EXECUTION COPY
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FOURTH SUPPLEMENTAL INDENTURE
among
PECOM ENERGIA S.A.,
as Issuer,
The Bank of New York,
as Trustee, Co-Security Registrar,
Authenticating Agent, Paying Agent and Transfer Agent in New York,
Banco Rio de la Plata S.A.,
as Security Registrar, Argentine Paying Agent and Transfer
Agent in Argentina,
JPMorgan Chase,
as Administrative Agent and Calculation Agent,
Long Term Floating Rate Working Capital Series M Notes
Dated as of October 4, 2002
(Supplemental to Amended and Restated Indenture, dated as of August 1, 2002)
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TABLE OF CONTENTS
Page
ARTICLE 1
1. RELATION TO INDENTURE; DEFINITIONS................................................................... 2
1.1 Relation to Indenture....................................................................... 2
1.2 Definitions................................................................................. 2
1.3 Accounting Terms and Determinations......................................................... 3
ARTICLE 2
2. THE LONG TERM WORKING CAPITAL SERIES NOTES........................................................... 3
2.1 The Long Term Working Capital Series Notes.................................................. 3
2.2 Forms of Long Term Working Capital Series Notes............................................. 4
2.3 Interest Rates.............................................................................. 4
2.4 Redemption.................................................................................. 6
2.5 General Provisions as to Payments........................................................... 12
2.6 Computation of Interest..................................................................... 13
2.7 LIBOR Disruption............................................................................ 13
2.8 Additional Amounts - Taxes.................................................................. 13
2.9 Illegality.................................................................................. 14
2.10 Yield Protection............................................................................ 15
2.11 Increased Costs and Reduced Return.......................................................... 15
2.12 No Defeasance of Long Term Working Capital Series Notes..................................... 17
2.13 Ranking of Long Term Working Capital Series Notes........................................... 17
2.14 Certain Rights While the Notes are in Global Form........................................... 17
2.15 Special Transfer Provisions................................................................. 18
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ARTICLE 3
3. COVENANTS............................................................................................ 20
3.1 Information................................................................................. 20
3.2 Use of Proceeds............................................................................. 21
3.3 CNV Filing.................................................................................. 21
3.4 Money for Security Payments to be Held in Trust............................................. 21
3.5 Currency of Payment......................................................................... 21
ARTICLE 4
4. REPRESENTATIONS AND WARRANTIES....................................................................... 21
ARTICLE 5
5. DEFAULTS............................................................................................. 22
5.1 Events of Default........................................................................... 22
5.2 Waiver of Past Defaults..................................................................... 23
5.3 Notice of Defaults.......................................................................... 23
ARTICLE 6
6. THE LONG TERM WORKING CAPITAL SERIES AGENTS AND THE TRUSTEE.......................................... 23
6.1 Appointment and Authorization............................................................... 23
6.2 Agent and Affiliates........................................................................ 24
6.3 Action by Long Term Working Capital Series Agents........................................... 25
6.4 Consultation; Additional Agents............................................................. 25
6.5 Liability of Long Term Working Capital Series Agents........................................ 25
6.6 Successor Agent............................................................................. 26
6.7 Application of Money Collected.............................................................. 27
6.8 Removal of Trustee.......................................................................... 27
6.9 Indemnification............................................................................. 27
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6.10 Survival.................................................................................... 28
ARTICLE 7
7. SECURITYHOLDERS' LISTS AND COMPANY INFORMATION....................................................... 28
7.1 Preservation of Information; Communications to Holders...................................... 28
ARTICLE 8
8. REDEMPTION OF SECURITIES............................................................................. 29
8.1 Selection of Long Term Working Capital Series Notes to be Redeemed.......................... 29
8.2 Purchase of Securities by the Issuer........................................................ 29
ARTICLE 9
9. MISCELLANEOUS........................................................................................ 29
9.1 Incorporation of Indenture.................................................................. 29
9.2 Notices..................................................................................... 29
9.3 No Waivers.................................................................................. 30
9.4 Amendments and Waivers; Supplemental Indenture.............................................. 30
9.5 Judgment Currency........................................................................... 30
9.6 Waiver of Jury Trial........................................................................ 31
9.7 Submission to Jurisdiction; Service of Process; Waiver of Arraigo........................... 31
9.8 Waiver of Sovereign Immunity................................................................ 32
9.9 Knowledge of Trustee........................................................................ 32
9.10 Modification of the Indenture............................................................... 33
9.11 Governing Law............................................................................... 33
9.12 Right of Set-Off............................................................................ 33
9.13 Counterparts................................................................................ 33
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Exhibits
Exhibit A - Form of Long Term Working Capital Series Global Note
Exhibit B - Form of Long Term Working Capital Series Definitive Note
Exhibit C - Form of Certificate to Be Delivered in Connection with Transfers
Pursuant to Regulation S
Annexes
Annex A - Index of Defined Terms
Annex B - Representations and Warranties
Annex C - Covenants of the Issuer
Annex D - Events of Default
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Fourth Supplemental Indenture (this "Long Term Working Capital
Series Supplemental Indenture") dated as of October 4, 2002 among (i) PECOM
ENERGIA S.A., a sociedad anonima organized under the laws of the Republic of
Argentina (the "Issuer"), (ii) The Bank of New York, as Trustee (together with
its successors in trust hereunder, the "Trustee"), Co-Security Registrar,
Authenticating Agent, Paying Agent (in such capacity, acting on behalf of any
one or more Long Term Working Capital Series Holders, together with its
successors in such capacity, the "Paying Agent") and Transfer Agent, (iii) Banco
Rio de la Plata S.A., as Security Registrar, Paying Agent in Argentina (in such
capacity, acting on behalf of any one or more Long Term Working Capital Series
Holders, together with its successors in such capacity, the "Argentine Paying
Agent") and Transfer Agent in Argentina, and (iv) JPMorgan Chase, as
Administrative Agent (in such capacity, acting on behalf of any one or more Long
Term Working Capital Series Holders, together with its successors in such
capacity, the "New Notes Administrative Agent") and Calculation Agent (in such
capacity, acting on behalf of any one or more Long Term Working Capital Series
Holders, together with its successors in such capacity, the "Calculation
Agent").
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee have executed and
delivered an Amended and Restated Indenture dated as of August 1, 2002 (the
"Base Indenture," and as the same may be amended or supplemented from time to
time, including by this Long Term Working Capital Supplemental Indenture, the
"Indenture");
WHEREAS, Section 901 of the Base Indenture permits the Issuer
and the Trustee to enter into an indenture supplemental to the Base Indenture to
provide for the issuance of and to establish the form and terms and conditions
of any additional Series of Securities;
WHEREAS, Sections 201, 202 and 901 of the Base Indenture
permit the form of security of each additional Series of Securities to be
established pursuant to an indenture supplemental to the Base Indenture;
WHEREAS, Section 301 of the Base Indenture permits certain
terms of any additional Series of Securities to be established pursuant to an
indenture supplemental to the Base Indenture;
WHEREAS, pursuant to a resolution of the shareholders of the
Issuer adopted on April 8, 1998 and a resolution of the Board of Directors of
the Issuer adopted on April 17, 1998, the Issuer has established a Medium-Term
Note program for the issuance of Securities (and such program has been approved
by the CNV pursuant to certificate 202 dated May 4, 1998, and certificate of 290
dated July 3, 2002), in accordance with which the Issuer is authorized to issue
from time to time up to an aggregate principal amount outstanding at any time of
up to US$2,500,000,000 of Securities (including Long Term Working Capital Series
Notes) in one or more series;
WHEREAS, pursuant to resolutions of the Board of Directors of
the Issuer adopted on April 17, 1998 and September 18, 2002, the Issuer has
authorized the issue of the Long Term Working Capital Series Notes; and
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WHEREAS, all things necessary to make this Long Term Working
Capital Series Supplemental Indenture a valid agreement of the Issuer and the
Trustee and a valid amendment and supplement to the Base Indenture have been
done;
NOW, THEREFORE, THIS LONG TERM WORKING CAPITAL SERIES SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the issuance of
the Long Term Working Capital Series Notes provided for herein, it is mutually
covenanted and agreed, for the equal and proportionate benefit of the Long Term
Working Capital Series Holders, as follows:
ARTICLE 1
1. RELATION TO INDENTURE; DEFINITIONS
1.1 RELATION TO INDENTURE
This Long Term Working Capital Series Supplemental Indenture
constitutes an integral part of the Indenture (the provisions of which, as
modified by this Long Term Working Capital Series Supplemental Indenture, shall
only apply to the Long Term Working Capital Series Notes) in respect of the Long
Term Working Capital Series Notes but shall not modify, amend or otherwise
affect the Base Indenture insofar as it relates to any other Series of Notes or
affect in any manner the terms and conditions of the Notes of any other Series.
1.2 DEFINITIONS
For all purposes of this Long Term Working Capital Series
Supplemental Indenture, the capitalized terms used herein (i) which are defined
herein or in the attached Annex A have the meanings assigned thereto herein or
in the attached Annex A, and (ii) which are not defined herein or in the
attached Annex A, have the meanings assigned thereto in the Base Indenture.
1.2.1 In this Long Term Working Capital Series Supplemental
Indenture, unless otherwise indicated and unless otherwise required by the
context, the singular includes the plural and plural the singular; words
importing any gender include each other gender; references to statutes or
regulations are to be construed as including all statutory or regulatory
provisions consolidating, amending or replacing the statute or regulation
referred to; references to "writing" include printing, typing, lithography and
other means of reproducing words in a tangible visible form; the words
"including", "includes" and "include" shall be deemed to be followed by the
words "without limitation"; the words "will" and "shall" shall be deemed to be
interchangeable; references to articles, sections (or subdivisions of sections),
an annex, an appendix or schedules are to this Long Term Working Capital Series
Supplemental Indenture; references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments, extensions and
other modifications to those instruments (without, however, limiting any
prohibition on any such amendments, extensions and other modifications by the
terms of any Note Document); and references to Persons include their respective
permitted assigns and successors and, in the case of Governmental Authorities,
Persons succeeding to their respective
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functions and capacities. The division of this Long Term Working Capital Series
Supplemental Indenture into Articles and Sections and the insertion of an index
and headings are for convenience of reference only and shall not affect the
construction or interpretation of this Long Term Working Capital Series
Supplemental Indenture. The terms "this Long Term Working Capital Series
Supplemental Indenture", "herein", "hereof", "hereunder" and similar expressions
refer to this entire Long Term Working Capital Series Supplemental Indenture,
including any Annex, Appendix, Exhibit and Schedule hereto, and not to any
particular Article, Section, paragraph, Annex, Appendix, Exhibit, Schedule or
other portion hereof and include any agreement supplemental hereto. Reference to
the "end of a day" shall mean immediately prior to midnight on such day. Except
as otherwise expressly provided, Governmental Rules shall mean such Governmental
Rules as the same may from time to time be supplemented, amended, modified,
restated or replaced.
1.3 ACCOUNTING TERMS AND DETERMINATIONS
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder shall be
prepared in accordance with Argentine GAAP, applied on a basis consistent
(except for changes concurred in by the Issuer's independent public accountants)
with the most recent audited consolidated financial statements of the Issuer and
its Subsidiaries delivered to the Long Term Working Capital Series Holders.
ARTICLE 2
2. THE LONG TERM WORKING CAPITAL SERIES NOTES
2.1 THE LONG TERM WORKING CAPITAL SERIES NOTES
2.1.1 Pursuant to Sections 201 and 301 of the Base
Indenture, the Issuer hereby creates a series of notes designated the "Long Term
Floating Rate Working Capital Series M Notes, due October 4, 2007" (the "Long
Term Working Capital Series Notes"). The Long Term Working Capital Series Notes
shall be limited to US$181,824,000 in aggregate principal amount and shall be
issued on a single date, which will be the date of the Takedown with respect to
the Long Term Working Capital Series Notes (except for Long Term Working Capital
Series Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Long Term Working Capital Series Notes
pursuant to Sections 304, 305, 306 and 307 of the Base Indenture). The Long Term
Working Capital Series Notes shall be dated the date of the Takedown with
respect to the Long Term Working Capital Series Notes. The principal of the Long
Term Working Capital Series Notes shall be payable on the following dates in the
amounts indicated (which amounts shall be reduced ratably across their scheduled
maturities as a result of the application of any prepayments pursuant to Section
2.4):
- -----------------------------------
DATE AMOUNT
- -----------------------------------
January 4, 2004 $ 4,545,600.00
- -----------------------------------
April 4, 2004 $ 11,818,560.00
- -----------------------------------
July 4, 2004 $ 11,818,560.00
- -----------------------------------
October 4, 2004 $ 11,818,560.00
- -----------------------------------
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- -----------------------------------
January 4, 2005 $ 11,818,560.00
- -----------------------------------
April 4, 2005 $ 11,818,560.00
- -----------------------------------
July 4, 2005 $ 11,818,560.00
- -----------------------------------
October 4, 2005 $ 11,818,560.00
- -----------------------------------
January 4, 2006 $ 11,818,560.00
- -----------------------------------
April 4, 2006 $ 11,818,560.00
- -----------------------------------
July 4, 2006 $ 11,818,560.00
- -----------------------------------
October 4, 2006 $ 11,818,560.00
- -----------------------------------
January 4, 2007 $ 11,818,560.00
- -----------------------------------
April 4, 2007 $ 11,818,560.00
- -----------------------------------
July 4, 2007 $ 11,818,560.00
- -----------------------------------
October 4, 2007 $ 11,818,560.00
- -----------------------------------
provided that the final principal installment shall be in an amount equal to the
aggregate principal amount of the Long Term Working Capital Series Notes
outstanding on the date of such payment, which shall be no later than the
Maturity Date.
2.2 FORMS OF LONG TERM WORKING CAPITAL SERIES NOTES
2.2.1 The Long Term Working Capital Series Notes hereunder
will be issued at par, without coupons, in denominations of $1,000,
substantially in the form of Exhibit A hereto in the form of one or more DTC
Restricted Global Securities and Regulation S Global Securities, in accordance
with Section 202 of the Base Indenture. The Long Term Working Capital Series
Notes shall be negotiable obligations under the Negotiable Obligations Law.
2.2.2 At any time after the issuance of the Long Term
Working Capital Series Notes in the form of Global Securities, any Long Term
Working Capital Series Holder may, by written notice to the Trustee, request
that all or part of its interest in a Global Security be exchanged for one or
more Definitive Securities, substantially in the form of Exhibit B hereto,
pursuant to Subsection 204(c)(iv) of the Base Indenture, and the Issuer will
execute and Trustee will authenticate such Definitive Securities pursuant to
Subsection 204(c)(v) of the Base Indenture. In addition, the Long Term Working
Capital Series Notes shall be issued in the form of Definitive Registered
Securities pursuant to the terms of Section 204(c)(i) in the Base Indenture.
2.3 INTEREST RATES
2.3.1 Each Long Term Working Capital Series Note shall bear
interest on the outstanding principal amount thereof, for each day, other than a
day during an Alternate Rate Period, during the applicable Interest Period, at a
rate per annum equal to the Applicable LIBOR Rate applicable to such Interest
Period as determined by the Calculation Agent in accordance with the provisions
of the Indenture (including the definition of "LIBOR" in this Long Term Working
Capital Series Supplemental Indenture) which determination shall be conclusive
absent manifest error. The interest accrued in respect of each Long Term Working
Capital Series Note pursuant to this Section 2.3 as of each Payment Date shall
be payable on such Payment Date.
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2.3.2 Each Long Term Working Capital Series Note shall bear
interest on the outstanding principal amount thereof, for each day that falls in
any Alternate Rate Period during any Interest Period, at a rate per annum equal
to the Alternative Basis Interest Rate as determined by the Calculation Agent in
accordance with the provisions of the Indenture.
2.3.3 Any overdue amount of Note Payments with respect to
the Long Term Working Capital Series Notes shall (without duplication of any
amounts payable under clauses 2.3.1 or 2.3.2 of this Section 2.3) bear interest,
payable on demand (such interest, "Default Interest"), (i) for each day, other
than a day during an Alternate Rate Period, until (and to the extent) Satisfied
in Cash, at a rate per annum equal to the sum of the Applicable LIBOR Rate then
in effect plus 2% and (ii) on and after the Maturity Date until such amount
shall be Satisfied in Cash in full at a rate per annum equal at all times to the
sum of (A) the Applicable LIBOR Rate computed for the period determined by the
New Notes Administrative Agent beginning with the Maturity Date and for
successive one-month periods as though each were an Interest Period plus (B) 2%.
2.3.4 (a) The initial Interest Period shall commence on the
date of the Takedown and shall end as provided in the definition of Interest
Period. Thereafter, each Interest Period shall commence as provided in the
definition of Interest Period and end on a Payment Date, provided that the last
Interest Period shall end on the Maturity Date.
(b) Prior to the commencement of any Interest Period, the
Calculation Agent will notify the Issuer, the Trustee and the Long Term
Working Capital Series Holders of (i) the Applicable LIBOR Rate or
Alternative Basis Interest Rate for such Interest Period and (ii) the
total aggregate amount of interest payable on the next Payment Date.
2.3.5 The Calculation Agent shall determine the interest
rate applicable in respect of each Interest Period for each day during an
Alternate Rate Period in accordance with the following provisions:
(a) upon delivery of an Alternate Rate Notice under
Section 2.7(a), the alternative basis for computing interest (the
"Alternative Basis Interest Rate"), which shall be payable in
connection with such Interest Period shall be the greater of (x) the
Federal Funds Rate plus 0.5% or (y) the Prime Rate, plus in each case
the Applicable Margin; or
(b) if the Alternate Rate Notice was delivered under
Section 2.7(b), then during the 30 days next succeeding the giving of
an Alternate Rate Notice, the Issuer and the Majority Holders shall
negotiate in good faith in order to arrive at a mutually satisfactory
alternative basis for computing interest (the "Alternative Basis
Interest Rate"), which shall be payable in connection with such
Interest Period in order to compensate the Long Term Working Capital
Series Holders for the inadequate interest rate resulting from the
occurrence of the conditions specified in Section 2.7(b). If within
such 30-day period, the Issuer and the Majority Holders agree in
writing upon the Alternative Basis Interest Rate, such Alternative
Basis Interest Rate shall be payable to all Long Term Working Capital
Series Holders in respect of their holdings of Long Term Working
Capital Series Notes from the commencement of, and only for, the
duration of
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such Interest Period. If the Issuer and the Majority Holders fail to
agree upon such Alternative Basis Interest Rate within such 30-day
period, the Alternative Basis Interest Rate in connection with such
Interest Period payable to each Long Term Working Capital Series Holder
for such Interest Period shall be such Alternative Basis Interest Rate
as such Long Term Working Capital Series Holder shall determine (in a
certificate delivered by such Long Term Working Capital Series Holder
to the Trustee setting forth the basis of the computation of such
amount, which certificate shall be conclusive and binding for all
purposes, absent manifest error) to be necessary to compensate such
Long Term Working Capital Series Holder for its cost of obtaining (in
good faith and using commercially reasonable efforts to minimize the
interest cost to the Issuer) as of the commencement of such Interest
Period funds for such Interest Period in an amount equal to the
principal amount of such Long Term Working Capital Series Holder's
outstanding Long Term Working Capital Series Notes plus the Applicable
Margin. The Trustee shall notify the Issuer and the Calculation Agent
of each such determination as promptly as practicable.
As the negotiations described in the preceding subparagraph of
this Section 2.3.5 and any resulting Alternative Basis Interest Rate are
intended for the direct benefit of the Long Term Working Capital Series Holders,
the Issuer expressly covenants and acknowledges (i) that as a result of any such
negotiations following the delivery of an Alternate Rate Notice under Section
2.7(b), the Long Term Working Capital Series Holders shall not receive a lower
rate of interest on the Long Term Working Capital Series Notes than the Long
Term Working Capital Series Holders would have received had there not been such
negotiations, and (ii) that such negotiations shall in no event cause, justify
or give rise to any delay or reduction in the payment of interest, principal or
other amounts payable by the Issuer under the Indenture or the Long Term Working
Capital Series Notes.
The Calculation Agent shall give prompt written notice to the
Issuer, the Trustee and the Long Term Working Capital Series Holders of the rate
of interest so determined, and its determination thereof shall be prima facie
evidence thereof, absent manifest error.
2.4 REDEMPTION
2.4.1 OPTIONAL REDEMPTION
The Issuer may (a) upon at least three (3) Eurodollar Business
Days' irrevocable notice to the New Notes Administrative Agent, the Calculation
Agent and the Paying Agent, repay the Long Term Working Capital Series Notes
outstanding on the last day of any Interest Period, in whole or in part, at a
redemption price of 100% of the principal amount thereof plus accrued and unpaid
interest thereon to the date of redemption plus all other accrued and unpaid
amounts under the Note Documents in respect of such Long Term Working Capital
Series Notes, if any, (b) at any time upon at least three (3) Eurodollar
Business Days' irrevocable notice redeem the Long Term Working Capital Series
Notes in whole, or in part, at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest thereon to the date of
redemption plus LIBOR Funding Costs, if any, plus all other accrued and unpaid
amounts under the Note Documents in respect of such Long Term Working Capital
Series Notes (including without limitation, any Additional Amounts), if any, and
(c) redeem the Long Term Working
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Capital Series Notes at any time if required so to do in order to comply with
applicable law or if the Issuer would be required to pay any Additional Amounts,
at a redemption price of 100% of the principal amount thereof plus accrued and
unpaid interest thereon to the date of redemption plus LIBOR Funding Costs, if
any, plus all other accrued and unpaid amounts under the Note Documents in
respect of such Long Term Working Capital Series Notes (including, without
limitation, any Additional Amounts), if any; provided that each partial
prepayment shall be in respect of an aggregate principal amount of US$100,000 or
an integral multiple of US$1,000 in excess thereof and shall be made pro rata
among all Long Term Working Capital Series Holders in accordance with the
respective amounts owing to them. Each such prepayment hereunder shall be
applied ratably to prepay the remaining scheduled principal payments under the
Long Term Working Capital Series Notes in accordance with the respective amounts
thereof.
2.4.2 MANDATORY REDEMPTION
2.4.2.1 The Issuer shall, on the first Payment Date that
occurs at least 120 days after the end of each fiscal year, prepay an aggregate
principal amount of the Long Term Working Capital Series Notes in an amount
equal to (a) 50% of the amount of Excess Cash for such fiscal year multiplied by
(b) a fraction, (i) the numerator of which is equal to the aggregate outstanding
principal amount of Long Term Working Capital Series Notes immediately prior to
such prepayment and (ii) the denominator of which is the sum of:
(A) the aggregate principal amount of all Letter of
Credit Advances outstanding under all Letter of Credit
Facilities and all New Notes in each case outstanding
immediately prior to any prepayment thereof from such Excess
Cash on such date, plus
(B) the aggregate Available Amount of all Letters of
Credit outstanding under all Letter of Credit Facilities
immediately prior to any reduction thereof in respect of such
Excess Cash on such date, minus
(C) the aggregate amount of cash and investments
thereof credited to the L/C Collateral Accounts in respect of
all Letter of Credit Facilities immediately prior to any
deposits made to such accounts in respect of such Excess Cash
on such date.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments (not including the Payment Date on which
such payment is made) under the Long Term Working Capital Series Notes.
2.4.2.2 The Issuer shall, on the first Payment Date occurring
at least 180 days after the date of any Asset Sale by the Issuer or any of its
Subsidiaries (excluding Asset Sales in the ordinary course of business), prepay
an aggregate principal amount of the Long Term Working Capital Series Notes in
an amount equal to (a) 100% of the Net Cash Proceeds from such Asset Sale less
the sum of the proceeds of such Asset Sale that shall have been used for Capital
Expenditures prior to such Payment Date as permitted by subsection (e) of the
Negative Covenants in Annex C and, if such Asset Sale consists of a Sale of
Ecuadorian Assets, the amount of Net Cash Proceeds of such Asset Sale required
to be applied in accordance with
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Section 2.04(j) of the Letter of Credit Issuance and Reimbursement Agreement
multiplied by (b) a fraction, (i) the numerator of which is equal to the
aggregate outstanding principal amount of Long Term Working Capital Series Notes
immediately prior to such prepayment and (ii) the denominator of which is the
sum of:
(A) the aggregate principal amount of all Letter of
Credit Advances outstanding under all Letter of Credit
Facilities and all New Notes in each case outstanding
immediately prior to any prepayment thereof from such Net Cash
Proceeds on such date, plus
(B) the aggregate Available Amount of all Letters of
Credit outstanding under all Letter of Credit Facilities
immediately prior to any reduction thereof in respect of such
Net Cash Proceeds on such date, minus
(C) the aggregate amount of cash and investments
thereof credited to the L/C Collateral Accounts in respect of
all Letter of Credit Facilities immediately prior to any
deposits made to such accounts in respect of such Net Cash
Proceeds on such date.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments (not including the Payment Date on which
such payment is made) under the Long Term Working Capital Series Notes.
2.4.2.3 On any date on which the Issuer shall, at its option,
prepay, redeem, repurchase or in any manner defease or discharge any outstanding
principal amount of any Long Term New Notes (other than the Long Term Working
Capital Series Notes) or Long Term Debt prior to the scheduled maturity thereof
the Issuer shall prepay an aggregate principal amount of the Long Term Working
Capital Series Notes equal to the product of:
(a) the aggregate principal amount of the Long Term
Working Capital Series Notes outstanding at such time, multiplied by
(b) a fraction of which:
(i) the numerator is equal to the aggregate
principal amount of such Long Term New Notes (other than the
Long Term Working Capital Series Notes) or Long Term Debt, as
applicable, that is the subject of such prepayment or
discharge (in each case immediately prior thereto), and
(ii) the denominator is equal to the aggregate
principal amount of such Long Term New Notes (other than the
Long Term Working Capital Series Notes) or such Long Term Debt
outstanding immediately prior to such prepayment or discharge.
In the event that the Issuer shall, at any time, with respect to any Long Term
New Notes (other than the Long Term Working Capital Series Notes) or any Long
Term Debt, enter into any amendment to, or in any other manner cause any change
or rescheduling of, the scheduled
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payments of principal with respect to such Debt that would result in a
shortening of the remaining average life of any such Debt, any payment of
principal of such Debt on any date shall be treated as an optional prepayment of
such Debt for purposes of this Section 2.4.2.3.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments under the Long Term Working Capital
Series Notes.
2.4.2.4 Whenever the Issuer shall on any date make an
optional prepayment or redemption of any outstanding Long Term Letter of Credit
Advances under a Letter of Credit Facility prior to the scheduled maturity
thereof then the Issuer shall on the date of such prepayment or redemption,
prepay an aggregate principal amount of the Long Term Working Capital Series
Notes equal to the product of the aggregate principal amount of the Long Term
Working Capital Series Notes outstanding on such date, multiplied by a fraction:
(a) the numerator of which is equal to the aggregate
principal amount of such Long Term Letter of Credit Advances prepaid
and
(b) the denominator of which is equal to:
(i) the aggregate principal amount of all Long
Term Letter of Credit Advances under such Letter of Credit
Facility and all Long Term MT Notes issued upon any Conversion
of Long Term Letter of Credit Advances made under such Letter
of Credit Facility outstanding immediately prior to such
prepayment and redemption, plus
(ii) the aggregate Available Amounts of all
Letters of Credit issued under such Letter of Credit Facility
outstanding immediately prior to such prepayment and
redemption, minus
(iii) the aggregate amount of cash and investments
thereof credited to the L/C Cash Collateral Account in respect
of such Letter of Credit Facility outstanding immediately
prior to such prepayment and redemption.
In the event that the Issuer shall, at any time, with respect to any Long Term
Letter of Credit Advances, enter into any amendment to, or in any manner cause
any change or rescheduling of, the scheduled payments of principal with respect
to such Debt that would result in a shortening of the remaining average life of
any such Debt, any payment of principal of such Debt on any date shall be
treated as an optional prepayment of such Debt for purposes of this Section
2.4.2.4.
Each such prepayment shall be applied ratably to prepay the remaining scheduled
principal payments under the Long Term Working Capital Series Notes.
2.4.2.5 The Issuer shall, on the first Business Day that
occurs at least 50 days after the end of each fiscal quarter of the Issuer,
prepay the aggregate outstanding principal amount of the Long Term Working
Capital Series Notes in an amount equal to 50% of the New Debt Amount with
respect to such fiscal quarter multiplied by a fraction:
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(a) the numerator of which is equal to the aggregate
principal amount of the Long Term Working Capital Series Notes
outstanding immediately prior to any prepayment pursuant to this
subsection, and
(b) the denominator of which is equal to
(i) the aggregate principal amount of the New
Notes, outstanding immediately prior to any prepayment thereof
in respect of such New Debt Amount, plus
(ii) the aggregate principal amount of all Letter
of Credit Advances outstanding under all Letter of Credit
Facilities immediately prior to any prepayment thereof in
respect of such New Debt Amount, plus
(iii) the aggregate Available Amount of all
Letters of Credit outstanding under all Letter of Credit
Facilities immediately prior to any reduction thereof in
respect of such New Debt Amount, minus
(iv) the aggregate amount of cash and investments
thereof credited to the L/C Collateral Accounts in respect of
all Letter of Credit Facilities immediately prior to any
deposits made to such accounts in respect of such New Debt
Amount.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments under the Long Term Working Capital
Series Notes.
2.4.2.6 On any date on which the Issuer shall at its option
make any deposit to any L/C Collateral Account pledged in favor of the Lenders
under any Letter of Credit Facility, at a time when no such deposit would
otherwise be required pursuant to the Letter of Credit Issuance and
Reimbursement Agreement, the Issuer shall, on the date of such deposit, prepay
an aggregate principal amount of the Long Term Working Capital Series Notes in
an amount equal to (a) the aggregate principal amount of the Long Term Working
Capital Series Notes outstanding on such date, multiplied by (b) a fraction:
(A) the numerator of which is equal to the aggregate
amount of cash so deposited into such L/C Cash Collateral Account in
respect of such Letter of Credit Facility on such date, and
(B) the denominator of which is equal to:
(I) the aggregate principal amount of all Letter
of Credit Advances outstanding under such
Letter of Credit Facilities and New Notes
issued upon any Conversion of Letter of
Credit Advances made under such Letter of
Credit Facility outstanding immediately
prior to such deposit, plus
10
(II) the aggregate Available Amount of all
Letters of Credit outstanding under such
Letter of Credit Facility immediately prior
to such deposit, minus
(III) the aggregate amount of cash and investments
thereof credited to such L/C Collateral
Account immediately prior to such deposit.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments under the Long Term Working Capital
Series Notes in accordance with the respective amounts thereof.
2.4.2.7 On any date on which the Issuer shall at its option
reduce the Available Amount of any Letter of Credit issued under any Letter of
Credit Facility by either (a) causing a new letter of credit for which the
Issuer or one or more of its Subsidiaries is the account party to be issued
other than under the Letter of Credit Issuance and Reimbursement Agreement or
(b) having the Issuer or one or more of its Subsidiaries create, assume, incur
or suffer to exist a Lien on cash or financial assets for the benefit of, or
contribute cash or financial assets to, the beneficiary thereof, at a time when
no such reduction would otherwise be required pursuant to the Letter of Credit
Issuance and Reimbursement Agreement, the Issuer shall prepay an aggregate
principal amount of the Long Term Working Capital Series Notes in an amount
equal to (i) the aggregate principal amount of the Long Term Working Capital
Series Notes outstanding at such date, multiplied by (ii) a fraction:
(A) the numerator of which is equal to the aggregate
reductions of such Available Amounts in respect of such Letter of
Credit issued under such Letter of Credit Facility, and
(B) the denominator of which is equal to:
(I) the aggregate principal amount of all Letter
of Credit Advances outstanding under such
Letter of Credit Facility and the New Notes
issued upon any Conversion of Letter of
Credit Advances made under such Letter of
Credit Facility, in each case outstanding
immediately prior to such reduction, plus
(II) the aggregate Available Amount of all
Letters of Credit outstanding under such
Letter of Credit Facility immediately prior
to such reduction, minus
(III) the aggregate amount of cash and investments
thereof credited to the L/C Collateral
Account in respect of such Letter of Credit
Facility outstanding immediately prior to
such reduction.
Each such prepayment shall be applied ratably to prepay the remaining scheduled
principal payments under the Long Term Working Capital Series Notes in
accordance with the respective amounts thereof.
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2.4.2.8 Each prepayment under this Section 2.4.2 shall be
made pro rata among all Long Term Working Capital Series Holders in accordance
with the respective amounts owing to them. All prepayments under this Section
2.4.2 shall be made together with accrued interest to the date of such
prepayment on the principal amount prepaid and any Additional Amounts, LIBOR
Funding Costs or other amounts due hereunder.
2.5 GENERAL PROVISIONS AS TO PAYMENTS
2.5.1 The Issuer shall make each payment of principal of,
and interest on, the Long Term Working Capital Series Notes and of fees and
other amounts payable hereunder, not later than 3:00 p.m. (New York City time)
on the date when due, in immediately available funds in Dollars in New York
City, to the Paying Agent at its address referred to in Section 9.2. The Paying
Agent will promptly distribute to each Long Term Working Capital Series Holder
its ratable share of each such payment received by the Paying Agent for the
account of the Long Term Working Capital Series Holders. Whenever any payment of
principal of, or interest on, the Long Term Working Capital Series Notes shall
be due on a day which is not a Eurodollar Business Day, the date for payment
thereof shall be extended to the immediately succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another calendar month, in which
case the date for payment thereof shall be the immediately preceding Eurodollar
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
2.5.2 Notwithstanding the provisions of Section 2.5.1, upon
written notice to the Issuer and the Trustee by any Long Term Working Capital
Series Note Holder that a payment to it by the Issuer hereunder be made in
Argentina, such payment shall be made for the benefit of such Long Term Working
Capital Series Note Holder to the Argentine Paying Agent, in which event the
provisions of Section 2.5.1 relating to the Paying Agent shall apply mutatis
mutandi to the Argentine Paying Agent.
2.5.3 The Bank of New York shall be the initial Paying
Agent, and Banco Rio de la Plata S.A. shall be the initial Argentine Paying
Agent, for the Long Term Working Capital Series Notes. The consent of the
Majority Holders and the Issuer shall be required for the appointment of any
successor in such capacities in respect of the Long Term Working Capital Series
Notes.
2.5.4 It is understood and agreed by the parties hereto
that, for all purposes of this Long Term Working Capital Series Supplemental
Indenture and the other Note Documents, the Issuer may satisfy its payment
obligations with respect to each of the Long Term Working Capital Series Notes
by making payments in Cash to the Paying Agent or, if applicable pursuant to
Section 2.5.2, the Argentine Paying Agent, for the benefit of the party to whom
any such payment is due and for the application thereof pursuant to the terms of
the Indenture, and the Issuer's payment obligations hereunder with respect to
the Long Term Working Capital Series Notes (i) may only be Satisfied in Cash,
and (ii) shall be deemed satisfied and discharged only and to the extent
Satisfied in Cash.
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2.6 COMPUTATION OF INTEREST
All interest hereunder shall be computed on the basis of a
year of 360 days and paid for the actual number of days elapsed (including the
first day but excluding the last day). Notwithstanding the foregoing, during
each Alternate Rate Period, for each day that the Alternative Basis Interest
Rate is determined by reference to the rate applicable pursuant to Section
2.3.5(a) and the Alternative Basis Interest Rate is based upon the Prime Rate as
contemplated therein, interest shall be computed on the basis of a year of 365
or 366 days, as the case may be, and paid for the actual number of days elapsed
(including the first day but excluding the last day). The applicable interest
rate for any Interest Period or Alternate Rate Period will be calculated by the
Calculation Agent in accordance with the provisions hereof and will be reported
to the Trustee, the Paying Agent and the Argentine Paying Agent, as an amount of
Dollars payable per U.S.$1,000 principal amount of Long Term Working Capital
Series Notes at least 3 days prior to the applicable Payment Date.
2.7 LIBOR DISRUPTION
If (a) on or prior to the first day of any Interest Period the
Calculation Agent reasonably determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for
ascertaining the LIBOR for such Interest Period, or (b) on or prior to the first
day of any Interest Period the Majority Holders advise the Calculation Agent
that the LIBOR for such Interest Period will not adequately and fairly reflect
the cost to such Long Term Working Capital Series Holders of purchasing and
holding their Long Term Working Capital Series Notes during such Interest
Period, the Calculation Agent shall forthwith give notice thereof (an "Alternate
Rate Notice") in respect of such Interest Period to the Issuer, the Trustee and
the Long Term Working Capital Series Holders, whereupon until the Calculation
Agent gives notice (an "Alternate Rate Rescission Notice") to the Issuer, the
Trustee and the Long Term Working Capital Series Holders that each circumstance
giving rise to such Alternate Rate Notice no longer exists (it being understood
that the Calculation Agent will give such notice reasonably promptly after it
has knowledge that such circumstances have ceased to exist), the interest rate
applicable to the Long Term Working Capital Series Notes shall be determined
pursuant to Section 2.3.5.
2.8 ADDITIONAL AMOUNTS - TAXES
(a) In addition to the provisions of the Base Indenture,
and, to the extent in conflict herewith, notwithstanding such provisions, the
Issuer agrees that any and all payments by the Issuer hereunder shall be made
free and clear of, and without withholding or deduction for or on account of,
any Taxes, excluding, (i) in the case of each Long Term Working Capital Series
Holder, New Notes Administrative Agent, Paying Agent or Argentine Paying Agent,
Taxes that are imposed on its overall net income (and franchise taxes imposed in
lieu thereof) by any state or foreign jurisdiction under the laws of which such
Long Term Working Capital Series Holder, New Notes Administrative Agent, Paying
Agent or Argentine Paying Agent, as the case may be, is organized, or any
political subdivision thereof, and (ii) in the case of each Long Term Working
Capital Series Holder, Taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of
its Holding Office or any political subdivision thereof (all such nonexcluded
Taxes in respect of payments hereunder
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collectively, "Indemnifiable Taxes"). If any Indemnifiable Taxes are required to
be withheld or deducted from any such payment, the Issuer shall pay such
additional amounts as may be necessary to ensure that the amounts received by
each Long Term Working Capital Series Holder, New Notes Administrative Agent,
Paying Agent or Argentine Paying Agent (as the case may be) after such
withholding or deduction (and after withholding or deduction on amounts payable
under this Section 2.8) shall equal the respective amounts that would have been
receivable from the Issuer (any such additional amounts required to be paid by
the Issuer, "Additional Amounts").
(b) The Issuer shall promptly pay when due any present or
future stamp, court or documentary taxes or any other excise or property taxes,
charges or similar levies (including the Personal Property Tax) that arise in
any jurisdiction from any payment made hereunder or from the execution,
delivery, enforcement or registration of this Agreement or any other document or
instrument referred to herein or therein (collectively, "Other Taxes").
(c) The Issuer agrees to indemnify each Long Term Working
Capital Series Holder, New Notes Administrative Agent, Paying Agent or Argentine
Paying Agent for the full amount of Indemnifiable Taxes and Other Taxes, and for
the full amount of taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.8, imposed on or paid by any such Long Term
Working Capital Series Holder, the New Notes Administrative Agent, the Paying
Agent or Argentine Paying Agent, as the case may be, and any liability
(including penalties, additions to tax interest and expenses) arising therefrom
or with respect thereto. Amounts payable by the Issuer under the indemnity set
forth in this subsection (c) shall be paid within 30 days from the date on which
the applicable Long Term Working Capital Series Holder, New Notes Administrative
Agent, Paying Agent or Argentine Paying Agent, as the case may be, makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes
under this Section 2.8, the Issuer will notify the Administrative Agent of such
payment and, at the request of the Administrative Agent, furnish to the
Administrative Agent at its address referred to in Section 9.2, the original or
a certified copy of a receipt evidencing payment thereof. Upon request, the
Issuer shall provide the Administrative Agent with documentation reasonably
satisfactory to the Administrative Agent evidencing the payment of any
Additional Amounts. Copies of such documentation shall be made available by the
Administrative Agent to the Long Term Working Capital Series Holders upon
request.
2.9 ILLEGALITY
Notwithstanding any other provision of this Long Term Working
Capital Series Supplemental Indenture, if any Long Term Working Capital Series
Holder shall notify the Long Term Working Capital Series Administrative Agent
that the introduction of or any change in or in the interpretation of a law or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Long Term Working Capital Series
Holder or its Holding Office to purchase, own, hold or maintain its Long Term
Working Capital Series Note (after such Long Term Working Capital Series Holder
used such reasonable efforts to transfer its Long Term Working Capital Series
Notes if such transfer will avoid illegality and shall not, in the sole judgment
of such Long Term Working Capital Series Holder, be
14
disadvantageous (economically or otherwise) to such Long Term Working Capital
Series Holder) the Issuer shall promptly redeem the Long Term Working Capital
Series Note(s) held by such Long Term Working Capital Series Holder by paying
the principal amount to be redeemed, together with accrued interest thereon to
the date of redemption, together with any amounts payable pursuant to Section
2.10 in respect of such redemption.
2.10 YIELD PROTECTION
If, for any reason, the Issuer makes any payment of principal
with respect to any Long Term Working Capital Series Note on any day other than
the last day of the Interest Period then applicable thereto, the Issuer shall,
promptly upon demand, reimburse each Long Term Working Capital Series Holder for
any LIBOR Funding Costs incurred by such Long Term Working Capital Series Holder
of such amount prepaid, provided that such Long Term Working Capital Series
Holder shall have delivered to the Issuer a certificate as to the amount of such
loss or expense, which certificate shall be conclusive and binding for all
purposes, absent manifest error.
2.11 INCREASED COSTS AND REDUCED RETURN
2.11.1 If, on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Long Term Working
Capital Series Holder (or its Holding Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency, (i) shall subject any Long Term Working Capital Series Holder
(or its Holding Office) to any tax, duty or other charge with respect to one or
more of its Long Term Working Capital Series Notes, or shall change the basis of
taxation of payments to any Long Term Working Capital Series Holder (or its
Holding Office) of the principal of or interest on its Long Term Working Capital
Series Notes or any other amounts due under this Indenture or any Long Term
Working Capital Series Notes, except for the introduction of, or changes in the
rate of, tax on the overall net income of such Long Term Working Capital Series
Holder (or its Holding Office), or franchise taxes, imposed by the jurisdiction
(or any political subdivision or taxing authority thereof) under the laws of
which such Long Term Working Capital Series Holder is organized (or in which
such Long Term Working Capital Series Holder's Holding Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System and minimum reserve requirements of the European Central
Bank but excluding any such requirement included in an applicable Eurodollar
Reserve Percentage), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Long Term Working Capital Series Holder (or its Holding Office)
or shall impose on any Long Term Working Capital Series Holder (or its Holding
Office) or the London interbank market any other condition affecting the
purchasing, owning, holding or maintaining of any one or more Long Term Working
Capital Series Notes by such Long Term Working Capital Series Holder (or its
Holding Office) and the result of any of the foregoing is to increase the cost
to such Long Term Working Capital Series Holder (or its Holding Office) or any
holding company of which such Long Term Working Capital Series Holder is a
subsidiary)
15
of purchasing, owning, holding or maintaining any one or more of its Long Term
Working Capital Series Notes, or to reduce the amount of any sum received or
receivable by such Long Term Working Capital Series Holder (or its Holding
Office) under the Indenture and any one or more of its Long Term Working Capital
Series Notes, by an amount deemed by such Long Term Working Capital Series
Holder to be material (excluding, for purposes of this Section 2.11.1 any
increased costs or any reductions resulting from any Indemnifiable Taxes or
Other Taxes payable by the Issuer pursuant to Section 2.8), then, promptly upon
demand by such Long Term Working Capital Series Holder (with a copy to the New
Notes Administrative Agent and the Calculation Agent), which demand shall be
accompanied by a certificate of such Long Term Working Capital Series Holder
setting forth in reasonable detail the circumstances which give rise to such
increase or reduction, the amount of the claim and the calculation thereof (and
which certificate shall be conclusive and binding for all purposes, absent
manifest error), the Issuer shall, to the extent that it shall not have done so
under any other provision of the Indenture, pay to such Long Term Working
Capital Series Holder such additional amount or amounts as will, without
duplication, compensate such Long Term Working Capital Series Holder (or any
holding company of which such Long Term Working Capital Series Holder is a
subsidiary) for such increased cost or reduction.
2.11.2 If, on or after the date hereof, any Long Term
Working Capital Series Holder shall determine that the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change in
any such law, rule or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has the effect of
reducing the rate of return on capital of any Long Term Working Capital Series
Holder (or any holding company of which such Long Term Working Capital Series
Holder is a subsidiary) as a consequence of such Long Term Working Capital
Series Holder's purchasing, owning, maintaining or holding any Long Term Working
Capital Series Notes to a level below that which such Long Term Working Capital
Series Holder (or any holding company of which such Long Term Working Capital
Series Holder is a subsidiary) could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such Long Term Working
Capital Series Holder to be material, then from time to time, promptly upon
demand by such Long Term Working Capital Series Holder (with a copy to the New
Notes Administrative Agent), which demand shall be accompanied by a certificate
of such Long Term Working Capital Series Holder setting forth in reasonable
detail the circumstances which give rise to such reduction, the amount of the
claim and the calculation thereof (and which certificate shall be conclusive and
binding for all purposes, absent manifest error), the Issuer shall, to the
extent that it shall not have already done so under any other provision of the
Indenture, pay to such Long Term Working Capital Series Holder such additional
amount or amounts as will, without duplication, compensate such Long Term
Working Capital Series Holder (or any holding company of which such Long Term
Working Capital Series Holder is a subsidiary) for such reduction.
2.11.3 Each Long Term Working Capital Series Holder will
promptly notify the Issuer, the New Notes Administrative Agent and the
Calculation Agent of any event of which it
16
has knowledge, occurring after the date hereof, which will entitle such Long
Term Working Capital Series Holder to compensation pursuant to this Section
2.11. Each Long Term Working Capital Series Holder will, before requesting
compensation for additional amounts pursuant to this Section 2.11, use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to minimize or eliminate the requirement of such compensation by
transferring its Long Term Working Capital Series Notes to a different Holding
Office or otherwise if such transfer or other action will avoid or reduce the
need for compensation for such additional amounts and will not, in the sole
judgment of such Long Term Working Capital Series Holder, be otherwise
disadvantageous (economically or otherwise) to such Long Term Working Capital
Series Holder; provided that no Long Term Working Capital Series Holder shall
have any obligation to provide any information as to any possible actions or
designations considered and taken or rejected by such Long Term Working Capital
Series Holder or the reasons therefor. A certificate of any Long Term Working
Capital Series Holder claiming compensation under this Section 2.11 and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive and binding for all purposes, absent manifest error.
2.11.4 The Issuer shall not be required to compensate a Long
Term Working Capital Series Holder as provided by this Section 2.11 if the
increased cost or reduction in respect of which such claim for additional
amounts arises results solely from a requirement which is applicable to the
relevant Long Term Working Capital Series Holder by reason of its financial
condition or assets and which is not of general application to similar persons
of a similar type in similar circumstances in the same jurisdiction.
2.12 NO DEFEASANCE OF LONG TERM WORKING CAPITAL SERIES
NOTES
Notwithstanding anything to the contrary in Article Twelve of
the Base Indenture, no total or partial or covenant defeasance of the Long Term
Working Capital Series Notes is permitted.
2.13 RANKING OF LONG TERM WORKING CAPITAL SERIES NOTES
The Long Term Working Capital Series Notes will be unsecured
and unsubordinated obligations of the Issuer and will rank pari passu with no
preference among themselves. Payment obligations of the Issuer under the Long
Term Working Capital Series Notes, except as is or may be provided under
Argentine law, will rank at least pari passu in right of payment with all other
present or future unsecured and unsubordinated obligations of the Issuer from
time to time outstanding.
2.14 CERTAIN RIGHTS WHILE THE NOTES ARE IN GLOBAL FORM
For the avoidance of doubt, for so long as any Long Term
Working Capital Series Note is held in global form, any rights or benefits
accruing to any Long Term Working Capital Series Holder pursuant to Subsection
2.3.5(b) of Section 2.3 Interest Rates, Sections 2.8 Additional Amounts--Taxes,
2.9 Illegality, 2.10 Yield Protection, 2.11 Increased Costs and Reduced Return,
and 9.12 Right of Set-Off, shall benefit the relevant Participants and Indirect
Participants. Notwithstanding the provisions of Section 507 of the Base
Indenture, such rights and benefits shall be directly enforceable by or on
behalf of the Beneficial Owner.
17
2.15 SPECIAL TRANSFER PROVISIONS
2.15.1 In accordance with Section 2.2, each Long Term
Working Capital Series Note hereunder will be issued substantially in the form
of Exhibit A hereto in the form of one or more DTC Restricted Global Securities
or Regulation S Global Securities, in accordance with Section 202 of the Base
Indenture. Pursuant to Section 2.2.2, a beneficial owner of a Long Term Working
Capital Series Note may exchange its interest in a Global Security for one or
more Definitive Securities, on like terms. Transfers and exchanges subject to
this Section 2.15 shall also be subject to the other provisions of the Indenture
that are not inconsistent with this Section 2.15.
(a) Transfers of Interests in a DTC Restricted Global
Security to QIBs. The transfer of an interest in a DTC Restricted Global
Security to a QIB (excluding Non-U.S. Persons) may be effected only through the
book-entry system maintained by the Depositary.
(b) Transfers of Definitive Restricted Securities. The
Security Registrar shall register the transfer of any Definitive Security (i) if
the proposed transferee is a Non-U.S. Person and the proposed transferor has
delivered to the Security Registrar a certificate substantially in the form of
Exhibit C hereto or (ii) if the proposed transferee is a QIB and the proposed
transferor has checked the box provided for on the form of Security stating, or
has otherwise advised the Issuer and the Security Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of Security
stating, or has otherwise advised the Issuer and the Security Registrar in
writing, that it is purchasing the Security for its own account or an account
with respect to which it exercises sole investment discretion and that it and
any such account is a QIB and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuer as it has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(c) Transfers of Interests in Regulation S Securities
Prior to the End of the Restricted Period. The following provisions shall apply
with respect to registration of any proposed transfer of interests in a
Regulation S Security prior to the end of the applicable Restricted Period:
(i) The Security Registrar shall register the transfer of
any Security (x) if the proposed transferee is a Non-U.S. Person and
the proposed transferor has delivered to the Security Registrar a
certificate substantially in the form of Exhibit C hereto or (y) if the
proposed transferee is a QIB and the proposed transferor has checked
the box provided for on the form of Security stating, or has otherwise
advised the Issuer and the Security Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Security stating, or has otherwise advised the Issuer and the Security
Registrar in writing, that it is purchasing the Security for its own
account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it
18
has received such information regarding the Issuer as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A; and
(ii) In the case of a Regulation S Global Security, if the
proposed transferee is an Agent Member, upon receipt by the Security
Registrar of the documents referred to in clause (i)(y) and
instructions given in accordance with the Depositary's and Security
Registrar's procedures, the Security Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the DTC Restricted Global Security in an amount equal to the principal
amount of the Regulation S Global Security to be transferred and the
Trustee shall decrease the amount of the Regulation S Global Security
in a like amount.
(d) Transfers of Interests in Regulation S Securities to
U.S. Persons After the Restricted Period. The following provisions shall apply
with respect to any transfer of interests in a Regulation S Security to U.S.
Persons after the end of the applicable Restricted Period: The Security
Registrar shall register the transfer of any such Security without requiring any
additional certification beyond those required by other provisions of this
Indenture.
(e) Transfers to Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to any transfer of a Security to a
Non-U.S. Person:
(i) Prior to the end of the applicable Restricted Period,
the Security Registrar shall register any proposed transfer of any
Security to a Non-U.S. Person upon receipt of a certificate
substantially in the form of Exhibit C from the proposed transferor;
(ii) On and after the end of the applicable Restricted
Period, the Security Registrar shall register any proposed transfer of
an interest in a DTC Restricted Global Security or of a Restricted
Definitive Security to a Non-U.S. Person upon receipt of a certificate
substantially in the form of Exhibit C from the proposed transferor;
and
(iii) (A) If the proposed transferor is an Agent Member
holding a beneficial interest in the DTC Restricted Global Security,
upon receipt by the Security Registrar of (x) the documents, if any,
required by clause (ii) and (y) instructions in accordance with the
Depositary's and Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the DTC Restricted Global Security
in an amount equal to the principal amount of beneficial interest in
the DTC Restricted Global Security to be transferred, and (B) if the
proposed transferee is an Agent Member, upon receipt by the Security
Registrar of instructions given in accordance with the Depositary's and
Security Registrar's procedures, the Security Registrar shall reflect
on its books and records the date and an increase in the principal
amount of the Regulation S Global Security in an amount equal to the
principal amount of the interest in the DTC Restricted Global Security
to be transferred, and the Trustee shall decrease the principal amount
of the DTC Restricted Global Security so transferred in a like amount.
19
(f) Private Placement Legend. Upon the transfer, exchange
or replacement of Securities bearing the Private Placement Legend, the Security
Registrar shall deliver only Securities that bear the Private Placement Legend
unless there is delivered to the Security Registrar an Opinion of Counsel
reasonably satisfactory to the Issuer and the Trustee to the effect that neither
such legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(g) General. By its acceptance of any Security bearing
the Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture and in the Private Placement Legend. The Security
Registrar shall not register a transfer of any Security unless such transfer
complies with the restrictions on transfer contained in this Indenture and in
the Private Placement Legend. In connection with any transfer of Securities,
each Holder agrees by its acceptance of such Securities to furnish to the
Security Registrar or the Issuer such certifications, legal opinions or other
information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from or a transaction not
subject to, the registration requirements of the Securities Act; provided that
the Security Registrar shall not be required to determine (but may rely on a
determination made by the Issuer with respect to) the sufficiency of any such
certifications, legal opinions or other information.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to this Section 2.15.
The Issuer shall have the right, at its own expense, to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Security Registrar.
ARTICLE 3
3. COVENANTS
In addition to the covenants contained in Articles Eight and
Ten of the Base Indenture, the Issuer agrees that, so long as any amount payable
under any Long Term Working Capital Series Note remains unpaid, it will comply
with the terms and covenants set forth in Annex C hereto and will comply with
the terms and covenants set forth below:
3.1 INFORMATION
The Issuer shall deliver to the New Notes Administrative Agent
(and the Administrative Agent shall, in turn, deliver to each Long Term Working
Capital Series Holder) all information and reports furnished to the Trustee
under Sections 703 and 1009 of the Base Indenture, in sufficient quantities for
distribution to each Beneficial Owner.
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3.2 USE OF PROCEEDS
The Long Term Working Capital Series Notes shall be issued to
the Long Term Working Capital Series Holders to refinance existing indebtedness
to Holders pursuant to the terms of the Note Purchase Agreement and the
Settlement Agreements annexed thereto.
3.3 CNV FILING
After the Takedown with respect to each of the Long Term
Working Capital Series Notes, the Issuer shall promptly (i) make the CNV Filing
and provide the CNV with all required documents (including a certified Spanish
translation of the Note Documents) in connection therewith and (ii) inform the
New Notes Administrative Agent (which, in turn, will inform the Long Term
Working Capital Series Holders) as to its compliance herewith.
3.4 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST
Clause (ii) of the fifth paragraph of Section 1003 of the Base
Indenture permitting the giving of notice by publication in a newspaper shall
not apply to the Long Term Working Capital Series Notes.
3.5 CURRENCY OF PAYMENT
The Issuer agrees that, notwithstanding any foreign exchange
restriction or prohibition in Argentina, any and all payments hereunder shall be
made exclusively in Dollars in immediately available funds. In the event any
such foreign exchange restriction or prohibition is in effect, the Issuer shall
during the continuance of such prohibition at its own expense, obtain such
Dollars including, (i) by purchasing in Argentina (in compliance with any
applicable Argentine Central Bank or other Governmental Authority regulation in
force at the time of such purchase), any Dollar denominated public or private
debt or equity tradable security issued in Argentina and tradable in foreign
markets and transferring and selling the same outside of Argentina for Dollars,
or (ii) by means of any other legal and appropriate mechanism for the
acquisition of Dollars. No form of payment shall be deemed to constitute payment
of the applicable Obligation until receipt of the full amount of Dollars due in
respect thereof. All costs, expenses and taxes payable in connection with this
Section 16 shall be for the account of the Issuer.
ARTICLE 4
4. REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Issuer, as set forth
in Annex B hereto, are incorporated herein by reference in their entirety.
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ARTICLE 5
5. DEFAULTS
5.1 EVENTS OF DEFAULT
Upon the occurrence of any Event of Default set forth in Annex
D hereto, the Trustee, at the written direction of the Majority Holders, by
notice in writing to the Issuer (and to the Trustee if given by Long Term
Working Capital Series Holders), may declare the principal amount of all the
Long Term Working Capital Series Notes then outstanding and all interest and
other amounts of Debt Service accrued thereon to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable (to the extent not already due and payable), anything in the
Indenture or herein contained to the contrary notwithstanding. If an Event of
Default described in Clauses (i), (j) or (k) of the Events of Default set forth
in Annex D, other than in the case of Material Subsidiaries, occurs and is
continuing, then and in each and every such case, the principal amount of all
the Long Term Working Capital Series Notes then outstanding and all interest and
other amounts of Debt Service accrued thereon shall, without any notice to the
Issuer or any other act on the part of the Trustee or any Long Term Working
Capital Series Holder, become and be immediately due and payable, anything in
the Indenture or herein contained to the contrary notwithstanding. In addition,
the Majority Holders may instruct the Trustee to take any action permitted by
Section 503 of the Base Indenture.
At any time after such a declaration of acceleration has been
made with respect to the Long Term Working Capital Series Notes and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as provided in Article Five of the Base Indenture, the Required Holders, by
written notice to the Issuer and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Issuer has paid or deposited with the Trustee a
sum in Dollars sufficient to pay
(A) all overdue installments of interest on the
Long Term Working Capital Series Notes, and
(B) the principal of (and premium, if any, on)
any Long Term Working Capital Series Notes which have become
due otherwise than by such declaration of acceleration, and
interest thereon at the rate or rates prescribed therefor by
the terms of the Long Term Working Capital Series Notes to the
extent that payment of such interest is lawful, and
(C) interest upon overdue installments of
interest at the rate or rates prescribed therefor by the terms
of the Long Term Working Capital Series Notes to the extent
that payment of such interest is lawful, and
(2) all Events of Default in respect of Long Term Working
Capital Series Notes, other than the nonpayment of the principal of the
Long Term Working Capital
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Series Notes which has become due solely by such acceleration, have
been cured or waived as provided in Section 513 of the Base Indenture.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
The foregoing provisions shall be without prejudice to the
rights accorded to any individual Long Term Working Capital Series Holder to
initiate actions against the Issuer under New York State law or Section 29 of
the Negotiable Obligations Law. The Trustee, the Registrar and the Paying Agents
shall be entitled to assume that no such proceedings have been instituted,
unless they have received written notice from a Long Term Working Capital Series
Holder or the Issuer to the contrary.
5.2 WAIVER OF PAST DEFAULTS
Notwithstanding the provisions of Section 513 of the Base
Indenture, action by the Majority Holders shall be required for the waiver of
past uncured defaults in respect of the Long Term Working Capital Series Notes
as provided in Section 513 of the Base Indenture.
5.3 NOTICE OF DEFAULTS
The provisions of Section 602 of the Base Indenture shall not
apply to the Long Term Working Capital Series Notes and the following shall be
substituted therefor in respect of Long Term Working Capital Series Notes and
for all purposes of this Long Term Working Capital Series Supplemental
Indenture:
"Section 602. Notice of Defaults. Promptly after the
occurrence of any Event of Default, the Trustee shall transmit by mail to all
Long Term Working Capital Series Holders and Long Term Working Capital Series
Agents, as their names and addresses appear in the Security Register, notice of
such Event of Default hereunder actually known to a Responsible Officer of the
Trustee, unless such default shall have been cured or waived."
ARTICLE 6
6. THE LONG TERM WORKING CAPITAL SERIES AGENTS AND THE
TRUSTEE
6.1 APPOINTMENT AND AUTHORIZATION
6.1.1 The Issuer irrevocably appoints and authorizes, and
by its acceptance of any Long Term Working Capital Series Note each Long Term
Working Capital Series Holder irrevocably appoints and authorizes, in each case
to the fullest extent permitted under applicable law, (i) The Bank of New York
as Co-Security Registrar, Authenticating Agent, Paying Agent and Transfer Agent,
and, (ii) Banco Rio de la Plata S.A., as Security Registrar, Argentine Paying
Agent and Transfer Agent, and (iii) JPMorgan Chase as Administrative Agent and
Calculation Agent, in respect of the Long Term Working Capital Series Notes
(each of The Bank of New York, Banco Rio de la Plata S.A. and JPMorgan Chase, in
its relevant agency capacities hereunder, a "Long Term Working Capital Series
Agent" and together the "Long Term Working
23
Capital Series Agents"), to take such action as agent in respect of the Long
Term Working Capital Series Notes and to exercise such powers under this Long
Term Working Capital Series Supplemental Indenture and the Long Term Working
Capital Series Notes as are specifically delegated to the relevant Long Term
Working Capital Series Agents in such respective capacities by the terms hereof
or thereof, together with all such powers as are reasonably incidental thereto
(including, but not limited to, all the duties that would normally be performed
by the Trustee as Co-Security Registrar, Principal Paying Agent, Transfer Agent
and Authenticating Agent under the Indenture). In addition to any notice
required by this Long Term Working Capital Series Supplemental Indenture, each
such Long Term Working Capital Series Agent shall give the Trustee prompt notice
of any action taken by such Long Term Working Capital Series Agent in compliance
with its duties as Administrative Agent, Security Registrar, Paying Agent,
Authenticating Agent and Transfer Agent.
6.1.2 The Bank of New York shall, as Co-Security Registrar,
keep a registry of each of the Long Term Working Capital Series Notes,
containing the information elicited from the Long Term Working Capital Series
Holders in such Long Term Working Capital Series Holders' Administrative
Questionnaire, as well as a record of (i) all transfers of each of the Long Term
Working Capital Series Notes and all liens created upon each of the Long Term
Working Capital Series Notes, (ii) auctions (if any) of each of the Long Term
Working Capital Series Notes by pledgors or as holders of a security interest
thereon and (iii) decisions by courts of law regarding transfers of, and the
creation or cancellation of any liens and attachments on, each of the Long Term
Working Capital Series Notes. The Security Registrar agrees to provide any such
information, upon request, to the Administrative Agent and the Paying Agent. The
designation of The Bank of New York as Co-Security Registrar, Transfer Agent, in
each case shall be without prejudice to the designation of Banco Rio de la Plata
S.A., as the Security Registrar, who will keep a like original register in
Argentina as provided in Section 305 of the Base Indenture.
6.1.3 (i) Except to the extent imposed by non-waivable
provisions of applicable law, the Trustee shall have no responsibility to the
Long Term Working Capital Series Holders in respect of any obligation delegated
to the New Notes Administrative Agent by the terms hereof. The Trustee shall
have no liability for any acts or omissions of the New Notes Administrative
Agent. Notwithstanding the provisions of the Indenture, the Trustee shall have
no liability for the fees or expenses of the New Notes Administrative Agent in
its capacity as Authenticating Agent (if the New Notes Administrative Agent acts
as Authenticating Agent).
(ii) Except to the extent imposed by non-waivable
provisions of applicable law, the New Notes Administrative Agent shall have no
responsibility to the Long Term Working Capital Series Holders in respect of any
obligation delegated to the Trustee by the terms hereof. The New Notes
Administrative Agent shall have no liability for any acts or omissions of the
Trustee.
6.2 AGENT AND AFFILIATES
For so long as JPMorgan Chase, Banco Rio de la Plata S.A., or
any of their affiliates is a Long Term Working Capital Series Holder, JPMorgan
Chase, Banco Rio de la Plata S.A., or such affiliate shall have the same rights
and powers under the Indenture as any other Long Term Working Capital Series
Holder and may exercise or refrain from exercising the
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same as though it or one of its affiliates were not the New Notes Administrative
Agent, Calculation Agent, Security Registrar, Argentine Paying Agent, and/or
Transfer Agent (as the case may be) and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Issuer or
any Subsidiary or Affiliate of the Issuer as if it were not acting in such
agency capacities.
6.3 ACTION BY LONG TERM WORKING CAPITAL SERIES AGENTS
The obligations of the Long Term Working Capital Series Agents
hereunder are only those expressly set forth herein, provided that a Long Term
Working Capital Series Agent may (but is not obligated to) act hereunder and
under the other Note Documents in its reasonable discretion or pursuant to the
instructions of the Majority Holders in respect of the Long Term Working Capital
Series Notes, provided that if such instructions are conflicting or unclear, the
Long Term Working Capital Series Agent that has received such instructions may
request reasonable clarification thereof and will not be obligated to act
pursuant to such instructions until clarified in a satisfactory manner. Without
limiting the generality of the foregoing, a Long Term Working Capital Series
Agent shall not be required to take any action with respect to any Event of
Default, except as expressly provided in Article 5, shall not be a trustee for
or have any fiduciary duty with respect to any Long Term Working Capital Series
Holder or any other Person hereunder and shall not be acting as a Trustee, under
the Trust Indenture Act or otherwise. Notwithstanding the last sentence of the
second paragraph of Section 5.1, no Long Term Working Capital Series Agent shall
enter into any legal proceedings on behalf of a Long Term Working Capital Series
Holder without the prior written consent of such Long Term Working Capital
Series Holder. A Long Term Working Capital Series Agent shall not be obligated
to take any action, unless directed by the Majority Holders in respect of the
Long Term Working Capital Series Notes, which would require it to expend its own
funds or incur monetary liability unless it has received adequate assurance that
it shall receive satisfactory indemnity therefor.
6.4 CONSULTATION; ADDITIONAL AGENTS
Any Long Term Working Capital Series Agent may consult with
legal counsel (who may be counsel for the Issuer, provided that any consultation
with counsel for the Issuer shall only occur with the consent of the Issuer,
which consent shall not be unreasonably withheld), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts. Any Long Term Working Capital
Series Agents may appoint an agent or agents (including an Affiliate of such
Long Term Working Capital Series Agent) to perform its duties and obligations
under this Long Term Working Capital Series Supplemental Indenture and the other
Note Documents. Any other agent appointed in accordance with the provisions of
this Section 6.4 shall enjoy the same protections, immunities and indemnities as
are provided for in this Long Term Working Capital Series Supplemental
Indenture.
6.5 LIABILITY OF LONG TERM WORKING CAPITAL SERIES AGENTS
None of the Long Term Working Capital Series Agents nor any of
their Affiliates nor any of their respective directors, officers, agents,
advisors or employees shall be liable to any
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Long Term Working Capital Series Holder for any action taken or not taken by it
in connection herewith (i) with the express written consent of or at the express
written request of the Majority Holders in respect of the Long Term Working
Capital Series Notes or (ii) in the absence of its own gross negligence or
willful misconduct. None of the Long Term Working Capital Series Agents nor any
of their Affiliates nor any of their respective directors, officers, agents,
advisors or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with this Long Term Working Capital Series Supplemental Indenture or
any issuance or sale of Long Term Working Capital Series Notes hereunder; (ii)
the performance or observance of any of the covenants or agreements of the
Issuer; (iii) the satisfaction of any condition specified in the Note Documents;
or (iv) the validity, effectiveness or genuineness of this Long Term Working
Capital Series Supplemental Indenture, the Long Term Working Capital Series
Notes or any other instrument or writing furnished in connection herewith. The
New Notes Administrative Agent shall not incur any liability to any Long Term
Working Capital Series Holder by acting in reliance upon any notice, consent,
certificate, statement or writing (which may be a bank wire, facsimile
transmission or similar writing) reasonably believed by it to be genuine or to
be signed by the proper party or parties.
6.6 SUCCESSOR AGENT
6.6.1 Subject to appointment of a successor, the New Notes
Administrative Agent may resign at any time, and the Majority Holders may remove
the New Notes Administrative Agent in respect of the Long Term Working Capital
Series Notes at any time by giving notice thereof to the New Notes
Administrative Agent, the Trustee, each Long Term Working Capital Series Holder,
the CNV and the Issuer. Upon any such pending resignation or removal, the Issuer
shall have the right to appoint a successor agent, which appointment shall be
subject to the approval of the Majority Holders. The Issuer shall give the
Trustee prompt notice of such appointment. If no successor New Notes
Administrative Agent shall have been so appointed by the Issuer and have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of resignation or the Majority Holders give notice of such removal,
then the retiring New Notes Administrative Agent may, at the expense of the
Issuer, on behalf of the Majority Holders and the Issuer, appoint a successor
New Notes Administrative Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least U.S.$400,000,000 and
notify the Issuer, the Trustee and each of the Long Term Working Capital Series
Holders of such appointment. Upon the acceptance of its appointment as New Notes
Administrative Agent hereunder by a successor New Notes Administrative Agent,
such successor New Notes Administrative Agent shall give notice thereof to the
Trustee and the CNV and shall thereupon succeed to and become vested with all
the rights and duties of the retiring New Notes Administrative Agent, and the
retiring New Notes Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's registration or
removal hereunder as New Notes Administrative Agent, the provisions of this
Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was New Notes Administrative Agent.
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6.6.2 The terms and conditions of Section 6.6.1 shall apply
mutatis mutandis to the appointment of any successor Paying Agent or Calculation
Agent (including with respect to the rights and obligations of each Paying Agent
and Calculation Agent).
6.7 APPLICATION OF MONEY COLLECTED
Any money collected by the Trustee with respect to the Long
Term Working Capital Series Notes pursuant to Article Five of the Base Indenture
shall, notwithstanding any provision to the contrary of Section 506 of the Base
Indenture, be applied in the following order of priority, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation of the Long
Term Working Capital Series Notes and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: (i) to pay all amounts due to the Trustee in respect of
the Long Term Working Capital Series Notes under Section 607 of the
Base Indenture and (ii) ratably, to pay all amounts then due and
payable to the Trustee and the Long Term Working Capital Series Agents
in respect of the Long Term Working Capital Series Notes under the Note
Documents.
SECOND: ratably, to pay to the Long Term Working Capital
Series Holders the regularly scheduled interest (not including Default
Interest) accrued and unpaid in respect of the Long Term Working
Capital Series Notes.
THIRD: ratably, to pay to the Long Term Working Capital Series
Holders the unpaid principal then due and payable in respect of the
Long Term Working Capital Series Notes.
FOURTH: ratably, to pay to any applicable payee any other
unpaid Note Payment amount with respect to the Long Term Working
Capital Series Notes (including, without limitation, Default Interest
then accrued and unpaid) then due and payable.
FIFTH: after the payment and satisfaction in full of all Note
Payment obligations with respect to the Long Term Working Capital
Series Notes, to pay the remaining balance, if any, to the Issuer; each
such payment to be made without preference or priority of any kind.
6.8 REMOVAL OF TRUSTEE
Notwithstanding the provisions of Section 609(c) of the Base
Indenture, action by Majority Holders shall be required to remove the Trustee
with respect to the Long Term Working Capital Series Notes under the provisions
of Section 609(c) of the Base Indenture.
6.9 INDEMNIFICATION
The Issuer agrees to indemnify and hold harmless each of the
Trustee, each Long Term Working Capital Series Agent, each Long Term Working
Capital Series Holder and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an
27
"Indemnified Party") from and against any and all claims, damages, losses, costs
and other liabilities and expenses (including, without limitation, reasonable
fees and expenses of counsel) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with
or by reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) the Note Documents, any of the transactions contemplated
thereby or the engagement of any Indemnified Party pursuant to, and the
performance by any Indemnified Party of the services contemplated by, the Note
Documents and will reimburse each Indemnified Party for all out-of-pocket
expenses; provided that no Indemnified Party shall have any right to be
indemnified hereunder for its own willful misconduct or gross negligence, as
determined in a final, non-appealable judgment by a court of competent
jurisdiction. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 6.9 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceedings is
brought by the Issuer, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Issuer also agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to the
Issuer or any of its Affiliates related to or arising out of the engagement of
any Indemnified Party pursuant to, or the performance by any Indemnified Party
of the services contemplated by, any of the Documents, except to the extent that
any loss, claim, damage or liability is finally judicially determined to have
resulted primarily from such Indemnified Party's gross negligence or willful
misconduct. The Issuer agrees that no Indemnified Party shall be liable under
the Documents, or in respect of the Long Term Working Capital Series Notes or
any transactions related thereto, for any special, indirect, consequential or
punitive damages.
6.10 SURVIVAL
The provisions of this Article 6 shall survive the resignation
or removal of any Long Term Working Capital Series Agent or the termination or
expiration of any Note Document.
ARTICLE 7
7. SECURITYHOLDERS' LISTS AND COMPANY INFORMATION
7.1 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS
Notwithstanding the provisions of Section 702(b) of the Base
Indenture, any single Long Term Working Capital Series Holder may, regardless of
the period for which it has held Long Term Working Capital Series Notes, at any
time apply in writing to the Trustee stating that such Long Term Working Capital
Series Holder desires to communicate with the Long Term Working Capital Series
Holders, and the Trustee shall promptly afford any such applicant access to the
information preserved by the Trustee in accordance with Section 702(a) of the
Base Indenture.
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ARTICLE 8
8. REDEMPTION OF SECURITIES
8.1 SELECTION OF LONG TERM WORKING CAPITAL SERIES NOTES
TO BE REDEEMED
Notwithstanding the provisions of Section 1103 of the Base
Indenture, any redemption of Long Term Working Capital Series Notes as
contemplated thereby shall be pro rata by principal amount as among the Holders
of all Long Term Working Capital Series Notes outstanding at the time of such
redemption.
8.2 PURCHASE OF SECURITIES BY THE ISSUER
The provisions of Section 1110 of the Base Indenture shall not
apply to the Long Term Working Capital Series Notes and neither the Issuer nor
any of its Subsidiaries or Affiliates shall be permitted to purchase the Long
Term Working Capital Series Notes in the open market, by tender or in any
privately negotiated transaction or otherwise.
ARTICLE 9
9. MISCELLANEOUS
9.1 INCORPORATION OF INDENTURE
Under this Long Term Working Capital Series Supplemental
Indenture and in accordance with the terms and provisions of the Long Term
Working Capital Series Notes, the following Provisions of the Base Indenture are
superseded and of no force or effect with respect to the Long Term Working
Capital Series Notes: Sections 502, 602, and Article 12. In all other respects
the Base Indenture, as supplemented by and, in the case of Articles 8 and 10 of
the Base Indenture as modified or supplemented by Article 3 hereof and in the
case of Sections 117, 506, 513, 609(c) of the Base Indenture, as modified or
supplemented by Sections 9.5, 5.1, 6.7, 5.2 and 6.8 respectively, of this Long
Term Working Capital Series Supplemental Indenture, is in all respects ratified,
confirmed and approved and, with respect to the Long Term Working Capital Series
Notes, the Base Indenture as supplemented and amended by this Long Term Working
Capital Series Supplemental Indenture shall be read, taken and construed as one
and the same instrument.
9.2 NOTICES
All notices, requests and other communications to any party
hereunder shall, in addition to any requirements under applicable Argentine law,
be in writing (including bank wire, telex, facsimile transmission or similar
writing) and shall be given to such party:
9.2.1 in the case of the Issuer, the Trustee, the Security
Registrar, the Co-Security Registrar, the Paying Agent, the Argentine Paying
Agent, the New Notes Administrative Agent, the Calculation Agent, the
Authenticating Agent or the Transfer Agent at its address, facsimile number or
telex number set forth on the signature pages hereof, or
29
9.2.2 in the case of any party, at such other address,
facsimile number or telex number as such party may hereafter specify for the
purpose by notice to the Administrative Agent and the Issuer in accordance with
the terms of this Section 9.
Notwithstanding any other provision of the Indenture or this
Long Term Working Capital Series Supplemental Indenture each such notice,
request or other communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in or pursuant to this
Section and the appropriate answerback is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number specified in or pursuant
to this Section and confirmation of receipt is received, (iii) if given by mail,
upon receipt or (vi) if given by any other means, when delivered at the address
specified in or pursuant to this Section; provided that notices to the
Administrative Agent and the Issuer under Article 2 shall not be effective until
received.
9.3 NO WAIVERS
No failure or delay by the Trustee, the Long Term Working
Capital Series Agents or any Long Term Working Capital Series Holder in
exercising any right, power or privilege hereunder or under any Long Term
Working Capital Series Note shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
9.4 AMENDMENTS AND WAIVERS; SUPPLEMENTAL INDENTURE
Any provision of the Indenture or this Long Term Working
Capital Series Supplemental Indenture may be amended, supplemented or waived in
any manner affecting the Long Term Working Capital Series Holders, if, but only
if, such amendment, supplement or waiver is in writing and is signed by the
Trustee, the Issuer and the Long Term Working Capital Series Agents (with the
consent of the Required Holders); provided that no such amendment or waiver
shall, unless consented to by all the Long Term Working Capital Series Holders
(i) reduce the principal of or rate of interest on any Long Term Working Capital
Series Note, (ii) postpone the date fixed for any payment of principal of or
interest on any Long Term Working Capital Series Note or any fees or other
amounts payable hereunder, (iii) change the percentage of the aggregate unpaid
principal amount of the Long Term Working Capital Series Notes or the number of
Long Term Working Capital Series Holders which shall be required to take any
action under this Section or any other provision of this Long Term Working
Capital Series Supplemental Indenture, (iv) change the currency of payment, (v)
change any place of payment, (vi) change the ranking of the Long Term Working
Capital Series Notes, (vii) change the governing law under Section 9.11 or
(viii) change the definition of "Required Holder" or "Majority Holder." The
foregoing shall be without prejudice to Section 902 of the Base Indenture.
9.5 JUDGMENT CURRENCY
If for the purposes of obtaining a judgment in any court
enforcing the obligations of the Issuer hereunder or under the Long Term Working
Capital Series Notes it is necessary to
30
convert a sum due from the Issuer in Dollars into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures, the Trustee or each Long Term Working Capital Series Holder as the
case may be could purchase Dollars with such currency at or about 11:00 a.m.
(New York City time) on the Business Day preceding the day on which final
judgment is given.
The obligations of the Issuer in respect of any sum due to any
Long Term Working Capital Series Holder hereunder or under the Long Term Working
Capital Series Notes shall, notwithstanding any judgment in a currency other
than Dollars, be discharged only to the extent that on the Business Day
following receipt by such Long Term Working Capital Series Holder of any sum
adjudged to be so due in such other currency, the Trustee or any Long Term
Working Capital Series Holder, as the case may be, may, in accordance with
normal banking procedures purchase Dollars with such other currency. If the
amount of Dollars so purchased is less than the sum originally due to such Long
Term Working Capital Series Holder in Dollars, the Issuer agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify the Trustee or such Long Term
Working Capital Series Holder as the case may be against such loss, and if the
amount of U.S. Dollars so purchased exceeds the sum originally due to such Long
Term Working Capital Series Holder, such Long Term Working Capital Series Holder
shall remit such excesses to the Issuer.
9.6 WAIVER OF JURY TRIAL
EACH OF THE ISSUER, THE LONG TERM WORKING CAPITAL SERIES
AGENTS AND THE LONG TERM WORKING CAPITAL SERIES HOLDERS HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS LONG
TERM WORKING CAPITAL SERIES SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
9.7 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS;
WAIVER OF ARRAIGO
9.7.1 The parties to this Long Term Working Capital Series
Supplemental Indenture hereby submit to the nonexclusive jurisdiction of the
United States District Court of the Southern District of New York and of any New
York State court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Long Term Working Capital Series
Supplemental Indenture or the transactions contemplated hereby. The parties to
this Long Term Working Capital Series Supplemental Indenture irrevocably waive,
to the fullest extent permitted by law, any objection which they may now or
hereafter have to the laying of the venue of any such proceedings brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
9.7.2 The Issuer hereby agrees that service of all writs,
process and summonses in any such suit, action or proceeding brought in any New
York State or Federal court sitting in New York City may be made upon CT
Corporation System, presently located at 111 Eighth Avenue, New York, NY 10011
(the "Process Agent"), and the Issuer hereby irrevocably appoints the Process
Agent its true and lawful agent in its name, place and stead to accept such
service of
31
any and all such writs, process and summonses, and agrees that the failure of
the Process Agent to give any notice of any such service of process to it shall
not impair or affect the validity of such service or of any judgment based
thereon. As an alternative method of service, the Issuer also irrevocably
consents to the service of any and all process in any such suit, action or
proceeding in such New York State or Federal court sitting in New York City by
the mailing of copies of such process to the Issuer.
9.7.3 The parties to this Long Term Working Capital Series
Supplemental Indenture hereby irrevocably waive, to the fullest extent now or
hereafter permitted under the laws of Argentina or other relevant jurisdiction,
the right to demand that any Long Term Working Capital Series Agent or any Long
Term Working Capital Series Holder post a performance bond or guarantee
(excepcion de arraigo) in any action or proceeding initiated against the parties
to this Long Term Working Capital Series Supplemental Indenture in Argentina in
connection with this Long Term Working Capital Series Supplemental Indenture,
the other Note Documents or the transactions contemplated hereby or thereby.
Nothing in this Section 9.7 shall affect the right of any
party hereto to serve process in any manner permitted by law, or limit any right
that any party hereby may have to bring proceedings against any other party
hereto in the courts of any jurisdiction or to enforce in any lawful manner a
judgment obtained in one jurisdiction in any other jurisdiction.
9.8 WAIVER OF SOVEREIGN IMMUNITY
To the extent that the parties to this Long Term Working
Capital Series Supplemental Indenture have or hereafter may be entitled to claim
or may acquire, for themselves or any of their assets, any immunity from suit,
jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, or
otherwise) with respect to themselves or their property, they hereby irrevocably
waive such immunity in respect of their obligations hereunder and under the
other Note Documents to the fullest extent permitted by applicable law and,
without limiting the generality of the foregoing, agree that the waivers set
forth in this Section 9.8 shall be effective to the fullest extent now or
hereafter permitted under the Foreign Sovereign Immunities Act of 1976 of the
United States and are intended to be irrevocable for purposes of such Act to the
extent permitted thereby.
9.9 KNOWLEDGE OF TRUSTEE
The Trustee shall not be deemed to have knowledge of any
amendment to any Note Document to which it is not party unless it has received a
copy thereof from the Administrative Agent, certified by the New Notes
Administrative Agent to be a true and correct copy thereof. No amendment to any
Note Document which affects the rights and obligations of the Trustee hereunder
shall be effective without the consent of the Trustee thereto.
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9.10 MODIFICATION OF THE INDENTURE
Except as expressly modified by this Long Term Working Capital
Series Supplemental Indenture or any other Note Document, the provisions of the
Indenture shall govern the terms and conditions of the Long Term Working Capital
Series Notes.
9.11 GOVERNING LAW
This Long Term Working Capital Series Supplemental Indenture
and each Long Term Working Capital Series Note shall be governed by and
construed and interpreted in accordance with the law of the State of New York;
provided that all matters relating to the due authorization, execution, issuance
and delivery of the Long Term Working Capital Series Notes by the Issuer, the
approval thereof by the CNV for the offering of the Long Term Working Capital
Series Notes to the public in Argentina and matters relating to the legal
requirements necessary for the Long Term Working Capital Series Notes to qualify
as obligaciones negociables under Argentine law shall be governed by the
Negotiable Obligations Law and other applicable Argentine laws and regulations.
9.12 RIGHT OF SET-OFF
Upon the occurrence and during the continuance of any Event of
Default, and so long as any payment obligation is owing under the Indenture or
any Long Term Working Capital Series Notes by the Issuer to any Long Term
Working Capital Series Note Holder, each such Holder and each of its Affiliate
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time, held and other indebtedness
at any time owing by such Holder or such Affiliates to or for the credit or the
account of the Issuer against any and all of the obligations of the Issuer now
or hereafter existing under the Indenture or any Long Term Working Capital
Series Notes held by such Holder, whether or not such Holder shall have made any
demand under the Indenture or any Long Term Working Capital Series Note and
although such obligations may be unmatured. The rights of each Holder and its
Affiliates under this Section 9.12 are in addition to other rights and remedies
that such Holder and its Affiliates may have. Any Holder exercising its rights
under this Section 9.12 shall give notice thereof to the Issuer and the New
Notes Administrative Agent promptly after the exercise of such rights; provided
that failure to give such notice shall not affect the validity of such exercise.
9.13 COUNTERPARTS
This Long Term Working Capital Series Supplemental Indenture
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
33
IN WITNESS WHEREOF, the parties hereto have caused this Long
Term Working Capital Series Supplemental Indenture to be duly executed by their
respective authorized officers all as of the day and year first above written.
PECOM ENERGIA S.A.
Address: By: ______________________________
Name:
Maipu 1, Piso 20 Title:
C1084ABA Buenos Aires
Argentina
Attn: [__________] By: ______________________________
Name:
Fax Number: Title:
(5411) 4344-6325
THE BANK OF NEW YORK, as Trustee,
Co-Security Registrar,
Authenticating Agent, Paying
Agent and Transfer Agent
Address: By: ______________________________
Name:
[101 Barclay St Title:
Floor 21 West
New York, NY 10286]
Attn: [__________]
Fax Number:
(212) 815-5802
BANCO RIO DE LA PLATA S.A., as
Security Registrar, Argentine
Paying Agent and Transfer Agent
Address: By: ______________________________
Name:
[Bartolme Mitre 480-Piso 6(to)
Buenos Aires, Argentina]
Attn: [Eduardo Rodriguez Sapey]
Fax Number:
[(5411) 4341-1013
(5411) 4341-2827]
JPMORGAN CHASE as Administrative
Agent and as Calculation Agent
Address: By: ______________________________
Name:
[1 Chase Manhattan Plaza Title:
8th Floor
New York, NY 10081
Attn: [Lascelles Thompson/Ora Summerlin]
Fax Number:
(212) 552-5646
EXHIBIT A
TO LONG TERM WORKING CAPITAL SERIES SUPPLEMENTAL INDENTURE
[FORM OF LONG TERM FLOATING RATE WORKING CAPITAL SERIES NOTE DUE 2007]
[FORM OF GLOBAL NOTE]
CUSIP NO.: [ ]
Unless this certificate 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 certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PECOM ENERGIA S.A.
Incorporated in Argentina as a sociedad anonima (a corporation
with limited liability) on November 6, 1946, having legal domicile at Maipu 1,
Buenos Aires, Argentina registered with the Public Registry of Commerce
(Registro Publico del Comercio) on November 17, 1947 under No. 759, Folio 569,
Book 47, Volume A of the Estatutos Nacionales, with a term expiring on June 18,
2046.
[DTC RESTRICTED][REGULATION S] GLOBAL NOTE
representing up to
US$[ ]
Aggregate Principal Amount
of
Floating Rate Notes due [ ]
US$[ ] No. [ ]
[TO BE INCLUDED ONLY ON RESTRICTED NOTE] THIS DTC RESTRICTED GLOBAL NOTE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT AS PERMITTED BY THE FOLLOWING SENTENCES. THE HOLDER HEREOF,
BY ITS ACCEPTANCE OF THIS REGISTERED GLOBAL NOTE, REPRESENTS, ACKNOWLEDGES AND
AGREES THAT IT WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS
REGISTERED GLOBAL NOTE EXCEPT (A) IN COMPLIANCE WITH RULE 144A UNDER
A-1
THE SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER; (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE AND UPON
DELIVERY OF AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE ISSUER); (C)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 903 OR 904 OF REGULATION S
UNDER THE SECURITIES ACT; OR (D) TO AN INSTITUTION THAT IS AN ACCREDITED
INVESTOR (AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT) IN A TRANSACTION
EXEMPT FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT (UPON PROVISION OF
AN INVESTOR LETTER AVAILABLE FROM THE TRANSFER AGENT IN NEW YORK CITY, AND, IF
REQUESTED BY THE ISSUER, AN OPINION OF COUNSEL, EACH IN A FORM SATISFACTORY TO
THE ISSUER), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAW OF
ANY STATE OF THE UNITED STATES. TERMS USED IN THIS LEGEND HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
PECOM ENERGIA S.A., an Argentine corporation duly organized
and existing under the law of the Republic of Argentina (referred to herein as
the "Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns (the "Registered Holder"), upon surrender hereof the
principal sum of U.S. dollars [ ] (US$[ ]) or such amount as shall be the
outstanding principal amount hereof after (i) subtracting all prepayments of
principal made in respect of this [DTC Restricted][Regulation S] Global Note
pursuant to the terms set forth on the reverse hereof; (ii) subtracting the
aggregate principal amount of any Definitive Registered Global Securities
(capitalized terms used herein and not defined herein shall have the meaning
specified in the Indenture referred to below) that are part of the issue of
Securities of which this [DTC Restricted][Regulation S] Global Note is a part
(the "Applicable Tranche") and that are issued upon transfer of or in exchange
for a portion or portions hereof, (iii) subtracting the aggregate principal
amount by which the aggregate principal amount of the [DTC Restricted]
[Regulation S] Global Note that is part of the Applicable Tranche is
increased following a transfer of a portion or portions hereto for a resulting
portion or portions of such [DTC Restricted][Regulation S] Global Note, (iv)
adding the aggregate principal amount by which the aggregate principal amount of
such [DTC Restricted][Regulation S] Global Note is decreased following a
transfer of a portion or portions of such [DTC Restricted][Regulation S] Global
Note for a resulting portion or portions hereof and (v) adding the aggregate
principal amount of any Definitive Registered Global Notes that are part of the
Applicable Tranche and that are canceled upon transfer or exchange for a
resulting portion or portions hereof on [ ], [ ], or on such earlier date as the
principal hereof may become due in accordance with the provisions hereof (the
"Maturity Date"). The Issuer further unconditionally promises to pay interest in
arrears on each Payment Date, beginning on [ ], 2002 and the Maturity Date on
any outstanding portion of the unpaid principal amount hereof at a rate per
annum determined in accordance with Section 2.2 on the reverse hereof and to pay
any Additional Amounts payable in accordance with the Indenture and the Terms
and Conditions of the Notes endorsed hereon (the "Terms and Conditions").
Interest shall accrue from and including the most recent date to which interest
has been paid or duly provided for, or, if no interest has been paid or duly
provided for, from [ ], [ ], until payment of said principal sum has been made
or duly provided for. This being a [DTC Restricted][Regulation S] Global Note
deposited with the Registered Holder, as
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holder of record of this [DTC Restricted][Regulation S] Global Note, the
Registered Holder shall be entitled to receive payments of principal and
interest by wire transfer of immediately available Dollars, provided that
principal and interest due at maturity shall be paid only upon surrender hereof.
[The statements set forth in the restricted legend set forth
above are an integral part of the terms of this DTC Restricted Global Note and
by acceptance hereof each holder of this DTC Restricted Global Note agrees to be
subject to and bound by the terms and provisions set forth in such legend.]
This [DTC Restricted][Regulation S] Global Note is issued in
respect of an issue of US$[ ] aggregate principal amount of Notes of the Issuer
and is governed by the Amended and Restated Indenture (the "Base Indenture")
between the Issuer and The Bank of New York, as supplemented by the [ ]
Supplemental Indenture (the "Supplemental Indenture" and together with the Base
Indenture, the "Indenture") New York Office, as Trustee, and Securities
Registrar, the terms of which Indenture are incorporated herein by reference.
This [DTC Restricted][Regulation S] Global Note shall in all respects be
entitled to the same benefits as other Notes under the Indenture.
Upon any exchange or transfer of all or a portion of this [DTC
Restricted] [Regulation S] Global Note for Definitive Registered Notes or a
portion or portions of the [DTC Restricted][Regulation S] Global Note, or upon
any exchange or transfer of Definitive Registered Notes or a portion or portions
of the [DTC Restricted][Regulation S] Global Note for an interest in this [DTC
Restricted][Regulation S] Global Note, in accordance with the terms of the [DTC
Restricted][Regulation S] Global Note, this [DTC Restricted][Regulation S]
Global Note shall be endorsed to reflect the chance of the principal amount
evidenced hereby as provided for in the Indenture.
This Note constitutes an obligacion negociable under Argentine
Law No. 23,576, as amended (the "Negotiable Obligations Law"), and is entitled
to the benefits set forth therein and is subject to the procedural requirements
thereof. In the case of an occurrence of a default by the Issuer in the payment
of any amount due under this Note, the Holder of this Note is entitled to take
summary judicial proceedings (accion ejecutiva) in order to recover payment of
any such amount.
This Long Term Working Capital Series Note has been issued
pursuant to a resolution of an extraordinary meeting of shareholders of the
Issuer passed on April 8, 1998, and resolutions of the Board of Directors of the
Issuer passed on April 17, 1998 and September 18, 2002.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature of one of its authorized officers,
this Note shall not be valid or obligatory for any purpose.
AS PROVIDED BY DECREE NO. 259/96, THE AMOUNTS PAYABLE PURSUANT
TO THIS LONG TERM WORKING CAPITAL SERIES NOTE ARE PAYABLE
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TO THE REGISTERED HOLDER OR ITS REGISTERED ASSIGNS AS RECORDED ON THE NOTE
REGISTRAR KEPT BY THE SECURITY REGISTRAR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF WHICH FURTHER PROVISIONS ARE INCORPORATED
BY REFERENCE IN THEIR ENTIRETY AND SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT
AS IF SET FORTH AT THIS PLACE.
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IN WITNESS WHEREOF, PECOM ENERGIA S.A. has caused this Note to
be duly executed.
PECOM ENERGIA S.A.,
Dated:_______________ By:_______________________________________
Name:
Title: Director
By:_______________________________________
Name:
Title: Syndic
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York, as Trustee,
By: ______________________________________
Authorized Signatory
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[REVERSE OF NOTE]
TERMS AND CONDITIONS
These Terms and Conditions (these "Terms") apply to and are
incorporated in this Long Term Working Capital Series Note which is one of the
duly authorized issue of Obligaciones Negociables (negotiable obligations,
hereinafter called the "Securities") of PECOM ENERGIA S.A., a sociedad anonima
organized under the laws of the Republic of Argentina (the "Issuer"), of the
series herein specified (Long Term Working Capital Series), all issued or to be
issued under and pursuant to an Amended and Restated Indenture (as in effect on
the date hereof, the "Base Indenture") dated as of August 1, 2002, duly executed
and delivered by the Issuer and [___________], as Trustee (herein called the
"Trustee") and as supplemented by the Fourth Supplemental Indenture dated as of
October 4, 2002 (the "Long Term Working Capital Series Supplemental Indenture")
(as the Base Indenture may be amended or supplemented from time to time,
including by the Long Term Working Capital Series Supplemental Indenture, the
"Indenture").
These Terms hereby incorporate by reference the provisions of
the Indenture as they relate to Long Term Working Capital Series Notes
(including, without limitation, in respect of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee and any agent of
the Trustee, any Long Term Working Capital Series Agent, the Issuer and the Long
Term Working Capital Series Holders and the terms upon which the Long Term
Working Capital Series Notes are issued and are to be authenticated and
delivered). For all purposes of these Terms and the Long Term Working Capital
Series Notes, capitalized terms used herein (i) which are defined herein shall
have the meanings assigned thereto herein, and (ii) which are not defined herein
shall have the meanings assigned thereto in the Indenture.
The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be subject to different
covenants and Events of Default as defined in the Base Indenture and may
otherwise vary as provided or permitted in the Indenture. This Long Term Working
Capital Series Note is one of the series of Securities of the Issuer issued
pursuant to the Indenture and designated as the Long Term Floating Rate Working
Capital Series Notes Due [__], 2007, limited in aggregate principal amount to
[US______________].
No reference herein to the Indenture and no provision of this
Long Term Working Capital Series Note or of the Indenture shall alter or impair
the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, interest on and Additional Amounts, if any, with respect to this
Long Term Working Capital Series Note at the place, rate and respective times
and in the coin or currency herein and in the Indenture prescribed.
The Long Term Working Capital Series Notes are issuable in
registered form without coupons in denominations of US$[__________] and any
integral multiple of US$[_____]. This Long Term Working Capital Series Note may
be exchanged for a like aggregate principal amount of Long Term Working Capital
Series Notes of other authorized denominations at the office or agency of the
Issuer in the City of New York or in Buenos Aires,
A-6
Argentina, designated for such purpose and in the manner and subject to the
limitations provided in the Indenture.
The Long Term Working Capital Series Notes shall constitute
unsecured and unsubordinated obligations of the Issuer and rank pari passu and
without any preference among themselves. The payment obligations of the Issuer
under each Long Term Working Capital Series Note, except as is or may be
provided by Argentine law, rank at least pari passu in priority of payment with
all other present and future unsecured and unsubordinated obligations of the
Issuer from time to time outstanding.
Upon due presentment for registration of transfer of this Long
Term Working Capital Series Note at the office or agency of the Issuer in the
City of New York or in Buenos Aires, Argentina designated for such purpose, a
new Long Term Working Capital Series Note or Long Term Working Capital Series
Notes of authorized denominations for a like aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture. No charge shall be made for any such transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the person in whose name this Long Term Working Capital Series
Note is registered as the owner hereof for all purposes, whether or not this
Long Term Working Capital Series Note is overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
A holder of a beneficial interest in this Global Security may,
by written notice to the Trustee, request that all or part of its interest in
this Global Security be exchanged for Definitive Securities, substantially in
the form of Exhibit B to the Long Term Working Capital Series Supplemental
Indenture, pursuant to Subsection 204(c)(iv) of the Base Indenture, and the
Issuer will execute and Trustee will authenticate such individual Securities
pursuant to Subsection 204(c)(v) of the Base Indenture. In addition, the Long
Term Working Capital Series Notes shall be issued in the form of Definitive
Registered Securities pursuant to the terms of Section 204(c)(i) in the Base
Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Issuer and the Trustee to enter into supplemental indentures to
the Indenture for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of modifying in
any manner the rights of the Holders of the Securities of each series under the
Indenture with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series to be affected thereby on behalf of the Holders of all Securities of such
series. The Indenture also permits the Holders of a majority in aggregate
principal amount of the Securities at the time Outstanding of each series, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Issuer with certain provisions of the Indenture and certain past defaults
and their consequences with respect to such series under the Indenture. Any such
consent or waiver by the Holder of this Long Term Working Capital Series Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Long Term Working Capital Series Note and of any Long Term Working Capital
Series Notes issued upon the registration of transfer hereof or in exchange
herefor or in
A-7
lieu hereof, whether or not notation of such consent or waiver is made upon this
Long Term Working Capital Series Note or such other Long Term Working Capital
Series Notes . In addition, subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Issuer and the Trustee may
amend the Indenture or the notes to make changes that do not adversely affect
the rights of any Holder.
The following provisions shall apply to the Long Term Working
Capital Series Notes:
SECTION 1. INTERPRETATION
For all purposes of these Terms and this Long Term Working
Capital Series Note:
1.1 All references herein to Sections, unless otherwise
specified, refer to the corresponding Sections of these Terms.
1.2 The terms "hereof", "herein", "hereby", "hereto",
"hereunder" and "herewith" refer to this Long Term Working Capital Series Note
and these Terms.
1.3 In accordance with the Indenture, any Long Term
Working Capital Series Note may be referred to as "Security".
1.4 Accounting Terms and Determinations
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder shall be
prepared in accordance with Argentine GAAP, applied on a basis consistent
(except for changes concurred in by the Issuer's independent public accountants)
with the most recent audited consolidated financial statements of the Issuer and
its Subsidiaries delivered to the Long Term Working Capital Series Holders.
SECTION 2. THE LONG TERM WORKING CAPITAL SERIES NOTES
2.1 PRINCIPAL PAYMENTS
The Holder shall receive its ratable share of the principal
payments of the Long Term Working Capital Series Notes, which shall be made on
the following dates in the amounts indicated (which amounts shall be reduced
ratably across their scheduled maturities as a result of the application of any
prepayments pursuant to Section 2.3):
- ---------------------------- ------------------------
DATE AMOUNT
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
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- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
provided that the final principal installment shall be in an amount equal to the
aggregate principal amount of the Long Term Working Capital Series Notes
outstanding on the date of such payment, and shall be made no later than the
Maturity Date.
2.2 INTEREST RATES
2.2.1 Each Long Term Working Capital Series Note shall bear
interest on the outstanding principal amount thereof, for each day, other than a
day during an Alternate Rate Period, during the applicable Interest Period, at a
rate per annum equal to the Applicable LIBOR Rate applicable to such Interest
Period as determined by the Calculation Agent in accordance with the provisions
of the Indenture (including the definition of "LIBOR") which determination shall
be conclusive absent manifest error. The interest accrued in respect of each
Long Term Working Capital Series Note pursuant to this Section 2.2 as of each
Payment Date shall be payable on such Payment Date.
2.2.2 Each Long Term Working Capital Series Note shall bear
interest on the outstanding principal amount thereof, for each day that falls in
any Alternate Rate Period during any Interest Period, at a rate per annum equal
to the Alternative Basis Interest Rate as determined by the Calculation Agent in
accordance with the provisions of the Indenture.
2.2.3 Any overdue amount of Note Payments with respect to
the Long Term Working Capital Series Notes shall (without duplication of any
amounts payable under clauses 2.2.1 or 2.2.2 of this Section 2.2) bear interest,
payable on demand (such interest, "Default Interest"), (i) for each day, other
than a day during an Alternate Rate Period, until (and to the extent) Satisfied
in Cash, at a rate per annum equal to the sum of the Applicable LIBOR Rate then
in effect plus 2% and (ii) on and after the Maturity Date until such amount
shall be Satisfied in Cash in full at a rate per annum equal at all times to the
sum of (A) the Applicable LIBOR Rate computed for the period determined by the
New Notes Administrative Agent beginning with the Maturity Date and for
successive one-month periods as though each were an Interest Period plus (B) 2%.
2.2.4 (a) The initial Interest Period shall commence on the
date of the Takedown and shall end as provided in the definition of Interest
Period. Thereafter, each Interest
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Period shall commence as provided in the definition of Interest Period and end
on a Payment Date, provided that the last Interest Period shall end on the
Maturity Date.
(b) Prior to the commencement of any Interest Period, the
Calculation Agent will notify the Issuer, the Trustee and the Long Term Working
Capital Series Holders of (i) the Applicable LIBOR Rate or Alternative Basis
Interest Rate for such Interest Period and (ii) the total aggregate amount of
interest payable on the next Payment Date.
2.2.5 The Calculation Agent shall determine the interest
rate applicable in respect of each Interest Period for each day during an
Alternate Rate Period in accordance with the following provisions:
(a) upon delivery of an Alternate Rate Notice under
Section 2.6, the alternative basis for computing interest (the "Alternative
Basis Interest Rate"), which shall be payable in connection with such Interest
Period shall be the greater of (x) the Federal Funds Rate plus 0.5% or (y) the
Prime Rate, plus in each case the Applicable Margin; or
(b) if the Alternate Rate Notice was delivered under
Section 2.6, then during the 30 days next succeeding the giving of an Alternate
Rate Notice, the Issuer and the Majority Holders shall negotiate in good faith
in order to arrive at a mutually satisfactory alternative basis for computing
interest (the "Alternative Basis Interest Rate"), which shall be payable in
connection with such Interest Period in order to compensate the Long Term
Working Capital Series Holders for the inadequate interest rate resulting from
the occurrence of the conditions specified in Section 2.6. If within such 30-day
period, the Issuer and the Majority Holders agree in writing upon the
Alternative Basis Interest Rate, such Alternative Basis Interest Rate shall be
payable to all Long Term Working Capital Series Holders in respect of their
holdings of Long Term Working Capital Series Notes from the commencement of, and
only for, the duration of such Interest Period. If the Issuer and the Majority
Holders fail to agree upon such Alternative Basis Interest Rate within such
30-day period, the Alternative Basis Interest Rate in connection with such
Interest Period payable to each Long Term Working Capital Series Holder for such
Interest Period shall be such Alternative Basis Interest Rate as such Long Term
Working Capital Series Holder shall determine (in a certificate delivered by
such Long Term Working Capital Series Holder to the Trustee setting forth the
basis of the computation of such amount, which certificate shall be conclusive
and binding for all purposes, absent manifest error) to be necessary to
compensate such Long Term Working Capital Series Holder for its cost of
obtaining (in good faith and using commercially reasonable efforts to minimize
the interest cost to the Issuer) as of the commencement of such Interest Period
funds for such Interest Period in an amount equal to the principal amount of
such Long Term Working Capital Series Holder's outstanding Long Term Working
Capital Series Notes plus the Applicable Margin. The Trustee shall notify the
Issuer and the Calculation Agent of each such determination as promptly as
practicable.
As the negotiations described in the preceding subparagraph of
this Section 2.2.5 and any resulting Alternative Basis Interest Rate are
intended for the direct benefit of the Long Term Working Capital Series Holders,
the Issuer expressly covenants and acknowledges (i) that as a result of any such
negotiations following the delivery of an Alternate Rate Notice under Section
2.6, the Long Term Working Capital Series Holders shall not receive a lower rate
of interest on the Long Term Working Capital Series Notes than the Long Term
Working Capital
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Series Holders would have received had there not been such negotiations, and
(ii) that such negotiations shall in no event cause, justify or give rise to any
delay or reduction in the payment of interest, principal or other amounts
payable by the Issuer under the Indenture or the Long Term Working Capital
Series Notes.
The Calculation Agent shall give prompt written notice to the
Issuer, the Trustee and the Long Term Working Capital Series Holders of the rate
of interest so determined, and its determination thereof shall be prima facie
evidence thereof, absent manifest error.
2.3 REDEMPTION
2.3.1 OPTIONAL REDEMPTION
The Issuer may (a) upon at least three (3) Eurodollar Business
Days' irrevocable notice to the Administrative Agent, the Calculation Agent and
the Paying Agent, repay the Long Term Working Capital Series Notes outstanding
on the last day of any Interest Period, in whole or in part, at a redemption
price of 100% of the principal amount thereof plus accrued and unpaid interest
thereon to the date of redemption plus all other accrued and unpaid amounts
under the Note Documents in respect of such Long Term Working Capital Series
Notes, if any, (b) at any time upon at least three (3) Eurodollar Business Days'
irrevocable notice redeem the Long Term Working Capital Series Notes in whole,
or in part, at a redemption price of 100% of the principal amount thereof plus
accrued and unpaid interest thereon to the date of redemption plus LIBOR Funding
Costs, if any, plus all other accrued and unpaid amounts under the Note
Documents in respect of such Long Term Working Capital Series Notes (including
without limitation, any Additional Amounts), if any, and (c) redeem the Long
Term Working Capital Series Notes at any time if required so to do in order to
comply with applicable law or if the Issuer would be required to pay any
Additional Amounts, at a redemption price of 100% of the principal amount
thereof plus accrued and unpaid interest thereon to the date of redemption plus
LIBOR Funding Costs, if any, plus all other accrued and unpaid amounts under the
Note Documents in respect of such Long Term Working Capital Series Notes
(including, without limitation, any Additional Amounts), if any; provided that
each partial prepayment shall be in respect of an aggregate principal amount of
US$100,000 or an integral multiple of US$1,000 in excess thereof and shall be
made pro rata among all Long Term Working Capital Series Holders in accordance
with the respective amounts owing to them. Each such prepayment hereunder shall
be applied ratably to prepay the remaining scheduled principal payments under
the Long Term Working Capital Series Notes in accordance with the respective
amounts thereof.
2.3.2 MANDATORY REDEMPTION
2.3.2.1 The Issuer shall, on the first Payment Date that
occurs at least 120 days after the end of each fiscal year, prepay an aggregate
principal amount of the Long Term Working Capital Series Notes in an amount
equal to (a) 50% of the amount of Excess Cash for such fiscal year multiplied by
(b) a fraction, (i) the numerator of which is equal to the aggregate outstanding
principal amount of Long Term Working Capital Series Notes immediately prior to
such prepayment and (ii) the denominator of which is the sum of:
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(A) the aggregate principal amount of all Letter
of Credit Advances outstanding under all Letter of Credit
Facilities and all New Notes in each case outstanding
immediately prior to any prepayment thereof from such Excess
Cash on such date, plus
(B) the aggregate Available Amount of all
Letters of Credit outstanding under all Letter of Credit
Facilities immediately prior to any reduction thereof in
respect of such Excess Cash on such date, minus
(C) the aggregate amount of cash and investments
thereof credited to the L/C Collateral Accounts in respect of
all Letter of Credit Facilities immediately prior to any
deposits made to such accounts in respect of such Excess Cash
on such date.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments (not including the Payment Date on which
such payment is made) under the Long Term Working Capital Series Notes.
2.3.2.2 The Issuer shall, on the first Payment Date occurring
at least 180 days after the date of any Asset Sale by the Issuer or any of its
Subsidiaries (excluding Asset Sales in the ordinary course of business), prepay
an aggregate principal amount of the Long Term Working Capital Series Notes in
an amount equal to (a) 100% of the Net Cash Proceeds from such Asset Sale less
the sum of the proceeds of such Asset Sale that shall have been used for Capital
Expenditures prior to such Payment Date as permitted by subsection (e) of the
Negative Covenants in Annex C and, if such Asset Sale consists of a Sale of
Ecuadorian Assets, the amount of Net Cash Proceeds of such Asset Sale required
to be applied in accordance with Section 2.04(j) of the Letter of Credit
Issuance and Reimbursement Agreement multiplied by (b) a fraction, (i) the
numerator of which is equal to the aggregate outstanding principal amount of
Long Term Working Capital Series Notes immediately prior to such prepayment and
(ii) the denominator of which is the sum of:
(A) the aggregate principal amount of all Letter of
Credit Advances outstanding under all Letter of Credit
Facilities and all New Notes in each case outstanding
immediately prior to any prepayment thereof from such Net Cash
Proceeds on such date, plus
(B) the aggregate Available Amount of all Letters of
Credit outstanding under all Letter of Credit Facilities
immediately prior to any reduction thereof in respect of such
Net Cash Proceeds on such date, minus
(C) the aggregate amount of cash and investments
thereof credited to the L/C Collateral Accounts in respect of
all Letter of Credit Facilities immediately prior to any
deposits made to such accounts in respect of such Net Cash
Proceeds on such date.
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Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments (not including the Payment Date on which
such payment is made) under the Long Term Working Capital Series Notes.
2.3.2.3 On any date on which the Issuer shall, at its option,
prepay, redeem, repurchase or in any manner defease or discharge any outstanding
principal amount of any Long Term New Notes (other than the Long Term Working
Capital Series Notes) or Long Term Debt prior to the scheduled maturity thereof
the Issuer shall prepay an aggregate principal amount of the Long Term Working
Capital Series Notes equal to the product of:
(a) the aggregate principal amount of the Long Term
Working Capital Series Notes outstanding at such time, multiplied by
(b) a fraction of which:
(i) the numerator is equal to the aggregate
principal amount of such Long Term New Notes (other than the
Long Term Working Capital Series Notes) or Long Term Debt, as
applicable, that is the subject of such repayment or discharge
(in each case immediately prior thereto), and
(ii) the denominator is equal to the aggregate
principal amount of such Long Term New Notes (other than the
Long Term Working Capital Series Notes) or such Long Term Debt
outstanding immediately prior to such prepayment or discharge.
In the event that the Issuer shall, at any time, with respect to any Long Term
New Notes (other than the Long Term Working Capital Series Notes) or any Long
Term Debt, enter into any amendment to, or in any other manner cause any change
or rescheduling of, the scheduled payments of principal with respect to such
Debt that would result in a shortening of the remaining average life of any such
Debt, any payment of principal of such Debt on any date shall be treated as an
optional prepayment of such Debt for purposes of this Section 2.3.2.3.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments under the Long Term Working Capital
Series Notes.
2.3.2.4 Whenever the Issuer shall on any date make an
optional prepayment or redemption of any outstanding Long Term Letter of Credit
Advances under a Letter of Credit Facility prior to the scheduled maturity
thereof then the Issuer shall on the date of such prepayment or redemption,
prepay an aggregate principal amount of the Long Term Working Capital Series
Notes equal to the product of the aggregate principal amount of the Long Term
Working Capital Series Notes outstanding on such date, multiplied by a fraction:
(a) the numerator of which is equal to the aggregate
principal amount of such Long Term Letter of Credit Advances prepaid
and
(b) the denominator of which is equal to:
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(i) the aggregate principal amount of all Long
Term Letter of Credit Advances under such Letter of Credit
Facility and all Long Term MT Notes issued upon any Conversion
of Long Term Letter of Credit Advances made under such Letter
of Credit Facility outstanding immediately prior to such
prepayment and redemption, plus
(ii) the aggregate Available Amounts of all
Letters of Credit issued under such Letter of Credit Facility
outstanding immediately prior to such prepayment and
redemption, minus
(iii) the aggregate amount of cash and investments
thereof credited to the L/C Cash Collateral Account in respect
of such Letter of Credit Facility outstanding immediately
prior to such prepayment and redemption.
In the event that the Issuer shall, at any time, with respect to any Long Term
Letter of Credit Advances, enter into any amendment to, or in any manner cause
any change or rescheduling of, the scheduled payments of principal with respect
to such Debt that would result in a shortening of the remaining average life of
any such Debt, any payment of principal of such Debt on any date shall be
treated as an optional prepayment of such Debt for purposes of this Section
2.3.2.4.
Each such prepayment shall be applied ratably to prepay the remaining scheduled
principal payments under the Long Term Working Capital Series Notes.
2.3.2.5 The Issuer shall, on the first Business Day that
occurs at least 50 days after the end of each fiscal quarter of the Issuer,
prepay the aggregate outstanding principal amount of the Long Term Working
Capital Series Notes in an amount equal to 50% of the New Debt Amount with
respect to such fiscal quarter multiplied by a fraction:
(a) the numerator of which is equal to the aggregate
principal amount of the Long Term Working Capital Series Notes
outstanding immediately prior to any prepayment pursuant to this
subsection, and
(b) the denominator of which is equal to
(i) the aggregate principal amount of the New
Notes, outstanding immediately prior to any prepayment thereof
in respect of such New Debt Amount, plus
(ii) the aggregate principal amount of all Letter
of Credit Advances outstanding under all Letter of Credit
Facilities immediately prior to any prepayment thereof in
respect of such New Debt Amount, plus
(iii) the aggregate Available Amount of all
Letters of Credit outstanding under all Letter of Credit
Facilities immediately prior to any reduction thereof in
respect of such New Debt Amount, minus
(iv) the aggregate amount of cash and investments
thereof credited to the L/C Collateral Accounts in respect of
all Letter of Credit Facilities
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immediately prior to any deposits made to such accounts in
respect of such New Debt Amount.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments under the Long Term Working Capital
Series Notes.
2.3.2.6 On any date on which the Issuer shall at its option
make any deposit to any L/C Collateral Account pledged in favor of the Lenders
under any Letter of Credit Facility, at a time when no such deposit would
otherwise be required pursuant to the Letter of Credit Issuance and
Reimbursement Agreement, the Issuer shall, on the date of such deposit, prepay
an aggregate principal amount of the Long Term Working Capital Series Notes in
an amount equal to (a) the aggregate principal amount of the Long Term Working
Capital Series Notes outstanding on such date, multiplied by (b) a fraction:
(A) the numerator of which is equal to the aggregate
amount of cash so deposited into such L/C Cash Collateral Account in
respect of such Letter of Credit Facility on such date, and
(B) the denominator of which is equal to:
(I) the aggregate principal amount of all Letter
of Credit Advances outstanding under such
Letter of Credit Facilities and New Notes
issued upon any Conversion of Letter of
Credit Advances made under such Letter of
Credit Facility outstanding immediately
prior to such deposit, plus
(II) the aggregate Available Amount of all
Letters of Credit outstanding under such
Letter of Credit Facility immediately prior
to such deposit, minus
(III) the aggregate amount of cash and investments
thereof credited to such L/C Collateral
Account immediately prior to such deposit.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments under the Long Term Working Capital
Series Notes in accordance with the respective amounts thereof.
2.3.2.7 On any date on which the Issuer shall at its option
reduce the Available Amount of any Letter of Credit issued under any Letter of
Credit Facility by either (a) causing a new letter of credit for which the
Issuer or one or more of its Subsidiaries is the account party to be issued
other than under the Letter of Credit Issuance and Reimbursement Agreement or
(b) having the Issuer or one or more of its Subsidiaries create, assume, incur
or suffer to exist a Lien on cash or financial assets for the benefit of, or
contribute cash or financial assets to, the beneficiary thereof, at a time when
no such reduction would otherwise be required pursuant to the Letter of Credit
Issuance and Reimbursement Agreement, the Issuer shall prepay an aggregate
principal amount of the Long Term Working Capital Series Notes in an amount
equal
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to (i) the aggregate principal amount of the Long Term Working Capital Series
Notes outstanding at such date, multiplied by (ii) a fraction:
(A) the numerator of which is equal to the aggregate
reductions of such Available Amounts in respect of such Letter of
Credit issued under such Letter of Credit Facility, and
(B) the denominator of which is equal to:
(I) the aggregate principal amount of all Letter
of Credit Advances outstanding under such
Letter of Credit Facility and the New Notes
issued upon any Conversion of Letter of
Credit Advances made under such Letter of
Credit Facility, in each case outstanding
immediately prior to such reduction, plus
(II) the aggregate Available Amount of all
Letters of Credit outstanding under such
Letter of Credit Facility immediately prior
to such reduction, minus
(III) the aggregate amount of cash and investments
thereof credited to the L/C Collateral
Account in respect of such Letter of Credit
Facility outstanding immediately prior to
such reduction.
Each such prepayment shall be applied ratably to prepay the remaining scheduled
principal payments under the Long Term Working Capital Series Notes in
accordance with the respective amounts thereof.
Each prepayment under this Section 2.3.2 shall be made pro
rata among all Long Term Working Capital Series Holders in accordance with the
respective amounts owing to them. All prepayments under this Section 2.3.2 shall
be made together with accrued interest to the date of such prepayment on the
principal amount prepaid and any Additional Amounts, LIBOR Funding Costs or
other amounts due hereunder.
2.4 GENERAL PROVISIONS AS TO PAYMENTS
2.4.1 The Issuer shall make each payment of principal of,
and interest on, the Long Term Working Capital Series Notes and of fees and
other amounts payable hereunder, not later than 3:00 p.m. (New York City time)
on the date when due, in immediately available funds in Dollars in New York
City, to The Bank of New York, the Paying Agent, at [ ], Attn: [ ]. The Paying
Agent will promptly distribute to each Long Term Working Capital Series Holder
its ratable share of each such payment received by the Paying Agent for the
account of the Long Term Working Capital Series Holders. Whenever any payment of
principal of, or interest on, the Long Term Working Capital Series Notes shall
be due on a day which is not a Eurodollar Business Day, the date for payment
thereof shall be extended to the immediately succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another calendar month, in which
case the date for payment thereof shall be the immediately preceding
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Eurodollar Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
2.4.2 Notwithstanding the provisions of this Section 2.4,
upon written notice to the Issuer and the Trustee by any Long Term Working
Capital Series Note Holder that a payment to it by the Issuer hereunder be made
in Argentina, such payment shall be made for the benefit of such Long Term
Working Capital Series Note Holder to the Argentine Paying Agent, in which event
the provisions of Sections 2.4.1 relating to the Paying Agent shall apply
mutatis mutandi to the Argentine Paying Agent.
2.4.3 The Bank of New York shall be the initial Paying
Agent, and Banco Rio de la Plata S.A. shall be the initial Argentine Paying
Agent, for the Long Term Working Capital Series Notes. The consent of the
Majority Holders and the Issuer shall be required for the appointment of any
successor in such capacities in respect of the Long Term Working Capital Series
Notes.
2.4.4 It is understood and agreed by the parties hereto
that, for all purposes of this Long Term Working Capital Series Supplemental
Indenture and the other Note Documents, the Issuer may satisfy its payment
obligations with respect to the Long Term Working Capital Series Notes by making
payments in Cash to the Paying Agent or, if applicable pursuant to Section
2.4.2, the Argentine Paying Agent, for the benefit of the party to whom any such
payment is due and for the application thereof pursuant to the terms of the
Indenture, and the Issuer's payment obligations hereunder with respect to the
Long Term Working Capital Series Notes (i) may only be Satisfied in Cash, and
(ii) shall be deemed satisfied and discharged only and to the extent Satisfied
in Cash.
2.5 COMPUTATION OF INTEREST
All interest hereunder shall be computed on the basis of a
year of 360 days and paid for the actual number of days elapsed (including the
first day but excluding the last day). Notwithstanding the foregoing, during
each Alternate Rate Period, for each day that the Alternative Basis Interest
Rate is determined by reference to the rate applicable pursuant to Section
2.2.5(a) and the Alternative Basis Interest Rate is based upon the Prime Rate as
contemplated therein, interest shall be computed on the basis of a year of 365
or 366 days, as the case may be, and paid for the actual number of days elapsed
(including the first day but excluding the last day). The applicable interest
rate for any Interest Period or Alternate Rate Period will be calculated by the
Calculation Agent in accordance with the provisions hereof and will be reported
to the Trustee, the Paying Agent and the Argentine Paying Agent, as an amount of
Dollars payable per U.S.$1,000 principal amount of Long Term Working Capital
Series Notes at least 3 days prior to the applicable Payment Date.
2.6 LIBOR DISRUPTION
If (a) on or prior to the first day of any Interest Period the
Calculation Agent reasonably determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for
ascertaining the LIBOR for such Interest Period, or (b) on or prior to the first
day of any Interest Period the Majority Holders advise the
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Calculation Agent that the LIBOR for such Interest Period will not adequately
and fairly reflect the cost to such Long Term Working Capital Series Holders of
purchasing and holding their Long Term Working Capital Series Notes during such
Interest Period, the Calculation Agent shall forthwith give notice thereof (an
"Alternate Rate Notice") in respect of such Interest Period to the Issuer, the
Trustee and the Long Term Working Capital Series Holders, whereupon until the
Calculation Agent gives notice (an "Alternate Rate Rescission Notice") to the
Issuer, the Trustee and the Long Term Working Capital Series Holders that each
circumstance giving rise to such Alternate Rate Notice no longer exists (it
being understood that the Calculation Agent will give such notice reasonably
promptly after it has knowledge that such circumstances have ceased to exist),
the interest rate applicable to the Long Term Working Capital Series Notes shall
be determined pursuant to Section 2.2.5.
2.7 ADDITIONAL AMOUNTS - TAXES
In addition to the provisions of the Base Indenture, and, to
the extent in conflict herewith, notwithstanding such provisions, the Issuer
agrees that any and all payments by the Issuer hereunder shall be made, free and
clear of, and without withholding or deduction for or on account of, any Taxes,
excluding, (i) in the case of each Long Term Working Capital Series Holder, New
Notes Administrative Agent, Paying Agent or Argentine Paying Agent, Taxes that
are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by any state or foreign jurisdiction under the laws of which such Long
Term Working Capital Series Holder, New Notes Administrative Agent, Paying Agent
or Argentine Paying Agent, as the case may be, is organized, or any political
subdivision thereof, and (ii) in the case of each Long Term Working Capital
Series Holder, Taxes that are imposed on its overall net income (and franchise
taxes imposed in lieu thereof) by the state or foreign jurisdiction of its
Holding Office or any political subdivision thereof (all such nonexcluded Taxes
in respect of payments hereunder collectively, "Indemnifiable Taxes"). If any
Indemnifiable Taxes are required to be withheld or deducted from any such
payment, the Issuer shall pay such additional amounts as may be necessary to
ensure that the amounts received by each Long Term Working Capital Series
Holder, New Notes Administrative Agent, Paying Agent or Argentine Paying Agent
(as the case may be) after such withholding or deduction (and after withholding
or deduction on amounts payable under this Section 2.7) shall equal the
respective amounts that would have been receivable from the Issuer (any such
additional amounts required to be paid by the Issuer, "Additional Amounts").
The Issuer shall promptly pay when due any present or future
stamp, court or documentary taxes or any other excise or property taxes, charges
or similar levies (including the Personal Property Tax) that arise in any
jurisdiction from any payment made hereunder or from the execution, delivery,
enforcement or registration of this Agreement or any other document or
instrument referred to herein or therein (collectively, "Other Taxes").
The Issuer agrees to indemnify each Long Term Working Capital
Series Holder, New Notes Administrative Agent, Paying Agent or Argentine Paying
Agent for the full amount of Indemnifiable Taxes and Other Taxes, and for the
full amount of taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.7, imposed on or paid by any such Long Term
Working Capital Series Holder, the New Notes Administrative Agent, the Paying
Agent or Argentine Paying Agent, as the case may be, and any liability
(including penalties, additions to tax interest and expenses) arising therefrom
or with respect thereto.
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Amounts payable by the Issuer under the indemnity set forth in this paragraph
shall be paid within 30 days from the date on which the applicable Long Term
Working Capital Series Holder, New Notes Administrative Agent, Paying Agent or
Argentine Paying Agent, as the case may be, makes written demand therefor.
Within 30 days after the date of any payment of Taxes under
this Section 2.7, the Issuer will notify the Administrative Agent of such
payment and, at the request of the Administrative Agent, furnish to the
Administrative Agent at its address referred to in Section 9.2 of the
Supplemental Indenture, the original or a certified copy of a receipt evidencing
payment thereof. Upon request, the Issuer shall provide the Administrative Agent
with documentation reasonably satisfactory to the Administrative Agent
evidencing the payment of any Additional Amounts. Copies of such documentation
shall be made available by the Administrative Agent to the Long Term Working
Capital Series Holders upon request.
2.8 ILLEGALITY
Notwithstanding any other provision of this Long Term Working
Capital Series Supplemental Indenture, if any Long Term Working Capital Series
Holder shall notify the Long Term Working Capital Series Administrative Agent
that the introduction of or any change in or in the interpretation of an law or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Long Term Working Capital Series
Holder or its Holding Office to purchase, own, hold or maintain its Long Term
Working Capital Series Note (after such Long Term Working Capital Series Holder
used such reasonable efforts to transfer its Long Term Working Capital Series
Notes if such transfer will avoid illegality and shall not, in the sole judgment
of such Long Term Working Capital Series Holder, be disadvantageous
(economically or otherwise) to such Long Term Working Capital Series Holder) the
Issuer shall promptly redeem the Long Term Working Capital Series Note(s) held
by such Long Term Working Capital Series Holder by paying the principal amount
to be redeemed, together with accrued interest thereon to the date of
redemption, together with any amounts payable pursuant to Section 2.9 in respect
of such redemption.
2.9 YIELD PROTECTION
If, for any reason, the Issuer makes any payment of principal
with respect to any Long Term Working Capital Series Note on any day other than
the last day of the Interest Period then applicable thereto, the Issuer shall,
promptly upon demand, reimburse each Long Term Working Capital Series Holder for
any LIBOR Funding Costs incurred by such Long Term Working Capital Series Holder
of such amount prepaid, provided that such Long Term Working Capital Series
Holder shall have delivered to the Issuer a certificate as to the amount of such
loss or expense, which certificate shall be conclusive and binding for all
purposes, absent manifest error.
2.10 INCREASED COSTS AND REDUCED RETURN
2.10.1 If, on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or
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comparable agency charged with the interpretation or administration thereof, or
compliance by any Long Term Working Capital Series Holder (or its Holding
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency, (i) shall subject any
Long Term Working Capital Series Holder (or its Holding Office) to any tax, duty
or other charge with respect to one or more of its Long Term Working Capital
Series Notes, or shall change the basis of taxation of payments to any Long Term
Working Capital Series Holder (or its Holding Office) of the principal of or
interest on its Long Term Working Capital Series Notes or any other amounts due
under this Indenture or any Long Term Working Capital Series Notes, except for
the introduction of, or changes in the rate of, tax on the overall net income of
such Long Term Working Capital Series Holder (or its Holding Office), or
franchise taxes, imposed by the jurisdiction (or any political subdivision or
taxing authority thereof) under the laws of which such Long Term Working Capital
Series Holder is organized (or in which such Long Term Working Capital Series
Holder's Holding Office is located); or (ii) shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System and minimum
reserve requirements of the European Central Bank but excluding any such
requirement included in an applicable Eurodollar Reserve Percentage), special
deposit, insurance assessment or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Long Term Working Capital
Series Holder (or its Holding Office) or shall impose on any Long Term Working
Capital Series Holder (or its Holding Office) or the London interbank market any
other condition affecting the purchasing, owning, holding or maintaining of any
one or more Long Term Working Capital Series Notes by such Long Term Working
Capital Series Holder (or its Holding Office) and the result of any of the
foregoing is to increase the cost to such Long Term Working Capital Series
Holder (or its Holding Office or any holding company of which such Long Term
Working Capital Series Holder is a subsidiary) of purchasing, owning, holding or
maintaining any one or more of its Long Term Working Capital Series Notes, or to
reduce the amount of any sum received or receivable by such Long Term Working
Capital Series Holder (or its Holding Office) under the Indenture and any one or
more of its Long Term Working Capital Series Notes, by an amount deemed by such
Long Term Working Capital Series Holder to be material (excluding, for purposes
of this Section 2.10.1 any increased costs or any reductions resulting from any
Indemnifiable Taxes or Other Taxes payable by the Issuer pursuant to Section
2.7), then, promptly upon demand by such Long Term Working Capital Series Holder
(with a copy to the New Notes Administrative Agent and the Calculation Agent),
which demand shall be accompanied by a certificate of such Long Term Working
Capital Series Holder setting forth in reasonable detail the circumstances which
give rise to such increase or reduction, the amount of the claim and the
calculation thereof (and which certificate shall be conclusive and binding for
all purposes, absent manifest error), the Issuer shall, to the extent that it
shall not have done so under any other provision of the Indenture, pay to such
Long Term Working Capital Series Holder such additional amount or amounts as
will, without duplication, compensate such Long Term Working Capital Series
Holder (or any holding company of which such Long Term Working Capital Series
Holder is a subsidiary) for such increased cost or reduction.
2.10.2 If, on or after the date hereof, any Long Term Working
Capital Series Holder shall determine that the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any change in any such law,
rule or regulation, or any change in the
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interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has the effect of reducing the rate of return on capital of any Long
Term Working Capital Series Holder (or any holding company of which such Long
Term Working Capital Series Holder is a subsidiary) as a consequence of such
Long Term Working Capital Series Holder's purchasing, owning, maintaining or
holding any Long Term Working Capital Series Notes to a level below that which
such Long Term Working Capital Series Holder (or its Holding Office or any
holding company of which such Long Term Working Capital Series Holder is a
subsidiary) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Long Term Working Capital Series Holder to
be material, then from time to time, promptly upon demand by such Long Term
Working Capital Series Holder (with a copy to the New Notes Administrative
Agent), which demand shall be accompanied by a certificate of such Long Term
Working Capital Series Holder setting forth in reasonable detail the
circumstances which give rise to such reduction, the amount of the claim and the
calculation thereof (and which certificate shall be conclusive and binding for
all purposes, absent manifest error), the Issuer shall, to the extent that it
shall not have already done so under any other provision of the Indenture, pay
to such Long Term Working Capital Series Holder such additional amount or
amounts as will, without duplication, compensate such Long Term Working Capital
Series Holder or its Holding Office (or any holding company of which such Long
Term Working Capital Series Holder is a subsidiary) for such reduction.
Each Long Term Working Capital Series Holder will promptly
notify the Issuer, the New Notes Administrative Agent and the Calculation Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Long Term Working Capital Series Holder to compensation
pursuant to this Section 2.10. Each Long Term Working Capital Series Holder
will, before requesting compensation for additional amounts pursuant to this
Section 2.10, use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to minimize or eliminate the requirement of
such compensation by transferring its Long Term Working Capital Series Notes to
a different Holding Office or otherwise if such transfer or other action will
avoid or reduce the need for compensation for such additional amounts and will
not, in the sole judgment of such Long Term Working Capital Series Holder, be
otherwise disadvantageous (economically or otherwise) to such Long Term Working
Capital Series Holder; provided that no Long Term Working Capital Series Holder
shall have any obligation to provide any information as to any possible actions
or designations considered and taken or rejected by such Long Term Working
Capital Series Holder or the reasons therefore. A certificate of any Long Term
Working Capital Series Holder claiming compensation under this Section 2.10 and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive and binding for all purposes, absent manifest error.
SECTION 3. COVENANTS
In addition to the covenants contained in Articles Eight and
Ten of the Base Indenture, the Issuer agrees that, so long as any amount payable
under any Long Term Working Capital Series Note remains unpaid, it will comply
with the covenants set forth in Sections 3.1
A-21
through 3.5 of the Long Term Working Capital Series Supplemental Indenture and
the terms and covenants set forth in Annex C to the Long Term Working Capital
Series Supplemental Indenture under the terms and conditions set forth therein.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The representations and warranties set forth in Annex B to the
Long Term Working Capital Series Supplemental Indenture under the terms and
conditions set forth therein are incorporated herein by reference.
SECTION 5. GOVERNING LAW
This Long Term Working Capital Series Note shall be governed
by and construed and interpreted in accordance with the law of the State of New
York; provided that all matters relating to the due authorization, execution,
issuance and delivery of the Long Term Working Capital Series Notes by the
Issuer, the approval thereof by the CNV for the offering of the Long Term
Working Capital Series Notes to the public in Argentina and matters relating to
the legal requirements necessary for the Long Term Working Capital Series Notes
to qualify as obligaciones negociables under Argentine law shall be governed by
the Negotiable Obligations Law and other applicable Argentine laws and
regulations.
A-22
EXHIBIT B
TO LONG TERM WORKING CAPITAL SERIES SUPPLEMENTAL INDENTURE
[FORM OF LONG TERM FLOATING RATE WORKING CAPITAL SERIES NOTE DUE 2007]
[FORM OF DEFINITIVE NOTE]
CUSIP NO.: [ ]
Incorporated in Argentina as a sociedad anonima (a corporation
with limited liability) on November 6, 1946, having legal domicile at Maipu 1,
Buenos Aires, Argentina registered with the Public Registry of Commerce
(Registro Publico del Comercio) on November 17, 1947 under No. 759, Folio 569,
Book 47, Volume A of the Estatutos Nacionales, with a term expiring on June 18,
2046.
[LONG TERM FLOATING RATE WORKING CAPITAL SERIES NOTES, DUE 2007]
Registered Principal Amount: US$[___],000,000
No. ______ ISIN: _____________
Common Code: __________
CUSIP: ____________
Pecom Energia S.A., a sociedad anonima organized, existing and
incorporated under the laws of to Republic of Argentina (herein called the
"Issuer", which term includes any successor Person under the Indenture), for
value received, hereby promises to pay to [_____] (the "Registered Holder" or
"Holder") or registered assigns, the principal sum of [______] United States
dollars (US $[___],000,000) in the City of New York, or, but only upon prior
request of the Registered Holder, in Buenos Aires, Argentina, in either case on
the dates and in the amounts specified in the Long Term Working Capital Series
Supplemental Indenture in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and, in accordance with the applicable provisions of the Terms
and Conditions (the "Terms and Conditions") set forth on the reverse of this
Note (capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Terms and Conditions). The Issuer further
unconditionally promises to pay interest in arrears on each Payment Date,
beginning on [ ], 2002 and the Maturity Date on any outstanding portion of the
unpaid principal amount hereof at a rate per annum determined in accordance with
Section 2.2 on the reverse hereof and to pay any Additional Amounts payable in
accordance with the Indenture and the Terms and Conditions of the Notes endorsed
hereon (the
B-1
"Terms and Conditions"). Interest shall accrue from and including the most
recent date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from [ ], [ ], until payment of
said principal sum has been made or duly provided for. The interest so payable,
and punctually paid or duly provided for, on any Payment Date will, except as
provided in the Terms and Conditions, be paid by wire transfer of immediately
available funds to the Registered Holder in whose name this Note (or one or more
predecessor Long Term Working Capital Series Notes) is registered at the close
of business on the third Business Day next preceding such Payment Date (each a
"Regular Record Date"). Any such interest which is payable, but is not so
punctually paid or duly provided for, shall forthwith cease to be payable to the
registered Holder on such Regular Record Date and may be paid either to the
person in whose name this Note (or one or more predecessor Long Term Working
Capital Series Notes) is registered at the close of business on a Special Record
Date for the payment of such interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Long Term Working Capital Series Notes not less
than ten 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 Long Term Working Capital Series Notes may be listed, and
upon such notice as may be required by such exchange, if such manner of payment
shall be deemed practicable by the Trustee, all as more fully provided in the
Indenture. Notwithstanding the foregoing, in the case of interest payable at the
Maturity Date, such interest shall be paid to the same Person to whom the
principal hereof is payable. Principal of this Note will be payable by transfer
to a U.S. Dollar account maintained by the registered Holder with a bank located
in New York City in accordance with wire transfer instructions provided by the
registered Holder.
This Definitive Note is issued in respect of an issue of US$[
] aggregate principal amount of Notes of the Issuer and is governed by the
Amended and Restated Indenture (the "Base Indenture") between the Issuer and The
Bank of New York, as supplemented by the [ ] Supplemental Indenture (the
"Supplemental Indenture" and together with the Base Indenture, the "Indenture")
New York Office, as Trustee, and Securities Registrar, the terms of which
Indenture are incorporated herein by reference. This Definitive Note shall in
all respects be entitled to the same benefits as other Notes under the
Indenture.
This Note constitutes an obligacion negociable under Argentine
Law No. 23,576, as amended (the "Negotiable Obligations Law"), and is entitled
to the benefits set forth therein and is subject to the procedural requirements
thereof. In the case of an occurrence of a default by the Issuer in the payment
of any amount due under this Note, the Holder of this Note is entitled to take
summary judicial proceedings (accion ejecutiva) in order to recover payment of
any such amount.
This Long Term Working Capital Series Note has been issued
pursuant to a resolution of an extraordinary meeting of shareholders of the
Issuer passed on April 8, 1998, and resolutions of the Board of Directors of the
Issuer passed on April 17, 1998 and September 18, 2002.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature of one of its authorized officers,
this Note shall not be valid or obligatory for any purpose.
B-2
AS PROVIDED BY DECREE NO. 259/96, THE AMOUNTS PAYABLE PURSUANT
TO THIS LONG TERM WORKING CAPITAL SERIES NOTE ARE PAYABLE TO THE REGISTERED
HOLDER OR ITS REGISTERED ASSIGNS AS RECORDED ON THE NOTE REGISTRAR KEPT BY THE
SECURITY REGISTRAR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF WHICH FURTHER PROVISIONS ARE INCORPORATED
BY REFERENCE IN THEIR ENTIRETY AND SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT
AS IF SET FORTH AT THIS PLACE.
B-3
IN WITNESS WHEREOF, PECOM ENERGIA S.A. has caused this Note to
be duly executed.
Dated: PECOM ENERGIA S.A.,
By:_______________________________________
Name:
Title: Director
By:_______________________________________
Name:
Title: Syndic
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York, as Trustee,
By:_______________________________________
Authorized Signatory
B-4
[REVERSE OF NOTE]
TERMS AND CONDITIONS
These Terms and Conditions (these "Terms") apply to and are
incorporated in this Long Term Working Capital Series Note which is one of the
duly authorized issue of Obligaciones Negociables (negotiable obligations,
hereinafter called the "Securities") of PECOM ENERGIA S.A., a sociedad anonima
organized under the laws of the Republic of Argentina (the "Issuer"), of the
series herein specified (Long Term Working Capital Series), all issued or to be
issued under and pursuant to an Amended and Restated Indenture (as in effect on
the date hereof, the "Base Indenture") dated as of August 1, 2002, duly executed
and delivered by the Issuer and [___________], as Trustee (herein called the
"Trustee") and as supplemented by the Fourth Supplemental Indenture dated as of
October 4, 2002 (the "Long Term Working Capital Series Supplemental Indenture")
(as the Base Indenture may be amended or supplemented from time to time,
including by the Long Term Working Capital Series Supplemental Indenture, the
"Indenture").
These Terms hereby incorporate by reference the provisions of
the Indenture as they relate to Long Term Working Capital Series Notes
(including, without limitation, in respect of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee and any agent of
the Trustee, any Long Term Working Capital Series Agent, the Issuer and the Long
Term Working Capital Series Holders and the terms upon which the Long Term
Working Capital Series Notes are issued and are to be authenticated and
delivered). For all purposes of these Terms and the Long Term Working Capital
Series Notes, capitalized terms used herein (i) which are defined herein shall
have the meanings assigned thereto herein, and (ii) which are not defined herein
shall have the meanings assigned thereto in the Indenture.
The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be subject to different
covenants and Events of Default as defined in the Base Indenture and may
otherwise vary as provided or permitted in the Indenture. This Long Term Working
Capital Series Note is one of the series of Securities of the Issuer issued
pursuant to the Indenture and designated as the Long Term Floating Rate Working
Capital Series Notes Due [__], 2007, limited in aggregate principal amount to
[US______________].
No reference herein to the Indenture and no provision of this
Long Term Working Capital Series Note or of the Indenture shall alter or impair
the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, interest on and Additional Amounts, if any, with respect to this
Long Term Working Capital Series Note at the place, rate and respective times
and in the coin or currency herein and in the Indenture prescribed.
The Long Term Working Capital Series Notes are issuable in
registered form without coupons in denominations of US$[__________] and any
integral multiple of US$[_____]. This Long Term Working Capital Series Note may
be exchanged for a like aggregate principal amount of Long Term Working Capital
Series Notes of other authorized denominations at the office or agency of the
Issuer in the City of New York or in Buenos Aires,
B-5
Argentina, designated for such purpose and in the manner and subject to the
limitations provided in the Indenture.
The Long Term Working Capital Series Notes shall constitute
unsecured and unsubordinated obligations of the Issuer and rank pari passu and
without any preference among themselves. The payment obligations of the Issuer
under each Long Term Working Capital Series Note, except as is or may be
provided by Argentine law, rank at least pari passu in priority of payment with
all other present and future unsecured and unsubordinated obligations of the
Issuer from time to time outstanding.
Upon due presentment for registration of transfer of this Long
Term Working Capital Series Note at the office or agency of the Issuer in the
City of New York or in Buenos Aires, Argentina designated for such purpose, a
new Long Term Working Capital Series Note or Long Term Working Capital Series
Notes of authorized denominations for a like aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture. No charge shall be made for any such transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the person in whose name this Long Term Working Capital Series
Note is registered as the owner hereof for all purposes, whether or not this
Long Term Working Capital Series Note is overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the Issuer and the Trustee to enter into supplemental indentures to
the Indenture for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of modifying in
any manner the rights of the Holders of the Securities of each series under the
Indenture with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series to be affected thereby on behalf of the Holders of all Securities of such
series. The Indenture also permits the Holders of a majority in aggregate
principal amount of the Securities at the time Outstanding of each series, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Issuer with certain provisions of the Indenture and certain past defaults
and their consequences with respect to such series under the Indenture. Any such
consent or waiver by the Holder of this Long Term Working Capital Series Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Long Term Working Capital Series Note and of any Long Term Working Capital
Series Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Long Term Working Capital Series Note or such other Long Term
Working Capital Series Notes . In addition, subject to certain exceptions set
forth in the Indenture, without the consent of any Holder, the Issuer and the
Trustee may amend the Indenture or the notes to make changes that do not
adversely affect the rights of any Holder.
The following provisions shall apply to the Long Term Working
Capital Series Notes:
B-6
SECTION 1. INTERPRETATION
For all purposes of these Terms and this Long Term Working
Capital Series Note:
1.1 All references herein to Sections, unless otherwise
specified, refer to the corresponding Sections of these Terms.
1.2 The terms "hereof", "herein", "hereby", "hereto",
"hereunder" and "herewith" refer to this Long Term Working Capital Series Note
and these Terms.
1.3 In accordance with the Indenture, any Long Term
Working Capital Series Note may be referred to as "Security".
1.4 Accounting Terms and Determinations
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder shall be
prepared in accordance with Argentine GAAP, applied on a basis consistent
(except for changes concurred in by the Issuer's independent public accountants)
with the most recent audited consolidated financial statements of the Issuer and
its Subsidiaries delivered to the Long Term Working Capital Series Holders.
SECTION 2. THE LONG TERM WORKING CAPITAL SERIES NOTES
2.1 PRINCIPAL PAYMENTS
The Holder shall receive its ratable share of the principal
payments of the Long Term Working Capital Series Notes, which shall be made on
the following dates in the amounts indicated (which amounts shall be reduced
ratably across their scheduled maturities as a result of the application of any
prepayments pursuant to Section 2.3):
- ---------------------------- ------------------------
DATE AMOUNT
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
- ---------------------------- ------------------------
B-7
- ---------------------------- ------------------------
- ---------------------------- ------------------------
provided that the final principal installment shall be in an amount equal to the
aggregate principal amount of the Long Term Working Capital Series Notes
outstanding on the date of such payment, and shall be made no later than the
Maturity Date.
2.2 INTEREST RATES
2.2.1 Each Long Term Working Capital Series Note shall bear
interest on the outstanding principal amount thereof, for each day, other than a
day during an Alternate Rate Period, during the applicable Interest Period, at a
rate per annum equal to the Applicable LIBOR Rate applicable to such Interest
Period as determined by the Calculation Agent in accordance with the provisions
of the Indenture (including the definition of "LIBOR") which determination shall
be conclusive absent manifest error. The interest accrued in respect of each
Long Term Working Capital Series Note pursuant to this Section 2.2 as of each
Payment Date shall be payable on such Payment Date.
2.2.2 Each Long Term Working Capital Series Note shall bear
interest on the outstanding principal amount thereof, for each day that falls in
any Alternate Rate Period during any Interest Period, at a rate per annum equal
to the Alternative Basis Interest Rate as determined by the Calculation Agent in
accordance with the provisions of the Indenture.
2.2.3 Any overdue amount of Note Payments with respect to
the Long Term Working Capital Series Notes shall (without duplication of any
amounts payable under clauses 2.2.1 or 2.2.2 of this Section 2.2) bear interest,
payable on demand (such interest, "Default Interest"), (i) for each day, other
than a day during an Alternate Rate Period, until (and to the extent) Satisfied
in Cash, at a rate per annum equal to the sum of the Applicable LIBOR Rate then
in effect plus 2% and (ii) on and after the Maturity Date until such amount
shall be Satisfied in Cash in full at a rate per annum equal at all times to the
sum of (A) the Applicable LIBOR Rate computed for the period determined by the
New Notes Administrative Agent beginning with the Maturity Date and for
successive one-month periods as though each were an Interest Period plus (B) 2%.
2.2.4 (a) The initial Interest Period shall commence on the
date of the Takedown and shall end as provided in the definition of Interest
Period. Thereafter, each Interest Period shall commence as provided in the
definition of Interest Period and end on a Payment Date, provided that the last
Interest Period shall end on the Maturity Date.
(b) Prior to the commencement of any Interest Period, the
Calculation Agent will notify the Issuer, the Trustee and the Long Term Working
Capital Series Holders of (i) the Applicable LIBOR Rate or Alternative Basis
Interest Rate for such Interest Period and (ii) the total aggregate amount of
interest payable on the next Payment Date.
2.2.5 The Calculation Agent shall determine the interest
rate applicable in respect of each Interest Period for each day during an
Alternate Rate Period in accordance with the following provisions:
B-8
(a) upon delivery of an Alternate Rate Notice under
Section 2.6, the alternative basis for computing interest (the "Alternative
Basis Interest Rate"), which shall be payable in connection with such Interest
Period shall be the greater of (x) the Federal Funds Rate plus 0.5% or (y) the
Prime Rate, plus in each case the Applicable Margin; or
(b) if the Alternate Rate Notice was delivered under
Section 2.6, then during the 30 days next succeeding the giving of an Alternate
Rate Notice, the Issuer and the Majority Holders shall negotiate in good faith
in order to arrive at a mutually satisfactory alternative basis for computing
interest (the "Alternative Basis Interest Rate"), which shall be payable in
connection with such Interest Period in order to compensate the Long Term
Working Capital Series Holders for the inadequate interest rate resulting from
the occurrence of the conditions specified in Section 2.6. If within such 30-day
period, the Issuer and the Majority Holders agree in writing upon the
Alternative Basis Interest Rate, such Alternative Basis Interest Rate shall be
payable to all Long Term Working Capital Series Holders in respect of their
holdings of Long Term Working Capital Series Notes from the commencement of, and
only for, the duration of such Interest Period. If the Issuer and the Majority
Holders fail to agree upon such Alternative Basis Interest Rate within such
30-day period, the Alternative Basis Interest Rate in connection with such
Interest Period payable to each Long Term Working Capital Series Holder for such
Interest Period shall be such Alternative Basis Interest Rate as such Long Term
Working Capital Series Holder shall determine (in a certificate delivered by
such Long Term Working Capital Series Holder to the Trustee setting forth the
basis of the computation of such amount, which certificate shall be conclusive
and binding for all purposes, absent manifest error) to be necessary to
compensate such Long Term Working Capital Series Holder for its cost of
obtaining (in good faith and using commercially reasonable efforts to minimize
the interest cost to the Issuer) as of the commencement of such Interest Period
funds for such Interest Period in an amount equal to the principal amount of
such Long Term Working Capital Series Holder's outstanding Long Term Working
Capital Series Notes plus the Applicable Margin. The Trustee shall notify the
Issuer and the Calculation Agent of each such determination as promptly as
practicable.
As the negotiations described in the preceding subparagraph of
this Section 2.2.5 and any resulting Alternative Basis Interest Rate are
intended for the direct benefit of the Long Term Working Capital Series Holders,
the Issuer expressly covenants and acknowledges (i) that as a result of any such
negotiations following the delivery of an Alternate Rate Notice under Section
2.6, the Long Term Working Capital Series Holders shall not receive a lower rate
of interest on the Long Term Working Capital Series Notes than the Long Term
Working Capital Series Holders would have received had there not been such
negotiations, and (ii) that such negotiations shall in no event cause, justify
or give rise to any delay or reduction in the payment of interest, principal or
other amounts payable by the Issuer under the Indenture or the Long Term Working
Capital Series Notes.
The Calculation Agent shall give prompt written notice to the
Issuer, the Trustee and the Long Term Working Capital Series Holders of the rate
of interest so determined, and its determination thereof shall be prima facie
evidence thereof, absent manifest error.
2.3 REDEMPTION
2.3.1 OPTIONAL REDEMPTION
B-9
The Issuer may (a) upon at least three (3) Eurodollar Business
Days' irrevocable notice to the Administrative Agent, the Calculation Agent and
the Paying Agent, repay the Long Term Working Capital Series Notes outstanding
on the last day of any Interest Period, in whole or in part, at a redemption
price of 100% of the principal amount thereof plus accrued and unpaid interest
thereon to the date of redemption plus all other accrued and unpaid amounts
under the Note Documents in respect of such Long Term Working Capital Series
Notes, if any, (b) at any time upon at least three (3) Eurodollar Business Days'
irrevocable notice redeem the Long Term Working Capital Series Notes in whole,
or in part, at a redemption price of 100% of the principal amount thereof plus
accrued and unpaid interest thereon to the date of redemption plus LIBOR Funding
Costs, if any, plus all other accrued and unpaid amounts under the Note
Documents in respect of such Long Term Working Capital Series Notes (including
without limitation, any Additional Amounts), if any, and (c) redeem the Long
Term Working Capital Series Notes at any time if required so to do in order to
comply with applicable law or if the Issuer would be required to pay any
Additional Amounts, at a redemption price of 100% of the principal amount
thereof plus accrued and unpaid interest thereon to the date of redemption plus
LIBOR Funding Costs, if any, plus all other accrued and unpaid amounts under the
Note Documents in respect of such Long Term Working Capital Series Notes
(including, without limitation, any Additional Amounts), if any; provided that
each partial prepayment shall be in respect of an aggregate principal amount of
US$100,000 or an integral multiple of US$1,000 in excess thereof and shall be
made pro rata among all Long Term Working Capital Series Holders in accordance
with the respective amounts owing to them. Each such prepayment hereunder shall
be applied ratably to prepay the remaining scheduled principal payments under
the Long Term Working Capital Series Notes in accordance with the respective
amounts thereof.
2.3.2 MANDATORY REDEMPTION
2.3.2.1 The Issuer shall, on the first Payment Date that
occurs at least 120 days after the end of each fiscal year, prepay an aggregate
principal amount of the Long Term Working Capital Series Notes in an amount
equal to (a) 50% of the amount of Excess Cash for such fiscal year multiplied by
(b) a fraction, (i) the numerator of which is equal to the aggregate outstanding
principal amount of Long Term Working Capital Series Notes immediately prior to
such prepayment and (ii) the denominator of which is the sum of:
(A) the aggregate principal amount of all Letter
of Credit Advances outstanding under all Letter of Credit
Facilities and all New Notes in each case outstanding
immediately prior to any prepayment thereof from such Excess
Cash on such date, plus
(B) the aggregate Available Amount of all
Letters of Credit outstanding under all Letter of Credit
Facilities immediately prior to any reduction thereof in
respect of such Excess Cash on such date, minus
(C) the aggregate amount of cash and investments
thereof credited to the L/C Collateral Accounts in respect of
all Letter of Credit Facilities immediately prior to any
deposits made to such accounts in respect of such Excess Cash
on such date.
B-10
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments (not including the Payment Date on which
such payment is made) under the Long Term Working Capital Series Notes.
2.3.2.2 The Issuer shall, on the first Payment Date occurring
at least 180 days after the date of any Asset Sale by the Issuer or any of its
Subsidiaries (excluding Asset Sales in the ordinary course of business), prepay
an aggregate principal amount of the Long Term Working Capital Series Notes in
an amount equal to (a) 100% of the Net Cash Proceeds from such Asset Sale less
the sum of the proceeds of such Asset Sale that shall have been used for Capital
Expenditures prior to such Payment Date as permitted by subsection (e) of the
Negative Covenants in Annex C and, if such Asset Sale consists of a Sale of
Ecuadorian Assets, the amount of Net Cash Proceeds of such Asset Sale required
to be applied in accordance with Section 2.04(j) of the Letter of Credit
Issuance and Reimbursement Agreement multiplied by (b) a fraction, (i) the
numerator of which is equal to the aggregate outstanding principal amount of
Long Term Working Capital Series Notes immediately prior to such prepayment and
(ii) the denominator of which is the sum of:
(A) the aggregate principal amount of all Letter
of Credit Advances outstanding under all Letter of Credit
Facilities and all New Notes in each case outstanding
immediately prior to any prepayment thereof from such Net Cash
Proceeds on such date, plus
(B) the aggregate Available Amount of all
Letters of Credit outstanding under all Letter of Credit
Facilities immediately prior to any reduction thereof in
respect of such Net Cash Proceeds on such date, minus
(C) the aggregate amount of cash and investments
thereof credited to the L/C Collateral Accounts in respect of
all Letter of Credit Facilities immediately prior to any
deposits made to such accounts in respect of such Net Cash
Proceeds on such date.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments (not including the Payment Date on which
such payment is made) under the Long Term Working Capital Series Notes.
2.3.2.3 On any date on which the Issuer shall, at its option,
prepay, redeem, repurchase or in any manner defease or discharge any outstanding
principal amount of any Long Term New Notes (other than the Long Term Working
Capital Series Notes) or Long Term Debt prior to the scheduled maturity thereof
the Issuer shall prepay an aggregate principal amount of the Long Term Working
Capital Series Notes equal to the product of:
(a) the aggregate principal amount of the Long Term
Working Capital Series Notes outstanding at such time, multiplied by
(b) a fraction of which:
B-11
(i) the numerator is equal to the aggregate
principal amount of such Long Term New Notes (other than the
Long Term Working Capital Series Notes) or Long Term Debt, as
applicable, that is the subject of such repayment or discharge
(in each case immediately prior thereto), and
(ii) the denominator is equal to the aggregate
principal amount of such Long Term New Notes (other than the
Long Term Working Capital Series Notes) or such Long Term Debt
outstanding immediately prior to such prepayment or discharge.
In the event that the Issuer shall, at any time, with respect to any Long Term
New Notes (other than the Long Term Working Capital Series Notes) or any Long
Term Debt, enter into any amendment to, or in any other manner cause any change
or rescheduling of, the scheduled payments of principal with respect to such
Debt that would result in a shortening of the remaining average life of any such
Debt, any payment of principal of such Debt on any date shall be treated as an
optional prepayment of such Debt for purposes of this Section 2.3.2.3.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments under the Long Term Working Capital
Series Notes.
2.3.2.4 Whenever the Issuer shall on any date make an
optional prepayment or redemption of any outstanding Long Term Letter of Credit
Advances under a Letter of Credit Facility prior to the scheduled maturity
thereof then the Issuer shall on the date of such prepayment or redemption,
prepay an aggregate principal amount of the Long Term Working Capital Series
Notes equal to the product of the aggregate principal amount of the Long Term
Working Capital Series Notes outstanding on such date, multiplied by a fraction:
(a) the numerator of which is equal to the aggregate
principal amount of such Long Term Letter of Credit Advances prepaid
and
(b) the denominator of which is equal to:
(i) the aggregate principal amount of all Long
Term Letter of Credit Advances under such Letter of Credit
Facility and all Long Term MT Notes issued upon any Conversion
of Long Term Letter of Credit Advances made under such Letter
of Credit Facility outstanding immediately prior to such
prepayment and redemption, plus
(ii) the aggregate Available Amounts of all
Letters of Credit issued under such Letter of Credit Facility
outstanding immediately prior to such prepayment and
redemption, minus
(iii) the aggregate amount of cash and investments
thereof credited to the L/C Cash Collateral Account in respect
of such Letter of Credit Facility outstanding immediately
prior to such prepayment and redemption.
B-12
In the event that the Issuer shall, at any time, with respect to any Long Term
Letter of Credit Advances, enter into any amendment to, or in any manner cause
any change or rescheduling of, the scheduled payments of principal with respect
to such Debt that would result in a shortening of the remaining average life of
any such Debt, any payment of principal of such Debt on any date shall be
treated as an optional prepayment of such Debt for purposes of this Section
2.3.2.4.
Each such prepayment shall be applied ratably to prepay the remaining scheduled
principal payments under the Long Term Working Capital Series Notes.
2.3.2.5 The Issuer shall, on the first Business Day that
occurs at least 50 days after the end of each fiscal quarter of the Issuer,
prepay the aggregate outstanding principal amount of the Long Term Working
Capital Series Notes in an amount equal to 50% of the New Debt Amount with
respect to such fiscal quarter multiplied by a fraction:
(a) the numerator of which is equal to the aggregate
principal amount of the Long Term Working Capital Series Notes
outstanding immediately prior to any prepayment pursuant to this
subsection, and
(b) the denominator of which is equal to
(i) the aggregate principal amount of the New
Notes, outstanding immediately prior to any prepayment thereof
in respect of such New Debt Amount, plus
(ii) the aggregate principal amount of all Letter
of Credit Advances outstanding under all Letter of Credit
Facilities immediately prior to any prepayment thereof in
respect of such New Debt Amount, plus
(iii) the aggregate Available Amount of all
Letters of Credit outstanding under all Letter of Credit
Facilities immediately prior to any reduction thereof in
respect of such New Debt Amount, minus
(iv) the aggregate amount of cash and investments
thereof credited to the L/C Collateral Accounts in respect of
all Letter of Credit Facilities immediately prior to any
deposits made to such accounts in respect of such New Debt
Amount.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments under the Long Term Working Capital
Series Notes.
2.3.2.6 On any date on which the Issuer shall at its option
make any deposit to any L/C Collateral Account pledged in favor of the Lenders
under any Letter of Credit Facility, at a time when no such deposit would
otherwise be required pursuant to the Letter of Credit Issuance and
Reimbursement Agreement, the Issuer shall, on the date of such deposit, prepay
an aggregate principal amount of the Long Term Working Capital Series Notes in
an amount equal to (a) the aggregate principal amount of the Long Term Working
Capital Series Notes outstanding on such date, multiplied by (b) a fraction:
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(A) the numerator of which is equal to the aggregate
amount of cash so deposited into such L/C Cash Collateral Account in
respect of such Letter of Credit Facility on such date, and
(B) the denominator of which is equal to:
(I) the aggregate principal amount of all Letter
of Credit Advances outstanding under such
Letter of Credit Facilities and New Notes
issued upon any Conversion of Letter of
Credit Advances made under such Letter of
Credit Facility outstanding immediately
prior to such deposit, plus
(II) the aggregate Available Amount of all
Letters of Credit outstanding under such
Letter of Credit Facility immediately prior
to such deposit, minus
(III) the aggregate amount of cash and investments
thereof credited to such L/C Collateral
Account immediately prior to such deposit.
Each such prepayment shall be applied ratably to reduce the amount of the
remaining scheduled principal payments under the Long Term Working Capital
Series Notes in accordance with the respective amounts thereof.
2.3.2.7 On any date on which the Issuer shall at its option
reduce the Available Amount of any Letter of Credit issued under any Letter of
Credit Facility by either (a) causing a new letter of credit for which the
Issuer or one or more of its Subsidiaries is the account party to be issued
other than under the Letter of Credit Issuance and Reimbursement Agreement or
(b) having the Issuer or one or more of its Subsidiaries create, assume, incur
or suffer to exist a Lien on cash or financial assets for the benefit of, or
contribute cash or financial assets to, the beneficiary thereof, at a time when
no such reduction would otherwise be required pursuant to the Letter of Credit
Issuance and Reimbursement Agreement, the Issuer shall prepay an aggregate
principal amount of the Long Term Working Capital Series Notes in an amount
equal to (i) the aggregate principal amount of the Long Term Working Capital
Series Notes outstanding at such date, multiplied by (ii) a fraction:
(A) the numerator of which is equal to the aggregate
reductions of such Available Amounts in respect of such Letter of
Credit issued under such Letter of Credit Facility, and
(B) the denominator of which is equal to:
(I) the aggregate principal amount of all Letter
of Credit Advances outstanding under such
Letter of Credit Facility and the New Notes
issued upon any Conversion of Letter of
Credit Advances made under such Letter of
Credit Facility, in each case outstanding
immediately prior to such reduction, plus
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(II) the aggregate Available Amount of all
Letters of Credit outstanding under such
Letter of Credit Facility immediately prior
to such reduction, minus
(III) the aggregate amount of cash and investments
thereof credited to the L/C Collateral
Account in respect of such Letter of Credit
Facility outstanding immediately prior to
such reduction.
Each such prepayment shall be applied ratably to prepay the remaining scheduled
principal payments under the Long Term Working Capital Series Notes in
accordance with the respective amounts thereof.
Each prepayment under this Section 2.3.2 shall be made pro rata among all Long
Term Working Capital Series Holders in accordance with the respective amounts
owing to them. All prepayments under this Section 2.3.2 shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid and any Additional Amounts, LIBOR Funding Costs or other amounts due
hereunder.
2.4 GENERAL PROVISIONS AS TO PAYMENTS
2.4.1 The Issuer shall make each payment of principal of,
and interest on, the Long Term Working Capital Series Notes and of fees and
other amounts payable hereunder, not later than 3:00 p.m. (New York City time)
on the date when due, in immediately available funds in Dollars in New York
City, to The Bank of New York, the Paying Agent, at [ ], Attn: [ ]. The Paying
Agent will promptly distribute to each Long Term Working Capital Series Holder
its ratable share of each such payment received by the Paying Agent for the
account of the Long Term Working Capital Series Holders. Whenever any payment of
principal of, or interest on, the Long Term Working Capital Series Notes shall
be due on a day which is not a Eurodollar Business Day, the date for payment
thereof shall be extended to the immediately succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another calendar month, in which
case the date for payment thereof shall be the immediately preceding Eurodollar
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
2.4.2 Notwithstanding the provisions of this Section 2.4,
upon written notice to the Issuer and the Trustee by any Long Term Working
Capital Series Note Holder that a payment to it by the Issuer hereunder be made
in Argentina, such payment shall be made for the benefit of such Long Term
Working Capital Series Note Holder to the Argentine Paying Agent, in which event
the provisions of Sections 2.4.1 relating to the Paying Agent shall apply
mutatis mutandi to the Argentine Paying Agent.
2.4.3 The Bank of New York shall be the initial Paying
Agent, and Banco Rio de la Plata S.A. shall be the initial Argentine Paying
Agent, for the Long Term Working Capital Series Notes. The consent of the
Majority Holders and the Issuer shall be required for the appointment of any
successor in such capacities in respect of the Long Term Working Capital Series
Notes.
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2.4.4 It is understood and agreed by the parties hereto
that, for all purposes of this Long Term Working Capital Series Supplemental
Indenture and the other Note Documents, the Issuer may satisfy its payment
obligations with respect to the Long Term Working Capital Series Notes by making
payments in Cash to the Paying Agent or, if applicable pursuant to Section
2.4.2, the Argentine Paying Agent, for the benefit of the party to whom any such
payment is due and for the application thereof pursuant to the terms of the
Indenture, and the Issuer's payment obligations hereunder with respect to the
Long Term Working Capital Series Notes (i) may only be Satisfied in Cash, and
(ii) shall be deemed satisfied and discharged only and to the extent Satisfied
in Cash.
2.5 COMPUTATION OF INTEREST
All interest hereunder shall be computed on the basis of a
year of 360 days and paid for the actual number of days elapsed (including the
first day but excluding the last day). Notwithstanding the foregoing, during
each Alternate Rate Period, for each day that the Alternative Basis Interest
Rate is determined by reference to the rate applicable pursuant to Section
2.2.5(a) and the Alternative Basis Interest Rate is based upon the Prime Rate as
contemplated therein, interest shall be computed on the basis of a year of 365
or 366 days, as the case may be, and paid for the actual number of days elapsed
(including the first day but excluding the last day). The applicable interest
rate for any Interest Period or Alternate Rate Period will be calculated by the
Calculation Agent in accordance with the provisions hereof and will be reported
to the Trustee, the Paying Agent and the Argentine Paying Agent, as an amount of
Dollars payable per U.S.$1,000 principal amount of Long Term Working Capital
Series Notes at least 3 days prior to the applicable Payment Date.
2.6 LIBOR DISRUPTION
If (a) on or prior to the first day of any Interest Period the
Calculation Agent reasonably determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for
ascertaining the LIBOR for such Interest Period, or (b) on or prior to the first
day of any Interest Period the Majority Holders advise the Calculation Agent
that the LIBOR for such Interest Period will not adequately and fairly reflect
the cost to such Long Term Working Capital Series Holders of purchasing and
holding their Long Term Working Capital Series Notes during such Interest
Period, the Calculation Agent shall forthwith give notice thereof (an "Alternate
Rate Notice") in respect of such Interest Period to the Issuer, the Trustee and
the Long Term Working Capital Series Holders, whereupon until the Calculation
Agent gives notice (an "Alternate Rate Rescission Notice") to the Issuer, the
Trustee and the Long Term Working Capital Series Holders that each circumstance
giving rise to such Alternate Rate Notice no longer exists (it being understood
that the Calculation Agent will give such notice reasonably promptly after it
has knowledge that such circumstances have ceased to exist), the interest rate
applicable to the Long Term Working Capital Series Notes shall be determined
pursuant to Section 2.2.5.
2.7 ADDITIONAL AMOUNTS - TAXES
In addition to the provisions of the Base Indenture, and, to
the extent in conflict herewith, notwithstanding such provisions, the Issuer
agrees that any and all payments by the
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Issuer hereunder shall be made, free and clear of, and without withholding or
deduction for or on account of, any Taxes, excluding, (i) in the case of each
Long Term Working Capital Series Holder, New Notes Administrative Agent, Paying
Agent or Argentine Paying Agent, Taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by any state or foreign
jurisdiction under the laws of which such Long Term Working Capital Series
Holder, New Notes Administrative Agent, Paying Agent or Argentine Paying Agent,
as the case may be, is organized, or any political subdivision thereof, and (ii)
in the case of each Long Term Working Capital Series Holder, Taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction of its Holding Office or any political
subdivision thereof (all such nonexcluded Taxes in respect of payments hereunder
collectively, "Indemnifiable Taxes"). If any Indemnifiable Taxes are required to
be withheld or deducted from any such payment, the Issuer shall pay such
additional amounts as may be necessary to ensure that the amounts received by
each Long Term Working Capital Series Holder, New Notes Administrative Agent,
Paying Agent or Argentine Paying Agent (as the case may be) after such
withholding or deduction (and after withholding or deduction on amounts payable
under this Section 2.7) shall equal the respective amounts that would have been
receivable from the Issuer (any such additional amounts required to be paid by
the Issuer, "Additional Amounts").
The Issuer shall promptly pay when due any present or future
stamp, court or documentary taxes or any other excise or property taxes, charges
or similar levies (including the Personal Property Tax) that arise in any
jurisdiction from any payment made hereunder or from the execution, delivery,
enforcement or registration of this Agreement or any other document or
instrument referred to herein or therein (collectively, "Other Taxes").
The Issuer agrees to indemnify each Long Term Working Capital
Series Holder, New Notes Administrative Agent, Paying Agent or Argentine Paying
Agent for the full amount of Indemnifiable Taxes and Other Taxes, and for the
full amount of taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.7, imposed on or paid by any such Long Term
Working Capital Series Holder, the New Notes Administrative Agent, the Paying
Agent or Argentine Paying Agent, as the case may be, and any liability
(including penalties, additions to tax interest and expenses) arising therefrom
or with respect thereto. Amounts payable by the Issuer under the indemnity set
forth in this paragraph shall be paid within 30 days from the date on which the
applicable Long Term Working Capital Series Holder, New Notes Administrative
Agent, Paying Agent or Argentine Paying Agent, as the case may be, makes written
demand therefor.
Within 30 days after the date of any payment of Taxes under
this Section 2.7, the Issuer will notify the Administrative Agent of such
payment and, at the request of the Administrative Agent, furnish to the
Administrative Agent at its address referred to in Section 9.2 of the
Supplemental Indenture, the original or a certified copy of a receipt evidencing
payment thereof. Upon request, the Issuer shall provide the Administrative Agent
with documentation reasonably satisfactory to the Administrative Agent
evidencing the payment of any Additional Amounts. Copies of such documentation
shall be made available by the Administrative Agent to the Long Term Working
Capital Series Holders upon request.
2.8 ILLEGALITY
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Notwithstanding any other provision of this Long Term Working
Capital Series Supplemental Indenture, if any Long Term Working Capital Series
Holder shall notify the Long Term Working Capital Series Administrative Agent
that the introduction of or any change in or in the interpretation of an law or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Long Term Working Capital Series
Holder or its Holding Office to purchase, own, hold or maintain its Long Term
Working Capital Series Note (after such Long Term Working Capital Series Holder
used such reasonable efforts to transfer its Long Term Working Capital Series
Notes if such transfer will avoid illegality and shall not, in the sole judgment
of such Long Term Working Capital Series Holder, be disadvantageous
(economically or otherwise) to such Long Term Working Capital Series Holder) the
Issuer shall promptly redeem the Long Term Working Capital Series Note(s) held
by such Long Term Working Capital Series Holder by paying the principal amount
to be redeemed, together with accrued interest thereon to the date of
redemption, together with any amounts payable pursuant to Section 2.9 in respect
of such redemption.
2.9 YIELD PROTECTION
If, for any reason, the Issuer makes any payment of principal
with respect to any Long Term Working Capital Series Note on any day other than
the last day of the Interest Period then applicable thereto, the Issuer shall,
promptly upon demand, reimburse each Long Term Working Capital Series Holder for
any LIBOR Funding Costs incurred by such Long Term Working Capital Series Holder
of such amount prepaid, provided that such Long Term Working Capital Series
Holder shall have delivered to the Issuer a certificate as to the amount of such
loss or expense, which certificate shall be conclusive and binding for all
purposes, absent manifest error.
2.10 INCREASED COSTS AND REDUCED RETURN
2.10.1 If, on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Long Term Working
Capital Series Holder (or its Holding Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency, (i) shall subject any Long Term Working Capital Series Holder
(or its Holding Office) to any tax, duty or other charge with respect to one or
more of its Long Term Working Capital Series Notes, or shall change the basis of
taxation of payments to any Long Term Working Capital Series Holder (or its
Holding Office) of the principal of or interest on its Long Term Working Capital
Series Notes or any other amounts due under this Indenture or any Long Term
Working Capital Series Notes, except for the introduction of, or changes in the
rate of, tax on the overall net income of such Long Term Working Capital Series
Holder (or its Holding Office), or franchise taxes, imposed by the jurisdiction
(or any political subdivision or taxing authority thereof) under the laws of
which such Long Term Working Capital Series Holder is organized (or in which
such Long Term Working Capital Series Holder's Holding Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System and minimum reserve requirements of the European Central
Bank but excluding
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any such requirement included in an applicable Eurodollar Reserve Percentage),
special deposit, insurance assessment or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Long Term
Working Capital Series Holder (or its Holding Office) or shall impose on any
Long Term Working Capital Series Holder (or its Holding Office) or the London
interbank market any other condition affecting the purchasing, owning, holding
or maintaining of any one or more Long Term Working Capital Series Notes by such
Long Term Working Capital Series Holder (or its Holding Office) and the result
of any of the foregoing is to increase the cost to such Long Term Working
Capital Series Holder (or its Holding Office or any holding company of which
such Long Term Working Capital Series Holder is a subsidiary) of purchasing,
owning, holding or maintaining any one or more of its Long Term Working Capital
Series Notes, or to reduce the amount of any sum received or receivable by such
Long Term Working Capital Series Holder (or its Holding Office) under the
Indenture and any one or more of its Long Term Working Capital Series Notes, by
an amount deemed by such Long Term Working Capital Series Holder to be material
(excluding, for purposes of this Section 2.10.1 any increased costs or any
reductions resulting from any Indemnifiable Taxes or Other Taxes payable by the
Issuer pursuant to Section 2.7), then, promptly upon demand by such Long Term
Working Capital Series Holder (with a copy to the New Notes Administrative Agent
and the Calculation Agent), which demand shall be accompanied by a certificate
of such Long Term Working Capital Series Holder setting forth in reasonable
detail the circumstances which give rise to such increase or reduction, the
amount of the claim and the calculation thereof (and which certificate shall be
conclusive and binding for all purposes, absent manifest error), the Issuer
shall, to the extent that it shall not have done so under any other provision of
the Indenture, pay to such Long Term Working Capital Series Holder such
additional amount or amounts as will, without duplication, compensate such Long
Term Working Capital Series Holder (or any holding company of which such Long
Term Working Capital Series Holder is a subsidiary) for such increased cost or
reduction.
2.10.2 If, on or after the date hereof, any Long Term Working
Capital Series Holder shall determine that the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any change in any such law,
rule or regulation, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has the effect of reducing the
rate of return on capital of any Long Term Working Capital Series Holder (or any
holding company of which such Long Term Working Capital Series Holder is a
subsidiary) as a consequence of such Long Term Working Capital Series Holder's
purchasing, owning, maintaining or holding any Long Term Working Capital Series
Notes to a level below that which such Long Term Working Capital Series Holder
(or its Holding Office or any holding company of which such Long Term Working
Capital Series Holder is a subsidiary) could have achieved but for such
adoption, change, request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by such Long Term Working
Capital Series Holder to be material, then from time to time, promptly upon
demand by such Long Term Working Capital Series Holder (with a copy to the New
Notes Administrative Agent), which demand shall be accompanied by a certificate
of such Long Term Working Capital Series Holder setting forth in reasonable
detail the circumstances which give rise to such reduction, the amount of the
claim
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and the calculation thereof (and which certificate shall be conclusive and
binding for all purposes, absent manifest error), the Issuer shall, to the
extent that it shall not have already done so under any other provision of the
Indenture, pay to such Long Term Working Capital Series Holder such additional
amount or amounts as will, without duplication, compensate such Long Term
Working Capital Series Holder or its Holding Office (or any holding company of
which such Long Term Working Capital Series Holder is a subsidiary) for such
reduction.
Each Long Term Working Capital Series Holder will promptly
notify the Issuer, the New Notes Administrative Agent and the Calculation Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Long Term Working Capital Series Holder to compensation
pursuant to this Section 2.10. Each Long Term Working Capital Series Holder
will, before requesting compensation for additional amounts pursuant to this
Section 2.10, use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to minimize or eliminate the requirement of
such compensation by transferring its Long Term Working Capital Series Notes to
a different Holding Office or otherwise if such transfer or other action will
avoid or reduce the need for compensation for such additional amounts and will
not, in the sole judgment of such Long Term Working Capital Series Holder, be
otherwise disadvantageous (economically or otherwise) to such Long Term Working
Capital Series Holder; provided that no Long Term Working Capital Series Holder
shall have any obligation to provide any information as to any possible actions
or designations considered and taken or rejected by such Long Term Working
Capital Series Holder or the reasons therefore. A certificate of any Long Term
Working Capital Series Holder claiming compensation under this Section 2.10 and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive and binding for all purposes, absent manifest error.
SECTION 3. COVENANTS
In addition to the covenants contained in Articles Eight and
Ten of the Base Indenture, the Issuer agrees that, so long as any amount payable
under any Long Term Working Capital Series Note remains unpaid, it will comply
with the covenants set forth in Sections 3.1 through 3.5 of the Long Term
Working Capital Series Supplemental Indenture and the terms and covenants set
forth in Annex C to the Long Term Working Capital Series Supplemental Indenture
under the terms and conditions set forth therein.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The representations and warranties set forth in Annex B to the
Long Term Working Capital Series Supplemental Indenture under the terms and
conditions set forth therein are incorporated herein by reference.
SECTION 5. GOVERNING LAW
This Long Term Working Capital Series Note shall be governed
by and construed and interpreted in accordance with the law of the State of New
York; provided that all matters relating to the due authorization, execution,
issuance and delivery of the Long Term Working Capital Series Notes by the
Issuer, the approval thereof by the CNV for the offering of the Long Term
Working Capital Series Notes to the public in Argentina and matters relating to
the legal
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requirements necessary for the Long Term Working Capital Series Notes to qualify
as obligaciones negociables under Argentine law shall be governed by the
Negotiable Obligations Law and other applicable Argentine laws and regulations.
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[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL RESTRICTED DEFINITIVE NOTES]
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of an effective
Registration or (ii) two years after the later of the original issuance of this
Security or the last date on which this Security was held by the Issuer, or an
Affiliate of the Issuer, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[](a) this Security is being transferred in
compliance with the exemption from
registration under the Securities Act of
1933, as amended, provided by Rule 144A
thereunder.
Or
[](b) this Security is being transferred other
than in accordance with (a) above and
documents are being furnished that comply
with the conditions of transfer set forth in
this Security and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Security in the name of any Person other
than the holder hereof unless and until the conditions to any such transfer set
forth herein and in Section 3.06 of the Indenture shall have been satisfied.
Date: ____________________ ____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such
information regarding the Issuer as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Date: ____________________ ____________________________________________
NOTICE: To be executed by an executive
officer
EXHIBIT C
TO LONG TERM WORKING CAPITAL SERIES SUPPLEMENTAL INDENTURE
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[Trustee]
Attention:
Re: Pecom Energia, S.A. (the "Issuer")
% Notes due (the "Securities")
Dear Sirs:
In connection with our proposed transfer of $_______ aggregate
principal amount of the Securities, we confirm that the sale to [specify
transferee] has been effected pursuant to and in accordance with Regulation S
under the Securities Act of 1933, as amended, and, accordingly, we represent
that:
1. the offer of the Securities was not made to a person
in the United States;
2. at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States;
3. no directed selling efforts have been made by us in
the United States, as applicable; and
4. the transaction is not part of a plan or scheme to
evade the registration requirements of the U.S. Securities Act of 1933.
You and the Issuer are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
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