Exhibit 4.4
FORM OF EXCHANGE NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
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.
No. 1 U.S.$[________]
CUSIP No. 45767DAE9
Innova, S. de R.L. de C.V.
9.375% Senior Exchange Notes due 2013
Innova, S. de R.L. de C.V., a variable capital limited liability company
(sociedad de responsabilidad limitada de capital variable) organized under the
laws of the United Mexican States (hereinafter called the "Company", which term
includes any successor corporation under the Indenture referred to below), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of U.S. $[________] (or such lesser amount as shall be the
outstanding principal amount of this Note shown in Schedule A hereto) on
September 19, 2013 and to pay interest thereon from September 19, 2003 or from
the most recent date to which interest has been paid or provided for,
semi-annually on March 19 and September 19 in each year (each, an "Interest
Payment Date"), commencing March 19, 2004 at the rate of 9.375% per annum, until
the principal hereof is paid or made available for payment. Interest on this
Note shall be calculated on the basis of a 360-day year consisting of twelve
30-day months. The interest so payable and paid or provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be fifteen
calendar days preceding such Interest Payment Date. Any such interest which is
payable, but is not paid or provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on the relevant
Regular Record Date by virtue of having been such Holder, and may be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Company, notice whereof shall be given to
the Holders of Notes of this Series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in such Indenture.
Payment of the principal of and the interest on this Note will be made at
the office or agency of the Company maintained for that purpose in The Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that, at the option of the Company,
interest may be paid by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided,
further, that payment to DTC or any successor Depositary may be made by wire
transfer to the account designated by DTC or such successor Depositary in
writing.
This Security is a global Note issued on the date hereof which represents
U.S$[________] of the principal amount of the Company's 9.375% Senior Exchange
Notes due 2013. This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes") issued and to be issued in one series under
an Indenture dated as of September 19, 2003 (herein called the "Indenture")
between the Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes,
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof,
initially limited (subject to exceptions provided in the Indenture) to the
aggregate principal amount specified in the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes issued under the Indenture at
any time by the Company and the Trustee 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 affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes Outstanding, on behalf of the Holders of all
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
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 Note or such Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note,
at the times, place and rate, and in the coin or currency, herein and in the
Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and in this Note, the transfer of this Note may be registered on the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for the purpose in any place
where the principal of and interest on this Note are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Notes of this
series and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable in book-entry fully registered form without coupons
in minimum denominations of U.S.$1,000 and integral multiples of U.S.$1,000 in
excess thereof as more fully provided in the Indenture. As provided in the
Indenture, and subject to certain limitations set forth in the Indenture and in
this Note, the Notes are exchangeable for a like aggregate principal amount of
Notes of this Series in different authorized denominations, as requested by the
Holders surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith, other than in
certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the Notes (subject to certain exceptions)
or (ii) the Company may be released from its obligation under specified
covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations
sufficient to pay and discharge the entire indebtedness on all Notes of this
series, and satisfies certain other conditions, all as more fully provided in
the Indenture.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefits under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
INNOVA, S. DE R.L. DE C.V.
Attest: ---------------------------------- By: ------------------------------
Name: Name:
Title: Title:
By: ------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the Indenture.
Dated: [_______], 2004 The Bank of New York,
as Trustee
By:
-------------------------------
Authorized Signatory
FORM OF REVERSE OF NOTE
This Security is one of a duly authorized issue of Notes of the Company
designated as its 9.375% Senior Exchange Notes due 2013 (hereinafter called the
"Notes"), limited in aggregate principal amount to U.S.$ [_______], issued and
to be issued under an Indenture, dated as of September 19, 2003 (hereinafter
called the "Indenture"), among the Company, The Bank of New York, as Trustee,
Registrar, Paying Agent and Transfer Agent and The Bank of New York
(Luxembourg), as Luxembourg Paying Agent and Transfer Agent.
ADDITIONAL AMOUNTS. The Company will pay to the Holders of the Notes such
Additional Amounts as may become payable under Section 4.21 of the Indenture.
REPURCHASE OF NOTES UPON A CHANGE OF CONTROL. The Company must commence,
within 30 days of the occurrence of a Change of Control, and consummate an Offer
to Purchase for all Notes then Outstanding, at a purchase price equal to 101% of
the principal amount of the Notes plus accrued interest (if any) to the Payment
Date. The Company is not required to make an Offer to Purchase following a
Change of Control if a third party makes an Offer to Purchase that would be in
compliance with the provisions described in this section if it were made by the
Company and such third party purchases (for the consideration referred to in the
immediately preceding sentence) the Notes validly tendered and not withdrawn.
Prior to the mailing of the notice to Holders commencing such Offer to Purchase,
but in any event within 30 days following any Change of Control, the Company
covenants to (i) repay in full all indebtedness of the Company that would
prohibit the repurchase of the Notes pursuant to such Offer to Purchase or (ii)
obtain any requisite consents under instruments governing any such indebtedness
of the Company to permit the repurchase of the Notes. The Company shall first
comply with the covenant in the preceding sentence before it shall be required
to repurchase Notes pursuant to this "Repurchase of Notes upon a Change of
Control" covenant.
WITHHOLDING TAX REDEMPTION. The Notes will be subject to redemption in
whole, but not in part, at the option of the Company at any time at 100% of
their principal amount, together with accrued interest thereon, if any, to the
Redemption Date, in the event the Company has become or would become obligated
to pay, on the next date on which any amount would be payable with respect to
such Notes, any Additional Amounts in excess of those attributable to a
withholding tax rate of 10% as a result of a change in or amendment to the laws
(including any regulations, rules or rulings promulgated thereunder) of Mexico
(or any political subdivision or taxing authority thereof or therein), or any
change in or amendment to any official position regarding the application,
administration or interpretation of such laws, rules, regulations or rulings,
including a holding of a court of competent jurisdiction, which change or
amendment is announced or becomes effective on or after the Closing Date.
NOTICE OF REDEMPTION. Notice of redemption shall be given by the Company to
the Trustee and each Holder whose Notes are to be redeemed in accordance with
the provisions of Sections 3.02 and 3.04, respectively, of the Indenture.
If notice of redemption has been given in the manner provided above, the
Notes specified in such notice to be redeemed shall become due and payable on
the Redemption Date at the Redemption Price stated therein, together with
accrued interest to such Redemption Date, and on and after such date (unless the
Company shall default in the payment of such Notes at the Redemption Price and
accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in the
Notes), such Notes shall cease to accrue interest. Upon surrender of any Note
for redemption in accordance with a notice of redemption, such Note shall be
paid and redeemed by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided that installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders registered as such at the close of business on the relevant Regular
Record Date.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SCHEDULE A
SCHEDULE OF EXCHANGES
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The following exchanges of Notes for Notes represented by this Note have been
made:
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Principal amount of Change in principal Principal amount of Notation made by or
this Note as of the Amount of this Note due this Note following on behalf of the
date of exchange Date exchange made to exchange such exchange Trustee
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U.S.$
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