consisting of 12 months of 30 days each
and, in the case of an incomplete month, the number of days actually elapsed.
Section 3.8. Registration of Transfer and Exchange. Subject to any
-------------------------------------
applicable laws and such reasonable regulations as it may prescribe, Banco Rio
de la Plata S.A., as Registrar, shall keep the Register at its registrar offices
in Buenos Aires, Argentina, set forth in Section 12.4 hereof for the
registration of ownership, exchange, and transfer of the Notes. Each of [The
Bank of New York], as Co-Registrar, and [Kredietbank S.A., Luxembourgeoise], as
Luxembourg Co-Registrar, shall also maintain a record of all registrations of
ownership, exchange and transfer of Notes. The Co-Registrar shall give prompt
notice to the Registrar and the Luxembourg Co-Registrar, and the Registrar shall
give prompt notice to the Co-Registrar and the Luxembourg Co-Registrar, and the
Luxembourg Co-Registrar shall give prompt notice to the Registrar and the Co-
Registrar, of any registration of ownership, exchange or transfer of Notes.
Included in the books and records for the Notes shall be notations as to whether
such Notes have been paid, exchanged or transferred and canceled or lost,
stolen, mutilated or destroyed and whether such Notes have been replaced. In
the case of the replacement of any of the Notes, the Registrar, the Co-Registrar
and the Luxembourg Co-Registrar shall keep a record of the Note so replaced and
the Note issued in replacement thereof. In the case of the cancellation of any
of the Notes, the Registrar, the Co-Registrar and the Luxembourg Co-Registrar
shall keep a record of the Note so canceled and the date on which such Note was
canceled. The costs and expenses of effecting any exchange or registration of
transfer except for the expense of delivery by other than regular mail (if any)
and except for the payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith shall be borne by the
Company.
Subject to the provisions of Section 3.10 hereof, upon presentation for
exchange or transfer of any Note at the office of any of the Registrar, Co-
Registrar or Luxembourg Co-Registrar accompanied by a written instrument of
exchange or transfer in a form approved by the Company and the Registrar, Co-
Registrar or Luxembourg Co-Registrar, as the case may be, executed by the
registered Holder or his attorney-in-fact duly authorized in writing, and upon
completion of any certification required by the terms of this Indenture, such
Note shall be exchanged or transferred upon the Register, and one or more new
Notes shall be authenticated and issued in the name of the Holder (in the case
of exchanges only) or the transferee, as the case may be. No exchange or
transfer of a Note shall be effective under this Indenture or the Notes
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unless and until such Note has been registered in the name of such Person in the
Register. Furthermore, the exchange or transfer of any Note shall not be
effective under this Indenture or the Notes unless the request for such exchange
or transfer is made by the registered Holder or by a duly authorized attorney-
in-fact at the office of the Registrar, the Co-Registrar or the Luxembourg Co-
Registrar.
Subject to the provisions of Section 3.10 hereof, Certificated Notes
may be exchanged or transferred in whole or in part for other Certificated Notes
of any authorized denominations and of a like tenor and aggregate principal
amount by surrendering such Certificated Notes at the office of the Registrar,
the Co-Registrar or the Luxembourg Co-Registrar with a written instrument of
transfer as provided in this Indenture.
Section 3.9. Restrictive Legends. (a) The Global Security and each
-------------------
Certificated Note issued in exchange for a Global Security shall bear a legend
on the face thereof in substantially the following form:
[THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR
OTHER JURISDICTION OF THE UNITED STATES. THE OFFER, SALE, PLEDGE OR
TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS AND
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING
THIS NOTE, ACKNOWLEDGES THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT AND AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS
NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OF THE
STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE
OFFER AND SALE OF NOTES.]
(b) Each Global Security shall bear the following legend on the face
thereof:
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
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<PAGE>
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO ANOTHER NOMINEE OF DTC OR TO A SUCCESSOR OF DTC OR A
NOMINEE OF SUCH SUCCESSOR.]
Section 3.10. Transfer Restrictions. Transfers and exchanges of Notes
---------------------
under this Indenture may be made only in accordance with the requirements of the
Securities Act.
Section 3.11. Mutilated, Defaced, Destroyed, Lost and Stolen Notes. If
----------------------------------------------------
any mutilated Note is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Note of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any Note,
and (2) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.12. Cancellation of Notes; Destruction Thereof. All Notes
------------------------------------------
surrendered for payment, redemption, registration of transfer or exchange if
surrendered to the Company or any agent of the Company shall be delivered to the
Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled
by it. No Notes shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Trustee shall deliver cancelled
Notes to the Company. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
Section 3.13. Persons Deemed Owners. Prior to due presentment of a
---------------------
Note for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the
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purpose of receiving payment of principal of, interest and Additional Amounts,
if any, on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Company, the Trustee nor any agent of the
Company, or the Trustee shall be affected by notice to the contrary.
Section 3.14. CUSIP, CINS and INIS Numbers. The Company in issuing the
----------------------------
Notes may use "CUSIP," "CINS" and "ISIN" numbers in the case of Notes
represented by a Global Security and Certificated Notes issued in exchange
therefor (in each case if such numbers are then generally in use), and, if so,
the Trustee shall use "CUSIP", "CINS" or "ISIN" numbers, as applicable, in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers.
Article 4.
COVENANTS
Section 4.1. Payment of Principal and Interest. The Company shall
---------------------------------
duly and punctually pay the principal of, interest and Additional Amounts, if
any, on the Notes in accordance with the terms of the Notes and this Indenture.
Section 4.2. Maintenance of Office or Agency. The Company shall
-------------------------------
maintain in each of [Buenos Aires and Salta], Argentina, and the Borough of
Manhattan, The City of New York, an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
Section 4.3. Maintenance of Existence. The Company shall (1) maintain
------------------------
in effect its corporate existence and all registrations necessary therefor, and
(2) take all reasonable actions to maintain all rights, privileges, titles to
property, franchises and the like necessary or desirable in the normal conduct
of its business, activities or operations; provided, however, that this covenant
shall not prohibit any transaction by the Company or any of its Subsidiaries
otherwise permitted under the covenant relating to "Mergers, Consolidations,
Sales and Leases" and this covenant shall not require the Company to maintain
any such right, privilege, title to
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property or franchise, if the Board of Directors of the Company shall determine
that (a) the maintenance or preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries taken as a whole,
and (b) the loss thereof is not, and will not be, adverse in any material
respect to the Holders.
Section 4.4. Maintenance of Properties. The Company shall cause all
-------------------------
tangible Properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements and improvements thereof, all as in the judgment of the
Company may be necessary so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; provided, however,
that nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such Properties if such discontinuance is, as
determined by the Board of Directors in good faith, desirable in the conduct of
the business of the Company and its Subsidiaries taken as a whole and not
adverse in any material respect to the Holders.
Section 4.5. Payment of Taxes and Other Claims. The Company shall pay
---------------------------------
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the Property of the
Company; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
Section 4.6. Compliance with Laws and Other Agreements. The Company
-----------------------------------------
shall comply with all applicable laws, rules, regulations, orders and directions
of any Governmental Agency having jurisdiction over it or its business and all
covenants and other obligations contained in any material agreements to which
the Company is a party, except where the failure to so comply would not have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, operations, business affairs or business prospects of the Company and
except to the extent any such law, regulation, order, directive, covenant or
obligation is contested in good faith.
Section 4.7. Maintenance of Books and Records. The Company shall
---------------------------------
maintain books, accounts and records in accordance with Argentine GAAP and as
required by Argentine law.
Section 4.8. Maintenance of Insurance. The Company shall keep at all
------------------------
times all of their Properties which are of an insurable nature insured against
loss or damage with insurers believed by the Company to be responsible to the
extent that Property of similar characteristics is usually so insured by
corporations similarly situated and owning like Properties in accordance with
good business practice.
Section 4.9. Permitted Liens. The Company shall not create or suffer
---------------
to exist any Lien upon any of its Property, other than Permitted Liens, unless,
at the same time or prior thereto, the Company's obligations under the Notes (1)
are secured equally and ratably therewith to the reasonable satisfaction of the
Trustee, or (2) have the benefit of such other security, guarantee, indemnity or
other arrangements as the are not materially less beneficial to the Holders.
Section 4.10. Permitted Indebtedness. So long as any Note remains
----------------------
outstanding,
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the Company shall not incur or permit to exist any Indebtedness other than
Permitted Indebtedness.
Section 4.11. Financial Reporting. The Company shall furnish or cause
-------------------
to be furnished to the Trustee (a) annual reports in English, which shall
include a report of the Company's Board of Directors and annual audited
financial statements prepared in conformity with Argentine GAAP, and (b)
quarterly reports in English which shall include unaudited interim financial
information prepared in accordance with Argentine GAAP within 60 days after the
end of each quarter. The Company shall also furnish or cause to be furnished to
the Trustee in English all notices of shareholders' meetings and other reports
and communications that are made generally available to the Company's
shareholders.
Section 4.12. Mergers, Consolidations, Sales and Leases. The Company
-----------------------------------------
shall not, and shall not permit any Subsidiary to, merge or consolidate with or
into, or convey, transfer or lease its respective Properties and assets
substantially as an entirety to, any Person, unless immediately after giving
effect to such transaction, (a) no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have
occurred and be continuing, (b) the creditors of the Company or Subsidiary
holding a majority in principal amount of the total Indebtedness of the Company
or such Subsidiary do not oppose such actions in the manner provided by
Argentine law 19,550, as amended, Argentine law 11,867, as amended, or other
applicable rules and regulations, and each Noteholder who elects, in accordance
with Argentine law 19,550, as amended, for Indebtedness owed to it to be
guaranteed or repaid upon such merger or a consolidation subject to the
provisions of Argentine law 11,867, as amended, has such Indebtedness so
guaranteed or repaid by the Company or such Subsidiary, (c) with respect to a
merger or consolidation of the Company with or into any Person or a conveyance,
transfer or lease by the Company of its Properties and assets substantially as
an entirety to any Person, (1) any corporation formed by any such merger or
consolidation with the Company or the Person which acquires by conveyance or
transfer, or which leases, the Properties of the Company substantially as an
entirety (the "Company's successor corporation") shall expressly assume the due
and punctual payment of the principal of, interest and Additional Amounts, if
any, on all the Notes according to their terms, and the due and punctual
performance of all of the covenants and obligations of the Company under the
Notes and this Indenture, and (2) the Company's successor corporation (except in
the case of leases), if any, succeeds to and becomes substituted for the Company
with the same effect as if it had been named in the Notes as the Company, and
(d) the Company delivers to the Trustee an Officers' Certificate and causes to
be delivered to the Trustee an Opinion of Counsel (which Opinion of Counsel may
be subject to customary exceptions, limitations and qualifications) to the
effect that such merger, consolidation, conveyance, transfer or lease, as
applicable, complies with the requirements of this Indenture.
Section 4.13. Further Assurances. The Company shall, at its own cost
------------------
and expense, execute and deliver to the Trustee all such documents, instruments
and agreements and do all such other acts and things as may be reasonably
required, in the opinion of the Trustee, to enable the Trustee to exercise and
enforce its rights under this Indenture and under the documents, instruments and
agreements required under this Indenture and to carry out the intent of this
Indenture.
Article 5.
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HOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
Section 5.1. Company to Furnish Trustee Information as to Names and
------------------------------------------------------
Addresses of Holders. The Company covenants and agrees that it shall furnish or
--------------------
cause to be furnished to the Trustee a list in such form as the Trustee may
reasonably require of the names and addresses of the Holders:
(a) semiannually and not more than 15 days after each Record Date, as
hereinabove specified, as of such Record Date, and
(b) at such other time as the Trustee may request in writing, within
30 days after receipt by the Company of any such request as of a date not
more than 15 days prior to the time such information is furnished,
provided that if and so long as the Trustee shall be the Co-Registrar, such list
shall not be required to be furnished.
Section 5.2. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 5.1 hereof and the names
and addresses of Holders received by the Trustee in its capacity as Co-
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 5.1 hereof upon receipt of a new list so furnished.
(a) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Notes, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(b) Every holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of any of them shall be held accountable by reason of any disclosure
of information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 5.3. Reports by the Company. The Company covenants:
----------------------
(a) to file with the Trustee, within fifteen (15) days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 or, if the Company is not required to file information,
documents, or reports pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents, and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations and other information satisfying
the requirements of subsection (d)(4)(i) of Rule 144A of the Commission or any
similar rule then in effect;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to all Holders, within thirty (30) days after
filing thereof
34
<PAGE>
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of this
Section as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission; and
(d) to file with the Trustee written notice of the occurrence of any
Default or Event of Default within five Business Days of the Company's becoming
aware of any such Default or Event of Default.
Delivery of such reports, information and documents of the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
Article 6.
REMEDIES OF THE TRUSTEE AND
HOLDERS IN EVENT OF DEFAULT
Section 6.1. Event of Default Defined; Acceleration of Maturity.
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"Event of Default", wherever used herein, means any one of the following events
which shall have occurred or be continuing (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default by the Company in the payment of any principal, interest
or Additional Amounts due on the Notes and, only with respect to interest
and Additional Amounts, such default continues for a period of 10 days; or
(2) default in the performance or observance of any term, covenant or
obligation of the Company in the Notes or this Indenture, not otherwise
expressly defined as an Event of Default in paragraph (a) above, for a
period of more than 60 days after here has been given, by registered or
certified mail, to the Company by the Trustee or by Holders of a majority
in aggregate principal amount of the Outstanding Notes a written notice
specifying such default or breach and requiring it to be remedied; or
(3) any other present or future Indebtedness of the Company becomes
due and payable prior to its stated maturity as a result of any default
(however defined), or any such Indebtedness is not paid when due or, as the
case may be, within any applicable grace period, or the Company fails to
pay when due or, as the case may be, within any applicable grace period,
any amount payable by it under any present or future guarantee for, or
indemnity in respect of, any moneys borrowed, provided that the aggregate
amount of the relevant Indebtedness, guarantees and indemnities in respect
of which one or more of the events mentioned above have occurred equals or
exceeds US$6,000,000 or its equivalent; or
(4) a resolution is passed or adopted by the Board of Directors or
shareholders of the Company, or a final judgment of a court of competent
jurisdiction is made, that the Company be wound up or dissolved, other than
in connection with certain transactions otherwise permitted by this
Indenture, or an attachment, execution seizure before judgment or other
legal process is levied or enforced upon part of the Property of the
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Company which is material to the condition, financial or otherwise, or to
the earnings, operations, business affairs or business prospects of the
Company, or a court having jurisdiction enters a decree or order for relief
in respect of the Company in an involuntary bankruptcy or reorganization
under Argentine Law No. 24,522 or any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or appointment of an
administrator, receiver, trustee or intervenor for the Company for all or
substantially all of the Property of the Company, or the Company commences
a voluntary bankruptcy or reorganization under Argentine Law No. 24,522 or
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, consents to the appointment of or taking possession by an
administrator, receiver, trustee, or intervenor for the Company for all or
substantially all of the Property of the Company, or effects any general
assignment for the benefit of creditors, or a moratorium is agreed or
declared in respect of any Indebtedness of the Company, or any governmental
agency condemns, seizes compulsorily purchases or expropriates 10% or more
of the assets of the Company considered as one enterprise, subject in each
of the foregoing cases to any applicable exceptions and grace and cure
periods; or
(5) a final judgment or judgments for the payment of money
aggregating in excess of US$6,000,000 are rendered against one or more of
the Company which judgments are not, within 60 days after entry thereof,
bonded, paid, discharged or stayed pending appeal, or are not discharged
within 60 days after the expiration of such stay.
Section 6.2. Acceleration of Maturity; Rescission and Annulment. If an
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Event of Default occurs and is continuing, then and in every such case the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Outstanding Notes may declare the principal amount of all the Notes to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount and any accrued interest shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the holders of not less
than a majority in aggregate principal amount of the Outstanding Notes present
or represented at a meeting of such holders called, convened and held in
accordance with the provisions of Section 9.6 hereof, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Notes,
(B) the principal of, or Additional Amounts, if any, on any Notes
which have become due otherwise than by such declaration of
acceleration and, to the extent that payment of such interest is
lawful, interest thereon at the rate provided by the Notes,
(C) to the extent that payment of such interest is lawful,
interest upon
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overdue interest at the rate provided by the Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
(2) all Events of Default, other than the non-payment of the
accelerated principal of Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 6.10 hereof.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
The foregoing provisions shall be without prejudice to the rights of
each individual Holder to initiate an action against the Company for the payment
of any principal, Additional Amounts and/or interest past due on any Note, as
the case may be.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by
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Trustee. The Company covenants that if an Event of Default set forth in Section
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6.1 hereof shall have occurred and be continuing, then the Company shall, upon
demand of the Trustee, pay to it, for the benefit of the holders of such Notes,
the whole amount then due and payable on such Notes for principal, interest and
Additional Amounts, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal and overdue
interest and Additional Amounts, if any, at the rate provided by the Notes, and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
Property of the Company or any other obligor upon the Notes, wherever situated.
Any Holder may institute proceedings directly against the Company for
the payment of past due principal, interest or Additional Amounts, if any, but
from the date such proceedings are instituted, the holder of such Notes, shall
cease to have any rights under the trust created by these presents, whether in
relation to trust moneys (including moneys recovered by the Trustee prior to the
institution of such proceedings) or otherwise. The Trustee shall be entitled to
assume (and it is the intention of the parties that it will assume) that no such
proceedings have been instituted, unless it has express notice to the contrary.
No Note which has been the subject of proceedings may be presented to
a Paying Agent or Registrar, Co-Registrar or Luxembourg Co-Registrar for payment
or replacement but in such circumstances the Company shall make separate
arrangements for payment directly to the holder of each such Note. If any
Holder, having instituted proceedings directly against the
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Company, subsequently disposes of the Note forming the subject matter of such
proceedings, the cessation of the rights under the trust created by these
presents occurring upon the institution of such proceedings, shall inure in
relation to the purchaser of such Note. Upon notification by the Company of any
such proceedings, the Trustee shall give notice to the Paying Agents and the
Registrar, Co-Registrar and Luxembourg Co-Registrar of the serial numbers of
those Notes forming the subject matter of such proceedings and the Paying Agents
and Registrar, Co-Registrar and Luxembourg Co-Registrar shall make such serial
numbers available to any Holder or potential Holder upon its request.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the Property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Notes and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other Property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.6 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the holders
of the Notes in respect of which such judgment has been recovered.
Section 6.4. Application of Moneys Collected. Any money collected by
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the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or interest, upon presentation of the Notes and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.6 hereof;
SECOND: To the payment of the amounts then due and unpaid for
principal of, interest and Additional Amounts, if any, on the Notes in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal, interest and
Additional Amounts, if any, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 6.5. Restoration of Rights on Abandonment of Proceedings. In
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case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the Holders shall continue as though no such
proceedings had been taken.
Section 6.6. Limitations on Suits by Holders. Except as provided in
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the last paragraph of Section 6.2 hereof, no Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity
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against the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the holders of a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 6.7. Unconditional Right of Holders to Receive Principal,
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Additional Amounts and Interest. Notwithstanding any other provision in this
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Indenture, the holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of, interest and Additional
Amounts, if any, on such Note on the respective Stated Maturities expressed in
such Note (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 6.8. Powers and Remedies Cumulative; Delay or Omission Not
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Waiver of Default. Except as provided in Section 6.6 hereof, no right or remedy
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herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or remedy or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and every power
and remedy given by this Indenture or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Holders.
Section 6.9. Control by Holders. The holders of not less than a
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majority in aggregate principal amount of Outstanding Notes shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Notes by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture and, provided further, that (subject to the provisions of
Section 7.1 hereof) the Trustee
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shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by a
Responsible Officer of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forbearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders so affected not joining in the giving of said direction, it
being understood that (subject to Section 7.1 hereof) the Trustee shall have no
duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders. Nothing in this Indenture shall impair the right of
the Trustee in its discretion to take any action deemed proper by the Trustee
and which is not inconsistent with such direction or directions by holders of
Notes.
Section 6.10. Waiver of Past Defaults. The holders of not less than a
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majority in aggregate principal amount of the Outstanding Notes present or
represented at a meeting of such holders called, convened and held in accordance
with the provisions of Section 9.6 hereof may waive, on behalf of the holders of
all the Notes, any past default hereunder and its consequences; provided,
however, that the unanimous affirmative vote of the Holders shall be required to
adopt a valid decision on:
(1) changing the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any Additional Amount payable
thereon, or change the place of payment where, or the coin or currency in
which, any Note or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reducing the percentage in principal amount of the Outstanding
Notes, the consent of the Holders of which is required for the adoption of
a resolution or the quorum required at any meeting of Holders at which a
resolution is adopted or the percentage in principal amount of Outstanding
Notes the Holders of which are entitled to request the calling of a meeting
of Holders;
(3) reducing the principal amount of or interest on any Note including
discharge of repayment of principal of or interest on any Note;
(4) changing the percentage rules established for adopting resolutions
at meetings of Holders or regarding the quorum necessary to constitute a
meeting;
(5) any modification of the number of Holders necessary to waive a
past Event of Default;
(6) changing the currency for payment of principal of, or interest on,
any security; or
(7) changing the requirement to pay Additional Amounts.
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Except as provided above, any modifications, amendments or waivers to
the terms and conditions of the Notes shall be conclusive and binding on all
Holders, whether or not they were present at any meeting, and whether or not
notation of such modifications, amendments or waivers is made upon the Notes.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 6.11. Trustee to Give Notice of Default, But May Withhold in
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Certain Circumstances. Within 90 days after a Responsible Officer of the Trustee
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obtains actual knowledge of the occurrence of any default hereunder, the Trustee
shall transmit by mail to all Holders as their names shall appear on the
Register, in the manner and to the extent provided in Trust Indenture Act
Section 313(C), notice of such default hereunder, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of, interest or Additional Amounts, if any, on
any Note, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders; and provided
further that in the case of any default of the character specified in Section
6.1(c) hereof, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof.
Section 6.12. Undertaking for Costs. In any suit for the enforcement
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of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company or the Trustee.
Section 6.13. Currency Indemnity. Dollars is the sole currency of
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account and payment for all sums payable by the Company under or in connection
with the Notes, including damages. Any amount received or recovered in a
currency other than Dollars (whether as a result of, or of the enforcement of, a
judgment or order of a court of any jurisdiction, in the winding up or
dissolution of the Company or otherwise) by any holder of Notes in respect of
any sum expressed to be due to it from the Company shall only constitute a
discharge of the Company to the extent of the Dollar amount which the recipient
is able to purchase with the amount so received or recovered in that other
currency on the date of that receipt or recovery (or, if it is not practicable
to make that purchase on that date, on the first date on which it is practicable
to do so). If that Dollar amount is less than the Dollar amount expressed to be
due to the recipient under any Note, the Company shall indemnify such recipient
against any loss sustained by it as a result. In any event, the Company shall
indemnify the recipient against the cost of making any such purchase. For the
purposes of this Section, it will be sufficient for the Holder to certify in a
satisfactory manner (indicating the sources of information used) that it
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would have suffered a loss had an actual purchase of Dollars been made with the
amount so received in that other currency on the date of receipt or recovery
(or, if a purchase of Dollars on such date had not been practicable, on the
first date on which it would have been practicable, it being required that the
need for a change of date be certified in the manner mentioned above). These
indemnities constitute a separate and independent obligation from the Company's
other obligations, shall give rise to a separate and independent cause of
action, shall apply irrespective of any waiver granted by any Holder and shall
continue in full force and effect despite any other judgment, order, claim or
proof for a liquidated amount in respect of any sum due under any Note or any
other judgment or order.
ARTICLE 7.
CONCERNING THE TRUSTEE
Section 7.1. Duties and Responsibilities of the Trustee; During
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Default; Prior to Default. With respect to the holders of Notes issued
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hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Notes and after the curing or waiving of all Events of Default
which may have occurred with respect to the Notes, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case an Event of Default with respect to the Notes has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Notes and after the curing or waiving of all such Events of Default
with respect to the Notes which may have occurred:
(1) the duties and obligations of the Trustee with respect to
the Notes shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee;
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture; and
(3) the Trustee shall not exercise any rights it may otherwise
have under subparagraph (2) of Section 345 of the Argentine Companies
Law;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be
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proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the holders pursuant to Section 6.9 hereof relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
Section 7.2. Certain Rights of the Trustee. Subject to Section 7.1
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hereof:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors of the Company
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) the Trustee may make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document and shall
make such investigation if, after the occurrence and during the continuance
of an Event of Default, the Trustee is requested in writing so to do by the
holders of not less than a majority in aggregate principal amount of all
the Notes affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the
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reasonable expenses of every such investigation shall be paid by the
Company or, if paid by the Trustee or any predecessor trustee, shall be
repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
Section 7.3. Trustee Not Responsible for Recitals, Disposition of
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Notes or Application of Proceeds Thereof. Other than as specifically provided in
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the Trustee recitals to this Indenture, the recitals contained herein and in the
Notes, except the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to the validity
or sufficiency of this Indenture or of any disclosure document or offering
materials or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of any of the Notes or of the proceeds thereof.
Section 7.4. May Hold Notes; Collections, etc. The Trustee or any
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Authenticating Agent, any Paying Agent, the Registrar, Co-Registrar or
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Luxembourg Co-Registrar or any other agent of the Company or the Trustee, in its
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individual or any other capacity, may become the owner or pledgee of Notes with
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the same rights it would have if it were not the Trustee or any Authenticating
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Agent, any Paying Agent, the Registrar, Co-Registrar or Luxembourg Co-Registrar
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or any other agent of the Company or such agent and, subject to Sections 7.8 and
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7.13 hereof, if operative, may otherwise deal with the Company and receive,
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collect, hold and retain collections from the Company with the same rights it
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would have if it were not the Trustee or any Authenticating Agent, any Paying
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Agent, the Registrar, Co-Registrar or Luxembourg Co-Registrar or any other agent
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of the Company.
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Section 7.5. Moneys Held by Trustee. Subject to the provisions of
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Section 11.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds, except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company, or the Trustee, shall be under any liability for interest on any
moneys received by it hereunder, except as otherwise agreed in writing with the
Company.
Section 7.6. Compensation and Indemnification of Trustee and Its
---------------------------------------------------
Prior Claim. The Company covenants and agrees to pay to the Trustee from time to
-----------
time, and the Trustee shall be entitled to, such compensation as shall be agreed
upon from time to time by the Company and the Trustee (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Company covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances properly incurred or made by or
on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, liability, damage,
claim or expenses, including taxes (other than taxes based on the income of the
Trustee) properly incurred without negligence or bad faith on its part,
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arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including any
liability which the Trustee may incur as a result of failure to withhold, pay or
report any tax, assessment or other governmental charge and the costs and
expenses of defending itself against or investigating any claim of liability in
the premises. The obligations of the Company under this Section to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture and the resignation or removal
of the Trustee. Such additional indebtedness shall be a senior claim to that of
the Notes upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular Notes,
and the Notes are hereby subordinated to such senior claim.
Section 7.7. Right of Trustee to Rely on Officers' Certificate, etc.
-------------------------------------------------------
Subject to Sections 7.1 and 7.2 hereof, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 7.8. Qualification of Trustee; Conflicting Interests.
-----------------------------------------------
Whether or not this Indenture is or is required to be qualified under the Trust
Indenture Act, if the Trustee has or shall acquire any conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such conflicting interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
Section 7.9. Corporate Trustee Required; Eligibility. There shall at
---------------------------------------
all times be a Trustee hereunder which shall be a corporation eligible to act as
Trustee under the Trust Indenture Act Section 310(a)(1) and the Argentine
Negotiable Obligations Law Section 13 and shall have a combined capital and
surplus of at least US$50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 7.10. Resignation and Removal; Appointment of Successor
-------------------------------------------------
Trustee. The Trustee, or any trustee or trustees hereafter appointed, may at any
-------
time resign by giving at least 30 days' prior written notice of resignation to
the Company and by mailing written notice thereof by first-class mail, postage
prepaid, to all Holders at their last addresses as they shall appear on the
Register. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee or trustees by written instrument in duplicate,
executed by authority of the Board of Directors of the Company, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of such
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notice of resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Holder who has
been a bona fide holder of a Note or Notes for at least six months may, subject
to the provisions of Section 6.12 hereof, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(a) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.8 hereof or the Trust Indenture Act Section 310(b) after written
request therefor by the Company or by any Holder who has been a bona fide
Holder for at least six months;
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.9 hereof and shall fail to resign after written
request therefor by the Company or by any Holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 7.11 hereof, unless the Trustee's duty to
resign is stayed as provided herein, any Holder who has been a bona fide Holder
for at least six months may on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. If the Trustee has been
removed and no successor trustee shall have been so appointed within 30 days
after delivery of such instrument to the Trustee so removed, the trustee so
removed may petition any court of competent jurisdiction for the appointment of
a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(b) The holders of a majority in aggregate principal amount of
Outstanding Notes may at any time remove the Trustee and appoint a successor
trustee by delivering to the Trustee so removed, to the successor trustee so
appointed and to the Company the evidence provided for in Section 8.1 hereof of
the action in that regard taken by the Holders.
(c) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to any of the provisions of this Section 7.10 shall
become effective until the acceptance of appointment by the successor trustee as
provided in Section 7.11 hereof.
Section 7.11. Acceptance of Appointment by Successor Trustee. Every
----------------------------------------------
successor trustee appointed as provided in Section 7.10 hereof shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, trusts, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee; but, nevertheless, on the
written request of the Company or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 11.4
hereof, duly assign, transfer and deliver to the
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successor trustee all Property and moneys at the time held by it hereunder and
shall execute and deliver an instrument transferring to such successor trustee
all such rights, powers, trusts, duties and obligations. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers and trusts. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.6 hereof.
If a successor trustee is appointed with respect to the Notes, the
Company, the predecessor Trustee and each successor trustee with respect to the
Notes shall execute and deliver an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor Trustee with
respect to the Notes as to which the predecessor Trustee is not retiring shall
continue to be vested in the predecessor Trustee, and shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.8 hereof and eligible under the
provisions of Section 7.9 hereof.
Upon acceptance of appointment by any successor trustee as provided in
this Section 7.11, the Company shall mail written notice thereof by first-class
mail, postage prepaid, to all holders of Notes for which such successor trustee
is acting as trustee at their last addresses as they shall appear in the
Register. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 7.10 hereof. If the Company
fails to mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be filed at
the expense of the Company.
Section 7.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business of Trustee. Any corporation into which the Trustee 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 Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be otherwise qualified under the
provisions of Section 7.8 hereof and eligible under the provisions of Section
7.9 hereof, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case, at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture, any Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee and deliver such Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes, and, in case at that time any Notes shall not have
been authenticated, any successor to the Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificate shall have the full force with
which a certificate of the Trustee is endowed anywhere
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in the Notes or this Indenture; provided that the right to adopt the certificate
of authentication of any predecessor Trustee or to authenticate Notes in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
Section 7.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
Whether or not this Indenture is or is required to be qualified under the Trust
Indenture Act, if and when the Trustee shall be or become a creditor of the
Company (or any other obligor under the Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 7.14. Appointment of Authenticating Agent. The Trustee may
-----------------------------------
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Notes issued upon original issue and upon
exchange, registration of transfer or pursuant to Section 3.9 hereof, and Notes
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Notes by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than US$50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become
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vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Variable Rate Notes due 2010 of Central Termica
Guemes S.A. described in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
By______________________________
Authorized Signatory
ARTICLE 8.
CONCERNING THE HOLDERS
Section 8.1. Evidence of Acts of Holders. Any request, demand,
---------------------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal
amount of the Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such specified percentage
of Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. The instrument or instruments
evidencing such action (and the action embodied therein and evidenced thereby)
are sometimes referred to herein as the "Act" of the Persons signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 7.1 and 7.2 hereof) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Article.
Without limiting the generality of the foregoing, unless otherwise
established in or pursuant to a resolution or established in one or more
indentures supplemental hereto, pursuant to Article Nine, a holder, including a
Depository that is a holder of a Global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by holders, and a Depository that is a
holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interests in any such Global Security through such Depository's
standing instructions and customary practices.
Section 8.2. Proof of Execution of Instruments and of Holding of
---------------------------------------------------
Notes. Subject to Sections 7.1 and 7.2 hereof, the execution of any instrument
-----
by a Holder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding of Notes shall be
proved by the Register or by a certificate of the Registrar.
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Section 8.3. Holders to Be Treated as Owners. The Company, the
-------------------------------
Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name any Note shall be registered upon the Register as the
absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest on such Note and for all other
purposes and, to the extent permitted by law, neither the Company or the Trustee
nor any agent of the Company or the Trustee shall be affected by any notice to
the contrary. All such payments so made to any such person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Note.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such Global Security, and such Depository may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depository and such holders
of beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depository as holder of any Note.
Section 8.4. Notes Owned by Company Deemed Not Outstanding. In
---------------------------------------------
determining whether the holders of the requisite aggregate principal amount of
Outstanding Notes have concurred in any direction, consent or waiver under this
Indenture, Notes which are owned by the Company or any other obligor on the
Notes with respect to which such determination is being made or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Notes with respect
to which such determination is being made shall be disregarded and deemed not to
be Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Notes which the Trustee knows are so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any other obligor on the
Notes. In case of a dispute as to such right, the advice of counsel selected by
the Trustee with due care shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all Notes, if any, known by the Company to be owned or
held by or for the account of any of the above-described persons and, subject to
Sections 7.1 and 7.2 hereof, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Notes not listed therein are Outstanding for the purpose of
any such determination.
ARTICLE 9.
SUPPLEMENTAL INDENTURES AND MEETINGS OF HOLDERS
Section 9.1. Supplemental Indentures Without Vote of Holders.
-----------------------------------------------
Without the vote of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in
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form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Notes (under the circumstances contemplated by Article 10);
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company;
(3) to secure the Notes;
(4) to comply with any requirements of the SEC in order to effect and
subsequently maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action pursuant to this clause (5) shall not
adversely affect the interests of the Holders in any material respect.
Section 9.2. Supplemental Indentures with Vote of Holders. With the
--------------------------------------------
affirmative vote of the Holders of not less than a majority in principal amount
of the Outstanding Notes present or represented at a meeting of such Holders at
which a quorum is present, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the affirmative vote of the Holder
of each Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any Additional Amount payable
thereon, or change the place of payment where, or the coin or currency in
which, any Note or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding
Notes, the consent of the Holders of which is required for the adoption of
a resolution or the quorum required at any meeting of Holders of Notes at
which a resolution is adopted or the percentage in principal amount of
Outstanding Notes the Holders of which are entitled to request the calling
of a meeting of Holders;
(3) reduce the principal amount of or interest on any Note including
discharge of repayment of principal of or interest on any Note;
(4) change the percentage rules established for adopting resolutions
at meetings of Holders or regarding the quorum necessary to constitute a
meeting;
(5) modify the number of Holders necessary to waive a past Event of
Default;
(6) change the currency for payment of principal of, or interest on,
any Note; or
(7) change the requirement to pay Additional Amounts.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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Section 9.3. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1
hereof) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures. Upon the execution of
---------------------------------
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every holder of Notes theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.5. Reference in Notes to Supplemental Indentures. Notes
---------------------------------------------
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Notes so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
Section 9.6. Meetings of Holders; Modification and Waiver. The
--------------------------------------------
Trustee or the Company shall, upon the request of the holder or holders of at
least 5% in aggregate principal amount of the Outstanding Notes, or the Company
or the Trustee at its discretion, may, call a meeting of the Holders at any time
and from time to time, to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by the Notes to be
made, given or taken by the Holders. With respect to all matters not
contemplated in the Indenture, meetings of Holders will be held in accordance
with the Argentine Negotiable Obligations Law. The meetings will be held in
Buenos Aires; provided, however, that the Company or the Trustee may determine
to hold any such meetings simultaneously in Buenos Aires, Salta and in The City
of New York by any means of telecommunication which permits the participants to
hear and to speak to each other. In any case, meetings shall be held at such
time and at such place in any such city as the Company or the Trustee shall
determine. If a meeting is being held pursuant to a request of Holders, the
agenda for the meeting shall be as determined in the request and such meeting
shall be convened within 40 days from the date such request is received by the
Trustee or the Company, as the case may be. Notice of any meeting of Holders
(which shall include the date, place and time of the meeting, the agenda
therefor and the requirements to attend) shall be given not less than 10 days
nor more than 30 days prior to the date fixed for the meeting in the Official
Gazette of Argentina and also in the manner provided in Section 12.4 hereof and
any publication thereof shall be for five consecutive Business Days in each
place of publication.
(a) Any Holder may attend the meeting either personally or by proxy.
Directors, officers, managers and employees of the Company cannot be appointed
as proxies. Holders of Notes who intend to attend a Holders meeting must notify
the Registrar of their intention to do so at least three days prior to the date
of such meeting.
(b) Decisions shall be made by the affirmative vote of the holders of
a majority in
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aggregate principal amount of the Outstanding Notes present or represented at a
meeting of such holders at which a quorum is present; provided, however, that
the unanimous affirmative vote of the Holders shall be required to adopt a valid
decision on
(1) changing the Stated Maturity of the principal of or any
installment of interest on any Note, or reduce the principal amount thereof
or the rate of interest thereon or any Additional Amount payable thereon,
or change the place of payment where, or the coin or currency in which, any
Note or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date);
(2) reducing the percentage in principal amount of the Outstanding
Notes, the consent of the Holders of which is required for the adoption of
a resolution or the quorum required at any meeting of Holders at which a
resolution is adopted or the percentage in principal amount of Outstanding
Notes the Holders of which are entitled to request the calling of a meeting
of Holders;
(3) modifying any of the provisions of this Section or Section 6.10,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the holder of each Outstanding Note affected thereby.
The quorum at any meeting called to adopt a resolution will be persons
holding or representing at least a majority in aggregate principal amount of the
Outstanding Notes; provided, however, that at any such reconvened meeting
adjourned for lack of the requisite quorum, the quorum will be persons holding
or representing at least 25% in aggregate principal amount of the Outstanding
Notes. Except as provided above, any modifications, amendments or waivers to the
terms and conditions of the Notes will be conclusive and binding on all Holders,
whether or not present at any meeting, and whether or not notation of such
modifications, amendments or waivers is made upon the Notes if duly passed at a
meeting convened and held in accordance with the provisions of the Argentine
Negotiable Obligations Law.
ARTICLE 10.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.1. Successor Substituted. Upon any consolidation of the
---------------------
Company with, or merger of the Company into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or substantially all of the
Properties and assets of the Company as an entirety in accordance with Section
10.1, the Company's successor Corporation shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Notes.
ARTICLE 11.
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
Section 11.1. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall, upon the Company's request, cease to be of less further effect (except as
to any surviving rights of registration of transfer or exchange of Notes herein
expressly provided for and except as
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otherwise specifically provided in this Indenture) and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than (Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.9 hereof and Notes for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 11.4
hereof) have been delivered to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust for the purpose an amount sufficient
to pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for principal,
interest and Additional Amounts, if any, to the date of such deposit
(in the case of Notes which have become due and payable);
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article, the obligations of the Company to the Trustee under Section 7.6
hereof, the obligations of the Company to the Principal Paying Agent and any
other Paying Agent under Section 3.1 hereof, the obligations of the Company to
any Authenticating Agent under Section 7.14 hereof and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 11.2 and Section 11.4
hereof shall survive.
Section 11.2. Application of Trust Money. Subject to the provisions
--------------------------
of Section 11.4 hereof, all money deposited with the Trustee pursuant to Section
11.1 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal,
interest and Additional Amounts, if any, for whose payment such money has been
deposited with the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
Section 11.3. Repayment of Moneys Held by Paying Agent. The Company
----------------------------------------
may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Section 11.4. Return of Moneys Held by Trustee and Paying Agent
-------------------------------------------------
Unclaimed
---------
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for Three Years. Any money deposited with the Trustee or any Paying Agent, or
---------------
then held by the Company, in trust for the payment of the principal of, interest
or Additional Amounts, if any, on any Note and remaining unclaimed for three
years after such principal, interest or Additional Amounts, if any, has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the holder of such
Note shall thereafter, as an unsecured genera1 creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, (1) in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in The City of New York, and (2) in a newspaper published in
the Spanish language and of general circulation in Argentina, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Company.
ARTICLE 12.
MISCELLANEOUS PROVISIONS
Section 12.1. Incorporators, Shareholders, Officers and Directors of
------------------------------------------------------
Company Exempt from Individual Liability. Notwithstanding the provisions of
----------------------------------------
Article 34 of the Argentine Negotiable Obligations Law, no recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Note, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Notes by the Holders thereof and as
part of the consideration for the issuance of the Notes.
Section 12.2. Provisions of Indenture for the Sole Benefit of Parties
-------------------------------------------------------
and Holders. Nothing in this Indenture or in the Notes, expressed or implied,
-----------
shall give or be construed to give to any Person, other than the parties hereto
and their successors hereunder and the holders of the Notes, any benefit or any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors hereunder and of
the holders of the Notes.
Section 12.3. Successors and Assigns of Company Bound by Indenture.
----------------------------------------------------
All covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
Section 12.4. Notices, etc., to Trustee, Co-Registrar, Paying Agents,
-------------------------------------------------------
Registrar, Luxembourg Co-Registrar, Company and Holders; Waiver. Any request,
---------------------------------------------------------------
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee, Co-Registrar or Principal Paying Agent shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee, Co-Registrar or Principal Paying Agent
at its Corporate Trust Office, currently located at 101 Barclay Street,
Floor 21W, New York, New York 10286, Attention:
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Corporate Trust Administration, Facsimile 01-212-495-1784, or
(2) the Registrar or Paying Agent in Argentina shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Registrar or such Paying Agent at its principal office, currently
located at [Se______] 53/rd/, 8/th/ Floor, (1008) 9th Floor, Buenos Aires,
Argentina, Attention: Carlos Peralta, Facsimile 54-_______.
(3) the Luxembourg Co-Registrar or Paying Agent in Luxembourg shall be
effective for every purpose hereunder if made, given, furnished or filed in
writing to or with the Luxembourg Co-Registrar or such Paying Agent at its
principal office currently located at 43, Boulevard Royal, L-2955
Luxembourg, Attention: ______________, Facsimile 0352-______, or
(4) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made , given, furnished or filed in writing to or with the Company at its
principal office at Avenida Reyes Catolicos 1330, Salta, Argentina,
Attention: Carlos Peralta, Facsimile 54-387-439-2761 or at any other
address and facsimile previously furnished in writing to the Trustee by the
Company.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Register, in each case not
later than the latest date and not earlier than the earliest date prescribed
hereunder for the giving of such notice and, while there are Holders domiciled
in Argentina, published in a general newspaper having general circulation in
Argentina and in the cases required by Argentine law in the Official Gazette of
Argentina. Any notice so mailed shall be deemed to have been given on the date
of its receipt. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute sufficient notification for every purpose hereunder.
Section 12.5. Officers' Certificates and Opinions of Counsel;
-----------------------------------------------
Statements to Be Contained Therein. Upon any application or demand by the
----------------------------------
Company to the Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the
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Trustee with respect to compliance with a condition or covenant provided for in
this Indenture (other than the Officers' Certificate provided pursuant to
Section 5.3 hereof) shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto, (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with, and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, upon the certificate, statement or opinion of or
representations by an officer or officers of the Company, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of an officer of
the Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Company unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Section 12.6. Payments Due on Saturdays, Sundays and Holidays. In any
-----------------------------------------------
case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Note shall not be a Business Day, then (notwithstanding any other provision of
this Indenture or of the Notes) payment of principal, interest or Additional
Amounts, if any, need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity, provided that
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
Section 12.7. Conflict with Trust Indenture Act. If this Indenture at
---------------------------------
any time is or is required to be qualified under the Trust Indenture Act and any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If this Indenture at any time is
or is required to be qualified under the Trust Indenture Act and any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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Section 12.8. Governing Law. The Argentine Negotiable Obligations
-------------
Law, Companies Law No. 19,550 of Argentina, as amended, and other applicable
Argentine laws govern the capacity and corporate authorization of the Company to
execute and deliver this Indenture. Notwithstanding the foregoing, this
Indenture shall be governed by and construed in accordance with the laws of the
State of New York, United States.
Section 12.9. Consent to Jurisdiction and Service of Process. The
----------------------------------------------
Company consents to the non-exclusive jurisdiction of any court of the State of
New York or any United States federal court sitting in the Borough of Manhattan,
New York City, New York, United States, and any appellate court from any
thereof, and waives any immunity from the jurisdiction of such courts over any
suit, action or proceeding that may be brought in connection with this Indenture
or the Notes. The Company irrevocably waives, to the fullest extent permitted by
law, any objection to any suit, action, or proceeding that may be brought in
connection with this Indenture or the Notes in such courts whether on the
grounds of venue, residence or domicile or on the grounds that any such suit,
action or proceeding has been brought in an inconvenient forum. The Company
agrees that final judgment in any such suit, action or proceeding brought in
such court shall be conclusive and binding upon the Company and may be enforced
in any court to the jurisdiction of which the Company is subject by a suit upon
such judgment; provided that service of process is effected upon the Company in
the manner provided by this Indenture. Notwithstanding the foregoing, any suit,
action or proceeding brought in connection with this Indenture or the Notes may
be instituted in any competent court in Argentina.
(a) The Company agrees that service of all writs, process and
summonses in any suit, action or proceeding brought in connection with this
Indenture or the Notes against the Company in any court of the State of New York
or any United States federal court sitting in the Borough of Manhattan, New York
City may be made upon CT Corporation System at 111 Eighth Avenue, New York, New
York 10011, whom the Company irrevocably appoints as its authorized agent for
service of process. The Company represents and warrants that CT Corporation
System has agreed to act as the Company's agent for service of process. The
Company agrees that such appointment shall be irrevocable so long as any of the
Notes remain outstanding or until the irrevocable appointment by the Company of
a successor in The City of New York as its authorized agent for such purpose and
the acceptance of such appointment by such successor. The Company further agrees
to take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. If CT Corporation System shall cease to act as the
Company's agent for service of process, the Company shall appoint without delay
another such agent and provide prompt written notice to the Trustee of such
appointment. With respect to any such action in any court of the State of New
York or any United States federal court in the Borough of Manhattan, New York
City, service of process upon CT Corporation System, as the authorized agent of
the Company for service of process, and written notice of such service to the
Company, shall be deemed, in every respect, effective service of process upon
the Company.
(b) Nothing in this Section shall affect the right of any party to
serve legal process in any other manner permitted by law or affect the right of
any party to bring any action or proceeding against any other party or its
property in the courts of other jurisdictions.
Section 12.10. Counterparts. This Indenture may be executed in any
------------
number of counterparts, each of which shall be deemed an original; but all such
counterparts shall together constitute but one and the same instrument.
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Section 12.11. Effect of Headings. The Article and section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 12.12. Severability. In case any provision in this Indenture
------------
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
ARTICLE 13.
REDEMPTION OF NOTES
Section 13.1. Tax Redemption. (a) If at any time after the date of
--------------
this Indenture as a result of any change in, or amendment to, the laws or
regulations of Argentina or of any political subdivision thereof or any
authority therein or thereof having power to tax or as a result of any change in
the application or official interpretation of such laws or regulations, which
change or amendment becomes effective after the date of this Indenture, the
Company becomes obligated to pay any Additional Amounts (other than Additional
Amounts arising out of the payment by the Company or on its behalf of any
personal property tax in respect of the Notes) and such obligations cannot be
avoided by the Company taking reasonable measures available to it, then the
Notes will be redeemable as a whole (but not in part), at the option of the
Company, at any time upon not less than 30 nor more than 60 days' notice given
to the Holders at their principal amount together with accrued interest thereon
to the date fixed for redemption. If (1) the Company becomes responsible, prior
to the maturity of the Notes, for the payment of any personal property tax in
respect of the Notes at a rate at least equal to the current applicable rate as
provided in Argentine law 24,468, (2) such personal property tax payable by the
Company in respect of the Notes for any year represents more than 50% of the
total personal property tax that would be payable in respect of the outstanding
Notes if the holders of all of such Notes were foreign legal entities subject to
such tax, and (3) such obligation cannot be avoided by the Company's taking
reasonable measures available to it, then the Notes will be redeemable as a
whole (but not in part), at the option of the Company, at any time upon not less
than 30 nor more than 60 days' notice given to the Holders at their principal
amount together with accrued interest thereon to the date fixed for redemption.
The Company shall also pay to the Holders on the Redemption Date any Additional
Amounts which would otherwise be payable.
(b) In order to effect a redemption of Notes pursuant to Section
13.1(a) hereof, the Company shall deliver to the Trustee at least 45 days
prior to the Redemption Date: (1) a certificate signed by a duly authorized
officer of the Company stating that the obligation to pay Additional
Amounts cannot be avoided by the Company's taking reasonable measures
available to it, and (2) an opinion of independent legal counsel of
recognized standing to the effect that the Company has or will become
obligated to pay Additional Amounts and, with respect to any such
Additional Amounts not related to a personal property tax in respect of the
Notes, that the obligation so to pay such Additional Amounts resulted or
will result from the change or amendment referred to in the first sentence
of Section 13.1(a). No notice of redemption may be given earlier than 60
days prior to the earliest date on which the Company would be obliged to
pay such Additional Amounts were a payment in respect of the Notes then due
or, in the case of Additional Amounts related to a personal property tax in
respect of the Notes, earlier than 60 days prior to the earliest date on
which the Company would be obligated to pay such personal property tax. The
certificate shall additionally specify the Redemption Date and
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all other information necessary to the publication and mailing by the
Trustee of notices of such redemption. The Trustee shall be entitled to
rely conclusively upon the information so furnished by the Company in such
certificate and shall be under no duty to check the accuracy or
completeness thereof. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the payment or payments
referred to therein to the Trustee.
Section 13.1. Optional Redemption. (a) The Company may redeem the
-------------------
Notes, in whole or in part, at any time and from time to time, after the date of
this Indenture at the option of the Company, upon prior written notice as
provided for in this Section 13.2, at a redemption price equal to the principal
amount of the Notes called for redemption, plus accrued interest to the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the related interest payment date).
(b) If the Company elects to redeem all or a portion of the Notes
pursuant to this Section 13.2, it shall notify:
(1) the Trustee in writing at least 60 days prior to the
Redemption Date, unless the Trustee consents to a shorter period, including
the identity and principal amount of the Notes called for redemption; and
(2) the Holders of record in writing at least 30, but no
more than 60, days prior to the Redemption Date, including:
(A) the Redemption Date;
(B) the redemption price;
(C) the name and address of the Paying Agent;
(D) that the Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(E) if fewer than all of the outstanding Notes are to be
redeemed, the identification and principal amounts of the particular Notes
to be redeemed; and
(F) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on the Notes (or
portion thereof) called for redemption ceases to accrue on and after the
Redemption Date.
At the Company's request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. In such event, the Company shall
provide the Trustee with the information required by this Section. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
Section 13.2. Deposit of Redemption Price. Prior to any Redemption
---------------------------
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 11.4 hereof) an amount of money sufficient to pay the
Redemption Price of, any applicable Additional Amounts, and (except if the
Redemption Date shall be an Interest Payment Date) any applicable accrued
interest on, all the Notes which are to be redeemed on that date.
Section 13.3. Notes Payable on Redemption Date. Notice of redemption
--------------------------------
having been given as aforesaid, the Notes so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Notes shall cease to
bear interest. Upon surrender of any such Note for redemption in accordance with
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said notice, such Note shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the holders of such Notes, or one or more Predecessor
Notes, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.6 hereof.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate provided by the Note.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
CENTRAL TERMICA GUEMES S.A.
By_____________________________
Name: Carlos Peralta
Title: President
THE BANK OF NEW YORK,
Trustee, Principal Paying Agent
and Co-Registrar
By_____________________________
Name:
Title:
BANCO RIO DE LA PLATA S.A.,
Registrar and [Paying Agent]
By_____________________________
Name:
Title:
[KREDIETBANK S.A. LUXEMBOURGEOISE],
Luxembourg Co-Registrar and Paying Agent
By_____________________________
Name:
Title:
* This legend shall be borne by Global Security.
-
<PAGE>
** Notes represented by the Global Security shall bear a CINS or CUSIP number
--
and an ISIN number.
